Dec 6, 2016, 11:23 AM
The Industrial Tribunal at Kanifing on 13 April 2011, entered judgement in favour of Anthony Manell against Gambia National Insurance Company (GNIC) for wrongful termination of the plaintiff’s service.
GNIC, was therefore ordered to pay the plaintiff, Anthony Manell, the sum of D88,000 calculated at a three-year-eight-months purchase on a salary of D2,000 as damages for unlawful termination of his employment.
The defendant, GNIC, was also ordered to pay to the plaintiff interest on the above sum at the rate of 25 percent per annum from date of institution of the suit to date of judgement and thereafter, at the rate of 4 percent to date of final payment.
The tribunal ordered the defendant to pay the plaintiff the sum of D8,800 being social security contribution for three years eight months.
Cost of D5,000 was awarded to the plaintiff to be paid by the defendant.
In his address, the plaintiff's counsel, lawyer Badou S.M. Conteh, argued that the defendant should have set out specifically the alleged misconduct which was the reason for the dismissal of the plaintiff.
Hawa Sisay-Sabally, who represented the defendant, said in her address that the plaintiff had failed to provide evidence that there was a breach of contract, and the defendant was not entitled to terminate him. She urged the tribunal to dismiss the suit with cost.
In his judgement, the chairman of the tribunal, Magistrate Ngube, stated that the first issue that falls for determination in the suit was whether the plaintiff's employment contract was breached.
He stated that it was important to establish the type of employment contract the plaintiff entered into with the defendant.
He further indicated that the right of an employer to terminate the employment of an employee is conditioned on compliance with the terms of the contract or statute.
He said the plaintiff did not produce his contract of employment from which the form of his employment contract would have been determined.
However, he went on, the plaintiff alleged that he started working with the defendant as far back as 1985, approximately 25 years ago and was claiming salary for the remaining 16 years of his working life.
"In the absence of any contract evidence from the defendant, and taking regard to the long period of time the plaintiff has worked with the defendant, it could be reasonably inferred that the plaintiff’s contract was one of unspecified duration," the chairman told the tribunal.
He indicated that the defendant did not disown the plaintiff as their employee and did not lead any evidence specifying when the plaintiff's employment would terminate.
Still reading the judgement, he stated that the plaintiff claimed against the defendant for breach of contract.
He said although the type of contract may be inferred from the evidence, the absence of the plaintiff's employment contract in evidence deprives the tribunal with a guide to determine if agreed contractual terms were followed in terminating the plaintiff's contract.
"Breach of contract may be ascertained only if the terms of the said contract are know," he stated.
He added that there was no contract in evidence from whose terms the tribunal could determine breach following dealing between the parties.
He said that also no evidence was led by the plaintiff in respect of the terms of his contract.
He further indicated that in the plaintiff’s statement of claim, he claimed payment of salary for the remaining 16 years of employment life, adding that the plaintiff did not however canvass any arguments that the claim was a term of his contract.
In the light of the evidence, he stated, the tribunal may only conclude that the plaintiff had not convinced the tribunal on a balance of probabilities to adjudge the claim for breach of contract to his favour.
"The plaintiff's claim for breach of contract therefore fails," the chairman said.
He went on to state that as said above, the plaintiff’s contract was one of unspecified duration, adding that the right of an employer to determinate the employment of an employee is conditioned on compliance with the terms of the contract or of a statute.
He said that as it was now clear that the tribunal would not deal with the arguments for breach of contract, they would revert attention to the lawfulness or otherwise of the plaintiff's termination.
He indicated that the employer is duty bound to observe the principles of natural justice, that is, to afford an employee the opportunity of being heard before dismissal.
He cited some authorities and Section 89 of the Labour Act 2007 which require the employer, before deciding to dismiss an employee, to give the employee a fair hearing in the presence of a representative of his choice.
"Proof that an employee failed to comply with the above section, raises a rebuttable presumption that the employer did not act with justice and equity in dismissing the employee and may lead to a valid conclusion that employee was wrongful dismissed," he told the tribunal.
He further stated that there was uncontested evidence that the defendant invited the plaintiff to a hearing and also that the plaintiff attended the hearing accompanied by a representative of his choice.
He indicated that as it was the plaintiff who asserted that a hearing did not actually take place during the meeting, the burden to prove lies with the plaintiff to show that there was no hearing in fact and not with the defendant who said there was a hearing.
"There would have been no better person to corroborate the plaintiff's assertion and tilt the balance to his favour than his representative at the hearing," the chairman told the tribunal.
He said the plaintiff failed to call his representative to testify on his behalf, adding that the tribunal held that the plaintiff had failed to convince the tribunal that he was not heard and held that the hearing was fair and the defendant had discharged the natural justice requirement before the termination of the plaintiff's contract.
The chairman told the tribunal that he concurred with the plaintiff’s counsel, who said in his address that there was no reason for terminating the plaintiff's service and urged the tribunal to term the dismissal as wrongful.
He further added that the misconduct raise by the defendant were just mere allegation, which were never stated specially.
"In summary, the tribunal finds that the plaintiff’s employment was unlawfully terminated because no reasons were provided for his dismissal and for not giving him the required notice," said the chairman.