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JUDGMENT
MRS. WOOD, J.A.:
Following the
restructuring of the defendant appellant Company in
1994, the plaintiff respondents were declared redundant
and paid severance benefits in accordance with the
prevailing collective agreement. Each respondent
therefore became entitled to “Two months consolidated
basic pay for each year of service, effective 1st
January, 1961 to the date of redundancy”, However,
contending that the awards were void, unlawful and of no
legal effect, in that they violated the clear, mandatory
provisions of the Labour (Amendment) Decree, 1969
NLCD.342, the respondents, severance compensation with
effect from the date each plaintiff commenced work with
the defendant company as employed up to 31st December,
1990.
2. Interest at
prevailing bank rate from 1st February, 1994 to date of
payment.
3. An order directing
defendants to immediately negotiate the severance
compensation with the plaintiffs for the period of
service of each plaintiff before 1st January, 1991,
failing which the Honourable Court could itself
determine a fair and just compensation for the period
concerned.
The appellants raised
two matters in defence to the substantive claim. These
are contained in their original and unamended statement
of defence. Firstly, that the quantum of severance award
is not fixed by statute, but was a matter of
negotiation. And consequently, as the respondent were
all duly paid in accordance with the negotiated
provisions of the existing, valid, collective agreement,
they are estopped from any further claims.
Secondly, that the
claim was statute barred. The learned trial judge
however found the claims proved and entered judgment in
favour of all the respondents on all the claims sought,
together with costs of ¢10 million. In this appeal, as
many as ten grounds were urged upon six of which
original grounds A, B and C and additional grounds (1),
(2) and (3) were argued together. My own view is that
the latter, i.e. the additional grounds are a
duplication of the original grounds of appeal.
Therefore, rather than reproduce all six grounds of
appeal, I would under the circumstances quote in extense
only the additional grounds 1, 2, & 3 which in my humble
estimation is the more comprehensive of the two.
“1. The trial court
erred when it held that section 34(2) of the NLCD.157 as
substituted by NLCD.342 provided a mandatory statutory
formula which employers and employees were bound to take
into account when negotiating in respect of the time
period that was to form the basis of the computation of
severance payments.
2. The trial High Court
erred when it held that article 36 of Exhibit ‘A’ was
void as being inconsistent with the provision of section
34(2) of NLCD.257 as amended.
3. The trial High Court
erred when it upheld the plaintiffs claim for the
payment by the defendant company to each of them of
severance pay from the date each plaintiff commenced
work with the defendant company as employee to 31st
December, 1990.”
Before proceeding to
determine the questions raised by these grounds of
appeal, we must, I think address an important
preliminary issue raised by the respondent to the
hearing of this appeal. The issue is would the appellant
failure to file a written submission of his case within
the time stipulated under the rules mean the said appeal
is deemed to have been struck out and there is therefore
no appeal pending with respect to this matter?
The Court of Appeal
Rules, 1997, C.119 has been amended by C.125, by the
substitution for subrules (1), (2) and 19 of rule 20
with the following: “120(1). An appellant shall within
21 days of being notified in form 6 set out in part 1 of
the Schedule that the record is ready or within such
time as the court may upon terms direct, file with the
Registrar, a written submission of his case based on the
grounds of appeal set out in the notice of appeal and
such other grounds of appeal as he may file. Where the
appellant does not file the statement of his case in
accordance with subrule (1), the registrar shall certify
the failure to the court by a certificate as in Form 11A
in part 1 of the schedule and the court may upon that
order the appeal to be struck out.”
From the above amended
rules, I do not think there is an automatic “striking
out” or loss of an appeal, even in event of a
non-compliance with the rule 20(1) of C.I.19 as amended
by C.125. The subrule (2) enjoins the registrar as a
first step to certify the non-compliance to the court,
whereupon the court may (not shall) exercise the
striking out option. Therefore, even in cases where
there has been due notification of the non- compliance
to the court, (and that is not the position in this
instant case), the power conferred is permissive not
mandatory. However, on the facts of this case, the
registrar has not certified the non-compliance and this
court has made no order striking out the appeal. Since
the appeal has not been struck out, it must be deemed to
be pending. In any event, even if the invitation to
strike out is now being extended to us, I am not minded,
in the exercise of my discretion to apply this extreme
sanction. I think this penalty of stricking out an
appeal for non-compliance under rule 20(1) of C, 125 and
not hearing it on the merits must be exercised with
caution. It must be employed in plain and obvious cases
where in all the circumstances, it would be unjust to do
otherwise, circumstances I believe, like the period of
delay, the nature of the questions raised by the appeal
in question—its importance or otherwise etc. There are
ways by which a respondent who has suffered as a result
of a delay on the appellants part may be compensated and
the hearing expedited. In this instant case however the
following factors—the length of time this appeal has
been pending, but notably the serious and substitutial
questions of law raised by it, not to mention the
crucial fact that the respondents themselves upon being
served with the record complained about its
incompleteness and called for its rectification, have
constrained me from striking out the appeal. In any
case, it seems to me that it is implicit (in the rules)
that the 21 day limit under the rule, would begin to run
only where record of appeal is complete and faultless.
To my mind then, where a party, particularly respondent,
as happened in this instant case, complains to the
registrar or the court about ommissions or inaccuracies
in the record and demands that those be rectified, then
time ought not to run until either those anomalies have
been corrected, or the party withdraws his complaint or
the court subsequently rules that the omissions are not
fatal to the hearing of the appeal. The point I would
wish to emphasise is that until the question of the
incompleteness or otherwise of the record is settled, it
lies all in the mouth of that same complaint to turn
round and argue about his opponent’s non-compliance with
the twenty-day rule. I find no merit in the preliminary
point raised, and I dismiss it accordingly.
Two critical questions,
which same questions confronted the learned trial judge
are raised by the grounds A, B, C and additional grounds
1, 2, and 3. The principal question is whether article
36 of the collective agreement, Exhibit ‘A’ under which
the respondents were paid their severance benefits, is
inconsistent with par.34 (2) of NLCD.157 as substituted
by NLCD. 342. Related to this question is this other
vital issue: whether or not the said provisions
prescribe a mandatory formula to be used in determining
the period in respect of which severance award is to be
paid. Put in Simpler terms, does the para.34 (2) of
NLCD.342 prescribe a formula for assessing severance
award?
Two arguments were
advanced in support of the criticism that the learned
trial judge (1) erred in her interpretation of the said
provision and (2) her final conclusion that 36 of
Exhibit ‘A’ is inconsistent with para.34 (2) of
NLCD.342.
It was submitted that
the said provisions does not lay down any formula, let
alone a mandatory formula for fixing the quantum of
severance award.
It was urged that on
the contrary, it only prescribe a factor to be taken
into account in determing whether a person has suffered
a diminution in his/her terms and conditions of
employment such as would make him eligible for a
severance award.
Not unexpectedly, the
contrary argument advanced by the other side is that
that provision is a “determinant” provision in that it
lays down factors to be taken into consideration in
assessing the quantum of severance award. The argument
further was that opting for this construction, would
lead to the conclusion that article 36 of Exhibit ‘A’ is
inconsistent with the express mandatory provisions of
the law and is consequently null and void.
What then is the proper
construction to be placed on the law in question i.e.
par.34 (2) of the Labour Amendment Decree 1969 NRCD.342?
It stipulates: “Where an organisation is closed down or
where an organisation undergoes an arrangement or
amalgamation and the close down, arrangement or
amalgamation causes a severance of the legal
relationship between employee and employer between any
person and the organisation as it existed immediately
before the close down, arrangement or amalgamation, then
if, as a result of and in addition to such severance
that person becomes unemployed or suffers any diminition
in his terms and conditions of employment, he shall be
entitled to be paid by the organisation in whose
employment he was immediately prior to the close down,
arrangement or amalgamation, compensation in this
Decree, referred to as “severance pay”.
(2) In determining
whether a person has suffered any diminution in his
terms and conditions of employment under sub paragraph
(1) of this paragraph account shall be taken of the past
service and accumulated benefits (if any) of such person
or in respect of his employment with the organisation
before it was closed down or before the arrangement or
the amalgamation.”
It is trite learning
that to obtain the true meaning of any enactment, or
indeed any document, it must be read as a whole. The
learned Ghanaian author, S.Y. Bimpong Buta in his
invaluable text book.” The Law of Interpretation in
Ghana (Exposition and Critique) has carefully spelt out
the rules that govern statutory interpretation in our
jurisdiction. Indeed his exposition of the rules are no
different from those expounded by other well known
English writers on the subject. Writing under the
heading: —
“Construction or
interpretation of statutes”, the learned author states
at page 36. “The traditional common law view is that
there are three basic rules of statutory interpretation:
the literal or plain meaning rule, the golden rule and
the mischief rule.” He expounds the first primary rule
further as follows at page 38. The salient features of
this basic rule (as stated) are the need to resort to
the ordinary, literal or dictionary meaning or where
necessary the technical meaning in relation to the
context in which the words or phrases have been used.”
The settled law is
this: the primary rule of construction of statutes, to
which the others, namely the golden rule, and the
mischief rule are subordinate is that the words must
given their natural literal, ordinary or dictionary
meaning or where necessary their technical meaning and
in the context which they have been used and the plain
meaning of the enactment given effect to even though the
result may be found to be unpalatable. It is only where
an application of the plain or ordinary meaning rule
leads to an absurdity, in consistency or repugnancy that
the secondary construction rule, described also as the
“golden rule” would be invoked.
Two local cases would
settle this matter beyond controversy. Sam vrs;
Comptroller of Customs and Excise 1971 1 GLR. 289.
Taylor, J. (as he then was) sitting on an appeal from
the District Court and relying on the dicta of Parke Bin
Beeke vrs: Smith (1836 2 M&W 191 at 195) (quoting Burton
J, in Warbuton vrs: Loveland 1828 Huel & Bro 623) held
as follows: —
“It is the duty of a
court in interpreting an enactment, to give effect to
the intention of the legislature. Therefore, where words
in an enactment are clear and unambiguous no question of
interpretation arises, but where the ordinary meaning of
the words used leads to a manifest absurdity or
repugnancy, a court may alter the words of the
enactment, but only to the extent of avoiding the
absurdity or repugnancy.”
Again, in the
unreported case of Kuenyehia & Ors vrs: Archer and Ors
1992-93 GLR.1260 at 132, Bamford Addo JSC, supporting
the majority decision stated that:
“Broadly, the general
method of interpreting statutes or constitutions is to
give words their ordinary meaning and if the ordinary
meaning makes sense of the passage then the intention as
deduced from, must be given effect. It is only when the
construction leads to absurdity or is ambiguous that one
is required to look elsewhere or to resort to
application of certain other principles of
interpretation in order to ascertain the true meaning
and intention of the legislature.”
In applying the first
primary rule to the law in question, I find the meaning
so plain and obvious it does not admit of any other
construction. To my mind, this law does not lay down the
factors to be taken into account in assessing or
determing the quantum of severance award. On the
contrary, what it does, in my view, is to emunerate
factors to be taken into account in determing the
question of who has suffered a diminution in terms and
conditions of service in terms of the proceedings
paragraph, para.34 (1) of NLCD.342, and is therefore
eligible for severance, award or the language of the
act, severance pay.
Indeed, an examination
of the proceeding par.34 (1) of NLCD.342 would remove
any doubts about the meaning of par.34 (2) (paragraph
34(1) re-read). Among its principal object as the
enactment itself states, is to identify persons who are
entitled to severance award or severance pay.
The enactment
identifies two such categories of persons, one of them
being the person who suffers a diminution in his terms
and conditions of employment. Thus, under para.34 (1) of
NLCD, 342 when an organisation in which employee’s work
is closed down or undergoes an arrangement or
amalgamation and the restructuring causes a severance of
the employment relationship and further as a result an
employee additionally suffers a reduction in his terms
and conditions of employment, he is by the clear
provisions of par.34 (1) of NLCD. 342 entitled to
“severance pay”. This is to be paid by the organisation
in whose employment he was prior to the restructuring.
The question of who has or has not suffered a diminution
in his terms and conditions of service therefore becomes
a critical one. And the S.34 (2) provides the answer to
this all important question. It lays down the factors to
be taken into account in resolving this issue. I am of
the opinion that the sub-paragraph (1) is so plain it
does not call for any secondary construction that is to
say an application of either the “golden” or “mischief”
rule as has been advocated by the respondent counsel. I
find that this clear meaning does not lead to any
absurdity, repugnancy, unreasonableness, hardship or
manifest injustice or the like such as would attract or
admit of any other construction. Indeed, the next
provision i.e. para.35 of the enactment reinforces the
point that sub para.34 (1) does not lay down the formula
for assessing the quantum of severance award at all but
it rather deals with the question of whether a person
has suffered a reduction diminution in terms and
conditions of employment and consequently is eligible
for severance award. Let me reproduce the par.35. It
stipulates.
“The amount of any
severance pay to be paid under paragraph 34 of this
Decree as well as the terms under which payment is to be
made shall be matters for negotiation between the
employer or his representative and the employee or his
representative” (Emphasis mine).
Plainly, in my view,
the par.35 clearly stipulates that the quantum or the
severance award payable is entirely a matter for
negotiation between the parties or their
representatives. The law has not enumerated one single
statutory factor to be taken into account in this
assessment. At this hearing, we have been urged by
appellant counsel to additionally resort to a study of
the pre-enacting history of the legislation to arrive at
a true and proper construction of the law in question,
in this instant case the previous law which is par.35 of
NLCD.157. I concede that in our jurisdiction,
legislative history may also be used in interpreting
statutes. But it is a guide only that is an aid as
stated by his Lordship Francois, JSC. in his opinion in
Ali-Jiagge vrs: Inspector General of Police unreported
SC suit No. 16/81 26th March, 1990 namely:
“A cardinal aid to the
ascertainment of legislative intent is through the study
of the history of the particular enactment.”
However, it is plain
from the legal texturiters that these aids and guides,
which are clearly distinguishable from the primary or
basic rules of interpretation are merely guides. They
are therefore truly our hand maids not our masters.
Thus, Benniou rationalises that “subject to relevant
legal rules, a court considering an enactment is master
of its own procedure and therefore has the power, indeed
the duty to consider such aspects of legislative history
of the enactment as may be necessary to arrive at its
meaning”. See section 208 titled “Legislative history as
a guide to construction at page 438 of “Statutory
Interpretation” (emphasis mine)
Again, Bimpong-Buta
cautions, and understandably so, that “these aids and
guides are not to be applied automatically: they merely
help the courts in determining the true meaning to be
placed on the statutory words or expressions. They are
therefore our servants not our masters. In other words,
if resort to these guides or aids may in themselves
create absurdity or unreasonableness the courts are to
avoid them altogether.”
It seems to me then
that these aids or guides, described by Benion as
“interpretative criteria” becomes useful when for
example, the application of the meaning of the enactment
is somewhat obscure and the legislative history would
help unravel it. The converse then is that when the
meaning is plain and obvious or certain, indeed when an
application of the first primary rule of construction
leads to a just interpretation, no need arises to resort
to these guides. In much the same way that reading
glasses are not meant for those whose eyesight is good,
but for those with weak or impaired eyesight,
legislative or pre-enactment history becomes useful when
the meaning of the enactment is shrounded in obscurity.
In this instant case
therefore, while I conceded pre-enacting history has a
rightful place in the construction of statutes, I find
the meaning of par.34 (2) so clear, I cannot justify the
use of it. In conclusion I would agree with appellant
counsel that the learned trial judge erred in her
construction of par.34 (2) of NLCD.342.
The additional ground 5
states that “The Trial High Court Judge erred when he
held that there was an omission in para.34 (2) of
NLCD.157 as amended for the alleged reason that the
provision failed to take account of workers who suffer
total loss of employment as opposed to those who only
suffer diminution in terms and conditions of employment
and the court was in duty bound to rectify the omission
in order to avoid unjust or absurd consequences.”
The main argument in
support of this ground is that the learned trial judges
primary finding that an omission exists in the
legislation is fundamentally wrong for the law actually
does provide for these persons complained of i.e. those
people who became totally unemployed, following a
restructuring exercise. The argument therefore was that
the court had no factual or legal basis for rectifying
the law by the insertion of such words as would in the
judges estimation lead to the desired result, which was
the removal of absurdity and injustice. The contrary
submission by the respondent counsel is that the learned
trial judge rightly found an omission in the law and was
perfectly justified in the step she took.
My views are these.
Firstly, I think that the argument that par.34(2) of
NLCD 324 does not provide for severance pay for
employees who suffer total unemployment as a result of
or following the closure, rearrangement, or amalgamation
of the organisation in which he works is inaccurate. A
careful reading of the law in question proves the
contrary (paragraph 34(2) re-read). Such an employee is
also by the par.35 empowered to negotiate his severance
award. Contrary to respondent learned counsel’s
contention therefore, I find no absurdity, injustice, or
contradiction of the legislative intent, or hardship or
injustice such as would justify our reading words into
the enactment.
I had occasion to
examine the scope of par.34 (2) of NLCD.342 in the
unreported case of Civil Appeal No.36/97 titled Gabriel
Deku & Ors. vrs: Tema Food Complex Corporation dated 5th
February, 1998. My pronouncement on the issue of whether
or not par.34 (2) does provide for the payment of
severance award to those who suffer a total loss of
employment as a result of a restructing exercise is to
say the least of persuasive authority and has helped me
answer this question in the affirmative. This is what I
said in the Deku case.
“Employees in any
organisation which is closed down or which undergoes any
arrangement or amalgamation, may be affected by the
exercise in three different ways. There may be those
whose terms and conditions remain unaffected by the
exercise. Indeed it may well be that the same may profit
by the new arrangement, as for example when the employee
begins to enjoy an increase in salary and better
conditions of service. We are not in this appeal
concerned with such group of employees. What we are
concerned with are indeed those employees the Labour
Amendment Decree 234 seeks to protect, those who as a
result of the severance of the employment relationship.
1. Become altogether
unemployed, or
2. those who escape
this misfortune and
3. remains employed,
yet suffers a diminition in terms and conditions of
employment.
Upon a plain reading of
the S.34 (1) of the NLCD.324 such persons shall be
entitled to severance pay. However as rightly argued by
both counsel, the S.35 of the NLCD.324 stipulates that
for both group of persons, the quantum as well as the
terms under which such payment shall be group of
persons, the quantum as well as the terms under which
such payment shall be made, shall be matters for
negotiation between the employer and employee or their
representative.”
But even so, assuming
there was a clear omission on the part of the
legislature, and the law did not make provision for
those who suffer total loss of employment, I
nevertheless do not think it was right for the learned
trial judge to supply all such necessary words in order
to bring them into its ambit. What the learned trial
judge did in my view, amounted to a clear usurpation of
legislative power. The legal position is that at common
law, courts are empowered to “alter, or effect an
emendation of words in a statute by adding to these even
to ignore the express words altogether” (See
Bimpong-Buta the law of Interpretation in Ghana par.5,
page 57.
But this power, as the
legal authorities, especially the legal textwriters who
wrote extensively on the subject show, is very limited
in scope. So, as pointed out by Buta, the purpose is to
avoid “unintelligibility unreasonableness or absurdity.”
Cross, another
celebrated author thinks likewise. In his book
“Interpretation of Statutes” 3rd Edition page 93 he
deals with the subject under the heading:
“Reading words in an
out of a statute”: He also states:
“The judge may read
words which he considers necessarily implied by words
which are already in the statute and he has a limited
power to add to, alter or ignore statutory words in
order to prevent a provision from being unintelligible,
unworkable, absurd or totally unreasonable, with the
rest of the statute.”
Words may be
necessarily implied by other words when their express
statement merely clarifies a secondary meaning of these
other words.”
Further at page 99 the
learned author delimits the power as such:
“The power to add to,
alter or ignore statutory words is an extremely limited
one. Generally speaking it can only be exercised where
there has been a demonstrable mistake on the part of the
drafter or where the consequence of applying the words
in their ordinary or discernible secondary meaning would
be utterly unreasonable.”
Again, the very
textwriter upon whom the respondent counsel relies on in
support of his argument confirms the limited scope of
the rule. Also writing under the heading “Omission”
(Maxwell on Interpretation” page 241), the learned
author states:
“An omission which the
context shows with reasonable certainty to have been
unintended may be supplied at least in enactments which
are construed beneficially, as distinguished from
strictly” we learn from him that, the modification may
be done only where the enactment itself had, in the
first place received, a beneficial and not a strict
construction, as have been done in this instant case.
Useful decided cases on
the point are: —
1. Republic vrs:
Barnett London Borongh Council, Ex-parte Shah 1983 2
AC.309.
2. Western Bank Ltd.
vrs: Schndler 1977 Ch.1
3. Federal Steam
Navigation Co., Ltd. vrs: Department of Trade and
Industry 1974 2 AE.97. Lord Reids spells out at some
instances in which the rule applies as follows at page
100 of the Federal Steam case. He opined: “Cases where
it has properly been held that a word can be struck out
of a deed or statute and another substituted can as far
as I am aware be grouped under three heads: where
without such substitution the provision is
unintelligible of absurd or totally unreasonable, where
it is unworkable: and where it is totally irreconcilable
with the plain intention shown by the rest of the deed
or statute.”
I therefore think that
in the construction of statutes, we need to draw a clear
distinction between cases where a law has clearly and
deliberately not provided for any given situation or set
of circumstances and those other cases where an
unintended omission results in the situation identified
by the authorities—namely unintelligibility, absurdity,
unworkability or unreasonableness and the like or in the
case of an enactment which has been beneficially
construed, a reasonable certainty exists from the
context that the omission was unintentional. I think
that in the latter class of cases, alterations or
emendations of the statute either by the addition of or
the taking out of words may be allowed. But, I do not
think the same would be permitted in the former class of
cases. My thinking is that it is not the duty of the
courts to supply words in order to rectify such
anomalies. This simple illustration would clearify the
point I have made. Suppose an enactment under which
different categories of persons are tried expressly make
provision for the right of appeal to only some and not
all those who could be tried under that law. I do not
think we would be right in saying “what a wicked and
unjust law, we would fill in all the necessary missing
words in order to extend that right of appeal to these
also who have not been mentioned”. My view is that so
long as the ordinary meaning of that enactment is plain
on the face and can be ascertained, the best a court can
do in the circumstances is to draw attention to the
injustice in the hope that it would be corrected by the
lawmakers. In my opinion, the alleged omission by the
learned trial judge case is not the type that justifies
a court’s intervention.
I would reiterate that
it was thus not open to the learned trial judge to
insert any words in the enactment. The respondents are
not entitled to judgment, when the undisputed evidence
also is that they have in accordance with the law,
negotiate for and have been paid their severance award.
I think these grounds of appeal I have dealt with are so
fundamental they do resolve this appeal in the
appellants favour, and consequently no useful purpose
would be served by dealing with the additional ground
‘4’.
By the original ground
5, and the complaint and which I am inclined to agree
with, is that the costs awarded were excessive.”
The following decisions
of this court; —
1. Guardian Assurance
Co. Ltd. vrs Khayat Trading Store (1972) 2 GLR.48 CA.
2. Guardian Assurance
Co. Vrs: Agbematu 1972 2 GLR.337 CA, identify the
circumstances under which this court, or indeed, an
appellate court would interfere with a trial court’s
award of costs. The appellate courts are always slow to
interfere with costs awarded by the courts for first
instance, principally because it involves the exercise
of a discretion. The well settled rule however is that
like all judicial discretions, it must be exercised
judicially, that is according to “reason and justice and
not according to sentiment and sensibility—Guardian
Assurance Co. Ltd. vrs: Agbematu (supra). It seems to me
the costs of ¢10 million awarded in this case was
excessive seeing that although there are over hundred
plaintiffs involved, it was a group action in which only
one set of uncomplicated pleadings was filed on behalf
of all of them.
Evidence was not
lengthy, neither was the trial which was conducted by
the same counsel for all of them protracted. I think the
appeal on this ground must also succeed.
In the result I allow
the appeal in this case. The decision of the court below
together with the costs awarded is hereby set aside. I
would in its stead order a dismissal of the respondents
case.
MRS. G.T. WOOD
JUSTICE OF APPEAL
BROBBEY, J.A.:
My judgment restates
the same reasoning and conclusions as those contained in
the judgment read by the President of this panel. I do
not need to repeat them by reading what I have written.
Suffice it to say that I endorse the reasons given in
her judgment and her conclusions as well.
The only points I wish
to repeat for the sake of emphasis are these:
Article 36 of the
Collective Agreement, exhibit ‘A’, states simply that
Severance payment for unionized employees shall be
calculated as follows:
“Two (2) months
consolidated basic pay for each year of service
effective 1st January, 1991”
The entire case
revolves around this clause. What is to be noted
carefully about this clause is that it has no
precondition, proviso, or requirement to be satisfied
before it will be implemented. It is a categorical
statement which sets out the number of months to be used
to calculate the amount to be paid, i.e. two months:
Secondly, it links the compensation to two months of
“the consolidated basic pay for each year of service;”
In other words, for every year that an employee has
worked for the appellant company, two months’ salary for
that year will be set aside and added together to make
up what has to be paid as severance compensation. These
create no particular problems.
The real bone of
contention is the phrase “EFFECTIVE 1st JANUARY, 1991”
Within Article 36 of exhibit A, what is the meaning to
be given to this phrase? To my mind, all it means is
that whatever amount is to be paid is to be calculated
from 1st January, 1991. It is the phrase which limits
the period of payment to be worked out from 1st January,
1991. I do not believe that the clause lends itself to
any other interpretation.
The respondents’ case
is based on the interpretation which assumes that the
phrase “effective 1st January, 1991” was not part of the
clause. In fact if there were no such limiting time
phrase, they would have been right. However, so long as
the phrase remained part of the clause, payment of the
severance compensation should be limited to the period
starting from 1st January, 1991. If the period is
limited to 1st January, 1991, then there is no basis for
the claim to be paid from the day each employee started
working with the appellant company. The reason is simply
that that is what the parties bargained for and that is
what they are entitled to.
That takes me to the
next point. Exhibit ‘A’, like all collective agreements
in this country, is the end product of negotiations
between the employers, i.e. the appellant company and
the unionized workers represented by their trade union
officials, in the instant case, the Industrial and
Commercial Workers Union of the Trades Union Congress.
It was in the course of the negotiations that the
parties agreed on the period of 1st January, 1991. The
parties appended their signatures to the agreement,
fully cognizant of the fact that severance pay was to be
calculated from 1st January, 1991. That agreement is
binding on all the parties to exhibit ‘A’. On the face
of clause 36 of exhibit ‘A’, there is no basis for
asking that payment should be extended to the period
when each employee started working for the company. If
that was what the workers desired but was not inserted
in the agreement, then they have their representatives
to blame for not ensuring that their intentions were
duly reproduced in the agreement. Collective agreement
is a form of contract and the sanctity of contracts is a
principle, which must be honoured by all parties, who
freely and voluntarily enters into any contract, like
the instant exhibit ‘A’.
Another obvious point
raised in this appeal relates to the issues of the
application of the collective agreement to senior staff
members. At the beginning of the case in the High Court
and in this court, the respondents argued that exhibit
‘A’ applied equally to both senior and junior staff
members. That was obviously not correct. Collective
agreements are negotiated on behalf of unionized members
of staff. That is why TUC officials represent the
workers. Senior staff members are not union members.
They therefore cannot be represented by those officials.
The judgement of the trial court was defective in so far
that it treated senior members of staff on the same
basis as junior staff on the application of the
collective agreement. It was not surprising that later,
at the end of the trial and in a motion to adduce fresh
evidence, the same respondents and the applicant therein
argued that exhibit ‘A’ no longer applied to senior
officers. That point was made while their earlier
arguments on the application to senior staff still
remained on the record before this court.
In commenting on this
point, I am not unmindful of the fact that the
respondents attempted to link article 36 of Exhibit ‘A’
with paragraph 34(2) of NRCD.342. I hold the view that
the two articles cannot correctly be linked together and
I adopt all the reasons given in the judgment of the
President on this issue. Paragraph 34(2) deals with
eligibility, i.e. who qualifies to be paid severance
compensation. It does not deal with the basis for
calculating severance pay. It is rather article 36 which
deals with the basis for calculating payment of
severance compensation. The two provisions are not the
same.
The last point which I
wish to comment upon is on the issue of costs. The costs
awarded at the trial court are extremely on the high
side, even if all the work involved and the time taken
to try the case are considered.
There is no need to
belabour the point at this juncture because the
respondents in this court have lost the case by the
unanimous decision of this panel. They are entitled to
nothing. Costs cannot be awarded to parties who lose the
case, like the respondents herein.
The appeal succeeds and
should be allowed.
S. A. BROBBEY
JUSTICE OF APPEAL
TWUMASI, J.A.;
The trust of this
appeal is the true meaning of the provisions of the
Labour (AMENDMENT) Decree 1969 (NLCD.342). The High
Court Tema preferred the construction placed upon the
statute by the respondents and rejected the view of the
appellant as to the true meaning and import of the
statute. The court therefore gave judgment for the
respondents.
Against that judgment
the appellant has filed a number of grounds of appeal.
The facts of the case could be briefly stated for the
purpose of shedding some light on the issues of law
involved. Sometime in June, 1994 the appellant company
embarked upon a restructuring exercise, which affected a
sizeable number of the labour force in terms of job-
losses. The respondents were among those workers who
lost their jobs on grounds of redundancy. Under and by
virtue of the collective agreement then in force, all
those declared redundant were paid compensation referred
to in the said agreement as “severance pay” in
accordance with article 36 of the said agreement. The
latter article had provided that each worker who had
lost his job was entitled to be paid two (2) months
consolidated basis pay for each year of service. The
collective agreement, however, had limited the period
for severance pay for the purposes of its computation,
to a specific date, which was 1st January. 1991,
irrespective of the date and year a particular worker
commenced work with the appellant company prior to 1st
January, 1991. In real terms, therefore, if for example
worker X commenced his services for the appellant on the
31st December, 1990 he was not given severance pay from
that date and year to the 1st January, 1991.
This collective
agreement was negotiated and concluded by two parties,
namely the appellant company as employer for the one
part and the junior staff, junior workers through their
accredited representatives, namely, the Industrial and
Commercial Workers Union (ICU) of the Trades Union
Congress (TUC) of Ghana for the other part. The record
of appeal reveals, however, that the beneficiaries of
the severance pay made by the appellant company included
the senior staff workers who were affected by the
exercise. Sometime after payment of the severance pay to
them, the respondents raised a fresh issue. Their claim
was that great injustice had been meted out to them by
their employers, the appellant company. They contended
that the terms of the collective agreement which
deprived them of severance pay for the period of service
prior to the 1st January, 1991, was unlawful. They
therefore instituted an action in the High Court, Tema
claiming the following reliefs: —
(1) Payment of each
plaintiff’s severance compensation with effect from the
date each plaintiff commenced work with Defendant
company as employee up to 31st December, 1970.
(2) Interest at
prevailing bank rate from 1st February, 1994 to date.
(3) An order directing
the Defendants to immediately negotiate severance
compensation with the plaintiff for the period of
service of each plaintiff before 1st January, 1991
failing which the court should itself determine a fair
and just compensation for the period concerned.”
In their statement of
claim the respondents averred in paragraphs 8 & 9
thereof the following:—
(2) Plaintiffs say that
even though they were one and all, entitled to severance
compensation upon the event of the restructuring
arrangement referred to in paragraph 7 they were each
paid severance pay only with effect from 1st January,
1991 and the previous service of each plaintiff before
1st January, 1991 was unlawfully ignored.
(9) Plaintiffs say that
severance pay is statutorily imposed under NLCD.342 and
could therefore not lawfully have been restricted to 1st
January, 1991.”
Since the NLCD.342 is
the focal point of all disputes or questions of law that
need to be canvassed, it is necessary to identify its
provisions by reproducing the entire statute. It is
provided under sections 34 and 35 of the labour
(Amendment) Decree 1969 NLCD.342 that:
34(1) Where an
organisation is closed down or where an organisation
undergoes an arrangement or amalgamation and the
closedown, arrangement or amalgamation causes a
severance of the legal relationship of employee and
employer between any person and the organisation as it
existed immediately before the close down, arrangement
or amalgamation, then, if as a result of or in addition
to such severance that person becomes unemployed or
suffers any diminution in his terms and conditions of
employment, he shall be entitled to be paid by the
organisation in whose employment he was immediately
before the close down, arrangement or amalgamation,
compensation, in this Decree referred to as “severance
pay”.
(2) In determining
whether a person has suffered any diminution in his
terms and conditions of employment under sub-paragraph
(1) of this paragraph, account shall be taken of the
past services and accumulated benefits (if any) of such
person in or in respect of his employment with the
organisation before it was closed down or before the
occurrence of the arrangement or amalgamation:
(35) The amount of any
severance pay to be paid under paragraph 34 of this
Decree as well as the terms under which payment is to be
made shall be matters for negotiation between the
employer or his representative and the employee or his
representative”
The legal submissions
made by counsel for the respondents on the proper
construction of the provisions of this decree found
favour with the learned trial High Court Judge. The
following excerpts from the judgment appear at p.52 of
the record of appeal:
“Under and by virtue of
the Labour (Amendment) Decree 1969 (NLCD.342) Section
34(2) in determining the amount of any severance pay to
be paid as severance award account shall be taken of the
past services and accumulated benefits (if any) of such
person in or in respect of his employment with the
organisation before it was closed down or before the
occurrence of the arrangement or the amalgamation. Even
though section 35 of NLCD makes the quantum of any
severance award and the terms thereof to be subject of
negotiation, the negotiation should be conducted bearing
in mind the mandatory provisions of section 34(2) of
NLCD.342. Section 34(2) makes no direct reference to
employees who suffer total loss of employment like
plaintiffs in this case. Did the lawmakers intend to
omit this class from benefiting or was it an
inadvertment omission? Mr. Jones Mensah submitted that
it was an omission and that employees who suffer total
loss were intended to benefit. He urged the court to so
hold. I am persuaded that this is a fitting case to so
hold.”
Counsel for the
appellant in his written statement of case argued
together on simultaneously original grounds (A), (B) and
(C) and additional grounds (1), (2) and (3). The first
of the submissions was that the learned trial judge
erred by holding that article 36 of the Collective
Agreement (Exhibit ‘A’) was void as being inconsistent
with the provisions of paragraphs 34 and 35 of the
Labour Decree 1967 (NLCD.157) as amended by the Labour
(Amendment) Decree 1967 (NLCD.342). This decree has been
reproduced above and it is clear that the sticking
points or, put more robustly, the centrifugal point is
paragraph 34 sub-paragraph (2) thereof. Counsel for the
appellant company argued that, upon proper construction
the provision was clearly intended to prescribe a number
of factors to be taken into account in determining
whether a person who works in an organisation that has
been closed down or has undergone reorganisation or
amalgamation has suffered any diminution in his terms
and conditions of employment immediately before such
closure or reorganisation or amalgamation. I wish to
quote his submission as follows: —
“Section 34(2) as
provided under NLCD.342 only preserves in simple terms
the point of the proviso in the old section 34, namely
that in determining whether a person has suffered
diminution in his terms as conditions of employment on
account of an arrangement, amalgamation etc account is
to be taken of his past services and accumulated
benefits (if any), The provision of section 34(2), to
repeat, is then to help determine who has suffered
diminution in his terms and conditions of employment
such that he qualifies for severance pay”.
On the relevance of
pre-enacting history as an aid to interpretation he
cited the case of USA Government vrs: Jennings (1983) 1
AC.624 at 641 and Bennion on Statutory Interpretation
2nd edition at pp.438 - 440. Arguing contrariwise
counsel for the respondents submitted in his statement
of case the following: —
“Thus the phrase in
determining whether a person has suffered any diminution
in his terms and conditions of employment under
subparagraph (l) of this paragraph...it makes sense if
the word “whether” is understood to read and mean “how
much” or the extent to which past service related to
suffering. A meaningful rephrasing of the phrase in
question in order to achieve the lawmaker’s intention
can be a supported reading as follows: “In determing to
what extent or how much a person has suffered any
diminution in his condition of employment, account shall
be taken of past service.”
In support of this
submission Counsel referred the court to a number of
legal authorities including Yorkshire Fire Insurance Co.
vrs: Clayton (1881) 8 QBD. 421; Courts vrs: Stonvin
(1889) 22 QBD.513; Duke of Bucclench 1889) 15 P.D.86; R.
vrs: Bishop of Otfirst (1876) QBD,245 at 252 Whitney
vrs: 1 RC (1926) Ac.37. All these cases dealt with one
fact or the other of the golden rule of statutory
interpretation with particular reference to the power of
the court to modify a statute to achieve apparent
legislative intention. He cited other cases to the same
effect namely, In re Brockelbank, ex-parte Dunn and
Rueburn (1889) QBD.461; Lyson vrs: Andrew Stuart vrs:
Nixons Bruce (1900) A.C.79 and last but not the least
Counsel referred to learned commentary at p.36 - 42 of
“The Law of Interpretation in Ghana” 1st Edition by S.Y.
Bimpong-Buta on the topic construction or Interpretation
of Statutes. The learned author quoted with approval a
passage from the case Grey vrs: Person (1957) HLC.61 at
106 where Lord Wenslegdale stated that:
“In construing wills
and indeed states and all written documents, the
grammatical and ordinary sense of the words is to be
adherred to unless that would lead to some absurdity, or
some repugnance or inconsistency with the rest of the
instrument, in which case the grammatical and ordinary
sense of the words may be modified so as to avoid the
absurdity and inconsistency but to no farther.”
It would no doubt be
appreciated that here Lord Wansleydale was virtually
re-echoing the golden rule as enunciated by Parke ‘B’ in
Becke vrs: Smith (1836) 2 Meeson & Welsby 191 at 195
(infra), Counsel for the appellant rejects the tendency
to insert words into the decree and cautions against it
by a quotation from Cross’ Interpretation of Statutes
3rd Edition p.99 that:
“The power to add to,
alter or ignore statutory words is an extremely limited
one, it can only be exercised where there has been
“demonstrable mistake on the part of the drafter or
where the consequences of applying the words in their
ordinary or discernible secondary meaning would be
utterly unreasonable.” The contribution which counsel in
this appeal have endeavoured to make to assist this
court in finding the proper intention or object of the
lawmaker in enacting sub-paragraph 2 of paragraph 34 of
the NLCD could be stated in a few words or statements.
Counsel for the appellant contends that the
sub-paragraph means exactly what the words used say and
nothing else. He elaborates that all that the words mean
is that they are intended as a factor or criterion for
determining whether a particular worker has suffered a
diminution in his terms of employment. He says that once
that issue is determined, then that worker qualifies to
be paid compensation or severance pay, otherwise he is
not entitled. Where the worker passes that test, his
right to demand his compensation accrues to him under
paragraph 35 which provides that the amount of
compensation shall be determined through negotiation by
the accredited representatives of the workers on the one
part and the employer on the other. Counsel for the
respondents for his part contends that the sub-paragraph
is a formula for determining “the extent to which or how
much a person has suffered any diminution in his
conditions of employment.” He argues that if the decree
says that past services should be taken into account in
this determination, then it is the duty of the court to
grant severance payment for past services to workers who
lost their employment. By this argument he questions the
legality of article 36 of the collective agreement,
Exhibit ‘A’, for cutting off the years prior to January,
1991 and thereby depriving the joblosers their due
compensation for their past services. In short, he
contends that there is some injustice, which cries for
remedy, and he implores this court to provide the remedy
through the mechanism of statutory construction.
As it is customary of
me, I go back to basics and my starting point is the
principle or rule of statutory interpretation which
insists that statutes must be looked at as a whole. This
is the holistic approach. It requires that every
paragraph or sub-paragraph of a statute is to be
construed with reference to the other parts or
paragraphs of the statute in order to make a consistent
and homogenous enactment of the whole statute. This
option requires that individual words or phrases or
sentences, which may occur in the statute, must not be
construed in isolation. Also, the meaning of one
paragraph may have interaction with another and care
must be taken to avoid ignoring such relationships if a
true and correct meaning of the statute as a whole is to
be achieved: See Asamoah vrs: The Republic (1972) GLR.
117; Ababio vrs: The Republic (1972) 1 GLR.347 and the
English cases Canada sugar Refining Co. Ltd. vrs: Rex
(1898) AC.735 per Lord Derby at p.741. Fortunately, the
brevity of the NLCD.342 has made it possible for me to
reproduce all its parts. The next face is the golden
rule of interpretation what I term the pious approach.
In the celebrated English case of Becke vrs: Smith
(1836) 2 Meeson & Welsby) 191 at p.195 Parke ‘B’ said:
“It is a very useful
rule in the construction of a statute, to adhere to the
ordinary meaning of the words used, and to the
grammatical construction, unless that is at variance
with the intention of the legislature, to be collected
from the statute itself, or leads to any manifest
absurdity or repugnance, in which case the language may
be varied or modified, so as to avoid such
inconvenience, but to no further.”
The golden rule was
applied by our Court of Appeal in the case of Ghana
Muslims Representative Council vrs: Salifu (1975) 2
GLR.246 in the construction of the legislative object of
Act.106. The Supreme Court used the rule in Essilfie
vrs: Anafo (1992) 2 GLR.654 to interpret the word
“action” and whether “action” included an “appeal”
within the purview of the Supreme Court Rules 1970
(C.I.13) rules 13(1) and (2) and 66(1). The issue was
whether a party whose appeal had been struck out for
failure to file a statement of case within time could be
granted extension of time to file the statement. Lastly
in another recent case. Quaynor vrs: Quarshie, dated 3rd
February, 2000 unreported the Court of Appeal construed
the meaning of a child under 18 years of age under
section 13(1) of the Wills Act, 1971 (Act. 360) to
include a physically and mentally incapacitated child
above the age of eighteen years to enable him benefit
from a judicially-apportioned reasonable provision out
of the estate of his deceased father who had
disinherited him by his will. On the question as to the
power of the court to incorporate into the body of an
enactment words or phrases of its own for the purpose of
advancing the perceived legislative intention so as to
avoid injustice, let us examine and benefit from a
statement by the Honourable Justice Taylor, J.S.C. (as
he then was) in Sam vrs: Comptroller of Customs and
Excise (1971) 1 GLR.289 at 309 that:
“Apparently one can
alter the words of a statute but this is a serious
matter and it must be for only very cogent and limited
reasons indeed. As Bramwell B. said in Fredericks vrs:
Payne (1862) 1 HSC [Hurlstone & Ciltman] 584 at 589 (my
emphasis). The introduction of words into an Act of
Parliament is open to serious objections, and should
only be resorted to for the most cogent reasons, so as
to avoid a repugnancy of construction or something which
is opposed to good sense.”
The policy rationale
behind this statutory judicial restraint is the
acceptance of the presumption that the parliamentary
draftsman has obsequiously reduced into writing exactly
what the lawmaker intended to convey by the statute and
further and more importantly that parliament will not
intend what is unjust or inconvenient. See Artemiou vrs:
Procopiou (1966) 1 QB.878 per Dankwerts LJ at p.888
(Maxwell in interpretation of Statutes 12th edition
p.199)
It follows therefore
that where a party alleges that there is an omission or
some other provision of a statute causes any ambiguity
warranting alteration of a word, phrase or a sentence in
the statute, the onus rests upon him to establish what
in his view the true intention of the legislature is and
to prove to the satisfaction of the court that such
word, phrase or sentence used in the statute is in
conflict with the legislative intention and consequently
repugnant to good sense and justice unless it is altered
by the court. In my understanding of interpretation of
statutes it is a corollary to the literal construction
approach to restrict the interpreter to the meaning of
the words and phrases used by the draftsman and to
reject facile suggestions for insertions of extraneous
matters, so it is a corollary to the general rule of the
liberal interpretation that there should be a degree of
permissiveness to alter statutes, but the bottom line or
the upshot of it all, in my view, must be not to arrive
at a conclusion which would stultify the efficiency of
legislation. Armed with this background learning of the
fundamental principles and rules of statutory
interpretation and after due cogitation over the issues
in this case, I would proceed to express my candid
opinion on the Labour (Amendment) Decree 1969 NLCD.342.
The legislature of this country in its wisdom and with
obvious interest in the welfare of the labour sector of
the economy identified two categories of workers and
invested them with the right to compensation called
“severance pay” under section 34(1) of the NLCD.342”.
These two categories were: —
(1) Those who lost
their employment (i.e. job losers)
(2) Those who suffered
any diminution in their terms and conditions of
employment as a result of any restructuring. To lose a
job is to leave your office because your name is
automatically deleted from the pay-roll. In short, you
pack bag and baggage and go out to look for another
employment or employ yourself somewhere or else starve
to death.
This is always the lot
of a job loser. These workers then have to get in touch
with the appropriate authorities for the payment of
their severance pay and if settled they go in peace. All
they need to is to show the authorities that they were
among those declared redundant as a result of the
restructuring exercise. But the position is not so
simple and straightforward with the second category of
workers.
Some preliminary and
crucial exercise would have to be made before those
persons are identified. On what basis or criterion can
it be concluded that worker X or worker Y who has been
retained in the new organisation has suffered any
diminution in his terms and conditions of service as a
result of the new change? The most sensible approach is
to compare the terms and conditions in his employment
before the change with those of the new set up and to
ascertain whether he has been worse off in any terms and
conditions in the latter. If the answer is Yes, then he
would have to be compensated by severance pay. This must
be within the competence of experts in labour,
industrial and employer-employee matters. In short, it
is an administrative function for such experts either
within or engaged externally by the new organisation. In
my view, this is the task with which section 34(2) of
the NLCD,342 is concerned. The subsection, however,
makes it mandatory that in determining whether a worker
who has been retained has suffered a diminution in his
terms and conditions of service or employment in the new
organisation are worse than they were before “account
shall be taken of his past services and accumulated
benefits”. This is to say that account shall be taken of
his past services and accumulated benefits along with
the main considerations to be adopted for the
determination of that issue of whether the particular
worker has suffered any diminution: I have never
understood the subsection to be bearing a legislative
object of determining the amount of compensation payable
to persons who have suffered diminution. The
determination of the amount of such compensation
squarely falls within the purview of section 35 of the
NLCD.342. Clearly the learned trial judge made a detour
and therefore erred grievously when she construed the
subsection to be concerned with the determination of the
amount of severance pay.
With this misconception
of the law imperceptibly at the back of her mind, the
learned trial judge's misapprehension deepened into
another error of thinking that there had been grave
injustice meted out to those workers who had lost their
jobs by the legislature by omitting to enact a provision
that the past services of such workers should also be
taken into account. If some financial or other benefit
had been given to those who suffered diminution but the
total job losers had been denied similar deal then of
course one could say that the legislature had omitted
something crucial, but this is not the position with
regard to subsection(2) of section 34 of the NLCD. 342.
A recourse to the old law, that is the law as it was
before the amendment, now subject of interpretation
would doubtlessly shed enormous light on the true
interpretation of the amendment and to that end I
reproduce the old sections 34 and 35 of the Labour
Decree 1967 NLCD.157 as follows: —
(34) (1) Where an
organisation is closed down, or reorganised or
amalgamated with another organisation under a new name
or on a change of ownership, the workers in such
organisation shall be entitled to severance pay for loss
of employment.
Provided that no
severance pay shall be payable to any worker in the case
of a reorganisation or amalgamation where the new body
arising out of the reorganisation or amalgamation
undertakes to employ the worker on terms and conditions
which are the same or as or more favourable to the
worker than the terms and conditions upon which the
worker was employed immediately before the
reorganisation or amalgamation, so however that amount
shall be taken of his past service and other accumulated
benefits.
(35) The conditions
under which severance pay and the amount of such pay
that shall be payable, shall be matters for negotiation
between the employer or his representative and the
worker or representative.”
It is crystal clear
that the pre-amended law provided an answer for workers
who had been retained in the new establishment but whose
terms and conditions of employment had not suffered any
diminution. The answer was unambiguous; namely, that
they were not entitled compensation. That was the
proviso to section 34. The converse of that provision
was simple logic. It was that those who suffered
diminution in their terms and conditions of employment
as a result of the restructuring exercise qualified for
payment of compensation.
In the amended
enactment or decree the focus of attention was drawn to
those of the latter category of workers because the case
of those who would suffer no diminution did not pose any
problem requiring a procedure for its solution or
determination. Accordingly, the proviso was redrafted in
sub-section (2) of section 34 of NLCD.342 in a simpler,
clearer and comprehensive manner. The subsection was
therefore intended to serve as a mechanism whereby the
status of those who would suffer diminution could be
determined and their identity certified. It was not
designed to serve as a measure for assessing the amount
of compensation to be paid. This is because section 35
of both the old and the new law had been assigned that
function. It would be, in my view, preposterous to
impute to the legislature ignorance of the existence of
section 35 so as to say that it would create another
mechanism for assessing the amount of compensation and
still retain that section 35 to which that function had
already been assigned. To interpret subsection (2) of
the NLCD.34 the way being canvassed by the respondents
would result in a total truncation of the whole decree
because there would be two separate enactments, namely,
subsection (2) of section 34 and section 35 both
invested with power to assess amount of compensation one
for those who suffer diminution as well as those who
lose their employment. In my judgment, arrived at by a
very careful and meticulous study of the words in the
two decrees, NLCD.157 and 342, this would be tantamount
to creating artificial and needles duplications on the
enactments which could be a recipe for disaster of
epoch-making dimension in the task of statutory
construction in our courts.
On this vexed question
of past services and accumulated benefits being taken
into account, I may per force venture some suggested
illustrations. In her judgment (vide page 48 of the
record of appeal) the learned trial stated as follows: —
“The plaintiffs
admitted that they received their end of service
benefits under cross-examination, evidence was also led
to show that the bargains were done on behalf of the
parties by their accredited representatives.”
Touching on end of
service benefits, the position would be that those who
lost their jobs got these benefits paid to them. Those
who were retained would not be given these benefits
because the period for payment would not be due. It is
precisely these benefits yet unpaid but which might have
accumulated which the subsection (2) of section 34 of
the NLCD.342 has in contemplation. They would have to be
taken into account in determining whether a particular
worker has suffered any diminution in his terms and
conditions of employment and the approach would be to
compare these figures to the new ones to be carried
forward in the new establishment. Also in my view the
phrase “past services” does not necessarily refer to the
number of years that the worker has served the
organisation. It refers to the nature of his past
service and the capacities in which he performed those
services as well as the remuneration or other advantages
in cash or in kind that those services attracted. All
these would be assessed vis-a-vis the worker's new terms
and conditions to determine whether he has been worse
off by the new changes, before he qualifies to be given
compensation for the set back.
The grievance which the
respondents harboured in their sleeves may not be
unreasonable and they cannot be blamed for taking steps
to vent their complaint but it seems to me that the
target to which these grievances ought to be directed is
the representatives who negotiated the amount of
severance pay and who in the process deprived them of
benefits for the period prior to January, 1991. That
matter is not an issue before this court and I should
for the moment hold my peace in that regard.
What the learned trial
judge lost sight of in my view was that those workers,
if any, who might have suffered any diminution in their
terms and conditions of service were equally to be
affected by the reduction of the period for which
severance pay was to be paid in terms of article 36 of
the Collective Agreement Exhibit ‘A’. It would therefore
be wrong for the learned trial judge to interpret
section 34(2) to give the impression that those who
suffered a diminution were exempted from the application
of article 36 and that they had an advantage over total
job losers. In my view therefore in-as-much as the
learned trial judge held that the agreement reached by
the negotiation team representing both employer and
employees was inconsistent with section 34(2) of the
NLCD.342 she erred.
In view of the
conclusion that I have come to in respect of the true
meaning of section 34(2) of the NLCD.342 which was the
basis of the whole action the other grounds of appeal
are rendered nugatory. In the result the appeal is
allowed and the judgment of the court below is hereby
set aside.
P. K. TWUMASI
JUSTICE OF APPEAL. |
