|
Employment – Fraud - Causing
financial loss - Disciplinary
hearing - Summarily dismissal -
Unlawful dismissal – Evaluation
of evidence - Reinstatement -
Full benefits and compensation –
Damages – Whether or not the
findings of the two courts are
inconsistent with the totality
of the evidence led by the
witnesses - Whether or not the
judgment against the weight of
evidence - Whether or not
the disciplinary committee was
properly constituted -
HEADNOTES
The appellant, was a chief clerk
of a branch of respondent bank,
having worked there for
approximately 27 years. The
appellant was summarily
dismissed. He was initially
interdicted for certain acts of
fraudulent transfer of funds
into his accounts and uncredited
lodgement into the account of
Total Petroleum by a customer of
the bank called Gyimantwi
Enterprise. Prior to the
dismissal, a disciplinary
hearing was held into the source
of his authority to give
immediate value to bank cheques
sent for clearing between
contrary to laid down policies
of the bank , The appellant
challenged his dismissal by a
writ at the High Court, Accra.
He sought a declaration that his
dismissal
was unlawful, reinstatement
with full benefits, compensation
for unlawful dismissal, damages,
costs, and solicitor’s fees, In
the alternative, he asked for
payment of his end of service
benefits from 20th
May 2009, interest on the amount
at the prevailing commercial
bank rate and any other reliefs
the court may deem fit. He
contended that entries he passed
to disburse the loan facility
for the purchase of a vehicle by
the bank’s customer and letters
he wrote or co-signed to the
bank’s customer were under the
instructions of the bank’s
branch manager, who was given
authority by management to
determine appellant’s duties.
The
respondent disputed this
assertion and insisted that
appellant failed to comply with
the staff responsibilities as
set out in his appointment
letter, bank’s books of
instructions, service rules,
circulars, policy guidelines and
the Collective Bargaining
Agreement (CBA) After a full
trial, the High Court dismissed
the appellant’s claim.
dissatisfied with the decision
of the trial court, the
appellant appealed to the Court
of Appeal which unanimously
dismissed the appellant’s
appeal.
HELD
MAJORITY OPINION
We find nothing prejudicial
about these remarks which should
incur the wrath of the appellant
and to accuse the disciplinary
committee of being bias and
judges in their own cause.
We are satisfied that the
appellant received fair hearing
when he appeared before the
disciplinary committee and that
the constitutional requirements
in articles 19(13) and 23 were
satisfied in this matter.
We find the appellant’s conduct
incompatible with the faithful
discharge of his duty to his
employers, the bank.
Accordingly, we find no merit in
the appeal and same is
dismissed.
DISSENTING OPINION
I have concluded that the
dismissal of the plaintiff was
in breach of section 63 of Act
651 and he is entitled to
re-instatement. The consequences
are therefore that the plaintiff
would be deemed not to have been
dismissed so he shall be paid
all remunerations, entitlements,
emoluments and benefits that he
would have been entitled to had
he not been unfairly dismissed.
Having granted the plaintiff
re-instatement with all
benefits, it does not appear to
me that he is entitled to
compensation. I will therefore
dismiss all the other reliefs
the plaintiff prayed for.
STATUTES REFERRED TO IN JUDGMENT
1992 Constitution
Labour Act, 2003, (Act 651)
Evidence Act 1975 NRCD 323
Industrial Relations Act, 1965
(Act 229)
CASES REFERRED TO IN JUDGMENT
Akuffo-Addo vrs Catheline [1992]
1 GLR 377
Achoro vrs Akanfela [1996-97]
SCGLR 209
Awuku Sao vrs Ghana Supply Co.
Ltd. [2009] SCGLR 710
Obeng v Assemblies of God
Church, Ghana [2010] SCGLR 300
Gregory v Tandoh [2010] SCGLR
971.
Aboagye v Ghana Commercial Bank
[2001-2002] SCGLR 797
Owusu v Tabiri & Another
[1987-88] 1 GLR 287
Sumaila Bielbiel v Adamu Dramani
[2012] 1 SCGLR 370,
Salifu v The Republic [1974] GLR
291
Republic v Bonsu, Ex-parte
Folson [1999-2000] 1 GLR 523
Boakye v Asamoah & Anor. [1974]
1 GLR 38
Salifu v Mahama & Ors [1989-90]
1 GLR 431,
Salifu & Anor v. The Republic
[1974] 2 GLR 291
Fynn v Fynn & Osei [2013-2014] 1
SCGLR 729
Bani v. Maersk Ghana Limited
[2011] 2 SCGLR 796
Republic
v. State Hotels Corporation; Ex
parte Yeboah [1980] GLR 875
Yaokumah v The Republic [1976] 2
GLR 147
Bannerman-Menson v. Ghana
Employers’ Association [1996-97]
SCGLR 417
Kobi v. Ghana Manganese
[2007-2008] SCGLR 771
Lagudah vs Ghana Commercial Bank
Limited [2005-2006] SCGLR 388
Lever Brothers Ghana Limited v
Dankwa [1989-90] 2 GLR 385
Republic v High Court, Accra
(Industrial and Labour Division
Court 2); Ex parte Peter
Sangber-dery [2017-2018] 1 SCLRG
552.
Republic v Baffoe-Bonnie & Ors
[2017-2020] 1 SCGLR 327
Lever Brothers Ghana Limited v
Annan [1989-90] 2 GLR 385
Charles Afram v SG-SSB Ltd; CA
NO. J4/71/2018, unreported
judgment dated 21st
March, 2019
Nartey-Tokoli & Ors v Volta
Aluminum Co Ltd [1989-90] 2 GLR
341
Attorney-General v. Birmingham,
Tame and Rea District Drainage
Board [1912] A.C. 788
Morgan & Ors v Parkinson Howard
Ltd [1961] GLR 68
Kobea v Tema Oil Refinery
[2003-2004] 2 SCGLR 1039
Ridge v Baldwin [1963] APP.L.R
03/14, HL
Aryee v State Construction
Corporation [1984-86] 1 GLR 425
CA
Boston Deep Sea Fishing & Ice
Company v Ansell (1888) 39 ChD
339
Presbyterian Church Agogo v
Boateng [1984-86] 2 GLR 532
Annamuthodo v Oil Field Workers
Trade Union [1961] AC 945
Heydon’s Case (1584) 76 ER 637
Mercer v. Guinea Press Ltd.,
[1962] GLR 638
Unmin v Hanson [1891] 2 QB 115
Ashun v Accra Brewery Ltd.
[2009] SCGLR 81
Republic v High Court (Fast
Track Division) Accra; Ex Parte
National Lottery Authority
(Ghana Lotto Operators
Association & Ors Interested
Parties) [2009] SCGLR 390
Republic v High Court, Accra; Ex
parte Peter Sangber-Der (ADB
Bank Ltd- Interested Party)
[2017-2018] SCLRG 552
A-G v Prince Augustus of Hanover
[1957] AC 436.
Hill v. William Hill (Park Lane)
Ltd. (1949) A C 520, H.L
Ditcher v Denison (1857)11 Moo
PCC 324
Earl v Slater and Wheeler (Airlyne)
Ltd [1973] 1 WLR 51
Reilly v Sandwell Metropolitan
Borough Council [2018] UKSC 16
Sidumo and Anor v Rustenburg
Platinum Mines Ltd and Ors
[2007] ZACC 22.
National Union of Metalworkers
of SA v Vetsak Co-operative Ltd
and Others, [1996] ZASCA 69
Total Ghana Ltd v Thompson
[2011] 1 SCGLR 458
In Re Krah (Decd); Yankyeraah v
Osei-Tutu [1989-90] 1 GLR 638,
SC.
BOOKS REFERRED TO IN JUDGMENT
Halsbury’s Laws of England (4th
ed), Vol. 11(1) p. 34, para. 27
Kobea vs. Tema Oil Refinery
[2003-2004] 2 SCGLR 1033
DELIVERING THE LEADING JUDGMENT
AMEGATCHER, JSC:-
DISSENTING OPINION
PWAMANG, JSC:-
COUNSEL
EUNAS KOFI ESHUN FOR THE
PLAINTIFF/APPELLANT/APPELLANT.
KWAME D. S. ASIRI FOR THE
DEFENDANT/RESPONDENT/RESPONDENT
MAJORITY OPINION
AMEGATCHER, JSC:-
Until 29th May 2009,
the appellant, George Akpass was
a chief clerk of the Bole Branch
of respondent bank, having
worked there for approximately
27 years. The appellant was
summarily dismissed on 29th
May 2009. He was initially
interdicted for certain acts of
fraudulent transfer of funds
into his accounts and uncredited
lodgement into the account of
Total Petroleum by a customer of
the bank called Gyimantwi
Enterprise. Prior to the
dismissal, a disciplinary
hearing was held into the source
of his authority to give
immediate value to bank cheques
sent for clearing between 1st
January 2007 and April 2008
contrary to laid down policies
of the bank.
FACTS:
The appellant challenged his
dismissal by a writ at the High
Court, Accra. He sought a
declaration that his dismissal
was unlawful, reinstatement with
full benefits, compensation for
unlawful dismissal, damages,
costs, and solicitor’s fees, In
the alternative, he asked for
payment of his end of service
benefits from 20th
May 2009, interest on the amount
at the prevailing commercial
bank rate and any other reliefs
the court may deem fit. He
contended that entries he passed
to disburse the loan facility
for the purchase of a vehicle by
the bank’s customer and letters
he wrote or co-signed to the
bank’s customer were under the
instructions of the bank’s
branch manager, Rev Duke Commey
who was given authority by
management to determine
appellant’s duties.
The respondent disputed this
assertion and insisted that
appellant failed to comply with
the staff responsibilities as
set out in his appointment
letter, bank’s books of
instructions, service rules,
circulars, policy guidelines and
the Collective Bargaining
Agreement (CBA). Additionally,
respondent says the appellant
perpetuated fraud against the
bank when he accepted cash
inducement from the customer of
the bank to conceal his cheques
thereby
causing financial loss to
the bank. The respondent,
therefore, counterclaimed for
the sum of Ghc227,765.94 being
the claim made against the bank
by the customer for dereliction
of duty and damages for loss of
business and reputational
damage.
After a full trial, the High
Court presided over by Laurenda
Owusu J on 4th July
2016 dismissed the appellant’s
claim. Dissatisfied with the
decision of the trial court, the
appellant appealed to the Court
of Appeal which on 18th June
2019 unanimously dismissed the
appellant’s appeal.
The current appeal before the
apex court is the result, again,
of the dissatisfaction of the
appellant to the judgments of
the two lower courts, albeit
superior courts of record. The
appellant filed and argued three
grounds of appeal as follows:
i.
The judgment is against the
weight of evidence.
ii.
The court below erred in law
when it held that plaintiff was
given a fair hearing within the
defendant/respondent/respondent
concerning his dismissal.
iii.
The court below erred when it
held that the dismissal of
appellant was fair.
APPEAL AGAINST CONCURRENT
FINDINGS OF TWO LOWER COURTS:
We are guided by a long line of
decisions of this court that our
appellate jurisdiction in
appeals dealing with concurrent
findings by two superior courts
lower than the apex court could
be properly exercised in favour
of the appellant if he is able
to satisfy this court that the
trial and the intermediate
appellate courts failed to
properly evaluate the evidence
or have drawn wrong conclusions
from the accepted evidence.
Other factors are that the two
courts committed fundamental
errors in their findings of fact
or there are strong pieces of
evidence on record which are
manifestly clear that
the
findings of the two courts are
inconsistent with the totality
of the evidence led by the
witnesses. See the cases of
Akuffo-Addo vrs Catheline [1992]
1 GLR 377 per Osei Hwere JSC;
Achoro vrs Akanfela [1996-97]
SCGLR 209; Awuku Sao vrs Ghana
Supply Co. Ltd. [2009] SCGLR
710; Obeng v Assemblies of God
Church, Ghana [2010] SCGLR 300;
Gregory v Tandoh [2010] SCGLR
971.
We intend now to review the
appeal record based on the
grounds of appeal and weigh it
against the principles
enunciated in the cases above.
THE OMNIBUS GROUND:
The appellant first argued
grounds 1 and 3 together. Ground
1 being a ground dealing with
the
judgment against the weight of
evidence,
the legal position is that the
case is open for fresh
consideration of all the facts
and related law submitted by the
parties to the appellate court.
We
are, therefore, invited to
re-examine certain pieces of
evidence allegedly misapplied
against the appellant or which
if considered properly will
change the decision of the two
courts in appellant’s favour.
DISCREPANCY BETWEEN LETTER OF
INTERDICTION & CHARGES PREFERRED
BEFORE A DISCIPLINARY HEARING:
The first complaint of the
appellant under the omnibus
ground is
that his dismissal contravened
article 18(a) of the CBA and
staff rules because there was a
discrepancy between the memo of
interdiction and the memo
inviting the appellant to the
disciplinary committee. The
appellant was interdicted for
acts of fraudulent transfer of
funds from Total Petroleum Ghana
Limited into his account and
uncredited lodgement into the
accounts of Total Petroleum by
the bank’s customer, Gyimantwi
Enterprise. The invitation
letter to appear before the
disciplinary committee stated
the matters to be investigated
as the authorisation and
immediate value given by the
appellant to almost all other
banks cheques sent for clearing
between 1st January
2007 and April 2008 contrary to
laid down policies of the bank
and the source of appellant’s
authority for the actions he
took. According to appellant,
article 18(a) contemplated a
situation where the grounds for
interdiction and the offence
investigated by the disciplinary
committee would be the same.
Therefore, where an employee is
interdicted for one offence and
investigated for other offences,
that article would have been
breached.
In answer to the allegation of
breach of article 18(a) of the
CBA, respondent submits that
appellant was invited to the
disciplinary committee first to
answer acts of uncredited
lodgements into the accounts of
Total Petroleum Ghana Ltd by
Gyimantwi Enterprise at the Bole
branch. When he was queried by
the inspectors/auditors, he
admitted giving immediate value
to cheques. Secondly, he was to
justify the non-adherence to
Executive Credit Committee’s
directive on medium term loan to
Gyimantwi Enterprise. When
confronted with this at the
disciplinary committee hearing,
he admitted he did not have
authorisation powers in the way
he acted and apologised. The
list of cheques appellant was
confronted with by the
disciplinary committee are in
exhibit GA 11 at page 207 of the
Record of Proceedings.
The allegation of the
discrepancy between the reasons
given for the interdiction and
the charges preferred against
the appellant was not denied by
the respondent. The trial court
and the intermediate appellate
court all found as a fact that
the reasons for interdiction and
the charges for the disciplinary
hearing were different.
Article 18(a) of the CBA relied
on by counsel for the appellant
provides as follows:
“If an officer is suspected
to have committed an offence
which might justify summary
dismissal or termination, the
bank may interdict the officer
from duty while further
investigation, inquiries or
trial are carried out. A copy of
the letter of interdiction is to
be delivered to the union.
During the period of
interdiction from duty, the
officer shall be entitled to be
paid at half of his or her
salary. But if he or she is not
found guilty of the offence, the
officer shall be re-instated in
his employment and shall be paid
his or her full salary for the
period during which he was
interdicted.”
The core idea implicit in this
article envisages that an
offence would have been
committed which would then
justify summary dismissal or
termination of an employee. In
lieu of those actions,
management has a discretion to
interdict the employee for
further investigations and or a
disciplinary hearing to take
place. After the investigations,
the same offence may form the
basis of the disciplinary
hearings or new matters may be
uncovered. Depending on the
gravity of the offence,
management reserves the right to
either terminate, dismiss
summarily, or demand a written
explanation from the worker
before a decision is made.
Management reserves the right to
also trigger the disciplinary
hearing procedure, in which case
to ensure fair trial, the
disciplinary committee should
frame charges embodying the new
offences to enable the worker to
prepare his defence.
A letter of interdiction only
communicates to the worker that
an offence is suspected to have
been committed which requires a
written response, further
investigation or depending on
the gravity, summary dismissal.
It is prudent in ensuring fair
trial to hand over such charges
to the employee concerned with
the date and place of the trial
and reasonable time to prepare
his defence. Since letters of
interdiction are not charges, we
reject the submission of counsel
for the appellant that the
article contemplates the offence
for which the worker is
interdicted to be the same as
the charges at the disciplinary
hearing.
We are fortified in our position
by a previous decision of this
court on the dismissal of a
worker of respondent bank. The
court reviewed the disciplinary
rules of respondent’s bank and
the differences between a mere
query and a disciplinary charge.
Bamford-Addo JSC in the case
of
Aboagye v Ghana Commercial Bank
[2001-2002] SCGLR 797
held at page 814 as follows:
“Plaintiffs' rights cannot be
wished away by a mere
presumption, and furthermore a
query is not the same as a
disciplinary charge or notice of
an ongoing disciplinary
proceeding. The two queries in
"Exhibit E" and "Exhibit G"
merely asked the plaintiff to
give reasons why he signed the
draft No. 177036 dated 17/7/92
for £15,000 and a cable
authorising payment of
US$13,559.60 on behalf of White
Chapel without ensuring that the
customer’s account were debited
and why internal entries were
not passed to the debit of
customers and to confirm whether
the signature on the two
transactions were that of the
plaintiff which he did. Surely
these queries cannot by any
stretch of imagination be
considered or likened to a
disciplinary charge or to
notice. Nor did the queries
refer to any disciplinary charge
against him”.
In this appeal, although the
appellant was served with a
notice of interdiction stating
the offences as
fraudulent transfer of funds
from Total Petroleum Ghana
Limited into his account and
uncredited lodgement into the
accounts of Total Petroleum by
the bank’s customer, Gyimantwi
Enterprise, a formal charge was
formulated dated 24th
November, 2008 (Exh GA 3) and
served on him indicating that he
was being tried before the
disciplinary committee for
authorisation and immediate
value given to almost all other
banks cheques sent for clearing
between 1st January
2007 and April 2008 contrary to
laid down policies of the bank
and the source of his authority
for the actions he took.
The trial judge at page 352 of
the record found that all the
issues in the charges levelled
against the appellant in the
memorandum inviting him to the
disciplinary hearing and the
reasons for his dismissal were
raised at the hearing and put
across to the appellant. The
judge further found that the
appellant was given an
opportunity to react to all the
issues at the hearing.
Additionally, the Court of
Appeal at pages 452-453 reviewed
the report of the disciplinary
hearings on the charges and
reasons for the dismissal of the
appellant and affirmed the
findings made by the trial judge
that while the contents of the
interdiction letter and the
dismissal letter were different,
what was stated in the dismissal
letter emerged from the
investigation of the allegations
levelled against the appellant
who had the opportunity to be
heard on all the charges.
Reminding ourselves of the duty
imposed on us when exercising
our appellate jurisdiction, can
one say that the findings,
inferences, and conclusions
reached by the trial court and
affirmed by the intermediate
appellate court were
unsupportable by the evidence on
record?
As stated earlier, we are bound
by a long line of sound
decisions of law which we do not
intend to depart from. Our
jurisdiction as the apex court
would be properly exercised in
favour of an appellant if he is
able to satisfy this court that
the trial and the intermediate
appellate courts failed to
properly
evaluate the evidence or
have drawn wrong conclusions
from the accepted evidence. See
Obeng v Assemblies of God
Church, Ghana (supra) and
Gregory v Tandoh (supra).
We have scrutinised the record,
the evidence of the parties and
the proceedings of the
disciplinary committee. The
evidence is overwhelming that
appellant was confronted and
questioned about the following:
1.
The authorisation and immediate
value given other banks cheques
sent for clearing between 1st
January 2007 and April 2008; see
pages 145-152 of the record.
2.
Signing letters pledging the
bank to honour post-dated
cheques issued by Gyimantwi
Enterprises; see pages 145-154
of the record.
3.
Passing entries disbursing loan
facility of Ghc33,600 to the
bank’s customer instead of the
vendor for the purchase of
vehicle contrary to instructions
of the Executive Credit
Committee. Appellant at the
hearing admitted he erred
because he did not know the
vendor at the time; see pages
137-144 of the record.
4.
The source of authority for the
actions he took; see pages
137-144 of the record.
In the Aboagye’s case (supra),
two queries were issued by the
disciplinary committee to the
worker, but no charges were
framed for the offences to be
investigated by the committee.
In this appeal, a query was
issued and in accordance with
article 18(1) of the CBA, after
further investigations, charges
were framed. Even matters which
came up after the charges were
served on the appellant were put
before the appellant at the
disciplinary hearing for his
comments which he did. We do not
expect disciplinary bodies
involved in administrative
justice to strictly follow
procedures in criminal trials in
the courts; where any additional
charge framed after commencement
of trial inevitably would lead
to total withdrawal of the
original charge and a
substitution of fresh charges
for proceedings to start de
novo. It is sufficient, in our
view, for the new charges to be
placed before the affected
worker for his response before a
decision is made. The position
would have been different if the
fresh charges were not placed
before the worker to be afforded
an opportunity to respond. In
that case, no disciplinary
sanctions could be applied on
those charges.
We are of the view that the
appellant was not disadvantaged
in anyway when he appeared
before the disciplinary
committee. We are satisfied that
the trial court and the
intermediate appellate court
properly evaluated the evidence
before them and drew the right
conclusions from the accepted
evidence. The appellant was
served with the charges to
answer at the disciplinary
hearing. The outcome of the
hearing is contained in the
proceedings tendered at the
trial. Both courts below were
satisfied that the fraudulent
transfer of funds and uncredited
lodgement into the accounts of
Total Petroleum by the bank’s
customer, Gyimantwi Enterprise;
the immediate value given by the
appellant to bank’s cheques sent
for clearing contrary to laid
down policies of the bank were
all serious infractions which by
the bank’s policies warranted
dismissal. Their findings are
supported by the record.
Accordingly, we will decline the
invitation to interfere with
those findings.
MEMBERSHIP OF THE DISCIPLINARY
COMMITTEE:
This brings us to the next
complaint under the omnibus
ground and that is the
membership of the disciplinary
committee. According to the
appellant, the disciplinary
committee was not properly
constituted in accordance with
article 14(g) and rule 5.1 of
the Staff Service Rules because
it did not have a membership of
six and that some officers who
were required to be on the
committee such as the head of
the legal department who was
required to chair did not,
leaving a representative from
the legal service division to
chair. The respondent disagrees
arguing that
the
committee was properly
constituted and that
appellant’s argument on this is
porous and should be rejected.
We are not very much attracted
by the submissions of the
appellant's counsel on this.
We do not think any of the rules
of the CBA has been breached for
constituting a panel of five
instead of six to investigate
the case of the appellant. Rule
5.2 of the Staff Service Rules,
Exh ‘GCB’ 5 provide for a
disciplinary committee of six
members made up of the head of
legal as chairman. Article 14 of
the CBA Exh ‘GCB’ 14, however,
makes provision for the same
disciplinary committee composed
of five members and chaired by
the General Manager, Legal
Services Division, or his
representative. There is
therefore a clear conflict
between the composition
specified in the Staff Rules and
that of the CBA. Section 105 of
the
Labour Act, 2003, (Act 651)
states that the provisions of
the collective agreement shall
be regarded as terms of a
contract of employment and if
there is any conflict between
the terms of a collective
agreement and the terms of any
contract not contained in the
collective agreement, the
collective agreement shall
prevail unless the terms of the
contract are more favourable to
the worker.
In this appeal, selecting a
representative of the Legal
Services Division to chair the
committee instead of the General
Manager and requesting the HRD
representative to play the dual
role of a member/recorder
instead of a non-member recorder
in our opinion, did not offend
any provisions of the CBA. In
any case, members of the
disciplinary committee are not
named individuals appearing in
their personal capacities. They
are representatives of divisions
within the bank. In that
respect, any responsible officer
of the division could be
authorised to represent the
division. Further, recorders who
sit on such committees are not
essential members of the
committees. They are there to
record the proceedings unless
they are appointed as
member/recorder. We find no
merit in this submission and
decline to interfere with the
opinion of the Court of Appeal.
CONFLICT BETWEEN RECOMMENDATION
OF A DISCIPLINARY COMMITTEE AND
DECISION OF MANAGEMENT:
The appellant has also advanced
in support of the omnibus ground
that respondent bank failed to
give any reasons to the union
for departing from the
disciplinary committee’s
recommendation. According to the
submissions by counsel, three
officers were investigated, and
recommendations made on the
three. Counsel submitted that
while management accepted and
implemented the recommendation
in respect of two, in the case
of the appellant, the
disciplinary committee
recommended that he should be
demoted but management failed to
uphold that recommendation and
substituted demotion for
dismissal. According to counsel,
in the process, management
breached article 14(h) (iii) of
the CBA which enjoined it to
inform the union with reasons
why it was unable to uphold the
recommendations of the
committee. Counsel submitted
that the union should be
informed of the reasons even
before the decision is carried
out. However, in this case the
bank failed to inform the union
as required by the CBA and yet
the court below failed to hold
that the respondent bank
breached the CBA. This,
according to counsel, has made
the dismissal unlawful.
SHIFTING OF EVIDENTIAL BURDEN
WHEN THE NEGATIVE IS ASSERTED:
Counsel for the appellant then
took on the trial judge and the
Court of Appeal for dismissing
his arguments on the evidential
burden. According to Counsel,
the reason given by the trial
judge and the Court of Appeal
that the appellant who bore the
evidential burden to prove that
the union was not informed
failed to do so was flimsy.
Admittedly, in answer to which
of the parties bore the
evidential burden to prove that
the union was informed, the
learned High Court judge after
her evaluation of the evidence
held at pages 352-353 as
follows:
“Sure, this is true but what
positive evidence on record
suggests that reasons for the
departure were not given to the
Union? It is not in dispute that
there were several
correspondences between the
Union and Executive Management
on the matter and the Union even
wrote to plead on behalf of the
Plaintiff. He who asserts must
prove. I refer to the case of
OWUSU V
TABIRI & ANOTHER [1987-88] 1 GLR
@ 287. The plaintiff has
failed to establish that
Management did not inform the
union of reasons as to why the
recommendation of the Committee
was not upheld. I find this as a
fact”.
On appeal to the Court of Appeal
on the failure of management to
inform the union, this is what
the Court of Appeal also stated
at page 454 of the record:
“It is the Plaintiff who is
alleging that Management did not
inform the Union about its
reasons for not upholding the
recommendations of the
disciplinary committee as
required by Article 14(h)(iii).
It is clear from the record that
the plaintiff led no evidence in
support of this position and the
trial judge’s finding that the
said allegation was unproved is
sound in law. I find in answer
to the third question that it is
the Plaintiff who bore the
burden of proof and he failed to
discharge it”.
Counsel for the appellant
decried the reasons given by the
two lower courts for dismissing
its claim for the management to
inform the union of the change
in the recommendations of the
disciplinary committee.
According to counsel, it was
the respondent’s burden to prove
that it had complied with
article 14(h)(iii) of the CBA.
However, the trial court wrongly
allocated the burden of
producing the evidence to the
appellant and this was concurred
to by the Court of Appeal.
Counsel argued that since
appellant made a negative
assertion of matters within the
peculiar knowledge of the
respondent i.e., that respondent
did not inform the union while
the respondent asserted the
positive that it notified the
union, the evidential burden
then shifted unto the
respondent. Counsel cites the
cases of
Sumaila Bielbiel v Adamu
Dramani [2012] 1 SCGLR 370,
Salifu v The Republic [1974] GLR
291 and Republic v Bonsu,
Ex-parte Folson [1999-2000] 1
GLR 523 in support of
his submissions.
The position of the law admits
of no controversy. Section 14(1)
of the
Evidence Act 1975 NRCD 323
contemplates situations where
the evidential burden may shift.
One such situation is where, as
a rule, the plaintiff who is the
party on whom the burden rest
asserts the negative and the
defendant who is required to
disprove asserts the positive.
In the case of
Boakye
v Asamoah & Anor. [1974] 1 GLR
38, the plaintiff
asserted that the amount paid
was ¢120.00 while the defendant
was saying that it was not
¢120.00. The trial magistrate
shifted the onus on the
defendant to prove that he paid
more than ¢120.00. Osei-Hwere J
(as he then was) held that the
order of the magistrate was to
call on the defendant to prove
the negative. In the words of
the learned judge at page 45:
"if a negative averment be made
by one party, which is
peculiarly within the knowledge
of the other, the party within
whose knowledge it lies, and who
asserts the affirmative is to
prove it, and not he who avers
the negative”.
Again, in
Salifu v Mahama & Ors
[1989-90] 1 GLR 431,
Benin J (as he then was) held
that:
“Taking for guidance the rule of
evidence that where the subject
matter of a party's allegation
(whether affirmative or
negative) was peculiarly within
the knowledge of his opponent,
it lay upon the latter to rebut
such allegation, it would be an
almost impossible task to ask
the applicant to prove that the
respondents, the judgment
creditors, were men of straw
when he did not know them
previously, let alone the work
they did and other relevant
facts. The applicant only had
to raise a reasonable ground as
to their inability to refund
money to be paid to them and
then the burden would be shifted
to the respondents to satisfy
the court that they would be in
a position to refund the money
paid to them should the appeal
succeed; for they only knew
their resources, means, assets,
liabilities, and commitments.
Since it would seem from the
available evidence that the
respondents had not been in any
serious or gainful employment
since the accident, that was
enough for the applicant and the
court to, prima facie, conclude
they would not be able to refund
any money paid to them. The
respondents were therefore
enjoined to produce evidence
peculiarly within their
knowledge to displace that
reasonable prima facie
conclusion”.
See also
Salifu & Anor v. The Republic
[1974] 2 GLR 291 cited
by counsel for the appellant.
Relating the above cases to this
appeal, the question we pose is
which of the parties bore the
evidential burden to prove that
the union was notified about the
decision of management to
substitute the punishment
prescribed by the disciplinary
committee from demotion to
dismissal. The appellant asserts
that the union was not informed
of management’s decision while
the position of the respondent
bank was that the union was
informed. In so far as the
appellant asserted that the
union was not notified, he
asserted the negative. The
respondent who insisted that the
union was notified asserted the
positive and therefore assumed
the evidential burden to lead
evidence to establish that
position. In
Fynn v
Fynn & Osei [2013-2014] 1 SCGLR
page
729 this court held that
one of the legal grounds that
the Supreme Court would overturn
concurrent findings of two lower
courts is when the finding was
based on erroneous proposition
of law. In our opinion, the
trial court misdirected itself
and the Court of Appeal
concurred by placing the
evidential burden on the
appellant who asserted the
negative. That finding by the
two courts placing the
evidential burden on the
appellant to prove the negative
is an error in law. We hereby
set it aside.
FAILURE TO NOTIFY THE UNION OF
THE DECISION OF MANAGEMENT NOT
TO UPHOLD THE RECOMMENDATIONS OF
THE DISCIPLINARY COMMITTEE:
What, then, is the implications
of correcting the shift in the
evidential burden on the merits
of the appeal before us?
Article 14(h)(iii) of the CBA
provides that:
“where Management is unable to
uphold the recommendation of the
committee it shall inform the
Union with reason as to why it
is unable to do so”.
The key phrase here is “shall
inform the union”. What if
as in this case there is no
evidence led by the respondent
that the union was informed. To
be informed is to be notified,
told, apprised, or advised. It
does not denote any negotiations
with or consent of the union
before the decision substituting
another punishment is made. The
manner of the information is not
provided in the CBA. In that
regard, good corporate
governance requires that any
reasonable form of notification
such as a letter, face to face
meeting or any electronic medium
of communication would suffice.
The timing of the notification
should also be immediately the
decision is made by management
or contemporaneously to when the
decision is communicated to the
worker concerned.
Article 48 of the CBA, however,
provides an internal mechanism
to be followed in the handling
of grievances and breaches of
its provisions such as the one
under discussions. The procedure
has five steps starting from an
appeal or petition by the worker
and countersigned by the union
to the head of department, next
to General Manager and Human
Resource Manager, then summoning
the Standing Joint Negotiating
Committee to meet and failing
resolution by the four earlier
steps, referring the matter by
either party to the National
Labour Commission in accordance
with the Labour Act. The reason
for this detailed internal
procedure is clear. The union is
not the disciplinary body within
the bank. The information to the
union is not intended to take
over the disciplinary role of
management but to promote good
corporate practice and
industrial harmony. Article 16
of the CBA vests management with
power to dismiss summarily for
causes involving dishonesty,
fraud, wilful refusal to obey
legitimate and reasonable
instruction, proven gross
misconduct. Further all
penalties are applied at the
discretion of management
depending on the circumstances
and gravity of the offence.
Thus, article 56 of the CBA on
responsibility of parties to the
CBA states that “the union
recognises the right of the bank
to employ, promote, demote,
transfer, suspend or otherwise
discipline any employee for just
cause…… The union also
recognises the right of the bank
to operate and manage its
business in all respects and to
maintain order and efficiency….
In all cases the laid down
grievance procedure shall
apply…”.
In
Bani v. Maersk Ghana Limited
[2011] 2 SCGLR 796,
following the findings of
a subcommittee of the company,
the employee was dismissed. This
court held that even if the
finding of the subcommittee were
ultra vires, it would not
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.
Thus, where the CBA has vested
power in management (as in this
appeal) to dismiss summarily,
the employer's power to exercise
it is “short, sharp and
peremptory to the extent that
where the employer has set up a
departmental board of inquiry
which has made certain
recommendations to the employer
the decision to dismiss is
entirely for the employer who is
not bound to accept the
recommendations”: see
Republic
v. State Hotels Corporation; Ex
parte Yeboah [1980] GLR 875
where the Court of Appeal per
Edusei JA held at page 879 that:
“In our opinion, the
recommendations of the
investigation/fact finding
enquiry set up by the respondent
Authority was not binding on
management. The Chief Executive
was right in making his own
decision to dismiss the
appellants summarily”.
Based on the provisions above,
it is our considered opinion
that the failure by the
respondent to comply with
article 14(h)(iii) of the CBA
could be remedied by the
internal procedures within the
CBA. This, per se will not
nullify or make management
decision on the worker unlawful.
We are, therefore, unable to
agree with counsel for the
appellant that the failure by
respondent to comply with
article 14(h)(iii) rendered the
dismissal unlawful.
OBEYING SUPERIOR ORDERS:
This brings us to the next
submission under the omnibus
ground. The appellant attacks
the court below for holding that
the appellant disobeyed
instructions of the bank by
disregarding the terms of the
loan when the disciplinary
committee found that the blame
was to the entire Bole branch.
In the opinion of counsel, the
branch manager accepted
responsibility for whatever
happened. Appellant also alleges
that the customer to whom he
lent money was the main customer
of the bank and that it was a
decision of the Bole branch that
the staff could lend money to
save customer’s cheques from
being returned to keep their
prime customers.
Counsel further submits that the
instructions given to the
appellant by the Bole branch
manager to co-sign the letter
pledging on behalf of the bank
to pay post-dated cheques were
not illegitimate because article
13(a) of the CBA and Rules 2.1.2
of the Staff Service Rules
mandated staff to obey all
legitimate orders and directions
given from time to time by any
person under whose jurisdiction,
superintendence or control he
may for the time being, be
placed. It is also the case of
the appellant that the Bole
branch manager who instructed
him to sign the letter was the
person he was placed under and
required to obey. The appellant
again argues that the letter he
signed did not occasion any
financial loss to the bank.
In response, the respondent
submits that by keying the
cheques and his branch manager
authorising the transaction when
it had not been ascertained that
the customer had enough money in
his account, appellant and his
manager gave instant value to
the cheques which were returned
unpaid because the customer did
not have sufficient funds to pay
for the cheques. In acting that
way, the appellant and his
manager disobeyed legitimate
instructions on the payment of
cheques which constituted
misconduct and therefore the
Executive Committee was entitled
and justified in sanctioning the
appellant with dismissal.
Respondent further submits that
appellant was given a hearing in
which he admitted signing
exhibit GCB 8 to the customer
stating the approved terms and
conditions of the facility i.e.,
payment was to be made to the
vendor but in disbursing the
facility rather credited the
customer’s account with
Ghc36,600.00 and issued a
payment order of Ghc20,000.00 to
the vendor and made the
remainder of Ghc13,600.00 to the
customer. Respondent also argues
that appellant and his manager
again varied the terms of the
approval for the payment of the
4x4 Pick Up when they pledged to
honour post-dated cheques of the
customer on the due dates’
contrary to the Executive Credit
Committee’s instructions. This
refusal to obey legitimate
instructions justified the
dismissal meted out to the
appellant.
The Court of Appeal reviewed the
findings of fact made by the
trial court on these
submissions. It concluded that
it was satisfied that the
reasons for the findings were
sound and borne out by the
evidence on record and in line
with the CBA and the law. The
Court of Appeal then itemised
some acts of misconduct on the
part of the appellant which were
incompatible with the faithful
discharge of his duty to his
employers and constituted
summary dismissal. These were:
1.
Blatant disregard by the
appellant and his manager of the
terms of the facility granted
Gyimantwi Enterprise which
stated that the money was to be
paid directly to the vendor of
the vehicle to be purchased. But
appellant and his colleague
chose to credit part of the
amount to the customer’s account
and in doing so gave the
customer access to part of the
facility and committed the bank
to honouring the customer’s
post-dated cheques issued on the
balance.
2.
Admission by appellant that he
sometimes personally paid money
into the customer’s account when
there were insufficient funds in
the account to enable his
cheques clear and later got
refund from the customer by
payments into appellant’s
account.
In article 13(a) of the CBA,
employees were only required to
“observe, comply with and
obey all legitimate orders and
directions which are in the
interest of the bank”. In
that regard, though the
appellant was working directly
under PW1, the Bole branch
manager, he was only required to
obey legitimate instructions.
The defence of obeying superior
order has been held in law to be
a weak defence which sometimes,
depending on the peculiar facts
of a case, will not inure to the
benefit of any officer working
under superiors. If while
obeying superior orders
appellant had been made a
‘sacrificial lamb’ and
victimised with disproportionate
punishment, that would have been
the price to pay for opting to
follow mortal man rather than
the code of ethos carved out to
shape the work ethics and ensure
smooth functioning of the bank.
Halsbury’s Laws of England (4th
ed), Vol. 11(1)
has this principle on superior
orders at
p. 34, para. 27:
“The mere fact that a person
does a criminal act in obedience
to the order of a duly
constituted superior does not
excuse the person who does it
from criminal liability, but the
fact that a person does an act
in obedience to a superior whom
he is bound to obey, may exclude
the inference of malice or
wrongful intention which might
otherwise follow from the act.”
In the case of
Yaokumah v The Republic [1976] 2
GLR 147 a major in the
Army drove a military vehicle to
the Ghana-Togo border and loaded
uncustomed goods headed for
Accra. He was apprehended at a
check point and arrested. At his
trial, he pleaded the defence of
superior orders. On appeal to
the Court of Appeal, Amissah JA
stated the legal position in the
following words:
“This in effect amounts to a
defence of superior orders. We
agree that a subordinate officer
is obliged to obey the commands
of his superior. But this
obligation is limited to
commands which are lawful or at
least are not obviously
unlawful. Besides the commands
must be given in the course of
duty….. He was not under a duty
to obey or to comply with any
such order or request.”
Again, the submissions of
appellant that he did nothing
wrong because it was a decision
of the Bole branch that the
staff could lend money to save
customer’s cheques from being
returned to keep their prime
customers does not appeal to us.
We will not buy into the defence
of an unlawful act being
legalised because it has been
made the practice in an
establishment. No matter how
long the practice may be, what
is unlawful by the CBA will
remain unlawful.
We have combed through the
record and are satisfied that
the findings of fact made on
this issue by the trial High
Court judge and concurred to by
the Court of Appeal are
justified and borne out of the
proceedings at the disciplinary
hearing and at the trial court.
On our part we found from the
record some breaches of
respondent bank’s rules by the
appellant. These are first
lending money to a customer of
the bank without the permission
of the Managing Director.
Appellant admitted that customer
Gyimantwi paid money into his
personal account and at other
times he paid monies into the
customer’s account when he did
not have sufficient funds to
enable his cheques to go
through. This behaviour on the
part of the appellant
contravened article 15(c) of the
CBA which provides that “An
officer shall not lend money in
his/her private capacity to a
customer or officer of the Bank.”
Article 15(d) also provides “Except
with the permission of the
Managing Director, an officer
shall not guarantee in his or
her personal capacity the
pecuniary obligations of another
person or agree to indemnify
another person from loss.”
The second breach is carrying on
private farming activities
without the permission of the
Managing Director as required by
article 15(e) of the CBA. It
states that “Except with the
permission of the Managing
Director, an officer shall not
engage in any other banking
financial business or in any
commercial business whether for
reward or otherwise either on
his/her own account or as agent
for another or others.”
The trial judge concluded that
the appellant had breached the
rules and regulations of
respondent bank making his
conduct incompatible with the
faithful discharge of his duty
to his master. There is no legal
justification for us to do
otherwise. We therefore decline
the invitation by the appellant
to reverse the findings.
UNFAIR DISMISSAL
Argued along with the omnibus
ground is the contention of
appellant in ground 3 that the
court below erred in upholding
his dismissal which was unfair.
Counsel for the appellant has
forcefully argued that the trial
court below did not consider the
effect of section 63(4) of Act
651 when it impliedly held that
the dismissal of appellant was
fair. In the opinion of counsel,
the dismissal was done in
violation of the laid down
procedures in the CBA and the
staff service rules.
The concept of fair and unfair
termination of employment is a
novel provision introduced in
Part VIII of Act 651. Thus,
section 62 of the Act provides
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;
And section 63(4) also states:
“63 (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”.
Being a creation of statute, the
concept places an obligation on
the employer to justify the
termination of the appointment
of a worker. The overarching
condition is that the reason for
the employee’s termination must
be fair and in accordance with
due process of law. Dismissal as
a right in labour relations was
omitted from those sections thus
creating a challenge among
stakeholders in the labour
fraternity whether dismissal has
been abolished under the Act or
is to be used interchangeably
with termination. The scope of
sections 15-18 and 62-64 of Act
651 and its correlation if any
with a claim for wrongful
dismissal is what we now turn
to?
One of the grounds which Act 651
justifies termination of
employment is by mutual
agreement between the employer
and the worker. This is provided
for in section 15(a). Where a
contract of employment provides
that either party can terminate
the relationship by giving a
specified period of notice or
salary in lieu of notice, that
mode of termination could be
triggered without the employer
or worker assigning any reasons.
In our opinion, where
termination is resorted to under
this provision, the fairness or
otherwise of that termination
cannot be called into question.
There is judicial support for
this. In
BANNERMAN-MENSON VS. GHANA
EMPLOYERS’ ASSOCIATION [1996-97]
SCGLR 417, the terms of
employment of the parties stated
that either party may terminate
the relationship by giving six
months’ notice. The employer
gave six months’ notice of its
intention to retire the
appellant and dissatisfied the
appellant sued. Aikins JSC
explained the legal position in
such contracts of mutuality at
pages 422-423 as follows:
“… the appellant’s conditions of
service states that the contract
was terminable by six months’
notice on either side... the
appellant could terminate the
appointment by giving his
employers six months’ notice if
he decided to, without giving
any reasons. So were the
respondents entitled to dispense
with the appellant’s services by
giving him six months’ notice.
This conforms with equitable
principles. The respondents
exercised their right in giving
the appellant six months’ notice
to retire from the services of
the association…. The respondent
owed no other obligation to the
appellant…….
To me
it is of no consequence if
the respondents gave as a reason
for the termination of the
appellant’s employment the fact
that he had reached the age of
60 years. What is important is
the mutual agreement of the
parties that the contract of
employment could be determined
by giving six months’ notice of
intention to do so. I think the
appellant was labouring under a
serious illusion in assuming
that this appointment was
terminated for reaching the
retirement age at 60 years. The
respondents were under no
obligation to give him reasons
for his termination.”
Where the termination is not by
mutual agreement and the
employer is compelled to
terminate on other grounds
provided for in the contract of
employment such as ill-treatment
or sexual harassment, medically
unfit for the employment or
inability of the worker to
perfume his role due to
sickness, disability,
incompetence or lack of
qualification for the position
employed or other reasons which
do not merit summary dismissal,
then the protocol envisaged
under Act 651 is that the
reasons for the termination must
be clearly stated and must be
seen to be fair. This is because
though the employer has the
power by contract and law to
terminate on those grounds, that
power has been curtailed by
statute and can no longer be
exercised arbitrarily or
capriciously. It must
justifiably be substantively and
procedurally seen to be fair.
Failing that acid test, the
courts will have power to
inquire into the fairness of the
decision to terminate and
pronounce on it. The missing
link, however, in this novel
provision is the measure of
fairness and unfairness. This
has not been provided for in Act
651 making it unclear and
uncertain for employers and
stakeholders to fashion out the
appropriate framework to follow.
It is in scenarios like this
that the courts are called upon
to develop the framework to
guide the stakeholders how to
assess the fairness or
unfairness of their actions
substantively and procedurally.
This is exactly what this court
attempted to do in
KOBI
vs. GHANA MANGANESE [2007-2008]
SCGLR 771 where this
Court at holding (3) stated
that:
“The traditional rule in
employer-employee relationship,
relied upon by the Court of
Appeal (in the instant case) is
that in dispensing with the
services of an employee, an
employer is at perfect liberty
to either give or refuse to give
reasons. However, in exercising
that right, fairness must be the
watchword. The defendant
company in the instant case did
not pay any regard to fairness
in its dealings with the
plaintiff employees; it acted
with some arbitrariness and
discrimination and these
rendered its acts wrongful as
not being in accord with the
terms and spirit of the
collective agreement.”
It does not appear to us that
sufficient guidelines have been
provided by the courts and
regrettably, we do not intend in
this appeal to formulate the
framework because the central
issue before us is one of
summary dismissal and not
termination under sections 62-64
of Act 651.
SUMMARY DISMISSAL UNDER THE
LABOUR ACT 651
We intend, now, to address the
legal effect of the dismissal
within the context of Act 651
and the current labour
environment especially the facts
in this appeal where the
obligations imposed on the
parties in their negotiated
contract of employment is in
issue.
Summary dismissal is a common
law right which the employer
exercises over an employee. This
right enables the employer to
severe or cut short an
employee’s appointment
immediately where the employee
does something that threatens
the existence of the business or
harms the reputation of the
employer. Examples of such
conduct are gross misconduct,
dishonesty, criminality,
competition with the employer’s
business, violent conduct,
drunkenness, insubordination,
dereliction of duty, refusal to
follow legitimate instruction
among other grounds provided in
the contract of employment. Most
often the worker would have
destroyed the trust and
confidence required between an
employee and employer.
In
KOBEA vs. TEMA OIL REFINERY
[2003-2004] 2 SCGLR 1033
at pages 1039 and 1040,
dismissal was explained by Twum
JSC in the following words:
“… At common law, an employer
may dismiss an employee for many
reasons such as misconduct,
substantial negligence,
dishonesty, etc… these acts may
be said to constitute such a
breach of duty by the employee
as to preclude the further
satisfactory continuance of the
contract of employment as
repudiated by the employee…
there is no fixed rule of law
defining the degree of
misconduct that would justify
dismissal.”
Again, in
LAGUDAH vs GHANA COMMERCIAL
BANK LIMITED [2005-2006] SCGLR
388, this court speaking
through Badoo JSC stressed that
an employer has the right to
summarily dismiss an employee
whose conduct is incompatible
with the due or faithful
discharge of his duties.
In
LEVER BROTHERS GHANA LIMITED V
DANKWA [1989-90] 2 GLR 385
at 388, the Court of
Appeal held that the power to
determine an employment
summarily meant that an employer
could exercise such right in
haste and on the spur of the
moment usually because the
employee has been caught
red-handedly committing the
offence.
Termination and dismissal as
ways of severing relationship
between workers and employers
developed out of the common law.
However, in Ghana, termination
has been developed and given
statutory recognition in
sections 15-18 and 62-64 of Act
651 while dismissal is not
mentioned. The fact is there are
similarities and differences
between the two terminologies.
One similarity between
termination and dismissal is
that just like death, retirement
and resignation provided for in
the contract of employment, they
constitute ways by which a
contract of employment could be
determined, disengaged, and
severed. Another similarity is
that the grounds for termination
and dismissal are negotiated in
advance and specified in
contracts of employment.
There is, however, a clear
distinction between termination
of a contract of employment and
dismissal. Termination usually
goes with notice and may be
voluntary or done for
organizational or business
reasons while dismissal is done
because of the behaviour or
wrongful act of the employee and
notice is not required.
Termination may not have reasons
assigned while because of the
sharp and corrosive nature of
dismissal reasons are assigned
for the disengagement. Dismissal
is usually punitive in nature
while termination is not and in
most cases is simply a process
to bring a contract of
employment to an end. Again,
termination of employment is a
right exercised by both employer
and worker while dismissal is
the sole right of an employer.
Further, under termination, the
worker receives an end of
service benefits such as his
gratuity, but a worker who is
dismissed loses all his
benefits.
The differences between the two
terminologies have been
recognised and accepted by our
courts since the common law was
introduced as part of the
received laws of this country.
Under the current fourth
republican dispensation, Article
11 recognises the common law as
part of the laws of Ghana. In
that regard, a common law remedy
applied as part of our labour
regime will continue to be part
of the laws of this country
until it ceases to exist by
express wording in a local
legislation or clear conflict
between the application of that
common law right and the
provisions of the local
legislation. We have searched
through Act 651 which is the
current legislation affecting
labour relations in this country
and have found no such express
departure or conflict between
the common law remedy and local
legislation. On the contrary,
section 176 of Act 651 provides
for the modification of existing
enactments as follows:
“The provisions of any enactment
of relevance to this Act in
existence before the coming into
force of this Act shall have
effect subject to such
modifications as are necessary
to give effect to this Act, and
to the extent that the
provisions of any of such
enactment is inconsistent with
this Act, the provisions of this
Act shall prevail”.
Our interpretation of this
provision is that Act 651 did
not repeal all previous
provisions of laws dealing with
labour in this country unless
they conflicted with the
provisions of the Act. In any
case a scan through other
provisions of Act 651 will leave
no one in doubt that the Act
recognises and acknowledges the
existence of the common law
remedy of dismissal.
Section 30 (3) headed
“Termination of Employment Not
To Affect Leave Entitlement”
states that the provision in the
section that a terminated worker
would be entitled to his annual
leave earned in the calendar
year and shall not be deprived
of any other grants or awards
including payment in lieu of
notice of termination which the
worker is entitled to will not
apply to cases where the “employer
has the right to dismiss a
worker without notice”.
Section 57 (8) on Maternity,
Annual and Sick Leave provides
that an “employer shall not
dismiss a woman worker”
because of her absence from work
on maternity leave.
Section 119 (2) headed “Exposure
to Imminent Hazards” states that
an “employer shall not
dismiss or terminate the
employment of a worker” or
withhold any remuneration of a
worker who has removed himself
or herself from a work situation
which the worker has reason to
believe presents imminent and
serious danger to his or her
life, safety, .or health.
And finally, section 127 (2)
headed Discrimination states
that a “person who seeks by
intimidation, dismissal, threat
of dismissal”, or by any
kind of threat or by imposition
of a penalty, or by giving or
offering to give a wage increase
or any other favourable
alteration of terms of
employment, or by any other
means, seeks to induce a worker
to refrain from becoming or
continuing to be a member or
officer of a trade union is
guilty of unfair labour
practice.
We can safely conclude that the
careful choice of words and
language by the Legislature in
the sections referred to above,
where in some cases
“termination” and “dismissal”
were used disjunctively is a
clear manifestation of the
intention on the part of the law
maker to give effect to the
separate and independent
existence of the two remedies in
our labour law. We further
believe that the failure to
mention dismissal as one of the
remedies for severing
relationship with a worker in
sections 15-18 and 62-64 of Act
651 would not affect the right
of labour unions and their
management to agree to include
it in their contracts of
employment as was done in the
CBA under consideration between
the Ghana Commercial Bank Ltd
and the Union of Industry,
Commerce and Finance Workers of
TUC.
In the appeal before us, the
parties being persons of full
age and understanding and
represented by labour experts on
both sides negotiated in Article
16 of the CBA as follows:
“Management may effect summary
dismissal for just and
reasonable cause involving
dishonesty, fraud, wilful
refusal to obey legitimate and
reasonable instruction, proven
gross misconduct and any of the
provisions of sections 12(a),
(b) and 13.”
The record revealed that
management after the
disciplinary investigations took
a serious view of the conduct of
the appellant for signing the
letter pledging the bank to
honour post-dated cheques when
the customer did not have
sufficient funds in his account.
The appellant also refused to
obey legitimate instructions by
passing entries disbursing a
loan facility for the purchase
of a vehicle by Gyimantwi
Enterprises contrary to the
Executive Credit Committee’s
instructions. Based on these
infractions, some of which the
appellant admitted he did not
have authorisation powers in the
way he acted and apologised, he
was dismissed summarily. It is
the fairness of this dismissal
that the appellant is
challenging in this ground.
We have no hesitation in stating
that where a worker is dismissed
summarily and the employer
cannot justify that the
dismissal conforms with the
terms of the contract of
employment, the dismissal would
be wrongful, and the courts
would be clothed with power to
strike down any such dismissal
of a worker which is contrary to
the CBA. This is how Ansah JSC
explained it at pages 794-795 in
Kobi v Ghana Manganese Co Ltd
(supra):
“It was time the ‘traditional
rule’ epitomised by Aryee v
State Construction Corporation
(supra), was re-considered
because it had the potential of
resulting in oppression by the
employer and creating docility
in the employee. With the fear
of losing his job at anytime
depending on the whims and
caprice of his employer who may
dismiss him at will, staring at
him perpetually, the worker
enjoyed no security of tenure.
He would become a malleable tool
in the hands of his master and
do his bidding. However, his
consolation was that a
collective agreement may require
that the employer could only
terminate an employment; upon
certain contingencies, namely,
the employee being found guilty
of an offence in a schedule of
offences in the collective
agreement; or the laws of the
land or statute regulating
employment in the land for the
time being; or declared
redundant under special
conditions”.
In the same way if the contract
of employment vested the
employer with the right to
dismiss a worker and the
employer acted on that power
based on justifiable evidence,
the court will uphold the
dismissal as binding based on
terms negotiated by the parties
in their CBA under section 105
of the Act 651 unless the
contract is unconscionable, i.e.
so severely one-sided and unfair
to one of the parties that it
shocks the conscience and it is
thus deemed unenforceable. This
is in consonance with the
time-tested common law strong
rule of freedom of contract.
In Kobi v Ghana Manganese Co
Ltd (supra) this court per
Ansah JSC examined the import of
a contract of employment within
the framework of disciplinary
actions imposed by employers and
held at pages 790-791 as
follows:
“In looking for justification
for the action of the company,
where a collective agreement
existed between the employer and
the employees, that must be the
yardstick or the acid test to
apply……. As stated, when the
parties have provided for
certain eventualities and
procedures in a collective
agreement, they ought to apply
fully so as to justify any
action by the parties to the
agreement. The binding efficacy
of collective agreement…. Must
never be whittled away”.
In this appeal management
dismissed the appellant based on
the terms of the contract
negotiated and agreed to in the
CBA. We find the reasons
provided for the dismissal to be
lawful and will not interfere
with the decisions of the trial
court and the Court of Appeal on
this ground.
FAIR HEARING IN ADMINISTRATIVE
JUSTICE:
This brings us to ground of
appeal 2 which is:
“The court below erred in law
when it held that plaintiff was
given a fair hearing within the
defendant/respondent/respondent
concerning his dismissal”.
The appellant argues that he was
not given a fair hearing because
he was taken by surprise when he
was confronted with other issues
other than those for which he
was invited to the disciplinary
committee and therefore, could
not prepare with documentary
evidence to show the committee.
This, according to him was
evidenced from failure to give
him opportunity to confront the
inspectors who did the audit
during their investigation or at
the disciplinary hearing and
further his right of appeal
under the CBA was hindered by
the managing director. Further
the hearing was biased against
him as the chair of the
disciplinary committee was a
judge in its own cause by
statements made by the chair at
the beginning of the
proceedings.
In response, the respondent
submitted that in accordance
with the decision of the court
in the Aboagye case (supra) a
disciplinary committee was
constituted, charges were
framed, and the appellant given
the opportunity to appear and
answer questions. The respondent
also submitted that the
proceedings at the disciplinary
hearing were recorded, fair and
that no evidence was adduced to
support the assertion of bias or
that the respondent treated
appellant unfairly. On the
appeal to the board through the
Managing Director, the
respondent stated that the
appeal was submitted on 28th
August 2009, three months after
the dismissal instead of the 30
days provided in the rules and
so the appeal was dismissed.
Since fair trial has been
raised, we turn to the primary
document of the land for
guidance. Like the property
rights of spouses, labour
matters touching on the right to
work has been classified by this
court as a human rights issue.
See the dictum of Benin JSC in
REPUBLIC V HIGH COURT, ACCRA
(INDUSTRIAL AND LABOUR DIVISION
COURT 2); EX PARTE PETER
SANGBER-DERY [2017-2018] 1 SCLRG
552. In this case
the Supreme Court noted that the
prohibited grounds for
terminating an employment under
section 63 of Act 651 are simply
restatements of the human rights
provisions under the
Constitution. Benin JSC noted at
page 569 as follows:
“Upon a close look at section 63
of the Act, it will be noticed
that the grounds stated therein
as grounds of unfair termination
of employment are largely taken
from the Human Rights provisions
of the 1992 Constitution
particularly articles 24, 26 and
29 and it appears the
legislature was merely seeking
to give effect to those
provisions.”
Being a human rights issue under
our Constitution, the right to a
fair trial must be adhered to at
all costs for the development of
our democracy. Every step taken
in the adjudication process
should be manifestly and
undoubtedly be seen to be fair.
Thus, Article
19(13) of the Constitution
dealing with the duties of
adjudicating authorities
provides as follows:
"An adjudicating authority for
the determination of the
existence or extent of a civil
right or obligation shall,
subject to the provisions of
this Constitution be established
by law and shall be independent
and impartial and where
proceedings for determination
are instituted by a person
before such an adjudicating
authority, the case shall be
given an adjudicating fair
hearing within a reasonable
time".
To give effect to the aged-old
principle of fair trial in
labour matters, adjudication of
labour disputes affecting
misconduct of workplace staff
before disciplinary committees
should as nearly as possibly
follow adjudication practices
which promote procedural
fairness such as natural
justice. There must also be
pre-hearing protocols which
eliminate elements of surprises.
Every effort must be made to
avoid ‘ambush’ or surprises
likely to work against the
interest of the staff under
investigations. Elements of
surprises have been abolished in
civil disputes in this
jurisdiction by the passage of
C.I. 87 which introduced the
exchanges of witness statements
and exhibits at case management
conference before trial. In
criminal cases accused persons
now have true sense of justice
after the interpretation of
Article 19 by this court in the
celebrated case of
Republic v Baffoe-Bonnie & Ors
[2017-2020] 1 SCGLR 327.
Surprises, therefore in
administrative justice should be
a matter of concern to the
court.
The fairness expected by the
framers of the Constitution has
been further given a boost in
Article 23 where administrative
officials and tribunals of
administrative bodies have been
charged to act fairly. According
to Article 23:
"Administrative bodies and
administrative officials shall
act fairly and comply with the
requirements imposed on them by
law and persons aggrieved by the
exercise of such acts and
decisions shall have the right
to seek redress before a court
or other tribunal."
Administrative bodies,
therefore, exercising
discretionary power to determine
the fate of workers facing
disciplinary hearings are to
make conscious effort to guard
against “illegality,
irrationality, and procedural
impropriety” and to act with
fairness and reasonableness if
the justice for all enshrined in
the Constitution is to be given
effect.
The appellant in that regard has
argued that he was taken by
surprise when he was confronted
at the hearing with other issues
which were not part of the
charges. He also stated the
hearing was biased against him,
the chair of the disciplinary
committee was a judge in its own
cause, and he was not given the
opportunity to confront the
inspectors who made adverse
findings against him leading to
his interdiction, investigation,
and subsequent dismissal. The
appellant gave an example as the
opening comments of the chairman
of the disciplinary committee at
page 59 of the record.
If, as alleged by the appellant,
the disciplinary hearing was
fraught with such acts, that
certainly would be a blight on
the right to a fair trial which
the courts and every citizen in
general must aspire to protect.
The fairness of a trial is not
limited to the prosecution or
the committee charged with
investigating a disciplinary
matter. The defence also has a
role to play in ensuring that
the process of fairness is
complete. So, where an appellant
as in this case has concerns
about matters which he was not
charged with but failed to
object to at the trial and was
content to provide answers
without any compulsion, he
cannot at this late stage raise
these matters as grounds of
appeal especially when the
record did not capture any of
these alleged infractions.
Besides, the appellant did not
plead any of these serious
breaches at the trial court and
no evidence was led on them at
the trial.
A second appellate court such as
the Supreme Court in reviewing
the record will limit itself to
the factual issues raised at the
trial and not on appeal to this
court. We have read the
introductory remarks of the
chairman of the disciplinary
committee which the appellant
alleges were prejudicial to the
fair hearing of the
investigation. The chairman
after stating the reasons for
the invitation of the appellant
stated the matters the appellant
was said to have been involved
in and how he should answer
allegations i.e., an admission
or a denial with evidential
proof and not just bare denial.
This is the concluding comments
from the chairman:
“Since the allegations are
based on a report of an
inspection, we will require you
to admit them or deny them. If
you are denying them, you must
come with unimpeachable proof of
the denial and not just by word
of mouth”.
We find nothing prejudicial
about these remarks which should
incur the wrath of the appellant
and to accuse the disciplinary
committee of being bias and
judges in their own cause.
We are satisfied that the
appellant received fair hearing
when he appeared before the
disciplinary committee and that
the constitutional requirements
in articles 19(13) and 23 were
satisfied in this matter.
We find the appellant’s conduct
incompatible with the faithful
discharge of his duty to his
employers, the bank.
Accordingly, we find no merit in
the appeal and same is
dismissed.
N. A. AMEGATCHER
(JUSTICE OF THE SUPREME COURT)
ANIN YEBOAH
(CHIEF JUSTICE)
M. OWUSU (MS.)
(JUSTICE OF THE SUPREME
COURT)
C. J. HONYENUGA
(JUSTICE OF THE SUPREME COURT)
DISSENTING OPINION
PWAMANG, JSC:-
My Lords, the facts and the law
in this case persuade me to a
conclusion different from the
rest of you my esteemed and
honourable colleagues. I
therefore herewith set out the
reasons for my decision to grant
one of the reliefs claimed by
the plaintiff. This case
involves a claim by a dismissed
worker for re-instatement in an
employment that does not have a
public element to it and as this
is a new area in our labour law
my judgment on this occasion
will be a bit long so bear with
me.
THE FACTS
The genesis of this case is a
letter of interdiction dated 3rd
October, 2008 which the
defendant/respondent/respondent
(the defendant) wrote to the
plaintiff/appellant/appellant
(the plaintiff), its employee
working at the Bole branch of
the bank, interdicting him for
his alleged involvement in acts
of fraudulent transfer of funds
between the bank accounts of
Total Petroleum Ghana Limited
and Gyimantwi Entreprise
(Gyimantwi), a customer of the
branch. The plaintiff had by
then worked continuously with
the defendant for 26 years and
risen to the rank of Chief
Clerk. Following upon the
interdiction, the plaintiff was
invited to face a disciplinary
committee set up by the
defendant on the basis of
provisions of a Collective
Bargaining Agreement (CBA) it
signed with the workers
representatives. The plaintiff
was served with a charge for the
enquiry by the Disciplinary
Committee but the charge was
different from the reason for
which he was interdicted. The
charge stated that the plaintiff
authorized and gave immediate
value to almost all other banks
cheques sent for clearing
between 1st January,
2007 and April, 2008 contrary to
laid down policies of the bank.
The plaintiff attended upon the
Disciplinary Committee and took
objection to the shifted ground
on which he was made to face
disciplinary proceedings. He
nevertheless participated in the
enquiry and presented his
defences. In fact, the
investigations went beyond the
matter of giving immediate value
to other banks cheques to
include his role in the
disbursement of a loan approved
by the bank for Gyimantwi to
purchase a vehicle for its
business.
My Lords, Gyimantwi at the
material time was a contractor
and dealer in petroleum products
at Bole and the major customer
of the Bole Branch of the
defendant. In its report at the
end of the enquiry, the
Disciplinary Committee acquitted
the plaintiff of being involved
in the manipulation of the
accounts of Total Petroleum
Ghana Limited and giving
immediate value to other banks
cheques. However, the Committee
found that the plaintiff and the
branch manager jointly signed
documents for the disbursement
of the loan granted to Gyimantwi
in a manner contrary to the
conditions of approval of the
said loan. The plaintiff signed
those documents as acting
Second-in-Command of the branch
at a time the actual officer was
said to be on leave. This, the
Committee held, constituted
misconduct under the CBA for
which the plaintiff was liable
to be sanctioned.
It must be stated at the outset
that the Branch manager was also
made to face disciplinary
proceedings and when he was
questioned about the unapproved
disbursement of the loan to
Gyimantwi, he accepted
responsibility as the one who
requested the plaintiff to sign
off the impugned letter and
entries. After his disciplinary
hearing, the Committee
recommended that he be dismissed
and he was accordingly
dismissed. He did not challenge
his dismissal and even testified
at the trial of this case in
defence of the plaintiff. One
Mohammed Abdul Fatawu of the
Bole Branch was also
investigated for the same
matters but the Committee did
not find him culpable so he was
exonerated.
As punishment for the misconduct
the Committee found against the
plaintiff, it recommended to the
Executive Management Committee,
which is the disciplinary
authority of the defendant in
respect of workers of the
category of the plaintiff, that
he should be demoted as no
dishonesty was established
against him. However, the
Executive Committee did not act
in accordance with the
Committee’s recommendations but
decided, as permitted by Article
18(c) of the CBA, to dismiss the
plaintiff from its employment.
In the letter communicating the
decision, the reasons for the
dismissal were stated as; “(a)
Signing the letter pledging the
bank to honour the post-dated
cheques issued by Gyimantwi to
the vendor of the vehicle, (b)
Passing the entries disbursing
the loan facility for the
purchase of the vehicle in a
manner contrary to the executive
credit committee’s instructions,
and (c) Refusing to obey
legitimate instructions as per
article 16(a) of the CBA
(2007-2009).”
THE EARLIER PROCEEDINGS
The plaintiff took strong
exception to his dismissal as it
meant that he lost all benefits
that he would otherwise have
been entitled to considering his
long service with the defendant.
He initially resorted to the
internal mechanisms of the
defendant to seek redress but
that did not yield positive
results. Thus, on 22nd
December, 2014 he took out a
writ of summons from the High
Court, Accra against the
defendant and claimed the
following reliefs;
i.
An order declaring the dismissal
of the plaintiff as unlawful.
ii.
Reinstatement of the plaintiff
with full benefits.
iii.
Compensation for unlawful
Dismissal.
iv.
Damages, costs and solicitor’s
fees.
v.
Any other reliefs deemed fit by
this Honourable Court.
In the alternative, the
plaintiff claimed as follows;
i.
An order declaring the dismissal
of Plaintiff as unlawful.
ii.
Payment of end of service
benefits to Plaintiff as of 20th
May, 2009 when Plaintiff was
unlawfully dismissed.
iii.
Interest on (b) ii at the
prevailing commercial bank rate.
iv.
Compensation for unlawful
dismissal.
v.
Damages costs and solicitor’s
fees.
vi.
Any other reliefs deemed fit by
this Honourable Court.
The plaintiff stated in his
pleadings that his role in the
disbursement of the loan to
Gyimantwi did not amount to
refusal to obey legitimate
instructions. He also contended
that the hearing he was accorded
by the defendant before
dismissing him did not measure
up to the proper standard of
fair hearing under the CBA as
the defendant kept changing the
allegations against him. By the
claim for re-instatement, the
plaintiff seeks a relief under
section 64 of the Labour Act,
2003 (Act 651) which is
predicated on section 63 of the
Act on Unfair Termination of
employment. In line with that,
the plaintiff pleaded at
paragraphs 8 and 9 of his
statement of claim as follows;
“8. Plaintiff contends that his
dismissal was not borne out of
the realities on the grounds
given in Plaintiff’s dismissal
letter as they are not borne out
of the disciplinary committee’s
report…..
9. Plaintiff will contend that
his dismissal is borne out of
malice as the Disciplinary
committee did not recommend his
dismissal and that Plaintiff did
absolutely nothing untoward to
merit dismissal by Defendant.”
In its statement of defence and
counterclaim, the defendant
asserted that the dismissal of
the plaintiff was lawful and
went further to allege
fraudulent conduct against him,
claiming that Gyimantwi induced
him with money for him to
conceal some of its cheques
causing financial loss to the
bank. The defendant insisted
that the plaintiff had been
given a fair hearing before the
Disciplinary Committee and he
was found to have acted together
with the branch manager in a
manner contrary to laid down
policy so he deserved to be
dismissed for dereliction of
duty.
At the close of the trial the
High Court gave judgment against
the plaintiff but dismissed the
defendant’s counterclaim. The
learned High Court judge held
that the defendant failed to
prove its claim of fraudulent
conduct against the plaintiff.
The case turned principally on
the fact that the plaintiff
signed jointly with the branch
manager for a loan approved by
the defendant to be disbursed in
a manner contrary to the
conditions for the loan as
approved by management. In
rejecting the defence of the
plaintiff that it was the branch
manager, his immediate superior,
who requested him to sign, the
judge said as follows;
“As afore stated, he may not
have signed it deliberately with
the intention of obtaining a
material advantage to the
detriment of the Defendant but
he knew what he was doing was
wrong as he contradicted an
earlier memorandum.”
At the trial of the case the
defendant had raised new charges
against the plaintiff that it
had not pleaded, one being that
he contravened Article 15(c) of
the CBA in that he learnt money
in his private capacity to
Gymiantwi, a customer of the
bank. The defendant further
accused the plaintiff of breach
of Article 15(e) of the CBA
which forbids an employee from
engaging in commercial business
without permission from the
managing director. The defendant
led evidence that the plaintiff,
while working with the bank
engaged in farming and even won
a National Best Farmer’s Award
without permission of the
Managing Director. The plaintiff
argued that his farming
activities were well known to
his branch manager and when he
won the National Award his
activities were deemed known by
management but he was never
queried on it until at the trial
in court only because he sued
the defendant. In dismissing
this argument of the defendant
not complaining about these
matters the trial judge, relying
on the case of
Lever
Brothers Ghana Limited v Annan
[1989-90] 2 GLR 385,
held that an employer can
use new grounds to justify a
dismissal after the dismissal.
I shall digest that case
fully in fra.
The plaintiff appealed promptly
against the judgment of the High
Court but his appeal was
dismissed by the Court of
Appeal. Lovelace-Johnson, JA (as
she then was), with whom the
rest of the court agreed, summed
up their reasons for dismissing
the appeal as follows;
“The trial judge made a finding
of fact at page 348 of the ROA
that the Plaintiff contravened
the CBA and Staff Service Rules
and in so doing misconducted
himself. Her reasons for this
finding can be found at pages
348 to 349. At those pages the
trial judge reproduced portions
of the proceedings and gave her
reasons for this finding. I am
satisfied that her reasons for
her finding are sound and borne
out by the evidence on record
and in line with the law.”
THE APPEAL TO THE SUPREME COURT.
The plaintiff has appealed from
the decision of the Court of
Appeal to the Supreme Court and
the grounds of appeal set out in
the notice of appeal are that;
i.
The judgment is against the
weight of the (sic) evidence.
ii.
The court below erred in law
when it held that appellant was
given a fair hearing within the
defendant/respondent/respondent
concerning his dismissal.
Particulars of error
a.
The court below did not take
into account the fact that the
appellant was taken by surprise
when he was confronted with
other issues other than those
for which he was invited to the
disciplinary committee of the
respondent.
b.
The court below ignored the fact
that appellant’s right of appeal
within the respondent was
hindered by respondent’s
managing director.
iii.
The court below erred when it
held that the dismissal of
appellant was fair.
ARGUMENTS OF THE PLAINTIFF IN
THIS APPEAL
In his statement of case, the
plaintiff partly re-echoes his
arguments in the two lower
courts and submits that contrary
to what those courts held, the
whole conduct of the
disciplinary proceedings were
not in line with terms of the
CBA and the Staff Service Rules.
He maintains that on a proper
reading of Articles 18(a)(b)
and(c) of the CBA, he ought to
have been tried by the
Disciplinary Committee for only
the offences for which he was
interdicted. Not having done so,
the defendant breached the CBA.
The plaintiff also points out
that the membership of the
Disciplinary Committee did not
conform to Article 14(g) of the
CBA. Still on failure to grant
him hearing in accordance with
the CBA, the plaintiff contends
that under Article 14(h)(iii) of
the CBA, where after
disciplinary proceedings the
disciplinary authority decides
to vary the sanction recommended
by the Committee, it shall
inform the union and provide the
reason for the variation. This
was not done in this case so the
defendant breached the CBA and
the procedure adopted was thus
unfair. Additionally, the
plaintiff argues before us, very
forcefully, that from all the
circumstances of his case, it is
wrong to conclude that he failed
to obey legitimate instructions
of his employer. He quotes
Article 13(a) of the CBA and
submits that it enjoined him to
obey legitimate orders of
persons under whose jurisdiction
he was serving and he did
exactly that by signing off the
entries as ordered by the branch
manager under whom he was
serving. The plaintiff finally
submits that the lower court did
not consider section 63(4) of
Act 651, a statute binding on
the court, and that if they did
they would not have held his
dismissal as fair.
ARGUMENTS OF THE DEFENDANT IN
THIS APPEAL.
In response the defendant says
that all the matters relating to
the handling of the account of
Gyimantwi including the manner
of disbursement of the loan and
the plaintiff’s role in it were
raised at the disciplinary
proceedings and he was given
opportunity to state his side so
he cannot complain of not being
given a fair hearing. Respondent
argues that where after
interdiction investigations
reveal other misconduct not
stated in the interdiction
letter, it is not out of place
to raise them during the
disciplinary hearing so Article
18 of the CBA was not breached.
As to the charges that were only
laid for the first time at the
trial in court, the respondent
states that they were uncovered
during the case and the
plaintiff cannot complain that
he was taken by surprise as the
law permits reliance on new
matters in defence of a
dismissal. Defendant contends
that in any event, in court the
plaintiff was given opportunity
to defend himself on those
matters. The defendant says that
the composition of the
Disciplinary Committee was in
compliance with Article 14 of
the CBA. As to whether the
Executive Management Committee
complied with Article 14(h)(iii)
of the CBA and provided reasons
for varying the recommended
punishment, the defendant,
without saying whether it did or
did not comply with the
provision, states that the two
lower courts held that the
burden was on the plaintiff to
prove that it did not but he
failed to discharge that burden.
On the issue of section 63(4) of
Act 651, the defendant submits
that the dismissal of the
plaintiff was fair and that it
was in accord with section 62(b)
of the Act. Defendant quotes the
provisions of section 63(4) of
Act 641 as follows;
“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.”
Defendant then submits that;
“The defendant gave the reasons
for the termination of the
plaintiff’s employment (sic) in
exhibit GA at page 40 of the
record. The proceedings of the
Disciplinary Committee and the
trial at the High Court clearly
shows that the dismissal was
effected after a fair process.
The CBA exhibit GA5 was complied
with. Plaintiff was given notice
of the charges and he defended
himself. The defendant, it is
submitted proved that the
dismissal of the plaintiff was
fair and is in accord with
fairness procedure under the
Act.”
My Lords, it is vital to
recognize that Unfair
Termination of employment as
a cause of action is separate
and distinct from Unlawful
Termination of employment
or wrongful dismissal as known
to the common law. In the case
of
Charles Afram v SG-SSB Ltd; CA
NO. J4/71/2018, unreported
judgment of the Supreme Court
dated 21st March,
2019, the court per Kotey,
JSC observed as follows;
“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).
Though unfair termination is new
in our jurisdiction as it was
introduced for the first time by
sections 62-66 of Act 651 in
2003, it has always been a part
of English Law since the passage
by the British Parliament of the
Industrial Relations Act,
1971. As the plaintiff in
this appeal has grounded his
case on both Unlawful Dismissal
and Unfair Termination, I intend
to consider the appeal on the
lines of the following two main
questions; (a) Was the dismissal
of the plaintiff unlawful? and,
(b) Was the dismissal of the
plaintiff unfair as envisaged by
Act 651?
CONSIDERATION OF THE APPEAL.
TERMINATION OF EMPLOYMENT.
This case calls for a detailed
discussion of how our employment
law has evolved over time to its
present state as provided in Act
651 so my discussion of the
legal principles will include
the historical progression of
the law on termination of
employment. At the initial
stages of the common law labour
relations were seen only within
the framework of a contract,
whether written or unwritten,
and as such it may be brought to
an end just as any contract
entered into by two parties.
Bringing to an end an employment
contract is generally referred
to as termination of employment.
An employment relationship may
be brought to an end or
terminated either by the
employer or by the employee. At
common law the employer could
dismiss the worker for valid
reasons or decide to terminate
the employment because she no
longer wished to work with the
particular worker. The worker
too may voluntarily resign from
the employment but there are
also situations where the
employer creates conditions that
make it impossible for the
worker to continue in the
employment compelling the worker
to stop the work. That is
referred to as constructive
dismissal.
At the early times the common
law principles on employment
were influenced by theoretical
conceptions of the middle ages
that regarded the services a
worker provides to her employer
as a commodity the terms of
exchange of which were freely
negotiated between the worker
and the employer at arms length.
The terminology that was used to
describe the relationship
between worker and employer was
“master-servant” and the
principles evolved
understandably permitted the
master to do as he pleased with
his servant who had no real
rights except to stop the work.
In the course of time, where the
worker and the employer entered
into agreed terms for their
relationship, the courts
enforced those terms as a matter
of freedom of contract. But with
developments in human
interaction for production of
goods and services, the gradual
expansion of civil rights in
Western democracies and the
growth of trade unionism, the
fallacy of the theory of a
worker’s services as only a
commodity traded on free terms
and at arms length with the
employer became evident. This
led governments to pass
legislations within a framework
that totally shifted from the
theory of equality of arms in
negotiations of terms of
employment contracts and offered
protection to workers while
accommodating the interests of
employers. The reality of the
relationship between worker and
employer that has influenced
most of modern labour
legislations has been aptly
captured by that doyen of
British Labour Law, Sir Otto
Kahn-Freund in the following
words in his book “Labour and
the Law” (1972) at p.8;
“[T]he relation between an
employer and an isolated
employee or worker is typically
a relation between a bearer of
power and one who is not a
bearer of power. In its
inception it is an act of
submission, in its operation it
is a condition of subordination,
however much the submission and
the subordination may be
concealed by that indispensable
figment of the legal mind known
as the ‘contract of employment.”
On account of the recognition of
the inherent inequality in the
relationship of worker and
employer, the main object of
labour legislation has been to
act as a countervailing force to
counteract the unequal
bargaining power which is ever
present in the employment
relationship. Labour statutes
impose terms and conditions on
the employment relationship and
they have effect, unless
expressly exempted,
irrespective of any contractual
terms to the contrary. Thus
Section 1 of Act 651 states as
follows;
“The Act applies to all workers
and to all employers except the
Armed Forces, the Police
Service, the Prison Service, and
the Security and Intelligence
Agencies specified under the
Security and Intelligence
Agencies Act, 1996 (Act 526).”
An exemption is also made in
section 19 of Act 651 as
follows;
“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.”
In
Nartey-Tokoli & Ors v Volta
Aluminum Co Ltd [1989-90] 2 GLR
341, Taylor JSC
writing for the 4-1 majority of
the Supreme Court at pages
362/363 of the Report said as
follows; “Lord Loreburn L.C.
in,
Attorney-General v. Birmingham,
Tame and Rea District Drainage
Board [1912] A.C. 788
at 795, H.L. expressed
the collective view of common
law judges when he said that:
"[a] court of law has no power
to grant a dispensation from
obedience to an Act of
Parliament."
Therefore, while it is true that
the rules of the common law on
employment evolved on the back
of master-servant relationship
have influenced some aspects of
current labour law, a
substantial part of the rights,
especially of the employer at
common law, have been greatly
reduced, either by contracts of
employment negotiated on behalf
of workers by strong trade
unions or statutes passed by
governments. Currently, certain
concepts on labour matters have
gained the status of
international best practices and
are promoted by the
international labour movement in
the form of international
treaties ratified by many
countries. Hence it is stated in
the Memorandum that accompanied
the Bill that has been enacted
as Act 651 as follows;
“The purpose of this bill is to
bring the existing enactments on
labour into conformity with the
Constitution and the several
International Labour
Organisation (ILO) Conventions
to which Ghana is a signatory
and to consolidate the several
pieces of enactments on the
subject into one statute.”
Against this background, though
we refer to wrongful or unlawful
dismissal as common law cause of
action, its full ambit has been
profoundly affected by
contractual terms and statutes.
Ollennu, J (as he then was)
presented the accurate state of
the law on unlawful termination
of employment when in the case
of
Morgan & Ors v Parkinson Howard
Ltd [1961] GLR 68 at
p. 70 he said as follows;
“In a claim for wrongful
dismissal it is essential that
the plaintiff should prove the
terms of his employment and then
prove either that the
determination of the employment
is in breach of the terms of his
agreement, or that the
determination is in
contravention of the statutory
provisions for the time being
regulating employment. His
claim cannot succeed if he fails
to satisfy the court on these
points.”
See also the case of Kobi v
Ghana Manganese Co. Ltd
[2007-2008] SCGLR 771(SC).
UNLAWFUL DISMISSAL AND UNLAWFUL
TERMINATION
The common law from the
beginning recognized certain
grounds upon which it was lawful
for an employer to dismiss a
servant. These grounds included
dishonesty, incompetence and
acting against the interest of
the employer, and for any of
these reasons an employer could
lawfully dismiss her worker. The
term that was used was dismissal
or summary dismissal and it
generally referred to
termination of employment for
cause in that the employer has a
reason for bringing the
employment relationship to an
end. The law was therefore that
if the employer decides to
dismiss a worker on any of the
above grounds and the worker
disputes the reason and denies
being guilty of the misconduct
alleged, the law required the
master to prove that she was
indeed liable failing which the
dismissal would be held wrongful
or unlawful. This is what in
Kobea
v Tema Oil Refinery [2003-2004]
2 SCGLR 1039 Dr Seth
Twum, JSC referred to when he
said at page 1040 that:
“…At common law, an employer may
dismiss an employee for many
reasons such as misconduct,
substantial negligence,
dishonesty, etc… these acts may
be said to constitute such a
breach of duty by the employee
as to preclude the further
satisfactory continuance of the
contract of employment as
repudiated by the employee…
there is no fixed rule of law
defining the degree of
misconduct that would justify
dismissal.”
When parties began writing
formal and detailed contracts of
employment, in drafting
provisions on termination for
misconduct, the term used has
been dismissal or summary
dismissal and this can be found
in most contracts of employment
and collective bargaining
agreements as we have in this
case. Some statutes too in
making provisions concerning
this right of the employer to
terminate a worker’s employment
for cause employ the term
dismissal. When the employment
of a worker is ended by
dismissal as we have in this
case, usually the worker goes
home without any compensation
paid to him no matter the number
of years of satisfactory work
with the employer.
Another way an employment
relationship may be brought to
an end by the employer that was
recognized by the common law, as
we have already noted, was that
an employer had a right to end
an employment relationship for
any reason or no reason at all.
Lord Reid said as follows in
Ridge
v Baldwin [1963] APP.L.R 03/14,
HL;
“The law regarding master and
servant is not in doubt. There
cannot be specific performance
of a contract of service, and
the master can terminate the
contract with his servant at any
time and for any reason or for
none.”
In the case of
Aryee
v State Construction Corporation
[1984-86] 1 GLR 425 CA,
at page 432, Adade, JSC speaking
on behalf of the Court of Appeal
said that;
It should be noted that a
contract of service is not a
contract of servitude. To say,
as we are wont to do, that it
gives rise to a master-servant
relationship is to distort
reality. The employee is not
the servant; in the popular
sense, of the employer. He is
merely his employee. The
contract is framed in such a way
that either party may bring it
to an end and free himself from
the relationship painlessly. In
this case, the defendant could
at any time give the relevant
three months' notice (or forfeit
an equivalent in salary) and
leave the corporation, without
justifying his action to the
corporation. He need not give
any reason for his action nor is
the corporation entitled, if he
should give one, to satisfy
itself that the reason is true
or false, sufficient or
insufficient, justified or
unjustified. In the same way it
would seem to us that the
corporation need not assign any
reason for choosing to terminate
their contract with the
defendant. The contract merely
requires that the corporation
gives three months' notice (or
its equivalent in salary), and
their conduct will be perfectly
in order.
Also, in Kobea v Tema Oil
Refinery (supra) Dr Seth
Twum, JSC referred to this
situation in the following
words;
… 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 notice.
He does not have to reveal his
reason, much less justify the
termination…”
In this opinion I take the view
that, to the extent that these
statements of Adade and Dr Seth
Twum, JJSC were in respect of
the state of Ghanaian Law before
the passage of Act 651, they
were good law. Note that the
term used here is “terminate”
and that is generally the term
used where an employer brings an
employment relationship with a
worker to an end but not on
account of misconduct or
incapability of the worker. So
in employment contracts and
statutes, the term termination
is regularly used to refer to
this ground of ending the
employment relationship where
the employer is not alleging
misconduct or incapability as
distinct from dismissal or
summary dismissal. It is
therefore understandable to
refer to wrongful termination or
unlawful termination where
conditions to be fulfilled by an
employer before termination,
such as period of notice as
contained in an employment
contract or statute, have not
been complied with. Where the
employment of a worker is
terminated this way and in
accordance with the requisite
notice, it normally goes with
some compensation payable by the
employer calculated according to
the worker’s salary and the
length of time she was in the
particular employment.
Notwithstanding the above
explanation of the difference
between the terms “dismissal”
and “termination”, they both
amount to termination and that
term may be used to refer to
both situations. In fact, in the
instruments of the ILO, they
apply the term “termination” to
refer to both dismissals and
termination properly so called.
That is what the draftsman also
did in Act 651 and used the term
“termination” to refer to both
what is usually called dismissal
and what is termination
properly so called. This
drafting is understandable
because the Memorandum to the
Act said it was to bring our
Labour legislation into
conformity with ILO treaties
ratified by Ghana. For
instance, Section 15 of the Act
is as follows;
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.
It is obvious that the section
refers to termination of the
employment of a worker by the
employer for justifiable reasons
and subsections 15(e)(ii) &
(iii) are specifically in
respect of dismissal of an
employee by the employer.
Section 15(b) equally refers to
constructive dismissal but Act
651 uses the terminology
“termination”. Termination
properly so called by exercise
of the employer’s right to bring
to an end an employment
relationship is covered by
Section 17 of the Act which
provides as follows;
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 a 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 the notice.
As aforesaid, the principles of
the common law on employment
have been markedly affected by
statute so though one may talk
of common law cause of action
for wrongful dismissal or
unlawful dismissal, if in the
case reliance would be placed on
section 15 of Act 651, then
describing an action for
wrongful dismissal as unlawful
termination would not be wrong
in Ghanaian Law.
Now, let us return to what
Ollennu, J stated in Morgan &
Ors v Parkinson Holman (supra)
and answer the question whether
in this case the plaintiff has
been able to prove that his
dismissal was in breach of the
terms of his employment as
captured in the CBA and Staff
Service Rules or was in breach
of section 15 of Act 651, which
is the relevant statutory
provision on unlawful
dismissals. At this point in the
case there is not much dispute
about the primary facts as found
by the trial judge and affirmed
by the Court of Appeal. The real
difference between the parties
is the interpretation to be
given to the primary facts and
the legal consequences that flow
from the facts.
I will first consider the
plaintiff’s case that the courts
below erred in admitting the
charge of lending money in his
private capacity to a customer
and undertaking commercial
business without permission of
the managing director both of
which were not brought up before
his dismissal but only after the
dismissal when he sued in court.
The plaintiff’s case is that
before he can be sanctioned for
any charge of misconduct, the
charge ought to have been
preferred at least before he
faced the Disciplinary Committee
but that was not done in respect
of these two charges. In answer,
the defendant quoted and relied
on the following passage in the
judgment of the Court of Appeal
in Lever Brothers Ghana Ltd v
Annan [1989-90} 2 GLR 385 at
388;
“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 [p.389]
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."(emphasis supplied).
First, that principle states
that where the employee was
guilty of misconduct so grave
that it justifies instant
dismissal. In the Lever
Brothers case, the employees
committed fraud by dishonestly
paying for and collecting large
quantity of products of the
employer that were meant for
their customers in Kumasi. At
that time in Ghana there was
shortage of those products and
there was an offence known as
diversion of essential
commodities. The employees were
reported to the police who
arrested them and carried out
investigations that established
their fraud and that justified
the application of the principle
in the Boston Deep Sea
Fishing case. That case can
therefore be distinguished from
the case at bar. What is so
grave a misconduct that
justifies instant dismissal
about the plaintiff engaging in
farming without permission or
using his own money to satisfy
cheques of a key customer for no
reward as we have in this case?
When the CBA talks of lending it
must be understood to mean
lending at an interest in
competition with the bank but in
this case there was no evidence
of interest paid to the
plaintiff or any benefit that
accrued to him from that gesture
he extended to Gyimantwi.
The Boston Deep Sea Fishing
case involved the discovery
of fraud committed by Mr Ansell,
a director, which was not known
to the employer until after the
termination of his employment,
but in the instant case the
trial court acquitted the
plaintiff of any fraud so those
cases cannot serve as authority
for holding that the defendant
could dismiss the plaintiff on
these two new charges without
laying them during the
disciplinary hearing. Similarly,
the facts of
Presbyterian Church Agogo v
Boateng [1984-86] 2 GLR 532
were that the plaintiff who
was on duty as a senior
nurse-midwife was required to
help pregnant women to deliver
safely but she rather insulted
and twice slapped a woman who
was in the pangs of labour with
her child dropping. She was
served a query which she ignored
to answer so she was summarily
dismissed. That was proven grave
misconduct that justified
instant dismissal so that
decision can also be
distinguished from this case.
But, a more fundamental point
against the defendant on this
matter is that this so called
common law principle relied on
in the Lever Brothers case
has been held to be subject to a
right to hearing contained in an
employment contract, and I will
add, to clear provisions of a
binding statute. In
Laguda
v Ghana Commercial Bank
[2005-2006] SCGLR 388
at page 402 Date-Bah, JSC
said as follows;
“Thus, once there is evidence on
the record sufficient to justify
the conclusion that the
plaintiff’s behavior 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.”
(emphasis supplied).
In this case, a reading of the
provisions of the CBA and the
Staff Service Rules as a whole,
and particularly Articles 14(e)
on the mandate of the
Disciplinary Committee and 18 on
interdiction and investigations
of offences, I have no doubt in
my mind that the contract of
employment between the parties
entitled the plaintiff to be
offered the opportunity to be
heard on any charge arising out
of the CBA before that charge
can form the basis of a decision
to dismiss him. These two new
charges were based on specific
provisions in the CBA and not
otherwise.
Furthermore, in Aboagye v
Ghana Commercial Bank
[2001-2002] SCGLR 797 the
respondent contended that it had
a right to dismiss the appellant
without a formal hearing as
provided for in its Staff
Service Rules since there was
evidence before the court that
he had acted negligently in
passing some foreign exchange
entries without properly
verifying them. In dismissing
that argument the Supreme Court
held, per Bamford-Addo, JSC, as
follows at page 815 of the
Report;
“Finally, in considering the
question whether or not in any
particular case there has been a
failure of natural justice, the
fact that there was evidence to
support the charge preferred
against the plaintiff, namely
negligence, is immaterial to the
determination of the issue
whether the plaintiff had not
been given a fair trial. Lord
Denning in the case of
Annamuthodo v Oil Field Workers
Trade Union [1961] AC 945 on
the point said;
‘Mr Lazarus did suggest that a
man could not complain of
failure of natural justice
unless he could show that he had
been prejudiced by it. Their
Lordships cannot accept this
suggestion. If a domestic
tribunal fails to act in
accordance with natural justice,
the person affected by their
decision can always seek redress
in the courts. It is a prejudice
to any man to be denied justice.
He will not be entitled to
damages if he suffered none. But
he can always ask for the
decision against him to be set
aside.”
On this issue there is the
further question of if its
amounts to a fair procedure to
dismiss a worker on new charges
after the fact of dismissal?
That I shall discuss under
unfair termination. For the
reasons explained above, I am of
the considered opinion that the
charges of doing commercial
business and lending money to a
customer could not be relied on
by the defendant as
justification for dismissing the
plaintiff.
I will next consider whether it
was right for the defendant to
use the evidence on the manner
of disbursement of the loan to
Gyimantwi to dismiss the
plaintiff as that issue was not
specifically stated either in
his interdiction letter or the
charge preferred against him
for the hearing before the
disciplinary committee. The
plaintiff submits that Article
18 of the CBA implies that it is
the charges set out in an
interdiction letter that must be
tried by the disciplinary
committee but I have read that
provision closely, as well as
Article 14 of the CBA and they
do not support such a rigid
interpretation as though it was
a criminal trial. The charges in
the interdiction letter and the
letter inviting him for the
disciplinary proceedings read
together sufficiently notified
the plaintiff that the propriety
of the handling of issues
concerning their customer,
Gyimantwi, were part of the
subject matter of the
disciplinary action. The
disbursement of the loan was an
integral part of those issues so
I am of the view that the
plaintiff had sufficient notice
that the disbursement of the
loan would be enquired into.
Though the defendant was
generally sloppy in the handling
of the whole disciplinary action
against the plaintiff,
particularly having regard to
the experience accumulated from
the several cases in the Law
Reports concerning this very
defendant, some of which have
been referred to in this case,
it would still be stretching the
argument too far to demand
criminal-trial-like charges that
are drafted with the precision
of experienced prosecutors.
In fact, the issue of the
disbursement of the loan to
Gyimantwi and the plaintiff’s
role in it was extensively
examined at the disciplinary
hearing and the explanation of
the plaintiff was heard by the
committee before it concluded
that his role in it breached his
obligations under the CBA. The
plaintiff does not seriously
challenge that he signed for the
loan granted to Gyimantwi to be
disbursed in a manner contrary
to the conditions of approval by
the Executive Credit Committee
of the Bank. Even if he was not
aware of the conditions, he
ought to have familiarized
himself with them before
appending his signature. His
explanation was that the branch
manager, his immediate superior,
requested him to sign and he
complied because he was his
superior. Indeed, a reading of
Article 13(a) of the CBA, which
elaborates on the offence of
disobeying legitimate
instructions, and not Article
16(a) quoted in the dismissal
letter, lends itself to
different interpretations. It is
as follows;
Article 13(a) of the CBA
provides that;
“[Every officer] shall observe,
comply with and obey all
legitimate orders and directions
which are in the interest of the
bank and which may from time to
time, be given to him/her by any
person or persons under whose
jurisdiction, superintending or
control he may for the time
being be placed.”
This provision is nebulous
because it is capable of being
interpreted to mean that the
interest of the bank as
determined by the person under
whose jurisdiction an officer is
serving. This makes the
explanation of the plaintiff on
this issue deserving of
favourable consideration when it
came to the punishment to
impose. The defendant has argued
that if a person carries out
unlawful orders he will be held
culpable for the unlawful act
and reference has been made to
the case of Yaokumah v The
Republic [1976] 2 GLR 147.
That case, with due respect, is
a criminal case and it talks
about criminal liability for
committing an offence with the
defence of superior orders. In
the civil law realm, the legal
consequences of a proven defence
of superior orders has always
been taken into account in
determining liability where
malicious intent is involved.
The distinction of the defence
between criminal culpability and
civil liability is shown in the
following statement by the
authors of the Halsbury’s
Laws of England (4th ed), Vol.
11(1) at p. 34, para. 27:
“The mere fact that a person
does a criminal act in obedience
to the order of a duly
constituted superior does not
excuse the person who does it
from criminal liability, but
the fact that a person does an
act in obedience to a superior
whom he is bound to obey, may
exclude the inference of malice
or wrongful intention which
might otherwise follow from the
act.”(emphasis supplied).
Nonetheless, since failing to
obey laid down instructions is a
ground of misconduct for which
the defendant may terminate the
employment of a worker, the
dismissal in this case is not
unlawful on that score but the
explanation of superior orders
which was confirmed by the
branch manager who testified in
support of the plaintiff ought
to have been taken into account
by the Executive Management
Committee in determining the
appropriate punishment as the
Disciplinary Committee rightly
did.
The plaintiff has next
complained about the composition
of the membership of the
Disciplinary Committee, but
there is not much value in that
complaint since the defendant
did not in substance breach the
provisions of the CBA under
which the disciplinary
proceedings were conducted so I
am not persuaded to accept that
complaint. Finally, in respect
of the failure by the Executive
Management Committee of the
defendant to comply with Article
14(h)(iii) of the CBA, it seems
to me that the argument of the
defendant leaves some critical
questions unanswered but the
issue fits more into the
procedural fairness of the
dismissal so I will discuss it
under the heading of unfair
termination, to which I now
turn.
UNFAIR TERMINATION.
In order for us to have a full
understanding of unfair
termination as a cause of action
in our jurisdiction, we need to
set out the three provisions of
Act 651 on the concept which are
directly in issue in this case.
There may be unfair termination
arising out of a redundancy
exercise by an employer but that
does not concern us in this case
so that will not be specifically
considered.
They are sections 62, 63 and 64
and are as follows;
Fair and Unfair Termination of
Employment
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
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 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 the employment;
or
(i) that the worker refused or
indicated an intention to refuse
to do a work normally done by a
worker who at the 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 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
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.
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 present a
complaint to 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.
My Lords, it is instructive to
underscore the fact that, as
stated in the Memorandum to the
Bill, the above provisions are a
replication of Part II of the
ILO Termination of Employment
Convention, 1982 (No. 158).
It is plain that the above
provisions are aimed at changing
the law on termination of
employment as it existed prior
to the enactment of Act 651.
Therefore, in interpreting the
above provisions to discover the
intention of parliament, we must
take into account the mischief
in the existing law that the
provisions on unfair termination
of employment were intended to
address. This approach to the
interpretation of statutes which
introduce previously
non-existing rights and remedies
is referred to as the Mischief
Rule of interpretation. It was
established in the sixteenth
Century English case known as
Heydon’s Case (1584) 76 ER 637.
In that case the Barons of the
Exchequer unanimously held as
follows;
“And it was resolved by them,
that for the sure and true
interpretation of all statutes
in general (be they penal or
beneficial, restrictive or
enlarging of the common law)
four things are to be discerned
and considered:
1st. What was the common law
before the making of the Act.
2nd. What was the mischief and
defect for which the common law
did not provide.
3rd. what remedy the Parliament
hath resolved and appointed to
cure the disease of the
commonwealth.
And, 4th. The true reason of the
remedy;
and then the office of all the
Judges is always to make such
construction as shall suppress
the mischief, and advance the
remedy, and to suppress subtle
inventions and evasions for
continuance of the mischief, and
pro private commodo, and
to add force and life to the
cure and remedy, according to
the true intent of the makers of
the Act, pro bono public”.
The above directive has been
consistently applied by common
law judges when called upon to
construe statutes that create
new remedies previously unknown
to the existing law. See
Mercer
v. Guinea Press Ltd., [1962] GLR
638.
Since the provisions in issue
here originate from the ILO
treaty, the mischief they are
directed to cure can very easily
be extracted from the
instruments of that
organization. In a review of
employment protection globally,
the ILO in its publication
titled “Employment Protection
Legislation”, 2015 states the
background and objectives of its
Termination of Employment
Convention, 1982 (No. 158)
as follows;
“Employment protection and
promotion of employment security
as an essential aspect of the
right to work have been a major
concern of the International
Labour Organization (ILO)
throughout its history.
1.
The first international labour
instrument dealing specifically
with this issue – the
Termination of Employment
Recommendation (No. 119) was
adopted in 1963. It marked the
recognition at the international
level of the idea that workers
should be protected against
arbitrary and unjustified
dismissals and against the
economic and social hardship
inherent in their loss of
employment.
2.
To take into consideration new
developments since then, such as
heightened global competition
and recurrent economic
downturns, the Termination of
Employment Convention, 1982 (No.
158) and the Termination of
Employment Recommendation, 1982
(No. 166), were adopted by the
International Labour Conference
in 1982
3.
To date, most of the countries
around the world have adopted
some type of employment
protection legislation. These
provisions usually reflect the
de facto asymmetry of
contractual rights of either
party to terminate employment
relationship, as well as the
need to address the consequences
of this asymmetry: while
termination of the contract by
the worker – exercising the
fundamental right to protect his
or her freedom of work – is
oftentimes merely an
inconvenience for the employer,
the termination of the contract
of employment by the employer
can result in insecurity and
poverty for the workers and
their family, particularly
during the periods of high
unemployment.
4.
Moreover, employment protection
can also be seen as a gatekeeper
for fundamental principles and
rights at work, as well as other
rights of a worker: for example,
the fear of being dismissed
arbitrarily may induce employees
to wave rights related to trade
union activities, maternity, or
education (De Stefano, 2014).”
Accordingly, as I set out to
interpret these provisions and
apply them to the facts of this
case I have in my mind the above
stated mischief of insecurity of
employment in the existing law
that the legislation is meant to
cure. I have undertaken an
extensive search for precedent
within the limits of our poor
system of up-to- date law
reporting but I have not come
across a decision of our courts
in Ghana which has thoroughly
considered sections 62, 63 and
64 of the Act and pronounced on
their scope. But, since unfair
termination has been known in
labour law globally for some
years now, when our parliament
decided to introduce it into our
jurisdiction the words used must
be presumed to bear certain
meanings generally applied to
them in labour instruments and
decided cases, particularly in
countries with a similar system
of law as us.
In the case of
Unmin
v Hanson [1891] 2 QB 115
at 119 Lord Esher
said as follows;
“If the Act is directed to
dealing with matters affecting
everybody generally, the words
used have the meaning attached
to them in the common and
ordinary use of language. If the
Act is one passed with reference
to a particular trade, business,
or transaction, and words are
used which every body conversant
with the trade, business or
transaction knows and
understands to have a particular
meaning in it, then the words
are to be construed as having
that particular meaning though
it may differ from the common or
ordinary meaning of words.”
As observed ut supra, the
right of workers against unfair
termination of employment has
been in force in Britain since
1971 when their parliament
passed the Industrial
Relations Act, 1971. That
Act was amended by the Trade
Union and Labour Relations Act,
1974 which has seen further
amendments and the subsisting
legislation of Britain that
talks of unfair termination is
the Employment Rights Act,
1996. Section 94 of that
Act, states as follows;
“An employee has a right not to
be unfairly dismissed by his
employer.”
Section 95 of the Act defines
dismissal to include termination
by an employer, with or without
notice. A similar drafting is
used in Section 382 of the
Fair Work Act, 2009 of
Australia. The section declares
the workers right against unfair
dismissal which is then defined
under Section 386 to include
termination of employment by an
employer, with or without
notice. The relevant legislation
in South Africa is the Labour
Relations Act, 1995 and
under section 185 thereof it
states that an employee has a
right not to be unfairly
dismissed or subjected to unfair
labour practices. Under section
186 of the South African Act,
dismissal is defined to include
termination with or without
notice. In those legislations,
the draftsmen employ the words
“dismissal” when referring to
termination for misconduct and
incapability and “termination”
when referring to the right of
an employer to end a contract of
employment. That accounts for
the manner their legislations
confer the right against unfair
dismissal and unfair
termination. In all of those
jurisdictions, the remedies
accorded a worker whose
employment is unfairly
terminated are re-instatement or
re-engagement and compensation.
But as pointed out above, by way
of terminology, Act 651 uses the
word “termination” to describe
both dismissal and termination
properly so called hence our Act
in section 63(1) states that;
“The employment of a worker
shall not be unfairly terminated
by the worker’s employer”
and this refers to both
dismissal and termination
properly so called.
Though Act 651 does not use the
words employed in the comparable
statutes of the countries I have
referred to by declaring a
straight right of a worker not
to have her employment unfairly
terminated, the plain legal
import of Sections 63(1) and
63(4) is that an employer in
Ghana can no longer terminate
the employment of a worker
without assigning a reason for
the termination. Not only is the
employer compelled to give a
reason for termination either
with or without notice or for
misconduct, the reason must be
fair. Consequently, in current
Ghanaian law, every worker,
except those exempted by Section
1 of the Act, has a right not to
have her employment unfairly
terminated. By section 64, Act
651 accords a worker in Ghana
whose employment is unfairly
terminated the remedies of
re-instatement, re-employment
and compensation. What this
means is that the common law
right of an employer in Ghana to
terminate the employment of a
worker for any reason or no
reason has been taken away by
Sections 63(1) and 63(4) of Act
651 so Ghana has joined the many
other countries that give real
meaning to the protection of the
right to employment.
In Kobi v Ghana Manganese Co.
Ltd (supra), at page 794 of
the Report, Ansah, JSC, after
lamenting the insecurity of
employment in Ghana on account
of the “traditional rule” of the
common law permitting an
employer to terminate a worker’s
employment for any reason or no
reason, welcomed the protection
of employment enacted in Act 651
in the following words;
“The passing of the new Labour
Act, 2003 (Act 651), has brought
relief to the employee, for now
there are statutory duties and
rights of the employer and the
employee. The right to terminate
employment does not depend on
the whims of the employer.
Sections 62-66 of the Act are
sub-titled; “Fair and Unfair
Termination of employment”. And
section 63 of the Act headed;
“Unfair termination of
employment” explains in its
subsections (2)-(4) what
constitutes unfair termination
of employment. Thus, under
section 63(4), a termination may
be unfair if the employer fails
to prove that the reason for
termination is fair, or it was
made in accordance with a fair
procedure under the Act.”
On account of the provisions of
Act 651 referred to by Ansah,
JSC and the analysis I made
above, my clear thinking is
that, the Ghanaian cases that
held that the employer has a
right to terminate the
employment of a worker for no
reason and that there can be no
specific performance of a
contract of employment are no
longer good law. The cases
include Kobea v Tema Oil
Refinery (supra), Lt. Col.
Ashun v
Accra Brewery Ltd. [2009] SCGLR
81 and Aryee v State
Construction Corporation(supra).
Yet, Date-Bah, JSC in Bani v
Maersk Ghana Ltd [2011] 2 SCGLR
796 at 807 to 808 of the
Report said as follows;
“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.”
From the above quoted speech, it
is unclear if the respected
jurists is saying that
notwithstanding the plain
provisions of Sections 1, 63 and
64 of Act 651, in Ghana the
employer’s common law right of
termination for no reason still
exists and there cannot be
re-instatement of a worker. For,
while he says “it still remains
the common law that….”, he ends
his dictum by noting that
increasingly, legislation has
been intervening on matters of
termination of employment to
give the right of reinstatement.
But that is precisely what
parliament has done by passing
Act 651 and enacting sections 63
and 64 to give relief to workers
against termination by employers
for no reason and effect must be
given to the Act by courts.
In
Republic v High Court (Fast
Track Division) Accra; Ex Parte
National Lottery Authority
(Ghana Lotto Operators
Association & Ors Interested
Parties) [2009] SCGLR 390
at page 397 of the Report,
Atuguba, JSC said as follows;
“It is communis opinio
among lawyers that the courts
are servants of the legislature.
Consequently any act of a court
that is contrary to a statute
such as Act 7; 22, & 58(1) – (3)
is, unless expressly or
impliedly provided, nullity.”
At page 405 of the Report, Dr.
Date-Bah JSC in the same case
also said:
“The Judicial Oath enjoins
judges to uphold the law, rather
than condoning breaches of Acts
of Parliament by their orders.
The end of the judicial oath set
out in the Second Schedule of
the 1992
Constitution is as follows;
‘I will at all times uphold,
preserve, protect and defend the
Constitution and laws of the
Republic of Ghana.’ This oath
is surely inconsistent with any
judicial order that permits the
infringement of an Act of
Parliament.”
Therefore, where an Act of
Parliament confers rights and
remedies that plainly override
the common law, judges are under
an obligation to uphold the Act
of Parliament in place of what
the common law provided.
The point must however be made
that, in his speech, the
venerable Date-Bah, JSC did not
categorically take a position on
whether or not Act 651 has taken
away the common law right of an
employer to terminate a workers
employment for no justifiable
reason and whether specific
performance can be ordered
against an employer in Ghana.
Ansah, JSC was certain in his
dictum in Kobi v Ghana
Manganese Co. Ltd (supra) by
stating that Act 651 has taken
away that right of an employer
and, in my opinion, Ansah, JSC’s
position is the correct
statement of the current law on
termination of employment by the
employer in Ghana. To the extent
that Date-Bah, JSC’s dictum did
not state a definitive position
on the effect of sections 1, 63
and 64 of Act 651, on the right
of a workers not to have her
employment unfairly terminated,
the jurist ought not to be
understood as saying that those
provisions are of no binding
effect.
For, as he himself recognized,
the policy justification for the
common law principles on
termination of employment by the
employer for no reason and the
denial of re-instatement have
long ceased to hold in the
country of their origin on
account of the realities of
modern systems of production. In
the Report of the Royal
Commission on Trade Unions and
Employers Associations (Donovan
Commission) Vol 23 Number 4,
1968, which recommended the
enactment of the provisions on
unfair termination in the
Industrial Relations Act, 1971,
the following justification was
provided for the then radical
recommendations by the
Commission;
“Discussing the background
against which the Commission
surveyed its problems and
reached its conclusions, the
report points out that the
impact of two world wars and
changes associated with
developing technology,
increasing scale of industrial
organization, growing wealth and
greater Government intervention
have contributed to a
transformation of the social and
economic life of the country
since the last Royal Commission
reported 62 years ago.
Old industries have shrunk and
new ones emerged. Processes of
production have been
revolutionized, old crafts
disappearing and new skills
emerging. With the continuing
growth in the size of industrial
units and the amalgamation of
companies there has developed a
managerial society in which
ownership has become divorced
from control. The running of
large businesses is in the hands
of professional managers,
responsible to boards of
directors. Trade unions have
increased their membership from
less than 2% million in 1906 to
more than 10 million in 1966,
and the membership has been
increasingly concentrated in a
comparatively small number of
large and powerful unions.”
That was thirty five years ago
Britain, and it had to take us
that number of years and after
committing ourselves to
international labour instruments
on protection of employment to
accept that the industrial
relations landscape has changed
and to follow the example of
most countries by enacting
sections 62-66 of Act 651.
Therefore, there is overwhelming
justification for these
provisions in our labour
legislation.
In Bani v Maersk(supra)
Date-Bah, JSC also held that the
reliefs of re-instatement and
re-employment under section 64
can only be granted by the
Labour Commission on a complaint
of unfair termination filed
before them by an aggrieved
worker and that the courts have
not been expressly given
jurisdiction to make such
orders. However, in the case
of
Republic v High Court, Accra; Ex
parte Peter Sangber-Der (ADB
Bank Ltd- Interested Party)
[2017-2018] SCLRG (Adaare) 552,
the Supreme Court unanimously
held that the High Court has
jurisdiction concurrently with
the Labour Commission to grant
the reliefs of re-instatement
and re-employment provided for
under section 64 of Act 651. At
holding (2) in the Headnote, it
was decided as follows;
“Before the enactment of Act
651, the High Court had
jurisdiction under Article 33(1)
of the 1992 Constitution to
enforce the Human Rights
provisions contained in articles
24, 25 and 29 of the 1992
Constitution, which are the
basis of the provisions in
section 63 of Act 651 which
deals with unfair termination of
employment. Prior to the
enactment of Act 651, the rights
under section 63 of the Act
existed and were enforced by the
High Court. The enactment of Act
651, did not therefore oust the
jurisdiction of the High Court
in respect of matters of unfair
termination of employment and
that was not the intention of
the legislature when it enacted
Act 651.”
In fact, in Ex Parte Peter
Sangbe-Der (supra) the court
stated that the statement in
Bani v Maersk denying
jurisdiction to the High Court
to grant reinstatement was made
per incuriam for not
taking into account
Article 140 of the 1992
Constitution.
My Lords, the defendant before
us however argues that the case
of the plaintiff does not come
within the scope of the right
against unfair termination since
he was dismissed for proven
misconduct which, by the
provision of section 62(b) of
Act 651, amounts to fair
termination. The provision is;
“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:
………..
(b) the proven misconduct of
the worker;”
This argument at first sight has
some attraction however, when
sections 62,63 and 64 are
properly interpreted applying
correct principles of
interpretation including their
construction by courts that have
considered similar legislation
and the full ambit of the right
is set out, it becomes plain
that a dismissal for proven
misconduct may still be unfair
depending on the circumstances.
To fully appreciate the
statutory framework in Act 651
on the right against unfair
termination the three sections
must be read and construed
together against the background
of the other provisions of the
Act. See
A-G v Prince Augustus of
Hanover [1957] AC 436.
Furthermore, in
Hill
v. William Hill (Park Lane) Ltd.
(1949) A C 520, H.L
at 546-547 Viscount Simon
said.
“[I]t is to be observed that
though a Parliamentary enactment
(like. Parliamentary eloquence)
is capable of saying the same
thing twice over without adding
anything to what has already
been said once, this repetition
in the case of an Act of
Parliament is not to be
assumed. When the legislature
enacts a particular phrase in a
statute the presumption is that
it is saying something which has
not been said immediately
before.”
Similarly, in
Ditcher v Denison (1857)11 Moo
PCC 324 at 337
the Privy Council said;
“It is also a good general rule
in jurisprudence that one who
reads a legal document, whether
public or private, shall not be
prompt to ascribe, should not
without necessity or some sound
reason, impute to its language
tautology or superfluity, and
should be rather at the outset
inclined to suppose each word
intended to have some effect, or
be of some use”
When the provisions are examined
closely with the above cautions
in mind it would be realized
that Section 62 provides that a
termination of a worker’s
employment is fair if it is done
by the employer on any of the
following grounds; incompetence,
lack of appropriate
qualification, proven
misconduct, redundancy and legal
prohibition. It is however
essential to understand that the
section refers to “grounds”
which relate to what are
normally grounds for dismissal.
But the fact is that a
termination may be made under
any of those grounds but the
actual “reason” for the
dismissal will differ from case
to case. Misconduct ranges from
a negligent act such as a
security man failing to lock the
door of an office which may not
have caused any loss to the
employer, to grave dishonest act
like a cashier stealing sales
from the cash machine. So the
ground for termination in
both of the above scenarios
would be misconduct but the
reason for termination would
be different. So it would be
realized that Section 63 of the
Act which confers the right
against unfair termination talks
of “reason” for the
termination and not just the
ground. Thus, if the reason
for the termination falls within
the grounds under section 62,
that would make the reason for
the termination only potentially
fair but not automatically fair.
While it is section 63(1) that
confers the right of a worker
against unfair termination, it
is subsections (2), (3) and (4)
that explain what is meant by
unfair termination. Subsection
(2) provides a category of
automatically unfair reasons
for termination by the employer
while subsection (3) provides
for reasons for constructive
dismissal which are
automatically unfair. Subsection
(4) is where all other reasons
for terminations, both dismissal
and termination properly so
called fall and it places the
burden on the employer, when
challenged, to prove that the
reason for the termination is
substantially fair.
Under a similar statutory regime
provided in the Industrial
Relations Act, 1971 of
Britain, Sir John Donaldson, J
(as he then was) in the case of
Earl v
Slater and Wheeler (Airlyne) Ltd
[1973] 1 WLR 51 at pages
55-56 of the Report
explained the operation of the
provisions on unfair termination
as follows;
“It (section 24 of the Act of
1971) operates in two stages. In
the first stage, it is for the
employer to show what was the
principal or only reason for the
dismissal and that it was a
potentially valid reason, that
is to say, a reason falling
within section 24(1)(b) ‘or some
other substantial reason of a
kind such as to justify the
dismissal of an employee holding
the position which that employee
held.’ If the employer fails to
discharge this burden, the
tribunal must find that the
dismissal was unfair. In the
present case the employers
proved that the principal reason
for the dismissal related to the
incapability or conduct of the
employee. The tribunal
therefore, quite rightly,
proceeded to the second stage
which consists of determining
whether the dismissal was fair
or unfair in accordance with the
provisions of section 24(4) (5)
or (6).”
That was a case where an
estimating engineer was
dismissed for unsatisfactory
work output. This was only
discovered during a period he
was not at work so he was
dismissed upon resumption of
work without a hearing. He sued
for unfair dismissal and the
industrial tribunal held that
failure to give him a hearing
made the dismissal unfair
despite that the dismissal was
on a justifiable ground. This
case supports the point I made
earlier that the dismissal of
the plaintiff for matters that
were never raised for his
reaction before dismissing him
would have amounted to an unfair
procedure and therefore unfair
termination.
In the recent case of
Reilly
v Sandwell Metropolitan Borough
Council [2018] UKSC 16,
Lord Wilson restated the two
stage consideration of unfair
dismissals in the following
words at paragraphs 16,17 and 18
of the judgment of the UK
Supreme Court;
“16. A tribunal’s inquiry into
whether a dismissal is unfair is
governed by section 98 of the
Act. The first part of the
inquiry, governed by subsections
(1) to (3), is whether the
employer has shown both the
reason for the dismissal and
that the reason relates to the
employee’s conduct or falls
within another part of
subsection (2) or otherwise
justifies dismissal. In this
case the employer showed the
reason for the dismissal, namely
the non-disclosure, and that it
related to Ms Reilly’s conduct.
17. The case turns on the second
part of the inquiry, governed by
subsection (4) of section 98 of
the Act. It provides that the
tribunal’s determination of
whether a dismissal is unfair
“(a) depends on whether in the
circumstances … the employer
acted reasonably or unreasonably
in treating [the reason shown by
it] as a sufficient reason for
dismissing the employee, and (b)
shall be determined in
accordance with equity and the
substantial merits of the case.”
18. A tribunal’s inquiry into
whether the employer acted
unreasonably in treating the
reason as sufficient for
dismissal seems simple enough in
principle, albeit no doubt often
difficult in application. The
later reference to a
determination in accordance with
the merits of the case might
have suggested that the tribunal
somehow had a more direct
function in appraising the
dismissal;”
See also the South African case
of
Sidumo and Anor v Rustenburg
Platinum Mines Ltd and Ors
[2007] ZACC 22.
In the case of Act 651, where
the termination is for
misconduct, as we are concerned
with in this case, the first
stage of considering the
fairness or unfairness of the
termination is to determine if
the reason for the termination
is covered by the grounds stated
under section 62, namely whether
the misconduct has been proven,
and the second stage is covered
by section 63(4)(a) and (b)
which are whether having regard
to the reason, dismissal was a
fair punishment or the procedure
adopted in arriving at the
decision to dismiss was fair.
Subsection (4)(a) is in respect
of the substantive fairness of
the reason for termination
provided by the employer while
subsection (4)(b) relates to
procedural fairness, either of
which may render a dismissal
unfair. It is important to note
the point Sir John Donaldson, J
makes in Earl v Slatter &
Wheeler (supra), namely if
the reason for the dismissal
does not pass the first stage,
that is if the misconduct is not
proven, then the decision to
dismiss apart from being
unlawful, is automatically
unfair. That will mean that an
aggrieved employee in that
situation who seeks
re-instatement as a remedy may
sue for unfair termination which
would entitle her to pray for
relief under section 64 of Act
651.
From the above explanation of
the scope of the right against
unfair termination, it becomes
clear that the defendant herein
is in error when it argues that
because the plaintiff’s
dismissal is covered by section
62(b) of the Act (proven
misconduct), it makes the
termination ip so facto
fair. After all the mischief
intended to be curtailed by the
provisions on unfair termination
as noted in the ILO instruments
is “the idea that workers should
be protected against arbitrary
and unjustified dismissals.”
From the persuasive authorities
referred to and a proper
construction of sections 62,63
and 64 of Act 651 on unfair
termination, the proven
misconduct of the plaintiff in
this case only made the
dismissal potentially fair and
should lead to the second stage
which is a consideration of the
substantive fairness of the
actual or principal reason for
the dismissal, whether it was
sufficient to merit the ultimate
sanction of dismissal.
Unfortunately, Act 651 does not
offer any guide for assessing
the substantive fairness of a
reason for termination given by
an employer that falls outside
the automatically unfair
reasons. What this calls for is
that the courts shall flesh out
the provision using their power
of interpretation. We earlier on
observed that Act 651 falls in
the category of technical
legislations so, in interpreting
“the reason for the termination
is fair” and “with a fair
procedure” which are the words
employed in section 63(4) of Act
651, I shall once again have
recourse to the meanings
ascribed to those words in
comparable legislations on the
subject and the interpretations
of judges given on those terms.
The Industrial Relations Act
of 1971 provided a guide for
determining the substantive
fairness or unfairness of the
reason for termination in
section 24(6) of the Act in the
following words;
“Subject to subsections (4) and
(5) of this section, the
determination of the question
whether the dismissal was fair
or unfair, having regard to the
reason shown by the employer,
shall depend on whether in the
circumstances he acted
reasonably or unreasonably in
treating it as a sufficient
reason for dismissing the
employee; and that question
shall be determined in
accordance with equity and the
substantial merits of the case.”
It is no doubt the discretion of
the employer in a particular
case that falls within grounds
contained in an employment
contract or statute permitting
dismissal or termination to
decide whether to impose that
sanction or a lesser one. What
the statutory right against
unfair termination does is that
it restrains the employer from
acting arbitrarily in exercising
her discretion on case by case
whether to dismiss the worker or
impose a lesser punishment. In
the case of Earl v Slater and
Wheeler (Airlyne) Ltd (supra)
Sir John Donaldson J said as
follows at page 57 of the
Report:
“The question in every case is
whether the employer acted
reasonably or unreasonably in
treating the reason as
sufficient for dismissing the
employee and it has to be
answered with reference to the
circumstances known to the
employer at the moment of
dismissal.”
Accordingly, if a worker
acts in a manner that entitles
the employer to sanction her the
employer normally has at her
disposal a band of alternative
sanctions ranging from reprimand
to the severest sanction which
is dismissal. It would not be
reasonable for an employer to
dismiss a worker for any the
least misconduct but an employer
is reasonably expected to
consider the severity of the
misconduct before deciding that
it is a sufficient reason to
impose the extreme punishment of
dismissal. However, in
determining the reasonableness
of a termination, the Labour
Commission or the court would
have to maintain a balance
between the interest of the
worker and that of the employer.
Thus, in the South African case
of
National Union of Metalworkers
of SA v Vetsak Co-operative Ltd
and Others, [1996] ZASCA 69,
the Labour Appeal Court
stated the following:
“Fairness comprehends that
regard must be had not only to
the position and interests of
the worker, but also those of
the employer, in order to make a
balanced and equitable
assessment. In judging fairness,
a court applies a moral or value
judgment to established facts
and circumstances (NUM v Free
State Cons at 446I). And in
doing so it must have due and
proper regard to the objectives
sought to be achieved by the
Act. In my view, it would be
unwise and undesirable to lay
down, or to attempt to lay down,
any universally applicable test
for deciding what is fair.”
What it means is that in
determining the fairness or
unfairness of a reason for
termination, the commission or
the court ought to have regard
to the provisions of sections
8,9,10 and 11 of Act 651 on the
rights and duties of workers and
employers, the terms of the
contract of employment and all
the circumstances of the case
before coming to the conclusion
whether dismissal was a fair and
reasonable punishment to impose.
In Sidumo and Anor v
Rustenburg Platinum Mines Ltd
(supra), the first applicant
was a security officer stationed
at a strategic area of the
respondents mine and had the
duty of controlling access to
the area. He was dismissed
because he failed to follow the
detailed random search procedure
instituted by the employer. He
filed a petition and complained
that his dismissal was unfair.
The Commissioner after
conducting an arbitration came
to the conclusion that the
applicant was guilty of
misconduct but held that
dismissal was too harsh a
punishment so he ordered his
reinstatement. The respondent
appealed and the case finally
went before the South African
Constitutional Court, the apex
court of that country. The court
had to consider whether the
Commissioner was wrong in his
determination that the dismissal
of the applicant was unfair. The
factors the Commissioner stated
as the basis for his finding
that the reason given by the
employer was not sufficient to
merit dismissal were as
follows;
“While I agree that this
conduct was misconduct, I am not
convinced that the dismissal was
an appropriate sanction. In my
view dismissal under the
circumstances would be too harsh
when taking into account the
following: There were no losses
suffered by the employer. The
violation of the rule was done
unintentional or “a mistake” as
argued by the employee. Lastly
the level of honesty of the
employee is something to
consider.
Based on the evidence before me
the employee has had a clean
record of service with the
employer for the past fourteen
(14) years. This, in terms of
the code of good practice cannot
be ignored. The labour court has
endorsed the concept of
corrective or progressive
dispute. Employees’ behaviour is
to be corrected through a system
of graduated disciplinary
measures such as counselling
(sic) and warning.
It is therefore my view that the
type of offence committed by the
employee does not go into the
heart of the relationship, which
is trust. I therefore believe
that the continued employment
relationship is still intact. To
deprive the employee of his
employment in this circumstance
would be wholly unfair.”
By unanimous decision, the
Constitutional Court approved of
the reasoning of the
Commissioner and upheld his
conclusion that dismissal as
punishment in the circumstances
of the case was unfair and that
the worker was rightly
re-instated.
My Lords, it is with the above
principles on unfair termination
in mind that I now consider the
substantive and procedural
fairness or unfairness of the
dismissal of the plaintiff on
the facts and circumstances of
this case. I will begin with the
issue of the reasons for which
the Executive Management
Committee substituted dismissal
for demotion as recommended by
the Disciplinary Committee. The
respondent has argued in support
of the holding by the trial
judge that the plaintiff bore
the burden of proof on whether
the Committee complied with
Article 14(h)(iii) and provided
reasons for the departure but
that is erroneous and does not
take into consideration the
applicable rule of evidence
which is section 17 of the
Evidence Act, 1975 (Act 323).
It provides as follows;
“17. The burden of producing
evidence
Except as otherwise provided by
law, the burden of producing
evidence of a particular fact is
on the party against whom a
finding on that fact would be
required in the absence of
further evidence.”
In the absence of evidence
showing that the Committee
provided reasons for not
accepting the recommended
punishment by the Disciplinary
Committee, the finding will go
against the defendant so by law
the burden was on the defendant
to lead evidence in proof of
providing a reason and notifying
the Union of the reason. In the
case of
Total Ghana Ltd v Thompson
[2011] 1 SCGLR 458 this
court, speaking through Anin
Yeboah, JSC, (as he then was)
said as follows at page 463 of
the report;
“We think that by its conduct of
neither calling the police
alleged to have investigated the
complaint against the plaintiff
nor the person who had allegedly
made statements that had
implicated the plaintiff, the
defendants may be said to have
admitted plaintiff’s claim that
the allegations made against him
were untrue. In the particular
context of this case, in our
thinking, an obligation was
placed on the part of defendant
company to lead credible
evidence to the trial court that
would render the allegation on
which its suspension of
plaintiff was based, more
probable than the version of a
denial by plaintiff.”
In that case, though Total Ghana
Ltd was the defendant, it
carried the burden of proof on
the averments they made in their
defence regarding the grounds
for dismissal of the plaintiff.
They tendered only the police
investigation report without
calling the investigator to
testify, which the Supreme Court
held did not amount to
sufficient proof. See also the
case of
In Re Krah (Decd); Yankyeraah
v Osei-Tutu [1989-90] 1 GLR 638,
SC.
Furthermore, it ought to be
noted that section 17 of Act 323
has a proviso to the general
rule of evidence therein and
states that except otherwise
provided by law. In this
instance Act 651 has
specifically placed the burden
on the employer to prove that
the termination of the
employment of a worker is fair.
That would mean that it is the
employer and not the worker who
ought to give the actual reason
for the dismissal and further
proof that it is fair. Section
63(4) of the Act states as
follows;
“(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.(emphasis supplied).
Therefore, because the defendant
failed to lead any evidence to
the effect that it notified the
union about any reason for
varying the recommendation of
the Disciplinary Committee, I
take the view that no reasons
were provided to the union.
Consequently, the defendant
breached Article 14(h)(iii) of
the CBA. This is also borne out
by the fact that the reasons
stated in the letter of
dismissal are the same reasons
the Disciplinary Committee
advanced to support their
recommendation of demotion. The
committee concluded their report
as follows; “It was Akpass
who signed with the Retail
Manager, the letter pledging the
bank to honour the post-dated
cheques as they fall due.
George Akpass also passed the
entries disbursing the loan
facility for the purchase of the
pick-up in the manner contrary
to the Executive Credit
Committee’s instructions, albeit
under the Manager’s
instructions.
We do not find his direct
involvement in the uncredited
lodgments saga but we find that
he and the other staff appear to
relate to Gyimantwi in a way
that is beyond the official
level. For example, Akpass
passed entries directly debiting
his account with GHS3,891.10 and
crediting Gyimantwi account.
When asked why he did so, he
said it was to help clear
Gyimantwi’s cheques, which would
otherwise have been returned
unpaid. We recommend that George
Akpass should be demoted to the
grade of Seniour Clerk.”
The question that has to be
answered is, is the above reason
that the Disciplinary Committee
considered to merit demotion
sufficient to justify the
dismissal of the plaintiff
having regard to all the
circumstances in this? The
record shows that the
Disciplinary Committee
established that the plaintiff
worked with the bank for 26
years without any disciplinary
record and was one of the most
experienced workers at the Bole
branch. The Committee cleared
him of any dishonest conduct and
when at the trial in court the
defendant tried to smear him
with corruption allegations, the
judge saw through it and cleared
him of any fraud or dishonesty.
The act that landed the
plaintiff in this trouble was
not done out of any dishonest
motives but he found himself
between the rock and the hard
place; his immediate superior,
the branch manager had signed
the instructions for the
disbursement of the loan before
calling him to sign because the
second-in-command was
unavailable and he had no reason
to doubt that it was not in the
interest of the bank since the
manager was his immediate boss.
What is even of greater weight
is the fact that the
Disciplinary Committee who heard
all the evidence came to the
conclusion that the reasonable
punishment to give to the
plaintiff on all the
circumstances was demotion and
that dismissal would be
unreasonable. Using the view of
the Disciplinary Committee as a
guide of fairness and
reasonableness in the
circumstances of this case, I am
very clear in my mind that the
dismissal was substantively
unfair.
I will now consider the
procedural fairness of the
dismissal as provided for under
section 63(4)(b). The CBA
binding on the parties in this
case insists that the
disciplinary authority must
assign reasons for varying the
punishment recommended by the
Disciplinary Committee. In the
construction of deeds and
statutes, the purpose of a
provision must always be kept in
mind and the construction must
be such as to achieve that
purpose. So, what is the purpose
of Article 14(h)(iii) of the
CBA? It is obvious to me that
the purpose is to bring
transparency into the
disciplinary process of the bank
and prevent the management from
acting arbitrarily in the
punishment that is imposed in
each case. In my thinking, that
provision is in line with the
modern concept of fairness of
disciplinary sanctions to be
imposed by employers on workers
in individual cases and this is
the same aim as of section 63 of
the Act. Therefore, the
defendant’s failure to comply
with that part of the provisions
of the CBA in my opinion renders
the procedure by which the
plaintiff was dismissed clearly
unfair.
CONCLUSION.
In conclusion, I am of the
considered opinion that the
plaintiff has made out a case of
unfair termination of his
employment against the defendant
and would be entitled to
remedies open to him at law. The
plaintiff prayed for
re-instatement and compensation
which are remedies the court can
grant under section 64 of the
Act. The relief of
re-instatement must not be
lightly decreed by the
Commission or the court and the
interest of the employer has to
be given serious consideration
before it is ordered. But this
is a special case where there is
little direct personal
interaction between the worker
and the employer who is a large
bank with branches throughout
Ghana. From the findings of the
Disciplinary Committee, trust
between the plaintiff and the
defendant as an organisation has
not been lost so that foundation
of the relationship of worker
and employer, trust, that must
at all times be present for the
relationship to exist is still
present between the parties. The
Disciplinary Committee
recommended demotion for the
plaintiff, but I have taken into
account the punishment that the
plaintiff has so far suffered
between his dismissal and this
judgment in his favour and
consider that he has been
sufficiently punished for his
indiscretion on the facts of the
case. I therefore grant the
plaintiff’s prayer for
re-instatement and order that
the defendant shall re-instate
the plaintiff to the position he
held at the time of his unfair
dismissal.
In the case of Nartey-Tokoli
& Ors v Volta Aluminum Co Ltd
(supra) the Supreme Court
upheld the finding of the trial
judge (Benin J as he then was)
that the termination of the
employment of the appellants was
in breach of provisions of the
Industrial Relations Act, 1965
(Act 229) and
consequently void. By way of
what the appellants were
entitled to be paid, the court
stated as follows in Holding (2)
of the Headnote of the Report;
“2) The measure of damages for
wrongful dismissal from
employment was not to be
confined to only loss of wages
or salary but in addition the
employee was to receive his
entitlements under the contract
of employment. The plaintiffs
were therefore entitled to
receive their salaries from the
dates they ceased to receive
them to the dates of their
respective de facto termination,
including an additional twelve
months' salary (as awarded by
the High Court in the exercise
of its discretion) as damages
for wrongful dismissal as at the
respective dates of the de facto
termination of their
employment. As the termination
of their employment was held to
be void and of no legal effect
they remained employees de jure
and would therefore, be entitled
to earned leave allowances,
bonus, long service awards,
including food packages and all
other benefits said to be
enjoyed on a so-called gentleman
agreement basis; all of which
should be converted into cash if
feasible as at the respective
dates of the plaintiffs' de
facto dismissal.”
This case is similar to the
above referred case as
I have
concluded that the dismissal of
the plaintiff was in breach of
section 63 of Act 651 and he is
entitled to re-instatement. The
consequences are therefore that
the plaintiff would be deemed
not to have been dismissed so he
shall be paid all remunerations,
entitlements, emoluments and
benefits that he would have been
entitled to had he not been
unfairly dismissed.
Having granted the plaintiff
re-instatement with all
benefits, it does not appear to
me that he is entitled to
compensation. I will therefore
dismiss all the other reliefs
the plaintiff prayed for.
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
COUNSEL
EUNAS KOFI ESHUN FOR THE
PLAINTIFF/APPELLANT/APPELLANT.
KWAME D. S. ASIRI FOR THE
DEFENDANT/RESPONDENT/RESPONDENT. |
