Feb 22, 2011, 10:26 AM
The Kanifing Industrial Tribunal on 3rd January 2012 entered judgment against Business Training Centre, BTC, in favour of Mrs Reme Jagne, plaintiff .
The tribunal had ordered the defendant, Business Training Centre, to pay the plaintiff D99,590.22 being arrears of salary, earned leave, notice pay and gratuity.
The defendant was also ordered to pay the plaintiff D35,174 being damages for wrongful termination, as well as costs of D6,000.
The tribunal stated that interest of 15 percent was awarded from the 26 November 2008, to date of the judgment and thereafter 4 percent to date of final payment.
In his judgment, the chairman of the tribunal said that for a plaintiff to successfully bring a claim before the tribunal for wrongful termination, she must establish that an employer-employee relationship existed between her and the defendant.
In this respect, the chairman continued, a number of tests had been formulated indicating control, the multiple and organizational tests to determine the relationship.
He added that the multiple test laid down three other conditions to be examined in determining the relationship including: the power of selection of the person to do the job, the right to fix the wages payable and the employer’s power of discipline.
The tribunal indicated that it was going to determine whether or not the plaintiff’s employment was wrongfully terminated.
The chairman went on to say that the letter terminating the plaintiff’s service did not state any reason for her termination.
“It would appear that the ordinary meaning of Section 83 (1) of the Labour Act requires the employer to provide the employee a reason for termination. This is because if the termination must be grounded on a valid reason, it follows that the reason must be disclosed to the employee to enable him/her decide whether it is valid or otherwise,” the chairman told the tribunal.
He added that the evidence, however, revealed that the plaintiff’s employment was not terminated for any of the grounds enumerated in Section 83 (1).
“Section 93 (1) of the Labour Act 2007 provides the circumstance that would constitute redundancy and reorganization.
“A dismissal grounded wholly or mainly on the circumstances would be deemed to be unfair if the employer is unable to show that he acted on sound business principles and has satisfied the conditions specified in sub-section 2,” said the chairman.
The chairman further told the tribunal that, in the absence of any evidence contradicting the claim of D69,445.22 by the plaintiff, he held that the plaintiff had proven the claim.
He further added that the computation of claims also included two months’ pay representing gratuity, stating that as the claim was not contested by the defendant, it was deemed admitted, and therefore awarded the plaintiff the sum of D12, 058.
“It has been found from the evidence that the employee’s termination is fraught with abnormal circumstances, by the defendant’s failure to comply with statutory provisions relating to the redundancy of the plaintiff,” the chairman declared.
He finally told the tribunal: “In summary, I hold that the defendant violated the relevant provision of the Labour Act relating to redundancy and reorganization, thereby rendering the plaintiff’s termination wrongful.”