Table of Contents
Employers' responsibilities under the Public Health (Restrictions on Tobacco Products) Regulations 2022
The new Public Health (Restrictions on Tobacco Products) Regulations 2022 (the “Regulations”), which came into operation on 31 May 2023, prohibits smoking in the workplace and imposes certain notification obligations on employers. The Regulations also deals with other non-employment matters, which are not covered in this briefing note.
For the purposes of the Regulations, the ‘workplace’ means any indoor area where employees perform their duties of employment and extends to 10 metres from a door, window or other opening in that area. It also includes any common area generally used during the course of employment. The smoking restriction also applies to other ‘public places’, and in some cases, it extends to their outdoor areas. The list of those public places is set out in the Regulations and includes any building to which the public has access, health institutions, educational institutions, sports and recreational facilities, etc.
Further, the smoking restriction applies inside a vehicle carrying passengers. As such, employers who provide transport facilities to their staff should ensure the compliance with the smoking restriction on the journey to and from work.
The Regulations further requires every owner or person responsible of a public place (including a workplace) to take all reasonable steps to prevent smoking on the premises. This includes requesting any person smoking to stop doing so, requesting the person to leave the premises if they continue to smoke, calling the police, ensuring that no ash tray is provided and taking such other reasonable steps as may be necessary to ensure a smoke-free environment.
An employer must also conspicuously display a notice of size 210 mm x 297 mm in the workplace stating the following:
- “No smoking”
- “Défense de fumer”
- “Contraveners may be liable to a fine not exceeding 10,000 rupees and to imprisonment for a term not exceeding 12 months – Public Health (Restrictions on Tobacco Products) Regulations 2022”
- “Les contrevenants sont passibles d’une amende n’éxcèdant pas 10,000 roupies et d’une peine d’emprisonement n’éxcédant pas 12 mois – Public Health (Restrictions on Tobacco Products) Regulations 2022”.
Recent court decisions
Employee's negligence v/s employer's failure to ensure safety at work
OSHI v Dakri Paper and Products Ltd [2023 IND 42]
An employer was prosecuted for breach of its statutory duty to ensure the safety and health at work after an employee sustained an injury in the course of his employment. The employer argued that the accident occurred due to the sole negligence of the employee injured. However, the Industrial Court held that the test was an objective one, which meant that the fault and imprudence of the employee were irrelevant to the determination of the employer’s failure to ensure, so far as reasonably practicable, the safety, health and welfare of its employee. The Court further explained, by reference to the Supreme Court’s judgment in DPP v Flacq United Estates Ltd [2001 SCJ 301] that the test did not concern the imprudence or negligence of the employee, but whether the system of work put in place by the employer was safe.
The Court further considered that in deciding whether the employer did whatever was “reasonably practicable” to ensure safety and health at work, it was pertinent to assess whether the risk was a foreseeable one. If the risk is foreseeable, the onus is on the employer to prove that it was not practicable or not reasonably practicable to do more than was in fact done to satisfy the duty of requirement, or that there was no better practicable means or step than was in fact used or taken to satisfy the duty or requirement (section 96(6) of the Occupation Safety and Health Act).
Constructive dismissal for removal of company car and 'prime de responsabilité'
Maurivet Limited v Huron [2023 SCJ 226]
The Supreme Court upheld a judgment of the Industrial Court holding that the employer’s removal of a company car from an employee amounted to a modification of an essential term of the contract of employment. The Supreme Court agreed with the Industrial Court’s determination that the company car which the employee used as transport from and to work formed an integral part of his written contract and that the removal of the car adversely affected his conditions of work in a material way. The Court further distinguished the availability of the company car as a condition of the contract of employment as opposed to simply a condition of work; as such, the employee was entitled to consider that he was constructively dismissed as a result of the employer’s material modification to his contract of employment.
Further, the Court considered whether the employer was entitled to remove a monthly “prime de responsabilité”, which was being paid to the employee for additional responsibilities on a month-to-month basis. The Court found that the employee was paid the monthly “prime de responsabilité” since 2009 and that it therefore formed part of his salary. On that basis, the Supreme Court upheld the Industrial Court’s finding that both the “prime de responsabilité” and the company car formed part of the terms and conditions of the contract of employment and could not be modified unilaterally without discussion with the employee.
Inclusion of overtime in normal working hours
Bertin v Mauritius Freeport Development Company Ltd [2023 IND 35]
An employee was dismissed for failing to perform overtime and leaving his place of work without due authorisation and good and sufficient cause at 3 p.m. According to the employer, the normal working hours were from 7 a.m. to 6 p.m., inclusive of 3 hours’ structured overtime. The employee argued that he was not given 24 hours’ notice to perform overtime after 3 p.m. The Industrial Court considered that it was untenable that the employee had to be informed on a daily basis that he had to stay until 6 p.m., given that his normal working day was as from 7 a.m. to 6 p.m. inclusive of overtime since he joined employment and that these hours were specified in the employer’s internal policy document.
Interests on severance allowance
Gouljhar v Mauriplage Investment Co Ltd [2023 SCJ 215]
The Industrial Court ordered an employer to pay severance allowance, together with interest running from the date of judgment. On appeal to the Supreme Court, the employee argued that the Industrial Court ought to have awarded interest running from the date of termination in accordance with section 46(11) of the now repealed Employment Rights Act 2008, instead of the date of judgment.
The Supreme Court rejected the employee’s argument. It held that an order for payment of interests from the date of termination (as provided in the legislation) is the exception rather than the rule, and that the Court may issue such an order only where it thinks fit. It was therefore open to the Industrial Court to order interests to run from the date of judgment instead. The Court’s reasoning is based on the principle that severance allowance is compensatory in nature and that the compensation is not due until the court has determined the employee’s claim for severance allowance.
Sufficiency of reasons provided in letter of dismissal
Appadoo v SBM [2023 IND 28]
An employee was dismissed after answering charges of gross misconduct before a disciplinary committee. The letter of dismissal stated that after considering the report of the disciplinary committee, the employer could not reasonably and in good faith take any other course of action but to terminate the employment with immediate effect on the grounds of gross misconduct. The Industrial Court accepted the employee’s argument that the letter of dismissal did not provide the reasons for the employer’s decision to terminate the employment of the employee. According to the Industrial Court, it was not enough for the employer to simply refer to the letter of charges and stating that it considered the report of the disciplinary committee without clarifying what charge(s), if any, was established and was considered to amount to gross misconduct. The Court therefore found that the employer failed to provide reasons for the termination in the letter of dismissal, and as such, the termination was unjustified and the employer was held liable for severance allowance.
Liability of employee of service provider
Intermart (Mauritius) Ltd v Blackburn [2023 SCJ 92]
The Supreme Court found that a supermarket was liable for the actions of a security guard posted at its premises, although he was not employed by the supermarket. The security guard was employed by a service provider, who had entered into a contract with the supermarket to provide security services. The Supreme Court held that the evidence established that the security guard was the “préposé” of the supermarket due to the existence of a “lien de subordination” or a “lien de préposition”. According to the Court, it cannot be said that the security guard was performing his duties “sans aucune direction ni surveillance” on the part of the supermarket.
