CHRISTIAN ASARE-DJAN V TEACHERS’ FUND

JUDGMENT

INTRODUCTION

The plaintiff was an employee of the defendant, an entity registered under the laws of Ghana as a company limited by guarantee. The plaintiff worked with the defendant from the 2nd of February, 2009 till the 19th of May 2021 when his employment contract was terminated by the defendant. The termination letter served on the plaintiff offered no reason for the termination of the plaintiff’s contract of employment but the plaintiff was informed that he was to be paid a month’s salary in lieu of notice for the termination and he was also to be paid any outstanding leave entitlement in cash.

The termination letter also requested the plaintiff to settle all his indebtedness to the defendant and to also prepare his handing over notes and submit same to the General Manager of the defendant by the 21st of May, 2021. He was also directed to return all properties of the defendant which were in his custody to the defendant’s Head of HR/Administration by the same 21st May, 2021. The plaintiff, who at the time was the head of operations of the defendant company, was obviously not enthused by this turn of affairs and he, being of the view that the defendant had terminated his contract in violation of the terms of the said contract of employment, sued the defendant for the following reliefs:

a) A declaration that the defendant’s termination of the plaintiff’s employment was in violation of the terms of the employment contract as same was unfair, very wrongful and thereby unlawful

b) An order for the formal removal of the purported termination letter from the plaintiff’s records with the defendant.

c) Payment of discharge or redundancy compensation package assessed at the sum of the plaintiff’s six (6) months’ salary and allowances for each year that he has been in the employment of the defendant, the benchmark monthly salary and allowances that the plaintiff would have earned on the date of this writ.

d) Payment of all the entitlements that are or would have been due to the plaintiff under the employment contract but for the defendant’s unfair, wrongful or unlawful termination.

e) Reimbursement of the penalty which as a result of the defendant’s unfair, wrongful or unlawful termination, the plaintiff paid for the abortive liquidation of his provident funds, such penalty amounting to the sum of forty-one thousand, four hundred and ten Ghana Cedis and sixty-six pesewas only (GH¢41,410.66) and with interest.

f) Damages for breach of the plaintiff’s employment contract with the defendant; and for unfair, wrongful or unlawful termination.

g) Attorney fee assessed at one hundred and fifty thousand Ghana Cedis (GH¢150,000.00) only being the fees for one hundred and fifty attorney hours spent on prosecuting this matter.

h) Cost

i) Any other reliefs or remedies the honourable court may deem fit.

The defendant in its statement of defence filed on the 3rd of November, 2021, denied liability for the claims of the plaintiff and stated that it followed due process in its termination of the plaintiff’s employment contract. At the close of pleadings and on the 10th of January, 2022, the court sat down for trial the following issues:

1) Whether the defendant terminated the plaintiff’s employment in accordance with the terms and conditions of the plaintiff’s employment contract?

2) Whether the defendant’s termination of the plaintiff’s employment contract amounted to employment redundancy in respect of the plaintiff.

3) Whether the defendant terminated the plaintiff’s employment contract fairly?

4) Whether the plaintiff is entitled to all the reliefs?

5) Any other issues raised by the pleadings.

BURDEN OF PROOF

It is trite learning that the burden of proof required in civil cases is proof on the balance or preponderance of probabilities. This is made clear by section 12 of the Evidence Act of 1975, NRCD 323.

In this instant case before me, it is the case of the plaintiff that his employment contract was wrongfully or unlawfully terminated by the defendant, he therefore has the onus to present satisfactory evidence to convince this court that the defendant’s act of terminating his employment contract was not done in accordance with the terms of said contract and that it was also contrary to law.

ANALYSIS OF ISSUES

The first issue is WHETHER THE DEFENDANT TERMINATED THEPLAINTIFF’S EMPLOYMENT IN ACCORDANCE WITH THE TERMS AND CONDITIONS Of THE PLAINTIFF’S EMPLOYMENT CONTRACT?

In the decided case of John Tagoe v. Accra Brewery Ltd. civil appeal no J4/47/2014 dated 25th March, 2015 reported by Ghalii as [2015] GHASC 10 (25th March,2015) our Supreme Court summed up the requirement for proving wrongful or unlawful termination as follows;-

“However in a claim founded on wrongful termination of employment contract, the plaintiff assumes the initial burden of producing evidence to satisfy the court about his terms of employment and also that the termination of his appointment was contrary to the terms of his appointment or existing law. The defendant would then be obliged to produce evidence to justify the termination.”

Also the Court of Appeal in the case of Faustina

Asantewaa and 7 others v. Registered Trustees of the Catholic Church of Koforidua [2016] 92 GMJ 176 @ 180, held that a Termination is said to be unlawful where the party who terminates the employment fails to give the required notice or salary in lieu of notice.

The plaintiff herein tendered in evidence his termination letter as his exhibit ‘G’. A careful read of the said exhibit shows that no reason was assigned by the defendant for the termination of the plaintiff’s employment. The plaintiff was paid a month’s salary in lieu of notice for the termination.

The plaintiff claimed that the termination of his employment contract was wrong because he was not accused of nor sanctioned for any wrong doing by the defendant. From the tenor of paragraphs 13 to 16 of the plaintiff’s witness statement, the plaintiff was of the view that his employment contract could only be terminated by the defendant on the ground of wrongdoing or unsatisfactory performance.

Obviously the plaintiff placed premium on the last but one paragraph of his exhibit ‘A’ which is his appointment by the defendant to the position of Operations Manager in the year 2013 precisely on the 8th of October of that same year. The said paragraph reads as follows:

“You will be on probation for six (6) months. After confirmation, both parties are expected to give a month’s notice in writing or pay one month’s salary in lieu of notice, in case of dismissal on grounds of unsatisfactory performance.”

The defendant on the other hand stated that it terminated the plaintiff’s contract in accordance with its exhibit 2. This exhibit 2 was also tendered by the defendant through the plaintiff as its exhibit 2A. Exhibit 2 which is the same as exhibit 2A is the defendant’s Rules and Conditions of Service which were approved by the defendant’s Board of Trustee in the year 2005. It was the defendant’s position that it terminated the plaintiff’s contract under section 13 of exhibit 2A which is the same as exhibit 2. The said section 13 is about leaving the defendant company and it states that the modes by which an employee can leave the defendant company is either by resignation, termination, dismissal or being made redundant.

Specifically the first part of section 13.0 of exhibit 2A states as follows:

“Where an employee’s employment is terminated other than in the case of dismissal or summary dismissal, the Fund shall give one month’s notice in writing to the employee or shall pay him a month’s salary in lieu of notice.”

Section 13.1 (a) also provides that an employee may resign by giving one month’s notice to the defendant or by paying one month’s salary in lieu of notice. Though the plaintiff denied under cross examination that his contract was terminated in accordance with section 13 of exhibit 2 or exhibit 2A, it is clear as already noted above, that the defendant furnished no reason for its decision to terminate the plaintiff’s employment contract. This is perfectly normal since there is no provision in the Labour Act of 2003 (Act 651) that says an employer must give reasons for terminating an employee’s contract.

There was no mention in the termination letter of any disciplinary proceedings against the plaintiff and therefore it cannot be said by the plaintiff that the termination of his employment contract was carried out in accordance with the terms stated in exhibit A (the contract which was given to him in the year 2013).

The plaintiff did not deny knowledge of exhibit 2 or exhibit 2A. He admitted under cross examination that his appointment was terminated by the defendant and that he was not dismissed by the defendant. The plaintiff did not exhibit the contract of employment he entered into with the defendant in the year 2009 when he was initially employed. However the court has seen exhibit ‘A’ the contract of 8th October, 2013 and in exhibit ‘A’ there is no contractual provision that the plaintiff’s employment cannot be terminated without the defendant assigning any reason for the termination. What is stated therein is that, the defendant must give a month’s notice in writing or pay a month’s salary in lieu of notice when it decides to dismiss the plaintiff for unsatisfactory performance. The plaintiff however seems to be under the impression that his employment contract could only be terminated on the ground of wrongdoing or unsatisfactory performance. However there is nothing in his exhibit A that suggests that the plaintiff’s employment contract can only be brought to an end on the ground of wrongdoing or unsatisfactory performance.

The very first paragraph of exhibit G makes it clear that plaintiff’s termination was done in accordance with the defendant’s Rules and Conditions of Service (exhibit 2 or 2A ) which provides for termination on one month’s notice or payment of one month salary in lieu of notice.

Indeed the Labour Act of 2003 (Act 651) provides per its section 15 the grounds for which an employment contract may be terminated. Section 15 (a) provides that a contract of employment can be terminated by the mutual agreement of the employer and the worker and section 17 (1) (a) of the same Act also provides that a contract of employment may be terminated at any time by either party giving to the other party in the case of a contract of three years or more, one month’s notice or one month’s salary in lieu of notice.

The learned author James Odartey Mills in his book, Labour Law (2014) States at page 280 as follows:

“………just as the employee can indeed resign or terminate the contract of employment between him and his employer at any time, so also can the employer terminate the contract at any time. This is based on the legal principle of reciprocity or mutuality of contracts which is to the effect that whatever one party to a contract can do, the other party should be able to do likewise”.

The plaintiff in paragraph 14 of his witness statement acknowledged that the defendant paid him one month’s salary in lieu of notice for his termination. This certainly is in accord with section 13 of exhibit 2A. Though exhibit ‘2A’ was objected to by counsel for plaintiff on ground that it was not the human resource document or manual in place at the defendant’s, no evidence was led by the plaintiff to show that the exhibit 2A or exhibit 2 was no longer in existence at the defendant’s workplace and also upon a careful perusal of exhibit k (the defendant’s HR Manual tendered by the plaintiff) there is nothing in it that suggests that the other conditions of service of the defendant as captured in exhibits 2 and 2A have been done away with by the defendant.

In the decided case of KOBEA & Others v. Tema Oil Refinery and Akomea-Boateng & Others v. Tema Oil Refinery [20032004] SCGLR 1033 our SC made it clear that an employer and his employee are free and equal parties to a contract of employment and that each party has the right to bring the contract to an end in accord with its terms. It is therefore the finding of fact by this court that the plaintiff’s employment contract was terminated in accordance with the terms and conditions that governed his employment with the defendant and indeed the said termination was also in consonance with section 15 (a) of Act 651 mentioned supra.

The second issue is WHETHER OR NOT THE PALINTIFF’S TERMINATION OF THE PLAINTIFF’S EMPLOYMENT CONTRACT AMOUNTED TO EMPLOYMENT REDUNDANCY?

Section 65 of the Labour Act (Act 651) mentioned supra provides for redundancy. A careful read of the said section shows that an employer who contemplates the introduction of major changes in production, programme, organisation, structure or technology of his undertaking that is likely to lead to terminations of the employment of workers in the said establishment is obligated to inform the Chief Labour Officer and the Trade Union concerned of the contemplated changes. This is to be done not later than three months before the changes are effected. This obviously is to allow the parties (the employer and employee) to negotiate the redundancy pay that is to be paid to workers who may be affected by the said changes.

The plaintiff in paragraphs 18 and 19 of his witness statement claimed that the defendant, immediately after terminating his appointment, implemented some strategic policies it had formulated in the previous year. The plaintiff said the defendant in the said implementation “re-organised its operations, programs, structures, activities and reward systems in a very substantial way”. He further claimed that defendant’s decision to terminate his employment contract amounted to a redundancy without compensation. The defendant, on the other hand insisted the termination of the plaintiff was in no way a redundancy because even though there were changes at the workplace after the plaintiff’s contract had been terminated, these changes were mainly to ensure operational efficiency and that the operations department, which the plaintiff previously used to head, was still in existence at the defendant’s workplace and had not been scrapped.

A careful read of the plaintiff’s termination letter (Exhibit G) shows that there is no mention by the defendant of an intention to carry out or implement any major changes in its establishment. Even if the defendant did carry out any changes after the termination of the plaintiff the evidence on record shows that the Operations Department which was previously headed by the plaintiff was still in existence. The counsel for the defendant in his closing address cited the consolidated case of KWAPONG & OTHERS V. GHANA COCOA MARKETING BOARD AND OTHERS AND AMOH V. GHANA COCOA MARKETING BOARD AND OTHERS[1984-86] 1GLR 74 in which the Court of Appeal speaking through Osei – Hwere JA stated as follows:

“It is not the mere mouthing of “reorganisation” and “redundancy” in leters of dismissal or at a press conference that proves the truth of those facts. Indeed an employer cannot declare an employee redundant unless any of these situations exist:

a) Where the business ceases

b) Where the place of business is moved and

c) Where the business no longer required the same number of employees to carry out work of a particular kind.”

Indeed there is nothing in the termination letter that suggests that the plaintiff was made redundant because his role as head of operation is still in existence at the defendant’s workplace and it is occupied by another person. The termination of the plaintiff’s contract was just an exercise of the defendant’s right as provided for in the defendant’s Rules and Conditions of Service (Exhibit 2A or exhibit 2) specifically section 13.0 of the said Rules and Conditions of Service. My finding of fact on this issue is that the plaintiff’s termination did not amount to a redundancy.

The third and final issue to be determined is WHETHER THE DEFENDANT TERMINATED THE PLAINTIFF’S EMPLOYMENT CONTRACT FAIRLY?

The concept of unfair termination is a creature of statute. Sections 62 and 63 of ACT 651 deal with fair and unfair termination. According to section 62, a termination of an employment contract is fair if a worker is incompetent or lacks the qualification in relation to the work for which he is employed, if he is found guilty of misconduct, if there is redundancy as contemplated by section 65 of the Act and if there are legal restrictions imposed on the worker prohibiting the worker from performing the work for which he or she is employed.

Section 63 (2) gives the scenarios or reasons a worker’s employment can be said to be unfairly terminated. None of the reasons mentioned therein are applicable in the plaintiff’s case. Indeed the defendant in its termination letter (Exhibit G) did not state any reason for the termination so there is no obligation on the defendant to prove that its termination of the plaintiff’s employment contract is fair as contemplated by section 63 (4) of Act 651. As already noted supra, the Supreme Court in the consolidated case of KOBEA and OTHERS V. TEMA OIL REFINERY AND AKOMEA-BOATENG AND OTHERS V. TEMA OIL REFINERY made it clear that the parties to an employment contract are free and equal parties to the said contract and that they each have the right to bring the said contract to an end in accordance with its terms.

Clearly section 13.0 of the defendant’s Rules and Conditions of Service provides for termination of the employment contract without assigning reasons for such termination and this right to terminate is enjoyed by both the employer (defendant) and the employee (plaintiff). If the plaintiff in the course of his employment with the defendant, had made up his mind to leave the defendant for another work place, he certainly would have served the defendant with the one month’s notice as stipulated by section 13.0 of exhibit 2A or exhibit 2.

It is indeed trite law that a contract of employment is not a contract of servitude as was stated by the Court of Appeal in the case of Aryee v. State Construction Corporation [1984-86]1GLR 424 and that a contract of employment does not give rise to a master- servant relationship so either party to the contract can bring the relationship to an end and free himself painlessly. All that was required was that the abrogation or termination of the contract must be in accordance with its terms.

The evidence before the court is clear that the defendant was under no obligation to assign reasons for its decision to terminate the plaintiff’s contract since there were no issues of the plaintiff’s non-performance or misconduct in the course of his employment with the defendant therefore there is nothing unfair about the termination of the plaintiff’s employment contract and I so find.

CONCLUSION

In the light of the foregoing analysis, the court is of the opinion that the plaintiff has not been able to establish his case on the balance or preponderance of probabilities and is therefore not entitled to any of the reliefs endorsed on his writ of summons and statement of claim. His case is dismissed as same is without any merit. The court awards the defendant final cost in cause of eight thousand Ghana cedis (GH¢8,000.00) against the plaintiff.

(SGD.)

JUSTICE ANANDA J. AIKINS (MRS)

JUSTICE OF THE HIGH COURT