Beruflich Dokumente
Kultur Dokumente
TRIBUNAL
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JUDGMENT
After a consideration of the documentary and testimonial evidence adduced before it,
the Tribunal, in its award of 09 May 2016, found on a balance of probabilities that the
reduction of workforce was unjustified and ordered the applicant to pay to the co-
respondents (then complainants) severance allowance in accordance with section 46(5) of
the Act.
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Feeling aggrieved, the applicant now seeks a judicial review of the award and moves
for leave to apply for same accordingly on the following grounds: (a) exceeding jurisdiction
(ultra vires); (b) error of law; (c) error of facts; (d) ignoring relevant considerations and taking
irrelevant ones into account; and (e) irrationality and unreasonableness of inference,
conclusions and award.
The respondent is not but the co-respondents are resisting the motion on the
grounds that (i) the application does not disclose an arguable case and (ii) it has not been
made promptly.
The submissions made on behalf of the co-respondents under (i) were that
grounds (c), (d) and (e) on which the applicant relies in support of its motion for leave in
effect challenge the Tribunals appreciation of facts and that therefore this Court is
essentially being asked to sit on appeal on the decision of the Tribunal and to review its
findings of fact which are based on testimonial and documentary evidence adduced before it.
Learned Counsel relied on Luchmun v The Mauritius Sugar Terminal Corporation [1990
MR 343], Naidoo v The Public Service Commission & Anor [2007 SCJ 77] and Francis &
Ors v The Employment Relations Tribunal [2014 SCJ 266] in support of their
submissions.
With regard to grounds (a) and (b) of the application for leave, learned Counsel for
co-respondent no. 1 argued that had the co-respondents complaints before the Tribunal
been based solely on a breach of the provisions of section 39B (2) and (3) of the Act, or had
the Tribunal in making the award grounded its decision on a breach of the said provisions,
then by virtue of section 39B (11) of the Act, he would have had no qualms in conceding that
the Tribunal would have exceeded its jurisdiction and fallen into error of law in determining
the matter. However, so argued learned Counsel, as it is apparent from the statement of
case of the co-respondents before the Tribunal, more particularly paragraphs 9 and 10 of the
statement of case of co-respondent no. 1 and paragraphs 9 to 44 of the statement of case of
co-respondents nos. 2 to 11, the co-respondents case was not restricted to non-compliance
with the provisions of section 39B (2) and (3) of the Act but also pertained to the unjustified
reduction of workforce allegedly due to economic reasons. He added that in fact the main
issue before the Tribunal and upon which it was called upon to make its award was whether
there was justification in the applicants (then respondent) decision to reduce its workforce
and terminate the co-respondents contract of employment based allegedly on economic
reasons. As such, by virtue of section 39B (9) and (10) of the Act, the Tribunal did not act
ultra vires but had jurisdiction to determine the complaints referred to it by the Permanent
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Secretary and make the award, so argued learned Counsel for co-respondent no. 1.
Learned Counsel further added that in so far as co-respondent no. 1 was concerned since it
was not disputed that he was not a member of the Trade Union, therefore, the provisions of
section 39B of the Act did not find its application to his case. The only issue which the
Tribunal had to determine, therefore, was whether the termination of his employment based
on a reduction of workforce was unjustified or not.
Addressing us on (ii), learned Counsel for co-respondent no. 1 argued that although
the application has been made within the delay of three months, being given that the
decision sought to be challenged was that of the Employment Relations Tribunal which had
upheld the co-respondents complaint of unjustified redundancy, time was, therefore, of the
essence and the applicant in waiting for 2 months has failed to act with promptness in
seeking leave for judicial review of the decision of the Tribunal. Learned Counsel relied on
Bagha v The Public Service Commission [1996 SCJ 146] and Securiclean (Mauritius)
Ltd v The Ministry of Local Government & Outer Islands & Anor [2015 SCJ 327].
In reply to the second limb of the co-respondents objections, learned Counsel for the
applicant submitted that for obvious reasons he could not from the Bar formulate the reasons
why the applicant did not act with celerity. He conceded that an affidavit ought to have been
put in but that has not been done. He added that a second affidavit could only be filed in
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rebuttal to an affidavit from the co-respondents. As the co-respondents have not filed any
affidavit and have objected to leave being granted, he was precluded from filing a second
affidavit. He, however, pointed out that what is material is that the application is not time
barred and has been entered within the time limit of three months.
Issue of jurisdiction
Furthermore, as we stated earlier, the subject matter of the Permanent Secretarys referral to
the Tribunal was whether the reduction of the workforce affecting the Disputants is justified
or not in the circumstances. We, therefore, take the view that the Tribunal had jurisdiction
to hear and determine the issue referred to it under section 39B (6) (a) of the Act.
Issue of arguability
We reiterate what was said by this Court in Francis (supra) citing with approval
Luchmun (supra) and Naidoo (supra) that the purpose of a judicial review is to look at the
legality of a decision and at the decision making process and not to act as a court of appeal.
We, accordingly, agree with the arguments of learned Counsel for co-respondent
no. 1 that having regard to the applicants averments in its affidavit in support of the grounds
on which we are being asked to review the decision of the Tribunal, we are in effect being
asked to sit on appeal on the merits of the award of the Tribunal which is clearly outside the
scope of our jurisdiction in an application for judicial review.
Issue of promptness
We endorse the arguments of learned Counsel for co-respondent no. 1 that the
present case is of the type requiring celerity from the applicant. As established by the facts
of the present case, the co-respondents were made redundant in November 2015 and
January 2016. The co-respondents complained of unjustified reduction of workforce to the
Tribunal. The latter was required by law to give its award within 30 days of the date of
the complaints referred to it (vide section 39B (8) (a) of the Act). The Tribunal gave its
award on 09 May 2016, within the strict time limit imposed upon it by law, and ordered the
applicant to pay to the co-respondents severance allowance on terms specified in the award.
The present application for leave for judicial review was lodged on 20 July 2016 and served
on the respondent on 21 July 2016 and the co-respondents on 21, 22 and 23 July 2016.
We can safely presume that in view of the present application, the applicant has not satisfied
the award of the Tribunal.
We find also relevant the following extracts from Bagha (supra) and Karamuth &
Ors v Universal Hotels Ltd & Ors [1992 SCJ 420] cited with approval in Securiclean
(supra):
Delay in applying for relief. Application for leave to move for judicial
review must be made promptly, which in this context means as soon
as practicable or as soon as the circumstances of the case will allow,
and in any event such application must be made within three months
from the date when grounds for the application first arose [See r.4(1);
see also S.C.A. 1981, s. 31(6)].. It is sometimes thought that an
applicant for judicial review is always allowed 3 months in which to
make his application for leave, and provided that he lodges it within
that period leave cannot be refused on the grounds of delay. That is
not so. The primary requirement laid down by the rules (r.4(1)) is that
the application must be made promptly, followed by the secondary
provision .... and in any event within three months... Thus, there can
be cases where, even though the application for leave was made
within the 3-month period, leave might be refused because, on the
facts, the application had not been made promptly (for an example of
such a case see: R. v. Independent Television Commission, ex p. TV
NI Ltd., The Times, December 30 1991, C.A.). [Emphasis not ours]
[]
In Karamuth & Ors v. Universal Hotels Ltd & Ors [1992 SCJ 420]
another division of the Court said:-
[]
However, at the end of the day, it would have been this Courts prerogative to rule on the
matter. We, accordingly, find that the applicant has not satisfied the requirement of
promptness, as well.
For all the above reasons, leave is refused and the application is set aside.
With costs.
A. Hamuth
Judge
N. Devat
Judge
21 August 2017