Disciplinary hearings in Mauritius: the steps the law sets for dismissing a worker for misconduct

What are the steps of a disciplinary hearing?

1. Investigate first if you need to. Section 64(3) lets you look into the circumstances before you bring a charge, and the 10-day clock doesn't start until the investigation is complete.
2. Notify the worker of the charge within 10 days of the day you became aware of the alleged misconduct, or of the day the investigation ended.
3. Give the worker at least 7 days' notice to answer the charge at an oral hearing. The worker answers at the oral hearing only, or in writing first and then at the oral hearing.
4. If the worker asks, let them or their representative inspect, before the hearing, the information and documents relevant to the charge that you intend to use as evidence (section 64(5)).
5. Hold the hearing. The worker may be assisted by a trade union representative, a legal representative, or both. If neither, they may be assisted by an officer (section 64(7)).
6. Finish the hearing within 30 days of the first oral hearing.
7. Decide. You may dismiss only if you cannot, in good faith, take any other course of action.
8. If you dismiss, do it no later than 7 days after the worker answered the charge at the oral hearing, and state the reason for the termination when you notify the worker (section 63(2)).

What are the time limits?

The 30-day limit for the hearing can run over only where a party or witness falls ill or dies, the disciplinary panel is reconstituted, or a party changes representative. Even then, an agreed extension can't go past 60 days from the first oral hearing.

In Bayport Management v Sowkee, the Supreme Court counted the day the notice was given as one of the 7 days, according to a note by Appleby. Giving a little more than 7 days avoids the argument.

How to serve the charge and the notices

Section 65 covers the charge, the notice to answer it and the notice of termination. Hand each one to the worker in person, or send it by registered post to their usual or last known home address.

If the worker refuses to accept it, or doesn't collect it after being told it is waiting at a named post office, it counts as served on the day they refused or were told.

What happens at the hearing?

• You and the worker may negotiate a compensation payment during the hearing to reach a settlement (section 64(8)).
• A written statement admitting guilt that the worker signed at your request can't be used as evidence at the hearing, before any authority or in any Court (section 64(9)).
• Within 7 days of a written request, give a copy of the minutes to the worker and to the person who assisted them (section 64(10)).

If the worker has been convicted

Where the misconduct was the subject of criminal proceedings and the worker was employed or suspended when you learned of the conviction by the Court of first instance, the same steps apply. The 10 days run from the day you became aware of the conviction (section 64(2)(b)).

Can you suspend the worker, and on what pay?

You can suspend a worker while you investigate or while the disciplinary proceedings run, but you must pay their basic salary for the whole suspension (section 66(1)). You must also tell them the reason for the suspension in writing before you suspend them.

Suspension without pay is allowed only as a sanction after a hearing, and for no more than 4 working days (section 66(3)).

Poor performance

Section 64(6) sets a similar procedure for dismissal over poor performance. The worker must get at least 7 days' notice to answer the charge at an oral hearing, you must be unable in good faith to take any other course, and the dismissal must follow no later than 7 days after the hearing is completed. The right to be assisted and the 30-day limit on the hearing apply here too.

What happens if the procedure isn't followed?

A worker with at least 12 months' continuous employment can claim severance allowance. The Court may order it where the dismissal broke section 64(2), (5), (6) or (9), where the misconduct or poor performance wasn't a valid reason to dismiss, where you could in good faith have done something other than dismiss, or where the dismissal was otherwise unjustified (section 70(1)).

• The amount is 3 months' remuneration for every 12 months of continuous employment, plus one twelfth of that for each extra month.
• A month's remuneration is the higher of the last full month's pay and the monthly average over the last 12 months, including extra work, productivity and attendance bonuses, commission and other regular payments.
• The Court may add interest of up to 12% a year from the date of dismissal to the date of payment.

The worker brings the claim to the supervising officer, who first tries to settle it and can then take it to Court (section 69). Instead of severance, a worker can ask for reinstatement by complaining to the supervising officer within 15 days of the dismissal (section 69A).

This is a summary of the procedure in the Act. For a specific case, get advice before you act.

Common questions