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Hand of justice catches up with Kololi Beach Club

Aug 5, 2013, 9:28 AM | Article By: Dawda Faye

Magistrate Jobarteh, chairman of the Kanifing Industrial Tribunal, along with his panelists, Njie and Cole, recently declared that Kololi Beach Club did not apply Section 93 (2) of the Labour Act 2007 in dismissing Lamin Jobe and Muhammed Hydara, former employees of the hotel.

Delivering his judgement, he told the tribunal that at the close of the evidence of the parties, these issues/questions were to be determined: was the redundancy of the plaintiffs carried out as per the dictum of Section 93 (1) of the Labour Act? Did the plaintiffs receive the redundancy notice period? If yes, could they maintain the suit against the defendant?

On the first question, he said, the defendant, through the General Manager, Lamin Jarju, had categorically stated that the services of the plaintiff were no longer needed due to the prevailing climate in the tourist industry, which was significantly low, referring to exhibits T and Q5 (letters).

Magistrate Jobarteh posited that the letters, which served as termination letters, contained the principal reason which caused the redundancy of the plaintiffs.

He adduced that the reason advanced by the defendant fell under Section 93 (1) (a) on climatic reason.

He stated that having determined the reason for dismissal of the plaintiffs under redundancy, the tribunal shall determine whether in taking the decision, the defendant had satisfied the conditions in Section 93 (2) of the Labour Act.

Chairman Jobarteh indicated that the first condition to be satisfied was for the defendant to consult the recognised representatives of any trade union which had members among the employees the defendant contemplated about dismissing and the relevant works committee.

He said from the totality of the evidence of the first and second plaintiffs as well as the first witness of the defendant, no mention was made about the occurrence of such a consultation before the issuance of exhibits T and Q5.

Jobarteh stated further that a thorough reading of both exhibits T and Q5 revealed that no such process was undertaken.

He said he held that the first condition to be fulfilled by the defendant before undertaking the ‘staff reduction’, including the termination of employment of the plaintiffs, had not been met.

He stated that the tribunal held that the dismissal of the plaintiffs was deemed to be unfair, because the defendant had not acted on sound business principle and had not as well satisfied the conditions specified in Section 93 (2) of the Labour Act.

“The tribunal hereby declares the redundancy of the plaintiffs as unfair dismissal,” chairman Jobarteh said.

He adduced that having determined the redundancy of the plaintiffs as “unfair dismissal”, he should then proceed to determine the next issue.

He added that the second plaintiff, Muhammed Hydara, stated that he had received the six months’ notice payment, totaling to D9,000; that is D3,000 for the two months and D1,500 for monthly installments for four months.

“This shows that Muhammed Hydara has received payment in lieu of six months’ notice of redundancy,” Jobarteh told the tribunal.

He further said that the defendant, as mandated by law, ought to have informed Muhammed Hydara about the redundancy and thereon pay the six months’ redundancy allowance.

He posited that having declared their redundancy as unfair, Muhammed Hydara was surely entitled to damages as breach of the employment contract which shall amount to the remuneration equivalent to the six months’ notice period.

Chairman Jobarteh told the tribunal that with regard to the payment in lieu of notice to Lamin Jobe, he had perused his own evidence and that of the first witness of the defendant.

He stated further that the evidence of Lamin Jobe indicated that he did not receive the six months’ payment in lieu of notice, adding that he was therefore entitled to the six months’ pay in lieu of notice.

“I must state that there is no provision in the Labour Act 2007 and any other law that envisaged the perpetuity of employment relationship. No employer can force an employee who has given proper notice to disengage to forcefully continue in service. Also, the law does not force an employer who has given the proper notice to discontinue the employment relationship to keep the employee by force in its service. Such an employee would be an unwanted employee,” declared chairman Jobarteh.

He stated that the law of redundancy is one of the forms of disengagement of employment relationship, adding that the tribunal could not under the circumstances of the case award the reliefs pertaining to the payment of salaries and benefits of the plaintiffs up to retirement.

Consequently, he stated, the tribunal held as follows: The second plaintiff shall be entitled to only six months as damages in lieu of notice.

The defendant shall pay the first plaintiff the six months’ salary as payment in lieu of six months’ notice.

The defendant shall also pay to the first plaintiff six months’ salary as damages for unlawful termination.

The interest of 25 per cent was not awarded, which was claimed by the plaintiffs.

He awarded cost of D5,000 to each of the plaintiffs.

Garba Cham represented the plaintiffs.