Koudougou Labour Court, J.B. K. Sankara v. Orphelinat Pèdg Wendé, 5 February 2009, No. 003
Constitution of Burkina Faso
Treaties or agreements which have been duly ratified or adopted shall upon their publication have a higher authority than the laws, provided that each agreement or treaty is applied by the other party.
Protection against discrimination in employment and occupation
Reference to international law to strengthen a decision based on domestic law
Discrimination on the ground of religion/ Dismissal/ Distinction not based on a specific qualification/ Reference to international law to strengthen a decision based on domestic law
A teacher working in an orphanage had been dismissed on the grounds that he did not attend church regularly and his situation as an unmarried person with a child was not in line with the values upheld by the establishment. Believing his dismissal to be wrongful and discriminatory, he had taken his case to the Labour Court. The orphanage maintained that the teacher, an unmarried father of four children, was not behaving like a committed Christian, which was necessary if he was to help the orphans. However, the Court did not accept this argument.
After pointing out that Article 4 of the Labour Code prohibits discrimination in employment and occupation, and that Article 71, paragraph 2 of the same Code states that dismissals based on discrimination are wrongful, the Labour Court referred to ILO Convention No. 111. It thus affirmed that:
“Though it is true that, in accordance with paragraph 2 of the first article of ILO Convention No. 111, religion may be a qualification required in good faith for the exercise of a job or occupation, in this case the post of primary school teacher at the Orphanage did not require any special knowledge of religion, since Bible teaching was not part of the curriculum, nor on the timetable attached to the file, nor mentioned in the constitution of the foundation”.
To strengthen its decision, the Court therefore referred to paragraph 2 of the first article of ILO Convention No. 111, which excludes from the definition of discrimination distinctions, exclusions or preferences based on the qualifications required for a given job. Basing itself on this text, the Court sought to discover whether a specific qualification in religion was required for a teacher to be employed at the orphanage. It found that such was not the case.
By basing its deliberations on national legislation forbidding discrimination in employment and occupation and on the specific provision of Article 1 § 2 of ILO Convention No. 111, the Labour Court ruled that the orphanage, by according favourable treatment to Protestants Christians belonging to a certain Church when employing teachers, was impairing equality of opportunity and employment. It therefore declared the dismissal of the plaintiff to be wrongful, because it was based on this kind of discrimination.