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Labour -
Employment –
Termination -
Summarily
dismissed - Disciplinary
committee - Fraud and dishonesty
- Wrongful and disproportionate
dismissal - Articles 192 and 296
of the 1992 Constitution -
Payment of all outstanding
salaries and emoluments –
Whether or not there was any
legal basis for the disciplinary
action taken against the
appellants - Whether or not the
dismissals had been orchestrated
by the combined team of the
Ministry and respondent
Authority fact finding teams
thereby making their dismissal
unfair.
HEADNOTES
In
1997, Parliament passed the
Ghana
Highway Authority Act, 1997 (Act
540) establishing the
Authority as one of the agencies
under the Ministry of
Transportation. Among others,
the objectives of the Authority
are to plan,
develop, maintain, protect,
administer and provide safe and
adequate infrastructure for road
transportation commensurate with
the economic development of the
country
Sometime in 2005, the Ministry
of Transportation had
information concerning specific
roads in the Western Region
where it appeared that the road
contractors were paid contract
sums for no work done,
therefore, set up a committee
and Monitoring Task Force which
investigated the matter and made
its findings and
recommendations. And inspected
roads revealed that the required
activities were not executed
satisfactorily, but had been
certified for payment, the
respondent Authority set up an
investigation committee to look
into what it termed “payment
irregularities.” This was
followed by a disciplinary
committee under the Senior Staff
Conditions of Service in which
charges of fraud and dishonesty
were preferred against the
appellants. The disciplinary
committee found the appellants
guilty of dishonesty but
acquitted them of fraud and
recommended as punishment a
demotion in rank and possible
removal with benefits. The
respondent Authority accepted
the report of the disciplinary
committee but rejected its
recommendation for punishment.
It
summarily dismissed the
appellants The appellants,
aggrieved at the summary
dismissal mounted a suit at the
High Court, Accra against the
Authority for
wrongful
and disproportionate dismissal
contrary to Articles 192 and 296
of the 1992 Constitution the
High Court, Accra delivered
judgment in favour of the
appellants and granted all the
three reliefs sought by them,
following an appeal lodged by
the respondent Authority against
the High Court judgment, the
Court of Appeal unanimously
reversed the High Court judgment
HELD
Accordingly,
the evidence on record having
confirmed without doubt that the
appellants were involved in acts
of dishonesty resulting in their
dismissals, we find no basis for
the concession granted by the
Court of Appeal reducing
appellants summary dismissals to
removals with full benefits. We,
therefore reverse the decision
of the Court of Appeal to abate
the dismissals to removals with
full benefits and restore the
summary dismissals imposed on
the appellants by the respondent
under article 49(D) of the
Senior Staff Conditions of
Service.
In conclusion, we
find no merit in the appeal
lodged at this court against the
decision of the Court of Appeal
dated 7th November
2013. We, accordingly, dismiss
the appellants appeal. We vary
the Court of Appeal’s order
abating the dismissals to
removals with full benefits and
order that the terminal
benefits, if paid to the
appellants should be retrieved
from the appellants and returned
to respondent Authority’s chest.
STATUTES
REFERRED TO IN JUDGMENT
1992
Constitution
Ghana Highway
Authority Act, 1997 (Act 540)
CASES
REFERRED TO IN JUDGMENT
Lever Brothers Ghana Ltd v Annan;
Lever Brothers Ghana Ltd v
Dankwa (Consolidated) [1989-90]
2 GLR 114.
Republic v. State Hotels
Corporation; Ex parte Yeboah [1980]
GLR 875.
Yaokumah v
The Republic [1976] 2 GLR 147
Chatlani v Haroutunian [1974] 2
GLR 263
BOOKS
REFERRED TO IN JUDGMENT
Halsbury’s
Laws of England (4th
ed), Vol. 11(1) at p. 34, para.
27:
DELIVERING
THE LEADING JUDGMENT
AMEGATCHER,
JSC
COUNSEL
KINGSLEY
YEBOAH FOR THE
PLAINTIFFS/RESPONDENTS/APPELLANTS.
KWABENA
ANKAMAH OFEI BADU FOR THE
DEFENDANT/ APPELLANT/
RESPONDENT.
THE UNANIMOUS
JUDGMENT OF THE COURT IS READ BY
AMEGATCHER JSC, AS FOLLOWS:-
The Directive
Principles of State Policy in
the 1992 Constitution embraces
the life of the nation. It is
the policy document by which the
state is to create social and
economic conditions for the
citizens to lead a good life.
Article 35 for example mandates
the State to provide adequate
facilities for and encourage,
free mobility of people, goods
and services throughout Ghana.
Good road networks linking the
country together is one of the
ideals the State intended
achieving under the Directive
Principles.
In 1997,
Parliament passed the Ghana
Highway Authority Act, 1997 (Act
540) establishing the Authority
as one of the agencies under the
Ministry of Transportation.
Among others, the objectives of
the Authority are to plan,
develop, maintain, protect,
administer and provide safe and
adequate infrastructure for road
transportation commensurate with
the economic development of the
country. The Authority is also
charged to carry out, either
through its employees or through
independent contractors, the
necessary routine periodic and
emergency road maintenance
activities in accordance with
the service level of maintenance
established for each class or
type of trunk road.
For the purposes of effective
implementation of its functions,
the Authority, opened up
departments and divisions manned
by directors and such other
officers and employees as may be
necessary for the proper and
effective performance of its
mandate in all the regions of
the country. It is to one of
such departments that the 1st
and 2nd appellants
were employed as Maintenance
Engineer and Quantities Manager
respectively in charge of the
Western Region.
Sometime in
2005, the Ministry of
Transportation had information
concerning specific roads in the
Western Region where it appeared
that the road contractors were
paid contract sums for no work
done.
The Ministry was worried because
in spite of billions of Cedis
spent by Government each year in
periodic and routine maintenance
works to improve the road
network conditions, the outcome
did not seem to be commensurate
with the huge maintenance
expenditure being made, and this
kept rising year after year.
The Ministry,
therefore, set up a committee
and Monitoring Task Force which
investigated the matter and made
its findings and
recommendations. The
findings revealed that a total
amount of Two Billion, Three
Hundred and Seventy-Six Million,
One Hundred and Thirty-Eight
Thousand, Seven Hundred and
Ninety-Six Cedis has been
certified for payments for works
that have not been executed.
Affected roads included the
Sefwi Bekwai By-Pass Road,
Tarkwa Town Roads and access
road across the bridge to Bekado
Community Projects. Other
inspected
roads revealed that the required
activities were not executed
satisfactorily, but had been
certified for payment.
The Ministry
forwarded the report to the
respondent Authority for
implementation. On receipt of
the report,
the
respondent Authority set up an
investigation committee to look
into what it termed “payment
irregularities.” This was
followed by a disciplinary
committee under the Senior Staff
Conditions of Service in which
charges of fraud and dishonesty
were preferred against the
appellants. The disciplinary
committee found the appellants
guilty of dishonesty but
acquitted them of fraud.
The
disciplinary committee
recommended as punishment a
demotion in rank and possible
removal with benefits.
The
respondent Authority accepted
the report of the disciplinary
committee but rejected its
recommendation for punishment.
It summarily dismissed the
appellants
on 22nd
February 2006 under section
49(D) of the Senior Staff
Conditions of Service. My Lords,
the facts above thus form the
genesis of this legal battle
which started in January 2007
and is currently in its twelfth
year on appeal to this court.
The
appellants, aggrieved at the
summary dismissal,
exercised their right under the
Constitution to challenge the
lawfulness of same.
They
mounted a suit at the High
Court, Accra against the
Authority for wrongful and
disproportionate dismissal
contrary to Articles 192 and 296
of the 1992 Constitution, an
order for reinstatement and
payment
of all outstanding salaries and
emoluments. The dream,
however, of the appellants to
reverse their dismissal became a
reality when
the High
Court, Accra on 18th
December 2009 delivered judgment
in favour of the appellants and
granted all the three reliefs
sought by them.
Unfortunately for the
appellants, this relief was
short lived because on 7th
November 2013,
following
an appeal lodged by the
respondent Authority against the
High Court judgment, the Court
of Appeal unanimously reversed
the High Court judgment.
The Court of
Appeal judgment stated that, “with
all respect to the learned trial
judge, there was everything
factually and legally wrong with
every one of his evaluated
positions.” The Court of
Appeal cited evidence to
establish deception, material
lies, and untruthfulness on the
part of the appellants. However,
the Court of Appeal also noted
that the plaintiffs had served
many years in the public service
and that the respondent
Authority had been inconsistent
with regard to punishing the
three persons identified in the
particular acts under review and
so the Court of Appeal reviewed
the scope of punishment of the
respondents and abated the
sanction to removal with full
terminal benefits to the point
where their employment was
terminated.
The
appellants disagreed with the
evaluation of the evidence and
application of the law by the
Court of appeal. They filed a
notice of appeal on 29th
January 2014 to the Supreme
Court containing ten grounds of
appeal. My Lords, it is this
appeal which the apex court is
called upon to determine. The
appellants filed ten grounds of
appeal. In our opinion, the
central issue in this appeal is
whether
there was any legal basis for
the disciplinary action taken
against the appellants. We
believe a decision on this will
dispose of the whole appeal.
Counsel for
the appellants has submitted in
this appeal that
the
dismissals had been orchestrated
by the combined team of the
Ministry and respondent
Authority fact finding teams
thereby making their dismissal
unfair. According to
counsel, the respondent did not
suffer any loss over the issuing
of the Interim Payment
Certificates (IPCs), no
destruction was wrecked on the
national purse and road users
for the Court of Appeal to take
judicial notice and therefore
that claim of losses from
overpayments was much ado about
nothing. Counsel also submitted
that the appellants were made
‘sacrificial lambs’ and
victimised and the punishment
meted out to them
disproportionate because of
their weak standings and not
that they had done anything
wrong. Further, counsel
submitted that the preparation
of the IPCs by the appellants
was based on superior orders as
it was the existing practice in
the Western Region which was not
unlawful. Finally, the
appellants invited this court as
a court of equity to withhold
the Court of Appeal’s decision
which had been tainted with
perceptions of arbitrariness and
discrimination.
We have reviewed the record
embodying the fact-finding
investigation reports and the
response by the appellants in
the evidence adduced in this
matter. We have also analysed
the judgments of the High Court
which granted the prayer of the
appellants and the Court of
Appeal which reversed the High
Court’s judgment. Although the
Constitution of the country
grants litigants an unfettered
right to appeal against the
decisions of the Court of Appeal
to the apex court, it is the
role of every litigant to
carefully search his conscience,
examine his case very well and
be sure about the law supporting
his case before exercising that
right of appeal to the Supreme
Court. It seems to us that some
parties gamble with this right
of appeal. Others use the appeal
process as a face-saving measure
in the hope that the justice
delivery system will endorse
their unacceptable conduct. We
see the appeal before us as one
example of a gamble. What
motivated the appellants to
lodge this appeal to this court
beats our imagination. We cannot
however, totally blame the
appellants. It is sad to say
that irrespective of the
evidence on record, the trial
judge could rule in favour of
the appellants declaring their
dismissal unlawful and ordering
reinstatement to their positions
in the respondent Authority.
Apart from finding that
there was
everything factually and legally
wrong with every one of the
trial judges evaluated
positions,
this is how the Court of Appeal
described the learned High Court
judge at page 179 of the record:
“It would seem that the
honourable trial judge allowed
himself to be drawn into the
charred conscience of the
respondents and other officers
of the GHA, in seeking to
justify falsehood, deceit and
the dishonest behavior they
indulged in when he held that to
the extent that the committee
was satisfied that it had not
been established that the
respondents indulged in the
dishonest acts for gain, they
ought not to have been found to
perpetrators of dishonesty.
However, as is well known, the
acts of corruption in the public
services are notorious for being
as invidious as they are
insidious.”
The description is apt and we do
not think that any further
comments or adjectives are
needed to describe the way the
trial High Court judge handled
this case.
After reviewing the record, this
is what the Court of Appeal
found about the character of the
appellants who are fighting
their innocence in this appeal.
Torkonoo JA who delivered the
lead judgment described the
appellants at page 167 as
follows:
“One does not need to go far
in a cursory reading of the ROA
to appreciate the fact, weight
and import of the dishonesty
perpetuated by the respondents
on their employers, the wider
community of persons involved in
the contracts they were
obligated to supervise, and the
destruction wreaked on the
national purse and lives of road
users by the acts of dishonesty
that led to their dismissal.”
She then concluded at page 175
that:
“Through these lines of
validation, the nation released
millions of Ghana Cedis to the
contractors for what was in
effect, a mirage and figment of
imagination. In our humble
opinion, if this does not look,
smell and taste like acts of
dishonesty, we cannot recognize
it when we see it.”
Similarly, Ofoe JA in his
supporting opinion appalled at
the conduct of the appellants
blurted out with the following
quote from the Ministry’s
report:
‘Some of the revelations were
serious and showed a lack of
professionalism by both the
supervising staff and the
affected contractors. Billions
of Cedis have been certified for
payment for works that have not
been executed….. Generally the
supervisory capacity of the
regional offices is inadequate.
It was clear that the focus of
the supervisory staff was more
on preparing payment
certificates than on quality
control. …… Indeed, the concern
of the Ministry that serious
disparities exist between
certified works and the actual
executed works on the ground has
been confirmed in the Western
Region…. The huge overpayments
are to be retrieved with
interest from the contractors
and the supervisory staff
involved in the certifications
sanctioned.”
Then at page 192 this is what
Ofoe J.A. said “On the basis
of these findings the committee
found the respondents dishonest.
We think this is an appropriate
description of the acts of the
respondents.”
In spite of the observations
made above by the Court of
Appeal supported by evidence
adduced from the record, the
appellants lodged this appeal
before us submitting that they
were not dishonest and were
victims of unfair treatment
orchestrated by the combined
investigation team of the
Ministry and the respondent
Authority. The appellants
also
submitted that they were made
‘sacrificial lambs’ and
victimised and the punishment
meted out to them
disproportionate because of
their weak standings and not
that they have done anything
wrong.
During the
evidence of the 2nd
appellant, the following
dialogue went on between him and
counsel for the respondent at
page 53-54 of the record:
Q. Let’s go on. Now to raise an
IPC there are things that you
have to do, last time I took
your friend through it. All
those things must be done before
an IPC can be properly done?
A. Yes My Lord.
Q. In this case you didn’t do
them?
A. Some.
Q. What you did was to try and
project so you forged figures?
A. Yes My Lord……….
Q. Was your boss not punished?
A. But I was punished more than
him.
Q. So that is why you are here
because the punishment you got
was more than him?
A. Yes because I need not to be
punished at all.
Apart from the 2nd
appellant, the evidence of the
respondent’s representative Joe
Fred Peso at page 69 which was
not challenged in
cross-examination exposed how
the appellants orchestrated
their acts of dishonesty with
the contractors:
Q. Tell us briefly the facts
which informed the committee to
find that the plaintiff and
others were involved in
dishonesty?
A. My Lord we found that
certificates prepared from the
Western region were certificates
for pre-payment and they were
presented as certificates for
actual work done. So, for that
matter we found them liable
[sic] of dishonesty.”
Joe Fred Peso went further to
explain at page 70 the procedure
for raising IPC’s which the
appellants did not follow.
According to him:
“My Lord the procedure is
that the contractor first brings
the request and then the
material support is prepared by
the material engineer. Then the
maintenance manager and the
quantity surveyor go to the site
and take field measurements. And
then when they come back to the
office the quantity surveyor
transfers the field measurements
into taking off sheets and then
prepares bills of quantity and
then again prepares a
certificate. When the
certificate is prepared it is
taken to the maintenance manager
to be reviewed and then it is
taken to the regional director
to sign it and then it is sent
to the regional administration
for signature and then from
there to the Highway head
office.”
The appellants acted as
maintenance manager and quantity
surveyor who were assigned those
important positions of trust to
inspect the site, take field
measurements and prepare
certificates for their superiors
to sign before payment was made
to the contractors. Blinded by
selfish and dishonest motives,
they breached this position of
trust and deceived the Ministry
and respondent Authority to part
with millions of Ghana Cedis for
no work and in some cases shoddy
work done. The 2nd
appellant in the dialogue
produced above admitted forging
the figures for payment to be
effected. If this is not
dishonesty, we cannot determine
what will qualify as one. Truth
be told, the appellants were
plainly dishonest and in so
doing breached Articles 49(B),
(C) and (D) of the Senior Staff
Conditions of Service, exhibit
“W”.
Article 49 vested power in
management to take disciplinary
action against an officer who
commits a major or minor
offence. Major offence is
defined to include bribery,
corruption or other dishonesty.
The sanction provided for breach
is dismissal with forfeiture of
all terminal benefits except
benefits payable under the
Social Security and National
Insurance Trust. The decision to
dismiss appellants summarily was
made in accordance with the
Conditions of Service. We
endorse the dismissals. In our
opinion, management cannot be
faulted for the dismissals.
A case with similar ratio as
this case came before the Court
of Appeal in
Lever Brothers Ghana Ltd v
Annan; Lever Brothers Ghana Ltd
v Dankwa
(Consolidated) [1989-90] 2 GLR
114.
Under
article 31 of the contract of
employment, employees could be
summarily dismissed by the
employers, where the employee
had been guilty of serious
misconduct such as dishonesty or
other serious offence. Lever
Brothers, alleging that the
plaintiffs had been involved in
a fraudulent deal relating to
the sale of their products,
suspended the plaintiffs from
duty and referred the allegation
of fraud to the police for
investigation but later withdrew
the criminal complaint from the
police and summarily dismissed
the plaintiffs from their
employment. The plaintiffs sued
in the High Court-claiming
damages for wrongful dismissal.
The trial judge found for the
plaintiffs. On appeal, the Court
of Appeal held that where an
employee had been guilty of
misconduct so grave that it
justified instant dismissal, the
employer was entitled to dismiss
summarily such an employee he
considered guilty of dishonesty
without even a hearing.
In this appeal before us, even
when it was clear as crystals in
the investigation reports that
the appellants had committed
dishonesty, the respondent
Authority nevertheless gave them
full hearing before the
dismissals. The appellants then
questioned the decision of
management to summarily dismiss
them because the respondent’s
investigation committee had
recommended their reduction in
rank. Our answer to this can be
found in another Court of Appeal
case entitled
Republic v. State Hotels
Corporation; Ex parte
Yeboah [1980] GLR 875.
In this case, article
26 of the collective agreement
entered into by the State Hotels
Corporation and the Industrial
and Commercial Workers Union
(I.C.W.U.) of the Trades Union
Congress provided that, “Any
employee who in the opinion of
the employer has been found
guilty of a serious misconduct
such as dishonesty,
insubordination, drunkenness,
dereliction of duty shall be
dismissed.” A board of inquiry
appointed by the corporation
found that the respondents,
employees of the corporation and
members of the I.C.W.U., had
inflated the prices of some
potatoes they bought for the
corporation and shared the
money. The managing director on
receipt of the report summarily
dismissed the respondents. The
respondents then brought an
action for an order of
certiorari to quash the report
of the board of inquiry and the
decision to dismiss them. The
Court of Appeal per Edusei JA
held at page 879 that:
“where a collective agreement
vested the corporation with the
power to dismiss summarily any
employee who in its opinion had
been found guilty of dishonesty,
the corporation had the power to
dismiss them summarily and the
decision to dismiss summarily
was entirely for the managing
director who was in no way bound
to accept the recommendations of
the board of enquiry.”
In our opinion, the
recommendations of the
investigation/fact finding
enquiry set up by the respondent
Authority was not binding on
management. The Chief Executive
was right in making his own
decision to dismiss the
appellants summarily.
Another submission put forward
by the appellants is that in the
performance of their functions,
they acted on
superior
orders as was the existing
practice in the Western Region.
Regrettably, they have been made
‘sacrificial lambs’ and
victimised with disproportionate
punishment. We will not buy into
the defence of a criminal or
unlawful act being legalised
because it has been made the
practice in an establishment. No
matter how long the practice may
be, what is unlawful will remain
unlawful.
The law on superior orders is
settled.
Halsbury’s Laws of England (4th
ed), Vol. 11(1) has this
principle at p. 34, para. 27:
“The mere
fact that a person does a
criminal act in obedience to the
order of a duly constituted
superior does not excuse the
person who does it from criminal
liability, but the fact that a
person does an act in obedience
to a superior whom he is bound
to obey, may exclude the
inference of malice or wrongful
intention which might otherwise
follow from the act.”
In the case
of
Yaokumah v The Republic [1976] 2
GLR 147 a major in the
Army drove a military vehicle to
the Ghana-Togo border and loaded
uncustomed goods headed for
Accra. He was apprehended at a
check point and arrested. At his
trial, he pleaded the defence of
superior orders. On appeal to
the Court of Appeal, Amissah JA
stated the legal position in the
following words:
“This in
effect amounts to a defence of
superior orders. We agree that a
subordinate officer is obliged
to obey the commands of his
superior. But this obligation is
limited to commands which are
lawful or at least are not
obviously unlawful. Besides the
commands must be given in the
course of duty…. The
appellant's own conduct is
giving a false reason to the
officer responsible when
requisition the transport and
the various false explanations
he gave when found out is ample
evidence of his knowledge of the
unlawfulness of such order or
request by his superior officer.
He was not under a duty to obey
or to comply with any such order
or request.”
The
appellants also put forward the
arguments that the respondent
did not suffer any loss over the
issuing of the Interim Payment
Certificates (IPCs); no
destruction was wrecked on the
national purse and therefore
that claim of losses from
overpayments was much ado about
nothing.
We disagree
with the appellants submission
on the effect of the issuance of
the IPC.s on the national purse.
Funding for road construction is
provided by Parliament from
hardworking tax payers’
contributions, loans from
developmental partners, revenue
accruing from the Authority and
monies transferred to the
Authority from the Road Fund
Board - see sections 25 and 26
of Act 540. The huge capital
outlay for road construction and
maintenance has been the
challenge of all governments in
this country since independence
who struggle to raise the needed
revenue from the yearly budget
to meet the daily cry for such
infrastructural developments
coming from farmers, chiefs,
industrial companies, school
children, community leaders and
so on. The demand for road
maintenance and construction is
far greater than what the yearly
budget of any government can
accommodate. It is, therefore,
disheartening for the appellants
to collude with fellow Ghanaian
contractors and rob the state of
hard-won resources set aside to
meet the states obligations for
infrastructural developments and
then gather the courage to argue
that the loss complained of was
much ado about nothing.
Public
servants owe a duty to serve the
state with total commitment,
dedication and honesty. Where
their conduct as in this case
fell short of the high calling
expected on them, they would
have failed in their position of
trust and a betrayal to the
people and the national
interest. Such a betrayal will
not qualify the public servant
to be rewarded with benefits and
gratuity which is reserved for
exiting employees who serve with
distinction and unblemished
records.
We note that
at the concluding stages of the
judgment of the Court of Appeal
it applied the doctrines of
equity vis-a-vis the punishment
that was meted out to the
regional director of the
Authority and came to the
conclusion that the appellants
had worked for several years and
deserved to be given some
reprieve aimed at
proportionality with the way the
regional director was treated.
This is how Torkonoo JA put it
at page 182:
“As grave as the acts of
dishonesty of the Respondents
are, we note that prior to the
matters in contest, they had
served many years in the public
service. Again, we note that the
appellants were inconsistent
with regard to punishing the
three persons identified in the
particular Acts under review.
Mr. Nai Kwade who presided over
the preparation of the IPC
remained employed while the
respondents were punished by
termination of appointment and
loss of benefits. As a court of
equity, we review the scope of
punishment of the respondents
and abate the sanction to
removal with full terminal
benefits as at 22nd
February 2006, when their
employment was
terminated.”
We take a serious view of the
dishonest conduct of the
appellants which has had and
continue to have negative
effects on the entire citizenry
of this country not mentioning
expectant mothers who travel on
some of these bad roads daily
without reaching the hospitals
and health facilities because of
miscarriages suffered as a
result of the state of the
roads. My Lords, mindful of the
collective commitment imposed on
us by
Article 35(8)
of the Constitution that “The
State shall take steps to
eradicate corrupt practices and
the abuse of power,” we have
parted ways with the Court of
Appeal. We disagree
with the reasons assigned for
abating the maximum punishment
imposed on the appellants and
granting then reprieve to walk
away with their benefits. Our
position is strengthened by the
case of
CHATLANI v HAROUTUNIAN [1974] 2
GLR 263.
In that case, the plaintiff was
employed by the defendant as a
store-keeper and later manager
of the defendant’s retail store.
Later, shortages both in cash
and in goods were discovered
after stock-taking. There were
other shortages discovered in
previous stock-takings. Also, on
three different occasions, the
plaintiff borrowed money from
the cash sales for his own
personal use without the
knowledge and consent of the
defendant. The plaintiff was
summarily dismissed by the
defendant because of the
shortages. The plaintiff sued
claiming damages for wrongful
dismissal and payment of his
gratuity. Abban J (as he then
was) held that at the time of
the plaintiff’s dismissal his
honesty for that post of trust
had become questionable and
since his dismissal was
justified, the plaintiff cannot
recover damages, neither can he
succeed in his claim for
gratuity. “It is my view that
payment of gratuity to an
employee is dependent upon
faithful and efficient discharge
of services to the employer and
upon the employee leaving the
employment on grounds other than
misconduct.”
We endorse this dictum of Abban
J (as he then was) and restate
the legal proposition that
payments of gratuity, end of
service benefits or any other
package to a worker severing
relationship with the employers
on any grounds is a condition
precedent on the employee
leaving without blemish and upon
faithful and efficient service
to the employer. Where as in
this case the basis for the
severance in relationship is on
the grounds of fraud,
dishonesty, breach of trust or
other serious misconduct, the
employee would not be entitled
to the benefits associated with
leaving the service of the
employer.
Accordingly, the evidence on
record having confirmed without
doubt that the appellants were
involved in acts of dishonesty
resulting in their dismissals,
we find no basis for the
concession granted by the Court
of Appeal reducing appellants
summary dismissals to removals
with full benefits. We,
therefore reverse the decision
of the Court of Appeal to abate
the dismissals to removals with
full benefits and restore the
summary dismissals imposed on
the appellants by the respondent
under article 49(D) of the
Senior Staff Conditions of
Service.
In conclusion, we find no merit
in the appeal lodged at this
court against the decision of
the Court of Appeal dated 7th
November 2013. We, accordingly,
dismiss the appellants appeal.
We vary the Court of Appeal’s
order abating the dismissals to
removals with full benefits and
order that the terminal
benefits, if paid to the
appellants should be retrieved
from the appellants and returned
to respondent Authority’s chest.
SGD.
N. A. AMEGATCHER
(JUSTICE OF
THE SUPREME COURT)
SGD.
N. S. GBADEGBE
(JUSTICE OF
THE SUPREME COURT)
SGD.
Y. APPAU
(JUSTICE OF
THE SUPREME COURT)
SGD.
A. M. A. DORDZIE
(JUSTICE OF
THE SUPREME COURT)
SGD.
PROF. N. A. KOTEY
(JUSTICE OF
THE SUPREME COURT)
COUNSEL
KINGSLEY
YEBOAH FOR THE
PLAINTIFFS/RESPONDENTS/APPELLANTS.
KWABENA
ANKAMAH OFEI BADU FOR THE
DEFENDANT/ APPELLANT/
RESPONDENT.
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