Lomé Labour Tribunal, Ms SANVEE Karine v. La Brasserie du Bénin, 23 March 2004, no. 039/2004
Constitution of Togo
Treaties or agreements duly ratified or approved shall, from the time of their publication, have higher authority than laws, always subject, in the case of each agreement or treaty, to their application by the other party.
Equal remuneration , Protection against discrimination in employment and occupation
Direct resolution of a dispute on the basis of international law
Additional health insurance taken out by the employer for his employees/ Coverage rate/ Discrimination between national and foreign workers/ Definition of remuneration/ Direct resolution of a dispute on the basis of international law
The plaintiff was a retired employee, for the benefit of whom the employer had taken out an additional health insurance policy when she joined the company, as was the practice in the company. This policy, which should have continued to benefit the employee even after she retired, specifically provided the 100% reimbursement of health expenses. The former employee had asked for the reimbursement of expenses incurred following illness and faced a reimbursement rate set at 80% for the company’s pensioners. She thus had to refer to the courts to challenge the lowering of the coverage rate, which did not appear in the provisions of the insurance policy taken out. The employee had not been notified of this unilateral modification by her former employer.
The Lomé Employment Tribunal, to whom this claim was made, granted the pensioner’s application. Furthermore, the tribunal noted that, when studying the facts, the employer had taken out two types of medical insurance, one which provided a 100% reimbursement rate for its expatriate employees and their families and the other provided an 80% reimbursement rate for national employees. Highlighting that “the measure consisting of granting expatriates a coverage rate different to that of national workers indicates discrimination”, the tribunal examined this issue on its own motion.2
Relying on ILO Convention No. 111, ratified by Togo, the Court mentioned the definition of the term “discrimination” given in Article 1 of the Convention, to conclude that “employees of the same body cannot be treated differently or less favourably due to characteristics that are unrelated to their merit or the requirements of the job in question”.3
Also relying on the definition of the term “remuneration” contained in Article 1 of ILO Convention No. 100, the Court held that taking out additional health insurance for workers constituted a benefit paid by the employer to the worker due to their job. It thus concluded that “the measure that consisted of granting a different coverage rate depending on whether the employee was an expatriate or a national, created huge inequalities based not on an objective criterion for differentiation related to the work, but on the origins of the person concerned”.4
The Court thus declared the measure to be unfair and discriminatory and ordered the employer to comply “with the legal provisions in force and Togo’s international obligations on labour law by not allowing any distinction other than that based on merit or the requirements of the jobs held”.5
Directly applying ILO Conventions Nos. 111 and 100, the Lomé Labour Tribunal concluded that the measure was discriminatory as it aimed to grant a different level of reimbursement according to the nationality of workers.
This judgment by the Lomé Court was upheld on appeal in a ruling by the Lomé Appeal Court.6
6 Ruling of 4 January 2007, no. 01/07a, “Brasserie du Bénin v Ms Karine SANVEE”. Nonetheless, as the appeal made did not consider this question, raised by the first instance court on its own motion, the Court was satisfied, in this ruling, to apply the content of the judgment of the Lomé Labour Tribunal.