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Employment - Wrongful dismissal
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Computation of the awards -
Assessing of damages
- Whether
Plaintiffs purported dismissal
was wrongful and unwarranted.-
Whether or not Defendants to pay
to the Plaintiffs all their end
of service and accumulated
entitlements
HEADNOTES
The facts in this case admit of
no controversy whatsoever.
Following the dismissal of the
Plaintiffs from their employment
with the Defendant which they
considered as wrongful and
unlawful, the Plaintiffs
commenced an action against the
Defendants in the High Court,
Accra claiming the following
reliefs:-“A declaration that the
Plaintiffs purported dismissal
was wrongful and unwarranted, An
order upon the Defendants to pay
to the Plaintiffs all their end
of service and accumulated
entitlements., Another order
upon the Defendants to pay
damages to the Plaintiffs for
wrongful dismissal, Any other or
further reliefs as the
Honourable Court may deem fit.”
on appeal the Defendants herein
abandoned their challenge to the
decision of the High Court which
declared the dismissal of the
Plaintiff’s herein, therein
Respondents as wrongful and
unlawful. Instead, the
Defendants focused their
arguments on the computation of
the awards of salaries and
damages to the Plaintiffs. On
the 14th of July 2016
the Court of Appeal unanimously
upheld the appeal of the
Defendants herein and
accordingly substituted the
awards made by the learned trial
High Court Judge with an award
of two years salary as damages
for wrongful dismissal for each
of the Plaintiffs herein.-
HELD :-
Having reviewed the entire
case, we do not see any need to
depart from this settled
practice and award damages in
excess of what the upper limit
has been. Indeed no such case
has been made by the Plaintiffs
to convince us to exercise our
discretion in their favour. We
will therefore, under the
circumstances dismiss the appeal
lodged by the Plaintiffs against
the unanimous decision of the
Court of Appeal dated 14th
July 2016, and instead affirm
the said judgment of the Court
of Appeal of even date.
STATUTES REFERRED TO IN JUDGMENT
CASES REFERRED TO IN JUDGMENT
Bani v Maersk Ghana
Limited [2011] 2 SCGLR 796 at
801
Klah v Phoenix Insurance
Co. Limited [2012] 2 SCGLR 1139
at 1153
Ashun v Accra Brewery
Limited [2009] SCGLR 81, at 85
Nartey-Tokoli and Others v
VALCO [1978-88] 2 GLR 532
Kobi v Ghana Manganese Co.
Ltd. [2007-2008] 2 SCGLR 733
Akuffo v Issaka [1966] 1
GLR 773 SC
Akorful v State Housing
Corporation [1991] 2 GLR 348
Hadley v Baxendale (1854)
Ex. 341 at 354 – 355
Ghana Cocoa Marketing
Board v Agbettoh [1984-86] 1 GLR
122.
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING
JUDGMENT
DOTSE, JSC:-
COUNSEL.
SEYRAM DARBI WITH JEMIMA
IRRE ARYERE FOR THE 2ND
PLAINTIFF/ RESPONDENT/
APPELLANT.
MAXWELL KORBLA LOGAN WITH
SIKA AGGREY FOR THE DEFENDANT/
APPELLANT/ RESPONDENT.
DOTSE, JSC:-
This judgment is premised
upon an appeal lodged by the
Plaintiffs/ Respondents/
Appellants, hereafter
Plaintiffs, against the
unanimous judgment of the Court
of Appeal dated the 14th
day of July 2016 which allowed
in part an appeal lodged by the
Defendants/Appellants/Respondents
against the decision of the High
Court, Accra dated the 2nd
day of July 2014.
BRIEF FACTS
The facts in this case
admit of no controversy
whatsoever. Following the
dismissal of the Plaintiffs from
their employment with the
Defendant which they considered
as wrongful and unlawful, the
Plaintiffs commenced an action
against the Defendants in the
High Court, Accra claiming the
following reliefs:-
a. “A declaration
that the Plaintiffs purported
dismissal on 12th May
2008 was wrongful and
unwarranted.
b. An order upon
the Defendants to pay to the
Plaintiffs all their end of
service and accumulated
entitlements.
c. Another order
upon the Defendants to pay
damages to the Plaintiffs for
wrongful dismissal.
d. Any other or
further reliefs as the
Honourable Court may deem fit.”
DECISION OF THE HIGH COURT
After a full scale trial,
the learned trial High Court
Judge on the 2nd day
of July 2014 rendered it’s
decision in favour of the
Plaintiffs herein. The decision
of the High Court is stated
briefly as follows:-
“In our present case, the
evidence established that Godson
Awortwi Dadzie has worked in the
employment of the Defendant bank
for 29 years whilst Philip
Nyatuame worked for almost 24
years before their unlawful
dismissal. Guided by the above
stated principle, I hold that
each Plaintiff shall be entitled
to
(a) all his salaries
calculated from the date of his
interdiction i.e. 31/01/2008 to
the date of judgment
(b) all his end of service
awards calculated from the date
of interdiction till date of
judgment, and
(c) Payment of three
months salary in lieu of proper
notice.”
“Additionally, the 1st
Plaintiff is awarded
GH¢20,000.00 general
damages for prospective loss of
promotion and loss of
employment. The 2nd
Plaintiff is entitled to
GH¢15,000.00.”
“The unchallenged evidence
is that Philip Nyatuame was a
senior staff and was the deputy
to the 1st Plaintiff
at the Koforidua Branch at the
time. He had also worked for 24
years before his summary
dismissal. Plaintiffs cost
assessed at GH¢6,000.00”.
APPEAL AGAINST THE HIGH COURT
DECISION TO THE COURT OF APPEAL
AND IT’S DECISION THEREIN.
Aggrieved and dissatisfied
with the judgment of the High
Court, the Defendants herein,
therein Appellants appealed
against the High Court decision
to the Court of Appeal on four
(4) grounds of appeal.
However, during the
reception of arguments in the
Court of Appeal, the Defendants
herein abandoned their challenge
to the decision of the High
Court which declared the
dismissal of the Plaintiff’s
herein, therein Respondents as
wrongful and unlawful.
Instead, the Defendants
focused their arguments on the
computation of the awards of
salaries and damages to the
Plaintiffs.
On the 14th of
July 2016 the Court of Appeal
unanimously upheld the appeal of
the Defendants herein and
accordingly substituted the
awards made by the learned trial
High Court Judge with an award
of two years salary as damages
for wrongful dismissal for each
of the Plaintiffs herein.
APPEAL TO THE SUPREME COURT
Quite unexpectedly, the
Plaintiffs felt aggrieved
against the judgment of the
Court of Appeal and lodged an
appeal against the said judgment
to the Supreme Court with the
following as the grounds of
appeal.
1. The Court erred
by failing to properly evaluate
the peculiar facts of the
Plaintiffs/Respondents/Appellants
case when it only awarded
Plaintiffs/Respondents/Appellants
the equivalent of two years’
salary of their pay as at the
date of dismissal as general
damages.
2. The judgment is
against the weight of evidence
on record.”
STATEMENTS OF CASE OF THE
PARTIES
We have perused the
statements of case filed for and
on behalf of the parties by
learned counsel for the
Plaintiffs, Seyram Darbi and for
the Defendants, Maxwell Korbla
Logan respectively.
BY THE APPELLANTS
The Plaintiffs premised
their statement of case on the
principle that damages follow an
action for wrongful termination
of employment. In this respect,
learned counsel for the
Plaintiffs referred to the
following cases which form the
bedrock of the legal regime in
such cases.
1. Bani v Maersk
Ghana Limited [2011] 2 SCGLR 796
at 801
2. Klah v Phoenix
Insurance Co. Limited [2012] 2
SCGLR 1139 at 1153
3. Ashun v Accra
Brewery Limited [2009] SCGLR 81,
at 85
4. Nartey-Tokoli
and Others v VALCO [1978-88] 2
GLR 532
5. Kobi v Ghana
Manganese Co. Ltd. [2007-2008] 2
SCGLR 733
6. Akuffo v Issaka
[1966] 1 GLR 773 SC
7. Akorful v State
Housing Corporation [1991] 2 GLR
348
8. See also the
case of Hadley v Baxendale
(1854) Ex. 341 at 354 – 355
It must be observed that,
the principle involved in all
the above cases is that, in
assessing damages for wrongful
dismissal, a court must have
regard to all the surrounding
circumstances and consider what
is fair and reasonable. In the
view of learned counsel for the
Plaintiffs it is wrong to
consider any lower or upper
limit as the basis for any
award. In essence, whilst the
courts have used various
indicators in awarding the
damages in the cases referred to
supra, ranging from one year, to
15 months, two years, etc, the
guiding principles remain the
same, i.e. as espoused in the
cases supra. In addition, each
case must be considered on its
peculiar facts.
On the basis of the above,
learned counsel for the
Plaintiffs argued that the Court
of Appeal did not take into
consideration the surrounding
circumstances of each case
principle but rather just
applied the upper limit of two
years. Learned counsel therefore
urged this court to vary the
said awards by considering all
the special surrounding
circumstances and enhance the
awards granted the Plaintiffs by
the Court of Appeal.
BY THE DEFENDANTS
The brief but incisive
arguments of learned counsel for
the Defendants, Maxwell Korbla
Logan is to the effect that,
whilst a contract of employment
is terminable, even if it is
done wrongfully, that phenomenon
does not entitle the aggrieved
party the right to be paid his
salary till his retirement age.
See case of Ashun v Accra
Brewery Limited already
referred to supra.
As a matter of fact, as
was conceded to by learned
counsel for the Defendants, the
issues involved in the
determination of this case turns
purely on legal arguments.
It is therefore not
surprising that most of the
cases referred to by leaned
counsel for the Plaintiffs had
been referred to by the learned
counsel for the Defendants as
well. The only case not
mentioned supra is that of
Ghana Cocoa Marketing Board v
Agbettoh [1984-86] 1 GLR 122.
Learned counsel for the
Defendants made references to
the facts which the Plaintiffs
relied upon to found their claim
for special circumstances and
therefore an enhanced award and
debunked such a reliance.
Learned counsel for the
Defendants claimed that the
Plaintiffs did not show by
evidence the efforts if any made
by them to mitigate their losses
by finding alternative
employment.
After a review of all the
locus clasicus cases referred to
supra in this delivery, learned
Counsel for the Defendants
concluded that those cases
rather re-inforce the contention
that the duration of the award
of damages is not open ended but
always curtailed by the courts
as was done in the Ashun v Accra
Brewery and Klah v Phoenix
Insurance cases supra just to
mention a few.
On the basis of the above
submissions, learned Counsel for
the Defendants urged upon this
court to dismiss the appeal.
DECISION OF THIS COURT
We have reviewed the
entire record of proceedings in
detail. We have also reviewed
the judgments of the trial High
Court and especially that of the
Court of Appeal.
In our very brief
elaboration of the reasons why
we have taken the decision in
this case, it is perhaps
important to also consider why
the Plaintiffs have mounted this
appeal against the Court of
Appeal decision. We have already
mentioned supra the concerns of
the plaintiffs that it was wrong
for the Court of Appeal to have
limited the award of two years
salary as damages for their
wrongful dismissal because it is
insufficient and does not take
into consideration the
surrounding and entire
circumstances of this case.
What then are these
circumstances? In the statement
of case of the Plaintiffs,
learned counsel therein outlined
the following as some of these
special circumstances that the
Court of Appeal failed to
consider.
1. That the
Appellants were arrested by the
Police and their statements
taken.
2. That the suit
herein took 5 years to complete
in the year 2014.
3. That the
Plaintiffs who were fairly
senior level staff in the
banking industry and who were
dismissed on grounds of
dishonesty might find it
difficult to obtain alternative
employment in that industry.
4. That between
2008 when the case was commenced
against the Plaintiffs and 2014
when it was concluded in their
favour, the Plaintiffs had no
chance of obtaining a comparable
status of employment in the
industry.
5. That the best
the Plaintiffs could do under
the circumstances might be to
settle for a less prestigious
and less paying job, assuming
they even found one, and finally
6. That there was
massive unemployment in the
country at all material times.
In evaluating all the
above special circumstances, it
is certain that most of them if
not all are based on conjecture
and not on any concrete and
verifiable evidence.
As a matter of fact, the
proximate facts which gave rise
to the Plaintiffs interdiction
and subsequent dismissal were
such that no serious employer
like the Defendants will proceed
with the case without the
involvement of the Police. This
was a case in which the
Plaintiffs, despite their long
experience in Banking could not
detect that cheques presented
for payment by the Defendants
customer were infact not Bank
Drafts and should not have been
treated as such. This conduct
led to the customer’s accounts
with the Defendants being
overdrawn to the tune of
GH¢11.7m. Even though it was
later established that the
Plaintiffs could not have
detected immediately that this
was not possible to have been
detected, the recourse by the
Defendants to the Police was not
reckless but a genuine attempt
to get to the bottom of the
transactions.
The second and fourth
special circumstances are such
that no evidence had been led to
establish that it was the
Defendants who contributed to
the delay in the adjudication of
the suit. Besides, there was
also no evidence that the
Plaintiffs tried to mitigate
their plight but were
unsuccessful because of the then
on going court proceedings.
The third and fifth
special circumstances are also
clearly speculative, no evidence
having been provided on record
to support these assertions.
The least said about the
sixth and last special
circumstance as that is also
speculative and based on
conjectural general
considerations.
For example, Justice Dr.
Date-Bah, speaking on behalf of
the Supreme Court in the
Ashun v Accra Brewery case
supra sounded the following as a
caution to dismissed workers to
mitigate their loss in the
following terms:
“…the duty of mitigation
of damages for wrongful
dismissal devolves on an
employee. Accordingly, he or she
has the duty to take steps to
find an alternative employment”.
In the instant case, there
is absolutely no scintilla of
evidence to suggest that the
plaintiffs made any such
attempts but failed. In
conditions such as the instant,
the Plaintiffs must be seen to
mitigate their losses by not
necessarily taking jobs
comparable to the scale or
levels they were on previously,
but one that will indicate the
positive and concrete steps they
had taken to mitigate and
thereby minimise their losses.
Before we end our
evaluation and assessment of the
grounds upon which the
Plaintiffs have lodged this
appeal, we feel bound to refer
to this court’s decision per our
very respected brother Atuguba
JSC in the case of Kobi v
Ghana Manganese Co. Ltd.
supra, in which he stated thus:-
“Considering the
specialised nature of the
plaintiffs employment which
would make it difficult to
obtain alternative employment;
the general unemployment problem
in the country and the abrupt
end of their careers and all the
circumstances of the case; and
bearing in mind that judicial
discretion should not be out of
joint with the general trends on
the matter and the fact that
in Ghana, as is well known, the
period of award of damages in
these matters has ranged between
two years and one year (see GCMB
v Agbettoh (supra) and
Nartey-Tokoli v VALCO (No2)
(supra), I would award the
Plaintiff three months salary as
at 19th May 1999, the
date of their wrongful
dismissal”. Emphasis
supplied.
Almost all the special
circumstances mentioned by the
Plaintiffs herein had been
considered by the Court in the
Kobi v G.N.M.C case supra and
yet, that Bench did not find it
expedient to depart from the
settled practice of the courts.
Having reviewed the entire
case, we do not see any need to
depart from this settled
practice and award damages in
excess of what the upper limit
has been. Indeed no such case
has been made by the Plaintiffs
to convince us to exercise our
discretion in their favour.
CONCLUSION
We will therefore, under
the circumstances dismiss the
appeal lodged by the Plaintiffs
against the unanimous decision
of the Court of Appeal dated 14th
July 2016, and instead affirm
the said judgment of the Court
of Appeal of even date.
There will however be no
order as to costs.
J. V. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
COUNSEL
SEYRAM DARBI WITH JEMIMA IRRE
ARYERE FOR THE 2ND
PLAINTIFF/ RESPONDENT/
APPELLANT.
MAXWELL KORBLA LOGAN WITH SIKA
AGGREY FOR THE DEFENDANT/
APPELLANT/ RESPONDENT.
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