Section 39B: Reduction of workforce

39B. Reduction of workforce (1) In this section, “employer” means an employer of not less than 20 workers. (2) An employer who intends to reduce the number of workers in his employment either temporarily or permanently or close down his enterprise shall give written notice of his intention to the Permanent Secretary, together with a statement of the reasons for the reduction of workforce or closing down, at least 30 days before the reduction or closing down, as the case may be. E9B – 27 [Issue 5] Employment Rights Act (3) Notwithstanding this section, an employer shall not reduce the number of workers in his employment either temporarily or permanently, or close down his enterprise unless he has— (a) in consultation with the trade union recognised under section 38 of the Employment Relations Act, explored the possibility of avoiding the reduction of workforce or closing down by means of— (i) restrictions on recruitment; (ii) retirement of workers who are beyond the retirement age; (iii) reduction in overtime; (iv) shorter working hours to cover temporary fluctuations in manpower needs; or (v) providing training for other work within the same enterprise; (b) where redundancy has become inevitable— (i) established the list of workers who are to be made redundant and the order of discharge on the basis of the principle of last in first out; and (ii) given the written notice required under subsection (2). (4) Where an employer reduces his workforce or closes down his enterprise, the employer and the worker may agree on the payment of compensation by way of a settlement. (5) (a) Where there has not been any settlement for payment of compensation, a worker, as defined in section 40, may— (i) join the Workfare Programme in accordance with Part IX; or (ii) register a complaint with the Permanent Secretary. (b) (i) A worker shall register his complaint with the Permanent Secretary within 14 days of the termination of his employment. (ii) The Permanent Secretary may, on reasonable cause shown, extend the time limit specified in subparagraph (i). (c) The Permanent Secretary shall enquire into the complaint with a view to promoting a settlement between the parties. (6) Where no settlement is reached under subsection (5), the Permanent Secretary— (a) shall, subject to subsection (7) (a), refer the matter to the Tribunal, if he is of the opinion that the worker has a bona fide case and thereupon the worker as defined in section 40 shall be entitled to join the Workfare Programme; (b) may, subject to subsection (7) (b), not refer the matter to the Tribunal, if he is of the opinion that the worker does not have a bona fide case and shall advise the worker as defined in section 40 that he may apply for admission to the Workfare Programme. (7) (a) Where a worker referred to in subsection (6) (a) institutes proceedings before the Court to claim severance allowance under section 46 (5), the Permanent Secretary shall not refer his case to the Tribunal but the [Issue 5] E9B – 28 Revised Laws of Mauritius worker shall be entitled to be admitted to the Workfare Programme if he is a worker as defined in section 40. (b) Where a worker referred to in subsection (6) (b) institutes proceedings on his own before the Court and the Court gives judgment in favour of the worker under section 46 (5), that worker shall, as from the date of judgment, be eligible to be admitted to the Workfare Programme, if he is a worker as defined in section 40. (8) (a) Where a matter is 5] E9B – 28 Revised Laws of Mauritius worker shall be entitled to be admitted to the Workfare Programme if he is a worker as defined in section 40. (b) Where a worker referred to in subsection (6) (b) institutes proceedings on his own before the Court and the Court gives judgment in favour of the worker under section 46 (5), that worker shall, as from the date of judgment, be eligible to be admitted to the Workfare Programme, if he is a worker as defined in section 40. (8) (a) Where a matter is referred to the Tribunal by the Permanent Secretary, the Tribunal shall proceed to hear the case and give its award within 30 days of the date of the referral. (b) The Tribunal may, in exceptional circumstances, extend the delay specified in paragraph (a) for another period of 30 days. (9) Where the Tribunal finds that the reduction of workforce is unjustified, it may, with the consent of the worker, order that that worker— (a) be reinstated in his former employment with payment of remuneration from the date of the termination of his employment to the date of his reinstatement; or (b) be paid severance allowance in accordance with section 46 (5). (10) Where the Tribunal finds that the closing down is unjustified, it may order the employer to pay to the worker severance allowance in accordance with section 46 (5). (11) Where an employer reduces the number of workers in his employment either temporarily or permanently, or closes down his enterprise, in breach of subsections (2) and (3), he shall, unless reasonable cause is shown, pay to the worker whose employment is terminated a sum equal to 30 days’ remuneration in lieu of notice together with severance allowance, wherever applicable, as specified in section 46 (5). (12) (a) Where a settlement is reached under subsection (4) or (5) (c)— (i) the worker shall not be entitled to join the Workfare Programme under section 41; and (ii) the employer shall not be required to pay the recycling fee under section 47 (1). (b) Where there has been no settlement under subsections (4) and (5) or reinstatement under subsection (9), the employer shall pay the recycling fee specified in section 47. [S. 39B inserted by s. 19 of Act 6 of 2013 w.e.f. 11 June 2013.] PART IX – WORKFARE PROGRAMME