Abel Faton v West African Power Pool (WAPP) (ECW/CCJ/APP/29/19; ECW/CCJ/JUD/24/21) [2021] ECOWASCJ 26 (7 July 2021)

THE CO!'vllvHJNITY COURT OF . JUSTICE OF THE ECONOMlC COMMUN ITY 0. F \VEST Ar RlCAN STATES (ECO\VAS) In the lv1atter of ABEL FA TON v. \VEST AFRICAN PO\VER POOL (\VAPP) Applicatio11 :'Vo: ECWICC. IIAPP/29/19; . Judgment No. ECWICC. JI. IUDIZ4/2/ JUDG1l1ENT ABUJA 7 JULY 2021 THE COLVtl\fUNTTY COURT OF JUSTICE OF TllE ECONOMIC COi\1NlUNlTY OF \VEST AFRTCAN STATES (ECO\VAS) ln the _\,fatter of ABEL FATON v. \VEST AFRICAN PO\VERPOOL (\Vi\. PP) Application No: ECW/CCJIAPP/29/19; Judgment No. ECWICCJ/JUD/24121 JUDG;MEl\/T ABU. IA 7 JULY 2021 TllE COM1v1UNITY COURT OF JUSTICE OF THE ECONOMJC COMNITJNTTY OF \VEST AFRfCAN STATES (ECO\V AS) MR. ABEL F ATON APPLICANT WEST Af"JUC.i\N POWER POOL (WAPP) RESPONDENT AND COMPOSJTlON OF THE COURT: Hon. Justjce Edward Amoako ASANTE - Presiding/ J udgc Rapporteur Hon . . Justice Gberi-Be OUATT ARA - l'vtember llon. Justice Januaria T. Silva Moreira COSTA - Member ASSISTED BY: Dr. Athanase ATANNON - Deputy Chief Registrar REPRESENTATJ01V OF PART/ES: Dr. Raymond DOSSA Mr. Djidjoue GBOYOU Counsel for Applicant Mr. Raoul Placide HOUNGBEDJI Counsel for Respondent J. JUDG1WE1VT: l. T his is the judgment of lhe Court read v irtually in open coutt pursuant to Article 8( I) of the Practice Directions on Electronic Case J\llanagement and Virtual Court Sessions, 2020. II. DESCRIPTION OF THE PARTIES: 2. The Applicant, Abel Faton is a citizen of the Republic of Benin and former cleaner at the \Vest African Power Pool (\V APP). 3. The Respondent is \Vest African Power Pool (\YAPP), a specialized agency of the Economic Community of \Vest African States (ECOWAS) created by A/DEC/5/12/99 of the Conference of Heads of State and Government, with Headquarters in Cotonou-Republic of Benin. 4. The Respondent is responsible for promoting and developing electricity generation and transmission, infrastructure, coordinating electricity exchanges among its Member States. Ill TNTRODVCTJOIV 5. T his Application resulted from an a:Jeged termination of a fixed-term contract of employment relationship between the Applicant and the Respondent that was renewed several limes. 6. l.t is the case of the Applicant that, during his period of employment with the Respondent, he received less than the minimwn wage for his category and that he was unfairly dismissed following an accusation of theft of cash against him, which was nevertheless dismissed by the Cotonou Court of First Instance. 7. He is claiming special and general damages from the Respondent covering under-paid salaries, salary arrear:;, leave allowance, severance pay and compensation for wrongful dismissal. JV. PROCEDURE BEFORE THE COURT 8. The Originating Application in French was fil ed at the registry or the Court on the 24 June 2019 and was served on the Respondent on 27 June 20 l 9. 9. On the request of the Respondent for an extension of time to file its defence, the Court granted an additional thirty (30) days to file the defence, which was effectively filed at the registry on the 15 August 2019, and served on the Applicant on the 2 September 20 19. l 0. The Applicant's reply dated 22 November 20 19, wa~ received at the Registry on 4 February 2020 and served on the Respondent on 7 February 2020. 11. The Respondent tiled a rejoinder on 13 tvlarch 2020 and was served on the Applicant on 15 June 2020. 12. At the encl of the written phase of the procedure, the case was heard on the 11 March 2021 where adversarial arguments between counsel for the patties were. made on the merit of the case. The case was then adjourned for judgment on the 30 June 2021. V. APPLICANT'S CASE a) Summary of facts 13. The Applicant states that he was recrnited after a job interview as a Maintenance Officer (Cleaner) in the suppo1t staff category of the Respondent eflective 3 June 2013 which said contract was renewed six (6) times, the last renewal elated 3 l July 2015; when he received a c.ontract due to expire on the 3 1 January 2016. 14. He contends that the \VAPP Slaff Regulations provide for a well-defined salary scale for every staff member and the Applicant who held the position of a Cleaner belonged to the category of auxiliary or support staff :tvfl-1 with the basic monthly salary or One Hundred and Eighty-six thousand (186,000) CfiA Fin the old salary scale and Two hundred and four thousand, Six hundred (204,600) CFA f with the new salat)' scale in force since I January 2015 pursuant to Resolution No. l 65/RES.06i11/l 4 on the application of adjustments approved by the ECO\VAS Commission for the benefit of the staff of its institutions. 15. The Applicant repeats the immediate preceding paragraph and contends forther that from June 2013 to J\llarch 2014, he \Vas paid CF AF 100,000 per month, in violation of the Respondent's sala1y scale which sets the basic salary of its support staff at CF AF 186,000. 16. He alleged that the under payment of salaries unjustly held by the Respondent over the period of ten (1 0) months amounted to Eight hundred and Sixty Thousand (860,000) CFA F. 17. Again, the Applicant is alleging that he was denied payment of his annual leave compensatory allowance for thirty-fom (34) month period, being Eighty-Five (85) days of annual vacation to be determi ned according to the salary scale in force dwing the period of his employment i.e. fifty (50) days before 1 January 2015 wi th the old salary scale at 186,000 CFA F per month and thirty five (35) days after I Januaty 2015 with :he new scale a t 204,600 CFA F per month. 18. According to the Applicant, his fixed term contract having been renewed more than four times, was automatically convetted into an open ended contract which the Respondent refused to acknowledge. 19. The Applicant alleges that on the 14 December 2015, while in the employment of the Respondent, one Ms. wfarie Aye, the Respondent's Administrative Officer suspected him of an alleged theft case of an undisclosed cash at the headquarters (Secretariat) of the Respondent. 20. Following the allegation of stealing rigainst him, the Applicant says that he was taken to the INTERPOL Police S tation in Tokplegbe, and in the process of interrogating him, he was beaten and locked up for seven days by the Police. That as a result of the beating, he had one of his testicles severely injured. He again claims that he was incarcerated in the civil prison of Cotonou from the 21 January 20 15 unti l he was acquitted by the court on the 5 February 20 16. 21. According to the Applicant, sonetime in the mid-Februa1y 2016, the Respondent's Accountant called lo pay him a Separation Allowance to cover his health expenses relative to the treatment of injuries sustained at the Tokplegbe Police Station. 22. On the 15 March 2016, the Applicant says he asked the Human Resources Officer for guidance on his case and he was advised to write a letter to the ~ management of the Respondent, which he did immediately. 23. A month later, in April 2016, the Applicant claims he again contacted the Human Resources Officer to inquire about his case, and he was informed that the Respondent was conducting an investigation to determine any liabilities. 24. As he was not receiving any response, on U1c Friday 27 May 2016, the Applicant again called the Human Resources Officer who implored him to be patient and wait for the results of the investigation and the decision of the authorities of the Respondent on the matter. 25. The Applicant is contending that the refusal of the Respondent to respond to his letter coupled with unsatisfactory explanation given by the Human Resource Officer clearly indicate that the Respondent has dismissed him from its employment, which to him is very unfair and wrongful. 26. The Applicant states that in accordance with the internal dispute resolution mechanisms provided for in A1ticle 87 of the Staff Regulations, he \-\-TOie on the 31 July 2017 to complain to the Secretary General and the members of the Executive Board ofilie Respondent but to no avail. 27. The Applicant states that he was compelled by the failure of U1e Respondent to attend to his case to engage and entnist the case to his counsel who also ref-erred the matter to the Secretary General of the Respondent by a mail dated 18 Dec.ember 2017, which did not receive any favourable out.come. 28. The Applicant is contending that the termination of his contract by the Respondent without any assigned reasons and in the absence of notice coupled with the non-payment of proper compensation makes the termination wrongful. b. Picas in Law 29. The Applicant relies on the following laws: 1. Articles 15 of the African Charter on I luman and Peoples Rights (African Charter); 11. Articles l2(a), 17(t), 18, 3I(c) & (e), 43(a) and 63 of the \VAPP Staff Regu lations; 111. Articles 2 of International Labour Organisation (ILO) Convention No. I 00 on Equal Remuneration of 195 I; 1v . lLO Convention No. 111 on Disc1imination 111 Employment and Occupation of 28 June 1958 c) Reliefs Sought 30. The Applicant seeks the following reliefs from the Court: ,. Declare the application admissibfo; ii. Order the Respondent 10 provide the salcuy scale in force since I January 2015 fr. Jr a comprehensive assessment of its salaries and various entitlemenls: iii. Order the Re.1pondent's Secretariat to provide the Applicunl ·s C'ertij1ca1e of employment and pay slips with his grades. iv. Order the Respondent to reimburse the Applicant his various pension and social security contributions. 10 be determined on !he basis of !he sala,y scale in force during his period of employment; v. Order the Respondent to organise a medical examination to estahlish the rupture of the Applicant's right testicle, in order to draw all the consequences; 31. In respect of monetary claims, the Applicant prays the Cou1t to order the Respondent to pay the Applicant tht: following: i. The sum of eight hundred and sixty thousand (860,000) CFA Francs, as underpayment <if salary unjustly deducted between June 2013 and Ivlarcb 2014; ii. The su11·1 o_ffive hundred and forty-six thousand eight hundred and fij1y (546,850) FCFA, as compensation for annual leave_: iii. The sum of nine million eight hundred and twenty thousand ei;:ht hundred (9,820,800) FCFA (amounl 10 be completed). as payment of salmy fi·om the time of his forced removal to the pronouncement of the decision o_f'the on the unfair dismissal; 1v. The sum of three mil!ion nine hundred and sixty-nine thousand two hundred and fort:; (3,969,240) CFA francs as severance pay (amount to be completed): v. The sum often millior. (10,000,000) CFA.fi·ancs as compensation fi)r the material and moral damage s1-!ffered as a result o_f the unfair dismissal as well as the loss of income, which is detrimental to the psychology of both the applicant and his family. 32. Alternatively, t he Applicant seeks the fo llowing reliefs: t. Order the.full payment o_f'his claims under a fine of 200,000 FCFA per day of delay asfi·om the notification of'th2 decision to be made; ii. Order the Respondent to pay the applicam, in full compensation fbr the damage suffered as a result of the discrimination he was su~jected to and his unfair dismissal. the sum of twenty-five million one hundred and ninety-six thousand eight hundred and ninety (25, 196,890) CFAfi·ancsfor all causes of damage combined (ammml to be completed); iii. Order the Respondent to pay all th<J costs and reimbursement of the legal fees and expenses incurred by the applicant in the presenl proceedings. VJ. RESPONDE1YTS' CASE a) Summary of facts 33. In its statement or defence, the Respondent states that its governance structure is divided into four including the General Secretariat which enjoys privileges and immunities stemming mainly from the HeadqtHltiers Agreement signed with the Government of the Republ ic of Benin on 25 July 2006. 34. T he Respondent states that by a letter dated 27 May 2013 with the subject "F,mployment Contract ", its Secretariat recruited the Applicant in the non permanent staff (temporary staff) category as a Maintenance Officer with effective 03 June 2013 on a salary of One Hundred Thousand (100,000) CFA francs, all benefits included (annexed as Exhibit 1: EEEOA I SG I fJAF I ma letter of 27 ivfay 20 I 3). 35. The Applicant had a cordial workin~ re lationship with the Respondent and his contract was renewed six times by the Respondent on the respective dates of 6 September 2013, 12 February 2014, I April 2014, 3 1 September 2014, 2 February 20 15 and 31 Ju ly 20 15 ( annexed as Exhibits 3 - 8) 36. According to the Respondent, in December 2015. one 1v1r. Harouna Coul ibaly, an Environmental Expert of the Respondent stationed at its headquarters reported of a missing cash amount of three million five hundred thousand FCFA (3,500,000 f<Cf A)from his office. 3 7 .following a complaint by l\..fr. Coulibaly to the Police, a flagrante delicto investigation was carried out by the Toklegbe Police Station, resulting in the arrest of several suspects, including the Applicant. 38. The respondenl alleged thal the Police investigation implicated the Applicant and he was subsequently remanded in Police custody under a warrant within the legal time frame to be processed and arraigned by the Public Prosecutor of Cotonou before the criminal judge of the Cotonou Court of First Instance who sits in Chamber over flagrant offences. 39. The Respondent says that indeed the Applicant was arraigned before coutt and after the arguments before the correctional judge, the judge ruled on the 5 February 2016 to discharge him on grounds of lack of sufficient evidence with the benefit of the doubt. 40. The Respondent is contending that the Applicant was nol acquitted bul was discharged for lack of evidence meaning he was not exonerated orthe accusation of the-fl. 41. The Respondent states that following the lhefl incidence, its relationship with the Applicant was tainted with suspicion and as a result, the Secretariat took the decision not to renew the contract orthe Applicant which had expired on the 31 January 2016. 42. The Respondent added that on 17 tvlarch 2016, the Applicant was paid his separation allowance in accordance ,vith the stipulations of the contract between the parties. 43. The Respondent adds that by letter referenced CRD/ASi0l461/12il7 dated 18 December, 2017, lawyers of U1c. Applicant wrote on his instructions to the Respondent demanding payment of a sum of Two million three hundred and sixteen thousand and fifty (2,316,050) in respect of alleged violation of the rights of the Applicant and prejudices suffered. B .. 44. On 29 January 20 18, the Respondent, by way of exculpatory letter referenced EEEON2018iSG /CJ/kab/020 responded to the letter of the Applicant's counsel explaining and indicating the reasons for the Respondent's inability lo pay any additional compensation to the J\ppl:cant. According to the Respondent, it was against this background that the Applicant instituted the present suit. 45. The Respondent denies under-paying the Applicant salaries when he was in its employment as a temporary worker and further contends that he was not entitled to any benefits aside those agreed and stipulated in his contract of employment. 46. The Respondent vehemently discounted the Applicant's argument that his temporary employment was constructively converted to an open ended contract when it was renewed more than three times. b) Pleas in law 47. The Respondent's defence is anchor:::d on Articles 9(c), IO, l 7(f), and 18 of the its Slaff Regulations. c) Reliefs sought 48. The Respondent seeks the following reliefs: t. Find that the Respondent enjoys privileges and immunities; ii. Find that the Respondent employment relationship is governed by f:VA PP General Secretariat Sta.ff Regula! ions; iii. Find that the Applicant belonged to the catego1y CJ( non permanent stafl<!f the Respondent,· tv. Find that the Applicant had a tempora,y contract; and v. Find that the remuneration of the Applicant was fixed in accordance with the provisions ofthe Regulations relating to non permanenl staff 49. Consequently the Respondent is ask:ng the Court to: 1. Adjudge and declare that only the Stajf Regulations of !YAPP General Secretariat is applicable in its working relationship with its staff; ii. Adjudge and declare thaL the Applicant did not suffer any discriminatory treatment in salary treatment; lll. Adjudge and declare that non-permanent 1¥APP staff..~ do not receive any additionai compensation, benefits, allowances, etc .. . iv. Adjudge and declare that the Applicant was not dismissed: v. Dismiss all the claims of the Applicant,· and vi. Order the Applicant to bear the costs of this action. 50. The Applicant and the Respondent fi led Reply and R~joinder respectively. The contents or the two processes are mainly legal arguments to substantiate their respecti ve narration of facts and shall be referred to where necessary in the Court's analysis. VJJ. JURJSDICTT01V Si. The Applicant's Originating Appliclltion reveals that he approached this Court in his capacity as a public servant of Economic Community of \Vest African States (ECO\VAS) hereinafter referred to as "the Community". Under Anicle 9 of the 1991 Protocol (A/Pl/7/91) as amended by the 2005 Supplementary Protocol (iVSP.1/01/05), the competencies of this Court are clearly provided. 52. Article 9 (1) (f) or the said Protocol, which is material to this case provides that "the Court has competence io adjudicate on any dispute relatiny: to the Community and its officials ". In this capacity, the Cou1t serves as an ECO WAS Public Service Court for the Community and its officials. 53. Since the Applicant instituted the pri!scnt suit in his capacity as a public servant of the Community against the Respondent as Conununity institution, the competence of this Comt in dealing with this matter is established and the Court so holds. VIII. AD1lflSSJBILITY 54. On access to the Court. A1ticle IO of the 1991 Protocol (A/Pl/7/91) as amended by the 2005 Supplementary Protocol (A/SP.l/01/05), gives access to both natural and juristic persons in certain circumstances. Atiicle 10 ( e) being the relevant provision to this suit, provides that access to the Court is open to: "Staff of any Community institution, after the Staff iv/ember has exhausted all appeal processes available to the officer under the ECO WAS Staff Rules and Regulations". 55. Suffice it to state that in the instam suit, the applicable rules and regulations contemplated by A1ticle 10 (e) (su:,ra) wi ll be lhc WAPP Staff Regulations which provides in part under A1ticle 87(b) that "The employee should.follow the procedure prescribed here (in the Regulationsj for bringing the complaint to 1\rlanagement ·s attention". Emphasis mine. This means that before any staff of the Respondent can initiate proceedings before this Cou11, he or she must have exhausted all appeal processes prov:ded for and available to him or her. 56. Jn the present case, the Applicant claims to have received a severance payment, whic.h implies dismissal aner his court case. At the request of the Human Resources Of.ficer, he consulted the Respondent's management in April 20 16 on the appropriate course of action . As he did not receive any follow-up, he called the Human Resources Officer again, but she asked him to wait until the results of the investigation were made available. 57. On the 31 July 2017, in accordance with Article 87 of the Staff Regulations, the Applicant activated the internal dispute resolution mechanism by writing to the. Secretary General of the Respondet:t for his grievances to be redressed but the Secretary General did not reply to his letter. Though the Secretary General refuted this claim and stated that he wrote to the App licant, the Cow1 notes that no committee was set up to decide on the appeal as submitted. 58. In the case of 1\1R. BABATUNDE ADEYF:A10 v. SYSTEA1E D'ECI-!ANGES D'liNERG!E EC\ViCCJ/JUD/30i 19 (Unreported) the Court fbund that i'vlr. Babatundc had exhausted all th e remedies provided for in the \VAPP Slaff Regulations despite the silence of the administration to all his appeals. The Court, theref()re, in I.he instant case holds that the Applicant is deemed to have exhausted the internal dispute resolution mechanisms upon fail ure of the Respondent to set up a Committee to address his concerns. 59. Therefore, having exhausted all the appeal processes available to the Applicant without resolution of his grievances, the Applicant's case is admissible for adjudication and the Co urt so holds. IX. 114ERITS 60. The Applicant's claim raises the following issues which shal l be analysed and determined in seriatim: 1. Allegation of discriminatory treatment of the Applicant: by Respondent; the 11. A I legation of breaches of contractual obligations by the Respondent; m. Allegation of multiple renewal of a temporary contract resulting into an open-ended contract; and 1v. Allegation ofwrongfol dismissal. a. On the llllegflfion of discdminat()r_v treatment 61. The Applicant claims that he was a victim of disc1imination on the grounds that he occupied the post oftv1aintenance Officer, a position, he says, falls into at least the category of auxiliary or support staff Ml- I and whose basic. monthly remuneration is One Hundred and Eighty-Six Thousand (186,000 CFA francs) in the old salary scale and Two Hundred and Four Thousand Six Hundred (204,600 CFA francs) with the new salary scale in force since I January 20 15 by virtue of Resolution No. 165/RES.06/J 1/14 on the application of adjustments approved by the . ECO\Vi\S Commission for the s taff of its institutions. 62. Howe ver, he contends that he only received the monthly sum ofOnc Hundred Thousand (100,000) FCFA between June 2013 and ~1arch 2014, resulting in a shortfall of Eight Hundred and Sixty Thousand (860,000) J:iCFA over a period of ten ( 10) months. He submits that this situation amount to violation of not only Vil APP Staff Regulations but also Article 15 of the African Chaiter and similar provisions in the Universal Declaration of Human Rights and the TLO Conventions I 00 and 11 l. 63. The Applicant states that one Nlr. Abdoulaye CHOUAJ'v11NOU, the Mail Officer of the Respondent, continued to receive his basic sala1y between the period when he was a temporary member of staff and the pe1iod of' his confirmation as a permanent member of staff. I-le therefore deduced that permanent and contract staff of the same or corresponding category receive the same basic salary. 64. In response, the Respondent refutes any discriminatory treatment and submits that the Applicant was recruited under a fixed-term contract that was renewed several times, with a very clear indication of his monthly salary. Furlhcrmore, the Applicant worked in the employment of the Respondent in the category of non-permanent staff and not in the catego1y of auxiliary or support staff as he tries to posit. 65. The Respondent contends that Article 10 or the 'NAPP Staff Regulations which provides for "grades and steps", contrary to the claim of the Applicant is not applicable to him since suc-h classification is not relevant to non permanent staff. The "grades and steps" are for the exclusive benefit of pennanent staff 66. Again, the Respondent, in discour.ting the claim of the Applicant to certain entitlements and benefits, recalls Article 9( c) of WAPP Staff Regulations, which provides that "Non-permanent slc!ff.~ do not receive additional compensation, benejtts, allowances etc. "which are for the enjoyment of only permanent staff. 67. The Applicant's employment contract dated 27 l\tfay 2013 (Exhibit- I), issued to him by the Respondent and which he duly accepted, was produced in evidence by him. The Court notes that the Applicant was recruited as a Cleaner for a three (3) months which suffered several renewals but at al I material times in his contract with the Respondent, it was succinctly provided that his monthly salary was One Hundred Thousanc. ( I 00,000) FCF A including all benefits. 68. It is pertinent to note relative to the instant case that, like all wage discriminations, it is a legal fact usually contained in an employment contract, and in order to. successfully invoke and challenge the condition of wage on the basis of discrimination, it is incumbent upon the Appl icanl to provide tangible proof that another member of staff was receiving a higher salaty than that paid LO him at the end of each month for the same work. 69. The above legal position was the ratiodecidendi in the case or JUSTICE PAUL UUTER DERRY & 2 ORS v. THI:, REPUBLIC OF GJ JANA JUDGA1ENT NO ECfVI CCJ/JUD/17/19 Ci!J Pg 32. (Unreported) where the Court held that ''For an action of discrimination to succeed, there must he established a difference of treatment in an identical or similar case ". The Applicant's reference to one Mr. AbdouJayc CHOUAl'v11NOU, the lv1ail Of'ficer of the Respondentwoefi.tlly falls short or discharging the onus on him since there is no proof that Jvlr. Abdoulaye was recruited in the same staff category of the Applicant. \Vork of a Mail Officer and a Cleaner differ in diverse wavs and mav attract different , . remunerations. 70. Sanctity of contracL is a general idea that once parties duly enter into a contract, they must honor their obl igations under thaL contract. Undo ubtedly, the Applicant was employed by the Respondent not as a permanent staff member but for a one-off job of three months (which suOcred several renewals on same terms) for which the conditions of employment, particularly salary were well specified and agreed upon by lhe parties. 71. T he Applicant having bee n employed as non-permanent staft: cannot arrogate to himself status of auxiliary or support staff with grades and steps as he has erroneously done to gro und his claim of discrimination. To this extent, the Court agrees with the Respondent that, in principle. grades and steps are classifications reserved for permanent staff who can evolve and move up the career ladder to which they belong and not non-permanent staff like the Applicant. 72. The Applicant's contract of employment is the law of the parties and since its terms clearly defines the conditions and capacity in which he was hi red by the Respondent, the Court is unable to find any d.isc-riminatory treatment meted out to him by the Respondent on the account of his employment. 73. Consequently, the Court holds that all the claims of the Applicant hinged on the alleged discriminatory treatment, including the sum of Eight Hundred and Sixty Thousand (860,000 FCFA) are dismissed. b. 011 the violatio11 of the Staff Regulations and co11tractua/ obligations by the Respondent. 74. The Applicant, relying on the provisions of Article 43 (a) of the WAPP Staff Regulations which state: --s,ajf members accrue annual leave at the rate <~l thirty (30j working days per year of active service", seeks an order to compel the Respondent to pay, for his benefit, the sum of FCF A five hundred and forty-six thousand, eight hundred and fifty (546,850 FCFA) as compensation for paid leave on the ground that he did not enjoy his annual leave as an employee of the Respondent for a pe1iod of thirty-four (34) months accruing a cumulated Eighty-five (85 days) of annual vacation. 75 . TI,e Respondent vehemently discounted the argument of the Applicant and submitted that Article 43(a) refoJTed to by the Applicant is not applica ble to him because he is a non-permanent staff member. 76. The Court observes that it is c learly stated in the Applicant's contract of employment that his fixed salary of One H undred Thousand ( l 00,000) FCF A includes all benefits. Also, Article 9 (c) of the WAPP Staff Regulations states that "Non-permaneni staff do n-Jt receive any additional compensalion, benefits, allowance, etc ... .. 77. For the reason that the Applicant is a non-permanent staff coupled with the express provis ion of the \. VAPP Staff Regulation which excl udes his category of staff from the enjoyment of the benefit being claimed, the Cou1t holds that the claim for the sum of Five Hundred and Fotty-Si x Thousand Eight hundred and Fifty (546,850 CFi\ francs) as payment of compensatory leave allowance during his employment fails and same is dismissed. 78. The Applicant contends that from the date of the fourth renewal of bis temporary contract of three (3) months, i.e. 2 Febr uary 2015, he could no longer be considered as a temporary contract staff. He supported his claim with A1ticle 17 (t) of the \.\/ APP Staff Regulations which states: ';An appointment is considered to be temporary where the relevant letter of appoinlment expressly states that the period of employment shall not exceed six months These appointments may be rene·wed three times for period~ 1101 exceeding six momhs each time ... " 79. In addition, the Applicant states that the failure to expressly state in his employment contract, notice period for termination of his appointment and details of probationary period, offends Anicle 18 of the 'vV APP Staff Regulations and must result in the reclassification of his contract from a temporary one to a pem,anent one. 80. ln response, the Respondent recalls its status as an ECOWAS institution enjoying privileges and immunities under the Headgua1ters Agreement signed between it and the Government of Renin on 25 July 2006. As such, the Respondent employs three categories of staff as specified in Atticle 9 of its Staff Regulations, namely: permanent international staff, permanent local staff (auxiliary or support staff) and non-permanent staff 81. The Applicant, vide a temporary contract, was employed in the non-permanent staff category of the Respondent. Having been employed as a temporary staff: he could not benefit from an indefinite conu·act for the obvious reason that the Respondent's Staff Regulations do not allow it and better still, permanent staff members under a fixed-term contract are recruited according to a regimented qualification criteria and a rigorous procedure which is not the case for the non-permanent Staff members. 82. The Court observes that the Applicant is re lying on the provisions of Articles l 7(t) and 18 of the Respondent's Slaff Regu lations to call for reclassification of his contract from temporary contract to a permanent contract which provide as follows: Article l 7(t) ·'An appointment is considered to he te,npora,y where the Article 18 relevant letter of' appointment expressly states that the period ol employment shall not exceed six months. Such appoinime111s may be renewed three times ./<Jr periods not exceeding six months each ... " "At the end of the recruitment procedures, !he Secreta,y General will issue Lefler ol Appointment to selected candidates which, upon acceptance and signing by the candidate, will constitute a binding employment contract and clearly state: the nature of appointment, the date of assumption of duty (Effective date); the duration of appointment, notice required to terminate the appointment: details of probation period; (see below); salary and benefits, specifically indicating the starling salary, and: any special conditions which may be applicable·•. 83. Clearly, Article 17 of the \VAPP Regulation limits the number of authorised renewals of a temporary contract not exceeding six months LO tlU'ee. It presupposed that after the third renewal of his appointment, the Applicant ought to have been denied any fu1ther renewal but the General Secretariat of the Respondent favourably granted him additional renewals. This ac t of the Secretariat cannot be faulted and construed to mean that the temporary employment of the Applicant, by virtue of that act, had been converted lo a permanent employment. 84. Tt is globally accepted practice that, based on the notion of protecting the employee in labour law, the principle of "interpretation in favor of ihe employee", which is a special form of interpretation meant to protect the ti} employee who is weak against the employer, is resorted to in cases of both administrative and judicial decisions. 85. 1t is, therefore, imperative to act in the light of this principle in interpreting Article 17 of the \V APP Staff Regulations, particularly how it was applied to the concrete case of the Applicant by the Secretariat in achieving a beneficial results to him. 86. Based on the foregoing analysis, the Cou1t holds that, contrary to the Applictmt's asse1tion, Article 17(() makes absolutely no mention that the temporary contract of a non-permanent staff member may be transfo1med into a contracL of indefinite duration. Again, the favourable application of the A1ticle to the concrete silllation of the ApplicanL by the Respondent's Secretariat is in line with besl international practices where workers are afforded the best protection of their sources of livelihood. Consequently, the claim of the Applicant for reclassification of his contract of employment under this heading is not sustainable and hereby dismissed. 87. The Court equally observes that, from lhc tenor of Article 18 (supra), and contrary to the Applicant's understanding of same, the Cou1t finds that it applies only lo employment contracts of the Respondent which are subject to a probationary period and not temporary contracts which may not exceed maximum duration of six (06) months. in such lesser duration contracts, terms of probation and notice for termination, though implied, arc not expressly stated even where they are applicable. d. On the 11/legation of wrongf11llu11j,1ir dismissal 88. The Applicant, arguing lhal he was in the employment of the Respondent when be was wrongfully dismissed, is claiming pension and social security ;;3 contributions, salary for the period of eviction, termination allowance and finally, damages. 89. lt is on records that on 31 January 20 16, the Applicant's last renewed temporary contract with the Respondent expired. I le had stopped working few months earlier, due lo the criminal proceedings against him. Ilowcver, the Applicant contends that he was not notified of any decision not to renew his contract and therefore his temporary conLract was deemed to be a contract of indefinite duration like some of his colleagues, or at least to have his contract tacitly renewed for three (3) months in view of his long period of unblemished service of more than three (3) years. 90. According to lhe Applicant, instead of renewing his contract on the 31 January 2016 or I February a t the latest, the Respondent did not carry out that substantive formality of renewal or non-renewal either on these dates or al any later date to date, but took a verbal decision, the date of which remains unknown and cannot be proven to dismiss him. 91. The Respondent submits that the Applicant was never dismissed. lie was apprehended and detained on 21 January 2016 for theft of cash from another staff member of the Respondent and was released on S February 2016. While incarcerated, he was unable to report lor duty until his contract expired on 31 January 2016. 92. The burden of proof required of a person alleging wrongful termination of his employment was stated in the case of DR. ROSE 1\.fBtlTOAlON AKO v. /¥EST AFRICAN A10NETARY AGENCY & 5 ORS (2013j CCJELR I @ pg. 13 para. 32 as follows: .. fl is a trite lmv that a party who alleges a wrongful termination of his contract of employment is hound to show or prove that he indeed had an employment with the D~fendant. He must plead or show by giving credible evidence ihat he had an employment that was terminated by the De/i.mdant. Once this burden is discharged by the Plaintiff in keeping with the principle of/aw that he ivho asserts must prove. the Plaintiff is further required by law both in his pleadings and hy credible evidence Lo show how the defendant wrongfully terminated his appointment. Ai the complete discharge of this burden by the Plaintiff the burden shifts to the Defendant to disprove the assertion". 93. The Court takes judicial notice of the last temporary contract dated 31 July 2015 which took effect on 1 August 2015 and expired on 31 January 2016. To this extent, the Court observes that the nature of such a contract cannot have the object or effect of g uaranteeing the Applicant a permanent employment or the tacit renewal of his temporary contract. T he duration of a temporary contract ends on its expiry date. 94. The Applicant, therefore, failed to prove that he indeed had an employment with the ·Respondent which was !A-Tongrully terminated. Consequently, the Applicant, who stopped working at the end of his contract ,vith the Respondent, cannot claim to have been dismissed and the Court so holds. 95. A court will only compensate an employee whose rights have been violated by the employer, inter alia, by not following due process in terminating his appointment. In the instant case, since the Applicant was not in the employment of the Respondent lo have been a victim of dismissal by the latter, all the claims of the Applicant hinged on the alleged 'A•Tongfrtl dismissal, including pens10n and social securiLy contributions, arrears in salary, termination allowance and finally damages fail and same dismissed. X. COSTS 96. The Applicant prayed the Court fbr costs of the proceedings urging the Court for an order directing the Respondent to pay to him the filing costs and legal fees as a result of this legal action. The Respondent also prays the Cou1t to order the Applicant to bear the costs of'this action. 97. Article 66 (I) of the Rules of Court provides, "A decision as to costs shall be given in lhe.finaljudgment or in the order, which closes the proceedings. ,. 98. In addition, Artie.le 66(2) of the Rules ofComt provide, ·'The unsucces4iil party shall be ordered to pay the costs if t.1--iey have been applied.for in the successji,I party ·s pleadings. " 99. \Vithout prejudice to the Rules of Court on costs, the Court under its inherent jurisdiction, wields a discretion to determine costs in certain circumstances. To this extent, having regard to the circumstances of this case involving an employee and his former employer, the Court will exercise its discretion to waive costs against Lhe Applicant as the losing party, and orders parties to hear their respective costs. XI. OPERATJVE CLAUSE For the reasons stated above the Court sitting in public after hearing both patties: On jurisdiction 1. Declares that it has competence to adj udicate on the Application; On admissibility 11. Declares that the Application is admissible; On merits iii. Dismisses all the claims of the Applicant against the Respondent; On Costs: 1v. Orders the parties to bear their respective cos:,;e:;.--....r_x-, Hon. Justice Edward Amoako ASANTE Hon. Justice Gberi-Re OUATTARA Hon. Justice Januaria T. Silva tvforeira COSTA Dr. Athanase ATONNON Deputy Chief Registrar Done in Abuja, this 7th Day of July 2021 in English and translated into French and Portuguese. 27