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LABOUR CONFERENCE 2019 Unfair Dismissal and Discriminatory Practices in the Public Education System in and other Jurisdictions -The Mauritian Case Study- (Paper in collaboration with Prof R.P Gunput, University of Mauritius)

Presented by: Mr Désiré Gaël Henriette-Bolli (BA, LLM, MA) Lecturer in Law Open University of Mauritius, [email protected] PRESENTATION STRUCTURE: • Aim • Objectives • Introduction • French and UK Order 53 in Unfair and Discriminatory Practices

• Discretionary Measures in the Public Sector

• and Inspired French Civil Law • UK Order 53 and Judicial Review: A Procedure Which is Not Based on the Merits of the Case. • Conclusion

Labour Law Conference 2019 (19-21 June 2019) AIM

To enlighten the problematic legal issue of the procedure pertaining to an application for leave for judicial review as public officers may apply for judicial review as per section 9 of the PBAT Act 2008 (Act 10/2008) to the Supreme

Court in its inherent jurisdiction and at its discretion following UK Order 53

Labour Law Conference 2019 (19-21 June 2019) OBJECTIVES

 To assess extent to which foreign law such as French Civil Law and UK Law are influencing the Mauritian unfair and discriminatory practices in the public education system

 Evaluate the discretionary measures granted or not in the Mauritian Public Sector

 Analyse judicial review as a remedy

Labour Law Conference 2019 (19-21 June 2019) INTRODUCTION

• Public Officers are recruited by the Public Service Commission (PSC) and the Local Government Service Commission (LGSC) as per the PSC Act and LGSC Act

• Appeal to the Public Bodies Appeal (PBAT) as per section 3 of the PBAT Act 2008

• Case study: Baureek v Public Service Commission 1988 SCJ 470

Labour Law Conference 2019 (19-21 June 2019) • Save to some very exceptions, public officers are recruited as per some relevant provisions of the Public Service Commission (PSC) and they are also promoted or dismissed by the same public body

• Often subject to dismissal employees are unjustifiably dismissed and hence apply for leave for a judicial review

• Example: Deelawar AKA v The Local Government Service Commission & Ors 1989 SCJ 320

Labour Law Conference 2019 (19-21 June 2019) • There are bodies created by which empowered them to dismiss or to take the appropriate measures and actions which are not always fair, legal, reasonable or an error of law towards public officers because these statutory bodies may exceed or abuse their powers

• empowered public statutory bodies (the Public Service Commission or the Medical Council of Mauritius for example) to impose the appropriate measures in case of misconduct

Labour Law Conference 2019 (19-21 June 2019) French Civil Law and UK Order 53 in Unfair and Discriminatory Practices

• Complex mixed legal system

• There are also several important and relevant legislations and which also punish public officers for criminal offences on the workplace because, inter alia, of , bribery and possession of drugs are very often committed by public officers

• However, in the public education sector, academics are not public officers

Labour Law Conference 2019 (19-21 June 2019) • Case study: Cooraban M.A. v The Mauritius Institute of Education 1995 SCJ 271

• Appellant raised an issue in respect of the composition of the disciplinary committee set up to enquire into charges leveled against him and this concerned the Registrar of the Mauritius Institute of Education who sat on the disciplinary committee, when he had requested another employee to reduce in writing his complaints against the appellant and consequently the latter was deprived of a fair hearing

• Appellate observed that : “…We do not find that the mere fact of Mr. Deljore requesting Surnam to put his complaint against the applicant in writing disqualified him, as the Registrar of the respondent, to sit on the disciplinary committee, along with other officers, to hear the applicant’s case. As it has been said before a disciplinary committee is not a Court of law and it is often difficult to find committee members who are totally unaware of complaints which have to be heard’’

Labour Law Conference 2019 (19-21 June 2019) • When academics are not satisfied with a decision reached by a public tertiary institution they will have to proceed by way of judicial review, inspired from UK Order 53

• Judicial review; being a concern; is a discretionary measure which is certainly not based on the merits of the case but on public officers aggrieved concerns

• Employees as a recourse measure, have to proceed by way of judicial review complaining public rights infringements’ to a public statutory body

• In a number of cases, leave was refused by the in its inherent jurisdiction because judicial review is not based on the merits of the case but on the decision- making processes.

Labour Law Conference 2019 (19-21 June 2019) • Lord Diplock in the case of O’Reilly v Mackman 1983 2 AC 237

• “It would as a general rule be contrary to public policy and as such an abuse of the process of the , to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means to evade the provisions of Order 53 for the protection of such authorities’’(Cocks v Thanet ; Davy v Spelthome 1984 AC 262; London Borough of Wandsworht v Winder 1985 AC 461).

Labour Law Conference 2019 (19-21 June 2019) Discretionary Measures in the Public Sector

• UK Order 53: measure which allows applicant to apply for leave for judicial review and the Supreme Court in its inherent jurisdiction may grant or refuse leave at the first stage in its discretion • However, the public remedy of judicial review is a discretionary remedy • Available to any aggrieved person in order to prove effective relief where a decision- making authority exceeds or abuses its powers, commits an error of law, reaches a decision which no such reasonable public statutory body or institution could have reached or breaches the rules of that is fairness and the duty to act fairly

Labour Law Conference 2019 (19-21 June 2019) • Dismissal must be effected within seven days, an employee at the MGI shouted at the Director of MGI making disparaging remarks against him, and consequently he was dismissed for misconduct but since he was dismissed after the prescribed statutory delay of 7 days he obtained severance allowance at the punitive rate under the Labour Act 1975

• By virtue of section 4(1)(b) of the Local Government Service Commission Act 1975 (Act 37/1975), the power to dismiss a local government officer is given exclusively to the Commission

Labour Law Conference 2019 (19-21 June 2019) 4. LGSCA 1975 Powers of the Commission (1) Subject to the other provisions of this section and to the Local Government Act 1989, the power - (a) of appointment; (b) to exercise disciplinary control over local government officers; (c) to remove from office or approve the retirement of local government officers; (d) to select candidates from among local government officers for the award of scholarships or other similar privileges, shall vest exclusively in the Commission. (2) Subject to subsection (3), the Commission shall not, in the exercise of its functions, be subject to the direction or control of any other person or authority. (3) Nothing in this Act shall preclude the Supreme Court from exercising jurisdiction in relation to any question whether the Commission has performed its functions in accordance with any law in force or should not perform any function. (4) The Commission may, subject to such conditions as may be prescribed, delegate any of its powers under subsection (1) to the Chief of any municipal council. Amended by [Act No. 41 of 1992]; [Proclamation No. 17 of 1992]; [Act No. 32 of 2003]

Labour Law Conference 2019 (19-21 June 2019) Section 30 of the Local Government Service Regulations 1984 provides that:

“30. Obligation to conform with regulations. The Commission shall not exercise its powers with the dismissal, the disciplinary punishment or the termination of appointment otherwise than by way of dismissal of any officer in the local government service except in accordance with the provisions of these regulations or such other regulations as may be made from time to time by the Commission under the Act’’

• Case Study: Somrajsingh Bhunnoo and 8 Others v the PSSA 2002 SCJ 186

Labour Law Conference 2019 (19-21 June 2019) Private Law and Inspired French Civil Law

• D.Shamboo v The Mahatma Gandhi Institute 2006 SCJ 86/MR 133

• Prosecuted before the Moka District Court in 1992 on a charge of ‘accepting bribe’’ in breach of section 126 of the Criminal Code and was dismissed

• He appealed claiming damages for the prejudice suffered as a result of the wrongful acts and doings of the defendant which constitute a ‘faute’, and/or imprudence and an abus de droit

Labour Law Conference 2019 (19-21 June 2019) • Regulations apply only to public officers and would not find their application in the present case which is governed by the Labour Act 1975 (now repealed) and the procedure and mechanism for dismissal set out under section 32 of that Act

• Since the action has not been brought under the provisions of the Labour Act, the Supreme Court should not therefore be concerned with the application of section 32 of the Act

• What we need to retain for the purpose of the present case is that the plaintiff has an option to bring an action either under the Civil Code for breach of or or under the Labour Act 1975 (repealed) or under the Employment Rights Act 2008

Labour Law Conference 2019 (19-21 June 2019) • An applicant must reveal all his/her grievances why he/she has not been promoted in a full and frank disclosure, that he/she has an arguable case, locus standi and that the application has been made promptly after all available remedies (if any) has been exhausted so that applicant must have a fair treatment and that the Supreme Court will quash the decision reached by that public statutory body by way of an order of

• Juwaheer Thanika Devi v Jogoo V. 2017 SCJ 71

Labour Law Conference 2019 (19-21 June 2019) UK Order 53 and Judicial Review: A Procedure Which is Not Based on the Merits of the Case

• A Court of law is concerned only with reviewing, not the merits of the decision reached, but of the decision-making process of the authority concerned

• The role of a Court of law is not to substitute itself for the opinion of the authorities concerned

• However, it will intervene when the body concerned had acted its powers; reached a decision which is manifestly unreasonable; had acted in an unfairly manner and the applicant was not given a fair treatment

Labour Law Conference 2019 (19-21 June 2019) • Unless, an applicant has exhausted any available remedy first (before the PBAT for example), he may proceed by way of judicial review

• A body may be a public statutory body but there is no public element in it or it may be a public statutory body but the legal issue is one of contract of employment and the application for leave for judicial review would be refused at his filtering stage

• Case Study: Nurkoo v The Public Service Commission 1998 SCJ 280

Labour Law Conference 2019 (19-21 June 2019) • Judicial review is a procedure borrowed from England, UK Order 53 and it deals with public rights against a decision reached by a public statutory body and that there is a public law element in it

• Therefore it does not deal with private at all ,with the merits of the case but on the decision-making process(es) such that the grounds for an application for leave for judicial review is based upon unreasonableness, that the decision reached was ultra vires or against the rules of natural justice

Labour Law Conference 2019 (19-21 June 2019) • Judicial review is therefore not an appeal based on the merits of the case as opposed to an appeal which is made within 21 days

• An application for leave for judicial review is made within 3 months and when the decision reached by that public statutory body arose, leave of the Supreme Court must be obtained first and it is an exparte application can be effected

• The Supreme Court has huge discretionary power to grant or refuse leave but if leave is granted then the applicant may proceed to the second stage and the procedure is made by way of motion plus affidavit just like the first or leave stage but this time all relevant papers are served on the respondent and the co-respondent within 14 days

Labour Law Conference 2019 (19-21 June 2019) • An application for leave for judicial review is not as easy as it pretends because it is very procedural in nature and prescribed processes and procedures must be respected

• Nevertheless the aggrieved party has an arguable case before the Supreme Court as, otherwise, leave will be refused at the first or leave stage in order to filter frivolous cases and cases without any merit for an application for leave for judicial review

• Irrespective if it is a civil or criminal case on appeal the Supreme Court would decide on the merits of the case provided the appeal was made within 21 days

Labour Law Conference 2019 (19-21 June 2019) Conclusion

• There are circumstances where a person is aggrieved by a decision reached by a public statutory body which is unfair, illegal, in breach of natural justice and is so unreasonable that the Supreme Court must intervene to ensure that individuals are given a fair treatment

• However, the scope of judicial review is that in no way would a judge of the Supreme Court substitute himself to the administrative body and/or public statutory body because the Supreme Court as an application for judicial review would not look into the merits of the case

Labour Law Conference 2019 (19-21 June 2019) Labour Law Conference 2019 (19-21 June 2019)