The COVID-19 pandemic has had a devastating effect on global economies and Cameroon is no exception. As world governments took different steps aimed at combatting its spread, the economic impact has been variously felt in different economic sectors, with the most hardly hit being the travel and tourism sectors.
In combating the spread of COVID-19, the government of Cameroon ruled-out imposing a total lockdown, rather opting for the implementation of social distancing measures such as the prohibition of gatherings of more than 50 persons, compulsory wearing of face mask, closure of national borders , and more exhaustively, the adoption of all recommendations by the World Health Organization.
The implementation of these measures is a moral and civic duty. In accordance with article 2 of Decision No 039/MTPS/MT of 26 November 1984 laying down the General Measures of Hygiene and Safety on Working Environment, employers are directly responsible for implementing all preventive, health and safety measures for the protection of the health of their workers.
Employers could thus modify the working conditions of their employees to guarantee their health and safety. However , this must be done in strict compliance with the provisions of article 42 of the Cameroon labour code which provides inter-alia that “a contract of employment, may, while still in force, be amended at the initiative of either party.
- Where the amendment suggested by the employer is substantial and is rejected by the worker, the termination of the contract that may result therefrom shall be the responsibility of the employer. Such termination shall be wrongful only where it is not justified by the interest of the undertaking.
- Where the amendment suggested by the worker is substantial and is rejected by the employer, the contract may be terminated only following the resignation of the worker.”
The existential threat posed by COVID-19 on business cannot be overemphasized. In order to remain a going concern, investors must strike a balance between measures aimed at guaranteeing employee health and measures aimed at ensuring the survival of their businesses.
MEASURES TO GUARANTEE EMPLOYEE HEALTH.
The following measures could be contemplated by employers in fulfillment of their obligations to guarantee the health and safety of their employees.
Provision of protective gadgets: Employers are required to provide their staff with appropriate protective apparels against the virus. This could consist of providing face mask, hydroalcoholic solutions, antiseptic soap and the constant supply of water on their jobsite.
Modification of working conditions: Employers could carry out non-substantial modifications to employee working conditions. The Cameroon labour code does not define what non-substantial modifications of working conditions are. However, case law holds that non-substantial modifications are those whose incidence on a contract of employment are negligible or nonexistent. Non-substantial modifications may be carried out without the consent of employees. However, it is advisable to involve staff delegates in the decision-making process. The following non-substantial modifications could be carried out for the protection of employees:
- Temporary changes to place of work: Employers could request employees to work remotely where the nature of their job does not require onsite presence. The Cameroon labour code does not specifically regulate the execution of employment contracts remotely. However, it is expected of employers to provide their employees with appropriate logistics to enable them efficiently render services remotely. For instance , the provision of good internet connection and computers just to name a few.
- Rotational system of work: A rotational system of work would be useful in minimizing physical contact and ensuring social distancing between employees. Employers could request employees working in the same office space or department to take shifts ensuring that while some work onsite, others work remotely.
Considerations for employees experiencing symptoms: It may arise that some employees request to be on self-isolation, are quarantined, or seek medical care if infected. In such circumstances, the concerned employees are required to notify their employers with a medical certificate issued by a licensed medical practitioner. Upon notification, employers may suspend the contracts of the concerned employees until such time as they are fit to resume services. Article 32 of the Cameroon labour code states that “ contracts of employment may be suspended during the workers absence in the case of illness duly certified by a medical practitioner approved by the employer or one belonging to a hospital establishment recognized by the State, for a period not exceeding six months”.
There is no general statutory period within which employees must notify employers of their illness. However, most sector Collective Agreements prescribe a deadline of 48 hours.
It should be noted that an employee whose contract has been suspended for illness cannot be dismissed unless the illness persists beyond a period of 6 months. The suspension of an employee’s contract for medical reasons shall entitle the employee to a compensation determined based on the duration of absence, category, and the employee’s years of service at the company.
MEASURES FOR THE INTEREST OF THE COMPANY
Employers facing economic hardship as a result of the COVID-19 pandemic may wish to implement measures aimed at keeping their company afloat. The following measures could be envisaged within strict statutory compliance:
Employee wage cuts: An employer cannot unilaterally impose wage cuts on his staff. This is because the reduction of an employee’s wage is considered a substantial modification to a contract of employment. Substantial modifications to a contract of employment are those whose incidence on a contract of employment are considerable, for instance, the reduction of employee wages , permanent transfer of the employee and generally ,any modification which is adverse to an employee’s interest. Substantial modifications of employment contracts can only be carried out with the consent of both parties. It is important to note that where an employee rejects substantial modifications to a contract of employment , such an employee cannot be dismissed unless such dismissal is done in the interest of the company (for instance, survival of the company). The termination of an employee’s employment in the interest of the company would not expose the employer to damages for unfair dismissal. However, the employer will have to pay the employee’s termination dues such as severance pay, payment in-lieu of notice and any outstanding benefits which may have accrued throughout his employment. It is advisable for employers to negotiate with staff delegates on the modalities of wage cuts before implementing such measures.
Negotiating anticipated paid leave: Consent of workers would be required if they have to be sent on anticipated paid leave. A worker cannot be coerced into vacation before his leave is due. An employer may only impose anticipated paid leave in the event of the closure of the company or as a result of necessity of service. In accordance with article 1(2) of Decree No 75/28 of 10 January 1975 on the Modalities for the Implementation of Paid Leave, employers may for necessity of service, bring forward or delay annual leave for a period of 3 months unless otherwise consented to by the employee or in case of partial or full closure of the company. It is however not clear whether necessity of service could be invoked in the event of economic hardship.
Temporary laying-off of staff: An employer faced with unfavorable economic situations or force majeure may suspend the contracts of employment of all or part of his employees for period not exceeding six months. Temporary Lay-off is the collective interruption of all or part of work by the personnel of an undertaking due to accidents or force majeure or an unfavorable economic situation.
The COVID-19 pandemic could indeed be considered a force majeure. However, employers must be experiencing economic hardship before implementing any temporary lay-off schemes.
During the period of temporary lay-off, employees will be entitled to a fraction of their salary throughout each of the six months of temporary lay-off.
CONCLUSION
The implementation of stringent restrictions on human activities as a means of fighting COVID-19 is not psychologically and economically sustainable. The progressive lifting of these restrictive measures is thus unavoidable. However, the lingering economic impact of the COVID-19 pandemic is not soon to go. Employers would therefore have to grapple with these protective and survival measures until normalcy fully returns.