LABOUR LAW

Introduction:

Labour Law is that branch of law which deals with persons in their capacity as workers. As a
legal discipline, it can be broadly divided into individual employment relations and collective
labour relations. Historically, the relationship between master and servant was a generally of a
personal nature or nexus, the master often working alongside his journeyman or apprentice and
usually residing with him. All of this changed with the Industrial Revolution which brought in its
wake new productive techniques, machinery and a division of labour. The emergence of the
registered company with limited liability capital further isolated the worker from his employer,
the product, and the consumer making him an ‘exchangist’ whose labour was treated as a cost of
production.

Today, the employment relationship is essentially contractual on which the statutory regulation
operates in order to balance the interests of the parties. The twin principles of freedom of
contract and equality of bargaining have been the assumptions of contract namely that parties are
presumed to enter into agreements freely on the basis of equal bargaining power. Today it has
been recognized that equal bargaining power between individuals and businesses is rare, hence
legislative intervention to protect the weaker party (the worker) from undue exploitation by the
employer.

THE GAMBIAN LABOUR LAW

Gambian Labour Law is based on English common law, principles of equity and statutes of
general application, the Constitution of The Gambia 1997, the Labour Act 2023 and other
statutes eg the Children’s Act etc. Other sources include judicial decisions of the Gambian
Superior courts, Collective agreements, Rules of work (handbooks and other documentary record
containing terms and conditions of employment and custom.

Some of the institutions relevant to Labour Law in The Gambia include the following:

1. The Gambia Chamber of Commerce and Industry (GCCI)

2. The Alternative Dispute Resolution (ADR) Secretariat
3. The Labour Commissioner (the Department of Labour)
4. The Ombudsman
5. The Industrial Tribunal
6. Public Service Commission
7. The Social Security and Housing Corporation

CONTRACT
Employment is a relationship of service between an employer and employee based on contract.
A contract of employment is any agreement where one person agrees to employ another as a
worker or employee and that other person agrees to serve the other as an employee.

The contract of employment is the cornerstone of modern Labour law system. The existence of
the legal relationship presupposes the following:

1. voluntary consent of the parties to the creation of the relationship

2. Freedom of contract
3. Protection of applicants for employment against exclusion by reason of discrimination
4. The provision of the means by which the relationship may be terminated

The basic requirement for the recognition of an employer-employee relationship is the existence
of an enforceable contract of employment. Such a contract exists where there is offer,
acceptance, consideration, capacity and intention to enter into legal relations.

Offer and Acceptance

The offer here usually comes from the prospective employer and acceptance from the
prospective employee. An advertisement of vacancies or an unsolicited application for
employment is an invitation to enter into negotiations with a view to being offered an
employment. It is an expression of an intention to enter into a binding contract of employment.
Processes leading up to the offer of a contract may include written tests, personal or telephone
interviews, medical examinations, provision of references and in some cases letters of indemnity
or guarantee. A purported acceptance of an offer of employment will not bind the employer
unless and until all the stipulated conditions are fulfilled. See MAMADI JABBAI v. THE
GAMBIA RED CROSS SOCIETY (2002-2008) 2GLR 233

THE CONTRACT OF EMPLOYMENT AND DECENT WORK

The International Labour Organization’s concept of ‘Decent Work’ advocates provision of equal
opportunity for access to work for all persons under terms and conditions that promote freedom
of association, equity and equality of treatment at work, security and human dignity.

The yardstick for measuring their compliance are national laws, international labour standards
and other international instruments, regional instruments, codes of business practice for
multinational companies, national policies and internal work rules and collective agreements.

A typical contract of employment that can be said to have satisfied the decent work criteria and
therefore reflective of best practices will provide for decent working conditions, respect for
individual peculiarities, collaboration and flexibility, equality and non-discrimination,
opportunity for growth, fair and transparent methods for determining promotion and career
advancement, respect for freedom of association and collective bargaining, provision of fair and
timely opportunity for resolving disputes and respect for institutional processes including those
institutions for the resolutions of industrial disputes.

FORM

Generally, a contract of employment can be written or oral, partly one and partly the other. It
may even be inferred or implied from the conduct of the parties. Although the majority of
employment contracts are either expressed in writing or orally, the Labour Act S.53 requires the
contract of employment to be in writing and the employers to issue employees with letters
specifying the particulars of the employment.

LABOUR ACT:

See S.82: Types of Contracts:

2) a) Contract for an unspecified period of time

b) Contract for a specified period of time

c) Contract for a specific task

S.83: Nullity of provisions prohibiting trade union membership

S.84- Probationary period. Employment may be terminated without notice and without regard to
section 90 of the Act. For a skilled worker, the parties may agree on the duration of the
probationary period but the period shall not exceed 12 months. For a semi-skilled employee, the
probationary period shall not exceed six months while the probationary period for an unskilled
worker shall not exceed three months.

Skilled worker: here means an employee in an enterprise who through acquisition, programmed
or otherwise of knowledge, attitude and behaviour has special ability to do something. S.84(4) of
the Labour Act

S. 85: Particulars of Employment

Every employer is to give his employee a written statement of the particulars of employment
prior to or on the commencement of the contract not later than fourteen working days

The statement shall include the following; names and addresses of the employee and
employer, job category, title or description of work, date of commencement, provision for the
termination of the contract other than those provided by the Act, the rate of remuneration and
the method of calculating remuneration, the period of probation, if any, interval within which
payment is made, normal hours of work, any provision for sickness or holidays and payment
during those periods and pension rights other than those provided by the Act.
N/B. A Statement of the Particulars under S.52 does not necessarily constitute the entire
contractual terms between parties. In Systems Floors UK Ltd v. Daniel (1982) 1 CR 54 at 58,
the Court said:

it seems to us therefore that in general, the status of the statutory

statement is this: it provides very strong prima facie evidence
of what were the terms of the contract between the parties but
does not constitute a written contract between the parties nor are
the statements of the terms finally conclusive.

However, where there is an acknowledgement or a statement stating that the Statement of

Particulars constitutes the contract between the parties, the court is likely to give effect to the
agreement. This is so particularly as section 87(3) provides that the employee shall be given
48 hours to read and consult on the proposed employment contract before signing it.

S.87- Contract of Employment in writing

S.87 (2): Contract not in writing is enforceable by the employee but not by the employee but
where the omission is due to the willful act of the employee, the contract is enforceable by
either party.

CONTRACT OF SERVICE /CONTRACT FOR SERVICE: DETERMINING WHETHER

OR NOT THE EMPLOYEE –EMPLOYER RELATIONSHIP EXISTS:

Before rules regulating labour matters can apply to an individual or a situation, it has to be
established that there is a contractual relationship of employer and employee between the
parties.

Under the common law, an employee may be deemed to contract with the employer against
the background of a custom which is certain, notorious, reasonable prevailing in the
employer’s undertaking, trade and locality. In SAGAR .[Link] (1931) 1 Ch. 310, a
weaver was held bound by a practice providing for reduced wages in the event of faulty
work. However, it must be noted that custom is not to override an express term in the
contract.

However, in UAC Ltd v. JOHNSON (1935) 12 NLR 38, it was held that the onus is always on
him who seeks to take advantage of a trade custom to prove its existence.

Deciding whether a person is an employee or employer may be decisive in determining the

duties of the parties inter se, social insurance benefits (social security), vicarious liability and
personal tax liability. The regular worker enjoys some security because he cannot be
dismissed without notice (except for misconduct). See, STEVENSON, JORDAN HARRISON
LTD v. MACDONALD AND EVANS (1952) 1 TLR 101.
However, an increasing proportion of the workforce is employed in marginal, atypical, or
flexible forms of employment such as part time, temporary, agency employment. In such
cases, it may be difficult to determine whether or not a contract of employment exists. Under
the common law, the definition of the employee has been problematic. As Lord Denning
pointed out in Stevenson, Jordan & Harrison Ltd v. Macdonald and Evans supra, it is often
easy to recognize a contract of service but difficult to say wherein the difference lies. In
LONDON GENERAL CAB LTD v. IRC (1950) 2 ALL ER 566, drivers who had paid part of
their receipts to the owners of the cab were held for tax purposes not to be employed under
contracts of service. Vaisey J said, ‘it may well be that in one case, the driver is the agent of
the owner, in another case he may be the servant of the owner and the third case may be one
of simple bailment.

As stated earlier, it has to be established that a relationship of employer and employee exists
before labour rules can apply. This is often not easy. Consequently, the courts have devised
several tests to determine the distinction between contract of service (employment) and
contract for services (independent contractor) namely:

The Control Test

In Yewens [Link] (1880) 6 QBD 530, Bramwell B defined an employee as follows: ‘ a

servant is a person subject to the command of his master as to the manner in which he shall
do his work’. The right of the master to prescribe not only the end (the what) but also the
means (the how), the time (when) and the place (the where) is the essence of ‘the control
test’. The control test may not be suitable in certain situations e.g, train drivers, hospital
workers like doctors.

The control test is exercisable by disciplinary actions including dismissal. It remains

important but may not be suitable in the modern industrial society with its complexity. It may
not be applied in certain situations eg train drivers, hospital workers like doctors and other
highly specialized fields.

The Multiple Test

The inadequacy of the control test led to the development of other tests such as, the Multiple
test. This test gathers all the other tests in ascertaining whether a contract of service exists.
The Multiple test was laid down by Lord Thankerton in Short and Henderson (1946) 62 TLR
4267 and was applied in Morren v. Swinton & Pendlebury Borough Council (1965) 2 All ER
349. Lord Thankerton in Short v. Henderson supra referred to four indicia namely 1) the
power of selection 2) the payment of wages or other remuneration 3) the right of suspension
or dismissal 4) the right of control. The list is not exhaustive but a totality of the
circumstances and a balancing of the circumstances against each other would help in
determining whether a contract of employment exists. In Pendlebury’s case supra, a resident
site engineer was appointed and paid by the local authority but was selected by and worked
under the instruction of a firm of consultant engineers. The question for determination was
whether for purposes of superannuation, the engineer was an employee of the council: The
court applied the four indicia and held that although he was not subject to the direct control
of the council, the engineer was nevertheless the servant of that council.

Economic Reality Test

Economic reality test examines whether the worker is in business on his or her own account
as an entrepreneur or works for another. Casual workers with high degree of personal
autonomy may be classified as employees under this test if they are economically dependent
on one principal employer. In Market Investigations Ltd [Link] of Social Security (1969)
2 QB 173, it was held that a part time market researcher could be an employee for this reason
notwithstanding that she had a limited discretion as to when she should do the work. See also
the US case of United States [Link] 331 US 704 (1946) where the term ‘economic reality
originated. See also Airfix Footwear ltd [Link] (1973) ICR 1210 .See also Ready Mixed
Concrete (South East) Ltd v. Minister of Pensions and National Insurance (1968) 2 QB 497

The Organization Test

Lord Denning in Bank Voor Handel En Sheepvaart N.V v. Slatford (1953) 1QB 248 at 295
said ‘the test of being a servant does not rest nowadays on submission to orders. It depends
on whether the person is part and parcel of the organization’. The organization test takes into
account the degree of integration into the organization that is whether the workman is an
integral part of the business or his work is only accessory to it. Those who are sufficiently
‘integrated’ into the enterprise are employees (contract of service) while those who are
merely accessory to it or merely perform adjunctive work are regarded as contract for
service. See also Cassidy v. Ministry of Health (1951)1 KB 343, 1 All ER 574. Stevenson
Jordan & Harrison Ltd v. Macdonald and Evans (1952) 1 TLR 101

Other categories of workers

1. Domestic workers
2. Workers in the Public Service/Civil Service
3. Workers in municipal authorities/local government

DUTIES OF THE EMPLOYER:

1. Duty to pay remuneration: S.122, 51(b) Labour Act

The employer has the duty to pay wages, salaries, and allowances in accordance with the
terms of the contract. Legislation (apart from national minimum wage where applicable)
has rarely been used for the fixing of wages- it has been largely a matter of bargaining or
agreement. Wage rates may be fixed by agreement between employers’ associations and
trade unions.

A worker is entitled to his wages whether expressly stated or not because service and
wages constitute the twin pillars of a contract of employment. Wages are primarily fixed
between employer and individual workers. But where no rate is agreed, the rate is
deemed to be what is current in similar trade in the area. In PETERS OF ORON v.
SYMMONS (1924) 5 NLR 79, the plaintiff was a carpenter who had been employed by the
Nigerian Timber and Construction Co Ltd at their branch in Calabar. The Plaintiff’s
employment was terminated for want of further work but he was thereafter referred to the
manager of the Oron branch of the company, one Mr Symmons. The defendant then
entered into an oral agreement with the plaintiff for a fresh employment but without
specifying the rate of wages. The question for the court to decide was whether the
agreement reached at Oron implied employment at the rate of pay which the plaintiff had
been receiving at Calabar or whether it implied employment at the lower rate, then
prevailing at Oron. The court held that in the absence of any specific stipulation by the
parties as to the rate of wages, the agreement must rest on the implied term that a wage
corresponding to that prevailing in similar employment at the time in the area was
intended.

Service and wages constitute the twin pillars of a contract of service. The right to receive
wages is automatically incorporated into the contract of employment whether express or
not. Even when the work is uncompleted, the worker may still be entitled to at least to a
reasonable payment for the work done on the doctrine of quantum meruit. However, if
the agreed terms are that no payment shall be made unless the job is completed, then the
worker would be presumed to have waived his right to payment on a quantum meruit.

ILLNESS: Illness does not ordinarily terminate a contract of employment. See

MARRISON v. BELL (1939) 2KB 187, 1939 1 ALL ER 745. Under a contract of service,
irrespective of the question of the length of notice provided by the contract, wages
continue through sickness and incapacity from sickness to do the work contracted for
until the contract is terminated by notice from the employer.

See 62 Labour Act: Maternity benefit S.20 Women’s Act, S63 Labour Act : Paternity
leave

However, the parties may by their own conduct have established an understanding which
will be enforceable by the Court. This was the situation in O,Grady v. Saper(m) Ltd
(1940)2 KB 469, (1940) 3 All ER 527 where the Court held that a commissionaire who
had gone off sick many times without pay during the peak periods must be taken to have
 agreed that he was not to receive payment during the sick period. See S.110 Labour Act
(sick leave entitlement).

2. Duty to provide work

Generally, under the common law, there is no compulsion on the part of the employer to
provide work so long as the wages are paid. In COLLIER v. SUNDAY REFEREE
PUBLISHING CO LTD (1940) 2 KB 647 (1940) 4 All ER 234, Asquith J said ‘a contract
of employment does not necessarily or perhaps normally oblige the master to provide the
servant with work. Provided I pay my cook her wages regularly, she cannot complain if I
choose to take any or all of my meals out. But in LANGTON v. AMALGAMETED
UNION OF ENGINEERING WORKERS (1974) 1 All ER 980 at 987 Lord Denning, MR
referring to Collier [Link] Referee’s case said:
That was said 33yrs ago, it is arguable that in these days
a man has by reason of an implication in the contract
a right to work, that is, he has a right to have the opportunity
of doing his work when it is there to be done

However, a duty to provide work may arise if failure to provide work would lead to the loss of
fringe benefits, such as publicity or even tips. In such a situation, a court may hold that the
master is under an obligation to provide work if that can be gathered from the terms of the
contract or conduct. In CLAYTON (Herbert) &Jack Walter Ltd v. Oliver (1930) All ER Rep 414,
an American actor was held entitled not only to the amount of remuneration due on the contract
but also to damages for loss of publicity that normally goes with the leading role.

Secondly, if the worker’s wages depend on the provision of work, there may be an obligation to
provide work. Eg: payment on commission.

Notwithstanding the above, S.106 Labour Act imposes a duty on the employer to provide the
employee with work, so long as the employee presents himself for the work and is able, ready,
and willing to do the work. Similarly S.51(a) obliges the provide work, equipment, raw materials
and tools to the employee. The employer may provide an alternative work to the employee. See
S. 106(2) Labour Act for exceptions..

3. Duty to provide indemnity:

The employer has a duty to provide indemnity or reimbursement for expenses reasonably
incurred while executing his duties. In LISTER v. ROMFORD ICE & COLD STORAGE CO LTD
(1957) AC 555, it was held that an employer is entitled to an indemnity for the consequences of
the employee’s negligent conduct.

4. Duty of care;
This duty refers to the duty of the employer to take reasonable care for the safety of the
employees in the course of their employment. It is a duty owed by the employer whether acting
personally or acting through his agents or servants. The duty of the employer here is personal
and vicarious. In Iyere .[Link] Feed and Flour Mill Ltd (2008) 12 CLNR 1, the Nigerian
Supreme Court said:

A contract of employment connotes a contract of service or apprenticeship

whether expressed or implied and if it is expressed, whether it is oral
or in writing. The general requirement of the law where there exists
a service relationship between employer and employee is that the former
is under a duty to take reasonable care for the safety of the latter in all
the circumstances of the case so as not to expose him to unnecessary risks.
The level of this duty is the same as that of the employer’s common law
duty of care in the law of negligence.

In WILSON &CLYDE COAL CO LTD .v. ENGLISH (1938) AC 57, the duty was classified into
three (3) categories namely:

1. Employer’s personal duty to select the services of fellow workers, (competent staff). See
Hudson v.,Ridge Manufacturing co Ltd (1957) 2 QB 348

2) to provide safe and suitable place and tools of work and

3) to personally supervise the management or system of work

DUTIES OF THE EMPLOYEE:

See: S. 53 Labour Act

The duties of the worker may be spelled out in terms of the contract. Some duties are however
implied by law or trade practice.

1. Duty of fidelity
The employee has a duty to serve the employer in good faith and honesty and not to put
himself in a position where his personal interest will conflict with that of his master. See
Robb v. Green (1895) 2QB 315, Sinclair .v. Neighbour (1967) 2QB 279
See S.5(5) Industrial Property Act cap 95 :01 Laws of the Gambia, On inventions: see
British Syphon co Ltd v. Homewood (1966) 2 All ER 89

2. Duty of care and skill:

There is an implied term that an employee who accepts a particular job and takes it up
professes the necessary skill required for the reasonable performance of the job and that
he would carry it out his duties with reasonable care. In LISTER v. ROMFORD ICE AND
 COLD STORAGE LTD (1957) AC 555 HL, the employee, a driver who drove the vehicle
in a negligent manner and caused injury to a fellow employee who happened to be his
father. He was held liable in damages to his employer. It is doubtful whether this decision
can be adopted in a developing country like ours seeing that the worker is considered to
be an underdog and may lead to industrial disharmony as the trade union may oppose it.
The employer may look to insurance for indemnity.
However, an employer who has been indemnified in respect of his vicarious liability to a
third party cannot be forced to lend his name against the employee. See Morris .[Link]
Co Ltd (1973) 1 QB 792

3. Obedience to orders:
The employee has a duty to obey all lawful and reasonable orders of his employer. The
principle was established in TURNER v. MASON (1845) 14 M &W , when a domestic
servant who had visited her sick mother contrary to her master’s orders was held to have
rightly been dismissed in consequence. We must note the changing social standards and
value judgments, a conduct which might justify a dismissal nearly 200 years ago may be
insufficient to validate such a dismissal today. There is no fixed rule to define the degree
of misconduct which would justify a dismissal but it has to be grave to undermine the
confidence which should normally exist between a servant and his master. An isolated act
of disobedience may not justify dismissal. But in Pepper [Link] (1969) 2 All ER 216, the
plaintiff’s act of disobedience and rudeness was held to amount to a repudiation of the
terms of the employment, See also Laws v. LONDON CHRONICLE (Indicator
Newspaper) Ltd WLR 514 (1959) 1WLR 698, (1959) 2 All ER 514. See also O’BRIEN v.
ASSOCIATED FIRE ALARMS LTD (1968) 1 WLR 1916 where it was held that a worker
is entitled to disobey an order outside the terms of his contract.

CONTRACTS IN RESTRAINT OF TRADE

Due to the elasticity of the duty of fidelity, a lot of litigation has resulted from this
common law obligation. Sometimes, employers have sought to obtain express covenants
from their employees in a bid to restrict their freedom to work for rival companies or
disclose confidential information whether during or after the employment. This they have
done by way of restraint of trade.

Restraint of trade may be defined as a practice whereby an employer and his employee
enter into a covenant for the purpose of restricting the right of the employee to engage in
particular or specific types of business activities within a given area or locality and /or
within a stipulated period of time.

The objection to the doctrine of restraint of trade is based on public policy. A worker may
lose not only his job but also the right to certain other jobs. The true view said Lord
Macnaghten in NORDENFELT .v. MAXIM NORDENFELT GUNS AND AMUNITIONS
 CO LTD (1894) AC 535, 565 ‘is that the public have an interest in every person carrying
on his trade freely, so has an individual liberty of action in trading and all restraints of
trade of themselves if there is nothing more are contrary to public policy and therefore
void. This is the general rule’.

Exceptions: If the restriction is reasonable, that is, in reference to the interests of the
parties concerned and reasonable in reference to the interests of the public, so framed and
so guarded as to afford adequate protection to the party in whose favour it is imposed
while at the same time it is in no way injurious to the public.

Public Policy is not static and certain exceptions may be permitted depending on the
circumstances of each case. In ANDREAS I. KOMOULIS v. LEVENTIS MOTORS LTD
(1973) 1 ALL NLR (pt 2) 144, the Nigerian Supreme Court said:
Generally, all covenants in restraint of trade are prima facie
unreasonable in common law. They are enforceable only if
they are reasonable with reference to the interests of the parties
concerned and of the public…it is therefore for the employer
who seeks to enforce it to show that it is designed for the protection
of some exceptional proprietary interests of the employer.

FORMS
1. May be observed while in employment as a term of the contract or after the worker
has left the employment
2. May relate to the location of the job
3. May relate to the period within which the employee is employed –say 5yrs after
employment/service or appear as a separate item in the same covenant.

N/B: Courts look with great care because of the economic inequality between the parties.

INTERESTS THE EMPLOYER MAY SEEK TO PROTECT

The employer may seek to protect proprietary interests like trade secrets and business
connections which if not protected will adversely affect his business. No one has any abstract
right to be protected from competition.

Courts may consider the nature of the employer’s business, the position held by the employee
and the opportunities afforded him by the nature of his duty to acquire the employer’s trade
secrets or be in a position of influence over customers of the employer.

A restraint which has as its main purpose the protection of the employer from mere competition
is likely to be refused. Thus in JOHN HOLT & CO (LIVERPOOL) LTD v. CHALMERS, the
employers and the worker entered into a covenant under which the worker was not to conduct
business within a wide area after leaving the employer’s service without the consent of the
employers. The court held that the restriction went beyond what was necessary for the protection
of the interests of the covenantees and was unreasonable with reference to the covenantor.

A restraint against competition is justifiable if its object is to prevent the exploitation of trade
secrets learned by the servant in the course of his employment. In FORSTER & SONS LTD .v.
SUGGETT (1918) 35 TLR 87, the works manager of the plaintiffs who were engaged in making
glass and glass bottles was instructed in certain confidential methods concerning inter alia the
correct mixture of gas and air in the furnaces. He agreed that during the 5yrs following the
determination of his employment he would not carry on in the UK or be interested in glass or
bottle manufacture or any other business connected with glass-making as conducted by the
plaintiffs. It was held that the plaintiffs were entitled to protection and that the restraint was
reasonable.

It must be noted that courts will not lightly strike out an agreement voluntarily entered into by
the parties even if it is in restraint of trade. They may try to save some of the provisions if they
are severable. See Scorer v. Seymour Johns (1966) 3 All ER 347