[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. "