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SAMMY ADDO WITH HIM
ABOAGYE FOR DEFENDANTS
APPIAH-KUBI FOR
PLAINTIFFS
JUDGMENT OF ANIM J.A.
This is an appeal from
the judgment of the High Court, Accra, presided over by
His Lordship Justice Nana Gyamera Tawiah dated 20th July
2001. The Plaintiffs/Respondents hereinafter referred to
as "the Plaintiffs) issued a Writ against the
Defendants/Appellants (hereinafter referred to as "the
Defendants") for the following reliefs, namely:—
(a) An order compelling
Defendants to pay to Plaintiffs their redundancy awards
with interest thereon at the prevailing bank rate from
14th November 1995 to date of final payment and any
other benefits or entitlements due to them.
(b) An order compelling
Defendants to pay to SSNIT the Social Security
contributions deducted from Plaintiffs.
(c) Any other relief or
reliefs this Honourable Court may deem fit.
On 19th February 1997,
Summons for Directives was taken: issues contained in
the Plaintiffs Summons for Directions filed on 21st
January 1997 as well as the additional issues filed by
the Defendants on 13th February 1997 were set down for
trial. The suit was thus adjourned to 13th March, 1997
for hearing.
On 13th March 1997
hearing of the suit did not take place. The court
adjourned the case to 27th May 1997 for hearing and
continuation on 26th May and 29th May 1997. On 29th May
1997 the Plaintiffs opened their case and led evidence.
After a series of hearing from both the Plaintiffs and
the Defendants, judgment was delivered on 20th July
2001. Aggrieved by and dissatisfied with this judgment
the Defendants have appealed to this court. In the
Notice of Appeal filed on 7th August 2001, three main
grounds of Appeal set out.
Ground (a) was
formulated as follows:—
"The Court erred in Law
when it failed to hold that the Plaintiff's dismissal
was as a result of illegal strike action they embarked
upon."
In arguing this ground
Learned Counsel for the Defendants submitted that an
illegal strike is an unauthorised strike or strike not
sanctioned by those with authority to declare it.
According to counsel the judgment accepts the
Plaintiffs’ contention and evidence that the working
relationship between the workers and the Defendant
Company is governed or regulated by a Collective
Agreement i.e. exhibit "A". This document was signed by
the workers’ mother union i.e. TEGLEU and the Defendant
company. Thus any variation of the Agreement has to be
done by both parties. Counsel submitted that the
authority or body to declare a strike or demonstration
by the workers for redress is TEGLEU. Learned Counsel
submitted further that the judgment does not say that
the strike action embarked upon by the workers was
authorised by TEGLEU or even the Local Union acting on
behalf of TEGLEU. Therefore, contends Counsel, the
strike action and the demonstration embarked upon by the
Plaintiffs were unauthorised and therefore illegal and
the dismissal of the Plaintiffs was warranted under
Article 34 of the Collective Agreement, exhibit "A".
Counsel relied on the leading case of NARTEY TOKOLI VRS.
VALCO (1987-88) GLRD 100 to buttress his point.
Learned Counsel for the
Respondents fiercely resisted these submissions and
argued that they were untenable for the following
reasons, namely, that the judgment recognises the
Defendant' case that as a result of frequent power
failures which had resulted in loss of man hours and
huge financial loss, management resolved to vary the
collective agreement to ask workers to work to cover the
hours lost. That the Collective Agreement was signed by
the workers' mother Union i.e. TEGLEU and the Defendant
company. That variation of the said agreement was to be
done by both parties i.e. TEGLEU and Spintex Co. Ltd.,
the Defendant. Counsel went on to state that this
variation, exhibit "B" requiring workers to work to
cover was made unilaterally by the Defendants, which was
a blatant breach of the Collective Agreement. Counsel
submitted that the variation was illegal and void ab
initio, and being an illegal act anything done in
consequence of that was also illegal and could not
stand.
Learned Counsel
submitted further that the judgment also recognised that
the practical effect of Exhibit "B" was that the workers
had attempted to waive their rights under Exhibit "A"
which sins against section 10(4) of the Industrial
Related Act 1965 (Act 299). Learned Counsel also
referred us to the case of NARTEY TOKOLI v VALCO
(1987-88) GLRD 100, the very case cited by counsel for
the Defendants.
Counsel argued further
that the judgment was emphatic in declaring that the
suspension of the redundancy exercise coupled with
Management’s Notice that any awoken who was desirous of
leaving the company must resign was more damaging to the
extent that this was unfair and oppressive as the
workers were faced with two illegalities, namely;
Either (a) “Work to
Cover” or
(b) resign from the
company
Learned Counsel
submitted that the Plaintiffs were demonstrating against
an illegal order/orders of the Defendant. That, indeed,
they demonstrated in order to awaken management to do
what was right and legal.
Learned Counsel finally
submitted that the judgment recognised that the
Plaintiffs’ demonstration was legal as such act was
authorised by Article 21(1)(d) of the 1992 Constitution.
That it is one of such demonstrations: one against an
oppressive act, which was envisaged by the framers of
the 1992 Constitution who considered it prudent to make
it a constitutional provision which all Ghanaians are
required to uphold. Therefore, submits counsel, the
learned trial judge was right in not supporting the
dismissal on grounds of illegal strike action.
Since Counsel on either
side relies heavily on the leading case of NARTEY TOKOLI
& ORS. VOLTA ALUMINIUM CO. LTD. (1989–90) GLRD 111 S.C.
in support of his submissions, it is only fair that the
search light is thrown on the principles enunciated
therein and to find out its relevance to the case before
me.
The Supreme Court,
after hearing both counsel held, allowing the
Plaintiff’s appeal in part and dismissing the
Defendants’ cross-appeal that (1) under the Provisions
of the Industrial Relations Act, 1965, (Act 299), SS 5,
6, 7 and 10 the agreement (LOA) was in relation to the
Collective Agreement, invalid and null and void because
(a) the parties who entered into it had no legal
capacity to negotiate any employment terms or redundancy
conditions for Valco and its employees (b) Section 10(2)
and (4) of the Industrial Relations Act 1995 Act 299
specifically and mandatorily denied right to an employee
ordered by a collective agreement to waive such rights
for new ones: (c) in purporting to declare redundancy
the Defendants did not follow the procedural machinery
set up under the collective agreement i.e. Article 14 in
breach of section 10 of Act 299. The Plaintiffs were
therefore entitled to a declaration that the purported
termination of their employment was null and void and of
no effect STEVENSON v UNITED ROAD TRANSPORT UNION (1977)
2 ALL ER 941 CA; and GHANA COCOA MARKETING BOARD v
AGBETTOH, Court of Appeal, 8 November 1984: digested in
(1984-86) GLRD 16 applied.
In the case before me
the Plaintiffs were former employees of the Defendant
Company; they had worked between seven months to twenty
two years. The working relationship between the
employees and the Defendant company was governed by a
Collective Agreement, Article 34 of which states:—
“When an employee
reports for duty on his normal working days and due to
no fault of the employee he is ordered to leave or stop
work by his employer or any person in the authority of
the employer before the employee can complete the days
full hours work, he shall receive the full pay for the
day.”
On 10th November, 1995
the Plaintiffs saw on the employer’s Notice Board notice
from the company: a copy of this notice was tendered in
evidence as exhibit “B” and it read:—
“Management has decided
as a policy that any time lost as a result of power cut
will be covered by the workers. Any worker who is unable
to abide by the policy should contact the Personnel
Department to be declared redundant.”
Exhibit “B” was
followed by another notice exhibit “C” which required
all those employees who wished to be declared redundant
to submit their names to the Personnel Department by a
deadline date of 15th November 1995. The Plaintiffs were
amongst those who submitted their names to be declared
redundant. They were also made to understand that
because of the number of employees involved payment
would be made piece meal.
According to the
Plaintiffs, the Defendants started paying those who had
opted to be declared redundant on 14th November 1995
even before the deadline. By 15th November 1995 i.e. the
deadline, the Defendant had paid about 50 out of the
number applying. The Defendants asked the Plaintiffs to
continue to work while arrangements were being made for
them to be paid. On the strength of this promise the
Plaintiffs were waiting to be paid. On 24th November
1995 the Plaintiffs saw another notice on the Notice
Board stating that Management had suspended the
redundancy exercise and that any employee who wished to
leave the company might resign. The Plaintiffs were
aggrieved by the decision and they protested against it
by a demonstration which took the form of clocking for
the day but instead of working the Plaintiffs gathered
themselves together on the premises of the factory. The
Plaintiffs would not go back to work unless they were
paid. The Plaintiffs were dismissed by the Defendant
Company on 24th November 1995.
It is to be observed
that exhibit “A” i.e. the collective Agreement was
signed by the workers’ mother Union i.e. TEGLEU and the
Defendant Company. On the evidence TEGLEU was not
represented in the negotiation leading to the issuance
of exhibit “B” i.e. the Notice to work to cover. The
participation of the local Union in the negotiation
could not make TEGLEU a party to exhibit “B” in that
there was no evidence from the record that TEGLEU had
delegated its powers under exhibit “A” to negotiate with
SPINTEX LTD. To the Local Union. No evidence was
tendered to show that the Local Union had been
authorised by TEGLEU to act for them: the local Union
therefore lacked the capacity to act for the employees.
It is in this light that I agree with Learned Counsel
for the Plaintiffs that exhibit “B” was a nullity and
therefore unenforceable against the Plaintiffs.
In the present case
since exhibit “B” sought to amend Article 34 of the
Collective agreement, exhibit “A”, the practical effect
of exhibit “B” was that the employees sought to waive
their rights under exhibit “A”. On the authority of the
case cited above this was not permissible under section
10(4) of Act 299.
It was no surprise
therefore that the mother union TEGLEU on hearing of the
redundancy exercise (based on exhibit “B”) quickly wrote
to the Defendant Company on 13th November 1995 to
suspend the exercise. Coincidentally, however, the
redundancy exercise was not suspended until 24th
November 1995 when another notice was issued by the
Defendants to suspend the exercise.
Meanwhile, according to
PW1, Francis Victor Kofi Gakpadzi, while they were
waiting to be paid their redundancy awards, the Company
started threatening the employees with warning letters
and termination letters. That the allegation is not
untrue can be gleaned from the content of exhibit “J”
suspension letter dated 24/11/95. It reads:—
“SUSPENSION OF
REDUNDANCY EXERCISE”
In view of the shear
numbers of workers opting to leave and the attendant
production problems unanticipated not excluding cost
involved and disruption of the normal operations of the
Company; coupled with pockets of unrest and incidents
the company has decided to suspend the exercise until
appropriate arrangements have been put in place. Until
the resumption of the exercise the following shall
apply:—
(a) Workers whose names
have been lodged with the Production Manager are assured
of non-intimidation, fair play in the issuance of
warning letters and non-discrimination.
(b) All warning letters
should be scrutinized by the Union Executives in
Consultation with the Personnel Manager.
(c) All other
termination exercise not related to warning letters
should follow the usual Personnel Department/Union
investigative processes.
Despite these
assurances and the fact that the exercise has been
suspended any worker wishing to leave the company may
resign. It is hoped workers will go about jobs
peacefully and that if they have any grievances, they
will follow laid down procedures to avoid
embarrassment.”
This notice was clearly
in breach of the Industrial Relations Act 1965 (Act 299)
and the employees could have ignored it. However, on the
evidence of PW1 the employees were exercising their
Constitutional right to demonstrate peacefully against
an aggressive policy initiated by the Defendant Company.
(See Article 21 (d) of
the 1992 Constitution.) Was the claim by the Defendants
that the demonstration started at about 8:00 a.m. to
12:30 p.m. and in the process the Ex-Personnel Manager
was heckled; and had his shirt torn; and also the
company’s property was destroyed established?
Surprisingly, the Ex-Personnel Manager who was alleged
to have been heckled in the course of the demonstration
and had his shirt torn gave evidence as PW2. When he
mounted the box he did not testify that any worker was
manhandled. He did not say that he was heckled and that
he had his shirt torn. Neither did he testify that the
company’s properties were destroyed.
After the Plaintiffs
had closed their case the Acting Personnel Manager gave
evidence as DW1. He testified in his evidence-in-chief
that the workers had assaulted the Ex-Personnel Manager.
Under cross-examination the following encounter took
place between him and counsel.
Q: Plaintiffs did not
destroy any property of the Company.
A: They beat up the
Personnel Manager.
Q: Who was he?
A: Mr. David K.
Vigar.
Here was a witness who
had alleged that the Ex-Personnel Manager had been
assaulted in the course of a demonstration by the
workers.
Curiously enough the
man who was alleged to have been assaulted had given
evidence where he did not testify to any such complaint.
In these circumstances could any weight be placed on the
evidence of DW1? Certainly not. And the same applies to
the weight to be attached to the evidence of DW2 who
also testified that the Ex-Personnel Manager had been
assaulted.
In my view the case of
LEVER BROTHERS GHANA LTD. v. ANNAN: LEVER BROTHERS GHANA
LTD. v DANKWAH (Consolidated) (1989-90) GLRD 114, CA.;
relied upon by Learned Council for the Defendants is
distinguishable from the facts in the instant case. In
that case after the Court of Appeal had found that the
Learned trial judge failed to make a positive finding on
the allegation of dishonesty against the Plaintiffs even
though there was ample evidence on record in Support of
such a finding, it allowed the appeal and held:—
“Where an employee had
been guilty of misconduct so grave that it justified
instant dismissal, the employer could 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.”
In the instance case
the Learned trial judge had made a positive finding on
the issue concerning a violent demonstration where the
Ex-Personnel Manger had been heckled and had had his
shirt torn and furthermore there was destruction of the
Defendant Company’s property. Indeed, he had found that
the allegation was unsubstantiated. The Learned trail
judge found that the Plaintiffs protested against an
illegal order of the Defendant Company. That the
exercise of such a right is provided under Article 21(d)
of the 1992 Constitution. Therefore the Learned trial
judge was right when he failed to hold that the
Plaintiffs dismissal was as a result of an illegal
strike action embarked upon by the Plaintiff’s. It is in
this light that the Defendant’s ground (a) crumbles.
With ground (a) of the
grounds of Appeal resolved, it is my considered view
that a review of grounds (b) and (c) became otiouse.
Taking into
consideration all the issues involved, I am of the view
that (1) under the provisions of the Industrial
Relations Act, 1965 (Act 299) SS 5, 6-7 and 10 the
agreements i.e. the Redundancy Notice Dated 10/11/95
exhibit “B” and the suspension of Redundancy Notice
exhibit “J” dated 24/11/95 respectively were, in
relation to the Collective Agreement, invalid and null
and void in that (a) the parties who entered into them
had no legal capacity to negotiate any employment terms
or redundancy conditions for SPINTEX LTD., Tema, and its
employees; (b) section 10(2) and (4) of Act 299
specifically and mandatorily denied the right to an
employee covered by a collective agreement to waive such
rights for new ones; (c) In purporting to declare
redundancy the defendants did not follow the procedural
machinery set up under the collective Agreement in
breach of section 10 of Act 299. The Plaintiffs were
therefore entitled to a declaration that the purported
termination of their employment was null and void and of
no effect. NARTEY TOKOLI & ORS. VRS. VOLTA ALUMINIUM CO.
LTD. (1989-90) GLRD 112 CA; STEVENSON VRS. UNITED ROAD
TRANSPORT UNION (1977) 2 ALL ER 941 CA AND GHANA COCOA
MARKETING BOARD 1984 digested 1984-86 GLRD 16 applied.
In the result, I am
convinced that the appeal has no merit and ought to
fail. I hereby dismiss it. And affirm the judgment of
the Court below.
(SGD)
ANIM, J.A.
I agree.
OMARI SASU, J.A.
I also agree.
KUSI-APPOUH (MRS), J. |
