IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
ACCRA - A.D 2018
KWABENA OTENG ASIAMAH AND KINGSLEY ATTA-YEBOAH - (Plaintiff)
STANDARD CHARTERED BANK GHANA LTD - (Defendants
DATE: 25 TH APRIL, 2018
SUIT NO: INDL/54/12
JUDGES: AKUA SARPOMAA AMOAH (MRS.) JUSTICE OF THE HIGH COURT
LAWYERS: NASH KWAME ADJEI HOLDING BRIEF FOR EDWARD SAM CRABBE FOR DEFENDANT COUNSEL FOR PLAINTIFFS
The Plaintiffs who, until the 7th day of January, 2010, were employees of the Defendant bank are before this Court seeking inter alia the following reliefs against the Defendant:
i. A declaration that the termination of the employment of the Plaintiffs was unlawful and therefore null and void;
ii. An order for the payment of their salaries, bonuses and incrementals from the date of termination of employment to date of determination of the case;
iii. An order for the payment of their Provident Fund and interest to date of determination of the case;
iv. An order for the payment of employers’ contribution of the Provident Fund with interest to date of the determination of the case;
v. An order directed at the Defendant Company to pay the severance packages of the Plaintiffs taking into account their length of service to the bank;
vi. General damages.
vii. Any order/orders as this Court may deem fit
The amended statement of claim filed jointly on behalf of the 1st and 2nd Plaintiffs on the 4th day of May, 2017 discloses that the 1st and 2nd Plaintiffs were employed by the Defendant on the 28th day of May, 1979 and the 16th day of February, 1989 respectively. On the 7th day of January, 2010 their respective appointments were terminated by the Defendant. Plaintiffs say this was without justifiable cause. According to them their termination letters charged them with negligence on grounds of their failure to:
a) Call for vouchers when entries were referred to them in the computer system before authorizing them.
b) Investigate the history of cause of entries to the BP client suspense accounts and upcountry clearing account.
c) Call for details of entries relating to the outward clearing suspense account of the Takoradi branch and examine outstandings over a period of three (3) days. (In the case of 1st Plaintiff).
d) Check the completeness of the work of the tick back clerk and also failing to confirm vouchers against the transaction activity report. (In the case of 2nd Plaintiff).
On the basis of these charges, the Defendant set up an Investigative Committee to Plaintiffs professional conduct in relation to the matter. At the end of the said investigations which spanned a period of about five (5) months, the Plaintiffs’ appointments were terminated by the Defendant. Plaintiffs aver that the said termination was wrongful and in sub-paragraphs (a) - (m) of their paragraph 13 spell out the grounds upon which they base this contention. Notable among these grounds are the fact that the investigative team failed to furnish Plaintiffs any documentary proof of the said fraudulent transactions and/or any other evidence of their professional negligence. They also allege that the Defendant failed to advert its mind to Article 15(2) of the Collective Bargaining Agreement (CBA) between the Defendant and the Union of Industries, Commerce & Finance Workers Professional and Managerial Staff Union (PMSU) dated the 1st day of April 2009 – the 31st day of March, 2011. Plaintiffs again contend that the said fraud which is said to have resulted in a loss of an amount of One Million, Seven Hundred and Sixty-Four Thousand, Five Hundred and Thirty-Nine Ghana Cedis (GHȼ1,764,539.00) to Defendant could not have occurred at the time that they were at post at the Tamale branch. The 2nd Plaintiff challenges the veracity of Defendant’s claim that he together with the 1st Plaintiff authorized certain fraudulent transactions to the tune of Eighty Thousand Ghana Cedis (GHȼ 80,000.00) in May, 2006. This is because, the 2nd Plaintiff had not yet been transferred to the Tamale branch at the time. The 1st Plaintiff for his part complains about having been accused of failure to check some two (2) entries relating to the Takoradi branch outward clearing suspense account even though he was not at post at the time.
The Plaintiffs say the termination of their appointments based on the above mentioned trumped- up charges, among others, have injured their reputation and dented their integrity, making it impossible for them to secure alternative employment. Hence, the institution of the present suit. The Defendant by its amended statement of defence filed on the 23rd day of May, 2017 does not deny having terminated the Plaintiffs’ appointments on the 7th day of January, 2010. It however vehemently denies Plaintiffs’ assertion that it had no justifiable cause for doing so. According to Defendant, a clerk at the Defendant’s Tamale branch successfully perpetrated fraud to the tune of One point Two Million US Dollars (USD$1.2 million) on the Defendant between the period of May 2006 – August 2009. It avers that during the said period, the 1st and 2nd Plaintiffs served as Branch Manager and Branch Operations Manager respectively at the said branch. Defendant says that it was after the 1st Plaintiff had been transferred to the Takoradi Harbor branch and the 2nd Plaintiff to the Kumasi Harper branch that the said fraud was uncovered. Investigations conducted thereafter revealed that the Plaintiffs had been negligent in the performance of their duties and had facilitated the fraud due to their failure to adhere to the Defendant bank’s laid down procedures.
Following Plaintiffs’ responses to queries issued them by the Defendant, a Disciplinary Committee was constituted to hear the matter. After affording Plaintiffs a hearing, the committee concluded that it was the negligence of Plaintiffs that exposed Defendant to risk and loss. The Defendant terminated their appointments as a result. Defendant maintains that Plaintiffs are not entitled to the reliefs sought as the termination of their appointments was done in accordance with law, specifically Section 15 of the Labour Act, Act 651 and Article 15 of the CBA between the Defendant and the PMSU. The Plaintiffs’ Reply was essentially a reiteration of the averments contained in sub- paragraphs (a) of the amended statement of claim. Now, before proceeding to address the issues set down for trial, I consider it necessary to state that this suit was initially heard to completion by Ajet-Nasam J (as he then was). He was however unable to deliver judgment in the matter due to his removal from office as a High Court judge in 2016. Quite unfortunately, the Court (as presently constituted) was compelled to order a trial de novo due to its inability to trace a substantial part of proceedings already taken in the matter. The record however disclosed that the following issues had already been agreed upon for determination at the trial. These were:
i) Whether or not the termination of the employment of the Plaintiffs by their employers who are the Defendant was unlawful and therefore null and void.
ii) Whether or not the Plaintiffs were negligent in (not) detecting the fraud perpetrated by the clerk of the Defendant.
iii) Whether or not the Disciplinary Committee’s recommendation was in consonance with the conditions of employment and discipline of the Collective Bargaining Agreement (CBA) between Standard Chartered Bank Ltd and the Union of Industry, Commerce and Finance Workers.
iv) Whether or not Plaintiffs are entitled to their reliefs.
v) Any other issues arising out of pleadings but not specifically set out herein
Having examined the pleadings filed by both sides, I am inclined to conclude that the word “not” was inadvertently omitted from issue (ii), which in my thinking, should read
“Whether or not Plaintiffs were negligent in not detecting the fraud perpetrated by the clerk of Defendant."
That said, it is to me quite obvious, that the issue at the heart of this case is whether or not the termination of Plaintiffs’ appointment was wrongful. But before delving into same, it should be necessary to summarize the respective testimonies of the Parties. None of the Parties called any witnesses. Their respective testimonies were however essentially in line with their pleadings. In his further amended witness statement dated the 14th day of June, 2017, the 1st Plaintiff testified that his contract of employment had been unjustifiably terminated by the Defendant after thirty (30) years of loyal and dedicated service. According to him, after having served for about four (4) years at the Defendant’s Tamale branch, he was transferred to its Takoradi branch sometime in the year 2009. Whilst in Takoradi, he was orally summoned back to the Tamale branch to assist in the investigation of a fraud case involving a clerk by name Nurideen Amidu. The said Nurideen Amidu was said to have perpetrated fraud on Defendant to the tune of One Million, Seven Hundred Thousand Ghana Cedis (GHȼ1,700,000.00). This, he is said to have done by suppressing some customers cheques. After about five (5) months of investigation into the matter, an interim and a final report (EXHIBITS B1 and B2) were submitted by the investigative team to the Defendant. By the said reports, 1st Plaintiff was found to have been negligent in the discharge of his duties pursuant to which his appointment was terminated per EXHIBIT A.
He however, vehemently denies the veracity of the Defendant’s assertions. The grounds upon which he challenges these assertions have been stated earlier on in this judgment. Notable among them however, was the failure of the Defendant to furnish him any documentary proof of the transactions he is said to have improperly authorized, despite his persistent demands that they do so. EXHIBITS F1 and F2 were tendered by him to back this assertion. He also contended that investigations had also revealed that the said transactions were authorized by other officials who took over from him after his transfer to Takoradi. Tied to this contention is his assertion that no adverse findings had ever been made against him by any of the audit teams during his tenure at the Tamale branch. He challenged the authenticity of the minutes of the Disciplinary Committee which he tendered as EXHIBIT D , firstly, on the basis that it was unsigned and included the name of one person who never sat in the meetings of the committee and secondly, on grounds that the date indicated on the said exhibit suggested that the sitting of the said committee took place long after the termination of his appointment, which was incorrect. He further charged the Defendant with being in breach of Article 15 (2) of EXHIBIT C, the CBA, which clearly states the sanctions to be applied if and when an employee is found to have been negligent in the discharge of his duties. He stated that it was for this reason, that the Union Chairman was compelled to write EXHIBIT E to Defendant’s legal advisor pointing out the irregularities in its decision. This however was to no avail.
Testifying for himself, 2nd Plaintiff relied mainly on the exhibits already tendered by the 1st Plaintiff. His evidence was also in substance a confirmation of the testimony of the 1st Plaintiff. To bolster his case however, he tendered in evidence EXHIBIT G, being the letter terminating his appointment. As in the case of 1st Plaintiff, the said exhibit details the reasons for which 2nd Plaintiff was found to have been negligent but the 2nd Plaintiff also vehemently denies the charges levelled against him. He insists that he could not have authorized the alleged fraudulent transactions together with 1st Plaintiff, as he was not even at post at the Tamale branch during the period under reference. He tendered EXHIBITS H – H11, being the takeover certificates in proof of his claim that he was transferred to the Tamale branch in 2007. Like the 1st Plaintiff, 2nd Plaintiff also challenged the authenticity of the minutes of the Disciplinary Committee that sat on his case which he tendered as EXHIBIT J. It is his case that the said exhibit includes the name of one person who never sat in the proceedings of the committee.
He also lamented that the Defendant bank had failed or refused to show him any documentary proof of the transactions he is supposed to have unduly authorized even though he had denied the charges levelled against him and demanded to see them. EXHIBITS K and L were tendered in support of this assertion. Relying on EXHIBIT C tendered by 1st Plaintiff, 2nd Plaintiff also contended that the Defendant was in breach of Article 15(2) of the CBA for which reason the Union Chairman wrote EXHIBIT E to Defendant’s legal advisor. In sum, it is the contention of both Plaintiffs that the termination of their respective appointments is wrongful and consequently, null and void. The Defendant was represented by Robert Nunoo, an employee with the Branch Operations Department of the Defendant bank. He stated that sometime in the year 2009, it came to light that a clerk of the Defendant bank had succeeded in perpetrating fraud to the tune of One point Two Million U.S. Dollars (US$1.2 million) against the Defendant. According to him, this fraud occurred during the period that the 1st and 2nd Plaintiffs served as Branch Manager and Branch Operations Manager respectively at the Tamale branch.
Subsequent investigations into the matter by the Defendant’s Financial Crime Unit revealed that the Plaintiffs had facilitated the fraud by their negligence and failure to adhere to laid down procedures. He tendered EXHIBITS 1 and 2 said to be Plaintiffs’ respective responses to certain query letters. Following these responses, a Disciplinary Committee was set up to grant Plaintiffs a hearing. It was after this hearing that the said committee came to the conclusion that the Plaintiffs had been negligent in the discharge of their duties resulting in the losses to the Defendant. Their respective appointments were thus terminated. He tendered EXHIBITS 3 and 4 being letters written by the Plaintiffs in reaction to the said termination. He described Plaintiffs’ case as “unfounded and baseless” and maintained that their termination was proper and in accordance with Section 15 of the Labour Act, 2003 (Act 651) and Article 15 of the CBA. Now, it is a basic principle of the law of evidence, that in civil cases, the standard of proof required of a party is proof on a balance or preponderance of probabilities. This has been defined in the Supreme Court case of SAGOE & OTHERS v SOCIAL SECURITY AND NATIONAL INSURANCE TRUST (SSNIT)  SCGLR, 1093 as “ weightier or superior evidence.” What this means is that, to succeed on a claim, a party must satisfy the Court of the probable existence of a fact in issue than its non-existence.
Put differently, for a party to succeed, the probabilities must substantially be in favour of that party. [See Sections 10 and 11 of the Evidence Act (NRCD323). As the Supreme Court succinctly put it in the case of OKUDZETO ABLAKWA v A-G & OBETSEBI-
LAMPTEY [ 2012] 2 SCGLR, 845 @ 867….
“….he who asserts, assumes the onus of proof. The effect of that principle is the same as what has been codified in the Evidence Act, 1975, NRCD 323, Section 17(a) …
What the rule literally means is that if a person goes to Court to make an allegation, the onus is on him to lead evidence to prove that allegation, unless that allegation is admitted. If he fails to do that, the ruling on that allegation will go against him. Stated more explicitly, a party cannot win a case in Court if the case is based on an allegation which he fails to prove or establish. This rule is further buttressed by Section 17(b) which, emphasizes on the party on whom lies the duty to start leading evidence.”
Thus in the case of BARIMA GYAMFI v AMA BADU  2 GLR, 596, the Court held that:
“In a claim made by a plaintiff, there is no onus on the defendant to disprove the claim…The evidence of the defence only becomes important if it can upset the balance of probabilities which the plaintiff’s evidence might have created in the plaintiffs favour or if it tends to corroborate the plaintiffs evidence or tends to show that the evidence led on behalf of the plaintiff was true.”
The burden of proof is therefore not fixed but continues to shift from party to party depending on the assertion being made. It is well settled by authorities such as MORGAN & OTHERS v PARKINSON HOWARD LTD  GLR, 68 that in a claim for wrongful dismissal, the Plaintiff must plead and prove not only the terms and conditions of such employment but also in what manner the terms were breached by the employer. Relying on this principle, the Supreme Court, in the case of KOBI v GHANA MANGANESE CO. LTD [2007-2008] 771 @ 786, per Ansah JSC stated as follows:
“This being an action for damages for wrongful dismissal, each Plaintiff assumed the burden of proving the terms of his employment; that the determination was in breach of the terms of the agreement, or in contravention of statutory provisions regulating employment. If a plaintiff failed to satisfy the Court on these points, his or her claim cannot succeed.”
The fact of Plaintiffs’ employment and subsequent termination not being in dispute, it will be necessary at this point to consider the reason given by the Defendant for the said termination. By letters tendered as EXHIBITS A and G, the main reason given was that Plaintiffs were found to have been negligent in the discharge of their duties. This, Plaintiffs vehemently deny. The pertinent issue therefore is whether or not the Plaintiffs were negligent in not detecting the fraud perpetrated by the clerk of Defendant. By EXHIBIT B1 the investigative team made certain preliminary findings. These included the fact that the said clerk had succeeded in his fraudulent activities by suppressing certain cheques. The fraud had however gone undetected because the Plaintiffs had at one time or the other authorized the transactions without the relevant vouchers. With specific reference to the 1st Plaintiff, he was found to have been lax in his overall supervision of activities at the branch. On the other hand, the 2nd Plaintiff who had oversight responsibility to the tick back clerk was found to have passed certain transactions as genuine without seeing the relevant vouchers. After further investigation, the said team produced EXHIBIT B2 which confirmed the preliminary findings and detailed the various ways in which the Plaintiffs together with other named officials at the Tamale branch, facilitated the said fraud. It is unnecessary to recapitulate the specific findings made against the 1st and the 2nd Plaintiffs, as the same have been fully set out in EXHIBITS A and G as the basis for the termination of their respective appointments.
A careful reading of EXHIBITS 1, 2, 3, 4, F2 and L will however reveal that the Plaintiffs from the very onset of the investigations denied the charges levelled against them and demanded to see the said fictitious transactions they were supposed to have authorized. Though the Defendant denied this assertion in its pleadings, no evidence was led to disprove Plaintiffs claim that they never sighted any of evidence of the said transactions. It appears to be the contention of Counsel for Defendant that the Plaintiffs themselves admitted to having failed to follow laid down procedures, thereby facilitating the fraud. On page 8 of his written address, Counsel submitted that “Plaintiffs under cross–examination admitted to these findings and observations even though in some cases, they denied their involvement.” It is trite learning that an admitted fact does not require further proof. See the case of IN RE ASHALLEY BOTCHWAY LANDS; ADJETEY AGBOSU v KOTEY [2003-2004] SCGLR 420. Thus the Defendant will ordinarily be under no obligation to lead evidence to establish the negligence or incompetence of Plaintiffs if the same is admitted by them. But is this contention of Defendant’s Counsel borne out by the evidence on record?
On the 25th day of July, 2017, 1st Plaintiff was asked under cross-examination:
“Q: Mr. Kwabena Oteng Asiama, you are aware of the fraud which was successfully perpetrated against the Defendant by a clerk of the Defendant called Nurideen, you are aware of that?
A: I am aware because I was told…..
Q: Now within 2005 to 2006 is when the fraud was committed at the bank…..
A: The fraud according to the perpetrated [sic] said he started in 2006 and it was detected in August 2009.
Q: Where did he say it, is there any particular document where he said that.
A: It is stated in the bank’s own investigated [sic] report.”
The next day, on the 26th day of July, 2017, the 1st Plaintiff was further cross-examined and I proceed to quote the relevant portions of the exchange:
“Q: Now in Exhibit F1 the bank mentioned your responsibilities as Branch Sales and
Service Manager of the Tamale branch.
Q: Now in Exhibit F1 the bank also made reference to certain dates and indicated that you approved and authorized various fictitious transactions which were posted into various customer and suspense accounts. Is that correct?
Q: Now take a look at Exhibit B1 which is the interim investigations’ report by the bank. Page 2 gives a summary of the fact leading to the fraud. Is that correct
Q: Now the bank made investigations and at page 4 of Exhibit B1 mentioned the names of staff involved in the fraud. Is that correct?
Q: Now your name was mentioned. Correct?
Q: Kindly take a look at Exhibit C2 [sic] which is the investigations’ report itself, again the bank gave an executive summary of the facts leading to the fraud at the Tamale branch. Is that correct?
Q: At bullet 2 of page 3 your name was mentioned. Is that correct?
Q: And the report stated that you derived a false sense of comfort that the accounts were being viewed over by T&O or head office Finance. Is that correct?
A: Yes …..
Q: Mr Asiama now in Exhibit D the disciplinary committee heard you and proceeded to make a decision. Is that correct?
Q: Now Exhibit D of paragraph 3 states that during your testimony at the disciplinary committee you admitted though that you were supposed to call for the relevant vouchers before authorizing any transaction on the system. Is it there?
A: Yes it is there…”
A careful evaluation of the answers given by the 1st Plaintiff clearly show that they were merely in confirmation of the contents of the exhibits referred to and not necessarily admissions of the veracity of the assertions or findings made therein by the Defendant.
This position is made even clearer in the case of the 2nd Plaintiff:
“Q: Now between the year May 2006 and August 2009 you were within these years the branch operations manager of the Tamale branch.
A: That is not correct. I was transferred to the Tamale branch on the 23rd April and worked there till the 16th March 2009. The takeover certificate which is one of my exhibits testifies to when I was actually transferred to the branch on the 23rd day of April 2007.
Q: But you are aware that the fraud was committed according to the bank between the periods May 2006 and August 2009.
A: Yes, that is what the report says but I have issues with some of the details put up, and I will like to say this, when you look at the letter dated the 7th day of January 2010 terminating my appointment the bank raised 3 issues against me,… I have already denied these issues and before this honourable and respected court I deny these issues.
Q: So you will agree with me that at the time the fraud was committed at the Tamale branch as indicated by the bank you were the Branch Operations Manager.
A: That is not correct. I am saying this because apart from the figures they listed for 2006, they never came out with any financial transactions which they could claim I authorized during my time. And during investigations I asked them to prove with financial transactions but they could not.
Q: And you also know that the fraud was successfully perpetrated by the said employee.
A: Yes that is what the investigators report indicated.
Q: And the investigation report indicated that the commission of the fraud spanned over time.
A: Yes that is what the report says …
Q: So you will agree with me that by your own answer between April 2007 and March 2009 when you were branch operations manager formed part of the period of the commission of the fraud.
A: Yes that is what I am saying that that is what the report says but they have not been able to prove a single transaction against me….”
The ensuing answers given follow the same trend of admitting or confirming the contents of the exhibits referred to by Counsel but vehemently denying the veracity of any findings made therein. In my considered opinion Plaintiffs’ answers cannot qualify as admissions of culpability under any circumstance. It is also necessary to assess the probative value of EXHIBITS 1 and 2 given the heavy reliance Defendant seems to place on same. At the trial, it emerged that these were written statements given by both Plaintiffs at the inception of the investigations. This was after they had been orally summoned to the Tamale branch from their respective stations. It is clear that these were written not long after the Plaintiffs had first been interviewed by the investigative team. [See page 5 of EXHIBIT B1]. What I gather from the contents of the said exhibits is that certain issues were raised at the said interview and the Plaintiffs called upon to respond in writing. The 1st Plaintiff states in EXHIBIT 2 that this was after about four (4) hours of interrogation. In my view, it is necessary for this Court to place itself in the position of Plaintiffs at that material time when they were required to explain the circumstances of certain alleged fraudulent transactions without having been provided the necessary evidence or documentation to enable them do so satisfactorily. Defendant’s position that the responses contained in the said exhibits constitute admissions seems to ignore this fact.
Under those circumstances, the only option open to Plaintiffs was to speculate as to what could have facilitated or prevented the detection of the alleged fraud. And that is exactly what they did. Their use of the words ‘may’ and ‘might’ is ample evidence of this fact.
This fact is further buttressed by the 1st Plaintiff’s response to the following:
“Q: Mr Asiama in your own handwriting Exhibit 2 you stated expressly that some processes were not followed but the alleged fraud is nothing that you knew of or took part in, is that correct?
A: Yes. I can explain. This reply I gave was when the investigation was going on and we have not known the outcome of the investigation. So I was saying that if there is proof that I was involved I did the right thing. Processes were followed which would not have contributed to the fraud.
2nd Plaintiff on the other hand stated:
Q: Again by Exhibit 1 you too did nothing to advert this fraud by Exhibit 1 your own statement.
A: That is not correct. I was made to write this statement at the early stages of the investigation when I was asked to report to the Tamale branch and when I got to the Tamale branch through the interrogations the investigators told me that they have a volume of transactions linking to the said fraud which I authorized and they were going to show me all the transactions when the investigations were over. Fortunately when the investigations were over that is when I was asked to write this statement. So if the bank thinks that by making this statement I am culpable then it should be proven …”
The inconsistency in the answer given by the 2 nd Plaintiff regarding the time at which EXHIBIT 1 was written is not lost on this Court. But that to me is immaterial, as it is clear on the totality of the evidence that EXHIBIT 1 was written at the preliminary stages and not after the investigation. An admission, as held in a countless number of cases, should be clear and unequivocal which cannot be said to be so in this case. See the cases of POMAA v FOSUHENE [1987-88]1GLR 244 and OPOKU OTHERS (NO.2) v AXES CO LTD (NO.2) 2 SCGLR 1214. I am therefore not persuaded by Defendant’s contention that the Plaintiffs admitted to any failure to follow laid down procedures or to being negligent for that matter. Contrary to the submissions of Counsel for Defendant, I also fail to see how Plaintiffs’ reliance on EXHIBITS B1 and B2 (documents produced by Defendant) advances the case of the Defendant. It is trite, that a party is required to lead every evidence necessary establish his or her case. Thus the mere tendering of a document by a party neither amounts to an admission of the veracity of its contents nor makes the contents of same binding on that party. Quite obviously, the said Exhibits were tendered to establish Plaintiffs’ contention that Defendant’s findings could not be supported by the evidence on record.
Notwithstanding, my finding that Plaintiffs made no admissions, I think, it remains to be determined whether the evidence on record still discloses negligence on the part of Plaintiffs.
At page 11 of EXHIBIT B2, the investigative team found that:
“There is evidence of gross negligence by staff who were involved in the processing and authorizing of the transactions as they failed to follow procedures which were adequate. Considering the period over which the fraud occurred, the number of transactions involved and the experience of the staff that authorized the transactions, it is difficult to accept they were not criminally involved with Nurideen and the customers.”
It should be remembered that it is the asserter who must prove. The Defendant therefore shouldered the burden of proving how it came to these conclusions.
Under cross-examination, Defendant’s representative was asked:
“Q: In the reports both B1 and B2, the Defendant bank states that Nurideen Amidu perpetrated this fraud by suppressing cheques. Is that correct?
A: That is correct.
Q: The fraud emanated from a financial transaction. Is that correct? A: That is correct.
A: Financial transactions of banks are date, time and amount specific. Is that correct? A: That is correct.
It is the case of the Defendant bank also that the Plaintiffs authorized the transactions that led to the fraud. Q: Is that correct?
A: That is correct.
Q: Please tell the Court whether you have any such documentary evidence of these improper authorized transaction?
A: Based on the investigative report I see here it says both Plaintiffs authorized those transactions
Q: Apart from the statements in the investigative report, you do not have evidence of the primary documents upon which the fraud was perpetrated in the bank?
A: I will again base my explanation on the report that those vouchers authorized by Plaintiffs were not found if I am correct.”
The pertinent question any reasonable observer will pose is “on what basis then did the Defendant establish gross negligence against the Plaintiffs?”
At paragraph 2.1 of EXHIBIT B1, the Defendant had stated that all documents and vouchers relevant to the transactions in question had been retrieved for examination. EXHIBIT B2 however disclosed at paragraph 2.2 that the task of reconciliation had become difficult because Nurideen claimed that the suppressed cheques which he kept in house were burnt accidentally. The inconsistencies between the two statements is quite obvious. It however remains a fact that no evidence of the said fictitious transactions was placed before this Court. It is also interesting to note that Defendant even failed to establish that it had actually lost One point Two Million US Dollars (US$1.2 million) as alleged. Though the Plaintiffs did not seriously challenge this assertion, their evidence as a whole shows that any information they had regarding the fraud emanated from the Defendant and was not based on facts perceived by themselves. The ratio in the case of NKEGBE v AFRICA MOTORS DIVISION OF THE UNITED AFRICA COMPANY OF GHANA LTD  GLR, 32 is that proof of facts upon which a dismissal ( or termination ) could be justified must be given at the trial even if such facts were unknown to the employer at the time of dismissal or termination.. This principle was amply elucidated by Osei Hwere JSC in the case of LEVER BROTHERS GHANA LTD v ANNAN; LEVER BROTHERS GHANA LTD v DANKWA (CONSOLIDATED) [1989-90] 2GLR 385 where he emphasized that:
“….it is evident that an employer is not obliged to set up an investigative process to give the employee a fair hearing; see PRESBYTARIAN HOSPITAL, AGOGO v BOATENG [1984-86] 2GLR 381, CA. What is required is that when the employee’s dismissal was brought to question in a court of law th e em ployer’s acti on could be vindicated.”
It follows from the above, that the evidence led in Court must objectively establish the reason given for the termination of Plaintiffs’ employment. I must say the Defendant presented a poor case as far as establishing the basis for its decision is concerned. Its witness made little or no effort to offer cogent explanations or produce any evidence to support the Defendant’s findings. Rather, he continued to seek shelter under the EXHIBITS B1 and B2. In any event, I think it is clear from my assessment so far of the said exhibits that their evidentiary value is in doubt, if not non-existent.
In the case of KLAH v PHOENIX INSURANCE  2SCGLR, 1139, it was held that: “where a party makes an averment capable of proof in some positive way e.g by producing documents, description of things, reference to other facts, instances and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances from which the Court can be satisfied that what he avers is true.”(Emphasismine). In my view, the Defendant failed to sufficiently establish that Plaintiffs were negligent in the discharge of their duties. There is yet another hurdle that in my opinion, Defendant failed to surmount. This was proving that the fraud alleged, happened during the tenure of the Plaintiffs at the Tamale branch. In paragraph 3.1 (vii) of EXHIBIT B1, the investigators concede their uncertainty by stating that:
“We are not sure at this stage the exact role played by the current BSSM and the Operations Manager in their short stay at the branch. However, since the fraud continued into their tenure, we will take a closer look at any role they might have played in this as well.”
At the end of the day, the team found both Branch Managers and Branch Operations Managers who served at the branch between 2006 and 2009 culpable per paragraph 3.3 of EXHIBIT B2. I get the sense that Defendant was merely operating in the realms of possibility due to the absence of relevant records. Of course, given the circumstances surrounding the alleged fraud, the Defendant may have had valid reasons for suspecting that it was facilitated by the indolence of Plaintiffs, but suspicion has no probative value. The Black’s Law Dictionary (8th Edition) defines suspicion as:
“The apprehension or imagination of the existence of something wrong based on inconclusive or slight evidence, or possibly no evidence.”
In my considered opinion, the said fraud if it happened at all, can only cause one to suspect or believe that there could have been some laxity on the part of Plaintiffs. But that, is not in itself proof of “gross negligence”. I am fortified in this view by paragraph 2.3.2 of EXHIBIT B2 which reveals that three (3) separate reviews by a different team had failed to detect the fraud. Indeed, Plaintiffs’ criticism of the systems and the suggestion that there was nothing anyone could do to prevent the fraud may carry some weight. It is therefore little wonder that the same exhibit per Paragraph 2.3.6 and 4.8 makes recommendations aimed at addressing the lapses in Defendant’s systems. From the foregoing, I am not satisfied that the Defendant has discharged the onus of proving on a balance of probabilities that the Plaintiffs were negligent and I so hold. I now turn to the question of whether or not the Disciplinary Committee’s recommendation was in consonance with the CBA . As a starting point in considering this issue, let me stress on the well settled legal position that a contract of service is not a contract of servitude, thus in the case of KOBEA v TEMA OIL REFINERY [2003-2004] SCGLR, 1039, the Court at page 1039 remarked:
“At common law, an employer and his employee are free and equal parties to the contract of employment. Hence either party has the right to bring a contract to an end in accordance with its terms. Thus an employer is legally entitled to terminate an employee’s contract of employment whenever he wishes and for whatever reasons, provided only that he gives due notice to the employee or pay him his wages in lieu of notice. He does not have to reveal his reason much less justify the termination.”
However, as held in the case of KOBI v GHANA MANGANESE CO. LTD. [2007-2008] SCGLR, 775 @ 795, fairness must be the watchword in seeking to exercise the right to give or not to give reasons. Such termination should therefore be in accordance with the terms of any contract that exists for the time being between the parties. It is the contention of Plaintiffs that the termination of their employment is in breach of Article 15(2) of the CBA tendered as EXHIBIT C. The Defendant on the other hand maintains that the said termination was in accordance with Section 15 of Act 651 and the same Article 15 of EXHIBIT C. In resolving this issue, it should be necessary to set out in detail the various provisions relied on by the Parties. Defendant’s representative in his testimony stated that the said termination was in accordance with Section 15 of the Labour Act (Act 651) and Article 15 of the CBA between the Defendant and the Union of Industry, Commerce and Finance Workers. Considering the case being put forward by the Defendant, I am of the view that the relevant provisions under Act 651 are Section 15 (e) (ii) and (iii).
The said sections stipulate that:
“15. Grounds for termination of employment
A contract of employment may be terminated…..
(e) By the employer due to the inability of the worker to carry out work due to
(ii) The incompetence of the worker;
(iii) The proven misconduct of the worker.”
Article 15 of EXHIBIT C on the other hand state as follows:
“1. An employee may resign by giving one (1) month notice to the bank or by paying one (1) month salary to the bank in lieu of notice. Where the employment of a confirmed employee is terminated by the Bank, other than in the case of summary dismissal, the Bank shall give one (1) month notice in writing to the employee or shall pay him one (1) month salary in lieu of notice.
2. Suspension without pay for a period not exceeding three (3) months may be effected by the bank at any time in the event of an employee being guilty of proven gross negligence resulting in losses to the bank or proven grave misconduct. A copy of the suspension letter shall be addressed to the Union.
3. Summary dismissal may be effected by the Bank at any time in the event of an employee being guilty of proven serious misconduct. A copy of the dismissal letter shall be addressed to the Union. If an event is considered by the Bank to merit summary dismissal of an employee, that employee shall be given notice of it in writing, outlining the nature of the offence.
4. The employee may, if he chooses reply in writing, but if no reply is received by the Bank within one month from the time notice is served on him or if after a reply from the employee, the bank considers summary dismissal still necessary, the employee shall be advised in writing that he has been dismissed as from the date of the notice originally given.”
It is worthy of note that Section 19 of Act 651 states that the provisions of Section 15 are inapplicable where the terms and conditions in a CBA are more beneficial to the worker. This calls for a critical evaluation of EXHIBIT C.
In doing so, I intend to be guided by case of OPARE YEBOAH v BARCLAYS BANK LTD  1SCGLR, 342 which is authority for the proposition that, in construing contractual documents such as EXHIBIT C, the linkages between the various provisions must be carefully evaluated so as to bring out the mutual intent of the Parties at the time of the contract. Now, Clause 1 of Article 15 discloses that, except in cases of summary dismissal both parties are generally at liberty to terminate the contractual relationship by giving the other one month’s notice or by paying one month’s salary in lieu of notice. Under this provision, except for the requirement that such notice be in writing in the case of a confirmed employee, neither party is under an obligation to assign reasons for its decision to terminate. The combined effect of Clauses 2 and 3 however, in my thinking, is to vest the Defendant bank with the discretion as to which sanction to impose depending on the gravity of the employee’s misconduct. I say so because even though Clause 2 states specifically that suspension without pay for a period of three (3) months may be effected for proven gross negligence, the use of the word ‘may’ suggests that the Defendant is not bound or limited to imposing that particular sanction in all cases of proven gross negligence. Indeed by the wording of Clause 3, the Defendant bank has the latitude to even summarily dismiss an employee for gross negligence if it comes to the conclusion that such negligence constitutes serious or grave misconduct since EXHIBIT C does not define grave misconduct to exclude gross negligence. I am therefore unable to accept Plaintiffs contention that under Article 15, the sole disciplinary action permitted in cases of gross negligence is suspension for three (3) months without pay.
That said, it is unclear from Defendant’s written address, whether it is its case that the Plaintiffs were terminated for incompetence or for gross negligence. This is because the two cannot be said to be synonymous. Incompetence suggests a lack of ability or skill to perform a task whereas gross negligence suggests a lack of diligence in the performance of a legal duty without caring about the consequences. Thus a person may be fully competent and yet guilty of gross negligence whereas an incompetent person may not necessarily be negligent in the performance of his or her duties. Incompetence therefore does not necessarily amount to misconduct. It is significant to note that Article 15 of EXHIBIT C is silent on what happens when a worker is found to be incompetent. However, in determining the provisions applicable to the facts on hand, one needs look no further than EXHIBITS A and G which state the basis for the termination of Plaintiffs employment. The basis was that Plaintiffs were found to have been negligent. What is clear from Clauses 2 and 3 of Exhibit C is that gross negligence or any other form of grave misconduct must be proved. I have already pointed out that it was perfectly within the rights of Defendant to terminate Plaintiffs’ appointment under Article 15(1) of EXHIBIT C, without assigning any reasons but once the Defendant sought to justify the terminations in EXHIBITS A and G, it shouldered the onus of proving the same in this Court. Having already found the charges preferred against the Plaintiffs unproven, I do not intend to revisit the issue except to add that I am not enthused to attach any weight to the committee’s findings as contained in EXHIBITS D and J. This is firstly because, the Plaintiffs’ assertion that the said exhibits contained names of certain persons who never took part in the committee’s sittings, elicited no denials from the Defendant.
The Defendant also failed to assist the Court with any evidence regarding how “It came to light” at the disciplinary hearing that Plaintiffs had been grossly negligent. Given the Plaintiffs persistent denials of any wrong doing, a verbatim transcription of the committee’s proceedings would have been more helpful than the paraphrased one which sought to attribute certain admissions to the Plaintiffs. I am indeed inclined to believe the 1st Plaintiff’s contention that EXHIBIT D was hurriedly prepared (possibly in anticipation of legal proceedings) and did not truly reflect what took place at the sitting of the committee. The erroneous dating of the said Exhibit, to me, is ample evidence of this. I also find rather intriguing the position of Defendant’s Counsel, that the Plaintiffs never challenged the findings of the Disciplinary Committee. It is my view that EXHIBITS 3 and 4 as well as the present suit by themselves constitute a sufficient challenge to the findings of the said committee. To the extent that Defendant failed to prove the charges levelled against Plaintiffs, it is my finding that Defendant failed to adhere to the provisions of Article 15 of EXHIBIT C in terminating Plaintiffs appointment. In the result, it is the conclusion of this Court that the termination of Plaintiffs’ appointment was wrongful and/or unlawful and I so declare.
I am however, unable to declare the said termination null and void as that to my mind, will be tantamount to declaring that their appointments were in law never terminated and that they have remained employees of Defendant from the 7th of January 2010 till date. The position of the law is that the remedy available to an employee whose appointment has been wrongfully terminated is an action for damages unless of course the employment has statutory backing. As held in the case of ASHUN v ACCRA BREWERY LTD.  SCGLR 81.
“… in principle then, in the absence of any contrary statutory provision or contractual provision, the measure of damages for wrongful termination of employment under the common law of Ghana is compensation based on the employee’s current salary and conditions of service for a reasonable period within which the aggrieved would have earned from his employment during such reasonable period, determinable by the court, after which he or should have found alternative employment. This quantum is, of course, subject to the duty of mitigation of damages.”
Unfortunately, no evidence was led in proof of Plaintiffs salary at the time of termination or how much they would be earning currently, had their appointments not been terminated. The Plaintiffs also failed to lead any evidence in proof of their alleged futile attempts at seeking alternative employment. In any event, it is authoritatively settled by the Ghanaian Courts that a dismissed employee is expected to have found alternative employment within two (2) years of such termination. See the case of NARTEY TOKOLI v VOLTA ALUMINIUM CO LTD (NO 2) [89-90] 2GLR, 341. I also fail to appreciate the basis for Plaintiffs’ claim for severance pay. By the provisions of Section 65 (2)-(5) of Act 651, an employee is only entitled to severance pay if his or her relationship with the employer is severed as a result of an arrangement or amalgamation or close down of the establishment which results in the loss of employment or a diminution in the service conditions of such employee. See the case of GHANA COCOA MARKETING BOARD v MARTINS A. ATUAHENE GMJ  PT114 @ 233. Plaintiffs’ claim for severance pay is therefore not maintainable.
After a careful consideration of the facts and circumstances of this case, it is my view that an award to each Plaintiff of a sum equal to their respective total current salaries for eighteen (18) months plus the payment of all other benefits and allowances due them as at the 7th of January,
2010 will be fair and just.
Judgement is accordingly entered in favour of the 1st and the 2nd Plaintiffs as follows:
i) It is hereby declared that the termination of the 1st and the 2nd Plaintiffs’ employment was wrongful and/or unlawful.
ii) The 1st and the 2nd Plaintiffs are each awarded a sum equal to a total of their respective salaries for a period of 18 months as damages for unlawful termination in addition to the payment of all benefits and allowances due them as at the 7th of January, 2010.
I award each Plaintiff costs of Ten Thousand Ghana Cedis (GHȼ10,000.00).