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JUDGMENT
BAMFORD-ADDO, J.S.C.:
This is an appeal from the
decision of the Court of Appeal
dated 14th December 2002 which
dismissed on Appeal brought to
the said Court from a decision
of the Trial High Court dated
28th July 1999.
The Plaintiff appellant herein
was an employee of the State
Transport Corporation i.e
Defendant/Respondent herein. On
the 30th November 1989, a letter
terminating Appellant's
appointment was written to her
Titled:
"Termination of
Appointment:-Redeployment
Exercise."
The letter stated that in view
of a restructuring exercise
taking place at the time by the
Corporation Appellant's services
was no longer required and
therefore terminated her
appointment with full benefits
with effect from 1st December
1989. She was also given three
months' salary in lieu notice,
as well as all her other
benefits.
However, on 2nd August 1995 she
sued the Respondent claiming the
following:
i) Damages for Wrongful
dismissal
ii) Further or reliefs as the
Court will deem fit.
The case was heard at the High
Court, Accra and on 28th July
1999 the said Court dismissed
her claim against Respondent in
its entirety, but made no order
as to costs.
Dissatisfied with this decision
the Appellant filed an appeal to
the Court of Appeal which
unanimously also dismissed the
Appeal resulting in this further
Appeal to this Court against the
decision of the Court of Appeal.
The only Ground of Appeal filed
is that:
"The Learned Court erred in
refusing to enquire into the
validity of the reasons given
for the termination of the
plaintiff".
But then the reason was given as
Redeployment exercise and
despite this even though the
Appellant did not plead the
terms of her employment in her
statement of claim, she averred
that the termination of her
employment was unlawful and
asked for damages. In an action
for damages for wrongful
dismissal the onus lies on the
Plaintiff or employee to prove
that the dismissal was wrong,
and it is then for the Defendant
to prove that the action was
justifiable and not wrongful. If
Plaintiff fails to discharge the
onus of proof which lies on her
she cannot succeed in her claim
and the action has to be
dismissed as was done in this
case. See the case of Morgan and
Others V. Parkinson Howard Ltd
[1961] 1 GLR 68 at 70 holding 1.
(1) "In a claim for wrongful
dismissal the plaintiff must
prove the terms of his
employment and then prove that
his dismissal is in breach of
the said terms or that it
contravenes some statutory
provision for the time being
regulating employment."
See also in Sarfo V. A. Lang
Ltd.[19781 I GLR 142. Holding
(1) which stated as follows:
"In a claim for wrongful
dismissal a plaintiff would only
succeed if he could prove the
terms of his employment and then
prove either that the
determination of the employment
was in breach of the terms of
his agreement or that the
determination was in
contravention of the statutory
provision for the time being
regulating the employment. In
the instant case the Plaintiff's
failure to prove that the
dismissal was in breach of the
terms of their collective
agreement or any other terms of
his appointment was fatal to his
claim."
Also in African Association,
Ltd. and Allen (1910) IKB 396,
there was an agreement for
employment of a clerk for two
years in Africa at an agreed
salary, between the employers
and employee. They were
permitted in the agreement to
terminate the engagement at any
time at their absolute
discretion at any earlier date
than that specified in the
agreement if they desired to do
so.
However, it was held that " The
power to terminate the
engagement at an earlier date
than that specified could only
be exercised after giving
reasonable notice".
The position at law is that in
any case, the termination of a
contract of employment requires
that relevant notice if
stipulated in the contract be
given, if not so specified, then
"reasonable notice" is required
to be given to the other side,
or payment of salary in lieu of
notice. This obligation for
giving notice falls on either
party, and is a pre-requisite to
a lawful termination, and except
where to contract is governed by
specific requirement or
Convention no reasons need be
given. Therefore either party,
employer and employee alike, in
the absence of any express or
implied agreement to the
contrary, can terminate a
contract of employment upon
giving notice normally 3 months
notice or payment of salary in
lieu notice, without giving
reasons for the termination.
Further of Aryee v. State
Transport Corporation (1984-86)
GLRD 50 Page 111 C.A.,
It was held in holding (1) "
that a contract of service was
not a contract of servitude ...
The employee, was not the
servant in the popular sense, of
the employer. He was merely his
employee. The contract was
framed in such a way that either
party might bring it to an end
and free himself from the
relationship painlessly. In this
case, the appellant could at
anytime, give the relevant three
months notice or forfeit an
equivalent in salary and leave
the corporation without
justifying his action to the
corporation. In the same way the
corporation need not assign any
reason for choosing to terminate
their contract with the
defendant".
Since there is no need to give
reasons, as stated above the
fact that reasons are given or
not did not detract in any way
from the validity of a lawful
termination. For this reason
there is no necessity for
enquiring into reasons for the
termination of Applicants
appointment by the Court. The
appellant's ground of appeal is
therefore misconceived and
devoid of any merit. The Court
of Appeal dismissed the Appeal
after considering this issue see
P.80 of the Record where in the
judgment of Mrs. Wood JA. ( as
she then was) dealt correctly
and adequately dealt with this
issue. She said:—
"The position of the law as I
see it is that it is dearly
implicit in this right to
terminate, that the party
terminating the Contract need
not assign reasons for the said
termination".
In any case Appellant's claim
for wrongful dismissal failed
and was dismissed by the Court
of Appeal, which supported the
trial High Courts' finding that
Plaintiff had not adequately
proved her case of unlawful
termination of contract by her
employer. All that the
Respondent had to do to
terminate Appellant's employment
was to give reasonable notice
i.e three months' notice or
salary in lieu of notice, which
the Respondent did, and coupled
with the necessity for
termination for the reasons of
Redeployment exercise in the
Corporation, Appellants failed
to prove successfully that the
termination of her appointment
was unlawful and unjustified.
In view of the above therefore,
it is my opinion that the
Appellants' appeal to this Court
is unmeritorious and should be
dismissed.
J. BAMFORD-ADDO (MRS.)
JUSTICE OF THE SUPREME COURT
D.K AFREH
JUSTICE OF THE SUPREME COURT
BADDOO
JUSTICE OF THE SUPREME COURT
DR. SETH TWUM
JUSTICE OF THE SUPREME COURT
ADZOE, J.S.C.:
The plaintiff was an employee of
the defendant corporation. She
had been employed in March 1973
as an Accountant. She was later
transferred to the
administration department as the
Managing Director's personal
assistant or secretary, in about
1980. In a letter dated 30th
November, 1989 the defendant
informed the plaintiff that her
appointment was being terminated
with effect from Ist December,
1989. The letter was headed:
Termination of Appointment -
Redeployment Exercise. Paragraph
1 thereof read:
"In view of the restructuring
exercise currently taking place
in the Organisation, you have
been identified as one whose
services will no longer be
required".
The Plaintiff was not satisfied.
On 4th January, 1990 she wrote
to the Managing Director of the
defendant imploring him to "take
a second look at the decision to
terminate my appointment". The
Managing Director wrote back on
5th February, 1990 and indicated
that the redeployment exercise
had received the "endorsement of
the National Committee" which
ostensibly was the National
Redeployment Committee. The
plaintiff then petitioned the
PNDC Secretary for Mobilisation
and Social Welfare whose
re-action was to refer the
plaintiff's complaints to the
Labour Department for
investigations. The Chief Labour
Officer called for the
Redeployment Committee's
Appraisal Report which guided
Management of the defendant to
embark on the redeployment
exercise. The Appraisal Report
which was sent to the Chief
Labour Officer showed a list of
about eighty-two employees of
the defendant who were to be
affected in the redeployment.
Eighty of those employees
appeared to be junior staff
members. Only two were described
as senior staff members; they
were the plaintiff and one Mr.
J.K. Anokye of Stores. He was to
be redeployed on ground of "poor
health", but plaintiff was said
to be "under utilised". In fact
the document also showed that
most of the junior staff on the
redeployment list were also
being laid off because they were
"under utilised". Some were
going because of "poor
performance", "drunkenness",
"inefficiency" and "old age".
This list was made available to
the plaintiff in May, 1992.
In April, 1994, the plaintiff
petitioned the Commission on
Human Rights and Administrative
Justice. Her case all along was
that her re-deployment on
grounds of under-utilisation was
mala fide and orchestrated by
the defendant's Greater Accra
Regional Manager to settle
personal scores with her. This
petition to the Commission on
Human Rights and Administrative
Justice, like its predecessors,
was dismissed because there did
not seem to be any merit in her
protestations that she was
merely being victimised. The
ultimate result was that the
plaintiff decided to go to
court. On 8th February, 1995 she
issued a writ at the High Court
in Accra claiming against the
defendant the following relief,
namely:
1. Damages for wrongful
dismissal
2. Further or other reliefs as
[to] the court will deem fit.
Paragraphs 2 and 3 of her
statement of claim said:
2. On or about 30th November,
1989, the defendant corporation
unjustifiably dispensed with the
services of the plaintiff, the
plaintiff having worked with the
Defendants for well over 15
years.
3. The plaintiff says that at
the time when her services were
dispensed with she had been
recommended for promotion to the
grade of Principal
Administrative Officer of the
Corporation.
The defendant in the statement
of Defence admitted terminating
the plaintiff's appointment but
said that the termination was
not wrongful or unlawful because
it was done in "accordance with
the Collective Agreement"
between the defendant and the
workers union of which the
plaintiff was a member.
According to the defendant that
collective agreement empowered
it to "dismiss" the plaintiff
"summarily without giving
reasons".
There is one bizarre aspect of
this case. The parties, upon
the pleading, agreed that the
central issue for determination
was, as set out in the Summons
for Directions, this:
Whether or not the plaintiff was
terminated in accordance with
the collective agreement in
force between the defendant
corporation and the General
Transport Petroleum and Chemical
Workers Union the TUC, Ghana".
But the trial took a different
turn. The issue set out in the
summons was not dealt with at
all. The parties did not address
their mind to the Collective
Agreement; no such agreement was
even tendered. The letter
terminating the appointment
became the fulcrum of the
litigation, and the redeployment
exercise and the plaintiff's
under-utilization were the only
issues dealt with.
The High Court tried the case
and dismissed the plaintiffs
claim. The learned trial High
Court Judge concluded his
judgment as follows:—
"... I hold that taking the
evidence of the plaintiff and
that of the witness for
defendant, coupled with the
exhibits tendered by both
parties, there was nothing wrong
in the redeployment exercise
embarked upon by defendant and
which affected not only
plaintiff but several others in
defendant corporation.
Accordingly I hold that
plaintiff was not victimised in
any way. Her claim against
defendant corporation is
dismissed in its entirety".
The plaintiff appealed to the
Court of Appeal and argued two
grounds, that:
1. The learned judge erred in
even considering the decision
delivered by the Commission on
Human Rights and Administrative
Justice and basing his judgment
on it.
2. The learned trial judged
erred in law in failing to
consider the fairness of the
reasons given for termination of
plaintiff/appellant in the
redeployment exercise.
The Court of Appeal (three
judges) unanimously dismissed
the appeal mainly on the ground
that the plaintiff had failed to
establish that by the terms of
her contract of employment, the
defendant was obliged to assign
reasons for terminating the
appointment, and, in any case,
the defendant's reason that the
termination was the result of a
redeployment exercise was
sufficient.
The present ground of appeal
against the Court of Appeal
decision is expressed in a
language similar to the ground
urged on the Court of Appeal. It
is this:
"The learned court erred in
refusing to inquire into the
validity of the reasons given
for termination of plaintiff".
May I remark that counsel for
the plaintiff in his written
submission has sought to
re-formulate his ground of
appeal to read:
"That both the trial judge and
the Court of Appeal erred in law
in failing to consider the
reasons given for the
termination of
plaintiff/appellant's
appointment in the
redeployment".
I am making this observation
because I have realised that
many lawyers who appear before
this court these days, in
complete disregard for rule 6(6)
of the Supreme Court Rules,
1966, C.I. 16, do not stick to
the text of the ground of appeal
filed by them; a day may come
when counsel may not be
permitted to argued his appeal
because the ground he intends to
argue differs essentially from
the ground filed by him. In the
instant appeal counsel is lucky
that the import of his two
versions of ground of appeal is
the same.
That said, what does the
appellant want? She appears to
be saying that the courts,
including this court, must
examine the reason given by the
defendant for her redeployment
and say whether or not, on the
evidence, it was a genuine
reason for terminating her
employment.
The employee's right not to be
wrongfully or unfairly dismissed
by his employer is well
established at common law and
also by legislation. It is a
right that seeks to ensure what
is normally called "job
security". At common law the
employer was "master" and the
employee was "servant". The
relationship between the two was
described as that of master and
servant. In that relationship,
the employer as the "master" had
untrammelled powers to dismiss
the employee, the "servant", at
will, and it was difficult for
the poor servant to pursue a
claim for wrongful dismissal'.
But in April, 1919, at the Peace
Treaty of Verseilles, the
International Labour Office was
established. It is now known as
the International Labour
Organisation (I.L.O.). It is a
tripartite Organisation
comprising governments,
Representatives of employers,
and representatives of workers,
and has since its formation,
launched several conventions
that prescribe standards for
conditions regulating labour. In
principle, every member state of
I.L.O. is bound to respect the
ideals in these conventions. In
the result, the I.L.O.
Conventions have changed the
character of labour laws in many
common law jurisdictions and
discouraged summary dismissal of
employees. Since the 1970's the
common law has given way to
statutory provisions and express
contractual agreements in
regulating labour. I adverted to
this transition in my judgment
in Paul Kofi Aboagye v. Ghana
Commercial Bank (unreported):
judgment in Civil Appeal No.
10/2000 dated 28th November,
2001.
Ghana is a member of the
International Labour
Organization. It joined the
Organisation in May 1951.
Thus in Narko and Anor. v. Bank
of Ghana (1970) 1 GLR 70, at
page 77 Hayfron-Benjamin J., as
he then was, observed that:
"In the case of public
employment by the State or state
instrumentalities, or statutory
corporations, I am of the view
that the I.L.O. Recommendation
No. 119 represents the general
law".
I.L.O. Recommendation No. 119
(1963) on "Termination of
Employment" was to the effect
that the termination of
employment should not take place
unless there is a valid reason
connected with the capacity or
conduct of the worker or based
on the operational requirements
of the undertaking,
establishment or service.
Article 4 of ILO convention No.
158 (1982) concerning
termination of employment at the
instant of the employer is very
much identical with Convention
No. 119.
Insisting that the Court of
Appeal should have inquired into
the validity of the reasons
given for terminating the
plaintiff's employment, counsel
has argued several points which
must be specifically answered.
First, he says that since the
decision to terminate the
plaintiff s employment in the
redundancy exercise was a
discretionary action the court
must find out whether the
redundancy exercise was carried
out in accordance with law. He
referred us to Article 23 of the
1992 Constitution on which he
based this argument. Next, he
says that the selection of
employees to be affected by the
exercise should not have been
left to the opinion of one
person alone, but should have
been so made as to enable it to
be "objectively checked". It
appears that this argument is
directed against the Greater
Accra Regional Manager of the
defendant corporation who was
said to have recommended the
employees to be laid off,
including the plaintiff.
It should be observed that the
defendant corporation can only
act through its authorised
officers such as the Greater
Accra Regional Manager; and so
the Regional manager's
discretion is the discretion of
the corporation. What Article 23
of the 1992 Constitution
mandates is that:
"Administrative bodies and
administrative officials shall
act fairly and reasonably and
comply with the requirements
imposed on them by law and
persons aggrieved by the
exercise of such acts and
decisions shall have the right
to seek redress before a court
or other tribunal".
In the matter of termination of
employment, the relevant law in
force is section 22(2) of the
Labour Decree, 1967 (NLCD 157)
which provides that a contract
of employment may be terminated
by agreement between the
parties; we must remember that
in this country such agreements
are usually found in the
Collective Agreement between the
employee's union and the
employer, or in the contract of
employment itself.
On the issue of discretion, we
must always be cautious to
distinguish "judicial
discretion" from pure
"administrative discretion",
because it would not be
appropriate to apply the same
criteria to both classes of
discretions. Some discretions
must be exercised in a judicial
manner; some are simply of an
executive or administrative
nature. In the case of an
executive or administrative
discretion, actions are governed
by general considerations of
policy only and it becomes
difficult to measure them by
objective standards. As de Smith
puts it in his book on Judicial
Review of Administrative Action,
the legal concept of
administrative discretion
"implies power to make a choice
between two alternative courses
of action", and to "say that
somebody has a discretion
presupposes that there is no
uniquely right answer to his
problem". (see de Smith:
Judicial Review of
Administrative Action (2nd
edition, page 264).
Moreover, if the defendant had
the discretion to terminate the
plaintiffs employment in the
redeployment exercise, as
conceded by counsel, then the
defendant is the only authority
to exercise that power. The
defendant acted through the
Regional Manager and so the
discretion must be deemed to
have been properly exercised. A
mere allegation by plaintiff
that the defendant acted
arbitrarily or mala fide is not
enough in the absence of
credible and acceptable evidence
to the contrary.
The evidence is clear that the
plaintiffs redeployment was
based on the operational
requirements of the defendant
corporation. I have already
quoted the opening paragraph of
the letter terminating
plaintiffs appointment. I need
to quote it again. It reads: "In
view of the restructuring
exercise currently taking place
in the organization you have
been identified as one whose
services will no longer be
required". This is clearly
within the text of I.L.O.
recommendation 119, quoted
supra.
The intention behind ILO
recommendation 119 is that where
the employer is able to show any
of the recommended reasons as
the reason for the termination,
the dismissal may be deemed to
be prima facie fair. Explaining
the legal implications of the
recommendations in an article
headed "The Fall and Rise of
Unfair Dismissal" the author,
B.A. Hepple, observed what they
mean. He said that they mean
that:
"The employer must first show
that the principal reason for
dismissal was one of four
potentially fair reasons
(capability, conduct,
redundancy, statutory
requirement) or was some other
substantial reason of a kind
such as to justify the dismissal
of an employee holding the
position which that employee
held". [see Legal intervention
in Industrial Relations: Gains
and Losses, edited by William
McCarthy, page 79, at page 84".
There are several English
decisions which show that the
employer in such circumstances
is only required to show a set
of subjective beliefs held by
him which caused him to dismiss
the employee: See -Abernethy v.
Mott, Hay and Anderson (1974) 1
GLR 213, In determining the
question of fairness in the case
of "business re-organization",
for example, we must look at the
merits of each case and consider
the employer's responsibilities
of efficient management; that is
not to say that we must be
oblivious to the employee's
interests and his right to
protection against unscrupulous
employers.
That brings up the question
whether the courts are obliged
to inquire into the validity of
the reasons given for
terminating the plaintiff's
employment. At this stage we
need to note the difference
between the fairness of a reason
and the validity of that same
reason. The word "valid" would
suggest that the reason must be
shown to be "cogent", "good" or
"sufficient", so that if the
court is to inquire into the
validity of the reason for
terminating the employment it
must be understood that the
court is being asked to decide
whether the reason given for the
termination was good or
sufficient or lawful. On the
other hand the word "fair" would
mean "just", "honest" and
"unbiased", and an inquiry into
the fairness of the reason given
will turn on a finding whether
the reason given was the "true"
and "real" reason for the action
taken against the plaintiff. If
the defendant corporation was
re-organizing itself, then it
had a valid reason to terminate
some of its employees if
management decided to do so; and
if the under-utilisation was
given as the reason for the
defendant's action against the
plaintiff, then it could be said
to be prima facie fair until the
plaintiff established facts to
show that there was some
ulterior motive behind the
action against her. It is only
when that is established that
the fairness or genuineness of
the reason for the termination
can be displaced.
I appreciate that the plaintiff
suspected that she was
victimised, and that the
defendant merely decided to get
rid of her without good cause.
From the defendant's own
showing, the plaintiff appeared
to be a troublesome employee.
She was originally employed in
the Accounts department but was
soon sent to personnel
department "because she did not
get on well with her head of
department and colleagues". The
defendants also spoke of the
plaintiff's "unruly behaviour"
to the Acting Personnel Manager,
and of her "uncompromising
attitude". These observations
were made when the parties
appeared before the Commission
on Human Rights and
Administrative Justice, and the
plaintiff herself expressed
fears that there was "a
conspiracy against her" by the
Acting Personnel Manager, the
Regional Director and the Deputy
Managing Director. She therefore
suspected very early that the
termination of her appointment
was a reprisal against her
personally rather than a genuine
response by management to the
legitimate needs of the
defendant. She may be right but
at the trial she did not lead
any evidence to establish those
factors; she ought to have put
across her misgivings before the
trial judge and thrown a
searchlight on what she
suspected to be the defendant's
real reason for terminating the
appointment. There is nothing in
the record to assist us make the
inquiry that the plaintiff is
asking us to make; the record
contains nothing about whether
or not the defendant was
actuated by malice or
ill-feeling towards the
plaintiff. If those matters had
been fully investigated and
there is on record facts which
could have enabled the court to
judicially examine the issue
raised in this appeal, I would
have gone along with the
plaintiff. But I am handicapped.
There is nothing to hold onto to
uphold the plaintiff's
submissions and say that the
Court of Appeal should have
inquired into the genuineness of
the reasons for terminating the
plaintiff's appointment. This
court itself is not in a
position to make such an
inquiry. The issue was not
raised at the trial and the
record is silent on it. In my
opinion, it was not open to the
plaintiff to argue this new
point before the Court of Appeal
and before us now. The point
involves questions of fact which
this court as well as the Court
of Appeal is in a much less
advantageous position to
consider and resolve.
In the manner the case was
fought the onus was on the
plaintiff to show that the
decision taken by the defendant
to include the plaintiff among
those employees to be affected
by the redeployment exercise was
wrong. Otherwise, no court will
just substitute its discretion
for the discretion of the
defendant.
The plaintiff's attempt to prove
the termination wrongful was in
the plaintiffs evidence and her
counsel's arguments. They could
be particularized as follows:
(i) she was not under-utilized.
On this issue the evidence
before the Commission on Human
Rights and Administrative
Justice which was tendered in
evidence as Exhibit 3 explains
that the plaintiff was
originally employed into the
Accounts department, but had to
be transferred to Personnel
department because she was not
getting on “on well with her
head of department and her
colleagues" at the Accounts
section. She was replaced at the
Accounts section, and at the
Personnel department, her
schedule of work was "below her
qualifications" and has always
been efficiently handled by "the
clerical staff who were her
juniors". Even though the
plaintiff claimed that she had a
lot of work to do, the
defendant's stand was that
whatever work she was doing "was
meant for a junior clerical
officer and not for a senior
staff like her". Hence the
under-utilization because "her
qualification and efficiency
were over and above the duties
she was performing at the time
she was redeployed. I think that
that was sufficient
justification for the
defendant's action.
(ii) the defendant had just
recommended her for promotion
when her appointment was
terminated. I do not think that
the plaintiff can use this
recommendation against the
defendant. The defendant had
given recognition to the
plaintiff's ability and
qualifications and thought that
she deserved to climb up. But
the defendant did not think that
the promotion was of any
advantage in the defendant's
scheme of operations and so they
did not need to retain her.
(iii) The defendant terminated
the appointment without giving
any reason. This cannot be
correct or true. The letter
terminating the appointment
speaks for itself. The
plaintiff's services were no
longer required in view of the
restructuring exercise. And this
was later explained to show that
the plaintiff was
"under-utilized". How then can
plaintiff say that no reason was
given for terminating the
appointment. What is more, in
the absence of any specific
contract of employment or
Collective Agreement requiring
reasons for plaintiffs
dismissal, the courts can only
look at the Labour Decrees
applicable in this country.
Under the Labour Decree, (NLCD
157) 1967, the plaintiff was
only entitled to one month
notice or to a sum equal to the
amount of "remuneration" payable
to him during the one month
period. In the instant case the
plaintiff was even given three
months remuneration in lieu of
notice. Reasons are not
required. [see section 33(5) of
NLCD 157]. The position under
the Labour Decree, as I see it,
is that even a long-serving
employee can have his
appointment terminated without
reasons if only the employer
gives him the requisite notice.
Counsel has also urged on us
that the plaintiff's appointment
should not have been terminated
without first telling her what
was alleged against her and
hearing her defence or
explanation. He relied on Ridge
v. Baldwin (1964) AC 40. Ridge
v. Baldwin is not an authority
that the employee must be heard
in all cases before his
appointment is terminated. I
think that the principles to be
deduced from the authorities are
that (1) failure to comply with
procedure set down for dismissal
may render the dismissal
wrongful, see Narko & Anor v.
Bank of Ghana (1973) GLR 70 or
(2) where the circumstances of
the dismissal demand a
preliminary inquiry calling for
the observance of the rules of
natural justice before dismissal
and the procedure is not duly
observed, the dismissal may be
wrongful. See the recent
decision of this court in Civil
Appeal No. 10/2000 entitled Paul
Kofi Aboagye v. Ghana Commercial
Bank (supra) Blay Morkeh v.
Ghana Airways Corp. (1972) 2 GLR
254 where the plaintiff was
dismissed without being given
any opportunity to explain his
alleged unsatisfactory record
whereas the Collective Agreement
in force required that before
dismissing an employee in such
circumstances, he should be
given a written query and
allowed to submit a written
reply explaining himself. And it
must be noted that even though
the plaintiff in the Blay-Morkeh
case was dismissed in what was
termed a "re-organization" the
reason given for the dismissal
was his "unsatisfactory record"
which the collective agreement
required the employers to allow
him to explain.
The facts of Ridge & Ors. V.
Baldwin (supra) are also quite
clear. That decision turned upon
the construction of the
provisions of a statute -
section 191(4) of the Municipal
Corporation Act, 1882, and other
regulations made under the Act.
The Act provided that the
Municipal watch committee may
suspend and dismiss any borough
constable whom they think
negligent in the discharge of
his duty, or otherwise unfit for
the same. The applicant was a
chief constable of a borough
police force. He was arrested
and tried for his alleged
involvement in some crimes.
During the trial he was
suspended, but at the end of the
trial he was acquitted. He then
applied to be re-instated and
the watch committee refused. The
committee took the view that he
had beer negligent in the
discharge of his duties and so
purported to dismiss him in the
purported exercise of the powers
conferred on them by section
191(4) of the Act. No specific
charge was formulated against
him, but the letter of dismissal
recited "a general finding of
negligence and unfitness". The
Regulations made under the Act
were the Police (Discipline)
Regulations which laid down a
procedure providing for notice
of a charge being given to the
accused who must have an
opportunity of answering it. The
applicant sued for a declaration
that the purported termination
of his appointment was illegal,
ultra vires and void.
The House of Lords held that the
dismissal was a nullity. The
speeches of the Law Lords made
it clear that the procedure for
dismissal – to charge the
accused and hear him — was a
condition precedent that went to
the root of the matter, because
the regulations were drafted so
that the principles of natural
justice should be complied with,
and that they were imperative
and obligatory. The court then
noted as follows:
"The watch committee were under
a statutory obligation ... to
comply with the regulations made
under the Act. They dismissed
the appellant after finding that
he had been negligent in the
discharge of his duty. That was
a finding of guilt of the
offence of neglecting or
omitting diligently to attend to
or to carry out his duty. Yet
they had preferred no charge
against the appellant and gave
him no notice. They gave him no
opportunity to defend himself or
to be heard. Though their good
faith is in no way impugned,
they completely disregarded the
regulations and did not begin to
comply with them".
iv. Counsel has also referred us
to what he described as "the
general principles governing the
conduct of redundancy exercises"
and says that those principles
are also "stipulated in the
Collective Agreement between the
plaintiff and the defendant. He
says that the said Collective
Agreement came into force on 1st
September, 1985. I am not aware
of any such general principles
in this country. And the parties
did not produce any binding
collective Agreement which is in
the record before us. What was
tendered at the trial was a
"STATE TRANSPORT CORPORATION
SENIOR STAFF CONDITIONS OF
SERVICE" which was admitted in
evidence as Exhibit 'K'. That
document was signed by the
defendant and the Senior Staff
Association on 1st September,
1992, and Article 59 thereof
provides that "The conditions of
service shall become operative
with effect from 1st December,
1989. Exhibit 'K' cannot,
therefore, regulate the
plaintiff's employment with the
defendant. The Court of Appeal
was right in holding that
exhibit K was not applicable.
On the whole, it is my opinion
that the Court of Appeal was
right in dismissing the
plaintiff's appeal. She now
prays that we reverse that
decision and enter judgment in
her favour. That is not
possible. The appeal must be
dismissed as without merit, and
I accordingly dismiss it.
T. ADZOE
JUSTICE OF THE SUPREME COURT
COUNSEL
MR. A. K. DABI FOR APPELLANT
MR. STEPHEN AHENKORAH FOR
RESPONDENT
gso*
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