Cotonou Court of First Instance, First Class, 7 December 2009, Case No. 05-2005
Constitution of the Republic of Benin
(…) We proclaim our adherence to the principles of democracy and Human Rights as defined in the 1945 Charter of the United Nations and in the 1948 Universal Declaration of Human Rights, the African Charter on Human and Peoples’ Rights, which was adopted in 1981 by the Organization of African Unity and ratified by Benin on 20 January 1986, and whose provisions form an integral part of the present Constitution and of Benin law and have a higher authority than domestic law; (…)
The rights and duties proclaimed and guaranteed by the African Charter on Human and Peoples’ Rights, which was adopted by the Organization of African Unity in 1981 and ratified by Benin on 20 January 1986, form an integral part of the present Constitution and of Benin law.
Treaties or agreements which have been ratified by the established procedure shall, upon their publication, have a higher authority than the laws, provided that each agreement or treaty is applied by the other party.
Dismissal , Protection against discrimination in employment and occupation
Direct resolution of a dispute on the basis of international law
Discrimination based on grounds of sex/ Maternity protection/ Unfair dismissal/ Prohibition on dismissing a woman during pregnancy, maternity leave or the subsequent period/ Direct resolution of a dispute on the basis of international law
A woman became the victim of a traffic accident and was rendered incapable of working for nearly two years. The employment relationship between herself and her employer was not set down in any written agreement. During this period of incapacity, the woman became pregnant and informed her employer. Even though he was aware of her condition, her employer ceased paying her, alleging that he was justified in dismissing her because of her abandonment of her workplace, unjustifiable absences and refusal to obey orders.
After the birth, the woman returned to speak to her employer and he demanded that she should sign an agreement in order to ‘reinstate’ the employment relationship. The plaintiff claimed that this amounted to a violation of the obligations of her employer and maternity protection, apart from the fact that she had not been paid 6 months’ wages.
The judge treated the case as a matter of discrimination and immediately referred to ILO Convention 111. The judge continued by reviewing the domestic legislation and, finding it to be perfectly in line with international labour standards, explained that he would base his judgement on international labour law and domestic law:
"Considering that discrimination violates fundamental individual rights and social justice; that Convention No. 111 of the International Labour Organization (ILO) on discrimination, which entered into force on 15 June 1960 and ratified by Benin, prohibits any distinction, exclusion or preference based on criteria such as sex, race or political opinion, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; that social legislation in force in Benin, namely the Labour Code and General Collective Labour Agreement, reflects this commitment by the International Labour Organization; that Article 171 of the Labour Code states that no employer may dismiss a woman who is pregnant, be her pregnancy medically confirmed or apparent; that, moreover, the General Collective Labour Agreement of 17 May 1974 stipulates in Article 44 paragraph 2 that ‘employers shall consider the status of pregnant women regarding working conditions. Pregnancy cannot by itself be grounds for dismissal’."
In reviewing the case, the judge found that the following facts were proven: that the incapacities and the pregnancy were documented in medical certificates duly and appropriately notified to the employer, that this led to the cessation of payments and that the reason given for ending the employment relationship was the fact that the pregnancy was consecutive to a period of incapacity by the employee. Basing his decision on ILO Convention No. 111 and domestic legislation, he therefore found that the employer had failed to comply with his obligations and failed to offer the protection due to a pregnant woman, and that termination of the employment relationship under such conditions constituted discrimination based on grounds of sex, which also involved maternity, matrimonial status and family situation. Because the employment relationship was unfairly terminated, the judge therefore ruled that compensation should be paid for the dismissal and also compensation for damage and harm in accordance with the laws of Benin.