Employment and Industrial Relations Act (Cap. 452), article 36

36. (1) Saving the provisions of sub-article (16), when an employment relationship is subject to a probationary period, th at period shall be of six (6) months. Obligation of proportionality of probationary period. Added by: XX.2022.3. (1a) In the case of fixed-term employment relationships, the length of such a probationary period shall be proportionate to the expected duration of the contract and the nature of the work. I n the case of the renewal of a contract for the same function and tas ks, the employment relationship shall not be subject to a new probation ary period: Provided that no fixed term contract shall be shorter than six (6) months unless a shorter period is justified by objective re asons based on precise and concrete cir cumstances characterising a gi ven activity. Whenever an employer in tends to enter into a contract of service for a fixed term with a prospective employee for a peri od shorter than six (6) months, the employer shall list in writing in that contract the objective reasons for which the contract is entere d into for less than six (6) months: Provided further that for a fixed term contract of between 26 CAP. 452.] EMPLOYMENT AND INDUSTRIAL RELATIONS six (6) months and fifteen (15) months duration, the probationa ry period shall be calculated on the basis of two (2) months proba tionary period per six (6) months contract duration; and if, in terms o f the preceding proviso, the fixed term contract is shorter than six (6) months, the probationary period shall be one-third of the durat ion of the same fixed term contract: Provided further that for a fixed term contract exceeding fifteen (15) months duration, the probationary period shall be of six (6) months. Probationary period of twelve months. Added by: XX.2022.3. (1b) Notwithstanding the provisions of sub-article (1a), workers holding technical, ex ecutive, administrative or managerial posi tions and whose wages are at least double the national minimum wage established that year shall be on probation for a period of twelve (12) months. Suspension of probationary period. Added by: XX.2022.3. (1c) In any case, the probationary period may, by agreement between the parties, be shorter than the respective periods sti pulated in sub-articles (1a) to (1c) and, th e probationary period shall be suspended in the case of any two (2) weeks or more of approved leave, whereupon the probationary period shall be extended to a corresponding duration of the leave. It shall be unlawful for a n employer to dismiss a worker dur ing the period of suspension of probation. (2) During the probationary period the employment may be terminated at will by either p arty without assigning any reason : Provided that a week’s notice of the termination of employment shall be given to the other party in the case of an employee who has been in the employment of the same employer continuously for more than one month. (3) A contract of service for an indefinite time may be terminated, by giving notice as set out in sub-article (5), by the employee without assigning any reason and by the employer, saving the provision of sub-article (14), only on grounds of redundancy: Provided that any employee whose employment is terminated on grounds of redundancy shall be entitled to re- employment if the post formerly occupied by him is again available within a period of one year from the date of termination of employment: Provided further that such an employee shall be so re- employed at conditions not less favourable than those to which he would have been entitled if the contract of service relating to him had not been terminated: Provided, finally, that any emp loyee who shall have been so re-employed shall, for the purposes of this Act, be deemed to h ave continued in his employment notwithstanding the termination mad e under this sub-article. (4) Where an employer intends to terminate the employment of EMPLOYMENT AND INDUSTRIAL RELATIONS [ CAP. 452. 27 an employee on grounds of redundancy, he shall terminate the employment of that person who was engaged last in the class of employment affected b y such redundancy: Provided that, where such person is related to the employer (not being a limited liability company or a statutory body) by consanguinity or affinity up to the third degree, the employer may, instead of terminating the employment of such person, terminate that of the person next in turn. (5) Notwithstanding any agreement to the contrary, and without prejudice to what is stated in paragraph ( f), notice of the termination of employment proposed either by the employer or by the employee under a contract of service for an indefinite time , shall be of the following respective duration, if the employee has been in the employment of the same employer continuously - Provided that notice of termination of employment may not be given during maternity leave or during the period of incapac ity for work to which sub-article (17 ) refers or during such other period as the Minis ter may prescribe. (6) Where one period of employment on a contract of service for an indefinite time is of less than six months but is follow ed by another period of employment in the same class of employment commencing within the next following six months from the last d ay of employment, the two periods shall, for the purposes of sub- article (5), in regard to the second period of employment be de emed to be one continuous period. (7) The period of notice shall begin to run from the working day next following the day on which noti ce is given. (8) On receiving notice from t he employer as aforesaid the employee under a contract of service for an indefinite time sha ll have the option either of continuing to perform work until the period of notice expires or, at any time during the currency of the period of notice, of requiring the employer to pay him a sum eq ual to half the wages that would be payable in respect of the unexp ired period of notice. (a) for more than one month but not more than six months ... ................. one week; (b) for more than six months but not more than two years ...................... two weeks; (c) for more than two years but not more than four years ..................... four weeks; (d) for more than four years but not more than seven years ................... eight weeks; (e) for more than seven years, an additional 1 week for every subsequent year of service or part thereof up to a maximum of twelve weeks; (f) or such longer periods as may be agreed by the employer and employee in the case of technical, administrative, executive or managerial posts: 28 CAP. 452.] EMPLOYMENT AND INDUSTRIAL RELATIONS (9) On receiving notice from the employee as aforesaid, the employer shall have the option either to allow the employee to continue to perform work until the period of notice expires or, at any time during the currency of the period of notice, to pay th e employee a sum equal to the wages that would have been payable in respect of the unexp ired period of notice. (10) If an employee under a contract of service for an indefinit e time fails to give notice as aforesaid, he shall be liable to p ay to the employer a sum, equal to half the wages that would be payable i n respect of the period of notice. If the employer fails to give the said notice, he shall be liable to pay to such employee a sum equal to the wages that would be payable in respect of the period of notice. (11) An employer who terminates the contract of service of an employee before the expiration of the time definitely specified by a contract of service, shall pay t o the employee a sum equal to o ne-half of the full wages that would have accrued to the employee in re spect of the remainder of the time specifically agreed upon. (12) An employee who abandons the service of his employer before the time definitely speci fied by the contract of service shall pay to his employer a sum equal to one-half of the full wages t o which he would have become entitled if he had continued in the service for the remainder of the time so specifi cally agreed up on: Provided that in this sub-article and in sub-articles (8), (9), (10) and (11), reference to "full wages" or "wages" is to mean the wage payable to an employed person by or on behalf of his employer, excluding any remunera tion for overtime , any forms of bonus, any allowances, and remuneration in kind and commissions . (13) In the case of employees und er a contract of service paid by the unit of work, or by a share in the profits, or by a commiss ion on the sales or payments made or received by the employer, the amount payable in terms of sub-a rticles (8), (10 ), (11) and (12 ) shall be calculated on the avera ge earning of the employee duri ng the three months immediately preceding the day on which notice is given or the abandonment or termination of employment takes place. (14) Notwithstanding the foregoing provisions of this article, a n employer may dismiss the employee on a contract of service for an indefinite time and the employee on a contract of service for a n indefinite time may abandon the service of the employer, withou t giving notice and without any liability to make payment as prov ided in sub-article (10) if there is good and sufficient cause for such dismissal or abandonment of service: Provided that notwithstanding the foregoing provisions of this article, an employee may abandon a fixed term contract of servi ce prior to its expiry and an employer may terminate a fixed term contract prior to its expiry without any liability to make payment as pr ovided in sub-articles (11) and (12) if there is good and sufficient caus e for such dismissal or abandonment. Provided further that an employer may not set up as a good and sufficient cause - EMPLOYMENT AND INDUSTRIAL RELATIONS [ CAP. 452. 29 (a) that the employee at the time of the dismissal was a member of a trade union, or is seeking office as, or acting or has acted in the capacity of an employees’ representative; or (b) except in the case of a pri vate domestic employee, that the employee no longer enjoys the employer’s confidence; or (c) that the employee c ontracts marriage; or (d) that an employee is pregnant with child or is absent from work during m aternity leave; or (e) that the employee discloses information, whether confidential or otherwise, to a designated public regulating body, regarding alleged illegal or corrupt activities being committed by his employer or by persons acting on the employ er’s name and interests; or (f) that the employee has filed a complaint or is participating in proceedings against the employer involving alleged violation of laws or regulations or is having recourse to competent administrative authorities; or (g) that the business in which the employee is engaged has undergone a transfer of ownership, unless he proves that the termination is necessary for economic, technical or organisational reasons entailing changes in the workforce: Provided further that: Cap. 318. (a) saving the provisions of paragraph ( b) hereof, the employer can terminate the employment of an employee when the employee reaches pension age as defined in the Social Security Act ; (b) notwithstanding the provisions of paragraph ( a) hereof, an employer may not terminate the employment of a female employee born on or before the 31st December 1951 before she reaches the age of sixty one years. (15) A contract of serv ice shall not, except with the consent of the employee, be terminated by the employer during any period o f incapacity for work of the employ ee caused by personal injury b y accident arising out of and in the course of employment or by a ny of the occupational diseases specified in the Social Security Act in each case occurring in the service of that employer: Provided that - (a) during such period of incapacity wages less injury benefit payable under the Social Security Act not including any benefit for permanent disability shall accrue in favour of the employee as may be provided by or under any recognised condition of employment as defined in Part II of Title I of this Act; and 30 CAP. 452.] EMPLOYMENT AND INDUSTRIAL RELATIONS (b) the provisions of this sub-article shall not apply beyond the first twelve calendar months of incapacity. (16) On the cessation of the incapacity for work referred to in the last preceding sub-article th e employer shall, within twent y-one days from an application made b y the employee, re-instate the employee in his former employment or, if the injury or disease has caused a disablement rendering the employee unfit for the forme r employment, in other suitable employment: Provided that the application for re-instatement by the employee shall be made in writing within seven days of the cessation of the incapacity for work. (17) A whole-time female empl oyee shall not be dismissed by the employer during the period of her maternity leave or the pe riod of five weeks following the end of such leave in which she is incapable for work owing to a pathological condition arising ou t of delivery. (18) Any period of incapacity for work referred to in the last preceding sub-article shall be deducted from the period of sick leave to which the employee is entitled at the time of such incapacity, so however that the period of incapacity which exce eds such entitlement shall be deemed to be leave of absence without entitlement to wages: Provided that the employer m ay require the employee to produce evidence of such incapacity for work and may require hi s own doctor to visit such employee and to report to him on the condition of her health. (19) The employee shall, at the te rmination of maternity leave t o which she is entitled under the provisions of this Act or of th e period of her incapacity for work to which sub-article (17) ref ers, be entitled to resume work in the post she occupied on the commencement of her m aternity leave, or in an analogous post if at the time when she becomes so entitled the post she formerly occupied is no longer available. (20) Where a female employee does not resume work as provided in the preceding sub-article, or, after having so resu med work, abandons the service of her employer without good and sufficient cause within six months from the date of such resumption, she shall be liable, without prejudice to any other liability under this Act, to pay the employer a sum equivalent to the wages she received durin g the maternity leave. Collective redundancies.