IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT(INDUSTRIAL/LABOUR DIVISION)
ACCRA - A.D 2013
ISAAC OSEI NYANTAKYI - (Plaintiff)
GHANA GRID COMPANY LTD.-(Defendant)
DATE: 13TH JUNE, 2013
SUIT NO: INDL 21/11
JUDGES: JUSTICE KWABENA ASUMAN-ADU
MR. AUGUSTINE OBOUR FOR THE PLAINTIFF
MR. EMMANUEL AMOFA FOR THE DEFENDANT
The Plaintiff herein, Isaac Osei Nyantakyi, a former employee of the Defendant Company, Ghana Grid Company Limited (GRIDCO) commenced the instant action against the Defendant by filing a writ of summons together with a statement of claim for the following reliefs:
A Declaration that the termination of his appointment by GRIDCO is wrongful.
An order that the wrongful termination of appointment by the Defendant be treated as having declared the Plaintiff redundant according to the GRIDCO Senior Staff Association Conditions of Service.
Damages for wrongful termination of appointment of the Plaintiff by the Defendant.
Three months’ salary in lieu of notice under GRIDCO SSA Conditions of Service to be paid to him.
Cash payment of accrued leave for 2007 and 2008.
One month basic salary for transfer from Takoradi to Tema.
Reasonable moving expenses to a place of hire.
The Defendant entered appearance on 11th November, 2010 and went on to file its statement of defence on 22nd November, 2010 denying Plaintiff’s claim. On 1st December, 2011 the Plaintiff filed an application for directions. No additional issues were filed by the Defendant so on 21st December, 2010 this court set down the following issues for trial:
Whether or not the termination of the appointment of the Plaintiff by the Defendant was fair?
Whether or not the Senior Staff Association Conditions of Service of GRIDCO, 2009 is applicable to the Plaintiff?
Whether or not the disciplinary procedure under the GRIDCO Senior Staff Conditions of Service, 2009 was properly adhered to by Defendant Company?
Whether or not the Defendant is liable for damages for unfairly terminating the appointment of the Plaintiff?
Whether or not the letter terminating the Plaintiff’s appointment signed by the C.E.O., Mr. Charles Daaku emanated from any Management meeting?
Any other issues arising out of the pleadings.
Plaintiff’s case is that he was employed by the Volta River Authority (VRA) on 1st December, 1989 as an Assistant Engineer and rose through the ranks to become Area Manager, Transmission System, Kumasi. He was subsequently transferred to Takoradi as an Area Manager. In 2005, GRIDCO was established by an Act of Parliament as a subsidiary of VRA so in July, 2008 he was transferred from VRA to GRIDCO. Plaintiff was transferred on the basis of service continuity so he was to retain his seniority and also to continue to enjoy the same conditions of service pertaining in VRA.
Plaintiff was subsequently, tasked to give recommendation on the commissioning of the Osagyefo Barge. Based on his recommendation GRIDCO was asked by the then Minister for Energy to take over the rehabilitation of the project. Forelum Energy was engaged for the transmission lines but it abandoned the job. It was, however, recalled and the Director of the Plaintiff, Mr. Stephen Doku wrote to the Plaintiff to assist the company to test its equipments. Plaintiff started working again with Norelec to get the project commissioned. In the process one of his subordinates, Cecil Akumey Affizie who was supposed to be on standby was not available. However, on the same day in the evening the Plaintiff heard his voice on Sky FM in Takoradi so on the following day he called him to his office and advised him to put a stop to what he was doing since he was a public officer.
Before the Osagyefo Barge could be commissioned the Plaintiff used his initiative to get a lot of materials from SAE Power Lines without being paid for by GRIDCO. On 19th August, 2009, there was a publication about him in the Insight News Paper and his response on the publication was demanded by Management which he responded and gave same to the CEO Mr. Wiafe. On 22nd January, 2010, he received another letter from the Acting Director of HR requesting him to explain other issues which he obliged in a letter dated 28th January, 2010.
Plaintiff was offered admission to the University of Manchester for a one year MSC Programme which was approved by GRIDCO and he was scheduled to travel to the UK on 19th September, 2009. He later received a call from the Acting Director to see her in the morning of that day. On that day when he got to the office believing to take his travel money, he was made to face a Committee of Enquiry made up of seven members of staff, five of whom were his juniors by far. Plaintiff was never informed of the Committee of Enquiry until 18th September, 2009 when he had set out to travel outside the country for the course.
At the said Committee of Enquiry meeting he observed that all the panel members had copies of his response to the publication given to the former CEO. He was later asked to reschedule his trip for two weeks which he did. On 23rd September, 2010 he met the committee again and this time they discussed matters concerning dirty Transmission oil. After this meeting he went to see the CEO on his travel but was asked to wait for the outcome of the investigations.
Whilst waiting for the outcome of the committee’s investigations, the Plaintiff received a letter dated 19th October, 2009 from the CEO asking him to take his 2009 leave with retrospective effect from 16th September, 2009 and report for duty on 29th October, 2009 which he complied. Whilst on leave he received a letter dated 19th October, 2009 that GRIDCO could no longer release him for the course. He as a result refunded all monies taking by him in connection with the trip to GRIDCO.
When Plaintiff resumed work his brand new Nissan Patrol vehicle he was using was taken from him and was given Toyota Corona, 1990 model so he could not travel with it to visit his family in Takoradi except by public transport. Plaintiff was never given a copy of the committee’s report. In May 2010 he received a letter from the Acting Director of HR that he should take his annual leave for 2010 which he complied.
Whilst Plaintiff was on leave and had travelled to the United States, the Director of the HR called him and informed him that Management had taken a decision to terminate his appointment but he had, however, been given the option to resign but the Plaintiff declined the option.
On 6th May, 2010 the Plaintiff applied to be appointed as a Director for Northern/Southern Network Services Department and was invited for an interview scheduled for Tuesday, 20th July 2010 but it was subsequently cancelled by a telephone call. He was later invited by the CEO to his office and he was given a letter dated 14th July, 2010 terminating his appointment. The said letter, however, fell short of GRIDCO conditions of service for Senior Staff Association in respect of his annual leave for 2007 and 2008. The termination of his appointment was also not fair and that he has wrongfully been terminated from his employment. When Plaintiff was transferred to Takoradi as the Area Manager he suffered severe and permanent skin infection called Psoriasis in the course of his work and, therefore, deformed. Plaintiff is, therefore, entitled to the reliefs endorsed on his writ of summons.
The case of the Defendant on the other hand is that, a concerned staff of the Defendant made certain allegations against the Plaintiff in the August, 19 to 20 edition of the “Insight” Newspaper and Management requested for and obtained a response from the Plaintiff. A Committee of Enquiry was set up to investigate the allegations and some findings were made by the Committee. Management later requested the Plaintiff to react to the findings of the Committee which he did.
Defendant contends that in accordance with the disciplinary procedure in the conditions of service, Plaintiff should have been interdicted pending investigations into the allegations but the Defendant allowed him to proceed to take his outstanding leave.
According to the Defendant it reserves the right to allocate to officers who are so entitled, vehicles that are suitable for their specific duties, and that vehicles so allocated are not meant for their private use. Plaintiff’s duty as the Area Manager in Takoradi required the cross country vehicle. However, his duties in Tema did not require long distance travel so the Nissan Patrol Cross Country vehicle initially given him was taken from him and he was given Toyota Corolla 1999 model and not a 1990 model.
The Plaintiff was given the option of resigning because that was considered as being more humane way given the years of service the Plaintiff had rendered to the company, regardless of the fact that the Committee of Enquiry made adverse findings against the Plaintiff, the penalty of which was a summary dismissal.
On the issue of interview for the position that the Plaintiff applied for, the Defendant contends that in so far as the Plaintiff was neither on interdiction nor suspension he was entitled to be invited to the interview for the position he had duly applied for just like all the other applicants. However, due to the inability of the interview panel to hold the interview on the scheduled date, all the applicants were informed by telephone calls of the postponement of the interview. It was its practice to use e-mails, telephone as well as official letters to communicate to staff.
The Defendant avers that Plaintiff’s appointment was terminated in accordance with the conditions of service for Senior Staff and was, therefore, fair. The Plaintiff is, therefore, not entitled to the reliefs endorsed on his writ of summons.
Having reviewed the evidence before the court I will go on to evaluate the evidence vis-à-vis the issues this court has been called upon to evaluate. The first issue for consideration is whether or not the termination of the Plaintiff’s appointment by the Defendant was fair. The Plaintiff contends that the termination of his appointment by the Defendant was unfair. The Defendant, however, avers that the termination of Plaintiff’s appointment was fair. This court must, therefore, find out which of the evidence before the court is more probable. This is because Section 12 of the Evidence Act, 1975 (NRCD 323) requires proof of evidence by a preponderance of the probabilities. Section 12 (1) of the Act states that except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities and Section 12 (2) defines “preponderance of the probabilities” as that degree of certainty of belief in the mind of the tribunal of fact or the Court by which it is convinced that the existence of a fact is more probable than its non-existence.
This position of the law was confirmed by the Supreme Court in the case of Adwubeng v Domfeh [1997-98] 1 GLR 282 in which it held at page 295 that Sections 11(4) and 12 of NRCD 323 clearly provide that the standard of proof in all civil actions is proof by a preponderance of probabilities. No exceptions are made. This court must, therefore, find out whether Plaintiff has been able to prove his case on a balance of probabilities. So the question is whether on a balance of probabilities the termination of Plaintiff’s appointment is unfair.
Sections 62 and 63 of the Labour Act, 2003, (Act 651), deal with factors that lead to fair and unfair termination of employment respectively. Section 64 provides remedies for unfair termination of employment. By Section 64(1) a worker who claims that his employment has been unfairly terminated by his employer may present a complaint to the Labour Commission. Section 64(2) goes on to state that if upon investigation of the complaint the Commission finds that the termination of the employment was unfair, it may decide on one of the following:
Order the employer to re-instate the worker from the date of the termination of employment, Order the employer to re-employ the worker, either in the work for which the worker was employed before the termination or in other reasonably suitable work on the same terms and conditions enjoyed by the worker before the termination. Or
Order the employer to pay compensation to the worker.
So as provided by the Labour Act where an employee considers the termination of his employment to be unfair then the appropriate forum is the Labour Commission and not the courts. See the case of Bani v. Maersk Ghana Limited (2011) 2 SCGLR 796. In that case, the plaintiff, Felix Yaw Bani and two others were found guilty in a report of a sub-committee set up by the defendant to investigate them for an alleged offence committed by them. Whilst plaintiff’s appointment was terminated by the defendant, the other two colleagues were only served with warning letters. The plaintiff being dissatisfied with the defendant’s action against him, sued the defendant company for, inter alia, a declaration that the termination of plaintiff’s appointment by the defendant was unlawful, unfair and without any basis whatsoever; and an order for the immediate re-instatement of the plaintiff. On the issue of unfair termination the Supreme Court held that the original jurisdiction has been reserved for the Labour Commission to the exclusion of the courts. Date-Bah JSC delivering the lead judgment of the Court stated at page 809 as follows:
“Section 64 of the Act provides that a worker who claims that his employment has been unfairly terminated may present a complaint to the Labour Commission established under the Act. If the Commission finds that the termination of the worker is unfair, it may give him or her one of three remedies specified in the Act: an order to the employer to re-instate the worker from the date of termination of employment; an order to the employer to re-employ the worker in the work for which the worker was employed before the termination or in any other reasonably suitable work on the same terms and conditions enjoyed by the worker before the termination; or order the employer to pay compensation to the worker. These statutory remedies are made available to the Commission but not, at least expressly, to the courts.”
On the authority of Bani v. Maersk Ghana Ltd (supra) as stated above, the Plaintiff in the instant case cannot come to this court seeking remedy for unfair termination. As has been stated elsewhere in this judgment it is the Labour Commission that has original jurisdiction to adjudicate complaints of unfair termination of appointment. So by coming to this court for unfair termination the Plaintiff has come to the wrong forum so he cannot obtain his relief on that from this court. He would have to go to the Labour Commission if that had been the main relief he is seeking from this court. It is, however, observed that the Plaintiff in his first relief is rather seeking for a declaration that the termination of his appointment by GRIDCO is wrongful. He does not state unfair termination in any of the reliefs he is seeking from this court. This court will, therefore, have to find out from the available evidence whether or not the termination of Plaintiff’s appointment by the Defendant Company is wrongful notwithstanding the fact that wrongful termination was not set down as one of the issues for determination by this court.
The Court takes notice of the fact that, the instant action being an action for wrongful termination of appointment, it is the duty of the Plaintiff to prove to the court that by the terms of his employment or by the terms of existing statutory provision the termination of his appointment by the Defendant was wrongful. The principle on this is provided in the case of Morgan & Ors. v. Parkinson Howard Ltd. (1961) GLR 68 in which Ollenu J (as he then was) stated at page 70 as follows:
“In a claim for wrongful dismissal, it is essential that the Plaintiff should prove the terms of his employment and then prove either that the determination of the employment is in breach of the terms of his agreement, or that the determination is in contravention of the statutory provisions for the time being regulating employment. His claim cannot succeed if he fails to satisfy the Court on these points.”
This position of the law was adopted by the Supreme Court in the case of Kobi v Ghana Manganese Co. Ltd. [2007-2008] SCGLR 771 at Page 786 where Ansah JSC states as follows:
“The issues agreed upon for trial, were whether or not the termination of the Plaintiffs’ appointment was wrongful and illegal and whether or not the Plaintiffs were entitled to their claims. 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 for the time being regulating employment. If a Plaintiff failed to satisfy the Court on these points, his or her claim cannot succeed.”
In applying the principles in the authorities referred to above to the instant case, it is my view that the instant action being an action for wrongful termination of appointment the Plaintiff herein assumes the burden of proving to the Court the terms of his employment and that the termination of his appointment is in breach of the terms of his employment, or it is in contravention of statutory provisions for the time being regulating employment. This court will, therefore, have to find out from the evidence before it whether the Plaintiff has been able to satisfy those principles in the instant case.
The Plaintiff in his evidence-in-chief told the court that his appointment as the Area Manager of the Defendant Company was terminated per a letter dated 14th July, 2010 based on allegations leveled against him in the “Insight” Newspaper Publication dated 19th to 20th August, 2009. He claims that the Defendant did not go through the prescribed procedure in the Senior Staff Conditions of Service in terminating his appointment. He tendered in evidence the letter terminating his appointment as Exhibit E. He then tendered in evidence the Senior Staff Association Conditions of Service for 2009 as Exhibit H and a Revised Conditions of Service for Unionized and Senior Staff, 2009 t0 2010 as Exhibit J. Plaintiff tendered in evidence the Insight Publication as Exhibit K.
In his address counsel for the Defendant stated that although the Plaintiff referred to a 2009 Senior Staff Association Condition of Service, none was produced to the court in proof of his case. He goes on to state that the Plaintiff rather tendered in evidence a 2003 Conditions of Service for the Senior Staff Association which is not applicable to the Plaintiff. It is surprising that counsel for the Defendant made that submission. The court takes notice of the fact that on 17th December, 2002 with leave of the court the Plaintiff tendered in evidence the 2009 Senior Staff Association Conditions of Service in place of an earlier one that had been tendered in evidence as Exhibit H. Before then the Plaintiff had tendered in evidence Revised Conditions of Service for Unionized and Senior Staff as Exhibit J. Counsel for the Defendant also made reference to the Exhibit when he was cross examining the Plaintiff. How then can he turn round to say that the Plaintiff did not tender in evidence the applicable Senior Staff Conditions of Service? It is, therefore, the opinion of this court that the Plaintiff has tendered in evidence the Senior Staff Conditions of Service for 2009 which was applicable to the Plaintiff. What the court ought to find out is whether or not in terminating Plaintiff’s appointment the Defendant breached the terms provided in Exhibits H and J.
Exhibit H provides for disciplinary code at Article 11 on page 21. It provides at 11.01 that any misconduct, negligence, willful disregard of instructions, inefficiency, absenteeism, criminal offence, or any other act which is prejudicial to the efficient conduct of the business of the Company, or tends to bring the Company’s image into disrepute shall constitute an offence and shall render the offending employee liable to disciplinary action.
It goes on to state at 11.02 that disciplinary action may involve the imposition of any of the following penalties, depending on the gravity of the offence:
i) Warning or reprimand;
ii) Withholding or deferment of increment, suspension of increment;
iii) Withholding of annual bonus;
iv) Reduction in rank; Reduction in salary;
v) Suspension from duty with loss of pay;
vi) Removal from the service of the Company;
vii) Surcharge and
viii) Summary dismissal.
Exhibit H provides at 11.03 that the Disciplinary Authority shall be the Chief Executive, but he may delegate his powers in respect of certain categories of disciplinary action.
Article 11.04 provides for the Disciplinary procedure as follows:
(i) The Disciplinary Authority shall take into consideration any representations which the employee may wish to make, including the evidence of witnesses, which may be relevant to the case.
(ii) If the Disciplinary Authority is satisfied that the offence has been committed, the employee shall be informed in writing to that effect and of the penalty, which has been imposed.
(iii) Employees found guilty of any of the offences listed in the Appendix shall be dealt with in the corresponding manner described in the Appendix.
Article 11.05 provides for Petition against Disciplinary action as follows:
(i) All petitions shall be addressed to the Chief Executive.
(ii) Where it is intended to petition against a decision, employees shall within two (2) weeks of the decision submit their petition to the Chief Executive through the Director, Human Resources, indicating the grounds on which the petition is made and forwarding to their Head of Department a copy of the petition.
(iii) After the Chief Executive has renewed the decision, the employee shall be informed in writing as to whether the petition has been allowed or dismissed, as the case may be.
Article 12.02 (i) provides that the Company may terminate the appointment of employees by giving the following previous notice in writing or the equivalent payment of month(s) salary in lieu as follows:
a. Group A1 Employees - Two months’ notice
b. Group A2, A3, A4 Employees - three months’ notice.
Article 12.04 provides that employees may be summarily dismissed for committing an offence, which renders it undesirable in the interest of the Company to continue their employment. Such employees:
(a) Shall forfeit any vacation entitlement.
(b) May at the discretion of the Board of Trustees or an authority responsible for the administration of any retirement plan, forfeit part or whole of the Company’s contributions.
The Appendix on the Disciplinary Procedure provides for the procedure that should be followed in event of taking disciplinary action against an employee at page 40 of Exhibit H as follows:
a. The Supervisor of the employee concerned shall issue a query in writing to the employee requesting him to explain himself.
b. The date and time by which the employee shall make an explanation shall be 3 to 7 days from the date on which the employee receives the letter.
c. On receipt of the explanation, the Supervisor shall forward the correspondence together with his recommendations to the Divisional Head.
d. If it is an offence for which a written warning may be issued, the case shall be dealt with by the Divisional Head as follows:
i. If the Divisional Head considers that the employee has exculpated himself he shall so inform the employee in writing and no other action is required.
ii. If the Divisional Head considers that the employee has not exculpated himself, he shall issue him with a written warning and forward copies of the correspondence together with a copy of the written warning to his Head of Department. Copies of the written warning shall be forwarded to the Director of personnel and Union.
e. If it is an offence for which a penalty other than a written warning may be issued, the Divisional Head shall, if necessary further investigate the incident and forward all the correspondence together with his recommendations in duplicate to the Head of Department.
f. If the Head of Department decides that the employee has exculpated himself or has no case to answer, he shall so inform the employee and no other action will be required.
g. If the Head of Department decides that the employee has not exculpated himself, he may carry out further investigations into the case, and upon satisfying himself on the guilt of the employee, decide on the appropriate penalty to be inflicted, and shall make a summary of the case together with the penalty decided upon and forward these to the Director of Personnel who will then inform the employee concerned of the decision taken in the matter. Copies of the decision shall be forwarded to the Union.
Plaintiff went on to tender in evidence Revised Conditions of Service for Unionized and Senior Staff, 2009 – 2010 as Exhibit J. The said exhibit provides under Disciplinary Authority that any Committee instituted by Management to investigate a member of the Senior Staff Association involved in an alleged malfeasance or an impropriety shall include a representative of the Senior Staff Association.
The Plaintiff claims that in terminating his appointment the Defendant did not follow the procedure provided in Exhibits H and J. He also said that as provided by the conditions of service the Disciplinary Committee that investigated the allegations leveled against him ought to have had a representative of the Senior Staff Association as a member but in his case there was no representative of the Senior Staff Association on the Committee. The Plaintiff also claims that as a Grade A4 staff he was entitled to be given three months’ notice or three months’ salary in lieu of notice but the Defendant in terminating his appointment did not give him the required notice. The Plaintiff goes on to contend that it is stated in the letter terminating his appointment that his alleged conduct had caused loss to the company but he was never informed of the loss that his alleged conduct had caused. He also claims he did not receive a response to his petition from Management. The termination of his appointment by the Defendant is, therefore, wrongful and the court must so hold.
The Defendant on the other hand claims that the offence committed by the Plaintiff was so serious that it should have attracted summary dismissal but Management mitigated it to termination of appointment on account of his long service. The Defendant, therefore, contends that it terminated the Plaintiff’s appointment in accordance with the Senior Staff Association Conditions of Service. The termination of Plaintiff’s appointment by the Defendant is, therefore, not wrongful and the court must so hold. It is inferred from the evidence of the Defendant that because the penalty for the offence leveled against the Plaintiff was summary dismissal and because it had decided to commute it to termination of appointment there is no need to go through the procedure provided in Exhibit H. There is, however, no provision in Exhibit H which allows the Defendant to substitute termination of appointment for summary dismissal. Doing that would amount to a breach of Exhibit H. In terminating the appointment of the Plaintiff the Defendant ought to comply strictly with the provisions in Exhibit H.
In the case of Kobi v. Ghana Manganese Co. Ltd. (supra), the Supreme Court per Ansah JSC held that the right of an employer to terminate the employment of the employee is dependent on the terms of the contract and must be exercised in accordance with the terms therewith. He goes on to state that in looking for justification for the action of the company, where a collective agreement existed between the employer and the employees, that must be the yardstick or the acid test to apply in terminating the employment of an employee. That is when the parties have provided for certain eventualities and procedures in a collective agreement, they ought to apply fully so as to justify any action by the parties to the agreement. In that case the court held that the termination of plaintiff’s employment was wrongful because in terminating the employment of the plaintiff the defendant did not follow fully the procedure provided in the terms of the contract.
In the case of Bani v. Maersk Ghana Ltd, (supra) Dr. Date-Bah JSC quoted Ofoe JA with approval his dictum in the same case at the Court of Appeal stage as follows:
“It was the choice of the respondent whether to dismiss or terminate the employment. But immediately it decides on one, then the procedures under the collective agreement to effectuate the choice should be complied with. The company is in clear violation of the collective agreement and it is such violation that the Supreme Court in the case of Kobi v. Ghana Manganese Co. Ltd…castigated.”
In the instant case the Defendant claims that the offence allegedly committed by the Plaintiff was such that it should have attracted summary dismissal. However, considering the extent of his service rendered to the Defendant Company it decided to commute it to termination of appointment. Since there was no provision that allowed the Defendant to commute summary dismissal to termination of appointment, if it had become necessary to terminate Plaintiff’s appointment instead of dismissal, then it should strictly comply with Article 11 of Exhibit H as well as its Appendix as stated above in this judgment. If the punishment for the offence is summary dismissal and the Plaintiff is found liable of it then the Defendant is bound to impose that punishment since no discretion is given to Management to commute it to termination of appointment. If on the other hand, considering the nature of service rendered by the Plaintiff, the Defendant would want to terminate his appointment instead of dismissal then it must comply strictly with the provisions in Exhibit H and J. In the instant case the Defendant did not comply with the provision in Article 11 of Exhibit H in terminating Plaintiff’s appointment and that amounts to a breach of the Senior Staff Conditions of Service.
Article 12.02 of Exhibit H goes on to provide that the Company may terminate the appointment of an employee by giving him two months’ notice or two months’ salary in lieu of notice where the employee is a group A1 employee. Where he is a group A2, A3 or A4 employee he is entitled to be given three months’ notice or three months’ salary in lieu of notice. In the instant case, the Plaintiff claims that he is a grade A4 employee so he is entitled to be given three months’ notice or three months’ salary in lieu of notice. However, in terminating his appointment, the Defendant did not comply with that provision. Rather, he was given one month’s salary in lieu of notice.
The Defendant states in Exhibit E, the letter terminating Plaintiff’s appointment at paragraph 8 that:
“You are hereby advised that your appointment with GRIDCO is terminated effective July 16, 2010. You will be paid one (1) month’s salary in lieu of the one (1) month’s notice period in accordance with the Senior Staff Conditions of Service.”
The said letter of termination was dated 14th July, 2010 and the termination was to take effect from
16th July, 2010 which clearly shows that the Plaintiff was not given the required notice. In view of that the Plaintiff was to be paid one month’s salary in lieu of notice. This was a clear breach of Article 12.02 of Exhibit H. When the Plaintiff stated that he is a grade A4 employee he was not challenged by the Plaintiff during cross-examination. This implies an admission that the Plaintiff was a grade A4 employee. See the case of Takoradi Flour Mills v. Samir Faris [2005-2006] SCGLR 882 at Holding 1 where the Supreme Court held as follows:
“The law is well settled…that where the evidence led by a party is not challenged by his opponent in cross-examination and the opponent does not tender evidence to the contrary the facts deposed to in that evidence are deemed to have been admitted by the opponent and must be accepted by the Trial Court.”
In the instant case the Plaintiff told the court that he was a grade A4 employee and that piece of evidence was not challenged by the Defendant during cross-examination. The court, therefore, accepts that evidence as being true. Since the Plaintiff was a grade A4 employee then it is clear from Article 12.02 of Exhibit H that he should have been given three months’ notice or three months’ salary in lieu of notice. The Defendant, however, submits that its decision to pay the Plaintiff one month’s salary in lieu of notice is premised on the fact that while the Plaintiff was eligible for summary dismissal, its decision to terminate the Plaintiff’s employment was within the purview of Section 17 of the Labour Act, 2004 (Act 651). The said section provides that, a contract of employment may be terminated at any time by either party giving to the other party in the case of a contract of three years or more, one month’s notice or one month’s pay in lieu of notice. It is clear from that provision that where a contract of employment is three or more years like that of the Plaintiff and the employer decides to terminate the employment of an employee it may give him either one month’s notice or one month’s pay in lieu of notice. However, in view of the provision in Section 19 of the Act, the provision in Section 17 is not applicable to the Plaintiff.
Section 19 states as follows:
“The provisions of sections 15, 16, 17 and 18 are not applicable where in a collective agreement there are express provisions with respect to the terms and conditions for termination of the contract of employment which is more beneficial to the worker.”
It is, therefore, clear from Section 19 of the Act that since Exhibit H and J are available to regulate the employment relationship between the Plaintiff and the Defendant it is wrong for the Defendant to base on the provisions in Act 651 to terminate Plaintiff’s appointment. It is rather bound by the provisions in those exhibits. So, on the authority of Kobi v. Ghana Manganese Co. Ltd. (Supra) Article 12.02 of Exhibit H was breached by the Defendant by paying the Plaintiff one month’s salary in lieu of notice.
The evidence also goes on to show that the Defendant Company constituted a Disciplinary Committee to investigate the allegations leveled against the Plaintiff. Here too the Plaintiff claims that there was supposed to be a representative of the Senior Staff Association on the Committee but there was no such member. This piece of evidence was also not challenged by the Defendant. So, on the authority of Takoradi Flour Mills v. Samir Faris (supra) the court accepts that evidence of the Plaintiff as being the truth. Exhibit J provides under Disciplinary Authority that:
“Any Committee instituted by Management to investigate a member of the SSA involved in an alleged malfeasance or an impropriety shall include a representative of the SSA.”
Since the Senior Staff Association was not represented on the Committee it follows that the Defendant breached that provision in Exhibit J in terminating Plaintiff’s appointment. It must be noted that the said representative should be appointed by the Senior Staff Association and not Management. No such representative was appointed by the Association to serve on the Committee and that amounts to a breach of the provision in Exhibit J. It is, therefore, my view that on the totality of the evidence before the court in terminating the Plaintiff’s appointment the Defendant did not strictly follow the provisions on disciplinary procedure provided in Exhibits H and J so on the authorities of Kobi v. Ghana Manganese Co. Ltd. (Supra) and Bani V Maersk (Supra) this court makes a finding that the termination of Plaintiff’s appointment by the Defendant is wrongful and I so hold.
Having found that the termination of Plaintiff’s appointment by the Defendant is wrongful, it follows that he has suffered damages so he ought to be awarded compensation as he would be entitled by law. The principle on this is stated in the case of Ridge v. Baldwin (1962) A.C. 40 at 65 as follows:
“The law regarding master and servant is not in doubt. There cannot be specific performance of a contract of service, and the master can terminate the contract with his servant at any time and for any reason or for none. But if he does so in a manner not warranted by the contract he must pay damages for breach of contract. So the question in a pure case of master and servant does not at all depend on whether the master has heard the servant in his own defence. It depends on whether the facts emerging at the trial prove breach of contract”
In the instant case it has already been established by this court that the termination of Plaintiff’s appointment by the Defendant is wrongful. So by the decision in Ridge v, Baldwin (supra) the Plaintiff is entitled to be paid compensation as damages. The question then is what quantum of compensation is appropriate to be paid to the Plaintiff? In deciding on the appropriate compensation to be paid to the Plaintiff, the court will consider compensation or damages paid in some decided cases.
In the case of GNTC & Anor. v. Baiden (1991) 1 GLR 567, the Supreme Court held that it would be unrealistic to pay the Plaintiff salary as though up to the date of the judgment of the High Court he was rendering services to the defendants. He was, therefore, awarded two years salary for wrongful dismissal. The Court also held that since the dismissal was a nullity and not merely wrongful, it was proper that the plaintiff be paid in addition all allowances he would have received during the period but excluding the salaries of servants of the corporation such as a driver or watchman, assigned to render him personal services. He was also entitled to gratuity and other retiring benefits as though he had retired from the service of the corporation at the end of the period.
There is also the case of Ankorful v. State Fishing Corporation (1991) 2 GLR 348 in which Osei Hwere J. A. (as he then was) held at holding 2 as follows:
“On the authorities where a servant had been wrongfully dismissed from his contract of employment, damages were to be measured by the amount of salary which the servant had been prevented from earning by reason of the wrongful dismissal. The Plaintiff was, therefore, entitled to:
i. all his salaries calculated from the date of his interdiction to the date of judgment, payment of three months’ salary in lieu of proper notice and
ii. all his end of service awards calculated from the date of his interdiction up to the date of judgment.
The calculation of his entitlement should be reckoned on the substantive post he held at his dismissal. He was also entitled to damages for prospective loss of promotion and loss of employment. He had been kept out of his employment for over ten years. If he had stayed in his job, he would have earned his promotion.”
Ampiah J (as he then was) also held in the case of Turkson v. Mankoadze Fisheries Ltd. (1991) 2 GLR 430 at holding 2 as follows:
“The parties having provided in Article 19 (4) of the Collective Agreement that when an employee was found to have been wrongfully dismissed he should be reinstated and his full pay restored together with any arrears, the Defendant would be ordered to do so accordingly. But should the Defendant be unable to reinstate the Plaintiff, it would be ordered to pay to the Plaintiff all his entitlements from the date of the wrongful dismissal to the date of judgment.”
Also in assessing damages for wrongful dismissal, the Court must have regard to all the circumstances of the case considered as fair and reasonable. It must consider the general unemployment problem in the country and all the circumstances of the case and also the fact that the award of damages in these matters has ranged between one year and two years. See Kobi v Ghana Manganese Co. Ltd. (supra)
So from the authorities referred to in this judgment, since the termination of Plaintiff’s appointment by the Defendant has been held to be wrongful he is entitled to be paid damages for wrongful termination of appointment. In awarding damages in the instant case the court will take into consideration the fact that since July 2010, the Plaintiff has been without job. The court will also take into consideration the fact that the Plaintiff had to suspend his Masters Degree Course due to the allegation leveled against him which led to the wrongful termination of his appointment. The court will also take into consideration the fact that the Plaintiff had to suffer permanent skin disease described in Exhibit V as psoriasis in the course of his employment with the Defendant Company. Finally, I will take into consideration damages awarded in similar cases and the fact that damages in these cases have ranged from 12 months to 24 months. Taking all these factors into consideration it is my view that Plaintiff ought to be paid 24 months’ gross salary as general damages for wrongful termination of his appointment. In addition to that he is entitled to be paid three months’ salary in lieu of notice instead of one month’s salary stated in Exhibit E. Also if there is any outstanding leave then it ought to be commuted to cash and paid to him. The Plaintiff is also entitled to be paid all benefits due him under the Senior Staff Conditions of Service. There is, however, no basis for this court to treat the wrongful termination of Plaintiff’s appointment by the Defendant as having declared the Plaintiff redundant. In view of that the Plaintiff is not entitled to relief (b) so it is hereby dismissed.
In conclusion I enter Judgment for the Plaintiff as follows:
a. It is hereby declared that the termination of Plaintiff’s appointment by the Defendant per a letter dated 14th July 2010 is wrongful.
b. It is hereby ordered that the Defendant pays to the Plaintiff 24 months’ gross salary as damages for wrongful termination of his appointment.
c. It is further ordered that the Defendant pays to the Plaintiff three months’ salary in lieu of notice in accordance with the Senior Staff Conditions of Service instead of the one month’s salary stated in Exhibit E.
d. It is further ordered that the Defendant makes cash payment of accrued leave for 2007 and 2008 to the Plaintiff.
e. It is ordered that the Defendant pays to the Plaintiff one month’s basic salary for transfer from Takoradi to Tema.
f. It is also ordered that the Defendant pays to the Plaintiff reasonable moving expenses to Plaintiff’s place of hire in accordance with the Senor Staff Conditions of Service.
g. Plaintiff costs are assessed as GH¢5,000.00