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Zoom in on new mental health provisions in the Occupational Safety and Health Act
The Occupational Safety and Health (Amendment) Act 2022 (the “Amending Act”) provides for amendments to the Occupational Safety and Health Act 2005 (the “OSHA”). The Amending Act was gazetted on 03 December 2022 but is not yet in force. It will come into operation on a date to be fixed by proclamation.
Insofar as mental health is concerned, some of the important changes being brought to OSHA include:
- The introduction of a definition of the term “health”. In relation to work, the term would mean the absence of any disease or infirmity and include the physical and mental elements affecting health which are directly related to safety and hygiene at work. This new definition confirms that the duty of employers under OSHA extends to ensuring, as far as is reasonably practicable, the mental health of employees at work. (This definition of “health” corresponds with the one provided in the ILO’s Promotional Framework for Occupational Safety and Health Convention 2006.)
- The inclusion of mental and behavioural disorders on the list of “notifiable occupational diseases”. This means that when an Occupational Health Physician (“OHP”) suspects or finds that a person is suffering from mental health disorders related to work (among other occupational diseases listed in the Fourteenth Schedule to OSHA), they will be required to notify in writing the employer of that person and the Director of the new National Occupational Safety and Health Department of the Ministry of Labour. This requirement, in our view, may hinder an employee’s willingness to consult an OHP for mental health issues at the risk of triggering the OHP’s obligation to report their findings to the employee’s employer and the Ministry of Labour. However, psychologists and occupational therapists (who are not classed as medical practitioners in Mauritius and therefore do not qualify as OHPs under the law) would not have that reporting obligation.
- The delegation of certain powers and responsibilities to OHPs only. Whereas the OSHA currently provides that any medical practitioner may advise and conduct health surveillance exercises (in case of certain exposure and risk to health) and have the responsibility to notify an employer and the Ministry where they suspect or find that a person is suffering from an occupational disease, the Amending Act will restrict that function and duty to an OHP only. In addition to being a registered medical practitioner, an OHP must hold a postgraduate qualification in the field of occupational health or occupational medicine recognised by the Medical Council of Mauritius. As such, the Amending Act will restrict the pool of people who can advise and/or be required to notify employers of mental health concerns in their respective organisations. It begs the question as to how many OHPs (as defined in the Amending Act) are available in Mauritius. Further, it excludes the ability of psychologists and occupational therapists (who are not classed as medical practitioners in Mauritius) to perform the function of OHPs.
Will these provisions make a material difference to how mental health concerns are addressed in the workplace? It may be so if employees consult OHPs on these matters, but that is not the general practice for various reasons, starting with the limited availability and accessibility of OHPs in Mauritius. In our experience, employees with work-related mental health issues often seek assistance from psychologists and occupational therapists instead, and do not necessarily inform their employers of their concerns until a relatively late stage (often nearer the time of, or even after, their resignation or dismissal) – it does not seem that the Amending Act will have the effect of changing that general culture.
However, it will be constructive for employers to actively engage with their workforce on mental health issues. In that respect, employers with 50 or more employees are required to establish a Safety and Health Committee under the OSHA and consult the representatives of the employees sitting on that committee with respect to safety and health measures. One of the functions of a Safety and Health Committee is to seek specialist advice on matters related to safety, health and welfare of employees – therefore, the committee may be an appropriate forum to discuss conditions of work affecting mental health and, where required, seek advice from OHPs, psychologists or occupational therapists. Further, the Amending Act will now require all employers, irrespective of whether they have a Safety and Health Committee, to engage in such consultations with representatives of their workforce.
Recent court decisions
The "last straw" principle in constructive dismissal cases
Chung v Dry Cleaning Services Ltd [2022 IND 54]
An employee claimed that the removal of her name from the employer’s Viber forum was the “last straw” in a succession of events that caused her to consider that she was constructively dismissed. The Industrial Court sought guidance from the judgment delivered by the UK Employment Appeal Tribunal in JV Strong and Co Ltd v Hamill EAT 1179/99, which suggested that in cases where there has been a course of conduct, the tribunal must consider whether the last straw incident is a sufficient trigger to revive the earlier ones. In doing so, it must take into account:
- the nature of the incidents;
- the overall time span;
- the length of time between the incidents;
- any factor that may have amounted to a waiver of any earlier breaches; and
- the nature of the alleged waiver, i.e. whether it was a ‘once and for all’ waiver or one that was conditional on there being no repetition of the same conduct.
In its judgment, the Industrial Court found that the Viber issue could not constitute the “last straw” because the employee stated in her evidence that she considered that was constructively dismissed irrespective of the Viber issue, and also because the Court did not find that the alleged earlier breaches were established.
We understand that the employee has lodged an appeal against the decision of the Industrial Court.
Implied waiver of the right to claim unfair dismissal
National Transport Corporation v Juboo [2023 SCJ 122]
Instead of dismissing an employee for misconduct, an employer gave the employee a second chance on humanitarian grounds by offering him a different position on a temporary basis. The employee accepted that offer. However, while continuing to work for the employer in the new position, the employee claimed severance allowance for termination of his previous role with that employer. The Industrial Court allowed the claim.
On appeal, the Supreme Court held that the employee’s acceptance of the new employment position amounted to an implied waiver of his right to claim that he had been unfairly dismissed. The Court referred to the concept of waiver under English law, which was applied in the Judicial Committee of the Privy Council’s judgment in Purmasing v The National Transport Corporation (Mauritius)  UKPC 50 and summed up as follows: if one party, by his conduct, leads another to believe that the strict rights arising under the contract will not be insisted upon, intending that the other should act on that belief, and he does act on it, then the first party will not afterwards be allowed to insist on the strict legal rights when it would be inequitable for him to do so. Applying those principles, the Court found that the employee’s letter of acceptance of the employer’s offer of new employment on a temporary basis implied that he will not seek to enforce his rights in relation to his previous employment with the employer.
The Supreme Court further considered, as a fundamental question, whether an employee is entitled to claim severance allowance without putting an end to the contract of employment between him and his employer, while he stays with that employer under an amended or new contract of employment. The Court held that payment of severance allowance entails the discontinuation of an employment relationship and may only occur if the worker is no longer employed by the employer.
Disapplication of statutory time limit to notify employee of termination
Naikoo v Belle Riviere Hotel Ltd [2023 IND 14]
Following the hearing of a disciplinary committee that found that charges levelled against an employee were proved, the employer decided to terminate the employment of that employee. The employer dispatched a driver to the employee’s place of residence on two separate occasions to remit the letter of termination to him personally, but was not able to do so. The employer thereafter sent the letter to the employee by post, which the employee received outside the statutory period of 7 days after the completion of the disciplinary hearing. Before the Industrial Court, the employee claimed that the dismissal was unjustified because it was not effected (i.e. he did not receive the termination letter) within the prescribed period of 7 days after the completion of the disciplinary hearing.
The Industrial Court referred to a judgment of the Supreme Court (North Island Investments Ltd v Valamootoo [2010 SCJ 226]), in which the Court held that an employer should ensure that the employee effectively receives notice of his dismissal within the statutory period and that it was not enough for the employer to discharge this statutory obligation merely by sending the notice of dismissal by registered post before the end of the 7-day time limit. However, the Industrial Court pointed out that in North Island Investments, the Supreme Court had noted that there are instances where the employee may try purposely to evade taking cognisance of the letter of termination, but such conduct would not operate to defeat the employer’s rights. On that basis, the Industrial Court found since the employee purposely evaded personal service of the letter of termination, the 7-day time limit should not apply as it would otherwise allow wrongful evasion or abusive use by the employee.