Claim No: CFI 047/2025

IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

OAKLEY

Claimant/Respondent

and

OLIVER

Defendant/Applicant

ORDER WITH REASONS OF H.E. DEPUTY CHIEF JUSTICE ALI AL MADHANI

UPON the SCT Claim Form being filed on 15 October 2024 in SCT-467-2024 (the “Claim”)

AND UPON the Judgment of H.E. Justice Maha Al Mheiri dated 20 February 2025 upholding the Claim in SCT-467-2024 (the “Judge” and the “Judgment”)

AND UPON the Defendant’s Appeal Notice dated 6 March 2025 seeking permission to appeal the Judgment in SCT-467-2024(the “Appeal Notice”)

AND UPON the Order of H.E. Justice Sir Jeremy Cooke granting permission to appeal the Judgment in SCT-467-2024 dated 1 May 2025 (the “Appeal Order”)

AND UPON the Part 8 Claim Form dated 5 May 2025 (the “Part 8 Claim”)

AND UPON the Defendant’s Application No. CFI-047-2025/1 dated 12 June 2025 seeking permission to adduce new evidence (the “New Evidence Application”)

AND UPON hearing the Claimant and Counsel for the Defendant on at the hearing held on 19 June 2025 before H.E. Deputy Chief Justice Ali Al Madhani (the “Hearing”)

AND PURSUANT TO the Rules of the DIFC Courts (the “RDC”)

IT IS HEREBY ORDERED THAT:

1. The New Evidence Application is granted.

2. The Appeal is accepted.

3. The Judgment is to be set aside.

4. There shall be no order as to costs.

Issued by:
Delvin Sumo
Assistant Registrar
Date of Issue: 16 July 2025
At: 2pm

1. Two applications have been brought to be dealt with before H.E. Deputy Chief Justice Ali Al Madhani at the Hearing; the New Evidence Application and the Appeal, both brought by the Applicant. The New Evidence Application seeks permission to put forward the Witness Statement of Mr Oberon, Group Chief People Officer of the Applicant (“Oberon W/S”) as new evidence to the Court of Appeal pursuant to Rule 44.115 of the DIFC Courts (the “RDC”), and the Appeal seeks to set aside the Judgment dated 20 February 2025 of H.E.Justice Maha Al Mheiri.

2. The applications will be addressed separately in these reasons.

Background and Procedural History

3. The Claim concerns the employment relationship between the Applicant and Respondent pursuant to an Employment Contract dated 11 May 2022 (the “Employment Contract”). The Respondent was employed as Compliance Officer and Money Laundering Reporting Officer, until the termination of his employment on 27 June 2024 (the “Termination”)

4. On 16 April 2024, the Respondent submitted his resignation with a 90-day notice period in accordance with his Employment Contract. As agreed, the notice period would end on 15 July 2024.

5. On 27 June 2024, during the Respondent’s notice period, the Applicant terminated the Respondent’s Employment Contract with immediate effect due to acts of misconduct concerning the unauthorised access to and/or disclosure of the Applicant company’s confidential information.

6. Following the Termination, on 15 October 2024, the Respondent filed a claim in the DIFC Courts’ Small Claim Tribunal (the “SCT”) claiming various sums set out as follows:

7. On 21 October 2014, the Applicant filed an Acknowledgment of Service intending to defend all the claims.

8. The parties met for a Consultation with SCT Judge Maitha Al Shehhi on 20 November 2024 but were unable to reach a settlement. In line with the rules and procedures of the SCT, this matter was referred to H.E. Justice Al Mheiri for determination.

9. Pursuant to the Hearing held before the SCT Court on 23 December 2024, judgment dated 20 February 2025 (the “Judgment”) was issued by H.E. Justice Maha Al Mheiri, declaring that the termination for cause issued by the Applicant is void. The court further ordered the payment of outstanding remuneration and statutory penalties in accordance with Article 19 of DIFC Law No. 2 of 2019.

10. The Applicant filed a Notice to Appeal dated 6 March 2025 pursuant to RDC 53.89, seeking permission to appeal the Judgment. The Applicant also filed Application No.SCT-467-2024/1 on 6 March pursuant to RDC 4.2 (6) seeking a stay of proceedings pending the determination of its application for permission to appeal the Judgment.

11. Both applications were granted by virtue of an Order with Reasons issued by H.E. Justice Sir Jeremy Cooke on 1 May 2025.

12. An Application Notice was filed by the Applicant seeking permission to adduce new evidence on appeal in the form of a witness statement from Mr. Oberon, in accordance with RDC 44.115.

13. The Hearing was held for the Appeal before H.E. Deputy Chief Justice Ali Al Madhani on 19 June 2025 with the Applicant’s representative and the Respondent as a litigant in person in attendance.

Rules

14. On new evidence before an Appeal, the governing rules are RDC 44.114, 44.115 and 44.116, which respectively read:

15. Criteria for a successful appeal pursuant to RDC 53.87, which reads:

New Evidence

16. Permission to use Oberon’s W/S for the appeal application was granted during the Hearing.

17. Pursuant to RDC 44.114, permission must be granted for evidence to be used at the appeal Court that was not before the lower Court. The threshold to grant permission is that the new evidence has probable importance, though not necessarily decisive, on the outcome of the case on appeal and that the new evidence would not have been initially reasonably available or discoverable.

18. On the threshold, the Applicant relies on H.E. Justice Sir Jeremy Cooke’s application of the criteria in Nest Investments v Deloitte & Touche (ME) [2020] DIFC TCD 003 to show that the Oberon’s W/S is highly relevant as it can provide context as to the date of discovery of the alleged wrongdoing, as the Oberon W/S makes comment on the incident itself and the surrounding confidentiality issue, not simply a repeat of what was said at the SCT Hearing, though as there is no transcript of the SCT Hearing (and as the context recorded in the Judgment is disputed) it would be useful for the appeal Court to have that tangible evidence when re-examining the facts of the case as afforded pursuant to RDC 44.116 in order to determine whether the Applicant acted as a reasonable employer in terminating for cause for the alleged wrongdoing within the meaning of Article 63(1) of the Employment Law. Further, as Mr Tarabay was present at the Hearing, he was still afforded the opportunity to respond to the content of Brown’s W/S.

19. In response to the judicial line of questioning regarding why a witness statement wasn’t provided to the SCT as part of the evidence, counsel for the Applicant responded that the SCT Hearing was an opportunity for the parties to be questioned, so a witness statement of fact is not needed, hence Mr Tarabay also failing to provide one.

20. Mr Oakley took the opportunity at the Hearing to rebut the use of Oberon’s W/S on the basis that it wouldn’t be useful and that he refuted the representation of facts therein. He was given time during the Hearing to read through the witness statement and make a comment on it, which Mr Oakley declined to do.

21. Permission was subsequently granted due to the fact that while Oberon W/S stood independently as new evidence, the content of the witness statement did not constitute fresh evidence. Oberon W/S is merely a concise confirmation of the evidence put before the Judge, and so there was no reason to reject this application as Oberon W/S did not fall within the context of RDC 44.114.

Applicant’s Submissions on Appeal

22. The Applicant relies on four grounds of appeal, which will be addressed separately. First Ground

23. The first ground is that the Judge erred by applying a test for termination for cause, which has no legal basis.

24. On termination for cause, Article 63(1) of the DIFC Employment Law (“Article 63(1)”) states that:

25. The Applicant submits that the Judge applied the wrong test by imposing qualifications and/or propositions absent in Article 63(1), as evidenced at paragraph 17 of the Judgment:

“An Employer may terminate an Employee’s employment with immediate effect for cause in circumstances where the conduct of one (1) party warrants termination and where a reasonable Employer or Employee would have terminated the employment as a consequence thereof, but the Claimant was in his notice period and therefore termination for or without cause cannot occur as the Claimant’s final date had already been agreed, and his end-of-employment rights already triggered. For termination to be considered valid within the notice period, unusual or exceptional circumstances would have to occur.” [emphasis copied].

26. The Applicant advances that there is a lack of legal basis for the propositions applied by the Judge as the concept of immediate termination for cause is not inconsistent with an employee being in their notice period, nor does a notice period trigger a fixed “final date” that can only be amended due to exceptional circumstances, nor create entitlement to “end of employment rights”. Further, the propositions are in conflict with Article 8A (4) of the Application of Civil and Commercial Laws (No. 3 of 2004), which reads:

27. An additional complaint under this ground is that the Judge failed to cite any authority in support of the propositions imposed or even exceptions to Article 63(1), contrary to the precedent found in The Industrial Group Ltd v Hamid [2022] DIFC CA 005 and 006 [105] which imposes that reference must be made to statutory frameworks or the incremental development of precedent in the common law to properly ascertain the scope for proper judicial interpretation and avoid straying into impermissible judicial legislation.

Second Ground

28. The second ground is that the Judge misapplied the test for termination for cause, if the Court concurs that such a test exists and is applicable. At paragraph 18 of the Judgment, the Judge states that “[the Applicant] did not terminate the Claimant at the time of occurrence”, and so the Applicant misused the employer’s right to terminate immediately with cause under Article 63(1).

29. The Applicant submits that this is evidence of a misunderstanding of the meaning of “immediate effect” within Article 63(1). There is, in fact, no statutory requirement that termination occurs at the material moment that a breach of contract is found. Instead, “immediate effect” refers to the propinquity of the termination, which occurs without the normal notice period – this is a clear and literal reading of an unambiguous statutory article.

30. Finally, the Applicant relies on the Court of Appeal decision in McDuff v KBH Kaanuun Ltd [2014] DIFC CA 003 to show that the length of time that an employer is aware of the unconscionable conduct is relevant only to the second limb (a reasonable employer) of the termination for cause test, and does not conflate an obligation for the employer to terminate an employee immediately on discovery of wrongdoing. Alternatively, as submitted, leaving time for correction between the date of discovery of the wrongdoing and termination is consistent with the intention behind the DIFC Employment Law, which promotes the fair treatment of employees by employers. Hence, the Judge’s application is inconsistent with Article 63(1) and should be reversed.

Third and Fourth Ground

31. The third and fourth ground are materially similar and so shall be grouped and addressed as one. The Applicant’s complaint is that the Judge’s findings that the Applicant acted too slowly to terminate for cause and that the Applicant failed to place significant weight on the Respondent’s contractual breaches are plainly wrong and perverse on matters of fact and law.

32. At paragraphs 18 and 19 of the Judgement, the Judge found that the Applicant failed to act as a reasonable employer due to their lack of urgency in terminating the Respondent and for failure to place significant weight on the Respondent’s breaches.

33. On urgency, the Applicant submits that this determination is plainly wrong in fact and law due to the Judge’s misunderstanding of Article 63(1). The Judge’s logic is that termination should happen at the same material time as discovery of the wrongdoing, which is not consistent with the language of Article 63(1). There was a series of acts of misconduct, all related to mishandling of or unauthorised misconduct of confidential information, which occurred in the last six months of the Respondent’s employment – this is detailed in the Termination Letter dated 27 June 2024, which was put before the Judge. For each misconduct, an investigation took place, which subsequently uncovered further misconduct. The Applicant took a month between the final misconduct and the termination for cause, which is an objectively reasonable length of time considering the context.

34. On the weight placed on the Respondent’s misconduct, the Applicant objects to the Judge’s findings as it was repeatedly expressed that the termination was a direct result of the found misconduct as the protection of company and employee integrity was paramount. As per the Applicant company’s Code of Conduct and Ethics – which is signed by the Respondent – there is an expectation to safeguard the “intangible assets” of the Applicant and the Applicant’s clients, including “client and employee information”, “intellectual property” and “confidential information”, where misappropriation or unauthorised disclosure could amount to a “breach of duty” resulting in “immediate termination of employment”. At page 5 of the Code of Conduct, it was stated that “all propriety, client or confidential information” should be maintained in “strict confidence”, including “salary and benefits data”.

35. As confirmed in an email from Oberon, the Applicant’s Chief Operations and People Officer, dated 14 May 2024, the Respondent acted outside his authorised scope of access to a former employee’s emails – Mr Otis – by reading Mr Otis’ employment contract and subsequently making a complaint about the salary difference. In the same email, it is noted that the Respondent verbally confirmed that the salary difference prompted his resignation, and that Mr Oberon informed him that by disclosing that he had both read Mr Otis’ employment contract and relayed that information to Mr Oberon amounted to potential gross misconduct, and raised additional concerns that the Respondent had repeated this grievance to other employees.

36. In the Termination Letter, is it expressly explained that the Respondent’s misconduct was “an unacceptable breach of trust and contract” and that the found behaviour was “a complete lack of professionalism and judgment” which brought doubt to the Respondent’s “ethical standards as a [Compliance and Anti Money Laundering Reporting Officer]”. It is further submitted that the Judge agreed with the Applicant’s findings, stating at paragraph 18 of the Judgment that “the incidents may amount to valid reasons for termination for cause with immediate effect”, and so the Judge had little cause to form a determination to the detriment of the Applicant, except for reliance on an incorrect interpretation of the statutory scope on employment, particularly on the balance of probabilities. Accordingly, the Judge’s decision that the Applicant did not act as a reasonable employer is plainly wrong and should be appealed.

37. To add, the Applicant also relies on Oberon’s W/S, which confirms the following details:

Respondent’s Submissions on Appeal

38. In response to the Article 63(1) test, the Respondent relies on the precedent set in Hormodi v Bankmed (SAL) [2019] DIFC CA 006 which states that delays in termination can undermine an employer’s justification, and so the Judge rightly penalized the Applicant for lack of urgency.

39. The Respondent also rejects the Applicant’s justification for its timing, as discretion on when to terminate an employee must be exercised in good faith, and by waiting for a month with no warning or investigation known to the Respondent is not justifiable. Further, during the termination interview, the Respondent submits that the reason given was that the Respondent was joining a competitor for his new role and this explanation undermines the alleged reasons for the Applicant’s retaliation. Additionally, the Applicant’s admission that it took legal advice in May 2024 regarding a potential breach of the non-compete clause, but did not terminate the Respondent’s employment until the end of June 2024 adds another layer of delay that undermines the urgency alleged by the Applicant.

40. On the Applicant’s submissions on errors of fact and law, the Respondent states that the Judge had access to all the relevant documents and gleaned logical and supported inferences from the facts presented, including the timeline. The Judge appropriately understood the retaliatory nature of the termination and exercised her judicial discretion accordingly. Therefore, her decision as not “plainly wrong”.

41. Finally, in support of his submissions, the Respondent highlights that the Witness Statements of Mr Oscar are vague and unverified, in which Mr Oscar admits that he did not place any significant weight on what he was allegedly told and so the Respondent’s subsequent termination was disproportionate.

42. Hence, the Respondent urges the Court to dismiss the appeal and uphold the Judgment. Further, the Respondent seeks note of the reputational consequences of the Applicant’s conduct and for the Court to acknowledge his right to further legal proceedings for defamation and professional harm.

Discussion and Conclusion

43. Overall, I agree with the Applicant that the Judge’s conclusion was wrong. This is for a multitude of reasons, all of which will be explored here. First, I will directly address the grounds of appeal filed, then explain how the evidence first presented to the Court ought to have been used and how the alternative conclusion should have been reached.

44. As a matter of housekeeping, I will not be considering the client dissatisfaction case regarding the licence variation and subsequent refund. While I understand that this could amount to evidence that the Respondent did not fulfil his contractual obligations up until the intended end date, this did not form part of the Termination Letter. According to the given chronology, evidence of this breach was found in August 2024, after the Respondent had been terminated, and so did not initially form part of the termination itself but is used as evidence to defend the Respondent’s assertion that he acted within the scope of his obligations up until his termination date. The main issue in this claim is whether the Respondent was validly terminated, and so only the given reasons at the time of termination – 27 June 2024 – can be measured against the Article 63(1) threshold.

First Ground

45. The first ground of appeal, which is a purely legal ground, is that the termination for cause test engaged by the Judge had no authoritative basis. I am bound to agree. The Judge initially correctly reiterated the two-part test at paragraph 17 of the Judgment, then incorrectly applied and analysed the timing of the termination to the test:

“An Employer may terminate an Employee’s employment with immediate effect for cause in circumstances where the conduct of one (1) party warrants termination and where a reasonable Employer or Employee would have terminated the employment as a consequence thereof, but the Claimant was in his notice period and therefore termination for or without cause cannot occur as the Claimant’s final date had already been agreed, and his end-of-employment rights already triggered. For termination to be considered valid within the notice period, unusual or exceptional circumstances would have to occur.” [emphasis added].

46. However, Article 63(1) reads:

There is no allusion to a restriction on when termination for cause can occur, nor that unusual timing would constitute any need for “exceptional circumstances” to justify termination with immediate effect.

47. In my view, a notice period is merely a run-up to the intended final date of employment, not a preventative measure to an earlier termination, as it is a well-established principle of contract law that a contract continues to subsist until the expiry of the notice period and therefore can be brought to an immediate end upon a repudiatory breach of contract. The propositions only act to suspend that principle, which is unnecessary and plainly wrong, as well as outside the jurisdiction and power of the judiciary. The only consideration is the Respondent’s conduct that triggered the termination for cause, and whether a reasonable employer would have terminated an employee’s employment immediately for the same reason.

48. The Judge had no legal reason – statutory or authoritative – to depart from the wording of Article 63(1) in her considerations. Hence, I concur that the Judge employed the wrong test, and so the first ground of appeal is accepted.

Second, Third and Fourth Ground

49. The second, third and fourth grounds of appeal; that the Judge incorrectly voided the termination on the basis that the Respondent was not terminated at the time the breaches occurred, that the Judge was wrong in finding that the Applicant acted too slowly, and that the Judge incorrectly states that the Applicant failed to place significant weight on the Respondent’s breaches, express legal and factual errors. Therefore, in order to apply the reasonable test, it is necessary to engage with the re-examination of the Respondent’s conduct, the chronology of events, evidence before the Judge and the legal principles underpinning the determination. Hence, my answer to the second, third and fourth ground of appeal will be stated collectively.

50. First, I will address the Respondent’s conduct. As per the Termination Letter, the Respondent was terminated for two named breaches for the same material reason; disclosure of confidential information. Whether the alleged breaches amount to a real breach deserving of a termination under Article 63(1) is dependent on the Applicant company’s Code of Conduct.

51. As highlighted at the Hearing, page 5 of the Code of Conduct unambiguously states that:

“All propriety, client or confidential information should be maintained in strict confidence, except when disclosure is authorised by the Company or required by law or regulation. Propriety information includes…intellectual property, such as…salary and benefits data.”

The nature of the information disclosed without authorisation is not disputed; it falls squarely in this definition.

52. The first breach, as per the order of the reasons for termination in the Termination Letter, is that the Respondent revealed confidential information regarding a salary package awarded to an employee of the Applicant’s client. To first briefly note, I do acknowledge that little weight and discussion is placed on the first reason for termination as the majority of the evidence on file, and the submissions from both parties disproportionately consider the second breach as the main point of contention. I also acknowledge that in his reply to defence, the Respondent made clear that his claim was not centred on the reasons for his termination, but the nature and appearance of the termination itself as being procedurally flawed. Nonetheless, as the breaches triggered the termination, and the reasons are the crux for evaluating whether the termination satisfies the conditions under Article 63(1) I will still consider both for the purpose of the appeal, though place more weight on the second reason for termination.

53. The first breach is said to have occurred over a year prior to the Respondent filing his claim. In his Claim Form, the Respondent admits having disclosed confidential information to internal employees, though does not specify who, which was assumed to be permitted as the information in question was stored in a shared internal folder. In Oberon W/S, it is confirmed that Mr Oberon is the employee in question who was approached regarding the salary packet week beginning 20 May 2024. On the day of occurrence – which is also the date of awareness – Mr Oberon informed the Respondent that he was in breach of his confidentiality obligations.

54. On the second breach – unauthorised salary disclosure – as evidenced by the email chain filed by the Applicant, the Respondent was granted access to Otis’ email account on 8 February 2024. In the First Witness Statement of Oscar, who acted as the Respondent’s Senior Manager in the Compliance department at the material time, it was disclosed that earlier that year the Respondent “during a casual conversation” mentioned Mr Otis’ salary increase. When questioned about the source of that information, the Respondent replied that the source was “reliable” but did not elaborate. Mr Oscar submits that he did not place weight on the unsubstantiated claim and so did not report the Respondent’s admission to higher management until approached by Oberon.

55. The Respondent again admitted to accessing unauthorised emails to Mr Oberon during the meeting initiated by the Respondent on 23 May 2024. Mr Oberon categorised this conduct as a breach of the Code of Conduct and warned the Respondent as such, as per a letter sent from Mr Oberon on 24 May 2024. This is later confirmed in Oberon W/S. I also find that this breach is admitted by the Respondent at page 2 of his Particulars of Claim, which pleads:

“I was granted access to the former employee’s mailbox to review client communication. While reviewing emails, I inadvertently came across salary information, which I only shared internally with the HR Director and a close colleague. This was done out of frustration due to my excessive workload and was not disclosed to any external parties.” [emphasis added].

56. In the Code of Conduct, it clearly states that the information shared by the Respondent “should be maintained in strict confidence, except when disclosure is authorized by the Company.”. It is not disputed that the Respondent did not have authorisation to disclose the information he found to anyone, including other employees. Hence, it is clear to me that the Respondent accessed files outside the scope of his authorisation; of which the intended scope was known to him and subsequently disclosed confidential intellectual property without company authorisation. This is an explicit breach of the agreed Code of Conduct while the Respondent was still employed as a confirmed employee. I do not accept that a notice period operates as anything but a run-up to an agreed end date, and does not confer immunity to an earlier termination for cause, nor does the DIFC Employment Law prevent employers from terminating employment under Article 63(1) during an employee’s notice period. Therefore, the second incident amounts to a breach that a reasonable employer would terminate employment as a consequence thereof under Article 63(1) of the DIFC Employment Law.

57. At paragraph 18 of the Judgment, the Judge states:

“…the incidents may amount to valid reasons for termination for cause with immediate effect…”

Hence, the Judge did recognise that the Respondent’s conduct was relevant to a finding for termination for cause but failed to properly apply this to the test under Article 63(1). This is where the error lies, as identified by the Applicant.

58. There is no reason nor authority that would allow the Judge to part from the statutory test in Article 63(1), and, had the evidence placed before the Judge been appropriately considered and applied, the Judge would have found that the conduct amounted to a breach that satisfied the conditions in Article 63(1), allowing for immediate termination for cause. Therefore, as the Judge was plainly wrong in this manner, I accept the first ground.

59. Next, I will address the chronology of events. The crux of the issue here is that the Judge incorrectly stated that the termination was void as the Applicant failed to terminate the Respondent at the time the incidences occurred. In my view, the time of occurrence is irrelevant; the only determining factor is the time of awareness of the breaches.

60. On 16 April 2024, the Respondent submitted his resignation notification, which was acknowledged by the Applicant on the same day, with the intended end date being 15 July 2024.

61. On 23 May 2024, the Respondent – on his own volition, according to the evidence – approached Oberon, requesting an early release from employment. The conversation is recorded in Mr Oberon’s letter to Orlando, the Applicant company’s Deputy CEO and Partner, sent on the 24 May 2024. Mr Oberon refused early release on suspicion that the Respondent may be in breach of the “non-compete” clause in his employment contract. This triggered a conversation initiated by the Respondent, who admitted that he had accessed and read Mr Otis’ employment contract; the Respondent was then reportedly reminded that he was only given permission to access emails related to post departure client requests, and that accessing the employment contract and subsequently disclosing the information within amounted to potential gross misconduct. The Respondent reportedly brushed this off.

62. Following Mr Oberon’s letter, a fact-finding investigation began in June 2024, which is corroborated by Mr Oscar’s First Witness Statement.

63. On 27 June 2024, the official Termination Letter was served to the Respondent, notifying him that he had been terminated immediately for cause.

64. On 28 June 2024, the Employment Permit Cancellation Letter was signed and returned by the Respondent.

65. Following this timeline, the Respondent accessed Mr Otis’ employment contract sometime between February 2024 and May 2024 and disclosed this information to higher management – who would be responsible for disciplinary action – on 23 May 2024. Around a week later, after an alleged meeting with Mr Orlando (though no evidence of this meeting was presented to the Judge), an investigation into the Respondent’s conduct was launched and a conclusion was reached by the end of June 2024, by which time the Respondent was formally terminated around two working weeks before the initial intended end date.

66. In the Judgment at paragraph 18, the Judge states that:

67. In my view, the Judge’s assessment is plainly wrong, and likely the result of a factual error on the chronology of events, as well as a misunderstanding of and misapplication of the test. This bleeds into the errors highlighted in the third and fourth ground of appeal; that the Judge erred in stating that the Applicant acted too slowly and failed to place significant weight on the breaches. For the first incident, I accept that the date of occurrence and awareness were on the same date, being mid to late May 2024. I can also infer that the Judge was mislead regarding the date of occurrence, being “over a year ago” according to the Claim Form, with no evidence confirming this. For the second incident, which occurred some time between February 2024 and May 2024, was brought to the attention of Allan Brown by the Respondent himself on 23 May 2024.

68. I accept that, irrespective of the date of occurrence, Mr Oberonbecame aware of two breaches a month before the termination date which in my view is a reasonable time to carry out the relevant investigation and decide on a termination for cause. Hence, I concur that the Judge erred in penalising the Applicant for a “lack of urgency”.

69. For the above reasons, I accept the second, third and fourth ground of appeal.

Conclusion

70. I concur with the Applicant that the Judgment, through a misappropriation of the facts and misinterpretation of Article 63(1), came to the wrong determination. There was no legal basis to void a termination due to its timing during the Respondent’s notice period; no undue delay in the Respondent’s termination as irrespective of the date of occurrence, and the Applicant acted reasonably swiftly in terminating the Respondent from the date of awareness of the breaches. This ought to have been found on the evidence presented to the Judge; Oberon W/S had no significant bearing on the outcome of this appeal, except to reconfirm what had already been submitted. Therefore, the appeal is granted pursuant to RDC 53.87.

71. The Judgment is to be set aside. There shall be no order as to costs.