For nearly a decade, the Mauritian legislator had been giving deep thoughts about amending the existing provisions of the labour law in Mauritius. The previous Labour Law Act 1975 had been replaced by the Employment Rights Act 2008 which provided for more extensive rights of workers than those which were previously in force. However, after more than a decade of litigation before the industrial court, it made sense to the legislator to provide for a legislative framework which would promote social dialogue and develop collective bargaining. According to many, the Employment Rights Act 2008 did not stand the test of time. Hence, the need for the revalorized, more extensive Workers’ Rights Act 2019 (the “Workers’ Rights Act”).
Where legal provisions were lacking, the judiciary has sought to bring some clarity regarding the status of worker, the conduct of disciplinary hearings and so forth. Therefore, the new Act catered for these points and provision accordingly. Amidst the several amendments brought by this new piece of legislation was nearly an overhaul of the way disciplinary hearings are conducted, and the ensuing mechanism governing the rights of the employee on the hearing.
What are the new changes brought by the Workers’ Rights Act?
The need to provide particulars at the request of the employee
The law now provides that where an employer decides to hold a disciplinary hearing, he shall, at the request of the worker, provide him with such information or documents as may be relevant to the charge.
The practical difficulty with this is that although it is stipulated that the employer should provide information or documents that may be relevant to the charge, it does not prevent the employer from relying on documents and information which have not been communicated to the employee. Hence, it is for the legal advisor to properly prepare the case of his client prior to representing him on the disciplinary hearing.
The need to conclude the DC hearing within 30 days of its commencement
The Workers’ Rights Act provides that the disciplinary hearing initiated against a worker shall be completed within 30 days of the date of the first oral hearing. The legislator has nevertheless provided for 3 situations where this delay may be varied which are:
- where owing to the illness or death of any of the parties or witnesses; or
- where there is a reconstitution of the disciplinary panel or change in the legal or other representatives of the parties; or
- where the delay is extended by agreement of the parties.
The need to provide for the suspension of the employee in writing
It is now a statutory obligation to provide for the suspension of the employee in writing pending the disciplinary hearing or the conduct of any internal enquiry. Noncompliance with this provision is likely to render any dismissal of the employee unjustified. It has come to light after the advent of the Workers’ Rights Act that employers have often neglected this new provision of the law, still resorting to the earlier verbal communication of suspension.
The discretion to promote settlement
In an attempt to give way to negotiation, the legislator has now provided that the worker and the employer may, during disciplinary hearing, negotiate for the payment of a compensation to promote a settlement.
No need for an independent Chairperson
What appears to be relaxing the rules on the disciplinary hearing is that the Workers’ Rights Act no longer provides for the disciplinary hearing to be chaired by an independent and impartial Chairperson. However, it is still prudent to err on the side of caution by having the hearing presided by an impartial Chairperson since the rules of natural justice still need to be observed at the disciplinary hearing.
The need to provide written minutes of proceedings
Finally, one of the main changes brought to the mechanism of disciplinary hearings under the new Workers’ Rights Act is the obligation of an employer to give a copy of the minutes of proceedings of the disciplinary hearing, within 7 days of the receipt of a written request to do so, to the worker who has appeared before a disciplinary hearing and to the person assisting the worker in the disciplinary hearing.
Mauritius has undoubtedly lived, like many other countries, a constant re-evaluation of its labour law provisions. Under the new regime, the rights of the employee on the disciplinary hearing appear to be more transparent. The employee’s legal representatives have more discretion in the way they wish to protect their client’s interests, and the judiciary is better prepared for litigation involving conflicting views.