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JUDGMENT: On
3rd September, 2008, the
Plaintiff herein issued out a
writ of summons against the
Defendant herein for the
following reliefs:- (a) A
declaration that purported
determination of the industrial
dispute between Appiah Adjei
Boateng and 272 others in the
Decision of the Defendant dated
20th August, 2008 is wrongful
and that the Plaintiff is not
bound by the said Decision. (b)
A declaration that the order of
the Defendant contained in its
letter dated 20th August, 2008
that the Plaintiff comply with
the Decision dated 20th August,
2008 within fourteen days is
unlawful. (c) An order to set
aside the Decision of the
Defendant dated 20th August,
2008. The Defendant entered
appearance on 11th September,
2008 and went on to file its
defence on 10th October, 2008
denying the reliefs endorsed on
Plaintiff's writ of summons. On
21th October, 2008 the
co-Defendants and 272 others
applied to join the suit as
co-Defendants which the
Plaintiff opposed. On 17th
November, 2008 the application
was granted so Appiah-Adjei
Boateng and Thomas Obeng were
joined to the suit as
co-Defendants on their behalf
and on behalf of 272 others. The
Plaintiff as a result filed
amended writ of summons and
statement of claim on 5th
February, 2009 and the
co-Defendants entered appearance
on 13th February, 2009. They
went on to file their statement
of defence and counterclaim on
7th April, 2009 in which they
denied the Plaintiff's claim.
However, on 30th April, 2010 the
co-Defendants filed an amended
counterclaim as follows:- a. An
order for the enforcement of the
National Labour Commission
ruling in the matter between
Messrs Appiah-Adjei Boateng and
others and Anglogold Ashanti
Limited dated 20th August, 2008.
b. Costs. c. Interest at the
commercial rate on the amounts
found to be due and owing from
the Plaintiff to the
co-Defendants from the date the
amounts became due to date of
final payment. On 15th May,
2009, the Plaintiff filed an
application for directions in
which it raised the following
issues:- a. Whether the
Defendant determined the
industrial dispute between
Anglogold Ashanti and the
petitioners lawfully. b. Whether
the Executive Secretary's order
to Plaintiff to comply with the
Defendant's decision within
fourteen days though not being
part of the decision itself
renders the decision unlawful.
c. Any other issue or issues
arising from the pleadings.
Later on 31st July, 2009, the
Plaintiff filed separate replies
to the Defendant and the co-
Defendants' statements of
defence and a defence to the
co-Defendants' counterclaim. The
Plaintiff went on to file an
application for further
directions on the same day in
which it raised the following
issues:- a. Whether or not the
Defendant's letter dated 20th
August, 2008 is lawful. b.
Whether or not the Defendant's
decision dated 20th August, 2008
is lawful. No additional issues
were filed by the Defendant and
the co-Defendants so all the
issues raised in the application
for directions arid the
application for further
directions were set down as
issues to be tried by this Court
on 15th October, 2009. At the
trial Plaintiffs case was
presented to Court by Hussein
Abugri, the Head of Human
Resource Department of the
Plaintiff and Pascal Kabonaba,
Vice President Human Resources
of the Plaintiff. The
Defendant's case was presented
by Opanin Patrick Obeng Ofosu
and the case of the
co-Defendants presented by three
persons made up of Thomas Obeng,
Kwaku Mensah Gyakari, Obuasi
branch union Chairman of Ghana
Mines Workers' Union and Eric
Kwabena Gyima, Deputy General
Secretary the Ghana Mines
Workers' Union of TUC.The
Plaintiff's case was that on
14th December, 2006,
Appiah-Adjei Boateng and 272
others, claiming to be the
employees of the Plaintiff
petitioned the Defendant for the
payment of their gratuities.
They complained that the
Plaintiff transferred them to
Mining and Building Contractors
Ltd without their consent and
were, therefore, entitled to
gratuity from the Plaintiff.
Meanwhile, the Plaintiff
maintained at all material times
that the petitioners were at all
material times the employees of
Mining and Building Contractors
Ltd, not the Plaintiff. By its
letter dated 15th February,
2007, the Defendant invited the
Plaintiff's comments on the
petition, and followed up with a
letter dated 10th July, 2007
inviting the Plaintiff to a
meeting to "get a clear
understanding" of the suit and
the petition. The Plaintiff
complied by writing various
letters to the Defendant
including the letter dated 11th
April. 2007 and 30th May, 2008.
On 22nd October, 2007, the
Defendant invited the Plaintiff
to a meeting scheduled for 25th
October, 2007 to hear the case.
On that day a panel of two
officers of the Defendant
directed the parties to present
their documentary evidence on
the matter on or before 19th
November, 2007. Thereafter, the
next meeting date would be
communicated to the parties. On
14th December, 2007, the
Defendant wrote to remind the
Plaintiff of its order for the
production of documents and
warned that it would rule on the
matter and the decision would be
binding on the Plaintiff. The
parties eventually complied with
the order to produce documents.
On 24th January, 2008, the
Defendant invited the Managing
Director of the Mining and
Building Contractors Ltd to a
"meeting/hearing" of the matter
and on 30th March. 2008 a
representative of the company
testified before the panel. On
17th April, 2008 the panel
notified the parties that it
proposed to determine the case
on 6th May, 2008 and invited the
Plaintiff to submit any relevant
information that would "help" it
to decide the matter. The
Plaintiff submitted a
comprehensive letter dated 30th
May 2008 explaining its position
and forwarded to the Defendant
under cover of its letter dated
23rd June, 2008 the requested
information. The Plaintiff avers
that under cover of its letter
dated 20th August, 2008, the
Defendant forwarded to the
Plaintiff a Decision dated 20th
August, 2008 in which the panel
found the Plaintiff liable for
the claims of the petitioners.
In the said covering letter, the
Defendant warned the Plaintiff
to comply with the decision
within fourteen days. The
Plaintiff contends that it was
never offered the opportunity to
appoint an arbitrator neither
did it ever appoint either panel
member to mediate or arbitrate
the matter. The Plaintiff avers
further that the Defendant
appointed the said panel without
recourse to the Plaintiff; the
panel never explained that it
was engaged in the arbitration
of the matter. According to the
Plaintiff the nomination of the
panel and the conduct of the
purported proceeding were in
violation of the Labour Act 2003
(Act 651) section 154 to 157 and
the Arbitration Act 1961 (Act
38) section 33 (Domestic
arbitration) and that the
Plaintiff is not bound by the
said Decision. It goes on to
contend that it had responded to
the petition and participated
sufficiently in the proceeding
before the panel and that the
panel could not have given a
binding decision under the
National Labour Commission
Regulations 2006 (LI 1822)
section 33(2) or any other law.
The panel could only have
conducted those proceedings
under section 33(1) of the
instrument. However, this being
a serious matter it expected the
Defendant to go through
mediation or arbitration. It
goes on to state that at all
material times the petitioners
have been employees of the
Mining and Building Contractors
Ltd but they were being
administratively handled by the
Plaintiff on behalf of the
Mining and Building Contractors
Ltd. It is, therefore, entitled
to its reliefs endorsed on the
writ of summons. The Defendant's
case was that on receipt of the
petition from the petitioners
and response from the Plaintiff,
it invited the parties for a
meeting with the aim of getting
to appreciate the nature of the
dispute on 25thJuly, 2007. On
appreciating the positions of
the parties in respect of the
dispute, the Commission informed
the parties that it would settle
the dispute and that the panel
to hear and determine the
dispute would be communicated to
them. The Defendant then set up
a panel comprising Opanin
Obeng¬Fosu and Mr. Paul
Osei-Mensah, both Commissioners,
to hear the dispute and they in
turn directed the parties to
submit to them all relevant
documents in their possession
that would assist the panel to
hear and determine the dispute.
According to the Defendant the
panel commenced the hearing on
27th August, 2007 and continued
on 27th September, 2007, 22nd
October, 2007, 22nd January,
2008, 15th February, 2008 and
3rd March, 2008. It avers that
at the instance of the
Plaintiff, the Defendant invited
the Managing Director of the
Mining and Building Contractors
(MBC) Ltd to give evidence on
the matter. The Defendant
contends that it did not
determine the dispute under
Regulation 32 of LI 1822. It,
therefore, denies that the
nomination of the panel and the
conduct of the proceeding were
in violation of sections 154 to
157 of Act 651 in that the
parties did not attempt to
settle the dispute through
negotiations and that mediation
under section 154 is triggered
only when the parties using the
procedures established in the
collective agreement fail to
settle the dispute by
negotiation within seven days
after the occurrence of the
dispute and either party or both
parties by agreement refer the
dispute to the Commission. It
further states that the panel
did not determine the dispute as
arbitrators under section 157 of
Act 651 in that the parties did
not go through any mediation
process as required before any
determination by arbitration
could commence and the panel as
rightly pointed out by the
Plaintiff settled the dispute
under Regulation 33(1) of LI
1822. The Defendant goes on to
aver that the Plaintiff never
raised objection to either the
composition of the panel or the
conduct of the proceedings. It
claims it did not breach any
provision of Act 651 or the
National Labour Regulations
2006, LI 1822 to vitiate its
decision. Its decision dated
20th August, 2008 is, therefore,
lawful and unimpeachable and
that the order to the Plaintiff
to comply with the decision
within fourteen days did not
form part of the panel's
decision dated 20th August,
2008. The Defendant contends
that the Plaintiff's action is
misconceived and, therefore, it
is not entitled to the reliefs
endorsed on the writ of summons
and the same be dismissed. The
co-Defendants also deny the
claim of, the Plaintiff and
state that the Plaintiff by its
Lawyer and representatives
participated fully in the
Defendant's hearing of the
matter. They aver that all
parties including the
Plaintiff's representatives gave
oral evidence at the hearing and
produced documents in support of
their case extensively. The
Plaintiff as part of its
participation in the hearing of
the matter caused the Defendant
to invite Mining and Building
Contractors Ltd to attend the
hearing. The MBC's
representative provided answers
to questions posed by
Plaintiff's lawyer. They contend
that the Defendant is entitled
at law to adopt the process it
adopted so the Plaintiff is not
entitled to its claim at all.
From the pleadings and the
evidence before the Court, the
issues for determination will be
grouped as follows:- a. Whether
or not the Defendant lawfully
determined the industrial
dispute between the Plaintiff
and the petitioners. b. Whether
or not the Executive Secretary's
letter to the Plaintiff to
comply with the Defendant's
decision within fourteen days
dated 20th August, 2008 is
lawful. c. Whether or not the
Defendant's decision dated 20th
August, 2008 is lawful. The
issues will be taken one after
the other. The first issue is
whether or not the Defendant
lawfully determined the
industrial dispute between the
Plaintiff and the petitioners.
In considering the first issue
it will be appropriate to
consider how the Defendant
settles or facilitate industrial
disputes under the law.
Industrial dispute is defined by
Section 175 of the Labour Act,
2003 (Act 651) as follows:-
“….any dispute between an
employer and one or more workers
or between workers and workers
which relates to the terms and
conditions of employment, the
physical condition in which
workers are required to work,
the employment and
non-employment or termination or
suspension of employment of one
or more workers and the social
and economic interests, of the
workers but does not include any
matter concerning the
interpretation of this Act, a
collective agreement or contract
of employment or any matter
which by agreement between the
parties to a collective
agreement or contract of
employment does not give cause
for industrial action or
lockout," The dispute between
the Plaintiff and the
petitioners which has brought
about the current suit between
the Plaintiff and the Defendant
and the co-Defendants concern
terms and conditions of
employment between the Plaintiff
and the co-Defendants, there is,
therefore, no doubt that it is
an industrial dispute. So by
Section 138 of the Labour Act
the Defendant is entitled to
settle it between the parties in
accordance with law. The Act
goes on to provide at Sections
153 to 157 that industrial
disputes could be settled by
negotiation, mediation and
arbitration. By Section 153, the
parties to an industrial dispute
are under an obligation to
negotiate in good faith with a
view to reaching a settlement of
the dispute in accordance with
the dispute settlement
procedures established in the
collective agreement or contract
of employment. So with regard to
negotiation the law requires
that the parties are to base on
settlement procedures provided
by their collective agreements
or contracts of employment to
resolve the dispute between
them. Section 154 of the Act
deals with mediation and that
becomes necessary where parties
to a dispute have failed to
settle it by negotiation within
seven days after the occurrence
of the dispute. In that case
either party or both parties by
agreement may refer the dispute
to the Commission and seek its
assistance for the appointment
of a mediator to settle the
matter. Where the Commission is
satisfied that the parties have
not exhausted the procedures
established in the collective
agreement or have not agreed to
waive those procedures, the
Commission shall order the
parties to comply with those
procedures within such time as
the Commission may determine. On
the other hand where the
Commission is satisfied that the
parties have exhausted the
procedures established in the
collective agreement and the
parties have failed to settle
the dispute and none of them has
sought the assistance of the
Commission to appoint a
mediator, the Commission shall
request the parties to settle
the dispute within three days of
the Commission becoming aware of
the non-resolution of the
dispute. The Act goes on to show
that where the parties agree to
mediate and at the end of the
mediation proceedings there is
settlement of the dispute, the
agreement between the parties as
regards the terms of settlement
shall be recorded in writing and
signed by the mediator and the
parties to the dispute which
shall be binding on all the
parties unless the agreement
states otherwise. At the end of
the mediation proceedings, if no
agreement is reached, the
mediator shall immediately
declare the dispute as
unresolved and refer the dispute
to the Commission. By Section
157 of the Act when mediation
fails and the dispute is
referred to the Commission, the
Commission shall with the
consent of the parties refer the
dispute to an arbitrator or an
arbitration panel under Section
156 of the Act. It is where
after all these processes the
dispute remains unresolved that
the Commission shall refer the
matter to compulsory
arbitration. So as provided in
the Act the Defendant could
settle industrial dispute by
going through the process of
negotiation, mediation,
voluntary arbitration and
compulsory arbitration. The
National Labour Commission
Regulations, 2006 (Ll 1822) goes
on to provide the procedure for
negotiation, mediation,
voluntary arbitration and
compulsory arbitration. The LI
1822 goes on to provide at
Regulation 33(1) that the
Defendant could settle
industrial dispute summarily.
The said regulation states as
follows: “After the receipt of a
complaint in accordance with
regulation 6 and a response to
the complaint in accordance with
regulation 7, the Commission
may, after giving the parties
the right to be heard, settle
the dispute summarily without
recourse to mediation or
arbitration.' Regulation 6
provides that the complainant
shall submit a written complaint
to the Commission or complete
Form A (Complainant Form)
specified in the Schedule to the
Regulations and submit it to the
Commission. Regulation 7 also
provides that the Commission
shall within three working days
serve the other party with a
copy of the complaint and
request the other party to the
dispute to respond to the
complaint in writing within
fourteen working days after the
receipt of the Commission's
request. This shows that in
addition to mediation and
arbitration, the Defendant can
summarily resolve industrial
disputes without going through
those processes. It must be
noted that the National Labour
Commission Regulations, 2006 (LI
1822) were made under Section
152 of the Act in order to
provide the procedure for
negotiation, mediation and
arbitration proceedings and
other matters necessary for the
effective discharge of its
functions under the Act. This
clearly shows that the
Commission has been given the
mandate to resolve industrial
dispute summarily. It is,
therefore, lawful for the
Defendant to settle industrial
dispute summarily. By Section
141 of the Act, the Commission
may appoint a standing committee
consisting of members of the
Commission or an ad hoc
committee consisting of
non-members or both members and
non-members of the Commission as
the Commission considers
necessary for the efficient
discharge of its functions. So
by that provision the Commission
is given the mandate to appoint
committees to assist it in
resolution of industrial
disputes. In the current case
the evidence before the Court is
that the petitioners who are the
co- Defendants herein sent a
complaint to the Defendant in
accordance with Regulation 6 of
LI 1822. Per Exhibit A the
Defendant in accordance with
Regulation 7 of LI 1822 referred
a copy of the petition to the
Plaintiff for it to study it and
send its comments together with
any relevant -documents such as
the collective agreement or
contract of employment to it.
Even though it is not clear from
the evidence whether the
Plaintiff immediately responded
to the Defendant's request, the
evidence shows that they were
invited to the commission and
later submitted documents. This
is found in the evidence of
Hussein Abugri given on 8th
February, 2010 at page 2. He
gave evidence on behalf of the
Plaintiff and he said that
somewhere in 2008 he was invited
to the Commission in respect of
the current case. He went with
one Pascal. He claims they were
asked a number of questions
which they answered. After that
they were asked to produce some
supporting documents which they
later submitted. He went on to
say that at the Commission they
made both written and oral
submissions. The written
submission was tendered in
evidence as Exhibit B. Exhibit B
was dated 30th May, 2008 and it
clearly shows that there had
been a previous hearing of the
case. The first paragraph of the
Exhibit refers to a hearing
before the Commission on 6th
May, 2008. Hussain Abugri claims
he went to the Commission to
clarify the position of the
petitioners with regards to the
Plaintiff. After that they were
asked to produce some documents
which they submitted and the
next thing they heard was that
the Defendant had given a
decision which was not favorable
to the Plaintiff. He tendered in
evidence the covering letter and
the Decision itself as Exhibits
C and C1. To him the procedure
the Defendant adopted to resolve
the dispute was not proper. He
claims there should have been
negotiation, mediation,
voluntary arbitration and
compulsory arbitration. He said
he was not involved in the
appointment of the panel members
who heard the case. The witness,
therefore, claims that the
procedure adopted by the
Defendant was not proper. As has
been stated in this judgment the
Defendant can resolve industrial
disputes by going through the
processes identified by the
Plaintiff. It is, however, not
limited to those processes. The
law allows it to resolve it
summarily. The law does not also
state that the panel members in
summary trial should be
appointed with the consent of
the parties. By Section 141 of
the Act they are to be appointed
by the Commission itself.
However, where for any reason
any of the parties does not want
any of the panel members to sit
on the case by the natural
justice rule he can object to
it. In the current case no
objection was raised by any of
them. It is also in evidence
that the panel heard the case.
This was confirmed by Hussain
Abugri when he was being cross
examined on 8th February. 2010
this is found at pages 9 and 10
of the record of proceedings
where he confirmed that he was
given a hearing date and that he
appeared and gave evidence. It
must be noted that the Defendant
being an administrative body
with quasi judicial functions is
not expected to strictly follow
Court room procedures in
adjudicating on matters brought
before it. All that is expected
of it is the observance of the
natural justice rule. See
Laqudah v Ghana Commercial Bank
[2005-2006] SCGLR 388 in which
it was held that the core idea
implicit in the natural justice
principle of audi alteram partem
was simply that a party ought to
have reasonable notice of the
case he has to meet and ought to
be given the opportunity to make
his statement in explanation of
any question and answer any
arguments put forward against
it. The principle does not
require that there must be a
formal trial of a specific
charge akin to Court
proceedings. Thus in dealings
with the principles of natural
justice, one has always to bear
in mind that the principles are
substantive rather than
procedural safeguards.
Therefore, the fact that a
particular formal procedure is
not adopted does not itself
imply that the principle has not
been applied in an appropriate
case. The Supreme Court observed
in that case that, the evidence
unequivocally demonstrated that
the appellant had more than
enough notice of the Defendant
bank's case against him and also
had sufficient opportunity to
state his case. in response to
the bank's queries, he also
admitted various activities that
clearly contravened the
legitimate lawful instructions
of the bank. There was also
sufficient evidence to support
the trial judge's finding that
as a consequence the appellant's
misconduct, the bank had
suffered financial loss. His
conduct was willful, dishonest,
reckless and inconsistent with
his faithful discharge of his
duties. The Court held that in
the circumstances, a formal
process of enquiry, namely, the
institution of disciplinary
proceedings to afford him the
opportunity of being heard,
would not have served any
further purpose. So in that case
even though the dismissal of the
Plaintiff was not based on any
formal evidence being taken the
Court held that the natural
justice rule was observed by the
Defendant bank so his dismissal
was lawful. The same principle
was further elaborated by the
Supreme Court in the case of
Awuku¬Sao v Ghana Supply Co.
Ltd. [2009] SCGLR 710. The brief
facts of the case are as
follows:- The Plaintiff in this
case had been in the service of
Defendant Company for a number
of years and occupied the
position of Managing Director at
the time he was made to proceed
on leave. While on leave, the
Board of Directors requested the
Auditor General to undertake a
forensic audit and management
review of the operations of the
company. During the process he
was given the opportunity to
respond to the Audit report but
not summoned before the board of
enquiry. He was summarily
dismissed by a letter for stated
misconduct based on the adverse
findings against him in the
audit report. The contention of
the applicant was that, the
Defendant breached the terms of
the senior staff Service
conditions regarding dismissals;
and secondly, they breached the
audi alteram partern rule. The
Supreme Court found that, there
was no established disciplinary
procedure which the board of
Directors were obliged to follow
in respect of chief executive
officer. The Supreme Court upon
this finding upheld the decision
of the appellate Court
that-“where there are no
specific disciplinary procedures
the employer is under an
obligation to act fairly and
reasonably and to comply with
the rules of natural justice"
The Court was of the view that,
the Plaintiff was given a
hearing in the circumstances.
For the charges as laid in the
interim report, he was given a
copy and an opportunity to
respond which he did. The Court
therefore ruled that, the
Defendants had acted fairly and
reasonably in the circumstance.
The Court went on to state that
what was essential for
determination was whether the
Plaintiff had been given an
opportunity to react to the
charges laid against him. It,
therefore, held that if the
Plaintiff had been given a
chance to answer to the charges
even not directly to the
governing board or a body set up
by it that should satisfy the
requirements of natural justice.
So like the Lagudah's case no
formal evidence was taken in the
Awuku-Sao's case before the
Plaintiff was dismissed but the
Court held that the Defendant
observed the natural justice
rule in dismissing the Plaintiff
so his dismissal was lawful. ln
the current case the evidence
before the Court clearly shows
that the Plaintiff was given an
opportunity to respond to the
petition lodged against it by
the petitioners. Its
representative as well as its
counsel appeared before the
panel. The representative gave
evidence and its counsel
provided some questions which
were answered. In addition to
that the Plaintiff accepted the
panel members without objecting
to the composition and submitted
itself to it by appearing before
it and giving evidence. It
cannot, therefore, turn round to
fault the composition of the
panel and the procedure the
Defendant adopted in the
settlement of the matter. From
the evidence of the Plaintiff as
given by Hussain Abugri, the
impression is created that
because they had no hand in the
appointment of the panel
members, the trial is not lawful
so a decision from that trial is
also not lawful. This is found
at page 7 of the record of
proceedings which was given 8th
February, 2010. It must be noted
that parties to a dispute select
a panel only where the parties
are about to go into mediation
or voluntary arbitration. Where
the Commission resort to summary
trial as in this case then it is
the Commission that will appoint
the panel members and not the
parties. Therefore, the fact
that the Plaintiff did not have
a hand in the appointment of the
panel members does not render
the proceedings unlawful. In his
address to Court counsel for the
Plaintiff submitted that neither
the Defendant nor the
co-Defendant was able to tender
in evidence the transcript of
the proceedings that took place
at Defendants office. In view of
that the Court should make a
finding that, there is no such
proceedings so the Defendant did
not follow laid down procedure
in dealing with the matter. I
agree with counsel for the
Plaintiff that neither the
Defendant nor the co-Defendant
tendered in evidence a
transcript of the proceedings,
it is, however, observed that
there is enough evidence to show
that the Plaintiff had the
opportunity to put its case
across. This is confirmed by
Exhibits B and 4. Also the
evidence of Hussain Abugri
confirms it. It is, therefore,
the opinion of this Court that
the Defendant lawfully
determined the matter between
the Plaintiff and the
co-Defendants by going through
the laid down procedure as
provided by the Labour Act, 2003
(Act 651) and the National
Labour Commission Regulations,
2006 (LI 1822) and I so hold.
The next issue for determination
is whether or not the Executive
Secretary's letter to the
Plaintiff to comply with the
Defendant's decision within
fourteen days is lawful. The
said letter was tendered in
evidence by the Plaintiff as
Exhibit C. It states that "We
forward to You the decision of
the Commission on the above
case" It goes on to state that:
"PLEASE TAKE NOTICE that you are
to comply with the decision
within fourteen days of this
date except where the Decision
specifically directs otherwise."
Exhibit C is, therefore, not the
decision of the Defendant but it
is a cover note forwarding the
decision to the Plaintiff. It
also goes on to give an order
that the Plaintiff should comply
with the decision within
fourteen days. From the Act, the
Executive Secretary has no
mandate to give an order that a
party should comply with a
decision of the Defendant within
a specific time period. It is
only the panel who sat on the
matter that can make that order.
It was, therefore, wrong for the
Executive Secretary to make that
order in Exhibit C. This does
not, however, render the
decision of the Defendant
unlawful. It is rather the order
in Exhibit C that cannot be
enforced since the Executive
Secretary has no such powers.
His decision that the Plaintiff
complies with the order within
fourteen days is, therefore, not
binding on the Plaintiff and I
so hold. The next issue for
consideration is whether or not
the Defendant's decision dated
20th August, 2008 is lawful.
According to the Plaintiff the
said decision is not lawful. The
Plaintiff claims that the
Defendant did not settle the
matter in accordance with the
provisions in the Labour Act.
This is because they did not go
through mediation and
arbitration as provided in the
Act. The Defendant, therefore,
breached the relevant provisions
in the Labour Act. Also the
Defendant did not inform the
Plaintiff that it had decided to
proceed under Regulation 33(1)
of LI 1822 to determine the
matter. That aside the Plaintiff
did not have notice of the panel
members. Also the decision
handed down by the Defendant
does not amount to a settlement
within the meaning of the Act
and the Regulations. Counsel for
the Plaintiff contends that the
Defendant did not settle the
matter but rather determined it.
The Plaintiff, therefore, argues
that the decision handed down by
the Defendant is unlawful. It
is, however, my opinion that
since the Defendant has been
given the mandate to settle
cases between parties, it
follows that it has to give its
decision after the settlement.
In the current case the evidence
before the Court shows that the
Defendant settled the matter
between the Plaintiff and the
petitioners summarily and after
that came out with its decision
which is tendered in evidence as
Exhibit C 1. I, therefore, do
not agree with counsel for the
Plaintiff that because
Regulation 33(1) of LI 1822
talks about settlement, the
Defendant could not have given a
decision after the settlement.
Exhibit C is, therefore, lawful
and I so hold. From the
foregoing the Plaintiff is not
entitled to its claim but the
co-Defendants are entitled to
their counterclaim. Plaintiff's
reliefs endorsed on its writ of
summons are as a result
dismissed and judgment entered
for the Defendant and
co-Defendants as follows a. It
is hereby ordered that the
Plaintiff should comply with the
decision of the Defendant in the
matter between Messrs
Appiah-Adjei Boateng and others
and Anglogold Ashanti Limited
dated 20th August, 2008
forthwith. b. It is further
ordered that the Plaintiff pays
to the co-Defendants interest at
the commercial rate on the
amounts found to be due and
owing from the Plaintiff to the
co-Defendants from the date the
amounts became due to date of
final payment. c. The Plaintiff
is ordered to pay costs of GH˘3,000.00
to Defendant and co- Defendants
respectively. Mr. Nartey Tetteh
for the Plaintiff Mr. Kwasi
Danso Akyeampong for the
Defendant Mr. J. Opoku Agyei
with Mr. Emmanuel Larbi Amoah
for the Co-Defendants |
