Sources of regulation
The main sources of regulation in relation to termination
of employment are the Labour Act, 1975 (LA), the Industrial Relations Act,
1973 (IRA),[1] and the Industrial
Expansion Act, 1993 (IEA). The Code of Practice (Industrial Relations Act)
is also of high persuasive authority. In the absence of specific legislative
provisions, common law rules on termination of employment are deemed to
apply. Collective agreements can also be supplementary sources for regulation
of termination of employment.[2]
Scope of legislation
No specific categories of workers are expressly excluded
under the LA. In addition, the meaning of the term “worker” is defined
broadly to include apprentices, share-workers[3] and casual
workers. Nevertheless, the termination of contracts of employment of public
sector workers is not regulated under the LA, but under special regulations
for the Public Service and the Constitution which are enforced by special
bodies such as the Civil Service Industrial Relations Commission and the
Civil Service Arbitration Board. The IRA, however, applies both to the
public and private sectors.
Since 1970, employees in the export processing sector have
been covered under special legislation, namely, the Export Processing Zone
Act, which was replaced in 1993 by the Industrial Expansion Act. The IEA
improved provisions for a severance payment of one week’s wages for each
year of service when an employee has service of less than three years.
Consequently, only the provisions under the LA which relate to unjustified
dismissal, for example, on the grounds of serious misconduct, apply to
workers in this sector. Employees in export processing zones cannot, therefore,
be viewed as having protection in relation to termination of employment
on such wide terms as elsewhere in the private sector.[4]
Special
regulations exist concerning the termination of workers in the sugar industry
(agricultural sector), road haulage industry, construction industry and
export processing zones. These are mainly confined to notice requirements.
Contracts of employment
Contracts of employment can be
either for a fixed term or task or for an indefinite period.
Termination of employment
Where an employee is engaged on a fixed-term basis or where
he or she is engaged to perform a specific task, his or her contract of
employment will be deemed to have terminated automatically upon expiry
of the agreed fixed term or task (sec. 30, LA). However, for contracts
of a fixed term, the employer is required to give notice of termination
to avoid the continuation of the contract on the same terms and conditions
as before.
Dismissal
There is no express prohibition against unjustified dismissal
under the law of Mauritius, although the requirements of secs. 32 and
39 of the LA appear to amount to a requirement of justification for
dismissal. The existence of an Industrial Court with jurisdiction over
all labour law matters means, in effect, that the reasons for termination
of employment may be inquired into on a case-by-case basis in accordance
with the concept of good industrial relations practice. In this regard,
the provisions of the Code of Practice (Industrial Relations) Act should
be noted, particularly the proposition that “good human relations between
employers and employees are essential to good industrial relations”. Further, sec.
52 of the IRA specifically states that the Industrial Court, the Industrial
Relations Commission and the Permanent Arbitration Tribunal shall take
into consideration any provision of the Code of Practice which they consider
to be relevant.
Workers may be lawfully dismissed where they are absent
from work without good and sufficient cause for more than two consecutive
days, on the grounds of breach of contract, or where they are found guilty
of serious misconduct and the employer cannot in “good faith” take any
other course (sec. 32, LA). Incapacity of the worker for the required
job is also considered to be a valid ground for dismissal.
Female workers may not be dismissed for reasons of pregnancy
or maternity leave (sec. 19, LA).
Dismissal on the grounds of ill health or injury in a situation
in which the employee is entitled to statutory sick leave constitutes unlawful
dismissal under sec. 20 of the LA. In this case, the employer is
liable to a fine under sec. 3A of the Workmen’s Compensation Act
in addition to being liable under the LA.
Employees may not be dismissed for filing a complaint or
participating in a proceeding against an employer involving alleged violation
of a law (sec. 32, LA). In addition, employees may not be dismissed
for trade union membership or activity.
Specific protection against dismissal on discriminatory
grounds such as race, colour, religion and political opinion is guaranteed
only under the Constitution. However, as Constitutions in general regulate
only actions emanating from the State, this is merely of persuasive significance
in private employment law. Nevertheless, such reasons will almost certainly
be considered to be unlawful by any adjudicating body considering a termination
matter, as they do not fall among the reasons deemed to be valid.
The burden of proving the existence of a valid reason for
termination rests on the employer.
Where the worker is “ill-treated by his employer”, this
will be treated as dismissal (sec. 30(a)(4), LA). The statute does
not define the concept of “ill-treatment”, but in practice its meaning
is similar, but not identical, to the concept of constructive dismissal
under common law, whereby an employee can claim unlawful dismissal and
any benefits accruing in a situation where the employer breaches any fundamental
term, express or implied, of the contract, such as the non-payment of wages.
In Mauritius, the concept of ill-treatment, while having a similar effect
of constructive dismissal, emphasizes the attitude of the employer to his
or her employee, concerned, for example, with actions which affront his
or her dignity or person. The other aspect to constructive dismissal, that
is, the non-payment of wages, is embodied under sec. 30(b) of the
LA, which allows the employee to claim unlawful dismissal for such reason.
However, the non-payment of wages should be of such a nature as to make
the continuation of the employment relationship impossible. One isolated
case would be insufficient.
Sec. 39 of the LA regulates
collective reductions in the workforce which occur for whatever reason.
This section only applies to employers who employ more than ten workers.
Notice and prior procedural safeguards
Where an employee is accused of misconduct, he or she may
not be dismissed unless the employer cannot, in good faith, take any other
course. The implication here is that the employer is obliged, in the first
instance to consider other avenues; that is, to warn the employee about
the potential consequences of the misconduct, or to suspend the employee
instead of dismissing him or her where it is feasible to do so.
In cases of alleged misconduct, the employee is entitled
to a fair hearing in which he or she is afforded the opportunity to defend
himself or herself against the charges made. The employee is also entitled
to have the assistance of a representative of his or her trade union or
a legal representative or a labour officer in defending the charge. In
addition, the dismissal may only be carried out within seven days after
the completion of such a hearing. Where the misconduct is the subject of
criminal proceedings, the time limit of seven days starts running from
the day on which the employer becomes aware of the final judgement of conviction
(sec. 32(b), LA).
Sec. 31 of the LA lays down
mandatory notice periods for termination of the contract in the absence
of any notice periods which may be agreed to between the parties to the contract of employment. Such notice periods
must be:
- three
months for periods of continuous employment of three years or more;
- 14
days where the worker is remunerated at intervals of not less than 14
days and he or she has been employed less than three years; and,
- where
the worker is remunerated at intervals of less than 14 days, at least
equal to the interval.
Under special regulations of the LA categorizing certain
sectors of employment, statutory notice periods may vary. Consequently,
with respect to sugar and agricultural workers, a daily paid worker is
entitled to one week’s notice of dismissal after two weeks’ continuous
employment. For workers in the road haulage industry, where employment
is not monthly paid and a worker has remained in continuous employment
for six months, he or she is entitled to 14 days’ notice. In the construction
industry, daily paid workers in continuous employment for at least six
months but less than three years are entitled to seven days’ notice.
Where an employer covered by sec. 39 of the LA intends
to reduce the workforce, he or she is required to give written notice to
the Minister of Labour, together with a statement of the reasons for the
reduction. The Minister must refer the matter to the Termination of Contracts
of Service Board (the Board), a tripartite body established under sec.
38 of the Labour Act, for consideration. The employer may not reduce
his or her workforce pending a decision of the board or before the lapse
of 120 days from the date of redundancy notice, whichever is later. Where
the employer reduces the workforce in breach of notice requirement or in
breach of the waiting period laid down for determination by the Board,
he or she must pay to the workers a sum equal to 120 days’ remuneration
together with a sum equal to six times the amount of statutory severance
allowance. A defence of good cause lies in relation to the latter breach.
The operational requirements of an undertaking will be
taken into account in assessing whether redundancy is justified and may
constitute a valid reason for dismissal. Where the Board finds that reduction
of the workforce is justified, it will give its approval to the terminations,
but the employer is required to pay severance allowance to workers made
redundant. Where the Board finds that the reduction in workforce is not
justified, it will order the employer to pay the workers intended to be
made redundant an amount equal to six times the severance allowance unless
they have been reinstated (sec. 39(4), LA).
Reductions in the workforce in the export processing zone
are not referred to the Termination of Contracts of Service Board. Consequently,
the employer in this sector has more freedom in relation to redundancies.
The Code of Practice (IRA) also urges employers to consult
with employees and trade unions and to seek to avoid redundancies by such
means as restrictions on recruitment, early retirement, reductions in overtime,
short-time work and retraining. Where redundancy is unavoidable, employers
should consider schemes for voluntary redundancy, transfer to another establishment
within the undertaking, a phased rundown of employment and offer to help
employees in finding other work in cooperation with the Ministry. However,
this rarely takes place.
Severance pay
Where a worker has been in continuous employment for a
period of one year or more and his or her employment is terminated, or
he or she retires on or after the age of 60, or retires voluntarily before
the age of 60 in accordance with special regulations under the IRA (sec.
96), he or she is entitled to a severance allowance. Payment of severance
is excluded under sec. 35 of the LA where:
- a
worker is dismissed for reasons of misconduct;
- the
employer dies and the worker is employed or offered employment by the
personal representative or heir of the deceased employer;
- the
worker is employed under a partnership, the partnership is dissolved
and he or she is re-employed by a member of the dissolved partnership or
a
new partnership;
- the
worker’s employment by a corporate body ceases on the dissolution of
that body and he or she is employed by another corporate body in accordance
with an enactment or a scheme of reconstruction after the dissolution;
or
- the
worker’s employment ceases on the disposal by his or her employer of
the goodwill, or of the whole or a substantial part of the business.
The sum of severance payment varies according to the following:
- for
one year’s employment, 15 days’ remuneration; and
- for
workers employed for more than one year, the sum above multiplied by
the number of years of continuous employment (sec. 36, LA).
Where contributions are payable in respect of a worker
under the National Pensions Act, the amount of severance allowance is reduced
to eight days per year of service. The severance payment sum may also be
reduced to take into account any pension, gratuity or provident fund initiated
by the employer.
Where the worker is employed on a specific task basis or
his or her work included any sum paid by way of commission, the amount
of severance pay should be computed in the manner best calculated to give
the rate at which the worker was being remunerated over a 12-month period.
Workers in the construction industry who have worked for
the same employer for at least six months and whose attendance has averaged
not less than 20 days per month during the first six months of employment
are entitled to compensation in the form of one day’s wages for each completed
month of service where employment is terminated for reasons other than
misconduct.
For workers in export processing zones, the IEA stipulates
that severance payment is payable to the amount of one week’s wages for
each year of service where there has been continuous service of more than
12 months but less than three years. Where an employee has been employed
continuously for more than three years, he or she is entitled to not less
than two weeks’ wages for each year of service. Where such a worker has
been dismissed for serious misconduct in a situation where the employer
could not in “good faith” be expected to adopt any other course, no severance
sum is payable.
Avenues for redress
A worker who believes that his or her employment has been
unjustifiably terminated may refer the matter to a labour officer of the
Government within seven days of being notified of his or her dismissal.
He or she is allowed the assistance of the trade union, if any, to present
his or her case to such an officer. An appeal from any decision of the
labour officer lies with the Industrial Court.
Where dismissal forms the basis of a collective dispute,
the proper avenue for redress is as provided under the IRA. The procedure
in this case is that the dispute must first be reported to the Minister
of Labour who will make proposals for settlement, or refer the parties
to the Industrial Relations Commission for investigation and conciliation,
or advise the parties to refer the dispute to the Permanent Arbitration
Tribunal for arbitration. The Minister may also, without consulting the
parties, forward the dispute to the Permanent Arbitration Tribunal for
compulsory arbitration (sec. 82, IRA).
Where the Industrial Court finds that dismissal was unjustified,
it orders that the worker be paid an amount equal to six times the amount
of severance allowance normally payable upon termination of employment.
The court also has discretion to order the employer to pay interest on
the severance payment sum (sec. 36(3), LA).[5] The Permanent Arbitration Tribunal also has jurisdiction to make an
award with respect to collective disputes arising from termination matters
but can, and often does, decline to exercise that jurisdiction.
Further information
[1] Note that consideration is being given
to amendment of this legislation.
[2] Although collective agreements are not
given force of law under statute, the Industrial Relations Court has
ruled that they are legally binding as “it was the intention of the legislature
to make such agreements binding in order to promote good industrial relations”
(Bolaky, Roy, Cunniah and Mauritian tripartite delegation: “The promotion
of collective bargaining and the protection of security of employment
in Mauritius”, in Collective bargaining and security of employment
in Africa: English-speaking countries, Labour-Management Series,
(Geneva, ILO, 1988), pp. 175 and 182). The court here was strongly influenced
by French jurisprudence on the issue.
[3] Under sec. 2 of the LA, a “share-worker
means a person who (a) is remunerated wholly or partly by a share in
the profits or gross earnings of the work done by him; and (b) is not
an owner of the main equipment used in the work he does”.
[4] Note that statistics show that the majority
of work stoppages due to trade disputes occur in the export processing
sector, and that more than half of these disputes relate to termination
or redundancy matters (Bolaky et al., op. cit., p. 183).
[5] Originally the law provided for both
reinstatement and compensation in the form of discretionary damages,
but these were found to be unworkable, hence the current formula.
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