Mar 11, 2011, 11:35 AM
Recently Magistrate Jobarteh of the Kanifing Industrial Tribunal entered judgement in favour of one Bakary Bojang and Kanmadiba Bojang against Timelss Bar and Restaurant.
Bakary Bojang and Kanmadiba Bojang, plaintiffs, claimed the recovery of D21,000 for wrongful termination of their services, D300,000 as damages for breach of contract, D15,180 for social security, income tax and interest at the rate of 25 per cent.
Having summarised the evidences of the plaintiffs and that of the defence, Magistrate Jobarteh told the tribunal that at the close of the evidence of the parties, the following issues stood out for determination; whether the reasons engrossed in the exhibits were valid, sufficient and fair to dismiss the plaintiffs.
He stated that the reason for terminating the services of the plaintiffs by the defendant was that on 11 November 2012, they failed and neglected in their duty to keep their workplace and environment clean, and they were instructed to pick rubbish, which they deliberately refused to carry out, saying that was not their job which was tantamount to insubordination to their supervisor.
The reason further stated was that they were confronted by senior management of the company and they affirmed to their neglect of duty and insubordination, which is contrary to section 2.2 (a) and (b) of the company services rules.
Magistrate Jobarteh adduced that perusal of the Service Rules and Administrative Procedures, revealed that insubordination forms part of reasons for termination espoused in section 2.2.
He stated that the defendant also reserves the right to terminate the services of an employee upon commission of mentioned cause of termination inscribed in the aforesaid section by giving appropriate notice.
Magistrate Jobarteh posited that all the parties indicated that there was an altercation between the plaintiffs and the defendant regarding the picking of rubbish, in particular, plastic cups and tissue papers.
He adduced further that the plaintiffs claimed that the instruction to pick rubbish was not part of their job and this evidence was renounced in both exhibits, adding that it was also in evidence that both plaintiffs had been employed as waiters.
“A simple question is whether a waiter’s function includes picking of rubbish at the entrance of the kitchen,” Magistrate Jobarteh told the tribunal.
He further posited that the tribunal could not comprehend how a waiter would do the responsibility of a cleaner, especially when picking of rubbish had not been included in his letter of employment or terms of reference.
He said that the refusal by the plaintiffs to pick rubbish resulted into their termination, which was considered by the defendant as insubordination and neglect of duty.
“Neglect of duty results from a situation in which a worker recklessly or negligently fails to perform the duty he or she is contracted to do,” Magistrate Jobarteh told the tribunal.
He stated further that throughout the evidence of the defendant and the exhibits tendered, no mention of the fact that it was part of the duties of the plaintiffs to pick rubbish at the workplace.
“Having considered the evidence on the alleged insubordination and neglect of duty, the tribunal concludes that the termination of the services of the plaintiffs is unfair and was taken without due regards to both section 83 and 93,” Magistrate Jobarteh declared.
The tribunal consequently ordered the defendant to pay the plaintiffs one month salary each as payment in lieu of notice.
The defendant was also ordered to pay to the plaintiffs one year total monthly salary as damages for unfair and unlawful termination.
The tribunal ordered the defendant to pay with immediate effect D15,180 for the social security contribution of the plaintiffs.
Interest of 25 per cent was also awarded to the plaintiffs, and cost of D5,000 each.