l o a d i n g

Disciplinary proceedings are among the most legally sensitive processes an employer may undertake.

Even where misconduct appears serious or light, employers remain bound by the procedural requirements set out under the Workers’ Rights Act 2019 (“WRA 2019“). A procedurally flawed disciplinary process may ultimately render the dismissal unfair within the meaning of section 64 of the WRA 2019, thereby exposing the employer to a claim before the Employment Relations Tribunal or the Industrial Court of Mauritius

Under section 64 of the WRA, where an employer becomes aware of an alleged act of misconduct, the employee must be notified within 10 days of the day on which the employer became aware of the alleged misconduct.

Where the employer decides to conduct an investigation, that 10-day period begins to run from completion of the investigation.

The law further provides that the employee must be given at least 7 days’ notice prior to the disciplinary hearing in order to prepare and answer the charges made against them.

Where an employer decides to terminate the employee following the findings of the disciplinary committee, the termination must be effected no later than 7 days after the employee answered the charges during the disciplinary hearing.

These statutory delays are not procedural formalities. Failure to comply with them may expose the employer to legal challenge.

The WRA also requires that the employee be informed of the charges made against them and be given a genuine opportunity to answer those charges during the disciplinary hearing.

Employers should therefore ensure that:

  • the charges are clearly set out in the letter of charges;
  • the employee is given adequate time to prepare, which should not be less than 7 days;
  • the employee is informed of their right to be represented during the disciplinary hearing; and
  • any documentation intended to be relied upon during the disciplinary committee is communicated to the employee at their request prior to the hearing.

Should the Employer choose to suspend the employee, the suspension should always be in writing and the reason of the suspension should be given. Suspension prior to a disciplinary hearing should always be with pay.

A disciplinary hearing should not merely be approached as a procedural step preceding dismissal. It is intended to provide the employee with a genuine opportunity to be heard and to explain his/ her version of events.

Documentation also remains a critical aspect of the process.

An employee is entitled to request access to information or documents relevant to the charges which the employer intends to adduce in evidence during the hearing. Employers should therefore maintain proper records throughout the proceedings, including investigation reports, minutes of meetings where applicable, warning letters where relevant, and any other evidence intended to be relied upon.

Following the disciplinary hearing, the employer should also maintain a proper record of the proceedings, as the employee is entitled to request a copy of the minutes. The employer must provide those minutes within 7 days of receipt of the request.