The prohibition of competition in employment relationship in Cameroon

Author:Cyrille Monkam
Position:Department of Law, Faculty of Social and Management Sciences, University of Buea, Cameroon
Pages:169-185
SUMMARY

The study aims to analyze one of the apparent inconsistencies that are found in the employment law in Cameroon. The right of free competition is tantamount to a free market society especially in the era of globalization. It appears prima faciae that in Cameroon the lawmaker has limited this right in the area of employment law, the reason being the protection of employers’ businesses that... (see full summary)

 
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The prohibition of competition in employment relationship
in Cameroon
Senior lecturer Cyrille MONKAM
1
“Who can bad-mouth human rights? It is […]
beyond attack”
2
Abstract
The study aims to analyze one of the apparent inconsistencies that are found in the
employment law in Cameroon. The right of free comp etition is tantamount to a free market
society especially in the era of globalization. It app ears prima faciae that in Cameroon the
lawmaker has limited this right in the area of employment law, the reason being the
protection of employers’ businesses that constitute a source of tax income in the fragile
economic environment and an opportunity for job seekers. However, a close look at the
provisions o f Labour code shows that the law does favour on the one hand the employee
right to compete on condition not to constitute a threat on the business of his current or
former employer. On the other hand, the employer has to compensate his employee in case
of legal non-compete clause and cannot compel him to respect illicit contractual non-
compete clauses. If one of the p arties to the employment contract develops such an
unscrupulous behaviour, he will feel the h arshness of the law. This research reveals the
wish of the Cameroon lawmaker to adapt its legislation to social and economic realities.
Keywords: employment law; competition; prohibition; non compete clau se; employment
relationship; human rights.
JEL Classification: K31
1. Introduction
Employment law can be defined as the body of rules that govern the
individual and collective relationship between the employers and the employees.
On the ethical view, employment contract is a link between a fundamental value,
the liberty and a necessity, the authority, relation that lead to the triumph of
authority over the liberty.
3
This means that employment relationships are basically
1
Cyrille Monkam - Department of Law, Faculty of Social and Management Sciences, University of
Buea, Cameroon, monkam.cyrille@ubuea.cm.
2
Mark Mazower, The strange triumph of human rights, 1933-1950, „The Historical Journal”, 47, 2
(2004), p. 379.
3
The necessity to survive and to save his family urges the “Free man” to put his liberty under the
authority of the employer by becoming a worker (subordinate).
170 Volume 7, Special Issue, October 2017 Juridical Tribune
unequal.
4
For this reason and from the beginning, employment law used to be a
protected law because of interest that it showed to the weaker party (employee) of
the contract. In effect, through the intervention of State,
5
the classical concept of
freedom known in contract matters lost its true significance in this area for the
purpose of protection.
The right to work as an unconditional one is a fundamental human right
6
embodied in the 1996 revised Cameroonian constitution and all international
instruments ratified by Cameroon
7
such as the Universal Declaration of Human
Rights,
8
the African Charter on Human and Peoples’ Rights,
9
etc. The preamble of
the Cameroonian constitution of 18 January 1996 proclaimed that everybody has
the right and duty to work and the State must try as possible to provide a work to
all citizens within working age and must help to conserve it once obtained.
10
But
the protection of the right to work and the liberty of free competition will be
useless if there is no balance between this protection and the safeguard of the
company (asset of the employer)
11
in order to guarantee a viable economic
environment.
12
Article 31 of Labour Code falls under the scope of this objective.
This Article provides that
(1) The worker shall devote all his gainful activity to the undertaking,
save as otherwise stipulated in the contract; provided that he may, unless
otherwise agreed, undertakes outside his working hours any gainful activity which
4
Pierre Cuche, Du rapport de dépendance, élément constitutif du contrat de travail, « Revue
critique » 1913.423; La définition du salarié et le critérium de la dépendance économique, « Dalloz
Hebdomadaire » 1932.103.
5
This intervention can be observed through legislative enactments and administrative decisions.
Among of these, one can mention the Law No. 92/007 of 14 August 1992 establishing Labour Code
and many others Decrees and Orders laid down in the same purpose.
6
According to the positivistic approach, if labour rights are incorporated in human rights documents,
they are human rights. See Virginia Mantouvalou, Are Labour Rights Human Rights? UCL Labour
Rights Institute On-line Working Papers- LRI WP X/2012 at 1; “European Labour Law Journal”,
2012.
7
According to Article 45 of the 1996 revised Constitution, all duly ratified treaties take priority o ver
local laws.
8
Article 23 UDHR of 10 December 1948 provides everyone has the right to work and that everyone
should work in a job freely chosen; that everyone should receive equal pay for equal work; that
everyone should get decent remuneration for work performed, which should guarantee a dignified
life for herself and her family.
9
Article 15 pro vides “Every individual shall have the right to work under equitable and satisfactory
conditions...”
10
This can justify the harshness of dismissal procedure laid down in Articles 34 and 40 of Cameroon
Labour Code. For this purpose, Jean Marie Tchakoua, La démission et le licenciement : une
histoire de vrais faux jumeaux, « Juridis Périodique » No. 70, Avril-Mai-Juin 2007, pp. 87-95.
11
It is worthy to note that the constitution also in its p reamble protects property rights. The protection
was reinforced by some provisions of Labour code especially Articles 31, 32(k), 40, 42(2)
concerning respectively the protection of business interests, the technical lay-off, dismissal for
economic reasons and revision of working con ditions etc. In France for example, Article 7 of
Allarde De cree of 2 and 17 March 1791 establishes the principle of the liberty of work and of
commerce.
12
According to Jean Jaures, the first of Human rights is the individual freedom, the property freedom,
the freedom of thought, the freedom of work.

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