Professional Documents
Culture Documents
Mac John's Complete Project
Mac John's Complete Project
SUPERVISOR: CO-SUPERVISOR:
JUNE 2021
1
CERTIFICATION
This is to certify that this research project entitled “An Appraisal on the Formation
and Termination of the Employment Contract” is the original work of Egbe Mc
John Ayuk bearer of the University of Buea Matriculation No. LP18A169
Sign___________________ Date___________________
(Head of Department)
Sign_____________________ Date____________________
(Supervisor)
Sign_____________________ Date____________________
(Co-Supervisor)
Sign______________________ Date______________________
(Supervisee)
i
DEDICATION
I dedicate this piece to work to my late parents, Mrs Ebob Constance Ayuk and Mr
Egbe Bissong Protus Atabe.
ii
ACKNOWLEDGEMENT
I am grateful to God Almighty for his mercy, blessing, strength and protection He
gave me during this period of my research especially for the wisdom I am now
endowed with. I will tremendously indebted to my supervisor Dr. Doh Gima and
Barrister Ngwabo Kenneth who continually directed, corrected and supported me
in the realization of this great work.
My sincere gratitude goes to my second mother, Mrs Rachel Elad and to my Uncle
Ayuk Joseph Nyoh.
I equally thank my elder Sister, Eyong Catherine B. for helping make this piece of
work a reality.
iii
ABSTRACT
This thesis deals with the Appraisal on formation and termination of employment
contract. Labour contract is highly acclaimed as the bed rock for development when
properly governed and serves both public and private interest. However, the laws
governing labour contracts in Cameroon such as the Law No.92\007 of 14 August 1992
and other international bodies such as the International Labour Organization, the World
Health Organization are still unable to solve problems arising from this contract by
placing strict rules that must be followed by the parties in a labour contract. That is why
today we see so many workers whose rights have been trampled upon by their employers,
and some employers taking liability for acts committed by their employees. As such,
there is a need to critically appraise resolution strategies that can be adopted to solve the
complexity of the labour contract which comes as a result of failure by the employer and
employee to willfully acknowledge and execute their obligations and their unwillingness
to properly apply the law in this domain. The study adopts the content analysis of laws
especially the Cameroon Labour Code as amended in 1992 and other International bodies
which helps in regulating the labour contract. This study reveals that parties to a labour
contract often face difficulties because of are ignorance. These difficulties have often
escalated to the wrongful determination of labour contracts. The study recommends
proper implementation of Laws in Cameroon in the labour domain so as to resolve the
conflicts in labour contracts. This will be by inculcating or giving all employers and
employees in labour contract milieu the opportunity to take part in decision making,
establishing the terms of the employment contract, and properly carry out their various
obligations without interfering with each other’s rights.by this, participatory governance
is encouraged with the employer and the employee. Stating the rights and duties of
parties to the contract, providing remedies when this rights are trampled upon is highly
recommended as proper conflict resolution strategies alongside mediation in labour
contracts.
iv
TABLE OF CONTENTS
CERTIFICATION..............................................................................................................i
DEDICATION...................................................................................................................ii
ACKNOWLEDGEMENT................................................................................................iii
ABSTRACT...................................................................................................................... iv
TABLE OF CONTENTS..................................................................................................v
TABLE OF LEGISLATION.............................................................................................ix
LIST OF ABBREVIATIONS............................................................................................x
LIST OF CASES...............................................................................................................xi
CHAPTER ONE
GENERAL INTRODUCTION
1.0 INTRODUCTION...................................................................................................1
1.1 BACKGROUND TO THE STUDY........................................................................1
1.2 STATEMENT OF THE RESEACH PROBLEMS..................................................3
1.2 RESEARCH QUESTION.......................................................................................4
1.2.1 MAIN RESEARCH QUESTION.........................................................................4
1.2.2 SPECIFIC RESEARCH QUESTIONS.................................................................5
1.3 RESEARCH OBJECTIVES...................................................................................5
1.3.1 GENERAL OBJECTIVE......................................................................................5
1.3.2 SPECIFIC OBJECTIVE.......................................................................................5
1.4 RESEARCH METHODOLOGY.............................................................................6
1.5 SIGNIFICANCE OF THE STUDY.........................................................................6
1.6 JUSTIFICATION FOR THE STUDY.....................................................................6
1.7 SCOPE OF THE STUDY........................................................................................7
1.8 DEFINITION OF KEY WORDS.........................................................................7
1.9 Synopsis...................................................................................................................8
v
CHAPTER TWO
THE CONTRACT OF EMPLOYMENT AND OBLIGATIONS OF THE
EMPLOYER AND THE EMPLOYEE
2.0 Introduction..............................................................................................................9
2.1 Contract of Employment..........................................................................................9
2.1.1 Terms of a Contract of Employment...................................................................10
2.1.2 Types of Contract of Employment......................................................................10
2.1.2.1 Contract of Employment of Unspecified Duration...........................................10
2.1.2.1 Contract of Specified Duration.........................................................................10
2.1.2.3 A Contract of Temporal Job.............................................................................11
2.2 Duties of the Employer..........................................................................................11
2.2.1 Duty to Pay Wages..............................................................................................12
2.2.2 Duty to Provide Work.........................................................................................13
2.2.3 Rest Periods........................................................................................................15
2.2.3.1 Weekly Rest.....................................................................................................15
2.2.3.2 Leave................................................................................................................16
2.2.4 Duty to Provide Safe Working Condition...........................................................17
2.2.5 Duty to Provide Worker Certificate of Service...................................................18
2.3 Duties of the Worker..............................................................................................19
2.3.1 Duty to Render Personal Services.......................................................................20
2.3.2 Duty of Tactful Service.......................................................................................21
2.3.3 Duty of Care and Skill........................................................................................21
2.3.4 Duty to Obey Reasonable Orders........................................................................22
2.3.5 Critiques of Employer and Employee duties.......................................................22
2.4 Rights of the Employer..........................................................................................23
2.4.1 Managerial Rights...............................................................................................23
2.4.2 The Regulatory Rights........................................................................................23
2.4.3 Disciplinary Rights.............................................................................................24
vi
2.4.3.1 Financial Sanctions..........................................................................................24
2.4.3.2 Professional Sanction.......................................................................................24
2.5 A Weekly Rest.......................................................................................................25
2.5.1 Leave................................................................................................................... 25
2.6 Conclusion.............................................................................................................26
CHAPTER THREE
THE RULES ON THE FORMATION OF AN EMPLOYMENT AND THE
RGULATIONS GOVERNING THE RIGHTS OF WORKERS IN A CONTRACT
OF EMPLOYMENT
3.0 Introduction:........................................................................................................27
3.1 Rules on the Formation of Employment Contract:...............................................27
3.1.1 Effects of the Formation:..................................................................................29
3.1.1.1 Payment of wages:.........................................................................................29
3.1.1.2 Area of Service:.............................................................................................30
3.2 Definition of Worker:........................................................................................31
3.3 REGULATIONS GOVERNING THE RIGHT OF WORKERS;........................32
3.3.1 Collective Agreement;......................................................................................32
3.3.2 International Conventions:...............................................................................33
3.3.3 Conclusion:.......................................................................................................34
CHAPTER FOUR
TERMINATION OF CONTRACT OF EMPLOYMENT AND REMEDIES FOR
WRONGFUL TERMINATION
4.1. INTRODUCTION................................................................................................35
4.1.2. TERMINATION:...............................................................................................35
4.1.2. Dismissal............................................................................................................38
4.1.3. Grounds for determination:................................................................................41
1) Dismissal for conduct incompatible with employment............................................41
2) Disobedience of reasonable orders:.........................................................................42
3) Criminal misconduct in employment:......................................................................44
4) Dismissal for sundry reasons:..................................................................................45
vii
5) Dismissal for economic reasons:.............................................................................45
6) Dismissal for trade union activities:.........................................................................47
7) Constructive dismissal:............................................................................................49
4.2. Remedies for wrongful determination:..................................................................50
4.2.1. Damages............................................................................................................50
4.2.2. Severance pay:...................................................................................................53
4.2.3. Specific re-instatement:......................................................................................54
CHAPTER FIVE
SUMMARY OF FINDINGS, CONCLUSION AND
RECOMMENDATION
5.1. SUMMARY OF FINDINGS................................................................................57
5.2. CONCLUSION.....................................................................................................58
5.3. RECOMMENDATIONS......................................................................................59
BIBLOGRAPHY.............................................................................................................60
viii
TABLE OF LEGISLATION
ix
LIST OF ABBREVIATIONS
CA ...............................................................................................Court of Appeal.
SC .................................................................................................Supreme Court.
x
LIST OF CASES
BOVZOVRU v. OTTOMAN Bank (1930)..........................................................30
Sinclaire v. Neighbour………………………………………………....................41
Pousard v. Spiers………………………………………………………………46
xii
CHAPTER ONE
GENERAL INTRODUCTION
1.0 INTRODUCTION
The Cameroon Labour Code1 is the main instrument used in Cameroon to regulate
contract of Employment as well as establishing the relationship that exist between
an Employee and an employee or worker. Chapter one here examines several
issues such as background study, statement of the problem research objective an
research methodology etc. This chapter simply introduces the entire work.
Nevertheless, with the growth in economic sector, the country gradually moved
from this unsecured trend of affairs to almost what prevails today. During of the
period of colonization, the law regulating the contract of employment in Cameroon
was built upon a foundation of important French and English law. This was
inevitable due to the fact that France and Britain were respectively of the colonial
master of Cameroon.3
The earliest of such laws that were received by the former East Cameroon, French
labour law the French overseas labour Code of 1952. 4 The reception of this law
was an honour made without any specific provision. It was assumed that what was
received includes both the express provision of the 1952 law the French Judicial
culture and procedure which was largely pro-administrative and anti-workers.
3
V J Ngoh “History of Cameroon” 1800 to the present date 1st Ed
4
Law no. 52.1322 of 15th December 1952
2
Hence, a new labour Code was enacted by law No 17/4/6 of 12th 1967 which
contrary to the former laws was more of a reflection to our social life environment.
The 1967 Code honour lasted for fourteen year (14) and was replaced by the 1974
Code which immediately adopted as anew Code after reunifications, though this
Code appeared to be satisfactory, it was in breach of the workers right the adoption
of the new Code was aimed at enhancing the relationship between the employer
and employee and solving other related problems which was rampant at that time.
It is at this junction that 1992 labour Code came into force.5
In spite of what has been discussed above, it must be acknowledged that our law of
employment sounds in contract. Although its nucleus is found in foreign law, the
labour Code remains an autonomous indigenous legislation while foreign president
may provide guidance in the interpretation of its provision, hence is in principle
and practice no basis to rely on a previous abrogated colonial law in determining
worker’s right. It was for this reason that the Supreme Court reversed the Court of
Appeal’s decision which relied on the French overseas labour Code in determining
the case of the parties in société Des Dreagages V. Nyamney Paul lot.6
5
Law no.92/007 of 14th of August 1992
6
Appeal no.70 of 17
3
It has been argued7 that an employment contract is no more or less a unilateral
contract whereby the employer dictates the rules for the employee to follow and
the employee being the weaker part and because he is desperately in need of a job,
he is forced to accept the terms and even degrading conditions of work. The
employee is not given the opportunity to say whether he is satisfied with the
proposal on the terms. This can be verified in the manner in which the rights of the
employee are being smashed by the employer. For instance, the worker’s right to
rest is not respected. Even the maternity leave for pregnant women is being
neglected. The employees are often paid little or nothing as wages. Workers have
certain intrinsic right that distinguish them from other workers but these rights are
hardly taken into consideration since he is acting as the boss and whatever he
decide stands and government always reluctant to give solution to such matters or
problem.
However, the employer is not the only victim in the contract of employment. This
is said to be true because certain employees usually take advantages of their
positions and employees to this disobey the terms of the contract and even act
beyond their rights and thereby forcing the employer to be held liable for their acts
for instance employers are very vicariously liable for harms caused by their
employees to third parties.
5
1.4 RESEARCH METHODOLOGY
The research method used in this work is purely doctrinal which is common in law.
This research adopts the quantitative method. The method is suitable for this
research, reason being that it analyses the problems and does not make use of
statistical data. The source of data here are both primary and secondary data
source.
The primary data is obtained from the labour Code and case law. While the
secondary data is obtained from text books, journal articles, reports, thesis and
websites.
6
1.7 SCOPE OF THE STUDY
Although this research is based on the formation and termination of employment
contract, this work shall principally be focused on the employee or the worker. We
shall critically examine the extent to which the efforts made by government of
Cameroon to protect workers in accordance with international standard.
8
Oxford Advanced Learner’s Dictionary, The 8th Ed. Pg 46
9
Cameroon Labour Code (Law no.92/007 of 14th of August
10
The Cameroon Labour Code
11
Supra note 12 pg 480
12
Supra note 14 pg 4
7
1.9Synopsis
This thesis is made up of five chapters. Chapter one is the introductory chapter. It
reviews the background of the study and identifies the research problems. It sets
out objectives, significance, methodology and scope of the work.
Chapter two centers on the contract of employment, the rights and duties of
employers and employees. It looks at the interpretation given to the weekly rest
terms in terms of labour Code.
The third chapter presents the formation of employment contract and the
regulations governing the right of workers in a contract of employment. It also
describes who is a worker. While chapter four focuses on the termination of
contract of employment, the destination between termination and dismissal of
remedies for wrongful termination of contract.
The final chapter is the conclusion of the study; it summarizes the funding while
making recommendations based on findings.
8
CHAPTER TWO
2.0 Introduction
This chapter simply examines a contract of employment, the duties of the employer
like e.g. duty to pay wage, rest periods etc. It also examines the duties of a worker
and it also looks the critique of employer and employee duties and lastly it looks at
the rights of an employer which are the managerial regulatory and disciplinary
rights.
The master power of selecting his servant, the payment of wage remuneration, the
master, right to control in general manner the work to be due and the masters right
of suspension or dismissal.
9
2.1.1 Terms of a Contract of Employment
A contract has been defined as a binding agreement between two or more persons
creating a legal obligation.13 An employment contract thus, it is a contractual
relationship between the employer and employee. An appropriate definition of an
employment contract is stated in section 23 of the Labour Code “which states that
a contract of employment shall be an agreement by which a worker undertakes to
put his services under the authority and management of an employer against
renuemeration”
The terms of contract of employment can be in two ways either express or implied.
The express terms of employment refers to those stipulations agreed upon by the
employer and employee during the negotiations in writing.
Contract of unspecified duration are by law meant to last till when the employee
reaches his retirement age or may last for life time of the parties. 14 This however is
far from saying that it is a contract of for life interminable. This is the most
common form of the contact of Labour in Cameroon.
13
Ryan , Fergus (2006) . Round Hall nutshells contract law
14
Section 25(1a) of Cameroon Labour Code
10
2.1.2.1 Contract of Specified Duration
This is a contract whose termination is fixed in advance by both parties. The
termination of the contract can either be by the will of the parties before the
contract made or termination can be subject to the occurrence of a future and
certain event whose realization does not depend on the will of the parties but it is
precisely indicated.15
The main aim for this type of contract is for the employee to be aware of the date
of the termination of contract that is why this specific duration contract are not
subject to notice before termination and this type of contact keeps the employee in
the company at all times and ensure that the employer does not terminates the
contract unilaterally except in the case of servant’s fault.
Section 1 (1) and (23) of Labour Code defines employment in terms of the service
of the worker for the remuneration of the employer.
Equally significant in the fact that by section 67 of the Labour Code. Wages shall
be payable in the legal tender only. The same provision further notes interestingly
that any other method of payment shall be unlawful while describing any
stipulation in the contact of employment to the contrary is “null and void” the
combined effect of this provision demonstrates that there can neither be
employment without pay nor one where payment is done in kind.
12
The above principle was affirmed in the South West Court of Appeal in Société
UCB V. Allianhu Fidelle17In this case, the court insisted that the wage specified in
a collective convention was the one to be enforced in the event of a conflict
between it and that contained in the employment contract of worker.
17
Suit No CASWP/L20/2003
18
The Indian Supreme Court has held in Mukt morcha V Union of India and other, Supreme Court report. (1948)
Vol. 2.6.7 that workers paid below the minimum wage were bonded workers” see David Wissbrodt et al”
Abolishing slavery and its contemporary forms “ New York 2002, P.15”
19
Supra note 11
13
Admittedly, the Supreme Court appears to have suggested in Lacoure V.
Alubassa20that here could be an obligation to provide work to a worker which is
normally suspended during the period of leave.
However, the position is clearly different in a piece contract under this regime of
engagement, there is an obligation on the employer to ensure that the worker is
given work which is sufficient to enable him earn wage similar to those workers
paid on a unit time based in equivalent employment 22.
The express creation in section 63 of the Labour Code of a duty on the employer to
give the worker work to do, in a piece of contract equally demonstrating that the
silence in section 1 and 23 of Labour Code deliberated.
The reasonable interpretation to put on this silence is the conclusion that the
legislation intended that the employer is not under the duty to provide work to the
employer is not under the duty to provide work to the employer. The situation in
piece or commissioned contract could not be expected to be otherwise or else it
will lead to a chaotic differentiation in pay for worker doing the same job. The
obligation to provide work will also applies where the workers occupation is such
that opportunity to work is an essential feature of the contracted because of the
possibility of loss reputation due to inactivity.
20
Appeal No. 177 of 25/04/1961
21
22
See Section 63 of the Labour Code of 1992. This Section gives a practical expression of non driscriminatory pay
prescribed in section 61(12) Labour Code.
14
2.2.3 Rest Periods
A worker can neither be expected to work all year round without resting or may be
required to work all day long without rest. Although the determination by the
contract and or collective agreement, there is a statutory provided rest period which
must inevitably be read into the contract of employment regulated by the Code.
This mandatorily means that all employments have implied terms giving the
workers a rest interval. The “rest interval” refers to periods where work is
interrupted so that the worker can spend his time as he or she pleases. It is also at
place of work. The provision of a ret period which dedicated by all interest of
government to maintain a healthy working population cannot be modified by the
contract of the parties. It goes without saying that a worker is not by the law
obliged to work during holidays etc. There is broadly two of rest intervals namely;
Weekly rest and leave23
23
Supra note11 p.45
15
However, regardless of the apparent strict and flexibility of section 88 of the
Labour Code, questions may still arise about whether the provision is absolute.
Could the employer in certain special types of employment for instance modify the
rest provision prescribed by the above section?
It will certainly be illogical and absurd to suggest that this cannot be done
subsection of 2 of this provision leaves open the possibility of adopting a
procedure that can result in a flexible application of the rest period to take amount
of the worker required to work on a Sunday is such a situation does not violate the
law.
The same principle will apply24 with rest periods involving national holidays such
as national day, Labour Day, including rest period from Christian and Islamic
religious festival such a Christmas Ramadan etc.
2.2.3.2 Leave
As a general rule, every worker is entitled after working for a certain defined
periods to a holiday for a special period with full pay. This period of holiday is
referred to in employment parlance as leave. Section 89(1) of Labour Code obliges
the employer to offer a worker paid leave “ at the rate of one and a half working
days for each month of an actual service” 25 The provision however, represents only
the minimum standard of permissible leave. Since employment is a contract, the
parties could themselves negotiate and agree a better leave condition.
Since leaver is calculated on the basis of yearly service, it is clear that a worker
who has put in a year of continuous service are entitled to at least an annual leave
of 18days shall include periods where the workers was absent from work due to the
24
See Enongene Williams v University of Buea where the awarded damages to a security man, who worked on
Sunday
25
See young Person under 18 years it accrues on the basis of two and half days per month section 10(1) Labour
Code.
16
fact of an accident or sickness was enclosed by a medical accident practitioner
approved by the employer. Section 89(3)(b) of the Labour Code however limit the
period of absence from work for reason of sickness for the purpose of the
calculation of leave period not exceeding six(6) months. It seems rather obvious
that the Labour Code’s provision on leave, one particular liberal few years know
that they are under section 89(4) of Labour Code entitled to occasion of family
rents directly concerning their homes “while it is not possible to list all the possible
situation when this special leave may be claimed, it seems reasonable to support
that such family occasion will include such matters like the death of a family
member.
For maternity leave pursuant to section 90(2) of the Labour Code, the worker’s
right to paid leave may not be taken in an arbitrary and disorderly manner. It was
thus held in the case of Hannah Njange v. University of Buea26that a worker who
after applying for leave took off without waiting for the approval of the worker that
she had been wrongfully terminated was dismissed by Ekoko J. in the Buea High
Court because of the conduct of abandoning her service before a formal leave
decision was taken among others.
HCF/18/98 Note the court also held that the worker who herself resigned cannot turn around to claim damages for
26
wrongful termination
17
This arête was enacted pursuant to section 95(2) of the Labour Code which
occupational health and safety conditions shall be determined by Orders of the
minister in charge of Labour issued after consultation with the national
occupational health and safety commission “Section 95(2) security for workers
standards of hygiene and safety confirming to those recommended by the ILO and
international bodies. The provision has in theory to be applauded for setting lofty
standard of safety and hygiene in the Cameroonian work place.
What does this standard require in practice? Although this has not been indicated it
is obvious that such safety standard must necessarily involve in free elements
enacted in the celebrated English case of Wilson & Clyde Coal Co Ltd V
English27. The Wilson Clyde case has set a three pronged duty on the employer to
provide safe machinery, safe working system and responsible staff. Bawak JCA
had recognized this three-folded nature of the duty owed by the employer as
applying in the context of the country’s Labour law.
27
(19…) 37 All ER 628
18
Although this is statutory provision which distinguish our Labour Code from
Anglo-Nigerian law28 on the same point must nevertheless be pointed out that it
has tendency to weaken the worker security tenure. This is so as it potentially
creates the impression that the worker could simply be asked to leave at the whims
and caprices of the employer so long as the employer give him the certificate of
service.
An employer who fails to provide a worker under section 167(1) of the Labour
Code to the payment of a fine from 100,000 to 1,000,000 FCFCA in the case of
Enongene Williams v. University of Buea29 a security officer who was dismissed
due to negligence was awarded general damages on grounds that he was not issued
a certificate of service. Although the plaintiff original claim in this case for
wrongful termination was rejected, the court significantly held that the provision of
section 44 of the Labour Code could be ignored even where the worker did not
claim it.
28
Under Anglo – Nigerian law, there is no such restriction in fact on contrary, certain now defunct decrees under the
military specifically disbanded worker who had been dismissed from employment from participating in the electoral
process.
29
Supra note 26
30
Appeal No.66 of 30/05/1972
19
2.3.1 Duty to Render Personal Services.
It is clearly provided in section 1(1) and 23(1) of Labour Code that the worker’s
primary duty is to provide service to the employer. By the very nature of the
employment relationship, the worker in inevitable required to present himself for
the work and be ready and willing to serve under the directions of the employer. It
is in fact literally impossible to talk of employment decision of Ekoko who had
held that a worker who has a breach of the duty to render personal service as in
Hannah Njange V University Of Buea 31, illustrates this point her action for
wrongful termination was for this reason dismissed for being devoid of merit.
31
Supra note
32
supra
33
Judgment No.375 of the administrative Tribunal of the ILO cited with approval in the Re Duran No.3 Judgement
No.543.
20
2.3.2 Duty of Tactful Service
A worker must carry out his work in an honest and responsible manner 34 The
Principle is a direct function of the provision of section 31(1) of the Labour Code
require the worker to “devote all him gainful activities to the enterprise same as
otherwise stipulated in the contract provided that he may, unless otherwise agreed,
undertaker outside his working hours any gainful activity which is not liable to
complete with the enterprise or prejudice to the performance of the agreed service”
This provision requires the workers to work for the employers in accordance with
the employment contract of parties. It must therefore be understood that it is the
employment that determines what the worker should do. Employment is construed
strictly. An attempt by the employer to play a boss and requires, the worker to do
things not contemplated by the terms of the contract could be politely ignored
without any consequences to the workers. The employment contract is not guarded
as jealously as the marriage institution hence the worker may unless otherwise, use
his private time to improve his earning capacity elsewhere35
The degree of care expected however varies with employee’s seniority at his work
place and the responsibility entrusted to him it will hence in law. A wrong to
34
This requires that the worker to serve his employer in good faith and fidelity
35
Supra note 11
21
expect too high a standard of care from a junior staff for that the manner of work
will be wrongful even where the negligence caused prejudice to the employer. The
issue is one of fact to be left to the appreciation of the court in an objective
manner36
The duty to respect the reasonable order of the employer is of great antiquity. It
was in Giwarak Jean v. Splangounias Stamalion37supreme court held than an
employee who responds rudely when questioned by the employer about the
apparent negligence with which he had been summarily sacked when he reported
that I am not your slave, neither am I your body guard leave me in peace” when
told to do his job carefully.
38
Supra
23
technical organization to work, discipline standard and provision especially
remunerations, then there shall be null and void.39
1) It shall be for a maximum of eight clear days from the time of the imposition
of the penalty
2) The worker shall be notified in writing of the suspension on the reason
therefore a copy of the notice of suspension shall also be sent to the
competent Labour inspector within 8 hours. If it so happens that the reason
for the suspension are unfounded, then the worker against whom it
pronounced is entitled to his loss of wages and benefits.41
39
40
41
(19….) 17 all ER 628
24
permit to answer positively. In the case of Les Brasseries Du Cameroon v. Messe
Njesse Gasper (1987). The supreme held that the dismissal of the defendant was
wrongful because of work took two bottles and drank with a visitor at the work
place.
2.5.1 Leave
Furthermore, related to resting hours is the workers right to go to leave 44. Annual
leave shall accrue after service of one year as provided by section 92(1) of the
Labour Code. Although sometimes, collectives agreement may warrant that such
be a period above one year.
42
supra
43
Section 88 (1) of Labour Code.
44
Section 89 Labour Code
25
2.6 Conclusion
To conclude both the employer and employee have duties or obligations that they
have to fulfil when it comes to a contract of employment. And for a contract of
employment to be effective both parties have perform these obligations.
26
CHAPTER THREE
3.0 Introduction:
This chapter simply introduces the rule on the formation of an employment
contract which is the intention to create a legal relationship, capacity etc. It also
has effects on this same employment contract and it further explains the regulation
governing the right of a worker and these regulations are simply the international
conventions and collective agreements.
Firstly, one of the rules is that there must be clear job description, that is, there
must be a specific proposal to give or do something which must clearly spell out
which proposal can be known an offer, which is been made by the employer. 45 This
offer that is been made by the employer to the employee must be of a specific
remuneration (wage). A contract of employment shall be an agreement by which a
worker undertakes to put his services under the authority and management of an
employer, against remuneration.46
Who must be a physical person not a moral person. PAUL GERALD POUGOUE CODE DU TRAVAIL
45
27
Secondly, this employment contract can be made either orally or it can be in
writing and also another rule is that the contract must be for a specific period of
time under this specified period. It can be divided into two, which is contract of
specified duration under section 25(1) of the Labour Code and contract of
unspecified duration under section 25(1)(b)
As the employer must make an offer to the employee, there is already an intention
or the need for them or the parties that is the employer and employee to create a
legal relationship between them. It is entailed in every legal offer is an expression
of the willingness to be bond in specific terms, should those terms be accepted
without qualification of the offer.
Under the rules on the formation of employment contract, there is capacity and the
characteristic of this capacity has to do with the Age and State of mind
(understanding) of the parties who are to enter into the contract of employment
with regards to the law in Cameroon as a rule in the formation of a contract, It
states that the parties entering into the contract must be of legal age before it can be
considered a contract of employment. An employment contract will be considered
void if this rule is not followed. But in every rule, there is exception. It is said in
the law that a person of 14 years can be employed as a worker. This shows that a
14year old worker is competent plaintiff in Labour actions. This can be seen in
section 86 of the Labour Code.
28
Also, another rule under the formation is that a person has a sound mind before
entering into a contract. A person of an unsound mind has no contractual capacity
and any contract which person enters into will be considered void in the eyes of the
law. Example of this type of person, are insane people and extraordinary people.
The content of a contract of employment which forms the basis of the rights, duties
and obligations of the parties under the contract usually varies from one
organization to another. But generally, there are certain elements which are
common in most categories of employment. They are;
By the provision of section 1(1)-(3) of the Labour Code, the issue relating to the
basic salary of the employee is adequately protected. This covers housing or
allowance, end of year bonus, overtime and the sick-pay. The statutes make it duty
for the employer to ensure that these issues are adequately taken care of and by
47
Ibid, at PIII
29
that, it implies that from the date of commencement of the contract of employment,
the employer is answerable to the welfare of the employee.
He also maintained that he was not contractually obliged to accept such move but
the court held that the respondent was giving a reasonable and lawful order, which
the appellant was bound to obey, that is disobedience was justifiably treated by the
respondent as faute grave and dismissal was justified. The effects of a contract
employment as implied by these decisions is that where the order is lawful, the
employee is bound to obey while an unlawful order will not be enforced even
though the employee consented to it cut the time of taking up the employment. The
overall effect of contract of employment on parties is that they are bound by the
content of the agreement provided the mode or ways by which such obligations are
to be executed are not unlawful.
48
A.C.271DC
30
3.2 Definition of Worker:
A worker can be defined as any person who works for a living, either with the
hands or with the brain, especially those who do industrial or manual work for
wages 49). A worker is defined in section 1(2) of the Labour Code 50 as “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, whether an individual
or public private co-operations as an employer..”
49
.
Webster Duluxe, new 20th Century Dictionary unabridged 2nd Ed
50
Created by the Alex No. 92/14 August 1992
51
The Control test no longer applies in the British Cameroon Legal system as well as the American Legal system.
John Elison Business law 3rd Edition
31
involving technical profession and sophisticated function. Hence, though not
provided in the Labour Code, legislators have provided to look at the following;
degree of control by the employer, the degree by which the workers’ risks loss or
stand to gain from profits.
Note must be taken of the fact that there is a distinction between workers, as
defined in the Labour Code and Public Servant; section 1(3) of Labour Code
further states another category of persons not considered as workers. They are
governed by different Legislations. Also by definition, Military Office, the
Judiciary, prison service and Police do not come with the frame work of workers as
per section 1(2)52, they do not fall within this scope of study because their activities
are regulated by another decree.
Cameroon Development Corporation (C.D.C), the bank and oil sectors are largely
influential by joint agreement between employers and trade unions to which their
employees belong. Section (1) and 21(12) of the Labour Code provides that a trade
union be “made contract or Agreement with any other trade union employers
association companies, undertaken persons.”
52
Supra.
32
The Correct and incontestable provision must be that trade unions are statured by
empowered to make contract with companies and undertakings employing work53)
53
A Yanou “Labour law principle and practice in Cameroon, 1st ed Calabar RuDEF 200,
54
Appeal N0 202 of 16th May 1961
55
Article 45 of the 1996 Constitution mandates all international ratified convention to be applied in the country and
ease rank above the national law.
33
the convention provide for by the other article of the convention, enjoy in every
period of seven days a period of rest, comprising at least twenty four consecutive
hours. This period of rest shall be whenever possible he granted simultaneously to
the whole of the staff.
3.3.3 Conclusion:
To conclude, with regards to the rules on the formation of employment contract,
these rules are simply based on mostly the essential of a valid contract when it
comes to the rules of employment contract. And the effects are simply what the
employer has to do when the commencement of an employment contract, and
when it comes to the worker, there are rules or regulations which govern the
employee. And it is said that the employee is always the weaker party, and to that
effect, collective agreements and international conventions came in to regulate the
rights of the worker. But as a result, the employer will always be the “god” when it
comes to a contract of employment.
34
CHAPTER FOUR
4.1. INTRODUCTION
In common parlance termination means the act of bringing to an end in space or
time56. Applying to the contract of employment, the definition of termination
covers certain notions like dismissal, resignation, retirement, force majeur, death,
and mutual will although some writers have distinguished between termination and
dismissal.
4.1.2. TERMINATION:
Section 34(1) of the Labour Code refers to the termination of contracts of
unspecified duration thus “A contract of unspecified duration may be terminated at
any time 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
56
M.R. Freedland The Contract of Employment Oxford; Claredon press, 1976:142.
57
(1960) 5 FSC: 24.
35
terminating the contract. Notification of termination shall be made in writing to the
other party and shall set out the reason for the termination. The notice period shall
start to run from the date of such notification. It shall 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 enforceable on the other party. This provision shall be without
prejudice to the right of the injured party to claim damages.”
Hover, the section did not define termination. We shall in the absence of a
definition in the Labour Code turn to academic writers for the definition of
termination as understood in strict legal parlance. The concept has been defined as
the process by which a contract is put to an end in accordance with the pre-
determined rules regulating the employment58. To situate this definition to our
Cameroonian context, we observe that such rules are normally derived from the
terms of the party’s employment, the provisions of the Labour Code and other
Legislations and Collective Conventions.
It should be noted that the first sentence in Section 34 of the Labour Code codifies
the Common Law principle that permits either party in a contract of service to
terminate it at will. This freedom of either party in an employment to put an end to
it was read in a similar provision in a previous Labour Code by the Supreme Court
in Ngo Minyemeck Catherine v. COMACICO 59 where the Court held that an
employer was legally at liberty to terminate a contract of employment. It was
equally held by the same Court in the case of MaziohClaude v. S.E.A.C60 that
employers and workers have the freedom to terminate the contract of employment
58
M.R. Freedman The Contract of Employment Oxford; Claredon press, 1976: 142.
59
Appeal No. 25 of 21/3/1974.
60
Appeal No. 45 of 25/4/1974.
36
at will. The Supreme Court in the Mazioh Claude’s case rejected the argument that
the right to terminate can be taken away because of the illness of the worker.
However, in spite of 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
conclude that this weakens the security of tenure of workers in Cameroon. On a
careful review of the current Labour Code, it is obvious that the right to terminate
may not be abusively and negligently used against the worker. The Supreme Court
held in Jourdan Roger v. Izoung Michel61 that it could not be a good exercise of
this right to recklessly terminate a worker who had served him as a house boy well
for over six years. The Jourdan Roger decision shows clearly that there is no such
unlimited right for an employer to terminate a contract of employment for the fun
of it. The requirement written in Section 34 of the Labour Code “shall set out
reasons for the termination” provides protection against the abusive and capricious
termination of a worker by the employer.
4.1.2. Dismissal
Dismissal constitutes undoubtedly the essential form to terminate the employment
contract by the Employer in regards to misconduct. Such misconduct will normally
relate to a refusal to perform a duty or obligation owed to the other under the
employment.
Section 36(2) and 37(1) of the Labour Code are significant for encapsulating the
concept of dismissal. The former makes reference to a contract of employment and
asserts that “it may be terminated without notice in case of serious misconduct,
subject to the findings of the competent court as regards the gravity of the
misconduct.”
The question that immediately comes to mind is what is the extend of misconduct
that may justify dismissal? Admittedly, this question is hard to answer because
neither sections 36(2) and 37(1) nor any other provision has defined misconduct or
dismissal. This lacuna shows the entire clumsiness of the Labour Code. These
provisions are legitimately criticize for confusing termination and dismissal which
are conceptually distinct notions carrying different consequences. The courts are as
a matter of cause inclined to strictly construe dismissal since it ends up throwing
the worker out of work and does so carrying his good name along as well. Based
on precedent from the Supreme Court, B E Fondjock JCA held in the Bamenda
Court of Appeal in SODEPA Dumbu v. Biebu Martin Fang62 that the appreciation
of the gravity of conduct for the purpose of determining a misconduct is at the
62
BCA/7L/2006 Unreported.
38
discretion of each individual judge noting that “gravity is a function of each
individual case” which “varies from case to case.”
With regards to actual definition, the quality of conduct which would amount to
misconduct can be gleaned from the Supreme Court’s decision in Arrete No. 97/s
of 12 September 1985 holding that a serious misconduct must relate to an
intentional act of the worker in the course of employment. The Supreme Court was
quite categorical that this excluded what the court preferred to refer to as a
professional error. The Courts view as expressed above is unfortunately not
particularly helpful since it remains obviously difficult to say what intentional act
as used by Arrete No. 97/s means in relations to the various possibilities that can
occur in employment. It is however safe to conclude from an earlier decision of the
same court in Makoa solomom63 that disobedience of a reasonable order by a
worker ranks among one of the most serious intentional acts that should justify
dismissal.
63
Arrete No.69 of 19 march 1968.
39
From the above dicta, one can see that all misconduct would justify a dismissal.
The employer must justify that the prejudice caused to the service was substantial
as was held in the case of SO DE PA Dumbu64.
Furthermore, the misconduct must be within the employment scope of the workers.
This principle was illustrated in Laws v. London Chronicle Ltd65. In this case, the
worker was dismissed by the employer for refusing to obey orders to stay where
she was, it was held that the dismissal was wrongful.
- The Employer shall give in writing the dismissed letter to his Employee and this
letter shall set out the motive to terminate the contract. This notice takes effect
from the date of notification.
- The Employer shall give previous notice to his Employee according to Section
34(3) of the Labour Code. The duration of this notice shall take into account the
workers length of service and his professional category. According to Order
No.14 / MTPS of 26 May 1993.
64
It was held that although a herdsman who flouted the instructions of his employers by taking cow from a different
herd committed a misconduct, this was not of sufficient gravity to justify his dismissal.
65
(1959) 2 All ER 285.
40
4.1.3. Grounds for determination:
The underlying consideration for the application of this test is the effect of the
purported conduct of the worker on the entire employment relationship. The
principle informing this approach was graphically demonstrated in Sinclair
v.Neighbour66 which was cited with approval in CatholicEducation Secretary v.
Atem Mary Musono.67In Catholic Education v. Atem Mary Musono68theCourt of
Appeal confirmed the decision of the trial court that a school teacher who took
money from school fees under her charge without the authorization of her
employers was correctly dismissed. The trial court accepted Sinclair v.
Neighbor69as expressing a principle of law which is applicable in the context of the
Labour Code.
66
(1967) 2 QB 279.
67
Suit No. CASWP/L.1/04-05.
68
Ibid.
69
Supra note 74.
41
The same Appellate Division in Buea held in Victor Oyebog v.C.D.C70that a
worker who conducts himself in the course of employment in a dishonest and
untrustworthy manner by stealing materials entrusted to him by his employers in
Tiko to deliver in Kumba was legitimately dismissed.
However, the reasons of security of employment and the general adverse social and
political consequences of dismissal, the courts have followed Common Law trends
in insisting on a high burden of proof in dismissal cases. It is therefore not simply
enough for the employer to dismiss the worker on grounds of loss of confidence.
This principle has been consistently followed by the courts as demonstrated in
Societe Shell Cameroon S A v. V Kemayou Henri 71where the High Court, Court
of Appeal and Supreme Court all held in favour of the worker who was sacked for
what the employer simply characterized as the loss of confidence.
“There is no doubt whatsoever from the records of proceedings that the respondent
a worker was in July 1997 transferred by the appellants his employers from
Bojongo to Fontem and the respondent never reported for duty in Fontem. In this
regard I hold the same view as the Bamenda Court of Appeal in Educational
70
Suit No. CASWP/L.10/2004.
71
Appeal No.79/S/04-05 of 12/5/2005.
72
Supra.
42
Board of Baptist Convention v. Robinson FellFominyen (Suit No
BCA/31/83…..that a refusal to go on transfers tantamount to a misconduct.”
The fact that the worker had requested and collected money for transport to travel
to his new station and partial salary arrears owed him without going to his new
station was held to amount to a disobedience justifying his dismissal. Justice Njie
was particularly instructive on what could be defined as a just cause justifying a
worker’s refusal to go on transfer.in a particular illuminating statement, the judge
stated the issue thus:
“From what I have said above, I found the respondent refusal to go on transfer
because he was owed two months’ salary and he was not given a simple guarantee
for the payment of these salaries was not a just cause and consequently he ought to
have been dismissed…”
This decision is well founded for two reasons. Firstly, the Administrative Tribunal
of the International Labour Organisation had held in Re Duran No 3 73 that “it is an
elementary principle of the Law of contract that if one party clearly and definitely
refuses to honour his or her obligation, the other party is entitled to rescind the
contract.” The Tribunal made reference to the refusal of Ms Duran to go on
transfer and observed that this principle remains the same in employment noting
that “it does not matter whether or not any of the rules say so in many words.” In
the particular situation under the Labour Code, The decision is unimpeachable for
the additional reason that the worker had engaged the procedure for the payment of
outstanding wages as he was entitled to do under the Labour Code.
Secondly, a situation where workers do just what they please and refuse to obey
reasonable instructions of the employer can only move towards anarchy which is
73
Judgment No 543 of 50 ordinary session march 1983.
43
patently incompatible with the employment contract. In Sule v. Nigeria
CottonBoard74 the Nigerian Supreme Court disapproved of the disobedience of
lawful orders from any worker high or low, big or small. The court added that such
conduct normally and usually attracts the penalty of summary dismissal as
disobedience ranks as one of the worst form of misconduct in employment.
74
(1985) 2 N.WL.R 17.
44
Union Ltd75 where a worker was terminated for allegedly misappropriating stocks
belonging to the respondent. Although the evidence at the trial showed that an
audit account had established a shortage, there was also evidence that these
shortages were not caused by the appellant personally but rather by persons
working under the appellant who was the cooperative’s storekeeper.
75
Suit No. BCA/27L/80.
45
period or by notice in employment of an unspecified duration. The termination of
the employment under this general rubric is ascribed to circumstances beyond the
control of either the employer or the worker.
Section 40(3), 40(4) and 40(6) of the Labour Code provides greater security to
workers than what obtains under the Common Law. Dismissal for economic
reasons would pursuant to the above provisions only be undertaken if the employer
in consultation with the staff representative and the relevant Labour Inspector
attempted to save the worker’s employments. It is incumbent on the employer to
show that he tried such possibilities “reduction of working hours, shift work, part
time work,” including lay-off and the review of allowances and wage cuts before
the termination of the workers.
76
Supra.
46
The situation with contracts of unspecified duration which potentially could last till
the retirement of the worker is treated differently. Although each case will depend
on its peculiar facts, section 89(2) (a) and (b) of the Labour Code has established
the various possible principles to deal with the issue. Under these provisions, it is
tacitly recognized that absence from employment due to industrial accident,
occupational disease and illness certified by a medical practitioner do not rapture
the employment relationship. Section 89(3)(b) of the Labour Code further makes
the issue clearer by stating the absence from work as a result of an illness lasting
for periods not exceeding six months could still leave the employment subsisting.
The employer will be in breach of contract if he dismisses a worker who stays
away from work due to ill health for more than six months. Where there isn’t one,
the employer will be at liberty to terminate the contract of a worker who becomes
incapable of working because of illness. In Catholic Education Secretary v. Ndip
Aaron77 the claim by the worker that he could not go on transfer due to illness was
regarded as idle. The parties may in fact agree on issues touching on absences from
work in their contract or it be regulated by a term from a collective agreement
incorporated into the employment.
Most legal systems have developed some form of protection against termination
from employment for trade union activities. This is a salutary practice since an
employee’s union activities could potentially cause a clash between him and his
employer. The Law in many countries have rightly recognize that trade union
activities may become the underlying reason for the employer’s decision to get rid
of a troublesome union activist even though the employer may purport to base his
actions on other grounds.
77
supra
47
The Cameroon response and basis for the protection against harassment for union
membership and activities are found in the 1996 Constitution as amended and the
Labour Code. The Preamble of the Cameroon Constitution and its Article 65
provides an impregnable justiciable protection against abuses for union
membership. This preamble provision convers on any worker and employer the
freedom of “association and unionism.”
The preamble equally asserts that “the right to strike shall be guaranteed under the
condition fixed by law.” Hence it is very wrong for the employer to terminate the
employment of a worker as punishment for his union activities.
The Labour Code leaves no room for equivocation as section 4(3) categorically
describes “any act contrary to the provision of this section” as “null and void”. It
goes without saying that any dismissal, punitive transfer, demotion, deduction of
salary as a consequence of a worker’s trade union is ineffective. A Labour Court
can for this reason easily order the reinstatement of any worker punitively
dismissed for his union membership.
48
However, it has to be noted that a threat to terminate and employee’s employment
remains only a threat and does not without more amount to a wrongful dismissal of
the contract of employment nor in fact does it amount to anything.
7) Constructive dismissal:
This occurs where the employer acts in a way that demonstrates that the latter no
longer deserves to be bound by the terms of the employment.
Constructive dismissal may take a variety of forms including for instance situations
where the worker was pressed to take dangerous risks. The point about
constructive dismissal is that the employer becomes liable even where the worker
resigns or abandons service because of the actions of the employer.
Jani JCA supported this decision with the Supreme Court judgment 79
cited and
relied upon by Roger Doublier’s Manuel du Droit Travail du Cameroun.
78
(1999) CCLR pt 4 62.
79
Supreme Court decision delivered on 15 December 1964.
49
4.2. Remedies for wrongful determination:
Wrongful or unfair determination of contract of employment refers to wrongful
repudiation of contracts for which the law provides a remedy, it is a brusque
untimely and unjustifiable repudiation which utter disregard for the prerequisite
statutory and conventional formalities.
Section 39(3) of the Labour Code ordains that “In all cases of dismissal, it shall be
up to the Employer to show that the ground for dismissal alleged by him are well
founded”. The court shall ascertain whether the Employer acted fairly and
reasonably in dismissing the worker. If not, the Labour Code sets out a variety of
safeguard to protect the Employee from being wrongfully excluded from work.
The philosophy regulating the courts response to a wrongful determination of
employment contract is discerned in Lords Cain’s decision in Doherty v. Alman80
4.2.1. Damages
The classical remedy for wrongful dismissal is an action in the competent court for
damages. In fact, judging from the provision of Section 39(1) “Every wrongful
termination of a contract of employment may entails damages.” This seems to be
the only remedy available to the unfairly dismissed worker in Cameroon.
80
(1878) APP CAS 709
50
Damages refer to the pecuniary satisfaction awarded by a judge in a civil action for
a wrong suffered by a plaintiff who in labour matters could either be the worker or
Employer81.
Damages shall be assessed as Section 39(4) of the Labour Code ordains that “with
due regards to all factors indicating that prejudice has been caused and all factors
determining the extent of such prejudice and in particular with due regard:
b) Where the employer is responsible for whatsoever the type of employment, the
workers seniority with the employer, his age and any vested rights. However, the
damages shall not be less than three months’ salary or more than one month salary
per year of service in the enterprise.”
Before 1992,the courts apply the principle of the above set out in the case of
Fortoh vBrasseries company ltd (1981)82 the judge in deciding damages to award
“The measure of damages for wrongful termination or dismissal is prima facie
(first of all) the amount the plaintiff would have earned had he continue with the
employment.”
Today the rigid rule for assessment of general damages prescribed by Section 39 of
the Labour Code is now an inflexible principle of the law .in the case of
Universityof Buea V. Mbua Teke (2002)83 the judge did not have the discretion to
award damages as he did in the case of UnionCamerounais de Brasserie V. Baiye
Afue Joseph(2000)84
81
Mosley & Whitey Law Dictionary (London) 1977:94.
82
Appeal No 44 of 4/2/1969.
83
Appeal No.16/S/02-03 of 21/5/2002.
84
Suit No. CASWP/L.17/2000.
51
According to some writers, the issue of discretion will be applied in the assessment
of damages for workers who have worked for between 1-2years for an employer.
That is why the Court award the sum of 140,000frs CFA representing 3months
salary for a worker who has worked for only one year in the case of Lay
PrivateEducation V. Ebede Patric Asi 85
Other writers argued and concluded that
the rule in Section 39(4) will apply only a situation where the employee has done
more than 3years of employment.
It should be noted that for the claim of damages to be valid, the the employer or
worker must have presented his claim at the Labour Inspectorate during the
conciliation process. The failure to claim any head of damages before the Labour
Inspector is fatal for violating sections 139-140 of the Labour Code. Indeed, the
Supreme Court decision in Dandji Marc v. College du Progress 86 had firmly
established the principle that a party cannot claim at the court what he failed to
claim during the conciliation process before the Labour Inspector.
Specific damages reflects compensation for actual loss suffered like loss of
earnings and all incidental benefits that had become due at the time of termination
or dismissal (rent allowance, leave claim, salary arias, post allowance).
The award of special damages are based on the principle that it must be pleaded
and proved strictly. But in Labour matters the pleading contains the statement of
non-conciliation as the Judge held in PAMOL Plantation ltd v William Nango
Kimbeng (2004).87The court awarded the plaintiff worker his unpaid pension and
gratuity which has accrued as special damages.
85
Suit No.CASWP/L.14/2000.
86
Appeal No44 of 4/2/1969.
87
Suit No.CASWP/L22/2004/IM/04
52
4.2.2. Severance pay:
Reference must be made to the fact that severance pay and the payment of salary of
a worker who has been dismissed after being transferred to work outside his usual
residence are all part of special damages.
Apart from the fact that workers are entitled to severance pay, employers are by
section 94(4) of the Labour Code obliged to repatriate workers who were
terminated while working in a place outside their usual employment back to their
usual place of residence. An employer who fails to repatriate a worker back to his
53
residence shall be bound to pay such a worker a monthly allowance equal to his
salary. This allowance must be paid to the worker for the period of time he had
stayed in the town where he had worked before his termination waiting to be
transferred back to his residence. Where the employer fails to do so, the worker
can claim it as special damages. However, the workers payment to repatriation is
barred after three years, it follows naturally that the employer’s obligation to pay
the allowance cannot extend to more than three years.
The courts have defined residence as the place where the worker habitually lives. It
was for this reason expressly held in Societe Activida Assurances v. Fotse
Marguerite88 for the purpose of determination under section 132 of the Labour
Code.
88
CASWP/L.11/2001 Unreported.
89
See generally Hill v. C.A Parsons & Co. Ltd (1971)3 W.L.R page 995.
90
A.C.488
54
employment. In Morris v.Gestetner ltd (1973)91, the Court recommended re-
engagement instead of reinstatement.
The Labour Code in its Section 130(1) provides that an Employer may only
terminate the employment to staff representative after seeking and obtaining the
prior approval of the competent Labour Inspector. Any dismissal made in violation
of the provisions stated above shall be Null and Void and the staff representative
shall be reinstated with full payment for the period of suspension.
4.2.4 CONCLUSION:
91
3ALL E.R.118.
92
B. Napier, “Dismissal-The International Labour Organisation Standard” The Industrial Law Journal Vol.12 at page
55
employer respectively. The situation becomes complicated if gross misconduct is
alleged.
56
CHAPTER FIVE
It has been observed that Cameroon has a good legal framework that regulate
labour contracts. The legal framework has incorporated necessary requirements of
international instruments in relation to labour contracts. A number of significant
safeguards under the Cameroon Labour Code lends credence to this.
The study has shown that there is a wide gap between what the law provides as
rights and what is actually practiced.it has been demonstrated that the conditions of
labour contracts in Cameroon is below the standards required by international legal
57
instruments. These conditions includes: poor health care, conducive environment,
low wage rate, and hard labour. These conditions are very common in employment
enterprises in Cameroon.
5.2. CONCLUSION
From the findings of the research, one can say that the rights of parties to a labour
contract are to an extent in Cameroon respected. The labour Code of Cameroon
provides the necessary safeguards for the rights of parties to a Labour Contract.
For example the Labour Code provides the amount to be paid as wages and equally
provides remedies for wrongful termination of employment contract. Cases have
been reported where employees received remedies for wrongful termination.
58
5.3. RECOMMENDATIONS
The Labour Code of Cameroon should be fully applied in all Labour Contracts.
This will help in enhancing improve on the labour relationship between the
employer and employee.
To add, employers and employees should have a good mastery of the laws
regulating Labour Contracts so as to avoid the violations of such provisions. The
employer should know what he ought to do or ought not to do. Employees should
equally be aware of their rights and duties so as not to act beyond those rights and
implicate the employer in his actions.
More so, the terms of the contract should be negotiated by both parties. This will
give the employer valid grounds to prosecute the employee in case of a breach of
the contract. The worker should equally ascertain the terms of the contract before
signing or entering into it .thus, by reading this project, the workers awareness
shall be updated.
59
BIBLOGRAPHY
Books:
Brian Bercusson, European Labour Law 1st bed. Butterworth (1996) 308.
J Roper Labour problems in West Africa London Penguin, 1st ed. 1958: 12
A Fadipe, the Sociology of the \Yoruba’s, Ibadan University Press 1970; 151.
60
News Paper:
Journal:
M. A. Fadipe, the secretary of the Yoruba Ibadan University press, 1 st edition 1970
P. 151.
61