BY Dieudonné Nzafashwanayo
New Ministerial Orders cast light onto gross misconduct and working hours, and introduce death allowance in private sector
On 20 March 2020, the Rwandan Government issued nine ministerial orders implementing the Labour Code that entered into force in September 2018. The said Ministerial Orders implement the Labour Code and provide for further details on a number of aspects falling under their respective purviews, namely:
- the organisation of labour inspection;
- determination of gross misconducts;
- election of employees representatives and their responsibilities;
- determination of essential services that should not be interrupted during strike or lock-out;
- implementation of the weekly working hours in private sector;
- employee training;
- minimum content of a written employment contract; and
- funeral expenses and death allowances.
This article focuses on the Ministerial Order establishing the List of Gross Misconducts (N° 002/19.20 of 17/03/2020), the Ministerial Order on Working Hours (N° 005/19.20 of 17/03/2020) and the Ministerial Order on Funeral Expenses and Death Allowances (N° 009/19.20 of 17/03/2020).
The Ministerial Order establishing the List of Gross Misconducts sets out a list of acts and conducts that, when committed or displayed by an employee, warrant his or her summary termination. In terms of article 2 of this Order, the acts constituting gross misconduct are:
- fighting at the workplace;
- taking alcoholic drinks at the workplace;
- being on duty under the influence of alcohol or drugs;
- any form of discrimination at the workplace;
- sexual harassment;
- offering or receiving bribes or illicit benefit;
- unlawfully obtaining or divulging work-related confidential information;
- behaviour calculated to endanger the health and safety of others at workplace;
- gender-based violence at workplace;
- illegal strike; and
- intentional destruction of work equipment.
The Ministerial Order also gives some leeway to employers by allowing them to include in their rules of procedures additional acts constituting gross misconduct subject to the prior approval of the minister in charge of labour and notification to the employee. Where an employer is not required to have internal rules in place, such additional list of acts constituting gross misconduct must be notified to all employees in order to be enforceable within the enterprise.
While the Ministerial Order does not provide for definitions of each act and conduct tantamount to gross misconduct, it nonetheless brings much-needed certainty, and will be welcome by employers who previously grappled with determination as to whether a given fault imputable to an employee would constitute a gross misconduct allowing summary dismissal, since such determination had been left to the sole discretion of courts. Employers have had troubles determining when to terminate employment relationship for gross misconduct, and accordingly, without notice especially that in case the court found otherwise such termination would be construed as unfair dismissal with all its implications coming into play. Employers should nevertheless still be careful when terminating employees for gross misconduct and ensure that the concerned employee is terminated within 48 hours counting from the time the relevant evidence is obtained as it is a settled precedent by the Supreme Court that non-compliance with this period negates the gravity of the alleged misconduct and renders the termination of employment contract an unfair dismissal (see Hakizimana Gilbert v NISR).
The Ministerial Order on Working Hours is not much different from the repealed one (Ministerial Order n° 04/19.19 of 17/09/2009), but clarifies the concept of overtime. It unequivocally provides that overtime hours are hours worked for after 45 hours per week or hours exceeding the working hours stated in working timetable, in case the weekly working hours in a specific enterprise are below 45 hours. This suggests that the employer and the employee cannot validly agree on the weekly working hours exceeding 45 hours and any time beyond 45 hours per week would be overtime and dealt with accordingly.
Under this Ministerial Order, overtime worked by an employee will be compensated with time in lieu equal to the extra time which must be granted by the employer within a period not exceeding 30 days; failing which such overtime will be remunerated accordingly during the following month. It should however be noted that, in order to give rise to monetary payment or time in lieu as said above, overtime work must have been requested by the employer.
Funeral expenses and death allowances
The Ministerial Order on Funeral Expenses and Death Allowances provides for the amount for funeral expenses and death allowance payable by the employer to the family of the deceased employee. Similarly to its predecessor (Ministerial Order n°01 of 02/07/2010), it provides that the employer grants to the deceased employee’s family funeral expenses equal to the deceased employee’s gross salary of one month. It should be however noted that unlike the repealed ministerial order which set the minimum amount of funeral expenses to FRW50 000 regardless of the employees gross salary, the new ministerial order sets this amount at FRW200 000.
This Ministerial Order also introduces the death allowance equal to three times the gross salary of the deceased employee. This was not provided for under the repealed ministerial order. It should be noted that pursuant to the ruling issued by the Rwanda Revenue Authority on 12 February 2019, death allowance is not a taxable income.
For more information regarding the implications of the issued nine ministerial orders on your business, please contact:
Reviewed by Fred Byabagabo, a partner in ENSafrica’ s Rwanda office.
ENSafrica Rwanda | Senior Associate
+250 733 300 305