GENERAL INTRODUCTION

• BACKGROUND TO THE STUDY

Paid employment in its present sophisticated form was simply nonexistent in pre-colonial Cameroon. This absence of paid employment could be attributed to a variety of reasons only few of which are of interest in this book. For one, the existence of a labour relationship like paid employment presupposes the existence of an effective legal tender. It was in the context of pre-colonial Cameroon literally impossible to think of paid employment in the absence of an effective medium of exchange like money.[1] Clearly, the nonavailability of a legal tender was both here as elsewhere in precolonial Africa responsible for the absence of paid contract of service . Besides, it is obvious that the predominant forms of occupation during this period in history (farming and hunting) could not support the existence of paid employment. Naturally, in this type of basic economy each family had to rely on its members for labour[2]. There was, in the circumstances, no question of specialization that could have led to the creation of a pool from which workers may be recruited. In this situation, the practice was for the few African dignitaries who had need for large scale labour force to rely on their family members for it. This form of labour practice was possible because pre-colonial families which were extensive (wives, children, grandchildren, nephews etc.) could be easily adapted to provide services in the farms or the construction of homes. Indeed, unlike what obtains today, it was in fact not fashionable in pre-colonial times to sell one’s labour since to do so was considered undignifying and beneath the status of persons.

Pre-Colonial Labour Relationship Commercial labour however did exist amongst traditional Cameroonian communities before the coming of Europeans in what later became known as Cameroon. Just as commercial labour varied according to the diverse character of indigenous communities, so was the form of employment relationship. The most prominent source of large-scale commercial labour was that provided by slaves. Slave labour was so important and widespread during this period that it had pointedly been noted that “without slaves the economy would have collapsed.”  Ancient pre-colonial labour relationship differed from modern employment in many respects. Firstly, service was not voluntary. Secondly, apart from the petty privileges attached to the nature of their functions, slave workers were not paid by their masters. The relationship in slavery is devoid of consideration and so cannot strictly be described as employment as understood in modern employment law. The absence of these features makes the conclusion above compelling particularly as section 1(1) and 23(1) of Law No 92/007of 14 / August, 1992[3] commonly referred to as the labour code defines employment in terms of voluntariness and pay. The other important type of labour engagement during this period was the collective co-operation. Two forms of these were prominent and widespread. The first occurred when a person had more work than he and his family could handle and had to commission a party made up of his friends and relations to assist him to do the work. Apart from the provision of food for the working parties, he was not required to pay the workers.

The practice of determination of contracts of employment in Cameroon is employer friendly. This is premised on the fact that the employer is free to determine (terminate) the contract of his employee for cause or no reason at all. This is in contradistinction with the law and practice across the world[4] or the ILO standards. This shows that the law and practice of determination of contract of employment in Cameroon differ with those of other countries. The difference is occasioned by the fact that, some countries across the world have moved away from dismissal “at will” which permits the employer to terminate the contract of employment of his employee for bad or for no reason at all[5] but must give reasons for termination to a justified dismissal. The move away from unjustified dismissal saw the day light with the ILO which adopted the ILO Termination of Employment Recommendation and the ILO Termination of Employment Convention[6]. This convention in its article 5 states a good number of reasons not constituting valid reasons for termination of employment contracts[7]

Article 7 of the same convention clearly stipulates that “the employment of a worker shall not be terminated for the reasons related to the worker’s conductor performance before he is provided an opportunity to defend himself against the allegations made, unless the employer cannot reasonably be expected to provide his opportunity”[8].

Despite this effort by the ILO towards ensuring a policy of fair dismissal, Cameroon is still in full practice of at will termination of employment contracts by the employer contrary to the law, and at the detriment of the employee.[9] The none applicability of the convention containing ILO standards on unfair dismissal leave Cameroon with practices which are unfair in the global perspective. It is in this light that the right to terminate a contract of employment is subject to some limitations as per the International Organization Labour Convention7 and the violation of this by employer is at his own peril.

In law, unfair dismissal is a situation which an employee’s contract of employment is terminated by the employer without any just cause where the termination breaches one or more terms of the contract of employment or a statutory provision or a rule in employment law[10]. For instance, when an employer fires an employee for reasons that are considered illegal since it is in violation of anti-discrimination laws or contractual obligation. This might mean an employer fired an employee who was under an existing contract or because of a protected right such as the employee’s colour, sex, or religious preference[11], gender, ethnic background, religion or disability.

The concept of “unfair” or “unjustified” dismissal was developed to restrict the scope of employers’ “at will” powers[12] of terminating contracts of employment. The rise of labour movement, increasing levels of industrial disputes and the growing recognition of the need to protect workers sparked a change in the thinking of the legislators who at the dawn of the twentieth century, began to modify the substantive provisions of the regulation in this area establishing that dismissal should be based on valid reasons[13].

1.3 RESEARCH QUESTIONS

Based on the forgone problems stated above, the following research questions will be answered.

1.3.1 General research question

How are employment contract terminated and unfair dismissal in Cameroon

1.3.2 Specific research questions

– How are employment contracts terminated in Cameroon?

– Do Cameroon laws on unfair dismissal take into consideration the ILO standards on termination of employment contracts?

– What mechanisms and remedies have been put in place to afford adequate protection of worker’s rights in the case of termination of contract and unfair dismissal?

– What policy proposal can be proffered as solution to the questions raised?

1.4 RESEARCH OBJECTIVES

1.4.1. Main Objective

To critically assess the protection and enforcement mechanisms Cameroonian laws offer to parties in case of termination of employment contract and unfair dismissal by the employer in Cameroon.

1.4.2 Specific Objectives

– To critically assess termination of employment contracts in Cameroon

– To examine the applicability of the ILO standards on termination of employment contracts in Cameroon

– To examine the mechanisms and remedies put in place to afford adequate protection of the rights of employees in the face of unfair dismissal.

– To make policy proposals as solution to problems raised.

1.5 RESEARCH METHODOLOGY

The study adopts the doctrinal approach to research by carrying out a critical analysis of relevant literature on this issue. In this respect, the study makes use of both primary and secondary sources of data. The primary sources include national legislations, case law, international treaties as well as policy documents relevant to the study.

The secondary sources of data used include but not limited to books, journal, articles, internet sources, newspaper, and reports. The research is therefore qualitative in nature.

1.6 JUSTIFICATION

This research is justified in that it touches on a worker’s right to work, the source of his livelihood on which other first generation rights are based. This is mindful of the fact that his career is his property.

Considering the importance, the law attach to contracts of employment both at the national and international levels, one would see that the illegal termination of such contracts will call for the intervention of the court which is initiated by the aggrieved party who in our context is the employee or worker. This is so because such contracts create reciprocal rights and obligations on the parties thereto. The intervention of the law in circumstances of unfair or illegal dismissal has the objective of protecting the employee as the weaker party for the employer not to infringe on his rights by dismissing him illegally or without just cause. This piece of work justifies the fact that, unfair dismissal brings serious repercussions on the employee since employment contracts are based on trust and confidence. Contracts of employment being essential and an inevitable aspect of every nation, there is the need to regulate such contracts with a lot of care in order to enhance effective protection of employees who are in a weaker position.