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[2] It is agreed by both parties that the ruling of the Employment Tribunal reached the
parties around the 26th November, 2019, which was outside the 14 days appeal period
[1] The Applicant is the judgment debtor in employment case ET24/29 which ruling was
delivered by the Employment Tribunal on 5th November 2019. The sum to be paid by
the Applicant was to be calculated by the Ministry of Employment which calculated
the total judgment debt to be US$12,667.75.
DODIN J
RULING
ORDERThe Applicant has very little chance of success on appeal and therefore fails the second limb
of the assessment as to whether the appeal should be allowed out of time. The application for
leave to file the appeal out oftime is denied. The application is therefore dismissed with costs
to the Respondent.
Application for leave to file appeal out of time.20 February 202027 March 2020
Summary:Heard:Delivered:
Neutral Citation: JA Resorts & Hotels LLC v Demergi (MC 110/2019) [2020] SCSC:4-.~7March 2020).
Before: Dodin J
RespondentABEL DAMERGI(rep. by Kelly Louise)
versus
ApplicantJA RESORTS & HOTELS LLC(rep. by Olivier Chang Leng)
Reportable[2020] sese ace»MCII0/2019
SUPREME COURT OF SEYCHELLES
[4] Learned counsel for the Respondent submitted that termination or resignation of the
Respondent was never a contentious matter before the Employment Tribunal. The
issue of paid leave was considered in dept by the Tribunal which concluded that the
3. The Tribunal erred when it carne to the determination that the
Respondent is due public holidavs when this issue was never
canvassed ({I the trial or the matter. nor wos it raised by the
Respondent during the same. Accordingly, the Appellant was
not afforded the chance to address this claim, nor did the
Ministry ofLabour, tmmigration and Civil Status approach the
Respondent to identify how 1/10nypublic holidays, if any the
Respondent is owed unci that the computation was made
arbitrarily.
2. The Tribunal erred at paragraph 9 of its judgment when it
considered that there I,vas no reason 10 doubt the Applicant's
testimony that he was asked to resign when there was several
items of documentary evidence that come (Jut at the trial to
indicate that he voluntarily resigned upon agreement between
the parties.
1. The Tribunal erred when it caine to the conclusion at
paragraph I J that the Respondent WetS not on annual leave/or
the period spanning; 61" August 2018 until 301" November 2018
and that he hod no choice hilt to resign when there was clear
evidence to the contrary.
[3] The three grounds Ior appeal me that:
provided by the Employment !\cl. The Respondent does not therefore take issue and
reasonably so, with the application lor leave 011 account of' the late delivery of the
ruling of the Employment Tribunal. However, the Respondent objects to the
application on account of the grounds of appeal are vexatious and do not disclose an
arguable case for appeal.
[9] On the first and second grounds of appeal the Employment Tribunal was very clear as
to the scope or its determination at paragraph 3 or the Ruling:
[8] I have studied the grounds of appeal as reproduced above and I have perused the
Ruling of the Employment Tribunal as there are contrasting assertions as to whether
the Tribunal gave due consideration to the issues raised. However without the
complete records of proceedings, [ cannot determine with certainty what the parties
actually stated before the Tribunal. However [ agree with learned counsel for the
Respondent that on ground 3 that public holidays are prescribed by law and
employment officers ean take judicial notice without the need for the parties to canvas
the number of public holidays for the specific period.
[7] Since both Applicant and Respondent are in agreement that the ruling and
computation were served after the appeal period had elapsed, there is no reason why
this Court should not grant the Applicant leave to Jill' the appeal out of time on that
account. However, as per the decision of the Court o/Appeui in YVO/1 Dubel & anor v
Yvette Juliette & Anor Case NO 1 oj' 2005, there is the second requirement that the
Applicant must "show that 011 the appeal (hey have an arguable case and the
prospects ofsuccess are good on balance ofprobabilit ies"
[6] Learned counsel for the Applicant submitted that the right to appeal is a right
enshrined in law and in any event, at this stage this Court should not be considering
the merits of the appeal but whether it should be tiled out of time.
[5] Learned counsel submitted that the appeal only serves to deny the Respondent the
fruits of his judgment and moved the Court to lind that the grounds of appeal do not
disclose any arguable case, are vexatious and have Iittle chance of success on appeal.
Respondent was entitled to paid leave. As to the number of days for public holidays
due, learned counsel submitted that it was clear in the evidence that the Respondent
had not been able to take any public holidays due to the nature if his work. Since
public holidays are prescribed by law and fallon specific days of the year there is no
reason why the parties need to be allowed to canvas how many public holidays fall
within the specific period of the year in question.
Dodin J
Signed, dated and delivered at lie du Port on 27 March 2020.
[12] On that latter ground alone, the application for leave to file the appeal out of time is
denied. The application is therefore dismissed with costs to the Respondent.
[11] Hence on balance of probabilities, r am of the opinion that the Applicant has very
little chance of success on appeal and therefore fails the second limb of the
assessment as to whether the appeal should be allowed out of time.
[10] I also find that in paragraphs 9 and II 01 the Ruling, the Tribunal merely made
observations as to how and when the employment of the Respondent came to an end
but made no determination on the same consistent with its pronouncement in
paragraph 3 [supra].
"The Tribunal would like first to point out that the issue on unfair dismissal
will not be considered by the Tribunal as it is not a ground on which this
grievance was lodged. lis such it is outside the remit 0(' this application. The
only issue to he considered is whether the Applicant is owed annual leave and
public holidays upon the end ofhis contract ofemployment. "
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