The labour code, termination of contracts: issues of clarity

I have a bit of a love-hate relationship with our Labour Code (The main law that governs employment in this Country). On the one hand, I can appreciate that it is fairly comprehensive in certain respects and covers a lot of subjects that adequately reflect Rwanda’s national and international obligations on rights like discrimination, child labour and other similar principles ((And I can also commend it for one more thing- its brevity. At 120 pages, you will still have the will to live by the time you finish it. On the other hand, the Code can be frustratingly vague and there are many respects in which its real-world implications can be impractical or just baffling. One reason for this is that the Labour Code is so skewed in favour of the employee that one wonders how this was supposed to be a driver of investment in the Country. There is a pretty big gap between that principle, and the actual wording of the labour code. It is a good thing that we have a law that ensures dignity for workers and protects them from employers who may overreach (after all, the employer-employee relationship is rarely an equitable one in the first place). On the other hand, the law is so pro-employee that you can almost hear the French clapping with glee when you read it. There are many provisions where clauses are either explicitly pro-employee or vague enough to skew it in his favour anyway. One area where vagueness meets this pro-employee bias is the area of termination of a contract of employment. To start with, the code divides employment contracts into those of a fixed-term duration and those which are open-ended. The former is usually more common, as the parties would like clarity as to the length of the contract. In any case, there is nothing wrong with that particular categorisation, except when it comes to termination. The law technically only provides for termination in three cases: for gross negligence, for economic reasons and for ‘legitimate motives.’ The last of the three would ordinarily be the kind of clause which would restore some parity to the employee bias in the law and give the employer some leeway to hire and fire employees without undue restraints (it is usually the employee doing the terminating). However the ‘legitimate motives’ clause is explicitly tied to open-ended contracts in the law. There is no practical or legal reason why this should be the case, and this gives rise to a real absurdity in the law. Why shouldn’t both kinds of employment contract allow the parties to terminate for legitimate motives? The most likely interpretation of this is not to go by a strict reading of the law in this respect. One could argue that by failure to extend this termination power to contracts for a fixed duration, it was actually a mistake. Certainly, if you interpret this in terms of the ‘spirit’ of the law, then this would certainly make sense. Another alternative is to use the definition of ‘unfair dismissal’ in the definition of terms section of the law. Here ‘unfair dismissal’ is defined as ‘termination of an employment contract by the employer without justifiable reason or observance of procedures established by law. As this references employment contracts in general, it would seem to be a clear sign that the ‘legitimate motives’ provision applies to both kinds of employment contracts. In any case, the law certainly deserves some clarity on an issue as salient as this one. minega@trustchambers.com

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The labour code, termination of contracts: issues of clarity