Sources of regulation
The Labour Act, 1990 (LA), is the major source of law in
Gambia in relation to termination of employment at the initiative of the
employer.
Scope of legislation
The following categories of workers are excluded from all
of the provisions of the LA: civil servants, members of the naval, military,
prison and security services, police officers and domestic workers (sec.
2(2), LA).
The following workers are excluded from the provision of
the LA dealing with termination of employment: any employee over 55 who
has reached a contractual retirement age; any employee over 65; a probationary
employee; and any employee whose dismissal is certified as being in accordance
with the national interest by the Secretary of the Cabinet.
Contracts of employment
Contracts of employment may be for a fixed term or for
an indefinite period. A fixed-term contract will expire on the specific
date indicated in the contract or when the specific task, piece of work
or journey to which the contract relates has been finished (sec. 83,
LA). However, if the specific period, task, piece of work or journey expires
or is performed, but the employment continues without protest for four
weeks thereafter, the contract is deemed to have been immediately renewed
for an indefinite period (sec. 83(4), LA). Probationary periods
are permissible, but may not exceed six months.
Termination of employment
The contract of employment can terminate, not at the initiative
of the employer, in certain circumstances, including by:
- employee
retirement;
- the
expiry of a fixed-term contract; and
- the
completion of the task for which the contract was concluded.
Moreover, unless the contract expressly provides to the
contrary, the death of the employer will cause the contract of employment
to terminate after one month from the date of such death, unless the contract
has been lawfully terminated sooner. The personal representative of the
deceased shall be deemed to be the employer during such time as the contract
continues (sec. 80, LA).[1]
According to sec. 80(2) of the LA, the compulsory
winding-up of any company or organization shall operate to terminate any
contract of employment with that company or organization, but shall not
prevent renewal of that contract by the receiver or other person carrying
on the business of the company or organization. If such contract is renewed
within two months of such termination, it shall be deemed not to have been
terminated.
Where a trade or business is transferred in whole or in
part, save by a receiver upon the insolvency of the business,[2] the contracts
of employment of all employees at the date of transfer shall automatically
be transferred to the transferee and all rights and obligations between
the employer and the transferor shall continue to apply as if they had
been rights and obligations between the employee and the transferee (sec.
74(2), LA).
Dismissal
An employer is required to justify a dismissal of his or
her employee. Dismissal will be justified in cases of incapacity or misconduct,
such as:
- wilful
misconduct;
- omission
or disobedience by the worker which, by its nature and the circumstances
in which it occurs, is such that no reasonable employer would expect
the employment to continue;
- serious
or persistent insubordination;
- fraud
or other serious dishonesty causing the employer substantial loss;
- incompetence;
- a
single long period of absence without substantial reason;
- unreasonable
refusal to accept other suitable employment in cases where the enterprise
needs such redeployment; or
- wilful
destruction or obstruction of safety equipment available for use (sec.
116, LA).
Summary dismissal is allowed in the following circumstances:
- when
the employee is guilty of serious misconduct;
- where,
within three months of engagement, the employer has reasonable grounds
to believe that the employee lacks the skill or ability which he or she
has represented himself or herself to possess and which the law requires
should be possessed by an employee for performing the specified work;
or
- where
the contract of employment is void for misrepresentation (sec. 112,
LA).
Where the employer does not provide reasons for dismissal
when requested by the employee, such dismissal is deemed unfair (sec.
114(1), LA). Where such a dismissal takes place before completion of
any period wherein wages become due, the employee shall be paid a proportionate
part of the wages then due (sec. 112(2), LA).
Under sec. 117 of the LA, the following constitute
invalid reasons for dismissal:
- pregnancy;
- the
fact that the employee has taken maternity leave;
- participation
in trade union activities, including the organization of lawful industrial
action outside working hours or, with the express consent of the employer,
within working hours;
- membership
of a trade union;
- refusal
or indication of an intention to refuse to join any organization of workers;
- a
period of absence by reason of illness or injury of less than two weeks
unless the employee, on the reasonable request of the employer, fails
to supply reasonable independent evidence that he or she was incapacitated
for the whole period;
- instigation
by the police of investigations involving the employee concerning a matter
not connected with suitability of the employee for a particular employment;
- a
single instance of absenteeism, not being a long unexplained absence
so as to justify summary dismissal;
- taking
of steps by the employee to enforce any right granted or any obligation
imposed upon the employer;
- refusal
by the employee in any circumstances, save those of grave national emergency
or of grave emergency applicable to the employer, to work for more than
the number of hours permitted by any rule of law or international convention;
- any
political activity engaged in or political opinion expressed by the employee;
and
- the
dismissal of an apprentice, unless the dismissal is necessitated by personal
injury or wilful act by the apprentice, or the employer is going out
of business.
When collective dismissal is being considered, the employer
has to provide the relevant trade unions with written information concerning
the circumstances giving rise to the need for dismissal, possible alternative
options and whether they are feasible, whether redeployment or retraining
has been considered, whether it is reasonably possible that a certain number
of employees might be re-employed during the next year, and the principles
which will be taken into account when deciding on whom to dismiss (such
as “last in, first out”). The employer must then consult with relevant
trade unions (sec. 119, LA).
The provisions governing collective dismissal shall not
apply to employers with five or less employees in all his or her establishments,
or where a collective agreement governs the conditions of collective dismissal
(sec. 119(3), LA).
Notice and prior procedural safeguards
Notice is mandatory for all cases of dismissal except summary
dismissal. In cases where it is customary to employ individuals on a day-to-day
basis, notice shall be given at the end of the day (sec. 111(1)(a),
LA). This notice shall be deemed to have been given by specifying that
the contract will last for one (additional) day only. For all others, notice
periods are as follows:
- in
the case of an employee not employed on a day-to-day basis, but who has
been employed for less than one week’s continuous employment with the
same employer, 24 hours’ notice (sec. 111(1)(b), LA);
- in
the case of an employee with one week or more of continuous employment
but less than six months’ continuous employment with the same employer,
one week’s notice (sec. 111(1)(d), LA);
- in
the case of an employee with six months or more but less than six years
of continuous employment with the same employer, one month’s notice (sec.
111(1)(c) and (e), LA); and
- in
the case of an employee with six years or more of continuous employment
with the same employer, two months’ notice (sec. 111(1)(f),
LA).
- Under sec. 109, requirements for notice are excluded
in the cases of:
- any
employee who has attained the age fixed for retirement in accordance
with sec.
90[3] or the age of
65 years, whichever is earlier;
- termination
of the employment relationship during the probation period;
- any
employee whose dismissal is certified by the Secretary of the Cabinet
as being in the national interest;
- a
summary dismissal;
- the
payment of wages in lieu of notice (that is, a sum equivalent to the
basic wage payable for the period of notice (sec. 111, LA); and
- for
fixed-term employees, provided that the contract has not been renewed
immediately after expiration.[4]
Before dismissal takes place, the employee has to be informed
about the reasons for dismissal and has to be given a reasonable chance
to respond (sec. 113, LA). The dismissed employee has the right
to approach the Industrial Tribunal (sec. 121, LA). Such an employee
also has the right to be represented by a trade union representative (sec.
113, LA). Where the employer does not comply with these conditions,
it will constitute an unfair dismissal, unless the employer can prove that
the employee was aware of these rights (sec. 113(3) and (4), LA).
The Industrial Tribunal has jurisdiction over dismissal disputes (sec.
21(2), LA). Any party who is aggrieved by a decision may appeal to
the Supreme Court whose decision is final (sec. 43(1), LA).
Severance pay
In the case of summary dismissal, the employee must be
paid any remuneration or benefits accruing to him or her up until the date
of the dismissal (sec. 112(2), LA).
Avenues for redress
The Industrial Labour Tribunal has jurisdiction over all
types of dismissal claims (sec. 112, LA). Claims can be filed with
the Industrial Tribunal within six months from the date of dismissal. The
burden of proof rests with the employer (sec. 115, LA). Where the
employer cannot prove the reasons for dismissal, such dismissal will be
deemed unfair. In cases where no settlement is reached by the parties,
the Industrial Tribunal has jurisdiction to order reinstatement or compensation
or both. The Industrial Tribunal has the power to award such compensation
as it considers just and equitable, although this amount can be reduced
by reason of the conduct of the employee in contributing to his or her
dismissal or in failing to mitigate the loss he or she has suffered (sec.
123, LA). According to sec. 123(3), the court will also consider, inter
alia, other job opportunities available, the value of contractual benefits
to which the employee might reasonably have expected to become entitled
to had he or she not been dismissed; and the value of statutory rights
such as pensions or other accrued benefits.
Further information
[1] Such termination of employment would
only apply in cases where employment is of a personal nature and not
in cases where someone is employed by a company.
[2] The transferee will, in these circumstances,
not be liable for the debts of the insolvent undertaking.
[3] Sec. 90 stipulates that a term in a contract of employment, fixing
a retirement age for an employee at any age after reaching his or her
55th birthday, shall be valid and enforceable, and termination in accordance
with such provision shall not amount to a dismissal.
[4] It thus seems that the premature termination
of a fixed-term contract would also not require notice.
|
 |
|
|
|
