Redundancy in the Gambia-Striking a Balance Between Security of Employment and Business Efficiency

             

 

By Bede Okorie, LLM, BL, Lecturer in Law, University of The Gambia, email: This email address is being protected from spambots. You need JavaScript enabled to view it.

 

 

Abstract

 

One of the ways an employment relationship may be validly terminated is through redundancy otherwise called operational requirements of the enterprise. Whereas other bases for termination relate to the capacity or conduct of the employee, redundancy is mainly about the requirements of the employer. Some employers can exploit the window of redundancy (so called opportunistic dismissals) to dismiss workers arbitrarily hence the protection afforded by the law. Generally, the laws regulating the termination of employment are meant to protect workers from arbitrary loss of jobs and the attendant consequences on the economy and the society in general. The Gambia is a developing country in need of jobs for its youth and citizens in general. The Gambia has a robust legislation on redundancy contained in the Labour Act 2007.[1]This paper discusses the law on security of employment in the Gambian private sector particularly redundancy and argues that there is a need to strike a balance between the protection of workers on the one hand and protection of business on the other hand. The paper argues that as the new Gambia Government warms her way to the heart of the international community, there is a need to re-examine the law on redundancy in order to attract investors and create more jobs. The current law on redundancy in the Gambia appears to be a penalty on any employer who lay off workers on the basis of redundancy. It is ironical that an employer who is struggling to survive as a result of poor performance in his business will be subjected to the burden of meeting all the conditions required under the redundancy provisions of the Labour Act. 

 

Introduction

 

Paid employment is important not only for personal and family fulfilment but for societal needs.  Notwithstanding its importance, paid employment does come to an end someday. Thus an employment relationship may be determined by operation of law such as death of a party, intention of the parties and unilateral act of the parties such as resignation, retirement or breach.[2]  Indeed as a Chairman of the Industrial Tribunal once stated, there is no provision in the Labour Act 2007 or any other law in The Gambia that envisages the ‘perpetuity of an employment relationship’[3]

 

The conflict between the interests of the employer and that of the employee comes into the open when the employer chooses to terminate the relationship against the wishes of the employee. It seems that there is now some consensus that there must be a ‘just cause’ for the termination of an employment relationship. Article 4 of the ILO Termination of Employment Convention 1982 states;

 

The employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirement of the undertaking, establishment or service.[4] 

 

The Gambia is in full compliance with the above-named provision of the convention as Section 83(1) of her Labour Act 2007 is an exact replica of the said provision. This has constricted the powers of the employer who under the common law could terminate for any reason or even for no reason. The legislation on termination of employment is a fitting response to exponents of the US doctrine of Employment at Will which allows an employer to dismiss employees at any time and for any reason.[5]

The problem of redundancy is connected to globalization and its offshoots of restructuring, outsourcing, arrangement and reorganization. The issue of redundancy has engaged the attention of governments, businessmen and the society in general. Sociological study of redundancy indicates that there is a ‘link between personal troubles and public issues.[6] No society or country is immune to the problem of redundancy. The Gambia is not an exception.  In The Gambia the hospitality industry comprising hotels, tourism and factories (manufacturing) have experienced reduction in their workforce due to redundancy.[7]

 

The Labour Act of The Gambia 2007 has made elaborate provisions in respect of redundancy. This paper will examine the provisions of the law vis-à-vis the interests of the employees and employers and determine whether there is a need for reform in the law relating to redundancy particularly in the midst of high unemployment.[8]

 

The first part of this paper seeks to examine the security of employment in the private sector under the common law and statutes. This general survey is to properly situate the issue of redundancy within the ambit of termination and discipline. The second part will consider the subject of redundancy as part of the power equation between the owners of capital and labour. The third part will consider the protection of workers particularly against the background of possible opportunistic terminations under the guise of redundancy. The role of trade unions in affording workers protection will also be examined. Finally, the paper will consider redundancy from the standpoint of the employer and draw conclusions.

 

 

Security of Employment in the Private Sector Under the Common Law

 

The establishment of British colonial administration in The Gambia brought in its wake the extension of English law to The Gambia by several ordinances and Acts which culminated into the Law of England Application Act No.16 of 1953. The Act was revised in 1990 and included in the Laws of The Gambia 1990 edition.[9] The application of the received English law is now entrenched in Section 7(d) of the 1997 Constitution of the Republic of The Gambia.

 

Under the Common law, security of employment is governed by the terms of the contract of employment. The employer can terminate the contract for any reason or no reason subject to the giving of adequate or reasonable notice in the event that no notice is stipulated.  Since the employer is not required to give any reasons for dismissing the employee, the law does not require him to hear out the employee before dismissal. In the case of Ridge v. Baldwin, Lord Reid stated the common law position as follows:

 

The Law regarding master and servant is not in doubt. There cannot be specific performance of contract of service and the master can terminate the contract with him at any time and for any reason or none. But if he does so in a manner not warranted by the contract, he must pay damages for breach of contract. So, the question in a pure case of master and servant does not at all depend on whether the master has heard the servant in his own defence, it depends on whether the facts emerging at the trial prove breach of contract.[10]

 

 

Even where the contract of employment was expressed to be permanent such as  in Tanughe Abukugho v. African Timber Plywood Ltd[11] it was held that a provision for permanent or pensionable employment did  not  mean an ‘employment for life’ As Emiola points out, ‘a permanent employment is one which the employee may keep for as long as long he is able and the employer is willing to retain him in service…Such an employment is expected to last until retiring age subject to good performance and behaviour.’[12]  Apart from issuing notice as required, the contract of employment can also be terminated by performance in fixed term contracts and frustration such as death of one party, outbreak of war and other unforeseen circumstances outside the contemplation and control of the parties.

 

Thus, the employee was at the mercy of the employer under the common law and his recourse in the event of termination was an action for wrongful dismissal. Today, such an action for breach of contract may be brought in the High Court or Industrial Tribunal.[13] The basis of this action is that the employer terminated the contract without notice or with inadequate notice and there was no justification for doing so. The law here is not concerned with the manner or reasons for the termination. The remedy would be damages which measure prima facie is the contract price.[14]

 

The first method is to award as damages the amount the worker would have earned had the contract lasted its full time. This is usually applied in contracts of specified duration taking age, opportunity of obtaining another job into consideration. The second method usually adopted in contracts of unspecified period is the amount of money the employee would have earned during the period of notice. In Banjul Breweries Ltd v.Ceesay [15]  the Court of Appeal held that the measure of damages is the amount of salaries the employee would have earned until he got another job or within a reasonable time after the wrongful dismissal. The employee has a duty to mitigate his loss by finding another job.  The Court further held that where the employee secures another job, the salary he obtains from the new job must be deducted from the damages awarded. The Court also considered the age of the dismissed employee who was then 29 years and had a retiring age of 55years and adjudged that two years was a reasonable period within which he should have secured a similar alternative employment. In Worldview Foundation v. Bah [16] the Court restated that the measure of damages for wrongful dismissal of an employee was calculated by considering the contract price and the time lost before a similar job could be found subject to mitigation by the employee. However, the Court considered that award of damages based on a period of 2years was too high and unsustainable.

 

 

Termination Under the Labour Act

 

Statutory stipulations override the Common law. S.2 of the Law of the England (Application) Act Cap 5 makes the Common law subject to the Acts of The Gambia. In the case of Pa Njie Girigara & Sons Ltd v. Ace Ltd [17] the Gambia Supreme Court held that Common law is subject to any Act of The Gambia. Accordingly, the Labour Act is the guiding legislation on labour matters although recourse can be made to the Common law where there is a lacuna or ambiguity.

 

Section 54 of the Labour Act provides as follows:

 

(1) A contract of employment for an unspecified period of time may be terminated by either party subject to sections 55 and 83.

(2) A contract of employment for a specified period of time terminates automatically on the date specified for its termination and unless it is expressly or tacitly renewed or prolonged no notice is required for its termination

(3) A contract of employment to perform a specific task terminates on the completion of the task and no notice of termination is required of either party.[18]

Section 83 (1) provides that an employer shall not terminate an employee’s appointment or take disciplinary action against an employee unless there is a valid reason for the termination or action connected with the capacity or conduct of the employee or based on the operational requirements of the enterprise.[19]

 

Section 84 provides: A dismissal is unfair if it is not in conformity with section 83 or is a constructive dismissal under section 86.

 

The employer can summarily dismiss an employee if there is a justifiable cause.[20]

 

Section 86 provides for Constructive dismissal which entitles an employee to terminate the contract of employment without notice or with less notice than is provided in the statute or contract if the employer’s conduct has made it unreasonable to expect the employee to continue the employment relationship. This is the employee’s corresponding power to the employer’s power to summarily dismiss.

 

The right of the employee to be heard before dismissal is now firmly established by statute.[21] Furthermore the employer is now under an obligation not only to provide the reason for the dismissal but also to prove that the reasons are consistent with the terms of Section 83(1) of the Labour Act.[22] 

 

In the case of Guaranty Trust Bank (Gambia) Ltd V. Mam Nabou Samba[23] the court held that the onus of proof was on the defendant (Appellant) to justify the termination of the plaintiff’s employment. Although a document stated the reasons for the termination of the bank worker, the Defendant/Appellant failed to prove those reasons by evidence. The Court stated further that as the law now stands, an employer is under a duty to give his employee a hearing before termination or dismissal.[24] The Court held that in the absence of proof of the reasons stated for the termination, the termination of the plaintiff’s employment was wrongful.

 

The law in The Gambia therefore has discarded the common law notion of termination by the master at ‘anytime for any reason or none’ and no requirement for the servant to be heard in his defence. Although the individual contact of employment is still important, the law of dismissal or termination of employment in the Gambia at least for the private sector must now as a minimum be in accordance with the provisions of the statute. Accordingly, there should be valid reasons for dismissal of an employee and the employer should be prepared to prove those reasons by evidence. The employee must be given the opportunity to explain his/her side of events. While the employer can still summarily dismiss the employee for good cause, the employee can also terminate summarily the employment relationship based on the unreasonable conduct of the employer and claim constructive dismissal[25]

 

 

Redundancy: What and Why?

 

Redundancy is a form of dismissal or termination of employment. According to Curzon’s law dictionary[26],

 

Dismissal of an employee by reasons of redundancy arises where ‘the dismissal is wholly or mainly attributable to the fact that the employer has ceased or intends to cease to carry on the business for the purposes of which the employee was employed or to carry on that business in the place where the employee had been employed or the fact that the requirements of that business for employees to carry out work of a particular kind or for employees to carry out work of a particular kind in the place where the employee was employed, have ceased or diminished or are expected to cease or diminish.[27]

 

The two criteria are cessation of business and diminishing requirements either permanently or temporarily.[28] In Abake Williams v. Galp Gambia Ltd [29]  the Plaintiff had sued the defendant on grounds of constructive dismissal and redundancy. The Plaintiff lost her position as Opex Bay Project Manager as a result of the reorganization and sale of the company by the defendant’s predecessor. The Plaintiff became redundant because her previous post was no longer available, and the alternative job offered by the defendant was not acceptable to her. The Court of Appeal held that she was within her rights to claim constructive dismissal and was entitled to severance pay as provided in her contract of employment.

 

In Nigeria, redundancy is defined as ‘an involuntary and permanent loss of employment caused by an excess of manpower.[30]

S.93 of the Labour Act [31] on redundancy and reorganization provides as follows:

 

(1) A dismissal wholly or mainly for

(a)  economic, organizational, climatic or technical reasons including mechanization or automation or (b) the reason the employer proposes to move the place of employment more than forty kilometres and the employee is either not offered employment at the new place or declines the offer in accordance with S.64 is deemed to be unfair if the employer is unable to show that he or she acted on sound business principles and has satisfied the conditions in sub-section (2)[32] 

The Act does not define ‘sound business principles’, however, it is clear that the burden of proof is on the employer to show by evidence that he acted on sound management bases and interest of the company. It is suggested that the evidence of sound management can include but not limited to profit and loss account of the business, strategic and reorganization plan of the employer. Thus, redundancy is permitted by the Labour Act provided that certain conditions are met. These conditions are set out in S.93 (2) as follows:

     where an employer contemplates a dismissal for reasons set out in sub section (1) he or she shall

(a) where they exist, consult the authorized representatives of any trade union which has members among the employees the employer contemplates should be dismissed and the relevant works committee

(b) engage in consultation and provide written explanations or information regarding the:

i) circumstances giving rise to the need for dismissal

ii) provide an explanation for the rejection of any alternative course of action which the employer has considered. Such alternative course of action may include re-deployment or retraining of the employees concerned.

iii) provide a statement of any reasonable probability that a specified number of employees in specified categories may be re-employed by him within 12months following the dismissal

vi)any other matter which the Labour Commissioner may direct to be communicated.

v) where a selection is made for dismissal among a group of employees of the same class the selection should be made in accordance with an agreement between the employer and a trade union representing the members of that class or if there is no agreement, make that selection on the principle of last in, first out or on some other principle considered by the tribunal to have been established and reasonable.

vi)  secure an offer of re-engagement or of suitable alternative employment within six months of the date of dismissal is made in writing before the dismissal or as soon as reasonably practicable after the dismissal.

(3) An alternative employment is not considered suitable under subsection (2) if it involves work which

(a) the employee is not qualified to perform or work of a substantially inferior grade to that which the employee was previously performing or

(b) provides a significantly lower level of remuneration than that previously received by the employee.[33]

 

NOTICE: An employee whose contract is terminated by reason of redundancy /reorganization is entitled to six months’ notice which may be converted to payment in lieu notwithstanding the employer’s compliance with the requirements of S.93(1)[34]

 

PAYMENT: S.93(8) provides:

Notwithstanding the requirements for the giving of notice for termination of a contract of employment under this Act, an employee dismissed by an employer for reasons set out in this section shall notwithstanding an employer’s compliance with the requirements of this section receive a redundancy allowance of six months regular remuneration.

What is the purpose of the Gambian legislation on redundancy? Was it enacted to enhance job security by discouraging employers from declaring redundancies? Does it facilitate the intervention of trade unions in the management prerogative to dismiss employees for economic, technical or organizational reasons?

 

A dismissal for redundancy can lead to a long period of unemployment which is in turn a problem for the individual and society as a whole since the individual has to depend on the extended family system where state social welfare services are lacking as in most African countries.[35] For older and middle aged employees, the loss of their jobs may translate into permanent unemployment or a form of early retirement. This is contrary to the UN Universal Declaration of Human Rights which declares:

 

Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.[36]

 

The rationale for statutory redundancy payment is said to be payment or compensation for loss of some accrued rights of the employee.[37] It is argued that the employee has invested his life and skills on the job and that by making a redundancy payment, the employer is acknowledging that he is taking something that belongs to the employee, his job. According to Lord Denning in Lloyd v. Brassey[38] it is not unemployment pay but compensation for long service. The Gambia Labour Act does not make any distinction in the length of service for entitlement to redundancy payment. In other words, all employees in the private sector regardless of the length of service would seem to benefit from any redundancy payment made by the employer. Perhaps such a distinction is not necessary as it would exclude many employees from benefitting.[39]

Another rationale for the payment is the property or proprietary right justification. According to Roger J. Smith, Property is not a thing but a relationship one has with a thing. To claim property in a resource is to assert a degree of control over that resource.[40]  It is stated as follows:

 

Just as a property owner has a right in his property and when he is deprived he is entitled to compensation, so long-term employee is considered to have a right analogous to a right of property in his job, he has a right to security and his rights gain in value in years…[41]

 

For Kahn-Freund, an employee’s job is his principle asset. Sometimes it is in the public interest that he should sacrifice his job. In these cases, a rule of social ethics requires that he who sacrifices an asset should be compensated.  Whether the basis of statutory redundancy payment is social ethics, or accrued rights or proprietary rights, it is at least some acknowledgement of the employee’s services to the employer in the nature of pension even though the employee had also received wages/salaries during his days in active services.

 

Role of the Trade Unions:

 

The role of trade unions is to protect employees by engaging in collective bargaining. As Collins and Ewing observe, ‘industrial citizens should have the right to be protected from unfair and discriminatory conduct even when it falls short of termination’[42] Conflict of interest is inherent in the employment relationship where the employers wield power and authority and the workers are subordinated or constrained to submit to such commands of capital and management.

It is clear that the common law presumption of equality of bargaining power between the contracting powers is a legal fiction. Although the main purpose of a trade union (as a collective force) is to redress this inequality of bargaining power, a perfect balance is rarely achieved as employers will always have the upper hand. Commenting on the wholesome power of the employer vis-à-vis the individual employer, M.T Okorodudu-Fubara observed as follows:

 

Not only is the power to make policy, rules and management decisions and to ensure that they are obeyed well entrenched in the employer but added to this is the fact that this power is enhanced by existing company law and property law.[43]

 

The trade union in The Gambia has played an enduring role in the protection of workers. However, the large size of the primary sector in the Gambia has resulted in the urban wage labour being small thereby reducing the potential membership of the Labour movement in The Gambia. Usually, union membership in most of Africa have been drawn from urban wage labour.[44]

 

The Constitution provides for freedom of association which includes freedom to form and join associations, political parties and trade unions.[45] The Constitution also provides for freedom to assemble and demonstrate peacefully.[46] Trade unions are required to be registered[47] and there are also joint industrial councils [48] for commerce, agriculture &fisheries, port, artisans made up of the representatives of employers and trade unions appointed by the Minister of labour. The Joint industrial council by agreement of the majority of the representatives of employers and trade unions fixes the minimum terms and conditions of employment within the industry or job category.[49]

 

The freedom of association guaranteed in the Constitution includes the right not to join a trade union. There appears to be a proliferation of small unions in the Gambian small labour force without a collective strong platform making them ineffective. This is aggravated by the fact that most of the workers do not belong to a trade union[50]

 

Under the above circumstances, it is unlikely that the trade unions as presently constituted or organized although empowered by the law would be able to fulfil the role of effective collective bargaining envisaged for them under the Labour Act with respect to redundancy or unfair dismissal of employees.  Perhaps, there is need to strengthen work councils/committees in various companies as a way to encourage the participation of workers in the management of their workplace.[51]

 

 

Managerial Efficiency - The Employer’s Protection:

 

As Lord denning once observed, there are two sides of the industry-employers on the one side and the employees on the other. [52]The advent of collective bargaining has not by itself reduced or diminished the legitimate power of the employer in the management of his business. A trade unionist has stated that management believes that the right of management to manage must not be curtailed. His reason is that management holds a position of accountability to the shareholders, to consumers who are the public, to government and also to the employees.[53]

 

Redundancy is about the requirements of the company and not the individual. The management is in the best position to determine the requirements and direction of the company. Management’s primary interest is in the success of the enterprise.  Fry observes that public policy has discerned redundancy as a threat of ‘economic and technological stagnation caused by the undue restriction of managerial initiative and the unwillingness of workers to adapt to change’[54]

 

Redundancy may be inevitable particularly in this age of globalization and technological changes despite the resistance of the trade unions and attempts by management to find alternatives to redundancy. A company has the freedom to amalgamate, reconstruct or reorganise its business provided it is intra vires the company.[55] Management’s responsibility in the success and efficiency of the enterprise is well recognized.  Alan Flanders put it as follows:

 

Management’s primary commitment is to efficiency, its job is to organize the use of human and material resources to produce the best results with an economy of effort, working practices which are grossly inefficient are a challenge to management that it can only ignore at the price of professional incompetence.[56]

 

It is appreciated that the workers are attached to their jobs and communities and therefore resist changes in the work place particularly when such changes may lead to permanent unemployment as mentioned earlier. Because, there is no unemployment benefit in the Gambia and most of Africa, the elaborate provisions on Notice and payment for redundancy would appear to be justified as a way of reducing the hardship of dismissal and prospect of a long unemployment. However, not everyone who is unemployed is in that situation because of redundancy. Some have lost their jobs as result of sickness. What has the law done for them as it has done for redundancy?

 

However, we must not lose sight of the fact that many redundancies are caused by the enterprise experiencing financial difficulties. Sometimes parent companies’ financial problems have led to job losses at their subsidiaries. How then can a company struggling financially be able to meet all the conditions listed in sections 93 and section 57 of the Labour Act? As has been pointed out, the’ only thing that is worse than being exploited is not being exploited.  For many people the alternative to having low wages and bad working conditions is no wages at all.’[57]

 

Conclusion

 

The present levels of redundancy Payment and Notice may be a little high particularly for small companies. Without any financial contribution by the state, the redundancy payment will increase employer costs and hamper employment creation. With high unemployment [58] it may be necessary to weigh the advantages of the redundancy payment with the increase in employer costs.

 

It is possible to get a better severance package than the one provided in the Labour Act. However, that should be a matter of contract between the employer and employee. This will ensure that payments are linked to agreement and ability to pay. It is hoped that trade unions should assist workers through collective bargaining to negotiate better redundancy packages. It is suggested that the law should set a minimum amount or percentage of salary/allowance per month below which no employee should receive as the current levels are bit high and will discourage investment and creation of jobs which are needed in the economy. As an arbitral tribunal once put it ‘to protect investments is to protect the general interest of development and of developing countries.[59]

 

 

 

 

 

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[1] Cap 56.01 Laws of The Gambia. The Labour Act does not apply to the public sector see section3(2)

[2]Akintunde Emiola, Nigerian Labour Law (4th edn, Emiola Publishers 2008)128

[3] The Point, ‘Kololi Beach Club found liable’ (The Point Monday 22April 2013) http://thepoint.gm/africa/gambia/article/kololi-beach-club-found-liable accessed 18 March 2019

[4]  See section 83(1) Labour Act on grounds for termination

[5] Richard Epstein, ‘In defense of the Contract at Will’ (1984) 51 University of Chicago Review 947

[6] Robert Fryer, ‘Redundancy, Values and Public Policy’ (1973) Industrial Relations Journal vol 4 no2 Mercury House Business Publications Ltd London 2

[7] Interview conducted by writer at the office of the Labour Commissioner Fajara The Gambia 31 redundancy cases were recorded for 2018 while 12 cases have been recorded for 2019 Jan-feb .

[8] Youth unemployment is at 38% as at 2014 according to the last labour  force survey. https://w.w.w.export.gov/article?id=Gambia-labor-Policies-Practices accessed 14 March 2018.

[9] Cap 5 vol1 laws of the Gambia 1990

[10]( 1963) 2 All ER 66

[11](1966) 2 All NLR 87

[12] Emiola p.149 see note 2

[13] See S.132 (1)of the 1997 Constitution on the High Court’s jurisdiction

[14] S.92(2) (a) of the Labour Act provides for reinstatement or re-engagement as a remedy for unfair dismissal

[15] (1997-2001)GR 220

[16] (1997-2001) GR 512

[17] (2002-2008) GLR vol 1

[18] See s.55 for the notice required for termination to pay wages at monthly rate is one month, fortnightly when employee has been employed for less than 6years is one fortnight, if continuously employed for at least 6years one month’s notice

[19] Section 83(2) expressly excludes an employee’s pregnancy, absence from work for less than two weeks, HIV/AID’s status, membership of a trade union, filing of a complaint or participation in proceedings against an employer alleged to have any laws, regulation or collective agreement , police investigation involving the employee but unconnected with the suitability of the employer for employment.

[20] Section 85 provides for summary dismissal which the Act defines to mean terminate the contract of the employee without notice or with less notice than that to which the employee is entitled by statute or contract. The grounds include serious misconduct, habitual neglect, lack of skill, misrepresentation on which the contract is based.

[21] S.89 provides that before an employee is dismissed the employer shall explain and give the employee an opportunity to be heard. Failure to comply with this section raises a presumption that the employer did not act with justice and equity in dismissing the employee.

[22] See section 90 of the Labour Act 2007. The reasons must be connected with the capacity, conduct of the employee or operational requirements of the enterprise

[23] Civil suit No. HC/473/11/CL/075/CO

[24] See s.89 Labour Act, BICI v. NDOW (1995/96) GR 44 at 50. The Court of Appeal held that section113 now section 89 of the Labour Act requires the observance of natural justice and it is now mandatory that the employee must be heard in his defence before dismissal or termination, the audi alteram partem principle is now mandatory.

[25] Abake v. Williams civil appeal No090/2016

[26] L.B Curzon, Dictionary of Law (5th edition, Financial Times Pitman Publishing 1998) 316

[27] See also Chitty on Contracts-Specific Contracts 27th edition at 37-179 defines redundancy as (a) the cessation or intended cessation of the business for which the employee was employed either generally or in the place where the employee was employed or (b) the diminution or expected diminution of the requirements of that business for employees to carry out work of a particular kind either generally or in the place where the employee was employed.

[28] Simon Deakin & Gillian S. Morris, Labour Law (6th edition Hart Publishing  2012)  5.155 , 562 .see also Safeway stores  V. Burrel (1997) UK EAT 168,962401 (1997)IRLR 200,  Haden v. Cowan (1982) IRLR 314

[29] Civil Appeal no. 090/2016

[30] S.20 Labour Act Cap L1 2004 Laws of the Federation of Nigeria

[31] Ibid

[32] S.64(1) provides that unless provided in the contract, an employee is not bound to continue in employment if the employer removes the employee’s  place of employment more than 40km from its previous location. S64(2) an employee is deemed to have consented to employment at a new location if he continues in employment  at that location for a period of 4weeks without protest.

[33] S.93(4) exempts an employer with 5 or less employees in aggregate in all his establishments from the conditions listed above and an employer who has agreed with a trade union on a method of selection for dismissal and the terms of compensation for dismissal and has honoured that agreement.  S.95 provides that the Minister may by order published in the gazette exempt an employer from the application of sections 82 to 94 on condition that the employer so exempted has agreed in writing with a trade union whose members are his employees to provide rights and mechanisms which in the opinion of the Minister are as favourable to the employees as those provided in sections 82 to 94

[34] S.57 & S.58

[35] Gavin Barret, the Law on downsizing-some reflections on the experience of redundancy payments legislation in Ireland (1998)20 Dublin U.L.J 1 page 30

[36] Article 24 UDHR

[37] Gavin Bannet, page 31. A possible basis of the accrual of right principle is the moral principle of necessite oblige making the employer owe a duty of care to the employee because the employee depends heavily on her.

[38] (1969) ITR 100 at p.101(CA)

[39] In some jurisdictions like Ireland there is a rule that an employee with less than two years’ service is not entitled to statutory compensation. note 32 at page12

[40] Roger J.Smith, Property Law cases and materials ( 2nd edition Longman, 2000)  12

[41] Weynes v.Southrepps Hall Broiler farm Ltd (1968) OTR 407 (( E.A.T)-408 per Sir Diarmuid  Conroy

[42] Ron McCallum, justice at work: industrial citizenship and the corporatization of Australian Labour Law, Kingsley Laffer memorial lecture, University of Sydney (2005, 11th Apri) https//doi.org/10/1177/0022185606062826 accessed  3rd  April 2019

[43] M.T Okorodudu-Fubara, the worker and privatization of public enterprises in Nigeria (1988) Ile Ife page 2.

[44] David Perfect , organized labour and politics in the Gambia (1960-1985) Labour Capital and Society (1985) pp168-99

[45]  The 1997 Constitution S.25(1) (e), also  S.107 Labour Act 2007. S.50 Labour Act nullifies any provisions prohibiting trade union membership

[46] S.25 (1)(d)of the Constitution

[47] S.96 & S97 Labour Act. Any group of 50 workers having as its principal objects,the regulation of terms and conditions of employment may be registered as a trade union.

[48] S110 Labour Act

[49] S. 111 (1) Labour Act

[50] The Point newspaper Tues May 3 2016 thepoint.gm/Africa/gambia/article/gambia-labour-congress accessed 13th April 2019

[51] Ron MacCallum see note 40

[52] Boulting V. Association of cinematograph Television and Allied Technicians (1963)2 QB 606,622

[53] Akanimo Etukudo, quoted in Emiola, Nigerian Labour Law page 574

[54] Robert H. Fryer, Redundancy, values and Public policy Industrial Relations Journal vol 4 No.2 (1973) Mercury House, Business Publications Ltd, London page 3

[55] See s.531Companies Act 2013

[56] Ibid Robert  Fry, page 6.The court has also recognized the importance of managerial rights in the case of Hindle v.. Percival  Boats Ltd (1969)1All  ER 836 CA,  see also North Riding Garages Ltd v. Butterwick(1967)All  ER 644

[57] Hugh Collins,Gillian Lester & Virginia Monouvalou, does labour law need philosophical foundations, ssrn-id3333095.pdf page 25

[58]  See note 8

[59] AMCO V.INDONESIA –decision on Jurisdiction 25sept 1983 cited in International Investment Law Peter  Muchlinski et all (2008) Oxford University  Press, page 9