HEMLATA HUNMA (Attorney-at-Law)* and R PATIL HUNM (HR Specialist)

Legal Provisions

The Employment Rights Act 2008 states that “no employer shall terminate a worker’s agreement … for reasons related to the workers misconduct, unless (i) he cannot in good faith take any other course of action; (ii) the worker has been afforded an opportunity to answer any charge made against him in relation to his misconduct…” (S38 (2)). This ‘opportunity to answer any charge’ often takes the form of a disciplinary committee, an “oral hearing”. The option of answering any charge other than in “an oral hearing” also exists, though it is rarely used in practice.

The main guidelines in the law regarding the disciplinary committee is that the employer should notify the worker of the charge made against him “within 10 days of the day on which he becomes aware of the misconduct”, that the worker should be “given at least 7 days’ notice to answer any charge made against him” and that, if this procedure results in a termination, this is effected “not later than 7 days after the worker has answered the charge made against him”. The worker may be assisted by a trade union representative and/or his legal representative, or an officer of the Ministry of Labour. The law also specifies that the person presiding the disciplinary hearing should not have been involved in the investigation and should be “able to make an independent decision” in the spirit of natural justice. Similar provisions exist for cases of poor performance (except for the restriction regarding the notification of charges “within 10 days” mentioned above).

The Raison D’être of the Disciplinary Committee (DC)

The stated goal of the DC is to offer the employee the opportunity to ‘answer charges’. This implies that he is made formally aware of the nature of these charges prior to the DC. The understanding is that “an employee should have an opportunity to put forward a case as to why he should be permitted to remain in employment despite conduct which his employer considers may justify dismissal” (UKPC, Bissonauth v SIFB). The DC is thus an opportunity for the employee to give his version, his explanations and reasons why his employment should not be terminated: “What is required is that the worker must be afforded an opportunity to answer any charge and such opportunity can take a number of forms even in writing” (R. Sewtohul v. La Tropicale Mauricienne Ltée).

The DC is not expected to be the first stage of a legal process. If the matter is referred to a court of justice, the matters raised during the DC are taken up afresh. It only suffices that the DC respects the rules of natural justice referred to above. “The aim of a disciplinary committee… is merely to afford the employee an opportunity to give his version of the facts […] It is no substitute for a court of law, nor has it got its attributes.” (G. Planteau De Maroussem v. Dupou). “The hearing is not required to be conducted with the formality and all the exigencies, whether procedural or evidential, appropriate to a court or tribunal…” (Tirvengadum v Bata Shoe (Mauritius) Co. Ltd).

More importantly, “the employer is not bound by the recommendations of the disciplinary committee and is free to reach its own decision in relation to the future employment of his employee, subject to the sanction of the Industrial Court” (G. Planteau De Maroussem v. Dupou). On the other hand, it would appear “that the approach of the courts in Mauritius, […] would be to substitute their own view for that of the employer, rather than simply considering whether the employer’s view was one it could reasonably have taken” (UKPC, Bissonauth v SIFB).

However, it should be noted that the DC is more than a mere “procedural ritual”. It was held in the case of Cie Mauricienne d’Hypermarchés v N.P. Rengapanaiken, that “although it is a well settled principle that a [DC] … is merely meant to be a procedural ritual to enable the worker to give his explanation to the charges before his dismissal. Where gross misconduct is being alleged […] there must surely emerge at the hearing evidence which is sufficiently substantial and reliable in order to establish misconduct which would justify the summary dismissal of the worker”.

Related Practices

For the average employee, being summoned before a disciplinary committee is tantamount to dismissal. In fact, termination is the most common outcome of most DCs. In a few rare cases, the DC may result in a formal warning or (in still fewer cases) in the employee being acquitted.

Most employers who set up a disciplinary committee would have already made up their minds about terminating the employee even prior to the hearing. Consequently, they tend to view the DC as a procedural necessity in the termination process. The hearing is often used as a trigger to initiate settlement negotiations irrespective of the seriousness / authenticity of the misconduct. These negotiations may take place any time before, during, or after the disciplinary hearing.

Employees sometimes sue the employer for unjustified dismissal either directly or through the Ministry of Labour. A cursory reading of the judgments would seem to indicate that most of the cases are won by the employer. This is probably because employers who are aware of the weakness of their cases tend to settle out of court. It also reduces any reputational risk that may exist. Lawyers also tend to favour out of court settlements at these often represent an easier way out. These cases against employers are generally David vs. Goliath situations considering that employers have significantly more resources at their disposal while for employees it is often a question of survival and finding another job as soon as possible. And being known as someone who is suing one’s former employer can jeopardise the job search.

In cases where a settlement is reached, employees generally tend to obtain compensations that are significantly lower than what they would have obtained if they had won their case following a trial. For employers too, the settlement is convenient not only because it is less expensive but also because it is less risky. The main objective advantage of a settlement is that it provides for a speedy closure.

* www.hemlatahunma.com