JUDGMENT

ADUAMA OSEI JA:

I have had the benefit of reading beforehand the judgment of His Lordship Justice Ofoe in which he orders the dismissal of this appeal. I agree with him that the appeal ought to be dismissed.

There is however an aspect of the case that has engaged my attention on which I intend to put down a few thoughts by way of supporting the opinion of my learned brother.

In this contribution, the Claimant/Applicant/Respondent will be referred to as “the Respondent”, and the Respondent/Respondent/Appellant will be referred to as “the Appellant”.

By a letter dated the 21^st of October, 2011, the Appellant terminated the employment of the Respondent, who was before then its Legal and Business Development Officer. The termination gave rise to a dispute between the Appellant and the Respondent over the entitlements due from the Appellant to the Respondent.

When, after negotiations between them, the Appellant and the Respondent failed to reach agreement on the entitlements due, the Respondent made a complaint to the National Labour Commission regarding the dispute and the stalemate their negotiations had run into and requested the intervention of the Labour Commission under the provisions of the Labour Act, 2003 (Act 657).

Upon receipt of the Respondent’s complaint, the Labour Commission tried to get the parties settle the dispute by negotiation. However, negotiations under the auspices of the Labour Commission also failed and the parties reported back to the Commission regarding the failure.

The proceedings before the Labour Commission on the 23^rd of May, 2012, at which the parties reported the failure of the negotiations are quoted hereunder:

“The facilitating meeting started at 1.30 pm and was chaired by Mr. Joseph A.

Aryitey, the Chairman of the Commission.

“Main Item:

“Commission: We hope you are coming to announce a solution or settlement of the problem.

“Counsel for Respondent: Chairman, we tried but we could not resolve it.

“Commission: Let’s hear from you.

“Counsel for Complainant: Mr. Chairman, we have been here a couple of times, and there was enough room for us to resolve the matter but we have not been able to progress. The distance between us is so great and speaking for myself I am not sure if any useful talk between us can resolve the matter. I think we are now in the hands of the Commission.

“Commission: We have to move on to the next stage. Would you like to have mediation, arbitration or hearing?

“Counsel for Petitioner: We are certain that mediation would not work. The thing is that our discussions have been friendly, there was no hostility, just that our instructions did not allow so between arbitration and hearing we do not have a preference. Between arbitration and hearing at the Commission I think arbitration will be faster.

“Conclusion:

“Commission: We would give you the list on our data base to select the arbitrator(s) whether single or panel so you would go for voluntary arbitration and please note that it is at a fee. It is not free. Thank you for coming. The meeting ended at 1.40 pm.”

Following the conclusion of the above-recorded meeting at which Counsel for the parties indicated their decision not to pursue mediation, the parties appeared before a single arbitrator constituted by Mr. Kwasi Danso-Acheampong, who on the 8^th of November, 2012, made an award in favour of the Respondent against the Appellant as follows:

“1. The Claimant is awarded four (4) months’ salary for each completed year of service effective the 21^st day of October 2011 as redundancy pay.

“2. Interest on computed redundancy pay at a simple interest rate of 10 per centum effective 21^st day of October, 2011.

“3. Additionally the Claimant is awarded the sum of USD$12,000 or its equivalent as legal fees.

“4. The expenses of this Arbitration must be paid for equally by the parties.”

Having obtained an award against the Appellant as set out above, the Respondent on the 16^th of April, 2013, filed an ex-parte motion in the Financial Division of the High Court for leave to register and enforce same through the Court under section 57 of the Alternative Dispute Resolution Act, 2010 (Act 798).

Before the Respondent’s said motion could be heard, however, the Appellant filed an application for judicial review in the Fast Track Division of the High Court on the grounds that the Labour Commission exceeded its statutory mandate when, following the failure to settle the dispute by negotiation, it facilitated settlement by voluntary arbitration without first attempting settlement by mediation, and that by virtue of the Labour Act, 2003 (Act 651), the Respondent is not entitled to payment of a redundancy package having regard to the circumstances of the termination of his employment with Appellant.

In its judgment dated the 30^th of January, 2014, the Fast Track Division of the High Court dismissed the Appellant’s application for judicial review and following the decision of the Fast Track Division, the Financial Division of the High Court gave a ruling in the Respondent’s ex-parte application in which it granted leave to the Respondent to register the arbitration award for enforcement through the Court.

Not satisfied with the decision of the Financial Division of the High Court granting leave for registration of the award for enforcement, the Appellant has appealed to this Court against the same. The Ruling the subject matter of the appeal is at page 100 to page 103 of the appeal record, and the Notice of Appeal can be found at page 119 to page 121 of the same record.

The grounds of appeal as disclosed on the Notice of Appeal are that:

“(i) The Court below erred in granting Claimant/Applicant/Respondent’s motion for leave to register and enforce the award on the basis that the Respondent/Respondent/Appellant’s application for judicial review (certiorari) was dismissed by the High Court (Fast Track Division), Accra.

“(ii) The Court below erred when it granted leave to register and enforce an arbitration award made without jurisdiction”.

By the Notice of Appeal, the Appellant gave notice of its intention to file further grounds of appeal upon receiving the record of appeal. No further grounds were however filed, and the above-quoted grounds remain the bases of the Appellant’s challenge to the decision of the trial Court.

The underlying point in ground (i) of the appeal is that in granting the Respondent leave to register and enforce the award, the trial Court erroneously based itself largely on the fact of the Appellant’s application for judicial review having been dismissed. Underground (ii), the Appellant is contending that the arbitration award was made without jurisdiction and that, that being the case, the trial judge erred in granting leave for its registration and enforcement.

This Court, in the judgment which His Lordship Justice Ofoe will read, has upheld the objection raised in respect of the trial Court’s ruling underground (i) and has accordingly allowed that ground of appeal. But was the arbitration award made without jurisdiction as contended underground (ii)?

Essentially, the argument advanced in support of ground (ii) is that the National Labour Commission, being an inferior adjudicating body, was obliged to act in strict exercise of its mandate under the relevant provisions of the Labour Act when the Respondent and the Appellant appeared before it with their dispute. By sections 153, 154 and 157 of the Labour Act, the Commission was obliged to facilitate settlement of the dispute, first by negotiation, then by mediation if negotiation failed, and then arbitration, if mediation failed. In the present case, however, when negotiation between the Appellant and the Respondent failed, the Commission suggested that the parties could either have mediation or arbitration. In doing so, the Commission wrongly assigned or delegated to the Appellant and the Respondent the right to decide the manner of settlement of their dispute. This is not permitted under the Labour Act and the arbitration conducted under the auspices of the Commission as a result of this infraction was therefore conducted without jurisdiction. The proceedings in the said arbitration are therefore void and can be set aside on appeal. The award purportedly made in the said proceedings is also void, and the grant of leave to enforce the void award was in error and can be set aside.

Indeed, where in the performance of its functions, an administrative body fails to follow a procedure expressly provided for it by a statute or by some other instrument having the force of law, the validity of its action can be questioned in an action for judicial review. In Halsbury’s Laws of England, Volume 1(1), Fourth Edition, 2001 Reissue, such an infraction has been described as a procedural impropriety.

Clearly, in his arguments in support of ground (ii) of this appeal, Counsel for the Appellant is alleging procedural impropriety against the National Labour Commission in its handling of the dispute the Respondent and the Appellant brought before it. The statute said to have been infringed is the Labour Act, 2003 (Act 651), and the specific provision said to contain the infringed procedure is section 154(3).

Section 154(3) of the Labour Act is in the following words:

“(3) When the Commission is satisfied that

(a) the parties have exhausted the procedures established in the collective agreement;

(b) the parties have failed to settle the dispute; and

(c) none of the parties has sought the assistance of the Commission to appoint a mediator,the Commission shall request the parties to settle the dispute by mediation within three days of the Commission becoming aware of the non-resolution of the dispute”.

One may want to argue from the above provision that where in a dispute brought to it, the conditions specified against (a), (b) and (c) come about, the Labour Commission is obliged to request the parties involved to settle their dispute by mediation. The question however is, on the facts of the present case, can the Labour Commission be said to have failed in its mandate when it did not request the Respondent and the Appellant to settle their dispute by mediation?

I think it is important to recognise that each of the processes of negotiation, mediation and arbitration stands on its own as a dispute resolution process alternative to a court proceeding. There is nothing about them that makes their prescription as a package a sine qua non for dispute resolution, and any of them may be resorted to by parties with disputes between them without any obligation to do so sequentially. Parties may decide to have their disputes resolved by mediation without first trying negotiation, and they are also entitled to go to arbitration with their dispute without first having recourse to negotiation or mediation.

In the present case, the Respondent and the Appellant were faced with the prospect of having to settle their dispute in the sequence and manner set out in section 154(3) of the Labour Act because they had sought the intervention of the Labour Commission under the Labour Act in respect of their dispute. But I do not find anything in the Act which suggests that parties who resort to it are stuck with it and are bound to follow through with its procedures. In other words, there is no provision in the Act that precludes a party who has initiated proceedings under the Act from discontinuing the proceedings. In my view, parties who resort to the Act may decide not to proceed any further under the Act, if they find it necessary so to do. And if they withdraw from the application of the Act, nothing stops them from resorting to a dispute resolution mechanism of their choice for the settlement of the dispute, or from abandoning the dispute altogether. They must however not betray indecisiveness, and there must be a clear indication that they had decided not to proceed any further under the Act.

In the present case, therefore, an important question we may have to consider is whether, having regard to the evidence on record, the decision of the Respondent and the Appellant to resort to arbitration was indication of their abandonment of proceedings under the Labour Act. If it was, then the arbitration proceedings in issue herein were properly constituted, and if it was not, then one may, upon adducing good grounds, want to question their validity.

It is clear that in this appeal, the Appellant is questioning the arbitration proceedings as proceedings conducted under the Labour Act and it seems to me that it is on this assumption that, in the judgment to be read by His Lordship Justice Ofoe, the issues raised in the appeal have been considered. My reading of the record however gives me a different view as to the mandate under which the arbitration proceedings in issue herein were conducted. I see from the record that the proceedings were instituted in circumstances which show clearly that the parties had abandoned proceedings under the Labour Act and, in my view, this renders futile any attempt to question their validity by reference to the provisions of that Act. My view has been formed after due consideration of the relevant provisions of the Act and a careful reading of the proceedings before the Commission dated 23^rd May, 2012, and the events that followed the said proceedings.

As we note from the proceedings of 23^rd May, 2012, which have been reproduced above, upon the Commission asking Counsel for the parties to report on the outcome of their negotiated settlement attempt, we hear Counsel for the Respondent telling the Commission that their efforts had yielded no positive results and that he could not conceive of further negotiations serving any useful purpose. When the Commission enquired from Counsel for the parties whether, in the circumstance, they wanted to proceed to mediation or arbitration or hearing, the response of Counsel for the Respondent was that they were certain going through mediation would be a futile exercise and that in the circumstance of their case, the way to dispose of their dispute expeditiously was to go to arbitration.

As I have observed above, the right of the parties to decide not to proceed further under the Labour Act cannot be taken away from them and, given what section 154(3) of that Act says, they could not regard themselves as still proceeding under the Act when they had so expressly decided to abandon mediation and pursue arbitration. But if we have any doubt as to whether from the date of the facilitating meeting the parties had indeed broken away from proceedings under the Labour Act and initiated arbitration proceedings independently of the Labour Commission, we may ascertain the position by looking at the conduct of the parties involved, that is, the Respondent, the Appellant, the Labour Commission and the arbitrator, following the conclusion of that meeting on 23^rd May, 2012.

In this endeavour, we have clues from sections 156 and 158(2) of the Labour Act as to which conduct of the parties involved we may need to look at. Section 156 of the Act requires the parties to an industrial dispute to agree on the method of appointment of arbitrators or arbitration panel and failing such agreement, appointment of the arbitrator or arbitration panel by the Labour Commission. Then by section 158(2) of the Act, the arbitrator is obliged to communicate the award in writing to the parties and the Commission within seventy-two hours after the award has been made except where the Commission is the arbitrator.

If we are dealing with arbitration proceedings conducted under the Labour Act, the expectation is that in pursuance of section 156 of the Act, the Labour Commission would be involved in procuring the agreement of the Respondent and the Appellant as to the method of appointing an arbitrator or arbitration panel and, failing agreement by them, appointment of an arbitrator or arbitration panel by the Commission. Regarding section 158(2), if we are dealing with arbitration proceedings conducted under the Act, the expectation is that the arbitrator would within 72 hours of the award being made, communicate the award not only to the Respondent and the Appellant, but to the Commission as well, unless the Commission was itself the arbitrator.

The conduct of the Labour Commission we are looking at in the present case therefore is its involvement in the appointment of an arbitrator or arbitration panel for the Respondent and the Appellant, and the communication to it of the award after the arbitrator had made the same, unless the Commission itself acted as the arbitrator. Regarding the arbitrator, the conduct we are looking at is his communication of the award to the Commission in addition to the Respondent and the Appellant. Then in respect of the Respondent and the Appellant, the conduct we are looking at is in respect of the role they may have played in settling on the method of appointing and eventually appointing an arbitrator. These conducts will be looked at from the evidence on record.

Now, from the evidence, the last time we saw the Labour Commission involved in the dispute between the Respondent and the Appellant was at the facilitating meeting of 23^rd May, 2012. As we have seen from the proceedings of that meeting recorded above, at that meeting, in respect of appointment of an arbitrator, all the Commission did was to indicate to the Respondent and the Appellant, the availability of the list of arbitrators on its data base for the selection by them of an arbitrator or arbitration panel. As to how the arbitrator or arbitration panel would be selected, there is no evidence of the Commission’s involvement. And there is also no evidence on record that at any time after the meeting of 23^rd May, 2012, the Commission got involved in an exercise to get the Respondent and the Appellant to agree on the method of appointing an arbitrator or arbitration panel, and failing such agreement, appointing one for them. Again, whether at the meeting of 23^rd May, 2012 or at any time thereafter, there is no evidence of the involvement of the Commission in the actual appointment of an arbitrator. But the Respondent and the Appellant went to arbitration and the obvious assumption therefore is that the parties must have appointed an arbitrator on their own and by their own method, without the involvement of the Commission.

Indeed, in paragraph 2 of the affidavit in support of the Respondent’s application for registration and enforcement of the award, it is deposed that it was by an agreement in writing made between the Respondent and the Appellant on the 9^th of October, 2012, that the Respondent and the Appellant referred their dispute to the arbitration of Mr. Danso-Acheampong. It is significant to note that the date of the agreement is subsequent to the facilitating meeting and there is no mention of the Labour Commission.

Evidence about the conduct of the arbitrator in this matter is seen in his award. In the award, the name of the arbitrator is given as Kwasi Danso-Acheampong and we know from this and from paragraph 2 of the affidavit referred to in the immediately preceding paragraph, that the Labour Commission was not itself the arbitrator. But in spite of the fact that the Commission was not itself the arbitrator, we do not find anywhere on record that the award in the matter was communicated to the Commission as enjoined by section 158(2) of the Labour Act.

The events, acts and omissions that attended the arbitration that took place are clearly inconsistent with a proceeding conducted under the Labour Act and, having weighed the probabilities, the conclusion I draw from the above is that the arbitration herein was not a proceeding conducted under the Labour Act, but one conducted outside the Act and independently of the Labour Commission. This, in my view, should confirm to us that when at the facilitating meeting the Respondent and the Appellant indicated their intention to go to arbitration, they were indeed breaking away from proceedings under the Labour Act.

But in my view, the parties having decided not to proceed further under the Labour Act, if there were any adverse consequences attendant to that decision, those consequences had to be visited on them. Could they, for instance, register for enforcement any award made if that award was made in an arbitration conducted outside the Labour Act? The record shows that the order which has granted leave to the Respondent to register and enforce his award was obtained in an application made under section 57 of the Alternative Dispute Resolution Act, 2010. Under that section, are awards obtained in arbitration proceedings conducted outside the purview of the Labour Act excluded from registration for enforcement? For an answer, I quote the provision hereunder:

“57. (1) An award made by an arbitrator pursuant to an arbitration agreement may, by leave of the High Court, be enforced in the same manner as a judgment or order of the Court to the same effect.

“(2) Where leave is so given, judgment may be entered in terms of the award.

“(3) Leave to enforce an award shall not be given where, or to the extent, that a person against whom the award is sought to be enforced shows that the arbitrator lacked substantive jurisdiction to make the award”.

The answer is clear. An award does not have to be made in proceedings conducted under the Labour Act for it to qualify for registration and enforcement under the Alternative Dispute Resolution Act. As to substantive jurisdiction mentioned in sub-section 3, I have said enough above to indicate my rejection of the view that the arbitrator did not have jurisdiction to determine the dispute that was placed before him. The subject matter of the dispute the Respondent and the Appellant took to the arbitrator was one which he had power to make a determination on and, in my view, there can be no question of lack of jurisdiction on his part.

It is clear from the foregoing that I do not agree with the Appellant that the arbitration in issue herein was conducted under the auspices of the Labour Commission. The proceedings or an aspect of them may well have been held on the premises of the Commission, but that would be different from saying that they were held under its auspices. Apart from the argument that it was improperly constituted by virtue of section 154(3) of the Labour Act, which I have rejected, no defect has been shown in the conduct of the arbitration in issue herein and I reject the contention by the Appellant that the proceedings are void. In my view, the award made in the proceedings is valid and no good cause has been shown in this appeal for it to be set aside.

For the above reasons, I agree that this app