Attestation, Unilateral Alteration or Adverse Variation
of The Condition of Service, Employer Duty to Give information
The appellant worked as an accountant under a written
contract during the course of employment, he noticed he was being paid below the
prescribed minimum wages and conditions of employment. Later, the respondent directed him to prepare new salaries based on the Minimum Wagesand Conditions of Employment Order of 2012 as set out in Statutory Instrument
No. 46 of 2012. He did so, but the director was not happy that the appellant
prepared himself a new salary. The director demanded his imposed computation on an hourly rate apply or the appellant gets dismissed. The appellant refused to
accept this as the hourly rate computation, reduced his salary adversely. The respondent then paid the new salary the appellant
apportioned himself for two months before firing him.
Whether the respondent could vary the contractual obligations
Whether an employee who questions
an employer on issues to do with his emoluments and his contractual rights
commits a dismissible wrong.
3. Whether the appellants’ employment contract was subject to attestation according to the Employment Code Act.
The court held that contractual obligations cannot be
overlooked merely because it is convenient for one party to do so. Unilateral
alteration or adverse variation of the condition of service, which negatively
imparts an employee amount to a wrongful termination entitling the employee to
receive damages. Thus, the respondent was wrongfully terminated.
The court held that it does not accept that an employee in the appellant's position who questions and disagrees with the employer on issues to do with his emoluments and his contractual rights commits a dismissible wrong. Being vigilant is not insubordination and if the procedure of dismissal was done the appellant was to be heard according to the rules of natural justice. The court further declared, however, that the law clearly says that an employee who has committed a dismissible offence and has been dismissed for failure to comply with the procedure of dismissal, dismissal still stands. Failure to comply with the procedure to dismiss an employee does not invalidate the dismissal.
The court held that the appellant was an accountant. He
is no doubt literate; he understood the contract of employment. Attestation is
only available to vulnerable employees, the illiterate and those who cannot
understand the language.
Download the full case here