Description
A question of law – repatriation costs – statutory entitlements – payment of repatriation costs – rate of subsistence allowance pending repatriation – Discretion must be judiciously exercised – interfere with the exercise of discretion of an inferior court – Constructive termination – factors and circumstances in arriving at the compensation payable – Substantive unfairness – procedural unfairness.
- Meaning of a question of law.
- When an employee’s contract is terminated at a place other than where the employer was recruited, the employer is obliged to cover costs for transport.
- The transport costs for the employee, his dependents and his personal effects are statutory entitlements.
- Sufficiency or otherwise of the payment of repatriation costs is a matter of fact and cannot be entertained by the Court of Appeal.
- The rate of subsistence allowance pending repatriation, is calculated on the basis of daily salary of a monthly salary for the whole period the respondent awaits payment of repatriation or travel expenses.
- Discretion must be judiciously exercised and if not, the higher court can interfere with the same.
- Circumstances upon which an appellate court can interfere with the exercise of discretion of an inferior court or tribunal to be: One, if the inferior court misdirected itself; or two, it has acted on matters it should not have not have acted; or three, it has failed to take into consideration matters which it should have taken into consideration and four, in so doing, arrived at wrong conclusion.
- Constructive termination is similar to unfair termination of employment.
- While the arbitrator awarded 18 months’ compensation the High Court reversed it and awarded 36 months. The Court of Appeal confirmed the High Court’s decision since the Arbitrator did not consider all the factors and circumstances in arriving at the compensation payable to the employee, such as deliberate denial of promotion and salary increments.
- Substantive unfairness attracts a heavier penalty than procedural unfairness.
