Atchia S O v Air Mauritius Ltd 2017 SCJ 181
Mr. S was employed by the national company AML since 1st September 1972. As per his contract of employment, he was to retire at the age of 60 years i.e. as from 21st August 2009. On 31st October 2008, the Ministry of Employment, Labour and Industrial Relations issued a ‘communiqué’ that retirement age has been extended to 65 years.
The Employment Rights Act 2008 (‘ERA’), which came into force in February 2009, provided that a worker, whose month and year of birth were mentioned in the first column was to retire at the date specified in the second column of the First Schedule. Accordingly, Mr. S was to retire on 20 September 2010. He claimed that on 21st August 2009, he was forced to retire despite the issuance of the ‘communiqué’ and several requests made by him to work until September 2010.
AML raised a defense that pursuant to the transitional provisions i.e. section 71, coupled with section 49 of the Act, an employee can only retire at a date other than that provided for in his contract of employment, if and only if there was consensual agreement between the employer and employee. AML therefore argued that given that there was no such agreement, the contractual date should prevail.
Section 71 (1) of the ERA provides that:
“The terms and conditions on which a person was employed immediately before the commencement of this Act shall continue, unless the worker and the employer agree otherwise.”
Upon the application of section 5(B) of the Interpretation and General Clauses Act which provides that:
“Effect shall be given to each enactment according to its true intent, meaning and spirit.”
The Court stated that the intention of the legislator was clear as to the extent and purport of the transitional provision as set out in section 71(1) of the ERA. This was later confirmed by the amendment brought to section 49 of the Employment Rights (Amendment) Act 2013 (‘the 2013 amendment’), by inserting a new subsection (1) (A) which stipulates:
“Notwithstanding any agreement or any provision to the contrary in any other enactment, an employer shall not require a worker to retire before the retirement age.”
Clearly, it was only as from the 2013 amendment, which became effective as from 11 June 2013 that the legislator had decided on the inviolability of the statutory retirement age requirement.
As the issue arose in 2009 the Court held that the 2013 amendment cannot be invoked in favour of Mr. S and the transitional provision was applicable. Hence upon application of the transitional provision, the Court dismissed the case of Mr. S as no agreement was reached between AML and Mr. S which would have allowed him to retire in September 2010.
By nature a transitional provision will only facilitate the transition from one statute to another and is often intended to apply for a limited amount of time.
Employment rights act – retirement age – transitional provision