It has taken more that 5 years for employees of C-Care (Mauritius) Ltd to reach the end of a hard fought legal battle.
The Appellant is the owner of Welkin Hospital. The five Co–Respondents are former employees of the Welkin Hospital.
On 26 September 2017, Welkin Hospital informed the 5 employees that they were being made redundant for economic and structural reasons. The employees registered a complaint with the Ministry of Labour.
The facts also reveal that the Permanent Secretary of the Ministry of Labour took about 9 months to refer the matter to the Employment Promotion and Protection Division of the Employment Relations Tribunal.
As far back as 2018 The ERT found that the reduction of the workforce by Welkin Hospital was unjustified, and Welkin Hospital was ordered to pay each of them severance allowance.
In December 2018, Welkin Hospital lodged an application before the Supreme Court for leave to apply for a judicial review of the award. Welkin Hospital claimed that the award and decision–making process of the Tribunal was ultra vires and wrong in law, unreasonable, and irrational. The ERT and former employees objected to leave being granted on the grounds that Welkin Hospital had failed to act promptly in lodging the application, and that the application did not disclose an arguable case.
The Supreme Court refused leave on the sole ground that the application had not been entered promptly. Welkin appealed as of right to the Judicial Committee of the Privy Council.
On the 13th of December 2022, the matter was heard at the Privy Council by Lord Briggs, Lord Sales, Lord Hamblen, Lord Leggatt and Lord Richards. The Judgment was delivered on the 29th of December 2022.
The salient parts of that Judgment are as follows;
Mr Maxime Sauzier SC, for the appellant, took the Board to a number of authorities which might be taken to suggest that the bringing of a judicial review claim within a period of about six weeks could be regarded as prompt. The Board found these authorities of little assistance. Whether a claim is brought promptly or not depends on the particular circumstances of the specific case. What might be regarded as prompt in certain circumstances does not mean that it will satisfy the requirement of promptness in other circumstances. It is not possible to lay down a bright line time limit applicable across all cases. The drafting of the relevant rule prevents this.
- The burden to show that a claim has been brought promptly rests on the claimant, since it is the claimant who asserts that it should have leave to bring its claim and the relevant information pertaining to the question whether it has acted promptly will be in its knowledge. This does not mean that the claimant has to adduce evidence about this in every case. It is entitled to wait to see if the defendant raises promptness as an issue. But the claimant has to be prepared to demonstrate that it has brought its claim promptly if it is challenged on that score. If the defendant objects that the claim has not been brought promptly, as the respondent and co-respondents did in this case, the onus will be on the claimant to explain what it has done and that it has acted with the appropriate promptness to be expected in the circumstances.
- In addition, the Board observes that in the circumstances in which the award was produced quickly after the conclusion of the hearing before the Tribunal, the parties and their legal representatives were clearly well aware of the legal issues arising in relation to it. This means that the appellant should have had no difficulty in obtaining legal advice and considering it in order to decide whether to bring a judicial review claim. There is no obvious reason why that should have taken as long as six weeks.
- In particular, the Supreme Court was right to rely upon the failure on the part of the claimant to explain by evidence, or at all, what it had done to consider its position in relation to bringing a claim and how it could be said that it had acted promptly in the circumstances, in order to show that it satisfied the promptness requirement. The respondent and co-respondents had distinctly raised the question of lack of promptness as an issue and it was incumbent on the claimant to satisfy the court that it had acted promptly to bring its claim. This the claimant signally failed to do, relying only on the submission that it had acted within the long-stop period of three months as set out in the rule.
Maxime Sauzier SC
Shrivan Dabee (Instructed by ENSafrica (Mauritius))
for Respondent (Employment Relations Tribunal)
Aidan Casey KC
(Instructed by RWK Goodman LLP (London))
for Co-respondent ((1) Simla Douraka, (3) Kabita Jang, (4) Salah Mohamed Muhawish Al-Janabi, (5) Raja Veerabadren)
(Instructed by Dentons LLP (Mauritius))
for Co-respondent (2) (Lavishka Makoondlall)
Arvind Hemant Sookhoo Varoon Saccaram (Instructed by Etude Ghose (Mauritius))