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On 28th
October, 2004, Plaintiffs who
were originally 871 former
employees of Defendant company
caused a writ of summons to be
issued against the Defendant
herein claiming as follows:- (a)
A declaration that they are each
entitled to end-of-service
benefits in accordance with the
various collective agreements
between the Defendant and the
Industrial & Commercial Workers
Union (ICU) and with the
conditions of service of senior
staff of Defendant. (b) An order
directed at the Defendant to pay
their end-of-service benefits
(c) Interest on (b) from the
date they became due to the date
of final payment. The Defendant
entered appearance on 9th
December, 2004 and subsequently
filed its statement of defence
on 19th April,2005 denying
Plaintiffs' claim. On 23rd
October, 2007, Plaintiffs tiled
a reply and application for
directions. The Defendant filed
one additional issue on 13th
November, 2007. On 14th
November, 2007 all the issues
set out in Plaintiff's
application for directions
except issue 5 together with the
additional issues filed by the
Defendant were set down by the
Court for trial. The following
issues were set down for trial:-
1. Whether or not by virtue of
the terms of the collective
bargaining agreements between
the Industrial & Commercial
Workers Union (ICU) acting for
and on behalf of the Plaintiffs,
and the Defendant, the payment
of redundancy/severance award is
different and separate head of
entitlement from the payment of
end-of-service benefits. 2.
Whether or not Plaintiffs whose
appointments were terminated
prior to the institution of this
action are caught by the
Limitation Decree 1972 (N ROD
54). 3. Whether or not
Plaintiffs are entitled to the
reliefs endorsed on their writ.
4. Any other issues properly
raised by the pleadings. The
additional issue filed by
Defendant was as follows:-
Whether or not the golden
handshake provision appearing in
the Collective Bargaining
Agreement was agreed upon in
lieu of an end of service
payment the Union had asked for.
With leave of the Court parties
amended their pleadings. By
their last amended statement of
claim dated 29th March 2010, the
Plaintiffs now numbering 1008
former employees of Defendant
company amended relief (b) to
read "an order directed at the
Defendant to pay their end of
service benefits based on the
cedi/dollar indexation." By
Plaintiffs' statement of claim,
the Plaintiffs are made up of
two categories which are all
former unionized and senior
staff employees of the Defendant
whose employment with Defendant
was terminated on grounds of
redundancy. They aver that by
Article 48 of their various
Labour Agreements dated 1993,
1996, 1999 and 2002 between
Defendant and the ICU and the
terms of the conditions of
service of the senior staff,
they are entitled to
end-of-service benefits
calculated in accordance with
the provisions of the said
Article and the conditions of
service of senior staff.
Meanwhile their authorized
representatives have written
four different letters to
Defendant demanding the payment
of their end-of-service benefits
but the Defendant had rejected
Plaintiffs' claim for
end-of-service benefits. The
Defendant denied the claim of
the Plaintiffs in a further
amended statement of defence
filed on 4th May, 2010. It avers
that sometime in 1996 the
unionized employees requested
the payment of a severance award
apart from
redundancy/end-of-service
benefits contained in Article 48
of the then Collective
Bargaining Agreement but the
Defendant resisted same. By way
of compromise it was agreed that
in case of a redundancy
employees would be given a
golden handshake, goodwill
payment and three months' salary
in lieu of notice in addition to
the redundancy/end of service
payment set out in Article 48.
To avoid the distortion that
redundancy payments would create
in Article 48 it was agreed that
all the benefits due to
employees declared redundant
would be transferred to Article
15. The Defendant goes on to
aver that by the said agreement
no further payment was to be
made under Article 48 in case of
redundancy and that the
re-appearance of ‘redundancy'
under Article 48 of the
Collective Bargaining Agreements
of 1999 and 2002 were clerical
errors, the pre 1996 template
having been copied in error. It
goes on to say that the
Conditions of Service Benefits
Schedule/Policy Manual which
governs the terms of employment
and non employment of senior
staff were similarly reviewed in
1996. Following the review,
redundancy/end of service
payments were also separated
from other end of service
payments and put under an
all-inclusive rubric of End of
Service Benefits (Redundancy).
The Defendant claims that, it
has paid the Plaintiffs their
end of service benefits based on
redundancy and has also given a
'golden handshake' to those
entitled thereto. The Plaintiffs
are, therefore, not entitled to
any of the reliefs they seek.
According to the Defendant,
following a redundancy exercise
in October, 2004 when Kaiser
Aluminium and Chemical
Corporation sold out its shares
in the Defendant company the
Plaintiffs affected by that
exercise voluntarily gave the
Defendant and its shareholders a
"release and indemnity"
acknowledging full payment of
all their entitlements. The
Defendant goes on to aver that,
the Plaintiffs whose
appointments were terminated
over six years prior to the
institution of this action are
estopped by conduct and by
Limitation Act 54 from
instituting this action. Also
those Plaintiffs who were
declared redundant over six
years prior to their joinder of
this action on 21st October,
2009 are estopped by the
Limitation Act 1972 (NRCD 54)
and more particularly by Section
4 thereof from making the claims
endorsed on the Writ. It also
avers that should any sum of
money becomes due it can only
attract interest and not
indexation. At the trial the
Plaintiffs case was presented by
Felix Yaw Sewornu and Edward
Barnes for the junior and senior
staff respectively while Ben
Agbai and Samuel Ofosu Asiedu
gave evidence for the Defendant.
Felix Sewornu told the Court iii
his evidence-in —chief that he
and the other Unionized workers
were declared redundant by the
Defendant variously from 1998 up
to 2004. According to him when
they were declared redundant by
the Defendant they were paid
theft severance award but were
not paid their end of service
benefits. Upon leaving the
Defendant's employment they
realized they were not paid
their end of service benefits so
they wrote to the Defendant on
the issue as a result of which
they were invited by the
Defendant for a meeting. In all
they had three separate meetings
with the Defendant. At the end
of the meetings the Defendant
wrote to them rejecting their
demands for the payment of their
end of service benefits.
According to him the various
Collective Bargaining Agreements
provide for the payment of
severance awards Linder
Redundancy and the payment of
end of service benefits under
End of Service Benefit. He,
therefore, denied that payment
of severance award is the same
as payment of end of service
benefits. According to him until
1996, the method for calculating
the payment of end of service
benefits due unionized employees
was in the various Labour
Agreements but that of
redundancy had not been in
place. Rather, what was paid as
redundancy or severance award
was negotiated at the time of
redundancy. He goes on to aver
that in 1996, during the
contract review, a negotiated
settlement was reached between
the Defendant and the union and
a payment schedule was included
in the Labour Agreement for
redundancy. It is, therefore,
not true that in the 1996
negotiations for a review of the
Labour Agreement, it was agreed
by the parties, by way of
compromise, that in case of a
redundancy, an affected employee
would be paid a golden handshake
apart from the redundancy award
set out in Article 48 of the
Labour Agreement. According to
the witness, in 1994, when some
of the unionized employees were
declared redundant, golden
handshake was not in the Labour
Agreement. In 1996, however,
following the contract review,
it was enshrined in the
agreement which called for
negotiation of the golden
handshake, as part of severance
award. He concluded his evidence
by repeating that severance
awards and end of service
benefits are not the same, and
that while severance award is
compensation paid for severing
the employment relationship on
grounds of redundancy, end of
service benefit is payment for
service that had already been
rendered, at the time of leaving
the service of the company for a
variety of reasons. In support
of their claim he tendered the
following documents in evidence:
Exhibit A - his letter of
redundancy Exhibit B - pay slip
in respect of severance payment
to Felix Sewornu Exhibit C - pay
slip in respect of severance
payment to F. K. Ghamor Exhibit
D - Plaintiffs' letter to
Defendants on the end of service
benefit Exhibit E - Defendant's
letter to Plaintiffs on the end
of service benefit Exhibit F -
1993 Collective Bargaining
Agreement Exhibit G - 1996
Collective Bargaining Agreement
Exhibit H - 1999 Collective
Bargaining Agreement Exhibit J -
2002 Collective Bargaining
Agreement Edward Barnes also
told the Court in his
evidence-in-chief that his
colleagues who were
non-unionized staff when they
were in the employment of the
Defendant company worked
variously for 20years to
30years. They left the company
variously in 1998, 2000, 2003
and 2004 due to redundancy. Like
the junior staff, they were paid
severance benefits when they
were declared redundant. In
addition to that they were paid
a golden handshake which does
not form part of end of service
benefit. It is rather paid to an
employee who is declared
redundant. They were not paid
their end of service benefits.
According to the witness end of
service benefit is a severance
for prolonged period of service
that is paid to an employee when
leaving the service of the
company and severance is a
compensation imposed by law on
the employer to be paid an
employee when he is declared
redundant. Severance award and
end of service benefit are,
therefore, not the same. The
witness goes on to say that, the
end of service benefits are
calculated based on the indexed
salaries of employees to the
dollar. They are as a result
claiming per the reliefs
endorsed on their writ. In
support of his evidence, the
witness tendered in evidence the
following documents: Exhibit K-
pay slip in respect of severance
payment to E. Barnes Exhibit L -
2002 non-unionized employees
benefits schedule Exhibit M .
1999 Supervisory benefits
schedule Exhibit N - 1997
Supervisory benefits schedule
Exhibit 0 - Conditions of
service for Ghanaian Management
Personnel dated April 2002
Exhibit P - Conditions of
service for Ghanaian Management
Personnel dated April 1999
Exhibit Q - Conditions of
service for Ghanaian Management
Personnel dated October 1997
Exhibit S - pay slip in respect
of severance payment to N M
Gyuani Exhibit T - Redundancy
notification in respect of Mr.
Kwarteng Exhibit U - Redundancy
notification in respect of Mr.
Edze Exhibit V - Redundancy
notification in respect of Mr.
Barnes Exhibit W - April 1998
Redundancy Agreement Exhibit X -
October 1999 Technical Employees
Redundancy Exhibit Y - October
2002 Redundancy Agreement
Exhibit Z - A list of ex-VALCO
non-unionized employees who are
Plaintiffs. As has been stated
elsewhere in this judgment the
case of the Defendant was
presented to Court by Ben Agbai
and Samuel Ofosu Asiedu.
According to Ben Agbai he was in
the employment of the Defendant
from 1986 to 2004 and he worked
as Labour Relations
Administrator. He was,
therefore, involved in the
negotiations of conditions of
service for workers. He told the
Court that in 1996, during
negotiations of conditions of
service, the union argued that
their industrial life at VALCO
has been characterized by
redundancies as a result of the
lake level so in addition to the
payment of the redundancy
benefit tied to the length of
service they should be paid
severance award to take care of
truncation of their employment
arising from redundancy.
However, Management argued that
it could not do that because it
would amount to double payment
in the event of redundancy that
is tied to length of service. A
provision was, therefore, put in
the agreement that would enable
parties to negotiate for a
golden handshake in the event of
redundancy. So for the first
time golden handshake provision
was inserted in the Labour
Agreement. According to the
witness in the course of
negotiations it also came up
that if they maintained
redundancy under end of service
benefit, Article 48, employees
were likely to pay taxes on end
of service benefits. So the then
Human Resource Director decided
that to avoid the payment of tax
he would like to move the
redundancy payment based on
length of service from Article
48 to Article 15. In view of
that a new schedule based on
length of service for the
payment of redundancy under
Article 15 was created. Other
benefits were also agreed and
inserted in the 1996 Labour
Agreement. He denied that the
Defendant intended to pay for
redundancy tie to length of
service under Article 15 and at
the same time pay end of service
benefits under Article 48. He
claims this would amount to
double payment. So redundancy
appearing under Article 15 and
at the same time Article 48 in
1999 and 2002 was just a
clerical error. The Plaintiffs
were, therefore, paid end of
service benefits when they were
declared redundant. In addition
to that they were paid golden
handshake and goodwill payments
which were negotiated in lieu of
the double payment. Samuel Ofosu
Asiedu also told the Court in
his evidence-in-chief that he
joined VALCO in 1980. He joined
VALCO as Secretary and rose
through the ranks to become an
Administrative Officer and as
part of his role he was
administering the conditions of
service for management
employees. He corroborated the
evidence of Ben Agbai that
around 1994 when there was going
to be a redundancy exercise
workers agitated for
compensation to be paid to them
for losing their jobs through
redundancy. Management,
therefore, agreed to pay golden
handshake or goodwill to the
affected staff even though it
was not part of the agreement as
at that time. According to the
witness VALCO pays one end of
service benefit to each and
every employee who is ending his
or her services with VALCO
through any mode and the modes
that one could leave the
services of VALCO could be
through compulsory retirement,
early retirement, ill health,
termination, resignation,
disability or redundancy. In
each of these cases VALCO pays
the worker who is ending his or
her services his or her terminal
benefit. So in his view the
Plaintiffs have been paid their
end of service benefits which is
used interchangeably with
severance award. the witness
went on to explain indexation as
a way management tries to
restore the value of employees'
salaries in relation to the
depreciation of the cedi/dollar
rate so that when there is a
short fall between the dollar
and the cedi that shortfall
would be applied on employees'
salary to bring it up so that it
would not lose value. The
indexation started in April
1996. initially it was 80% and
later changed to 100%. It,
however, ended in October, 2004
when VALCO was sold to the
Government of Ghana. Witness
tendered a lot of documents in
evidence in support of
Defendant's case. From the
pleadings before the Court, the
main issue for determination
will be grouped as follows: a.
Whether or not per the terms of
their contract of employment,
the Plaintiffs were entitled to
be paid severance awards for
redundancy as well as end of
service benefits when they were
at various times declared
redundant. b. Whether or not the
golden handshake provision
appearing in the Collective
Bargaining Agreement was agreed
upon in lieu of end of service
payment the union had asked for.
c. Whether or not Plaintiffs
whose appointments were
terminated over six years prior
to the institution of this
action are estopped by the
Limitation Act (NRCD 54) from
making any claim. d. Whether or
not Plaintiffs who were declared
redundant six years prior to
their joinder of the action are
estopped by the Limitation Act
from making the claims endorsed
on the Writ of Summons. e.
Whether or not, should the
Defendant be found liable on
Plaintiff's claim for end of
service benefits, Plaintiff's
entitlement, should be indexed
to the dollar. The issues will
be taken seriatim. The first one
is whether or not per the terms
of their contract of employment,
the Plaintiffs were entitled to
be paid severance awards for
redundancy as well as end of
service benefits when they were
at various times declared
redundant. When the Plaintiffs
were in the employment of the
Defendant company their
contracts of employment were
governed by various labour
agreements in respect of the
unionized employees and
conditions of service for the
non-unionized employees. I will,
therefore, examine the
provisions on end of service
benefits and severance awards of
the various labour agreements
for the unionized staff and the
conditions of service for the
non-unionized staff to determine
what the Plaintiffs were
entitled to be paid on
redundancy. For the unionized
employees the Labour Agreements
tendered in evidence by
Plaintiffs were Exhibits F, G,
H, and J for 1993, 1996, 1999
and 2002 respectively. For the
non- unionized employees,
documents on benefits schedule
tendered in evidence by the
Plaintiffs were Exhibit L
(2002), Exhibit M (1999) and
Exhibit N (1997). They also
tendered in evidence documents
on conditions of service for the
non-unionized employees as
Exhibit 0 (2002), Exhibit P
(1999) and Exhibit Q (1997). The
Defendant per David Ofosu Asiedu
also tendered in evidence
conditions of service for non-
unionized employees for 1994 as
Exhibit 3, 1994 Supervisory
Revision Benefits as Exhibit 4,
Admin. Procedure on End of
Service Benefits for 1993 as
Exhibit 5 and Benefits Policies
for non-Unionized employees on
End of Service Benefits (1996)
as Exhibit 6. Articles 15 and 48
of Exhibits F, G, H and J deal
with Redundancy and End of
Service Benefits respectively.
Article 15(e) of Exhibit F
provides as follows:- Employees
to be declared Redundant will be
given Two Months' Notice or paid
in lieu" This implies that
workers declared redundant based
on that exhibit were entitled to
he given two months' notice or
two months' pay in lieu of
notice. The said Article had no
benefit schedule at that time.
Article 48 of the same exhibit
which deals with End of Service
Benefits gives reasons for
leaving the Service of the
Company as follows:- a. Old age
retirement made up of compulsory
retirement which is 60 years for
both men and women and voluntary
retirement which is 50 years for
men and 45 years for women. b.
Ill — Health. c. Redundancy. d.
Death. e. Early Retirement - a
minimum 15 years service with
men attaining 45 years and women
attaining 40 years. f.
Resignation or termination. It
goes on to provide the method
for calculating the end of
service benefits due to an
employee exiting as a result of
each of the reasons. From the
provisions in Articles 15 and 48
of the 1993 Labour Agreement an
employee who was declared
redundant under that agreement
was entitled to be given two
months' notice or two months'
pay in lieu of notice and end of
service benefits per the payment
schedule provided under Article
48(a). Such an employee was not
entitled to be paid a separate
severance award for redundancy
and at the same time a separate
end of service benefit for
leaving the company. He was
entitled to only one payment and
nothing more. So, all unionized
employees who left the service
of the company due to Redundancy
before 1996 were paid their
severance award under Article 48
of the 1993 Labour Agreement. In
addition they were given two
months' notice or two months'
pay in lieu of notice under
Article 15. So by the terms of
that Exhibit, they were not
entitled to be paid a separate
severance award for being
declared redundant and another
end of service benefit for
exiting. With respect to Exhibit
G; that is the Labour Agreement
for 1996, a payment schedule is
provided under Article 15 which
deals with redundancy. However,
under Article 48 of the same
exhibit, redundancy is not
classified as one of the reasons
for leaving the service of the
company as shown in Exhibit F.
So by the terms of Exhibit G an
employee who was declared
redundant under that exhibit was
entitled to be paid severance
award under Article 15 but was
not entitled to be paid a
separate end of service benefit
under Article 48. So like an
employee who was declared
redundant under Exhibit F, an
employee who was declared
redundant under Exhibit G was
entitled to only one payment
under Article 15. In addition to
that he was entitled to be given
three months' notice or three
months' pay in lieu of notice
and also a golden handshake
which was to be negotiated
between management and union.
However, an employee who exited
under Article 48 of the same
exhibit for any of the reasons
provided under that Article was
not entitled to be paid the
golden handshake. All unionized
employees who left the service
of the company before 1999 due
to redundancy were, therefore,
paid their severance award under
Article 15. There was no
provision for payment of a
separate end of service benefit
under Article 48 for such
employees. Exhibits H and J,
however, provide a different
situation. These are Labour
Agreements for years 1999 and
2002 respectively. In those
exhibits Article 15 which deals
with redundancy provides payment
schedule for employees who were
declared redundant under those
exhibits. In addition to that
they were entitled to be given
three months' notice or three
months pay in lieu of notice as
well as payment of golden
handshake which was to be
negotiated between management
and union. Article 48 of the two
exhibits which deals with end of
service benefit classifies
redundancy as one of the reasons
for leaving the service of the
company. The other reasons
provided under that article
include retirement which is made
up of old age and voluntary,
ill-health, death, early
retirement and resignation or
termination. Payment schedules
have been provided under that
article for the reasons given
for leaving the service of the
company which include
redundancy. Specifically it
states that entitlement of
employees under the headings
provided which include
redundancy would he calculated
according to the schedule
provided. So by the terms of the
provisions in Articles 15 and 48
of exhibits H and J a person
declared redundant under those
exhibits was entitled to be paid
severance award under Article 15
and at the same time end of
service benefit under Article 48
Exhibits L. M and N are the
non-unionized employees'
benefits schedules for years
2002, 1999 and 1997
respectively. Exhibit L provides
for end of service benefit under
J which has types of benefit to
include retirement made up of
compulsory and voluntary, early
retirement and resignation or
termination with each of them
having its own payment schedule.
Redundancy which is also
classified as end of service
benefit is,however, treated
separately under K. It is stated
under it that in the event of a
non- unionized employee being
declared redundant his severance
pay shall be calculated per the
schedule provided for compulsory
and voluntary retirement. In the
case of Exhibits M and N, end of
service benefit is treated under
rubric I and Redundancy treated
separately under rubric J. The
payment schedules for end of
service benefit and redundancy
are, however, the same as the
provision in Exhibit L. By the
terms of the three exhibits
there was a separate payment
schedule for non-unionized
employees who exited as a result
of redundancy and a separate one
for those who exited for other
reasons other than redundancy.
So based on those exhibits
non-unionized employees who were
declared redundant were not
entitled to be paid severance
award for redundancy and at the
same time paid end of service
benefit for leaving the company.
Exhibits 0, P and Q, deal with
conditions of service for the
Ghanaian Management Personnel
who are also non-unionized
employees. The said exhibits
have End of Service Benefits in
Part Ill of each of them. They
go on to state that the End of
Service Benefits, cover the
following i. Retirement: 60
Years - Compulsory (Men & Women)
50 Years - Voluntary (Men) 45
Years - Voluntary (Women) 45
Years - Early Retirement
(Company Approved) Or 15 Years'
Service ii. Disability iii.
Termination iv. Death V.
Resignation vi. Redundancy: This
is classified as "Severance Pay"
whose factors for calculation
purposes shall be the same as
for Compulsory Retirement. The
Plaintiffs claim that because
redundancy is classified as one
of the types of end of service
benefits it follows that a
non-unionized employee who was
declared redundant under any of
those exhibits was entitled to
be paid severance award for
redundancy and at the same time
paid end of service benefit for
leaving the company. However,
the Defendant per its witnesses
claim that whoever was declared
redundant was entitled to be
paid only severance award. III
to that he was entitled to be
paid golden handshake. It goes
on to claim that, whoever exited
for any other reason other than
redundancy was entitled to be
paid only end of service benefit
as per the schedule of benefit
provided for the reason as a
result of which he was exiting.
Such an employee was not
entitled to be paid a golden
handshake. The Defendant is,
therefore, saying that for
whatever reason that an employee
exited the company, he was
entitled to be paid only one
type of benefit. That is where
an employee was declared
redundant he was only entitled
to be paid severance award which
was used interchangeably with
end of service benefit. In
addition to that he was entitled
to be paid a golden handshake.
He was not entitled to be paid a
separate end of service benefit
in addition to the severance
award. In support of Defendant's
assertion that non-unionized
employees who went on redundancy
were entitled to only one type
of payment, the Defendant per
David Ofosu Asiedu tendered in
evidence the following
documents, Conditions of service
for Ghanaian Management
Personnel (1994), 1994
Supervisory Benefits Revision,
Administrative Procedure (1993)
and Benefits Policies for
Supervisor Personnel as Exhibits
3, 4, 5, and 6 respectively.
Exhibit 3 provides at Part Ill
(A) that End of Service Benefits
cover Compulsory Retirement,
Voluntary Retirement,
Disability, Termination Death,
Redundancy and Resignation.
Rubric H of Exhibit 4 goes on to
provide the benefits schedule
for each of the types of
benefits classified under Part
Ill (A) of Exhibit 3. So by the
terms of Exhibits 3 and 4,
non-unionized employees declared
redundant were entitled to be
paid only one end of service
benefit. Exhibit 5 which was
revised in 1993 and Exhibit 6,
revised in June 1996 go on to
provide the types of benefits as
compulsory Retirement, Voluntary
Retirement, Disability,
Redundancy, Death, Early
Retirement and
Resignation/Termination. Each of
the two exhibits provide further
under sub-heading of Eligibility
that:- "The following criteria
are applicable for determining
benefit eligibility of a retired
or disabled or terminated or
deceased Employee. In no event
shall any Employee or
beneficiary of an Employee be
eligible to receive Benefits
under more than one of the
following categories for the
same period of Continuous
service: (a) Old Age Benefits
Minimum of ten (10) years of
Continuous Service and
attainment of Normal Retirement
Date. An Employee may retire at
Normal Retirement Date. With
Company approval, an Employee
may be retired on an Early
Retirement Date. (b) Disability
Benefits Minimum of six (6)
months of Continuous Service and
disability that by Medical
Doctor examination is determined
to be totally and permanently
disabling and termination of
employment on his Disability
Retirement Date. (C) Termination
Benefits 1. Redundancy - Minimum
of one (1) year of Continuous
Service and Termination from
last date of hire and
termination due to Redundancy.
2. Resignation/Termination -
Minimum of five (5) years of
Continuous Service and
termination due to
Resignation/Termination. (d)
Death Benefits Death of an
Employee from any cause that
occurs after completion of six
months' Continuous Service and
before any other Benefit becomes
payable." So from Exhibits 5 and
6 an employee who was declared
redundant under the 1993 and
1996 non-unionized Conditions of
Service could not be paid
severance award and at the same
time be paid end of service
benefit. Such an employee was
entitled to only one type of
benefit generally classified
under End of Service Benefits.
This shows that by the terms of
all the exhibits tendered in
evidence by the parties on the
payment of severance award and
end of service benefits for
reasons other than redundancy
except Exhibits H and J
employees who exited from the
company were entitled to only
one type of benefit. That is
either severance award for those
who exited as a result of
redundancy or end of service
benefit for those who exited for
reasons other than redundancy.
If that should be the case then
the question is what happened in
respect of an employee who was
declared redundant under
Exhibits H and J in view of the
facts that those two exhibits
provide for payment for
redundancy and at the same time
end of service benefits? As has
been stated elsewhere in this
judgment by the contents of
Articles 15 and 48 in Exhibits H
and J a person declared
redundant under those exhibits
was entitled to be paid
severance award under Article 15
and at the same time be paid end
of service benefit under Article
48. The Defendant, however,
claims that, that was a clerical
error so the Court should accept
the assertion that an employee
declared redundant under those
exhibits was not entitled to be
paid severance award under
Article 15 and at the same time
be paid end of service benefit
under Article 48. This is
because that would amount to
double payment. The Plaintiffs
have, however, denied that
assertion of the Defendant. To
them considering the ordinary
meaning of the terms of the two
articles, those declared
redundant under those exhibits
together with other Plaintiffs
were supposed to be paid
severance award and at the same
time be paid end of service
benefits. The Court should,
therefore. declare that having
been paid their severance
awards, they are entitled to be
paid their end of service
benefits. In interpreting
contents of documents, the Court
is enjoined by law to read the
documents holistically in order
to consider the intention of the
author of the document. See the
case of Republic v High Court,
Accra; Ex Parte Yalley
[2007-2008] 1 SCGLR 512 at Page
519 in which Georgina Wood CJ
held as follows: "It is
well-established, that as a
general rule, the correct
approach to construing statutes
is to move away from the
literalist, dictionary,
mechanical or grammatical to the
purposive mode. Admittedly,
there may be instances where the
ordinary or dictionary or
grammatical meaning of words or
phrases yield just results and
there remains little one can do
about that. Even so, it can be
said that the purposive rule is
embedded in the grammatical
rule. In other words, the
ordinary meaning projects the
purpose of the statutory
provision and so readily
provides the correct
purpose-oriented solution.
Indeed, the purposive rule of
construction is meant to assist
unearth or discover the real
meaning of the statutory
provision, where an application
of the ordinary or grammatical
meaning, produces or yields some
ambiguous, absurd, irrational,
unworkable or unjust result or
the like." Georgina Wood CJ goes
on to differentiate between the
objective-based and subjective-
based approaches to
interpretation in the same case
at page 20 by making reference
to Dr Date-Bah JSC in the case
of Asare v Attorney General
[2003-2004] 2 SCGLR 823 at Page
834 as follows: "The subjective
purpose of a constitution or
statute is the actual intent
that the authors of it, namely,
the framers of the constitution,
or the legislature,
respectively, had at the time of
the making the constitution or
the statute. On the other hand,
the objective purpose is not
what the author actually
intended but rather what a
hypothetical reasonable author
would have intended, given the
context of the underlying legal
system, history and value, etc
of the society for which he is
making law" The Supreme Court
goes on to hold that the
purposive arid literalist
approach, is synonymous with the
subjective-purpose theory and
where it does not lead to any
ambiguities or injustice, then
it is not proper to apply the
purposive and strained" meaning
or objective purpose" rule. Thus
in the construction of statutes,
if the subjective purpose would
bring out the legislative
intent, leaving no ambiguities,
absurdities or injustices that
the purely literalist approach
would result in, the objective
purpose, which does not
constitute the actual intent of
the authors but rather the
intentions of a hypothetical
reasonable man, should only be
deployed if upon application of
the subjective-purpose approach,
the statute is still clouded in
absurdity, irrationality mystery
or will improve unworkable. The
objective purpose is a useful
guide, where with the best of
efforts, namely, reading the
statute as a whole and
conscientiously applying all the
known guides to interpretation,
the meaning of the statute still
remains unclear, or has elements
or even traces of the absurd,
the irrational, the unjust or
the like. Even though the
documents this Court is being
called upon to interpret, unlike
the document in the authority
referred to above, are not
statutes the approach to
interpretation discussed in that
authority is applicable to the
current case. In applying the
subjective purpose approach to
interpretation to the current
case, it is observed that all
the documents on payment of end
of service benefits and
severance awards tendered in
evidence by both the Plaintiffs
and the Defendant show that the
intention of the Defendant was
not to pay severance award for
redundant staff and at the same
time pay them end of service
benefit for leaving the service
of the company. As shown in
Exhibits 5 and 6 such employees
were entitled to the payment of
only one benefit. It was not the
intention of the Defendant that
employees declared redundant
under Exhibits H and J would be
paid severance award and at the
same time be paid end of service
benefit whilst all employees
declared redundant under all the
other exhibits would only be
paid severance award without end
of service benefit. That would
he discriminatory. In the case
of Baiden v Graphic Corporation
[2005-2006] SCGLR 154 at 184 Dr
Seth Twum reading majority
decision held as follows: "The
controversy whether end of
service award is the same as end
of service benefit is slicer
sophistry. I hold that they are
one and the same thing." So, by
majority decision in that case
end of service award is the same
as end of service benefit. This
implies that if one is declared
redundant and he is paid
severance award that is the same
as end of service benefit and
the two may be used
interchangeably. In the current
case the combine effect of all
the Labour Agreements for the
unionized employees and the
Conditions of Service for
non-unionized employees tendered
in evidence is that the
redundancy award and the end of
service benefit are the same so,
all the Plaintiffs who were
declared redundant at various
times under various Labour
Agreements and various
Conditions of Service were
entitled to be paid only one
type of benefit. So having been
paid their severance award on
being declared redundant they
are not entitled to be paid
another end of service benefit
and I so hold. The next issue
for determination is whether or
not the golden handshake
provision appearing in the
Labour Agreements was agreed
upon in lieu of end of service
payment the union had asked for.
According to the Defendant prior
to 1994 there was only one
payment classified as End of
Service Benefit. It goes on to
aver that in that year there was
a redundancy exercise and the
Union for the first time raised
the issue of compensation for
loss of job. The company on that
basis made a golden handshake
and goodwill payment to the
redundant employees. In 1996
during the re-negotiation of the
Labour Agreement, compensation
for loss of job came up again.
In the process it was agreed
under Article 15 that in
addition to the benefits
schedule provided for employees
who were declared redundant,
Management and Union would
negotiate a golden handshake.
Based on the agreement reached
on the payment of the golden
handshake with the unionized
employees, the various
Conditions of Service for the
non-unionized employees provided
for the payment of golden
handshake for redundant
non-unionized employees. So to
the Defendant the golden
handshake was agreed upon in
lieu of the payment of end of
service benefit.The Plaintiffs,
however, disagreed with that
assertion of the Defendant. They
claim that, in 1994, when some
of the unionized employees were
declared redundant, golden
handshake was not in the Labour
Agreement. In 1996, however,
following the contract review,
it was enshrined in the
agreement which called for
negotiation of the golden
handshake, as part of severance
award. The golden handshake was,
therefore, not given in lieu of
the end of service benefit but
as part of severance award. From
the evidence before the Court
employees who left the company
as a result of reasons other
than redundancy were not paid
golden handshake. It was paid to
only employees who were declared
redundant. It follows that the
golden handshake provision
appearing in the Labour
Agreements was agreed upon in
lieu of end of service payment
the union had asked for and I so
hold. I will take the next two
issues together. These are
whether or not Plaintiffs whose
appointments were terminated
over six years prior to the
institution of this action and
those who were declared
redundant six years prior to
their joinder of the action are
estopped by the Limitation Act
1972 (NRCD 54) from making any
claim. According to the
Defendant by Section 4 of the
Limitation Act, 1972 (NRCD 54)
Plaintiffs who were either
declared redundant over six
years prior to the institution
of the current action or those
who were declared redundant six
years prior to their joinder of
the action are estopped from
making any claim. The
consideration of this issue
becomes relevant when it is
established that the Plaintiffs
are entitled to be paid end of
service benefit. Now that it has
been held by this Court that the
Plaintiffs are not entitled to
be paid further end of service
benefit the issue of limitation
becomes irrelevant. There is,
therefore, no need to waste the
Court's time on it. There is
also the issue of indexation.
According to the Plaintiffs if
the Defendant is found liable on
their claim for end of service
benefits, their entitlement
should be indexed to the dollar.
Like the issue of limitation,
the issue of indexation becomes
relevant where the Plaintiffs
succeed on their claim for end
of service benefit. Here too now
that it has been established
that they are not entitled to be
paid end of service benefits the
issue of indexation becomes
irrelevant. So having
established that Plaintiffs are
not entitled to be paid further
end of service benefits it
follows that they are not
entitled to their claim. Their
action is as a result dismissed
and judgment entered for the
Defendant. No order as to costs.
Mr. Akoto Ampaw for the
Plaintiffs Mr. George Thompson
for the Defendant.
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