Several changes brought to the Workers’ Rights Act 20191 [WRA 2019] in the Finance (Miscellaneous Provisions) Act 2021 [FMPA 2021], have come into operation since August 5th 2021. This article will tell you what you need to know regarding Disciplinary Procedures and Powers of the Judge in Chambers as well as Remuneration and leave related to Covid-19 vaccination and testing.
The main purpose of this document is to help an Employer identify which disciplinary procedure must be followed in light of the recent changes brought to the WRA 2019.
Whilst there are different reasons2 why You (as an Employer) may deem it fit to put a Worker3 on a Disciplinary Committee, You must however bear in mind that there are strict procedures which must be followed under the WRA 2019.
Disciplinary procedures are time sensitive and any non-adherence to the statutory delay may render You liable for payment for severance allowance. To avoid finding yourself, in such circumstances, You must ensure that the correct and appropriate disciplinary procedure has been adopted.
In simple words, the main question You need to ask is WHEN
A. In cases of alleged/suspected misconduct (which are not subject of criminal proceedings)
As an Employer, You must ensure that :
i. The Worker is notified4 of the charge made against him within 10 days of the day on which You become aware of the suspected misconduct or after the completion of an investigation into all the circumstances of of the suspected misconduct;
ii. Any decision to suspend the Worker is carefully considered and should You decide that suspension is inevitable, be aware that the Worker must be still be paid his basic salary for the period of suspension5;
iii. The Worker must be given at least 7 days’ notice as an opportunity to answer any charge made against against him; and
iv. After having received the explanation of the Worker and You cannot in good faith take any other course of action, than to terminate the Worker’s employment; termination must be effected not later than 7 days after the Worker has answered the charge.
Where there is reference to a period of time specified to run from a given date, the period of time so specified shall be calculated so as to include the given day. This will include circumstances where an act must done “within XX days” or “not later than XX days”. Therefore the days on which the events happen shall be included in calculating the number of days. For example :
For notifying the Worker
(i) Of the charge : You must count the day on which you become aware of the misconduct as the first day and the delay will expire on the 10th day; and
(ii) Of the termination: You must include the last day on which the Worker has given his explanation/hearing and the delay will expire on the 7th day thereon.
Where there is a reference to a number of days between 2 events, whether expressed by reference to a number of clear days or “at least” a number of days or otherwise, the days on which the events happen shall be excluded in calculating the number of days.
For example : When calculating the delay of at least 7 days to give the opportunity to answer to the charge, You must not include the day on which the Worker is notified nor the day on which the delay expires.
B. In cases where the Worker’s misconduct is subject to criminal proceedings
As an Employer, You have to ensure that:
i. The Worker is notified of the charge made against him , within 10 days of the day on which You become aware of the conviction or after the completion of an investigation into the suspected misconduct;
ii. You decide whether or not You must suspend the Worker. Should You decide that suspension is inevitable the Worker must be his basic salary for the period of suspension6;
iii. The Worker must be given at least 7 days’ notice to answer any charge made against the him; and
iv. In cases, where You cannot in good faith take any other course of action, than to terminate the Worker’s employment; termination must be effected not later than 7 days after the completion of the hearing7.
B. If you do not consider to fall under A of B
In such a case, You can only terminate a worker’s agreement if the termination is effected not later than 7 days after7 the misconduct.
II. POOR PERFORMANCE
In cases of poor performance, as an Employer, You have to ensure that:
(i) the worker has been given at least 7 days’ notice to answer any Charge of poor performance made against him8;
(ii) You decide whether to suspend the Worker or not. Should You decide that suspension is inevitable the Worker must be paid his basic salary for the period of suspension9 ;and
(iii) In cases, where You cannot in good faith take any other course of action, than to terminate the Worker’s employment; termination must be effected “not later than 7 days” after the completion of the hearing10
A notification of a charge, a notice to answer a charge and a notification of a termination of agreement shall be issued by:
(a) causing the notification or notice to be handed over to the worker in person; or
(b) sending the notification or notice by registered post to the usual or last known place of residence of the worker.
A Worker who has been afforded an opportunity to answer any charge made against him or is subject to a disciplinary hearing may be assisted by :
(a) a representative of a trade union or a legal representative, or both; or
(b) an officer11.
Any Worker and Employer may, during disciplinary hearing, negotiate for the payment of a compensation to promote a settlement.
Any written statement acknowledging guilt by a worker obtained at the instance of his employer shall not be admissible as evidence before a disciplinary hearing, or any authority or any Court.
A Worker may request his Employer to provide him with such information or documents which may be relevant to any charge against him.
An employer shall, within 7 days of the receipt of a written request from or on behalf of the worker12, give a copy of the minutes of proceedings of the disciplinary hearing –
(a) to the worker who has appeared before a disciplinary hearing; and
(b) to the person assisting the worker in the disciplinary hearing.
The disciplinary hearing13 shall be completed within 30 days of the date of the first oral hearing, save and except, where owing to the illness or death of any of the parties or witnesses, or the reconstitution of the disciplinary panel or change in the legal or other representatives of the parties, such hearing cannot be completed during that delay. The parties may agree to extend the delay of 30 days provided that the disciplinary hearing is completed not later than 60 days of the first oral hearing14.
Other notable amendments
Please bear in mind whilst most of the amendments brought to the WRA 2019 have come into effect on 05 August 2021, the below mentioned sections are deemed to have come into operation on different dates:
I. Section 86A.( Refund by employer) has been added to the WRA 2019, which reads as set out here-under
(1) (a) The supervising officer shall, in writing, request an employer to refund to the Workfare Programme Fund, within a period of one month from the receipt of the request, the amount of transition unemployment benefit paid to a worker whose employment was terminated by him, where he has reason to believe that —
(i) during any period of at least 24 consecutive months or an aggregate period of at least 24 months within a period of 36 months, the employer has terminated the employment of the worker more than once and has re-employed that worker on a new contract after a break of more than 28 days; and
(ii) the number of days during which the worker was in the employment of the employer during the period of 24 months exceeds the number of days during which the worker was not in employment and was paid the transition unemployment benefit.
(b) In this subsection —
“period of 24 months” means the period starting from the date of the first termination of the employment of the worker by the employer.
(2) An employer who fails to comply with a written request sent to him under subsection (1) shall commit an offence and shall, on conviction, be liable to a fine not exceeding 100,000 rupees.
(3) In this section and in section 86 —
“supervising officer” means the supervising officer responsible for the subject of social security.
II. Section 86B. (Sharing of information) has been added to the WRA 2019, which reads as set out here-under
(1) Notwithstanding any other enactment, the supervising officer shall, for the purpose of collection and recovery of contributions by the Director-General under termination of the employment of the worker by the employer.
(2) The Director-General shall not disclose any information obtained under subsection (1) to a third party.
Section 86A AND 86B are deemed to have come into operation on 01 January 2020.
III. Section 51 A, has been added to the WRA 2019, which reads as set out here-under:
51A. Remuneration and leave related to Covid-19 vaccination or RT-PCR Test vaccination or RT-PCR Test
(1) The conditions relating to the payment of remuneration or grant of leave to a worker employed in an institution specified in subsection (2), in circumstances where the worker cannot have access to his place of work pursuant to the Quarantine Act 2020 or any regulations made thereunder, shall be such conditions as may be prescribed.
(2) In this section — “institution” means —
(a) a créche, a day care centre, a kindergarten;
(b) a special education needs institution, a pre-primary school, a primary school, a private secondary school, a tertiary institution;
(c) a vocational training centre and any other training institution; and
(d) such other institution as maybe prescribed
Section 51A is deemed to have come into operation on 20 June 2021.
IV. Section 39(2)(b)(i) of the WRA 2019 has been amended as follows:
(2) The Judge in Chambers –
(a) may vary or discharge the protective order where necessary in the interests of justice; or
(b) shall discharge the order where –
(i) the remuneration due notice, severance allowance or remuneration due to the worker or group of workers has been paid;
(ii) the court case referred to in section 35(2)(a) has been disposed of; or
Section 39(2)(b)(i) is deemed to have come into operation on 21 June 2021.
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Image by Mohamed Hassan under Creative Commons CC0.