CHAPTER ONE: GENERAL INTRODUCTION

1.1 Background to the study

            Since the introduction in 1971[1], legislation providing a right to dismisses employees to complain of unfair dismissal has appeared to become a firmly established element of statutory employment protection. This legislation has become the major source of litigation in employment questions, constitution more than 75% of the workload of industrial tribunals. Moreover, it has had a considerable influence upon management practice as well as collective labour relations, with voluntary disciplinary procedures in response to the law. One of the reasons for the continued existence of the legislation was the growing realization that such legislation did not simply provide a protection for the worker against management, it also acted as a spur to management practice to create a greater formality to disciplinary arrangements.

            Since 1980, the existence of a consensus over such legislation can no longer be taken entirely for granted. The exclusion of large groups of workers from the protection of the legislation conservative governments indicates a willingness to take away a safety net statutory jo-protectim in pursuit of other policy objectives.

             From the point of individual employment law, the primary purpose of the unfair dismissal law was to provide to individual employee a form of protection against arbitrary termination by employers of their employment relationship. As the Donovan Commission makes clear, the Act was prompted by the need to improve the employees vulnerable position at common law.

The labour legislation is a body of rules governing labour relations between the employer and the employee. labour refers to all the laws of the state to provide social and economic security to the worker.[2] This branch of the law better known as labour law came about dated back in the colonial period in Africa. Before the coming and colonization of Cameroon, society mechanization was far less developed. Labour was oriented towards community provisions. Before this time, labour was executed to obtain family needs for survival. The colonial period introduced the commercial side of labour or the market which completely wiped out the traditional notion of labour. At this point subsistence labour was substituted by the profit making labour introducing wages to labour.

In all, it was after the 1944 Brazzaville conference where a series of labour legislations were enacted and progressively implemented most importantly the Decree of the 15^th of December 1952 instituting the labour code overseas. This was far from just hope for the masses but was regarded as salvation to working group.

Another form of labour came up which was force labour were people were transported from one country to another to work against their will. This system was encouraged by the existence of slave trade which many Cameroonians (Africans) were practicing this form of force labour was known as slavery and slave trade which did not consider the protection of workers rights against wrongful dismissal due to the lack of National and International Conventions aimed at protecting workers rights since there was no payment for any work done. This force labour continued until the coming of the Germans and later annexation in 1884 to 85when they brought in a hidden agenda on the bases of respecting Berlin Conference[3] aimed at the abolition of slave trade and force labour which they failed to respect. Force labour was introduced by the German for much work done and little or no pay in their plantations. By the end of the 19th century, international communities saw the effect of force labour on the people and encouraged them to join trade unions and the right to strike as a means of protecting their rights. After the independence of Cameroon, the labour code of overseas adopted by her colonial masters was maintained till the adoption of the first 1969 code which was later modified by the 1974 and then 1992 which brought more protection of the labourer. Time memorial employees were obliged to undergo terrible labour conditions reasons why the state through legislations introduced favorable working conditions to every employee. Since then, no one looks at labour again to be a punitive activity but rather a means to meet up with human needs and this alone attracted respect of the right of the labourer. Given the fact that labour is a fundamental aspect and an invaluable commodity in the growth of an economy, it must be effectuated in the full respect of humanity with dignity.

 A contract of employment is a contract which involves two parties, the employer and employee. The employer is free to terminate the contract of his employee with reason. at one time, ILO was adopted Article 7 of the ILO convention for the Termination of Employment Recommendation clearly states that the employment of a worker shall not be terminated for the reasons related to the workers conduct or 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. Despite the putting in place of international and national regulations and institutions(courts) to protect workers’ rights in Cameroon like the Labour Code, the constitution, International Labour Organization (ILO), Universal Declaration of Human Right (UDHR), International Convention on Economic Social and Cultural Rights(ICESCR) to ensure a policy of fair dismissal, Cameroon is still in full practice of at will termination of employment contracts by the employer contrary to the laws and at the detriment of the worker. The protection of workers was developed to protect workers against wrongful or unfair dismissal.

   Before the Industrial Relation Act 1971[4], the legal safe guard for ordinary employees against unreasonable and arbitrary dismissal at common law was minimal[5]. The common law viewed employer and employee as free and equal contracting parties, ignoring the obvious discrepancy in their bargaining power and the fait that the employment relationship provided income to a family unit for one party and constituted a cost of production or service for the other. Hence, as long as proper contractual notice of termination was given[6], the employer was free to dismiss an employee for whatever reason he wished with no obligation to reveal his reason for dismissal to the employee much less to justify it.

 A wrongful dismissal occurs when an employer either (i) terminates an employee without cause but fails to provide the employee with sufficient notice of dismissal or (ii) terminates an employee for cause without providing any notice of dismissal in circumstances when the employer did not have just cause to dismiss.

            The main objective of labour law has always been to regulate the power of imbalance that exist in the economic sphere between the employer and the employee. In this light, the labour law confers certain rights on the employee and equally some duties on the employer.[7] Nonetheless, the wrongful termination of employment contract by employer is the main point in this research.[8] According to Hugh Collins, the power to dismiss presents the height of an employers superior power over the employee. Normally, the employer and the employee must notify each other before terminating their contract of employment. This is to enable the employer look for replcaement of the employee and for the employee to look for another job elsewhere. Thus the wrongful termination of employment contracts deprives the employee of their major source of income.

            Other international bodies such as the European Union cluster of fundamental rights in it section 30 states that workers have the right to protection against unjustified dismissal in accordance with the community law and with national laws and practice.[9] This is also echoed in the article 4 of the UDHR on servitude and slavery. Though the Cameroon labour code of 1992 had laid down rules ratified conventions such as the 158 convention of the international labour organization to protect the workers in the case of termination of employment contract, the work is completely protected. The said protection is limited in its application since the worker still faces cases of wrongful dismissal and the code stands helpless as in most cases its as the code that gives the employer grounds on which he performs this wrongful dismissal by providing the employer with justifications to live actions.

1.2 Statement of the problem

Although holding that the failure of the employer to observe procedural due process does not render the dismissal ineffectual of an employee or worker, provided that there are just or authorized causes, the problem in this research work is that wrongful dismissal is a breach of contract in the way a worker is dismissed, especially without being given proper notice or without being given following the procedures in his or her contract. The problem in this context become more complicated if the employer fired the worker in a way that was cruel or humiliating and because of this, the employee suffered mental distress. Such circumstances posed a serious problem and ascending to the point of view of the researcher render the employer liable.

1.3 Hypothesis

The research question as already seen is that wrongful dismissal is a breach of contract in the way a worker is dismissed. The techniques used in protecting the right of the workers against wrongful dismissal some of which are the technical qualification of an employee, the Cameroon labour code, Cameroon constitution amongst others shall be used in this research work to solve this problem of wrongful dismissal. The employee as a result of the breach of contract as a result of wrongful dismissal will come up with defenses which he or she can use against the employer

1.4 Research question

The research question in this work is divided in to main research question and specific question as follows,

1.4.1 Main research question

• What are the mechanisms used by the Cameroon government to protect its workers against wrongful dismissal?

1.4.2 Specific research question

• Are the laws put in place by the ILO and labour code respected?
• Those the worker have the right sure his employer against wrongful dismissal?

• What are the duties of the worker?

• What are the possible solutions these problems?

   1.5 Objectives of the study

The objective of the study is divided in to two that is main objective and specific objectives.

   1.5.1 Main objectives

• The main objective of the study is to take stock of the current law of unfair dismissal, to examine the existing statutory provisions and describe and summaries to what extent the law have protected the interest of the workers in case of wrongful dismissal.

 1.5.2 Specific objectives

• To provide a framework with which to analyze and prepare wrongful dismissal cases
• To assess the likely results should such cases reach that stage
• To examine possible grounds for appeal form tribunal decisions
• To minimize the risk of giving misleading decisions upon which this framework is based is subject to correction

[1] The 1971 industrial relation act

[2] Sonu kumar (2012) labour legislation

[3] The Berline West African Conference of 1884 to 85

[4] ibid

[5] A selected group of people such as office holders for example police officers, hospital officials and university teachers enjoy a higher measure of job security owing to the countrys recognition of their rights to lengthy periods of notice and their willingness through the declaration remedy to tell the employer that these employees should be reinstated.

[6] The appropriate length of notice was determined either by the express terms of the contract, by implication for example from custom or fixed by the minimum standards laid claim in the case of Employment Act 1963 (now

[7] Brain langille and Patrick macklem (1990), the concept of labour law.

[8] Hugh Collins (1998), the Protection of Female Workers.

[9] The universal declaration of human rights (UDHR)