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Labour –
Contract of employment – Summary
dismissal - Industrial and
Commercial Workers Union -
Collective bargaining agreement
- Illegal strike - Breach of
employment - Whether or not the
summary dismissal was lawful, as
being in conformity with the
collective bargaining agreement
- Whether or not the rules of
natural justice had been
flaunted. - Whether or not the
notices of summary dismissal
which were served on the
appellants - Articles 23 of the
1992 Constitution - Section
.63 of the Labour Act, 2003,
(Act 651).
HEADNOTES
The 1st-8th
appellants worked at various
branches of the respondent bank
as employees; and served also as
local union executives of the 9th
appellants, the Industrial and
Commercial Workers Union. On the
26th February, 2008,
the respondent bank, purportedly
acting under article 17 of the
collective bargaining agreement
(CBA) between themselves and
their employees, issued out
letters to the 1st –
8th appellants,
dismissing them retrospectively
from their employment, that is,
from the 11th
January, 2008, the date on which
the respondent put them on
notice of summary dismissal;
viz, notice of the bank’s
intention to dismiss them
without pay in lieu of notice.
The respondents’ action was
triggered by an alleged illegal
activity instigated by the 1st
-8th appellants,
working in concert with others,
on the 14th of
November, 2007. The alleged
actions as particularised in
letters notifying them of the
respondent’s intention of
summary dismissal, and which
notices were served on them
prior to the actual letters of
dismissal, were that the
appellants “did declare,
instigate, incite, lead and or
support others to resort to an
illegal action in complete
contravention of the Labour Act
2003, and the Collective
Bargaining Agreement (CBA)
between the respondent bank and
its employees.” Not
surprisingly, the respondents
who disputed the charges, on
receipt of the notices, on 22nd
January 2008, instituted an
action challenging their
legality. However, both the
court of first instance and
Court of Appeal, which
determined the action and appeal
respectively, in well reasoned
and well thought out decisions,
found against the appellants.
HELD
Finally, I
find no merit in the argument
that the dismissal was unlawful,
it being an act of
victimization. The appellants
contend that they were being
victimized for daring to
institute a civil action against
the respondents in relation to
what is described as an “Out of
Cycle” policy being implemented
by the respondents. The learned
trial judge’s findings and
conclusions on the question
point to a mere matter of
suspected of victimization,
nothing more. Both courts found
no positive evidence of proven
victimization, and I would
hesitate to interfere with that
finding.
I would conclude
that the appeal fails and the
same must be dismissed. I would
want however to add my voice to
the appeal made by the trial
judge urging the respondents to
keep the door of negotiations
open. It would be helpful
however to remind the appellants
that it is the spirit of
humility and repentant attitude
which fling open iron gates.
STATUTES
REFERRED TO IN JUDGMENT
1992
Constitution
Labour Act,
2003, (Act 651).
CASES
REFERRED TO IN JUDGMENT
Boateng vrs.
Volta Aluminum Company Limited
(1984-86) 1 GLR 733
Presbyterian
Hospital vrs. Boateng (1984-86)
2GLR 381
Boateng v
Volta Aluminum Co. Ltd.
[1984-6]1GLR 733
Agbesi v
Ghana Ports and Harbours
Authority [2007-2008] SCGLR 458
In re
Jodrell’ Jodrell v. Seale (1890)
44 ChD 590
“Ata” Textile
co. v. Estate of Zolotov, 41 (1)
P.D. 282
Achoro and
Another v. Akanfela and Another
[1996-97] SCGLR 209
Tuakwa v.
Bosom [2001-2002] SCGLR 61
Adu v Ahamah
[2007-2008] SGCLR 144
Aboagye v
Ghana Commercial Bank Ltd.
[2001-2002] SCGLR 797
Laguda v
Ghana Commercial Bank
[2005-2006] SCGLR 388
Kobi and
others v Ghana Manganese Company
Limited [2007-2008] SCGLR 771
Logs Lumber
vrs. Oppon (1977) 2 GLR 263.
Kru vrs.
Saoud Bros and Sons (1975) 1 GLR
4b.
Ayiwah vrs.
Badu (1963) 1 GLR 86.
BOOKS
REFERRED TO IN JUDGMENT
Purposive
Interpretation in Law , Aharon
Barak
DELIVERING
THE LEADING JUDGMENT
WOOD (MRS),
CJ:-
COUNSEL
ALBERT
ADAARE, AGBOSU & ASSOCIATES FOR
THE PLAINTIFFS/APPELLANTS/
APPELLANTS.
CHARLES
HAYIBOR, HAYIBOR, DJARBENG & CO.
FOR THE DEFENDANT/
RESPONDENT/RESPONDENT.
____________________________________________________________________
J U D G M E N
T
____________________________________________________________________
WOOD (MRS),
CJ:-
The salient
facts leading to the institution
of the action, from which this
appeal culminates, are indeed
quite simple. The 1st-8th
appellants worked at various
branches of the respondent bank
as employees; and served also as
local union executives of the 9th
appellants, the Industrial and
Commercial Workers Union. On the
26th February, 2008,
the respondent bank, purportedly
acting under article 17 of the
collective bargaining agreement
(CBA) between themselves and
their employees, issued out
letters to the 1st –
8th appellants,
dismissing them retrospectively
from their employment, that is,
from the 11th
January, 2008, the date on which
the respondent put them on
notice of summary dismissal;
viz, notice of the bank’s
intention to dismiss them
without pay in lieu of notice.
The respondents’ action was
triggered by an alleged illegal
activity instigated by the 1st
-8th appellants,
working in concert with others,
on the 14th of
November, 2007. The alleged
actions as particularised in
letters notifying them of the
respondent’s intention of
summary dismissal, and which
notices were served on them
prior to the actual letters of
dismissal, were that the
appellants “did declare,
instigate, incite, lead and or
support others to resort to an
illegal action in complete
contravention of the Labour Act
2003, and the Collective
Bargaining Agreement (CBA)
between the respondent bank and
its employees.”
Not
surprisingly, the respondents
who disputed the charges, on
receipt of the notices, on 22nd
January 2008, instituted an
action challenging their
legality. However, both the
court of first instance and
Court of Appeal, which
determined the action and appeal
respectively, in well reasoned
and well thought out decisions,
found against the appellants.
The end result is this appeal
which is based on the following
grounds:
(1)
The learned justices of the
Court of Appeal erred when they
held that articles 15 and 17 of
the collective bargaining
agreement between the parties
were separate and that there was
no obligation on the defendant
to proceed under article 15
before invoking article 17.
(2)
The learned justices of the
Court of Appeal erred when they
held that the defendant bank had
an unlimited discretion to
invoke either article 15 or 17
or both on the facts and
circumstances of any given
situation and that the defendant
bank properly invoked article 17
in the instant case.
(3)
The learned justices of the
Court of Appeal erred when they
held that the appellants in the
instant case did not reply to
the letter purportedly issued
under article 17(2) of the
collective bargaining agreement
between the parties summarily
dismissing them when indeed
there is evidence on the record
that they did reply to that
letter.
(4)
The learned justices of the
Court of Appeal erred when they
held that a strike occurred at
the respondent bank’s premises
on 14th November
2007.
(5)
The learned justices of the
Court of Appeal erred when they
held that there was no
victimization of the appellants
in the instant case.
(6)
The judgment is against the
weight of the evidence on
record.”
GROUNDS 1 & 2
(1)
The learned justices of the
Court of Appeal erred when they
held that articles 15 and 17 of
the collective bargaining
agreement between the parties
were separate and that there was
no obligation on the defendant
to proceed under article 15
before invoking article 17.
In a matter
as emotive as a case of summary
dismissal, it is not surprising
that the parties are not agreed
on almost all the primary and
secondary facts surrounding the
disputed action. The central
question in this controversy is
whether or not the summary
dismissal was lawful, as being
in conformity with the
collective bargaining agreement
(CBA) between the parties, which
was tendered at the trial as
Exhibit A, articles 23 of the
1992 Constitution, as well as
s.63 of the Labour Act, 2003,
(Act 651). A number of
subsidiary issues, including
those raised in the grounds 1&2
of appeal, flow from this
central question. The appellants
argue that under the CBA, the
mandatory procedures governing
summary dismissals are those
clearly outlined in the article
15 as well as the article 17.
Appellant counsel contends that
when both provisions are
construed as a whole, that is,
holistically, with the words
being ascribed their natural and
ordinary meaning, the
inescapable conclusion that
would be reached is that the
respondents failed to comply
with the mandatory provisions of
article 15. The contention is
that the suspension of an
employee is a condition
precedent to summary dismissal.
In other words, that before the
ultimate penalty of summary
dismissal could be applied; the
affected employee should first
be suspended under article 15.
The import of this argument is
that the failure to suspend the
affected employees, 1st-8th
appellants, renders their
summary dismissal under article
17 unlawful.
Additionally,
the appellants’ counsel urged
that even if the respondents
were at liberty to invoke only
article 17, they were
nevertheless enjoined under the
CBA to serve the appellants a
month’s notice prior to their
summary dismissal. These
breaches of the CBA, it was
argued, are clearly in
contravention of article 23 of
the 1992 Constitution. I
reproduce the submission made by
counsel in this regard for its
full import and effect.
“The combined
effect of Article 17(2) and 17
(3) is that a notice of
summary dismissal is to be
issued which will take effect
after one month from the date of
the issue of the notice (that
is, assuming the employee does
not reply to the notice).
However, in the instant case,
the 1st – 8th
appellants were actually
dismissed immediately on the
date of the purported notices
that is upon immediate effect of
exhibit C. They were asked to
immediately hand over and vacate
their desks. Indeed the
defendant ensured that they were
sacked from their offices on 11
January, 2008. Thus, whereas the
provisions of Article 17(3) of
the CBA contemplate the service
of a one month notice to
summarily dismiss the employee,
the defendant actually effected
the purported dismissals on the
1st – 8th
appellants on the same day that
is the day of the notice, 11
January, 2008 contrary to the
provisions of the CBA which
stipulates that the dismissal of
the employee will only be
effected after one month of the
date of notice. ”
Now, both the
trial and appellate courts were
of the opinion that the articles
15 and 17 are not intended to be
applied conjunctively and
further that they can indeed
work independently of each
other. More pertinently, they
both concluded that it was
within the respondent’s right to
proceed under article 17 alone,
without recourse to article 15.
To reinforce his argument, the
appellant counsel submitted:
“Even the
trial judge agreed that articles
15 and 17 ought to be read
together and that the procedures
under article 15 of the CBA
ought to be exhausted before
article 17 could be worked.”
The learned
judge had observed:
“It is my
view, agreeing with counsel for
the plaintiff that it is after
the procedures under article 15
is completed that article 17 is
invoked.”
But I find
Counsel’s contention untenable.
The learned judge’s observation
must be understood in its proper
context. The learned trial judge
was only, stating the broad
principles regarding the nexus
between articles 15 and 17. He
proceeded to demonstrate that
firstly, on a true and proper
construction of the CBA, the
respondent reserved the liberty
to invoke article 17, without
necessarily having to apply
article 15. He was, rightly of
the view, that the respondents
were under no obligation, in all
instances, to go through the
procedures outlined under
article 15. Secondly, he found
that on the peculiar facts of
this particular case, the
respondents were under no
obligation to invoke the
suspension procedure under
article 15, it being reserved
for those cases in which there
was only a suspicion of serious
misconduct, requiring full scale
investigations. He expressed
himself thus:
“Article 15
talks about an employee
suspected of being guilty of any
offence which will justify
summary dismissal, the bank may
suspend the employee while
further investigations are
carried out. The employee should
be suspected of being guilty of
the offence. After the
investigations and the worker
has been found guilty of a
proven serious misconduct, then
the procedure in Article 17
begins. It is only by reading
the two Articles together as a
whole that their real import
could be discovered. This
reasoning has the support of the
Court of Appeal case of
Boateng vrs. Volta Aluminum
Company Limited (1984-86) 1 GLR
733 at 738 where His
Lordship Abban said:-
“In
attempting to construe the
termination provisions regard
should be had to all the four
termination clauses. That is the
language used and all the
provisions in the termination
clauses should be looked at as a
whole and every clause must be
compared with the other and one
entire sense made out of them.
It is only by doing this that
the true meaning and the
intention of the parties could
be discovered.”
The learned
judge explained further: “It is
not in doubt that the defendants
did not resort to Article 15 at
all but proceeded to invoke
section 17. Are defendants so
entitled? Article 15 as already
stated, talk of employee
suspected of being guilty of any
offence. What of situation where
it is not a question of
suspicion but it is a case of a
person being guilty of the
misconduct? What will be the
purpose going through Article 15
if clearly the circumstances
show that the worker is guilty
of the offence? What of
instances of “caught in the act?
This question brings to mind the
case of Presbyterian Hospital
vrs. Boateng (1984-86) 2GLR
381.”
On this
critical issue, the position of
their Lordships in the Court of
Appeal is no different.
“In the
instant case, the provisions of
the CBA did not impose an
obligation or limitation on the
defendant bank’s choice or
discretion to invoke either
Article 15 or 17 of the CBA in
deciding the dismissal of its
employees for misconduct. The
defendant bank has an unlimited
discretion to invoke either
Article 15 or 17 or both on the
facts and circumstances of any
given situation. In the instant
case, it opted for Article 17
and properly so in my opinion.
In any case, the fact that no
formal proceedings were
conducted in the present case
before the dismissal did not
necessarily mean that the rules
of natural justice had been
flaunted.”
It will be
useful to reproduce the relevant
articles 15-16 of the CBA as
well as the notice of summary
dismissal, exhibit C, given that
on this crucial issue, the
divergent views expressed by
counsel on both sides of the
legal divide, clearly demand
that we construe these documents
and give our opinion on the
matter.
THE CBA
“Article 15 –
SUSPENSION
If an
employee is suspected of being
guilty of any offence which
would justify summary dismissal,
the bank may suspend the
employee from duty, while
further investigations are
carried out, the union shall be
informed in writing.
While
suspended from duty, the
employee shall continue to
report to his nearest branch on
Tuesday and Thursday of each
week and the employee shall
leave an address with the
employer at which he can be
contacted within 24 hours.
During the
period of suspension from duty,
the employee shall continue to
be paid his/her full salary. If
any employee fails to comply
with this instruction over a
period of one week, the Bank
shall be entitled to assume that
the employee has abandoned his
employment without notice,
unless there are exceptional
circumstances.’
Article 17 –
SUMMARY DISMISSAL
Summary
dismissal may be effected by the
bank at any time in the event of
any employee being guilty of
proven serious misconduct or
breach or non-observance of any
of the provisions contained in
Article 5, 8, 9, 10, 11 and 12.
A copy of the dismissal letter
shall be addressed to the Union.
If an
incident is considered by the
bank to merit the summary
dismissal of an employee, that
employee shall be given notice
of it in writing outlining the
nature of the offence. If
reasonably possible, such notice
shall be served on him
personally, but if personal
notice is for some reason not
possible, service shall be
effected by registered post to
his last known address.
The employee
may if he so chooses, reply in
writing, but if no reply is
received by the bank within one
month from the time notice is
deemed to have been served on
him or if after receiving a
reply from the employee, the
bank considers summary dismissal
still to be necessary, the
employee shall be advised in
writing that he has been
dismissed as from the date
notice was originally served on
him.
(a) An
employee who is summarily
dismissed under 1 above, shall
have the right of appeal to the
Executive Committee within one
month of the notification of
summary dismissal.
(b)The union
shall retain the right to
negotiate on behalf of the
employee
(See Article 43 – GRIEVANCE
PROCEDURE)”
One of the
critical issues arising from the
grounds 1 and 2 of appeal is
whether or not the notices of
summary dismissal which were
served on the appellants, of
which the 1st
appellant’s was tendered at the
trial as Exhibit C, and which is
reproduced hereunder, were in
fact not notices, but outright
dismissal letters.
STRICTLY CONFIDENTIAL –
ADDRESSEE ONLY
11 January 2008
Mr. Opare Yeboah,
Accra.
Dear Mr. Yeboah,
NOTICE UNDER ARTICLE 17 OF THE
COLLECTIVE AGREEMENT (CBA)
BETWEEN BARCLAYS BANK OF GHANA
LTD AND INDUSTRIAL & COMMERCIAL
WORKERS UNION (ICU)
I write to inform you that
following the illegal strike
action of Wednesday 14th
November 2007, you are on notice
of summary dismissal from the
employment of the bank with
effect from 11th
January, 2008.
On Wednesday 14th
November, 2007, in your capacity
as a local union executive and
working together with others,
you did declare, instigate,
incite, lead and/or support
others to resort to an illegal
strike action in complete
contravention of the Labour Act,
2003, (Act 651) and the
Collective Bargaining Agreement
between the Bank and the ICU of
which the local union is a
member.
The illegal strike action took
place a day after Management in
a memo addressed to all local
union executives, and dated
November 13, 2007, indicated to
you that its attention had been
drawn to a meeting of union
members called by executives of
the union for November 14, 2007
and directing members to attend
the meeting before reporting to
post on the said day. Despite
the warning by management
contained in the said memo that
such a meeting was unauthorized,
not having been appropriately
approved and the direction given
to you and other members of the
local union to immediately call
off the meeting, failing which
you will be held jointly and
severally for any disruption to
the business of the Bank, you
went ahead with your meeting and
plans, and caused an illegal
strike action to occur on the
day in question.
Under Act 651, legally approved
procedures for mediation,
arbitration and resorting to
strike action have been provided
for you and you are also
enjoined by the CBA to respect
strictly, provisions of Act
651. You however chose to
ignore these legally binding
guidelines with the view to
intimidating and bringing
pressure to bear on Management
during negotiation of a
collective agreement, as a
result, of your actions, serious
interference was caused to the
business of the Bank and
substantial financial loss,
distress and inconvenience to
our customers and damage to the
Bank’s reputation were incurred
for which the Bank holds you
responsible.
Your actions not only resulted
in an illegal strike action but
also constituted a breach of
warranty of your contract
employment with the Bank for
which the Bank is entitled to
dismiss you summarily under the
Labour Act, 2003, Act 651 and
under the CBA
Consequently, notice is hereby
given of the Bank’s intention to
dismiss you with immediate
effect from January 11, 2008 and
without pay in lieu of notice.
You are to hand over all
property of the Bank in your
Branch of the bank except for
personal Banking purposes. Your
indebtedness to the Bank, which
you will be required to settle
in full immediately, will be
communicated to you shortly.
You may choose to reply to this
notice of summary dismissal or
appeal to the Executive
Committee (Country Management
Committee) within one month of
this notification. Please note
that the Bank reserves the right
to take further action against
you as permitted under Act 651.
Yours Sincerely,
Laureen Lokko (Mrs.)
HUMAN RESOURCE PARTNER.
Cc: Managing Director, Barclays
Bank Ghana Limited Head Office
Accra
Chairman, Interim
Management Committee of ICU
There is no
dearth of local authorities on
the legal principles which
govern the construction of
contractual documents such as
the CBA. The fundamental
principle is that the contract,
that is, the various provisions
must be construed as a whole; in
totality; and liberally or
generously; in a manner that
would bring out its subjective
purpose. The linkages between
the various provisions must also
be carefully evaluated, so as to
bring out the mutual intent of
the parties at the time of the
contract.
It is trite
learning that, no one single
provision is the source of
subjective purpose. Boateng
v Volta Aluminum Co. Ltd.
[1984-6]1GLR 733, which
some two decades later, this
court affirmed as good law, in
the case of Agbesi v Ghana
Ports and Harbours Authority
[2007-2008] SCGLR 458, is
authority for this principle. In
the Boateng case, Abban JA as he
then was, speaking on behalf of
the court stated (at page 739):
“In attempting to construe the
termination provisions, regard
should be had to all the four
clauses. That is the language
used and all the provisions in
the termination clauses should
be looked at as a whole and
every clause must be compared
with the other and one entire
sense be made out of them. It is
only by so doing that the true
meaning and the intention of the
parties could be discovered:
This method of construction was
adopted by Lord Halsbury LC in
In re Jodrell’ Jodrell v. Seale
(1890) 44 ChD 590 where
the Learned judge said at page
605:
‘I am called upon to express an
opinion on what is the meaning
of this written instrument…For
myself, I am prepared to look at
the instrument such as it is; to
see the language that is used in
it; to look at the whole of the
document, and not part of it;
and having looked at the whole
of the document, to see (if I
can) through the instrument what
was the mind of the testator’”
The leading
Judge author, Aharon Barak
explains the rationale behind
these principles, in his book
titled; “Purposive
Interpretation in Law”. At page
329, he writes:
“A contract is an integrative
framework. Its different parts
are intertwined and
intermingled. Its various
branches influence each other.
In interpreting a contract, a
judge should, on one hand, view
it holistically, as a whole, but
on the other hand, evaluate the
connections between its various
provisions, as part of the
attempt to formulate the
parties’ joint intent.” (C.A.
554/83 “Ata” Textile co. v.
Estate of Zolotov, 41 (1)
P.D. 282, 305 refers)
Applying
these principles to the articles
15 and 17, I have very little
difficulty in coming to the same
conclusion as did the two lower
courts on the crucial issue of
whether or not these two
provisions can never work
independently of each other.
Nothing in the articles when
read in their totality, when
purposively construed and the
connection between the two
provisions carefully evaluated,
shows that a suspension under
article 15 is a sine qua non to
summary dismissal as envisaged
under article 17. Indeed, it is
not only the language of these
provisions that lend itself to
this construction, but the very
structural arrangement of the
articles 15 through 17, supports
this construction. The
arrangement reveals a
disconnection between the
articles 15 and 17. The article
16, which deals with termination
of the employment relationship
by either party, separates the
two provisions. What is article
16 there for, if the argument is
that a suspension, followed by
an investigation must precede a
summary dismissal? If indeed a
summary dismissal can only be
invoked after a suspension, the
logical and natural order would
have been for article 17 to come
immediately after the article
15. In other words, article 17
ought to have taken the place of
article 16. This is yet another
reason why I think that the
construction adopted by the two
lower courts expresses the
subjective joint will of the
parties. I therefore affirm the
concurrent findings by both the
trial and appellate courts that
the respondents are under no
legal obligation to suspend an
employee before summarily
dismissing him or her. In this
regard, I make reference to
three decisions of this court
which lay down the circumstances
under which a second appellate
court may interfere with the
factual findings of two lower
courts.
Achoro and
Another v. Akanfela and Another
[1996-97] SCGLR 209,
at 214, in which we concluded
that:
“In an appeal
against findings of facts to a
second appellate court like …
[the Supreme Court], where the
lower appellate court had
concurred in the findings of the
trial court, especially in a
dispute, the subject matter of
which was peculiarly within the
bosom of the two lower courts or
tribunals, this court will not
interfere with the concurrent
findings of the two lower courts
unless it was established with
absolute clearness that some
blunder or error resulting in a
miscarriage of justice, was
apparent in the way in which the
lower tribunals had dealt with
the facts. It must be
established, e.g., that the
lower courts had clearly erred
in the face of a crucial
documentary evidence, or that
the principle of evidence had
not been properly applied; or
that the finding was so based on
erroneous proposition of law
that if that proposition be
corrected, the finding will
disappear … It must be
demonstrated that the judgments
of the courts below were clearly
wrong.”
The
discernible principle in
Tuakwa v. Bosom [2001-2002]
SCGLR 61 which further
expatiates on the duty of a
first appellate court, applies
with equal force to that of a
second appellate court. Speaking
with one voice, we said:
“An appeal is
by way of re-hearing,
particularly where the appellant
alleges in his notice of appeal
that the decision of the trial
court is against the weight of
evidence. In such a case,
although it is not the function
of an appellate court to
evaluate the veracity or
otherwise of any witness, it is
incumbent upon an appellate
court, in a civil case, to
analyse the entire record of
appeal, take into account the
testimonies and all documentary
evidence adduced at the trial
before arriving at its decision,
so as to satisfy itself that, on
a preponderance of
probabilities, the conclusions
of the trial judge are
reasonably or amply supported by
the evidence… ”.
This court
had occasion to set out in some
detail the principles that guide
second appellate courts to
depart from the concurrent
findings of two lower courts.
The court observed in the case
of Adu v Ahamah [2007-2008]
GSCLR 144 that:
“the practice
is not a cast iron one and the
reasons justifying a departure
from the concurrent findings of
fact as stated …are illustrative
only: there may occur cases of
such an unusual nature as will
constrain the third appellate
court …to depart from the
practice.”
I have
critically examined the record.
The appellants’ case does not
justify a departure from the
findings of the two courts.
The intent of
the parties to the CBA is that
under article 17, summary
dismissal be applied in cases of
the stipulated acts of proven
serious misconduct or breach or
non observance of any of the
provisions contained in article
5, 8, 9, 10, 11, and 12.
Clearly, then in cases which
merits the severe sanction of
dismissal, a suspension becomes
imperative where the bank is met
with suspected serious
misconduct and which must
therefore be interrogated for
guilt to be proven or
established. It does follow that
the respondent Bank was
perfectly at liberty to invoke
article 17 without recourse to
article 15. This they are at
liberty to do; the only caveat
being that when called upon to
account for their action, as
happened in this instant case,
they would succeed in
substantiating, inter alia, the
facts on which the dismissal was
grounded.
Furthermore, the argument that
even if the respondents were at
liberty to apply article 17,
they nevertheless failed to
comply with its mandatory
requirements on what constitutes
sufficient notice, is
unsustainable. The contention is
that the notices served on the
appellants, are void, since they
took effect on the same day that
they were issued, contrary to
the express provisions of the
article 17(2) and 17(3) that a
notice of summary dismissal must
take effect one month from the
date of the issue of the notice.
Article 17 (3) does not deal
with the effective date of a
notice of summary dismissal as
urged upon us, neither does any
other provision. To the
contrary, article 17 (4) speaks
retrospectively, in that it
stipulates that the effective
date of summary dismissal is the
date on which the notice of
summary dismissal was originally
served on the employee.
A bare reading of the Exhibit C
proves it is a notice of their
intention to exact the ultimate
penalty of summary dismissal. It
is not the actual dismissal
letter. It did conform to the
provisions of article 17 of the
CBA. If that were not so, they
would not have been paid their
January and February salaries;
the respondents would not have
sent them the 4th of
February reminder urging them to
respond to the notices; neither
would they have subsequently
served them with the actual
letters of dismissal. I also
find that the dismissal letters
conformed to the mandatory
requirements of the CBA, as
relates to their effective
dates. The 2nd
appellant’s letter has been
reproduced for clarity.
4th February 2008
Mr. Samuel A Anarwat
Accra.
Dear Mr. Anarwat,
SUMMARY DISMISSAL – ARTICLE 17
OF THE COLLECTIVE BARGAINING
AGREEMENT BETWEEN BARCLAYS BANK
OF GHANA LIMITED AND THE
INDUSTRIAL & COMMERCIAL WORKERS
UNION (ICU).
We are writing to express our
extreme disappointment that,
following the notice of summary
dismissal issued to you on
January 11, 2008 and our further
letter of February 4, 2008, you
have chosen not to avail
yourself of the due process
under Article 17 of the
Collective Bargaining Agreement
(CBA) governing our
relationship.
For the avoidance of doubt,
Article 17 reads as follows:
“1. Summary dismissal may be
effected by the bank at any time
in the event of any employee
being guilty of proven serious
misconduct or breach or
non-observance of any of the
provisions contained in Article
5, 8, 9, 10, 11 and 12. A copy
of the dismissal letter shall be
addressed to the Union.
2. If an incident is
considered by the bank to merit
the summary dismissal of an
employee, that employee shall be
given notice of it in writing
outlining the nature of the
offence.
3. If reasonably possible,
such notice shall be served on
him personally, but if personal
notice is for some reason not
possible, service shall be
effected by registered post to
his last known address.
4.
The employee may, if he so
chooses, reply in writing but,
if no reply is received by the
bank within one month from the
time notice is deemed to have
been served on him or if after
receiving a reply from the
employee, the bank considers
summary dismissal still to be
necessary, the employee shall be
advised in writing that he has
been dismissed as from the date
notice was originally served on
him.
5.
(a) An employee who is
summarily dismissed under 1
above, shall have the right of
appeal to the Executive
Committee within one month of
the notification of summary
dismissal.
(b) The union shall retain
the right to negotiate on behalf
of the employee
(See Article
43 – GRIEVANCE PROCEEDURE).”
No reply has
been received from you in line
with Article 17 (4) of the CBA.
In the
absence of your reply, we are
left with no choice but to
advise you of your summary
dismissal with effect of the
date notice was originally
served on you.
(Emphasis supplied)
Your
outstanding liability to the
Bank as at the date of this
letter stands at Ghana Cedis –
20, 500.31 the breakdown of
which is as follows:
Housing
Loans: Ghana Cedis – 20, 643.77
DR
Head Office
Savings Scheme 143.46 CR
Please make
arrangements to settle your
indebtedness within the shortest
possible time.
Yours
Sincerely,
Laureen Lokko (Mrs.)
HEAD OF HUMAN RESOURCES.
Cc: Managing Director, Barclays
Bank Ghana Limited Head Office
Accra
Chairman,
Interim Management Committee of
ICU
Aboagye v
Ghana Commercial Bank Ltd.
[2001-2002] SCGLR 797,
and the more recent authorities
of Laguda v Ghana Commercial
Bank [2005-2006] SCGLR 388
and Kobi and others v Ghana
Manganese Company Limited
[2007-2008] SCGLR 771,
affirm the time honoured
proposition that procedures
outlined in contracts of
employment, such as the CBA,
must be followed to give a
summary dismissal validity. I do
find from the record, as did the
two lower courts, that in this
case, the mandatory requirements
under the CBA were fully
complied with.
Every
contract of employment has its
own rules on disciplinary and
grievance procedures. There
cannot be a one- size- fit- all
procedure for all employment
relationships. The important
matter is that within the
context of any given case, the
procedure outlined, does assure
and does indeed offer employees
the opportunity to be heard. The
article 17 of the CBA, under
which notices of summary
dismissals are issued, has its
own inbuilt mechanisms and
procedures for employees under
threat of dismissal. It offers
them the opportunity to be
heard. In this particular case,
it was the appellants’
prerogative to make good use of
the offer or opportunity or
forever hold their peace.
Therefore,
contrary to the appellants’
protestations, they were not
denied a hearing. An invitation
was extended to them under the
Exhibit C, to respond to the
allegation that they had engaged
in illegal activity. They chose
to spurn the respondents’
invitation and never put in a
reply. For this reason they
cannot now complain of a breach
of the audi alteram partem rule,
nor the article 23 of the 1992
Constitution. It is important
to reiterate that article 23 is
referable to public bodies and
authorities only and is
therefore not applicable to
private relationships such as
the one under consideration. I
fully endorse the appellate
court’s sound conclusion on this
crucial issue. Their Lordships
reasoned:
“Fortunately,
however, the contract of
employment of the 1st
– 8th plaintiffs
contained a provision in Article
17 (2) and 17(4) of the CBA
compelling or mandatorily
requiring the defendant bank to
comply with the rules of natural
justice, in particular the audi
alteram partem rule before
dismissing an employee for
serious misconduct. The evidence
in the record of appeal
unequivocally and overwhelmingly
demonstrates that the defendant
bank complied strictly with
Article 17 (2) and (4) by giving
the plaintiffs more than enough
notice of the charges or
offences against them (see
exhibit C) The 1st –
8th plaintiffs were
given as many as 30 days notice
and invitation to make their
statements in explanation of the
charges against them or any
question and answer any
arguments put forward in exhibit
C – the notice of summary
dismissal. The 1st –
8th plaintiffs were
given more than enough
opportunity to state their case
or defend themselves on these
charges. They refused and or
deliberately failed to do so or
to take advantage of that
opportunity even after several
reminders from the defendant
bank and even after their formal
summary dismissals the 1st
– 8th plaintiffs were
again given the opportunity to
exercise their right of appeal
in accordance with Article 17
(5) of the CBA. The said
plaintiffs again failed or
refused to avail themselves of
all these opportunities. See
exhibits J to O and further Y –
BB.”
This leads me
to the oft used omnibus ground
of appeal:
“The judgment
is against the weight of
evidence.” and
GROUND 4 of
appeal, namely,
“The learned
justices of the Court of Appeal
erred when they held that a
strike occurred at the
respondent bank’s premises on 14th
November 2007.”
It was urged
that the record does not support
the finding that the appellants
engaged in an illegal strike.
Again, I would not disturb the
findings of the learned trial
judge which was affirmed by the
appellate court as these are
clearly supported by the record.
On this issue, the learned trial
judge reasoned:
“Did the
plaintiffs do anything for which
they should be dismissed? The
defendants maintain that they
did. What they did should be
clear from the notice, for that
is what is required by Article
17. In summary it is that:-
1. They
resorted to illegal strike
action.
2. That they
were warned not to hold the
meeting on the 13th
of November 2007 which meeting
was not approved by management
and therefore unauthorized.
3. That by
their action serious
interference was caused to the
business of the Bank and
substantial loss, distress and
inconvenient to the customers
and damage to the Bank’s
reputation.
4. That their
action resulted not only in an
illegal strike but also
constitute a breach of
employment.
Did any of
these happen? According to the
plaintiffs there was a meeting
of the 14th of
November, 2007 but it was not a
strike. They met to brief
members of the results of the
negotiations. This was confirmed
by Mr. Larnyoh of the ICU, the
mother union. Kenneth Antwi
testified for the defendant. He
told the Court of dispatch of
the memo (Exhibit 1) warning the
plaintiffs not to organize the
meeting since it was
unauthorized. Management has not
approved of the meeting and that
if it came on it will lead to
disruption of the defendant’s
services and impact negatively
on the bank. According to Mr.
Antwi despite this warning the
meeting came on. Mr. Antwi in
addition testified to the
various branches that the
plaintiffs belong to, gave
details of what he saw and what
happened on that day 14th
November, 2007 at the defendant
premises. He said when he got to
the office he saw Mr. Opare
Yeboah directing other members
of the union to the Canteen. He
requested to talk to talk to him
but Mr. Yeboah told him to talk
to the Chairman of the Local
Union, Mr. Anarwat. Mr. Anarwat
was talking to some people on
the phone telling them they are
on strike. When Mr. Anarwat was
able to talk to him, he said
defendant had declared a
deadlock they therefore needed
to go on strike. Mr. Antwi told
the Court defendant Bank opens
to the public at 8.30 am and
closes at 4.30 pm. His
discussion with Mr. Anarwat was
between 8 and 8.30 am. Mr. Anwti
said they made calls to the
other branches to find out what
was happening there and the
category of staff belonging to
the Union i.e. BI and MC were
not at post. At 10.30 am there
was drumming and dancing with
lots of people around. At the
head office also all category of
BI and MC were absent. Lunch was
served them and they departed at
4.30 pm. Even though Mr. Antwi
was the only person who
testified for the defendant I
will believe his evidence. For
the authorities have emphasized
that it is the credibility of
the evidence that matters but
not the number of witnesses. We
may look at the cases of:-
1.
Logs Lumber vrs. Oppon (1977) 2
GLR 263.
2.
Kru vrs. Saoud Bros and Sons
(1975) 1 GLR 4b.
3.
Ayiwah vrs. Badu (1963) 1 GLR
86.
The Labour Act defines strike in
its interpretation section.
It states:-
“Strike means any action by two
or more workers acting in
concert which is intended by
them to restrict in any way the
services they normally provide
to the employer to diminish the
output of the service with a
view to applying coercive
pressure upon the employer, and
includes sympathy strike and
those activities commonly called
a work-to-rule, a go-slow or a
sit down strike”.
I will find
that on the 14th
November there was the gathering
at the Canteen of the defendant
by the plaintiffs and others at
which there was drumming and
dancing and that the group
dispersed at around 4.30 pm. I
will find that on that day
workers of the category BI and
MC withdrew their services in
some of the branches and head
office and these were as a
result of the actions of the
plaintiffs. The plaintiffs acted
in concert is seen from their
common stand in refusing to
respond to the letters the
defendants sent to them to
explain their conduct. In fact,
that all the plaintiffs
participated in this strike is
not doubted by their own counsel
when in cross examination he
asked:-
“Q But it was at a meeting
addressed by these 1st
to 8th plaintiffs and
also a representative of the
ICU?
A: I was not there…….”
Applying the facts of the case
to this definition of strike I
will find that indeed the
plaintiffs did instigate and
caused an illegal strike on the
14th day of November
2007. Illegal because it offends
section 168 of the Labour Act. I
find it doubtful whether
plaintiffs’ contention that
there was not a strike action
but a meeting can be a good
defence applying the facts and
circumstances of the case to the
definition of strike provided
under the Labour Act quoted
herein.”
These findings were affirmed by
the appellate court. That a
kpanglogo group was in
attendance at the bank premises
was uncontroverted. There is
also evidence on the record that
the respondent Bank’s
investigation revealed that the
illegal activity was going on in
other branches of the Bank. What
would a kpanglogo group be doing
on the premises of a bank on a
working day during working
hours, if as the appellants
would want us to believe, they
were meeting the employees
merely to brief them on ongoing
negotiations? Why did they
choose to go on with an
unauthorised meeting, in brazen
defiance of the warning
contained in Exhibit 1 that they
would be held responsible if
they failed to call off the
meeting? Management through
Exhibit 1, had instructed the
appellants to call off the
planned meeting, given the
timing, the fact that they had
not sought management’s
approval, coupled with the
obvious fact that it would lead
to a disruption of the bank’s
services. Why are they now
complaining?
GROUND 3
“The learned justices of the
Court of Appeal erred when they
held that the appellants in the
instant case did not reply to
the letter purportedly issued
under article 17 (2) of the
collective bargaining agreement
between the parties summarily
dismissing them when indeed
there is evidence on the record
that they did reply to that
letter”.
Is the exhibit H a reply? First,
I would like to reiterate that
it would be totally wrong,
indeed, unconstitutional, in my
view, to hold that a reply must
be under the hand of an affected
employee and not a legal
practitioner. Employees served
with notices of intention to
dismiss, have every
constitutional right to engage
counsel to represent their
interests, even at that stage.
The only rider is that any reply
submitted on their behalf, must
contain some minimum information
as I shall demonstrate shortly.
Therefore the legitimate
question is did the Exhibit H
reply, that is, respond to the
substantial charge laid against
the appellant employees? I
should think the Exhibit H, when
read as a whole, as we are
enjoined to, does not qualify as
a reply to the notices. I would
not attempt to lay down a hard
and fast rule as to the format
in which any purported reply
should take; or the words that
must be used in formulation of a
reply. The CBA does not impose
any such obligations on
employees and therefore it would
be unlawful to place any such
liability on them. I would be
rewriting the contract for the
parties if I did. That is
certainly not part of our remit.
Suffice it to say that it is the
substance of the written
response and not the form which
is essential. Expressed
differently, irrespective of the
format or the language used, to
qualify as a reply to a notice
given under article 17 within
the terms of the CBA, must
contain some minimum
information. It must respond
directly to the substantive
charge or charges on which the
dismissal were be based. The
employee has one month within
which the notice is deemed to
have been served on him or her
to reply. In other words, the
employee must, within one month
of receipt of the notice, state,
in writing, his or her answer,
or defence to the offence he or
she is alleged to have committed
for the Bank’s consideration and
a possible review or
confirmation of the summary
dismissal.
It is on these bases, that I
conclude that Exhibit H is not a
reply as envisaged under article
17. That the eight appellants
had no intention of replying to
the Exhibit C is borne out by
the following facts. They chose
first to sue the respondents on
22nd January 2008,
before even writing the Exhibit
H, the following day. It
certainly was within their
constitutional right to sue in
vindication of their rights, but
then that is the clearest
evidence that they had no
intention of submitting a
response or reply as understood
within the meaning of article 17
of the CBA. True, the
appellants denied the illegal
strike charge in the Exhibit H,
but they did so as an aside
only. In substance, the Exhibit
H is a letter declaring their
intention to engage respondents
in courtroom litigation. They
did not hide their intentions.
They had sued the respondents
for wrongful dismissal, and were
prepared to pursue that path,
unless as demanded by them, the
respondents withdrew the
notices. I thought this was more
of an ultimatum, than a response
to a charge. If they had
submitted a proper reply, would
the respondents have sent a
reminder?
Finally, I find no merit in the
argument that the dismissal was
unlawful, it being an act of
victimization. The appellants
contend that they were being
victimized for daring to
institute a civil action against
the respondents in relation to
what is described as an “Out of
Cycle” policy being implemented
by the respondents. The learned
trial judge’s findings and
conclusions on the question
point to a mere matter of
suspected of victimization,
nothing more. Both courts found
no positive evidence of proven
victimization, and I would
hesitate to interfere with that
finding.
I would conclude that the appeal
fails and the same must be
dismissed. I would want however
to add my voice to the appeal
made by the trial judge urging
the respondents to keep the door
of negotiations open. It would
be helpful however to remind the
appellants that it is the spirit
of humility and repentant
attitude which fling open iron
gates.
G. T. WOOD
(MRS)
CHIEF
JUSTICE
R. C.
OWUSU (MS)
JUSTICE OF
THE SUPREME COURT
J. V. M.
DOTSE
JUSTICE OF
THE SUPREME COURT
N. S.
GBADEGBE
JUSTICE OF
THE SUPREME COURT
V.
AKOTO-BAMFO, (MRS)
JUSTICE OF
THE SUPREME COURT
COUNSEL:
ALBERT ADAARE,
AGBOSU & ASSOCIATES FOR THE
PLAINTIFFS/APPELLANTS/
APPELLANTS.
CHARLES
HAYIBOR, HAYIBOR, DJARBENG & CO.
FOR THE DEFENDANT/RESPONDENT/
RESPONDENT.
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