Ouagadougou Labour Court, Worokuy Esaie v. Clinique des Genêts, 8 January 2009, Judgment No. 008
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.
Employment relationship , Minimum wages
Direct resolution of a dispute on the basis of international law
Determination of the existence of an employment relationship/ Non-compliance with existing minimum wages/ Direct resolution of a dispute on the basis of international law
Claiming wrongful dismissal, an employee of a private clinic who did not have a written contract had brought proceedings before the labour inspectorate, seeking to have the employment relationship and the associated rights recognized, including in particular payment of the difference between the wages agreed and the wages actually received. In the absence of an amicable settlement, the claimant brought the dispute before the Labour Court.
On the first point, under Article 38 of the Labour Code and noting the exercise of an occupation under the direction and authority of the employer in return for remuneration, the Court recognized the existence of an indefinite employment contract, while the employer claimed that it was a matter of a “stage”.
On the second point, although the applicant was unable to prove the monthly wage of F 200 000 agreed with the clinic, the Court nevertheless ruled that in the absence of a specific provision establishing the wage he was entitled to for the position occupied, the applicant was nonetheless entitled to the wage differential calculated on the basis of the Salaires Minima Interprofessionnels Garantis (SMIG) [guaranteed inter-occupational minimum wages]. The Court relied on Article 4 of ILO Convention No. 26 on Minimum Wage-Fixing Machinery as follows:
“ … Article 4 of ILO Convention No. 26 on Minimum Wage-Fixing Machinery provides that any worker who has been paid wages at less than the rates applicable to them shall be entitled to recover, by judicial proceedings, the amount by which he has been underpaid”.
The Tribunal also referred to the amount of the SMIG, i.e. F 30 684.
The Ouagadougou Labour Court accordingly ruled that under ILO Convention No. 26 and on the basis of the SMIG provided for by a national instrument, the monthly wage could not be less than the minimum wage fixed and ordered the employer to pay the difference between the wages received and the minimum wage for the duration of the contract.