Antsirabe Labour Court, 22 May 2006, Case No. 13/RG/TT/06
Constitution of the Republic of Madagascar
(…) Considering its geopolitical situation in the region and its committed participation in international entente, and adopting: - the International Charter of Human Rights; - the African Charter on Human and Peoples’ Rights; - the Conventions on the rights of women and of the child, and considering these to be an integral part of its law, (…)
Article 82, paragraph 3(VIII)
(…) Treaties or agreements which have been duly ratified or adopted shall, upon their publication, have higher authority than the laws, provided that each agreement or treaty is applied by the other party.
Establishment of a jurisprudential principle based on international law
Report of the International Labour Office1
Contract between a security company and a person for employment as a guard/ Contract considered by the parties as “provision of services”/ Recognition of the existence of a principle of primacy of the facts inspired by the work of the ILO/ Reclassification of the contract as an employment contract by the Tribunal/ Establishment of a jurisprudential principle based on international law
A person was hired by a security company to carry out guard duties under a service agreement. After more than five years of work, the company unilaterally terminated the contract. The guard asked the Labour Tribunal to confirm the existence of an employment contract with the company and to obtain compensation for illegal dismissal.
The security company alleged, firstly, that Article 11 of the agreement signed with the claimant expressly excluded the existence of an employment relationship and that, secondly, there was no continuous employment relationship with the guard. The services provided by the claimant were characterized by their intermittence “in accordance with the needs of the clientele”.
After having recalled the definitions of the terms “employer” and “worker” defined by the Malagasy Labour Code, the Court pointed out the existence of a general principle of primacy of the facts as defined by the report of the International Labour Office on the employment relationship presented to the International Labour Conference in 2006 and under which “the existence of an employment relationship must be determined by the reality of what has been agreed and carried out by the parties and not in accordance with the way in which one or the other or the two described the situation.”
On the basis of that principle, the Tribunal sought to determine whether the claimant had in fact carried out an autonomous activity of provision of services or whether, on the contrary, he had carried out his work as an employee.
After having noted that the claimant carried out his activity only for the sole profit of the defendant, the court also noted that the working hours were set unilaterally by the security company and that the latter also had a disciplinary power over the guard, as was shown by the existence of a warning letter.
Based on that body of evidence, the Labour Court of first instance of Antsirabe considered that the parties to the litigation were indeed linked by an employment contract and that termination of that contract initiated by the company was illegal since the provisions of the Labour Code concerning dismissal had not been respected.
1 ILO: The Employment Relationship, Report V(1), International Labour Conference, 95th session, Geneva, 2006. In June 2006, the ILO Recommendation concerning the Employment Relationship, 2006 (No. 198) was adopted.