ANDREW A. AMOAH vs. NEWMONT GHANA GOLD LIMITED
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL (CIVIL DIVISION)
    ACCRA- A.D 2016
ANDREW A. AMOAH - (Plaintiff/ Appellant)
NEWMONT GHANA GOLD LIMITED - (Defendant/Respondent)

DATE:  14TH JULY, 2016
CIVIL APPEAL NO:  H1/119/2016
JUDGES:  OFOE JA (PRESIDING), LARBI (MRS) JA, AGYEMANG (MRS.) JA
LAWYERS:  AHUMAH OCANSEY FOR PLAINTIFF / APPELLANT
DOE TSIKATA FOR DEFENDANT /RESPONDENT
JUDGEMENT

AGYEMANG, JA:

In this appeal against the decision of the High Court (Industrial and Labour Division) Accra, delivered on the 10th of December, 2013, the plaintiff/appellant (hereafter described alternately as the appellant or the plaintiff), seeks the setting aside the judgment (described by the court as its ruling), and the grant of the relief sought by the appellant at the court below.

 

These are the antecedents of the appeal.

 

The plaintiff was employed in 2009 as a Business Excellence Black Belt by the defendant/respondent (referred to alternately as the respondent, or the defendant). on the 11th of March 2010, he was given new employment by way of promotion to the position of Mine Manager for Ahafo.

 

The new employment was governed by a letter of appointment dated 11th of March 2010, as well as a document described as the Newmont Ghana Senior Management Staff Manual (hereafter referred to as the “manual”), attached to, and recited in the said letter as forming part of the conditions of the employment.

 

The plaintiff remained in that employment from the 11th of March 2010 until the 13th of May 2011 when the respondent by letter to the appellant, terminated his services. The appellant at the court below pleaded that before this, he had in fact been informed by the respondent per its General Manager that his services were no longer required, and he was asked to resign or be relieved of his employment. No reasons were given to him for that request. He averred that it was when he failed to resign that his employment was terminated by letter of 13th May 2011.

 

The plaintiff commenced suit at the court below seeking reliefs: inter alia, a declaration that the termination of his employment by the respondent was unlawful, offending both statutory law, and his conditions of service, as well as damages for the wrongful termination, loss of reputation, embarrassment, diminished prospect of employment in the mining industry and a medical state induced by the wrongful termination.

 

At the close of the pleadings, the parties at the application for directions, set out the issues to be determined and the defendant set out two additional issues as preliminary issues to be determined by legal arguments. The latter issues were:

1. Whether or not it was a term of the plaintiff’s contract of employment that his employment was determinable at will or upon notice;

2. Whether or not the plaintiff’s contract of employment was determinable by the defendant without assigning any reason therefor.

 

Upon hearing the arguments of counsel, the learned trial judge ruled that the contract of employment that governed the relationship of the parties was determinable at will, and furthermore, that by the provisions of S. 17(1) and (2) of the Labour Act 2003 Act 651, it was determinable by either party at the close of day without notice. Thus he dismissed the plaintiff’s claim.

 

It is against this ruling of the learned trial judge that the present appeal has been brought on this sole ground:

 

“That the ruling failed to show understanding of (the) “Contract of employment” of the appellant’s engagement by the respondent and thereby occasioned a miscarriage of justice.”

 

Our understanding of the said ground of appeal is that the learned trial judge erred in law by his failure to apply the incidents of a contract of employment in relation to the employment relationship between the plaintiff and the defendant, which failure led to a miscarriage of justice.

 

We have felt the need to distil the complaint before us from the ground set out, because the ground of appeal was clumsily crafted, and did not directly indicate the error of law or fact or misdirection complained of in accordance with Rule 8 (4) of the Court of Appeal Rules CI 19, nor did the appellant give particulars of such error. We have therefore (since the alternative course would be to strike out the ground and thus dismiss the entire appeal), been constrained to glean the error complained of from the general complaint made regarding an alleged misapprehension of the significance of the contract of employment by the learned trial judge.

 

As aforesaid, the employment of the appellant by the respondent was governed by a contract contained in two documents: the letter of appointment, and the manual. We reproduce the relevant portions of the appointment letter:

 

“The terms and conditions of employment offered you are contained in this letter and the attached Manual. Please read these documents carefully as together they form your contract of employment with Newmont Ghana Gold Limited…

 

Please understand that your employment with Newmont is at-will, nothing in this letter or you beginning an assignment pursuant to this letter creates any contractual obligation upon you or upon Newmont for employment for any period of time or any alteration of the at-will employment relationship between yourself and Newmont…”

 

The appellant argues that the at-will stipulation in the letter sins against the Labour Act of 2003 Act 651, and that the learned judge erred when he held otherwise.

 

Citingthe cases of Kobea and Ors v Tema Oil Refinery; Akomea Boateng and Ors v Tema Oil Refinery (Consolidated) [2003]2004 SCGLR 1033, Kobi and Ors v. Ghana Manganese Co. Ltd [2007-2008] SCGLR771, the appellant contended that the termination of the appellant’s contract of employment at will was also frowned upon by the Supreme Court.

 

Yet it seems to us that the appellant who complained that the learned trial judge failed to have regard to the contract of employment, appeared rather, sadly to have missed the true significance of the sanctity of the contract he so belaboured in his submissions.

 

The appellant could not be more wrong with regard to the cases he cited in support of his contention for in both cases, the Supreme Court echoed the sentiment that a contract of service is one of service and not of servitude, and affirmed the common law right of employer or employee to terminate the contract without assigning reasons, provided he gave the requisite notice or remuneration in lieu thereof.

 

In none of the cases was an attempt made to whittle away the common law right of the employer (and indeed the employee) to disengage gently and without fuss from the contract without assigning reasons. In Kobi’scase, the finding of wrongful termination was based on the disregard by the employer of laid down procedures in a collective agreement which governed the relationship between the parties and which linked the employer’s right to terminate, to disciplinary procedures. Thus was it held that the actions of the employer were arbitrary and discriminatory, rendering their actions wrongful.

 

In the instant case, to contend that the at-will clause in the letter of employment was arbitrary, leading to highhandedness on the part of the employer, the appellant cited a number of cases, including:Boateng v Volta Aluminium Com. Ltd [1984-86] 1 GLR 733; Opare Yeboah and Ors v Barclays Bank Ghana Ltd [2011] SCGLR 350;Rep. v State Transport Corporation; Ex Parte Djorhoe [1975] 2 GLR 471, Hemans v Ghana National Trading Corporation [1978] GLR 4. The said cases were however inapplicable to the instant matter as they dealt with summary dismissals (not termination), under contracts governed by collective agreements.

 

The letter of employment of 11th March 2010, contained an at-will clause which the appellant agreed to when he signed the contract. The contract furthermore, included a declaration that the appellant was going to be bound by the terms and conditions on the letter and the Manual.

 

We will say thatthe insistence of the appellant on the fact that the contract of employment ought to have been adhered to by the respondent in their employment relationship does not help his case. This is because the Manual upon which the appellant’s hopes are clearly hinged (seeing that the letter of employment contained the at-will clause), does not derogate from, or otherwise affect what the appellant contracted out of his own free will when he signed the employment letter containing the at-will clause and worked under it.

 

The said Manual contains a section under the head “Leaving the service of the company”. That section deals with the disengagement of the employee from the company, and sets out various ways in which that may be done. These are:through termination, summary dismissal, resignation, statutory age retirement, retirement on medical grounds, death, redundancy or severance, and voluntary retirement.

 

Clause 16:01 thereof, prescribes the manner in which a termination, done “in line with the company’s disciplinary procedures…” would be brought about. It prescribes that in such an event, the employee will be give notice of one month, or pay in lieu of such notice.

 

In the instant matter, the appellant acknowledged in pleading that in February 2010 when he was asked to resign, the reason given to him was that the company no longer need his services; there was no hint of wrongdoing on his part, such as would imply that the termination which followed his failure to resign was disciplinary in nature. For this reason, the termination of the appellant could not be brought within Clause 16:01 of the Manual; the circumstance under which it would have been governed by Article 17 thereof- the part that deals with disciplinary procedures.

 

In the circumstance, the appellant’s contract, in so far as it related to his disengagement from the company, was governed by the letter of employment which informed him in no uncertain terms that his contract was at-will. The appellant cannot then call in aid, cases that were decided on different principles arising out of different contracts of employment.

 

The appellant has not complained of fraud, mistake, duress, or undue influence or any of the mattersthat ordinarily vitiate contracts as they negate the requisite consent of a contracting party. In the circumstance, the court cannot but accept that the appellant entered into the contract of employment of his own free will. In fact, that this was sois buttressed by the declaration contained in the letter of employment that the appellant signed.

 

For this reason, the freedom of contract, and the sanctity of contract both dictate that what the parties intended must be upheld, see:Akim Akroso Stool and Ors v. Akim Manso Stool and Ors [1989-90]1 GLR 100. The law would interfere with such only if it could be demonstrated that the contract was illegal, or that it in some way sinned against the Labour Act of 2003 Act 651. Fortunately, as was observed by the learned trial judge, the at-will clause is recognised in the said legislation that was enacted to govern employer-employee relations. S. 17(2) thereof, prescribes how termination under an at-will employment ought to be carried out, that is: at the close of any day without notice.

 

The learned trial judge therefore was not in error when in reliance on this, he dismissed the appellant’s suit after hearing legal arguments on the import of the letter of employment.

 

The appeal has been found to have no merit and is hereby dismissed.

 

Costs of GHC 2000 to the respondent.

 

 

 

(Sgd.)

MABEL M. AGYEMANG (MRS.)

(JUSTICE OF THE APPEAL)

 

(Sgd.)

OFOE, J. A.                           I agree                          V. OFOE

(JUSTICE OF THE APPEAL)

 

(Sgd.)

LARBI, J. A.                         I also agree      IRENE C. LARBI (MRS.)

(JUSTICE OF THE APPEAL)