Increasing court cases expose gaps in the labour law

When An employment service is terminated, among the first things that will cross the mind of the affected individual is seeking legal redress whenever they feel aggrieved by the termination. In so doing, many see their appeals quashed. But many more still win damages, walking home with millions of francs, much to the chagrin of employers. Dr Charles Karemangingo is one such ‘lucky’ person who benefited from legal redress. The former rector of the University of Rwanda was awarded Rwf24 million in damages by the high court that concurred with his claim of illegal dismissal and breach of contract. The court’s decision was appealed at the Supreme Court with the university contending that Karemangingo abused his office. A verdict is scheduled for February 17. This latest case appears to have exposed loopholes in the labour law that has led to institutions – public and private as well as civil society organisations – to lose millions of francs in court battles and damages. On the surface, the awards given to terminated employees create the impression that the victims of unfair dismissal from work are getting their rightful compensation, but upon digging a little deeper, one finds evidence that there are many employees who were actually dismissed for justifiable reasons, including incompetence, negligence, causing financial loss, insubordination and general mismanagement or abuse of office. However, being terminated is one thing and coming terms with the reality is another altogether, which leads to court cases. There is now fear among employers that they cannot get rid of indisciplined or incompetent staff because the odds are against them owing to the loopholes of the current labour law. According to legal experts, the ambiguity of the labour law risks encouraging corruption with those involved in handling cases conniving and sharing whatever compensation is awarded by the courts. Inside the labour law The current labour law came into force 15 years ago and was amended in 2009. Experts say there are some articles that will need to be reviewed to not only reduce the number of disputes, but also make sure that the rights of the employees are not infringed upon. One of the contentious clauses is under Article 28, which requires employees on fixed-term contracts to be paid the full amount of the contract duration in case of termination. While the law gives a provision for gross misconduct, it does not elaborate on what amounts to gross misconduct yet goes on to limit the termination to “within 48 hours.” “Any dismissal which is not done basing on the reasons provided for the law or resignation made before the expiry of a contract for a determined period compels the party that takes initiative of termination to pay an indemnity equivalent to the remuneration for the remaining contract period without prejudice to other compensation which may be paid,” reads part of the clause in the labour law. “However, the contract of employment for a determined period or for a well defined work can be terminated before the fixed term in case of gross negligence or agreement between the parties.” A city lawyer, who preferred anonymity because of the sensitivity of the matter in relation to his work, said the issue is that on closer assessment, the fact that a fixed term contract cannot be terminated easily leaves room for some employees to “take advantage and do whatever they want” at the detriment of their employers. Accordingly, the lawyer emphasised that when matters go to courts of law, most or 95 per cent rulings “abruptly or blindly” favour the dismissed employees. In such cases, not only do those dismissed go ahead to earn their salary whether they leave or not, but also get more exorbitant amounts in penalties. “If it is a five-year contract, and within one month you realise there is poor performance by the employee, it means that the court decides and because there is no grave or serious misconduct, even if you provide records showing that this is a very bad employee, the court says you cannot touch on this,” the lawyer said. “Therefore, by virtue of terminating this contract, you are going continue paying a salary of 59 months. It means that you will pay heavily and it means you have no control over the employee. It even goes beyond rights, and it is like favouring the employee.” Even if the spirit of the law is to protect employees, it is feared that such technicalities, if not resolved, is silently causing a serious loss for the private sector and in NGOs, which often hire workers on fixed term contract basis. Much of the problem, it is said, stems from the interpretation of the law and the manner in which Article 28 is being applied in contradiction to some other provisions. Article 48, which lists the principal obligations of the worker, provides that an employee has duty and obligation to respect the guidelines and instructions of the employer. This, the city lawyer said, means that the internal rules and regulation policies of the employer are somehow being neglected and put aside in the favor of the employee interests. “I have no problem seeing employees protected by the law. But the problem is that the reality is with the employees with bad intentions, they take advantage from this protection, and then they decide to manipulate and refuse to work for their employers because they know that they are fully protected within that period,” the lawyer added. Contradiction cited But the lawyer also sees a contradiction when Article 64 of the 2011 Contract Law is brought into play. Article 64 states that: “Contracts made in accordance with the law shall be binding between parties. They may only be revoked at the consent of the parties or for reasons based on law. They shall be performed in good faith.” Edouard Munyemaliza, the coordinator of the Rwanda Civil Society Platform, said the 48-hour notification period provided in the law is not sufficient. “We think that the period is not enough, if the employer is to provide substantive evidence on the gross negligence of a certain employee, the boss in that case needs to have documented his worker’s behaviors in case he is dragged to court, to convince judges,” Munyamaliza told The New Times. With a lack of legal guidance on what constitutes gross misconduct and a mere 48-hour window, employers are bound to continue losing money or retaining incompetent and indisciplined staff considering that it takes more time to investigate some cases such as theft which may otherwise be gross misconduct. Another area that employers want reviewed is Article 34 that addresses terminations for financial reasons be it NGO’s or among businesses. Many organisations rely on external funding. However, in the event that a donor unplugs the financing, they are forced to terminate the contracts a decision that has landed them in court. “The law should provide clear compensation packages and or conditions should that (closing for financial reason) happen, because in the contract the concerned party never agreed to forego a salary for one month or two, simply because an enterprise is in financial crisis,” Munyamaliza said. Angelina Muganza, the executive secretary of the Public Service Commission, said there isn’t any serious issue at least with respect to the law provisions necessitating immediate attention. She said appeals to have the law revised are yet to reach the Public Service Commission. Laurent Nkongoli, a seasoned lawyer and commissioner at the National Human Rights Commission, advocated for empowering labour inspectors mostly those at the district levels as well as giving legal advisers in the different institutions a role in decision making when it comes to termination of contracts. “In most of institutions we have seen that legal advisers’ role are completely ignored and or underestimated, we have also seen that some are only left to intervene when institutions are taken into courts,” Nkongoli said. “Labour inspectors should on the other hand be legally qualified and be assigned specifically in line of their duties because in some areas they are not taken into consideration instead they are used for other assignments.” Many seasoned lawyers, including trade union representatives, largely see no cause for alarm over the labour law as it guarantees employee rights’ are protected. For instance, Jordi-Michel Musoni, the president of the Energy, Water and Sanitation workers union, SYPELGAZ, told The New Times that the clause has “no fault to talk about.” But another lawyer, Africain Biraboneye, the deputy secretary-general of Centrale des Syndicats des Travailleures du Rwanda (CESTRAR), an umbrella organisation for trade unions in the country, shed some more light, first acknowledging that the pertinent labour law clause is indeed “not very much clear” about gross negligence. Biraboneye said: “The only thing I can say is that in any way, the so-called ‘gross negligence’ should be well indicated to employees when they begin work. Or it should be incorporated within the contract. Otherwise, this will remain as a confused situation and more especially when we don’t have a special labour court.” Biraboneye agrees, however, that employees must be protected from possible abuse by employers. “Of course, workers should be protected against any kind of injustice. The idea is to have a win-win situation for both parties. The big challenge is, most of the time, related to irregular dismissal.” According to Biraboneye, “the big fight” is to advocate for workers rights and for the employees to be considered as partners and stakeholders and “not merely as a tool.” Balancing rights The trade union, Biraboneye, stressed, will stand firm for a fair or win-win situation that protects workers. Biraboneye adds: “We stand for that. And promoting the social dialogue as one of the ways to create a very good working environment. The assurance is that even at the moment, we are pushing for the labour law to be revised. Some other provisions are soon coming into force such as the ministerial order regulating recruitment within the private sector.” Janvier Bayingana, the dean of the Faculty of Law at the University of Kigali, told The New Times that the “best practice is to balance the rights of employees and the rights of employers.” Bayingana said it is important to respect the terms of a contract by two parties. According to him, it is as if the labour law overlaps the rights of the contracting parties by fixing the terms which are convenient and comfortable. Bayingana said: “If two parties agree that there is possibility of terminating the contract, there is no need for the law to force the two parties to restrict this. And the law does not indicate clearly what a gross negligence is. It is vague, and actually, there are risks of having various decisions which are contradictory.” Asked if employees would be safe if the clause in the labour law is altered, Bayingana said: “We are very safe because the two parties will agree if you are not satisfied with the contract of the employer he may accept it or refuse it. There is no need of regulating this.” Stakeholders, experts and the labour unions may all have opinions but one thing for sure is that if the country is to achieve its targets and business are to realise their goals, efficiency of the human resource will have to be guaranteed without tramping on the rights of the workers. editorial@newtimes.co.rw

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Increasing court cases expose gaps in the labour law