Geffroy v Minister of Employment and Social Affairs & Anor (MC 33 of 2024) [2024] SCSC 169 (27 September 2024)

contents of #navigation-content will be placed in [data-offcanvas-body] for tablet/mobile screensize and #navigation-column for desktop screensize. Skip to document content Summary Table of contents Search [] SUPREME COURT OF SEYCHELLES Reportable MC 33/2024 In the matter between MARCIA JULIE GEFFROY Petitioner (rep. by Mr Basil Hoareau) and MINISTER OF EMPLOYMENT AND SOCIAL AFFAIRS 1st Respondent (Unrepresented ) MARIE CLAUDETTE BAMBOCHE 2nd Respondent (Unrepresented ) Neutral Citation: Geffroy v Minister of Employment and Social Affairs and Or (MC33/2024) (27 September 2024) Before: Judge Esparon Summary: Application seeking for leave of the Court to apply for Judicial Review Heard: 26th July 2024 Delivered: 27th September 2024 ORDER Application seeking for leave to Apply for Judicial Review in accordance with Rule 5 and Rule 6 of the Supreme Court (Supervisory Jurisdiction over Subordinate Courts, Tribunals and Adjudicating Authorities) Rules,1995. Leave is granted for the Petitioner to apply for Judicial Review and to proceed to the merits of the case. RULING Introduction This is an Application for leave to apply for Judicial Review against the decision of the Minister of Employment and Social affairs dated the 20th March 2023 which confirmed the decision of the competent officer allowing the registration of the grievance which was out of time. The second Respondent has been cited as a party directly affected by the Petition. The pleadings This Petition contains an additional prayer asking for leave of the Court to apply for Judicial Review is supported by an Affidavit of the petitioner Marcia Julie Geffroy who avers the following inter alia in her Petition; ‘6) That the second Respondent originally initiated a grievance procedure in terms of the Employment Act on 5th May 2021, on the basis that her contract of employment had been illegally terminated (hereinafter the First Grievance Procedure) 7) The first grievance procedure was initiated against knickers, as the Respondent. 8) Subsequently, since mediation in respect of the First Grievance Procedure was unsuccessful, the 2nd Respondent, on the 31st August 2021, instituted an application before the employment Tribunal against knickers Right, as the Respondent (herein after “The Application”). 9) The Employment Tribunal, after having heard the Application, delivered Judgment in favour of the 2nd Respondent. 10) Knickers Right appealed to the Supreme Court against the decision of the Employment Tribunal relating the Application (hereinafter ‘the appeal’) 12) The Supreme Court, presided by Adeline J, delivered its Judgment, in respect of the Appeal on the 23rrd February 2023, whereby the Appeal was allowed, and the decision of the Employment Tribunal was quashed, on the basis that knickers Right was not a legal entity, and the first Grievance procedure and the Application, had been instituted against a non- existent person. It is now shown to me, produced and exhibited thereto as MF2, a copy of the Judgment of the Supreme Court. 14) On the 6 June 2023, the 2nd Respondent submitted a fresh grievance procedure form against the petitioner to the competent officer, in respect of the same act, event and matter, which formed the basis of the First Grievance Procedure, and of the Application before the Employment Tribunal 16) In response to the letter from the competent officer P. Lucas, Attorney Basil Hoareau, by letter dated 7th July 2023, informed the competent officer that the Petitioner was objecting to the registration procedure outside of time. 18) On the 29th November 2023, competent officer P. Lucas took the decision to allow the initiation and registration of the second Grievance Procedure outside of time. 20) The Petitioner on the 19th December 2023, lodge her Appeal against the decision of the competent officer, to the 1st Respondent. 21) The Appeal was heard by the Employment Advisory Board and not by the 1st Respondent. 23) On the 20th March 2024, the 1st Respondent determined the Appeal and confirmed the determination of the competent officer, on the basis that; “[M]arie- Claudette Bamboche’s representative claimed that the only judgment he had was that of the Employment Tribunal where she had won her case and that not being a lawyer he did not have the right to represent Mrs Bamboche at the Supreme Court and only obtained a copy of the judgment of the Supreme Court when it was given to Mrs Bamboche. So despite being aware of the Appeal, they could not initiate the grievance procedure again until then’’. (hereinafter the decision) 24) It is averred and contended that the decision of the 1st Respondent is illegal and /or ultra vires in that – 24.1) In the light of the provisions of part II of schedule 1 of the Employment Act, the 1st Respondent took into account irrelevant considerations, namely that- 24.1.1) the 2nd Respondent as representative, in respect of the Appeal before the 1st Respondent, only obtained a copy of the Judgment of the Supreme Court, when the Judgment was given to the 1st Respondent ;and/or 24.1.2) that the 2nd Respondent could not have initiated the second Grievance Procedure, without having obtained a copy of the Judgment of the Supreme Court. 24.2) In the light of the provisions Part II Schedule 1 of the Employment Act, the 1st Respondent failed to take into account relevant considerations namely; 24.2.1) the failure by the 2nd Respondent to initiate and register the grievance procedure within 14 days of becoming aware of the event, act or matter- which occurred on 5th May 2021- giving rise to the grievance, against the Petitioner is a failure which is attributable to the fault of the 2nd Respondent; 24.2.2) the event, act or matter in respect of which the 2nd Respondent had initiated and registered the Second Grievance Procedure against the Petitioner, occurred in May 2021 and the grievance form against the Petitioner was submitted only on 6th June 2023, more than two years from occurrence of the act, event, and / or matter in question; 24.2.3) the reason advanced by the 2nd Petitioner to explain and justify, her failure to initiate and register the grievance procedure against the petitioner within the 14 day time period, or the exorbitant delay in initiating the grievance procedure, is without merit and the competent officer could not have been reasonably satisfied that the failure to initiate and register the Second Grievance Procedure within the 14 day time period, or the exorbitant delay prior to initiating the Second Grievance Procedure, was not attributable to the fault of the 1st Respondent; 24.2.7) the 2nd Respondent was the one who wrongly instituted proceedings in the First Grievance Procedure against the wrong party instead of against the Petitioner; and /or 24.2.8) the Judgment of the Supreme Court was delivered on the 23rd February, at the time of the delivering of the judgment, both the 2nd Respondent and her Attorney- at Law, were present in Court; and/or 24.3) the appeal to the 1st Respondent, ought to have been heard by the 1st Respondent, and not by the Employment Advisory Board. 25.1) Further or in the alternative to paragraph 24 of the Petition, the Petitioner avers and contends that the 1st Respondent reached her decision in breach of the principle of Natural Justice, and by committing a procedural impropriety, in that the Appeal lodge by the Petitioner to the 1st Respondent, was heard by the Employment Advisory Board, and not by the 1st Respondent. 26.1) Further or in the alternative to paragraph 25 and /or 26 of the Petition, the Petitioner avers and contends that the finding and decision of the 1st Respondent is irrational and /or so unreasonable and that no reasonable tribunal or authority would have come to such a finding and decision, in that- there was no evidence or facts laid before the Respondent upon which the 1st Respondent could have come to the finding and decision; and /or (ii) The 1st Respondent took irrelevant matters into consideration and /or failed to take into consideration relevant matters in coming to the findings and decision, and in that respect Paragraphs 24.1 and 24.2 of the Petition are respectively repeated’. The Law Rule 5 of the Supreme Court (Supervisory Jurisdiction over subordinate Courts, Tribunals and adjudicating Authorities) Rules provides that ‘every petition made under Rule 2 shall be registered and shall be listed ex-parte for granting of leave to proceed’. Rule 6(1) of the same Rules provides that ‘the Supreme Court shall not grant the petitioner leave to proceed unless the Court is satisfied that the petitioner has a sufficient interest in the subject matter of the petition and that the petition is made in good faith’. Analysis and determination This court shall seek guidance from case law in order to interpret Rule 6(1) of the Supreme Court (Supervisory Jurisdiction Over Subordinate Courts, Tribunals and Adjudicating Authorities) Rules. The Case of Airtel (Seychelles) LTD V/S Review Panel of National Tender Board and Anor SCA 70/2018 laid down the test for which the Court would grant leave to an Applicant in an application for leave to apply for Judicial Review. In this case the Court of Appeal referred to Rule 6 of the Rules of Supreme Court (Supervisory Jurisdiction over Subordinate Courts, Tribunals and Adjudicating Bodies) Rules 1995 which provides that ‘The Supreme Court shall not grant the Petitioner leave to proceed unless it is satisfied that the Petitioner has sufficient interest in the subject matter of the Petition and that the Petition is being made in good faith’. The Court held in the above mentioned case that once an Applicant shows that he has sufficient interest, the Application passes the 1st test. The second test is that the Application should be made in good faith. The Applicant should show by the materials he attached thereto that the case he makes on the material produced is a genuine case as opposed to a frivolous one. The purpose of seeking leave is not to deny litigants access to the Courts (something that should not be done lightly) but to weed out vexatious and wholly unmeritorious litigation by busy bodies, what the Romans called meddlesome interlopers. Their Lordships in the above matter went further and said ‘It is settled law that cases that are hopeless and bound to fail, or totally devoid of merit must not be allowed to proceed further. To do so would be to squander judicial time wisely. This Court opines that in any case where an Application for leave is sought the Court must be careful that it does not unduly impede or frustrate the right to access the Court and have the real dispute determined by being too quick to deny a litigant the right to be heard on the merits, unless in situations where the Application is plainly useless and waste of the Courts time. Put it differently, it seems to us that in all situations where leave is an issue the best approach is to adopt a liberal and generous approach that facilitates a matter proceeding on the merits than the contrary’. In the Case of Airtel ( Seychelles) LTD V Review Panel of the National Tender board and Anor SCA 70/ 2018, whereby the Court followed the decision in the case R V/S Inland Revenue Commissioners ex-parte National Federation of the Self-Employed and small Businesses LTD (1982) AC 617, where the Court held that ‘If on a quick perusal of the material then available, the Court (that is the Judge who first considers the Application for leave) thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting the applicant the relief claimed, it ought to in the exercise of a discretion, to give him leave to apply for the relief.’ As regards to the first test namely as to whether the Petitioner has sufficient interest in the subject matter of the Petition, this Court finds that the petitioner is directly affected by the decision of the 1st Respondent since the Petitioner being the Employer of the 2nd Respondent and that the 1st Respondent has allowed the Appeal by confirming the decision of the competent officer allowing the Registration of the grievance of the 2nd Respondent being the employee out of time. As a result, I find that the Petitioner has sufficient interest in the subject matter of the Petition. As regards to the second test as laid down in the case of Airtel (Seychelles) LTD (supra), this Court has to determine as to whether the petition is being made in good faith. To put it in a nutshell, this Court has to satisfy itself that the Petitioner has established that it has an arguable case such as it should be allowed to proceed to the merit stage. In the case of Andre Leslie Benoiton and Ors V Sarah Zarquani Rene and Ors, MA 284 2019 (2020), SCSC 264 (24th April 2020), which was a case whereby the Applicant was seeking for an order of inhibition against a property, Carolus J. stated the following at paragraphs 68 to 70; ‘As what is meant by an arguable case, as stated above, the applicant should have a sustainable claim over the suit property. The difference between prima facie standard of proof (applicable to injunctions) and an arguable case applicable to inhibitions was also illustrated in the Fidelity Commercial Bank case (supra) in which the court stated; “A prima facie case in a civil application includes but is not confined to a genuine and arguable case. It is a case which on the material presented to the Court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal”. From the above description, it is evident that a prima facie case means more than an arguable case. The Applicant must show that his/her right has been infringed. Further in Japhet Kaimenyi M’ndatho case (supra) the Court after reviewing the facts of the case made it clear that the chances of success of the applicant in the head suit is not a determining factor of whether an applicant has an arguable case or not. It stated: The Applicant has therefore established that he has an arguable case, whether he would succeed or not is not material at this Stage, and as such orders of inhibition ought to be granted. Having said that, it is also worth reiterating that while ‘arguable case’ is a lower standard than a ‘prima facie case’, the applicant must have good grounds to be granted an inhibition order’. The above case law illustrates that an arguable case is of a lower standard of proof than that of a prima facie case and hence this Court has to take this into consideration when deciding on an application seeking for leave to apply for Judicial Review since the Petitioner in the present matter has to show that he has an arguable case. In the present matter, the grounds of which the Applicant is relying upon for granting leave is Illegality, procedural impropriety being a breach of natural justice and according to the Petitioner the decision of the 1st respondent is irrational and /or so unreasonable that no reasonable tribunal or authority would have come to such a finding and decision. The facts of the case is that the matter was not heard by the Minister being the decision maker but was heard by the Employment Advisory Board according to the Petitioner. Secondly the Appellant had filed a grievance procedure before that against the wrong party and after the Appeal from the Employment Tribunal was upheld by the Supreme Court for the afore-mentioned reason, the appellant filed a grievance procedure against the Petitioner being a new party. The competent officer allowed the 2nd Respondent to register his grievance out of time although the delay in filing the grievance was due to the latches of the 2nd Respondent or his counsel. Thereafter the Minister being the 1st Respondent allowed the Appeal confirming the decision of the competent officer allowing the registration of the Grievance Procedure out of time. In the present matter, this Court shall apply the principles as laid down in the case of Airtel (Seychelles) LTD V Review Panel of the National Tender board and Anor SCA 70/ 2018, where the Court followed the decision in the case R V/S Inland Revenue Commissioners ex-parte National Federation of the Self-Employed and small Businesses LTD (1982) AC 61. Without going into the merits of the Petition seeking the order sought for Judicial Review, I accordingly hold that on a quick perusal of the materials available before this Court namely the Petition, the Affidavit attached in support of the Petition and the documents attached produced as exhibit, this Court finds that on the materials placed before it by the Petitioner, that it discloses what might on further consideration turn out to be an arguable case in favour of granting the Petitioner the relief claimed. This Court would hence exercise its discretion in granting leave to the Applicant to apply for Judicial Review in order to proceed on the merits. Hence this Court makes the following orders; I hereby grant leave to the Petitioner to apply for Judicial Review and hence to proceed on the merits. I Order that the Minister of Employment and Social Affairs forward to this Court all records of the proceedings concerning the Petitioner in respect to the above-matter and hence the entire file concerning the decision of the Minister of Employment and Social Affairs and the record of proceedings thereof in relation to the said matter including the same that took place before the Employment Advisory Board. I hereby Order the Registrar of the Supreme Court to serve a copy of this order on the following persons; The Minister of Employment and Social Affairs The Attorney General Signed, dated and delivered at Ile du Port on the 27th September 2024. Esparon J