Privy Council dismisses a constitutional challenge from
Mauritius
In the case of St Aubin Limitee v Alan Jean Francois Doger
de Speville (2011 UKPC42), the Privy Council had to consider
whether the absence away from the jurisdiction of the judge who had
tried the case and the fact that the judgment was delivered in his
absence and after a delay, was a breach of the Mauritian
Constitution.
The Vice-President of the Industrial Court, with the Chief
Justice's approval, had been seconded to lead Rwanda's newly
established Commercial Court. As a result, judgment was delivered
in the absence of the parties (albeit that they were notified
promptly of it). The Industrial Court Act requires the judge to
explain to a person against whom judgment has been delivered that
he has a right of appeal, and the conditions under which that right
may be exercised. The board decided that neither party had been
prejudiced as they both lodged appeals well within time.
Furthermore, as was apparent from the respondent's case, he was
well aware of the judge's absence.
Regarding the delay, the board re-emphasised that before any
question of disturbing a judgment arises, it needs to be examined
on its merits to see whether there is a real prospect that the
delay had impaired the judge's ability to arrive at a fair
conclusion. The board concluded that there was no such
evidence.
Blake Lapthorn was involved in a similar case concerning delay
of judgments in the Bahamas (Stephen Kent Jervis (1) KSD
Investments v Victor John Skinner (2011 UKPC2). Blake Lapthorn
similarly acted for the successful respondent in that case.
The St Aubin case concerned a respondent who was employed as a
transport and garage manager on a sugar plantation. Because of
concerns about the prospects of the sugar industry, the appellant
had decided to diversity into the production of rum and set up a
small distillery. The respondent assisted in setting up the
distillery as well as continuing to run the transport division.
Upon return from holiday, the respondent was handed a letter
informing him (without prior notification or consultation) that he
was now to devote himself full time to the distillery, which he
treated as constructive dismissal. He was awarded three months
salary in lieu of notice together with a severance allowance at the
punitive rate prescribed by the Mauritian Labour Act. The sum
awarded amounted to some 8,500,000 rupees.
The board had to consider whether there was a constructive and
unjustified dismissal. The respondent's original post remained
unchanged (indeed somebody had been appointed to replace him). The
appellant had unilaterally decided to transfer him full time to the
distillery. As Lord Mance said in his judgment: "No one is obliged
to have glory thrust upon them." The respondent was entitled to
prefer to retain his familiar contractual post. The appeal was
therefore dismissed.
During the course of his judgment, Lord Mance considered the
judgment in Adamas Limited v Mrs Yong Ting Ping How Fok Cheung
(2011 UKPC32), a case where Blake Lapthorn had also
represented a successful respondent. In that case a jewellery store
manager had had a substantial modification of her original contract
unilaterally thrust upon her.
Blake Lapthorn acted as agents for Mr de Speville's
attorneys.
