TABLE OF CONTENTS
TABLE OF CONTENTS
LIST OF CASES
LIST OF STATUTES
LIST OF ABBREVIATIONS
CHAPTER ONE GENERAL INTRODUCTION
1.1 Background to the Study
1.2 Statement of the Problem
1.3 Research Questions
1.4 Research Objectives
1.4.1. Main objective
1.4.2 Specific objectives
1.5 Research Methodology
1.7 Significance of the Study
1.8 Literature Review
1.9 Theoretical Framework
1.10. Scope of the Study
1.12 Definition of the Key Terms
CHAPTER TWO ASSESSEMENT OF MODES OF DETERMINATION OF CONTRACTS OF EMPLOYMENT IN CAMEROON
2.1 Definition and Nature of Employment Contracts
2.2 Termination and Modes Termination of Employment Contracts
2.2.1 Modes of Termination of Employment Contracts
2.2.1(a) Termination by Operation of Law
2.2.1(b) Termination by Intention of parties (mutual agreement)
2.2.1(c) Termination by Service of Notice
2.2.1(d) Termination by performance
2.2.1(e) Termination by Resignation
2.2.1(f)Termination by Dismissal
CHAPTER THREE A CRITICAL EXAMINATION OF THE APPLICABILITY OF THE ILO STANDARDS ON TERMINATION OF EMPLOYMENT CONTRACTSIN CAMEROON
3.1 Meaning of Labour Standards
3.2 ILO Standards on Unfair Dismissal
3.3 Benefits of International Labour Standards
3.4 Unfair Dismissal Situations in Cameroon
3.4.1 Dismissal without Reason
3.4.2 Dismissal without Notice
3.4.3 Dismissal during Maternity Leave
3.4.4 Termination Based on Illness
CHAPTER FOUR MECHANISMS FOR THE PROTECTION OF WORKERS AGAINST UNFAIR DISMISSAL AND THE AVAILABLE REMEDIES IN CAMEROON
4.1 Mechanisms for the Protection of Workers against Unfair Dismissal in Cameroon
4.1.1 The National Labour Advisory Board
4.1.2 The Inspectorate of Labour and Social Security
188.8.131.52 An Assessment of the Role of the Labour Inspector in the Protection of Workers against Unfair Dismissal in Cameroon.
4.1.3 Judicial Structures and the Protection of Worker’s against Unfair Dismissal in Cameroon
184.108.40.206 The High Court and the protection of Workers Against Unfair Dismissal in Cameroon
220.127.116.11 The Court of Appeal and Protection of Workers against Unfair Dismissal
4.1.4 Regional Administrative Tribunals and the Protection of Workers against Unfair Termination
4.1.5 The Supreme Court and the Protection of Workers against Unfair Dismissal in Cameroon
4.2 An Assessment of the Remedies for Wrongful Termination of Contracts of Employment
4.2.1 Re-instatement as a Remedy for wrongful Termination
4.2.2 Damages as Remedy for Wrongful Termination
4.2.3 Severance Pay as Remedy for Wrongful Termination
4.2.4 Claims for loss of Remuneration
4.2.5 Aggravated, Punitive and “Bad Faith” Damages
4.2.6 Injunctive & Affirmative Relief
CHAPTER FIVE SUMMARY OF FINDINGS, CONCLUSION AND RECOMMENDATIONS
5.1 Summary of Findings
5.3.1 Recommendation on Termination of Contracts of Employment
5.3.2 Recommendation on the Applicability of the ILO Standards on Termination of Employment Contracts
5.3.3 Recommendation on the Mechanisms and Remedies put in place to protect employee’s rights in the face of unfair dismissal
Appendix: ILO Convention No 158
This work is dedicated to God Almighty through whose infinite mercy I have gone this far.
UNIVERSITY OF BUEA
FACULTY OF LAWS AND DEPARTMENT OF
POLITICAL SCIENCE ENGLISH LAW
Abbildung in dieser Leseprobe nicht enthalten
May I first and foremost acknowledge my ebullient supervisor Prof. Irene Sama-Lang for the support and guidance throughout this period of research. Her patience and relentless effort has made this project a reality.
Special thanks also goes to the staff of the Department of English Law such as Prof. Martha Tumnde, Prof. Jonie Fonyam, Dr Sone Patience, Dr Ekome Emmanuel, Dr Mbifi Richard, Dr Djiefack Roland, Prof. Alvine Boma, Dr Lekunze Benvolio, and Dr Monkam Cyrille whose teachings throughout my years in the University of Buea have to a large extent contributed to my knowledge in this area of research.
My immense gratitude also goes to my parents, Mr and Mrs Ngenge Divine Tangwa who have never stop being inspirational, encouraging and supportive both financially and spiritually. To my friends most especially Mr Ndi Martin, State Counsel Yata Eric, Nsalar Blessing, Fanka Faith Koye Taju, Bellah Ernest Fonya, Nginge Nadia, Ada Mbia Ekolok, Tonga Benjamin and Akwe Ray, I say a big thank you for your moral, financial and spiritual support that adequately pulled me forward to the success of this work.
I will not forget Mr Patrick Akamin, Barrister Dickson Mbumbuh, State Counsel Mbah Elvis and Barrister Tchana Anthony for their intellectual support to the realization of this thesis.
Lastly but not the least, my profound thanks goes to the almighty God for sustaining and given me good health, providing for my finances and most especially giving me the grace to push through and overcome all the obstacles in the course of writing.
The ILO in order to bring to an end the concept of “at will” termination which was the practice in most countries adopted, the Termination of Employment Convention No 158 of 1982. The aim of this Convention was to do away with unfair dismissal situations which existed in most countries. Irrespective of the existence of the above Convention, the practice of determination of contracts of employment in Cameroon is employer -friendly as the employer is free to determine(terminate) the contract of his employee for a cause or no reason at all. This principle runs in contradiction with the ILO Convention No 158 of 1982, a treaty duly ratified by Cameroon which provides in Article 4 for termination based on a valid reason. Another problem which has escalated unfair termination is the poor-implementation of the existing laws regulating termination of employment contracts in Cameroon both at the international and national levels. Though there exist several structures such as the Labour inspectorate which are in place to ensure the protection of workers against unfair termination, unfair termination has remained a pertinent issue in the Cameroon economy. To be able to properly investigate the issues raised, the researcher adopted the doctrinal approach to research. Random interview of some key informants was also conducted which helped the researcher to arrive at adequate findings and conclusions. After employing the above methods, it was found that unfair dismissal continues to exist in Cameroon due to the poor implementation and lack of a supervisory body to ensure that the structures that exist to protect workers do their job in providing proper protection against unfair termination. From the findings, it was concluded that the applicability of the ILO Convention No 158 has been a failure in Cameroon. Thus, to provide adequate security to workers, the researcher recommended that the Cameroon labour code should be amended to meet up with the provisions of the convention and also a supervisory body be put in place to ensure compliance with the convention by the powers that be as this will ensure and increase security of Labour for workers.
Keywords: Termination of Employment Contract, Determination, work, Unfair Dismissal.
LIST OF CASES
Abkem v Labour Inspector of Meme Division Suit No HCK/L.9/1983 94, 98
Affair Maitre Penda v Evina Joseph C.S Judgment No 32/S of 21 Jan. 1984 93
Assurrances Des Provinces Reunis v Tiogum David (1999) CCLR 462 47, 60
CARFOP v. Kan Enroy Moses Payne [ 2001] 1 CCLR 23
Catholic Education Secretary v Atem Mary Musone Suit No. CASWP/L.1/04-05--50, 51
Catholic Education Secretary v Ndip Aaron Oben Suit No. CASW/L.12/2001-2002(unreported) 55
Danji Marc v College du Progres Appeal No 44 of 4/2/1969 117
David Matikke v CDC 2012 1 CCLR 88, 82
Education Board of Baptize Convention v Robenson Fell Fominyin Suit No BCA/3 55
Elakie Ngolo Emmanuel v CDC Suit No HCF/L.13/2000-2001.P 60-74 43, 102
Emanyi Njefi Anthony v Harp Distribution Services 2012 1CCLR (P.94) 80
Fomben Thomas T v Societte Nationale Des Eaux Du Cameroon (S.N.E.C) HCF/L.49/99 80
Fotse v Societe Activa S.A CASWP/L11/2001 101, 126
General Manager CDC v Andrew S. Nfor (1999) 1 CCLR 11 101
John Anagha v Agip Cameroon S.A. Suit No. WC/11A/69 HC (unreported) 36
Linonge v Six International Suit No. HCD/L.20/1987 (unreported 114
Mazioh Claude v S.E.A.C Appeal No 45 OF 25/4/1974 28
N. Nso Richard v Parc National De Genie Civil Suit No HCB/5.L/98-99 41, 42
National Social Insurance Fund(CNPS) v Kuma Ndumbe Appeal No.97/5/02-03 of 5 August, 1998 106
Ndop v Yenkong (1994) CAJ-CLC 96
Ngo Minyemeck Catherine v COMACICO Appeal No 25 of 21/3/1974 27, 28
Nkufotoh Tifu Micheal v Kom Area Cooperative Union Ltd Suit No Bca/27L/80 54
Pamol Plantations v William N. Kimbeng CASWP/L22/2004/IM/04 100, 120
Simon Tamnjong & 6 others v Cameroon Tea Estate (CASWR/L.14/2009 96, 104,105
Societe Shell Cameroon S.A v Kemayou Henri Appeal No 79/S/4-05 of 12/5/2005 51
SYNES v Dorothy Njeuma CASWP/L.11/2007M/2008 108, 109
Tagne Olivier v Tagne Jean Michel Appeal No 68 of 30/5/1972 42
Total Final ELF v Nounda Martin Appeal No 146/5/02-03 of 10 Jan, 2002 103
TRAPP Gruopement d’ Enterprise v Che Guza Cletus Appeal No. BCA/2.1/98-32, 86
University of Buea v Mbua Teke Appeal No 16/s/02-03 of 21/5/2002 119, 120
Victor Oyebog v C.D.C Suit No CASWP/L.10/2004 47, 50, 53, 81
Wirsly v Sodepa (1997) CCLR 79
Ajayi v Texaco (Nig) Ltd [ 1987] 3 NWLR 39, 52
Brien v Niagara Motors Limited 2009 ONCA 887 129
Burton v Litton Business Pty (1977) 16 SASR 169 127
Dans Contractor Ltd v Fareham D.C (1956) ac 696 30
Hare v Murphy Brothers 1994 1RLR 342 35
Honda v Keays 2008 2 SCR 128, 129, 130
Iderima v R.S.C.S.C 1995 16 NWLR 67
Imoloane v WAEC (1992) 2 N.S.C.C.S 39, 70
Iran v Southanpton Case 19851CR 590 135
Macauslane v Fisher & Paykel Finance Pty 20031 Qd R 503 127
Momoh v CBN 20071 4NWLR 208 79
NSW Cancer Council v Sarfaty (1992) 28 NSWLR 68 127
Nwagbanebi v N.P.P.N 1986 3NWLR 489 121
Olaniyan v University of Lagos (1985) All NCR 111
Palmanour Ltd v Cedron (978) IC 1008 59
Robb v Hammersmith and Fulham London Borough Council 1991 1RLR 72 130
Spain v Arnott (1817) 171 ER 638 48
Strizzi v Cursons Management Associates Inc 2011 ONSC 4292 (Canlii) 129
Trampshipping Corporation v Greenwhich Marine Inc (1975) 2 ALL ER 989 61
Turner v Mason (1945) 1 M & W, 112 55, 56
Useni v Bank of West Africa Ltd (1961) 1All NLR 244 52
Walllace v United Grain Growers 1997 3 SCR 129
LIST OF STATUTES
Termination of Employment Recommendation, 1963(No 119) 1, 10, 70
ILO Convention No 144, 1976 on Tripartite Consultation 102
ILO Convention No. 158, 1982 on Termination of Employment 1,3, 70, 77, 115, 109, 122, 134, 137
Labour Code 1974, Law No. 74/14 OF 27th November 1974 16
Labour Code 1992, Law No. 92/007 of 14th August 1992 3 18, 23, 26, 47, 85, 108,113
Law No.2006/015 of the 29th December 2006 on Judicial Organisation of Cameroon 99, 106
Law No 2006/022 OF 29th December, 2006 Instituting Administrative Courts at the Regional Head Quarters 106
Subordinated Cameroonian Laws
Ministerial Order No 016/MTPS/CJ/OT of 26th May, 1993 setting the terms for compensation and calculation of severance pay 43, 124
Order No.015/MTPS/SG/CJ of 26 May 1993 stating the conditions and duration of notice period 441
LIST OF ABBREVIATIONS
ADR Alternative Dispute Resolution
AJICL African Journal of International Comparative Law
ALL ER All England Reports
BCA Bamenda Court of Appeal
CASWP Court of Appeal South West Region
CCJA Common Court of Justice and Arbitration
CCLR Cameroon Common Law Report
CDC Cameroon Development Corporation
CNPS National Social Insurance Fund
CTE Cameroon Tea Estate
FCFA Franc, Communaute Financiere Africain
HCB High Court Buea
HCF High Court Fako
HCK High Court Kumba
ICESCR The International Covenant on Economic, Social, and Cultural Right
ILO International Labour Organisation
JCA Judge Court of Appeal
NCLR Nigeria Constitutional Law Report
NCSC The National Computer Security Centre
NJLIR Nigerian Journal of Labour and Industrial Relation
NLR Nigerian Law Report
NWLR Nigerian Weekly Law Report
SC Supreme Court
UNDHR United Nations Declaration of Human Rights
1.1 Background to the Study
The practice of determination of contracts of employment in Cameroon is employer friendly. This is premised on the fact that the employer is free to determine (terminate) the contract of his employee for cause or no reason at all. This is in contradistinction with the law and practice across the world1 or the ILO standards. This shows that the law and practice of determination of contract of employment in Cameroon differ with those of other countries. The difference is occasioned by the fact that, some countries across the world have moved away from dismissal “at will” which permits the employer to terminate the contract of employment of his employee for bad or for no reason at all2 but must give reasons for termination to a justified dismissal. The move away from unjustified dismissal saw the day light with the ILO which adopted the ILO Termination of Employment Recommendation and the ILO Termination of Employment Convention3. This convention in its article 5 states a good number of reasons not constituting valid reasons for termination of employment contracts4.
Article 7 of the same convention clearly stipulates that “the employment of a worker shall not be terminated for the reasons related to the worker’s conductor performance before he is provided an opportunity to defend himself against the allegations made, unless the employer cannot reasonably be expected to provide his opportunity”5.
Despite this effort by the ILO towards ensuring a policy of fair dismissal, Cameroon is still in full practice of at will termination of employment contracts by the employer contrary to the law, and at the detriment of the employee.6 The none applicability of the convention containing ILO standards on unfair dismissal leave Cameroon with practices which are unfair in the global perspective. It is in this light that the right to terminate a contract of employment is subject to some limitations as per the International Organization Labour Convention7 and the violation of this by employer is at his own peril.
In law, unfair dismissal is a situation which an employee’s contract of employment is terminated by the employer without any just cause where the termination breaches one or more terms of the contract of employment or a statutory provision or a rule in employment law8. For instance, when an employer fires an employee for reasons that are considered illegal since it is in violation of anti-discrimination laws or contractual obligation. This might mean an employer fired an employee who was under an existing contract or because of a protected right such as the employee’s colour, sex, or religious preference9, gender, ethnic background, religion or disability.
The concept of “unfair” or “unjustified” dismissal was developed to restrict the scope of employers’ “at will” powers10 of terminating contracts of employment. The rise of labour movement, increasing levels of industrial disputes and the growing recognition of the need to protect workers sparked a change in the thinking of the legislators who at the dawn of the twentieth century, began to modify the substantive provisions of the regulation in this area establishing that dismissal should be based on valid reasons11.
1.2 Statement of the Problem
During the economic expansion of the 1960s and later during the 1970s, protective standards on employment security were regularly incorporated into national labour laws, and the content of those standards were broadened in countries with a tradition of labour legislation12. Unfair dismissal is one of the problems plaguing employees in developing countries especially Cameroon. Unfair dismissal practices have put employees in Cameroon in a “begger has no choice”13 situation as the Labour Code is employer-friendly giving superior powers to the employer. Although S.34 of the Labour Code specifically requires termination to be for cause, the fact that the remedies for unfair dismissal specifically provide only for damages, leaves much to be desired.
There exists a number of mechanisms in Cameroon which are in place to ensure the protection of employees against wrongful discharge of contracts of employment the most eminent of which is the 1992 Labour Code which is the main legislative document regulating employments relations in Cameroon. In addition to the above, Cameroon is a signatory to the ILO Convention on Termination of Employment Contracts14 which is the main law regulating Termination of employment contracts at the International level.
Despite Government efforts both municipal and international, unfair dismissal is still on the rise in Cameroon. Several reasons account for this prominent of which is the fact that the labour code is employer friendly leaving much to be desired in issues of determination of contracts of employment as it runs in contradictions with ratified treaties. For example, section 34 of the Code gives an upper hand for determination of an employment contract for no cause provided notice is issued contrary to the specification of the ILO Convention No 158 on determination based on valid reasons as stipulated in Article 4.
Another problem escalating unfair dismissal is the poor-implementation of existing laws regulating termination of employment Contracts in Cameroon. Despite being a signatory to the 1986 ILO Convention on Termination of Contracts of Employment, Cameroon has failed to implement and enforce the terms of the Convention notwithstanding the fact that all duly ratified treaties take precedence over national laws as per the 1996 constitution as revised. This is compounded by the fact that the labour code does not make provisions for what will amount to wrongful dismissal. This gives room for the employer to terminate the contract at without cause. This has further promoted ignorance on the part of workers in relation to the provisions of the Convention and their rights to seek recourse based on the terms of the convention are thus deprived.
Also, the mechanisms put in place in Cameroon to see to the protection of employees especially unfair policies of termination lack the adequate instruments and a supervisory body to ensure that they carry out their duties as stipulated by the laws. To this effect, unfair dismissal has been a continuous issue affecting the Cameroonian workers as the structures put in place (such as the Labour Inspectorate and the Courts) to ensure their protection has failed to effectively take up their responsibilities.
To make matters worse, the remedies available under the Cameroon Labour Code for wrongfully dismissed workers are not sufficient enough to compensate a wrongfully dismissed worker. For this reason, coupled with the reasons stated above, Cameroonian workers have continued to suffer wrongful dismissal which go by without any reasonable remedy of the situation. Thus, this research seeks to find out the extent to which Cameroon respects and incorporates the standards laid down by the 1982 Convention on termination of employment contracts. It also analyses the mechanisms for the protection of workers’ rights particularly as it has immense potentials for problems.
1.3 Research Questions
Based on the forgone problems stated above, the following research questions will be answered.
- How are employment contracts terminated in Cameroon?
- Do Cameroon laws on unfair dismissal take into consideration the ILO standards on termination of employment contracts?
- What mechanisms and remedies have been put in place to afford adequate protection of worker’s rights in the case of unfair dismissal?
- What policy proposal can be proffered as solution to the questions raised?
1.4 Research Objectives
1.4.1. Main objective
To critically assess the protection and enforcement mechanisms Cameroonian laws offer to employees in case of termination of employment by the employer and whether they are in tandem with the International Labour Organization standards.
1.4.2 Specific objectives
- To critically assess termination of employment contracts in Cameroon
- To examine the applicability of the ILO standards on termination of employment contracts in Cameroon
- To examine the mechanisms and remedies put in place to afford adequate protection of the rights of employees in the face of unfair dismissal.
- To make policy proposals as solution to problems raised.
1.5 Research Methodology
The study adopts the doctrinal approach to research by carrying out a critical analysis of relevant literature on this issue. In this respect, the study makes use of both primary and secondary sources of data. The primary sources include national legislations, case law, international treaties as well as policy documents relevant to the study. Random interview of some key informants shall also be conducted to enable the candidate arrive adequate findings and conclusions regarding the research questions and objectives.
The secondary sources of data used include but not limited to books, journal, articles, internet sources, newspaper, and reports. The research is therefore qualitative in nature.
This research is justified in that it touches on a worker’s right to work, the source of his livelihood on which other first generation rights are based. This is mindful of the fact that his career is his property.
Considering the importance, the law attach to contracts of employment both at the national and international levels, one would see that the illegal termination of such contracts will call for the intervention of the court which is initiated by the aggrieved party who in our context is the employee or worker. This is so because such contracts create reciprocal rights and obligations on the parties thereto. The intervention of the law in circumstances of unfair or illegal dismissal has the objective of protecting the employee as the weaker party for the employer not to infringe on his rights by dismissing him illegally or without just cause. This piece of work justifies the fact that, unfair dismissal brings serious repercussions on the employee since employment contracts are based on trust and confidence. Contracts of employment being essential and an inevitable aspect of every nation, there is the need to regulate such contracts with a lot of care in order to enhance effective protection of employees who are in a weaker position
1.7 Significance of the Study
The research is beneficial to the following category of persons; the employees, employers, the law makers, researchers and to Cameroonians in a whole.
This work is of paramount importance especially to employees as it would examine the legal mechanisms put forth to protect and enforce the rights of employees against unfair dismissal and evaluate the remedies employees are entitled to in cases in of unfair dismissal. In effect, the work would therefore serve as an eye opener to ignorant employees by creating awareness of their legal rights in relation to determination of contracts of employment.
In addition, this work is of importance to employers in that it will bring to lamp light the limits imposed on the rights of employers especially when it comes to termination of a contract of employment as provided by both national and international laws on employment contracts. This work will also create an awareness on the legal obligations imposed on employers not to unfairly terminate their employees contract of employment and the dangers of failure to respect the law which serves as a deterrent to employers as with the fear of being punished, they will be forced to do things right and avoid attracting punishment by the law.
To the legislator, the topic underscore will broaden their minds when legislating on labour matters. Our results would go a long way to help the legislator with relevant information that would cover the loopholes in the law as concerns the protection of employees especially when it comes to unfair dismissal. We are hopeful that our findings would help the lawmaker to amend the labour policies in order to ensure proper protection of employees’ rights as well as inculcating the ILO standards on unfair dismissal in Cameroon.
As concerns new researchers, this academic work would provide vital and necessary information to facilitate their studies in this field of the law. This work would serve as a basic foundation for the development of further research in this domain of the law.
Finally, this work is beneficial to Cameroonians as a whole as through the detailed discussion on the concept of unfair dismissal, many will gain knowledge in this domain which will help them recognize whether a contract is being fairly or unfairly terminated.
1.8 Literature Review
Sir John Mac Donnel15 clearly brings out the different types of employment contracts, that is permanent or full time contract of employment, temporary or fixed term employment contracts be of full time or part for a specified period and lastly casual employment which could also be part time or full time. This writer in his part fails to outline instances of unfair dismissal in employment contracts. This study covers this gap as it brings out situations where an employee or worker will be considered to have been unfairly or unjustifiably dismissed. The work will also bring out the ILO standards on unfair dismissal.
Rebecca Nkumeh Akumbu16 illustrates the origin, form validity of employment contracts. In her discussion, she equally brings out control as a basic in the termination of contracts as well as cases amounting to wrongful termination of such contracts. She also brings out the consequences of unlawful termination of employment contracts and the actions available to a worker in cases where his contract has been termination in contravention of the law or the agreed procedure. The above writer in her discussion failed to take into account the applicability if ILO standards in instances of illegal termination of employment contracts which is the focal point of this discourse. This research will fill in this gap by setting forth the ILO standards on unfair dismissal and determine whether these standards are applicable in Cameroon.
Michael A. Yanou17 and Mafany V. Ngando18 both outline the remedies available to a worker in the face of wrongful termination. They both in their discussion, elucidate the basis for the assessment of damages in labour matters as concerns unfair dismissal. However, despite the efforts done in their books, the writers failed to examine the mechanisms put in place to protect employee’s rights in the face of unfair dismissal. They both limited the remedies for unfair dismissal to damages and reinstatement failing to include other forms of remedies such as injunctive relief and claims for loss of remuneration which will be examined in this study.
Deborah Lockton19 in an elaboration of unfair dismissal in her book provides that the concept of unfair dismissal was introduced in England by industrial Relations Act20 1971 as a result of the International Labour Organization’s Recommendations21. In her book, she made it clear that the reason for introducing issue of unfair dismissal was because 1970 witnessed a great deal of unofficial strikes many of which were a protest against dismissal. She makes it clear that the Common law has always provided inadequate remedies against dismissal, in that provided the employer complies with the relevant notice provisions within the contract, the employee has no protection against arbitrary dismissal. In her analysis, she states that, the unfair dismissal does not look for a breach of contract on the on the part of the employer but a break of the statute and the remedies which lie on against an employer are not remedies which rely on a contractual claim, but rather but rather recognized that the dismissed employee has a property right in his job.
From the above analysis, it is seen that much has been said about unfair dismissal by the writer but she failed to make policy proposals as solution to the problem of unfair dismissal.
1.9 Theoretical Framework
1) The Theory of “Career is Property”
This theory has been postulated by Sugeno k. and Suwa Y.22 and it is to the effect that; although the economic life of workers is dependent on the earnings from their job, the importance of work is not to limited income generation alone. Work is equally the primary avenue wherein individuals enhance their skills/careers. To this end, the state, in collaboration with the private sector, should concentrate more efforts in providing people with the opportunity to develop their own careers through the provision of educational facilities. This is because in contemporary society with highly developed industries, one of the most effective methods of obtaining better jobs and attain better living standards is to develop one’s own human resources by investing in one’s own human capital. In fact, Krause23 states that from the individual’s point of view, ‘career’ is a concept used to encompass past work history, present occupation, and plans or hopes for the future. Thus, an injured worker will be deprived of all these; in addition to losing his career which per this theory is his property.
Notwithstanding the fact that the advocates of this view recognize that what the worker carries along is the skill inherent in his person and not the job which is steadfast, they hold that a job has the appearance of property if an employee maintains it for a long time. The advocates of this view hold that even where a person holds a menial job, it is important that for the job to become the worker’s property he/she should be able to stay on it for some time.
To be able to get a good job and hence career in future, a worker has to invest in order to build his/her human capital. Since it is not possible to acquire and secure a job without sacrificing time and money for the training of the worker especially in highly skilled professions, training for human resource development spans at least twenty-one years from elementary school to doctoral level. A worker pays a high cost to learn and acquire the vocational skills in his/her particular profession. After school, workers still have to hone their skills by attending refresher courses, retraining programs to catch up with innovations in their particular profession and if possible develop a reputation, which they bring to the enterprise in which they are employed. This skill therefore metamorphoses into a worker’s human capital embodies in the person of the worker. It is according to this view argued that the stability of the employment contract is of the utmost importance since the securing of a job by a worker translates to resources even for the future24.
Although the work place is an avenue for enhancing peoples’ career, it can per contra act as a source of danger to workers’ career if proper measures against unfair dismissals are not instituted. Thus, as Ritzer25 indicts, professions are characterized by career patterns that are continually disrupted by career contingencies; events that occur at critical points in a career and throughout the occupational structure. Workers dismissed at will inevitably lose that property and for that reason need proper and sufficient compensation.
The concept of ‘career is property; is therefore relevant to this research in that it raises the issue of the importance of career from which an employee gets his livelihood, especially where he made his skills through education and training. Its significance further lies in the fact that by so conceptualizing a worker, the necessity to preserve his/her job in the event of wrongful termination is obvious.
The quality of the worker’s life and that of his family depends on the earnings he/she makes from his/her employment. For this reason, they will want at all cost to upgrade or maintain the lifestyle the employment accords them. Thus, wrongfully dismissing him will mean an end not just to his but the livelihood of his family. It should be noted that it is due to the fact that the life of a worker and his family depend on his earnings that employers turn to exploit employees with the understanding that they will accept whatever put against them just to protect and keep their job/ career. A case in point is the enormous sacrifices made by workers of CDC to salvage the parastatal from total collapse and therefore insecurity of their service contracts26.These workers accepted in an agreement signed on the 6th of January 1990 drastic cuts of 30-40% of salaries and fringe benefits which were already low, substantial contributions for medical bills, housing, electricity and water which were hitherto supplied free of charge, forceful savings of at least 15% of basic salary, which was reinvested in the corporation to keep the business on- going27.
These sacrifices brought workers to the ground level especially in the case of labourers who were in the lowest categories and salaries. In spite of such harsh measures which kept the CDC ‘afloat’, Konings28 observed that workers in some of the tea estates were still laid off in flagrant disregard of their sacrifices and their security of service.
In the security justice model, Ben- Israel,29 argues that the basic aim for dignified living requires that workers and their dependents be assured that their standard of living will not be decreased by such unforeseen occurrences like termination. From the above concept, it can be seen that the social security of the workers, their dignity and the misery into which they and their families were plunged into was not considered in arriving at the harsh ‘rescue’ measures adopted by CDC.
Fokum30 argues and the candidate agrees with her that from the justice theory view a worker who has spent time and money to build his career would not be said to have achieved justice where he is paid a month’s salary per year of service as prescribed by section 39(4) of the Labour Code 1992.It is worthwhile that if the aim of justice is to properly recompense and do equity, a wrongfully dismissed worker would not have had justice if dealt with in terms of section 39(4) of the Labour Code.
2) Theories of Labour and Social Justice for Workers.
This study deals with the issues addressed both from the labour justice model and the social security models of Ruth Ben-Israel31.In the Former, Ruth Ben-Israel champion the safeguarding of the workers’ right to work under Article 23 of the UNDHR and Article 6 of ICESCR. She basis this claim on the fact that social justice for the worker will be achieved under the labour justice model only when the dignity of the worker is assured32.
In the Social Security Justice Model33,Ben- Israel holds that the basic aim for dignified living requires that workers and their dependents be assured that their standard of living will not be brought by such unforeseen occurrences like terminations and redundancies. Proceeding from the argument that service contracts ought to span the period recruitment to retirement ( or termination), the author contends that viewing employment from the social security justice model invariably makes employment to be more productive as well as more likely to enhance individual and collective growth and development34.
Under the Cameroon Labour Code, Sections 1 and 23 defines work in relation to an offer of service by a worker under the control of an employer in return for a pay. This raises a serious question of whether the service is a factor of production which can dispensed with a will. Although service is a factor of production economically speaking, it ought not from a human rights perspective be regarded as a mere commodity35.
Thus, from the above theory of justice, the candidate argues in agreement with Fokum36 that justice will not be said to have been made to a worker who is regarded as a commodity and so dismissed for low productivity, ill health and other reasons which are discriminatory and unjust as posited in the above theory. This theory is relevant to the research in that, viewing labour from a social justice model as discussed above offers greater security to workers within the Cameroonian territory thus inferring better and sufficient protection against unfair dismissal.
1.10. Scope of the Study
The scope of this work is limited to termination of contracts of employment within the Cameroonian territory from 1998 when the 1982 ILO Convention on Termination of Employment was duly ratified by Cameroon to 2018. This time frame is suitable for this study because before the existence of the Convention, the only law that existed that governed termination of employment contracts in Cameroon was the 1974 Labour Code which contained little or no provisions against unfair termination/dismissal reasons why unfair dismissal has been rampant in Cameroon till date. Thus, with the ratification of this convention in 1998, it is imperative to examine termination of employment after that time to assess its applicability in Cameroon since then. For proper assessment of the applicability of this Convention in Cameroon, this work is grounded on the concept of “career is Property” and the social justice model theory which all preach the security of employment workers.
The difficulties to access written materials, poor internet facilities to retrieve online sources coupled with the fact that most basic legislations in Cameroon, in the field of labour have their original versions in French and translation into English do not in all circumstances produce the exact meaning as the French versions are some of the constraints under which this study shall be carried out. Instead, most translated versions have implied and not actual meanings of the legislations.
1.12 Definition of the Key Terms
- Contract of Employment
Contact of employment can be defined as a relationship which exists between an employer and an employee which the law recognizes as giving rise to a legal obligation between the employer and the employee which such an obligation is enforceable at law. The Labour Act37 defines contract of employment to mean any agreement whether oral, or written, express or implied whereby one person agrees to employ another as a worker and that other person agrees to serve the employer as a worker. Implicit in this definition by the Labour Act38 is that a contract of employment may be entered orally without the necessity of writing.
It is also an oral or a written express or implied agreement specifying terms and conditions under which a person consent to perform certain duties as directed and controlled by an employer in return for an agreed upon wages or salary. Whether stated or not in the contract, both the employee and the employer have a duty of mutual confident and trust and to make only lawful and reasonable demand on each other.39
It can also be defined as a verbal or scripted implied or expressed contract detailing terms or conditions based on which a worker agrees to perform specific duties as guided and commanded by the employer for an accorded salary or wages. Whether it is mentioned or not in this contract, the employee and employer can only lawful make reasonable demands toward each other and they should have mutual confidence and trust.40
The Labour Code makes reference to the term worker, a term which universally in labour parlance is used interchangeably with the term employee, servant, workman etc.41 The question who is a worker has to be defined for the purpose of labour law principle. The term worker as defined by the Labour Code of Cameroon means, “any person irrespective of sex or nationality, who has undertaken to place his services in return for remuneration, under the direction and control of another person, whether an individual or a public or private corporation, considered as the employer”42. For the purpose of determining whether a person is a worker, non-account shall be taken of the legal position of employer or employee contract of employment.
A legal entity that controls and directs a servant or worker under an express or implied contract of employment and pays (or is obliged to pay) him or her salary or wages in compensation.43 Also an employer is a person or business that employs one or more people, especially for wages or salary44
- Termination of Employment Contract
Termination as in common parlance is defined as, an act of bringing to an end or coming to an end in space or in time. When applied to the contract of employment, this definition will definitely cover the other ways by which contract of employments are determined. This ordinary linguistic definition would encompass such notions like as dismissal, retirement, resignation etc. This is so since dismissal, retirement and resignation all have the same effect of bringing the employment contracts to an end45. A contract of employment of unspecified duration may be terminated at any time at the will of any party. Such termination shall be subject to the condition that previous notice is given by the party taking the initiative terminating the contract.
In principle, termination is the process whereby an employment is determined in accordance with the party’s agreement or at least what the law regards as the agreement. This principle is a product of the general rule that parties are bound by their agreement.
- Unfair Dismissal
In law, unfair dismissal is a situation in which an employee’s contract of employment has been terminated by an employer where the termination breaches one or more terms of the contract of employment or a statutory provision or a rule in employment law.46
It can also be defined as, firing of an employee for reasons that are considered illegal. This might mean an employer fired an employee who was under an existing contract or because of protected right such as the employee’s colour, sex, or religious preference.47
The manner in which a right is enforced or satisfied by a court when some harm or injury, recognized by the society as a wrongful act, is inflicted upon an individual.48 The law of remedies is concerned with the character and extend or relief to which an individual who has been brought a legal action is entitled once the appropriate court procedure has been followed, and the individual has established that he or she has a substantive right that has been infringed by the defendant49. It can also be defined as the means by which the violation of a right is prevented, redressed, or compensated.50
Remedy means to achieve justice in any matter in which legal rights are involved. Remedies may be ordered by court, granted by judgment after trial or hearing, by agreement (settlement) between persons claiming harm and the person he or she believes has caused it, and by the automatic operation of law.51
Chapter one gives an introductory background of the entire study. Chapter two will focus on the definition and nature of contract of employment. This chapter also assesses the various modes of determination of contracts of employment in Cameroon.
For its part, chapter three covers a critical examination of the applicability of the ILO standards on unfair dismissal in Cameroon. For a better understanding, the chapter posits the meaning of Labour standards, the ILO standards and the benefits of the ILO standards on termination of contracts of employment. To sum it up, this chapter brings to light unfair dismissal situations in Cameroon as a controversial to the ILO standards on termination of contracts of employment.
Chapter four critically assesses the mechanisms for the protection of workers against unfair dismissal in Cameroon. It also assesses the remedies available to a worker in the event of unfair dismissal from work.
Finally, chapter 5 dwells on the comprehensive review of the findings made from case-law, interviews and the content of legislation and secondary documents. In reviewing these data, the author makes her own contribution on how to improve on the protection of workers against unfair dismissal in Cameroon. In doing so, the candidate draws examples from appropriate foreign jurisdictions such as Nigeria in order to offer an insight to the Cameroonian legislator.
ASSESSEMENT OF MODES OF DETERMINATION OF CONTRACTS OF EMPLOYMENT IN CAMEROON
Determination of a contract of employment is the process of bringing a contract to an end. This may occur by dismissal, retirement, or termination52. The notion in general refers to the act of ending the employment in any of the variety of ways that’s contracts end53.This chapter assesses the provisions of the law as it relates to determination of contracts of employment generally. This we will do by looking at the definition and nature of determination of contracts of employment, the modes of determining a contract of employment and the basis of dismissal. In so doing, it addresses the first specific objective of this research while giving answers to the first research question. In doing this, the thesis discusses the theory of Career is Property which is to the effect that work is central in employment and a worker must spend a reasonable time in a job for it to become his property. A worker’s job must not be taken away from him discriminately as doing so will mean taking away his career which is his source of livelihood in future. Thus, to better secure employment, employers must base their decisions on the above theory which is aimed at protecting workers against unfair termination of employment contracts.
2.1 Definition and Nature of Employment Contracts
An employment contract is any oral or written, expressed or implied agreement specifying terms and conditions under which a person consents to perform certain duties as directed and controlled by an employer in return for an agreed wage or salary.54 Whether stated or not in the contract, both the employee and the employer owe the duty of mutual confidence and trust and to make only lawful and reasonable demands on each other. Every employee is under the duty to carry assigned duties and the employer’s instructions to the best of his abilities. The employee on the other hand is under the obligation to protect the employee from harm and injury and make compensation for any loss arising from any job-related accident.55
By section 23(1) of the Labour Code 1992, a contract of employment is an engagement which by the agreement of the parties, a worker undertakes to put his services under the authority and management of an employer against remuneration. The definition was adopted in CARFOP v. Kan Enroy Moses Payne56 by Bawak JCA as the basis of the conclusion that there was a contract of service between CARFOB and the respondent who was seconded to it from the Ministry of Finance.
Contracts of employment per section 25 (1) of the Labour Code 1992 maybe be divided into two; specified or unspecified duration. Contracts of definite duration according to section 25(1)(a) are contracts where termination is fixed in advance. While contracts of unspecified duration otherwise known as indefinite duration provided under section 25(1)(b) are those with a fixed termination. Although this specie of employment is of an indefinite duration, the contracts may be terminated at any time by either, subject however to prior written notice of the party terminating57.
A contract of specified duration is, on the other hand, defined in section 25 (1)(a) of the Labour Code 1992 as one in which the duration is specified in advance by both parties to the occurrence of a specified event. These employments which are for periods not exceeding two years are renewable once. However, at the end of the renewal period, if a working relationship ensues, the contract can be transformed into a contract of unspecified duration as provided for in section 25(3). However, an extension of a contract of specified duration more than once automatically converts the contract into a permanent employment. Since generally, workers are oblivious of this fact, they continue to work as if they were under a contract of specified duration. Where the worker involved is not of Cameroonian nationality, such renewal will be possible only after endorsement by the Minister in charge of Labour58.
Contracts of employment may be specified but non-renewable. The termination of such contracts may depend on the intention of the parties, an event so stated in the contract59 or the performance of a specified activity60.
According to section 25(4) of the Labour Code 1992, contracts of employment do not include seasonal job contracts resulting from the climatic nature of a company’s activity61.They do not also include occasional jobs created by unexpected growth of company activities resulting from urgent work to prevent accidents, organizing emergency measures, repairing company equipment, facilities or buildings that are dangerous for workers62, as well as temporary jobs to replace suspended or absent workers in order to complete a piece of work within specified time limit requiring additional workers63. All such contracts can only can only be for periods of between one to fifteen days renewable once64. Although article 7(1) of Law No 93/577/P of 19th July 1993 converts all such seasonal job contracts of unspecified duration if they exceed the legally authorized period without termination.
Even though labour regulations between workers and employers under section 25 (4) are not binding on temporary or seasonal workers, section 26(5) does nevertheless recognize that a contract of employment exists between these classes of workers and a temporary job contractor who engages them.65 Section 39(3) of the Labour Code 1992 and the decision in Akamangwa Martin case combined provide that it is a question of fact whether an individual is a worker once he has declared his status as a worker. The fact that the temporary job contractors pay the salary, medical bills and social insurance benefits of such seasonal workers does not make them their employees. However, they are workers of the users who employed them66.
Common law recognizes that there could be part time employees who are not servants as conceptualized above. Although the amount of work given is not an indication of the status of employment, persons working on part time basis may never the less be employees if the element of control and the mutual obligation to work and provide work are present.67
2.2 Termination and Modes Termination of Employment Contracts
Termination is in common parlance is defined as the act of bringing to an end or coming to an end in space or time.68 It is the process whereby an employment is determined in accordance with the parties’ agreement or at least what the law regards as their agreement.69 This principle is a product of the general rule that parties are bound by the terms of their employment which was broadly recognized in the Supreme Court Appeal No 202 of 16/5/1961.Thus, except of the Labour Code they must be respected.
Section 34(1) of the Labour Code refers to the termination of contracts of employment of unspecified duration. It asserts thus:
“A contract of employment of unspecified duration may be terminated at any rime at the will of either party. Such termination shall be subject to the condition that previous notice is given by the party taking the initiative of terminating the contract. Notification of termination shall be made in writing to the other and shall set out the reason for the termination. The notice period shall start to run from the date of such notification. It shall not be subject to any condition precedent or condition subsequent. Under no circumstance may it be set off against the leave period of the worker. Where the above obligations are not respected by one of the parties, no period of notice shall be without prejudice to the right of the injured party to claim damages.”70
It is perhaps necessary to commence the analysis of this provision by noting that the section has not defined termination. Note be taking that the above section has not defined the term termination but rather gives various conditions of termination. To this effect, it is important to turn to other writers to get the meaning of termination. The concept has been defined as referring to the process by which a contract is put to an end in accordance with the pre-determined rules regulating the employment.71 In situating this definition in our Cameroonian context, it must be observed that such rules are normally derived from the terms of the party’s employment, the provisions of the labour code, other legislations and collective conventions where relevant.72
In general, the contract of employment terminates when the obligations in the employment which are provided in the terms of the contract are fully performed.73 These obligations normally relate to the duration of time. Whatever the reasons, it will be a breach of contract if the express provisions of section 34(1) of the code relating to written notice specifically the reasons for termination is not given.74
2.2.1 Modes of Termination of Employment Contracts
Termination of contracts of employment revolves around the contractual relationship between the parties governed by common law rules, statutes, and or agreement of the parties.75 With regards to section 34 of the 1992 Labour Code, it needs to be specifically noted that the first sentence apparently codifies the common-law principle that permits either party in a contract of service to terminate it at will. This freedom of either party to an employment contract to put an end to it was read into a similar provision in a previous labour code by the Supreme Court in Ngo Minyemeck Catherine v COMACICO76 when the court held that an employer was legally at liberty to terminate a contract of employment.
Indeed, in yet another decision delivered a month later, the same court in Mazioh Claude v S.E.A.C 77 affirmed the employer/workers freedom to terminate a contract of employment at will. The Supreme Court in Mazioh Claud’s case rejected the argument that the right to terminate can be taken away because of the illness of the worker. These decisions were clearly animated by the near universal philosophy of the laissez faire notion of the freedom to contract as well as determine contracts of employment at will.
However, in spite the fact that the sentence is declaratory of the common law notion of the freedom to terminate an employment contract, it will be hasty to suggest that this weakens the security of tenure of a worker in Cameroon as it is clear from the new Labour Code that the right to terminate may not be abusively and negligently used against a worker.
The nature of contracts of employment determines the mode of its termination as well as the legal consequences of a wrongful termination or an unlawful termination. Generally, a contract shall be terminated:
(a) by the expiry of the period for which it was made; or
(b) by the death of the worker before the expiry of that period; or
(c) by notice in accordance with section 34(1) of the Labour Code or in any other way in which a contract is legally terminable or held to be terminated.
According to Emiola;
Unless a statute provides otherwise, the question as to the duration of an employment or the length and nature of the notice required to determine it will depend on the intention of the parties which may be gathered from the express or implied terms of the contract or may reasonably be inferred from the circumstances.78
Termination could be by notice, lapse of time, operation of law, subsequent agreement or repudiation.79 The most usual form of termination is by notice.80 The various modes of termination of contracts of employment will be discussed below.
2.2.1(a) Termination by Operation of Law
This refers to the determination of a contract of employment through the automatic effects of law and not by private agreement or the direct intervention of the parties to the contract of employment81.An employment contract can be terminated by operation of the law in the following ways:
- Termination by Frustration.
A contract of employment can also be deemed terminated by operation of law as a result frustration. This occurs when the performance of the contractual obligation is rendered impossible. Frustration of contracts entails the premature determination of an agreement lawfully entered into between parties. This is owing to the occurrence of an intervening event or a fundamental change during its operation as to be regarded by law both as striking at the root of the agreement and as entirely beyond what was contemplated by the parties when they entered into the agreement.82 This doctrine of frustration applies to contracts of employment as it applies to contracts generally. The underlying principle of frustration was formulated in Dans Contractor Ltd v Fareham D.C83 as follows:
“Frustration occurs whenever the law recognizes that without default of either a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract. It is not hardships or inconvenience or material loss itself which calls the principle of frustration into play. There must be as well such a change in the significance of the obligation that the thing undertaken would, if performed, is different thing from that contracted for. It is not hardships or inconveniences or material loss itself which calls the principle of frustration into play. There must be as well a change in the significance of the obligation that the thing undertaken would, if performed, is different thing from that contracted for.”84
In labour law, when unforeseen circumstances beyond the control of both parties occur making it impossible for the employer and employee to perform their contractual obligations as was initially agreed, or if performed, it will be radically different from what the contracting parties had envisaged85.
Frustration kills the contract with the effect that the parties to the employment are discharged from their contractual obligations86. Per, Uvieghara87, the contract law position of the principle of frustration is applicable to employment contracts. According to him, this occurs where the changes in the circumstances of employment are such that it will render the further performance of the contract impossible or where the obligations undertaken by the parties under the contract have become radically different.
It is in this wise that Fokum88 contends and the candidate adopts her contention that a contract of employment can be terminated by frustration upon long illness of employee, imprisonment of the employee or death. This mode of termination occurs as a pure function of the law which should in the natural course in the business be expected and planned for. Although the Labour Code is mute as to this doctrine, it cannot be gainsaid that as a general common law principle the doctrine of frustration in employment contracts is applicable here on the basis of section 156 of the Code89.
- Termination due to ill health
At common law90, the illness of an employee per se does not automatically bring a contract of employment to an end91. It is only where worker is struck by occupational disease or industrial accident, which makes it impossible for the employee to take up his/her service permanently that the contract of employment can be said to be terminated by frustration due to incapacity.92
The above common law position is codified in section 32(c) of the Labour Code, which provides that, a contract of employment shall be suspended; “during the worker’s absence in the cause of ill health duly certified by a medical practitioner approved by the employer or one belonging to a hospital establishment recognized by the state, for periods not exceeding six months…shall be extended until such time as the worker is replaced.”
Section 32(g) of the Code further provides that a worker’s contract will be suspended during any period of unavailability following an industrial accident or occupational disease. Since section 89(3)(a) – (b) actually sees these periods of incapacity as periods of leave, it follows that this ‘ leave’ cannot at the same time amount to a termination of the employment by frustration.93 The issue is made clearer by the second limb of section 32(g) which extends the six months period of sick leave indefinitely to ‘ such a time as the worker is replaced.’ Does it therefore mean that for security of service, a worker who has been debilitated for more than six months whose work rule or collective bargaining agreement is silent can sue for wrongful dismissal if he is terminated because of absence from work due to ill health if he has not been replaced? It is asserted that from the above, such a worker can sue for wrongful dismissal which further strengthens the security of service.
It is important to draw the fine line, which separates frustration of a contract of employment due to ill health from dismissals by reason of disability94 as was done in the TRAPP Groupement d’ Enterprise v Che Guza Cletus.95 Here, the plaintiff was employed as a welder for the stone crushing machine of the defendant who were road constructors. He developed ear problems later in the course of employment and a declaration to this effect was sent to National Social Insurance Fund.
Following the defendant’s physician’s report that the plaintiff had developed ear problems, which needed continues medical attention the plaintiff was transferred from his post as welder to that of general labour. However, the defendant on economic grounds subsequently terminated him. The plaintiff brought an action for wrongful termination. The plaintiff argued that his termination was not for economic reasons but the occupational disease he suffered as a result of the defendant’s failure to give him proper medical care. His termination according to the plaintiff was a disguise which enabled the defendant to escape the issue of wrongful termination.
After reviewing the above facts, the trial judge held that the worker’s redundancy was wrongful and entered judgment in his favour. This decision which was confirmed upon appeal to the Bamenda Court of Appeal, enhances security of tenure in that in finding that the worker was wrongfully dismissed (although the worker’s contract with the employer had ended), gave room for his entitlement to accrued wages and damages for wrongful dismissal.96 Had the appeal not arrive at a decision of wrongful dismissal, the plaintiff would have been entitled only to redundancy benefits which would not have been up to the entitlements he got.
Since the facts of the case reveal the fate of many workers who are dismissed under the pretest of economic reasons, it is for reason of security of service imperative to distinguish at all times between termination due to frustration and termination on economic grounds. This is because in the later, the employer has to pay only compensation while in wrongful dismissals the employee is entitled to damages and or other forms of remedies.97
- Termination due to Imprisonment.
Even though under common law a contract of employment can be frustrated by imprisonment, Section 32(1) of the Labour Code merely provides that where worker is under preventive detention or police custody, the contract of employment maybe suspended, but not terminated. Reading the expression unio est exclusion alterius rule (stating one thing excludes the other) alongside section 32(i) of the Code where a worker is given a prison sentence, the contract of employment may be terminated by frustration without the need for compensation to be paid by either party to the contract.98
The Cameroonian position as stated above is different from that in English common law. Under the latter, it is not whether there is conflict as to whether imprisonment actually frustrates a contract of employment. The decision of the National Industrial Relations Court in Hare v Murphy Brother99 which held that the plaintiff’s sentence of imprisonment was not a frustrating event because it was brought about by his own act in committing the offence for which he was imprisoned. Upon appeal to the English Court of Appeal, Lord Denning M.R held that the sentence of imprisonment did not frustrate the contract of employment because of the length of time he would be away from work and the importance of his position to his employer as a foreman.100 It may be observed that Lord Denning in this decision made an analogy with a case where the contract of employment of a worker who is incapacitated for 8 months as a result of an accident will be frustrated even though the contract was determinable on short notice.101 It is evident that the situation in Cameroon protest employment better than what obtains in England in this area of employment law.
- Termination by Death
An employment contract is terminated on the death of either party to the employment. Whenever one of the parties comes across death, contractual relations will come to an end.102 At common law, the death of any of the parties to an employment contract will terminate the contract. This common law position though not expressly provided for in the Labour Code may be applied in Cameroon where the employee dies. This is so because contracts of employments are contracts of personal service by virtue of section 31 of the Labour Code which cannot survive the death of the worker.103
Fokum104, argues and the candidate agrees with her contention that the death of an employer does not necessarily bring the employment contract to an end. Obviously, an employer which is a company, cannot automatically terminate its employment because of economic difficulty leading to the compulsory liquidation of the company105. Thus, the parties are not discharged of their contractual obligations only on the basis that the company has gone into liquidation as opposed to cases of frustration. The employer in the former case will have to pay the employer certain benefits like lump sum payments for redundancy. It is for this reason that the death of an employer which is a company is sometimes not seen as frustration.106
- Termination for Economic Reasons
Termination on economic grounds refers to a situation where workers lose their job because the employer has ceased or intends to cease to carry on business. It could also result from diminished business activity107. When termination is set going by economic difficulties, the worker is said to have been made redundant or retrenched by the employer108. In practice, this occurs when there is either a closure of the employer’s business, reduction in staff for better economic management of the enterprise so long as it is not capricious109. It could also occur where the employer’s business is transferred or substantially changed.
By section 40(2) of the Labour Code a dismissal for economic reason occurs where the employer “for one or more reasons not inherent in the person of the worker” relieves the worker of his service. The discharge must necessarily result “from an abolition or transformation of posts or an amendment to the contract of employment consequent on economic difficulties, technological changes, or internal reorganization.”
This type of dismissal is similar to that under common law where employment is said to determine by operation of the law. The contract of employment ends simply because the law regards the contract as determined. This situation is distinguished from the normal circumstances by which employment are determined either by effluxion of time for contracts of fixed period, or by notice in employment of an unspecified duration. The termination of the employment under this general rubric is scribed to circumstances beyond the control of either the employer or the worker.110
The employment of an employee engaged for a short term to perform a specific assignment could be determined by frustration under the principles in Pousard v Spiers 111 if he is incapacitated to either illness or any other phenomenon that makes it impossible to carry out his obligations under the contract. It was thus in this case held that the illness of the plaintiff which prevented her from performing single role in opera for which she was engaged had frustrated the employment.
1 A Mathew., (2004) “Termination of Contract of Employment: Applicability of the International Labour Organisation Standards on Unfair Dismissal in Nigeria”, Published PhD Thesis, Faculty of Law, University of Akwa, P1.A.
3 Article 7 of the ILO Termination of Employment Convention No. 158 adopted in 1982 .
4 Per Article 5 of Convention No.158, the following inter alia, shall not constitute valid reasons for termination (a) union membership or participation in union activities outside working hours or, with the consent of the employer, within working hours; (b) seeking office as, or acting or having acted in the capacity of, a workers’ representative; (c) the filing of a complaint or the participation in proceedings against an employer involving alleged violations of laws or regulations or recourse to competent administrative authorities; (d) race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin; (e) absence from during maternity leave.
5 About 36 countries of the world have ratified the convention while about 55 countries both of those who have ratified the convention and those who have not ratified the convention have embraced the provisions of the articles of the convention which contain the ILO standards on unfair dismissal.
6 Cameroon ratified the Convention No. 158 on Termination of Employment on the 13th of May, 1998. Per the Article 45 of the 1972 Cameroon Constitution, duly approved or ratified treaties and international agreements shall, following the publication, override national laws, provided the other party implements the said treaty or agreement.
7 Article 7 of the ILO Termination of Employment Convention No. 158 of 1982 provides that “ the employment of a worker shall not be terminated for reasons related to the workers conduct or performance before he is provided an opportunity to defend himself against the allegations made, unless the employer cannot reasonably be expected to provide this opportunity”.
8 File:///c:/Documents%20settings/woprk/mes%20documents/. Accessed on 12/ 10/ 2017.
9 www.mightyrecruiter-guide/at-will-employment-wrongful-termination. Accessed on 12/10/2017.
10 See to this effect the ILO: Protection against unjustified dismissal, Committee of Experts on the Application of Conventions and Recommendations, Geneva Survey, International Labour Conference, 82nd session, Geneva, 1995, para. 85.
11 Bronstein L,(1990), “Protection against unjustified dismissal in Latin America ” , in International Labour Review, (Geneva, ILO), Vol. 129,No. 5, pp. 593-610.
12 A number of European countries for instance introduced statutory restriction on the determination of special categories of workers like shop stewards.
13 M.A, Izuchukwu, (2014) “Termination of Contract of Employment: Applicability of the International Labour Organisation Standards on Unfair Dismissal in Nigeria.
14 Convention No 158 of 1982, on the Termination of Contracts of Employment.
15 Mac Donnel S.J Classification of forms of Contract in Labour Law, (1905)
16 Nkumeh Akumbu R. (2010) “The consequences of the unlawful termination of employment contracts” Unpublished Thesis for the LL. B, University of Buea.
17 Yanou M., “Labour Law Principles and Practice in Cameroon”, REDEF (2009).
18 Ngando M., “Claims for Wrongful Dismissal in Cameroon” February 12, 2018. Accessed at www.kinsmenadvocates.service on 9/7\18.
19 Lacton D., Employment Law, Macmillan Law Masters, third Edition P.167
20 Industrial Relations Act 1971.
21 See ILO Recommendations 119.
22 K. Sugeno and Y. Suwa, “Technological Innovation and Social Protection: ‘Career is Property’ as a Concept of Market Policies” in Engels, C. and Weiss, M.(ed.), Labour Law and Industrial Relations at the Turn of the Century, The Hague: Kluwer Law International, 1998, p.91-112.
23 Krause, E.A. The Sociology of Occupation, Boston: Little, Brown and Company, 1971, at p.41
24 Irene Dione Numun Fokum, (2011) “The security of Employment in the Post-Economic Crisis Period of Cameroon: A common Law Perspective”, Unpublished PhD Thesis, Department of Law, University of Buea. P 219.
25 Ritzer, Working Conflict and Change, 2nd Ed, New Jersey: Prentice -Hall, Inc., 1977 at p.108.
26 Fokum, I.D.N, The Security of Employment, op cit at p. 221
28 Konings, P., ‘Plantation Labour and Economic Crisis in Cameroon,’ p. 526-528.
29 Ben-Israel, R., “International Labour Standards. The Right to strike”, Denrnter: Kluwer, 1998.
30 Fokum, I.D.N, The Security of Employment, op cit. p 222
31 Ben- Israel, R, “Labour and Social Security: Is There a Conflict?”, Kluwer Law International, The Hague, The Netherlands, 1994, p.7
34 Fokum, I.D.N, The Security of Employment, op cit. at p43.
35 ILO Philadelphia Declaration, Art. 1, para(a). C.f the Kantian perception of personhood which sees humans as abstract fungibles with capacity for moral reasoning and no ‘concrete individuating characteristic’s makes all humans, according to Radin (infra), commodifiable objects.
36 Fokum, R.D.N, The Security of Employment, op cit.
37 Cap LI LFN, 2004 S. 91.
38 Ibid S. 91.
39 www.businessdictionnary.com/definition/contract-employment.html. Accessed on 12/10/17
40 Black’s law dictionary 2ndEd.see also https://thelawdictionnary.org/contract-of-employment. Accessed on 12/14/18
41 Yanou M., (1997), Op. Cit. P.4.
42 Section 1 (2) of the Labour Code.
43 www.businessdictionary.com/definition/employer.html. Accessed on 1/5/18
44 www.dictionary.com/browse/employer. Accessed 1/5/18
45 Yanou, M., (1997), “The Worker in Cameroon”: Any Common Law Perspective? ”bIn Annales de la FSJP, Tome 1, Vol 1,PUA.
46 File;///c:/Documents%20settings/work/mes/%20document/. Accessed on 12/10/17
47 https://www.mighty recruiter-guide/at-will-employment-wrongful-termination. Accessed, on 12/10/17.
48 https://legal.dictionary.thefreedictionnary.com/remedy. Accessed on 1/8/18.
50 https://thelawdictionary.org/remedy/. Accessed on, 2/3/18.
51 https://dictionary.law.com/default.aspx?selected=1784. Accessed on 2/3/18.
52 Fokum, I.D.N, The Security of Service, op cit. p 144
54 Rebecca Nkumeh Akumbu (2010) “The Consequences of the Unlawful Termination of Employment Contracts”. Unpublished Thesis for the LL.B, University of Buea: 13.
56 CARFOB v Kan Enrol Moses Payne (2001) (Unreported). 1 CCLR PT 6.
57 See section 34 of the Labour 1992 Labour Code.
58 Fokum, I.D.N, The Security of Employment, op cit. p 86-86. See also Section 25(2) of the 1992 Labour Code.
59 Ibid, see also Section 25(1) (a) para 1 of Labour Code 1992.
60 Ibid, see section 25(1)(a) para 2.
61 Ibid, see section 24(4) (c).
62 Ibid see also section 25(4)(b).
63 Ibid, see section 25(4)(a).
64 Article 5(2) OF Ministerial Order 37.
65 A temporary job contractor according to section 26(2) of the Labour Code shall mean any individual or corporate body whose sole activity consists in temporarily providing users with workers whom they recruit and pay.
66 D.N, Fokum, The Security of Employment, op cit, p 87.
68 M.R. Freedland, The Contract of Employment Oxford; Claredon Press, 1976:142
69 M. A. Yanou, “Labour Law: Principles and Practice in Cameroon”. Op Cit.
70 M.A Yanou “Principles of Law and Practice in Cameroon”. Op Cit. p 64.
75 S, Erugo, ‘Security of Employment in Nigeria: A Case for Statutory Intervention’, NJLIR Vol. 1 No. 1 (2007) p.60
76 Appeal No 25 of 21/3/1974
77 Appeal No 45 of 25/4/1974
78 A, Emiola, Nigerian Labour Law, (4thedn, Ogbomosho: Emiola Publisher Limited, 2008) p. 127.
80 Section 34(1) of the 1992 Labour Code.
81 Fokum, op cit, at p 158.
82 Mazin Engineering Ltd v Tower Aluminium (Nig.) Ltd Supra P. 534; Warner & Warner International Associates v Federal Housing Authority 19936 NWLR (pt. 298)148.
83 (1956) AC 696 at 729.
84 Modes of Termination of contract of Employment . Accessed at www.docsity.com
85 Roger W., “Principles of Labour Law”, London: Stevens, 1977.
86 Per Viscount Simon L.C. in Joseph Constantine Steamship Ltd v Imperial Smelting Corporation Ltd 1942 A.C 154.
87 Uvieghara, E.E., “Labour Law in Nigeria”, Lagos, Malthouse Press LTD, 2001, P, 13.
88 Fokum, I.D.N, op cit. p 160
89 Ibid .
90 See for example the case of Warburton v. Co-operative Wholesale Society LTD [ 1917] 1 KB 663.Where the court of Appeal held that ‘it has long been settled that a contract of service is not terminated by incapacity to work by reason of temporary illness, and that upon return to work, the man can recover his wages during the period of his absence’ due to ill health.
91 Yanou, M.A., op cit at p. 85-86.
92 This then gives the employer the right to employ another in place of the incapacitated employee.
93 Fokum, I.D.N., op cit at p. 161.
95 Appeal No.BCA/2.1/98 (unreported).
96 Fokum, I.D.N., op cit. p 162-163.
99 1994 1RLR 342.
100 Stevenson L.G, in the same case observed that a sentence of imprisonment did terminate an employment and it did not matter whether the termination was labelled a frustrating event, repudiatory conduct, a breach going to the roots of the contract of employment or impossibility of performance.
101 Fokum, I.D.N., op cit. p 165.
102 www.lawofbusiness.com.Accessed on the 3/8/2018.
103 Fokum, I.D.N., op cit. p 166.
107 Ridout, R.W. op. cit at p. 269.
109 John Anagha v Agip Cameroon S.A. Suit No.WC/11A/69 HC (Unreported).
110 M.A Yanou, “Labour Law: Principles and Practice in Cameroon”. Op Cit. p 84.
111 M.A. Yanou, “Labour Law: Principles and Practice in Cameroon”, Op Cit.pg 85