Etude Guy Rivalland

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The subject matter of the case is an appeal against the judgment of the Industrial Court in which the claim of the appellant (“the plaintiff”) against the respondent (“the defendant”) was for indemnity in lieu of notice and for severance allowance based on the alleged unjustified termination of his employment and that was dismissed with costs.

Before the Trial Court, the plaintiff had averred that he had been working continuously with the latter under five contracts of employment. He was given written notice that his employment was terminated whereas by virtue of paragraph 9 (A) (ii) of his contract of employment where the defendant had an obligation to give three months written notice of termination. The plaintiff also averred that he had been discriminated against due to his foreign nationality. According to the plaintiff, the termination of his employment was unjustified.

The defendant admitted that there were five contracts of employment but denied that the plaintiff had been in the defendant’s continuous employment and that termination was lawful inasmuch as the contract of employment was for fixed duration. The defendant denied the allegation of discrimination and explained that the decision to terminate the plaintiff’s employment was motivated by the difficult financial situation of the defendant.

The Trial Court found in favour of the Defendant. The Court decided that the termination was reasonable as the Defendant was in great financial distress at the material time.

Issue on before the Appellate Court:

(i)                the issue of continuous employment and

(ii)               the entitlement to severance allowance

The decision of the case of De La Haye v Air Mauritius Ltd [2018 UKPC 14, Privy Council Appeal No. 0088 of 2016] was referred where the appellant in that case was, like the appellant in the present case, an expatriate pilot who had been employed on successive contracts of fixed duration. His employment was terminated by the respondent on grounds similar to those on which the appellant in the present case was terminated. The Judicial Committee agreed that the appellant's employment under four successive fixed term contracts did indeed fall within the concept of continuous employment as defined in section 2 of the Employment Rights Act 2008.

The Privy Council went on to say that the termination was clearly justified on the basis of the findings of the Magistrate in the Industrial Court. The findings they were referring to are those to the effect that there was clearly sufficient economic justification for the termination of the plaintiff’s contract.

The appeal was dismissed with costs.

Etude Guy Rivalland defended the interests of the Defendant.