Jan 11, 2010, 12:59 PM
The Kanifing Industrial Tribunal on 15 October 2012 made a ruling in favour of Lamin Fadera, the plaintiff, who sued Coconut Residence at the tribunal, claiming wrongful dismissal.
He also filed a motion for the tribunal to review a judgment it made earlier in his favour, which the tribunal had granted.
Magistrate Jallow, in reviewing the judgment, said it was not in dispute that the plaintiff was unlawfully dismissed.
He stated that the tribunal under holding 23 of the award held that the dismissal of the plaintiff by the defendant was unjust and inequitable, and consequently unlawful.
However, he said, the tribunal went further to hold under holding 28 that by receiving the money, terminal benefits, the plaintiff consented to his dismissal and could no longer bring a claim for unlawful dismissal.
“This is the basis and the main issue that falls for determination in this review,” he stated.
He added that during the review, they discovered that the tribunal misdirected itself for having held that the plaintiff could not bring a claim for unlawful dismissal, which was to say the plaintiff lost his right of action and still went further to determine the issues on their merit.
Magistrate Jallow further adduced that it was settled law that where a right of action was not lost, it also robbed any court the jurisdiction to even hear the claim and, as such, the proper decision would be to dismiss the claim in its entirety.
He indicated that in holding 29, the tribunal held that the final issue was one of computation of the plaintiff’s accrued benefits.
In the instant case, he said, the tribunal in holding 30 held that pursuant to Section 55 and 58 of the Labour Act, the plaintiff was entitled to two months’ salary in lieu of notice, but was instead offered and paid one month by the defendant, who admitted he was entitled to two months’ salary.
The defendant awarded the plaintiff another month’s salary to complete the notice.
He added that so long as the defendant was not caught up by statute of limitation, his right will subsist with respect to the outstanding one month and he could exercise same.
He said that the tribunal in the earlier award, instead of recognizing this right of the plaintiff, it held this issue as a mere computational problem of the plaintiff’s benefit.
He said that could not be correct having taken a second look at it.
Magistrate Jallow further adduced that it was trite law that where there was a right, there was remedy.
He added that form and technicality should not be used to defeat a right of action, adding that they therefore resolved and held for a fact that since the plaintiff was not paid the minimum compulsory two months’ salary in lieu of notice at the time of dismissal, he had suffered injury and his right of action had not been extinguished by his conduct in receiving the said part payment.
“It is the obligation of the employer to ensure that the provisions of the law were fully complied with. Consequently, we hold that the plaintiff is entitled to an award of damages for injury caused to him by the said breach,” the magistrate declared.
As a result, the defendant was ordered to pay the plaintiff D1, 800 being one month salary in lieu of notice that was outstanding.
The defendant was also ordered to pay the plaintiff D21, 600 being 12 months of his net salary of D1, 800 as damages, and D5, 000 costs.