UNIVERSITY OF BUEA

FACULTY OF LAWS AND POLITICAL SCIENCE

DEPARTMENT OF ENGLISH PRIVATE LAW

AN APPRAISAL ON THE FORMATION AND

TERMINATION OF THE EMPLOYMENT
CONTRACT
Presented By

EGBE MC JOHN AYUK

LP18A169

A Long Essay Submitted to the Department of English Private Law in Partial

Fulfillment of the Requirements for the Award of a Bachelor of Law (LL.B)
Degree.

SUPERVISOR: CO-SUPERVISOR:

PROF. BOMA ALVINE DOH GIMA Ph.D.

JUNE 2021
1
 CERTIFICATION
This is to certify that this research project entitled “An Appraisal on the Formation
and Termination of the Employment Contract” is the original work of Egbe Mc
John Ayuk bearer of the University of Buea Matriculation No. LP18A169

Sign___________________ Date___________________

Dr. SONE PATIENCE MUNGE

(Head of Department)

Sign_____________________ Date____________________

PROF. BOMA ALVINE

(Supervisor)

Sign_____________________ Date____________________

DOH GIMA Ph.D.

(Co-Supervisor)

Sign______________________ Date______________________

Egbe Mc John Ayuk

(Supervisee)

i
 DEDICATION
I dedicate this piece to work to my late parents, Mrs Ebob Constance Ayuk and Mr
Egbe Bissong Protus Atabe.

ii
 ACKNOWLEDGEMENT
I am grateful to God Almighty for his mercy, blessing, strength and protection He
gave me during this period of my research especially for the wisdom I am now
endowed with. I will tremendously indebted to my supervisor Dr. Doh Gima and
Barrister Ngwabo Kenneth who continually directed, corrected and supported me
in the realization of this great work.

My sincere gratitude goes to my second mother, Mrs Rachel Elad and to my Uncle
Ayuk Joseph Nyoh.

I equally thank my elder Sister, Eyong Catherine B. for helping make this piece of
work a reality.

iii
 ABSTRACT
This thesis deals with the Appraisal on formation and termination of employment
contract. Labour contract is highly acclaimed as the bed rock for development when
properly governed and serves both public and private interest. However, the laws
governing labour contracts in Cameroon such as the Law No.92\007 of 14 August 1992
and other international bodies such as the International Labour Organization, the World
Health Organization are still unable to solve problems arising from this contract by
placing strict rules that must be followed by the parties in a labour contract. That is why
today we see so many workers whose rights have been trampled upon by their employers,
and some employers taking liability for acts committed by their employees. As such,
there is a need to critically appraise resolution strategies that can be adopted to solve the
complexity of the labour contract which comes as a result of failure by the employer and
employee to willfully acknowledge and execute their obligations and their unwillingness
to properly apply the law in this domain. The study adopts the content analysis of laws
especially the Cameroon Labour Code as amended in 1992 and other International bodies
which helps in regulating the labour contract. This study reveals that parties to a labour
contract often face difficulties because of are ignorance. These difficulties have often
escalated to the wrongful determination of labour contracts. The study recommends
proper implementation of Laws in Cameroon in the labour domain so as to resolve the
conflicts in labour contracts. This will be by inculcating or giving all employers and
employees in labour contract milieu the opportunity to take part in decision making,
establishing the terms of the employment contract, and properly carry out their various
obligations without interfering with each other’s rights.by this, participatory governance
is encouraged with the employer and the employee. Stating the rights and duties of
parties to the contract, providing remedies when this rights are trampled upon is highly
recommended as proper conflict resolution strategies alongside mediation in labour
contracts.

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 TABLE OF CONTENTS

CERTIFICATION..............................................................................................................i
DEDICATION...................................................................................................................ii
ACKNOWLEDGEMENT................................................................................................iii
ABSTRACT...................................................................................................................... iv
TABLE OF CONTENTS..................................................................................................v
TABLE OF LEGISLATION.............................................................................................ix
LIST OF ABBREVIATIONS............................................................................................x
LIST OF CASES...............................................................................................................xi
CHAPTER ONE
GENERAL INTRODUCTION
1.0 INTRODUCTION...................................................................................................1
1.1 BACKGROUND TO THE STUDY........................................................................1
1.2 STATEMENT OF THE RESEACH PROBLEMS..................................................3
1.2 RESEARCH QUESTION.......................................................................................4
1.2.1 MAIN RESEARCH QUESTION.........................................................................4
1.2.2 SPECIFIC RESEARCH QUESTIONS.................................................................5
1.3 RESEARCH OBJECTIVES...................................................................................5
1.3.1 GENERAL OBJECTIVE......................................................................................5
1.3.2 SPECIFIC OBJECTIVE.......................................................................................5
1.4 RESEARCH METHODOLOGY.............................................................................6
1.5 SIGNIFICANCE OF THE STUDY.........................................................................6
1.6 JUSTIFICATION FOR THE STUDY.....................................................................6
1.7 SCOPE OF THE STUDY........................................................................................7
1.8 DEFINITION OF KEY WORDS.........................................................................7
1.9 Synopsis...................................................................................................................8

v
 CHAPTER TWO
THE CONTRACT OF EMPLOYMENT AND OBLIGATIONS OF THE
EMPLOYER AND THE EMPLOYEE
2.0 Introduction..............................................................................................................9
2.1 Contract of Employment..........................................................................................9
2.1.1 Terms of a Contract of Employment...................................................................10
2.1.2 Types of Contract of Employment......................................................................10
2.1.2.1 Contract of Employment of Unspecified Duration...........................................10
2.1.2.1 Contract of Specified Duration.........................................................................10
2.1.2.3 A Contract of Temporal Job.............................................................................11
2.2 Duties of the Employer..........................................................................................11
2.2.1 Duty to Pay Wages..............................................................................................12
2.2.2 Duty to Provide Work.........................................................................................13
2.2.3 Rest Periods........................................................................................................15
2.2.3.1 Weekly Rest.....................................................................................................15
2.2.3.2 Leave................................................................................................................16
2.2.4 Duty to Provide Safe Working Condition...........................................................17
2.2.5 Duty to Provide Worker Certificate of Service...................................................18
2.3 Duties of the Worker..............................................................................................19
2.3.1 Duty to Render Personal Services.......................................................................20
2.3.2 Duty of Tactful Service.......................................................................................21
2.3.3 Duty of Care and Skill........................................................................................21
2.3.4 Duty to Obey Reasonable Orders........................................................................22
2.3.5 Critiques of Employer and Employee duties.......................................................22
2.4 Rights of the Employer..........................................................................................23
2.4.1 Managerial Rights...............................................................................................23
2.4.2 The Regulatory Rights........................................................................................23
2.4.3 Disciplinary Rights.............................................................................................24

vi
 2.4.3.1 Financial Sanctions..........................................................................................24
2.4.3.2 Professional Sanction.......................................................................................24
2.5 A Weekly Rest.......................................................................................................25
2.5.1 Leave................................................................................................................... 25
2.6 Conclusion.............................................................................................................26
CHAPTER THREE
THE RULES ON THE FORMATION OF AN EMPLOYMENT AND THE
RGULATIONS GOVERNING THE RIGHTS OF WORKERS IN A CONTRACT
OF EMPLOYMENT
3.0 Introduction:........................................................................................................27
3.1 Rules on the Formation of Employment Contract:...............................................27
3.1.1 Effects of the Formation:..................................................................................29
3.1.1.1 Payment of wages:.........................................................................................29
3.1.1.2 Area of Service:.............................................................................................30
3.2 Definition of Worker:........................................................................................31
3.3 REGULATIONS GOVERNING THE RIGHT OF WORKERS;........................32
3.3.1 Collective Agreement;......................................................................................32
3.3.2 International Conventions:...............................................................................33
3.3.3 Conclusion:.......................................................................................................34
CHAPTER FOUR
TERMINATION OF CONTRACT OF EMPLOYMENT AND REMEDIES FOR
WRONGFUL TERMINATION
4.1. INTRODUCTION................................................................................................35
4.1.2. TERMINATION:...............................................................................................35
4.1.2. Dismissal............................................................................................................38
4.1.3. Grounds for determination:................................................................................41
1) Dismissal for conduct incompatible with employment............................................41
2) Disobedience of reasonable orders:.........................................................................42
3) Criminal misconduct in employment:......................................................................44
4) Dismissal for sundry reasons:..................................................................................45
vii
 5) Dismissal for economic reasons:.............................................................................45
6) Dismissal for trade union activities:.........................................................................47
7) Constructive dismissal:............................................................................................49
4.2. Remedies for wrongful determination:..................................................................50
4.2.1. Damages............................................................................................................50
4.2.2. Severance pay:...................................................................................................53
4.2.3. Specific re-instatement:......................................................................................54
CHAPTER FIVE
SUMMARY OF FINDINGS, CONCLUSION AND
RECOMMENDATION
5.1. SUMMARY OF FINDINGS................................................................................57
5.2. CONCLUSION.....................................................................................................58
5.3. RECOMMENDATIONS......................................................................................59
BIBLOGRAPHY.............................................................................................................60

viii
 TABLE OF LEGISLATION

- 1996 Constitution of the Republic of Cameroon amended in 2008.

- Law No. 52/1322 of 15th December 1952.
- Law No, 74/4 of 27th November 1974.
- Law No. 92\ 007 of 14th August 1992.

ix
 LIST OF ABBREVIATIONS

WHO .........................................................................World Health Organization,

I LO ..................................................................International Labor Organization.

H CF ..........................................................................................High Court Fako.

ALL ER................................................................................ All English Reports.

CASWP ....................................................Court of Appeal South West Province.

CFIB ........................................................................Court of First Instance Buea.

CA ...............................................................................................Court of Appeal.

Supra .............................................................................The same as earlier cited.

SC .................................................................................................Supreme Court.

SMIG…………………………………………...Salary minimum inter-guaranty.

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 LIST OF CASES
BOVZOVRU v. OTTOMAN Bank (1930)..........................................................30

B N C I v. LA Dame Bouler Appeal No. 202 of 16/5/1961…………………...33

Catholic Education Secretary v. Ndip Aaron…………………………………..20

Enongene William v. University of Buea ( 1999) High Court of Fako………..19

Gwarak Jean v. Splangounia Stamatious Appeal No. 18 of 31/-1/1974……….22

Hannah Nganje v. University of Buea, High Court of Fako…………………....17

Lacore Jean v. Alubassa, Appeal No. 177of 25 / 4/1961……………………….14

Wilson &Clyde Coal co ltd v.English…………………………………………...18

Sinclaire v. Neighbour………………………………………………....................41

Society Shell Cameroon v. Kemajou……………………………………………..42

Fortoh v. Brasserie Company ltd…………………………………………………51

University of Buea v. Mbua teke(2002 unreported)………………………..…...51

Camerounais De Brasserie v. Baiye Afue Joseph(2000)…………………………51

Lay Private Education v. Ebede Patric Asi……………………………….…..….52

PAMOL Plantation ltd v. William Nango Kimbeng2004)………………..…….52

Morris v. Gestetner ltd (1973)………………………………………………..…55

Societe Des Dreagages v. Nyamney Paul Loti…………………………..…….….3

Dandji Marc v. College du Progress…………………………………………,,,52

xi
Doherty v. Ajman……………………………………………………………...50

Assurance Des Province Reunis v. Tiogum David………………………….....49

Pousard v. Spiers………………………………………………………………46

Nkufutoh Tifu Michael v. Kom Area Cooperative Union LTD……………….44

Sule v. Nigerian Cotton Board………………………………………………..44

Education Board of Baptist Convention v. Robinson Fell Fominyen…….…43

Victor Oyebog v. CDC………………………………………………………...42

Catholic Education Secretary v. Atem Mary Musoro…………………………41

Laws v. National Chronicle LTD ……………………………………………..40

SODEPA Dumbu v. Biebu Martin Fong………………………………………38

Jourdan Roger v. Izoung Micheal……………………………………………...37

Ngo Minyemeck Catherine v. COMACICO…………………………………..36

Mazioh Claude v. E.A.C……………………………………………………….36

J.A. Irem v. Obubra District Council and Another…………………………….35

Les Brasseries Du Cameroun v. Messe Njesse Gasper………………………..25

xii
 CHAPTER ONE

GENERAL INTRODUCTION

1.0 INTRODUCTION
The Cameroon Labour Code1 is the main instrument used in Cameroon to regulate
contract of Employment as well as establishing the relationship that exist between
an Employee and an employee or worker. Chapter one here examines several
issues such as background study, statement of the problem research objective an
research methodology etc. This chapter simply introduces the entire work.

1.1 BACKGROUND TO THE STUDY

The history of Labour contract in Cameroon dates as far back as to the colonial era.
During this period, agreement is work were orally undertaken. This was as a result
of the prevalence of unskilled labour. The colonial master considered skilled
labour as that coming from abroad, therefore paid employment in its real form was
simply non-existence pre-colonial Cameroon for many reasons.

Firstly, the existence of a labour relationship pre-supposes the existence of an

effective legal tender. The absence of an effective medium made it impossible to
think of an effective contract. The non-availability of a legal tender was both here
and there and was responsible for the absence of paid contract of service 2 in thepre-
colonial Africa.

Ancient pre-colonial labour relationships differed from modern employment in

many aspects firstly, service was not voluntary during this period, Secondly, and
slave workers were not paid by their masters. The relationship in slavery is devoid
1
law No.92/007 of 14 August 1992
2
J Roper labour Problems in the West Africa London Penguin 1st Ed 1958:12
1
of consideration and so can’t strictly be described as employment understood in
modern employment law. The absence of the feature makes the conclusion above
compelling particular as section 1(1) of law no. 92-007 14 th of August 1972
commonly referred to as the Cameroon labour Code define employment in terms
of voluntariness and pay.

Nevertheless, with the growth in economic sector, the country gradually moved
from this unsecured trend of affairs to almost what prevails today. During of the
period of colonization, the law regulating the contract of employment in Cameroon
was built upon a foundation of important French and English law. This was
inevitable due to the fact that France and Britain were respectively of the colonial
master of Cameroon.3

The earliest of such laws that were received by the former East Cameroon, French
labour law the French overseas labour Code of 1952. 4 The reception of this law
was an honour made without any specific provision. It was assumed that what was
received includes both the express provision of the 1952 law the French Judicial
culture and procedure which was largely pro-administrative and anti-workers.

However, Cameroon gained independence in 1960, thus an independent

government means an independent of the ever-gained economy in this regard, the
English law that applied in the southern Cameroon as well on the French labour
Code of 1952 applying in the other side of the Mungo was replaced following the
instruction from the ministry of labour in Yaoundé. Labour laws that existed at the
time in the two Cameroons.

3
V J Ngoh “History of Cameroon” 1800 to the present date 1st Ed
4
Law no. 52.1322 of 15th December 1952
2
Hence, a new labour Code was enacted by law No 17/4/6 of 12th 1967 which
contrary to the former laws was more of a reflection to our social life environment.

The 1967 Code honour lasted for fourteen year (14) and was replaced by the 1974
Code which immediately adopted as anew Code after reunifications, though this
Code appeared to be satisfactory, it was in breach of the workers right the adoption
of the new Code was aimed at enhancing the relationship between the employer
and employee and solving other related problems which was rampant at that time.
It is at this junction that 1992 labour Code came into force.5

In spite of what has been discussed above, it must be acknowledged that our law of
employment sounds in contract. Although its nucleus is found in foreign law, the
labour Code remains an autonomous indigenous legislation while foreign president
may provide guidance in the interpretation of its provision, hence is in principle
and practice no basis to rely on a previous abrogated colonial law in determining
worker’s right. It was for this reason that the Supreme Court reversed the Court of
Appeal’s decision which relied on the French overseas labour Code in determining
the case of the parties in société Des Dreagages V. Nyamney Paul lot.6

1.2 STATEMENT OF THE RESEACH PROBLEMS

Cameroon during the 1990, embraced the economic crisis that was very rampant in
many African countries at this time. The reason for this crisis could be attributed to
the low production due to a drop in the demand for raw material, corruption, and
drop investment amongst others.

5
Law no.92/007 of 14th of August 1992
6
Appeal no.70 of 17
3
It has been argued7 that an employment contract is no more or less a unilateral
contract whereby the employer dictates the rules for the employee to follow and
the employee being the weaker part and because he is desperately in need of a job,
he is forced to accept the terms and even degrading conditions of work. The
employee is not given the opportunity to say whether he is satisfied with the
proposal on the terms. This can be verified in the manner in which the rights of the
employee are being smashed by the employer. For instance, the worker’s right to
rest is not respected. Even the maternity leave for pregnant women is being
neglected. The employees are often paid little or nothing as wages. Workers have
certain intrinsic right that distinguish them from other workers but these rights are
hardly taken into consideration since he is acting as the boss and whatever he
decide stands and government always reluctant to give solution to such matters or
problem.

However, the employer is not the only victim in the contract of employment. This
is said to be true because certain employees usually take advantages of their
positions and employees to this disobey the terms of the contract and even act
beyond their rights and thereby forcing the employer to be held liable for their acts
for instance employers are very vicariously liable for harms caused by their
employees to third parties.

1.2 RESEARCH QUESTION

1.2.1 MAIN RESEARCH QUESTION

 What is the relationship between the employer and the employee, how
long can the contract last and what are the remedies of a wrongful
termination of contract?
7
In the case of Assurance de Provinces Réunis V. Tiogum David(1999) CCLR part 4,62 of the decree of control
required was said to be the supervisory management of the worker backed with the powers to discipline for non-
compliance.
4
1.2.2 SPECIFIC RESEARCH QUESTIONS
 What is a contract of employment and how is it regulated?
 What re the obligations of the employer to the employee?
 Can a contract last for a life time, and what will happen when a contract
is wrongfully terminated?
 What policy of recommendation will be made to improve the practice of
law in this domain?

1.3 RESEARCH OBJECTIVES

1.3.1 GENERAL OBJECTIVE

The goal of this work is to critically examine the relationship between the
employer and the employee and to also know the duration of the contract.

1.3.2 SPECIFIC OBJECTIVE

1) To examine the contract of employment and the extent to which they have
regulated.
2) To know the status of an employee and an employee and to better
understand the relationships that exist between them.
3) To expose obligations of employer to employee
4) To examine obligations of employee
5) To examine the duration of the contract of employment and provide
remedies for wrongful termination.
6) To make recommendations to improve on practice of law in labour
contracts.

5
1.4 RESEARCH METHODOLOGY
The research method used in this work is purely doctrinal which is common in law.
This research adopts the quantitative method. The method is suitable for this
research, reason being that it analyses the problems and does not make use of
statistical data. The source of data here are both primary and secondary data
source.

The primary data is obtained from the labour Code and case law. While the
secondary data is obtained from text books, journal articles, reports, thesis and
websites.

1.5 SIGNIFICANCE OF THE STUDY

The essence of this research is based on employees. The employee should be
versed with their right before acknowledging the terms of the employment
contract. An employed, should know the fact that they human beings and not
robots. So their health should prevail in all circumstances and the employee needs
to be aware in order for their rights not to be violated. They should also take into
consideration human right standard in treating workers.

1.6 JUSTIFICATION FOR THE STUDY

The motivation to write on this topic; An Approval on the formation and
termination of employment contract is based on the harsh treatment which
employers use on the employees which is the wrongful termination of employment
contract by employer and also the duties of employer to employees which have not
been fulfilled by employer and which the government does not take into
consideration such issue. The second motivation is to avail the researcher the
opportunity to make policy recommendations on the rights which an employee
posses.

6
1.7 SCOPE OF THE STUDY
Although this research is based on the formation and termination of employment
contract, this work shall principally be focused on the employee or the worker. We
shall critically examine the extent to which the efforts made by government of
Cameroon to protect workers in accordance with international standard.

1.8DEFINITION OF KEY WORDS

1.8.1 An Appraisal: An appraisal is the act or process of developing an opinion
of value. A value judgment or assessment of something, especially a piece of work
which is very formal.8

1.8.2 Contract of employment: It is an agreement by which a worker undertakes

to put his service under the authority and management of employer against
remunerations.9
1.8.3 Termination: A contract of employment does not last forever even if it
concluded for a n unspecified duration. It is for this reason that is said that
contract of employment is contract of temporal nature.10
1.8.4 An Employer: A person or company that pays people to work for them.11
1.8.5 An Employee: A person irrespective of sex or nationality, who has
undertaken to place his service in return for remuneration.12
1.8.6 Formation: A contract of employment can only be “formed” and they must
be certain condition that can be looked before they can be formation.

8
Oxford Advanced Learner’s Dictionary, The 8th Ed. Pg 46
9
Cameroon Labour Code (Law no.92/007 of 14th of August
10
The Cameroon Labour Code
11
Supra note 12 pg 480
12
Supra note 14 pg 4
7
1.9Synopsis
This thesis is made up of five chapters. Chapter one is the introductory chapter. It
reviews the background of the study and identifies the research problems. It sets
out objectives, significance, methodology and scope of the work.

Chapter two centers on the contract of employment, the rights and duties of
employers and employees. It looks at the interpretation given to the weekly rest
terms in terms of labour Code.

The third chapter presents the formation of employment contract and the
regulations governing the right of workers in a contract of employment. It also
describes who is a worker. While chapter four focuses on the termination of
contract of employment, the destination between termination and dismissal of
remedies for wrongful termination of contract.

The final chapter is the conclusion of the study; it summarizes the funding while
making recommendations based on findings.

8
 CHAPTER TWO

THE CONTRACT OF EMPLOYMENT AND OBLIGATIONS OF THE

EMPLOYER AND THE EMPLOYEE

2.0 Introduction
This chapter simply examines a contract of employment, the duties of the employer
like e.g. duty to pay wage, rest periods etc. It also examines the duties of a worker
and it also looks the critique of employer and employee duties and lastly it looks at
the rights of an employer which are the managerial regulatory and disciplinary
rights.

2.1 Contract of Employment

Section 23(1) and (2) of the Labour Code states that “A contract of employment
shall be an agreement by which a worker undertakes to put his services under the
authority and management of the employer against remuneration”. Contracts of
employment shall be negotiated freely.

Under the common law, to ascertain the existence of a contract of employment

some indicia (elements) must be present to distinguish between an employee and
an independent contractor (one who works for himself). The Lord chief justice
Black Clerk Looper in the court of Scotland had this to say in his attempt to
reinstate the indicia of contract of employment “The indicia of the contract of
employment may be stated as follows;

The master power of selecting his servant, the payment of wage remuneration, the
master, right to control in general manner the work to be due and the masters right
of suspension or dismissal.

9
2.1.1 Terms of a Contract of Employment
A contract has been defined as a binding agreement between two or more persons
creating a legal obligation.13 An employment contract thus, it is a contractual
relationship between the employer and employee. An appropriate definition of an
employment contract is stated in section 23 of the Labour Code “which states that
a contract of employment shall be an agreement by which a worker undertakes to
put his services under the authority and management of an employer against
renuemeration”

The terms of contract of employment can be in two ways either express or implied.
The express terms of employment refers to those stipulations agreed upon by the
employer and employee during the negotiations in writing.

2.1.2 Types of Contract of Employment

2.1.2.1 Contract of Employment of Unspecified Duration

Section 25 of Labour Code defines contract of unspecified duration as one whose
tenure has not been fixed in advanced and which may be terminated at any time by
the will of the employer or employee. Section 34 of the Labour Code provides that
prior notice to termination is given by the part taking the initiative to terminate the
contract.

Contract of unspecified duration are by law meant to last till when the employee
reaches his retirement age or may last for life time of the parties. 14 This however is
far from saying that it is a contract of for life interminable. This is the most
common form of the contact of Labour in Cameroon.

13
Ryan , Fergus (2006) . Round Hall nutshells contract law
14
Section 25(1a) of Cameroon Labour Code
10
2.1.2.1 Contract of Specified Duration
This is a contract whose termination is fixed in advance by both parties. The
termination of the contract can either be by the will of the parties before the
contract made or termination can be subject to the occurrence of a future and
certain event whose realization does not depend on the will of the parties but it is
precisely indicated.15

The main aim for this type of contract is for the employee to be aware of the date
of the termination of contract that is why this specific duration contract are not
subject to notice before termination and this type of contact keeps the employee in
the company at all times and ensure that the employer does not terminates the
contract unilaterally except in the case of servant’s fault.

2.1.2.3 A Contract of Temporal Job

This type of contract is regulated by section 25(4) of the Labour Code. Its aim is to
replace an absent working whose contract has been suspended or in case where
extra Labour force is needed.

2.2 Duties of the Employer

The employment contract is one of mutual rights and obligation between the
employer and the worker. Both section 1 and 23 of the Labour Code defines the
employer with regards to managerial powers. The employer is vested with certain
specific responsibilities in the employment relationship in the absence of which
literally impossible to talk of a contact of employment16

These responsibilities and duties of employer in most part is translated to the

workers’ rights. These varied duties are both satisfactory and common law duties
that enhance efficacy of contract of employment.
15
Section 25 (1b) of Cameroon Labour Code
16
M.A YANOU “ Labour principle and practice in Cameroon. 1st Ed. Calabar Relief 2009 p.40
11
The most obvious duty of the employer is to pay the worker. These statutory and
common law obligations constitute implied terms in the contract of employment in
the absence of an express agreement to the contrary. However it is excellent
practice for a contract of employment to expressly contain the duties of the
employer. These duties are as follows;

2.2.1 Duty to Pay Wages

Before going deep into this, it is important to note that payment of wage is the
consideration for work done.

Section 1 (1) and (23) of Labour Code defines employment in terms of the service
of the worker for the remuneration of the employer.

Equally significant in the fact that by section 67 of the Labour Code. Wages shall
be payable in the legal tender only. The same provision further notes interestingly
that any other method of payment shall be unlawful while describing any
stipulation in the contact of employment to the contrary is “null and void” the
combined effect of this provision demonstrates that there can neither be
employment without pay nor one where payment is done in kind.

In the above, view, it is imperative for an agreement on pay to be expressly stated

in all employments. In cases where this details has not been expressly mentioned
as required, the law will step into insist on one. In establishing such a wage the
court or the Labour inspector at the conciliation stage shall ensure that it is
comparable to what is paid in similar employment subject to the fact that no
circumstance should the amount fixed fall below the minimum wage of 36,270
FCFA per month, beside, generally, from section 62(1) and (2) of the Labour,
workers collective agreement, where this has not taken precedence over wage in
the employer’s enterprise or company.

12
The above principle was affirmed in the South West Court of Appeal in Société
UCB V. Allianhu Fidelle17In this case, the court insisted that the wage specified in
a collective convention was the one to be enforced in the event of a conflict
between it and that contained in the employment contract of worker.

It must be stressed that under no circumstances, should a worker’s salary be below

36,270 FCFA prescribed by the new prime ministerial text on SMIG (minimum
wage) in private sector of employment. The emphasis in minimum wage is
particularly significant because the payment of extremely low wage to workers
have been judicially criticized as amounting to a violation of a country, treaty
obligation. Since the ILO (International Labour Organisation) contemporary
thinkers18 regards extremely low wages as a cause of ‘force Labour and debt
bondage”. The payment of low wages to workers would ordinarily mean that the
worker’s ILO convention rights are breached or violated. The state of Cameron is
to this extent obliged by convention No 13 (It concerns minimum wage fixing with
special reference of developing countries, 1970)” to prevent payment of extremely
low wages that is insufficient to maintain the workers and their families”.

2.2.2 Duty to Provide Work

As a general rule an employer is under a duty to provide work to the worker so
long as the latter is paid his wage. Although it relates wages to work done or to be
done or suggests that the employer is compelled to be the supported by the
previous of section (1) and 23 of the Labour. Code both of which simply require
the worker to place his service at the disposal of the employer and no more 19

17
Suit No CASWP/L20/2003
18
The Indian Supreme Court has held in Mukt morcha V Union of India and other, Supreme Court report. (1948)
Vol. 2.6.7 that workers paid below the minimum wage were bonded workers” see David Wissbrodt et al”
Abolishing slavery and its contemporary forms “ New York 2002, P.15”
19
Supra note 11
13
Admittedly, the Supreme Court appears to have suggested in Lacoure V.
Alubassa20that here could be an obligation to provide work to a worker which is
normally suspended during the period of leave.

The decision cannot be construed to imply that this is in an enforceable duty.

Properly constructed, the decision was only stating the rather obvious principle that
an employment subsist during the period of leave. The court was simply affirming
that the worker who timed him noticed of resignation to run during the period of
leave as it was perfectly right to do so21.

However, the position is clearly different in a piece contract under this regime of
engagement, there is an obligation on the employer to ensure that the worker is
given work which is sufficient to enable him earn wage similar to those workers
paid on a unit time based in equivalent employment 22.

The express creation in section 63 of the Labour Code of a duty on the employer to
give the worker work to do, in a piece of contract equally demonstrating that the
silence in section 1 and 23 of Labour Code deliberated.

The reasonable interpretation to put on this silence is the conclusion that the
legislation intended that the employer is not under the duty to provide work to the
employer is not under the duty to provide work to the employer. The situation in
piece or commissioned contract could not be expected to be otherwise or else it
will lead to a chaotic differentiation in pay for worker doing the same job. The
obligation to provide work will also applies where the workers occupation is such
that opportunity to work is an essential feature of the contracted because of the
possibility of loss reputation due to inactivity.
20
Appeal No. 177 of 25/04/1961
21

22
See Section 63 of the Labour Code of 1992. This Section gives a practical expression of non driscriminatory pay
prescribed in section 61(12) Labour Code.
14
2.2.3 Rest Periods
A worker can neither be expected to work all year round without resting or may be
required to work all day long without rest. Although the determination by the
contract and or collective agreement, there is a statutory provided rest period which
must inevitably be read into the contract of employment regulated by the Code.
This mandatorily means that all employments have implied terms giving the
workers a rest interval. The “rest interval” refers to periods where work is
interrupted so that the worker can spend his time as he or she pleases. It is also at
place of work. The provision of a ret period which dedicated by all interest of
government to maintain a healthy working population cannot be modified by the
contract of the parties. It goes without saying that a worker is not by the law
obliged to work during holidays etc. There is broadly two of rest intervals namely;
Weekly rest and leave23

2.2.3.1 Weekly Rest

The traditional practice is that the worker is entitled to a one day period or rest for
seven day working week. Section 88 of the Labour Code makes the provision of
this rest period compulsory. The section which is more specific that what is
obtained elsewhere prescribes that a worker is entitled to rest period to rest period
of twenty four (24) consecutive hours. The rest period by the provision “shall as a
rule is on Sunday”. Apart from the fact of this categorical insistence or the rest
period, the section further warned that this may not be replaced by a compensatory
allowance.

23
Supra note11 p.45
15
However, regardless of the apparent strict and flexibility of section 88 of the
Labour Code, questions may still arise about whether the provision is absolute.
Could the employer in certain special types of employment for instance modify the
rest provision prescribed by the above section?

It will certainly be illogical and absurd to suggest that this cannot be done
subsection of 2 of this provision leaves open the possibility of adopting a
procedure that can result in a flexible application of the rest period to take amount
of the worker required to work on a Sunday is such a situation does not violate the
law.

The same principle will apply24 with rest periods involving national holidays such
as national day, Labour Day, including rest period from Christian and Islamic
religious festival such a Christmas Ramadan etc.

2.2.3.2 Leave
As a general rule, every worker is entitled after working for a certain defined
periods to a holiday for a special period with full pay. This period of holiday is
referred to in employment parlance as leave. Section 89(1) of Labour Code obliges
the employer to offer a worker paid leave “ at the rate of one and a half working
days for each month of an actual service” 25 The provision however, represents only
the minimum standard of permissible leave. Since employment is a contract, the
parties could themselves negotiate and agree a better leave condition.

Since leaver is calculated on the basis of yearly service, it is clear that a worker
who has put in a year of continuous service are entitled to at least an annual leave
of 18days shall include periods where the workers was absent from work due to the
24
See Enongene Williams v University of Buea where the awarded damages to a security man, who worked on
Sunday
25
See young Person under 18 years it accrues on the basis of two and half days per month section 10(1) Labour
Code.
16
fact of an accident or sickness was enclosed by a medical accident practitioner
approved by the employer. Section 89(3)(b) of the Labour Code however limit the
period of absence from work for reason of sickness for the purpose of the
calculation of leave period not exceeding six(6) months. It seems rather obvious
that the Labour Code’s provision on leave, one particular liberal few years know
that they are under section 89(4) of Labour Code entitled to occasion of family
rents directly concerning their homes “while it is not possible to list all the possible
situation when this special leave may be claimed, it seems reasonable to support
that such family occasion will include such matters like the death of a family
member.

For maternity leave pursuant to section 90(2) of the Labour Code, the worker’s
right to paid leave may not be taken in an arbitrary and disorderly manner. It was
thus held in the case of Hannah Njange v. University of Buea26that a worker who
after applying for leave took off without waiting for the approval of the worker that
she had been wrongfully terminated was dismissed by Ekoko J. in the Buea High
Court because of the conduct of abandoning her service before a formal leave
decision was taken among others.

2.2.4 Duty to Provide Safe Working Condition

Section 95(1) of Labour Code sets a high hygiene and safety standard in the
Cameroonian work place. While the employer is by this provision required to
provide the worker with the work place, the employer is by these provision
required to provide the worker with a safe working environment. It is Arête
No.039/MTPS/1mg/of 26 November 1984 which fixes the general modalities of
hygiene and safety at a work place.

HCF/18/98 Note the court also held that the worker who herself resigned cannot turn around to claim damages for
26

wrongful termination
17
This arête was enacted pursuant to section 95(2) of the Labour Code which
occupational health and safety conditions shall be determined by Orders of the
minister in charge of Labour issued after consultation with the national
occupational health and safety commission “Section 95(2) security for workers
standards of hygiene and safety confirming to those recommended by the ILO and
international bodies. The provision has in theory to be applauded for setting lofty
standard of safety and hygiene in the Cameroonian work place.

What does this standard require in practice? Although this has not been indicated it
is obvious that such safety standard must necessarily involve in free elements
enacted in the celebrated English case of Wilson & Clyde Coal Co Ltd V
English27. The Wilson Clyde case has set a three pronged duty on the employer to
provide safe machinery, safe working system and responsible staff. Bawak JCA
had recognized this three-folded nature of the duty owed by the employer as
applying in the context of the country’s Labour law.

2.2.5 Duty to Provide Worker Certificate of Service

The employer has duty under section 44(1) of the Labour Code to issue to a
departing worker a certificate of service. Although the law does not impose any
format for the presentation of this certificate. The section nevertheless requires that
the certificate contains information relating to workers date of recruitment and
departure. The various positions held with dates etc. However, it must be stressed
that under circumstance may an employer under section 44 makes reference to the
reason for the determination of the employment, it is apparent that section 44
deliberately aims at protecting workers whose employments have terminated from
possible post-termination prejudice which may result from demining information
in the certificate of service.

27
(19…) 37 All ER 628
18
Although this is statutory provision which distinguish our Labour Code from
Anglo-Nigerian law28 on the same point must nevertheless be pointed out that it
has tendency to weaken the worker security tenure. This is so as it potentially
creates the impression that the worker could simply be asked to leave at the whims
and caprices of the employer so long as the employer give him the certificate of
service.

An employer who fails to provide a worker under section 167(1) of the Labour
Code to the payment of a fine from 100,000 to 1,000,000 FCFCA in the case of
Enongene Williams v. University of Buea29 a security officer who was dismissed
due to negligence was awarded general damages on grounds that he was not issued
a certificate of service. Although the plaintiff original claim in this case for
wrongful termination was rejected, the court significantly held that the provision of
section 44 of the Labour Code could be ignored even where the worker did not
claim it.

2.3 Duties of the Worker

As well as rights of workers also have duties the Labour Code defines a worker in
terms of section 1 (2) as “any person irrespective of sex or nationality, who has
undertaken to place his service under the control of the employer. The worker is by
this definition duly bonded to offer his service to the employer in conformity with
employment terms. It is for this, reason that the Supreme Court regarded the
worker’s service as the consideration for the salary he received in Etude Me
Nkilimaitin v. Abe Mvongo30

28
Under Anglo – Nigerian law, there is no such restriction in fact on contrary, certain now defunct decrees under the
military specifically disbanded worker who had been dismissed from employment from participating in the electoral
process.
29
Supra note 26
30
Appeal No.66 of 30/05/1972
19
2.3.1 Duty to Render Personal Services.
It is clearly provided in section 1(1) and 23(1) of Labour Code that the worker’s
primary duty is to provide service to the employer. By the very nature of the
employment relationship, the worker in inevitable required to present himself for
the work and be ready and willing to serve under the directions of the employer. It
is in fact literally impossible to talk of employment decision of Ekoko who had
held that a worker who has a breach of the duty to render personal service as in
Hannah Njange V University Of Buea 31, illustrates this point her action for
wrongful termination was for this reason dismissed for being devoid of merit.

Section 32 of Labour Code mandatorily, requires a worker to personally work for

him employment during working hours. A breach of this duty results is the
rupturing of the employment relationship for which the worker could be dismissed.
It was held by the court Appeal in Catholic Education Secretary v. Ndip Aaron32
that the worker who refused to go on transfer was rightly dismissed. Although this
was not expressly stated, based on the dicta in the decision of the international
Labour in Re Duran33 a worker whose witness is such renders him completely
incapable of working for the employer may be determined. In the case of Ndip
Aaron, under reference, the Court of Appeal Buea ignored a claim by the worker
that he could not go on transfer because of his poor health.

31
Supra note
32
supra
33
Judgment No.375 of the administrative Tribunal of the ILO cited with approval in the Re Duran No.3 Judgement
No.543.
20
2.3.2 Duty of Tactful Service
A worker must carry out his work in an honest and responsible manner 34 The
Principle is a direct function of the provision of section 31(1) of the Labour Code
require the worker to “devote all him gainful activities to the enterprise same as
otherwise stipulated in the contract provided that he may, unless otherwise agreed,
undertaker outside his working hours any gainful activity which is not liable to
complete with the enterprise or prejudice to the performance of the agreed service”

This provision requires the workers to work for the employers in accordance with
the employment contract of parties. It must therefore be understood that it is the
employment that determines what the worker should do. Employment is construed
strictly. An attempt by the employer to play a boss and requires, the worker to do
things not contemplated by the terms of the contract could be politely ignored
without any consequences to the workers. The employment contract is not guarded
as jealously as the marriage institution hence the worker may unless otherwise, use
his private time to improve his earning capacity elsewhere35

2.3.3 Duty of Care and Skill

The worker is contractually and by legal implications bound to act with reasonable
care in performing his duties. This duty also requires the worker to take employers
property. An employer who negligently allows his employers property to be stolen
or cause damage to it will be in breach of his employment contract and liable to
dismissal. The worker must also be careful that in his conduct does not harm
fellow workers or outsiders so as to impose liability on his employer.

The degree of care expected however varies with employee’s seniority at his work
place and the responsibility entrusted to him it will hence in law. A wrong to
34
This requires that the worker to serve his employer in good faith and fidelity
35
Supra note 11
21
expect too high a standard of care from a junior staff for that the manner of work
will be wrongful even where the negligence caused prejudice to the employer. The
issue is one of fact to be left to the appreciation of the court in an objective
manner36

2.3.4 Duty to Obey Reasonable Orders

The duty to obey reasonable order of the employer is part of obligation of good
fact is the employment relationship. It is both under the common law and
statutorily required that the worker should submit to his employers control in the
course of employment. Section 1 (1) and 23(1) of Labour Code in fact codifies the
common law duty which requires a servant (worker) to respect the reasonable
order of the master (employer). There is no way one can really talk of employment
in the absence of this duty since this will mean the worker at liberty to do as he
pleases.

The duty to respect the reasonable order of the employer is of great antiquity. It
was in Giwarak Jean v. Splangounias Stamalion37supreme court held than an
employee who responds rudely when questioned by the employer about the
apparent negligence with which he had been summarily sacked when he reported
that I am not your slave, neither am I your body guard leave me in peace” when
told to do his job carefully.

2.3.5 Critiques of Employer and Employee duties

These duties of the employer to employee are examined in this chapter. These
duties are well spelt out in the Labour Code without any ambition in their
interpretation but of course there are certain unscrupulous employers who will
never miss a choice to turn everything to their advantage. The duty to pay wages
36
This means that a worker is free unless prevented from doing so, to have more than one job site provided it does
not conflict with the other.
37
This requires the worker so serve his employer in good faith and fidelity
22
for example is very common. It is the minimum salary inter-guarantee (SMICI)
respected the answer is no. Because it is very common to workers earning low
wages. Thus in my opinion the worker will still be weaker party.

2.4 Rights of the Employer

The Labour Code provides certain rights to the employer in the absence of which it
is impossible to say employment exist. The responsibilities are three in number!

2.4.1 Managerial Rights

The right derives from section 1 and section 23 of the Labour Code which
recognizes the authority and control of the employer. By this provision he is the
person who makes decision and gives instructions to the worker. In effect, the
employer is the person who recruits, give tasks and determine the rate of work, the
rate of production, the times of work, the promotion of worker, the material used
and so on. Under these rights the employer can move the worker from one place to
another without explanation and without changing the qualification on salary of the
worker. He is the only judge to appreciate the professional aptitude of his
personnel and he can give any other advantage which he wants if these are not
provided by contract of employment or collective agreement.38

2.4.2 The Regulatory Rights

The employer has powers to an obligation to provide the firm rule, This rules is
contained in the internal obligation which they obey for certain formalities required
by section 29 of Labour Code. Internal regulations are the charter of the company.
The company or the employer shall communicate internal regulation to staff
representatives if any their opinion and for endorsement to the Labour inspector of
the area. Internal regulations shall deal exclusively with rules regulatory to the

38
Supra
23
technical organization to work, discipline standard and provision especially
remunerations, then there shall be null and void.39

2.4.3 Disciplinary Rights

The employer has rights to take disciplinary measure to sanction a worker’s fault.
These sanction ma take various forms depending on the fault of the worker in
question.40

2.4.3.1 Financial Sanctions

It should be noted that employees shall be prohibited from imposing monetary
sanctions on the worker. This is provided in the 30(1) the disciplinary sanction
comprising loss of wages may be suspension from work with the loss of benefits
without harping on the fact that the fault must be serious or grievous enough. The
suspension must fulfill tow prerequisites.

1) It shall be for a maximum of eight clear days from the time of the imposition
of the penalty
2) The worker shall be notified in writing of the suspension on the reason
therefore a copy of the notice of suspension shall also be sent to the
competent Labour inspector within 8 hours. If it so happens that the reason
for the suspension are unfounded, then the worker against whom it
pronounced is entitled to his loss of wages and benefits.41

2.4.3.2 Professional Sanction

There are many types of professional sanction but dismissal constitutes the most
essential professional sanction. The question here is whether the judge has the right
to control the proportionality between the disciplinary sanctions, Labour law

39

40
41
(19….) 17 all ER 628
24
permit to answer positively. In the case of Les Brasseries Du Cameroon v. Messe
Njesse Gasper (1987). The supreme held that the dismissal of the defendant was
wrongful because of work took two bottles and drank with a visitor at the work
place.

The employer considered his conduct to be incompatible with employment

regulation and reacted impulsively and dismissed the worker. It should be noted
that the employer must follow the rule which prohibits sanctioning two times the
same fault. Only the case of temporary suspension of staff representative pending
decision of Labour inspectors in the case of gross misconduct42

2.5 A Weekly Rest

Under the Labour Code, the worker is given as right, resting hours. This is an
obligation on the employer imposed by the law. Indeed anybody will reasonable
not expect a human being to work without rest. 43 It is compulsory. However,
regardless of the apparent strict and inflexibility slant of the above section,
questions may still arise whether the provision is absolute.

2.5.1 Leave
Furthermore, related to resting hours is the workers right to go to leave 44. Annual
leave shall accrue after service of one year as provided by section 92(1) of the
Labour Code. Although sometimes, collectives agreement may warrant that such
be a period above one year.

42
supra
43
Section 88 (1) of Labour Code.
44
Section 89 Labour Code
25
2.6 Conclusion
To conclude both the employer and employee have duties or obligations that they
have to fulfil when it comes to a contract of employment. And for a contract of
employment to be effective both parties have perform these obligations.

26
 CHAPTER THREE

THE RULES ON THE FORMATION OF AN EMPLOYMENT AND THE

RGULATIONS GOVERNING THE RIGHTS OF WORKERS IN A
CONTRACT OF EMPLOYMENT

3.0 Introduction:
This chapter simply introduces the rule on the formation of an employment
contract which is the intention to create a legal relationship, capacity etc. It also
has effects on this same employment contract and it further explains the regulation
governing the right of a worker and these regulations are simply the international
conventions and collective agreements.

3.1 Rules on the Formation of Employment Contract:

This rules on the formation of employment contract have been clearly Spell out in
the Labour Code.

Firstly, one of the rules is that there must be clear job description, that is, there
must be a specific proposal to give or do something which must clearly spell out
which proposal can be known an offer, which is been made by the employer. 45 This
offer that is been made by the employer to the employee must be of a specific
remuneration (wage). A contract of employment shall be an agreement by which a
worker undertakes to put his services under the authority and management of an
employer, against remuneration.46

Who must be a physical person not a moral person. PAUL GERALD POUGOUE CODE DU TRAVAIL
45

CAMEROUNAIS ANNOTE (1997) P.31

46
This can be seen in section 23(1) of Labour Code.

27
Secondly, this employment contract can be made either orally or it can be in
writing and also another rule is that the contract must be for a specific period of
time under this specified period. It can be divided into two, which is contract of
specified duration under section 25(1) of the Labour Code and contract of
unspecified duration under section 25(1)(b)

As the employer must make an offer to the employee, there is already an intention
or the need for them or the parties that is the employer and employee to create a
legal relationship between them. It is entailed in every legal offer is an expression
of the willingness to be bond in specific terms, should those terms be accepted
without qualification of the offer.

Section 27 of Labour Code states that, every contract of specified duration

exceeding three months or requiring workers to live his residence, shall be in
writing. A copy of contract shall be forwarded to the Labour inspector of the area.
This is with regards to contracts that have to do with contract of specified and
unspecified duration.

Under the rules on the formation of employment contract, there is capacity and the
characteristic of this capacity has to do with the Age and State of mind
(understanding) of the parties who are to enter into the contract of employment
with regards to the law in Cameroon as a rule in the formation of a contract, It
states that the parties entering into the contract must be of legal age before it can be
considered a contract of employment. An employment contract will be considered
void if this rule is not followed. But in every rule, there is exception. It is said in
the law that a person of 14 years can be employed as a worker. This shows that a
14year old worker is competent plaintiff in Labour actions. This can be seen in
section 86 of the Labour Code.

28
Also, another rule under the formation is that a person has a sound mind before
entering into a contract. A person of an unsound mind has no contractual capacity
and any contract which person enters into will be considered void in the eyes of the
law. Example of this type of person, are insane people and extraordinary people.

3.1.1 Effects of the Formation:

The major effect of a contract of employment is that from date of commencement
of contract which is expressly stated in a letter of appointment given to the
employee, the employee is bond by the terms and conditions of service consented
to by him. By this, he is subject to the whims and caprices of the employer,
provided the exercise of control by the said employer is not violated of any
existing law and if the orders and directions are not illegal.47

The content of a contract of employment which forms the basis of the rights, duties
and obligations of the parties under the contract usually varies from one
organization to another. But generally, there are certain elements which are
common in most categories of employment. They are;

3.1.1.1 Payment of wages:

One of the major effects of a contract of employment is that an obligation as to
payment of wage is imputed on the employer and this is usually affected in the
form of remuneration.

By the provision of section 1(1)-(3) of the Labour Code, the issue relating to the
basic salary of the employee is adequately protected. This covers housing or
allowance, end of year bonus, overtime and the sick-pay. The statutes make it duty
for the employer to ensure that these issues are adequately taken care of and by

47
Ibid, at PIII
29
that, it implies that from the date of commencement of the contract of employment,
the employer is answerable to the welfare of the employee.

3.1.1.2 Area of Service:

It is the usual practice for the contractor’s letter of employment to define the area
of the operation of the employer’s work. Therefore, it will be tantamount to a
breach of contract and a dismissible offence for the employee to refuse a
reasonable request for a transfer to another location, having consented to work for
his employer in any part of the country where it operate. In Bovzovru v. Ottoman
Bank (1930)48). The appellant, a bank employee of 22 years standing refused to
accept a transfer of a branch in Turkey on the grounds of his lack of knowledge of
Turkish language and the hostile attitude of the civil authority he would have to
deal with there.

He also maintained that he was not contractually obliged to accept such move but
the court held that the respondent was giving a reasonable and lawful order, which
the appellant was bound to obey, that is disobedience was justifiably treated by the
respondent as faute grave and dismissal was justified. The effects of a contract
employment as implied by these decisions is that where the order is lawful, the
employee is bound to obey while an unlawful order will not be enforced even
though the employee consented to it cut the time of taking up the employment. The
overall effect of contract of employment on parties is that they are bound by the
content of the agreement provided the mode or ways by which such obligations are
to be executed are not unlawful.

48
A.C.271DC
30
3.2 Definition of Worker:
A worker can be defined as any person who works for a living, either with the
hands or with the brain, especially those who do industrial or manual work for
wages 49). A worker is defined in section 1(2) of the Labour Code 50 as “Any person
irrespective of sex or nationality who has undertaken to place his services in return
for remuneration under the direction and control of another, whether an individual
or public private co-operations as an employer..”

The type of contract entered into by a worker is that of a contract of employment

rather than a contract for service. Where there is a contract of employment, there is
a relationship between the employer and the employee that is created. In
determining if the employee is a worker within the contemplation of Labour Code,
certain tests have been put in place. These incudes the Control test, Integration test
and Multiple test or Composite test. From above, we see what aids Cameroon in
determining who is a worker is the Control test, contrary to other legislation where
the test was found to the defective and therefore laid aside 51
The Control test as one of the devices used in determining who a worker is has
changed its phase from being absolute control exercise by the employer, for
instance, a medical doctor who is employed by an administrative, being a “Tabula
raza” in the cannot be directed on the steps to follow in carrying out a surgery such
an employee may not only face sanction, in case of his behaviour as per the
contract.

Though this Control test used in determining who a worker is in Cameroon is

useful and important, it may prove very insufficient and want in employment

49
.
Webster Duluxe, new 20th Century Dictionary unabridged 2nd Ed
50
Created by the Alex No. 92/14 August 1992
51
The Control test no longer applies in the British Cameroon Legal system as well as the American Legal system.
John Elison Business law 3rd Edition
31
involving technical profession and sophisticated function. Hence, though not
provided in the Labour Code, legislators have provided to look at the following;
degree of control by the employer, the degree by which the workers’ risks loss or
stand to gain from profits.

Note must be taken of the fact that there is a distinction between workers, as
defined in the Labour Code and Public Servant; section 1(3) of Labour Code
further states another category of persons not considered as workers. They are
governed by different Legislations. Also by definition, Military Office, the
Judiciary, prison service and Police do not come with the frame work of workers as
per section 1(2)52, they do not fall within this scope of study because their activities
are regulated by another decree.

3.3 REGULATIONS GOVERNING THE RIGHT OF WORKERS;

3.3.1 Collective Agreement;

It is vital to look at the employment of such regulation responsible for governing
the risk of workers. Of course it is well known that a worker is the weaker party in
any contract of employment. As a result of the limitation of the Labour Code,
collective agreement came in as a stronger mechanism to regulate the right of
modern development in industrial relations in the country. Employment in the huge
Agro plantains sectors like the;

Cameroon Development Corporation (C.D.C), the bank and oil sectors are largely
influential by joint agreement between employers and trade unions to which their
employees belong. Section (1) and 21(12) of the Labour Code provides that a trade
union be “made contract or Agreement with any other trade union employers
association companies, undertaken persons.”

52
Supra.
32
The Correct and incontestable provision must be that trade unions are statured by
empowered to make contract with companies and undertakings employing work53)

Collective agreements are in principle incorporated into the party’s employment

contracts in Cameroon. Collective bargained agreement with trade unions, are
effective and enforceable supported by section 21(2). The failure however to
expressly incorporated some items of the collective agreement does not rule out
completely the possibility of it being incorporated as an implied term of the
contract sometimes, a term of a collective agreement, custom or practice, on which
has not been expressly referred to practice which has nit incorporated to give
efficacy to an individual contract. The supreme court for this reason held in BN
CIV la Dame Boulier 54
that common practices on leave, was imported into the
workers employment although the contraction did not make any reference to it.
This is also because terms of collective agreement cannot override rights derived
from statuary provision. Best periods and statutory provided for in section 18 and
21 of the Labour Code must be enforced in any collective agreement whether
stated or not.

3.3.2 International Conventions:

Weekly rest Conventions 1923 No 14, Convention concerning the application of
the weekly rest in industrial undertaking section 95(2) of the Labour Code requires
that rest periods must be in conformity to those recommended by the International
Labour Organization (ILO) has ratified the weekly rest convention 1923 which
makes it binding on Cameroon and all the industries in the country 55
Article 2 of

53
A Yanou “Labour law principle and practice in Cameroon, 1st ed Calabar RuDEF 200,
54
Appeal N0 202 of 16th May 1961

55
Article 45 of the 1996 Constitution mandates all international ratified convention to be applied in the country and
ease rank above the national law.
33
the convention provide for by the other article of the convention, enjoy in every
period of seven days a period of rest, comprising at least twenty four consecutive
hours. This period of rest shall be whenever possible he granted simultaneously to
the whole of the staff.

3.3.3 Conclusion:
To conclude, with regards to the rules on the formation of employment contract,
these rules are simply based on mostly the essential of a valid contract when it
comes to the rules of employment contract. And the effects are simply what the
employer has to do when the commencement of an employment contract, and
when it comes to the worker, there are rules or regulations which govern the
employee. And it is said that the employee is always the weaker party, and to that
effect, collective agreements and international conventions came in to regulate the
rights of the worker. But as a result, the employer will always be the “god” when it
comes to a contract of employment.

34
 CHAPTER FOUR

TERMINATION OF CONTRACT OF EMPLOYMENT AND REMEDIES

FOR WRONGFUL TERMINATION

4.1. INTRODUCTION
In common parlance termination means the act of bringing to an end in space or
time56. Applying to the contract of employment, the definition of termination
covers certain notions like dismissal, resignation, retirement, force majeur, death,
and mutual will although some writers have distinguished between termination and
dismissal.

According to the Nigerian Supreme Court, dismissal caries infamy or dishonesty

and deprives one from benefits while termination does not. This was held in the
case of J.A.Irem v. Obubra District Council and Another57.Generally, dismissal is
regarded as a radical option with immense potential to destroy the employees
chance of alternative employment and should not for this reasons be resorted to
lightly. The Labour Code failed to make a clear distinction between the two
notions.

4.1.2. TERMINATION:
Section 34(1) of the Labour Code refers to the termination of contracts of
unspecified duration thus “A contract of unspecified duration may be terminated at
any time at the will of either party. Such termination shall be subject to the
condition that previous notice is given by the party taking the initiative of

56
M.R. Freedland The Contract of Employment Oxford; Claredon press, 1976:142.
57
(1960) 5 FSC: 24.
35
terminating the contract. Notification of termination shall be made in writing to the
other party and shall set out the reason for the termination. The notice period shall
start to run from the date of such notification. It shall be subject to any condition
precedent or condition subsequent. Under no circumstance may it be set off against
the leave period of the worker.

Where the above obligations are not respected by one of the parties, no period of
notice shall be enforceable on the other party. This provision shall be without
prejudice to the right of the injured party to claim damages.”

Hover, the section did not define termination. We shall in the absence of a
definition in the Labour Code turn to academic writers for the definition of
termination as understood in strict legal parlance. The concept has been defined as
the process by which a contract is put to an end in accordance with the pre-
determined rules regulating the employment58. To situate this definition to our
Cameroonian context, we observe that such rules are normally derived from the
terms of the party’s employment, the provisions of the Labour Code and other
Legislations and Collective Conventions.

It should be noted that the first sentence in Section 34 of the Labour Code codifies
the Common Law principle that permits either party in a contract of service to
terminate it at will. This freedom of either party in an employment to put an end to
it was read in a similar provision in a previous Labour Code by the Supreme Court
in Ngo Minyemeck Catherine v. COMACICO 59 where the Court held that an
employer was legally at liberty to terminate a contract of employment. It was
equally held by the same Court in the case of MaziohClaude v. S.E.A.C60 that
employers and workers have the freedom to terminate the contract of employment
58
M.R. Freedman The Contract of Employment Oxford; Claredon press, 1976: 142.
59
Appeal No. 25 of 21/3/1974.
60
Appeal No. 45 of 25/4/1974.
36
at will. The Supreme Court in the Mazioh Claude’s case rejected the argument that
the right to terminate can be taken away because of the illness of the worker.

However, in spite of the fact that the sentence is declaratory of the Common Law
notion of the freedom to terminate an employment contract, it will be hasty to
conclude that this weakens the security of tenure of workers in Cameroon. On a
careful review of the current Labour Code, it is obvious that the right to terminate
may not be abusively and negligently used against the worker. The Supreme Court
held in Jourdan Roger v. Izoung Michel61 that it could not be a good exercise of
this right to recklessly terminate a worker who had served him as a house boy well
for over six years. The Jourdan Roger decision shows clearly that there is no such
unlimited right for an employer to terminate a contract of employment for the fun
of it. The requirement written in Section 34 of the Labour Code “shall set out
reasons for the termination” provides protection against the abusive and capricious
termination of a worker by the employer.

In principle, termination is the process whereby an employment is determined in

accordance with the parties’ agreement or at least what the law regards as their
agreement. This principle is a product of the general rule that parties are bound by
the terms of their employment which was broadly recognized in the Supreme Court
Appeal No. 202 of 16/5/1961. Thus, except where the terms were reached ad
terrorem in breach of Section 1(1) and section 23(1) of the Labour Code they must
be respected.

In general, the contract of employment terminates when the obligations in the

employment which are provided in the terms of the contract are fully performed.
These obligations normally relate to the carrying out of a specific task or the
performance of work for a certain duration of time. Whatever the reasons, it will
61
Appeal No. 25/4/1978.
37
be a breach of contract if the express provisions of Section 34(1) of the Labour
Code relating to written notice specifying the reasons for the termination is not
given.

4.1.2. Dismissal
Dismissal constitutes undoubtedly the essential form to terminate the employment
contract by the Employer in regards to misconduct. Such misconduct will normally
relate to a refusal to perform a duty or obligation owed to the other under the
employment.

Section 36(2) and 37(1) of the Labour Code are significant for encapsulating the
concept of dismissal. The former makes reference to a contract of employment and
asserts that “it may be terminated without notice in case of serious misconduct,
subject to the findings of the competent court as regards the gravity of the
misconduct.”

The question that immediately comes to mind is what is the extend of misconduct
that may justify dismissal? Admittedly, this question is hard to answer because
neither sections 36(2) and 37(1) nor any other provision has defined misconduct or
dismissal. This lacuna shows the entire clumsiness of the Labour Code. These
provisions are legitimately criticize for confusing termination and dismissal which
are conceptually distinct notions carrying different consequences. The courts are as
a matter of cause inclined to strictly construe dismissal since it ends up throwing
the worker out of work and does so carrying his good name along as well. Based
on precedent from the Supreme Court, B E Fondjock JCA held in the Bamenda
Court of Appeal in SODEPA Dumbu v. Biebu Martin Fang62 that the appreciation
of the gravity of conduct for the purpose of determining a misconduct is at the

62
BCA/7L/2006 Unreported.
38
discretion of each individual judge noting that “gravity is a function of each
individual case” which “varies from case to case.”

With regards to actual definition, the quality of conduct which would amount to
misconduct can be gleaned from the Supreme Court’s decision in Arrete No. 97/s
of 12 September 1985 holding that a serious misconduct must relate to an
intentional act of the worker in the course of employment. The Supreme Court was
quite categorical that this excluded what the court preferred to refer to as a
professional error. The Courts view as expressed above is unfortunately not
particularly helpful since it remains obviously difficult to say what intentional act
as used by Arrete No. 97/s means in relations to the various possibilities that can
occur in employment. It is however safe to conclude from an earlier decision of the
same court in Makoa solomom63 that disobedience of a reasonable order by a
worker ranks among one of the most serious intentional acts that should justify
dismissal.

The exclusion of professional error from the definition of serious misconduct

means that certain misconducts although admittedly wrongful, cannot be good
grounds for the dismissal of a worker’s employment. After a review of a variety of
Supreme Court decisions, the Court of Appeal in SO DE PA Dumbu case pointed
out rather graphically the salient elements of a misconduct with sufficient gravity
to justify a dismissal thus:

“Among the various definitions of gross/serous misconduct attempted by the

Supreme Court, the one which to our mind comes close…..says that gross
misconduct is intentional misconduct or negligent misconduct of an employ, which
cause considerable loss ( prejudice grave) to the employer.”

63
Arrete No.69 of 19 march 1968.
39
From the above dicta, one can see that all misconduct would justify a dismissal.
The employer must justify that the prejudice caused to the service was substantial
as was held in the case of SO DE PA Dumbu64.

Furthermore, the misconduct must be within the employment scope of the workers.
This principle was illustrated in Laws v. London Chronicle Ltd65. In this case, the
worker was dismissed by the employer for refusing to obey orders to stay where
she was, it was held that the dismissal was wrongful.

There are two main conditions of dismissal;

- The Employer shall give in writing the dismissed letter to his Employee and this
letter shall set out the motive to terminate the contract. This notice takes effect
from the date of notification.

- The Employer shall give previous notice to his Employee according to Section
34(3) of the Labour Code. The duration of this notice shall take into account the
workers length of service and his professional category. According to Order
No.14 / MTPS of 26 May 1993.

64
It was held that although a herdsman who flouted the instructions of his employers by taking cow from a different
herd committed a misconduct, this was not of sufficient gravity to justify his dismissal.
65
(1959) 2 All ER 285.
40
4.1.3. Grounds for determination:

1) Dismissal for conduct incompatible with employment

A worker whose conduct is incompatible with a faithful discharge of his
employment duties can be dismissed under section 36(2) and section 37(1) of the
Labour Code. Conducts incompatible with employment will classically fall within
the definition of what the Supreme Court regards as intentional acts amounting to
serious misconduct in section 36(2) and 37(1) of the Labour Code. Although it will
be impossible to exhaustively itemize the conducts considered incompatible with
the workers duties, such acts as wilful disobedience to lawful and reasonable
orders, theft of employer’s property and gross incompetency has a general theme
of incompatibility with employment underlying them. There are all inconsistent
with the workers employment responsibilities.

The underlying consideration for the application of this test is the effect of the
purported conduct of the worker on the entire employment relationship. The
principle informing this approach was graphically demonstrated in Sinclair
v.Neighbour66 which was cited with approval in CatholicEducation Secretary v.
Atem Mary Musono.67In Catholic Education v. Atem Mary Musono68theCourt of
Appeal confirmed the decision of the trial court that a school teacher who took
money from school fees under her charge without the authorization of her
employers was correctly dismissed. The trial court accepted Sinclair v.
Neighbor69as expressing a principle of law which is applicable in the context of the
Labour Code.

66
(1967) 2 QB 279.
67
Suit No. CASWP/L.1/04-05.
68
Ibid.
69
Supra note 74.
41
The same Appellate Division in Buea held in Victor Oyebog v.C.D.C70that a
worker who conducts himself in the course of employment in a dishonest and
untrustworthy manner by stealing materials entrusted to him by his employers in
Tiko to deliver in Kumba was legitimately dismissed.

However, the reasons of security of employment and the general adverse social and
political consequences of dismissal, the courts have followed Common Law trends
in insisting on a high burden of proof in dismissal cases. It is therefore not simply
enough for the employer to dismiss the worker on grounds of loss of confidence.
This principle has been consistently followed by the courts as demonstrated in
Societe Shell Cameroon S A v. V Kemayou Henri 71where the High Court, Court
of Appeal and Supreme Court all held in favour of the worker who was sacked for
what the employer simply characterized as the loss of confidence.

2) Disobedience of reasonable orders:

A more fundamental way in which a workers conduct may be incompatible with
the continuance of employment is where the worker refuses to obey the reasonable
orders of the employer. The Makoa decision of the Supreme Court which is the
locus classicus on this point has been followed in a long line of cases across the
country. Justice Njie A.N excellently captures the position of the law in the Buea
Court of Appeal case of Catholic Education Secretary v. Ndip Aaron Oben72 thus:

“There is no doubt whatsoever from the records of proceedings that the respondent
a worker was in July 1997 transferred by the appellants his employers from
Bojongo to Fontem and the respondent never reported for duty in Fontem. In this
regard I hold the same view as the Bamenda Court of Appeal in Educational

70
Suit No. CASWP/L.10/2004.
71
Appeal No.79/S/04-05 of 12/5/2005.
72
Supra.
42
Board of Baptist Convention v. Robinson FellFominyen (Suit No
BCA/31/83…..that a refusal to go on transfers tantamount to a misconduct.”

The fact that the worker had requested and collected money for transport to travel
to his new station and partial salary arrears owed him without going to his new
station was held to amount to a disobedience justifying his dismissal. Justice Njie
was particularly instructive on what could be defined as a just cause justifying a
worker’s refusal to go on transfer.in a particular illuminating statement, the judge
stated the issue thus:

“From what I have said above, I found the respondent refusal to go on transfer
because he was owed two months’ salary and he was not given a simple guarantee
for the payment of these salaries was not a just cause and consequently he ought to
have been dismissed…”

This decision is well founded for two reasons. Firstly, the Administrative Tribunal
of the International Labour Organisation had held in Re Duran No 3 73 that “it is an
elementary principle of the Law of contract that if one party clearly and definitely
refuses to honour his or her obligation, the other party is entitled to rescind the
contract.” The Tribunal made reference to the refusal of Ms Duran to go on
transfer and observed that this principle remains the same in employment noting
that “it does not matter whether or not any of the rules say so in many words.” In
the particular situation under the Labour Code, The decision is unimpeachable for
the additional reason that the worker had engaged the procedure for the payment of
outstanding wages as he was entitled to do under the Labour Code.

Secondly, a situation where workers do just what they please and refuse to obey
reasonable instructions of the employer can only move towards anarchy which is

73
Judgment No 543 of 50 ordinary session march 1983.
43
patently incompatible with the employment contract. In Sule v. Nigeria
CottonBoard74 the Nigerian Supreme Court disapproved of the disobedience of
lawful orders from any worker high or low, big or small. The court added that such
conduct normally and usually attracts the penalty of summary dismissal as
disobedience ranks as one of the worst form of misconduct in employment.

However, the disobedience of an order that is either unreasonable or entirely

unrelated to a workers scope of employment is not fatal to the continuance of
employment. It is equally true that where obeying an order will expose the worker
to unacceptable levels of risks, the worker is not oblige to respect it. It was held in
the Re Duran 3 that “a staff member is not obliged to go to a place where she
might have to run unacceptable risks of injury or ill health.” The tribunal in Re
Duran 3 was however quick to add that this principle should not be construed as
giving the worker the power to veto her transfer.

The worker is under no obligation to co-operation with the employer to achieve

good results in his organization if such co-operation will require him to do acts
outside the contemplated terms of the employment. The employees’ responsibility
is to do what he has undertaken under the employment contract to do.

3) Criminal misconduct in employment:

Sometimes, the misconduct of a worker may constitute a criminal offence. Where

this is the case, it becomes imperative for the employer to proof the misconduct of
the worker forming the basis of his dismissal beyond reasonable doubts. This rule
is derived from the Evidence Ordinance. There must be evidence of a deliberate
conduct which was meant to benefit the employee. The correctness of this
proposition was confirmed in Nkufutoh Tifu Michael v. Kom Area Cooperative

74
(1985) 2 N.WL.R 17.
44
Union Ltd75 where a worker was terminated for allegedly misappropriating stocks
belonging to the respondent. Although the evidence at the trial showed that an
audit account had established a shortage, there was also evidence that these
shortages were not caused by the appellant personally but rather by persons
working under the appellant who was the cooperative’s storekeeper.

4) Dismissal for sundry reasons:

The oil boom of the seventies and eighties resulted in massive expansions in the
industrial sector and substantial growth in the development of businesses in the
country. This had a direct effect on employment as more jobs were created.
However, Cameroon could not be insulated from the depression emanating from
the capitalist centers of Western Europe. This and subsequent depression led to a
slump which started a crisis that has resulted in the closure of many companies for
economic reasons. Companies that survived had to restructure and reduce staffs
citing the economic down turn as the basis of their actions.

5) Dismissal for economic reasons:

By section 40(2) of the Labour Code, a dismissal for economic reasons occur
where the employer “for one or more reasons not inherent in the person of a
worker” relieves the worker of his service. The discharge must necessarily result
“from an obligation or transformation of posts or an amendment to the contract of
employment consequent on economic difficulties, technological changes, or
internal reorganization. “This type of dismissal is similar to that under the
Common Law where employment is said to be determined by operation of law.
The contract of employment ends simply because the Law regards the contract as
determined. This situation is distinguished from the normal circumstances by
which employment are determined either by effluxion of time for contracts of fixed

75
Suit No. BCA/27L/80.
45
period or by notice in employment of an unspecified duration. The termination of
the employment under this general rubric is ascribed to circumstances beyond the
control of either the employer or the worker.

Section 40(3), 40(4) and 40(6) of the Labour Code provides greater security to
workers than what obtains under the Common Law. Dismissal for economic
reasons would pursuant to the above provisions only be undertaken if the employer
in consultation with the staff representative and the relevant Labour Inspector
attempted to save the worker’s employments. It is incumbent on the employer to
show that he tried such possibilities “reduction of working hours, shift work, part
time work,” including lay-off and the review of allowances and wage cuts before
the termination of the workers.

An analogous issue to be considered is the effect of incapacity resulting from the

illness of a worker. While the death of either party to the employment contract puts
an end to the contract, the same principle cannot be applicable in the case of ill
health of the worker. Incapacity due to sickness does not a blanket effect of
frustrating the employment. The effect of such incapacity depends on the duration
of the employment.

The employment of an employee for a short term to perform a specific assignment

could be determined by frustration under the principle in Pousard v. Spiers76 if he
is incapacitated by illness or any other phenomenon that makes it impossible to
carry out his obligations under the contract. It was thus in the case held that the
illness of the plaintiff which prevented her from performing a singing role in an
opera for which she was engaged had frustrated the employment.

76
Supra.
46
The situation with contracts of unspecified duration which potentially could last till
the retirement of the worker is treated differently. Although each case will depend
on its peculiar facts, section 89(2) (a) and (b) of the Labour Code has established
the various possible principles to deal with the issue. Under these provisions, it is
tacitly recognized that absence from employment due to industrial accident,
occupational disease and illness certified by a medical practitioner do not rapture
the employment relationship. Section 89(3)(b) of the Labour Code further makes
the issue clearer by stating the absence from work as a result of an illness lasting
for periods not exceeding six months could still leave the employment subsisting.
The employer will be in breach of contract if he dismisses a worker who stays
away from work due to ill health for more than six months. Where there isn’t one,
the employer will be at liberty to terminate the contract of a worker who becomes
incapable of working because of illness. In Catholic Education Secretary v. Ndip
Aaron77 the claim by the worker that he could not go on transfer due to illness was
regarded as idle. The parties may in fact agree on issues touching on absences from
work in their contract or it be regulated by a term from a collective agreement
incorporated into the employment.

6) Dismissal for trade union activities:

Most legal systems have developed some form of protection against termination
from employment for trade union activities. This is a salutary practice since an
employee’s union activities could potentially cause a clash between him and his
employer. The Law in many countries have rightly recognize that trade union
activities may become the underlying reason for the employer’s decision to get rid
of a troublesome union activist even though the employer may purport to base his
actions on other grounds.
77
supra
47
The Cameroon response and basis for the protection against harassment for union
membership and activities are found in the 1996 Constitution as amended and the
Labour Code. The Preamble of the Cameroon Constitution and its Article 65
provides an impregnable justiciable protection against abuses for union
membership. This preamble provision convers on any worker and employer the
freedom of “association and unionism.”

The preamble equally asserts that “the right to strike shall be guaranteed under the
condition fixed by law.” Hence it is very wrong for the employer to terminate the
employment of a worker as punishment for his union activities.

Furthermore, section 4 of the Labour Code complimented the Constitutional

provision above. After noting that all workers and workers shall have the right to
join the union or association of their choice, in their occupation, section 4(2) goes
further to protect the worker from:

“Any acts of the anti-union discrimination in respect of their employment; any

practice tending to make their employment subject to their membership or non-
membership in a trade union; to cause their dismissal or other prejudice by reason
of union membership or non0membership or participation in union activities.”

The Labour Code leaves no room for equivocation as section 4(3) categorically
describes “any act contrary to the provision of this section” as “null and void”. It
goes without saying that any dismissal, punitive transfer, demotion, deduction of
salary as a consequence of a worker’s trade union is ineffective. A Labour Court
can for this reason easily order the reinstatement of any worker punitively
dismissed for his union membership.

48
However, it has to be noted that a threat to terminate and employee’s employment
remains only a threat and does not without more amount to a wrongful dismissal of
the contract of employment nor in fact does it amount to anything.

7) Constructive dismissal:
This occurs where the employer acts in a way that demonstrates that the latter no
longer deserves to be bound by the terms of the employment.
Constructive dismissal may take a variety of forms including for instance situations
where the worker was pressed to take dangerous risks. The point about
constructive dismissal is that the employer becomes liable even where the worker
resigns or abandons service because of the actions of the employer.

A classical example of constructive dismissal was presented in Assurance Des

ProvinceReunis v. Tiogum David78. In this case, the employer requested the
worker who was based in Bamenda to travel to Douala and sort out an issue
concerning him. Although the worker in compliance made four to Douala, he was
not attended to by the employer. In spite of this, the employer stopped the salary of
the worker and barred him from accessing his office in Bamenda. Faced with these
circumstances, the worker left the employment and sued his employer for wrongful
dismissal. The Court of Appeal on these facts held that the worker had been
dismissed noting that:

“…where an employer by such conduct forces his employee to abandon his

service, the employer has terminated the contract of employment “

Jani JCA supported this decision with the Supreme Court judgment 79
cited and
relied upon by Roger Doublier’s Manuel du Droit Travail du Cameroun.

78
(1999) CCLR pt 4 62.
79
Supreme Court decision delivered on 15 December 1964.
49
4.2. Remedies for wrongful determination:
Wrongful or unfair determination of contract of employment refers to wrongful
repudiation of contracts for which the law provides a remedy, it is a brusque
untimely and unjustifiable repudiation which utter disregard for the prerequisite
statutory and conventional formalities.

Contrary to the common law principle, “ACTORI INCUMBIT ONUS

PROBANDI (honours or burden of proof lies on the plaintiff)”. But the legislator
shift the ONUS PROBANDI to the Employer.

Section 39(3) of the Labour Code ordains that “In all cases of dismissal, it shall be
up to the Employer to show that the ground for dismissal alleged by him are well
founded”. The court shall ascertain whether the Employer acted fairly and
reasonably in dismissing the worker. If not, the Labour Code sets out a variety of
safeguard to protect the Employee from being wrongfully excluded from work.
The philosophy regulating the courts response to a wrongful determination of
employment contract is discerned in Lords Cain’s decision in Doherty v. Alman80

4.2.1. Damages

The classical remedy for wrongful dismissal is an action in the competent court for
damages. In fact, judging from the provision of Section 39(1) “Every wrongful
termination of a contract of employment may entails damages.” This seems to be
the only remedy available to the unfairly dismissed worker in Cameroon.

80
(1878) APP CAS 709
50
Damages refer to the pecuniary satisfaction awarded by a judge in a civil action for
a wrong suffered by a plaintiff who in labour matters could either be the worker or
Employer81.

Damages shall be assessed as Section 39(4) of the Labour Code ordains that “with
due regards to all factors indicating that prejudice has been caused and all factors
determining the extent of such prejudice and in particular with due regard:

a) Where the worker is responsible to his qualification and post.

b) Where the employer is responsible for whatsoever the type of employment, the
workers seniority with the employer, his age and any vested rights. However, the
damages shall not be less than three months’ salary or more than one month salary
per year of service in the enterprise.”

Before 1992,the courts apply the principle of the above set out in the case of
Fortoh vBrasseries company ltd (1981)82 the judge in deciding damages to award
“The measure of damages for wrongful termination or dismissal is prima facie
(first of all) the amount the plaintiff would have earned had he continue with the
employment.”

Today the rigid rule for assessment of general damages prescribed by Section 39 of
the Labour Code is now an inflexible principle of the law .in the case of
Universityof Buea V. Mbua Teke (2002)83 the judge did not have the discretion to
award damages as he did in the case of UnionCamerounais de Brasserie V. Baiye
Afue Joseph(2000)84

81
Mosley & Whitey Law Dictionary (London) 1977:94.
82
Appeal No 44 of 4/2/1969.
83
Appeal No.16/S/02-03 of 21/5/2002.
84
Suit No. CASWP/L.17/2000.
51
According to some writers, the issue of discretion will be applied in the assessment
of damages for workers who have worked for between 1-2years for an employer.
That is why the Court award the sum of 140,000frs CFA representing 3months
salary for a worker who has worked for only one year in the case of Lay
PrivateEducation V. Ebede Patric Asi 85
Other writers argued and concluded that
the rule in Section 39(4) will apply only a situation where the employee has done
more than 3years of employment.

It should be noted that for the claim of damages to be valid, the the employer or
worker must have presented his claim at the Labour Inspectorate during the
conciliation process. The failure to claim any head of damages before the Labour
Inspector is fatal for violating sections 139-140 of the Labour Code. Indeed, the
Supreme Court decision in Dandji Marc v. College du Progress 86 had firmly
established the principle that a party cannot claim at the court what he failed to
claim during the conciliation process before the Labour Inspector.

Specific damages reflects compensation for actual loss suffered like loss of
earnings and all incidental benefits that had become due at the time of termination
or dismissal (rent allowance, leave claim, salary arias, post allowance).

The award of special damages are based on the principle that it must be pleaded
and proved strictly. But in Labour matters the pleading contains the statement of
non-conciliation as the Judge held in PAMOL Plantation ltd v William Nango
Kimbeng (2004).87The court awarded the plaintiff worker his unpaid pension and
gratuity which has accrued as special damages.

85
Suit No.CASWP/L.14/2000.
86
Appeal No44 of 4/2/1969.
87
Suit No.CASWP/L22/2004/IM/04
52
4.2.2. Severance pay:
Reference must be made to the fact that severance pay and the payment of salary of
a worker who has been dismissed after being transferred to work outside his usual
residence are all part of special damages.

Section 37(1) of the Labour Code mandatory requires an Employer to pay a

wrongfully dismissed worker engaged under a Contract of Unspecified duration
Severance pay on the determination of employment. However. To be entitled to
such, the worker must have put in at least 2years of successful service with the
employer without gross misconduct.

Severance pay is calculated on the basis of Order No.16/MTPS/SG/CJ of 26 May

1993. This order is a Ministerial text of the Minister of Labour and Social
Insurance. Under this Order, Severance pay is calculated as an average percent of
the workers monthly salary. And it is determined according to length of service as
follows:

-Employment from 1-5years 20percent

-Employment from 6-10years 25percent

-Employment from 11-15years 30percent

-Employment from 16- 20years 35percent

-Employment from 21years- above 40percent.

Apart from the fact that workers are entitled to severance pay, employers are by
section 94(4) of the Labour Code obliged to repatriate workers who were
terminated while working in a place outside their usual employment back to their
usual place of residence. An employer who fails to repatriate a worker back to his

53
residence shall be bound to pay such a worker a monthly allowance equal to his
salary. This allowance must be paid to the worker for the period of time he had
stayed in the town where he had worked before his termination waiting to be
transferred back to his residence. Where the employer fails to do so, the worker
can claim it as special damages. However, the workers payment to repatriation is
barred after three years, it follows naturally that the employer’s obligation to pay
the allowance cannot extend to more than three years.

The courts have defined residence as the place where the worker habitually lives. It
was for this reason expressly held in Societe Activida Assurances v. Fotse
Marguerite88 for the purpose of determination under section 132 of the Labour
Code.

4.2.3. Specific re-instatement:

Reinstatement is an adjunct of the general equitable principle of Specific

Performance in Contract Law. The Courts have for long been reluctant to order for
the reinstatement of dismissed workers because of the argument that such an order
is analogous to slavery since its amounts to imposing a servant on an unwilling
master or vice versa89. Besides, the idea was further supported by the contention
that re-instatement which evolved out of Equity could not be granted where the
employment relationship was personal in character. Equity which does not act in
vain is according to this argument reluctant to order re-instatement since it would
be pretty difficult for a court to enforce the order against a recalcitrant employer. In
the England Case of Vine v. National Dock Labour(1957)90 it was said that an
invalid dismissal means the worker has not actually been removed from

88
CASWP/L.11/2001 Unreported.
89
See generally Hill v. C.A Parsons & Co. Ltd (1971)3 W.L.R page 995.
90
A.C.488
54
employment. In Morris v.Gestetner ltd (1973)91, the Court recommended re-
engagement instead of reinstatement.

Reinstatement is retro-active in effect. It involves a revocation of the dismissal and

payment of salary for the intervening period. An Order for reinstatement does not
deprive the Court from its inherent rights under the Code towards damages in case
of wrongful dismissal. In this situation, the measure of damages would be the lost
the plaintiff had suffered during the period he was out of work.

The Labour Code in its Section 130(1) provides that an Employer may only
terminate the employment to staff representative after seeking and obtaining the
prior approval of the competent Labour Inspector. Any dismissal made in violation
of the provisions stated above shall be Null and Void and the staff representative
shall be reinstated with full payment for the period of suspension.

The I.L.O Convention of 1982 to which Cameroon is a signatory emphasizes on

the relief of re-instatement in case of wrongful dismissal. The convention enjoins
all tribunals vested with responsibility to decide cases on wrongful dismissal
except where such tribunals do not have the jurisdiction to do so. The philosophy
behind this conventions recommendation is commendable. A committee of experts
who have examined the effectiveness of compensation as deterrence against the
arbitrary determination of employment had shown that it is ineffectual92

4.2.4 CONCLUSION:

Labour contracts could be terminated naturally, consensually or unilaterally with

the payment of whatever prescribed dues .however, the payment of unilateral
termination through resignation or dismissal on the part of the worker and

91
3ALL E.R.118.
92
B. Napier, “Dismissal-The International Labour Organisation Standard” The Industrial Law Journal Vol.12 at page
55
employer respectively. The situation becomes complicated if gross misconduct is
alleged.

56
 CHAPTER FIVE

SUMMARY OF FINDINGS, CONCLUSION AND

RECOMMENDATION

5.1. SUMMARY OF FINDINGS

This work has demonstrated that there are a good number of National and
International instruments that regulates the Labour Contracts in Cameroon.
Specific provision of legal instruments such as Cameroon Labour Code relating to
Labour Contracts have been pointed out.

It has been observed that Cameroon has a good legal framework that regulate
labour contracts. The legal framework has incorporated necessary requirements of
international instruments in relation to labour contracts. A number of significant
safeguards under the Cameroon Labour Code lends credence to this.

Problem as already pointed out above is that of wrongful termination of labour

contract. The fact that the terms of the contract are made only by the employer and
because the employee is desperately in need of a job, he is forced to accept the
terms and even the degrading conditions of work. And Cameroon laws highly
regard the terms of labour contract.in addition, employers and employees are
highly ignorant of their various rights and duties. The absence of an independent
monitoring body to supervise the Labour Contract provides an opportunity for
employers to violate the rights of employees with impunity.

The study has shown that there is a wide gap between what the law provides as
rights and what is actually practiced.it has been demonstrated that the conditions of
labour contracts in Cameroon is below the standards required by international legal

57
instruments. These conditions includes: poor health care, conducive environment,
low wage rate, and hard labour. These conditions are very common in employment
enterprises in Cameroon.

5.2. CONCLUSION

From the findings of the research, one can say that the rights of parties to a labour
contract are to an extent in Cameroon respected. The labour Code of Cameroon
provides the necessary safeguards for the rights of parties to a Labour Contract.
For example the Labour Code provides the amount to be paid as wages and equally
provides remedies for wrongful termination of employment contract. Cases have
been reported where employees received remedies for wrongful termination.

However the enforcement of the rights of parties to a Labour Contract in

Cameroon is problematic. Violation of the rights of employees in Cameroon is a
common phenomenon. The findings have shown that wrongful termination and
non-payment of wages is very rampant in our country. As reported in the work,
employees are often dismissed before the end of the stipulated or agreed date for
the termination of the contract. Employees are often paid wages below the legal
limit for wages. The poor working condition, long hours of work, low wage rate,
limited hour rest faced or suffered by the employees cast doubts on Cameroons
commitment to International legal bodies that protects the rights of parties to a
labour contract. And the National Laws have failed to effectively regulate labour
contracts.

58
5.3. RECOMMENDATIONS
The Labour Code of Cameroon should be fully applied in all Labour Contracts.
This will help in enhancing improve on the labour relationship between the
employer and employee.

Cameroon should create an independent monitoring body to supervise employment

contracts. This will help to improve on the working conditions of employees and
ensure that workers are paid their wages as required by the labour Code or agreed
upon by the parties.it will equally help by ensuring that the provisions of the
Labour Code are fully applied.

To continue, Cameroon should work in line with International instruments

regulating Labour Contracts so as to improve on the Labour conditions in the
country.

To add, employers and employees should have a good mastery of the laws
regulating Labour Contracts so as to avoid the violations of such provisions. The
employer should know what he ought to do or ought not to do. Employees should
equally be aware of their rights and duties so as not to act beyond those rights and
implicate the employer in his actions.

More so, the terms of the contract should be negotiated by both parties. This will
give the employer valid grounds to prosecute the employee in case of a breach of
the contract. The worker should equally ascertain the terms of the contract before
signing or entering into it .thus, by reading this project, the workers awareness
shall be updated.

Finally, this work is recommended to everybody who are parties to a labour

contract as well as third parties.

59
 BIBLOGRAPHY

Books:

Brian Bercusson, European Labour Law 1st bed. Butterworth (1996) 308.

David Weissb Rodt et al “Abolishing Slavery and its Contemporary Form”

Newyork 2002 p.15.

M. A. Yanou” Labour Principles and Practices in Cameroon “1 st Ed. Calabar Refef

2009, p.3.

The Cameroon Labour Code Law No.92/007 of 14 August 1992.

John Mcmullen, wrongful Dismissal and Termination of Contracts of Empoyment

(1981).

J Roper Labour problems in West Africa London Penguin, 1st ed. 1958: 12

Mosley & Whitey Law Dictionary (London) 1977:94.

John Ellson Business laws 3rd Edition.M.R.

Freedman The Contract of Employment Oxford; Claredon press, 1976: 142.

Webster Deluxe New 20th Century Dictionary unabridged, 2nd Ed.

Oxford advance learners dictionary. The new 8th edition.pg 349

V J Ngoh “History of Cameroon” 1800 to Present Day 1st Ed.

A Fadipe, the Sociology of the \Yoruba’s, Ibadan University Press 1970; 151.

60
News Paper:

The Post Newspaper of the 24th April 2007.

Journal:

B. Napier, “Dismissal-The International Labour OrganisationStandard” The

Industrial Law Journal Vol.12 at page 91.

M. A. Fadipe, the secretary of the Yoruba Ibadan University press, 1 st edition 1970
P. 151.

61