Supreme Court of Mauritius, 10 juillet 2020, 2020 INT 98 – Foolessur H v/s Landscope (Mauritius) Ltd

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Foolessur H v/s Landscope (Mauritius) Ltd

2020 INT 98

FOOLESSUR HANSRAJ V/S LANDSCOPE (MAURITIUS) LTD CN: 1913/2014 THE INTERMEDIATE COURT OF MAURITIUS In the matter of:- Hansraj Foolessur Plaintiff v/s Landscope (Mauritius) Ltd Defendant

JUDGMENT

Plaintiff is by way of proecipe praying for a judgment ordering defendant to pay to him the sum of Rs1,000,000 with interests and costs for all the reasons set out in the proecipe.

The main averments of the proecipe are as follows;

Plaintiff was employed by defendant since 20th of December 2011 as Safety and Health officer. Under the contract, the plaintiff was to offer his services for two half days a week. In or about 2012, the plaintiff was asked verbally to work four half days a week instead of 2. No complaint was ever made against the plaintiff. Defendant started harassing the plaintiff with the aim of making him to resign his job voluntarily. In a letter dated the 8 th of November 2013, the defendant required him to work four half days instead of two as

from 11/11/2013. Plaintiff had to resign from his job at DCDM Consulting Ltd to comply with the exigency of the letter. Defendant continued harassing the plaintiff by requiring him to furnish explanations and by burdening him with extra and unnecessary work. Plaintiff was punitively transferred to La Tour Koenig upon a notice of 2 days. There, he was not provided with adequate resources. On the 2/05/2014, the defendant terminated the employment of the plaintiff without justification and offered to pay to the plaintiff several allowance. Plaintiff declined the offer. All the above acts and omissions amount to a breach of contract of employment which has caused prejudice to the plaintiff in the sum of 1 million rupees.

In the plea, it is averred that the plaintiff was required to work four and a half days per week as from 11/11/2013 due to back log. Plaintiff’s attention was drawn to certain shortcomings in the performance of duties by letter dated 29/01/2014. During a meeting held on the 8 th of November 2013, plaintiff agreed to provide his services for additional 2 half days. It is a normal practice to change the posting of an officer to other BPML buildings. The office at La Tour Koenig was equipped with telephone and a fax machine. It is denied that the plaintiff was harassed by the defendant or that the defendant committed a breach of contract

Plaintiff’s case:

The gist of Mr Foolessur’s testimony is that he was employed as safety and health officer by the defendant. He used to work two half days a week and was earning Rs 13,700 per month. He produced a copy of his pay slip. In April 2012, the defendant asked him to work 2 additional half days and his salary was increased accordingly. He was also working in other companies as part time safety officer. He produced a copy of the contract. He received a letter from the defendant on the 15 th of August 2013 informing him that his service were no longer required as from 31/10/2013. Plaintiff went to complain to the Labour Office. Following a meeting between defendant and the Labour office, he received a letter to the effect that he had been reinstated. The letter was produced in court. He was eventually reinstated and transferred to another site where he was not given access to all facilities. He did not have any access to telephone or fax. According to him, the transfer was a punitive one. He had to work four half days a week and he was not agreeable to that. He had to resign from other posts. He was not in

contact with other employees and had to remain at one spot and could not deliver. He is praying for a judgment ordering the defendant to pay him damages in the sum of 1 million rupees. A mise en demeure was served on defendant. He added that he was not given any reasons when he was asked to leave. Defendant has acted in breach of contract. In cross-examination, he conceded that he was paid when he was requested to work 4 times a week. He denied that he had agreed during a meeting to work four times a week and denied that there was any back log. He then stated that there was indeed a meeting but that he maintained that he was not agreeable to work four times a week. He conceded that since 2010 he was working at Plastinax. He denied that the transfer was not a punitive transfer. He stated that there was already a health and safety officer at Informatics Park and he hardly had any work to do. He conceded that he sent a letter to the company in January 2014 in the following terms; “I appreciate for the benefit of the company and that of its workers you extended my hours of work.” He conceded that he was given several allowances at punitive rate.

Defendant’s case

The main features of defendant representative’s testimony are that the plaintiff was employed by the defendant to work for two half days a week. This was subsequently increased to four half days. A meeting was held on the 8 th of November 2013 where the defendant agreed to work for four half days. Plaintiff was transferred to La Tour Koenig so that he could ensure that the building complies with the safety regulations and he was provided with adequate facilities. He was using his laptop but the secretary was typing his reports. He did not agree that the plaintiff was denied access to adequate resources since he could not be paid extra for sitting around. He sent the plaintiff a letter on the 29/01/2014 with regard to the performance of his work since the plaintiff failed to provide feedback on his work. His employment was terminated in May 2014 upon which he was offered one-month salary in lieu of notice. In cross-examination, he conceded that the plaintiff sent a letter to the defendant on the 13 th of February 2014 that he was unable to send any feedback due to a lack of facilities provided to him and he was unable to complete some assignments. He denied that the plaintiff was not provided with adequate facilities. Defendant eventually decided to employ a full-time health and safety officer.

He denied that the plaintiff was being harassed. He denied that the defendant acted in breach of contract and stated that the plaintiff was offered compensation.

Analysis and findings

The central issue to be thrashed out is whether defendant has committed a breach of contract by harassing the plaintiff with the aim of making him leave the job; The particulars of harassment are as follows; – Plaintiff was requested in a letter dated 8/11/2013 to work 4 half days instead of two – He was admonished for no reason and burdened with extra work. – He was punitively transferred to another site where he was not provided with adequate resources – His employment was terminated without valid reasons.

It is not disputed that the plaintiff was requested to work 4 half days instead of two half days. It is an express term of the contract that Plaintiff was required to work for only two half days. Hence, if the defendant wanted to vary the terms of the contract, it ought to have obtained the consent of the plaintiff. Plaintiff was adamant in cross-examination that he did not give his consent to the extension in the number of hours of work. I have no hesitation in rejecting as untrue such version which is in blatant contradiction with answer 2 of the answer to particulars that he in fact agreed in writing to work four half days per week.

As regards the second reproach that he was overburdened with extra work, the plaintiff failed to expatiate on the extra work which he had been requested to do. It is worthy to note that no evidence was led in support of paragraph 23 of the answer to particulars. Since his evidence on this score is scanty and vague, I am unable to accept his version that he was indeed overburdened with work. Besides, his complaint that he was overburdened with work is not consonant with his subsequent version that he hardly had any work following his transfer.

In respect of the alleged punitive transfer, it is the version of the defendant’s representative that it is a normal practice for staff to be transferred. The plaintiff gave evidence that he was not given adequate facilities when he was transferred to La Tour Koenig. Defendant however denied that the plaintiff was not given adequate facilities to do his work. I find the version of the defendant’s representative to be more credible. There is no evidence that the defendant acted in breach of any contractual term by effecting such transfer or departed from standard practice by transferring the plaintiff to La Tour Koenig.

Finally, as regards the termination of the contract, the defendant was perfectly entitled by virtue of clause 5 of the contract to terminate the contract at any time by giving one month notice or without notice in the event of incompetence or insubordination. It is the version of the defendant that the plaintiff was requested to furnish explanations in respect of incomplete assignments and his program of work. Defendant complied with the terms of the contract by giving one month notice before terminating the contract.

For the above reasons, I conclude that the plaintiff has failed to prove on a balance of probabilities that the defendant has committed a breach of contract. I therefore dismiss the plaint.

With costs.

[Delivered by N Senevrayar-Cunden, Magistrate of Intermediate Court]

[Delivered this 10th of July 2020]