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Employment – Collective
agreement – Grievance procedure
– Employee aggrieved with
interdiction – Grievance
procedure specified in
Collective Agreement – Employee
to exhaust grievance procedure
before proceeding to court.
Article 27 of the Collective
Agreement that governed the
employment provided that an
employee with a grievance should
report it to his sectional head.
The employee was interdicted on
suspicion of stealing and he
instituted an action in the High
Court inter alia for rescission
of his interdiction, payment of
his salary. The trial judge held
that the employee had not
exhausted the domestic remedies
available to him and dismissed
the action. On appeal to the
Court of Appeal,
Held,
since the employer suspected the
employee of stealing, it was
entitled under the Collective
Agreement to interdict the
employee. The Collective
Agreement contained the
procedure to have been followed
if the plaintiff was aggrieved
with his interdiction. Not
having followed the procedure,
the trial judge rightly
dismissed the action. There was
no merit in the appeal and it
would be dismissed. Republic
v State Transport Corporation,
ex parte Djorhoe [1975] 2
GLR 471, Hemans v Ghana
National Trading Corporation
[1978] 1 GLR 4, CILEV v
Chiavelli [1967] GLR 651,
Hamlyn & Co v Talisker
Distrillery [1894] AC 202
HL, referred to.
Cases referred to:
CILEV v Chiavelli
[1967] GLR 651.
Hamlyn & Co v Talisker
Distrillery
[1894] AC 202, 71 LT 1, 58 JP
540, 10 TLR 479, 6 R 188, HL .
Hemans v Ghana National Trading
Corporation
[1978] 1 GLR 4.
Majolagbe v Larbi
[1959] GLR 190.
Republic v State Transport
Corporation, ex parte Djorhoe
[1975] 2 GLR 471.
APPEAL from the decision of the
High Court.
Dr Acheampong
for the appellant.
G Thompson
for the respondents.
AMUAH JA.
The plaintiff-appellant, an
employee of the Ghana Film
Industry Corporation, who
instituted an action at the High
Court, Accra, claimed by his
writ:
“(a) An order for rescission of
the interdiction of the
plaintiff by the defendant and
to restore him to his post as a
Lighting Technician with the
Corporation.
(b) An order for the payment to
the plaintiff of his full
salary with effect from the
date of interdiction to the date
of judgment.
(c) An order for the refund to
the plaintiff of the sum of $200
dollars and CFA 5,000 dubiously
extorted from him by the
defendant, in breach of the
Collective Agreement.”
The Ghana Film Industry
Corporation, the
defendant-respondent, maintained
that the plaintiff-appellant was
not entitled to his claim. The
learned trial judge entered
judgment in favour of the
defendant-respondent hence this
appeal. She made the following
pronouncement in her judgment:
“… whether or not the plaintiff
is entitled to re-instatement,
the recovery and refund of money
wrongfully extorted from him
when held in terrorem, the
defendant’s answer to the
question is that the plaintiff
had not exhausted his domestic
remedies set out in the
collective agreement and, at
worst, the plaintiff’s only
remedy at court is to compel the
defendant to investigate the
matter within a specific period
and either reinstate or dismiss
the plaintiff.”
Aggrieved by the decision, the
plaintiff-appellant (herein
referred to as the “plaintiff”)
appealed to the Court of Appeal
on a number of grounds, namely:
“1. The judgment is wholly
unreasonable and untenable,
having regard to the evidence.
2. The trial court erred in law
in not considering the case law
cited to her by the appellant as
to the correct procedures in
dealing with a breach of the
Collective Agreement, and
calling it a waste of time to do
so.
3. The trial court erred in
making an order which is
incapable of performance, to wit
that: ‘The Germans must be told
to come to Accra to give
evidence, and a report should be
given at the earliest possible
time’.
That is so because:
(a) The Germans were mere
visitors who came to shoot a
film and are functus officio.
(b) They cannot be compelled by
the respondent to return to
Ghana for the departmental
enquiry, nearly three years
thereafter.
(c) The German complainant is
caught by the maxim “ex turpi
causa non oritur actio.
(d) The Germans never made any
official report to the
respondent corporation.
4. The trial court was utterly
confused in deciding that after
a lapse of five whole months of
interdiction, the
plaintiff-appellant was ‘not
entitled to resort to the High
Court for his redress, and at
the same time ruled that the
plaintiff should have issued a
writ of mandamus to compel the
respondents to perform their
duty and, yet at the same time
ordering the respondents to set
up a committee of enquiry to
investigate the matter.’ This
judicial terpisichore totally
lacks choreography, and is
completely unprecedented.
5. If the trial court had not
chosen the line of least
resistance, and had adverted her
mind and attention to what she
called ‘the other issue’ which
she considered a ‘waste of
time’, she would have arrived at
a more intelligible decision
considering the fact that the
respondents had no intention to
hold any enquiry, as they had
resorted to a trial by fetish
ordeal and on the basis of it,
they had already collected
enormous sums of money in
foreign exchange from the
appellant, whose refusal to make
any further payments led to his
suspension.”
Before considering the grounds
of appeal, we will set out the
salient points of the
plaintiff’s case. The plaintiff,
a lighting technician was an
employee of the Ghana Film
Industry Corporation. On 1
November 1988, a filming party
made up of the Regional Managing
Director, the Senior Lighting
Technician, twenty visitors from
Germany left Accra for Kumasi to
shoot a film. Mr Appiah, the
plaintiff’s immediate senior,
accompanied them on one of the
trucks. The plaintiff followed
them by his own means of
transport seven days later and
joined them in Kumasi. Before
shooting started, Mr Appiah
asked the plaintiff to take
charge of one of the lighting
trucks containing filming
equipment and other items. After
shooting in Kumasi for a week,
the party proceeded to Takoradi.
Mr Appiah travelled on the
lighting truck. The plaintiff
travelled on his own transport
and arrived the next day. The
visitors stayed at the Atlantic
Hotel where the vehicles were
parked. The plaintiff lodged at
Hotel Animens. All the members
of the filming party had access
to the lighting truck.
After shooting films in the
Western Region, and before
travelling to Kumasi, Mr Appiah
informed the plaintiff that a
visitor had reported the theft
of his money that he had kept in
the truck. On the way to Kumasi,
it was decided that the party
should consult a fetish. They
then drove to the shrine but
plaintiff decided not to take
part in the rituals because of
his Christian background; rather
he would refund the amount. This
was 2,000 Deutsche Marks, 200
dollars, 5,000 CFA and 6,000
French francs. On the next day,
the vehicle was searched and
2,000 Dutch Marks in travellers’
cheques were found.
According to the plaintiff, Mr
Appiah ordered him to convert
his allowance into 200 dollars
and 5,000 CFA but he, the
plaintiff, declined to pay the
balance of 6,000 French francs.
The plaintiff was therefore
dropped from the team, later
interdicted and the payment of
his salary suspended.
We will now consider the grounds
of appeal. The decision of the
learned judge in dismissing the
plaintiff’s claim was based on
the fact that the plaintiff
failed to exhaust his domestic
remedies and that he was to be
held responsible for the failure
to set up a committee to
investigate his grievance. The
Collective Agreement, exhibit A,
article 27 sets out the
following procedure to be
observed when an employee
intends to lodge a complaint
against the employer.
“Step One
The employee shall request a
meeting with the sectional head
and such meeting shall normally
be held within three (3) working
days after receiving such a
request. The employee may
request to be represented by the
Divisional Union Executive
member (Shop Steward) or Local
Union to present his grievance
orally or in writing along with
any pertinent information to the
sectional head.”
On the evidence, the defendant
has denied that the plaintiff
reported his grievance to his
sectional head. The burden is on
the plaintiff to show that he
did. He gave evidence for
himself but called no witness
nor did he adduce documentary
evidence to support his case. On
the principle enunciated in
Majolagbe v Larbi [1959] GLR
190 he failed to discharge the
burden on him to prove that he
lodged a complaint with his
sectional head. Quite apart from
this, he failed to comply with
the terms of the Collective
Agreement. Learned counsel for
the defendant in his written
address relied upon CILEV v
Chiavelli [1967] GLR 651
where Amissah JA summarised the
facts and holding in Hamlyn &
Co v Talisker Distrillery
[1894] AC 202 HL as follows:
“…a contract between an English
and Scottish firm, signed in
London but to be performed in
Scotland, contained this
stipulation: ‘Should any dispute
arise out if this contract, the
same to be settled by
arbitration by two members of
the London Corn Exchange, or
their umpire, in the usual way.’
It was held that the arbitration
clause was valid and deprived
the Scottish courts of
jurisdiction to decide upon the
merits of the case, unless the
arbitration proved abortive. And
it is also clear that parties
may choose the law to apply to
their contracts by choosing a
particular forum.”
In this case there is no doubt
that the plaintiff is aggrieved
by his interdiction but the
Collective Agreement, Exhibit A,
provides a procedure to be
followed in such a case for
redress and the plaintiff cannot
simply by-pass it and come to
court. The view taken by the
learned judge in dismissing the
plaintiff’s claim is reasonable
and tenable.
It is said that the learned
judge did not follow the correct
procedure in dealing with the
breach of the Collective
Agreement. Stealing is
punishable by summary dismissal.
See article 25(a) and (b) of the
Collective Agreement. Since the
defendant-corporation suspected
the plaintiff of stealing, the
management was entitled to
interdict him while further
investigations were conducted.
See article 26 of the Collective
Agreement.
The cases cited by learned
counsel for the plaintiff
include Republic v State
Transport Corporation, ex parte
Djorhoe [1975] 2 GLR 471
and Hemans v Ghana
National Trading Corporation
[1978] 1 GLR 4. These cases
have a common thread running
through them and it is this,
that “the Collective Agreement
lays down a mandatory procedure
to be followed.” The learned
judge in coming to the view she
held took into account two
provisions of the Collective
Agreement, exhibit A, i.e.
articles 26 and 27 and was right
in doing so. A directive from
the office of the PNDC, exhibit
2, suspending the payment of
salaries to officials on
interdiction was correctly
adhered to.
We now come to the third
complaint. The statement made by
the learned judge that the
Germans must be told to come to
Accra to give evidence is not an
order intended to be enforced
but merely directing the
defendants as to what would be
required of them at the trial in
proving its case and that it was
required to furnish the
committee with evidence on which
they would proceed. Article 26
and 27 of the Collective
Agreement provide the plaintiff
with two remedies. After
interdiction, he could either
compel the management to set up
a disciplinary committee to
investigate the charges
preferred against him or
complain to the sectional head.
The learned judge in making
reference to these two remedies
was not in error.
For the above reasons we are of
the opinion that the learned
trial judge came to the right
conclusion. We dismiss the
appeal.
(Sgd) ADJABENG JA.
(Sgd) ESSILFIE-BONDZIE J.
Appeal dismissed.
S Kwami Tetteh, Legal
Practitioner
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