Cotonou Court of First Instance, First Class, 20 July 2009, Case No. 54-2002
Constitution of the Republic of Benin
Preamble
(…) 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; (…)
Article 7
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.
Article 147
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.
Benin
Dismissal , Maternity protection
Reference to international law to strengthen a decision based on domestic law
Non-ratified treaties1
Maternity protection/ Unfair dismissal/ Prohibition of dismissing a woman during pregnancy/ Maternity leave or the subsequent period/ Reference to international law to strengthen a decision based on domestic law
After giving birth, a woman was diagnosed with an illness that temporarily prevented her from making any type of movement that involved impact or blows to her body. Her work previously required her to travel on a motorbike every day. In view of this, her employer sent her a letter during her extended maternity leave dismissing her on the grounds of physical incapacity and stating that it was impossible to reallocate her to a job consistent with her health status.
The plaintiff claimed that this amounted to unfair dismissal and asked for the payment of compensation.
The judge of first instance referred to Article 8 of ILO Convention No. 183 and to articles 170 to 172 of the Benin Labour Code:
“(…) Article 8 of Convention No. 183 of the International Labour Organization (ILO) (…) on maternity protection states that it is unlawful for an employer to dismiss a woman during her pregnancy, maternity leave or a period following her return from leave, except for reasons unrelated to pregnancy, childbirth and its consequences or nursing. The burden of proving that the reasons for dismissal are unrelated to pregnancy, childbirth and its consequences or nursing shall rest with the employer. After maternity leave, a woman must be assured, on her return to work, of finding the same position or an equivalent position paid at the same rate.
(…) [T]he law of Benin provides maternity protection identical to that provided internationally through the Labour Code, law No. 98-004 of 27 January 1998, articles 170-172.”
The Benin Labour Code provides the right to a period of maternity leave before and after childbirth, which can be extended in cases of certified illness resulting from pregnancy or childbirth. No employer can fire a woman during these periods.
On these grounds, the judge declared that having dismissed this woman during the period of sick leave after childbirth meant that the dismissal was clearly unfair. The judge sentenced the employer to pay a sum as compensation for the unfair dismissal and for the damage and harm caused.
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