Computation of time in employment related matters: Play Safe!

The Appeal

The Appellant, Bayport Management Limited (Bayport) challenged the decision of the Industrial Court dated 14 June 2023, which ordered it to pay the respondent, L M Sowkhee (Sowkhee), one month’s wages in lieu of notice and severance allowance for 98 months of continuous service with interest at the rate of 12% per annum from the date of termination to the date of final payment.

The Challenge

The focus of the challenge was the learned magistrate’s finding in law that the Bayport, as an employer, had not given to Sowkhee, the employee, the statutory notice under section 64(2)(a)(iii)of the Workers’ Rights Act.

Section 64(2)(iii)of the WRA reads as follows: –

“64. Protection against termination of agreement

1. An agreement shall not be terminated by an employer by reason of …
2. Subject to subsection (3), no employer shall terminate a worker’s agreement(a)for reasons related to the worker’s alleged misconduct, unless –

• the employer has, within 10 days of the day on which he becomes aware of the alleged misconduct, notified the worker of the charge made against the worker;
• the worker has been given an opportunity to answer any charge made against him in relation to his alleged misconduct….
• the worker has been given at least 7 days’ notice to answer any charge made against him in the oral hearing;
• the employer cannot in good faith take any other course of action; and
• the termination is effected not later than 7 days after the worker has answered the charge made against him in an oral hearing.”

Summary of facts

Sowkhee was suspended from work on 14 November 2019. On 21 November 2019, Sowkhee was notified of the charges against her and she was requested to appear before a disciplinary hearing which was scheduled on 28 November 2019. Sowkhee attended the disciplinary hearing and was legally represented.

In computing the seven days’ notice under section 64(2)(a)(iii) of the WRA, the Learned Magistrate relied on section 38(1)(b) of the Interpretation and General Clauses Act (“the IGCA”) and found that the date when the notice was issued must be excluded from the calculation.

Section 38(1) of the IGCA provides:

“38.Computation of time

(1)in computing time for the purposes of any enactment or document –

• where the time limited for the doing of an act expires or falls on a Saturday or a Saturday or a public holiday, the act may be done on the following day that is not a public holiday;
• where there is a reference to a number of days between 2 events, whether expressed by reference to a number of clear days or “at least” a number of days or otherwise, the days on which the events happen shall be excluded in calculating the number of days;
• where an act or proceeding is directed or allowed to be done or taken on a certain day, then, if that day is a Saturday or a public holiday, the act or proceeding may be considered as done or taken in due time if it is done or taken on the following day that is not a public holiday;
• where there is a reference to a period of time specified to run from a given date, the period of time so specified shall be calculated do as to include the given day.”

Appeal allowed- Computation of time includes the day on which the notice is given to the employee

The Supreme Court referred to the case of High Security (Guards)Ltd v Fareedun (2009 SCJ 48) which authoritatively reiterated that where statute provides a time limit for doing something from a given event the dies a quo must be included in the computation.

Allowing the appeal, the Supreme Court held that Section 64(2)(a)(iii) of the WRA does not envisage any two events but simply states that a worker must have at least seven days’ notice before the oral hearing. Time begins to run from the day that notice is given and includes that day.

Commentary

Employers should always err on the side of caution and ensure that they do not leave it to the last minute to serve a notice or a document upon an employee. There are often questions arising as to what happens if the employee evades service of the notice/document? Measures exist to deal with such situations, which are not uncommon. The employer should be proactive in anticipating moves from their employees and their advisers.