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Labour -
Employment – Dismissal -
Settling a dispute -
Compensation - Unfair
termination of employment -
Enforcement of order –
Breach of regulation 206 (b) of
the Staff Rules and regulations
- Fraud or acts of dishonesty -
Whether or not the dismissal of
the complainant from
respondent’s employment is
unfair - Whether or not the
respondent must to reinstate
complainant with all his
entitlements from the time when
complaint was dismissed -
Whether or not the respondent
must pay complainant
compensation for unfairly
terminating complaint’s
employment - Section 172 of the
Labour Act of 2003, (Act 651)
HEADNOTES
Appiah was
employed by the Respondent in
January 2002 as Senior General
Manager with the audit
department of the company and
later promoted to the rank of a
chief officer.
Whiles in the
employment of the Respondent,
Appiah was asked to furnish
management with his curriculum
vitae which was to include but
not limited to an outline
indicated in the request.
Following this request, Appiah
submitted a curriculum vitae
indicating that between 1974 and
1981, he attended Benkum
Secondary School, Larteh where
he obtained his GCE “O” and “A”
levels Certificates. A follow up
investigation revealed that
Appiah did not attend Benkum
Secondary School and indeed over
the period stated by him, the
school did not have a sixth form
and has not offered a sixth form
programme since its inception.
Rather, further investigations
revealed that Appiah sat for and
obtained the “O” and “A” level
passes as a private student
having attended private classes
organized by some teachers of
Benkum Secondary School. The
passes were obtained one at a
time between 1973-81. For his
conduct, he was charged in
accordance with regulation 144
(iv) of the Staff Rules and
Regulation of the company and a
Board of Inquiry set up to
investigate the matter found him
guilty of the charge of fraud or
other acts of dishonesty.
Following this, he was dismissed
from the employment of the
company by a letter dated 26th
September 2007. The company
failed to comply with the order
of the commission and therefore
the commission took the
necessary step to have the order
enforced. Consequently, the
commission applied to the High
Court for an Order to enforce
the order The High Court in its
ruling The High Court in its
ruling delivered on 18-06-09
dismissed the Application
dismissed the Application The
Appellant therefore sought a
reversal of the ruling of the
court below and an order
enforcing the order of the
Applicant/Appellant.
HELD
The
commission could not substitute
a case of its won for the
petitioner and adjudicate on it
when the dispute between the
petitioner and the Respondent
was not based on concealment of
facts as laid down under
regulation 206 (b). To condemn
the Respondent under regulation
206 (b) and order it to
terminate the petitioner’s
appointment instead in
conformity with the said
regulation will be acting
without jurisdiction and a
denial of justice for not giving
the Respondent on opportunity to
be heard on that charge. This
ground of Appeal does also not
find favour with the court.
Consequently, the appeal fails
in its entirety and same is
accordingly dismissed.It is for
these reasons that the court
unanimously dismissed the appeal
STATUTES
REFERRED TO IN JUDGMENT
Labour Act of
2003, (Act 651
Court (Award
of interest and post judgment
interest) Rules, 2005 (C. I. 52)
CASES
REFERRED TO IN JUDGMENT
GHANA
COMMERCIAL BANK LIMITED VRS
COMMISSION FOR HUMAN RIGHTS AND
ADMINISTRATIVE JUSTICE [2003 –
2004] SCGLR 91.
VIVIAN
BANNERMAN VRS. STATE TRANSPORT
CORPORATION, CIVIL APPEAL NO.
15/2001 2nd April
2002
IBRAHIM VRS
ABUBAKARI [2001 -2] 1 GLR
DAM VRS J.K.
ADDO and Brothers [1962] 2 GLR
200
ESSO
PETROLEUM CO. LTD VRS SOUTH PORT
CORPORATION [1956] A. C. 218
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
OWUSU (MS.)
J.S.C:
COUNSEL
THADDEUS
SORY FOR THE DEFENDANTS/
APPELLANTS.
KWAKU
GYAWU-BAFFOUR FOR THE
PLAINTIFFS/RESPONDENTS.
______________________________________________________________________
J U D G M E N T
______________________________________________________________________
OWUSU (MS.)
J.S.C:
This is an
appeal against the decision of
the Court of Appeal which
affirmed the decision of the
High Court refusing to enforce
an order of the National Labour
Commission under section 172 of
the Labour Act of 2003, (Act
651.)
The
commission as Applicant had gone
to the High Court to seek
enforcement of its order against
Ghana Telecommunications Ltd,
the Respondent herein after
hearing a petition settling a
dispute between the Respondent
one Williams Hayford Appiah an
Ex-employee of the Respondent.
Appiah was
employed by the Respondent in
January 2002 as Senior General
Manager with the audit
department of the company and
later promoted to the rank of a
chief officer.
Whiles in the
employment of the Respondent,
Appiah was asked to furnish
management with his curriculum
vitae which was to include but
not limited to an outline
indicated in the request.
In the
outline is schools attended set
out as follows:
“Name of
Secondary/Technical/Commercial/Training
College etc attended
Year of Entry
Year of
completion
Sixth form?
Name of
school
Year of entry
Year of
completion”
Following
this request, Appiah submitted a
curriculum vitae indicating that
between 1974 and 1981, he
attended Benkum Secondary
School, Larteh where he obtained
his GCE “O” and “A” levels
Certificates.
A follow up
investigation revealed that
Appiah did not attend Benkum
Secondary School and indeed over
the period stated by him, the
school did not have a sixth form
and has not offered a sixth form
programme since its inception.
Rather,
further investigations revealed
that Appiah sat for and obtained
the “O” and “A” level passes as
a private student having
attended private classes
organized by some teachers of
Benkum Secondary School. The
passes were obtained one at a
time between 1973-81.
For his
conduct, he was charged in
accordance with regulation 144
(iv) of the Staff Rules and
Regulation of the company and a
Board of Inquiry set up to
investigate the matter found him
guilty of the charge of fraud or
other acts of dishonesty.
Following
this, he was dismissed from the
employment of the company by a
letter dated 26th
September 2007.
By a letter
dated 5th February
2008, Appiah presented a
complaint to the commission
against his dismissal and prayed
for the following orders –
“a. A
declaration that the dismissal
of the complainant from
respondent’s employment is
unfair.
b. An order
compelling respondent to
reinstate complainant with all
his entitlements from 22/09/07
when complaint was dismissed or
in the alternative;
or in the
alternative;
i.
Order respondent to re-employ
complainant either in the work
for which complainant was
employed before complainant’s
employment was terminated.
or in the alternative;
ii.
Order respondent to re-employ
complainant in other reasonably
suitable work on the same terms
and conditions enjoyed by
respondent prior to termination
of his employment or in the
alternative;
iii.
Order respondent to pay
complainant compensation for
unfairly terminating complaint’s
employment.”
The
commission went into the
complaint and decided that the
petitioner’s conduct amounted to
a breach of regulation 206 (b)
of the Staff Rules and
regulations the punishment for
which is termination and not
dismissal. It therefore decided
that the purported dismissal be
converted to termination in
conformity with the company’s
own staff Rules and Regulations.
Accordingly
the commission ordered the
Respondent company Ghana Telecom
to terminate the petitioner’s
appointment with effect from the
date that he was dismissed with
all accrued benefits.
Ghana
Telecom, was to comply with the
decision within fourteen days of
21-08-2008, the date of the
order.
The company
failed to comply with the order
of the commission and therefore
the commission took the
necessary step to have the order
enforced. Consequently, the
commission applied to the High
Court for an Order to enforce
the order.
Under section
172 of the Labour Act of 2003,
(Act 651) –
“where a
person fails or refuses to
comply with a direction or an
order issued by the commission
under this Act, the commission
shall make an application to the
High Court for an order to
compel that person to comply
with the direction or order.”
In the
affidavit in support of the
application, one Edward
Briku-Boadu, executive secretary
of the commission recounted the
facts which led to the
presentation of the complaint at
the commission by the
complainant and the fact that
the company has failed to comply
with its orders and that it has
no intention to comply with the
said orders unless the court
steps in.
The
Respondent opposed the
application. In the affidavit in
opposition, one Fitnat Adjetey
the company’s solicitor averred
among other things that for the
application which is seeking to
enforce the
recommendations/orders of the
commission to be heard, it is
imperative that all documents
relating to the case and that
forms the basis of the
recommendations/or orders be
placed before the court.
In paragraph
8 of the affidavit the deponent
averred that Ex “10” and “11”
which were written after the
recommendations of the
commission cannot form part of
the record or documents on which
the honourable court should
evaluate the recommendation.
Paragraph 13 of the affidavit
states –
“that in
answer to paragraphs 16 and 17
the Respondent says that the
National Labour Commission in
its investigative role makes
orders in the nature of only
recommendations, and like all
other recommendations, it is
susceptible to judicial scrutiny
if not honoured by the
Respondent.”
In paragraph
21, the Deponent averred that –
“by section
144 of the staff Rules and
Regulations, ‘fraud and other
acts of dishonesty constitute
major offences for which the
punishment includes dismissal.”
Paragraphs 23
and 24 state –
“that the
National Labour Commission does
not have the power to substitute
its own charges for those
against which the petitioner was
charged and or its own
discretion which acted in
accordance with their laid down
rules.”
24 “that even
though the petitioner was
charged under section 144 the
National Labour Commission
sought to regard his prosecution
with (sic) section 206 of the
staff Rules and Regulation 5
which the affidavit in
opposition sought to justify the
dismissal.
The High
Court in its ruling delivered on
18-06-09 dismissed the
Application for the following
reasons:
“a. applicant
has no power to substitute the
charge for another,
b. the
applicant has not made a finding
of fact on unfairness or
otherwise of the dismissal of
the petitioner under regulation
144 (iv) of the Staff Rules and
Regulations and;
c. The
decision of the applicant is
incomplete.”
This is so
because when the commission
recommended that the petitioner
must be paid all his accrued
benefits, it did not specify
what constitutes these benefits
and how much was to be paid to
the petitioner.
Dissatisfied
with the ruling, the commission
appealed to the Court of Appeal
on the grounds that –
(i)
The Court below erred when it
questioned the correctness or
otherwise of
applicant/appellant’s decision
instead of just enforcing the
decision submitted to the court
for enforcement.
(ii)
The court below erred when it
held that applicant/appellant’s
decision was incomplete and
cannot be enforced.
(iii)
The court below erred when it
held that applicant/appellant
has substituted its own case for
that of the petitioner.
(iv)
Further grounds of appeal will
be filed upon receipt of the
record of proceedings.
The Appellant
therefore sought a reversal of
the ruling of the court below
and an order enforcing the order
of the Applicant/Appellant.
On 20-05-10,
the Court of Appeal unanimously
dismissed the Appellant’s appeal
and held that the order which
the Appellant sought to enforce
was not justified in law or on
facts and that same was
manifestly wrong in that the
petitioner was charged with acts
of dishonesty and fraud under
regulation 144(iv) of the staff
Rules and Regulations yet the
Appellant decided the matter
under regulation 206 (b) of the
staff Rules and Regulations.
The
petitioner’s complaint was
against unfair termination of
employment as set out under
section 63 of the Act and not
against unfair labour practice
as set out under sections 127
-131 of the Act.
The Court of
Appeal found that the
petitioner’s conduct amounted to
fraud and therefore the charge
preferred against him under
regulation 144 (iv) was
appropriate in the
circumstances.
It therefore
held that the High Court fell
into no error when it refused to
enforce the order of the
Appellant.
Still
dissatisfied, the Appellant
mounted this appeal seeking –
“(i) a
reversal of the judgment of the
Court of Appeal.
(ii) An order
affirming the orders of the
Appellant to the effect that the
petitioner’s appointment ought
to have been terminated by the
respondent/respondent/respondent/
The Grounds
of Appeal are that:
“(i) The
court of Appeal erred when it
held that the High Court was
right when it re-opened the
matter and questioned the
correctness or otherwise of
applicant/appellant/appellant/s
decision instead of just
enforcing the decision submitted
to it (the High Court) for
enforcement.
(ii) The
Court of Appeal erred when it
held that the
applicant/appellant/appellant
never made any order regarding
the actual entitlements due to
the petitioner before it
(appellant).
(iii) The
Court of Appeal erred when it
held that applicant/appellant/
appellant had substituted its
own case for that of the
petitioner.
(v)
The Court of Appeal erred in law
when it upheld the judgment of
the High Court overturning the
appellant’s decision in favour
of the petitioner when
respondent/respondent/respondent
had failed to exercise its
statutory right of appeal in
respect of the decision sought
to be enforced.
Arguing the
first ground of Appeal, counsel
contended that the application
before the High Court was simply
for purposes of enforcing the
decision of the Appellant. That
it had nothing to do with the
merits of the case before the
commission. He submitted
therefore that it did not lie in
the Respondent’s mouth to attack
the decision before the High
Court when the Appellant sought
to have it enforced. It is his
case that every decision of the
commission is appealable to the
Court of Appeal. Hence any
person aggrieved by the decision
of the commission has a right to
attack same only by way of an
appeal to the Court of Appeal.
If therefore a person refused to
appeal against the
decision/order of the
commission, he must be deemed to
have accepted the decision/order
and cannot challenge the
correctness or otherwise when
the commission seeks to enforce
it against him.
Before the
Court of Appeal, counsel for the
Appellant submitted that in an
application before the High
Court, the High Court has no
appellate Jurisdiction over the
commission and therefore the
High Court cannot be called upon
to examine the correctness or
otherwise of the decision.
Alternatively, the Respondent
could have invoked the
supervisory Jurisdiction of the
High Court against the decision
if respondent was aggrieved by
same.
Counsel thus
submitted that the Court of
Appeal erred when it held as
follows:
“In the
present case, the
respondent/respondent did raise
issues that called for the
re-opening of the investigations
or production of the
investigation proceedings … the
trial High Court was entitled to
look at all the depositions
filed in the proceedings before
reaching its decision, and it
did so. (Kindly refer to page
500 of the record).
Appellant’s
main complaint is with respect
to that part of the High Court’s
ruling which seeks to question
the basis of Applicant’s
decision rather than proceed to
enforce it.
In reply,
counsel for the Respondent
argued grounds (i) and (iv)
together. In support of these
grounds, the Appellant has
argued that the Appellant has
power to enquire into and
determine complaints of unfair
labour practices brought before
it. He (Appellant) relied on
section 134 of the Labour Act to
submit that the Respondent had
14 days within which to appeal
against the commission’s
decision failing which the
Respondent was deemed to have
accepted same and therefore
would be bound by it.
Appellant has
also argued that in seeking the
orders of the High Court to
enforce its decision, the
investigation proceedings cannot
be laid before the High Court.
Counsel
submitted that these grounds
must fail if it can be
established that the above two
premises are wrong.
He contended
that the Appellant’s argument
that the only remedy available
to the Respondent to question
the correctness or otherwise of
the decision of the Appellant is
to appeal against the decision
as provided for under section
134 of the Labour Act is
misconceived and misplaced.
In quoting
the section, the Appellant
disingenuously omitted the
crucial phrase “under section
133.” Section 133 of the Act
relates to unfair labour
practices. Unfair Labour
practice has been defined under
section 127- 131
He submitted
that the complaint of the
petitioner in the instant case
was not one of unfair Labour
practice. It was rather one of
unfair termination of
employment. Consequently,
section 134 of the Act is not
applicable.
He referred
to the dicta of His Lordship
Brobbey JSC and Her Ladyship
Wood JSC (as she then was) in
the case
of GHANA COMMERCIAL BANK LIMITED
VRS COMMISSION FOR HUMAN RIGHTS
AND ADMINISTRATIVE JUSTICE [2003
– 2004] SCGLR 91.
He therefore
submitted that the High Court
exercised its powers correctly
when it assessed the decision
embodying the recommendation to
see whether it was supported by
the proceedings.
It is also
his case that since the
enforcement proceedings were
founded on affidavit evidence,
the High Court was bound to look
at all the depositions filed in
the proceedings before reaching
its decision whether to grant or
dismiss the application. From
the affidavits, if it can be
established that the decision of
the commission which is sought
to be enforced is “unjustified
in law or in fact, the High
Court, cannot ignore it.
Counsel
submitted that the decision or
order which the Appellant sought
to enforce was not justified in
law or fact and that it was
manifestly wrong and perverse in
that, even though the petitioner
was charged with fraud or other
acts of dishonesty under
regulation 144 of the staff
Rules and Regulations, the
commission decided to substitute
a case of its own under
regulation 206 (b) and therefore
based the decision on 206 (b)
instead of 144 (iv).
This gave
cause for the commission to
decide that the punishment for
that offence warranted
termination of appointment but
not dismissal which is warranted
under 144 (iv)
He argued
further that the function of the
Appellant, like all other
investigative bodies are purely
investigative and the decision
is in the nature of
recommendations. The commission
has no enforcement power of its
own and it is for this reason
that the commission resort to
the High Court for enforcement
of its orders. Counsel submitted
that the High Court is not a
rubber-stamp which merely stamps
these recommendations and orders
regardless of whether such
recommendation or orders can be
supported by the evidence placed
before the commission.
The
petitioner’s complaint before
the commission was unfair
dismissal. What constitutes
unfair dismissal? The position
of the Law stated by
Bamford-Addo JSC (as she then
was) in the case of
VIVIAN
BANNERMAN VRS. STATE TRANSPORT
CORPORATION, CIVIL APPEAL NO.
15/2001 and dated 2nd
April 2002 is as follows:
“The employer
must first show that the
principal reason for dismissal
was one of four potentially fair
reasons (capability, conduct,
redundancy, statutory
requirement) or some other
substantial reason of a kind
such as to justify the dismissal
of an employee holding the
position which that employee
held.”
Counsel
concluded that the Respondent
had shown that the principal
reason for the dismissal was
based on conduct.
The
petitioner’s termination was in
accordance with fair procedure
having been charged, he was
heard, and offered opportunity
to be represented by counsel to
put across his case.
APPEALS
Section 134
of the Labour Act states that:
“A person
aggrieved by an order direction,
or decision made or given by the
commission under section 133 may
within fourteen days of the
making or giving of the order,
direction or decision, appeal to
the Court of Appeal.”
It is clear
from the provisions of section
134 that it is only in respect
of orders made under 133 that a
person aggrieved by the order is
given the right of Appeal.
Section 132
gives the commission power to
inquire into and determine
complaints of unfair labour
practices brought before it in
accordance with its rules of
procedure.
Sections
127-131 provide for what
constitutes unfair labour
practice.
Following
thereafter is the power given to
the commission to make orders.
Section 133.
Commission to make orders:
“(1) Where the commission finds
that a person has engaged in an
unfair labour practice it may,
make an order forbidding that
person to engage or continue to
engage in the activities
specified in the order.
(2)
Where the Commission finds that
a person has engaged in an
unfair labour practice under
section 127 which involves the
termination of employment of a
worker, the alteration of the
employment or of the conditions
of the employment, the
Commission may, make an order
requiring the worker’s employer
(a)
to take the steps specified in
the order to restore the
position of the worker, and
(b)
to pay to the worker a sum
specified in the order as
compensation for the loss of
earnings attributed to the
contravention.
(1)
Where the Commission finds that
a person has engaged in an
unfair labour practice under
section 128 by making a
contribution to a trade union,
the Commission may, order that
the trade union refund the
contribution.
(2)
For the purposes of enforcing an
order of the Commission under
this section, the order shall
have effect as if it were made
by the High Court.”
The
petitioner’s case before the
commission was not one of unfair
Labour practice and thus the
order made by the commission was
not made under section 133.
Counsel for
the Appellant had relied on
section 134 and argued that the
Respondent should have appealed
against the order it sought to
enforce and if he failed to
appeal, it should for ever hold
its peace.
Under
regulation 144 (iv) no room has
been provided for Appeal.
Regulation 144 deal with major
offences under the staff Rules
and Regulations.
Among such
offences is the offence of fraud
or other acts of dishonesty.
Regulation
144 states that:
“The
following shall constitute major
offences for which the
punishment shall be dismissal,
removal, reduction in rank or
suspension without pay or not
less than 14 days, except that
embezzlement shall always
attract dismissal.
144 (iv) is
the offence of
“fraud
or other acts of dishonesty”
Such a
conduct constitutes major
offence which warrants dismissal
and the complainant’s dismissal
was based on this Regulation.
Under
Regulation 146 of the Staff
Rules and Regulations –
“(a)
Disciplinary authority for all
offences shall be the Board or
the Managing Director exercising
the Board’s authority.
(b) Subject
to (a) above, disciplinary
authority may be exercised for
purposes of administrative
convenience in accordance with
relevant Administrative
Instructions issued from time to
time by the Managing Director.
Naturally
under the Regulation it is an
employee who has a right of
Appeal against any disciplinary
action that may be instituted
against him and this is to the
Board of Appeal.
Under the
Labour Act therefore, the
Respondent Company has no
conferred right to Appeal and I
am inclined to agree with
counsel for the Respondent that
the Respondent could register
his dissatisfaction by his
failure to comply with an order
and register his disapproval by
opposing an application for its
enforcement when the commission
seeks to do so.
The next
issue raised is whether the High
Court has power to question the
correctness or otherwise of the
decision when the commission
seeks to enforce same.
On this
point, both counsel heavily
relied on the case of GHANA
COMMERCIAL BANK VRS CHRAJ,
already referred to.
In that case,
the commission had gone to the
High Court for the enforcement
of its decision and
recommendations by the High
Court. The High Court had
granted the application and
issued an order to enforce the
decision and recommendation of
the commission. The Court of
Appeal upheld the decision of
the High Court and this
culminated in the appeal to the
Supreme Court.
The facts
related to termination of
appointment of an employee of
the Bank who was a manager. The
reason for the termination was
that he had contravened the
regulation of the Bank by
granting a loan facility to a
customer of the bank without
prior approval from its head
office.
Dissatisfied
with the termination of his
appointment, he petitioned the
Respondent commission for
redress. After investigation,
the commission decided in favour
of the petitioner and made
recommendations to the Bank
which failed to comply with
them.
The
commission therefore applied to
the High Court for enforcement.
The High Court granted the
application and issued an
enforcement order which the
Court of Appeal affirmed.
On appeal to
the Supreme Court, the issue for
determination, was whether the
investigation proceedings before
the Commission on Human Rights
and Administrative Justice may
have to be laid before the trial
court. One of the grounds of
appeal being that:
“the trial
court not having seen and
examined the evidence adduced
before the commission, erred in
seeking to enforce a ruling
based on the evidence.”
The Labour
Commission does not have power
to enforce its decision, hence
the application to the High
Court. It is not for nothing
that the decision must be sent
to the court for its
enforcement. The intendment of
the Law maker to me is to ensure
that due process was followed
and that the decision is
justified on the facts and the
law.
A court of
law which seeks to do justice
cannot make an order for the
enforcement of the commission’s
order without satisfying itself
that the order sought to be
enforced is justified in law
especially where there is an
affidavit in opposition as to
why the order cannot be
enforced. The affidavit in
opposition did not only raise
issues of facts but law as well
and in my view the trial court
fell into no error as the Court
of Appeal held when it examined
the depositions filed in the
proceedings before reaching its
decision.
Since the
application was to be determined
on the affidavit evidence, the
trial Judge had no option but to
look at them. If satisfied with
that kind of evidence, Judgment
may be given by him on the basis
of that evidence. To ensure
that substantial justice is done
to the parties, the trial Judge,
depending on the facts of each
case, may even on his own order
the investigation proceedings of
the commission to be laid before
the court.
Where one
party, usually the defendant,
raises issues that can only be
resolved by re-examination of
the evidence before the
investigation body or by
production of the record of
proceedings before the
investigation body, i.e. the
commission, then the
investigation proceedings before
the commission may have to be
laid before the court.
See holding 3
of the court in the GHANA
COMMERCIAL BANK case referred to
above.
I find no
merit in this ground of Appeal.
As counsel
for the Appellant argued grounds
1 and 4 together, my resolution
covers both grounds I and 4.
On ground
(ii), the commission did not
make any recommendation or order
as to what specifically the
petitioner was entitled to by
way of accrued benefits.
The trial
Judge had asked in his ruling –
“So what
decision am I to decide on? If
the decision of the applicant is
upheld, how can I then say that
the parties should go and sit
down to agree on what to pay?”
It is for
this reason that the trial court
concluded that the decision of
the Applicant is incomplete and
cannot therefore be enforced.
Ex “NLC 10”
did not form part of the
proceedings before the
commission. The decision which
the Appellant sought to enforce
is as follows:
“It is the
view of the commission that a
punishment of such a breach is
termination and not dismissal,
therefore the purported
dismissal should be converted to
termination to conform with your
company’s own staff rules and
regulations.
Accordingly
the commission orders the
respondent company Ghana Telecom
to terminate his appointment
with effect from the date that
he was dismissed with all
accrued benefits.”
The High
Court’s jurisdiction was to
enforce this order as made.
It is the
case of the Appellant that the
fact that the Appellant did not
go to the trouble of calculating
the specific sum due the
interested party did not render
its decision incomplete and for
that matter unenforceable by the
High Court.
In support of
his case, counsel relied on the
situation where after Judgment
for a liquidated sum, the High
Court makes a further order that
the sum so awarded is to attract
interest from a particular date
to the date of final payment.
What constitutes the interest is
not specified by the court. The
Judgment creditor calculates the
interest and invokes the
coercive powers of the High
Court to ensure enforcement by
the court.
The judgment
of the High Court is not deemed
incomplete and unenforceable
because the High Court did not
specify the exact sum due the
Judgment creditor by way of
interest.
In reply,
counsel for the Respondent
argued that the decision was not
complete because without taking
evidence on the entitlements,
the petitioner sought an order
to compel the Respondent to pay
what is contained in Ex “NLC”
prepared unilaterally by the
petitioner after the orders of
the commission.
Regarding the
Appellant’s argument inviting
the court to use the analogy of
the award of interest in
recovery of the award of
interest in recovery cases,
counsel submitted that same is
misconceived. He contended that
the award of interest on
recovery cases which is
sanctioned by the
court
(Award of interest and post
judgment interest) Rules, 2005
(C. I. 52) and case law is
different from entitlements due
an employee which is based on
conditions of service. The
petitioner’s entitlements are
indeed based on his conditions
of service which needed to be
proved. The award of interest
is based on a fixed interest
rate. The Appellant’s argument
that what is contained in Ex
“NLC 10” was not challenged and
therefore is deemed to have been
accepted by the Respondent is
not borne out from the record.
In paragraph
13 of the affidavit in support
of the motion, it is averred
that the respondent company
through its solicitors requested
for a two week period to revert
to the petitioner.
At least from
Ex “NLC 11”, the Respondent’s
counsel had advised an out of
court settlement in respect of
the petitioner’s entitlement but
not acceptance to pay what is
contained in Ex “NLC 10” as the
petitioner’s entitlement.
In the
affidavit in opposition, the
Respondent in paragraph 11
averred –
“That in
answer to Ex “NLC 10”, the
Respondent says that even if the
recommendations were right,
which is denied, the need for
the proof of entitlement would
have required evidence to be
taken - - - - - - - - - - - - -
In paragraph
10, the Respondent averred that
Ex “NLC 10” is self serving and
therefore of no evidential
value, the calculation of the
petitioner’s entitlement is
false. The Respondent before the
High Court therefore disputed
the entitlements as contained in
Ex “NLC 10”.
The case of
IBRAHIM
VRS ABUBAKARI [2001 -2] 1 GLR
cited by counsel in support
of his point with due deference
to counsel is inapplicable in
the instant case.
Again, the
analogy drawn by counsel for the
Appellant is misconceived and
cannot sustain his case as
argued and demonstrated by
Respondent’s counsel.
This ground
of Appeal also fails and same is
dismissed.
Ground (iii)
which should have been argued
first would have disposed of the
appeal. This ground of appeal
attacks the court of Appeal
decision affirming that of the
High Court that the Appellant
did substitute its own case for
that of the petitioner.
The
petitioner having been charged
under Regulation 144 (iv) with
an offence of fraud and other
acts of dishonesty, the
commission in investigating the
petition, proceeded under
Regulation 206 (b) of staff
Rules and Regulations.
Regulation 206 (b) is headed
concealment of facts and reads
as follows:
“Concealment
of facts or any intentional
false statement will be
considered a sufficient ground
for non-employment or for
subsequent termination of
employment.”
The
commission came to a conclusion
that what the petitioner did
amounted to a breach of the
above Regulation hence its
decision that his dismissal
should be converted to
termination under the
Regulation.
Counsel for
the appellant contends that in
determining a dispute, submitted
to it, the commission is not
bound to adopt any earlier
proceedings involving the
parties. That the commission
was to hear the matter in the
exercise of its statutory
Jurisdiction under section 138
of the Labour Act. Among the
functions of the commission is
the settlement of Industrial
disputes.
Counsel
submitted that it was erroneous
for the Court of Appeal to hold
that because the appellant
disagreed with the respondent’s
board of enquiry’s conclusions
and decided the matter before it
in its own way, on the authority
of DAM
VRS J.K. ADDO and Brothers
[1962] 2 GLR 200, the
Appellant substituted its own
case for that of the petitioner.
Counsel
submitted that in hearing the
matter submitted to it therefore
the commission was entitled to
look at the matter de novo and
reach its own conclusions. It
is the case of the commission
that as earlier submitted, if
the commission acted in error at
all, the Respondent’s remedy was
to appeal and not to raise it as
a defence in an enforcement
proceedings.
In reply,
counsel for the Respondent
stated the principle of law as
laid down in DAM VRS ADDO
already referred to.
Counsel
submitted that the Appellant
fell into a grave error when it
substituted the charge for which
the Respondent proceeded against
the petitioner by basing their
decision on regulation 206 of
the Staff Rules and Regulations
instead of regulation 144 under
which the petitioner was charged
and investigated.
Regulation
206 was not relied on by any of
the parties.
In the case
of DAM VRS ADDO the Supreme
Court as at the time held that:
“A court must
not substitute a case proprio
motu, nor accept a case contrary
to, or inconsistent with that
which the party himself puts
forward, whether be the
plaintiff or the defendant.”
The Appellant
had sued the Respondent in the
High Court for accounts and for
money due and owing to him. The
trial Judge after the
consideration of the respective
cases of the parties, resolved
the issues as set out in the
summons for directions and
thereby rejected the
respondent’s case. He did not
however give judgment for the
appellant but gave judgment for
the Respondents basing himself
on details on which no evidence
had been adduced since they did
not form part of the
Respondent’s case as disclosed
by the pleadings.
In the
proceedings before the
commission, no reference was
made to regulation 206 (b) of
the Staff Rules and
Regulations. The petitioner’s
petition was against unfair
dismissal based upon fraud or
other acts of dishonesty. Fraud
because he has misrepresented to
the Respondent that he obtained
his “O” and “A” Level
certificates from Benkum
Secondary School, a
representation he well knew to
be false.
The issue
which the commission was called
upon to determine is whether or
not the petitioner’s dismissal
was unfair.
The
commission from its report,
found as a fact that the
petitioner gave a false
information with regard to a
secondary school he claimed he
attended and obtained his “A”
and “O” Level Certificates. What
it should have decided upon was
whether the dismissal was unfair
or not.
The
commission had no Jurisdiction
to prefer its own charge against
the petitioner and proceed
against him for an offence for
which he was not charged.
The
Appellant’s contention that
under its statutory
Jurisdiction, the Appellant is
not bound to adopt any earlier
proceedings involving the
parties and that it was entitled
to look at the matter de novo
is fallacious and untenable.
The
commission could not substitute
a case of its won for the
petitioner and adjudicate on it
when the dispute between the
petitioner and the Respondent
was not based on concealment of
facts as laid down under
regulation 206 (b).
To condemn
the Respondent under regulation
206 (b) and order it to
terminate the petitioner’s
appointment instead in
conformity with the said
regulation will be acting
without jurisdiction and a
denial of justice for not giving
the Respondent on opportunity to
be heard on that charge.
“To condemn a
person on a ground of which no
fair notice has been given may
be as great a denial of justice
as to condemn him on a ground on
which his evidence has been
improperly excluded.” Dictum of
Lord Normand in
ESSO
PETROLEUM CO. LTD VRS SOUTH PORT
CORPORATION [1956] A. C. 218
relied on and applied in DAM’s
case.
This ground
of Appeal does also not find
favour with the court.
Consequently, the appeal fails
in its entirety and same is
accordingly dismissed.
It is for
these reasons that the court
unanimously dismissed the appeal
on 13-01-12.
(SGD) R.
C. OWUSU (MS.)
JUSTICE OF
THE SUPREME COURT
(SGD) G.
T. WOOD (MRS)
CHIEF JUSTICE
(SGD) S. A. BROBBEY
JUSTICE OF
THE SUPREME COURT
(SGD)
ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
(SGD) P.
BAFFOE BONNIE
JUSTICE OF THE SUPREME COURT
COUNSEL:
THADDEUS
SORY FOR THE DEFENDANTS/
APPELLANTS.
KWAKU
GYAWU-BAFFOUR FOR THE
PLAINTIFFS/RESPONDENTS.
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