(Supreme Court - Record No. 6920)
FACTS
The Appellant was the Managing Director and General Manager of a company called Diesel Pro Ltd, a company owned by the Respondent and was provided two company vehicles for himself and his wife as part of his conditions of service.
On 18 January 2010, the Appellant received a letter to attend a disciplinary committee to answer a charge relating to the Appellant’s involvement in an illegal hunting at night while using the company’s vehicle following which, the Appellant’s employment was terminated on the ground of misconduct.
It is apposite to note that further to the above incident, the Appellant was arrested by the police and provisionally charged for the offence of illegal hunting prior to being released on bail and that a press article making reference to the said incident and identifying the company’s vehicle was published in the newspaper.
Further to the termination of his employment contract, the Appellant entered a claim for severance allowance together with indemnity in lieu of notice, which claim has been dismissed by the learned magistrate of the Industrial Court.
MAIN ISSUES
The Appellant appealed against the judgment and contended inter alia that:
- the learned magistrate was wrong to opine that the Respondent could conclude that the Appellant committed an illegal act when it is for a Court of law to make such determination;
- there was no evidence that an illegal act had been committed by the Appellant, the more so since he did not participate in the act of hunting himself;
- assuming that the facts complained of by the Respondent were true, the acts of the Appellant did not constitute a ‘faute lourde’ on the following basis:
- there was no element of dishonesty or violence but a simple case of hunting at night;
- appellant’s role was minor;
- the hunting was done for charitable purposes;
- appellant was not prosecuted.
- the acts occurred outside working hours and outside the Respondent’s premises which did not have any effect on “le bon fonctionnement de l’entreprise”;
- the Respondent could have taken another course of action since the Appellant had an “unblemished record” and has never received any warning from the Respondent and the incident was a minor one;
- the act of the Appellant did not show any disloyalty against the Respondent nor was it in the nature of a competition against the company’s activities.
DECISION OF THE COURT
The Court upheld the decision rendered by the lower Court in that the acts and doings of the Appellant constituted a ‘faute grave’ which was tantamount to gross misconduct so that the employer did not have any other alternative than to terminate the Appellant’s employment. The Appeal was therefore dismissed.
The Court’s decision was based inter alia on the following reasoning:
- the learned magistrate relied on the general circumstances in which the offence was committed to come to the conclusion that there were sufficient elements evidencing that the Appellant participated either as an accomplice or a co-author in the illegal hunting (namely because the Appellant was apprehended by the police and it was not incumbent on the company to await the outcome of the criminal case before taking any disciplinary action against the Appellant);
- the acts and doings of the Appellant constituted a ‘faute grave’ although it was committed outside working hours, outside the company’s premises and while he was on leave. The Appellant’s misconduct was of a nature to bring about « un trouble profond dans le fonctionnement et la morale de l’entreprise »;
- the Appellant made an ‘usage abusif’ by using the vehicle for the commission of a criminal offence;
- there is clear breach of trust on the part of the Appellant and the Appellant’s behaviour as a high-ranking employee was not proper and objectively created ‘un trouble objectif’ in the ‘bon fonctionnement de l’entreprise’ leading to ‘manquements aux obligations résultant de son contrat’ and consequently put the company’s reputation and business in jeopardy.
Attorney for Respondent: Josephine Robert
