Feb 4, 2009, 6:17 AM
Dodou Ceesay, plaintiff, has dragged NAWEC to the Kanifing Industrial Tribunal, claiming D600,000 damages for unlawful dismissal, for his employment entitlements and loss of earnings.
He also claimed interest at the rate of 25 percent per annum as damages for unlawful dismissal to the date of judgment, thereafter 4 percent to the date of payment and cost.
The case was presided over by Magistrate Dawda Jallow, who was assisted by two panelists.
When the case was mentioned, Lawyer Janet Sallah-Njie, who was putting up a defence on behalf of the defendant, rose and told the tribunal that she had a preliminary objection that the suit was filed out of time and, therefore, it was statute barred.
In support of her submission, she relied on rule 2(1) (b) of the Industrial Tribunal Rules, which requires that an action for unfair dismissal was to be brought within six months.
She contended that it was clear that the suit was an action for wrongful dismissal.
She argued that since the plaintiff’s letter of dismissal was dated 27 August 2010 and the suit was filed on 22 August 2012, it was way out of time.
Lawyer Sallah-Njie told the tribunal that she had averted her mind to the provisions of rule 2 (1) (a) which according to her, was a general provision for claims arising from contract of employment, and submitted that where there was a specific provision, it was not to be applied generally, that is, a right of action arising from wrongful dismissal could not survive simply because there was a general provision.
She urged the tribunal to strike out the suit for want of jurisdiction.
Senior lawyer Ousainou Darboe, who was throwing his weight behind the plaintiff, in response argued that as per the amended particulars of claim, it was not based on the Labour Act which was for unfair dismissal, rather it was a claim for breach of contract of employment which was contained in the service rules of the defendant company.
He submitted that the dismissal was on 27 August 2010, and the suit was filed on 22 August 2012 and, as such, the claim for breach of contract was within time.
He urged the tribunal to dismiss the application.
In her reply on points of law, the defendant’s counsel submitted that rule 2 (1) (b) would still apply even if the claim was for breach of contract of employment as per the amended particulars of claim.
She argued that at the end of the day, the tribunal would have to determine whether or not the dismissal was wrongful.
She referred to Section 29 (1) of the Labour Act 2007 which outlined the jurisdiction of the tribunal as to include all individual claims arising under any contract of employment.
At this juncture, the case was adjourned for ruling.
When it resumed on 16 October, 2012, Magistrate Dawda Jallow, after consultation with his fellow panelists, made his ruling.
He told the tribunal that the first issue they would like to settle was whether or not the plaintiff‘s claim was for wrongful dismissal.
He said that the plaintiff’s counsel argued that it was not for wrongful dismissal, but the defendant’s counsel said it was.
Magistrate Jallow added that a breach of contract of employment occurs where that which was complained of was a breach of duty arising out of the obligations undertaken by the contract.
He adduced that it was an act or omission by the party to an agreement which violates some important term or condition of the contract.
He said that the only relevant considerations for the tribunal hearing such a claim would be the contractual obligations of the employer.
Magistrate Jallow further stated that the tribunal looks at essentially whether the terms of the contract of employment had been breached by the employer.
He added that in such an action, the tribunal was not concerned with the ‘fairness’ but purely with compensating for a breach of the terms of the contract.
He further stated that a claim for unfair dismissal involves looking at whether or not statutory law had been breached.
He said that the two were clearly different, and the tribunal was accustomed to treating them differently.
“The limitation law under rule 2 (1) (a) relates to the former and rule 2 (1) (b) relates to the later scenario being unfair dismissal,” Magistrate Jallow stated.
He added that they, therefore, held for a fact that the plaintiff’s claim was for breach of contract of employment and not one for unfair dismissal, and consequently, he stated , the proper limitation clause applicable to it was rule 2 (1) (a) and not rule 2 (1) (b) of the Industrial Tribunal Rules as contended by the defendant’s counsel.
He adduced that given that the suit was filed barely a couple of days before the return of the second anniversary of the dismissal of the plaintiff by the defendant, it had escaped the statute of limitation, adding that they held for a fact that the suit was within time and properly before the tribunal.
He ordered the defendant to pay the plaintiff D2,000 for costs.
He asked the plaintiff whether he was going to open his case, but he said he could not do so in the absence of his lawyer.
He also ordered the plaintiff to pay the defendant D1,000 costs.
The case was subsequently adjourned for the plaintiff to tell the tribunal what transpired between him and his former employer, that warranted him to claim such a huge amount of money.