➥ CASE SUMMARY OF:
Etim Moses Essien v. The Gambia (2007) – ECOWAS
by “PipAr” B.C. Chima
ECOWAS – ECW/CCJ/JUD/05/07
➥ JUDGEMENT DELIVERED ON:
➥ AREA(S) OF LAW
Remuneration for equal work.
➥ NOTABLE DICTA
⦿ CONCEPT OF EQUAL SALARY FOR EQUAL WORK
Para. 27: “In labour law, the concept of equal work for equal salary implies that two or several persons who carry out the same job occupy the same position in an organisation must earn the same remuneration and have the same prospects for promotion, except where the employer justifies a difference in treatment by objective factors not related to any form of discrimination. We hold that the objective of the principle of equal work for equal salary is to prohibit every form of discrimination between individuals who find themselves under the same condition.”
⦿ EQUAL SALARY FOR EQUAL WORK CANNOT BE APPLIED WHERE PAYMENT SOURCES ARE DIFFERENT
Para. 30: “Indeed, the principle of equality of salary, which implies the elimination of salary discrimination based on whatever criteria that may relate to the person of the salaried worker, does not apply to the diversity of the sources of remuneration. Here, the salaries proposed by the Defendants are to be paid, not from the funds of the Commonwealth, but from the budget of the Defendants themselves. This was what was established as a principle, by Court of Justice of the European Union, in the 17th September 2002 Judgment on Lawrence and Regent Office Care Ltd. & Others (Report 1-07325-C.C.E.E.) when it stated that “the principle of equal work, equal salary, does not apply when the observed disparities in remuneration cannot be attributed to a single source’.”
➥ LEAD JUDGEMENT DELIVERED BY:
Hon. Justice Hansine N. Donli
Hon. Justice Aminata Mallé Sanogo
Hon. Justice Anthony a. Benin
Hon. Justice Awa Daboya Nana
Hon. Justice El Mansour Tall
⦿ FOR THE APPLICANT
Mr. James A. Kanyip.
⦿ FOR THE RESPONDENT
Mr. Emmanuel O. Fagbenle, Mrs Awa Bah, A.G Chambers, The Gambia.
➥ CASE HISTORY
The Applicant, Professor Etim Moses, is a citizen of the Community, of Nigerian nationality. The 1st Defendant, the Republic of Gambia is a Member State of the Community. The 2nd Defendant is a University of the said Member State.
The Applicant complained of the violation of his human right. The Defendants raised a Preliminary Objection of inadmissibility of the action, for lack of competence of the court.
The Applicant, who was a Lecturer at the University of Gambia filed his Application on 18th November, 2005 at the Registry of the Community Court of Justice. He states therein that by a letter referenced FCTC/GTA/ASD/GAB/77 dated 24th September, 2001, he was recruited by the Commonwealth Secretariat, through the Commonwealth Fund for Technical Co-operation (FCTC), as a Technical Consultant, on a two-year lectureship contract at the University of Gambia, for the State of Gambia. The said employment consisted of giving lectures at the Medical School of the above University. The Applicant accepted the employment and exercised his duty 7th February, 2002 to 4th February, 2004. As his contract was coming to an end, the Defendants approached the Applicant and proposed to him to continue with his services, promising him the renewal of his contract by the Commonwealth Secretariat. The Applicant thus continued to exercise his functions to the benefit of the University of Gambia without being paid, and this situation persisted till the 13th day of October, 2004, when he addressed a letter to the University of Gambia claiming his salary arrears. The University of Gambia then replied that the steps taken towards the renewal of his contract by the Commonwealth did not succeed, and as such, his salaries could not be paid to him upon the Commonwealth salary scale, but rather on the scale applicable to the University Lecturers, i.e. in Dalasis (the Gambian currency). The Applicant stood against it, and the University of Gambia terminated his employment by notifying him of the non-renewal of his contract as from 26th January, 2005. On 14 th February, 2005, the University of Gambia wrote a letter to the Applicant concerning the settlement of the salary arrears, calculated in Dalasis, plus an amount of US$6,000 representing an additional salary. The Applicant received the amount of US$6,000 and rejected the sums of money in Dalasis. On 18th November, 2005, he filed his Application at the Community Court of Justice.
➥ ISSUE(S) & RESOLUTION
[PRELIMINARY OBJECTION: DISMISSED]
I. Does the Court of Justice of ECOWAS have jurisdiction to adjudicate on the Case?
RULING: IN APPLICANT’S FAVOUR.
Para. 36: “The Applicant’s claims based on economic exploitation and a claim for equal salary for equal work are recognised by Articles 5 and 15 African Charter on Human and Peoples’ Rights. These provisions are applicable to this Court by virtue of Article 4(g) of the Revised Treaty, and Article 10(d) × Individuals on application for relief for violation of their human rights; the submission of application for which shall: i. Not be anonymous; nor ii. Be made whilst the same matter has been instituted before another International Court for adjudication; of the Court’s Supplementary Protocol.”
II. Are the rights being claimed by the Applicant positively established by contract or statute?
RULING: IN APPLICANT’S FAVOUR.
Para. 34: “the Court adjudges that the claim for these rights, the even if in part, is justified, because they constitute fundamental human rights enshrined in texts and instruments (Article 10 1966 International Pact on Civil, Economic and Social Rights, Article 7 ACHPR) adopted by on ECOWAS and ratified by the Member States.”
[ON MERIT: DISALLOWED]
I. Has the Applicant been exploited economically by the Defendants?
RULING: IN RESPONDENT’S FAVOUR.
Para. 25: “In basing his Application on the concept of economic exploitation, the Applicant does not demonstrate in what sense his human dignity has been damaged. The Court does not see how he has lost his legal status, and much less can the Court find any elements of torture whatever. Indeed, as a general rule, and in labour law, we talk of economic exploitation “when an individual, who is normally engaged on a remunerated work, is not remunerated at all, or if he is, the remuneration he receives is below the real value of the work done” (Definition taken from Le Nouveau Petit Robert, 2008 edition; See page 984).” “They are the debtors for the case in contention, in this case, the fact that they offered the payment in a currency different from that of the Commonwealth, does not in itself, cause any damage to the dignity of the Applicant, nor does it deny him of his legal status. Neither does the payment proposed in Dalasis involve any elements of torture or cruel, degrading treatment. Both parties honestly believed the Commonwealth would accept to pay, but that did not materialise.”
II. Have the Applicant’s rights to equal work for equal salary been violated?
RULING: IN RESPONDENT’S FAVOUR.
Para. 29: “Consequently, the Court having already ruled that the Commonwealth is not a party directly involved in the litigation, it cannot apply the conditions of remuneration, by comparing them with those offered in the latter case in point, more so when the beneficiaries in the two situations are the same Defendants. The Court also recalls the principle derived from the law on obligations according to which “obligations are binding only on those who freely contracted them”, and states thereby that in the case in point, there has not been subrogation of the Commonwealth by the Defendants, and it shall not be binding on the latter to act as the Commonwealth did.”
Para. 31: “As it were, the Court emphasises the risk of possible discrimination between the Applicant and his other Lecturer colleagues in the same university, if he should be paid based on a different salary scale, for, the principle of “equal work, equal salary” also signifies that the employer is bound to offer the same remuneration “to the salaried workers placed under the same conditions”. This is the principle upheld in Judgment No. 5274 of 15 December 1998 delivered by the Social Chamber of the Court of Cassation of Paris in Case Concerning S. A. Aubin v. Chatel, where it is stated that “this obligation is binding on the employer even in cases where the salaried workers are of different nationalities.’”
“The issue is rather, that of finding out whether in the instant Applicant was a victim of under-payment vis-a-vis the other Lectures of the same university, and whether such treatment could be described in terms of a violation of the principle of equal work for equal salary. But, as things are, the action of the Applicant does not target a comparison with his other colleague Lecturers, but with the salary system obtaining in the Commonwealth Secretariat. And so, on this point, the Court finds that the principle of equal work for equal salary does not apply, on the grounds that the sources of remuneration are not the same. Consequently, the Court decides that there was no violation that principle.”
“Adjudges that there is no Human Rights violation of the Applicant, and consequently, dismisses the Application made by the Applicant and his other claims.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
✓ Article 15(4) of the Revised Treaty: Judgments of the Court of Justice shall be binding on the States, the Institutions of the Community and on individual corporate bodies.
✓ Article 76(2) of the Revised Treaty: Failing this, either party or any other Member State Authority may refer the matter to Court of the Community whose decision shall be final and shall not be subject to appeal.
✓ Article 19(2) of the 1991 Protocol on the Court: Decisions of the Court shall be read in open Court and shall state the reasons on which they are based. Subject to the provision on review contained in this Protocol, such decisions shall be final and immediately enforceable.
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)