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J U D G M E N T
ANINAKWA, J.S.C.:
This is an appeal from the
unanimous judgment of the Court
of Appeal dated the 25th
July 2002 reversing the decision
of the Circuit Court, Tarkwa.
The Appellant (hereinafter
referred to as the Plaintiff.)
was in the employment of the
Respondents (hereinafter
referred to as the Defendants),
on the terms contained in the
letter of appointment dated the
26th September,
1996.which is in evidence as
Exhibit 1. There is also in
evidence as Exhibit 3 the
Defendants’ full Conditions of
Service titled, “ABOSSO
GOLDFIELDS LTD CONDITIONS OF
SERVICE”
These two Exhibits spell out in
full details the Terms and
Conditions of the Plaintiff’s
employment, which took effect
from the 1st
October.1996.
The plaintiff was appointed to
join the Defendants` Staff as
core Cutter/Sampler based at the
Damang Gold mines. The Plaintiff
rose to become the foreman of
the Sampling Department of 14
men.
On 29th March, 1999
the plaintiff went to work with
his group of 14men at 6:30pm and
closed at 5:30am the next
morning, i.e. on the 30th
March 1999. On this fateful day
the plaintiff, contrary to the
normal practice at this
department on closing days,
despatched the workers under him
to go by the bus and directed
the driver to come later to pick
him. As had been arranged the
bus came to pick him alone to
the security gate.
When the bus reached the
Security gate and he got down,
the security man on duty at the
gate confronted him of his
mission. He informed the
security man that he was looking
for a friend, one Kenneth
Nukute. Not satisfied with the
plaintiff’s said reply, the
security man inspected a sample
bag which Plaintiff was
carrying. The security man found
that the bag contained gold
bearing rocks and immediately
informed Plaintiff that he was
under arrest for attempting to
steal the sample. Plaintiff was
made to write a statement. The
Defendants, invoking the
disciplinary rules in the Terms
and Conditions of Plaintiff `s
employment, imposed on him an
instant suspension.
Two weeks later he was invited
to appear before a three man
Committee to explain his conduct
in carrying the sample bag
containing Gold bearing rocks to
the Security gate.
The Committee was not satisfied
with his explanation, and
recommended that his appointment
be terminated and the relevant
entitlements paid to him.
Accordingly the Defendants’
dismissal letter dated the 14th
of April 1999, and in evidence
as Exhibit 2, brought the
plaintiff’s employment to an end
by dismissal. The Plaintiff
fired by his summary dismissal,
on the 2nd August
1999, launched this action at
the Circuit Court Tarkwa,
Western Region, claiming against
the Defendants the following
reliefs: -
“(a) General
damages for wrongful and
unlawful dismissal.
(b) Payment of
salaries and entitlements of the
Plaintiff, from 15th
April 1999 plus interest thereon
at the prevailing Bank rate till
date of judgment”.
On 19th February
2001, the Circuit court sitting
at Tarkwa Western Region gave
judgment in favour of the
Plaintiff for all the reliefs
claimed by him, and awarded him
costs of 300,000 cedis against
the Defendants.
Dissatisfied with the judgment
of the Circuit Court Tarkwa, the
defendants on 2nd March, 2001,
appealed to the Court of Appeal
on various grounds, the main one
being that the Honourable
Circuit Court erred in holding
the defendants liable for
wrongful dismissal of the
plaintiff, as no evidence was
led by the plaintiff to support
this assertion.
The judgment of the Circuit
Court Tarkwa could not find
favour with the learned Judges
of the Court of Appeal, and by
their unanimous decision of the
25th July
2002,allowed the Defendants’
appeal and set aside the
judgment of the Circuit
Court-Tarkwa dated 19th
February, 2001.
The plaintiff has now, pursuant
to leave granted him by the
Court of Appeal, appealed to
this court on three main grounds
thus -;
“(a) The
judgment is against the weight
of evidence adduced at the
trial.
(b) That the Court of
Appeal failed to appreciate the
high standard of proof
required in the circumstances
before the Appellant would be
dismissed by his employers.
c) That the Court of
Appeal failed to advert it’s
mind that even the Committee of
Inquiry set up by the
Defendant/Appellants/Respondents
recommended that the
Plaintiff/Respondent/Appellant’s
entitlements be paid to him.”
The Plaintiff’s case is that the
Defendants accused him of
attempting to steal gold bearing
rocks. This according to him is
a very serious offence which
required high standard of proof.
And as expressed by counsel for
plaintiff in his statement of
case to this Court “ this is
because the higher the offence
the greater the proof required.
In this case the circumstancial
(sic) evidence as the trial
judge found was not sufficient
to render the appellant
culpable”.
Defendants on the other hand
think differently and contend
that the termination of
Plaintiffs employment was lawful
and in accordance with all
relevant procedures and that
Plaintiff is not entitled to the
reliefs sought or at all.
It is observed that the main
issue stringing through the case
is, whether or not plaintiff’s
contract of employment was
terminated in accordance with
his conditions of service.
In embarking upon an examination
of the said issue, it is well to
bear in mind that in a claim for
wrongful dismissal the plaintiff
must prove the terms of his
employment and then prove that
his dismissal is in breach of
those terms.
The terms under which Defendants
employed Plaintiff cover
provisions for termination of
employment as well as
dismissals.
Even though either of the two
methods when adopted brings an
end to the employee’s employment
they carry their different
procedures and effects.
In the letter appointing the
plaintiff, i.e. Exhibit 1
dealing with the summary of the
terms and conditions is a
paragraph on termination thus: -
“ Employment with the Company
may be terminated by either
party on the given of one (1)
month’s notice in writing or by
the company with payment in
lieu.”
And under the full Conditions of
Service Exhibit 3, is a
provision in section 12 thereof
for “DISCIPLINE”
These two methods of bringing an
end to the contract of
employment give the employer the
option to put an end to the
employee’s contract. The right
to choose either one of them may
lie with the employer, but he is
not compelled to exercise it. An
employer may choose to put an
end to the contract by using the
method that may have much less
severe adverse consequences on
the employee and at the same
time relieve the employer of the
necessity to establish anything.
The employer may even choose to
overlook the employee’s offence,
misconduct or otherwise.
However, when the disciplinary
procedure is resorted to, then
the employer must, when
challenged, establish that good
grounds existed for his action.
The employer in our instant case
having accused the Plaintiff of
attempting to steal chose to use
the Disciplinary procedure under
section 12 of the Condition of
Service. Defendants, therefore,
assume the obligation of proving
that the provisions under
section 12 have been complied
with.
Section 12 (1) states… “AGL
shall in cases of gross
misconduct reserve the right to
summarily dismiss the employee
after he has had the opportunity
to reply to the complaints made
against him.
12.7
An employee guilty of gross
misconduct, may be suspended
pending investigation
AGL will give an
employee whose employment is
liable to be terminated a full
opportunity to defend himself
against all charges against him.
12.6
Employees terminated for gross
misconduct will receive no
notice
or pay in lieu of notice.”
The Defendants maintain that the
employment of the plaintiff was
properly terminated under
paragraphs 12(1), 12(6), and
12(7), of Exhibit 3.
Arriving at it’s decision, the
Circuit Court –Tarkwa made the
following pertinent finding
thus:-
“In the instant suit I find from
Exhibit 4 that a meeting was
held by the Committee of inquiry
at which the Plaintiff narrated
his role in the incident and
answered various questions on
his particular location when the
Security personnel accosted him
and the reasons for carrying the
Samples materials on him.
Apparently there was no witness
called by either the plaintiff
or the Committee to substantiate
the allegation.
Since the plaintiff challenged
the authenticity of the Sample
shown to him by P.W.I, then the
Committee should have called the
Security men to give evidence to
prove that Sample material.”
By this finding, the Circuit
Court Tarkwa is deemed to have
admitted that the Defendants
before putting an end to
Plaintiff’s contract of
employment complied with the
obligations imposed on them
under section 12 of the
Conditions of Service.
The three men committee sat to
go into the matter and to give
the plaintiff a fair chance to
explain himself. They did not
sit in pannel as a criminal
Court whose decision was to be
beyond reasonable doubt, or to
get a conviction.
At their sitting this is what
the committee said, “The
evidence available was found to
be largely circumstantial and
did not clearly establish
without reasonable doubt, that
Kofi had indeed stolen or
attempted to steal the alleged
gold concentrate. The onus
was therefore to explore and
possibly establish on the basis
of the circumstantial
evidence available, the motive
for carrying the sample up to
where he was accosted”.
The following were the views of
the three men committee.
“That as the foreman of the crew
it was appropriate that Kofi
will send any grade
control sample, which he
considered peculiar to the
Supervisor for further
investigations as he claimed
was his intention.
That he informed his colleague
Kwakye Mensah about his
intentions to carry the stuff
to his supervisor and recorded
it accordingly in his notebook
was appropriate.”
Having commended him so
positively, the Committee in
the most virulent manner
condemned and virtually
convicted him. And in the end
the committee made the
following recommendations: -
“The Committee believes that it
has exercised due diligence in
regard to the disciplinary
procedures of the Company
pertaining to dismissal of an
employee. Kofi Senkyire has been
given ample opportunity, both
orally and in written form to
defend him against the charge of
attempting to steal gold
concentrate. The Committee was
however not convinced that he
defended himself satisfactorily.
The Complexity of the case and
the absence of overwhelming
evidence of
Stealing leave the Committee’s
our ability not to apply maximum
Disciplinary action almost
impossible (?). However, the
Committee remains
convinced that the intentions of
the suspect in carrying the
samples on him
were malicious. This being the
case the Committee recommends
that the
Company employ its right to
terminate his employment by
paying the
relevant entitlements to the
employee.”
The Circuit Court’s finding that
the Committee rightly found that
the
available evidence was
circumstantial and did not
clearly establish
without reasonable doubt that
the plaintiff had indeed stolen
or attempted
to steal the alleged gold
concentrate is a far cry from
the Committee’s
views and recommendations.
The Committee by its views and
recommendations is telling the
Defendants that the Plaintiff
cannot be trusted.
Halsbury’s tells us in the 3rd
Edition at pages 485/6 that at
Common Law,
“misconduct, inconsistent with
the due and faithful discharge
by the
servant of the duties for which
he was engaged, is good cause
for his
dismissal, but there is no fixed
rule of law defining the degree
of
misconduct which will justify
dismissal”. Clouster & Co Ltd
vrs Corry
[1906] AC. 122 PC at p129 per
Lord James of HEREFORD.
If he is guilty of fraud or
dishonesty in connexion with the
business of his
employer he may be dismissed.
Brown v Craft (1828), 6 C& P at
16.
Arkhurst v. Ghana Museum and
Monuments Board (1971) 2 GLR at
p7.
The overwhelming evidence is
that
(a) Plaintiff
was found with gold bearing
rocks and he does not deny it.
(b) That he was found at a
place
that he should not have had the
gold bearing rocks on him.
(c)
That he never bothered to give
any reason or attempted to give
one
why he had the gold on him at
that time.
(d) That the person he
went to look for had nothing to
do with the
handling of gold.
(e) The fact that he
alleges that the gold bearing
rocks shown to the
Security is richer than what the
Security took from him is
neither here
nor there and this does not help
his case.
It is admitted by both sides
that the first duty of a Sampler
is to hand over
any gold found to the Sampling
supervisor immediately after
closing.
The Court of Appeal per BADDOO
JA (as he then was) states:
“To comprehend the logic behind
the reasoning, it must be
recognized that the Defendant
Company is engaged in the
production of
gold.
In the gold mining industry it
is common knowledge that the raw
materials are the gold bearing
rocks from which the gold is
extracted.
Every “Galamsay” operator in the
Country knows this. It stands
to
reason, therefore, to conclude
that gold bearing rocks on the
premises of
the Defendant/Company, must be
valuable and precious
commodities which the company
would do its utter-most to
protect.
Any handling of the gold bearing
rocks or concentrate sample in
any
unusual manner as occurred in
this case, is bound to create
suspicion.
And where the trustworthiness of
the employee is in doubt as a
result of
this suspicion the employer
would find it unsafe to keep the
employer
(sic) in his establishment. The
employer would be justified to
dispense
with the services of the
employee.
See Arkhurst vs. Ghana
Museums and Monuments Board
supra.
The conduct of the Plaintiff
created a doubt about his
trustworthiness and
his employers found it unsafe to
keep him in the company. The law
permits it.”
This Court is in total agreement
with the said statement of the
Learned
Justices of the Court of Appeal
and endorses same.
The opinion of this Court,
therefore is that the
Defendant/Company took
the right procedure and complied
with the Conditions of Service
Exhibit 3, as admitted by the
Plaintiff.
He was even offered his
entitlements, which he himself
refused to collect.
It is the considered opinion, of
this Court, that the Plaintiff’s
dismissal
was not wrongful and this Appeal
is hereby dismissed.
The judgment of the Court of
Appeal is affirmed.
R.T. ANINAKWA
JUSTICE OF THE SUPREME COURT
G. K. ACQUAH
CHIEF JUSTICE
G. T. WOOD
JUSTICE OF THE SUPREME COURT
DR. S. TWUM
JUSTICE OF THE SUPREME COURT
PROF. T. M. OCRAN
JUSTICE OF THE SUPREME COURT
COUNSEL:
Mr. Fred Awuah with Mr. Ntwo
Fianko for Appellant.
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