Section 38: Protection against termination of agreement

38. Protection against termination of agreement (1) An agreement shall not be terminated by an employer by reason of— (a) a worker’s race, colour, caste, national extraction, social origin, pregnancy, religion, political opinion, sex, sexual orientation, HIV status, marital status or family responsibilities; (b) a worker’s absence from work during maternity leave; (c) a worker’s temporary absence from work because of injury or sickness duly notified to the employer and certified by a medical practitioner; continued on page E9B – 25 E9B – 24 (1) [Issue 9] ment shall not be terminated by an employer by reason of— (a) a worker’s race, colour, caste, national extraction, social origin, pregnancy, religion, political opinion, sex, sexual orientation, HIV status, marital status or family responsibilities; (b) a worker’s absence from work during maternity leave; (c) a worker’s temporary absence from work because of injury or sickness duly notified to the employer and certified by a medical practitioner; continued on page E9B – 25 E9B – 24 (1) [Issue 9] Revised Laws of Mauritius (d) a worker becoming or being a member of a trade union, seeking or holding trade union office, or participating in trade union activities outside working hours or, with the consent of the employer, within working hours; (e) the worker’s filing in good faith of a complaint, or participating in proceedings against an employer involving alleged breach of any terms and conditions of employment; (f) a worker’s exercise of any of the rights provided for in this Act or other enactment, or in such agreement, or collective agreement or award. (2) No employer shall terminate a worker’s agreement— (a) for reasons related to the worker’s misconduct, unless— (i) he cannot in good faith take any other course of action; (ii) the worker has been afforded an opportunity to answer any charge made against him in relation to his misconduct; (iii) he has within, 10 days of the day on which he becomes aware of the misconduct, notified the worker of the charge made against the worker; (iv) the worker has been given at least 7 days’ notice to answer any charge made against him; and (v) the termination is effected not later than 7 days after the worker has answered the charge made against him, or where the charge is subject of an oral hearing, after the completion of such hearing; (b) unless, where an alleged misconduct is the subject of criminal proceedings— (i) the employer has afforded the worker an opportunity to answer any charge made against him in relation to his misconduct; (ii) he has, within 10 days of the day on which he becomes aware of the conviction of the worker by the court of first instance, notified the worker of the charge made against the worker; (iii) the worker has been given at least 7 days’ notice to answer the charge made against him; and (iv) the termination is effected not later than 7 days after the worker has answered the charge made against him, or where the charge is subject of an oral hearing, after the completion of such hearing; (c) in cases not covered by paragraphs (a) and (b), unless the termination is effected within 7 days from the day the employer becomes aware of the misconduct. (3) No employer shall terminate a worker’s agreement for reasons related to the worker’s poor performance, unless— (a) he cannot in good faith take any other course of action; E9B – 25 [Issue 5] Employment Rights Act (b) the worker has been afforded an opportunity to answer any charge made against him related to his alleged poor performance; (c) the worker has been given at least 7 days’ notice to answer any charge made against him; and (d) the termination is effected not later than 7 days after the worker has answered the charge made against him, or where the charge is subject of an oral hearing, after the completion of such hearing. (4) Where the opportunity afforded to a worker to answer any charge made against him under subsection (2) (a) (ii), (2) (b) (i) or (3) (b) is the subject of an oral hearing, he may have the assistance of— (a) a representative of his trade union or his legal representative, or both; or (b) an officer, where he is not assisted as specified in paragraph (a). (4A) The oral hearing referred to in subsection (4) shall be presided by a person who has not been involved in the investigation and who is able to make an independent decision. (4B) The worker and the employer may, during the oral hearing specified in subsection (4), negotiate for the payment of compensation with a view to promoting a settlement. (4C) Where a settlement is reached under subsection (4B)— (a) the worker shall not be entitled to join the Workfare Programme; and (b) the employer shall not be required to pay the recycling fee under section 47 (1). (5) Any written statement acknowledging guilt by a worker obtained at the instance of his employer shall not be admissible in evidence before any authority or any Court. (6) (a) A notification of a charge, a notice to answer the charge and a notification of a termination of agreement, under subsections (2) and (3), to a worker shall be issued by— (i) causing the notification or notice to be handed over to the worker in person; or (ii) sending the notification or notice by registered post to the usual or last known place of residence of the worker. (b) Where a worker— (i) refuses to accept delivery of the notification or notice; or (ii) fails to take delivery of the notification or notice after being notified that it awaits him at a specified post office, the notification or notice shall be deemed to have been duly served on the worker on the day he refuses to accept delivery thereof or is notified that it awaits him at the specified post office. [Issue 5] E9B – 26 Revised Laws of Mauritius (7) Where an employer suspends a worker pending the outcome of disciplinary proceedings against the worker on account of the worker’s misconduct or poor performance— (a) any period of such suspension shall be on full pay; (b) any extension to the delay provided for under subsection (2) (a) (iv), (2) (b) (iii) or (3) (c) made by or on behalf of the worker, shall be on full pay for a period not exceeding 10 days, where the worker is found not guilty of the charge made against him. (8) No employer shall suspend a worker unless he has informed the worker of the reasons for his suspension. (9) Any suspension without pay as disciplinary action following a hearing shall not exceed 4 working days. [S. 38 amended by s. 18 of Act 6 of 2013 w.e.f. 11 June 2013.]