The position of non-citizens in employment agreements
11 Oct 2016
In order to encourage the employment of ‘professionals’ in Mauritius, the Immigration Act was amended by the Business Facilitation (Miscellaneous Provisions) Act 2006 to provide for a quicker process for the employment of ‘professionals’ with a monthly salary exceeding 30,000 rupees provided they are registered with the Board of Investment. The threshold has now been increased to 60,000 rupees and 45,000 rupees for those in the Information and Communication Technology Sector. The employer, through the Board of Investment, makes an application for an Occupation Permit which is granted within a period of two days and is valid for a period not exceeding 3 years. The Occupation Permit is valid only in relation to a specific job, with a specific employer. Shall the foreigner consider a change of employment, the OP becomes automatically void and the whole process shall start anew (Rakotozafy v. Minister for Employment 1977 MR 170). In addition to the OP, the foreigner shall have a Residence Permit to be able to live and work within the territory of Mauritius.
The Residence Permit is given in relation to the OP, such that, in case of termination of employment, both the OP and the Residence Permit lapse and the non-citizen is no more entitled to stay in Mauritius anymore. This creates a precarious situation for those non-citizens who, when terminated, may find themselves repatriated in a few days following the termination. They do not have the opportunity to question the justifiability of the employer’s decision. That is why the National Human Rights Commission, (Annual Report 2004, pg. 45) has recommended that the migrant worker must be afforded a reasonable period to look for alternative employment or to enter a case before the Industrial Court to question the employer’s decision to terminate his employment.
The situation of ‘migrants’ and ‘non-citizens’ under the Employment Rights Act 2008
The ‘migrants’ and ‘non-citizens’ are excluded from the definition of worker for the sake of the Workfare Programme. As such, they are not entitled to the benefits of the Workfare Programme which aims to the reinsertion of the employees in the sector of employment through training or re-skilling scheme, including the Transition Unemployment Benefit. In substitution, the Section 46(9) of the ERA provides that, in case of a termination on the ground of ‘economic, technological, structural or similar nature affecting the enterprise, the ‘migrants’ or ‘non-citizens’ who have at least 12 months of continuous employment shall have a right to severance allowance “(a) for every period of 12 months, one quarter of a month’s remuneration; (b) for any additional period of less than 12 months, a sum equal to one twelfth of the sum calculated under paragraph (a) multiplied bythe number of months during which the worker has been in the continuous employment of the employer.” The entitlement to severance allowance is de facto and the Industrial Court shall have no discretion in the matter.
When the Industrial Court finds that the economic reasons invoked by the employer are not valid ones, the migrants or non-citizens shall have severance allowance under Section 46(5) of the ERA which is “(i) for every period of 12 months of continuous employment, a sum equivalent to 3 months remuneration; and (ii) for any additional period of less than 12 months, a sum equal to one twelfth of the sum calculated under subparagraph (i) multiplied by the number of months during which the worker has been in continuous employment of the employer.”
Since both the terms ‘migrants’ and ‘non-citizens’ are used in Section 46(9) of the ERA, we may assume that they designate two different categories, although no definition is given in the ERA. The migrants would be the non-citizens working in the territory of Mauritius whilst the term ‘non-citizens’ would include a non-citizen that would be regulated by an employment agreement regulated by the laws of Mauritius but who does not necessarily perform his duties within Mauritius. This takes us to the thorny issue of secondment.
The concept of ‘secondment for duty’
Recently, we have been faced with the problem of employment contracts regulated by the laws of Mauritius but executed abroad through the concept of ‘secondment for duty’. With the concept of globalization, the migration of workers and secondment in foreign countries is becoming more and more frequent. However, we note that there has been no law promulgated to cater for that specific situation. We therefore have to try to find a solution based on the existing laws.
The question especially arises in the offshore sector. The employer would be a Global Business Company Category one, employing a foreigner by virtue of a contract of employment regulated by the laws of Mauritius but the duties of the employee are mostly or fully executed in a foreign jurisdiction.
At first sight, it appears to be an ordinary state of affairs as the parties to an agreement are free to choose the law applicable to the agreement and the competent jurisdiction in the event of a dispute.
However, in the field of employment, we have noticed that the situation gets complicated when one is faced with a foreigner, bound by a contract regulated by the Laws of Mauritius but executed in a foreign jurisdiction.
The question of competence is regulated by Articles 19 and 20 of the Civil Code. These articles confer jurisdiction to the Courts of Mauritius where the applicant/plaintiff or respondent/defendant is a Mauritian although the obligation was contracted in a foreign jurisdiction.Hence, a Mauritian employed by a foreign company or a foreigner employed by a Mauritian entity may enter a case before the Courts of Mauritius. This leads to the question of ‘litispendence’ or forum non conveniens. Is the Mauritian court, although competent by virtue of Art. 20 of the Civil Code, in a good position to adjudicate on a labour dispute where the contract of employment, regulated by the laws of Mauritius was mostly or wholly executed in a foreign country?
The question may arise also in relation to Mauritians who, at a stage of their career, are sent abroad on a secondment for duty. The question arises whether they shall enter into a new contract of employment or shall they continue to be regulated by the same contract under which they were employed. The question is even more complicated if the employee is sent in a country which offers different conditions of employment.We nonetheless have to keep in mind the fundamental principle that the employee’s conditions cannot be modified without the latter’s consent and that employees shall not be given conditions which are less favourable than the threshold set out in the law.
We may also ask ourselves whether the Mauritian Court will be the most convenient Court to adjudicate on a case of alleged misconduct which led to a termination of employment where the misconduct was committed in the foreign country where the employee was sent for secondment. Also, the employer may wonder whether it is compulsory to abide by the strict procedure and delays set out in Section 38(2) of the ERA where the misconduct was committed in a foreign country. Since the ERA makes no distinction whether the work is executed within the jurisdiction, we are tempted to say that S.38(2) will apply as long as the contract of employment is regulated by the laws of Mauritius, irrespective of whether the work was executed abroad.
The next issue will be in relation to the Disciplinary Committee. Should it be held in Mauritius based on the fact that the contract of employment is regulated by the laws of Mauritius or should it be held in the country where the alleged misconduct was committed thus allowing the employer and the employee to call witnesses if need be?
Ultimately if a case is lodged before the Industrial Court in relation to an act of misconduct allegedly committed in the country where the employee was on secondment for duty, can it be raised that the Industrial Court, although competent, is not the appropriate forum to adjudicate on the matter?
End of the Year Gratuity
We have spotted the ‘End of Year Gratuity’ as one of the questions which arise in relation to contract of employments fully executed in a foreign country. By virtue of the fact that an employee, foreigner or Mauritian, is bound by a contract of employment which is governed by the laws of Mauritius, the employee is automatically entitled to the ‘End of Year Gratuity Act’ which applies even to those earning more than Rs. 360,000, thus falling outside the definition of ‘worker’ under the Employment Rights Act 2008. The End of Year Gratuity Act only provides that “…every employer shall, on or before 21 December of every year, pay a gratuity to every employee who is or has been in his continuous employment during the year.”
As the law stands, no distinction is made as to whether the contract of employment is executed in Mauritius or abroad. Thus, a foreign employee, governed by a Mauritian contract of employment shall be entitled to the End of Year Gratuity although he/she is performing his/her duties outside the island.
So many questions that have not yet been answered. We are therefore impatient to see how the Courts of Mauritius, especially the Industrial Court will react thereon and how the existing laws will be interpreted to find a practical solution until the Legislator promulgates a new law which shall specifically cater for that situation.(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)