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JUDGMENT
BADDOO, JA:
This is an appeal by the
Appellant Company Aboso Gold
Fields Ltd, hereinafter called
the Defendant, against the
judgment of the Circuit Court
Tarkwa, presided over by his
Honour Isaac Lartey-Joung dated
the 15th of February 2001.
BRIEF FACTS
The brief facts of the case are
that the Respondent Kofi
Senkyire hereinafter called the
Plaintiff, was employed as a
Sampler in June 1990, by the
Aboso Gold Fields Ltd, a Mining
company. He was the foreman of
Sampling Department of 14 men.
On the 29th of March 1999, he
and his men went to work at
6.30pm and closed the next day
30/3/99 at 5.30am.
In the course of their work,
Kofi Senkyire collected some
rock bearing gold called PYRITES
or AKOKOSIKA, as sample and
placed it in the sample bag.
He instructed the driver to take
the other workers home and come
for him later. When the driver
returned for him, he still had
the sample bag containing the
gold bearing rock with him.
On reaching the AMS Security
Gate, he got down from the
vehicle and the security man
asked him of his mission at that
point. He explained that he was
looking for one Kenneth Nukute,
who incidentally was nowhere to
be found.
The security man inspected the
sample bag and when he found
that it contained gold bearing
rocks he informed Senkyire that
he was under arrest for
attempted stealing the sample.
The Plaintiff was subsequently
suspended by the Management, Two
weeks later he was invited
before a Committee of three 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 found
that he intended to steal the
gold bearing rock. The Committee
therefore recommended that his
employment be terminated and the
relevant entitlements paid to
him.
Accordingly the Plaintiff was
dismissed on 5-4-99.
On the 2nd of August 1999, the
Plaintiff filed a writ against
the Defendant Company for the
following reliefs:
a. General damages for wrongful
and unlawful dismissal.
b. Payment of Salaries and
entitlements form 5-4-99 to the
date of judgment.
On the 15th of February 2001 the
Circuit Court gave judgment for
the Plaintiff for wrongful and
unlawful dismissal.
The Defendant Company has
appealed against this judgment
to this Court.
GROUNDS OF APPEAL
Two grounds of appeal were filed
by the Defendant, hereby:
1. That the Honourable Circuit
Court erred in holding the
Defendant liable for wrongful
dismissal of the Plaintiff, as
no evidence was led by the
Plaintiff to support his
assertion.
2. That the judgment is against
the weight of the evidence
adduced at the trial.
MATTER FOR DETERMINATION
The judgment against the
Defendant was for wrongful and
unlawful dismissal. Therefore in
this Court the matter for
determination is whether or not
the Plaintiffs contract of
employment was terminated in
accordance with his conditions
of services.
REASONS FOR THE JUDGMENT
The learned trial judge in
giving judgment for the
Plaintiff said that the
Committee which dealt with the
matter concerning the Plaintiff
did not call the Security men at
the AMS gate to give evidence
about the contents of the sample
found with the Plaintiff and
that this failure constituted
and amounted to a denial of fair
hearing, especially when the
Plaintiff had challenged the
contents presented at the
hearing.
The trial Judge continued on
P.42 line 24 as follows:—
“Can one say that Plaintiff by
carrying the samples to the AMS
gate before going to submit them
to the Geologist within the
premises of AGL was prejudicial
to the interest of his
employers? I think if he had
left the premises of AG.
carrying the samples, then he
could have acted with malice
that could be prejudicial to his
employers interest”.
At P.44 paragraph 2 the learned
judge continued “In addition to
this flaw, the Committee rightly
found that the available
evidence was circumstantial and
did not establish without
reasonable doubt that the
Plaintiff had indeed stolen or
attempted to steal the alleged
gold concentrate. The Committee
however finally recommended the
termination of the Plaintiff
contrary to the findings made.
Since there was no gross
misconduct proved against the
Plaintiff, the dismissal was
wrongful and Article 12.6 of the
conditions of service was not
applicable to the Plaintiff.”
JUSTIFICATION FOR THE DISMISSAL
The trial judge seriously erred
when he held that the conduct of
the Plaintiff did not amount to
gross misconduct.
In Arkhurst v. Ghana Museum And
Monuments Board [1971] 2GLR 1 at
P.7, Abban J (as he then was)
said:
“If therefore the employee does
any act incompatible with due,
and faithful discharge of his
duty, to his employers, the
employers have every right to
dispense with his service.”
In Pearce V. Forster (1886) 17
Q.B.D C.A. Lopes L.J. said at
P.542,
“ If a servant conducts himself
in a way inconsistent with the
faithful discharge of his duty
in the service, it is a
misconduct which justifies
immediate dismissal. That
misconduct, according to my
view, need not be misconduct in
the carrying on of the service
or the business.
It is sufficient if it is
conduct which is prejudicial, or
is likely to be prejudicial to
the interests or to the
reputation of the master and
the master will be justified not
only if he discovers it at the
time, but also if he discovers
it afterwards, in dismissing
that servant”.
In this case, the Committee were
convinced that the intentions of
the Plaintiff in carrying the
samples on him were malicious.
On the authority of the decided
cases any conduct that is likely
to be prejudicial to the
interest of the employer is
misconduct.
To comprehend the logic behind
the reasoning of the Committee,
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 Galemsay 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 trust
worthiness of the employee is in
doubt as a result of this
suspicion, the employer would
find it unsafe to keep the
employer in his establishment.
The employer would be justified
to dispense with the services of
the employee. See Arkhurst Vrs.
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.
CONDITIONS OF SERVICE
The next issue is, was the
termination contrary to the
conditions of service of the
Plaintiff? Section 12.1. of the
conditions of service provides
as follows:
“ AGL shall in case of gross
misconduct reserve the right to
summarily dismiss the employee
after he has had the opportunity
to reply to the complaints
against him”
Section 12.7 Provides for FAIR
Hearing
“An employee guilty of gross
misconduct may be suspended
pending investigations. AGL will
give an employee whose
employment is liable to be
terminated full opportunity to
defend himself against all
charges against him.”
In accordance with these
provisions the Plaintiff
appeared before the Committee to
explain his conduct.
The principal facts established
against the Plaintiff were that
he was found with gold bearing
rocks at the AMS gate where he
was not supposed to be at that
time with the samples.
I must emphasise that though it
would have been desirable to
have confronted the Plaintiff
with the Security man who
arrested him, so as to clarify
the contents of the sample bag
seized from the Plaintiff,
whether or not the gold
concentrate was heavy or light,
failure to do so, does not
detract from the principal facts
which were established, that the
Plaintiff was found with gold
bearing rocks at the security
gate.
The Committee after hearing the
Plaintiff, was not satisfied
with his explanation and was
convinced that his intentions
were malicious.
It is my considered opinion that
the dismissal was not contrary
to the conditions of service of
the Plaintiff.
I shall therefore allow the
appeal and set aside the
judgment of the Circuit Court
Tarkwa dated 19th February 2001.
S. G. BADDOO
JUSTICE OF APPEAL
GBADEGBE, JA:
The question which to my mind
arises in these proceedings for
our decision is whether or not
the summary dismissal of the
respondent who initiated the
action in the court below was
rightful? In my view a decision
on this point would
substantially dispose of the
instant controversy and as such
I shall in my delivery for now
concern myself with the
determination of this simple
issue which turns on a question
of mixed law and fact. In the
judgment with which we are
concerned in this appeal the
learned trial judge of the
Circuit Court decided this
question in favour of the
respondent and consequently
proceeded to award by way of
damages what he considered was
the entitlement of the
respondent following what he
held to be a wrongful dismissal.
In their complaint to us the
appellant seeks to have the said
decision reversed on the ground
that the termination of the
contract of employment was good
having regard to the
circumstances preceding the
exercise of the power of summary
dismissal by it. There is no
doubt that an employer might in
appropriate circumstances bring
the relationship of a master and
servant to an end by terminating
the appointment but this power
must be exercised in accordance
with the conditions governing
the same else the employer would
be in breach of contract and
liable to an action for wrongful
dismissal as the relationship is
essentially contractual. Writing
on the subject of wrongful
dismissal, the learned authors
in Halsbury’s Laws of England,
Volume 16, 4th edition state in
paragraph 649 at 439 as follows:
“An employer commits a breach of
contract if he wrongfully
dismisses an employee before the
expiration of the term for which
he is employed. The fact that
the dismissal of the employee is
otherwise than in accordance
with the procedure laid down in
his contract of service does
not, however, in a case where
the rights of the parties are
regulated by contract and are
unaffected by statute, normally
prevent the dismissal from being
effective to terminate the
contract; in such a case the
employee cannot claim that the
contract has not been validly
terminated, and his remedy is in
damages
To entitle the employee to sue
for damages, two conditions must
be fulfilled, namely:
(1) unless the contract of
service is to be construed as a
contract for life employment, or
as excluding any general power
of dismissal on notice, the
employee must have been engaged
for a period fixed or
determinable on notice, and
dismissed before the expiration
of the period if fixed, or
without requisite notice, as the
case may be; and (2) his
dismissal must have been
wrongful, that is to say without
just cause or excuse on the part
of the employer.”
Since in the case before us the
respondent was dismissed without
the requisite notice the
employer is obliged to justify
the dismissal, that is to say to
show that on the facts it was
entitled to summarily dismiss
him.
It being so, I now pass to a
consideration of the situations
which might justify an employer
to bring the relationship of
master and servant to an end.
Writing on this subject, the
learned authors In Halsbury’s
Laws of England, 4th Edition
volume 16 paragraphs 640 at 434
provide as follows: “An
employer has a common law right
to dismiss his employee without
notice on the grounds of the
employee’s serious misconduct.”
The said writers go further to
say in paragraph 642 that
“Misconduct inconsistent with an
employee’s proper discharge 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. He may be dismissed
if he is guilty of fraud or
dishonesty in connection with
his employer’s business, but it
is not necessary that moral
delinquency should be an element
of the misconduct, or that the
misconduct should take place
during working hours.” To the
above it may be said that where
the employee conducts himself in
a manner prejudicial to his
employer’s business such that it
is incompatible with the
faithful discharge of his duty
to his employer, he may be
dismissed. See the case of
Arkhurst v Ghana Museum and
Monuments Board (1971) 2 GLR 1
per Abban J. (as he then
was).Generally where an employee
proves that the termination of
his employment contract was
without just cause or excuse
then there is an instance of
wrongful dismissal, the sort of
termination which would justify
an award in damages which was
the head of claim on which the
respondent relied in his action
in the court below. Thus, in my
view one has to review the
evidence at our disposal to see
if indeed there was any excuse
or justification in the
appellant to have exercised it
such as to have brought the
contract of employment to an
end.
I have examined the evidence and
attended to the submissions on
behalf of the parties and I am
of the view that the conduct of
the respondent in not sending
the sample to the geologist
before alighting to collect
money from a friend was one
which undermined the nature of
his duties to his employers and
looked at in relation to what is
reasonably expected of him
amounted to gross misconduct in
terms of section 12.1 of the
Collective Agreement which has
the effect of a serious offence
within the contemplation of
section 12.5. I think that what
is important here is to consider
whether having regard to the
nature of the employers business
which is essentially digging for
minerals which are placed in the
hands of its employees to be
sent for analysis it is a proper
discharge of the said functions
when the employee without first
sending the mineral sample for
analysis stops on the way to
collect as he claimed his money
from a friend. One needs to bear
in mind that the nature of the
appellant’s business is such
that those who are engaged to
work for it must conduct
themselves with the utmost
honesty and in the particular
facts of this case what would
have happened if the respondent
were not to have been
intercepted by the security? I
do not think that it was
unreasonable for the employer to
have expected the respondent to
have submitted the sample before
seeking to pursue his friend for
his money. Again it does not
seem to me that it would have
imposed any very significant
burden on the respondent to have
been required to submit the
samples before attending to his
own business of collecting money
from a friend. On my own having
regard to the facts I think that
the ordinary worker when
confronted with the situation in
which the respondent found
himself independently of the
case would have first submitted
the sample. Accordingly if the
matter should be decided on what
is proper conduct then the
respondent had done that which
was contrary to the ordinary
worker’s perception of good
conduct which means that on the
common sense view of the matter
he was clearly in the wrong, a
wrong which was likely to be
hurtful or prejudicial to his
employer’s interests and of a
serious nature such as to be
classified as gross misconduct.
In my thinking the explanation
offered by the respondent when
he was arrested with the gold
bearing sample was just a lame
excuse for he knew that normally
he should not have used the
route at which the sample was
found on him leading to his
arrest. I have no doubt that to
enable employees of the
appellant to behave in the
manner which has unfolded from
the evidence regarding the
respondent would be seriously
prejudicial to the conduct of
its business and accordingly an
employee who so conducts himself
is guilty of gross misconduct
and he was afforded the
opportunity to answer the
complaint made against him as
provided for in section 12.7 of
the Collective Agreement between
the parties, the employer may
determine the contract of
employment.. The admitted
evidence reveals that the
respondent was offered this
opportunity before his
suspension and subsequent
dismissal. In fact, after the
preliminary opportunity which he
had to make a statement, he
appeared before a Disciplinary
Committee at which he had the
opportunity to orally explain
himself. This being the case, I
think that the decision of the
court below that the dismissal
was wrongful is not a reasonable
conclusion based on the effect
of the admitted evidence. I
think that the learned trial
judge placed a wrong inference
on the facts which were at his
disposal the correct inference
being that the respondent had
done that which entitled his
employers to summarily dismiss
him. In this regard, I wish in
particular to say that the
learned trial judge‘s statement
that there was the need to have
called the security men who
effected the arrest in view of
the challenge of the respondent
to the authenticity of the
sample is a misappreciation of
the nature of the challenge. I
am of the thinking that if the
assertion of the respondent had
been that whatever was found on
him when he was arrested was not
a sample which he should have
sent to the geologist then the
need to have this proved would
have arisen. But, as it were he
had of admitted that it was a
gold bearing sample which came
into his possession in the
normal course of his employment
and therefore his challenge like
his excuse was a feeble one
which was put up by him in an
attempt to be wiser after the
event. Again the learned trial
judge’s view that the proof of
the respondent’s misconduct
should have been beyond
reasonable doubt is not
warranted by law and in any case
what other reasonable inference
can one place on the
respondent’s conduct other than
that of wanting to pass on the
sample to his friend as indeed
was the finding of the
disciplinary committee? The
circumstances of the case in my
opinion pointed only to that
conclusion. This being the
position clearly the respondent
had conducted himself such as to
bring himself within the
definition of gross misconduct
as provided for in section 1(g)
of the collective agreement as
follows: “includes but is not
limited to fighting, acts of
violence, gross insubordination,
theft, breaches of safety rules,
forgery and other acts of
dishonesty.” I think that the
learned trial judge
misappreciated the evidence
which was led by the parties on
the circumstances which provoked
the termination of the
respondent’s service with the
appellant. I also wish to note
that the learned trial judge
fell into error when he said
that the inquiry should have
taken the form of a committee of
inquiry. I find no justification
from the collective agreement
and or in principle for such an
insistence and I have no doubt
that the said view which the
learned trial judge took of the
requirement of affording the
respondent a hearing must have
led him into the error which has
called in question his judgment
in these proceedings.
Accordingly I proceed to have
the same set aside and in place
thereof declare that the summary
dismissal which led to the
action in the court below was
good. It being so the having
been able to prove that his
termination was in accordance
with the contract of employment,
the award which was made in
favour of the respondent is
consequently set aside. The
result is that the instant
appeal succeeds and the judgment
of the trial Circuit Court the
subject matter of these
proceedings is set aside and in
place thereof I substitute a
judgment dismissing the
respondents claim as indorsed on
the writ of summons initiating
the action in the court below.
N. S. GBADEGBE
JUSTICE OF APPEAL
ANSAH, JA:
I agree
J. ANSAH
JUSTICE OF APPEAL
COUNSEL
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