Savoy v Jackson (CA 06/2021) [2021] SCSC 1032 (27 October 2021)

SUPREME COURT OF SEYCIIELLES Reportable [2021] scsc .rf.:r.+ Arising in CA 06/2021 (Appeal from ET 7121) In the matter between: SAVOY DEVELOPMENT LIMITED Appellant Herein represented by its lawfully appointed Power of Attorney Alexander Khubukov (rep. by Serge Rouillon) and LEONARD JACKSON (unrepresented) Respondent Neutral Citation: Before: Summary: Heard: Delivered: [2021] sese ..?f:T.(27th October 2021). Savoy v Jackson (CA 06/2021) Pillay J Appeal from Employment Tribunal 3rd September 2021 27th October 2021 ORDER is allowed to the extent that the matter is remitted to the Employment Tribunal The Appeal deal with the issue of calculation of salary for the purpose of computing 31 days paid annual leave due to the Respondent. to JUDGMENT PILLAY J [1] By way of Notice of Appeal filed on 16lh . June 2021 the Appellant appeals against ihe judgment of the Employment Tribunal dated I Ilh June 2021. [2] The background facts are as summarised by the Employment Tribunal in its judgment dared 11th June 2021 which I reproduce here. took the opportunity 011 successive fixed term The [Respondent} was employed by the [Appellant] contracts of employment CIS the Deputy Director of Sales and Marketing and or Assistant Sales and marketing Director [rom / -1'/1 . J1I~)' 2017 up until 5'h JWlll(IIY contract a/employment being due ti end in January 2()21 2021. The [Respondent's} the [Appellant} on the 3rd to inform the [Respondent] December 2020 that his contract ofemployment would not be renewed, whereupon so he could ... began negotiating the [ina! dues o]' the [Respondent} the parties departfrom Seychelles to his point ofhire being, South Africa, Johannesburg. The parties being unable to come to an agreement with regard to the [Respondent \] the [Respondent] outstanding annual ..applied to the Tribunal seeking a determination (In these two claims ... leave and air fare ticket to South Africa, [3] Following a hearing the Tribunal gave judgment in favour or the Respondent ordering the Appellant pay the Respondent EURO 3. 842 for 31 days annual leave as well as purchasing an economy class ticket for the Respondent or disbursing the requisite sums [or the Respondent to purchase the said ticket. [4] The Appellant being dissatisfied with the decision appealed on the following grounds of appeal: (1) The Tribunal failed to properly evaluate the termination dues of the Respondent calculation ofthe same by awarding the leave based on the gross salary rather than the net salary as per the employment especially it has made an error in the/ina/ final contract. (2) The Tribunal failed to consider the status oj"the parties in relation to the pandemic l,vas terminated byfailing to take proper situation in SeychelLes when the employment account and assessment or account a/the leave entitlement. (3) The Tribunal failed to appreciate OJ" to balance thefull evidence of the case as set out in the record of proceedingsfrom the Tribunal offact. [5] The Appellant seeks an order setting aside the Judgment of the Employment Tribunal [6] The issue is a very narrow one; how was the computation for converting 31 days p.iid annual leave to cash done? [7] With regard to the first ground of appeal the Tribunal noted that While counsel for the Respondent cross examined the Applicant on the method of calculating the final sum - based on the salmT di(Terence when he first storied workingfor the Respondent compared to hisfinal contractual remuneration . WII/ that may be due to him as a result a/this claim 01 11(1 point did the Respondent or it's representative challenge the number ofdays heing claimed by the Applicant or indeed produce any evidence from their records to show the records he produced before us was incorrect and or inaccurate. Upon examining the evidence ns adduced and the submissions 0/ the parties the TrihuI101 allows the Applicants claim for payment of 3 J outstanding cloys 0/ A /7/7//(// Leave which calculation is based on thefinal salary of the Applicant. which us per his evidence which remains time EUnJs 3. 20U 00. The Applicants entitlement uncontested was at the material with regard to this claim due and owingfrom the respondent is Euros 3,842.00. [8] In terms of the its finding that the Respondent is entitled to :11days annual leave, J f~lld110 fault in the conclusion of the Tribunal. The annual leave report shows that the Respondent as at July 2020 had 21.79 days outstanding as annual leave. Since the Appellant accepted that the "end date" for the Respondent's employment WaS 5th January 2021; in line with section 9 (1) of the Conditions of Employment a worker is entitled to 1.75 days ,-11l11l1:1I leave per month of service. In that line from August :2020 to December 2020 the Respondent was due 5 x 1.75 = 8.75. Acid that to 21.79 then the 3'1 days annual lv.ive conclusion cannot be faulted on the basis of section 40 of the Act. [9] In any event as the Tribunal noted the Appellant dicl not challenge the number 01' d:IVS being claimed by the Respondent. [10] The record shows that the Respondent's salary is "Basic UJR 1900 net monthly, Bonus EUR 1280 net total 3200EUR". It is clear from the judgment at paragraph 3 that this i~;the figure that the Tribunal concluded was the "final salary" 01' the Respondent. [11] However there is no record of how the calculation was done to give the sum total sum of EUR 3842 as owing for paid annual leave. It is unclear to this Court how that figure \\(lS reached. It is noted that the judgment does not make reference to either gross or net s.il.ny but rather to "final salary of the Applicant". [12] In terms of ground 2 the Learned counsel for the Appellant did not expand on this ground or the third ground. He submitted that the issue is a very narrow one being a question of annual leave entitlement. In any event the annual leave entitlement was not suspended ;1:) a result of the covid pandemic. All employees remained entitled to annual leave as per the Regulations above mentioned. [13] The Appeal is therefore allowed to the extent that the matter is remitted to the Employment Tribunal to deal with the issue of calculation or salary for the purpose of computing 31 days paid annual leave due to the Respondent. Signed, dated and delivered at He du Port on .. ~i 0~ ;J._g,;)_j 4