Dec 5, 2011, 11:40 AM
Magistrate Jobarteh of the Kanifing Magistrates’ Court on 6 August 2012 entered judgement in favour of Sainey Sallah, plaintiff, who sued his former employer, Batch Transport Services, for wrongful termination.
Magistrate Jobarteh ordered the defendant to pay the plaintiff D36,000 being payment for nine months’ salary left out of the one-year contract.
The defendant was also ordered to pay the plaintiff D10,000 for general damages for statutory breach of contract.
Cost of D5,000 and 15 per cent interest on the entire award was to be paid to the plaintiff by the defendant.
In her judgement, she told the tribunal it was noted that the defendant failed to appear before the tribunal despite the proof of service on record.
She stated that the defendant was obliged an opportunity to appear in the tribunal.
Magistrate Jobarteh adduced that the defendant failed to appear throughout the proceedings of the suit, adding that the case proceeded in the absence of the defendant.
She said that from the evidence on record, the plaintiff was a driver working with the defendant, stating that he was given a one-year contract.
The yearly contract of employment was in evidence, she posited, adding that the contract lasted for 3 months and his service was terminated.
She adduced further that on Saturday in August 2011, the plaintiff worked for his normal working hours, and was asked to work for overtime but he refused.
She said that his refusal was based on the fact that when he was asked by the defendant if he was going to be paid for the overtime, the defendant did not agree.
The magistrate added that the following day, Sunday, was a day-off for the plaintiff, stating that when he resumed work on Monday, he was prevented from working and was given a warning and suspension letter.
Magistrate Jobarteh posited that when the plaintiff resumed work, he was given a termination letter, stating that the plaintiff admitted being paid salary for three months he worked for.
She indicated that the tribunal had carefully read through the evidence of the plaintiff and two questions arose for determination; whether the warning and suspension letter was justified; whether the plaintiff was unlawfully terminated.
The magistrate said the defendant did not have any agreement with the plaintiff for the execution of overtime.
Secondly, she posited, Section 83 (a) (f) of the Labour Act, 2007, expressly states that an employee’s refusal to work for more than the number of hours permitted by any law, collective agreement or established work rule do not constitute valid reasons for disciplinary act.
She adduced that even though the plaintiff observed the suspension in good faith, the suspension was unjustified and resolved in favour of the plaintiff.
Magistrate Jobarteh indicated that the plaintiff’s contract was one of a specified duration, adding that the one-year contract of the plaintiff did not elapse.
She stated that the defendant terminated the services of the plaintiff on no grounds, positing that the claim made by the plaintiff was justified and the tribunal resolved that the termination of the plaintiff’s contract was unlawful.
“It is trite law that where no statement of defence is filed in answer to the statement of claim, then the rule is that the allegations therein are deemed as admitted,” she declared.
The plaintiff was represented by Ousman Drammeh of the Gambia Transport, Agriculture, Food and Industrial Workers’ Union.