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JUDGMENT
QUAYE, J.A.
Before the 19th
May,1999, the plaintiffs/appellants herein enjoyed the
rights and privileges and performed the obligations that
attached to their respective positions as employees of
the defendant/respondent company.
The said date however
witnessed a monumental shift in their relationship and
drastically plunged them into an uncertain and shaken
future with their employers.
The significant event
of 19th May, 1999 was a demonstration or strike action
embarked upon by the workers. The actual event has been
variously described and qualified. While the workers of
the defendant company described it as peaceful, the
defendant company in official terms classified it as
violent. In the wake of the demonstration, the
respondent company took two significant steps. In the
first place they closed down the mines; and then after a
space of three and a half weeks or there about caused
the workers, or in any event, those of them who were
disposed to continue to be in the employment of the
respondent company to execute a "declaration of renewal
of confidence and loyalty to GMC/MANAGEMENT" as a
condition for re-opening of the mine. The said
declaration form which was dated on 31st May, 1999 was
tendered in evidence in the trial court as exhibit 'D'.
On the same date, a circular notice had been issued,
once again emanating from the respondent company, and
judging by its contents, a deduction can be made that it
preceded or was meant to forerun exhibit 'D'. For ease
of reference and effect, exhibit 'C' is hereby
reproduced in extract only.
"CIRCULAR. 31st May,
1999. Following the meeting held between the Ghana Mines
Workers Union, the Senior Staff Association Executives
and Management of the Ghana Manganese Company Limited,
at the request of the Ministry of Employment and Social
Welfare, on 31st May, 1999, Management wishes to inform
all workers that it has rescinded its decision to close
down the company and dismiss all the workers.
Consequently, workers
who wish to continue their employment with the Ghana
Manganese Company Limited and are prepared to abide by
the Rules and Regulations of the company are advised to
collect declaration forms between 10.00 hours and 17.00
hours each day from the District Labour Office at
Tarkwa, whose office is temporarily located at the Nsuta
Police Station.
All such completed
declaration forms should be returned through the
District Labour Office for consideration not later than
10.00 hours on Thursday, 3rd June 1999."
Exhibit 'C' was signed
by the resident Director of the respondent company.
Evidence led before the trial Court by the Resident
Director on 13th December 2001 showed emphatically that
all but two of the entire workers of the respondent
company collected the forms and duly affirmed their
confidence in management and loyalty to the respondent
company. One is open to conjecture that those who did
not follow the procedure for the re-opening of the mines
automatically ended their service therein, and that
those who completed and returned the forms were to
continue in employment. This fact notwithstanding, the
employments of about twenty-eight of the workers,
including all the plaintiffs/appellants herein were
terminated. Each of them was served with a rejection
letter, and a certificate of service. The latter
provided the reason for leaving the service of the
respondents as "Not re-admitted after closure of the
mine in May 1999."
The twenty-five
plaintiffs/appellants felt they had a common grievance
against their former employer, the respondent herein;
hence they filed an action in the High Court Registry at
Tarkwa to contest the rightfulness of the termination of
their appointments with the defendants/respondents. The
issues that went before the trial court were:
(a) Whether or not
termination of Plaintiffs' appointment was wrongful
and/or illegal.
(b) Whether or not
Plaintiffs are entitled to their reliefs."
The
plaintiffs/appellants, it should be pointed out,
prosecuted their claims severally albeit they all joined
together on one writ of summons as plaintiffs. This is
known to and in accordance with the procedure in the
courts in Ghana by virtue of Order 16 rule 1 of L.N.
140A. In such a situation, the rule provides for, and
actually enjoins the trial judge, to consider the
individual claims of each of the Plaintiffs and give
judgment "for such one or more of the plaintiffs as may
be found to be entitled to relief, for such relief as he
or they may be entitled to."
At the trial the 1st,
22nd, 24th, 25, 6th, 4th, 11th, 15th and 16th plaintiffs
gave evidence on respect of their individual claims
while the 9th Plaintiff spoke for himself and on behalf
of the 2nd, 3rd, 4th, 5th, 7th, 8th, 10th, 12th, 13th,
14th, 17th, 18th, 19th and 20th, plaintiffs. None of the
plaintiff/appellants called any independent evidence
from a witness to support his or their case. Evidence
for the defendant/respondent was articulated through the
Respondent Director and two other witnesses.
At the end of the
trial, the Court dismissed the claims of the plaintiffs
because, as the judge found, the action was cognisable
under the provisions of the Industrial Relations Act
1965 (Act 299) and that the said provisions rendered the
strike action illegal.
The
plaintiffs/applicants were obviously aggrieved by and
dissatisfied with the judgment and have hereby
translated their grievance into the herein appeal.
As many as eight
grounds of appeal were filed. Counsel for the appellants
however compressed the grounds and concentrated on the
first two grounds only. These are:—
(1) The judgment is
against the weight of the evidence adduced.
(2) The learned Trial
Judge wrongly dismissed the claim for damages for
defamation in the light of the evidence on record, hence
the suit should be remitted to the High Court for
consideration of the plaintiffs' claims on an individual
basis."
The thrust of the
appeal on the first ground, alleging that the judgment
was not supported by the evidence adduced at the trial,
is the statement of the trial judge dismissing the
action and attaching legality to termination of the
plaintiffs' employment by the defendants/respondents.
Counsel submitted that it was wrong for the trial court
to hold that all the employees became liable even though
not all of them took part in the demonstration. Indeed
it is on record, and the trial court found as a fact,
that some of the employees did not take part in the
demonstration. The evidence does not attribute any role,
whether as instigators, participants or the like to any
of them. The evidence shows that the 1st appellant was
on annual vacation leave; the 22nd appellant was heavily
pregnant and was preparing to proceed on maternity
leave. The 23rd appellant was on night shift and had
closed from work and gone home at the end of the shift
in the morning of 19th May, 1999. The 24th appellant
denied any involvement in the demonstration; for his
part the 6th appellant's evidence established that he
was not at the work premises at the time of the
disturbances because he was on afternoon duty and
appeared on the scene after the demonstration. The 4th
appellant was not present. He reported for work in the
afternoon.
The 11th appellant was
on leave of absence from 17th May, 1999 to 16th June,
1999. The 15th appellant had reported sick on the 19th
May 1999 and was in no good condition of health to join
in the demonstration. The 16th appellant who was a nurse
in the respondent's service had worked in the night and
closed and left the premises of the respondent in the
morning of the 19th May, 1999. Counsel for the
appellants after referring to the above facts in
evidence submitted that the evidence on record shows
that the afore mentioned plaintiffs/appellants
had-committed none of the acts set out in section 23 of
Act.299 and to that extent cannot come under its
purview. Section 23 of Act 299 defines the word "strike"
to mean" the act of any number of employees who are not
or have been in the employment of the same employer or
of different employers of—
(a) discontinuing that
employment whether wholly or partially;
(b) breaking their
contract of service;
(c) refusing or failing
after any such discontinuance to resume or return to
their employment;
(d) refusing or failing
to accept engagement for any work in which they were or
are usually employed; or
(e) reducing their
normal output or their normal rate of work"
I have deemed it
relevant to reproduce the section above because the
parties relied on it depending on their interpretation,
and indeed the same section informed the judgment of the
trial court. Essentially, it is my view that this appeal
does not call for a determination of whether or not the
industrial action embarked upon was legal or illegal or
whether it was violent or peaceful. I should point out
without equivocation at this stage that the workers did
not have any prerogative of deciding whom the employer
should employ. This appeal, in my mind turns on whether
or not the appellants committed the acts for which they
have been jeopardised with a termination of appointment,
and whether the respondents had the power to terminate
their appointments as they did. It is my intention
therefore to consider the principal elements as
contained in the evidence. In the first place, none of
the appellants identified above, namely the 1st, 4th,
6th, 11th, 15th, 16th, 22nd, 23rd, 24th and 25th
appellants was challenged during their respective cross
examination by counsel for the respondents on their
specific denial of involvement in the strike action. The
law is quite succinct that where a party leads evidence
and his opponent fails to take him on, shake or puncture
the claims or allegations of fact he has made, then
there is a presumption in law that the opponent who has
failed to cross examine on the fact, has conceded that
the correctness of the fact alleged. On the other hand
where questions are asked during cross examination which
are not weighty enough to shake the evidence, or where
the answers to questions put during cross examination
show that the facts in issues are more probable than
not, then the court was bound to accept the facts as
true. In this case, I should reiterate that the failure
by the respondents to take the named appellants on, in
respect of their denial of participation in the strike
action for one reason or the other, is injurious to the
stand taken by the respondents and renders their action
in terminating the appointments of the said appellants
very worrying. The trial court rightly accepted that not
all of the workers took part in the strike action.
The second feature in
my analysis of the evidence and the basis of the
respondent's action against the appellants is in respect
of the testimony given by the Respondent Director of the
respondents in the trial court. He gave a bird's eye
view account of the events because he was an eye witness
and was positioned at a vantage point where he could
clearly see developments as they unfolded. Indeed luck
seemed to smile on him albeit in a daring manner when
some of the demonstrators marched to the Resident
Director's office and had exchanges with him. His
evidence was that the workers hid their identity by
wearing masks. The essential fact is, however, that the
Resident Director failed to identify any one of the
appellants as being among those who confronted him in
the office, neither did he attribute any specific act or
deed to any of them.
Further to this, none
of those alleged by the Resident Director to have been
assaulted, or threatened, that is to say, the secretary
or the Human Resources Manager gave evidence to support
what the Resident director had alleged. The evidence of
the Secretary and/or the Human resources Manger was
necessary to show that the demonstration was violent.
More importantly,
either, if not both, of the witnesses might be in a
position to identify any or some of the plaintiffs as
having taken part in the demonstration. Such evidence
would expose and probably deflate the cloak of alibi
worn by the plaintiffs. Their evidence would be relevant
in the circumstances of this case since it cannot be
said that they were coming to merely repeat what the
Resident Director had said and would therefore be
otiose, neither derogating from nor advancing the
evidence already on record any further. See ASARE vrs.
DONKOR and SERWAH II (1962) 2 GLR. 176 Conversely, there
'is no suggestion in this appeal turning on knowledge on
the part of the respondents that the interests of the
said witnesses were at variance with those of the
respondents and were therefore not likely to testify on
their behalf—See ABADOO vrs. AWOTWI [1973] 1 GLR.393. I
am nevertheless mindful that the uncorroborated evidence
of the Resident Director, if it meets other legal
requirements for the discharge of the burden, can be
relied upon as sufficient to base a finding of fact
upon. In this case however, the evidence of the Resident
Director in issue falls short of the legal requirements,
and as it stands, is too porous and dangerous to justify
any allegation of ill- conduct by the appellants.
Lastly, I intend to
consider the minutes of the meeting held under the
auspices of the DWI who, at the material time was Deputy
Minister for Employment and Social Welfare. It is
essential, to also analyse exhibit 'C' (supra) and, may
be, the steps taken in to effectuate the termination of
the appointment of the appellants.
The final agreement at
the meeting held in the Ministry of Employment and
Social Welfare as recorded in exhibit '2' was . . . . .
. . . . . . that Management would come out with a form
on which the conditions of the re-entry to the company
would be spelt out ....... 'The Respondent Company
subsequently issued exhibit 'C' (supra) wherein they
assured the workers that as a fall out from the meeting
evidenced by exhibit 2 (supra) Management had "rescinded
its decision to close down the company and dismiss all
the workers". This raises a presumption that none of the
workers including those who planned and those who
actually took part in the demonstration was going to be
penalised or victimised. Management was then seen to be
exercising a prerogative of pardon across board and
unconditionally. If therefore it was still deemed
necessary to penalise any or some of the employees for
their part in the industrial action then the law
requires that such action on the part of the Respondents
must be founded on reasonably justifiable ground and not
arbitrary. The question that comes up therefore is,
whether the Respondents' termination of the appellants
can pass the test of substantial evidence. Were the
appellants made escape goats merely to tell the world at
large that the Respondents can bite and really bite
hard. Where the termination of the appellants cannot be
reasonably justified under the substantial evidence
test, then that conduct cannot be held in law to be
legal. The substantial evidence rule was stated in
MARSHALL vrs. CONSUMERS POWER CO. 65 Mich. App.237 as
such evidence that a reasonable mind might accept as
adequate to support a conclusion. It is that quality of
evidence necessary for a court to affirm a decision of
an administrative board. Under the "substantial evidence
rule" reviewing courts would defer to an agency
determination so long as, upon an examination of the
whole record there is substantial evidence upon which
the agency could reasonably base its decision." Have the
respondents herein made any reasonable ground on which
their termination of the appointments of the appellants,
can be justified. Relying upon the facts alone I do not
think so.
Before I am accused of
not dealing with the individual cases of the appellants,
I must hasten to add that the 22nd, 23rd, 24th and 25th
appellants were senior staff and were deemed not to be
part of a demonstration that had been called and
executed by the unionised staff. It would appear, and I
shudder to mention the irony of circumstance in this
case. It is patent upon the evidence that the executive
members of both the Senior Staff Association and the
Local Mine Workers Union assisted the Management
immensely in all the meetings and deliberations leading
to the reopening of the mines. It appears however that
the axe rather fell on them.
From the above
reappraisal of the evidence I firmly agree with Counsel
for appellants' contention that the trial court's
judgment is against the weight of the evidence led.
The above
consideration, so far relates to the facts and evidence
led No firm decision can however be made on this one
sided consideration. The other equally relevant issue in
this appeal is to find and establish the nature of the
action that was taken by the respondents. It is beyond
dispute that the appointments of the appellant were
terminated. The severance of the appointments of the
appellants needs to be put into a strait jacket. Cleary
their severance of employment was not a summary
dismissal but a termination of appointment. Without the
need to quote any legal authorities, it is common
knowledge that clear distinctions exist between the two.
I will only attempt to note the commonest. While in
summary dismissals the employer may state reasons for
their action, the employer is not equally bound to give
any reason for termination of appointment. Besides this,
an employee whose service was to be terminated was
entitled to notice or payment in lieu thereof, and also
payment of all his entitlements.
This was the position
taken by this court in ARYEE vrs STATE CONSTRUCTION
CORPORATION [1984-86] 1 GLR.424. In that case the
appellant's appointment was terminated on grounds of his
misconduct in conspiring with another person to
discredit the corporation in a local newspaper, and
after he had apologised to his employers after a sober
reflection, he subsequently wrote to the President of
the Ghana with copies to some of the Ministers, and in
that letter he virtually repeated the allegations and
insinuations which he had earlier withdrawn and
apologised for.
When his appointment
was terminated, he was given physical payment in lieu of
notice together with other entitlements. The Court held
inter alia.
"(1) a contract of
service was not a contract of serutude. To say, as we
are wont to do, that it gave rise to a master-servant
relationship was to distort reality . . . . . . . . . .
. The contract was framed in such a way that either
party might bring it to an end and free himself from the
relationship painlessly. In this case, the appellant
could, at anytime, give the relevant three months'
notice or forfeit an equivalent in salary and leave the
corporation without justifying his action to the
corporation. In the same way the corporation need not
assign away reason for choosing to terminate their
contract with the defendant. The contract merely
required the corporation to give three months' notice or
its equivalent in salary and their conduct be perfectly
in order. On the evidence, the corporation discharged
that obligation by giving the appellant three months'
pay in lie of notice. In the event, the termination was
perfectly in accordance with the contract of service and
could not be wrongful. The corporation misled the
appellant, and perhaps the court below, by seeking to
state the reasons for its action. It did not need to do
that. The fact that it did, however, did not detract in
anyway from the general Validity of their action,
expressly stated to have been taken under Paragraph 56
(c) of the contract of employment."
Article 10'02 of the
Collective Agreement Between Ghana Manganese Company
Limited and the Ghana Mine workers Union of the TUC
(Ghana) of 8th June, 1996, confers power on the employer
to terminate the employment of any worker by giving due
notice or payment in lieu thereof. Once the required
length of notice or its equivalence in money has been
paid to the affected employee, termination is deemed
legal and complete, irrespective of the fact that no
reason, or wrong or unsatisfactory reason has been
given. In this appeal therefore, the unsatisfactory
reason for the termination of the appointments of the
plaintiffs severally, would in the final analysis not
make the termination wrongful or illegal. The respective
letters of rejection given to each of the
plaintiffs/appellants and tendered into evidence clearly
show that all their entitlements were duly paid to them.
The respondents cannot be faulted, neither is there any
good reason to disturb the conclusions of the trial
court, since in this case none of the appellants has
questions the basis of the calculation of the monetary
entitlements paid to them. Even though the respondents
did not lead sufficient or satisfactory evidence why the
appellants and not any of the other employees had their
appointments terminated, they have the legal right qua
employers to dispense with any worker whenever they felt
his service were no longer required, and no court can
challenge that decision and act once the necessary
payments had been made.
Upon the evidence, not
much moment was placed on the claim for damages for
defamation by the appellants. Indeed apart from the 1st
plaintiff/appellant who asserted before the trial Court
that his office as Assembly man had been ridiculed, none
of the rest of the appellants touched on that leg of
claim. There being no evidence to support defamation, it
is my view that the trial judge was right in not
pronouncing on it. Counsel for the appellants did not
substantially address the issue of defamation in his
argument and submissions before us.
The words "Not
re-admitted after closure of the mine in May, 1999" per
se are more factual than defamatory. Upon the evidence
that phrase only shows that the grantee of the
certificate was, and had ceased being, in the employment
after a certain date and occurrence.
On the face of the
above the appeals fail and are accordingly dismissed.
G. M. QUAYE
JUSTICE OF APPEAL
T'WUMASI, J.A.
I agree.
P. K. TWUMASI
JUSTICE OF APPEAL
ANINAKWA J.A.
I also agree.
R. T. ANINAKWA
JUSTICE OF APPEAL
COUNSEL
G. F. Gardiner—for
Appellants.
R.S. Agbenoto—for
Respondents. |
