Assembly approves amendments to Employment Act |09 September 2021

The National Assembly yesterday approved amendments to the Employment Act, which was presented by the Minister for Employment and Social Affairs Patricia Francourt in regards to the ways in which employment benefits are distributed following the death of a worker.

The amendment in the act will now allow for an employee to make a declaration, stating to whom his or her benefits should be distributed to upon their death if they are in continuous employment. The employee may choose more than one person on this declaration.

Although the Employment Act of 1995 states that compensation must be paid when an employee passes away while in continuous service, prior to yesterday’s amendments, the procedures to distribute this benefit was not defined in the Employment Act except for workers on outer islands.

In the case of the death of a worker on outer island, the law made provisions for their properties, wages and salaries to be handed over to an officer at the employment department but it did not explain for workers on the inner islands.

“For all other workers a practice was introduced a long time ago to facilitate the distribution of employment benefits equitably to the inheritors,” stated Minister Francourt.

Minister Francourt said that this was because, at that time, the country did not have many lawyers and procedures to distribute inheritances are quite complex.

Under this practice, an employer would submit all of the deceased worker’s benefits to the employment department following which the department, with the assistance of the Attorney General’s office, distributes these benefits as per the Civil Code.

However in the circumstances when a worker passes away, the employment connection between the employee and employer is terminated and hence there is no legal basis as to the intervention of the employment department and the Office of the Attorney General.

This created various legal complications because sometimes the person who comes to claim the benefits at the employment department is not the legal inheritor and when their claim is refused this creates some emotional distress, explained Minister Francourt.

This practice also placed the employment department in danger of being sued especially since the department does not have the ability to identify all of the potential inheritors.

The legislation also did not make provisions for the distribution of benefits overseas in cases when an expatriate worker passes away.

Now, with the amendments the responsibility of choosing the beneficiary or beneficiaries of the employment benefits lies solely on the worker.

The new amendments also make provisions to change beneficiaries at any point while in employment.

“Now when the worker passes away during employment, the employer will have to pay the benefits to the beneficiaries stated in the declaration with the conditions that there is proof of death and the beneficiary is able to prove his or her own identity,” added Minister Francourt.

“If there are multiple beneficiaries, the benefits should be distributed based on the portions stated by the deceased worker in the declaration. If the worker did not specify the portions then the benefits are to be distributed equally.”

In order to be considered legitimate, the declaration will have to be signed in the presence of the employer, a notary or a lawyer and a witness.

In instances where the worker has some form of physical disability, the declaration must be read out and the worker must verbally agree to what has been read out.

Once the employer receives the declaration it must provide a document confirming receipt.

The employer must also register the details of the declaration in a special registry which must be kept up to date at all times and failing to have such a registry is considered an offence which can see the employer faced with a fine of up to R20,000.

The worker must undergo the declaration process when they change employment.

The declaration made by the deceased worker however does not stop a person who believes they should inherit the employment benefits from claiming the employment benefits from the beneficiaries.

On the off chance that beneficiaries do not claim the employment benefits in the length of two years, the benefits are to be placed with the state until someone claims it.

The amendments were approved by the National Assembly unanimously, with 27 votes in favour.

Elsie Pointe