|
Employment - Labour – Contract of
employment - Termination of
employment - Negligence ––
Whether or not the decision of
the Court dated was against the
weight of the evidence - Whether
or not verification of the
signature is the responsibility
of the Plaintiff. - Wether or
not Plaintiff did verify the
signatures on the transfer
request letter according to
established protocol - Whether
or not termination of
Plaintiff’s employment was
wrongful or unlawful
HEADNOTES
The Plaintiff was the Deputy Branch
Manager of the Defendant bank’s
Tema Fishing Harbour Branch. The
Plaintiff was presented with two
transfer request letters from
Emefs Construction Limited, a
customer of the Defendant, The
Plaintiff signed against the
signatures on the transfer
request letters and forwarded
them to the International
Business Centre (IBC) of the
Defendant bank which deals with
foreign transfers. After the IBC
had completed its processes, it
approved the request and duly
transferred the said sums to the
named beneficiary It
subsequently transpired that the
signature on the transfer
request letters was a forgery
and the Defendant bank was
unable to recover the amounts
transferred The Defendant bank
then charged the plaintiff with
negligence in the verification
of the signature on the transfer
request letters. It contended
that it was the responsibility
of the Plaintiff to verify the
signatures on the transfer
request letters with the
signatures and mandates in the
Defendant Bank’s Core Banking
System (Flexcube), that the
Defendant failed to do this
diligently, and that this set in
motion the sequence of events
that led to the wrong transfer
and loss The Defendant denied it
was his sole responsibility, as
Acting Branch Manager, to verify
the signatures on the transfer
request letters. He further
contended that he had in fact
verified the signatures on the
transfer request letter before
stamping and signing the
transfer request letters. At the
conclusion of the trial, the
High Court entered judgement for
the Plaintiff. The Court held
that the Defendant had
wrongfully and unlawfully
terminated the employment of the
Plaintiff and awarded damages
against the Defendant. The Court
further held that the employment
of the Plaintiff had not been
terminated unlawfully or
wrongfully as he had been
negligent in the performance of
his duty
HELD
Furthermore, under section 62 the
termination of a worker’s
employment is fair if the
contract of employment is
terminated by the employer
because the worker is
incompetent. We therefore hold
that the termination of the
Plaintiff’s employment was not
“unfair” in terms of Act 651 as
the Plaintiff was incompetent in
the performance of his duty. In
the result, we would dismiss all
the Plaintiff’s grounds of
appeal. The appeal is
accordingly dismissed in its
entirety as being without any
merit
STATUTES REFERRED TO IN JUDGMENT
Labour Act, 2003 (Act
651).
CASES REFERRED TO IN JUDGMENT
Kobea & Ors v. Tema
Oil Refinery [2003-2004] SCGLR
1033,
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
KOTEY, JSC: -
COUNSEL
GORDON C. AKPADIE FOR
THE
PLAINTIFF/RESPONDENT/APPELLANT.
NII ARDAY WONTUMI FOR
THE
DEFENDANT/APPELLANT/RESPONDENT.
KOTEY, JSC:-
This appeal is taken against the
judgement of the Court of
Appeal, which judgment reversed
a judgment of the trial High
Court.
By a unanimous decision, the
Court of Appeal allowed in part
an appeal filed by the
Defendant/Appellant/Respondent
(hereinafter the Defendant)
against the decision of the High
Court entered in favour of the
Plaintiff/Respondent/Appellant
(hereinafter the Plaintiff).
Facts
A brief background of the events
leading to these proceedings
would be necessary for a better
appreciation of the issues
raised in this appeal.
The Plaintiff was the Deputy
Branch Manager of the Defendant
bank’s Tema Fishing Harbour
Branch. The Plaintiff was
presented with two transfer
request letters from Emefs
Construction Limited, a customer
of the Defendant, for the
transfer of £32,400 and £82,364
to a customer of Emefs
Construction Limited. The
Plaintiff signed against the
signatures on the transfer
request letters and forwarded
them to the International
Business Centre (IBC) of the
Defendant bank which deals with
foreign transfers. After the IBC
had completed its processes, it
approved the request and duly
transferred the said sums of
£32,400 and £82,364 to the named
beneficiary.
It subsequently transpired that
the signature on the transfer
request letters was a forgery
and the Defendant bank was
unable to recover the amounts
transferred and thereby lost the
£114,764.
The Defendant bank then charged
the plaintiff with negligence in
the verification of the
signature on the transfer
request letters. It contended
that it was the responsibility
of the Plaintiff to verify the
signatures on the transfer
request letters with the
signatures and mandates in the
Defendant Bank’s Core Banking
System (Flexcube), that the
Defendant failed to do this
diligently, and that this set in
motion the sequence of events
that led to the wrong transfer
and loss of the sum of £114,764.
The Defendant denied it was his
sole responsibility, as Acting
Branch Manager, to verify the
signatures on the transfer
request letters. He further
contended that he had in fact
verified the signatures on the
transfer request letter before
stamping and signing the
transfer request letters.
After an internal (house)
process, the Defendant bank
terminated the employment of the
Plaintiff. The Plaintiff sued
the Defendant for wrongful and
unlawful termination of
unemployment.
The Plaintiff per his Writ of
Summons and accompanying
Statement of Claim, claimed
against the Defendant as
follows:
(a)
A declaration that the Plaintiff
was not negligent or incompetent
when he verified the signature
on the transfer letter from
Emefs Construction Limited.
(b)
An order for reinstatement as a
Deputy Manager of the Defendant
Bank or alternatively payment of
accumulated salary from the date
of termination of appointment
including all the benefits that
would have accrued to him if he
was still in employment, leave
allowance, clothing allowance
and any other allowance that
would have been entitled to
within the period.
(c)
Payment of general damages in
the sum of One Hundred Thousand
Ghana Cedis (GHS 100,000) for
wrongful and unlawful
termination of employment.
(d)
Payment of adequate compensation
for embarrassment, pain and loss
that the Plaintiff suffered as a
result of defendant’s actions
and inactions.
(e)
Interest on all monies that will
be adjudged to be due him from
the day it became due.
(f)
Cost including Solicitors fees.
At the conclusion of the trial,
the High Court entered judgement
for the Plaintiff. The Court
held that the Defendant had
wrongfully and unlawfully
terminated the employment of the
Plaintiff and awarded damages
against the Defendant.
The trial High Court held that
it was not satisfied that the
Plaintiff had been negligent in
the verification of the
signatures on the transfer
request letters and that it was
the IBC that had approved and
authorized payment.
The Defendant being dissatisfied
with the judgement of the trial
High Court appealed to the Court
of Appeal. The Court of Appeal
allowed the Defendant’s appeal
and set aside the judgement of
the High Court.
The Court of Appeal held that on
the evidence adduced at the
trial it was satisfied that it
was the responsibility of the
Defendant to verify the
signature on the transfer
request letters. The Court also
held that the Defendant had been
negligent in his verification of
the signatures on the transfer
request letters. The Court
further held that the employment
of the Plaintiff had not been
terminated unlawfully or
wrongfully as he had been
negligent in the performance of
his duty and the termination was
in accordance with the terms of
his contract of employment and
the Labour Act, 2003 (Act 651).
Grounds of Appeal
Aggrieved by the decision of the
Court of Appeal the Defendant
lodged an appeal to this Court
on the following grounds;
a. The decision of the Court
dated 14/12/17 was against the
weight of the evidence before
the Court.
b. The Court of Appeal failed to
analyze and evaluate the entire
evidence placed before it
particularly the established
internal procedures for transfer
of money and exhibit ‘P’.
c. The Court of Appeal erred
when it held that the
termination was not wrongful.
Decision of Court of Appeal
Against Weight of Evidence and
Failed to Analyze and Evaluate
the Entire Evidence.
Grounds (a) and (b) were argued
together. They claim that the
decision of the Court of Appeal
was against the weight of the
evidence adduced at the trial
and failed to analyze and
evaluate the entire evidence.
These grounds of appeal
therefore raise two issues
relating to:
i. Verification of the
signatures on the transfer
request letters, and;
ii. Authorization and approval
for payment by the IBC.
Verification of Signature
This issue may be divided into
two;
a. Who is responsible for the
verification of the signatures
on the transfer request letters,
Exhibit ‘A’ and ‘A1’?
b. Were the signatures on the
transfer request letters Exhibit
‘A’ and ‘A1’ properly verified
in accordance with existing
protocol?
Responsibility for
Verification of signature
The Plaintiff admitted receipt
of the transfer request. He also
admitted stamping and signing
the transfer request letters.
He, however, sought to down play
his role in the verification of
the signatures. He described his
role as “only a mere acceptance
procedure”.
This was contradicted by the
Defendant who contended that the
Plaintiff, as Branch Manager,
was responsible for the
verification of the signatures
on the transfer request letters.
The Plaintiff sought to shift
responsibility for the
verification of the signature on
the transfer request letters
from himself to the IBC. This
was disingenuous. The Plaintiff
failed to indicate what the
responsibility of the Branch
Manager is when a transfer
letter is lodged at his branch.
He also failed to indicate what
his signature and stamp on the
transfer request letters was
attesting to. The better
evidence from Exhibit ‘F’,
“Operating Procedure For
Handling Request For Import By
Direct Transfer and Payment” is
that the branch manager is
responsible for verification of
the signature. If the manager is
satisfied that the signature on
the letter tallies with what is
the in Flexcube he then signs
and stamps the transfer request
letter and forwards it to the
IBC for further action.
Verification of the signature is
therefore the responsibility of
the Plaintiff.
Where, as in this case, the
Plaintiff as Branch Manager has
verified the signatures on the
transfer request letters, the
IBC does no further verification
of the signature, but proceeds
with other approval
requirements. The role of the
IBC is, by paragraph 6.4 of
Exhibit ‘F’ to “ensure that the
signature has been verified by
the Branch”. In fact, the
evidence is that the Flexcube
system available at the IBC did
not contain the signatures of
account holders. It is where a
branch manager, does not or is
unable to verify a signature,
that the IBC will take further
action in relation to
verification of the signature as
per paragraph 6.5 of Exhibit F.
Having regard to the evidence
led, we are wholly in agreement
with the learned trial judge
that the evidence showed that it
was in fact the plaintiff’s duty
to verify exhibits ‘A’ and ‘A1’
and not, as he contended, the
responsibility of the IBC.
The Court of Appeal found on
this matter, at page 14 that;
“The Plaintiff’s case that the
matter of verifying signatures
did not rest with him but with
the IBC was contradicted by
Plaintiff’s document exhibit ‘F’
the document titled ‘Operating
Procedure for Handling request
for import by Direct Transfer
and Payment’. That document was
quite unequivocal that the
verification of signatures was
to be done at the level
(Paragraph 6.4). While the IBC
staff were to ensure that
signatures were correct
(Paragraph 6.5 and 6.6), it did
not, in the face of clear
instructions of paragraph 6.4,
relieve the Branch Manager (the
plaintiff who was a Deputy
Manager was in charge of the
Branch at the material time), of
his responsibility to do the
verification”.
On the preponderance of the
evidence adduced at the trial,
it is our considered view that
the trial High Court and the
Court of Appeal were right in
finding that responsibility for
the verification of the
signatures on the transfer
letters lay with the Plaintiff
and not the IBC.
Did the Plaintiff Verify the
Signatures on the Transfer
Request Letters according to
existing Protocol?
The plaintiff gave evidence
before the House Committee that
Emefs Construction Limited had
three signatures in the system
when in fact it had only one.
The evidence is to the effect
that the Plaintiff did not
verify the signatures on the
transfer letters with the
signature in the Flexcube
system. The Plaintiff conceded
that he used signatures on other
letters from Emefs Construction
Limited to verify the signatures
on the transfer letters,
Exhibits ‘A’ and ‘A1’. This was
contrary to existing protocol
and wrongful.
On the preponderance of the
evidence, the Court of Appeal
was right in holding that the
Plaintiff did not verify the
signatures on the transfer
request letter according to
established protocol.
We therefore dismiss grounds (a)
and (b) of the appeal and affirm
the decision of the Court of
Appeal that it was the
responsibility of the Plaintiff
to verify the signatures on
Exhibits ‘A’ and ‘A1’ and that
the Plaintiff failed to do so in
accordance with existing
protocol.
“Wrongful Dismissal” and /or
“Unlawful Termination”
Ground C of the grounds of
appeal is that “the Court of
Appeal erred when it held that
the termination was not
wrongful. This raises the
question of whether the
termination of the Plaintiff’s
employment was “wrongful” and/or
“unfair”.
Wrongful Dismissal
The trial High Court had held
that the Plaintiff’s employment
was unfairly terminated as it
was in contravention of section
62 of the Labour Act, 2003 (Act
651).
The Court of Appeal reversed
this finding and held that the
termination of the Plaintiff’s
employment was not wrongful or
unlawful but was in accordance
with his contract of employment.
The Rules and Conditions of
Service, Exhibit ‘G’ provide in
Section 12.0 that; “Either party
i.e. the employee or the bank
may terminate the Contract of
Employment by giving the other
party a month’s salary in lieu
of notice”. The Court further
held that the termination of the
employment of the Plaintiff was
not in violation of Act 651.
The termination of the
Plaintiff’s employment was by a
letter, Exhibit ‘D’. It stated
that the Plaintiff’s actions
amounted to gross negligence and
that his employment was being
terminated in accordance with
section 12 of Exhibit ‘G’.
We agree with the Court of
Appeal that “the respondent’s
admission of failure to use the
Flexcube , which was the
Defendant bank’s protocol for
the verification of signatures,
supported the claim of
negligence or incompetence in
the performance of his duty as
contained in this letter of
termination.”
We have already held that the
Plaintiff was negligent in the
performance of his duty to
verify the signatures on the
transfer request letters.
Section 11.4 of Exhibit G,
titled “Rules and Conditions of
Service” provides that the Bank
shall dismiss an employee after
the appropriate procedure has
been followed. The dismissed
shall be as a result of
violation and breach of these
Rules and Conditions, the Code
of Conduct and for just and
reasonable cause involving
dishonesty, willful refusal to
obey legitimate and reasonable
instructions, negligence of duty
and gross misconduct.
But an employer is not really
required to give any reasons for
the termination. Once the
employer complied with section
12 of the Rules and Conditions
of Service by giving either one
month’s notice in writing or one
month’s salary as lieu thereof,
then the termination is not
wrongful. In Kobea & Ors v. Tema
Oil Refinery [2003-2004] SCGLR
1033, per Dr Twum JSC at 1039
stated;
“At common law, an employer and
employee are free and equal
parties to the contract of
employment. Hence either party
has the right to bring the
contract to an end in accordance
with his terms. Thus an employer
is legally entitled to terminate
an employee’s contract of
employment whenever he wishes
and for whatever reasons,
provided only that he gives due
notice to the employee or pay
him his wages in lieu of the
notice. He does not even have to
reveal his reasons much less to
justify the termination.”
The termination of the
Plaintiff’s employment also
complies with the general
provisions of the Labour Act,
2003 (Act 651) governing the
termination of employment.
Sections 15 and 17 of Act 651
provide that;
15. Grounds for termination of
employment
A contract of employment may be
terminated,
(a) by mutual agreement between
the employer and the worker;
(b) by the worker on grounds of
ill-treatment or sexual
harassment;
(c) by the employer on the death
of the worker before the
expiration of the period of
employment;
(d) by the employer if the
worker is found on medical
examination to be unfit for
employment;
(e) by the employer because of
the inability of the worker to
carry out work due to
i. Sickness or accident; or
ii. the incompetence of the
worker; or
iii. the proven misconduct of
the worker.
17. Notice of termination of
employment
(1) A contract of employment may
be terminated at anytime by
either party giving to the other
party,
(a)
in the case of the contract of
three years or more, one month’s
notice or one month’s pay in
lieu of notice.
(b)
In the case of a contract of
less than three years, two
weeks’ notice or two weeks’ pay
in lieu of notice; or
(c)
In the case of contract from
week to week, seven days’
notice.
(2) A contract of employment
determinable at will by either
party may be terminated at the
close of any day without notice.
(3) A notice required to be
given under this section shall
be in writing.
(4) The day on which the notice
is given shall be included in
the period of notice.
The letter of termination,
Exhibit ‘D’ stated that the
action of the Plaintiff amounted
to gross negligence and that he
was being terminated pursuant to
section 12 of Exhibit ‘G’ which
provided that “Either party i.e
the employee or the Bank may
terminate the contract of
employment by giving the other a
month’s notice or a month’s
salary in lieu of notice”. The
termination of the employment of
the Plaintiff therefore complied
sections 15 and 17 of Act 651.
We therefore affirm the decision
of the Court of Appeal that the
Plaintiff’s employment was not
wrongfully terminated.
Unfair termination
The provisions relating to
“fair” and “unfair” termination
of employment are contained in
sections 62 and 63 of Act 651
which provide that;
62. Fair termination
A termination of a worker’s
employment is fair if the
contract of employment is
terminated by the employer on
any of the following grounds:
(a)
that the worker is incompetent or
lacks the qualification in
relation to the work for which
the worker is employed;
(b)
the proven misconduct of the worker;
(c)
redundancy under section 65;
(d)
due to legal restrictions imposed on
the worker prohibiting the
worker from the performing the
work for which the worker is
employed.
63. Unfair termination of
employment
(1) The employment of a worker
shall not be unfairly terminated
by the worker’s employer.
(2) A worker’s employment is
terminated unfairly if the only
reason for the termination is
(a) that the worker has joined,
intends to join or has ceased to
be a member of a trade union or
intends to take part in the
activities of the trade union;
(b) that the worker seeks
office as, or has acted in the
capacity of, a workers’
representative;
(c) that the worker has filed a
complaint or participated in
proceedings against the employer
involving alleged violation of
this Act or any other enactment;
(d) the worker’s gender, race,
colour, ethnicity, origin,
religion, creed, social,
political or economic status;
(e) in case of a woman worker,
due to pregnancy of the worker
or the absence of the worker
from work during maternity
leave;
(f) in the case of a worker
with a disability, due to the
worker’s disability;
(g) that the worker is
temporarily ill or injured and
this is certified by a
recognized medical practitioner;
(h) that the worker does not
possess the current level of
qualification required in
relation to the work for which
the worker was employed which is
different from the level of
qualification required at the
commencement of the employment;
or
(i) that the worker refused or
indicated an intention to refuse
to do work normally done by a
worker who at a time was taking
part in a lawful strike unless
the work is necessary to prevent
actual danger to life, personal
safety or health or the
maintenance of plant and
equipment.
(3) Without limiting the
provisions of subsection (2), a
worker’s employment is deemed to
be unfairly terminated if with
or without notice to the
employer, the worker terminates
the contract of employment
(a). because the ill-treatment
of the worker by the employer,
having regard to the
circumstances of the case, or
(b). because the employer has
failed to take action on
repeated complaints of sexual
harassment of the worker at the
workplace.
(4) A termination may be unfair
if the employer fails to prove
that,
(a). the reason for the
termination is fair, or
(b). the termination was made in
accordance with a fair procedure
or this Act.
Section 64 then provides that;
64. Remedies for unfair
termination
(1) A worker who claims that the
employment of the worker has
been unfairly terminated by the
worker’s employer may be present
a complaint of the commission.
(2) If on investigation of the
complaint the Commission finds
that the termination of the
employment is unfair, it may
(a) order the employer to
re-instate the worker from the
date of the termination of
employment;
(b) order 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
(c) order the employer to pay
compensation to the worker.
“Unfair termination”, as
distinct from the common law
concept of “wrongful dismissal”,
is therefore a creature of
statute, currently the Labour
Act, 2003 ( Act 651).;
The Plaintiff in this case did
not sue for “unfair termination”
but “wrongful dismissal”. As the
Court of Appeal noted, “the
plaintiff’s suit was grounded on
wrongful termination yet the
learned trial judge failed to
make such a finding, but rather
held that his employment was
unfairly terminated in that it
sinned against S.62 of the
Labour Act, 2003 (Act 651)”.
We hold that the trial Court
erred when it failed to consider
whether the Plaintiff’s
employment had been wrongfully
terminated under the terms of
his contract of employment. This
was required of the trial High
Court as an initial first step.
This failure was a grievous
error. There was no basis for
the trial High Court’s holding
that; “I believe that the
Plaintiff’s appointment was
terminated under section 62”.
As we have noted, the letter of
termination Exhibit D stated
quite clearly that the
Plaintiff’s employment was being
terminated under his contract of
employment and pursuant to
section 12 of the Rules and
Conditions of service, Exhibit
G.
The trial High Court’s holding
that the termination of the
Plaintiff’s employment was in
violation of the Labour Act,
2003 (Act 651) is therefore
untenable as this is not an
action for “unfair termination”.
Furthermore, under section 62
the termination of a worker’s
employment is fair if the
contract of employment is
terminated by the employer
because the worker is
incompetent. We therefore hold
that the termination of the
Plaintiff’s employment was not
“unfair” in terms of Act 651 as
the Plaintiff was incompetent in
the performance of his duty.
Conclusion
In the result, we would dismiss
all the Plaintiff’s grounds of
appeal. The appeal is
accordingly dismissed in its
entirety as being without any
merit.
PROF. N. A. KOTEY
(JUSTICE OF THE SUPREME COURT)
BAFFOE-BONNIE, JSC:-
I agree with the
conclusion and reasoning of my
brother Prof. Kotey, JSC.
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
GBADEGBE, JSC:-
I agree with the
conclusion and reasoning of my
brother Prof. Kotey, JSC.
N. S. GBADEGBE
(JUSTICE OF THE SUPREME COURT)
PWAMANG, JSC:-
I agree with the
conclusion and reasoning of my
brother Prof. Kotey, JSC.
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
DORDZIE (MRS.), JSC:-
I agree with the
conclusion and reasoning of my
brother Prof. Kotey, JSC.
A.
M. A. DORDZIE (MRS.)
(JUSTICE OF THE SUPREME COURT)
COUNSEL
GORDON C. AKPADIE FOR
THE
PLAINTIFF/RESPONDENT/APPELLANT.
NII ARDAY WONTUMI FOR
THE
DEFENDANT/APPELLANT/RESPONDENT. |
