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Emplotment
– Contracts of employment -
contracts of employment
Terminated of appointment –
Failing to exercise the required
supervision - Company policy -
Breach of company regulations -
Collective bargaining agreement
-
HEADNOTES
The plaintiff
was the defendant company’s
Inland Container Depot (or “ICD”)
officer stationed at Kumasi. He
was in charge of the defendant’s
inland container depot there.
By a letter of September 19,
2006, the defendant terminated
the plaintiff’s appointment.
The letter based the
justification for this action on
the findings made by a
subcommittee set up by the
defendant to inquire into the
matter. The subcommittee had
made the finding that the
plaintiff had failed to exercise
the required supervision over
the Kumasi depot by allowing an
unauthorized third party truck
to be brought into the depot,
contrary to company policy This
incident triggered the setting
up of an investigative
sub-committee by the defendant
to inquire into it and the
plaintiff’s employment was
terminated The plaintiff’s
action against the defendant on
these facts was dismissed in the
High Court. He appealed to the
Court of Appeal. The Court of
Appeal dismissed the appeal, but
varied the High Court judgment
to the extent of awarding the
plaintiff compensation for the
defendant’s non-compliance with
the relevant provisions of the
collective bargaining agreement.
, The appellant being
dissatisfied has appealed to
this Court against the judgment
of the Court of Appeal
HELD
the appellant
argues that the judgment of the
Court of Appeal was against the
evidence on the record. There
are concurrent findings by the
two courts below that the
appellant put the defendant at
enormous risk and there was
evidence from the findings of
the subcommittee that could
serve as a credible basis for
the conclusions of the two
courts. Accordingly, there is
no basis for disturbing those
findings. This ground is without
merit and should be dismissed.
In the result, we dismiss all
the appellant’s grounds of
appeal. The appeal is
accordingly dismissed in its
entirety as being unencumbered
by any merit
STATUTES
REFERRED TO IN JUDGMENT
Labour Act
2003 (Act 651).
Industrial
Relations Act 1971 English
statute
Trade Union
and Labour Relations Act 1974
English statutes
CASES
REFERRED TO IN JUDGMENT
Ashun v Accra
Brewery Ltd. [2009] SCGLR 81.
Attorney-General v Faroe
Atlantic Co. Ltd. [[2005-2006]
SCGLR 271.)
Mosi v
Bagyina [1963] 1GLR 337 SC.
Akele v Cofie
[1961] GLR 173
University of
Ghana v Mensah [1984-86] 2 GLR
622
Laguda v
Ghana Commercial Bank
[200-2006] SCGLR 388
Aboagye v
Ghana Commercial Bank
[2001-2002] SCGLR 797
Lever Bros
Ghana Ltd v Annan [1989-90] 2
GLR 385;
Presbyterian
Church Agogo v Boateng [1984-86]
2 GLR 523;
Edward Nasser
& Co.Ltd v Abu Jawdi [1965] 2
GLR 532;
Boston Deep
Sea Fishing & Ice Co v Ansell
(1888) 39 Ch.D. 339
Lever
Brothers Ghana Ltd v Annan
(Consolidated) [1989-90] 2 GLR
385
Boston Deep
Sea Fishing & Ice Company v
Ansell (1888) 39 ChD 339
Presbyterian
Hospital, Agogo v Boateng
[1984-86] 2 GLR 381, CA
BOOKS
REFERRED TO IN JUDGMENT
Halsbury’s
Laws of England (3rd
ed.) at page 485, para 938
DELIVERING
THE LEADING JUDGMENT
DR DATE-BAH, JSC:
COUNSEL
JAMES
MARSHALL BELIEB FOR THE
APPELLANT.
GEORGE
THOMSON FOR THE RESPONDENT
______________________________________________________________________
J U D G M E N
T
______________________________________________________________________
DR DATE-BAH,
JSC:
The Facts;
The plaintiff
was the defendant company’s
Inland Container Depot (or “ICD”)
officer stationed at Kumasi. He
was in charge of the defendant’s
inland container depot there.
By a letter of September 19,
2006, the defendant terminated
the plaintiff’s appointment.
The letter based the
justification for this action on
the findings made by a
subcommittee set up by the
defendant to inquire into the
matter. The subcommittee had
made the finding that the
plaintiff had failed to exercise
the required supervision over
the Kumasi depot by allowing an
unauthorized third party truck
to be brought into the depot,
contrary to company policy. The
letter stated that the
plaintiff’s failure to exercise
effective supervision had placed
the defendant at enormous risk.
The
subcommittee’s inquiry had been
necessitated by the following
episode: a senior employee of
the defendant visited its Kumasi
depot on 17th August
2006 and found an unauthorized
vehicle, which did not belong to
the defendant, parked there, in
breach of company regulations.
This incident triggered the
setting up of an investigative
sub-committee by the defendant
to inquire into it. According
to the eventual report of the
sub-committee, its terms of
reference were:
1.
“To ascertain whether Kenneth
Kpedor, an employee of Maersk
Ghana Ltd. Owns/manages the
unauthorized third party truck,
in question with registration
number GR 3109 E;
2.
To establish whether Yussif
Seidu, also an employee of
Maersk Ghana Ltd and driver of
the said truck, obtained the
consent of Kenneth Kpedor before
driving the said truck into the
depot;; and
3.
To ascertain whether Felix Bani,
ICD Supervisor, was aware of the
presence of the third party
truck at the Kumasi depot.”
The
sub-committee found that the
plaintiff was aware of a third
party truck in the yard of the
Kumasi depot on 27th
July 2006, but did not take
adequate steps to ensure that
the truck was moved out within a
reasonable time. It further
concluded that the presence of
the truck on the defendant’s
premises had security
implications which the
plaintiff, in his capacity as
depot supervisor, should have
been aware of. The subcommittee
however found that the plaintiff
was not aware of the presence of
the unauthorized truck in the
depot on 16th August
2006.
Whilst the
plaintiff’s employment was
terminated, the other two
employees whose conduct was also
investigated by the subcommittee
were only served with warning
letters. Being dissatisfied
with the defendant’s action
against him, the plaintiff
brought action against the
defendant for:
1.
“A declaration that the
termination of Plaintiff’s
appointment by Defendant on
September 19 2006 is unlawful,
unfair and without any basis
whatsoever.
2.
An order for the immediate
reinstatement of Plaintiff and
the payment of all benefits lost
since September 19 2006 plus
interest
OR
3.
In the alternative payment of
compensation for the unfair
severing of working relationship
4.
Costs.”
When the
plaintiff’s appointment was
terminated, there was a
collective bargaining agreement
in force between the Maersk
Ghana Staff Association and the
defendant. This agreement
provided that it was to form a
part of the terms and conditions
of employment set out in the
defendant’s employees’ contracts
of employment. This collective
bargaining agreement had
separate and distinct provisions
on summary dismissal and on
termination.
Clause 40, on
termination, states as follows:
“40.
Termination Notice
Ending
employee/employer relations
shall be voluntarily or
involuntarily. An appointment
may be terminated by either the
Company or an employee, given in
writing to the other, the
appropriate notice or payment in
lieu thereof.
30
An
appointment for an employee on
probation may be terminated by
either the Company or the
employee given in writing to the
other for one-week notice.
Job
Abandonment: In the event that a
staff is absent from work for 5
working days or more, without
proper authorization from
management; this will be
considered job abandonment and
the staff employment with Maersk
Ghana will be terminated.”
On the other
hand, clause 34 provided that:
“34.
DISCIPLINARY PROCEDURES
Maersk Ghana
Limited has the right to
discipline or discharge any
employee for sufficient and
reasonable cause including
failure to comply with
reasonable rules and for proven
offences.
a.
Summary Dismissal
i.
In all cases in which an
employee is found guilty of
serious misconduct including,
but not limited to, such
offences as stealing, fraud,
falsification of records or
gross dereliction of duty, he
shall be summarily dismissed and
shall forfeit all his
entitlements except his personal
contribution to the Provident
Fund. If the employee is
summary (sic) dismissed on any
ground which resulted in
financial loss to the Company
such loss shall be deducted from
his entitlements.
ii.
Except in cases leading to
summarily (sic) dismissal, for
the first offence of an employee
against the rules of the Company
or on matters of discipline, he
will be given a written warning
with a copy placed on employees
file.
iii.
…”
The
plaintiff’s action against the
defendant on these facts was
dismissed in the High Court. He
appealed to the Court of
Appeal. The Court of Appeal
dismissed the appeal, but varied
the High Court judgment to the
extent of awarding the plaintiff
compensation for the defendant’s
non-compliance with the relevant
provisions of the collective
bargaining agreement. Ofoe JA
had the following explanation
for the court’s view on this
matter:
“The
respondent has every right to
terminate the appointment of any
of its workers but subject to
law. In this case there was
Collective Agreement between the
parties, tendered as Exhibit D.
It has provisions for summary
dismissal and that for
termination. For our purposes
we are concerned with
termination which is provided
for under section 40 of the
Collective Agreement. Under
this provision an appointment
can be terminated by either the
company or an employee giving in
writing to the other 30 days
notice or salary in lieu. There
is no evidence the respondent
complied with this notice period
when it decided to terminate the
appellant’s employment with it.
What we have is rather that the
termination letter was addressed
September 19, 2006 to take
effect September 22, 2006.
(Refer to Exh. B, the
termination letter). It was the
choice of the respondent whether
to dismiss or terminate the
employment. But immediately it
decides on one, then the
procedures under the collective
agreement to effectuate the
choice should be complied with.
The company is in clear
violation of the Collective
Agreement and it is such
violation that the Supreme Court
in the case of Kobi vrs Ghana
National Manganese Company
Limited (2007-2008) 2 SCGLR 771
castigated. What benefit should
accrue to the appellant arising
out of this violation?...”
Ofoe JA
proceeded later to award the
appellant three months’ salary
by way of compensation for the
non-compliance with the notice
period of 30 days. In spite of
this compensation, the appellant
remains dissatisfied and has
appealed to this Court against
the judgment of the Court of
Appeal. The respondent did not
cross-appeal on the award of
compensation.
The
appellant’s grounds of appeal
are:
“a) The
Court of Appeal erred in law
when it held that the issue of
lack of jurisdiction or mandate
of the committee of enquiry to
investigate the 27th
to 29th July incident
could not be raised on appeal
and thus failing to find that
the findings thereof and all
consequential decisions
therefrom were null and void.
Particulars
of Error of Law
i.
Failure of the Court of Appeal
to find that the issue of
jurisdiction or lack thereof of
an investigating body is a legal
issue which can be raised at any
time even on appeal.
ii.
Failure of the Court of Appeal
to find that the findings of the
committee of enquiry on the 27th
to 29th July incident
were null and void because the
committee lacked the mandate to
investigate that incident.
iii.
Failure of the Court of Appeal
to find that the decision to
terminate the Appellant’s
employment on the basis of the
committee’s findings on the 27th
to 29th July incident
was null and void.
b)
The Court of Appeal, failed to
draw an inference of unfair
termination from its own finding
that the Appellant has been
exonerated by the committee of
enquiry’s report.
c)
The Court of Appeal, failed to
find that there was unfair
termination of Appellant’s
employment by the Respondent
when the principal actors in
“placing the company at risk”
were only warned.
d)
The Court of Appeal erred when
it failed to find that there was
unfair termination having come
to the conclusion that the
termination of the Appellant was
wrongful thereby denying
Appellant substantial
compensation from Respondent.
e)
The judgment of the Court of
Appeal was against the evidence
on the record.”
The Law
These facts
call for a restatement of the
Ghanaian common law on the
termination of contracts of
employment and the extent to
which it has been modified by
the statutory provisions in the
Labour Act 2003 (Act 651). It
remains the common law that the
remedy available to an employee
who has been wrongfully
dismissed or terminated is an
action for damages. An employee
cannot be awarded an order for
his reinstatement into a job
from which he has been removed
unlawfully, unless there is a
public law element which
requires otherwise. See Lt.
Col. Ashun v Accra Brewery Ltd.
[2009] SCGLR 81. A
reinstatement would be
equivalent to specific
performance of a contract of
employment, which is not
permissible. It is settled law
that contracts of employment, in
general, may not be specifically
enforced at the suit of either
party. There is a sound policy
underlay to this rule. It has
to do with the courts
restraining themselves from
interfering with personal
liberty. The essence of the
policy is sometimes expressed in
the saying that contracts of
employment are not contracts of
servitude. It would not be wise
to compel an employee to work
for an employer he does not want
to work for, nor conversely to
compel an employer to employ an
employee it does not want to.
There is a large element of
personal relationship in many
employment contracts which would
make them unworkable if the
parties were compelled to work
together. However,
increasingly, modern legislation
has been intervening to give
employees a right to
reinstatement. This is in
recognition of the fact that the
modern relationship of an
employer to an employee may have
less of the personal element of
the master and servant
relationship in response to
which the equitable principle
developed, that contracts of
employment should not be
specifically enforced.
In Ghana, the
statutory intervention to give
employees the right to
reinstatement has not been to
set aside the equitable
principle refusing specific
performance to contracts
involving personal service.
Rather, it is a remedy that is
made available to the Labour
Commission established under the
Labour Act 2003.
Sections 62
and 63 of the Labour Act 2003
(Act 651) set out clearly the
law on fair and unfair
termination of employment, as
follows:
“Section
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 restriction imposed on the
worker prohibiting the worker
from performing the work for
which he or she is employed.
Section
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 a trade union;
(b) that the
worker seeks office as, or is
acting 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 the
case of a woman worker, due to
the 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 recognised 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
his or her employment; or
(i) that the
worker refused or indicated an
intention to refuse to do any
work normally done by a worker
who at the time was taking part
in 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
of 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 work place.
(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 of
the Act provides that a worker
who claims that his employment
has been unfairly terminated may
present a complaint to the
Labour Commission established
under the Act. If the
Commission finds that the
termination of the worker is
unfair, it may give him or her
one of three remedies specified
in the Act: an order to the
employer to re-instate the
worker from the date of
termination of employment; an
order to the employer to
re-employ the worker in the work
for which the worker was
employed before the termination
or in any other reasonably
suitable work on the same terms
and conditions enjoyed by the
worker before the termination;
or order the employer to pay
compensation to the worker.
These statutory remedies are
made available to the Commission
but not, at least expressly, to
the courts.
What then is
the impact on the common law of
these statutory provisions?
These provisions, with respect,
are to be construed as not
directed at the courts. Rather,
what can be construed as
addressing the courts is section
15 of the Act, which provides as
follows:
“Section
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 his or her work due to
(i) sickness
or accident; or
(ii) the
incompetence of the worker; or
(iii) proven
misconduct of the worker.”
These
provisions are complemented by
sections 18 and 19 of the Act in
the following terms:
“Section
18—Remuneration on Termination
of Employment.
(1) When a
contract of employment is
terminated in the manner stated
in section 15, the employer
shall pay to the worker,
(a) any
remuneration earned by the
worker before the termination;
(b) any
deferred pay due to the worker
before the termination;
© any
compensation due to the worker
in respect of sickness or
accident; and
(d) in the
case of foreign contract, the
expenses and necessaries for the
journey and repatriation
expenses in respect of the
worker and accompanying members
of his or her family in addition
to any or all of the payments
specified in paragraphs (a), (b)
and (c) of this subsection.
(2) The
employer shall pay to the worker
not later than the date of
expiration of the notice all
remuneration due to the worker
as at that date.
(3) Where no
notice is required, the payment
of all remuneration due shall be
made not later than the next
working day after the
termination.
(4)
Notwithstanding section 17(1),
either party to a contract of
employment may terminate the
contract without notice if that
party pays to the other party a
sum equal to the amount of
remuneration which would have
accrued to the worker during the
period of the notice.
Section
19—Exception.
The
provisions of sections 15, 16,
17 and 18 are not applicable
where in a collective agreement
there are express provisions
with respect to the terms and
conditions for termination of
the contract of employment which
are more beneficial to the
worker.”
It is against
the background of these general
principles of the law of
employment contracts that the
appellant must make out his
case.
The grounds
of appeal
The gravamen
of the complaint in the
appellant’s first ground of
appeal is his contention that
the findings of the subcommittee
of enquiry were null and void
because the committee lacked the
mandate to investigate that
incident. We agree with the
appellant that he was entitled
to raise before the Court of
Appeal an issue of law arising
from the record, even if it was
not raised at the trial court.
(See Attorney-General v Faroe
Atlantic Co. Ltd. [[2005-2006]
SCGLR 271.) However, we do not
consider that the appeal can
succeed on this first ground.
Assuming without admitting that
the subcommittee’s findings were
ultra vires, we do not consider
that this would derogate from
the defendant’s common law right
to dismiss the plaintiff for
proven misconduct. Once there
are facts on the record
justifying the
defendant/respondent dismissing
the appellant for misconduct,
the fact that the findings were
made by a committee that was
acting, allegedly, ultra vires,
is irrelevant. The appellant’s
argument is constructed on a
misconceived extension of public
law notions into the private
law. Thus he states in
paragraph 2.1.10 that:
“It is
therefore submitted on behalf of
the Appellant that the appeal
succeeds on this first ground
since the said findings of the
committee is void as it was made
without jurisdiction and
therefore the Appellant is
entitled to have the same set
aside and both the trial High
Court and the Court of Appeal
were under a legal obligation to
set aside even suo motu. See
MOSI V BAGYINA [1963] 1GLR 337
SC.”
Mosi v
Bagyina and other cases cited by
the appellant in his Statement
of Case such as Akele v Cofie
[1961] GLR 173 and University
of Ghana v Mensah [1984-86] 2
GLR 622 are all public law
cases. The ultra vires doctrine
is an important building block
in the courts’ construction of
their jurisdiction to exercise
control over administrative
action. However, judicial
control of administrative action
is part of public law. The
courts have not set themselves
up to exercise oversight over
the administrative decisions of
private enterprise units. Thus,
for instance, in the concurring
opinion of Date-Bah JSC in
Laguda v Ghana Commercial Bank
[200-2006] SCGLR 388 at pp.
401-2, on the related public law
doctrine of audi alteram partem,
he said:
“I am not
persuaded that, in a commercial
setting, in the absence of a
contractual provision to the
contrary, an employer is bound
to comply with the rules of
natural justice before
dismissing an employee for
misconduct. At common law, it
is enough if the facts
objectively establish cause for
dismissal. In Aboagye v Ghana
Commercial Bank [2001-2002]
SCGLR 797 at pp. 828-831, Adzoe
JSC correctly expounds the
common law position on summary
dismissals. He said (at pp
828-829):
“But it has
been argued that the conduct of
the plaintiff, viewed in the
context of the nature of the
business of banking, constitutes
such a grave misconduct that it
was lawful to dismiss him even
without a hearing. The case of
Lever Bros Ghana Ltd v Annan
[1989-90] 2 GLR 385;
Presbyterian Church Agogo v
Boateng [1984-86] 2 GLR 523;
Edward Nasser & Co.Ltd v Abu
Jawdi [1965] 2 GLR 532;
Halsbury’s Laws of England (3rd
ed.) at page 485, para 938 were
cited in support. The principle
relied on is this:
“A servant whose conduct is
incompatible with the faithful
discharge of his duty to his
master may be dismissed …
Dismissal is also justified in
the case of a servant …If his
conduct has been such that it
would be injurious to the
master’s business to retain
him.”
I agree that
this is the common law
position. Bowen LJ had
expressed it in 1888 when he
said that it is right for the
employer to instantly dismiss
the employee if the latter’s
conduct is not only wrongful and
inconsistent with his duty
towards his master but also
inconsistent with the
continuance of confidence
between them: see Boston Deep
Sea Fishing & Ice Co v Ansell
(1888) 39 Ch.D. 339 at 363.”
It is true
that Adzoe JSC then proceeds to
consider English cases based on
the Industrial Relations Act
1971 and the Trade Union and
Labour Relations Act 1974 to
support his perception that
there is a modern tendency to
discourage summary dismissals.
With respect, these English
statutes cannot affect the
common law principles that the
Ghanaian courts apply.
Thus, once
there was evidence on record
sufficient to justify the
conclusion that the plaintiff’s
behaviour amounted to
misconduct, the learned Trial
Judge did not have to concern
himself with whether there had
been compliance with the rules
of natural justice, unless there
was a contractual provision to
the contrary.”
As a matter
of history, the English courts
(whose persuasive precedents
have shaped much of Ghanaian
administrative law), in
developing their control over
administrative (i.e. public)
action, relied on a doctrine of
ultra vires. They have
conceived of administrative
(i.e. public) power as derived
power. It is generally power
derived from the Constitution or
a statute. It is a paramount
principle of public law that
public or administrative bodies
are supervised to ensure that
they keep within the bounds of
their jurisdiction or area of
allocated authority. This is an
important incident of
constitutionalism. A similar
policy rationale does not exist
for the courts supervising
delegated decision-making in the
private sector. Indeed, it
would be against public policy
to subject private sector
business units to the same
control over their
administrative decisions as
public bodies. The private
sector needs more flexibility
and is not expected to operate
under the same rules of the
game, so to speak, as government
and public bodies. Accordingly,
the argument of the appellant
based on its first ground of
appeal is flawed and there is no
need to probe deeper to
ascertain whether indeed the
subcommittee exceeded its terms
of reference. What is important
is that the inquiry, whatever
its terms of reference, did in
fact expose misconduct by the
appellant. Lever Brothers Ghana
Ltd v Annan (Consolidated)
[1989-90] 2 GLR 385 is authority
for this proposition. In that
case Osei-Hwere JSC explained,
delivering the judgment of the
Court of Appeal (at pp.388-9),
that:
“The learned
trial judge in our view stated
the correct principle of law
when he said:
“The law is
that where an employee has, in
fact, been guilty of misconduct
so grave that it justifies
instant dismissal, the employer
can rely on that misconduct in
defence of any action for
wrongful dismissal, even if at
the date of the dismissal the
misconduct was not known to
him: see Boston Deep Sea
Fishing & Ice Company v Ansell
(1888) 39 ChD 339 at 363, CA.”
…
It will be
noted from the above quotation
that the trial judge all but
found the misconduct or
dishonesty of the plaintiffs
proved. His reluctance in
saying so seems to stem from his
notion that they were not given
the opportunity to face their
accusers. From the principle of
law also quoted above which
entitles an employer to dismiss
summarily an employee he
considers guilty of serious
misconduct, such as dishonesty,
it is evident that the employer
is not obliged to set up an
investigative process to give
the employee a fair hearing:
see Presbyterian Hospital, Agogo
v Boateng [1984-86] 2 GLR 381,
CA. What is required is that
when the employee’s dismissal is
brought to question in a court
of law the employer’s action can
be vindicated.”
The first
ground of appeal is therefore
dismissed.
The second
ground of appeal is in effect a
re-run of the first ground of
appeal, in that it also relies
on the ultra vires doctrine,
which we have held to be
inapplicable to the facts of
this private law case. The
ground relies on the following
passage from the Court of
Appeal’s judgment, delivered by
Ofoe JA:
“What I find
a little incongruous is the
terms of reference of the
committee and its findings.
Reading the investigative
reports, it is clear that the
mandate of the committee was to
investigate the 17th
August, 2006 incident. But the
committee ended up making
findings in respect of the 27th
to 29th July, 2006
incident. It is this incident
which was not within the terms
of reference that the committee
faulted the appellant (sic). In
respect of the 16th
-17th August, 2006
which the committee was mandated
to investigate, the appellant
was exonerated. Counsel for the
appellant contends, rightly in
my view, that it was improper
for the committee to have
expanded their mandate to
include events of the 27th
to 29th July and also
totally unacceptable for the
respondent to have relied on
such findings to terminate the
appointment of the appellant.
But at the trial court that was
not the case of the appellant.
There is no reason to entertain
this submission now else I am
accused of substituting a case
not sought for by the
respondent.”
The
appellant, therefore, argues
that the respondent by relying
on the ultra vires findings of
the subcommittee had shown that
it was bent on finding an excuse
to terminate the appellant’s
employment, even though there
was no justification for it.
Once it is accepted that in the
private sector the findings of
the sub-committee could be
relied upon by the respondent,
even if ultra vires, this ground
of appeal also falls away.
The third
ground of appeal is, in net
effect, that because the
principal actors in “placing the
company at risk”, namely Mr.
Kenneth Kpedor and Mr. Yussif
Seidu, had only been given a
warning, it was unfair for the
appellant’s employment to be
terminated. It is unclear to us
from where this concept of
unfair termination as a cause of
action before the courts is
derived. It is certainly not a
common law principle. Neither
is it provided for in the Labour
Act 1963 as a concept to be
applied by the courts at the
suit of a party to an employment
contract. It is not provided
for in the collective bargaining
agreement either. The appellant
maintains that the respondent’s
act of termination was
capricious, without basis and
hence unfair. The facts on
record do not support this
allegation. There is undisputed
evidence on record which amounts
to misconduct by the appellant.
The fact that other employees of
the defendant who, in the
appellant’s view were more
culpable than he, had been given
a lighter disciplinary sanction
is not a legitimate basis for a
legal challenge of his own
termination. The appellant’s
argument that the appellant’s
termination was unfair because
it ignored section 34(a) (ii) –
(vi) of the collective
agreement, requiring that a
warning letter be given, is
fallacious, since this
requirement for warning letters
expressly excludes cases leading
to summary dismissal. In any
case, the common law concept
that would apply, given the
appropriate facts, is that of
wrongful dismissal and not the
novel notion of unfair
termination, which is not known
to either the Ghanaian common
law or the Labour Act 2003, in
relation to the courts.
Accordingly, the third ground of
appeal is also dismissed as
unmeritorious.
Under the
fourth ground of appeal, the
appellant contends that the
Court of Appeal erred when it
failed to find that there was
unfair termination, after having
come to the conclusion that the
termination of the Appellant was
wrongful, thereby denying the
Appellant substantial
compensation from the
respondent. This ground also
relies on the cause of action of
“unfair termination”, which we
have shown to be non-existent.
It is equally unmeritorious.
The Court of Appeal regarded as
a basis for the award of
compensation to the appellant
the fact that the defendant did
not comply strictly with the
procedure laid out in the
collective bargaining agreement
for the termination of the
contract. That failure by the
respondent to comply with the
procedure does not, however,
detract from the fact that the
appellant was guilty of
misconduct that could have
grounded his summary dismissal,
with loss of rights. The fact
that the defendant/respondent
opted for termination, even if
how it did it was non-compliant
with the procedure set out in
the collective bargaining
agreement, was thus to the
advantage of the appellant. It
is thus hardly a ground for
complaint. Accordingly, the
fourth ground is dismissed.
Finally, the
appellant argues that the
judgment of the Court of Appeal
was against the evidence on the
record. There are concurrent
findings by the two courts below
that the appellant put the
defendant at enormous risk and
there was evidence from the
findings of the subcommittee
that could serve as a credible
basis for the conclusions of the
two courts. Accordingly, there
is no basis for disturbing those
findings. This ground is without
merit and should be dismissed.
Conclusion
In the
result, we dismiss all the
appellant’s grounds of appeal.
The appeal is accordingly
dismissed in its entirety as
being unencumbered by any merit.
[SGD] DR. S.K.
DATE-BAH
JUSTICE OF THE SUPREME COURT
JONES DOTSE
JSC:
I have been
privileged to have read the
draft of the judgment which has
just been delivered by me under
the authority of my respected
brother Dr. Date-Bah JSC.
I agree with
the analysis of the case, as
well as the conclusions reached
therein. In agreeing to the
conclusion that the appeal lacks
merit and should be dismissed,
it is pointless to attempt to
add anything to this judgment.
This is
because, Dr. Date-Bah JSC in his
usual style has not only taken
pains to discuss the legal
issues applicable in this
appeal, but has as it were taken
the opportunity to restate the
Ghanaian Common Law position on
the termination of contracts of
employment and the extent to
which these have been modified
by the statutory provisions in
the Labour Act 2003 (Act 651).
I therefore
endorse the decision that the
appeal herein fails and is
accordingly dismissed.
[SGD]
J. V. M DOTSE
JUSTICE OF THE SUPREME COURT
[SGD]
ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
[SGD]
B. T. ARYEETEY
JUSTICE
OF THE SUPREME COURT
[SGD]
V. AKOTO-BAMFO [MRS.]
JUSTICE OF THE SUPREME COURT
COUNSELS;
JAMES
MARSHALL BELIEB FOR THE
APPELLANT.
GEORGE
THOMSON FOR THE RESPONDENT. |
