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JUDGMENT
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SOPHIA ADINYIRA (MRS.), J.S.C.:
The Plaintiffs/Appellants
(hereinafter called the
appellants) were employed as
casual workers by Ghana
Breweries Ltd, the
Defendant/Respondent
(hereinafter called the
Respondent), in various periods
ranging between the years 1993
to April 2003. The appellants
claimed they did the same work
as the permanent workers and yet
were denied all other benefits
and allowances, which the
Respondent made available to the
regular or permanent workers
under a Collective Bargaining
Agreement (CBA). Some of these
benefits were particularised in
Paragraph 5 of the statement of
claim to include: overtime,
night allowance, annual leave,
back pay and participation in
credit and trade unions.
According to the appellants they
made several petitions to the
respondent to upgrade and make
them permanent employees without
success. They also wrote to the
Labour Office for help but to no
avail, so they instituted this
action before the High Court
(Fast Track Division) Accra,
claiming:
i. A Declaration that:
[a] The employment by the
Defendant of the Plaintiffs as
casual workers and
others as regular
workers for the same work on
different terms or
conditions of employment;
[b] The Defendant’s
failure to ensure that the
Plaintiffs received or had
adequate rest, leisure and
reasonable limitation of working
hours and
period of holidays with pay;
[c] The purported mass
termination of the plaintiffs’
appointments or
dismissal howsoever called were
wrongful, discriminatory,
unjust, unfair,
unconscionable and offend
articles 16[1], 21[1] [e] and 24
of the
Constitution of 1992 as well as
the Labour Decree 1967
[NLCD.157]; and
[d] The Plaintiff’s were
entitled to be placed on the
same terms and service
conditions as that of the other
regular workers of the
Defendant,
including, but not limited to
the full package under the CBA
and all other
benefits paid by the Defendant
to the regular workers from time
to time.
[ii] An order directed to
the Defendant to compute subject
to verification by a Court
Appointed Expert and pay to the
Plaintiffs allowances, benefits,
entitlements which were
ordinarily or otherwise
available to the regular workers
and to which they were entitled
but were denied, with interest
thereon from respective dates on
which the amounts first became
due.
[iii] An order for the
appointment of a Court Expert to
receive from the Defendant all
relevant record books and
information relating to
Plaintiffs’ entitlements,
allowances etc. for the express
purpose of computing Plaintiffs’
entitlements, allowances,
benefits or any financial
package payable or due to the
Plaintiffs in connection with
their employment;
[iv] Damages of ¢200,000,000.00
for wrongful termination of
appointment; and
[v] Further or any other orders
or Reliefs as the Honorable
Court will deem meet.
The respondent denied the claim
on the main grounds that the
appellants as casual workers
were not entitled to be upgraded
as permanent workers despite
their long stay in the company;
and that in any event they
offered them permanent service
contract in place of the
day-to-day contract subject to
routine medical examination but
they refused.
For brevity, the main issues set
down for determination at the
trial will be set out in the
course of this judgment.
At the trial the 1st
appellant gave evidence for
himself and on behalf of the
other 92 appellants. He said in
November 1992 the respondent
employed him as a casual worker
and he worked in the
respondent’s Company for about
10 years. He worked at the raw
material section until 16 March
1993 when he was transferred to
the bottling hall. He said they
worked on the same shift with
the permanent workers and did
the same work but were put on
different working conditions and
denied certain benefits as
categorized in the statement of
claim. He said “to my
understanding casual work is
brief work which is being done
daily or weekly or a period of 3
months.’ He conceded that as a
casual worker the Collective
Bargaining Agreement (CBA),
which applied to only permanent
employees, did not cover him. He
expected that after working with
the defendant for a period of 6
months, he was entitled to be
upgraded and made a permanent
staff in order to benefit from
the CBA.
The respondent gave evidence per
its Company Secretary/Legal
Adviser as DWI and the Personnel
and Training Manager as DW2.
Their evidence was to the effect
that the appellants were casual
workers and they did not do the
same work as the permanent
employees. As casual workers
they were not covered by the
CBA, which only applied to
permanent and unionized
employees.
The appellants lost the case
both at the High Court and Court
of Appeal. They have come to
this Court on the sole ground of
appeal that “the judgment was
against the weight of evidence
at the trial.” In his statement
of case, Counsel set out 4
issues to be argued under this
omnibus ground of appeal. These
are:
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“That the view formed by the
High Court and affirmed by
the Court of Appeal on the
plaintiffs’ relationship to
the CBA was against the
weight of evidence adduced
at the trial.
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The trial judge’s finding
affirmed by the Court of
Appeal that the plaintiff
were not entitled to a
graduation from casual
workers to permanent
employees nor to any relief
founded on statute was
manifestly wrong and unjust.
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The High Court and the Court
of Appeal erred in holding
that the plaintiffs were not
to be allowed any reliefs
founded on the statutes
cited because the pleadings
were contrary to Order 19
rule 16 of LN 140 A and/or
that a surprise would
thereby be caused to the
defendant.
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The finding by the Court of
Appeal that the plaintiffs
did not do substantially the
same work as the permanent
staff was against the
evidence led at the trial.”
For clarity in this judgment,
we do not propose to deal with
the above issues in the order
presented by counsel for the
appellants. The Court of Appeal
affirmed all the findings of
facts by the trial court except
one. We propose to deal with
this first as it raises
pertinent issues on the burden
of adducing evidence at a trial
and the role of an appellate
court in assessing findings of
facts by a trial court.
“1. THE FINDING BY THE COURT OF
APPEAL THAT THE PLAINTIFFS DID
NOT DO SUBSTANTIALLY THE SAME
WORK AS THE PERMANENT STAFF WAS
AGAINST THE EVIDENCE LED AT THE
TRIAL.”
It is a basic principle in the
law of evidence that the burden
of persuasion on proving all
facts essential to any claim
lies on whosoever is making the
claim. Section 10(1) of the
Evidence Act, 1975, Act 323
defines burden of persuasion as:
“(1) For the purposes of this
Decree, the burden of persuasion
means the obligation of a party
to establish a requisite degree
of belief concerning a fact in
the mind of the tribunal of fact
or the court.” and
Section 11
(1) defines the burden of
producing evidence as:
(1)
For the purposes of this Decree,
the burden of producing evidence
means the obligation of a party
to introduce sufficient evidence
to avoid a ruling against him on
the issue.”
The appellants by paragraph 5 of
their statement of claim pleaded
that:
“At all material times the
defendant maintained a second
stream of employees that were
categorized as regular or
permanent workers who did the
same jobs and performed the same
duties as the plaintiffs, with
the important distinction being
that, apart from basic salaries,
the plaintiffs were, for all
practical purposes, denied all
their benefits and allowances
which the defendant made
available to the regular
workers.’
This was flatly denied by the
appellant in it statement of
defence and put the appellants
to strict proof. This averment
by the appellants became one of
the crucial issues set down by
each party for determination
when directions were taken. For
purposes of clarity we have set
them out here.
Issue 1 set down by the
plaintiffs was: “Whether or not
the employment by the Defendant
of the Plaintiffs as casual
workers and others as regular
workers for the same work but
with distinct and separate terms
or conditions of
service was unlawful and
unconstitutional.”
Additional issues set down by
the defendant was: b) “whether
or not the various categories of
workers employed by the
Defendant performed the same
duties as the plaintiffs
alleged.”
c.) “Whether or not the
employment of the various
categories of Defendant’s
employees are based on terms of
employment mutually agreed upon
as averred.”
Since it was the appellants who
made this assertion, the burden
of proof was therefore on them
to prove that they did the same
work as the permanent staff. See
Section 14 of Evidence Act
supra, which provides that:
“Except as otherwise provided by
law, unless and until it is
shifted a party has the burden
of persuasion as to each fact
the existence or non-existence
of which is essential to the
claim or defence he is
asserting”.
The Ist appellant in mounting
the witness box merely repeated
Paragraph 5 of the statement of
claim without any elaboration.
Neither did he call any witness
in support of this. Counsel for
the appellant urged upon this
Court that the respondent did
not cross-examine the 1st
appellant on this bare assertion
and must therefore be deemed to
have admitted the appellants’
claim that that they did the
same work as the permanent
workers. Counsel is obviously
referring to the line of
Ghanaian authorities like
Akyea-Djamson v. Duagbor and
Others (1989-90) 1GLR 223 which
applied the dicta of Herschel
L.C. in Browne v. Dunn (1894) 6
R. 67 at 71, H.L. and of
Adumua-Bossman J.S.C. in Ayiwah
v. Badu [1963] 1 G.L.R. 86 at
95, S.C. Counsel said further
that had the 1st
appellant’s evidence been
challenged he would have called
further evidence in support. We
are not impressed by this
argument as the principle that
when a party fails to
cross-examine on an issue that
issue would be ruled against him
is not an inflexible rule. It is
trite law that a bare assertion
by a party of his pleadings in
the witness box without proof
did not shift the evidential
burden onto the other party.
Furthermore, we believe that, it
is an art of cross-examination
for a counsel to know when it is
wise to be terse in
cross-examination so that the
person being cross-examined is
not given the chance to fill in
the ‘pot holes’ in the evidence
he/she gave during examination
in chief.
In any event it is not correct
that the defendant did not
cross-examine the 1st
appellant on this issue. The Ist
appellant was cross-examined
extensively on the two
categories of workers and their
different conditions of service
in the company. He admitted that
the service conditions of the
two categories of workers were
different but claimed that after
working with the defendant
company for 6 months as casual
workers, they were entitled to
be upgraded as permanent
employees so that they could
enjoy the same privileges and
fringe benefits under the CBA.
The defendant not only
cross-examined the appellant on
this issue but also led evidence
by DW1 and DW2 (which he was
entitled to) as to the
distinction between casual
workers and permanent employees
in the company. DW2 ‘s evidence
in particular showed that the
permanent workers were usually
skilled and trained employees
who worked on the sophisticated
equipments in the brewery and
the casual workers usually did
manual work like packing crates
of bottles and sweeping the
factory floor. There was also
evidence that the appellants
were paid back pay, received
fringe benefits like medical
attention, and subsidized meals.
The trial judge in assessing the
evidence on the issue whether
the appellants did the same work
as permanent staff concluded
that:
“Defendant led sufficient
evidence for which I should find
in their favour but I am bound
by the authorities of
Akyea-Djamson v. Duagbor and
Others referred to since the
plaintiffs were not challenged
when they stated that they did
the same work with the permanent
workers.”
The Court of Appeal however set
aside this specific finding by
the trial judge for the
following reasons:
“When it comes to the finding
of the trial court that the
Appellants did the same work as
the permanent workers, it is my
opinion that the trial judge
erred in coming to that
conclusion since there was no
evidence to support that
conclusion. The Appellants
never told the trial court what
work they did as casual workers;
nor did they state what work the
permanent workers did.
The only evidence as to what
each group did, came from the
Respondents witness DW.2, but
these pieces of evidence were
never challenged. The learned
trial judge therefore should not
have come to the conclusion,
which he did and found in favour
of the appellants. We therefore
hold that the Appellants’ job
description as given by DW.2 is
quite different from that of the
permanent workers.”
Counsel for the appellants
further complained that the
respondent did not appeal
against the finding of the trial
court hence there was no basis
for the reversal of this finding
by the Court of Appeal. This is
clearly a misconception, as an
appellate court in appropriate
circumstances has the right to
interfere with the findings of
fact by a trial court, if such
findings of facts are not
supported by evidence on record.
This is trite law and therefore
we will only cite the cases of
Adokor v. Gatsi [1966] GLR 31
S.C. and Domfe v. Adu [1984-86]
1GLR 653 , where the duty of an
appellate court is well
expounded. The appellants as
aforesaid were unable to lead
sufficient evidence on this
issue to discharge the burden of
proof, which was on them. The
trial court’s reliance on the
case of Akyea-Djamson v. Duagbor
is unfortunate as the facts are
clearly distinguishable from
that of this case, and secondly
the principle enunciated in the
case of Brown v. Dunn is not
inflexible. We endorse the
finding of the Court of Appeal
that the plaintiffs did not do
substantially the same work as
the permanent staff. The appeal
fails on this ground.
2. GRADUATION FROM CASUAL TO
PERMANENT WORKER.
The appellants were demanding by
this action that having worked
for a period of more than 6
months in the respondent’s
employment as casual workers,
the respondent was obliged to
convert their status from that
of casual workers to that of
permanent employees. Their
Counsel argued that: “by
graduation from casual to
permanent status, the plaintiffs
meant nothing more than to
suggest that the defendant was
to confirm their appointments as
permanent staff after the first
6 months. The requirement by the
trial judge that an employee
must be able to point to a
contractual term assumes that
there was a written contract in
place between the parties at the
time the plaintiffs were engaged
individually. But the
overwhelming evidence was that
there was no written
contract.” Counsel conceded
that under the repealed Labour
Decree NLCD 157 that was
applicable at the time some of
the plaintiffs were employed, it
was not obligatory for an
employer to convert the status
of a casual labourer to that of
a permanent employee. We will
like to stress that the position
is the same under the current
Labour Act, 2003, Act 651, which
was in force at the time this
writ was issued. Furthermore the
Labour Act does not require that
a contract of a casual
employment shall be in writing.
See Section74 (1) which states:
“A contract of employment of a
casual worker need not be in
writing.’
So the respondent cannot be
faulted for not giving the
appellants written contracts at
the time of their employment.
Having made such a concession,
what then is the legal basis for
Counsel to claim that the
appellants ought to be graduated
to the status of permanent
employees? Counsel complained
that the trial judge looked for
evidence from a written
agreement that was non-existent
and in a statute, which had no
such provision, whereas the
evidence could be founded in the
CBA. Counsel submitted that
there was explicit provision in
the CBA “that anyone recruited
as a casual who worked in excess
of 6 months must be deemed to be
a permanent worker.” We are
completely taken aback by this
statement by counsel in the face
of the clear and unambiguous
words of Article 3(e) which
states: Apart from
casual employees, no person
shall be engaged for more than 6
months on temporary basis and
that after six (6) months such
person shall be deemed to have
become permanent.” (Emphasis
mine) This provision clearly and
explicitly does not cover casual
employees. This particular
section in our opinion applies
only to temporary workers who
are in a class different from
casual workers. The Labour Act,
recognize this distinction in
the various categories of
workers in the definition of a
worker under section 175:
"worker" means a person employed
under a contract of employment
whether on a continuous,
part-time, temporary or
casual basis.” (Emphasis
mine). In our opinion Article 3
(e) of the CBA is coterminous
with the wording and legal
position as found under section
75 (1) of the Labour Act.
Section 75 (1) states:
“A temporary worker who is
employed by the same employer
for a continuous period of six
months and more shall be treated
under this Part as a permanent
worker”.
So clearly there is no statutory
or contractual basis upon which
the appellants could anchor
their claim for graduation from
the status of casual workers to
that of permanent workers. This
ground is clearly misconceived
and therefore fails. For the
same reasons, the other
complaint that “the High Court
and the Court of Appeal erred in
holding that the plaintiffs were
not to be allowed reliefs,
founded on the statutes cited
because the pleading was
contrary to Order 19 rule 16 of
LN140A and/or that a surprise
would thereby be caused to the
respondent” is of no moment, and
hereby dismissed.
Accordingly we hold that that
the trial judge’s finding
affirmed by the Court of Appeal
that the plaintiffs were not
entitled to a graduation from
the status of casual workers to
permanent staff as valid.
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PLAINTIFFS RELATIONSHIP TO
THE CBA
The common ground in this case,
if we may repeat ourselves, is
that the appellants as casual
workers were not members of the
ICU of TUC of Ghana Breweries
Ltd and they were also not
covered by the CBA. However,
Counsel for the appellants is
urging upon this Court that, “
as a matter of law the ICU holds
a bargaining certificate to
represent all industrial workers
in the defendant’s company
without distinction as to
permanent or casual employee.
Section 10 of the Industrial
Relation Act, 1965, Act 299
provides that an agreement
concluded by a trade union
shall, so far as the terms of
the agreement permit, apply to
all workers of the class
specified in the certificate.
The class envisaged under the
CBA was the junior staff without
distinction as to casual or
permanent status. It therefore
permitted the application of its
terms to all employees including
the plaintiffs”
The respondent on the other hand
contended that casual workers
are not a class of employees
within the contemplation of the
CBA.
It is to be noted that the
Labour Act, 2003, Act 651, has
repealed the Industrial Relation
Act, and the relevant section is
now Section 105 (1) of Act 651,
which provides in similar terms
that:
“ (1) An agreement concluded by
a trade union through a standing
negotiating committee or a joint
standing negotiating committee
shall, so far as the terms of
the agreement permit, apply to
all workers of the class
specified in the
certificate.”(Emphasis ours)
It is our considered opinion
that “ all workers of the class
specified in the certificate”
refers to no other class than
members of the particular branch
of the TUC, on whose behalf a
CBA is signed. The CBA before us
was signed between the Ghana
Brewery Ltd and the Industrial
Commercial Union (ICU) of TUC
Ghana, so it will obviously
apply to only the members of the
ICU of TUC in Ghana Brewery
Ltd,, unless there is an express
provision to the contrary in the
CBA. This Court has to look at
the CBA as a whole to resolve
this issue.
In the preamble to this
particular CBA which was
tendered in evidence as Exhibit
C, it was stated that:
“This Agreement shall apply to
a) All employees in the Company
at the time of concluding and
signing the agreement. b) All
new employees taken on after the
agreement”.
We have been invited by counsel
for the appellants to interpret
the word “employee” in clauses
a) and b) of the Preamble to the
CBA to cover “all employees”
without distinction as to casual
or permanent status in the
company. We are of the opinion
that such interpretation would
lead to an absurdity, as senior
staffs and supervisors are also
permanent employees but are not
covered by the CBA. So we have
to look at the language used in
the relevant Articles in the CBA
as a whole.
Article 2(a) provides that:
For the purpose of this
Agreement
(a) “the term ‘Employee’ shall
apply to all employees covered
by this agreement”. What does
“All employee covered by this
agreement” mean? We can find
some assistance in Article 5
which states that: “ Every
employee covered by this
agreement shall be deemed to be
a member of the Union and shall
pay Union Dues uniformly leveled
against all members of the
Union”. Properly construed,
Article 5 is referring to the
class of workers who are deemed
to be members of the Union and
on whose behalf the CBA was
signed. Logically, unless a
worker is a member of the TUC he
cannot fall within the scope of
the CBA. In the respondent’s
company casual workers are not
members of the Union so they do
not automatically fall in that
class of employees covered by
the CBA as counsel for the
appellants wants us to believe.
Article 3 also provides some
guidance. It states: “(a) On
engagement of any Employee who
falls within the scope of this
Agreement, the Employer shall
furnish him with a copy of this
Agreement. (b) The employer
shall give the newly engaged
employee a letter of appointment
stating salary (starting point),
salary scale, effective date,
probation period, job title,
department assigned, (c) An
employee so engaged shall
normally undergo a probationary
period of three (3) months but
not exceeding six (6) months.
Unless informed in writing to
the contrary, the employee who
has completed his probation will
be deemed to have been confirmed
in the appointment. (d) Before a
probationer’s service is
terminated for unsatisfactory
work and conduct, his
performance should be appraised
on two occasions with a
reasonable interval in between
and the results of the
appraisals known to him, (e)
Apart from casual workers no
person shall be engaged for more
than six (6) months on temporary
basis and after six (6) months
such person shall be deemed to
have become permanent. (f) The
Union shall be informed of all
engagements involving junior
employees.”
We are inclined to agree with
counsel for the respondent that
the provisions of Article 3 can
only apply to an employee who
has applied for a permanent
position, been interviewed,
appointed on merit and given an
appointment letter, which
usually puts the person on
probation. Such mode of
appointment is in contrast to
the mode of appointment of a
casual worker, who is usually as
in this case employed on a daily
basis and is obliged to go and
come as he wished without notice
to his employer. His employer is
also not obliged to give him
notice on termination of his
contract of employment. The
evidence on record was that the
appellants were engaged on daily
basis at the gate of the
company’s premises as and when
work was available. Obviously
such casual workers employed on
daily basis cannot be given
appointment letters on a daily
basis and put on probation as
stipulated under Article 3 (c)
and (d) of the CBA. The only
understanding was that as and
when they work, they were marked
and paid daily wages, which they
collected at the end of each
month according to the number of
days they have worked. This is
the usual accepted practice of
casual labour. Neither the
employer nor the casual worker
is required to give the other
notice to terminate the contract
of employment. As a result the
reference to employees in
Articles 34, and 36 on
redundancy, resignation and
termination of contract do not
cover casual workers. The casual
worker was free to go and come
and the respondent were not
obliged to hire him for the day.
From the foregoing we hold that
the term “all employees” as used
in the preamble of the CBA and
in other Articles does not apply
to a casual worker in the
respondent’s company, but rather
applies to unionized and
permanent workers who are
members of the ICU of the TUC
branch at Ghana Breweries Ltd.
However we wish to stress that
although there is no legal
requirement that a contract of
employment of a casual worker
need be in writing, yet Section
74 (2) of the Labour Act, offers
a casual worker some protection
in the form of conditions of
employment, which every employer
is obliged to comply, and are
therefore actionable. These are:
“ A casual worker shall
(a) be given equal pay for work
of equal value for each day
worked in that organisation;
(b) have access to any necessary
medical facility made available
to the workers generally by the
employer;
(c) be entitled to be paid for
overtime work by his or her
employer in accordance with
section 35; and
(d) be paid full minimum
remuneration for each day on
which the worker attends work,
whether or not the weather
prevents the worker from
carrying on his or her normal
work and whether it is possible
or not, to arrange alternative
work for the worker on such a
day.”
These provisions are to prevent
an employer from exploiting
casual workers on the labour
market in the absence of a
written contract. The respondent
gave evidence, which showed
section 74 (2) of the Labour Act
was complied with. The
respondent paid the casual
workers wages, back pay, and
provided subsidized meals,
medical services and some
protective clothing to the
casual workers and even at the
last minute before this action
was commenced, offered written
contract of casual employment,
in the form of Exhibit D, to the
appellants but they rejected the
offer.
On the totality of the evidence
on record we do not find any
fault with the conclusion
reached by the trial court and
as affirmed by the Court of
Appeal that the CBA did not
apply to the appellants. There
is also no evidence upon which
to grant the appellants any of
their reliefs, as there is no
evidence of discrimination,
unfair treatment or
victimization or wrongful
dismissal against any of the
casual workers.
For the above reasons the appeal
fails in its entirety and it is
accordingly dismissed. The
decision of the Court of Appeal
to dismiss the appeal is hereby
affirmed. Accordingly the
judgment of the High Court is
hereby affirmed.
S.O.B. AKUFFO (MRS)
JUSTICE OF THE SUPREME COURT
S.A. BROBBEY
JUSTICE OF THE SUPREME COURT
J. ANSAH
JUSTICE OF THE SUPREME COURT
S.O.A. ADINYIRA (MRS)
JUSTICE OF THE SUPREME COURT
S.K. ASIAMAH
JUSTICE OF THE SUPREME COURT
COUNSEL:
Kweku Y. Paintsil for
Appellants.
George Agyemang-Sarpong for the
Respondent.
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