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

The prohibition of competition in employment relationship

in Cameroon

Senior lecturer Cyrille MONKAM

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“Who can bad-mouth human rights? It is […]

beyond attack”

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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.

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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.

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Mark Mazower, The strange triumph of human rights, 1933-1950, „The Historical Journal”, 47, 2

(2004), p. 379.

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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.

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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,

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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

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embodied in the 1996 revised Cameroonian constitution and all international

instruments ratified by Cameroon

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such as the Universal Declaration of Human

Rights,

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the African Charter on Human and Peoples’ Rights,

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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.

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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)

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in order to guarantee a viable economic

environment.

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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

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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.

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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.

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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.

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According to Article 45 of the 1996 revised Constitution, all duly ratified treaties take priority o ver

local laws.

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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.

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Article 15 pro vides “Every individual shall have the right to work under equitable and satisfactory

conditions...”

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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.

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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.

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According to Jean Jaures, the first of Human rights is the individual freedom, the property freedom,

the freedom of thought, the freedom of work.