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Labour - Wrongful termination of
Employment -
Disciplinary committee - Whether
judgment is against the weight
of evidence - “whether or not
the termination of the
appointment of plaintiff is
contrary to the collective
agreement
HEADNOTES
The
plaintiff/respondent/appellant,
hereinafter called the
appellant, was employed in the
service of the
defendant/appellant/respondent,
hereinafter called the
respondent, in or about 1971.
And for about thirty-six years
he remained in the employment
until his appointment was
terminated by the respondent in
August 2007. The reason for the
termination of his appointment
was that the appellant was
alleged to have assaulted
another member of staff whilst
on duty. A disciplinary
committee was set up to
investigate the complaint and
the committee concluded that the
alleged assault was proven on
the evidence placed before it.
The appellant appealed to the
disciplinary appeals committee
to reconsider his case. After
re-hearing the matter on appeal,
the appeals committee dismissed
the appeal. The appeals
committee as well as the first
committee both derived their
legitimacy from the Collective
Bargaining Agreement Having
exhausted the internal
mechanisms, the appellant
approached the High Court with a
writ of summons, subsequently
amended, claiming the following
relief against the respondent:‘
general damages for disciplinary
committee which damages include
but not limited to salary,
social security contribution,
allowances and entitlement from
the date of termination of
employment.’ After a hearing,
the High Court upheld the
appellant’s claim, having found
as a fact that the charge of
assault was not established by
the evidence on record. It held
the termination was wrongful and
therefore ordered the respondent
to pay damages to the appellant.
The respondent appealed against
the judgment of the High Court
to the Court of Appeal which
upheld the appeal and set aside
the judgment and orders of the
High Court. The main reason why
the Court of Appeal upset the
High Court’s judgment was that
the allegation of assault was
proven on the established facts.
Indeed the Court of Appeal was
prepared to rest its judgment
after concluding that in its
evaluation of the evidence the
assault charge was established.
Having exhausted the internal
mechanisms, the appellant
approached the High Court with a
writ of summons, subsequently
amended, claiming the following
relief against the
respondent:‘general damages for
wrongful termination of
appointment which damages
include but not limited to
salary, social security
contribution, allowances and
entitlement from the date of
termination of employment.’
After a hearing, the High Court
upheld the appellant’s claim,
having found as a fact that the
charge of assault was not
established by the evidence on
record. It held the termination
was wrongful and therefore
ordered the respondent to pay
damages to the appellant. The
respondent appealed against the
judgment of the High Court to
the Court of Appeal which upheld
the appeal and set aside the
judgment and orders of the High
Court. The main reason why the
Court of Appeal upset the High
Court’s judgment was that the
allegation of assault was proven
on the established facts. Indeed
the Court of Appeal was prepared
to rest its judgment after
concluding that in its
evaluation of the evidence the
assault charge was established.
HELD :-
It is clear from the record that
the appellant would have gone on
normal retirement but for the
wrongful termination of his
appointment and that question
was not determined by the High
Court at the time it gave its
decision since the appellant had
then not proceeded on
retirement. But by the effluxion
of time, the appellant had
reached retirement age sometime
in 2009; therefore the appellant
is entitled to his retirement
benefits as well. There is no
need for this court to receive
any further evidence on this,
since there is undisputed
evidence about the appellant’s
age and the fact that he had
only two years remaining on his
contract to retire at age 60 and
the fact that he was entitled to
retirement under the CBA. The
court would thus only draw
inferences from the undisputed
evidence on record. Under
Article 22 of the CBA, the
appellant was entitled to
twenty-seven days’ annual leave
excluding Saturdays, Sundays and
public holidays. Within a period
of twenty-seven working days, we
have at least ten (10) Saturdays
and Sundays, thereby entitling
the appellant to not less than
thirty-seven days’ leave in a
year. Thus for the remaining two
years of his contract the
appellant was entitled to a
leave period of at least
seventy-four days. When that is
taken into account, it would
mean that as at the date of the
High Court’s judgment the
appellant had earned his
retirement. Be that as it may,
as a de jure employee the
appellant would have earned his
retirement as a matter of course
with time. Therefore, for the
avoidance of any doubt, in
addition to all the benefits the
trial court awarded the
appellant who has reached
retirement age, he is entitled
to all his retirement benefits,
not excluding the benefit under
article 45 of the CBA, from the
date he qualified for
retirement, and thereafter.Any
payments owing to the appellant
should be made less any sums of
money that the respondent has
already paid to the appellant in
the aftermath of the
termination.For reasons
explained above the appeal is
allowed.
DISSENTING OPINION
STATUTES REFERRED TO IN JUDGMENT
Criminal Offences Act, 1960 (Act
29)
Evidence Decree, 1975 (Act 323)
Labour Act, 2003 (Act 651)
CASES REFERRED TO IN JUDGMENT
Kusi & Kusi vrs. Bonsu (2010)
SCGLR 60
Nartey-Tokoli and Others v.
Volta Aluminium Co. Ltd. (No. 2)
(1989-90) 2 GLR 341, SC
BOOKS REFERRED TO IN JUDGMENT
Osborn’s Concise Law Dictionary
(8th Edition) edited
DELIVERING THE LEADING JUDGMENT
BENIN,JSC:-
COUNSEL
FRANK G. DONKOR ESQ. FOR THE
PLAINTIFF/RESPONDENT /APPELLANT.
KOFI PEASAH- BOADU ESQ. FOR THE
DEFENDANT/APPELLANT RESPONDENT
-----------------------------------------------------------------------------------------------------------------
JUDGMENT
-----------------------------------------------------------------------------------------------------------------
BENIN,JSC:-
The
plaintiff/respondent/appellant,
hereinafter called the
appellant, was employed in the
service of the
defendant/appellant/respondent,
hereinafter called the
respondent, in or about 1971.
And for about thirty-six years
he remained in the employment
until his appointment was
terminated by the respondent in
August 2007. The reason for the
termination of his appointment
was that the appellant was
alleged to have assaulted
another member of staff whilst
on duty. A disciplinary
committee was set up to
investigate the complaint and
the committee concluded that the
alleged assault was proven on
the evidence placed before it.
The appellant appealed to the
disciplinary appeals committee
to reconsider his case. After
re-hearing the matter on appeal,
the appeals committee dismissed
the appeal. The appeals
committee as well as the first
committee both derived their
legitimacy from the Collective
Bargaining Agreement (CBA),
tendered as Exhibit D, that was
operative between the employees
and the respondent company at
all times material to this case.
Having exhausted the internal
mechanisms, the appellant
approached the High Court with a
writ of summons, subsequently
amended, claiming the following
relief against the
respondent:‘general damages for
wrongful termination of
appointment which damages
include but not limited to
salary, social security
contribution, allowances and
entitlement from the date of
termination of employment.’
After a hearing, the High Court
upheld the appellant’s claim,
having found as a fact that the
charge of assault was not
established by the evidence on
record. It held the termination
was wrongful and therefore
ordered the respondent to pay
damages to the appellant. The
respondent appealed against the
judgment of the High Court to
the Court of Appeal which upheld
the appeal and set aside the
judgment and orders of the High
Court. The main reason why the
Court of Appeal upset the High
Court’s judgment was that the
allegation of assault was proven
on the established facts. Indeed
the Court of Appeal was prepared
to rest its judgment after
concluding that in its
evaluation of the evidence the
assault charge was established.
However, it went on to talk
about other matters which will
be discussed herein if and when
they become relevant to the
determination of the grounds of
appeal filed by the appellant in
his appeal against the judgment
of the Court of Appeal.
The grounds of appeal, as
amended, are:
1.
The judgment of the Appeal Court
is against the weight of
evidence.
2.
The Appeal Court erred when it
equated the prove (sic) in the
case of Kusi & Kusi v. Bonsu
(2010)SCGLR 60 at 65 to the
prove (sic) of assault in the
appeal pending before it.
3.
The lower court erred when it
held that the employment of the
appellant was properly
terminated.
Counsel for the appellant argued
grounds 1 and 3 together. We
begin with the omnibus ground
that the judgment is against the
weight of evidence. A lot of the
facts were undisputed on the
pleadings and thus required no
further proof. These were:
i.
The appellant was in charge of
the respondent’s vehicle with
registration number GT 4598 X at
all material times.
ii.
On the day of the incident, that
is 10th July 2007,
the appellant’s vehicle was
loaded with the respondent’s
products to be conveyed to
Tamale.
iii.
The appellant’s vehicle was to
be filled with 950 litres of
diesel for the journey and the
appellant was issued with a
coupon or invoice to collect
this quantity of fuel.
iv.
The appellant drove the vehicle
to the respondent’s filling
station to load the fuel which
filling station was under the
charge of Maxwell Nkansah, an
employee of the respondent.
v.
The said Maxwell Nkansah fueled
the vehicle with 940 litres of
diesel leaving ten litres to be
filled.
vi.
The appellant requested Maxwell
Nkansah to put the remaining ten
litres in a jerry can for him to
take along on the trip, but
Maxwell Nkansah refused that
request.
Thus far there is no issue
joined as earlier said. As to
why the remaining ten litres was
not filled into the tank of the
vehicle and whether the
appellant was entitled to
collect it at all cost, were not
very clear and were not even
considered at all at every stage
of the proceedings though they
appear to have some bearing on
the events of that day.
According to the evidence on
record, which include the sworn
testimonies at the disciplinary
proceedings, which were tendered
at the trial court, Maxwell
Nkansah claimed that after
putting in the 940 litres, the
tank of the vehicle was full to
the brim, so he naturally
withdrew the fuel pump. On the
other hand, the appellant said
he requested Nkansah to put in
940 litres and allow him (the
appellant) to take the remaining
ten litres in a jerry can. He
said he made that request
because when the tank was filled
to the brim the fuel spilled to
the ground on bumpy and pot-hole
surface of the road. So it was
to conserve the fuel and ensure
optimum utilization that he
requested that the ten litres be
put in a jerry can.
Whatever the reason was, the
fact remains that not all the
950 litres entered the vehicle
fuel tank. It is undisputed that
Maxwell Nkansah declined the
appellant’s request to put the
remaining ten litres in a jerry
can. The appellant decided on
his own to fill the jerry can
with the ten litres with the aid
of his vehicle mate, one Samuel
Otu. And whilst they were
drawing the fuel into the jerry
can Maxwell Nkansah took hold of
the fuel pump and a struggle
ensued between Maxwell and the
appellant over the equipment,
with the result that the fuel
splashed on people and/or
spilled on the floor. Maxwell
Nkansah then went to the Police
and lodged a complaint of
assault against the appellant
claiming the latter slapped him.
The appellant rejected the
charge. There is no evidence
that any further action was
taken on the Police complaint.
However, the respondent set in
motion its disciplinary process.
The appellant was charged with
assault before the disciplinary
committee. Besides Maxwell
Nkansah and the appellant,
evidence was adduced by three of
the respondent’s employees who
were at the scene of the
incident. The Disciplinary
Committee concluded that the
appellant did assault Maxwell
Nkansah and recommended that his
appointment be terminated in
place of an outright dismissal
which according to the committee
was the appropriate penalty for
the offence committed. The
reason for that recommendation
was because of his long service
to the respondent. The appellant
appealed to the disciplinary
Appeals Committee but it was
also rejected.
The appellant’s case before the
court was that he did not commit
any offence for which his
appointment should be
terminated. He rejected the
charge of assault and pleaded
that his appointment was
wrongfully terminated. On the
other hand, the respondent
pleaded a case of assault
against the appellant and led
some evidence on it.The trial
court judge properly allocated
the burden of persuasion when he
held that “whether or not the
termination of the appointment
of plaintiff is contrary to the
collective agreement is the
principal issue that has to be
proved.” The High Court judge
also held, and rightly so, that
assault was a criminal offence
and thus the standard of proof
was that beyond reasonable
doubt, although in a civil
trial. The court held that since
it was the respondent who was
alleging assault against the
appellant, the burden of
producing evidence and of
persuasion rested with them and
were required to prove same
beyond reasonable doubt. In the
court’s view whilst the
appellant had succeeded in
proving that he did not commit
the offence for which his
appointment was terminated, the
respondent did not meet the
required standard of proof;
indeed it failed to lead any
direct evidence of the alleged
assault. Both parties, however,
relied on the evidence recorded
at the disciplinary hearing
which was put in evidence, as
earlier mentioned.
The Court of Appeal disagreed
with the High Court on its
findings and concluded that a
case of assault was established.
This is what the Court of Appeal
said:
“In his evidence in chief, the
respondent stated that it was a
struggle that ensued between him
and Maxwell Nkansah………
The respondent tendered Exhibit
A, the Disciplinary Committee
Enquiry Report. In Exhibit A,
witnesses before the Committee
also said there was a struggle
between the respondent and
Maxwell Nkansah.
Assault has been defined in the
Osborn’s Concise Law Dictionary
(8th Edition) edited
by Leslie Rutherford and Sheila
Bone as ‘……..any act committed
intentionally or recklessly,
which leads another person to
fear immediate personal
violence. An assault becomes
battery if force is applied
without consent. Assault is also
a tort consisting of an act of
the defendant which causes the
plaintiff reasonable fear of the
infliction of battery on him by
the defendant.’
See also section 85 of the
Criminal Offences Act, 1960 (Act
29)…………
From the definition supra, the
struggle of the respondent with
Maxwell Nkansah when the latter
was carrying out his legitimate
duty of filling the respondent’s
vehicle with fuel constituted
assault on Maxwell Nkansah.
Having admitted that he
struggled with Nkansah, when the
latter was carrying out his
duty, there is no need for
further proof as admitted facts
need no proof.
See the case of Kusi & Kusi
vrs. Bonsu (2010) SCGLR 60, 65:
‘Where no issue was joined as
between parties on a specific
question, issue or fact, no duty
was cast on the party asserting
it to lead evidence in proof of
that fact or issue.’
Ground 1 succeeds and same is
hereby upheld.” Ground 1 was the
omnibus ground that the judgment
was against the weight of
evidence.
It appears the Court of Appeal
over simplified the issue by not
paying attention to the parties’
pleadings. Among others, section
85 of Act 29 says assault
includes battery. Thus the
allegation by Maxwell Nkansah
could well be considered as
battery or both assault and
battery. Assault and battery has
been defined in section 86(1) of
Act 29 to mean the situation
where a person, without the
other person’s consent and with
the intention of causing harm,
pain, or fear, or annoyance to
the other person, or of exciting
him to anger, he forcibly
touches the other person or
causes any person, animal, or
matter to forcibly touch him. It
seems that the respondent’s case
was based on battery involving
forcible touch by way of a slap
to the face of Maxwell Nkansah.
It was in that context the case
of the respondent ought to have
been examined by the Court of
Appeal.
The appellant pleaded that the
issue about the ten litres of
fuel which he requested Maxwell
Nkansah to give him ‘brought a
misunderstanding between him and
Maxwell Nkansah. That he never
assaulted Maxwell Nkansah and
that all the witnesses who
testified at the enquiry spoke
in his favour that he did not
assault Maxwell Nkansah.’ These
averments are contained in
paragraphs 10-12 of the
appellant’s amended statement of
claim. The respondent denied
these averments by paragraphs 9
and 10 of their statement of
defence. Significantly, the
respondent pleaded in paragraph
4 of the statement of defence
that they ‘will contend at the
trial that plaintiff assaulted
Maxwell Nkansah for the simple
reason that plaintiff attempted
to steal fuel the property of
the defendant.’
The High Court took the position
that since the respondent
pleaded assault, the burden of
proof rested with them, for it
is trite law that he who
alleges, be he a plaintiff or a
defendant, assumes the initial
burden of producing evidence. It
is only when he has succeeded in
producing evidence that the
other party will be required to
lead rebuttal evidence, if need
be. However, in a claim founded
on wrongful termination of
employment contract, the
plaintiff assumes the initial
burden of producing evidence to
satisfy the court about his
terms of employment and also
that the termination of his
appointment was contrary to the
terms of his appointment or
existing law. The defendant
would then be obliged to produce
evidence to justify the
termination. Thus in this case
despite the respondent’s plea of
assault as justification for the
termination of the appointment,
the burden of proof does not
shift on them before the
appellant has made a case in
terms as stated above.
The appellant led evidence that
he did not assault Maxwell
Nkansah. He narrated the events
of that day and the proceedings
before the two disciplinary
committees whose records were
tendered in evidence. The
proceedings before the
Disciplinary Committee, Exhibit
A, clearly show that none of the
three witnesses who testified at
the enquiry supported the claim
by Maxwell Nkansah that the
appellant slapped or hit him.
They all confirmed that the
appellant and Maxwell Nkansah
did struggle over control of the
fuel pump. But at the
Disciplinary hearings as well as
before the trial court it was
never the respondent’s case that
there was a struggle between the
appellant and Maxwell Nkansah.
It was their case all through
the said proceedings and in the
trial court that the appellant
slapped Maxwell Nkansah in the
face when the latter confronted
the appellant over his wrongful
act of drawing fuel into the
jerry can.
From Exhibit A the Committee
decided there was proof of
assault because of the evidence
that after the struggle Maxwell
Nkansah was looking for
something to hit the appellant.
They believed Maxwell was
looking for something to hit the
appellant in retaliation for the
appellant hitting him. This was
their conclusion in the face of
the evidence from all three
witnesses named by both Maxwell
Nkansah and the appellant, see
exhibit 6 at pages 196-197, that
the appellant did not hit
Maxwell. The inference drawn
from the clear evidence was
palpably wrong. If anything at
all Maxwell’s desire to look for
something to hit the appellant
constituted assault for that
would place the latter in fear
of harm.
On the evidence before the High
Court it found as a fact that
there was no evidence that the
appellant touched Maxwell
Nkansah as alleged. And from the
record of proceedings at the
disciplinary hearing all the
three witnesses affirmed the
appellant’s version that he did
not slap or hit Maxwell Nkansah.
On that score the High Court
upheld the appellant’s claim
since the respondent who assumed
the burden of producing evidence
failed to produce the required
evidence in support of their own
pleadings that the appellant
assaulted Maxwell Nkansah. The
High Court’s finding that the
appellant did not slap or hit
Maxwell Nkansah cannot be
faulted in the face of the
evidence before the court.
The Court of Appeal did not find
anything wrong with the trial
court’s finding that the
appellant did not physically
assault Maxwell Nkansah. So it
sought to justify its decision
by the fact that Maxwell Nkansah
was performing his legitimate
duty hence the struggle with him
over the fuel pump was
tantamount to assault. But the
court did not consider that it
was Maxwell Nkansah who rushed
on the appellant to retrieve the
fuel pump from him whilst he was
taking the fuel. And there was
evidence that the appellant had
been issued with what was
variously described in the
proceedings as an invoice or a
coupon, to take 950 litres so he
felt it was legitimate in line
with what they had been doing
there to take all the allotted
consignment. There was
uncontroverted evidence that on
long distance journey especially
to Bolga they used to carry
extra fuel in jerry can. So
contrary to what the respondent
claimed, there were precedents
to confirm that it was not
against company policy to carry
fuel in jerry can. Even if the
appellant’s insistence on taking
the fuel in a jerry can sounds
unreasonable yet for purposes of
proving assault in crime under
section 13(1) of the Evidence
Decree, 1975 (Act 323) or even
in tort, such unreasonable
conduct or behaviour is not
sufficient to constitute proof,
as all the witnesses said that
he did not touch Maxwell
Nkansah, contradicting what the
latter had told the enquiry.
None of the witnesses who
testified at the enquiry
appeared to give testimony at
the High Court. The person who
testified for the respondent at
the trial court DW1 Peter Kutah
recounted what Maxwell Nkansah
had told the Appeals Committee
that the appellant hit him. This
was the only evidence of assault
adduced by the respondent in
proof of the plea of assault.
This was denied by the
appellant. And all the parties
agreed that three persons
testified at the enquiry as eye
witnesses to the incident. And
all three witnesses
categorically denied Maxwell
Nkansah’s claim that the
appellant hit him. That was why
the High Court upheld the
appellant’s claim in that there
was no evidence of assault. On
the contrary the Court of Appeal
found assault established as a
fact as stated above.
In summary the facts as adduced
before the Committee as well as
before the trial court showed
that it was Maxwell Nkansah who
rather rushed on the appellant
to retrieve the fuel pump from
his hands and the two of them
struggled over it. Appellant
believed he had a right to take
the ten litres upon the invoice
issued to him and he required it
for the long distance trip,
whilst Maxwell Nkansah felt
otherwise. Both of them decided
to stick to their position
thereby leading to the struggle
over the pump. Nkansah alleged
the appellant hit him but this
was found to be false. In these
circumstances the charge of
assault by either of them
against the other would not lie.
It must be pointed out at this
stage that we are mindful of the
law as pointed out earlier that
assault does not require
physical contact to prove. But,
where, as in this case, physical
contact is offered as proof of
assault then the proponent must
be forthcoming with the evidence
to establish the fact. Under
section 85 of Act 29, assault
includes battery. But the mere
fact that there was a struggle
over the fuel pump would not
suffice as proof of assault
against either of them, for
section 86(1) necessarily
requires physical contact to
prove the factum. In other
words, in order to prove assault
and battery what the court will
be looking for is whether the
accused did the act for which he
was charged. Here the court
would ask the question: did the
appellant hit Maxwell Nkansah?
And the answer would be negative
because the appellant as well as
all the three other eye
witnesses testified that the
appellant did not hit him. The
court would not be obliged to
consider which of the two
persons had a more legitimate
reason for the struggle over the
fuel pump in order to find one
of them liable for assault, as
the Court of Appeal purported to
do. The appellant’s conduct
could have been the subject of a
different disciplinary charge if
indeed his insistence on taking
fuel in a jerry can was contrary
to company policy and an offence
liable for sanctions under the
CBA. But certainly it does not
provide a motive for assault in
this case, nor does it prove
assault.
The trial court’s findings of
fact on the incident that took
place on 10th July
2007 are supportable. The Court
of Appeal ought not to have
substituted its own findings for
those of the High Court in the
light of the pleadings and
evidence on record. The first
ground of appeal is accordingly
upheld.
It follows from the finding
above that since the termination
was founded on the alleged
assault it was wrongful for lack
of evidence of assault. The
third ground is accordingly
upheld.
The second ground of appeal was
actually otiose as the Court of
Appeal did not equate proof in
this case with proof in the case
cited. The court only cited a
principle of law from it that
where facts are admitted on the
pleadings or in evidence there
is no need for further proof.
The court was only saying that
since there was admission in
evidence by the appellant at the
trial court and the other
witnesses before the inquiry
that there was a struggle
between the appellant and
Maxwell Nkansah over the fuel
pump there was no need for any
further proof of liability. That
is a correct statement of the
law. But it was the court’s
finding of liability based on
the fact of the struggle that we
disagree with. This ground of
appeal fails.
The appellant claimed damages at
the trial. The trial court made
certain awards to the appellant.
There was no appeal against the
award of damages and that
question was not raised or
argued before this court. That
being the position, we will
restore the awards made by the
High Court, which we do grant
accordingly. The trial court
found that as at the date it
gave its judgment in June 2009
the claim had been pending for
close to two years, meaning the
appellant had almost retired. In
paragraph 19 of the statement of
claim, as amended, the appellant
averred that ‘he was employed by
the defendant in or about 1971
and that he is 58 years old and
will retire at the age of 60
years.’ This averment was not
specifically denied by the
respondent. There was only a
general traverse which therefore
put the burden of persuasion on
the appellant, but did not
entitle the respondent to lead
rebuttal evidence. At the
hearing the appellant’s relevant
testimony was this: “I was 58
years old when I was wrongfully
terminated and I would have
retired in less than two years.”
This piece of evidence was
neither denied nor rebutted, so
it is found as a fact that the
appellant had just two years to
retire as at the date of his
termination. The High Court gave
its decision on 10th
June 2009, one year and ten
months to the day the appellant
was terminated. At this point it
is necessary to correct a
factual inaccuracy in the trial
court’s decision. The court
below said that “….plaintiff is
entitled to not only his
salary…..as at 18th
September 2007 when his
employment was terminated……”
From the record it is undisputed
that the appellant’s appointment
was terminated on 10th
August 2007, and not 18th
September 2007, as stated by the
High Court. See exhibit 3 at
pages 191-192 of the record.
Apparently the trial court was
misled by exhibit 5 at page 195
of the record which is a letter
conveying the decision of the
disciplinary appeals committee.
That letter dated 18th
September 2007 was not the
letter of termination, it merely
endorsed the termination, hence
the heading “RE: TERMINATION OF
APPOINTMENT”
In the case of Nartey-Tokoli
and Others v. Volta Aluminium
Co. Ltd. (No. 2) (1989-90) 2 GLR
341, SC the court held the
employees who were wrongfully
and illegally dismissed were
entitled to all the benefits
under their CBA and any other
statutory benefits. It was
because their termination
infringed existing legislation
that the court held it to be
illegal, null and void, thereby
entitling them to be treated as
de jure employees and therefore
entitled to all benefits
including even those founded on
what was described as a
gentleman’s agreement. The High
Court judge cited and relied on
this decision in granting the
benefits, although he gave a
wrong citation. In this case the
High Court judge also made
reference to the Labour Act,
2003 (Act 651) in finding the
respondent liable. The relevant
part of Act 651 is section 62(b)
which provides thus:
‘A termination of a worker’s
employment is fair if the
contract of employment is
terminated by the employer on
any of the following grounds:
………………….
(b) the proven misconduct of the
worker.’
The contract of employment is
the CBA. But since it has been
found that the respondent did
not have reason for terminating
the appointment, under both the
CBA and Act 651, the termination
was wrongful and illegal, and
for which reason the appellant
was entitled to all the benefits
under the CBA and by existing
legislation.
It is clear from the record that
the appellant would have gone on
normal retirement but for the
wrongful termination of his
appointment and that question
was not determined by the High
Court at the time it gave its
decision since the appellant had
then not proceeded on
retirement. But by the effluxion
of time, the appellant had
reached retirement age sometime
in 2009; therefore the appellant
is entitled to his retirement
benefits as well. There is no
need for this court to receive
any further evidence on this,
since there is undisputed
evidence about the appellant’s
age and the fact that he had
only two years remaining on his
contract to retire at age 60 and
the fact that he was entitled to
retirement under the CBA. The
court would thus only draw
inferences from the undisputed
evidence on record.
Under Article 22 of the CBA, the
appellant was entitled to
twenty-seven days’ annual leave
excluding Saturdays, Sundays and
public holidays. Within a period
of twenty-seven working days, we
have at least ten (10) Saturdays
and Sundays, thereby entitling
the appellant to not less than
thirty-seven days’ leave in a
year. Thus for the remaining two
years of his contract the
appellant was entitled to a
leave period of at least
seventy-four days. When that is
taken into account, it would
mean that as at the date of the
High Court’s judgment the
appellant had earned his
retirement. Be that as it may,
as a de jure employee the
appellant would have earned his
retirement as a matter of course
with time.
Therefore, for the avoidance of
any doubt, in addition to all
the benefits the trial court
awarded the appellant who has
reached retirement age, he is
entitled to all his retirement
benefits, not excluding the
benefit under article 45 of the
CBA, from the date he qualified
for retirement, and thereafter.
Any payments owing to the
appellant should be made less
any sums of money that the
respondent has already paid to
the appellant in the aftermath
of the termination.
For reasons explained above the
appeal is allowed.
A. A. BENIN
JUSTICE OF THE SUPREME COURT
G. T. WOOD (MRS)
CHIEF JUSTICE
S. O. A. ADINYIRA (MRS)
JUSTICE OF THE SUPREME COURT
V. J.
M. DOTSE
JUSTICE OF THE SUPREME COURT
P. BAFFOE BONNIE
JUSTICE OF THE SUPREME COURT
COUNSEL
FRANK G. DONKOR ESQ. FOR THE
PLAINTIFF/RESPONDENT /APPELLANT.
KOFI PEASAH- BOADU ESQ. FOR THE
DEFENDANT/APPELLANT RESPONDENT. |
