EDNA ASANTE & 2 OTHERS VRS CENTRAL UNIVERSITY

J U D G M E N T

NOVISI ARYENE JA:

This is an appeal against the judgment of the High Court (Labour and Industrial Division), which judgment was entered on 31st December 2019, in favour of Plaintiffs against Defendant. In this judgment, the parties shall maintain the designations used in the court below. That is to say that the Appellant shall be referred to as the Defendant, and the Respondents as Plaintiffs.

PLAINTIFFS’ CASE

Plaintiffs were employees of the Defendant University. 1st plaintiff was a Senior Member of the University and Head of the Library. She had been in Defendant’s employment for over twelve years. 2nd Plaintiff was the Assistant Director (Library Services) and the coordinator of Miotso Libraries. She is also a Senior Member of the University and had been in defendant’s employment for more than ten years. 3rd plaintiff was a Senior Administrative Assistant of the Defendant University and had been in defendant’s employment for over seventeen years.

The thrust of plaintiffs’ claim as can be gleaned from their Pleadings and the Witness Statement of 1st Plaintiff (who also testified on behalf of 2nd and 3rd Plaintiffs) is that, sometime between 26th and 29th of January 2018, Defendant invited Plaintiffs (together with other employees of defendant), by text messages and phone calls, to a meeting with the Registrar, the Director Human Resources and the Chaplain of the University. At that meeting, they were informed about defendant’s decision to down size its staff. In furtherance of this decision, the invited staff were given documents described as Mutual Separation Agreement, already signed by the Registrar of the University. They were given ultimatum to sign and submit the documents to the Registrar by 2nd of February 2018 or forfeit all their benefits and entitlements. The affected employees were also informed that their employment would end on the 31st of January 2018.

It is the case of Plaintiffs that pursuant to Defendant’s decision to lay-off affected staff after the 29th of January 2018, Defendant stopped the payment of their salaries and allowances and other benefits. Defendant also wrote a letter dated 29th of January 2018, to Managers of Plaintiffs’ Provident Fund, informing them that Plaintiffs were no longer employees of Defendant University and requested the redemption of their contributions. Defendant also instructed health facilities (which Plaintiffs attended by virtue of their employment with Defendant), to stop attending to Plaintiffs in the name of Defendant. 1st Plaintiff was also asked to handover her schedule as Head of the Library to the Registrar.

Plaintiffs contended further that despite being informed at the 29th January meeting that 31st January 2018 was their last day at work, and regardless of not paying Plaintiffs in February, Defendant wrote a letter dated 5th March 2018, threatening to apply sanctions against Plaintiffs if they failed to report to work. Plaintiffs averred that the said letter which was written after their lawyers had written to Defendant describing the termination of their appointments as malicious, wrongful and illegal, and after Plaintiffs had also rejected Defendant’s proposed enhanced package, was in bad faith. And that the correspondence between their lawyers and Defendant’s lawyers after the wrongful termination of their appointment, would show that Defendant never denied terminating their employment.

1st and 2nd Plaintiffs further contended that the University Library was understaffed and as Head and Deputy Head respectively of defendant’s Library, they requested for more staff in the Efficiency List sent to the Registrar as a result of which they have been victimized.

It is also the case of Plaintiffs that the whole exercise of disengaging Plaintiffs was unlawful and illegal as Defendant failed comply with section 65 of the Labour Act 2003, (Act 651).

RELIEFS ENDORSED ON THE WRIT OF SUMMONS

i.        A declaration that the process by which the defendant declared the plaintiffs redundant is wrongful and illegal, null and void and of no legal effect.

ii.        A further declaration that by the proper interpretation and meaning of section 65 of the Labour Act, 2003 (Act 651), the Defendant is to provide the Chief Labour Officer three (3) months prior notice of the defendant’s decision to declare the Plaintiffs redundant with all relevant information and reasons for declaring the Plaintiffs redundant.

iii.        A declaration that by the proper interpretation and meaning of the Labour Act 2003, Act 651, the Defendant is to negotiate the redundancy packages with the Plaintiffs or their dully accredited agents.

iv.        An order directed at the defendant to negotiate the redundancy packages with the Plaintiffs or their duly accredited agents or in the alternative pay the Plaintiffs three (3) month’s salary in every year the Plaintiffs served the Defendant’s University, as the Plaintiff’s redundancy packages

v.        Damages for wrongful termination of the Plaintiff’s appointments by the Defendant.

vi.        An order directed at the Defendant to pay all salaries, allowances, and increments to the Plaintiffs for the period of their wrongful and illegal termination till the date of judgment.

vii.        An order directed at the Plaintiffs to pay the 1st and 2nd Plaintiffs their 2016/2017 and 2017/2018 research allowances.

viii.        A further order directed at the Defendant to furnish the Plaintiffs with a statement of accounts on the Plaintiffs provident fund contributions and the University Tier 2 Pension Scheme contributions.

ix.        An order of injunction restraining the Defendant from deducting any monies from the Plaintiff’s provident fund and the University Tier 2 Pension Scheme contributions.

x.        Any other reliefs found due.

DEFENDANT’S CASE

The Defendant denied that Plaintiffs were declared redundant or that their appointments were terminated and put them to strict proof. The defence of the Defendant as per its Statement of Defence and Witness Statement is that, the decision to lay-off staff was triggered by the need to reduce the University’s huge wage bill. In furtherance of this decision, an invitation for voluntary exit was first made to a cross section of staff of the University, but only fifteen workers opted for same. Accordingly, Deans and Directors of the various Faculties of the University were directed to submit an Efficiency List of workers in their respective Departments for consideration for voluntary retrenchment.

It was this category of staff who were invited to a meeting and informed about the defendant’s decision to lay-off staff. They were also informed about the package being offered to members who would opt for voluntary exit. Invitees were given draft copies of the Separation Agreement which contained the mode for computing the packages. They were asked to study same and communicate their decision on the offer to the

Registrar by 2nd of February 2018. Affected staff were also informed that 31st January 2018, would be the last day of work for those who accepted the offer.

In further defence of the claim, Defendant averred that the separation agreement purportedly signed by the Registrar of the defendant which Plaintiffs is grounding the wrongful termination on, is a draft agreement and that all the workers who were invited to the meeting (including plaintiffs), took away the draft separation agreement for study as directed. And that thirty-eight workers accepted the package and have since been paid off. Three staff members communicated their rejection of the package to the Registrar and with the exception of one who left at the end of February, the two have remained in defendant’s employment.

Plaintiffs on the other hand, failed to communicate their rejection of the offer to defendant and rather chose to stay away from work and engaged lawyers to demand an enhanced package for their lay-off. When Plaintiffs failed to communicate the rejection of the offer and continued to stay away from work, defendant withheld their February salary, and on 5th of March 2018, wrote to them reminding them of applicable sanctions on absenteeism. Plaintiffs did not respond to this letter and rather instituted the instant action.

Defendant denied the alleged victimization and also denied giving any instruction to Managers of Plaintiffs’ Provident Fund or health facilities as alleged. It also denied asking 1st Plaintiff to handover her schedule to the Register. It is the case of defendant that Plaintiffs abandoned their post and are not entitled to their claim.

JUDGMENT OF THE TRIAL COURT

On 31st October 2019, the trial court entered judgment in favour of plaintiffs, holding that their appointments were constructively terminated, thereby entitling Plaintiffs to damages for breach of contract. Defendant was ordered to pay Plaintiffs their salaries, allowances and increments for the period of their wrongful termination from February 2018 to October 2019. The court further ordered payment of Research Allowances to 1st and 2nd Plaintiffs for the 2016/2017 and 2017/2018 Academic Years. Defendant was also restrained from deducting any moneys from Plaintiffs’ Provident Fund and the University Tier 2 Pension Scheme. It was further ordered that Plaintiffs be furnished with their statement of accounts for the provident fund and Tier 2 Pension Scheme and paid less any legitimate moneys they may owe defendant.

THE APPEAL

Dissatisfied with the decision, Defendant is before us per Notice of Appeal filed on the 26th of November 2019, praying that the judgment to be set aside and a Ruling that Defendant had not terminated Plaintiffs’ employment, and that Plaintiffs vacated their posts, entered in its favour.

The judgment is assailed under eighteen grounds of appeal as follows:

I.        The Judgment is against the weight of evidence.

II.        That the learned trial judge erred in law by substituting a case proprio motu for the Plaintiffs that the judgment in favour of the Plaintiffs turned largely on a finding by the learned trial judge that Plaintiffs appointments were constructively terminated by the Defendant when that was not the case put up by the Plaintiffs.

III.        The court erred when it failed to appreciate and accept the fact that some staff members accepted the Defendant’s package and consented to be laid off whilst others refused to sign and so did not agree or consent to be laid off.

IV.        The court erred when it found in favour of Plaintiffs that Defendant told Plaintiffs that 31st January 2018 was their last day of work despite the denial by the Defendant.

V. The court erred when it found in favour of the Plaintiffs that Defendant caused the Plaintiffs to be denied medical treatment that was ordinarily given to the by virtue of their employment.

VI.          The court erred in its view that because the Defendant did not reach out to Plaintiffs when Plaintiffs were at home, but waited till end of month and stopped the payment of salaries, Defendant did not consider Plaintiffs to be workers of the Defendant.

VII.          The awards made by the court is not supported by any principle of law.

VIII.            The court erred in holding that the Defendant could have gone after the Plaintiff when the Plaintiff decided to stay at home.

IX.           The court erred when it accepted the Plaintiffs submission that Defendant per their defence never denied that they declared Plaintiffs redundant.

X.       That the court erred in its inference that Exh 2 was in respect of Plaintiffs when same was not supported by the evidence on record.

XI.       That the court erred in treating Defendant’s reason for deciding to reduce staff as evidence of Defendant not having given Plaintiffs any options to remain in Defendant’s employment.

XII.       That the court erred in coming to the opinion or view that from the circumstances of the case, the staff would have to go home to balance the wage bill of the Defendant.

XIII.            The court erred in its conclusion that Plaintiffs and the other staff who did not sign the separation agreement and agree to leave were not going to be allowed to stay was not backed by the evidence on record.

XV.              The court erred in not accepting Defendant’s view that once Plaintiffs did not sign, they remained staff of the Defendant’s institution.

XVI.          The court erred in holding that the Defendant’s letter of 5th March 2018 was in bad faith.

XVI.          That the court erred in holding that the Defendant/Appellant had constructively terminated the employment.

XVII.          That the finding of fact by the trial court, that Defendant sought to terminate the employment of the workers earmarked for lay-off through a mutual agreement instead of going the way of redundancy was not supported by the evidence on record.

XVIII.            The judge erred in law when it placed the burden of prove on the Defendant that Defendant had to prove and satisfy the court that the staff and other workers who did not sign the separation agreement were going to be allowed to stay.

COMMENTS ON GROUNDS OF APPEAL

Before our discourse on the issues this court has been invited to consider in this appeal, permit me to comment on the grounds of appeal as filed.

Rule 8 of the Court Of Appeal Rules, 1997 (C.I. 19) as amended provides inter alia:

(4)          Where the grounds of an appeal allege misdirection or error in law, particulars of the misdirection or error shall be clearly stated.

(5)          The grounds of appeal shall set out concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.

(6)          No ground which is vague or general in terms or which discloses no reasonable ground of appeal shall be permitted, except the general ground that the judgment is against the weight of the evidence; and any ground of appeal or any part of the appeal which is not permitted under this rule may be struck out by the Court of its own motion or on application by the respondent.

Applying the Rule in a line of cases including Ofosu -Addo v Graphic Communications Group ltd [2011] 1 SCGLR 355, the apex court cautioned that any ground of appeal which violates the spirit of Rule 8, would be struck out.

When the above eighteen grounds of appeal are subjected to forensic examination under the Rules, it would be revealed that only ground (i) passes the test. It is our view that grounds iii, v, vi, viii, ix, xiii and xvii are not only narrative but could conveniently have been argued under the omnibus ground of appeal. We also observe that contrary to the Rules, no particulars of error were provided for grounds ii, iv, v, vii, viii, ix, xi, xii, xv, and xviii where errors of law and/or fact were alleged. Most likely, becoming aware of the defect, counsel decided to argue only grounds (i) and (xvi) of the appeal.

Although particulars of error were not provided for in ground xvi, we are of the view that the alleged error can sufficiently be inferred from the couching of the ground of appeal which in our view is the thrust of the instant appeal. More importantly on authority of Zambrama v Segbedzi [1991] 2 GLR 221, where it was ruled that the rationale for the requirement that particulars of misdirection be provided where error of law or of fact is alleged, is that “a person who was brought to an appellate forum to maintain or defend a verdict or decision which he had got in his favour should understand on what ground it was being impugned” it is our view that counsel for respondent perfectly understood the legal issues raised in that ground of the appeal and adequately responded to same in his written submissions. For that reason we admit the ground for consideration in this appeal.

GROUND (i)

SUBMISSIONS BY COUNSEL FOR DEFENDANT

Arguing this ground of the appeal, counsel for Defendant submitted that having denied terminating Plaintiffs’ appointment or declaring them redundant as alleged, the onus was on Plaintiffs to establish their claims on a balance of probabilities and that Plaintiffs failed to discharge this burden.

Counsel continued that Plaintiffs failed to produce evidence in support of their averment that they were asked not to come to work after the 31st January 2018, and that the court failed to make a determination on the issue. Counsel submitted that the inference by the court that exhibit 2, a letter dated 29th January 2018 and headed “Request for 100% withdrawal of Provident Fund Contributions” “was more probably than not in reference to Plaintiffs also………” was not supported by the evidence. And that the said letter which was for the redemption of contributions of listed staff as at 31st of December 2017, had nothing to do with Plaintiffs, and was in respect of staff who were no longer in the employment of Defendant.

Counsel argued further that that the separation agreement, exhibit B which Plaintiffs relied on in support of the alleged wrongful termination, was an incomplete document and was only a draft for the consideration of that the Plaintiffs. It was also submitted that the trial court erred in relying on non-payment of salaries to Plaintiffs for the month of February 2018, as a ground for concluding that Plaintiffs’ employment was terminated, when there was evidence that they did not go to work in February and were written to by the Defendant.

Counsel next referred us to the handing-Over Notes dated 9th February 2018, which Plaintiffs relied on in further support of their assertion that 31st January 2018 was their last day at work, and submitted that same was not signed by the Registrar, who was the Receiving Officer. Further, that although the court relied on an alleged withdrawal of health care as one of the reasons for concluding that Plaintiffs appointment was constructively terminate, no evidence of the alleged letter of withdrawal was presented in support of the averment.

Concluding his submissions on ground (i), counsel argued that the trial court ought to have ruled in favour of Defendant because Plaintiffs failed to proof the alleged wrongful termination of employment.

SUBMISSIONS IN RESPONSE

It was submitted on behalf of Plaintiffs that the appeal is without merit and ought to be dismissed. And that Defendant failed to point out the lapses in the judgment and the pieces of evidence on record which would have changed the decision of the court in their favour.

Counsel also referred us to the relevant sections of the Evidence Act, 1975 (NRCD 323) and legal authorities such as Nartey -Tokoli v Volta Aluminium Co ltd (No 2) [1989-90] 2 GLR 31 and Takoridi Flour Mills v Samir Faris [2005-2006] SCGLR 882 and African Mining Services ltd v Larbi [2010-2012] 1 GLR 579 and submitted that there was overwhelming evidence on record in support of Plaintiffs’ claim that Defendant declared them redundant and/or terminated their employment.

It was forcefully submitted that the staff rationalization exercise embarked upon by Defendant with the view to reducing the wage bill of the University, was a redundancy exercise. Accordingly failure of Defendant to comply with the procedure as stipulated in the Labour Act, made the entire exercise illegal, null and void and of no legal effect.

Referring to paragraphs 4, 5, 6, 7, 10 and 11 of the Statement of Defence, counsel submitted that Defendant never denied that Plaintiffs were invited per text messages and telephone calls to the meeting held on 29th of January 2018, and it was at that meeting that they were informed about Defendant’s decision to lay-off staff. And that Defendant did not demonstrate that it complied with the Labour Act.

Counsel relied on exhibit 2, dated 29th January 2018, and submitted that in furtherance of the termination of their employment, Defendant wrote to Plaintiffs’ Fund Managers on the same day that Defendant met Plaintiffs, to redeem their contributions. Regardless of the trial court’s finding that there was no evidence that the mutual separation agreement was imposed on the Plaintiffs, counsel laboriously argued that Defendant never led any evidence to show that they gave Plaintiffs the option to accept or reject the offer. Counsel further submitted that exhibit D, Defendant’s letter to Plaintiffs dated 5th of March 2018, was written at a time when Plaintiffs were no longer in Defendant’s employment and was therefore written in bad faith.

ANALYSIS BY THIS COURT

The duty cast on the appellate court, where an appellant alleges that the judgment was against the weight of evidence, is clearly set out in a plethora of cases. In the oft cited case of Tuakwa v Bosom [2001-2002] SCGLR 61, the Supreme Court held thus;

“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 the appellate court to evaluate the veracity or otherwise of any witness, it is incumbent upon an appellate court, in a civil case to analyze the entire records of appeal take into account the testimonies and all documentary evidence adduced at the trial before arriving at the decision, so as to satisfy itself that, on a preponderance of probabilities, the conclusions of the trial court are reasonably or amply supported by the evidence…  ”

It is also trite that a party who alleges that the judgment is against the weight of evidence, bears the burden of clearly and properly demonstrating to the appellate court the lapses in the judgment being appealed against. See Republic v Conduah; Ex Parte AABA (Subst. by Asmah [2013-2014] 2 SCGLR 1032. See also Djin v Musa Brako [2007-2008] SCGLR 686.

An assertion that a judgment is against the weight of evidence, is also an invitation to the appellate court to set side findings of fact made by the trial court. In considering this ground of the appeal, we are mindful of the principle that appellate courts must be slow in setting aside findings of fact made by the court below. This principle was espoused in the English case of Powel v Streatham Manor Nursing Home [1935] AC 243 where the Lord Chancellor delivered himself thus;

“...... The Court of Appeal will not set aside the judgment unless the appellant satisfies the

court that the learned trial judge was wrong and that his decision ought to have been the

other way.”

The principle has since been applied in a line of cases in our jurisdiction including Oxyair ltd & Darko v Wood & Ors [2005-2006] SCGLR 1057, where the Supreme Court ruled;

“It was settled law that an appellate court would presume the findings of fact of a trial court to be right, unless the presumption had been displaced by the appellant.”

See also Amoah v Lokko & Alfred Quartey, 32 GMJ page 27, SC [2011].

We are further guided in our discourse by the Rule that appeal is by way of rehearing. Elaborating on this principle in the recent case of Republic v High Court (General Jurisdiction 6); Ex parte Attorney General (Exton Cubic Interested Party) [2020] DLSC 8755, the apex court speaking through Anin-Yeboah CJ (as he then was) posited thus;

“Appeal is an application to a higher (appellate) court to correct an error which may be legal or factual. In Ghana all civil appeals are by way of rehearing and the appellate court may subject the whole record to review and may even make new findings of facts in deciding the appeal.”

In a claim of unlawful termination of employment, the onus of proof is on the party alleging same to prove, failing which the court would rule against it. See Morgan & Ors v Parkinson Howard Ltd [1961] GLR 68, where Ollennu, J (as he then was) stated the law on

unlawful termination of employment thus:

“In a claim for wrongful dismissal it is essential that the plaintiff should prove the terms of his employment and then prove either that the determination of the employment is in breach of the terms of his agreement, or that the determination is in contravention of the statutory provisions for the time being regulating employment. His claim cannot succeed if he fails to satisfy the court on these points.”

 

Accordingly, the onus is on Plaintiffs who are seeking a declaration by the court that they were declared redundant or that their appointments were wrongfully terminated, to prove same by cogent and admissible evidence.

It is significant to note that 1st Plaintiff admitted in cross examination that no letters were served on them declaring them redundant. It is also in evidence that no letter was issued to the Plaintiffs terminating their appointment.

The evidence shows that when Defendant decided to lay off staff to reduce its bloated wage bill, it made an offer of voluntary lay off to the affected staff. The evidence supports Defendant’s claim and the court’s findings that the Plaintiffs were given the option of accepting or rejecting the offer. It is also in evidence that Plaintiffs rejected the separation package and engaged counsel to negotiate for an enhanced package on their behalf.

It bears mention that redundancy is one of the grounds upon which termination of employment is deemed lawful under the Labour Act.

Although the term “Redundancy” is not explicitly defined in the Labour Act, the prerequisite for declaring redundancy are clearly stipulated thus in section 65 (1) of the Labour Act:

“When an employer contemplates the introduction of major changes in production program organization, structure or technology of an undertaking that are likely to entail terminations of employment of workers in that undertaking, the employer shall;

a)    Provide in writing to the Chief Labour Officer and the Trade Union concerned, not later than three months before the contemplated changes, all relevant information including the reasons for any termination, the number and categories of workers likely to be affected and period within which any termination is to be carried out; and

b)    Consult the Trade Union concerned on measures to be taken to avert or minimize the termination as well as measures to mitigate the adverse effects of any terminations on the workers concerned such as finding alternative employment.”

Since what constitutes redundancy has been statutorily defined in the Act, my understanding is that, for section 65 (1) of the Labour Act to apply, there must be evidence that the employer intended to or has introduced major changes in production, program, organization, structure or technology, and that the said changes occasioned the termination of the claimant’s employment.

Accordingly, to succeed, Plaintiffs must bring their claim within the ambit of the statutory definition of redundancy. They must first of all demonstrate that they have been declared redundant and that the redundancy was as a result of Defendant introducing major organizational changes. They must demonstrate that as a result of the major changes, their positions/jobs are no longer required; or that as a result of the organizational changes, less work is available hence the lay-offs; or that as a result of the major organizational changes, defendant has ceased or intends to cease to carry on the business for which plaintiffs was engaged; that Defendant intends to close down Departments or Faculties where Plaintiffs are employed or that Defendant has a reduced requirement for employees to carry out the particular work for which Plaintiffs were employed.

No evidence was led to establish that plaintiffs were declared redundant. Indeed, 1st Plaintiff admitted in cross examination that Defendant had always dealt formally with them and that they were not served with any letters declaring them redundant, or terminating their appointments.

In addressing the issue whether or not the Plaintiffs were declared redundant, the trial judge referred to section 65 of the Labour Act and some judicial authorities, and delivered herself thus at page 203 of the ROA:

“It is my considered opinion that this case calls for an attempt to find the scope of applicability of section 65 of the labour act, 2003. The question requiring the consideration of the court is whether or not the Defendant can circumvent the provisions of section 65 and resort to other means of terminating the contracts. As stated in Bani v Maersk Ghana limited [2011] 2 SCGLR 796, contracts of employment can indeed be terminated by mutual understanding of the parties. It is my candid opinion that the Labour Act while seeking to protect the rights of employees in employment contracts did not seek to take away rights enabling the parties to enter a mutual understanding terminating their contracts. Consequently, it appears to me that an employer in a situation like this can resort to having a mutual agreement with as many employees as he can to terminate their contracts of employment upon terms which are mutually agreed by the parties. However, it is worthy to note that the agreement must be mutual, an employer cannot impose those terms on the employee if he is clearly not impressed by it. However, once an employee accepts such severance package, he cannot now claim the termination was illegal.”

Upon careful consideration of the above ruling of the trial court and by virtue of section 15 (a) of the Labour Act which provides that a contract of employment may be terminated “by mutual agreement between the employer and the worker” we affirm the ruling that the Labour Act did not take away the right of mutual termination. In effect where as in the instant case, Defendant made an offer under the mutual separation agreement to Plaintiffs, it is fair to conclude that Defendant was exercising its rights under section 15

(a) of the Act.

Lay-offs have become a common place in today’s workplace, as organizations seek way to work leaner, increase efficiencies and meet fiscal budget requirements. As a result, more and more employers are resorting to voluntary separation agreements as a means of laying off staff. My research shows that like any contract, voluntary separation agreements are legally binding contracts between an employer and an employee who is leaving the company. The agreement outlines the terms and conditions of the separation which includes benefits due the employee upon separation, among others. We must be quick to add that the mode adopted to lay-off staff, must conform to the Labour Act. The parties must mutually agree on the terms of the separation package.

It is in evidence that employees included on the Efficiency List prepared by Heads of Faculties and Departments of the University, were directed to communicate their acceptance or rejection of the offer of voluntary separation to the Registrar by 2nd of February 2018. It is critical for Plaintiffs who are asserting that Defendant told them that 31st of January was their last day in office, to produce sufficient evidence on the issue or be ruled against.

As the trial court rightly found at page 205 of the ROA, the mutual separation agreement was not imposed on Plaintiffs. The trial court however failed to ascertain whether Plaintiffs were told not to come to work after 31st of January as alleged. Since Plaintiffs’ claim of wrongful termination of appointment is grounded partly on an alleged imposition of the mutual separation agreement on them, a resolution of that issue, in our view, would assist in determining whether or not they were told that 31st January was their last day in office. No evidence was produced in support of the assertion, accordingly, the onus never shifted to the defendant to rebut same.

A careful reading of the Separation Agreement tendered in evidence as exhibit B, however, makes Defendant’s testimony that the exhibit was for the study of the Plaintiffs, more probable and therefore preferable and the trial court so held. Not only did plaintiff fail to demonstrate that exhibit B was foisted on them, but bearing in mind that it is the plaintiffs’ case that 31st January 2018 was their last day in office, it is significant to note that the exhibit is headed “CENTRAL UNIVERSITY SEPARATION AGREEMENT AND MUTUAL RELEASE OCTOBER 2017.” The agreement also states in paragraph 1 that the employees’ last day of employment shall be 30th September 2018. It is further provided in paragraph 3 that notice of termination was effective 30th September 2017. It is further provided in paragraph 7 that all properties shall be returned to the Registrar by 10th of October 2017.

Obviously, if Plaintiffs were given exhibit B, then given the terms thereof and more importantly the fact that the exhibit did not bear the names of Plaintiffs nor the quantum of the separation package, a fair inference is that exhibit B was for the study of affected staff, to enable them make informed decisions as to whether to accept or reject the offer as defendant told the court.

As regards whether Plaintiffs accepted or rejected the offer, it is significant to note that Defendant’s representative admitted in cross examination that prior to Defendant writing the letter dated 5th March 2018, Plaintiffs had indicated to Defendant through their lawyers that the quantum of the separation package was unacceptable to them. See page 106 of the ROA.

The question which falls for determination at this stage is whether having rejected the offer, it was within the rights of the Plaintiffs to negotiate the terms of the separation package. In answering this question, we are guided by the unreported Supreme Court case of Janet Doe v SSNIT, & The Trust Hospital limited. Civil Appeal No J/13/2016 dated 20th December 2017, where the 1st Defendant included the Plaintiff in the compulsory redundancy package without her consent. The Supreme Court ruled that as an employee and a citizen of this country, it was within the Plaintiff’s right to evince a contrary opinion about the redundancy package. And that she ought not to be penalized for engaging counsel to write to Defendant complaining about the package.

Where as in the instant case, Plaintiffs were identified for consideration for lay-off (as per the Efficiency List referred to in paragraph 6 of the statement of defence), we rule that it was within their right to negotiate the terms of the separation package. And the fact that they were given the option of accepting or rejecting the offer, does not take away their right to negotiate the terms of the separation package.

Having said that, it is our view that in the absence of a letter declaring Plaintiffs redundant or terminating their appointment, Plaintiffs are deemed by virtue of their contract of employment, as still in Defendant’s employment and ought to have reported to work. On the totality of evidence adduced at the trial, it is our view that Plaintiffs who brought Defendant to court on an alleged wrongful termination of appointment failed to discharge the burden of proof.

It is the law that where Plaintiff’s claim is denied, he carries the burden to lead sufficient evidence to prove his claim against the Defendant on a balance of probabilities. This position of the law was succinctly stated in Barima Gyamfi & Anor v. Ama Badu (1963) 2 GLR 596 (holding 1) thus,

“In a claim made by a plaintiff, there is no onus on the defendant to disprove the claim so that however unsatisfactory or conflicting the defendant's evidence may be, it cannot avail the plaintiff. The evidence of the defence only becomes important if it can upset the balance of probabilities which the Plaintiff’s evidence might have created in the Plaintiff's favour or if it tends to corroborate the Plaintiff's evidence or tends to show that evidence led on behalf of the Plaintiff was true. ”

See also Fosua & Adu-Poku Mensah-Ansah [2009] SCGLR 310 and Zabrama v Segbedzi [1991] 2 GLR 221.

The burden of persuasion was explained in Duah v Yorkwa [1993-94] GLR 225, by Brobbey JA to mean the quality, quantum, amount, degree or extent of evidence which a party is bound to adduce in order to satisfy the requirement in prove of a fact or situation. The burden of persuasion lies on the Plaintiffs but they failed to establish the requisite degree of belief concerning the fact of the alleged wrongful termination of employment to avoid a ruling against them on the issue.

In the circumstances, we are persuaded that the Defendant has made a case for this court to set aside the findings of the trial court on the alleged wrongful termination of appointment. We are fortified in our decision by a line of cases including Koglex Ltd vrs Field [1999-2000] 2 GLR 437, and the more recent case of Amoah v Lokko & Alfred Quartey, 32 GMJ page 27, SC [2011] where the Supreme Court outlined four instances where an appellate court may interfere with the findings of the lower court: Where the trial court has taken into account matters which were irrelevant in law; when the trial court had excluded matters which were critically necessary for consideration; when the trial court had come to a conclusion which no court properly instructing itself would have reached; and when the trial court’s findings were not proper inferences drawn from the facts. Where the findings of fact cannot be justified, or was perverse or otherwise unsupportable by the evidence on record, the appellate court may interfere with findings of fact.

On the totality of evidence adduce at the trial we hold that Plaintiffs vacated their post. Accordingly, we uphold ground (i) of the appeal and rule that the judgment was against the weight of evidence.

GROUND (xvi)

That the court erred in holding that the defendant/appellant had constructively terminated the employment.

In declaring that Plaintiffs’ employment was constructively terminated, the trial court

posited that staff of Defendant University who wanted to negotiate their terms of

separation were considered by Defendant as wanting to be laid off on their own terms. And that as a result Defendant, took certain measures which in the opinion of the court amounted to constructive termination of employment.

Since the court finally grounded its judgment on constructive termination of Plaintiffs’ employment, we would now consider whether evidence adduced at the trial supported the conclusion and whether the declaration is sound in law.

It bears mention that it was counsel for Defendant who introduced the principle of constructive termination of employment in his written address and invited the trial court at page 165 of the ROA, to rule that plaintiffs had not made a case even for constructive termination of their appointments. The trial court ruled otherwise and concluded that the facts of the case establish “a classic case of constructive termination of appointment.” The court’s decision is grounded on the following findings of fact made: That Defendant failed to write to plaintiffs when the latter did not report to work in February; non- payment of salary for the month of February, withdrawal of health care benefits; a letter for the redemption of Plaintiffs Provident Fund contributions, and request for the handing over of 1st Plaintiff’s schedule to the Registrar.

As hereinbefore discussed in this judgment, Plaintiffs failed to prove that 31st January was their last day in office. It is also in evidence that Plaintiffs did not go to work in February 2018 because they rejected the terms of the separation agreement. Since an employee is only entitled to earned salary, we hold that the Plaintiffs were not entitled to salary for February 2018, and Defendant cannot be faulted for not paying them.

As for the alleged withdrawal of health care benefits, and redemption of Plaintiffs’ provident fund contribution, no cogent evidence was presented to the court in support of the claim. In the absence of evidence establishing nexus between the said exhibit and the Plaintiffs herein, we uphold the submission that the said letter dated 29th January

2018, which the trial court partly relied on in its declaration of constructive termination, was in respect of redemption of contributions of listed staff as at 31st of December 2017. We uphold submission by learned counsel for Defendant that the letter had nothing to do with Plaintiffs. The inference by the trial court that the contents of exhibit 2 are more probable than not also referable to the Plaintiffs, is not justified and is set aside.

It is our view that the trial court’s declaration of constructive termination of appointment was grounded on a misconception of the English case of Western Excavating (ECC) ltd v Sharp [1978] QB 761. In the Western Excavating case, the eminent jurist, Lord Denning MR delivered himself thus on the principle of constructive termination;

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed. The employee is entitled in those circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of the notice. But the conduct must in either case, be sufficiently serious to entitle him to leave at once. Moreover, he must make up his mind soon after the conduct of which he complains, for if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract.”

Addressing the court on the principle of constructive termination of employment, learned counsel for Defendant argued that the Western Excavations ltd v Sharp case (supra) which the trial court relied on, was not applicable to the facts of the instant case, and we are inclined to agree with him. It was held in that case that the employee was entitled to treat himself as discharged from any further performance of the contract, if the employer is guilty of conduct which is in significant breach, going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract. And that in the instant case, not only did Plaintiffs fail to bring their claim within the threshold of the principle of constructive termination of employment, but that their claim is grounded on an alleged wrongful termination of appointment and/or redundancy which has nothing to do with constructive termination of employment.

Discussing the principle of wrongful termination of employment in the Supreme Court case of De Simone ltd v Olam Gh. Ltd. [2018] GHASC 22, dated 28th March 2018, Pwamang JSC posited that at common law, a situation where the employer creates conditions which makes it impossible for the worker to continue in employment, thereby compelling the worker to stop the work, is referred to as constructive dismissal/termination.

From the principles distilled from the authorities hereinbefore referred to on the subject, and per our own research, it is clear that constructive termination occurs where a worker is forced to leave the job against their will due to the conduct of the employer, where the employee resigns as a result of the employer creating a hostile work environment. Conduct which would force a worker to leave his job includes but not limited to; failure to pay salaries earned, sudden demotion, unreasonable changes in work conditions such as night shifts when the employment contract specifies day; harassment or bullying.

To establish a case of constructive termination, the conduct of the employer must be in breach of the contract of employment, the breach must be significant to justify the employee resigning. The resignation must be in response to the breach complained of. Accordingly, where constructive termination of employment is alleged, it is the duty of the court to look at the conduct of the employer as a whole to ascertain whether the case had been made out by the claimant.

Although the Western Excavating case (supra) had to do with breach of contract, the courts recognize various forms of unreasonable conduct by the employer, which can constitute breach of implied terms of the contract of employment.

In the South African case of Johnson v Rojah No & Ors [2017] ZALCJHB 25 dated 26th January 2017, the employee sustained back injuries at work and underwent a number of medical procedures. On resumption of duty, her doctor wrote to her employers to place her on light duties and to work half days only. The employer made provision for an office for her on the ground floor, and carried out all the conditions recommended by the doctor. The office on the ground floor was later taken from her and she was paid half salary for half day’s work. She resigned contending that her employers had made it intolerable for her to continue to work and sued her employers for constructive dismissal.

It was held that an employee who alleges constructive termination of employment is in fact indicating that the employer has created a situation which has become unbearable for the employee to continue to work. And that effectively, what the employee is saying is that he would have continued to work indefinitely but for the unbearable situation created by the employer. The court ruled that to succeed, the employee must prove that he terminated the employment contract of employment; that continued employment with the employer became intolerable for the employee and that it was the employer who made the continued employment of the employee intolerable.

Our understanding is that, there must be a prima facie case establishing the alleged constructive termination of employment, before the burden would shift to the employer. Where the employer rebuts the assertion and demonstrates that the employee’s fears are unfounded, there is no constructive termination.

Applying the test to the facts of the instant case, we rule that the facts do not support a finding of constructive termination. In the first place, it is in evidence that plaintiffs stopped going to work because they considered the mutual separation package offered by defendant, inadequate. In the circumstances, there is no evidence of their resignation, let alone that same was due to the intolerable conduct of defendant. The grounds on which the trial court declared plaintiffs’ appointment as having been constructively terminated, is misconceived and do not fit the mold.

As for the alleged withdrawal of health care benefits, no evidence was presented to the court in support of same accordingly, the finding of the trial court on the claim cannot stand. We support our conclusions with the Supreme Court decision in Ackah v Pergah Transport Ltd & Others [2010] 728 where it was stated at page 736 as follows:

“............. it is the basic principle of 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. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence, a reasonable mind could conclude that the existence of a fact is more reasonable than its non- existence.”

See also Acquaye v Awotwi [1982-83] 2 GLR 110 where Mensah-Boison JA stated that the testimony of a plaintiff is presumptive evidence which is rebuttable. The well-known rule of evidence is that although proof in a civil case rested on the plaintiff, that burden was discharged once the Plaintiff had introduced sufficient evidence of the probability of his case. It would then rest on the Defendant to rebut the Plaintiff’s evidence.

Ground xvi of the appeal also succeeds. The Ruling of the trial court that Plaintiffs’ employment was constructively terminated is hereby set aside as untenable in law.

CONCLUSION

In the absence of evidence in support of the Plaintiffs’ claim that their appointments were terminated or that they were told not to go to work after 31st January 2018, we uphold the defence that Plaintiffs vacated their post. In the circumstances, we hold that they are entitled only to reliefs (viii) and (ix) endorsed on the writ of summons. For avoidance of doubt we hold that Plaintiffs are entitled only to their Provident Fund contributions and their contributions under the University Tier 2 Pension Scheme as at 9th of March 2018, (the date indicated in Defendants letter dated 5th of March 2018 by which Plaintiffs were directed to respond to the offer or be deemed to have vacated their post), plus interest thereon till date of final payment.

It is our view that having failed to demonstrate that they were declared redundant, Plaintiffs’ relief (i) fails. Save reliefs (viii) and (ix), all the other reliefs which are grounded on the success of relief (i) suffer the same fate. As regards relief (vii), we have thoroughly perused the ROA and find not a scintilla of evidence in support of the claim. The order by the trial court for payment of book/research allowance for the 2016/17 and 2017/18 academic years to 1st and 2nd Plaintiffs, is hereby set aside.

With due deference to the trial judge, it is our view that in the absence of evidence that Plaintiffs’ appointments were terminated, there was no justifiable reason for the declaration that Plaintiffs’ appointments were constructively terminated when that was not their case, and more importantly since the evidence did not support the declaration.

The appeal succeeds and the judgment of the trial court dated 31st of October 2019 is hereby set aside.

Costs of GH¢5,000.00 in favour of Appellant against Respondent

SGD

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JUSTICE NOVISI ARYENE (JUSTICE OF THE COURT OF APPEAL)

SGD

I AGREE                                       ...............................

JUSTICE NOBLE - NKRUMAH (JUSTICE OF THE COURT OF APPEAL)

 

 

SGD

I ALSO AGREE                              ............................

JUSTICE ACKAAH BOAFO (JUSTICE OF THE COURT OF APPEAL)

 

COUNSEL:

ERIC KWAME ATIEKU WITH YRAM ATAKUMAH FOR PLAINTIFF/RESPONDENT

 

MICHEAL JONAS ANTEKYI WITH ROSMOND ATTA-KESSE FOR DEFENDANT/APPELLANT