IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT
HO - A.D 2018
SAMUEL EDEM BUAKAH OF AFLAO - (Plaintiff)
GHANA POST COMPANY LTD HEADQUARTERS - (Defendant)
DATE: 15 TH MAY 2018
SUIT NO: E2/30/14
JUDGES: ERIC BAAH JUSTICE OF THE HIGH COURT
GODWIN KPOBLE FOR PLAINTIFF PRESENT
AGYENIM BOATENG FOR DEFENDANT ABSENT
Per his writ of summons issued on 25 February, 2014, the plaintiff seeks a declaration that the defendant failed to comply with their Collective Bargaining Agreement (C.B.A.) and therefore could not dismiss him; a declaration that his dismissal was unlawful, illegal, null and void and of no legal effect; an order for the payment of all salaries, emoluments, entitlements and benefits due him effective 9 December 2011; an order reinstating him, general damages for unlawful dismissal and punitive costs. After the pleadings and application for direction, the court ordered the parties to file their witness statements. The plaintiff duly filed his witness statement but the defendant failed or refused to do so. The plaintiff's witness statement was served on the defendant. Thereafter, a hearing notice was served on the defendant to appear in court. They failed to do so without any excuse of justification.
The court conducted the case management conference in the absence of the defendant. With leave of the court, the plaintiff testified by relying on his witness statement. In the course of the trial, the plaintiff's counsel intimated that the defendant had re-instated the plaintiff. This fact was re-iterated in the written address of plaintiff counsel. The issue of re-instatement of the plaintiff is accordingly no more at stake. The other issues are however at state. In order to determine those issues, it is necessary for the court to consider the legality or otherwise of the plaintiff's suspension. At the close of the case for the plaintiff, his lawyer filed a written address as directed by the court.
Plaintiff's Counsel's Address
Counsel in his written address referred to the reliefs sought by the plaintiff, the stages of the proceedings, the pleadings, the issues; and after addressing the issue of burden of proof, concluded that the plaintiff proved his case on preponderance of probabilities. He prayed the court to enter judgment for the plaintiff. A number of issues were set down which I hereunder determine.
Whether or not the defendant failed to comply with article 35(8b) of the Collective Bargaining Agreement (C.B.A)
The first issue is as to whether or not the defendant complied with article 35 (8b) of the C.B.A. A copy of the C.B.A was tendered by the plaintiff as exhibit D.
Article 35 (8b) of the C.B.A. provides:
"An officer against whom an official allegation of a major offence has been made subject to further investigations (by the investigation branch of the company or the police) or where criminal proceedings are about to be instituted against the employee, such an officer shall be made to proceed on indefinite leave without pay. An officer shall not remain on indefinite leave without pay or interdiction for more than six (6 months unless criminal prosecution has been instituted against the officer..."
The plaintiff alleges that thieves broke into his office on 17 October, 2011. On 9 December, 2011, he was ordered to proceed on indefinite leave; apparently, under article 35(8b) of the CBA. He was not recalled until he wrote a letter for reinstatement on 11 June 2013. See Exhibit "B". When the defendant received Exhibit B, it then wrote a purported letter of dismissal dated 25 September, 2013. It is interesting to note that a board of enquiry was constituted only after the plaintiff's letter for reinstatement was received by the defendant. The board; per exhibit C, sat on 25 July 2013. In the circumstances, the plaintiff considered his dismissal unlawful, illegal, null and void, and caused his lawyer to write to that effect. See exhibit "E". Article 35 (8b) of the CBA (supra) stipulates that where an officer is asked to proceed on indefinite leave without pay, the period for such leave shall not exceed six months. However, the period of 9 December, 2011; when the plaintiff was asked to proceed on indefinite leave to 11 June, 2013, when he wrote a letter for re-instatement alone, is nineteen months or thereabout. The period of his suspension to the date of 25 July 2013; when the investigation board sat on the case, is twenty months.
The letter of dismissal, dated 25 September, 2013 was written twenty-two months after he was suspended. In all three scenarious, the defendant failed to act within six months after suspending the plaintiff. Article 35 (8b) paragraph 11 of the CBA was accordingly violated. The defendant's own investigation board concluded that the defendant violated the said article. I concluded that a violation was occasioned by the defendant and that rendered the suspension of the plaintiff illegal or unlawful.
Whether or not there were enough facts connecting the plaintiff to the theft.
It should be noted that by article 35 (8b) of the CBA, investigations connected to any allegation of a major offence relating to an officer is to be conducted by the Investigation Branch of the company or the police. Per its report (exhibit C), the Board of Enquiry concluded that the theft really occurred and that more than one person had keys to the office. The Board could therefore not link the plaintiff to the theft. In their statement of defence, the defendant deposed that investigation conducted by one Christian Nyuixordu, the then Regional Security Co-ordinator dismissed any burglary as alleged by the plaintiff. That conclusion appears spurious, in the face of the contrary conclusion by the Board of Enquiry report. If the plaintiff committed the theft, why was he not prosecuted? In the face of the Board of Enquiry's report that other people had keys to the office and there was no security at night, how could one reasonably say that evidence pointed to the plaintiff and no one else as the perpetrator of the crime?
I find the Board of Enquiry's conclusion; supported by evidence, more reasonable. I align with their conclusion that there was not sufficient evidence to link the plaintiff to the theft.
Whether or not defendant was justified recommendations of the Board of Enquiry (BoE)
The BoE conducted a thorough hearing and presented a report with its conclusions and recommendations. It was recommended that the plaintiff should be re-instated. The defendant ignored the recommendation and relied on the alleged conclusion of a regional security co-ordinator. As mentioned supra, if there was any substance to the security co-ordinator's conclusion, the plaintiff should have been prosecuted on those conclusions. Yet, the defendant could not be bold enough to prosecute the plaintiff on those conclusions. The decision to dismiss the plaintiff based on the said security co-ordinator's findings; in total disregard of the BoE's findings, was quite misguided. That decision had no legal basis and was accordingly not justified. On issue E, it was in the province of the defendant to decide whether to suspend the plaintiff indefinitely without leave or interdict him with half salary. The decision to suspend the plaintiff indefinitely without leave accorded with the CBA and cannot be questioned.
The BoE report made it clear that there was no security at the premises in the night. A public officer or an employee is not legally required to spend his personal resources to cater for security at his office. It was the duty of the defendant to provide full security at the Aflao premises. Having failed to do so, it must absorb the consequences, and cannot be permitted to scapegoat the plaintiff, just to ensure that someone is held accountable for the crime. The BoE report revealed that the plaintiff was not present when his safe was audited. It is obvious that the defendant had made up its mind about the plaintiff and conducted the security co-ordinators investigations and the audit to get some grounds to fire him. The plaintiff's natural rights were severally curtailed when he was not given the chance to be part of or react to the internal security investigations or the audit. It was strange that in respect of a serious charge of theft, the police did not conduct any investigations to determine those likely to have committed the offence.
I conclude that the suspension of the plaintiff in excess of six months was unlawful in the face of article 35 (8b) of the CBA. His subsequent dismissal was even more unlawful. No doubt the defendant realized the error into which they had fallen and re-instated the plaintiff. The reinstatement amounted to an implicit admission that his suspension and subsequent dismissal were unlawful. In the circumstances, it will not be justified for the plaintiff to loose any of his entitlements for the period he was either unlawfully suspended or dismissed. I enter judgment for the plaintiff and order the defendant to pay to him, all his salaries, emoluments, entitlement and benefits due him from 9 December, 2011, when he was suspended, to the date of his re-instatement. No order is made as to damages. Costs of GH¢10,000.00 is allowed against defendant.