FRANCIS KENNEDY AMONI V. FOOD AND DRUGS AUTHORITY

Judgement

JUDGMENT

1] Plaintiff’s case as gleaned from his pleadings and witness statement is that he is a pharmacist and an employee of defendant. According to plaintiff, he rose through the ranks to become a Principal Regulatory Officer of the defendant but was unjustifiably demoted to the rank of Senior Regulatory Officer by defendant on disciplinary grounds.

2] Plaintiff’s further case is that he was invited to appear before a “hearing” Committee in respect of alleged unethical dealings with one of defendant’s clients. He claimed that although he objected to the inclusion of the defendant’s legal officer on the committee on the grounds of bias, she participated in the proceedings. Plaintiff further claimed that although he was informed that the committee was an Investigative Committee, after the hearing, defendant imposed sanctions on him without putting him before a disciplinary committee. The relevant sanctions were as follows;

a) Withdrawal of his position as head of departmentb) Reduction in rank from Principal to Senior Regulatory Officerc) Deferment of next promotion for an additional two yearsd) Forfeiture of end of year bonuse) Reassignment and transfer from KIA office to head officef) Signing a bond to be of good behavior

3] According to plaintiff, he was never tried for misconduct and was not given a hearing as the rules of natural justice required. Plaintiff maintained that the defendant acted arbitrarily and capriciously and that the sanctions that were imposed on him were wrongful and unlawful. He therefore sought the following reliefs;

1. A declaration that the sanctions imposed on plaintiff by defendant were unjustifiable, unfair, wrongful and unlawful
2. An order directed to defendant to restore plaintiff to plaintiff’s position ante
3. Damages
4. Costs

4] In the defendant’s statement of defence and witness statement, defendant stated that plaintiff was invited to appear before an Investigative Committee and that the object of the Investigative Committee was stated in his invitation letter. According to defendant, plaintiffs lawyer wrote to enquire abut the official complaint received against plaintiff, the jurisdiction of the committee and its composition and defendant furnished plaintiff with all the required information. Defendant further claimed that plaintiff’s objection to the participation of the head of the Legal Department was raised and resolved to the satisfaction of all the parties and that plaintiff was given a fair hearing and afforded every opportunity to tell his story. Defendant maintains it acted fairly and lawfully and therefore plaintiff has no case against it.

5] ISSUES

At the close of pleadings, the following issues were set down for trial;

1) Whether or not plaintiff appeared before a Disciplinary Committee2) Whether or not plaintiff was told the specific rules of conduct he had violated3) Whether or not defendant breached the rules of natural justice4) Whether or not the sanctions imposed on plaintiff were wrongful, unlawful and unfair5) Whether or not plaintiff was given a hearing

6] Since the plaintiff alleges wrongdoing on the part of the defendant, he has a legal burden to prove his case. (See Sections 10 and 11 of the Evidence Act, 1975 Act 323). See also the case of OKUDZETO ABLAKWA (No. 2) vs. ATTORNEY GENERAL & ANOTHER [2012] 2 SCGLR 845 at page 867 where the court explained the law governing proof when it stated that:

“If a person goes to court to make an allegation, the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted. If he fails to do that, the ruling on that allegation will go against him. Stated more explicitly, a party cannot win a case in court if the case is based on an allegation, which he fails to prove or establish…

7] Proof in law as discerned from cases such as Majolabge v Larbi (1959) GLR 190 and Zabrama v Zegbedzi (1991) 1 GLR 221 requires more than the mere of allegations. It requires producing the relevant evidence to substantiate the allegations made. See also the case of Ackah v. Pergah Transport Ltd & Ors (2010) SCGLR 728 at 736 where it was held per Adinyira JSC that:

“it is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and it includes the testimonies of the party, material witnesses, admissible hearsay, documentary and things (often described as real evidence) without which a party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the Court or tribunal of fact such as a jury”

The plaintiff therefore has a burden to adduce sufficient and credible evidence to prove his claim on a balance of probabilities.

8] In resolving the issues set down for trial, the court will take issues (1), (2) and (5) together as they relate to the question whether plaintiff was given a fair hearing by the defendant. Counsel for plaintiff submitted in his closing address that the plaintiff should have been made to appear before a Disciplinary Committee for the purpose of being afforded the opportunity to respond to the specific charges leveled against him. Counsel for defendant, on the other hand, maintained that it was not necessary for the plaintiff to have appeared before the disciplinary committee, since its mandate was merely to decide on the disciplinary sanctions to be imposed on him.

9] In the case of the Republic v. Ghana Railway Corporation; Ex parte Appiah and Another [1981] GLR 752, Twumasi J as he then was stated that;

“The core idea implicit in the natural justice principle of audi alteram partem was simply that a party ought to have reasonable notice of the case he has to meet and ought to be given the opportunity to make his statement in explanation of any question and to answer any arguments put forward against it. The principle did not require that there must be a formal trial of a specific charge akin to court proceedings as argued by counsel for the applicants”

10] In the instant case, the evidence shows that plaintiff was served with a query letter to respond to a formal complaint made against him by defendant’s client. After plaintiff had submitted his response to the query letter, he was invited to appear before an Investigative Committee and given the option to be represented by Counsel. Per defendant’s exhibit FDA 10, which is the proceedings of the Investigative Committee, in the course of the hearing, the plaintiff and his counsel were confronted with email and whatsapp correspondence exchanged between plaintiff and defendant’s client in which disclosure of certain sums of money plaintiff had allegedly received from defendant’s client to facilitate registration of its product was made. In the light of the said evidence, plaintiff’s lawyer requested for an adjournment of proceedings to enable him have conference with his client. When proceedings resumed, plaintiff offered to reconcile accounts with defendant’s client’s representative and to settle any outstanding claims. As a result of this development, the Investigative Committee concluded that plaintiff had admitted liability and adjourned to consider the sanctions to be imposed on plaintiff. Counsel for plaintiff also pleaded with the committee to temper justice with mercy.

11] From the above narration of the facts that led defendant to impose sanctions on plaintiff, it is the view of the court that through the query letter and by his appearance before the Investigative Committee, plaintiff was given reasonable notice of the complaint made against him by the defendant’s client and afforded the opportunity to present his side of the case to the Investigative Committee.

12] Indeed, under cross-examination, counsel for defendant put the following question to plaintiff;

Q: You were also made aware of the misconduct for which you were being investigated.

Plaintiff’s response was as follows;

A: Yes I was and I provided all that was required of me.

Having admitted on oath that he was made aware of the misconduct in respect of which he was investigated and that he provided all that was required of him, it appears counterintuitive for the plaintiff to claim that he was not made aware of the specific charges leveled against him merely because he did not appear before a disciplinary committee. In other words, the fact that plaintiff did not appear before a disciplinary committee did not negate the fact that he was given a fair hearing. The court therefore finds and holds that plaintiff was made aware of the specific complaint made by defendant’s client against him and was offered the opportunity to present his case. The court holds that plaintiff was given a fair hearing.

13] Issue 2: Whether or not the defendant breached the rules of natural justice.

Plaintiff claimed that in responding to his lawyer’s letter in which he requested for the mandate, composition and jurisdiction of the Investigative Committee, the defendants’ legal officer stated, among others, that “in response to your second request we wish to direct you to section 8(a) of the Labour Act 2003 Act 651 which vests in the employer the right to among others discipline the worker. Implicit in the right to discipline is the obligation to investigate a matter before exercising the given right ” According to plaintiff, the said statement was prejudicial. Plaintiff also alleged that the defendant’s legal officer told him she had finally gotten him. Plaintiff claimed that though he objected to the presence of the legal officer on the Investigative Committee on the grounds of bias, she refused to recuse herself.

14] On their part, the defendants tendered in evidence exhibit FDA 10, which was the proceedings of the Investigative Committee. The court notes that at page 2 of the proceedings, the record of plaintiff’s counsel’s objection to the participation of the defendant’s legal officer was captured in the following terms;

“ Mr Youri further raised concerns of prejudice with the Committee. In his view, his client was not likely to receive a fair hearing from the Committee. This was based on his belief that the Head of the Legal Department, also a member of the Committee initiated the process of investigation into Mr Amoni’s conduct by signing the letter dated 2nd September 2019. To his thinking this was prejudicial and likely to affect the conduct of the hearing. The Committee refused this request and after extended discussion, the meeting agreed that there was no need for the head of the Legal Department to recuse herself and so it proceeded accordingly.”

15] From the above, it is clear that the issue of bias was raised as a preliminary issue before the Committee and determined before proceedings continued. If counsel for plaintiff had felt aggrieved by the decision of the Investigative Committee on the preliminary issue, he could have registered his grievance and refused to participate in the proceedings. Having accepted the decision of the committee, and having participated fully in the proceedings, counsel for plaintiff is estopped by conduct from rehashing the same objection before this court.

16] In any case, plaintiff failed to adduce any evidence before this court from which it could be inferred that defendant’s legal officer exhibited actual bias toward him, such as evidence of defendant’s lawyer having a personal or pecuniary interest in the proceedings. See: NANA YEBOA-KODIE ASARE II AND ONE OTHER VRS: NANA KWAKU ADDAI AND 7 OTHERS (UNREPORTED) [MOTION NO: J7/20/2014], dated 12th February, 2015 wherein the Supreme Court referred to the case of R vrs: Gough [1993 AC 646] and In re medicaments and related classes of goods (No. 2) (2001) TLR 84. In the latter case, the English Court of Appeal came up with a test for determining bias. At page 85 of the report, Lord Philips stated as follows:

The court had first to ascertain all the circumstances which had the bearing on the suggestion that the judge was biased. It then had to ask whether those circumstances will lead a fair-minded and informed observer to conclude that there was real possibility, or a real danger, the two being the same, that the tribunal was biased… Thus, for bias to succeed or prevail, there must be proof of actual bias, in the form of pecuniary benefit to the Judicial Officer. It could also be proved by interest of a proprietary nature which may lead or amount to a real likelihood of bias. And it must also arise from the circumstances of the situation which a fair-minded and objective person may conclude that there was a real danger or real possibility of bias. (My emphasis).

From the above, the court finds that the plaintiff’s suspicions about defendant’s legal officer’s impartiality was insufficient to make a case of actual bias against her.

17] It is the further view of the court that the statement made by the defendant’s Legal officer to the effect that under the Labour Act, the employer had the right, among others, to discipline an employee and that implicit in the right to discipline was the obligation to investigate, was a factual and sound statement, free of any prejudice. Section 8 of the Labour Act provides that the rights of an employer include “the right to employ a worker, discipline, transfer, promote and terminate the employment of the worker.” Plaintiff’s allegation that the legal officer’s statement was prejudicial is therefore rejected.

18] Whether or not the sanctions imposed on plaintiff were wrongful, unlawful and unfair.

On this issue, Counsel for plaintiff submitted that the defendant is not a member of the Civil Service and therefore its reliance on provisions in the Civil Service Act to hold the plaintiff liable for misconduct was wrongful, unlawful and unfair. He also stated that section 69 of the Labour Act provided that an employer shall not impose a pecuniary penalty upon a worker and yet four out of the six sanctions imposed against plaintiff had the effect of depriving him of substantial amounts of money.

19] On his part, Counsel for defendant submitted that extortion was a criminal offence, while Article 284 of the 1992 Constitution proscribed conflict of interest. He further submitted that per exhibit C, plaintiff’s lawyer was informed that the defendant would draw on the Human Resource Policy and Manual for the Ghana Public Service relating to disciplinary matters. He submitted that section 9.4.8.1 (a), 9.4.8.1(c) and 9.4.9 (g) of the Human Resource Policy and Manual for the Ghana Public Services was in pari materia with sections 75(a), 75(c) and 76(f) of the Civil Service Act, 1993, PNDCL 327. He further argued that per article 190 of the 1992 Constitution the Public Service includes the Civil Service, public corporations, public services established by the constitution and other public services that parliament may by law establish. He further argued that the Food and Drugs Authority was established under the Public Health Act 2012 Act 851 as a body corporate and therefore fell under the Public Services of Ghana.

He further submitted that the defendant was entitled to apply the Human Resource Management Policy and Manual for the Ghana Public Services in the investigation and discipline of its employees. He also argued that the supervisory Ministry of the Food and Drugs Authority was the Ministry of Health which fell under the Civil Service and therefore where the Food and Drugs Authority did not have guiding documents on specific aspects of its Human Resource, it could rely on the law governing its mother ministry, that is the Civil Service Act, 1993 PNDCL 327.

20] To the mind of the court, the argument made by Counsel for plaintiff to the effect that the punishment imposed by defendant on plaintiff was wrongful and unlawful being founded on provisions of the Civil Service Act rather than the Human Resource Policy and Manual for the Public Service was at best academic.

This is because under Article 190 (1) of the 1992 Constitution, the Public Service of Ghana includes the Civil service. The Public Service is therefore, in a manner of speaking, the mother organization under which the Civil Service falls. The Ministry of Health is also under the Civil Service and the Food and Drugs Authority is an agency under the Ministry of Health.

Under cross-examination the following questions were put to defendant’s witness by counsel for plaintiff:

Q: Tell this court whether or not the FDA is part of the Civil Service of GhanaA: It is not clear whether the FDA is a Civil Service Institution or otherwise but the FDA falls under the Ministry of Health, which is a Civil Service InstitutionQ: Then you proceeded to impose sanctions based on the Civil Service Act. Has the FDA not got its own sanctions regime as a corporate body distinct from the Civil Service?A: As I have already indicated the FDA is under the jurisdiction of the Ministry of Health, which is a Civil Service Institution which is also part of the larger Public Service. So any rules that apply to the Civil Service or the Public Service applies to the FDA as well. The constitution defines the Public Service of Ghana to include the Civil Service. So the issue of whether FDA is a Civil Service or Public Service is immaterial at this point.

21] To the mind of the court, it does not appear strange for an organization, which is an agency under the Ministry of Health, to draw from provisions in the Civil Service Act or in the Human Resource Policy Manual of the Public Service in handling matters affecting its employees.

On the peculiar facts of this case, the provisions on misconduct in the Civil Service Act, which the defendant relied on in sanctioning plaintiff were materially the same as the provisions on misconduct in the Human Resource Policy Manual for the Public Service that the defendant had indicated it would rely on.

22] For the avoidance of doubt, the provisions on misconduct in the Human Resource Policy Manual for the Public Service were as follows;

“Sections 9.4.8.1 (a) (c) (d) and 9.4.9 (g) of the Human Resource Management Policy Framework provide that;Section 9.4.8.1 Misconduct“ A public servant of an organization shall be considered to have engaged in misconduct if, without reasonable cause, the public servant engages in an act which(a) amounts to a failure to perform in a proper manner, any duty imposed on that public servant ;(b) is detrimental to the effectual conduct of the functions of the organization(c) tends to bring the organization into disreputeSection 9.4.9 Types of Misconduct“ The following acts or omissions constitute misconduct by a public servant of the organization:(g) engagement in any activity outside the public servant’s official duties which is likely to lead to the public servant taking improper advantage of the position of that public servant within the organization

The provisions on misconduct in Section 75 of the Civil Service Act were also as follows;

General Misconduct“ An act done by a civil servant without reasonable cause constitutes a misconduct if the act(a) amounts to a failure to perform in a proper manner a duty imposed on that civil servant, or(b) is otherwise prejudicial to the efficient performance of the functions of the Service..”(c) tends to bring the Service into disreputeSection 76 Particular Types of Misconduct“ Without prejudice to the generality of section 75, it is misconduct for a civil servant;(f) to engage in an activity outside official duties which is likely to lead to the taking of improper advantage of the position in the Service of that Civil Servant

23] Having regard to the fact that the sections in the Civil Service Act which defendant relied on had their counterpart in the Human Resource Policy Manual of the Public Service under which the Civil Service falls, it is view of the court that defendant’s reliance on the said sections did not occasion any miscarriage of justice to the plaintiff or compromise the fairness of the proceedings.

Besides, there is overwhelming evidence before this court that the plaintiff engaged in misconduct by extorting monies from defendant’s client to facilitate registration of its product and offering to waive the requirement for a toxicity report knowing very well that it was an essential requirement for registration of products.

To declare the sanctions imposed on plaintiff unlawful and wrongful merely because they were imposed under the Civil Service Act when the said provisions were materially the same as provisions in the Human Resource Policy Manual of the Public Service, would amount to a slap in the face of justice. The court rejects this invitation.

24] The above notwithstanding, it is important for legal officers of public organizations to be diligent and meticulous when it comes to disciplinary issues affecting employees.

25] Finally, Counsel for plaintiff submitted that section 69(2)(a) of the Labour Act, Act 651 states unequivocally that an employer shall not “impose a pecuniary penalty upon a worker for any cause whatsoever.” He argued that the import of the said provision was that if an employer insisted on any such punishment, that punishment should never touch the earnings of the worker. Therefore, the sanctions imposed on the plaintiff were wrongful, illegal and unfair.

It is the view of the court, from a textual interpretation of section 69(2) of the Labour Act, that a pecuniary punishment would involve a diminution in an employee’s salary while the employee was on the same rank but where the employee had been reduced in rank on disciplinary grounds, it followed automatically that the employee would receive the salary corresponding to the lower rank.

26] To argue that an employee who has been reduced in rank on disciplinary grounds has a right to remain on his previous salary is simply absurd. Equally absurd would it be to argue that an employer does not have the right to demote an employee on disciplinary grounds. Under the Labour Act and at common law, the right of an employer to discipline its employees to the point of dismissal is recognized. See: Kobea vs. Tema Oil Refinery [2003-2004] 2 SCGLR 1033 at page 1039 where it was stated that;

“... At common law, an employer may dismiss an employee for many reasons such as misconduct, substantial negligence, dishonesty, etc... these acts may be said to constitute such a breach of duty by the employee as to preclude the further satisfactory continuance of the contract of employment as repudiated by the employee... there is no fixed rule of law defining the degree of misconduct that would justify dismissal.”

See also Lagudah vs Ghana Commercial Bank Limited [2005-2006] SCGLR 388, where Badoo JSC stated that:

“an employer has the right to summarily dismiss an employee whose conduct is incompatible with the due or faithful discharge of his duties.”

This court therefore holds that section 69(2) of the Labour Act 2003, Act 651 is inapplicable to the facts of this case.

27] Having regard to the totality of the evidence before it, the court finds no merit in the plaintiff’s claim and same is dismissed.

28] Costs of GHC5,000 awarded against plaintiff in favour of defendant.

BARBARA TETTEH-CHARWAY (MRS)

JUSTICE OF THE HIGH COURT