PART 2 | Illegal terms of contract of service |
| 8. Every term of a contract of service which provides a condition of service which is less favourable to an employee than any of the conditions of service prescribed by this Act is illegal and void to the extent that it is so less favourable. |
9.—(1) A contract of service for a specified piece of work or for a specified period of time, unless otherwise terminated in accordance with the provisions of this Part, terminates when the work specified in the contract is completed or the period of time for which the contract was made has expired.| (2) A contract of service for an unspecified period of time is deemed to run until terminated by either party in accordance with the provisions of this Part. |
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| Notice of termination of contract |
10.—(1) Either party to a contract of service may at any time give to the other party notice of the firstmentioned party’s intention to terminate the contract of service.| (2) The length of the notice must be the same for both employer and employee and is to be determined by any provision made for the notice in the terms of the contract of service, or, in the absence of such provision, must be in accordance with subsection (3). |
(3) The notice to terminate the service of a person who is employed under a contract of service must be at least —| (a) | one day’s notice if the person has been so employed for less than 26 weeks; | | (b) | one week’s notice if the person has been so employed for 26 weeks or more but less than 2 years; | | (c) | 2 weeks’ notice if the person has been so employed for 2 years or more but less than 5 years; and | | (d) | 4 weeks’ notice if the person has been so employed for 5 years or more. |
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| (4) This section does not prevent either party from waiving that party’s right to notice on any occasion. |
| (5) The notice must be written and may be given at any time, and the day on which the notice is given is included in the period of the notice. |
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| Termination of contract without notice |
11.—(1) Either party to a contract of service may terminate the contract of service without notice or, if notice has already been given in accordance with section 10, without waiting for the expiry of that notice, by paying to the other party a sum equal to the amount of salary at the gross rate of pay which would have accrued to the employee during the period of the notice and in the case of a monthly‑rated employee where the period of the notice is less than a month, the amount payable for any one day is the gross rate of pay for one day’s work.| (2) Either party to a contract of service may terminate the contract of service without notice in the event of any wilful breach by the other party of a condition of the contract of service. |
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12.—(1) Despite any other written law, a person below 18 years of age is, subject to the provisions of this Act, competent to enter into a contract of service.| (2) No contract of service as an employee is enforceable against a person below 18 years of age and no damages or indemnity are recoverable from that person in respect of the contract of service unless it is for his or her benefit. |
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| When contract deemed to be broken by employer and employee |
13.—(1) An employer is deemed to have broken the employer’s contract of service with the employee if the employer fails to pay salary in accordance with Part 3.(2) An employee is deemed to have broken the employee’s contract of service with the employer if the employee is absent from work for more than 2 days continuously without prior leave from the employer and —| (a) | the employee has no reasonable excuse for the absence; or | | (b) | the employee does not inform and does not attempt to inform the employer of the excuse for the absence. [27/2015] |
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14.—(1) An employer may after due inquiry dismiss without notice an employee employed by the employer on the grounds of misconduct inconsistent with the fulfilment of the express or implied conditions of the employee’s service, except that instead of dismissing an employee an employer may —| (a) | instantly down-grade the employee; or | | (b) | instantly suspend the employee from work without payment of salary for a period not exceeding one week. [26/2013] |
(2) Despite subsection (1), but subject to section 3 of the Employment Claims Act 2016, where a relevant employee considers that he or she has been dismissed without just cause or excuse by his or her employer, the employee may lodge a claim, under section 13 of that Act, for either of the following remedies:| (a) | reinstatement in the employee’s former employment; | | (b) | compensation. [55/2018] |
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(2A) For the purposes of subsection (2), a relevant employee means —| (a) | an employee employed in a managerial or an executive position —| (i) | who is dismissed with notice; or | | (ii) | who is dismissed without notice but receives payment of any salary in lieu of notice, |
| after having served that employer for at least 6 months in any position (whether or not a managerial or an executive position); |
| | (b) | an employee employed in a managerial or an executive position who is dismissed without notice and without salary in lieu of such notice; or | | (c) | an employee not employed in a managerial or an executive position. [26/2013; 55/2018] |
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(3) If a Tribunal hearing the claim is satisfied that the employee has been dismissed without just cause or excuse, the Tribunal may, despite any rule of law or agreement to the contrary —| (a) | in a claim for reinstatement of the employee in his or her former employment, direct the employer —| (i) | to reinstate the employee in the employee’s former employment; and | | (ii) | to pay the employee an amount equivalent to the wages that the employee would have earned, if the employee had not been dismissed; or |
| | (b) | in a claim for compensation, direct the employer to pay, as compensation to the employee, an amount of wages determined by the Tribunal. [55/2018] |
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| (4) [Deleted by Act 55 of 2018] |
| (5) [Deleted by Act 55 of 2018] |
| (6) [Deleted by Act 55 of 2018] |
| (7) [Deleted by Act 55 of 2018] |
| (7A) [Deleted by Act 55 of 2018] |
(8) For the purposes of an inquiry under subsection (1), the employer —| (a) | may suspend the employee from work for —| (i) | a period not exceeding one week; or | | (ii) | such longer period as the Commissioner may determine on an application by the employer; but |
| | (b) | must pay the employee at least half the employee’s salary during the period the employee is suspended from work. [55/2018] |
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| (9) If the inquiry does not disclose any misconduct on the employee’s part, the employer must immediately restore to the employee the full amount of the salary so withheld. |
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| Termination by employee threatened by danger |
| 15. An employee may terminate his or her contract of service with his or her employer without notice where the employee or the employee’s dependant is immediately threatened by danger to the person by violence or disease that the employee did not by his or her contract of service undertake to run. |
| Liability on breach of contract |
| 16. Subject to anything in the contract of service to the contrary, the party who breaks the contract of service is liable to pay to the other party a sum equal to the amount the firstmentioned party would have been liable to pay under section 11 had the firstmentioned party terminated the contract of service without notice or with insufficient notice. |
| Contract of service not to restrict rights of employees to join, participate in or organise trade unions |
17. Subject to any other written law for the time being in force, nothing in any contract of service restricts, in any way, the right of any employee who is a party to such contract —| (a) | to join a registered trade union; | | (b) | to participate in the activities of a registered trade union, whether as an officer of the trade union or otherwise; or | | (c) | to associate with any other persons for the purpose of organising a trade union in accordance with the provisions of the Trade Unions Act 1940. |
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18.—(1) If by or under any written law a contract of employment between any body corporate and an employee is modified and some other body corporate is substituted as the employer, the employee’s period of employment at the time when the modification takes effect counts as a period of employment with that other body corporate, and the change of employer does not break the continuity of the period of employment.| (2) If on an employer’s death the employee is taken into the employment of the personal representatives or trustees of the deceased, the employee’s period of employment at the time of the death counts as a period of employment with the employer’s personal representatives or trustees, and the death of the employer does not break the continuity of the period of employment. |
| (3) If there is a change in the partners, personal representatives or trustees who employ any person, the employee’s period of employment at the time of the change counts as a period of employment with the partners, personal representatives or trustees after the change, and the change does not break the continuity of the period of employment. |
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18A.—(1) If an undertaking (whether or not it is an undertaking established by or under any written law) or part thereof is transferred from one person to another —| (a) | such transfer does not operate to terminate the contract of service of any person employed by the transferor in the undertaking or part transferred but such contract of service has effect after the transfer as if originally made between the person so employed and the transferee; and | | (b) | the period of employment of an employee in the undertaking or part transferred at the time of transfer counts as a period of employment with the transferee, and the transfer does not break the continuity of the period of employment. |
(2) Without affecting subsection (1), on completion of a transfer referred to in that subsection —| (a) | all the transferor’s rights, powers, duties and liabilities under or in connection with any such contract of service are transferred by virtue of this section to the transferee; | | (b) | any act or omission done before the transfer by the transferor in respect of that contract of service is deemed to have been done by the transferee; and | | (c) | any act or omission done before the transfer by an employee employed in the undertaking or part transferred in relation to the transferor is deemed to have been done in relation to the transferee. |
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| (3) On the completion of a transfer mentioned in subsection (1), it is declared for the avoidance of doubt that the terms and conditions of service of an employee whose contract of service is preserved under that subsection are the same as those enjoyed by the employee immediately prior to the transfer. |
| (4) Subsections (1) and (2) do not transfer or otherwise affect the liability of any person to be prosecuted for, convicted of and sentenced for any offence. |
(5) As soon as it is reasonable and before a transfer under subsection (1) takes place, to enable consultations to take place between the transferor and the affected employees and between the transferor and a trade union of affected employees (if any), the transferor must notify the affected employees and the trade union of affected employees (if any) of —| (a) | the fact that the transfer is to take place, the approximate date on which it is to take place and the reasons for it; | | (b) | the implications of the transfer and the measures that the transferor envisages taking, in connection with the transfer, in relation to the affected employees or, if the transferor envisages that no measures will be so taken, that fact; and | | (c) | the measures that the transferee envisages the transferee will, in connection with the transfer, take in relation to such of those employees as, by virtue of subsection (1), become employees of the transferee after the transfer or, if the transferee envisages that no measures will be so taken, that fact. |
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| (6) As soon as it is reasonable, the transferee must give the transferor such information so as to enable the transferor to perform the duty imposed on the transferor by virtue of subsection (5)(c). |
(7) Where the Commissioner considers that there has been an inordinate delay —| (a) | by the transferor in notifying the affected employees or a trade union of affected employees of the matters set out in subsection (5); or | | (b) | by the transferee in notifying the transferor of the information set out in subsection (6), |
| the Commissioner may, by written notice, direct the transferor to comply with subsection (5) or the transferee to comply with subsection (6) (as the case may be) within such time as may be specified in the notice. |
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(8) Where, immediately before a transfer referred to in subsection (1), a trade union is recognised by the transferor for the purposes of the Industrial Relations Act 1960 in respect of any employee who in consequence of the transfer becomes the employee of the transferee, the trade union, after the transfer —| (a) | is deemed to be recognised by the transferee for the purposes of the Industrial Relations Act 1960 if, after the transfer, the majority of employees employed by the transferee are members of the trade union; or | | (b) | in any other case, is deemed to be recognised by the transferee only for the purpose of representing the employee on any dispute arising —| (i) | from any collective agreement that was entered into between the transferor and the trade union while the collective agreement remains in force; or | | (ii) | from the transfer of the employee’s employment from the transferor to the transferee under this section. |
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| (8A) For the purposes of subsection (8)(b), any collective agreement that was entered into between the transferor and the trade union of the affected employees and in force immediately before the transfer continues in force between the transferee and the trade union of the affected employees for a period of 18 months after the date of the transfer or until the date of its expiry as specified in the collective agreement, whichever is the later. [26/2013] |
| (9) A dispute or disagreement between the transferor and an employee or the transferee and an employee arising from a transfer under subsection (1), whether before or after the transfer, may be referred by a party to the dispute or disagreement to the Commissioner under section 115 and is deemed to be a dispute to which that section applies. |
(10) Where a dispute or disagreement has been referred to the Commissioner pursuant to subsection (9), the Commissioner has, in addition to the powers conferred under section 115, the powers —| (a) | to delay or prohibit the transfer of employment of the employee to the dispute from the transferor to the transferee under subsection (1); and | | (b) | to order that the transfer of employment of the employee to the dispute from the transferor to the transferee under subsection (1) be subject to any terms that the Commissioner considers just. |
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(11) The Minister may make regulations that the Minister considers necessary or expedient to give effect to the provisions of this section and, in particular, may make regulations —| (a) | to provide for the form and manner of consultations between the transferor and the affected employees and between the transferor and a trade union of affected employees under subsection (5); | | (b) | for the type of information that must be communicated by the transferor to the affected employees and to a trade union of affected employees under subsection (5), or by the transferee to the transferor under subsection (6); and | | (c) | to provide for a mechanism for conciliation of disputes arising out of or relating to a transfer mentioned in subsection (1) between any employer and employee. |
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| (12) Nothing in this section prevents a transferee of an undertaking referred to in subsection (1) and an employee whose contract of service is preserved under that subsection or a trade union representing such an employee from negotiating for and agreeing to terms of service different from those contained in the contract of service that is preserved under that subsection. |
(13) In this section —| “affected employee” means any employee of the transferor who may be affected by a transfer under subsection (1) or may be affected by the measures taken in connection with such a transfer; |
“trade union” means a trade union which has been —| (a) | registered under any written law for the time being in force relating to the registration of trade unions; and | | (b) | accorded recognition by the employer pursuant to section 17(1) of the Industrial Relations Act 1960; |
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| “transfer” includes the disposition of a business as a going concern and a transfer effected by sale, amalgamation, merger, reconstruction or operation of law; |
| “undertaking” includes any trade or business. |
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| 19. Any employer who enters into a contract of service or collective agreement contrary to the provisions of this Part shall be guilty of an offence. |
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