Mohinee Adnath (Plaintiff) v Mauritius Post and Cooperative Bank Ltd (Defendant)
2016 SCJ 283
It is not disputed that by an agreement dated 25 June 2004 Plaintiff joined the Defendant bank as “Supervisor, Retail Banking” for a determinate duration of 6 years, with effect from 2 August 2004 at a starting salary of Rs 20,000 monthly plus a monthly travelling allowance of Rs 3,000. She was transferred in December 2004 from Curepipe Branch where she was posted upon joining as “Assistant Branch Manager”, i.e as Supervisor assisting the Branch Manager, to Quatre Bornes as Branch Manager. In 2006 she was retransferred to the Curepipe Branch as Branch Manager.
The Plaintiff avers that while she has at all times performed her duties with the utmost diligence, skill and dedication, she was persistently singled out and targeted by the General Manager of the defendant bank, Mr Pavaday Thondrayen, who would treat her unfairly and/or abusively. She sets out her complaints as follows:
Plaintiff therefore prays for a judgment ordering the Defendant to pay the sum of Rs 1,662,957.50 as damages for the prejudice suffered by her. She explained in Court that her rights had not been respected by the bank as allegations were made against her and she was dismissed summarily without being given an opportunity to reply.
The Defendant bank had denied the Plaintiff’s allegations and averment that there has been a breach of contract on its part. It pleaded that during her tenure of office the Plaintiff has been issued with several memos/letters as referred to by the Plaintiff above. It is averred that the Plaintiff had created a situation, which left the defendant with no alternative than to terminate her contract of employment in accordance with the terms and conditions specified therein; Plaintiff was accordingly paid the sum of Rs 278,400 which was accepted by the Plaintiff albeit under protest, such that ex facie the pleadings no breach of contract is disclosed. The bank reiterates that the Plaintiff has no cause of action in as much as the Plaintiff’s contract of employment was for a duree determinee and was governed by the conditions specified in her contract of employment to which she was bound.
Mr Chetty SC then referred to the case of Perrine V Duke Haberdashers Co. Ltd [1986 MR 127] [1986 SCJ 206] to submit that the Plaintiff having accepted the said sum cannot be allowed to have another bite at the cherry and is not therefore entitled to also claim damages for breach of contract in the present case.
In reply, Mr Bhanji Soni appearing for the Plaintiff submitted that irrespective of the subsection of Clause 13 under which the bank chose to terminate the contract of employment of the Plaintiff, the Plaintiff was in law entitled to decide whether to bring an action before the Industrial Court or before the Civil Court.
The issue was whether the Plaintiff, having accepted “under protest” an amount equivalent to and representing the punitive rate of compensation for unjustified dismissal under the Labour Act, is entitled to her claim for damages before this forum on the same set of facts.
It is first relevant to know what is the legal significance of the words “under protest” without more in respect of the plaintiff’s acceptance, as the evidence has revealed.
In re Massey, [8 Beav 460],  where a testator died indebted to the petitioner, in the context of a petition for taxation, the Court in England stated
“It is said, that the money was received by the petitioner, and the receipt given “under protest”. These words are often used on these occasions, but they have no distinct technical meaning, unless accompanied with a statement of circumstances, shewing that they were used by way of notice or protest, reserving to the party, by reason of such circumstances, a right to a taxation notwithstanding such payment. The words have no distinct meaning by themselves, and amount to nothing, unless explained by the proceedings and circumstances. [Emphasis added].
“There is no magic to the term “under protest”. This was stated in Castano and Gabriel, 302 NYS 2d 943 (1969). In Waara V Kane 269 N.W.2d 395 (1978) before Supreme Court of South Dakota, I find the following of interest:
“The term “under protest” contains no inherent magic. It does not per se establish compulsion or force. It may simply imply that the act is done contrary to the desire of the party indicating his protest, and nothing more.”
Therefore, unless acceptance under protest is statutorily provided, accepting a payment “under protest” without more only qualifies the acceptance by showing that the person is reluctant to accept but has nevertheless accepted. Acceptance of a payment under protest by itself has no legal significance unless the protest is clearly defined to show the circumstances under which the payment is being accepted. This would then also give an opportunity to the person making the payment to decide whether to accept whatever reservation or condition is accompanying the acceptance or, where appropriate, whether to withdraw the payment.
In the present case the Plaintiff simply accepted “under protest” without more. She therefore must be taken to have accepted a claim, which she would have obtained before the Industrial Court as she admitted that the amount she received represented pay at six times the normal rate.
Having accepted the full compensation under the Labour Act the plaintiff cannot also claim redress under the Code Napoleon for breach of contract in respect of the same set of facts. I here refer to the pronouncement in the cases of Perrine v Duke Haberdashers Co. Ltd (supra) and Bisonauth Premchandra & Anor v The Sugar Insurance Fund Board [2013 SCJ 252].
Attorney for the Mauritius Post and Cooperative Bank Ltd (Respondent): Mrs Anju.K.Ghose