AIR MAURITIUS LTD v.

D’ARGENT CYRILLA

2017 SCJ 161

Record No.: 103455

IN THE SUPREME COURT OF MAURITIUS

In the matter of:-

Air Mauritius Ltd

Plaintiff

v.

Cyrilla D’Argent

Defendant

JUDGMENT

The plaintiff is the national airline company of Mauritius and the defendant was
previously in its employment. This is a claim by way of plaint with summons against the
defendant for Rs. 289,569.78 and € 12,279 which represent the respective sums averred to be
due under (a) a training bond for Rs. 400,000 signed on 31 May 2007; and (b) a contract of
employment signed on 31 May 2007 and 01 June 2007, arising from the defendant’s alleged
failure to give notice to the plaintiff of the termination of her employment with it.

The plaintiff relies on the following agreements to support its claim:

(a) an agreement signed on 04 and 08 August 1994 whereby the defendant was employed
as a trainee ATR 42 First Officer (Doc A1 refers) with a training bond of Rs 1.5 million
dated 12 May 1993 (Doc A2 refers);
(b) an agreement signed on 22 December 1997 and 02 March 1998 whereby the defendant
was employed as a trainee B767 First Officer (Doc A3 refers);
(c) an agreement signed on 27 January 2003 and 14 May 2003 whereby the defendant was
employed as a trainee A319 First Officer , with a training bond of Rs 800,000 signed on
09 January 2003 and 22 January 2003 (Doc A5 refers); and
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(d) an agreement signed on 31 May 2007 and 01 June 2007 whereby the defendant was
employed as trainee A340 First Officer (Doc A6 refers), with a training bond of Rs
400,000 signed on 31 May 2007 and 01 June 2007 (Doc A7 refers).

It is the plaintiff’s case that pursuant to the defendant’s contractual obligations under the
last contract of employment, the defendant agreed to undergo an A340 full conversion course
so as to operate as A340 First Officer; that clause 18 of the contract of employment provided for
a minimum of 3 months’ notice , should either party thereto terminate the contract; that pursuant
to the contractual obligations under the training bond , the defendant had agreed to undergo the
said A340 full conversion course and upon completion of the said course, to continue to serve
the plaintiff if so required by it; that the training bond provided that in the event of the defendant
voluntarily resigning from the service of the plaintiff, she shall be bound to pay to the plaintiff the
sum of Rs 400,000;on 01 October 2007, the defendant wrote to the plaintiff requesting to be
granted 6 months’ leave without pay for personal reasons as from 26 December 2007; the
plaintiff approved the request of the defendant on 12 October 2007 with the condition that the
defendant must resume her normal duties on 25 June 2008.

The plaintiff avers that after the defendant voluntarily resigned from the services of the
plaintiff, the latter amicably requested her to effect the payment of the sums due to the plaintiff
but she has failed and neglected to do so. The plaintiff is now praying for a judgment ordering
the defendant to reimburse the sums of Rs 289, 569.78 and € 12,279 converted at the
exchange rate of 03 August 2009 or such other amount in rupees which may amount to €
12,279, upon conversion at the prevailing exchange rate on the date of judgment, with costs
and interests.

In its plea, the defendant denies being indebted as claimed or at all and avers that her
resignation was in line with the advice she had received from the Executive Vice President
Human Resources of the plaintiff company. It is the defendant’s case that clause 18 of the
contract of employment relating to the notice of termination of employment was not applicable
as the same had been waived on its behalf by the plaintiff’s Executive Vice President, Human
Resources on 21 September 2007.

At the hearing, the plaintiff was represented by Mr Jean Bernard Sadien, Human
Resources Manager. Pursuant to article 1341 of the Civil Code, objection was taken on behalf
of the plaintiff to oral evidence being adduced by the defendant to prove that the three months’
notice requirement, under clause 18 of the contract of employment, has been waived following a
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meeting between the defendant and the Executive Vice President, Human Resources of the
plaintiff on 21 September 2007.

The objection was subsequently set aside and the defendant was allowed to adduce oral
evidence (vide Air Mauritius Ltd v. Cyrille D’Argent [2015 SCJ 125]).

Evidence was adduced on behalf of the plaintiff that the defendant gave notice on 08
May 2008 of her resignation with effect from 25 June 2008, in breach of Clause 18 of her
contract of employment which provided for three months’ notice in writing (Doc P11 refers). The
plaintiff subsequently requested the defendant to pay the amount of Rs 289, 576.78 and 12, 279
Euros which represent the balance due under the training bond and damages in lieu of the three
months’ notice respectively (Doc P12 refers) as detailed in the particulars provided to the
defendant (Doc P14 refers).

It is apposite to note that most of the facts of the present case, are not disputed including
the figures of the amounts claimed.

The main issue in dispute relates to the alleged breach of clause 18 of the contract of
employment of the defendant which requires a minimum of three months’ notice of termination,
should either the plaintiff or the defendant decide to terminate the agreement. The basis of the
three months’ notice to the plaintiff in the event of the defendant’s wished to terminate, was to
enable the plaintiff to reorganise its work and ensure that the organisation did not suffer from the
departure of a trusted employee.

At the hearing, it was confirmed that the plaintiff was aware that the defendant intended
to resign since August 2007 and in this regard, she approached the Vice President, Human
Resources of the plaintiff company, and informed him that she would be resigning because she
intended to relocate to Australia for personal reasons, and he subsequently suggested to the
defendant that instead of resigning immediately, she should take six months leave. The plaintiff
company was also aware of the fact that the defendant had to look for alternative employment
inasmuch as the plaintiff provided two letters of reference to the defendant dated 14 December
2007 (Doc P15 refers) and 28 December 2007 (Doc P16 refers) respectively. The defendant’s
case is that she was specifically told by him that the notice period would not apply to her as she
would be on leave without pay outside Mauritius. (Doc P13 refers).

With reference to the provisions of the training bond (the bond) (Doc P7 refers) the
plaintiff company agreed to send the defendant on leave for a full A340 conversion course, that
 4

is, Cross Crew Qualification at the expense of the plaintiff and in return the plaintiff could require
the defendant to serve the company for a minimum period of four consecutive years. Pursuant
to the bond, the expenses incurred by the plaintiff company in relation to the defendant’s course
amounted to Rs 400,000. However, the plaintiff company did not require the defendant to serve
for four years. The bond further stipulates that the defendant undertakes to serve the plaintiff
company for such period of time as defined in the contract of employment, (Doc P6 refers) and
the contract of employment is, it is not disputed, a contrat à durée indeterminée.

The defendant was not required to undertake the full conversion course as she was
already familiar with Airbus and only had to take the Cross Crew Qualification Course which
cost Rs 400,000. The full conversion course, which cost Rs 800,000, was applicable to
employees who used to fly in Boeing and had to train to fly on the Airbus.

The defendant’s case is that paragraph 4 of the training bond (Doc P7 refers) is invalid
inasmuch as it does not make mention of either the duration of the training period or the actual
cost of the course and only provides for the sum of Rs 400,000 as being the amount of
expenses incurred by the plaintiff company.

The defendant’s evidence shows that that following the advice given to her by the
Executive Vice President of the plaintiff company in August 2007, she accepted to take a leave
without pay of a period of 6 months instead of resigning as she intended to do. According to the
defendant the plaintiff’s representative made it clear to her that since she would already be
overseas on unpaid leave for her migration, the notice period stipulated at Clause 18 of the
contract of employment will not be applicable to her.

The main submission made on behalf of the defendant is that the provisions of clause 18
of the contract of employment (Doc P6) had been waived. Learned Counsel for the defendant
referred to the doctrine of “la bonne foi” of the contracting parties to submit that the obligations
under the contract of employment should be executed “[…] selon les exigences de la bonne foi”
as stipulated under article 16 of our Civil Code. In addition, Article 1134 further provides that
«les conventions légalement formées tiennent lieu de loi à ceux qui les ont faites ……… elle
doivent être exécutées de bonne foi».

The following extract reproduced from Dalloz Repertoire de Droit Civil, Philippe le
Tourneau, Vo. Bonne Foi, note 95 shows that French jurisprudence has recognised that a
 5

contracting party must not act in a way that “[…] violerait la confiance legitime de son
partenaire”.

The extract reads as follows:

“95. Depuis quelques années le concept de confiance légitime, inspiré de

l’estoppel du droit anglais ………… a reçu un accueil favorable de la doctrine
française ………….. […] La cour de cassation eut même l’occasion de consacrer
sa réception par le droit français en visant expressément le terme «estopel» en
matière d’arbitrage. Or l’une des implications les plus usuelles de ce concept est
l’obligation faites aux créanciers d’adopter un comportement cohérant. Cela
signifie qu’il ne serait possible d’adopter un comportement versatile contraire à
son attitude antérieure. A defaut il violerait la confiance legitime de son
partenaire et serait ainsi susceptible d’engager sa responsabilité. Cette
interdiction de se contredire au détriment de son co-contractant est admise par le
Principes d’UNIDROIT………………….”

According to defendant’s counsel, the case for the defendant is based on the plaintiff’s
credibility mainly relating to the circumstances in which the defendant was informed by the
representatives of the plaintiff that the notice period stipulated in Doc P6 will not be applicable if
she avails herself of her leave without pay when she expressed her intention to resign.
Therefore, it is not merely a matter of words or oral evidence that was allowed in on the basis of
a “commencement de preuve par écrit” against the content of the contract. It is the conduct on
behalf of the plaintiff, including the provision of two letters of recommendations to the defendant,
for the purpose of any future employment, which unequivocally supports the contention of the
defendant that the plaintiff was aware of the fact that she will be terminating her employment in
the future and the waiving the requirement of the notice period, as maintained by her.

As regards the training bond, Doc P7, the plaintiff’s representative’s version is that the
agreement is a “contrat à durée indéterminé”. Paragraph 4 of the training bond provides that
“The trainee agrees to remain in service of MK during the period of the course & immediately
thereafter to continue to serve MK for a period as defined in the contract of employment”

However, the period during which the defendant had to stay has not been defined in the
training bond (vide paragraph 4 of the training bond). Instead paragraph 5 of the training bond
stipulates that if the trainee is voluntarily resigning or leaving the services of the plaintiff at any
 6

time during the period of the course or within the period as specified under paragraph 4, the
trainee will have to pay the sum of Rs 400,000 which reflect the expenses incurred for the said
course by the plaintiff.

Learned counsel for the defendant argued that even if it is found that the defendant was
required to serve for a minimum period of 4 years, although she voluntarily resigned from the
plaintiff company on 08 May 2008 she did not leave her employment without the permission of
the plaintiff. But that the duration of stay in employment in relation to the training bond was for a
period as defined in the contract of employment which latter was for an indeterminate duration.

It is the contention of the defendant that the plaintiff cannot, in good faith, seek to
enforce clause 18 of the contract of employment (Doc P6 refers) inasmuch as the defendant
informed the plaintiff in September 2007 of her intention to leave and was she specifically
informed on the plaintiff’s behalf that the notice period will not be applicable

Reference was further made to the following extract from Dalloz Repertoire de Droit
Civil, Sébastien Pimont, note 51 on clause pénale which reads as follows:

“51. Dédit – formation - ………….. Une telle clause est selon la cour de cassation «la
contrepartie d’un engagement pris par l’employeur d’assurer une formation entrainant des frais
réelles au delà des dépenses imposé par la loi de la convention collective» ……. Par
conséquent selon D. Mazeaud la clause «n’a pas la nature juridique d’une clause pénale», elle
est plutôt «la contrepartie alternative à l’engagement pris par l’employeur de lui assurer d’une
contrepartie de haut niveau» ……... Etant précisé que, pour être licite, «l’indemnité de dédit»
doit: 1o faire l’objet d’un accord séparé …….., 2o être «proportionnée aux frais de formation
engagés»; 3o ne pas avoir pour effet «de priver de salarié de la faculté de démissioner …..».”

Counsel for the defendant further relied on the French decision of the Cour de Cassation
delivered on 02 March 2005 where it was clearly stated that “L’engagement du salarié …….,
pour être valable et faire l’objet de convention particulière conclue avant le début de la formation
et qui précise la date, la nature, la durée de la formation et son coût réel pour l’employeur, ainsi
que le montant et les modalités à la charge du salarié;”.

In support of his submissions, Counsel for the defendant further claimed that in the
training bond (Doc P7 refers) there is there is reference only to the stipulation that the sum to
be reimbursed is Rs 400,000 as being part of the expenses incurred by the plaintiff. Moreover,
the training bond refers to the course of A340 full conversion course which the defendant did not
 7

have to fully carry out but merely undertake a top-up course based on her previous training in
spite of which the plaintiff’s representative’s testimony shows that the full conversion course
would cost Rs 800,000.

I note that apart from the provisions of the training bond which provides for the expenses
incurred by the plaintiff for the conversion course undertaken by the defendant during her
employment, there is no further evidence that has been adduced to support the contention of
the plaintiff that the amount of Rs 400,000 is indeed less than the full amount of Rs 800,000
stated as the cost for the defendant’s course. It is also to be noted that the plaintiff has admitted
that the amount of Rs 800,000 stated as the cost for the defendant’s course was a mistake, but
again no evidence has been adduced by the plaintiff to show that the actual amount for the
course paid as expenses by the plaintiff is a sum of Rs 400,000.

According to learned Counsel for the plaintiff, the sole factual issue for determination is
whether the parties entered into an agreement to vary clause 18 of the contract of employment
(Doc P6 refers) which provides that either party who wishes to terminate the agreement must
give a minimum notice in writing of three months to the other party. He made the following
submissions.

(1) The defendant claims that, as seen above, there was such an agreement during a
conversation on 21 September 2007 between the defendant and the plaintiff’s
executive Vice President. Following the meeting, a letter dated 01 October 2007
(Doc P9 refers) was sent by the defendant to the plaintiff’s executive Vice President
whereby she made a request to be granted leave without pay for a period of six
months and the letter does not indicate any agreement with regard to the possibility
of staying overseas, in which case, the three months’ notice period would have been
applicable.

(2) On 12 October 2007, the plaintiff replied to the letter (Doc P9 refers) setting out all
the conditions attached to the request for leave without pay, and one of the
conditions clearly stipulated that the defendant had to resume her normal duty on 25
June 2008. According to Counsel for the plaintiff, the defendant never drew the
attention of the plaintiff’s executive Vice President to the fact that there was any
other agreement that the notice period will be waived, and on 08 May 2008, she
submits her letter of resignation (Doc P11 refers).
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(3) The only evidence that indicates the presence of any agreement that the notice
period under the contract of employment (Doc P6 refers) will not be applicable is the
version of the defendant that there was a verbal agreement to that effect. However,
no reference to the said verbal agreement has been made in any of the subsequent
exchange of letters that occurred between the plaintiff and the defendant. It is only
when the defendant was requested through a mise en demeure to refund the said
amount of money that she made mention to the verbal agreement.

(4) With respect to the contracts, that both the training contract and the contract of
employment were signed on the same date waiving any possibility of negotiation of
their terms. According to the plaintiff, the defendant had conceded that when she
signed the training bond, it was understood that she would refund the A340 course of
by means of her employment with the plaintiff over a certain number of years. In
2007, the defendant signed the training bond on the understanding that she would
be working for the plaintiff for a period of at least 4 years in order to reimburse the
costs or part of the costs of the course. According to Counsel for the plaintiff the
contract of employment is evidence to show such requirement and the contract of
employment makes reference to the notice period which is subject to any existing or
future training bonds, but the training bond in itself does impose such a requirement
but refers to the duration of the contract, as stipulated in the contract, which is
undisputedly of indeterminate duration; the fact that the contracts have been duly
signed by both the plaintiff and the defendant is evidence that the defendant had
accepted the terms of her employment by the plaintiff.

It was further submitted that the clause relating to the period of notice for termination
being subject to any existing and/or future training bond is in relation to any crew member who
wishes to terminate his employment with the plaintiff. However, the training bond itself does not
provide for any such notice to be given. Only the contract of employment requires such notice.

It is therefore contended that since the defendant had signed the training bond which is
for a period of four years she was bound to comply with the requirement to give due notice to
the plaintiff prior to her resignation as stipulated in her contracts, (Doc P6 and P7 refer)
inasmuch as there is no other evidence of any agreement to waive the notice period, but the
word of the defendant.
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The submissions of learned Counsel for the plaintiff is based on the provisions of the
contract of employment and training bond which clearly spell out the amount which has to be
reimbursed if either party terminates the contracts and the number of years which the defendant
has to remain in employment with the plaintiff.

Value of the topping up course

According to the plaintiff’s representative the crew conversion course undertaken by the
defendant was less expensive than the full conversion course which is set out in the training
bond. It is not disputed that the defendant indeed followed a crew conversion course which cost
Rs 400,000 instead of the full amount of Rs 800,000 which is applicable to the full conversion
course.

But the issue here, as seen earlier, is whether the obligation of the defendant, under the
contract of employment to comply with the notice requirement has been waived.

On the basis of the principles reiterated in my earlier ruling on the admissibility of oral
evidence to prove such waiver, the act of the plaintiff of waiving clause 18 of the contract of
employment, following the defendant’s meeting with the plaintiff’s Executive Vice President of
Human Resources, does not amount to a waiver by conduct of a right which the defendant and
the plaintiff seek to rely upon, but a waiver of an obligation which has an impact on the contract
of employment. Accordingly, if the defendant’s version is accepted it would have the effect of
varying, not only the obligation of the defendant under the contract of employment, but also the
expressed intention of the contracting parties with respect to the obligation to provide three
months’ notice prior to termination. As pointed out by the plaintiff during its representative’s
testimony, the main reason for the requirement of the three months’ notice was to allow the
plaintiff to reorganise itself if one of its employees terminates his employment and to have a
replacement. As stated in my ruling, the oral evidence of the defendant is indeed “contre et
outre” the contents of the contract of employment, but admissible under one of the exceptions to
Article 1341 of the Code Civil Mauricien, namely the existence of a “commencement de
preuve par écrit”.

The facts of the present case clearly show that following the request of the defendant to
be granted 6 months leave without pay, as approved by the plaintiff, she received two reference
letters from the plaintiff, for the purposes of any future employment. The two reference letters
 10

provided by the plaintiff shows that the plaintiff already had notice that the defendant will be
terminating her contract of employment since some six months before.

I shall first deal with the oral evidence of the defendant to show that the three months’
notice as required under the clause 18 of the contract of employment was waived verbally. I
have taken note that the only evidence to that effect is the defendant’s evidence that during a
meeting held with the plaintiff’s representative on 21 September 2007, there was a verbal
agreement made whereby she was informed that the notice requirement under the contract of
employment will not be applicable.

It cannot be disputed that following the meeting in September 2007 and the exchange of
correspondences which occurred between the plaintiff and the defendant relating to her request
for leave without pay, until her resignation, there has been no mention of the verbal agreement
to waive the notice requirement. I further agree with the submissions of learned Counsel for the
plaintiff in respect of the fact that both the contract of employment and the training bond were
signed on the same day by the defendant and that she was agreeable to the terms of the
agreements including the requirement to provide three months’ notice if she decides to
terminate her employment.

On the other hand, as stipulated in clause 18 of the contract of employment, the

requirement to provide such notice is subject to any existing and/or future training bonds
entered into with the plaintiff. There is no mention of the requirement for the notice in the
training bond, clause 5 of which merely provides that if the defendant, as a trainee of the crew
conversion course is “[…] voluntarily resigning or leaving the service of MK without the
permission of MK or being dismissed by MK for misconduct” the defendant shall be liable to pay
the sum of Rs 400,000 being part of the expenses incurred by the plaintiff company in respect of
the said course.

Although the contract of employment is clear as to its requirement for the three months’
notice binding the plaintiff and the defendant in accordance with the provisions of Article 1134
of the Civil Code, the concept of la bonne foi dans l’exécution du contrat has to be considered
in the present case to evaluate the probative value of the oral evidence of the defendant with
respect to the verbal agreement to waive the provisions of clause 18.

As explained in the extract from Dalloz, Repertoire de Droit Civil, Vo. Bonne Foi par
Philippe le Tourneau at note 49, «la bonne foi» is important in the interpretation of contracts,
 11

namely “[…] Elle est utilisée pour déterminer l’esprit du contrat, ce qui peut conduire le juge à
déterminer le contenu contractuel, y compris en le complétant. ……….. la bonne foi intervient
afin d’assurer la pérennité de l’esprit du contrat…………..”.

The Cour de Cassation in France has also laid emphasis on the “[…] obligation de
l’employeur d’assurer l’adaptation du salarié a l’évolution de son emploi, en se fondant
expressément sur l’exigence de bonne foi” (Soc. 25 fèv 1992, no 89-41.634, D. 1992. 390, note
Dèfossez).

According to the principles established in France relating to the bonne foi of the
contracting parties, “[…] les contractants de bonne foi doivent savoir se détacher de la stricte
intention originelle des parties pour prendre des initiatives, quand bien même ne seraient-elles
pas prévues par la lettre de la convention. «Les cocontractants ne peuvent plus se confiner
égoïstement dans la lettre du contrat; ils doivent en pénétrer l’esprit et s’en inspirer pour
répondre le plus parfaitement possible aux attentes légitimes de leur partenaire (D. MAZEAUD,
note sous Civ 1re, 11 juin 1996, no 94-18.250, Defrenois, 1996, art. 36381) En d’autres termes,
l’esprit du contrat doit prévaloir sur sa lettre lorsque le respect de la loyauté contractuelle
l’exige». (Note 92 Répertoire De Droit Civil Dalloz, Philippe le Tourneau, Vo. Bonne Foi)

In addition, the French doctrine makes it clear that the execution of a contract with “la
bonne foi” entails the concept of “confiance légitime” inspired from the English law of Estoppel
and which are equally applicable to international contracts of commercial nature (Dalloz
Repertoire du Droit Civil, Philippe le Tourneau, Vo Bonne Foi, Notes 95, 96). According to
the concept of “confiance légitime” there is an obligation on the contracting parties to adopt a
coherent attitude when executing the contract. “………..Cela signifie qu’il ne saurait adopter un
comportement versatile, contraire à son attitude antérieure. À défaut, il violerait la confiance
légitime de son partenaire et serait ainsi susceptible d’engager sa responsabilité. Cette
interdiction de se contredire au détriment de son cocontractant est admise par les Principes
d’UNIDROIT (l’article 1.8 intitulé «interdiction de se contredire» dispose qu’ «une partie ne peut
agir en contradiction avec une attente qu’elle a suscitée chez l’autre partie lorsque cette
dernière a cru raisonnablement à cette attente et a agi en conséquence à son désavantage».

Although the above provisions are applicable in arbitration proceedings involving

international commercial contracts, it cannot be disregarded that this principle originate from the
contractual obligations between two contracting parties so as to prevent either of the parties
 12

from acting “en contradiction avec ses declarations et comportements antérieurs, sur la foi
desquels son co-contractant a pu légitimement se fonder.”

In the present case, the only evidence that demonstrates that there was an oral
agreement between the plaintiff’s representative and the defendant to waive the notice
requirement under the contract of employment is the testimony of the defendant herself. There
has been no evidence adduced on behalf of the plaintiff that contradicts the version of the
defendant to that effect. The plaintiff has relied strictly on the written provisions of the contract of
employment and the training to repeatedly affirm during trial that the defendant was aware of
the three months’ notice requirement at the time of the signature and was bound to comply with
such requirement.

I agree with the submissions of Learned Senior Counsel for the plaintiff referred to
above. However, it is to be noted that there is no evidence to dispute the oral exchange that has
taken place between the plaintiff’s representative and the defendant that was followed up after
the plaintiff’s representative listened to the queries of the defendant and provided her with an
advice on how to proceed by way of leave without pay instead of resigning, and how such long
leave spent overseas would result in the notice requirement not being necessary, and thus
waived. The relationship between the defendant and her employer, the plaintiff, seems to have
been a good, professional working relationship which seems to have been based on
understanding and cooperation between both contracting parties, such that the defendant was
not even compelled to undertake the full conversion A340 course and was entitled to take only a
top-up programme due to her experience. Moreover, and more importantly, after her application
for leave without pay was approved, she received two reference letters from the plaintiff for her
future employment which clearly shows that the plaintiff was aware of the defendant’s intention
to terminate her employment.

I am therefore of the view that although the parties are bound by the provisions of the
contract of employment, the obligations under the contract of employment have to be executed
in accordance with the bonne foi of the plaintiff and the defendant which has the aim of
maintaining “……… l’équilibre contractuel…… en restaurant une certaine égalité des rapports,
ou du moins, en évitant une trop grande disproportion entre ceux-ci” (Dalloz Repertoire du
Droit Civil, Philippe le Tourneau, Vo. Bonne Foi, Note 89)

Having regard to the main principles that underlie the spirit of the contract of
employment and the evidence before me that does not dispute the oral testimony of the
 13

defendant and only shows the proportionate contractual relationship between the parties which
is based on understanding, trust and confidence and the fact that the plaintiff approved the
defendant’s application for leave without pay and even provided her with two reference letters, I
take the view that these can only amount to evidence of the plaintiff being aware since well
before three months’ prior to her effective resignation date that the defendant would resign from
her post (14 November and 28 December 2007 (the dates of the letters of recommendation) to
8 May 2008 (date of her letter of termination effective 25 June 2008), at the end of her long
leave).

I therefore find that the plaintiff cannot seek to enforce the clause 18 of the contract of
employment which has been waived by the plaintiff’s own conduct which led the defendant to
act on the belief that the requirement for the notice of termination will not be insisted upon by
the plaintiff and it is estopped at this stage from insisting upon the exercise of the legal
obligation under the clause 18. (vide Rameshar Purmasing v The National Transport
Corporation (Privy Council) 1998 PRV 19)

Payment of the sum of Rs 400,000 under the training bond

With regard to the payment of the sum of Rs 400,000 under the training bond, it is worth
noting as seen above that the clauses of the training bond merely provide for the expenses for
the course undertaken by the defendant which is not the full A340 conversion course but only a
top-up course. The training bond does not specify to the length of the time that the defendant
had to stay in employment with the plaintiff after completion of the course as the discretion is left
to the plaintiff for approval of such period of time. The period of time during which the defendant
has to stay in employment with the defendant after completing only part of the conversion
course has not been defined in the training bond, but only for the duration of the contract of
employment, which it is not disputed by the plaintiff, was for an undeterminate duration.

With respect to paragraph 4 of the training bond, I shall refer to the following extracts
from Dalloz Repertoire de Droit Civil, Clause Pénale, Sébastien Pimont note 51 as
submitted by learned Counsel for the defendant which clearly explains the importance for the
clauses dédit-formation to be clear and precise with respect to the costs of expenses incurred
by an employer for its employees’ training.
 14

“51. Dédit – formation - Certaines clauses mettent à la charge de l’employeur le coût de la

formation du salarié. En contrepartie de cet avantage, celui-ci s’engage souvent à ne pas
démissioner pendant un certain temps, «le temps d’amortir cet investissement humain» (J.
PÉLISSIER, A. SUPIOT et A. JEAMMAUD, op. cit [supra], no 22], no 286). Plus précisément,
en cas de démission le salarié s’oblige à rembourser les sommes dépensées par l’employeur
pour la formation. Telle est la clause de «dédit-formation». Une telle clause est, selon la Cour
de casstion, «la contrepartie d’un engagement pris par l’employeur d’assurer une formation
entraînant des frais réels au-delà des dépenses imposées par la loi ou la convention collective»
(Soc. 21 mai 2002, no 00-42.909, Dr. Soc. 2002. 902, obs, J. Savatier.)…Étant précisé que,
pour être licite, «lindemnité de dédit» doit: 10 faire l’objet d’un accord séparé… 2 O être
«proportionnée aux frais de formation engagés»; 3o ne pas avoir pour effet «de priver le salarié
de la faculté de démissioner» (Soc. 21 mai 2002, no 00-42.909, préc). Une telle clause ne peut
donc pas, par définition, être comminatoire; à défaut, elle priverait le salarié du droit de
démissioner et serait illicite.»”

In the present case, the plaintiff is seeking to enforce the provisions of paragraphs 4 and
5 of the training bond and to claim the initial investment of Rs 400,000 spent as expenses on
the defendant’s course. During the hearing, it has been brought to the attention of the Court that
the testimony on behalf of the plaintiff relates only to the sum of Rs 800,000 as being the full
amount for the full A340 conversion course and that in the defendant’s case, there has been a
mistake on the part of the plaintiff’s witness, as she never had to follow the full conversion
course, only a top up course.

Now, the plaintiff purports to enforce the provisions of the clause de dédit –formation of
the training bond, as to the duration of employment, under which clause such duration is stated
to be as provided for under the contract, which as seen above, was of undeterminate duration.
Therefore as to the period of time that an employee has to continue to work for the company
after completion of the course, the established facts in the light of the authorities considered
above can only lead to the conclusion that it is not due if the contract is lawfully terminated, as it
was in the present case, with the plaintiff’s representative even advising the defendant as to the
best course, which subsumes approval by the plaintiff, reinforced by the letters of
recommendation.

Furthermore the evidence shows, as seen above, in particular the letters of

recommendation, that the plaintiff had actual notice that the defendant would be terminating her
 15

employment since more than the required three months. That the training bond and the
contract of employment were signed on the same day and that the defendant was aware and
bound by the terms of the agreements, are not sufficient evidence to show that the plaintiff has
not waived the three months’ notice requirement under the contract of employment and that the
plaintiff is entitled to enforce paragraph 4 of the training bond for the Rs 400,000 incurred as
expenses.

The version of the defendant has, for all the above reasons, been established to be the
more probable one and shows that the contentions of the defence are correct. I accordingly
accept her version and hold that neither of the plaintiff’s claims has been made out. The plaint
is therefore dismissed, with costs.

A. Hamuth
Judge

12 May 2017
For Plaintiff: Mrs Attorney J. Robert
Mr. G. Ithier S. C.

For Defendant: Mr. Attorney J. C. Ohsan Bellepeau

Mr. H. Duval S.C. together with Ms L.
Churitter, of Counsel