Sep 4, 2012, 10:41 AM
The Kanifing Industrial Tribunal recently entered judgement in favour of one Musa Boye who sued Kololi Beach Club for unlawful termination and damages for breach of contract.
The plaintiff claimed for the recovery of D926,800 being service rendered to the defendant in their company. He also claimed interest of 25 per cent and cost.
Chairman Jobarteh, who was being assisted by panelists Cole and Njie, told the tribunal in his judgement that having perused the evidence led by both sides, the following issues stood out to be determined: Did the redundancy of the plaintiff comply with the dictates of Section 93 (1)? Was the plaintiff entitled to the reliefs endorsed on the praecipe?
He said that on the first issue, the defendant had categorically stated in exhibit E that the service of the plaintiff was no longer required due to the prevailing climate in the tourist industry, which was significantly low.
Chairman Jobarteh stated that the letter which served as the termination letter contained the principal reason which caused the redundancy of the plaintiff, adding that the reason advanced by the defendant fell under Section 93 (1) (a) and mainly under climate reason.
He posited that having determined the reason for dismissal of the plaintiff under redundancy, the question to be answered was whether in taking the decision, the defendant had satisfied the conditions in subsection (2).
He further said the first condition to be satisfied was for the defendant to consult the recognised representative of any trade union, which has members among the employees, the defendant contemplated should be dismissed and the relevant works committee.
“From the totality of the evidence of the first witness of the defendant, no mention was made about the occurrence of such consultation before the issuance of exhibit E,” Chairman Jobarteh pointed out.
Still delivering the judgement, he adduced that a thorough reading of exhibit E revealed that no such process was undertaken, adding that he held that the first condition to be fulfilled by the defendant before undertaking the ‘staff reduction’ including the termination of the employment of the plaintiff, had not been met.
He further stated that the second condition to be fulfilled was in relation to the principle of ‘Last-in and First-out’ enshrined in Section 93 (2) (C) (ii), adding that the plaintiff in his particulars of claim claimed that the defendant had not applied the principle of LIFO in terminating his employment.
Chairman Jobarteh indicated that the defendant bore the onus of proof to show that it had complied with the law since there was a presumption in Section 93 (1) (2) that the dismissal shall be deemed wrongful if the employer failed to prove that he had acted on the terms specified in Section 93 (1) and (2).
“The tribunal holds that the dismissal of the plaintiff is deemed to be unfair because the defendant has not acted on sound business principle and has not as well satisfied the conditions specified in Section 93 (2),” he posited, adding that the tribunal declared the redundancy of the plaintiff as unfair dismissal.
Having declared the redundancy of the plaintiff as unfair, he was moving on to determine the next issue which was whether the plaintiff was entitled to the damages and other reliefs claimed, he said.
He posited that from the onset, he must state that there was no provision in the Labour Act 2007 and any other law to his mind that envisaged the perpetuity of employment relationship.
No employer could force an employee who had given proper notice to disengage to forcefully continue in service, he stated.
“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,” Chairman Jobarteh told the tribunal.
He further stated that he shall apply the trite law that the award of damages for unfair dismissal was the amount of damages which the worker would have earned during the period of notice.
“Therefore, the plaintiff who was unfairly dismissed is entitled to six months’ salary as damages for unfair dismissal,” he declared.
Chairman Jobarteh finally stated that the tribunal entered award in favour of the plaintiff and ordered as follows:
The defendant shall pay to the plaintiff the sum equivalent to six months’ remuneration with all terminal benefits for the failure to give notice.
The defendant shall pay to the plaintiff the sum equivalent to six months’ remuneration as damages.
Cost was assessed in the amount of D10,000, and interest at the rate of 4 per cent on the award sums from the date of award to date of payment.
Garba Cham represented the plaintiff.