Dichotomy between the Cameroonian Labour Code and Employees’ Right to Health: The Case of Cameroon Tea Estate
Keywords:
Labour code,employees,right,health,enterprise,law,labor,accident,employmentAbstract
The Cameroonian Labour Code is instrumental in the protection of employees’ rights in an enterprise, but none of these rights is as important as the right to health. Unfortunately, despite the importance accorded to employees’ right to health, the Code does not spell out what therefore would amount to this right. Thus, should an employee encounters an accident out of the premises of the enterprise and or on his way to spend a recognise event with family, what says the law as to the definition of such a situation. It will not amount to work place accident or professional illness, then how does the law qualify such a case? This therefore leaves the employers to toast employees as toys since there is no definition to such situations. Thus, the preaching of the Code is not what takes place in the field and on daily bases; employees because of the conduct of the employers to the protection of their rights dismiss themselves from work.
References
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8. Léon NOAH MANGA, Practique des relations du travail au Cameroun par l’exemple et les chiffres, p. 119.
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10. Luc Van Gossum (2000), Les accidents du travail, De Boeck Université, 5thédition, p. 49.
11. Public holidays, some of which are; 1st January, 11th February, 1st May, 20th of May, 25th December, etc.
12. Occupational disease means a disease contracted out of or in the course of work and characteristic of that work or directly related to the risks peculiar to that work.
13. Law No. 92/007 of 14th August 1992 instituting the 1992 Labour Code of Cameroon.
14. Public holidays recognised by the state and the enterprise such as Christmas.
15. Medical report from the Mbouda District Hospital where first aid was taken, and the Mbingo Baptist Hospital, corroborated by her medical certificate and booklet.
16. Section 33 in harmony with section 98 of the Code.
17. Jonathan Montgomery Op.cit note 2, p. 23.
18. Civil Appeal No CASWP/14/76 CA (Unreported).
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20. A builder building an extension to a house, a watchmaker repairing a watch or a plumber mending a tap is, however are engaged on contract for services - independent contractor. The contractors labours for not a long period of time, but for a short time and the hirer is more interested in finished product or service. IJHML (2018) 55-68 © Law Journals 2018. All Rights Reserved Page 66
21. Employment injury means an injury or a disease arising out of or in the course of an industrial accident, or an occupational disease, including a recurrence, relapse or aggravation. See A -3.001-Act Respecting Industrial Accidents and Occupational Diseases, Quebec, (2018) Op.cit note 12, p. 6.
22. Ibid, p. 15.
23. Deborah J. Lockton (1999), Employment Law, Macmillan Press Ltd, 3rd edition, p. 15.
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26. Vicarious liability.
27. Norman M. Selwyn, Op. cit note 31, p. 32.
28. Deborah J. Lockton, Op. cit note 29, p. 15.
29. Self-employed are responsible for their own contributions and these payments only give limited rights to certain welfare benefits and do not entitle the contributor to job seekers allowance or SSP, while as per employees, their contributions are assessed on th e employee’s earnings and should be deducted at source by the employer.
30. They must make their own arrangements under Schedule D, self -employed earners pay a flat rate Class 2 contribution, and in addition a Class 4 contribution based on the gains or profits derived which are chargeable to income tax under Schedule D, he needs not pay levy for industrial training purposes, he may have to charge VAT on services supplied.
31. See Jennings V Westwood Engineering Ltd, (1975) IRLR 254, see also Construction Industry T raining Board V Labor Force Ltd (1970) 3 ALL ER 220, 114 Sol Jo 704.
32. The employer has to deduct PAYE income tax under Schedule E, needs to pay levy for industrial training purposes, should not charge VAT on services supplied, is not responsible for his own income tax and does not pay insurance stamps.
33. See Pennington V Minister of Social Security; see also Norman M. Selwyn, Op. cit note 35, p. 32.
34. Deborah j. lockton, Op. Cit note 29, p 16. Some of these include the right to be unfairly dismissed, statutory s ick pay, the right to redundancy payment, statutory maternity pay, security of employment after maternity leave, etc., wherein an independent contractor has no such protection, except sex discrimination and race relations.
35. Ibid pp. 15, 50 and 51.
36. Gérard Ly on-Caen & Others (1994), Droit du travail Précis, Droit Prive, Dallox, 17th édition, p. 164.
37. Ibid p. 171.
38. Civil Appeal No. CASWP/17/76 (Unreported).
39. Gerard Lyon -Caen, Op. cit note 44, p. 173.
40. Simon Tabe T. (2000), Op. cit, note 32, p. 39.
41. See Section 1 of Order No. 015/MTPS/SG/CJ of May 1993 relating to the Conditions and Duration of the Notice Period.
42. Six (6) months or more.
43. Twenty-four (24) hours. Though there are varied debates as to the time limit to inform the employer. An employee may have a common ac cident where there is communication problem or no network at all or too far from the employer or any person who can communicate the employee message to the employer. The only remedy for that employee is to first have immediate treatment before endeavouring to reach the employer. Thus most English authors talk of 7 days, which my opinion is indifferent from theirs, See Deborah J. LocktonOp.cit note 43, p. 51.
44. International Labour Organization (2000), Termination of Employment Digest, 1st edition, Geneva Switzerland, p. 87.
45. When this happens, the employer pays the employee his SSP and then recoups the payment via his National Insurance contribution. The English Statutory Sick Pay Scheme introduced by the Social Security and Housing Benefits Act 1982, with the aim to pass the administration of the old sickness benefit on to the employer. Wherein the employer pays the employee his statutory sick pay and recoups those payments from via his National Insurance Contributions. By the IJHML (2018) 55-68 © Law Journals 2018. All Rights Reserved Page 67 Statutory Sick Pay Act 1994, only those employers who pay less than £2000 in the National Insurance contributions can now recoup such payments.
46. See Regulation 7 of Statutory Sick Pay (SSP) (General) Regulations 1982 (as amended) of the European Union (EU).
47. Deborah L. Lockton Op.cit note 51, p. 51.
48. Entitlement includes the right to a system of health protection that gives everyone an equal opportunity to enjoy the highest attainable level of health.
49. Section 156 (2) (3) of the Social Security Contributions and Benefits Act 1992 (otherwise known as SSCBA 1992).
50. Léon NOAH MANGA (Administrateur Principal du Travail), Pratique des relations du travail au Cameroun par l’exemple et les chiffres, Saint -Paul Yaoundé, p. 120.
51. Section 32 (C) of the Labor Code.
52. Lammy Better (1993), ‘’International Labor Law, Selected Issues’’ Netherlands, Kluwer Law and Taxation Publishers, pp. 121-122.
53. Section 33 of the Code, also Marrison V Bell (1939), 2KB 187, (1939), 1ALL ER 745; Orman V Saville Spotswear Ltd (1960) 3ALL ER 105, (1960) 1WLR 1055. And Simon Tab e T. (2001), ‘’Enhancing the protection of female workers under the 1992 Cameroonian Labor Code” Annals, Faculty of Law and Political Science, University Dschang, p. 173.
54. Petrie V Mac Fisheries Ltd (1960), 1KB 258, (1939) 4ALL ER 281.
55. Deborah J. Lockton Op . Cit note 55, p. 50.
56. (1982) IRLR 183.
57. See ANDERMAN, S.D, (1993), Labor law: Management Decisions and Workers Rights, 2nd ed., Butterworths London, p. 46.
58. (1983) ICR 416.
59. Deborah J. Lockton Op. Cit note 63, p. 50.
60. Appeal No. BCA/2.L/98 (unreported).
61. Simon Tabe T. (2000), Op.cit note 48, p. 39.
62. Carlson Anyangwe (1983), “Wrongful Dismissal: The Cameroon Development Corporation V D.N. Embola”, Cameroonian Law Review, 2nd Series, No. 26, p. 26.
63. International Labour Organisation, Op.cit note 52, p. 87.
64. Norman M. Selwyn Op.cit note 41, p. 186.
65. Carlson Anyangwe, Op.cit note 70, p. 26.
66. Simon Tabe T. Op.cit note 69, p. 40. In all, the gravity of the misconduct is to be deciphered by the courts. The courts take into account, the place and time of the events, the repet itive nature of the event or fault and the personality of the worker who committed the fault. See Affaire Commune de Plein Exercise de Nkongsamba C/ Mbatchou Adolphe, Cour Supreme, Arêt N0. 35/S du 21 Fevrier 1980, Revue Camerounaise de Droit, N0 27, 1984, P. 118.
67. The case of Pamol (Cameroon) Ltd V Thomas Obi and 3 others, civil Appeal No. CAS WP/14/76 (unreported).
68. Civil Appeal No. CASWP/14/76 (unreported).
69. Civil Appeal No. CASWP/32/78 (unreported).
70. The case of Elong C. Martin V Pamol (Cameroon) Ltd (Civil Appeal No. CASWP/21/76 (unreported), also the English Law in Chitty on Contracts (specific contracts), 22nd ed. Para 1135, at p.494.
71. Civil Appeal No. CASWP/12/76 (unreported).
72. Civil Appeal No. CASWP/23/76 (unreported).
73. Common sense proves the fact t hat every dismissal by ‘air giver’ to the ‘air taker’ in employment contract is wrongful, until he justifies his reasons for dismissal.
74. Civil Appeal No. CASWP/30/76 (unreported).
75. Simon Tabe T. Op.cit, note 71, p. 40.
76. International Labor Organization, Op.ci t note 71, p. 87.
77. Chris Turner (2010), Key Facts Contract Law, Hodder Education, 4th edition p. 12.
78. Cameroon Tea Estates Djutissa.
79. Acceptance of dismissal can be construed from the conduct of the employer as justified in the case of Brogden V Metropolitan Railway Co (1877).
80. Day Morris Associates V Voyce (2003).
81. Norman M. Selwyn Op.cit note 72, p. 186.
82. For gross misconduct, wilful refusal to obey a law, and reasonable order, gross neglect, dishonesty, and so forth. IJHML (2018) 55-68 © Law Journals 2018. All Rights Reserved Page 68
83. Norman M. Selwyn Op.cit note 89, p. 187.
84. See Elliott V Waldair (Construction) Ltd (1975), IRLR 102, Harvey V Yankee Traveller Restaurant (1976) IRLR 35.
85. Deborah J. Lockton, Op. Cit note 67, p. 158.
86. (3964/72) IDSSupp 2.
87. Norman M. Selwyn (1982), note 91, p. 202.
88. Robertson V Securicor Transport Ltd (1972) IRLR 70.
89. Norman M. Selwyn Op. cit, note 91, p. 204.
90. See Western Excavating (ECC) Ltd V Sharp (1978QB 761, (1978) ICR 221, (1978) IRLR 27, CA, Hill (RF) Ltd V Mooney, Industrial Rubber Products V Gillon (1977) IRLR 389, 13ITR 163.
91. In London Transport Executive V Clarke, (1981) AC ICR 355, (1981) IRLR 166, Clarke wanted to go to Jamaica on extended unpaid leave, but the employer refuse to give him permission as he had already exhausted his entitlement under the rules. When he asked what would happen if he went without permission, he was told that his name would be removed from the books. Nevertheless, he went to Jamaica, stayed there for seven weeks, and on his return, he submitted a medical note, which the industrial tribunal viewed ‘with some surprise’. While he was away, the employers wrote to his home address, stating that if no reply was received within two weeks (that is 14 weeks), it would be assumed that he did not wish to continue his employment, and eventually his name was removed from the books. When he returned from Jamaica, he applied for his job back, and when this was refused, he claimed he had been unfairly dismissed. For the employers, it was argued that the applicant has ‘resigned’, but this view was rejected by the courts. Thus, Clarke ha d been dismissed, and had not resigned. However, the Court of Appeal then went on to fine that the dismissal, in the circumstances, was fair See Section 55 (2) (C) of the Employment Appeal Tribunal (EPCA) of 1978 as amended by the 1980 Law, see again Norma n M. Selwyn ibid note 90, pp. 209-210.
92. London Transport Executive V Clarke, (1981) AC ICR 355, (1981) IRLR 166.
93. Marshall V Harland and Wolff Ltd (1972) 2 ALL ER 715, (1972) ICR 101, (1972), IRLR 90.
94. Maxwell V Walter Howard Designs Ltd (1975) IRLR 77.
95. (1977) ICR 260, (1976), IRLR 361, 11 ITR 289.
96. Norman M. Selwyn op. cit, note 97, p. 211, also in Hart v Marshall $ Sons (Bulwell) Ltd (1978) 2 ALL ER 413, (1977) ICR 539, (1977) IRLR 51.
97. East Lindsey District Council V Daudney (1977) IRLR 181, 12 ITR 359.
98. Michael A. Yanou (2012), Labor Law: Principles and Practice in Cameroon, Langaa RPICG, Research and Publishing Common Initiative Group Mankon Bamenda, pp. 112-113.
99. Sub 2 of Section 104 says a decree shall determine the organization and functioning of such services.
100. As in the case of China International Water & Anor. V Ndinwa Wilfred, BCA and Section 17 of Law No. 77/11 of 13 July 1977 relating to NSIF.
101. Michael A. Yanou, Op.cit note 112, p. 122.
102. Deborah J. Lockton Op. Cit note 93, p. 15.
103. Norman M. Selwyn Op. Cit note 110, p. 126.
104. Jean-Pierre Laborde, Droit de la securité sociale, Thémis, Droit Public, puf, pp. 268-287.
105. Section 33 of the Labor Code.
106. See Sections 131-156 of the Labor Code.
107. Deborah J. LocktonOp.cit note 112, p. 51. Cite this Article Nana Charles Nguindip, Rodrick Ndi . Dichotomy between the Cameroonian Labour Code and Employees’ Right to Health: The Case of Cameroon Tea Estate . Law. April 2018; 1(2): 55–68p.
