Duties of the Employer under Cameroon Labour law
An employment contract is one of mutual rights and obligations between the employer and worker. According to sections 1(1) and 23 of the labour code, the employer those not only have managerial powers but is also vested with specific responsibilities without which it is literally impossible to claim employment.
The responsibilities/ duties of the employer in the most part translate into the rights of the workers which the employer has a responsibility at both statutory and common law levels to respect.
1. Duty to Pay Wages
Sections 1(1) and 23(1) of the labour code define employment in terms of the service of the worker in return for remuneration from the employer. This implies that the wage is the employer’s consideration for the services of the worker.
Moreover, section 69 of the code provides that wages shall be payable in “legal tender” only any other form of payment is unlawful and liable to render the employment “null and void”. Therefore, employment which is paid for in-kind or not paid for at all is not lawful.
It is generally encouraged to specify payments in labour contracts but where there is none, reference shall be made to the payment in similar jobs. In any case the code specifies the minimum wage in Cameroon as 28 000frs/ month.
This implies that any wage below this is tantamount to “forced labour and debt bondage” and thus contrary to the international labour organization convention. See convention number 131 of the ILO.
Wages can also be negotiated through collective agreements; these collective agreements can also take precedence where no wage was initially fixed, taking precedence over any wage in the employer’s enterprise.
This principle was affirmed by the South West Court of Appeal in Societe UCB v AllianhuFidelle when the court enforced the wage specified in the collective convention above that specified in the employment contract.
2. Duty to Provide Work
Section 61(1) of the Labour code relates wages to “work done or to be done or services rendered or to be rendered”.
This means the employer has a duty to provide work as long as the worker is being paid though it in no way suggests that the employer is compelled to so.
The Supreme Court suggests in the case of Lacore Jean v Alubassa that there could be an obligation to provide work to a worker which is normally suspended during the period of leave.
This implies the obvious principle that employment subsists even during the period of leave thus a worker who timed his resignation during his period of leave is perfectly right to do so.
However, the position is different in piece contracts, the employer has an obligation to give the worker sufficient work to enable him earn a wage similar to workers paid on a unit time basis in equivalent employment (Section 63).
Another situation where the employer is obliged to provide work is where the opportunity to work is an essential feature of the contract because of the possibility of loss of reputation due to inactivity.
With respect to how much time a worker can spend working in public and private agricultural/non-agricultural enterprises, there exists statutory limitations probably to protect the overall health of the workers (though not expressly stated as such in the labour code).
Thus section 80 of the labour code mandatorily limits the working period to 40hours/week in non-agricultural establishments thus making it 8 hours per day for an official 5 days working week and 6.6 hours per day if the working week is 6 days (S 80(1).
On the other hand, S 80(2) limits the working hours in non-agricultural establishments to 2400 hours/year still calculated to be 48 hours/week at most.
It is important to note that both conditions, reflect government policy and cannot be subverted or modified by employment contracts offering less favourable conditions.
This principle is reflected in the case of Enongene Williams v University of Buea where the Magistrate Court in Kumba awarded special damages to the plaintiff to cover the extra hours he had worked in excess of the statutorily prescribed period.
This decision was awarded even though the court dismissed the plaintiff’s other claim of wrongful dismissal as lacking in merit.
3. Rest Periods
Rest periods refers to specific intervals where the worker is interrupted so that the worker may use his time as he wills and he must not remain at the place of work.
This is one of the implied terms of an employment contract that cannot be modified even by the employment contract between the parties. [BY THIS, IS A WORKER OBLIGED TO WORK DURING PUBLIC HOLIDAYS?] Rest periods maybe weekly and yearly.
With regards to weekly rests, the traditional practice is that a worker is entitled to one day in a seven day week (generally on Sunday). Section 88 makes this provision compulsory and not open to modifications even with a compensatory allowance.
Though it appears so strict and inflexible, this provision can, however, be modified in relation to the job, e.g. jobs providing security and health services (see S.88 (2)) and in such cases, compensatory allowance on a Sunday or public holiday will not be a violation of the law.
Yearly rests are often illustrated in the form of leaves. Every worker (after working for defined periods) is entitled to a leave for a specific period with full pay. The employer is obliged to provide such paid leaves “at the rate of one and a half working days for each month of actual service” (section 88(1)).
This is however, the most minimum condition; the employer and employee could negotiate and agree on better leave conditions. Leaves are calculated on yearly basis thus implying that a worker who has put in a year of continuous service is entitled to an annual leave of at least 18 days.
This calculation takes into consideration periods when the worker was absent from work due to an industrial accident or sickness endorsed by a medical practitioner approved by the employer.
However, in calculating the leave, periods of absence for sickness are limited to a period of 6 months.
Section 89(4) provides that workers are entitled to a maximum of 10 days special leave for family events directly concerning their homes such as the death of a family member. Being Africans we naturally face problems with who constitutes “family”.
Except for maternity leaves (s. 90(2)), the right to a workers’ paid leave shall not be taken in an arbitrary and disorderly manner. Thus in the case of Hannah Nganje v University of Buea , a worker who after applying for leave took off without waiting for the employer’s approval was held by the Buea High Court to have acted unreasonably and this acted as the ground for the dismissal of her case of wrongful termination.
4. Duty to Provide a Safe Working Environment
Section 95(1) sets high standards for hygiene and safety in Cameroonian workplaces. Section 95 (2) specifically states that: “occupational health and safety conditions shall be determined by orders of the minister of labour issued after consultation with the National Occupational Health and Safety Commission”.
This section further provides that these hygiene and safety standards should be in conformity with those of the ILO and other internationally recognized foreign bodies.
Although not specifically indicated, it can rightly be considered that these hygiene and safety standards follow those enunciated in the celebrated English case of Wilson & Clyde Co Ltd v English which provides that employer has the duty to provide safe machinery, safe working systems and reasonable staff.
These three elements were upheld in the case of CDC v AkemBenbella where it was held that the employer owes a duty of care to his worker and that this duty requires “reasonable care to provide proper alliances and to maintain them in proper condition and to carry out his operations in a way which doesn’t subject those employed to unnecessary risk”.
Thus in the CDC case, the court held the CDC liable for not providing the respondent with the appropriate weapons to ward off an attack of the nature they were exposed to.
[WHAT IF AN EMPLOYEE’S PROPERTY WAS STOLEN WHILE AT WORK; IS THE EMPLOYER LIABLE?]
5. Duty to Provide Workers Certificate of Service
The employer has a duty to issue a certificate of service to a departing worker (s 44(1)). Though not specific on the format of this certificate, the code nevertheless provides that the certificate contain information relating to the workers date of recruitment and departure, previous positions held with dates, etc.
However, section 44 provides that no worker should make mention of the reason for the termination of the employment. [WHAT DO YOU THINK OF THIS PROVISION?].
An employer who fails to provide a worker a certificate of service as prescribed will be held liable under section 167 (1) of the labour code, to the payment of a fine from 100000frs to 1000000frs.
In the case of Enongene Williams v the University of Buea, a security officer who was dismissed due to negligence in performing his duties by the university was awarded general damages on grounds that he was not issued a certificate of service.
Although his main claim was for wrongful termination, the court nevertheless held the University of Buea liable under s. 44.
This issue was also seen in the case of Ndongo Fred Ebanja v The Chambers of Agriculture, where the Buea High Court condemned the attitude of employers for treating s. 44 of the code “as if it is optional and they have the discretion to deliver or not to deliver” and categorically noted that “section 44 is not a suggestion but a commandment which is a fundamental right of the employee”.
Thus the plaintiff was awarded 1million francs in damages. These decisions however appear to contrary to section 167 (1) which stipulates fines and not damages for a violation of s. 44.
Thus the cases of SONEL v Menu Daho and that of Offa Enow v CDC can be considered right in this respect because they held the defendants liable in fines payable to the state treasury.
Even at that, it is not rare for a labour court to still award some form of compensation to the departing worker as done in the Ndongo Fred Ebanja case. This compensation is not illegitimate as it falls within the powers of the Labour Code to grant special damages to an aggrieved party.
This is especially so if the non-issuance of a certificate of service has caused prejudice to the worker (for instance, the worker has missed a job opportunity because of the absence of the certificate) – Section 39 (4).
Duties of the Employer under Cameroon Labour law
