Jamaica : The Employment (Termination and Redundancy Payments) Act

Printable Version


JAMAICA

THE EMPLOYMENT (TERMINATION AND
REDUNDANCY PAYMENTS) ACT

ARRANGEMENT OF SECTIONS

1.    Short title.
2.    Interpretation.

3.    Minimum period of notice.
4.    Agreement deemed to be included in certain contracts of employment.

5.    Right to redundancy payment.
5A.  Option to treat lay-off as dismissal on ground of redundancy.
6.    General exclusion from right to redundancy payment.
7.    Change of ownership of business.
8.    Contracts of employment for a fixed term.
9.    Written particulars or redundancy payment.
10,  Claims for redundancy payment.
11.  Termination of contract by death. etc. of employer.
12.  Death of employee.
13.  Modification of right to redundancy payment where previous redundancy payment has been paid.
14.  Abatement of redundancy payment where compensation is payable under agreement.
15.  Associated companies.

16.  Record to be kept.
17.  Jurisdiction of Resident Magistrates’ Courts.
18.  Regulations

Schedule

THE EMPLOYMENT (TERMINATION AND
REDUNDANCY PAYMENTS) ACT,
Acts 31 of 1974, 6 of 1986.

[9th December, 1974.]


PART I
Preliminary

Short tile.
1.        This Act may be cited as the Employment (Termination and Redundancy Payments) Act.

Interpretation.
2. (1)         In this Act, unless the context otherwise requires-    

“the appointed day” means the 9th December, 1974; “business” includes—

(a) a trade or profession; and

(b) any activity carried on by a body of persons, whether corporate or incorporate;

“cease” and “diminish” mean respectively cease or diminish either permanently or temporarily and from whatsoever cause;

“employee” means an individual who has entered into or works (or, in the case of a contract which has been terminated, worked) under a contract with an employer, whether the contract be for manual labour, clerical work or otherwise, be express or implied, oral or in writing, but does not include—

(a) any person employed by the Government; or

(b) any person employed in the service of the Council of the Kingston and St. Andrew Corporation or in the service of any Parish Council,

and “employer” and any reference to employment shall be construed accordingly;

“public holiday” means—

(a)    any day which under the provisions of any enactment for the time being in force is, or is declared to be, or is proclaimed as, a public general holiday; and

(b)    Good Friday and Christmas Day;

“the relevant date” in relation to the dismissal of an employee means-


(a)    where his contract of employment is terminated by notice given by his employer, the date on which that notice expires;

(b)    where his contract of employment is terminated without notice, whether by the employer or the employee, the date on which the termination takes effect;

(c)    where he is employed under a contract for a fixed term and that term expires, the date on which that term expires;

(d)    where he has been employed in seasonal employment and any of the events mentioned in paragraphs (b) and (c) of subsection (3) of section 5 occurs, the date on which the event occurs;

“seasonal employment” means employment provided by an employer during a specific part (commencing at approximately the same time in each year) of each of two or more consecutive years, and “season” shall be construed accordingly.

2. (2)        Subject to the provisions of subsection (3) any provision in any agreement (whether a contract of employment or not) shall be void in so far as it purports to exclude or limit the operation of any provision of this Act.

2. (3)        Subsection (2) shall not apply to any agreement of a kind mentioned in section 8.

2. (4)        For the purposes of the application of the proof Part III to an employee in a private household, those provisions (except section 7) shall apply as if the household were a business and the maintenance of the household were the carrying on of that business by the em


PART II
Minimum period of notice, and right to certain facilities

Minimum period of notice.
3. (1)         The notice required to be given by an employer to terminate the contract of employment of an employee who has been continuously employed for four weeks or more shall be-

(a) not less than two weeks’ notice if his period of contract employment is less than five years;

(b)    not less than four weeks’ notice if his period of contract employment is five years or more but less than ten years;

(c)    not less than six weeks’ notice if his period of contract employment is ten years or more but less than fifteen years;

(d)    not less than eight weeks’ notice if his period of continuous employment is fifteen years or more but S.2 less than twenty years [6/1986 S.2];

(e)    not less than twelve weeks’ notice if his period of continuous employment is twenty years or more [6/1986 S. 2.], and shall be in writing unless it is given in the presence of a credible witness.

3. (2)        An employee who has been continuously employed for four weeks or more shall give not less than two weeks’ notice to terminate his contract of employment.

3. (3)        The provisions of subsections (1) and (2) shall not be taken—

(a) to prevent either party to a contract of employment from waiving his right to notice at the time of termination, or from accepting a payment in lieu of notice, or from giving or accepting notice of longer duration than that of the relevant notice specified in those subsections; or

(b)    to prevent the parties to a contract of employment from providing, by agreement, for the giving of notice which is of longer duration than that of the relevant notice specified in those subsections to terminate the contract; or

(c)    to affect the right of either party to a contract of employment to require notice—
(i)    for which provision is made by agreement of the kind referred to in paragraph (b); or

(ii)    which, by custom, is required to be of longer duration than that of the relevant notice specified in those subsections.

3. (4)        Where the contract of employment of any employee specifies a period, commencing on the date of commencement of the employment, as a probationary period, either party to the contract may, notwithstanding the provisions of subsections (1) and (2), terminate the contract without notice during the probationary period or, where the probationary period is more than ninety days, during the first ninety days thereof.

3. (5)        This section does not affect any right of either party to a contract of employment to treat the contract as terminable without notice by reason of such conduct by the other party as would have enable him so to treat it before the passing of this Act or to treat a contract of employment for a fixed term as terminated at the expiration of the term:

    

Provided that—

(a) if an employer does not terminate a contract of employment without notice during the first four weeks after he becomes aware of conduct by the employee by reason of which the employer has a right to terminate the contract without notice, he shall not thereafter terminate the contract without notice by reason of that conduct;

(b) if the employment of an employee whose contract of employment is for a fixed term continues for four weeks after the expiration of the term, subsections (1), (2) and (3) shall thereafter apply to the contract as if it were a contract for an indefinite period.

Agreement deemed to be included in certain contracts of employment.
4. (1)     Every contract of employment in relation to which the requirements of subsection (2) are satisfied shall be deemed to include an agreement by the employer to provide the employee, on the termination of the contract-

(a) with suitable transportation, or a sum sufficient to enable him to pay for suitable transportation, from his place of employment to the place at which he was ordinarily resident when he was engaged under the contract; and

(b) with such sum as may be necessary, by reason of the time required for travel by suitable transportation from his place of employment to the place at which he was ordinarily resident when he was engaged under the contract, to pay for his meals during the journey,

and the employee may recover damages for a breach of that agreement by an action for damages for a breach of conduct.

4. (2)        The requirements referred to in subsection (1) are that both the place at which the employee was ordinarily resident when he was engaged under the contract of employment and any other place at which he was present when the offer of employment was made to him by any means other than by advertisement or at which the contract of employment was made shall be in Jamaica and be more than ten miles from the place in Kingston or Saint Andrew, or more than five miles from the place in any other parish of Jamaica, where he is required to perform the work for which he is employed under the contract.


PART III.
Redundancy payments

Right to redundancy payment.
5. (1)     Where on or after the appointed day an employee who has been continuously employed for the period of one hundred and four weeks ending on the relevant date is dismissed by his employer by reason of redundancy the employer and any other person to whom the ownership of his business is transferred during the period of twelve months after such dismissal shall, subject to the provisions of this Part, be liable to pay to the employee a sum (in this Act referred to as a “redundancy payment”) calculated in such manner as shall be prescribed.

5. (2)        For the purposes of this Part an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is attributable wholly or partly to-
(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him or has ceased, or intends to cease, to carry on that business in the place where the employee was so employed; or

(b) the fact that the requirements of that business for employees to carry out work of a particular kind, or for employees to carry out work of a particular kind in the place where he was so employed, have ceased or diminished or are expected to cease or diminish; or

(c)    the fact that he has suffered personal injury which was caused by an accident arising out of and in the course of his employment, or has developed any disease, prescribed under this Act, being a disease due to the nature of his employment.

5. (3)        An employee who on or after the appointed day has been employed by the same employer in seasonal employment for two or more consecutive years shall, if his employment during each season is continuous, be taken to be dismissed by that employer by reason of redundancy-

(a)    where he is dismissed by his employer and the dismissal is attributable wholly or partly to any of the facts specified in subsection (2); or

(b)    where his employer informs him (in whatever terms) that he will not be provided with employment during any season; or

(c)    where he attends the place of employment and offers himself for employment at the beginning of any season or in accordance with any instructions given, or any procedure established, by the demand the employer fails to provide him with employment,

and the employer shall, subject to the provisions of this Part, be liable to pay to him a redundancy payment notwithstanding that he has not been continuously employed throughout the period specified in subsection (1).

5. (4)        The manner of determining whether an employee has been continuously employed for the period specified in subsection (1) shall be such manner as shall be prescribed.

5. (5)        For the purposes of this section an employee shall betaken to be dismissed by his employer—

(a) if the contract under which he is employed by the employer is terminated by the employer, either by notice or without notice; or

(b) if under that contract he is employed for a fixed term and that term expires without being renewed under the same contract; or

(c) if he is compelled, by reason of the employer’s conduct, to terminate that contract without notice.

5. (6)        An employee shall not be taken for the purposes of this section to be dismissed by his employer if his contract of employment is renewed, or he is re-engaged by the same employer under a new contract of employment, and—
(a) in a case where the provisions of the contract as renewed, or of the new contract, as the case may be, as to the capacity and place in which he is employed, and as to the other terms and conditions of his employment, do not differ from the corresponding provisions of the previous contract, the renewal or re-engagement takes effect immediately on the ending of his employment under the previous contract; or

(b) in any other case, the renewal or re-engagement is in pursuance of an offer in writing made by his employer before the ending of his employment under the previous contract, and takes effect either immediately on the ending of that employment or after an interval of not more than two weeks there

5. (7)        For the purposes of the application of subsection (6)—

(a) to a contract under which the employment ends on a Friday, Saturday or Sunday, the renewal or re-engagement shall be treated as taking effect immediately on the ending of the employment under the previous contract if it takes effect on or before the next Monday after that Friday, Saturday or Sunday or, where that Monday is a public holiday, the next following day, not being a public holiday; and

(b) to a contract under which the employment ends on a public holiday, the renewal or re-engagement shall be treated as taking effect immediately on the ending of the employment under the previous contract if it takes effect on or before the next following day, not being a Friday, Saturday, Sunday or public holiday.

Option to treat layoff as dismissal on ground of redundancy [6/1986 S. 3.]
5A. (1)     For the purposes of section 5, an employee who has been laid off without pay for a period in excess of one hundred and twenty days may by notice in writing to the employer elect to be regarded as dismissed by reason of redundancy from such date (not being less than fourteen days nor more than sixty days after the date of the notice) as may be specified in the notice, which date shall, for the purposes of this Act, be regarded as the relevant date.

5A. (2)    Where a notice is given pursuant to subsection (1) then, subject to section 6 (3) and (4), the notice shall for the purposes of this Act have effect, in accordance with its terms, as if it implemented a dismissal of the employee on the ground of redundancy on the relevant date.

5A. (3)    For the purposes of this section-

(a)    an employee is laid off without pay if, other than on disciplinary grounds-

(i)    he is laid off without pay in accordance with the terms of his employment; or

(ii)    the circumstances of his employment are changed so that for some period he receives no pay pending a decision by his employer to reinstitute previous, or similar circumstances of employment; and

(b)    a person may, subject to regulations, be regarded, during any period, as laid off without pay notwithstanding that during that period he receives some pay or is engaged to work for limited times only.

5A. (4)    Regulations may make provision for-

(a) the form of notice to be given for the purposes of subsection (1);

(b) determining the extent (if any) to which periods of lay-off during which an employee receives some pay, or is engaged to work for limited times only, may be regarded, for the purposes of this section, as a period of lay-off without pay;

(c)     resolving any doubt or dispute as to the date on which lay-off commences for the purposes of this Act.

General exclusion from right of redundancy payment.
6. (1)         An employee shall not be entitled to a redundancy payment-

(a) if for any reason other than that specified in paragraph (c) of subsection (5) of section 5 he terminates the contract under which he is employed; or

(b) if the contract under which he is employed is terminated by reason of his retirement in circumstances in which he is entitled to pension, superannuation or other retiring benefits (other than benefits under the National Insurance Act) under any scheme, agreement or provision.

6. (2)        An employee shall not be entitled to a redundancy payment by reason of dismissal where his employer, being entitled to terminate his contract of employment without notice by reason of the employee’s conduct, so terminates it.

6. (3)        An employee shall not be entitled to a redundancy payment by reason of dismissal if before the relevant date the employer has made to him an offer in writing to renew his contract of employment, or to re-engage him under a new contract, so that—

(a) the provisions of the contract as renewed, or of the new contract, as the case may be, as to the capacity and place in which he would be employed, and as to the other terms and conditions of his employment would not differ from the correspond provisions of the contract as in force immediately before his dismissal; and

(b) the renewal or re-engagement would take effect on or before the relevant date or within two weeks after that date,

and the employee has unreasonably refused that offer.

6. (4)        An employee shall not be entitled to a redundancy payment by reason of dismissal if before the relevant date the employer has made to him an offer in writing to renew -his contract of employment, or to re-engage him under a new contract, so that in accordance with the particulars specified in the offer the provisions of the contract as renewed, or of the new contract, as the case may be, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment, would differ (wholly or in part) from the corresponding provisions of the contract as in force immediately before his dismissal, but-

(a) the offer constitutes an offer of suitable employment in relation to the employee; and

(b) the place in which he would be employed would not be more than ten miles from the place at which he was employed under the contract as in force immediately before his dismissal; and

(c)     the renewal or re-engagement would take effect on or before the relevant date or not later than two weeks after that date,

and the employee has unreasonably refused that offer.

6. (5)        Where the relevant date falls on—

(a) a Friday, Saturday or Sunday, the references in subsections (3) and (4) to the relevant date shall be construed as references to the next Monday after that date or, where that Monday is a public holiday, the next following day, not being a public holiday; or

(b) a public holiday, those references shall be construed as references to the following day, not being a Friday, Saturday, Sunday or public holiday.

Change in ownership of business.
7. (1)         Subject to the provisions of subsection (7), provisions of this section shall have effect where-

(a) a change occurs (whether by virtue of a sale or other disposition or by operation of law) in the ownership of a business for the purposes of which a person is employed, or a part of such a business; and

(b) in connection with that change the person by whom the employee is employed immediately before the change occurs (in this section referred to as “the previous owner”) terminates the employee’s contract of employment, whether by notice or without notice.

7. (2)        If, by agreement with the employee, the person who immediately after the change occurs is the owner of the business or of the part of the business in question, as the case may be (in this section referred to as “the new owner”) renews the employee’s contract of employment (with the substitution of the new owner for the previous owner) or re-engages him under a new contract of employment, sub(6) of section 5 shall have effect as if the renewal or re-engagement has been a renewal or re-engagement by the previous owner (without any substitution of the new owner for the previous owner).

7. (3)        If the new owner offers to renew the employee’s contract of employment (with the substitution of the new owner for the previous owner) or to re-engage him under a new contract of employment, but the employee refuses the offer, subsection (3) or subsection (4), as the case may be, of section 6 shall have effect, subject to the provisions of subsection (4) of this section, in relation to that offer and refusal as it would have had effect in relation to the like offer made by the previous owner and a refusal of that offer by the employee.

7. (4)        For the purposes of the operation of subsection (3) or subsection (4) of section 6, in accordance with subsection (3) of this section, in relation to an offer made by the new owner—

(a) the offer shall not be treated as one whereby the provisions of the contract as renewed, or of the new contract, as the case may be would differ from the corresponding provisions of the contract as in force immediately before the dismissal by reason only that the new owner would be substituted for the previous owner as the employer, and

(b) no account shall be taken of that substitution in determining whether the refusal of the offer was unreasonable.

7. (5)        This section shall have effect, subject to such modifications as may be necessary in relation to a case where—

(a) the person by whom a business, or part of a business, is owned immediately before a change is one of the persons by whom (whether as partners, trustees or otherwise) it is owned immediately after the change; or

(b) the persons by whom a business, or part of a business, is owned immediately before a change (whether as partners, trustees or otherwise) include the person by whom, or include one of the persons by whom, it is owned immediately after the change, as it has effect where the previous owner and the new owner are wholly different persons.

7. (6)        Nothing in this section shall be construed as requiring any variation of a contract of employment by agreement between the parties to be treated as constituting a termination of the contract.

7. (7)        Subject to the provisions of subsection (4) of section 11 this section shall not apply to a change whereby the ownership of a business for the purposes of which a person was employed by his deceased employer passes to a per representative of the deceased employer.

Contracts of employment for a fixed term.
8. (1)         Section 5 shall not apply to an employee who immediately before the relevant date is employed under a contract of employment for a fixed term of two years or a fixed more, if that contract was made before the appointed day (whether before or after the passing of this Act).

8. (2)        Without prejudice to subsection (1), an employee under a contract of employment for a fixed term of two years or more shall not be entitled to a redundancy payment in respect of the expiry of that term without its being renewed if before the term so expires he has agreed in writing to exclude any right to a redundancy payment in that event.

8. (3)        An agreement of the kind mentioned in subsection (2) may, in the case of a contract made after the passing of this Act, be contained either in the contract itself or in a separate agreement.

8. (4)        Where an agreement of the kind mentioned in sub(2) is made during the currency of a fixed term, and that term is renewed, that agreement shall not be construed as applying to the term as renewed, but without prejudice to the making of a further agreement of that kind in relation to the term as renewed.

Written particulars of redundancy payment.
9. (1)         An employer shall, on making any redundancy payment, give to the employee a written statement indicating how the amount of the payment has been calculated.

9. (2)        Any employer who without reasonable excuse fails to comply with subsection (1) shall be guilty of an offence and be liable on summary conviction before a Resident Magistrate to a fine not exceeding one hundred dollars and in default of payment to imprisonment for a term not exceeding three months.

9. (3)        If an employer fails to comply with subsection (1), then (without prejudice to any proceedings for an offence under subsection (2)) the employee may by notice in writing to the employer require him to give to the employee the written statement mentioned in subsection (1) within such period, not being less than one week beginning with the day on which the notice is giver’, as may he specified in the notice; and if the employer without reasonable excuse fails to comply with the notice he shall be guilty of an offence under this subsection and be liable on summary conviction before a Resident Magistrate to a fine not exceeding one hundred dollars and in default of payment to imprisonment for a term not exceeding three months and, in the case of a continuing offence, be liable to a further fine not exceed ten dollars for each day on which the offence continues after conviction.

Claims for redundancy payments.
10. (1)        Notwithstanding anything in the preceding provisions of this Part an employee shall not be entitled to a redundancy payment unless, before the end of the period of six months beginning with the relevant date-

(a) the payment has been agreed; or

(b) the employee has made a claim for the payment by notice in writing given to the employer; or

(c) proceedings have been commenced under this Act for the determination of the right of the employee to the payment or for the determination of the amount of the payment.

10. (2)        Where the employee dies before the end of the period of six months mentioned in subsection (1), and none of the events mentioned in paragraphs (a), (b) and (c) of that subsection occurs before his death, ~a claim by his personal representative for the payment shall, if it is made by notice in writing given to the employer before the end of the period of one year beginning with the relevant date, be of the same effect as if it were made by the employee in accordance with paragraph (b) of subsection (1).
    
Termination of contract by death, etc., of employer.
11. (1)        Where-

(a) any act on the part of an employer; or  

(b) any event affecting an employer (including, in the case of an individual, his death) –

operates so as to terminate a contract under which an employee is employed by him, that act or event shall for the purposes of this Part be treated as a termination of the contract by the employer, if apart from this subsection it would not constitute a termination of the contract by him.

11. (2)        Where subsection (1) applies and the employee’s contract of employment is not renewed and he is not reengaged under a new contract, as mentioned in subsection (5) of this section or in subsection (6) of section 5, he shall for the purposes of this Part be taken to be dismissed by reason of redundancy if the circumstances in which the contract is not renewed and he is not re-engaged as mentioned in subsection (5) of this section or in subsection (6) of section 5 are wholly or partly attributable to one or other of the facts specified in paragraphs (a) and (b) of subsection (2) of section 5.

11. (3)        For the purposes of subsection (2) of this section paragraph (a) of subsection (2) of section 5, in so far as it relates to the employer ceasing or intending to cease to carry on the business, shall be construed as if the reference to the employer included a reference to any person to whom, in consequence of the act or event referred to in subsection (1) of this section, power to dispose of the business has passed.

11. (4)        In this section any reference to subsection (6) of section 5 includes a reference to subsection (6) of section 5 as applied by subsection (2) of section 7.

11. (5)        Notwithstanding the provisions of subsection (1) an employee shall not be treated as having been dismissed by his deceased employer if—

(a) his contract of employment is renewed by a personal representative of the deceased employer, or he is re-engaged under a new contract by such a personal representative; and

(b) the renewal or re-engagement takes effect not later than six weeks after the death of the deceased employer.

11. (6)        Where, by reason of the death of an employer, an employee is treated for the purposes of this Part as having been dismissed by the deceased employer, that employee shall not be entitled to a redundancy payment in respect of such dismissal if a personal representative of the deceased employer has made to him an offer in writing to renew his contract of employment, or to re-engage him under a new contract, so that in accordance with the particulars specified in the offer the renewal or re-engagement would take effect not later than six weeks after the death of the deceased employer and-

(a) the provisions of the contract as renewed, or of the new contract, as the case may be, as to the capacity and place in which he would be employed, and as to the other terms and conditions of his employment, would not differ from the corresponding provisions of the contract as in force immediately before the death; or

(b) if, in accordance with the particulars specified in the offer, those provisions would differ (wholly or in part) from the corresponding provisions of the contract as in force immediately before the death, the offer constitutes an offer of suitable employment in relation to the employee,

and (in either case) the employee has unreasonably refused that offer.

11. (7)        For the purposes of subsection (6)-

(a) an offer shall not be treated as one whereby the provisions of the contract as renewed, or of the new contract, as the case may be, would differ from the corresponding provisions of the contract as in force immediately before the death of the deceased employer by reason only that the personal representative would be substituted as the employer for the deceased employer; and

(b) no account shall be taken of that substitution in determining whether the refusal of the offer was unreasonable.

11. (8)        Subject to the preceding provisions of this section. in relation to an employer who has died-

(a) any reference in this Part to the doing of anything by, or in relation to, an employer shall be construed as including a reference to the doing of that thing by, or in relation to, any personal representative of the deceased employer; and

(b) any reference in this Part to a thing required or authorized to be done by, or in relation to, an employer shall be construed as including a reference to anything which, in accordance with any provision of this Part as modified by this section is required or authorized by, or in relation to, any personal representative of the deceased employer.

11. (9)        Where, by virtue of any provision of this Part as modified by this section, a personal representative of the deceased employer is liable to pay a redundancy payment or part of a redundancy payment, and that liability had not accrued before the death of the deceased employer, it shall be treated for all purposes as if it were a liability of the dead employer which had accrued immediately before his death.

Death of employee.
12. (1)     Where an employer has given notice to an employee to terminate his contract of employment, and before that notice expires the employee dies, the provisions of this Part shall apply as if the contract had been duly terminated by the employer by notice expiring on the date of the em’s death.

12. (2)        Where an employer has given notice to an employee to terminate his contract of employment, and has offered to renew his contract of employment or to re-engage him under a new contract, then if-

(a) the employee dies without having either accepted or refused the offer; and

(b) the offer has not been withdrawn before his death, subsection (3) or subsection (4), as the case may be, of sec6 shall apply as if, for the words “the employee has unreasonably refused”, there were substituted the words “it would have been unreasonable on the part of the employee to refuse”.

12. (3)        Subject to the provisions of subsection (2) of section 10 and subsections (1) and (2) of this section, in relation to an employee who has died-

(a) any reference in this Part to the doing of anything by, or in relation to, an employee shall be construed as including a reference to the doing of that thing by, or in relation to, any personal representative of the deceased employee; and

(b) any reference in this Part to- a thing required or authorized to be done by, or in relation to, an employee shall be construed as including a reference to anything which, in accordance with any provision of this Part as modified by this section is required or authorized to be done by, or in relation to, any personal representative of the deceased employee.

12. (4)        Any right of a personal representative of a deceased employee to a redundancy payment, where that right had not accrued before the employee’s death, shall devolve as if it had accrued before his death.

Modification of the right to redundancy payment where previous redundancy payment has been paid.
13. (1)     The provisions of this section shall have effect where-

(a) a redundancy payment is paid to an employee; and

(b) the contract of employment under which he was employed (in this section referred to as “the previous contract”) is renewed, whether by the same or another employer, or he is re-engaged under a new contract of employment, whether by the same or another employer, and

(c) the circumstances of the renewal or re-engagement are such that, in determining for the purposes of section 5 whether at any subsequent time he has been continuously employed for the period specified in subsection (1) of that section, or for what period he has been continuously employed, the continuity of his period of employment would, apart from this section, be treated as not having been broken by the termination of the previous contract and the renewal or re-engagement.

13. (2)        Where the conditions mentioned in subsection (1) are fulfilled, then in determining, for the purposes of section 5. whether at any subsequent time the employee has been continuously employed for the period specified in subsection (1) of that section, or for what period he has been continuously employed, the continuity of the period of employment shall be treated as having been broken at the date which was the relevant date in relation to the redundancy payment mentioned in paragraph (a) of subsection (1), and accordingly no account shall be taken of any time before that date.

13. (3)        For the purposes of this section a redundancy payment shall be treated as having been paid if the whole of the payment has been paid to the employee or, in a case where the court has determined that the employer is liable to pay part (but not the whole) of the redundancy payment, that part of the redundancy payment has been paid in full.

Abatement of redundancy payment where compensation is payable under agreement.
14.        Where an employee is entitled-Abatement

(a)    to a redundancy payment; and

(b)    under an agreement between him, or a trade union representing him, and his employer or an organization representing his employer, to be paid compensation for the loss of his employment (not being compensation arising from a breach of contract),

nothing in this Part shall be taken to affect his right to be paid such compensation, but the amount of such compensation (or, where it is greater than the redundancy payment, such portion thereof as is equal to the redundancy payment) shall be deducted from the redundancy payment.

Associated companies.
15. (1)      Where the employer is a company, any reference in this Part to re-engagement by the employer shall be construed as a reference to re-engagement by that company or by any associated company, and any reference to an offer made by the employer shall be construed as including an offer made by an associated company.

15. (2)        Subsection (1) shall not affect the operation of section 7 in a case where the previous owner and the new owner (as defined by that section) are associated companies; and where that section applies, subsection (1) shall not apply.

15. (3)        Where an employee is dismissed by his employer, and the employer is a company (in this subsection referred to as “the employing company”) which has one or more associated companies, then if-

(a) neither of the conditions specified in paragraphs (a) and (b) of subsection (2) of section 5 is fulfilled; but

(b) one or other of those conditions would be fulfilled if the business of the employing company and the business of the associated company (or, if more than one, each of the associated companies) were treated as together constituting one business, that condition shall for the purposes of this Part be taken to be fulfilled in relation to the dismissal of the employee.

15. (4)        For the purposes of this section two companies shall be taken to be associated companies if one is a subsidiary of the other, or both are subsidiaries of a third company and “associated company” shall be construed accord  

15. (5)        In this section “company” includes any body corporate, and “subsidiary” has the same meaning as, by virtue of section 149 of the Companies Act, it has for the purposes of that Act.


PART IV.
Miscellaneous

Record to be kept.    
16. (1)     Every employer shall keep, in relation to each of his employees, a record in such form and containing such particulars as may be prescribed.

16. (2)        Any employer who fails to comply with the proof subsection (1) shall be guilty of an offence and shall be liable on summary conviction before a Resident Magistrate to a fine not exceeding three hundred dollars and in default of payment to imprisonment for a term not exceeding three months.

Jurisdiction of Resident Magistrates’ Courts.
17. Notwithstanding any provision in any enactment limiting the jurisdiction of Resident Magistrates’ Courts in relation to claims arising from contract, a Resident Magistrate’s Court shall have jurisdiction in any action arising from a contract of employment to which this Act applies, or from any claim in respect of a redundancy payment, in which the amount claimed does not exceed seven thousand dollars.

Regulations.
18. (1)        The Minister may make such regulations as appear to him to be necessary for the better carrying out of the provisions of this Act and, in particular but without prejudice to the generality of the foregoing, may make regulations—

(a) for determining the manner of computing an em’s period of employment and whether that period of employment has been continuous;

b) for determining, in relation to an employee engaged in seasonal employment, whether his employment during any season is continuous;

(c)  prescribing the manner of computing the remuneration of an employee during a period of notice;

(d) prescribing any other matter or anything which may be, or is required by this Act to be, prescribed.

18. (2)        Regulations made under this section shall be subject to affirmative resolution.


THE EMPLOYMENT (TERMINATION AND REDUNDANCY PAYMENTS) ACT

REGULATIONS
(under section 18)

The Employment (Termination and Redundancy Payments) Regulations, 1974

L.N. 500/74
Amd: L.N. 352B/75
*Vide L.N. 100/76
Amd: L.N. 90D/86



        
(Made by the Minister on the 9th day of December, 1974)

Citation.
1.        These Regulations may be cited as the Employment (Termination and Redundancy Payments) Regulations. 1974.

Interpretation and application.
2. (1)        In these Regulations. unless the context otherwise requires-

“normal wages” means, in relation to any employee, the remuneration regularly paid to him by his employer as wages or commission, and includes any amounts regularly so paid by way of bonus as part of such remuneration but does not include—

(a) any overtime wages; or

(b) any premium or special allowance paid—

(i)    in consideration of the times at which, or the conditions subject to which, or the circumstances in which, he works in the course of the performance of his duties; or

(ii)    in consideration of any inconvenience suffered or likely to be suffered by him in the course of the performance of his duties;

“normal working week” means the number of days in a week on which the employee in relation to whom that expression is used is normally required to work for his employer;

“week” means the period commencing immediately after twelve o’clock midnight on each Saturday and ending at twelve o’clock midnight on the Saturday next following;

“year of employment” means fifty-two weeks (whether continuous or discontinuous) which, in accordance with these Regulations count in computing a period of employment

2. (2)        Where the relevant date does not fail at the end of a week, any reference in these Regulations to the relevant date shall be construed as a reference to the end of the week in which that date falls.

2. (3)    These Regulations apply—

(a)    in relation to contracts of employment made before the coming into force of these Regulations and subsisting at the coming into force of these Regulations: and

(b)    in relation to periods of employment commencing before the coming into force of these Regulations and subsisting at the coming into force of these Regulations,

as they apply in relation to contracts of employment made, or periods of employment commencing, after the coming into force of these Regulations.

Manner of computing period of employment.
3.         An employee’s period of employment shall be computed in weeks and accordingly the periods of five, ten and fifteen years mentioned in section 3 of the Act shall be taken as 260, 520 and 780 weeks respectively.

Periods which count.
4. (1)         Subject to paragraph (8). any week in which an employee is employed for eighteen hours or more shall count as one week in computing that employee’s period of employment.

4. (2)        Subject to paragraph (8). if in any week an employee is. for the whole or part of the week—

(a) incapable of working in consequence of sickness or injury; or

(b) absent from work on account of a temporary cessation of work; or

(c) absent from work in circumstances such that by arrangement or custom, he is regarded as continuing in the employment of his employer for all or any purposes.

that week shall, notwithstanding that it does not fall under paragraph (1), count as one week in computing that employee’s period of employment.

4. (3)        If a business is transferred from one person to another, the period of employment of an employee in the business at the time of the transfer shall count as a period of employment with the transferee.

4. (4)        If an employee is. on the death of his employer, taken into the employment of a personal representative or trustee 01 the deceased employer, the employee’s period of employment with the deceased employer shall count as a period of employment with that personal representative or trustee.

4. (5)        If, after an interval of not more than two weeks after the ending of an employee’s contract of employment, his employer renews his contract or re-engages him in accordance with paragraph (b) of subsection (6) of section 5 of the Act, the period of that interval shall count as a period of employment.

4. (6)        If there is a change in the partners, personal representatives or trustees who employ any person, that employee’s period of employment at the time of the change shall count as a period of employment with the partners, personal representatives or trustees (as the case may be) after the change.

4. (7)        Where an employee of a company is taken into the employment of another company which, at the time when he is taken into its employment, is an associated company of the first-mentioned company, his period of employment with the first-mentioned company shall count as a period of employment with the associated company.

4. (8)        Any week beginning after the coming into force of these Regulations shall not count under paragraph (I) or (2) if during that week, or any part of that week, the employee takes part in a strike which prevents him from working for more than eighteen hours in that week.

4. (9)        In this regulation “strike” means a concerted stoppage of work by a group of employees in contemplation or furtherance of an industrial dispute, whether those employees are parties to the dispute or not.

4. (10)        Where an employee is dismissed by his employer, and—

(a) the dismissal is attributable wholly or partly to illness of the employee: and

(b) a redundancy payment is not paid to him: and

(c) the contract of employment under which he was employed (hereafter referred to as “the previous contract”) is renewed, whether by the same or by another employer, or be is re-engaged under a new contract of employment, whether by the same or by another employer: and

(d)    the renewal or re-engagement takes effect after an interval of not more than twenty-six weeks after the ending of the previous contract,

the continuity of the employee’s period of employment shall be treated as not having been broken by the interval referred to in sub-paragraph (d).

Continuity not broken.
5. (1)     The continuity of an employee’s period of employment is not broken—

(a) by the transfer referred to in paragraph (3) of regulation 4; or

(b) by the death of his employer if he is taken into the employment of a personal representative or trustee of the deceased; or

(c) by the interval referred to in paragraph (5) of regulation 4; or

(d) by the change referred to in paragraph (6) of regulation 4: or

(e) by a change of employment in the circumstances mentioned in paragraph (7) of regulation 4; or

(f) by any week which does not count by virtue of paragraph (8) of regulation 4; or

(g) by any period during which the employee is absent from work because of a lock-out by his employer; or

(h) by any period during which he is absent from work for the purpose of carrying out any duty imposed on him by the Government or any work which he carries out at the request of the Government with the permission of his employer.

5. (2)        In this regulation “lock-out” means action which, in contemplation or furtherance of an industrial dispute, is taken by one or more employers, whether parties to the dispute or not, and which consists of the exclusion of employees from one or more places of employment or of the suspension of work in one or more such places or of the collective, simultaneous or otherwise connected termination or suspension of employment of a group of employees.

Remuneration in respect of period of notice.
6. (1)     The remuneration of an employee in respect of each week of a period of notice shall—-

(a) in the case of an employee who has been employed at time rates, be the normal wages earned by him in respect of the last normal working week preceding the relevant date during which he has worked for his employer; and

(b) in the case of an employee who has been employed at piece or task rates or on a commission basis, be one-quarter of the aggregate normal wages earned by him in respect of the last four working weeks preceding the relevant date during which he has worked for his employer.

6. (2)        Any payment made to an employee by his employer as holiday remuneration, on the termination of that employee’s employer shall not be taken into account as part of his remuneration in respect of the period of notice.

Prescribed diseases Schedule.
7. (1) Each of the diseases set out in the first column of the Schedule is a prescribed disease for the purposes of paragraph (c) of subsection (2) of section 5 of the Act

7. (2)        If any employee who is employed in any occupation set out in the second column of the Schedule develops a disease set out against that occupation in the first column of the Schedule, that disease shall, unless the contrary is proved, be presumed to be due to the nature of his employment.

7. (3)        Where the employer of any employee who is employed In any occupation set out in the second column of the Schedule wishes to ascertain—

(a) whether that employee has developed a prescribed disease; or

(b) whether a prescribed disease which that employee has developed is due to the nature of his employment.

the employer may require him to submit himself to a medical examination by a medical practitioner chosen and paid by the employer.

7. (4)        An employee who is required to submit himself to a medical examination pursuant to paragraph (3) is entitled to require that a medical practitioner chosen and paid by him shall be given an opportunity to be present at the medical examination.

7. (5)        Where, as respects any of the questions mentioned in sub-paragraphs (a) and (b) of paragraph (3), there is disagreement between a medical practitioner chosen by an employer and one chosen by an employee, the matter shall be referred to the Chief Medical Officer, and any decision made by him in connection therewith shall be final.

Manner of calculating redundancy payments except for seasonal employees.
8. (1)         Subject to paragraph (2) the amount of the redundancy payment to which an employee other than an employee engaged in seasonal employment is entitled in respect of any period, ending with the relevant date, during which the employee has been continuously employed, shall be-

(a) in respect of a period not exceeding ten years of employment the sum arrived at by multiplying two weeks’ pay by the number of years;

(b) in respect of a period of more than ten years of employ-

(i)    for the first ten years reckoned, the sum arrived at by multiplying two weeks’ pay by that number of years; and

(ii)    for the years remaining, the sum arrived at by multiplying three weeks’ pay by the number of such remaining years.

8. (2)        For the purposes of paragraph (1)—

(a) the period during which an employee has been continuously employed shall be computed in accordance with regulations 3, 4 and 5:

(b) the number of years of employment falling within that period shall be reckoned backwards, starting with the relevant date, so, however, that where there is a part of a year -of employment remaining over, that part—

(i)     shall be disregarded if it does not exceed thirteen weeks;

(ii)     shall be reckoned as one-half of one year of employment if it exceeds thirteen weeks but does not exceed thirty-nine weeks: and

(iii)     shall be reckoned as one year of employment if it exceeds thirty-nine weeks:

(c) “three weeks’ pay” means-

(i)       three times the normal wages earned by the employee in respect of the last normal working week preceding the relevant date during which he has worked; or

(ii)     3/13 of the aggregate normal wages earned by him in respect of the last thirteen normal working weeks preceding the relevant date during which he has worked.

whichever is the greater;

“two weeks’ pay” means—

(i)     twice the normal wages earned by the employee in respect of the last normal working week preceding the relevant date during which he has worked: or

(ii)     2/13 of the aggregate normal wages earned by him in respect of the last thirteen normal working weeks preceding the relevant date during which he has worked,

whichever is the greater.

Manner of calculating redundancy payment for seasonal employees.
9. (1)        Subject to paragraph (2) the amount of the redundancy payment to which an employee engaged in seasonal employment is entitled in respect of consecutive years in which that employee has been engaged in continuous seasonal employment, shall be.—

(a) where the number of consecutive years does not exceed ten. the sum arrived at by multiplying two weeks’ pay by the number of years;

(b) where there are more than ten consecutive years-

(i)      for the first ten years reckoned, the sum arrived at by multiplying two weeks’ pay by that number of years; and

(ii)     for the years remaining, the sum arrived at by multiplying three weeks’ pay by the number of such remaining years.

9. (2)        For the purposes of paragraph (1)—

(a) an employee is engaged in continuous seasonal employment during any season in which-

(i) he works for not less than ninety days in the seasonal employment provided by his employer: or

(ii)    where the number of days of work referred to in sub(i) cannot be ascertained, he has earned, as normal wages in the seasonal employment provided by his employer, a sum equivalent to or greater than ninety times the established daily rate for the category of work performed by him in an area where there is such established daily rate; or

(iii)    where the number of days of work referred to in sub-paragraph (i) cannot be ascertained and there is no established daily rate of the kind referred to in sub-paragraph (ii), his name appeared on the pay-bills of his employer in respect of seasonal employment for not less than sixteen weeks;

(b) the number of consecutive years in which an employee has been engaged in continuous seasonal employment shall be reckoned backwards, starting with the last year preceding the relevant date;

(c) “three weeks’ pay” means 3/104 of the aggregate normal wages earned by the employee in the seasonal employment in which he has been engaged during the last two consecutive years preceding the relevant date;

“two weeks’ pay” means 2/104 of the aggregate normal wages earned by the employee in the seasonal employment in which he has been engaged during the last two consecutive years preceding the relevant date.

10.    The record required by section 16 of the Act to be kept by every employer shall contain-

(a) the name and address of the employer;

(b) the name and address of the employee:

(c) the date on which the employment of the employee commenced and; in the case of an employee who has been re-employed after the termination of his contract of employment, the date on which the re-employment commenced;

(d) an accurate description of the place at which the employee was ordinarily resident when he was engaged under the contract of employment;

(e)    an accurate description of the place at which the employee was present when the offer of employment was made to him by any means other than by advertisement or at which the contract of employment was made;

(f)    information as to the rate of the normal wages of the employee and his normal working week;

(g)    where the contract of employment of the employee has been terminated, particulars as to—

(i)    the relevant date;

(ii)    the period, ending with the relevant date, during which he was continuously employed or. if he was engaged in seasonal employment, the number of consecutive years for which he was engaged in continuous seasonal employment;

(iii)    the amount of redundancy payment, if any, paid to him.

Saving.
11.    Nothing in these Regulations shall be construed as preventing any employee from being paid more than the amount which he is entitled to receive under these Regulations as redundancy payment or as remuneration during a period of notice.


(Regulation 7)

In this Schedule “pneumoconiosis” means fibrosis of the lungs caused by sclerogenetic mineral dust, and- includes siico.tuheroulosis where silicosis is an essential factor in causing incapacity for work. -
        
Description of Disease
Nature of Occupation
1.
Pneumoconiosis. All occupations involving exposure to
  the risk concerned.
2.
Disease caused by beryllium or its toxic compounds. All occupations involving exposure to the risk concerned.
3.
Disease caused by phosphorous or its toxic compounds. All occupations involving exposure to the risk concerned
4.
Disease caused by chrome or its toxic compounds. All occupations involving exposure to the risk concerned
5.
Disease caused by manganese or its toxic compounds. All occupations involving exposure to the risk concerned
6.
Disease caused by arsenic or its toxic compounds. All occupations involving exposure to the risk concerned
7.
Disease caused by mercury or its toxic compounds. All occupations involving exposure to the risk concerned
8.
Disease caused by lead or its toxic compounds. All occupations involving exposure to the risk concerned
9.
Disease caused by carbon bisulphide. All occupations involving exposure to the risk concerned
10.
Disease caused by toxic halogen exposure derivatives of hydrocarbons of the aliphatic series All occupations involving exposure to the risk concerned
11.
Disease caused by benzene or its toxic homologues All occupations involving exposure to the risk concerned
12.
Disease caused by nitro- and amido-toxic derivatives of benzene or its homologues All occupations involving exposure to the risk concerned
13.
Disease caused by ionising radiation. All occupations involving exposure to the risk concerned
14.
Primary epitheliomatous cancer of the skin caused by tar, pitch, bitumen, mineral oil, or the compounds, products or red-dues of those substances. All occupations involving exposure to the risk concerned
15.
Anthrax infection, All occupations involving:
  1. a) work in connection with animals infected with an;
  2. b) handling of animals carcasses or parts of such carcasses including hides, hoofs and horns;
  3. c) loading or unloading or transport of merchandise which may have been contaminated by animals or animal carcasses infected with anthrax.