Oct 1, 2015, 10:07 AM
Lawyer Badou Conteh has recently filed a written address on behalf of his client, Anthony Manell, who sued the Gambian National Insurance Company claiming wrongful termination of his services.
In the written address, the plaintiff's counsel made it known to the Industrial Tribunal that his client’s claim is for the sum of D384,000 being the total amount of salary he could have received if his employment had not been terminated by the defendant.
He indicated that the plaintiff also demands the sum of D300,000 as damages for breach of contract.
Counsel Badou Conteh submitted that the plaintiff, on 15 January 2009, received a notice of hearing pursuant to Section 89 of the Labour Act 2009 in relation to a consideration of the termination of his employment.
He further stated that the letter made reference to an earlier discussion that day with the plaintiff, but the subject matter of the discussion was not stated.
He added that the letter advised the plaintiff to attend the meeting with a representative of his choice, and that the said meeting was scheduled for 10 a.m. the following day, 16 July 2009.
Counsel Conteh argued that the plaintiff stated in his reply to the letter that he required some time to enable him to find a representative who would accompany him to the meeting, adding that his request was granted and the meeting was rescheduled for 17 July 2009, at 10 a.m.
Counsel Conteh argued that on 21 July,2009, the plaintiff received a letter from the defendant terminating his employment, adding that no reason was given for the dismissal, but the letter stated details of his terminal benefits.
Lawyer Badou Conteh pointed out that the plaintiff’s case is simply that he was employed as a messenger in 1985 by the Gambian National Insurance Corporation, and that all the assets and liability of the said Gambia National Insurance Corporation was transferred to the National Insurance Company limited by virtue of The Gambia National Insurance Corporation (REPEAL) Act 1989.
He added that the plaintiff has also served as a cleaner, and as a security officer.
He further submitted that Section 89 of the Labour Act 2009 stipulates that "Before deciding to dismiss an employee, the employer shall (a) explain to the employee the reason for which the employer is considering dismissing that employee, and (b) hear and consider any representation made in defence of the employee."
He challenged that quite apart from the fact that the plaintiff was given a letter of notice of Section 89 Labour Act meeting, there was a hearing at which the plaintiff was told of the defendant's grievances against him and to hear the defence of the plaintiff to those allegations.He cited some authorities to support his argument.
Continuing his address, Badou Conteh stated that the defence witness, Raymond Ceesay, indicated that the plaintiff came to the hearing accompanied by his representative, but he failed to tell the tribunal what the meeting deliberated upon and the decision held at that meeting.
He added further that the plaintiff also stated that he attended the meeting with his representative, but that there was no hearing whatsoever where he was told to either resign or have his appointment terminated.
At this juncture, the plaintiff’s counsel referred to Section 90 of the Labour Act 2007 which states, among others, that "there is a conclusive presumption that the dismissal of an employee is unfair if, in a claim or complaint arising out of the dismissal, the employer fails to provide the reason for the dismissal."
He submitted further that the defence witness, Raymond Ceesay, has stated in his testimony that the grounds of the plaintiff's termination had been documented over the years by the defendant.
"If the defendant was relying on the letters of warning which it was claimed were sent to the plaintiff, the defendant should have set out specifically or raised the issues stated in those letters before the tribunal.
In other words, the defendant should have stated catergorically and set out such misconduct, which are the reasons for the dismissal of the plaintiff," Badou Conteh argued.
He further stated that plaintiff claims D384,000 as salary for the 16 years remaining of his statutory working life, adding that the defendant has offered the plaintiff D10,000 as his terminal benefits.
He argued that a detailed analysis of the benefits was not shown by the defendant.
However, he argued, Section 92 (2) (b) of the Labour Act provides that "If the tribunal finds a complaint is well founded, it shall upon the complaint award such compensation as the tribunal considers just and equitable."
Lawyer Conteh finally submitted that since the defendant had terminated the plaintiff's appointment for misconduct, it was duty bound, as a matter of pleadings, to have specifically stated before th tribunal the misconduct as a grounds for termination, and set out the particulars of such misconduct.
The case was adjourned until 30 March 2011, for judgment.