Justice Jaiteh of the High Court has ordered ORYX Energy (Gambia) Limited to pay its former Information Technology Manager more than two million dalasi after finding that the company unfairly sacked him and attempted to justify the dismissal by invoking a contract clause.
Justice Ebrima Jaiteh delivered the Judgement, saying the oil and gas company had used the language of a normal contractual exit to cover what was in reality a disciplinary removal. Justice Jaiteh stated that the company had failed to comply with the law, had not treated the employee fairly, and had shown insensitivity toward his known medical condition.
The Judgement sets a precedent for how courts will treat the misuse of contractual termination clauses in employment disputes, particularly where an employee’s medical condition is a material factor in the circumstances leading to their dismissal.
“The law looks at substance, not mere form. An employer cannot avoid its legal obligations simply by choosing convenient language in a termination letter.” Justice Ebrima Jaiteh
Counsel: N.M.C. Cham & M. Roberts represented the plaintiff (Momodou Jallow) while Counsel A.S. Tambadou & I. Jallow represented the Defendant (ORXY)
Momodou Jallow worked as an IT Manager, first with Atlas Energy Limited from September 2015, and then with ORYX Energy (Gambia) Limited after it took over Atlas Energy’s operations in 2021. He continued in the same role without interruption until he was dismissed in August 2022.
After losing his job, Modou Jallow went to court and asked for the following: a declaration from the court that his dismissal was unlawful and unfair; damages of D7,595,000.00 for the unlawful termination of his employment; payment of all outstanding social security and pension contributions that the company owed in his name; interest on any sum awarded; reimbursement of the money he spent on legal fees; and any other orders the court thought were fair.
To support his case, Momodou Jallow gave sworn evidence himself and brought a second witness, a man named Modou Musa. He also tendered a large body of documents, including his professional certificates and qualifications, performance evaluation reports, internal emails, medical records, excuse-duty notes, and the employment and contractual documents that governed his relationship with the company.
Momodou Jallow told the court that he had built and managed the company’s entire IT infrastructure over the years and had always performed at a high level. His performance evaluation reports, which were placed before the court, showed that he regularly scored above 90% and received positive assessments of his work and technical abilities.
He also told the court that he is a sickle cell patient, a chronic and inherited blood condition that can cause periods of serious illness and hospitalisation, and that the company’s management had always known about his condition. Whenever he was absent from work due to his health, he provided medically certified excuse notes from his doctors.
According to Momodou Jallow, trouble began after he took medically certified leave in July and August 2022. When he returned to work on or about 4th August 2022, he found that his office access had been taken away, his work email had been shut down, his access to the company’s network and computer systems had been cut off, and the company had demanded that he return all company equipment. On top of all that, he was immediately summoned to a disciplinary hearing.
He attended the disciplinary hearing on 11th August 2022 and gave his response to the allegations made against him. Just five days later, on 16th August 2022, the company sent him a termination letter.
Momodou Jallow argued that his dismissal had nothing to do with the contract clause the company was relying on. He said the real reasons behind his removal were his sickle cell condition, his medically excused absences, unresolved allegations of misconduct and insubordination, and management’s frustration with him. Because those were disciplinary reasons rather than neutral commercial ones, he argued that the company was required to follow the rules for fair dismissal set out in the Labour Act, 2007, and it failed to do so.
ORYX Energy denied that anything unlawful had taken place. Its main witness was Dodou Njai, the company’s Operations Manager. The company’s position was straightforward: the employment contract contained a clause that allowed either side to end the employment by giving notice or paying money in place of notice. The company said it had done exactly that, and once it paid the money, the matter was finished and the law had been satisfied.
To back that up, the company pointed to Section 55 of the Labour Act, 2007, which says that nothing in the Act stops either party from ending an employment contract in line with its terms. The company argued that this section gave it the legal right to terminate the contract in the way it did, and that the court should not look any further into the matter.
The company also raised several complaints about Jallow’s conduct over the years, including persistent absenteeism, insubordination, failure to respond during emergencies, disrespect toward management, and general unreliability. It said these matters had harmed the company’s operations and productivity. It maintained that it had convened a disciplinary hearing, that Jallow had been allowed to respond, and that the process was properly followed.
In short, the company said it had paid Jallow what was owed, followed the contract, and was entitled to end the employment relationship without any further legal consequences.
Justice Jaiteh carefully went through the evidence from both sides and made several important findings.
On the company’s main argument, Justice Jaiteh said that Section 55 of the Labour Act cannot be read on its own as a complete answer to a dismissal case. Section 55 simply preserves the right to end a contract in line with its terms. But it does not remove the other obligations that the Labour Act places on employers. The judge said Section 55 must be read together with Sections 83 and 84 of the same Act.
Section 83(1) of the Labour Act says that an employer cannot terminate an employee’s job unless there is a valid reason connected to the employee’s conduct, capacity, or the operational needs of the business. Section 84 goes further and says that a dismissal is unfair if the employer cannot prove both that the reason for the dismissal was valid and that the process followed was fair. The two sections, the Justice Jaiteh said, are not optional. They apply in every termination case, regardless of what the contract says.
Justice Jaiteh said the company could not hide behind Section 55 when its own evidence and legal documents were full of references to misconduct, absenteeism, insubordination, and the Plaintiff’s medical absences.
“Those are not neutral commercial reasons; they are disciplinary grounds. And once a dismissal is connected to such grounds, the Labour Act’s protections automatically apply,” Justice Jaiteh pointed out.
Justice Jaiteh supported the reasoning with the decision of the United Kingdom Supreme Court in Autoclenz Ltd v Belcher [2011], which established that courts must look at the reality of an employment relationship, not just the words written in a contract.
In the same way, the Gambia Court of Appeal itself, in Access Bank Ltd v Mbengueh Bah, had confirmed that employers are bound by the fairness requirements of the Labour Act and that courts can award just compensation where those requirements are not met.
“Section 55 does not stand above Sections 83 and 84. It must yield to the broader legal command that termination must be supported by a valid reason and carried out through a fair process.” Justice Jaiteh pointed.
On the question of fairness, Justice Jaiteh found that the process the company followed was seriously flawed from the very beginning. Before the disciplinary hearing had even properly started, the company had already cut off the Plaintiff’s email, removed his office access, disabled his computer credentials, and taken back company equipment.
Justice Jaiteh said those were not ordinary administrative steps. They were the kind of actions you take when you have already decided to remove someone. They sent one clear message: the decision had already been made.
Justice Jaiteh referred to the foundational legal principle known as audi alteram partem, a Latin phrase meaning hear the other side. The principle, which is a cornerstone of natural justice and fairness in all legal proceedings, demands that before any decision is made that affects someone’s rights or livelihood, that person must be given a genuine and meaningful opportunity to respond.
The House of Lords established in the landmark case of Ridge v Baldwin (1964) that a decision made without respecting natural justice is void, meaning it has no legal effect at all.
Justice Jaiteh also invoked the long-standing principle from R v Sussex Justices (1924) that justice must not only be done, but must be seen to be done. He said a process infected by predetermination, where the outcome has already been decided before the hearing, cannot be called fair, regardless of the formalities that were observed on the surface.
On the Plaintiff’s medical condition, Justice Jaiteh accepted that Momodou Jallow was a sickle cell patient and that the company had known that throughout his employment. He noted that the company’s own documents repeatedly referred to the Plaintiff’s illness-related absences, making it impossible for the company to claim the issue was irrelevant.
Justice Jaiteh found that the timing of the disciplinary action, coming immediately after the Plaintiff returned from medical leave, strongly suggested that his health-related absences had triggered the company’s decision to remove him.
Justice Jaiteh said the company was entitled to be concerned about operational continuity, but concern alone is not a legal justification for dismissal. He cited the English case of East Lindsey District Council v Daubney (1977), which established that where a dismissal is connected to an employee’s ill-health, the employer must first make a proper inquiry, consult the employee, and fairly assess the medical situation before taking any action.
Justice Jaiteh also referred to Spencer v Paragon Wallpapers (1977), which recognised that dismissing someone for ill-health without conducting an adequate inquiry can amount to unfair dismissal.
“The company had done none of this. There was no occupational health assessment, no structured meeting to discuss the Plaintiff’s condition, no consideration of whether his absences were temporary or long-term, and no exploration of whether any adjustments could be made to support him.”
Justice Jaiteh said that while he was not making a formal finding of deliberate discrimination, the Plaintiff’s medical condition had clearly played a significant part in what happened, and the company’s handling of it fell below the standard the law requires.
On the misconduct allegations, Justice Jaiteh rejected the company’s case on several grounds. First, the alleged misconduct stretched back to 2016, six years before the termination. Throughout all of that time, the company had kept Momodou Jallow in his senior role, given him salary increases, and provided him with positive performance evaluations.
Justice Jaiteh said an employer cannot stay silent about alleged misconduct for years, continue to benefit from an employee’s services, and then suddenly use that same old history as a reason for dismissal when the relationship breaks down.
Second, there was no evidence of any structured or progressive disciplinary process. The company had not issued any formal written warnings, reprimands, or performance improvement plans during the years it now claimed to have been unhappy with the Plaintiff’s conduct.
Justice Jaiteh said that was a serious omission. An employer who claims an employee’s behaviour has been a persistent problem over the years would ordinarily have taken proportionate disciplinary steps along the way.
Third, the Plaintiff’s own performance records directly undermined the company’s story. The documented evaluations, some of which the company itself had produced, showed consistently high scores above 90%.
Justice Jaiteh said it was impossible to reconcile the company’s portrayal of Jallow as unreliable and operationally destructive with the same company’s written records showing him to be a high-performing, technically capable employee.
Justice Jaiteh applied what is known in employment law as the Burchell Test a standard established in the English case of British Home Stores Ltd v Burchell (1978). Under that test, an employer who dismisses someone for misconduct must show three things: that it genuinely believed the employee had committed misconduct; that it had reasonable grounds for that belief; and that it carried out a reasonable investigation before making its decision. Justice Jaiteh found that the company had failed on all three counts.
On the question of who needed to prove what, Justice Jaiteh applied the standard rule from the Evidence Act, 1994, which places the burden of proof on the party who would lose if no evidence were given. He also applied the civil standard of proof balance of probabilities as explained by Lord Denning in Miller v Minister of Pensions (1947): that the burden is met if a court can say it is more probable than not that something happened.
Weighing all the evidence against that standard, Justice Jaiteh concluded it was far more probable that the dismissal was a disciplinary removal disguised as a contractual termination.
Justice Jaiteh ruled in favour of Momodou Jallow on all key grounds. Justice Jaiteh declared that the termination of Momodou Jallow’s employment by ORYX Energy (Gambia) Limited was unlawful and unfair. The company had failed to prove a valid reason for the dismissal and had failed to follow a fair process, as required by Sections 83 and 84 of the Labour Act, 2007.
Justice Jaiteh was clear that paying money in place of notice as the company did satisfies the contractual obligation but does not fix a dismissal that was unfair and legally defective.
“The two things are different, and one cannot cure the other,” Jaiteh Jaiteh stated.
In deciding how much to award, Justice Jaiteh considered several factors: Momodou Jallow’s seven years of service in a senior and technical role; his consistently high performance throughout; the undignified and procedurally flawed manner in which the termination was carried out; his vulnerability as a sickle cell patient; and the fact that the Defendant had shown insensitivity toward his health-related absences.
Justice Jaiteh noted that reinstatement was not sought and was not practical given the complete breakdown of trust.
Justice Jaiteh decided that compensation equal to 24 months of Jallow’s gross salary was fair and proportionate. Based on his last monthly salary of D81,348.03, that calculation came to D1,952,352.72.
Justice Jaiteh rejected Momodou Jallow’s claim for interest at 25%, describing it as too high. He instead awarded post-judgment interest at 4% per annum from the date of judgment until the money is fully paid.
On legal fees, Justice Jaiteh found that Momodou Jallow had properly proved his claim of D153,000.00 in legal and administrative expenses and awarded that sum in full. The company was also ordered to pay D100,000.00 in court costs.
Regarding social security and pension contributions, Justice Jaiteh confirmed the company has a legal obligation to remit all outstanding contributions to the relevant statutory authority. However, because Jallow had not placed a precise calculation of the arrears before the court, no specific lump sum was awarded on that head. Instead, the court ordered the company to carry out a full reconciliation and remit whatever is owed to the appropriate body.
Justice Jaiteh also directed that any terminal payments already made to Momodou Jallow by the company after the termination should be deducted from the total compensation to avoid paying him twice for the same loss.
So, Momodou Jallow was awarded for a compensation for Unlawful Termination (24 months’ salary) 1,952,352.72, special damages; legal and administrative expenses 153,000.00 and costs a warded of 100,000.00.
However, Justice Jaiteh noted that any terminal or notice payments already made by the Defendant to the Plaintiff will be subtracted from the D1,952,352.72 compensation figure.
“Payment in lieu of notice may satisfy a contractual obligation. But it cannot cure a dismissal that was unfair and substantively unjustified under the Labour Act.” Justice Jaiteh concluded.
