Section 49: Gratuity on retirement

49. Gratuity on retirement (1) An employer shall pay a gratuity to a worker who has been in continuous employment with him for a period of 12 months or more where— (a) the worker, on or after attaining the age of 60, retires voluntarily; (b) the worker who has been in continuous employment with the same employer for not less than 10 years retires before the age of 60 on grounds of permanent incapacity to perform his work and such incapacity is duly certified by a government medical practitioner; or (c) the worker, on or after attaining the retirement age, retires at the request of the employer. [Issue 5] E9B – 38 Revised Laws of Mauritius (1A) (a) Where a worker who has attained the age of 60 remains in continuous employment with the same employer up to the retirement age, the worker and the employer may agree on an advance payment of the total gratuity payable at the retirement age, amounting to the gratuity payable at the age of 60 calculated in accordance with subsection (2). (b) Advance payment of the gratuity, where agreed upon under paragraph (a), shall be effected upon the worker attaining the age of 60. (1B) Notwithstanding any agreement or any provision to the contrary in any other enactment, an employer shall not require a worker to retire before the retirement age. (2) The gratuity referred to in subsection (1) shall be paid in a lump sum and shall be calculated— (a) in the case of a worker, other than a part-time worker, on the basis of— (i) 15 days’ remuneration for every period of 12 months’ continuous employment; and (ii) a sum equal to one twelfth of the sum referred to in subparagraph (i) multiplied by the number of months during which the worker has remained in the continuous employment of the employer, for every period less than 12 months; (b) in the case of a part-time worker, on the basis of the following formula— N/H x amount of gratuity payable under subsection (a), where “N” means the number of days of work performed by the parttime worker in a week and “H” means the number of days of work performed by a comparable full-time worker in a week. (3) An employer may deduct from any gratuity payable under subsection (2) and section 49A— (a) half the amount of any gratuity due at the retirement age or the age of 60 or at death from any fund or scheme, computed by reference only to the employer’s share of contributions; (b) 5 times the amount of any annual pension granted at the retirement age or the age of 60 or at death from any fund or scheme, computed by reference only to the employer’s share of contributions; (c) any other gratuity granted at the retirement age or the age of 60 or at death by the employer; (d) 10 times the amount of any other annual pension granted at the retirement age or the age of 60 or at death by the employer. (4) In this section, “fund or scheme” means any pension or provident fund or scheme set up by the employer for the benefit of the worker. (5) For the purposes of this section— (a) a day’s remuneration shall be— (i) the remuneration drawn by the worker in respect of his last normal working day other than a public holiday; or E9B – 39 [Issue 5] Employment Rights Act (ii) an amount computed in the manner as is best calculated to give the daily rate at which the worker was remunerated over a period of 12 months prior to the termination of his agreement, inclusive of payment for extra work, productivity bonus, attendance bonus, commission in return for services and any other regular payment, tion shall be— (i) the remuneration drawn by the worker in respect of his last normal working day other than a public holiday; or E9B – 39 [Issue 5] Employment Rights Act (ii) an amount computed in the manner as is best calculated to give the daily rate at which the worker was remunerated over a period of 12 months prior to the termination of his agreement, inclusive of payment for extra work, productivity bonus, attendance bonus, commission in return for services and any other regular payment, whichever is the higher; and (b) in order to determine a day’s remuneration— (i) a month shall be deemed to consist of 26 days; (ii) a fortnight shall be deemed to consist of 12 days; and (iii) a week shall be deemed to consist of 6 days. (6) Where a claim for gratuity on retirement has been made, the Court may, where it thinks fit and whether or not a claim to that effect has been made, order an employer to pay interest at a rate not exceeding 12 per cent per annum on the amount of gratuity payable from the date of retirement to the date of payment. [S. 49 amended by s. 27 of Act 6 of 2013 w.e.f. 2 February 2009.]