The following is based on our interpretation of the law as at the moment this website has been set up and does not in any way consist of legal advice. Should you require actual legal advice on the law as at date, kindly get in touch.
What is the main legislation regulating the relationship between employer and employees in Mauritius ?
The Employment Rights Act 2008
Can a contract of employment be oral?
Contracts of employment may be oral or in writing.
Agreement under the Employment Rights Act 2008 is defined as “a contract of employment or contract of service between an employer and a worker, whether oral, written, implied or express”.
What are some of the characteristics of a contract of employment?
A contract of employment is like any other contract in the sense that it is subject to the general principles of contract law. Parties are free to negotiate the terms and conditions that suit them so long as they remain within the constrained imposed by statute and the common law.
There must be 3 essential elements for a contract of employment to be formed and these are: (i) an activity, (ii) remuneration and (iii) it must be in conformity with the law.
In conformity with Article 1108 of the Code Civil, for a contract of employment to be valid, it has to satisfy the four criteria below:
c) the subject matter of the contract is lawful and can be identified or is identifiable ; and
d) the purpose of the contract is lawful.
What is the law concerning continuous employment as per the Employment Rights Act 2008?
In conformity with S2 of the Employment Rights Act 2008, “continuous employment” means the employment of a worker under an agreement or under more than one agreement where the interval between an agreement and the next does not exceed 28 days.
One or more determinate agreements
As per S5(3) of the Employment Rights Act 2008, subject to subsections (3A) and (3B), where a worker, other than a migrant worker, has been in the continuous employment of an employer under one or more determinate agreements for more than 24 months, in a position which is of a permanent nature, the agreement shall, with effect from the date of the first agreement, be deemed to be of indeterminate duration.
Interruption of continuous employment
In conformity with S9 of the Employment Rights Act 2008,
The continuous employment of a worker shall not be deemed to have been interrupted –
(a) by the worker’s absence from work –
(i) on any leave taken in accordance with this Act or any other enactment, agreement, collective agreement or award;
(ii) due to suspension from employment;
(iii) by reason of participation in a strike which is lawful under the Employment Relations Act 2008; or
(iv) with the consent of his employer;
(b) on account of the limited number of days worked as specified in the agreement of a part-time worker;
(c) where the worker has been detained pending a police enquiry and he has been released before a period of 60 days from the last day he worked; or
(d) where the worker ceases to be in the employment of one employer and enters the employment of another employer under section 47(3).
Who is a worker?
Under S2 of the Employment Rights Act 2008, a “worker”, subject to section 33 or 40 (the said sections relate to the workfare programme or the entitlement of workers in the sugar industry),
(a) means a person who has entered into, or works under an agreement or a contract of apprenticeship, other than a contract of apprenticeship regulated under the Mauritius Institute of Training and Development Act, whether by way of casual work, manual labour, clerical work or otherwise and however remunerated.
(b) includes –
(i) a part-time worker;
(ii) a former worker where appropriate;
(iii) a shareworker;
(c) does not include –
(i) a job contractor;
(ii) except in relation to sections 4, 20, 30, 31 and Parts VIII, VIIIA, IX, X and XI (the said Parts relate, inter alia, to Termination of Agreement, Workfare Programme, Compensation and Violence at Work), a person whose basic wage or salary is at a rate in excess of 360,000 rupees per annum.