Coronavirus - Overview of the impacts of the lockdown in Mauritius Part II - Employment law considerations

• Mauritius

• Coronavirus
• Coronavirus - Country overview
• Coronavirus - Workforce issues

31-03-2020

Employment law considerations

Whilst considering the health and safety recommendations implemented by the Government, the Occupational Safety and Health Act 2005 (OSHA), also establishes legal principles guiding employers and employees in dealing with the Coronavirus and its impact in the workplace.

1. How is the Curfew Period considered under employment law?

The current situation is clearly unprecedented and whilst it is definitely not a normal working day, the Curfew Period does not amount to public holidays under the Public Holidays Act 1968 (PHA 1968) which defines “public holidays” as meaning Sundays and any days listed in the Schedules to the PHA 1968.

As indicated above, employers who qualify as “essential services” and have obtained the Permit can request their employees to attend work.

For the remaining employers, work from home arrangements can be implemented. Employers unable to implement such arrangements must nevertheless pay a full day’s remuneration under section 32(1) (a)(i) of the Workers’ Rights Act 2019 (WRA 2019).

2. Can employees be offered unpaid leave and on what conditions?

Any unpaid leave will require the consent of the employees. Another alternative would be for the employee to agree to take his paid leave entitlement during the Curfew Period. According to the WRA 2019, an employer is able to fix the 11 paid annual leaves of an employee earning up to MUR 50,000 as basic monthly salary, if the employer and employer are unable to agree when the statutory 22 annual leaves will be taken.

The employer must also inform the employee that his continuous service will still be accounted for, irrespective of whether he goes on unpaid leave during the Curfew Period.

The leave entitlement of employees earning more than MUR 50,000 as basic monthly salary depends on the terms and conditions of the employment agreement as they are not bound by the annual leave entitlement in the WRA 2019.

3. Can part time work be offered to employees during the Curfew Period?

The WRA 2019 provides that an employer may require an employee (irrespective of his salary threshold) to work for a shorter time than that specified in his agreement and at a reduced remuneration, subject to the approval of the supervising officer of the Ministry of Labour. Furthermore, an employee who is required to work for a shorter time and at a lower remuneration also has the right to accept work from another employer during the time that no work is provided to him. In light of current situation, it is unlikely that the officers of the Ministry of Labour can grant their approval to such agreement as the Labour Offices are closed.

The employer may consider implementing a reduction of remuneration, provided that (a) the employees are duly notified, (b) discussions are held with the employees or their representative and (c) the employees agree that such reduction in remuneration is an alternative measure to a reduction of workforce.

4. Can employees work from home during the Curfew Period?

The Ministry of Finance, Economic Planning and Development in its “Communiqué for Economic Operator” of 20 March 2020 encouraged employers to implement “Work-from-Home” to ensure business continuity.

5. Removing or suspending side benefits due to the Curfew Period

Removing or suspending benefits which are attached to an employee’s position (for e.g. pensions, medical benefits) requires the employee’s express consent. Other benefits provided for an employee to carry out or execute his work (e.g. meal allowances) may be suspended if the employee is not required to work.

6. Can employees be laid off due to the lockdown?

The WRA 2019 does not provide for temporary laying off of employees and caters for two scenarios when laying off employees.

For employers with an annual turnover of at least MUR 25 million or with more than 15 employees

Negotiations must take place either by (i) exploring together with the employees’ representatives alternatives to closing down, (ii) considering alternatives to a reduction of workforce or (iii) payment of compensation by way of settlement.

If no agreement is reached and negotiations do not materialise, the employer must notify in writing, at least 30 days before the intended closure, the Redundancy Board set up under section 73 of the WRA 2019, together with a statement explaining the cause for closure.

Within 30 days from receiving the notification from the employer (or such longer period as agreed), the Redundancy Board will give an order either justifying the termination of employment of the employees or not. If the reasons for the closing down are unjustified, the employer's liability is (a) the payment of severance allowance or (b) an order for reinstatement, subject to the employee’s consent. If the Redundancy Board orders the employer to terminate the employees, the employees shall be entitled to 30 days’ wages as indemnity in lieu of notice.

The aforementioned proceedings may take at least 60 days, due to the notification and completion of proceedings before the Redundancy Board.

For employer with an annual turnover of less than MUR 25 million or with less than 15 employees

Negotiations with the employees’ representative and notification to the Redundancy Board are not required. However, the employer must, as contractually agreed, (i) pay the employees’ wages in lieu of notice or give the appropriate notice period, (ii) refund any untaken annual leaves, and (iii) pay a pro-rated end of year bonus. The employees are still entitled claim the payment of severance allowance before the Industrial Court if they deem the closing down to be unjustified.

7. What happens if an employee is infected with the Coronavirus?

The WRA 2019 provides that employees earning up to MUR 50,000 as basic monthly salary (normally termed as "junior" employees) are entitled to 15 working days' of sick leaves for every 12 months' of continuous employment. Any untaken sick leave is accumulated up to a maximum of 90 working days. For senior employees earning more than MUR 50,000 as basic monthly salary, the employment contract governs the sick leave entitlement.

If an employee is tested positive of the Covid-19, he must be isolated as per the Coronavirus Regulations 2020 and will be paid sick leave. Once his sick leave (including any accumulated sick leaves applicable under the WRA 2019 or his employment agreement) have been exhausted, the employer may deduct annual leave. If the employee has exhausted all leave entitlement, the employee must be on unpaid leave unless the employer provides additional sick leave over and above the entitlement afforded by WRA 2019 or the employment agreement. In the light of the current situation, recording sick leave may not be practical due to lack of information and logistics.

8. Health and safety implications for employers of the Exempted Persons

The Curfew Order expressly mentions that the Permit does not exempt any employer from his statutory health and safety obligations. Under the OSHA, employers have a general duty to provide inter alia maintain a safe work environment and a special duty to ensure that appropriate health and safety procedures are implemented and followed (including those prescribed by the Government) in the event of serious and imminent danger to any person in the workplace. Employers must therefore ensure the protection of any Exempted Persons. Exempted Persons are, acting reasonably and having regard to their duty to cooperate with their employer, entitled to immediately stop work in case of imminent and serious danger in the workplace.