JUDGMENT
WOOD, JA:
The
plaintiff/Respondents were working as night duty
watchmen at Chujah crossing on the defendant/appellant
company’s gold concession, when one of the company’s
truck and a hired mini bus were involved in a
collision. The company alleged the accident was as a
result of their negligence and so declared them
off-site. In practical terms, their services were
dispensed with forthwith. Claiming that they were
employees, they sued them for a declaration that their
dismissal was wrongful, prayed the court for the sum of
¢10 million as compensation for the said act and for any
other appropriate orders. Clearly dissatisfied with the
decision of the trial court, which gave to each
respondent ¢4,470,00 as damages for wrongful dismissal,
the appellants have appealed to us in this court on the
following grounds:
a) “That the judgment
is against the weight of evidence adduced at the trial.
b) That the High Court
against the weight of evidence adduced at the trial
erred in holding that the Plaintiffs were employees of
the Defendant company.
c) That the High Court
in the absence of a contract of employment or any other
relevant evidence erred in holding that the defendant
had wrongfully dismissed the Plaintiffs.
d) That the High Court
erred in awarding damages for wrongful dismissal on the
basis of the evidence before it.”
At the hearing,
Appellants stoutly denied the respondents contention
that they were at all material times in their
employment. They denied the existence of any legal bond
between the two of them and described them as employees
of Emanet Services (Emanet), independent contractors,
engaged by them (appellants) to provide security
services. The distinction between the two different
relationships is of basic legal importance. The
relationship asserted by the respondent is a contract of
service. As a result, a fundamental and thorny issue
which arose for determination in the court below, and
which indeed also arises for our consideration in this
appeal, is whether or not the appellant company
employed the respondents under a contract of service.
The learned trial judge found they were, basing his
decision on the following: Exhibit G, a testimonial
given them by the appellant company, the fact that
following a letter written by the appellants headed
Bilton Bogoso Gold Ltd., they handed over company kit,
which was in their custody, Exhibit E, an investigative
report prepared by the company following the accident
that led to their dismissal.
It is this finding
which has come under attack as being against the weight
of evidence. It was submitted that at common law, the
test for determining whether a person is an employee is
dependent on whether there exists a contract of service
or one of services. The test laid down in Ready Mixed
Concrete v. Minister of Pensions and National Insurance
(1968) 2 Q.B. 515 and in which Mac Kenna J, analysed a
contract of service in some detail and concluded that to
qualify as one, three necessary conditions must be met.
Counsel argued that
since the 1st respondent corroborated the appellants’
assertion that Emanet was contracted to provide security
services, and they were unable to produce their
appointment letters at the trial, nor clearly state the
terms and conditions of their employment, the finding
was clearly erroneous.
The undisputed facts
are that at all material times; the respondents worked
on the appellants company’s premises as security
watchmen. The question of whether an employment
relationship is a contract of service or of services is
a question of mixed fact and law and is dealt with on a
case by case basis. No one single test is decisive, as
was emphasised in Argent v. Minister of Social Security
(1968) 3 ALL E.R. 208. Halsburys Laws of England, Third
Edition, Volume 25, defines contract of service as “one
in which a person undertakes to service another and to
obey his reasonable orders within the scope of the duty
undertaken.” Many factors are therefore taken into
account in determining the question, the acid test being
that which was advocated in the Ready Mixed Contract
case. His Lordship’s most instructive speech at page
513 is as follows:
“ A contract of service
exists if these three conditions are fulfilled.
(i) The servant agrees
that in consideration of a wage or other remuneration,
he will provide his own work and skill the performance
of some service for his master.
(ii) He agrees,
expressly or impliedly that in the performance of that
service subject to the other’s control in a sufficient
degree to make that other master.
(iii) The other
provisions are consistent with its being a contract of
service”.
I intend to be guided
by this basic test, which was accepted by Lord Widgery,
C.J, in Global Plant, Ltd. v. Secretary of State for
Health and Social Security (1972) 1Q.B 139, as well as
the undoubtedly sound counsel of Cooke J, when dealing
with the vexed question of the appropriate test in
Construction Training Board v. Labour Force, Ltd.,
(1973) 3 AII E.R. 220. He reasoned that,
“First, that no list of
test which has been formulated is exhaustive, and that
the weight to be attached to particular criteria varies
from case to case. Secondly, although the extent of the
control which the alleged employer is entitled to
exercise over the work is by no means a decisive
criterion of universal application, it is likely in many
cases to be a factor of importance”.
On the particular facts
of this case, the trial judge was right in concluding
that the respondents were employees of the appellant
company. True they were unable to produce their
appointment letters. Their production might have made
their case easier to deal with. But there are other
pieces of documentary evidence clearly pointing to the
existence of that contractual relationship.
Both respondents were
emphatic that they were employed and dismissed by the
appellants. For the 1st, the unchallenged evidence shows
that he was employed in 1991, at which point in time
Emanet had not been established, and dismissed at a time
it had ceased to exist. The contract document on which
the appellants rely, exhibit I came into effect in
October 1992. Emanet may well have entered into an
agreement with the appellants to provide the services
stated therein, but, there being no evidence from the
appellants that there was a mutual agreement between
them and the 1st respondent at the inception of Emanet
that he transfers to them, it would clearly be in error
to hold that he is their employee. Again, he swore that
in his employment with the company he was being paid
¢298,000.00. The Exh. A, his payroll for June 1996,
headed BILTON BOGOSO GOLD LIMITED WATCHMAN DETAILED
PAYROLL JUNE 1996. Clearly corroborate his assertion
that he was indeed in their employment. Also the Exh.
B, the appellants letter which declared him off site.
Finally, the Exh. B, a testimonial issued by the company
to him and whose opening paragraph I believe must be
reproduced, for it confirms their stated position. It
reads:
“This is to certify
that MR. BERNARD KOJO MENSAH, was employed and worked as
a security Watchman at Bogoso Gold Limited, from JANUARY
1991-JUNE 1996.”
In fairness to the
respondents, Mr. Sam Crabbe, the author of the exhibit
attempted to explain the circumstances under which he
came to write it. He explained that although he did not
know the applicant, and he also did not have a clue
about his employment history, he was nevertheless moved
on humanitarian grounds to write it, after two officials
have confirmed he worked as a watchman, with one
actually volunteering information that he worked with
Emanet, a company on contract with Bogoso. That being
the case, why did he write the testimonial in the first
place? If he were on compassionate grounds minded to,
as he would have us believe, why did he not state the
facts as were narrated to him, namely, that he was
employed by Emanet to provide the service, but wrote
that, he was employed by Bogoso. Frankly, I find it a
bit hard to believe that his highly placed security
officer, who confesses he did not know the applicant
conducted the exercise without calling for his personal
file. I find his explanation threadbare. The
circumstances under which under the principle of prior
self contradiction, a witnesses credibility may not be
impeached has been outlined in Asia v. VA Yeduvor and
Another, (1987-88) 1GLR 175. This court, unanimously
speaking, held that:
“…a prior inconsistent
statement, if not satisfactorily explained as to the
circumstances under which it was made (e.g. duress or a
mistake), would go to impeach credit on a particular
fact.”
I find Mr. Crabbe’s
explanation neither credible nor satisfactory. I find
all three conditions set out in the Ready Mixed Concrete
case present in the 1st respondent’s case. The
appellants remunerated him as he provided the necessary
work and skill. They superintended the work and
controlled the manner in which it was to be done—where
it was to be done, he was at first posted at the
bungalows, but subsequently shifted to Chujah. Again,
they provided necessary tools for doing it, not to
mention that he was subject to the mines safety
regulation. The order to the finance department
directing them to withhold his salary for the months of
May and June 96, until he has returned all of the
company’s property in his custody supports the view that
he is directly on their payroll and also that they
control him. Otherwise, the respondents would surely
have dealt directly with Emanet, the
independent-contractor who in any event were,
surprisingly not produced by the appellants to
corroborate their assertion that respondents were indeed
their employees.
Were there any other
terms of the contract consistent with a contract of
service? Yes. The Exh. A shows he obtained meals
allowance, while tax and social security contributions
were deducted at source, in clear contradistinction to
the rule that applies to casual workers under Exh. 1
Much the same
inferences and conclusions could be drawn in favour of
the 2nd respondent who led similar evidence. He was
emphatic that he was in the employment of the respondent
during which period he received salary for work done as
evidenced by the Exh. D and I. Further that they not
only supplied him with working tools, but also
controlled the manner in which the work was to be done.
The absence of an employment letter notwithstanding, he
re-affirmed his stated position under cross-examination
as the following would show.
Q. Are you aware that
Mr. Anthony is now officer of Emanet Services
A. I can’t tell
Q. Were you employed
by Anthony
A. No
Q. Who employed you
A. Mr. Ayalipar of
Bilton Bogoso Ltd. He was Chief Security.
Q. Were you given
number as an employee
A. Yes
Q. Are you aware that
Exhibit A makes no mention of the employee number.
A. It is up to them.
While it is true that
the initial burden of proving that they are appellants
lay on them, I am satisfied that they discharged that
burden satisfactorily. On the contrary, I think the
appellants woefully failed to discharge the evidentiary
burden which then shifted to them. All they did,
contrary to the well known principle in Majo lagbe v,
Larbei, fully explained and digested in Zabrama Segbezi
(1991)2 GLR 221 was to mount the witness box, deny the
assertion and point to the Exh I as the evidence of a
contract of Services between them and Emanet. That may
well be so, but the critical question is this: at the
crucial date of the accident in whose employment were
the respondents? I cannot imagine that for this well
reputed and highly organized mining company, they could
not produce one single documentary evidence from Emanet
showing that respondents were their employees but who
were being assigned to them for security services. Are
we being made to believe that Emanet simply dumped them
on to the company without formally introducing them? The
terms of the 2nd respondents contract is in my view
consistent with a contract of service.
Did the appellants’
action amount to a dismissal? Certainly yes. Two
arguments were advanced in support of the proposition
that what happened cannot amount to a dismissal- what
weak arguments. The first, namely that they were
declared off site in accordance with Exh. I can be
easily dismissed on the grounds that I have already
found they are not employees of Emanet and so the terms
are inapplicable to them. The second is that the letter
was not written or signed by the General Manager or any
duly mandated officer of the appellant. The least said
about the letter which came from the chief security
officer of the company the better.
It was never the
company’s position that the Exhibit was written by an
unauthorized person. In any case that assertion runs
counter to what appellants own senior Investigative
Officer deposed to on 30th November 1999 viz that “their
appointments” were “terminated” forthwith, the clear
meaning being “that Bilton Bogoso Gold Ltd no longer
needs their services and therefore should not come to
the concession.”
Obviously, their own
views that they were clearly negligent is very much more
consistent with a dismissal that is, a summary
determination of the contract of service. It is
difficult to faction why the appellants are running away
from this simple truth.
Was the dismissal
justified? Again the evidence is overwhelming. The
appellants on whom lay the burden of proving lawful
justification failed totally to justify their action.
In their statement of
defence, they have clearly accused them of negligence.
(see paragraphs 6, 8 and 9). The 8 is particularly so
serious, I am forced to reproduce it.
“The defendant in
further denial of paragraph 9 of the statement of the
plaintiffs statement of claim avers that the second
plaintiff at the time of the said collision was not at
this designated duty post but was sleeping elsewhere”.
In spite of these
serious allegations, not once were these acts of gross
negligence suggested to them while they were in the
witness box to enable them deny or accept them. I am
not unmindful of this courts decision in Nartey v. Botwe
(1989-90) 1 GLR 479 which lays out the exceptions to the
rule on failure to cross-examine. The appellants do not
fall under any of the exceptions and their failure to
put their case across through cross-examination cannot
be justified in any way in the circumstances. Worse
still, they failed to lead a shred of credible evidence
in proof (legal proof) of their allegation that the
accident occurred as a result of the respondent’s
negligence and in circumstances that justify their
instant dismissal. In any case the charges of
negligence is clearly inconsistent with the Exhs. C and
G, which described the respondents in glowing
terms—hardworking and obedient workmen.
The respondents may
well have been watchmen, but clearly theirs was a
contract indefinite as to duration. In the absence of
agreement or custom (that was not the appellants case)
their contracts are terminable by reasonable notice, as
is the positions generally for all contracts of service.
Lord Alverstone CJ in Re African Association, Ltd and
Aden, 1910 1KB 396 summed up the law as follows:
“The general principle
applicable to contract of service is that, in the
absence of misconduct or of grounds specified in the
contract, the engagement can only be terminated after
reasonable notice”.
We think a month’s
notice reasonable for a night watchman. This is because
what constitutes reasonable notice is a question
determinable on the facts of each given case. In one
case, twelve months was reasonable. He was a chief
engineer of an ocean liner (Savage v. British India
Steam Navigation Co Ltd 1930, 46T LR 294), while in the
case of a hairdresser assistant, one week was held to be
reasonable (Mambens v. Leon) 1919 KB 208. There is
everything to show from the self evident Exh B that it
was a dismissal retrospective at that, not a termination
on reasonable notice. The respondents are therefore
entitled to damages. At this rehearing however, we do
agree that the trial judge failed to state the factors
which he relied on in arriving at the period of 15
months this makes the damages awarded arbitrary. We will
reduce it to 5 months on the basis that probabilities of
his obtaining employment elsewhere as a
security/watchman is not as low as if they were not in
possession of such favourable testimonials and they had
happened to mining Engineers. They have not proved that
they are entitled to any other benefit. The measure of
damages would therefore be assessed at ¢298000.00 x 6
months (1 month reasonable + 5 months period within
which they could secure alternative employment. Thus
works out at ¢1,788000.00 with costs assessed at ¢2,00m
in favour of each respondent.
G. T. WOOD (MRS.)
JUSTICE OF APPEAL
OMARI-SASU, JA:
I agree.
K. OMARI-SASU
JUSTICE OF APPEAL
OWUSU, JA:
I also agree.
R. C. OWUSU (MISS)
JUSTICE OF APPEAL
COUNSEL:
*vdm* |