Workers Rights Act and Contents (new agreements)

A “worker” within the ambit of the Workers’ Rights Act 2019 now includes a person who is
classified as a service provided but whom personally performs the same or similar work of a
comparable worker employed in the same enterprise or industry. This will also include a person
irrespective of whether or not he holds a business registration number, but it will not include a
consultant.

Allowance payable where work is performed on a day on which a cyclone warning class 3
or 4 is in force

 Welcome clarifications have been made to the fact that an allowance equal to three times
the basic rate per hour is payable to a worker who is required to work, irrespective of
whether from home or at his workplace when a cyclone warning class 3 or 4 is in force.

Free meal or meal allowance

 The employer must provide for an adequate free meal or pay a meal allowance of Mur
85/day where an employee is required to perform a normal day’s work of at least 10
hours.

Leaves

 The ceiling of a maximum of 90 days for accumulating outstanding sick leave for
workers earning a monthly basic salary equal or less than MUR 50,000 has been removed

 Leaves to care for a sick child have been introduced in the legislation. A worker earning a
monthly basic salary equal or less than MUR 50,000 is allowed to take up to 10 days’
paid leave during every period of 12 consecutive months to be calculated at his option
against his annual, sick or vacation leaves

Termination of employment

 It is now strictly prohibited to terminate employment on the basis of a worker’s poor

performance if the worker’s performance is being affected as a result of an injury
sustained out of and in the course of work.

 The opportunity to answer a charge in relation to alleged misconduct, misconduct subject

to criminal proceedings or poor performance is not confined to a disciplinary hearing
only. It has been clarified that the explanation can be afforded in writing, in an oral
hearing following written explanations being obtained.
  Termination can follow no later than seven days after the worker has answered the charge
in writing, in an oral hearing, or in an oral hearing following his written explanations.

Redundancy

 Where the Redundancy Board finds that the reasons for the notification for reduction or
closure are unjustified, it shall order the employer not to reduce his workforce or close his
enterprise. In case of any breach of such an order, the employee may apply to
Redundancy Board for reinstatement or payment of severance allowance.

 Where a settlement is reached following the conciliation or mediation service provided

by the Redundancy Board, such a settlement can now be enforced in the same manner as
an order of the Industrial Court.

Portable Retirement Gratuity Fund

 Employers are no longer exempted from contribution merely because they contribute
to a retirement plan with the private pension scheme, unless a written certificate is
obtained by the actuary of the private pension scheme certifying that the share of the
employer’s rate of contribution to the private pension scheme is not less than 4.5% of
the monthly remuneration of employee. The actuarial certificate must be submitted to
the Ministry of Labour.

 Failure to submit the above mentioned actuarial certificate entails a liability on

conviction to a fine ranging from MUR 50,000 to MUR 150,000 and to imprisonment
for a term not exceeding 12 months.

 The provisions for the contribution of the past services have been clarified.
Contributions for past service must be paid to the Mauritius Revenue Authority one
month after date of termination or resignation as follows:

 Where employment is terminated by the employer, as from the date of

commencement of employment; or
 In case of resignation, as from 1 January 2020.
Trade union matters

 The right to access the workplace by any officer or negotiator of a recognized trade union
is extended for employment is issues of not only its members, but also of workers
forming part of the same bargaining unit for unit has been granted recognition

 Upon request from the recognized trade union, the employer must now provide all
information regarding wages and conditions of employment of workers within its
bargaining unit.

 The recommendation of a Salary Commissioner as to the wages or other terms and

conditions of employment is not subject to bargaining with the recognized trade union
outright. The recommendation is only subject to collective bargaining if it has been
approved by the employer.

Statutory contributions

 The National Savings Fund, HRDC Training Levy and Contribution Sociale Generalisee
are non-contributable for non-citizen employees who are not resident for tax purposes or
who hold premium visa.

WORKERS’ RIGHTS ACT (Additional Remuneration) (2023)

SECTIONS 33 AND 124 OF WORKERS’ RIGHTS ACT 2019

3.

(1) Every employer shall, in accordance with section 33 of the Act, pay an additional
remuneration to every worker in his employment as from 1 January 2023.

(2) Subject to section 33(3) of the Act, the additional remuneration shall, in the relation
to

a) a full-time worker, irrespective of the amount of basic wage or salary earned by

the worker be 1,000 rupees per month;
b) a part-time worker who earns a monthly basic wage or salary-
i. not exceeding 10,000 rupees, be 10 per cent of the monthly basic wage or
salary, rounded up to the next rupee;
 ii. exceeding 10,000 rupees, be 1,000 rupees per month.

(3) The additional remuneration under paragraph (2) payable to a worker, other than
migrant worker, employed on a full-time basis in an export enterprise and who earns
a monthly wage or salary not exceeding 51,635 rupees, shall, for the period starting
on 1 January 2023 and ending on 31 December 2023, consist of

(a) 860 rupees payable by the employer; and

(b) 140 rupees payable in accordance with regulation 3 of the Workers’ Rights
(Payment of Special Allowance 2023) Regulations 2023.
(c) For the purpose of determining the appropriate additional remuneration payable to
a worker who is remunerated otherwise than on a monthly basis, a fortnight or a
week shall be deemed to consist of such number of days as may be prescribed in
any other enactment or agreed upon in relation to that worker.

5.

(1) Subject to subparagraph (2), where a worker is remunerated on a piece rate basis at the
rates prescribed in-

a) the Banks Fishermen and Frigo-workers (Remuneration) Regulations 2019;

b) the Cinema Employees (Remuneration) Regulations 2019;
c) the Tea Industry Workers (Remuneration) Regulations 2019; or
d) Any other enactment,

Such rates shall, as from 1 January 2023, be increased by 10 per cent, but the amount paid as
additional remuneration shall not exceed 1,000 rupees per month.

(2) The piece rates prescribed in the enactments specified in subparagraph (1) shall include
any previous additional remuneration granted under any other enactment.

6. These regulations shall be deemed to have come into operation on 1 January 2023.
 JUDGMENT

Seetohul (Appellant) v Omni Projects Ltd

(Respondent)
From the Supreme Court of Mauritius
Before
Lady Hale
Lord Wilson
Lord Hughes
JUDGMENT GIVEN ON
3 February 2015
Heard on 15 January 2015

1. Dr Seetohul (the plaintiff) was employed as an Education Officer by Omni Projects Ltd (the
defendants). He brought a claim against the defendants in the Industrial Court, alleging that he
had been unlawfully dismissed. He claimed three months’ remuneration (about 49000 rupees),
coupled with severance allowance at the punitive rate of six times the norm which is prescribed
in certain circumstances by statute (about 470,000 rupees). He succeeded before the Industrial
Court, but failed in the Supreme Court, which allowed the defendants’ appeal and reversed the
first instance decision. The plaintiff appeals further to the Board. 2. The plaintiff wished to be
absent from work for about a fortnight in September 2003 (from about 15/16th to 25/26th) to
attend an international conference connected with a separate position which he held
independently of his employment. He needed the consent of the defendants, who were entitled,
as he accepted, either to agree or to refuse. The defendants were unable to spare him, given the
time of the academic year, the time he had already had away from work, and the number of
applications for leave which he had made - one had been for the much longer period of 1
September to 27 October 2003. The Industrial Court found that the plaintiff knew full well as
early as July 2003 that his application for leave to attend the conference had been refused, but
that when the time came he left anyway. It also found that more or less as he left on Friday 12
September, the plaintiff handed in to the defendants a letter reiterating his request for leave,
saying that he had had no reply, and announcing that he would take silence for approval. On the
findings of the Industrial Court, that letter was written when he knew his application had been
refused. 3. On Tuesday 23 September the defendant employers wrote to the plaintiff a letter
which is at the centre of the helpful submissions made on his behalf before the Board by Mr
Reesaul. It said this: “It is viewed with concern that you have not been attending duty since
Monday 15 September 2003 without any valid reason whatsoever. You are therefore required to
report to your work forthwith, failing which your absence will be construed as an abandonment
of your post and the management reserves its right to take whatever action which it may be
advised against you.” Page 24. That letter would, it is agreed, have been delivered in the ordinary
course of post on Wednesday 24 September. The plaintiff was at that stage out of the country. He
returned on Thursday 25 September, apparently late in the evening. The following day he did not
report for work in the morning, but he did go in to the College at about 2 pm, too late for any
work that day. He met the manager of the defendants, and handed him a letter in which he said
that he would be in for work on Monday (29 September). The manager told him that the
defendants would consider the position and that he should report on Monday for a decision.
When he did so on the Monday he was dismissed. 5. Employment law in Mauritius is based upon
French law, but with statutory modifications. At the time of these events, the statutory law was
contained in the Labour Act 1975, as amended. Two sections of that Act are relevant. Section 30
deals with breach of an employment contract and is headed “Termination of employment”. It
provides by section 30(4): “(4) An agreement shall be broken - (a) by the worker, where he is
absent from work, exclusive of any day on which the employer is not bound to provide work,
without good and sufficient cause for more than two consecutive working days; (b) by the
employer, where he fails to pay the worker the remuneration due under the agreement.” Section
32 deals with unjustified termination of employment. It provides, first, for the machinery and
procedure of dismissal for misconduct. Next, it provides by subsection (3) for a worker who
asserts that he has been unjustifiably dismissed to have a right of complaint to the court. Then,
by subsections (4) and (5), it provides as follows: “(4) Where a matter is referred to an officer or
to the Court under subsection (3), the employer may not set up as a defence that the worker has
abandoned his employment unless he proves that the worker has, after having been given written
notice - (a) by post with advice of delivery; or (b) by service at the residence of the worker, Page
3 requiring him to resume his employment, failed to do so within a time specified in the notice
which shall not be less than 24 hours from the receipt of the notice. (5) Subsection (4) shall not
apply in relation to a worker who has notified the termination of his employment in writing.” 6.
The defendants had responded to the plaintiff’s court claim by saying that the plaintiff had
“abandoned his work and unilaterally put an end to his employment before 29 September”. The
Industrial Court treated that as a plea that he had abandoned his job and treated the letter from
the defendants of 23 September, quoted at para 3 above, as a notice under section 32(4). It went
on to hold that the plaintiff’s reporting to the College at 2 pm on Friday 26 September was within
24 hours of his actual receipt of this letter. On that basis, it allowed the plaintiff’s claim. 7. The
Supreme Court allowed the defendants’ appeal substantially on the basis of its earlier, and
established, decision in Mauritius Agricultural & Industrial Co Ltd v Permanent Secretary,
Minister of Labour & Social Security on behalf of Auckloo [1974] MR 34 (“Auckloo”). That
case had been decided on earlier statutory provisions but there were material similarities with
sections 30(4) and 32(4) of the Labour Act 1975. The first provision considered, section 6(5) of
the Employment and Labour Ordinance, had provided that an employee who was absent through
illness but did not notify his employer of his illness within five days, was deemed to have broken
his contract. The second provision, section 7(3) of the Termination of Contracts of Service
Ordinance, was in terms similar to section 32(4) here under consideration. The employee in
Auckloo had been absent for fifteen days before he gave notice of his illness to his employers,
and they refused to continue his employment. The Supreme Court held that the employers were
not relying on the worker’s abandonment, but rather on his having brought his employment to an
end by the kind of breach expressly dealt with by section 6(5) - in other words a repudiatory
breach. The court found that section 6(5) was a statutory equivalent of French case-law on the
subject of unexplained absence amounting to a repudiatory breach. Having pointed out that the
two different statutory provisions needed to be reconciled, the court there said: “In our view, a
distinction must be drawn between abandonment of work and absence from work. Absence is a
mere fact independent of any mental element. Abandonment, on the contrary, implies a specific
intent - viz the intent of the worker not to resume work and to treat the agreement as dead. On
such a view, there is no conflict between the two enactments. To plead Page 4 abandonment of
work implies saying two things: first, the worker was absent from work, and second, he intended
not to resume work. The effect of section 7(3) is that the employer will not be allowed to prove
that specific intent unless he has first taken steps to remove any possible controversy – viz by
calling on the worker to resume work. But section 7(3) in no way debars the employer from
proving the mere fact of absence from work: he may do so if, for instance, it is relevant to a
defence based on section 6(5). We hold that in this case the defence was not abandonment of
work, but absence from work coupled with a failure to notify illness.” 8. For the plaintiff, Mr
Reesaul’s contention is that this drives a coach and four through the statutory requirements of
section 32(4). Says Mr Reesaul, abandonment consists of absence plus intention not to return and
this calls for the statutory safeguard under section 32(4) of an ultimatum. It cannot be right, he
submits, that mere absence, without the added ingredient of intention not to return, should be
immune from the same statutory safeguard. 9. In the Board’s view, however, the distinction
made in Auckloo is well founded in the statutory provisions, which must, as the Supreme Court
held, be reconciled one with the other. Section 30(4) is concerned with a repudiatory breach, that
is to say one which brings the contract to an end, whether the employee wishes to do so or not.
Conversely, section 32(4) is concerned with an employee who deliberately abandons his job,
subjectively intending to do so. There may be an overlap in some cases between the two
situations, but they are not the same. An employee may well commit a repudiatory breach by
way of unauthorised absence for several days but nevertheless hope that he will get away with it
and remain in his employment - indeed that seems to have been the situation of the present
plaintiff. Nor is it correct that abandonment is necessarily absence coupled with intention not to
return. That is only one form of abandonment, which could equally involve no absence at all, for
example where an employee denounces his job in the course of a heated argument with his
employer. That there should be a requirement for a statutory safeguard of a written ultimatum to
the employee in such a case makes perfectly good sense, but it does not follow that the statute
imposes that requirement also in the case of an employee who commits a repudiatory breach, and
it does not. 10. Mr Reesaul sought to distinguish Auckloo on the basis that it involved not only
absence but a failure to give notice of illness. It is true that the particular facts of that case
involved a repudiatory breach by way of failure to give notice of illness, but that is because those
were the terms of the breach provision there under consideration, section 6(5). But the principle
which underlies Auckloo applies equally to the slightly different breach provision of section
30(4). Page 5 11. Since the time of this dispute, the statutory labour law has been altered by
Parliament. The Board was told that the rule in section 30(4) treating more than two days’
unjustified absence as a repudiatory breach was first modified to apply only to a second or later
absence of this description, and then removed altogether, so that it is not present in the current
Employment Rights Act 2008 as amended in 2013. That, however, only demonstrates that the
law prior to these adjustments, was as declared by the Supreme Court. 12. Next, Mr Reesaul
submitted that the letter of 23 September (para 3 above) amounted to an offer to re-engage the
plaintiff, which he accepted by presenting himself at work at 2 pm on Friday 26th . In
consequence, he submitted, any previous breach was spent. The Board does not agree that the
letter can bear this construction, especially given the final clause under which the defendants
reserved their right to deal with the plaintiff in any manner advised; that warning is inconsistent
with an offer to re-engage. In any event, even if the letter could bear this construction, it would
require acceptance according to its terms, that is to say by the plaintiff presenting himself
forthwith for work. On any view he did not do so; rather, he waited until late in the college day
on Friday 26th to arrive and then did no more than announce that he would come in on Monday.
Even if, as Mr Reesaul suggested, the letter could be read as requiring attendance as soon as
reasonably practicable, the plaintiff did not so attend; that he said that he was tired after his flight
did not make it impracticable to attend earlier. 13. For these reasons, the Board concludes that
there is no error in the conclusion of the Supreme Court. It might have added that even if the
letter of 23 September was to be regarded as an election to proceed under the provisions of
section 32(4), and as giving the plaintiff 24 hours to present himself, starting with receipt in
ordinary course of post, that period elapsed well before 2 pm on Friday 26th . 14. The Board is
most grateful to Mr Reesaul for undertaking this case at short notice and for presenting every
argument which could properly be put on the plaintiff’s behalf. It follows, however, that despite
his arguments, this appeal must be dismissed.
In the case of Seetohul v Omni Projects Ltd 2015 UKPC 5,an interesting and more recent case
that went up to the Privy Council whereby an employee claimed to have been unlawfully
dismissed and claimed remuneration and severance allowance six times the norm. He succeeded
before the Industrial Court but failed in the Supreme Court. The facts are that the employee
wished to be absent from work for about a fortnight to attend an international conference
unrelated to his current employment. He attended without obtaining the consent of his employer,
and well aware of the refusal of his application. The employee reiterated his request prior to his
departure stating that he would take silence for approval. The employer wrote to the employee to
inform of their concern for his non-attendance of duty without any valid reason and to report to
work, failing which his absence will be construed as an abandonment of his post. The letter was
sent by ordinary post and reached the employee after he left. Upon employee‘s return he remitted
a letter on the next day (Friday) to the manager indicating that he would resume on Monday. The
Manager acknowledges receipt but informed that he should report for a decision to him. He was
informed on Monday that he was dismissed. Being absent from work without a good and
sufficient cause. The process of dismissal for misconduct, and distinction between ―absence
from work and abandonment of work were evoked. The court brought a new element to the
concept of abandonment of work‘stating that it is not necessarily absence coupled with intention
not to return. Abandonment can occur without absence at all. The dismissed the appeal on basis
that there was repudiatory breach by way of unauthorised absence for several days and there was
no lapse in the process.