Nov 27, 2012, 9:39 AM
Following lawyer Badou Conteh’s written address in the GNIC case at the Industrial Tribunal, lawyer Hawa Sisay-Sabally also filed a written address in defence of GNIC.
The defence counsel, Hawa Sisay-Sabally, stated in her address that the plaintiff, Anthony Manell, claimed the sum of D384,000 being the total monthly salary of the plaintiff for the 16 years remaining of his statutory working life.
She indicated that the D300,000 was claimed by the plaintiff for wrongful dismissal and for breach of contract, and also social security contributions for the plaintiff based on the D2,000 monthly salary of the plaintiff for the 16 years remaining of his statutory working life.
Interest and costs were also claimed by the plaintiff, the defence counsel stated in her address.
The defence counsel went on to summarize the evidence of the plaintiff, and further stated in brief the evidence of the defence.
The defence counsel submitted that, as at September 1985, the defendant was not incorporated.
She invited the tribunal to take judicial notice of the Gambia National Insurance Corporation Act which has been repealed by the Gambia National Insurance Corporation (Repeal) Act Cap.54.02 Vol .VI Laws of The Gambia.
The defence counsel argued that it was that corporation that employed the plaintiff in 1985, adding that the plaintiff had deliberately failed to produce his employment letter which would have established who employed him in 1985.
“The onus is on the plaintiff to prove and not the defendant,” defence counsel stated.
The defence counsel further submitted that there is no law which guarantees an employee’s employment up to his or her compulsory retirement age.
Defence counsel argued that the plaintiff has not produced any contract which binds both the defendant and plaintiff to a master servant relationship up to the plaintiff’s statutory age of retirement.
“The applicable law of the plaintiff’s employment contract is the Labour Act, 2007. The Act re-enacts the Labour Act 1990, with some modifications,” the defence counsel further submitted.
The defence counsel indicated that it was a common ground that the defendant gave the plaintiff a hearing notice in compliance with section 85 of the Labour Act, 2007.
However, she added, the plaintiff contended that even though he went to the hearing accompanied by his representative, they were not given reasons why the defendant was considering the termination of his employment, and argued he was not heard in his defence.
The defence counsel submitted further that from the evasive evidence of the plaintiff, particularly in respect to the hearing, which testimony was discredited, the plaintiff was not to be believed.
“In any event, the plaintiff was not denied terminal benefits by the defendant,” the defence counsel further argued.
The defence counsel added that the plaintiff, by his particulars of claim, appears to be under a mistaken belief that he could not be terminated by the defendant, and that he is guaranteed employment up to his compulsory retirement age.
Defence counsel submitted that Labour Act, 2007 recognises termination of employment and makes provisions as to procedures that are to be followed in different cases of termination, adding that the defendant has followed the law and could not be held to ransom by the plaintiff.
The defence counsel further submitted that the plaintiff did challenge the absence of a way book to prove that he received the warning letters, adding that the plaintiff did not state whether it was the procedure of the defendant to convey administrative decisions to its employees using a way book.
“The plaintiff, being the messenger of the defendant, could not be expected to deliver his own warning letters to himself,” the defence counsel further argued.
The defence counsel stated that the plaintiff did not deny that he was offered terminal benefits, adding that the plaintiff’s argument was that the sum offered was too small.
“It is to be noted that under cross-examination, the plaintiff admitted that he does not know how much his terminal benefits should be,” the defence counsel submitted.
The defence counsel also argued that contrary to the suggestion put forward that the defendant has not paid the plaintiff’s social security contributions, this suggestion does not arise from the particulars of claim and the plaintiff was not claiming for arrears of contribution.
Further submitting, the defence counsel said that there was evidence that the defendant has paid all contributions for its staff, and has a clearance certificate for 2009, the period that covers the plaintiff.
“It is my submission that a termination could be wrong only if the legal procedures are not followed. But it could not be wrong if it is done pursuant to the law even though the employee has not reached the compulsory termination age,” argued the defence counsel.
The defence councel further submitted that the plaintiff has failed to provide evidence that there was a breach of contract, and the defendant was not entitled to terminate him.
“The plaintiff has failed to prove his case on the balance of probability, and this suit ought to be dismissed with cost,” the defence counsel stated.