Sources of regulation
Termination of employment is regulated by the 1992 Labour Code (LC)[1]and the following orders and decrees of
the Ministry of Labour and Social Security of Cameroon:
- Order
No. 015/MTPS/SG/CJ of 26 May 1993 stating the conditions and duration of
the notice period;
- Order
No. 016/MTPS/SG/CJ of 26 May 1993 setting the terms for compensation and
calculation of severance pay;
- Order
No. 017/MTPS/SG/CJ of 26 May 1993 setting the terms for probationary period;
and
- Decree
No. 021/MTPS/SG/CJ of 26 May 1993 setting the terms for termination of
employment for economic reasons.
In 1988, Cameroon ratified
the ILO Termination of Employment Convention, 1982 (No. 158).
Scope of legislation
All workers are governed by the LC, except for employees in the public service,
members of the judicial and legal service, members of the armed forces and
national security personnel, prison personnel and auxiliary administrative
employees (sec. 1(3), LC).[2]
Contracts of employment
A contract of employment may be concluded for a specified or unspecified
duration.
A contract of unspecified duration is one whose term is not fixed in advance
and which may be terminated at any time by either of the parties, with notice
(sec. 25(1)(b), LC).
Contracts of specified duration are concluded for a maximum duration of
two years and may not be renewed more than once (sec. 25(1)(a), LC).
If the employment relationship continues after the second period of renewal,
the contract becomes one of unspecified duration (sec. 25(3), LC).
These restrictions on contracts of specified duration
do not apply to temporary employment to replace a worker, employment to complete
a task within a specified period which requires additional manpower, occasional
or exceptional work, seasonal work or urgent tasks for reasons of public
security.
The LC defines engagement for a trial period as a period of assessing the
quality of the work and output of the employee and gives the worker the opportunity
to assess the working conditions, lifestyle, remuneration, occupational safety
and health and the atmosphere at the workplace (sec. 28(1), LC).
This type of contract for probationary purposes is to be in writing. Order
No. 017 of 1993 sets up the duration of the trial period, which can last
fifteen days to 4 months, depending on the professional category of the worker.
The renewal is authorized once. The probationary period then may not exceed
six months, including renewal. However, the probationary period for managerial
personnel may be extended up to eight months. The extension of a contract
beyond this period without the conclusion of a new contract transforms it
into a contract of indeterminate duration (sec. 28(5), LC).
Termination of employment
A contract of employment may be terminated, other than at the initiative
of the employer, in several ways:
- by
mutual agreement;
- because
of protracted illness;
- upon
the death of the employee; or
- by force
majeure.
Dismissal
A contract of specified duration may be terminated before its expiry only
on the grounds of serious misconduct, force majeure or by written
agreement of the parties (sec. 38, LC).
The termination of a contract of employment of unspecified duration may
be terminated at any time at the will of either party, provided the notice
is given in writing to the other party, stating reasons for the termination
(sec. 34(1), LC).
In some enterprises, the internal regulations stipulate that contracts of
unspecified duration may be validly terminated for reasons relating to the
conduct of the worker or for reasons relating to requirements of the undertaking.
Professional inaptitude may justify termination and may manifest itself in
various ways including through the worker’s incompetence, poor service, inadequate
output, or slowness in the performance of the worker’s tasks.
Under secs. 36(2) and 37(1) of the LC, serious misconduct justifies
the termination of a contract of unspecified duration without notice. The
courts consider several attitudes as misconduct which justifies dismissal: acts of insubordination
or insolence, unjustified absences, acts of negligence and carelessness,
the contravention of professional obligations, and fraudulent or illicit
acts causing harm to the employer.
Misunderstanding or the impossibility of collaboration between a worker
and employer or a person in the management of the undertaking is also grounds
for dismissal, provided that these accusations are substantiated by objective
elements.
Dismissal effected without a valid reason, and dismissal because of the
opinions of the worker, his or her membership or non-membership of a trade
union (sec. 39(1), LC) or by an employer seeking to avoid legal or
contractual obligations (for example, dismissal following a claim for overtime
pay),[3] is considered wrongful. Moreover, certain
categories of workers enjoy special protection.
The dismissal of a workers’ representative is subject to prior authorization
of the labour inspector (sec. 130, LC). The aim of such authorization
is to ensure that the dismissal is not motivated by the activities of the
workers’ representative in the exercise of his or her functions. The absence
or refusal of such authorization results in the reinstatement of the worker
(sec. 130, LC).
A pregnant woman may not be dismissed because of her pregnancy. Similarly,
during maternity leave, the employer may not terminate her contract of employment
(sec. 84(1), LC).
The job of a worker suffering from a non-occupational disease is protected.
The employer may not replace him or her before six months have passed.
Workers suffering from an occupational disease or accident are not covered
by the six-month limit mentioned above. Their employment is protected during
the entire duration of their illness or period during which they are indisposed.
The employer may not terminate their contracts or permanently replace them.
The LC provides for the termination of employment for a substantial modification
of the contract (sec. 42(2), LC). Dismissal which is ordered following
a substantial modification to the contract of employment is not wrongful
if it is done in the interests of the undertaking (sec. 42 (2-a),
LC). This rule applies only if the employer proposes a substantial modification
of the contract and the worker refuses. If termination follows, it is to
be attributable to the employer and therefore the worker is entitled to notice
and severance pay. Furthermore, if such modification is not justified by
the interests of the undertaking, the termination of the contract will be
considered wrongful and the worker will be entitled to damages. This new
rule covers cases wherein the employer forces an employee to resign (“constructive
dismissal”) by setting less favourable working conditions for him or her.
The most important amendments made to the LC in 1992 are related to the
conditions and a broader definition for termination of employment for economic
reasons
Pursuant to sec. 40(2) of the LC, termination of employment for economic
reasons means any dismissal effected by an employer for one or several reasons
which are unrelated to the worker, such as the abolition of posts or conversion
of jobs, or a modification of a contract resulting from economic difficulties,
technological changes or internal restructuring.
Notice and prior procedural safeguards
The termination of a contract of unspecified duration is subject to written
notice given in advance by the party taking the initiative, except in the
case of serious misconduct (sec. 34(1), LC). The notice period starts
to run from the date of notification. It is not subject to any condition
precedent or condition subsequent. Under no circumstances may it be set against
the leave period of the worker.
The rules on the duration of the notice period are prescribed in Order No.
015 of 1993, which was issued by the Ministry of Labour. These
rules have regard to the worker’s length of service and the occupational
group to which he or she belongs. They provide for periods of notice as follows
which differ according to the professional category of the worker:
- 15
days or a month for workers with less than one year of service;
- one
to three months for for workers with one to five years of service; and
- two
to four months for workers employed for more than five years of service.
For the purpose of seeking other employment during the period of notice,
the worker must be allowed one day off each week (with full wages), which
he or she may take all at once or one hour at a time as he or she prefers
(sec. 35(2), LC).
If the employer fails to give notice, he or she is obliged to pay the worker
compensation corresponding to the remuneration and any other advantages to
which the latter would have been entitled during the notice period (sec.
36, LC).
As regards termination of employment of a workers’ representative, the employer
has to obtain the prior authorisation of the labour inspector. The period
in which the decision of the inspector is due is one month. Workers’ representatives
enjoy this protection for up to six months after the expiry of their terms
of office, and candidates to the office of workers’ representatives up to
six months after the date of the notification of their candidature (sec.
130, LC).
Even if the inspector gives his or her authorization
for dismissal, the workers’ representative may in any event bring an appeal
before the competent court in order to ascertain the validity of the reason
given for dismissal.
Sec. 40(3) of the LC lays down mandatory and prior conditions for
a termination of employment for economic reasons to be valid. These prior
conditions constitute a real obligation to enter into negotiations.
The LC requires an employer who is contemplating termination of employment
for economic reasons to meet with the workers’ representatives and to discuss
with them, in the presence of the labour inspector, all measures to avert
termination. These include the reduction of hours of work, working on a shift
system, part-time work, lay-offs, readjustment of allowances, compensation
and benefits of all kinds, and even the reduction of wages, if unavoidable.
The duration of such negotiations should not exceed 30 days.
If a worker refuses to comply with the measures negotiated, he or she may
be dismissed with payment for the notice period and, if he or she qualifies
for it, a severance allowance (sec. 40(5), LC). The statute authorizes
termination based on refusal.[4]
If the above-mentioned negotiations or measures adopted do not produce the
expected results, the employer is authorized to proceed with the dismissals
following the procedure established by the LC and Decree No. 021 of 1993. He or she must decide on
the order of dismissals, taking into account the skills of the workers, their
length of service in the undertaking and family responsibilities, and these
criteria should be considered cumulatively and not alternatively.[5]
If no agreement is reached, the employer must inform the staff delegates
in writing of the steps taken for dismissal. The staff delegates must respond
to the written notice in eight days. The employer’s communication and the
workers’ representative’s response must then be submitted without delay to
the local labour inspector for arbitration (sec. 40(6)(d), LC).
A worker who has been dismissed for economic reasons will continue to enjoy
priority of rehiring for two years if workers are recruited for the same
type of job in his or her former undertaking. A worker who refuses a job
loses this right.[6]
Severance pay
Apart from instances of serious misconduct, any worker who is dismissed
after working for at least two years in the same undertaking is entitled
to severance pay which takes into account his or her length of service (sec.
37(1), LC). The terms and conditions for the award of such an allowance
and the calculation of severance pay are laid down in Order No. 016 of 26
May 1993 issued by the Ministry of Labour. For the purpose of calculating
length of service, the following periods are taken into account: paid leave,
exceptional permission for paid or unpaid leave, periods during which the
contract has been suspended, and legal periods of internship and professional
training.
Unless there are more favourable provisions in an
applicable collective agreement, individual contract of employment or specific
text, severance pay is equivalent to a percentage of the average monthly
wages during the last 12 months preceding the dismissal for each year of
service in the undertaking. The rates applicable are fixed as follows:
- from
the first to the fifth year: 20 per cent;
- from
the sixth to the tenth year: 25 per cent;
- from
the 11th to the 15th year: 30 per cent;
- from
the 16th to the 20th year: 35 per cent;
- from
the 21st year: 40 per cent.
For the purpose of the calculation, partially completed years are also taken
into account on a proportionate basis.
Avenues for redress
A dismissed employee may seek relief from a judge (sec. 39, LC).
The judge who is called upon to decide on the dismissal must examine the
facts of the case and the validity of the reasons given for the dismissal.
The judge must also ascertain whether the various procedures prescribed by
law have been observed.
In all cases of dismissal, it is up to the employer to show that the grounds
for dismissal alleged by him/her are well-founded (sec. 39(3), LC).
A wrongful termination of a contract may give rise to damages (sec. 39,
LC). The LC amends the factors which the court must take into account in
order to set the amount of damages. If the responsibility rests with the
employer, the LC repeals the element of “common practice” and considers only
the nature of the employment, length of service, the age of the worker and
any accrued rights (sec. 39(4)(b), LC).
Damages for wrongful dismissal are not to exceed a maximum of one month’s
wages for each year of service with the undertaking, and the total awarded
should not be less than three months’ wages. The wage to be taken into account
is the average monthly gross wages in the last 12 months of service of the
worker. This minimum and maximum limit of damages prevents the existence
of too great a discrepancy between the amounts allocated by the various courts
of law.
In the event of a lawful dismissal, which has not been ordered according
to the prescribed procedures, the maximum level of damages is one month’s
wages (sec. 39(5), LC).
Further information
[1] Act No. 92/007 of 14
August 1992 to promulgate the Labour Code.
[2] Unlike
the former Code, the 1992 Labour Code applies to workers governed by certain
rules of custom and who perform their services within the traditional family
framework.
[3] P.-G. Pougoué: Droit
du travail et de la prévoyance sociale au Cameroun (Paris, Rescue
Afrique, 1988), p. 161.
[4] P.-G. Pougoué:
“Le petit séisme du 14 août 1992”, in Le nouveau Code du travail du
14 août 1992 (Yaoundé Puc., 1994), p. 17.
[5] J. Mbendang
Ebongue: “Libres propos sur la loi no 92/007 du 14 août 1992
portant Code du travail au Cameroun”, in Recueil Penant. Revue de droit
des pays d’Afrique (EDIENA), Jan.-Apr. 1996, No. 820, p. 46.
[6] Sec. 4 of Decree
No. 021/MTPS/SG/CJ of 26 May 1993 setting
the terms and conditions of termination for economic reasons.
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