There are two types of terms illustrated in a contract of employment in Cameroon. They are express terms and implied terms.
One of the manifestation of freedom of contract by the parties to a labour relation is to induce in their contract of employment any terms they deem necessary provided they are neither illegal nor less favourable than those provided for by the existing legislation and collective agreements. The employer and employee are generally free to determine the contents of the terms of employment. Written terms are preferred for the certainty that they bring. Where the parties have spelt out their terms in writing, in precise and unambiguous language, they will be held bound by those terms and no oral evidence can be used to contradict written terms.
A contract of employment can equally be oral in nature. Even written contracts may not adequately provide for all the obligations of the parties in sufficient terms. As such the terms which are considered incidental and within the context of a contract to be applicable even if not expressly mentioned are implied terms in a contract.
There are two classic test for an implied term as follows;
- That it is necessary to give business efficacy to the transaction as must have been intended by both parties to the contract, or
- That it is so obvious that it goes without saying so that if a 3rd party had suggested that it be expressed, the parties would have agreed. The ‘yes off course test’ as was explained by Mackinnon L.J in the case of Shirlaw v Southern Foundries Ltd 1939, 2KB, 206, 227 “prima facie that which in any contract is left to be implied and need not be expressed is so obvious that it goes without saying, so that if, while the parties were making their bargain an officious by-stander were to suggest some express provision for it in their agreement, they would testily suppress him with a common ‘oh, of course’”.
The two test are backed by two presumptions of law;
- The existence of a custom or trade usage if proved will give rise to the implication that the custom would be followed, and
- Terms which in the absence of writing would help secure the rights and benefits of the worker.
TERMS IMPLIED FROM COLLECTIVE AGREEMENTS
A contract of employment in Cameroon may have terms incorporated from a collective bargain either expressly or impliedly.
Express incorporation may come from the parties agreeing in writing that all or part of a particular collective bargain be binding upon them.
Implied terms of a collective bargain are quite complicated except they cover aspects not expressly mentioned in a contract of employment.