AIRTEL GHANA LTD. V. NATIONAL LABOUR COMMISSION

JUDGMENT

ACKAH-YENSU, JA

The facts leading to this appeal do not appear to be in controversy and can be deduced from the affidavits and annexures filed. On December 29, 2014, the Applicant/Respondent (hereinafter referred to as the “Respondent”), made an application to the High Court, Labour and Industrial Division, for an order to enforce the decision of the Respondent pursuant to section 172 of the Labour Act, 2003 (Act 561). A Complaint had been made to Respondent against the Respondent/Appellant (herein also to be referred to as the “Appellant”) on October 25, 2013 by one Daniel Oblie Quaye, a former employee of the Appellant. The reliefs sought in the said Complaint were as follows:

“(a) A fully paid termination benefits.

(b) All outstanding loans be waived off.

(c) Social Security payments for remaining active years.

(d) Any other benefits deemed appropriate by the Commission”.

Following the lodgment of the Complaint, and by a letter dated November 1, 2013 the Respondent forwarded the Complaint to the Appellant and requested the Appellant to study same and respond within fourteen (14) working days. The Appellant obliged by a letter dated December 3, 2013.

By a letter dated December 12, 2013, Respondent invited Daniel Oblie Quaye (whom we shall refer to simply as “Daniel”) and the Appellant for a hearing. The Appellant, by a letter dated January 2, 2014, requested the Respondent to dispose of the matter summarily pursuant to Regulation 33 of the National Labour Regulations 2016 (L.I. 1822). Respondent consequently wrote to Daniel and the Appellant on January 17, 2014 requesting Daniel to submit a Statement of Claim, documents and a written address in the form of affidavit evidence. The Appellant was also requested to submit all documents and their response to the statement of claim in the form of affidavit evidence. Daniel submitted a document dated January 28, 2014 titled “Address by the Petitioner Daniel Oblie Quaye and Statement of Claim” and attached to this document various annexures. Daniel claimed therein the following reliefs:

“1. A compensation based on Six Months Gross pay Multiplied by the Number of Years served with interest (6 months gross pay x 13.5 years)

2. Seeking damages for the treatment I received from some Airtel Officials and keeping me under that tight security environment as if I am a criminal.

3. Social Security payment for the remaining ten active years (10 years) since the termination was unfair and deliberate.

4. Fully paid Provident Fund with interest.

5. Any other compensation the Commission deem appropriate for my dedication, commitment and the hard work I rendered to the company”.

The Appellant submitted an affidavit and a written response to the submissions made by Daniel. On July 23, 2014 the Respondent heard the matter and informed the parties that a written decision would be communicated to them. On September 23, 2014, the Respondent communicated the following decision to the Appellant:

“THE DECISION

From evidence available in the sworn affidavits of both parties, the Commission is convinced and declares the termination of the appointment of Complainant is unfair.

Accordingly, the Commission directs the following compensation be paid to Complainant for serving the Company without blemish for over thirteen (13) years:

One year salary i.e. GH¢4,540.00.

24 x 12 = GH¢54,482.88”

The Appellant failed to comply with the decision of the Respondent and Daniel consequently wrote to the Respondent on October 24, 2014, drawing the Respondent’s attention to the said failure. Pursuant to this letter, the Respondent filed an application to the High Court for the Enforcement of the Decision of the Respondent/Commission, on December 29, 2014. The Appellant opposed this application. On February 27, 2015, the High Court, (Labour and Industrial Division) delivered its judgment in which it affirmed the decision of the Respondent and ordered the Appellant to comply with the said decision. Dissatisfied with the judgment of the High Court, the Appellant has appealed to this Court.

The Appellant is seeking the following relief: “A reversal of the judgment of the High Court affirming the Applicant’s decision and the order to the Respondent to comply”.

The grounds of appeal are:

“(a) The Learned Judge erred in law and in fact in holding that the Petitioner’s role was redundant entitling the Petitioner to redundancy pay but for alternative employment of transfer towerco.(b) That the Learned Judge erred in holding that she found from the evidence placed before the Applicant that the Petitioner’s new role was a complete switch from what he did previously.(c) That the Learned Judge erred in fact and in law in holding that the Respondent was in clear breach of employment contract.(d) That the Judgment was against the weight of evidence.(e) That the Learned Judge erred in affirming the decision of the Applicant declaring the termination of the appointment of the Petitioner unfair.(f) Additional ground to be filed upon receipt of proceedings”.

We think that the grounds of appeal can be dealt with compositely. From the combined effect of the grounds set down, the Appellant sought to impeach the reasoning of the trial court on two (2) legs. Firstly, that the trial court was wrong on the law and facts in coming to the conclusion that the Respondent’s role having become redundant and the alternative employment having been proved not to be suitable, Respondent was entitled to redundancy pay in accordance with the Labour Act 2003 (Act 651). Secondly, that the trial court was wrong in concluding that the termination of the Respondent’s appointment was unfair.

In the determination of the correctness or otherwise of the findings of the trial Court, I am guided by the judicial position that the findings of fact made by the trial Court are presumed correct until an appellant is able to demonstrate that they are either perverse or that the trial Court applied the wrong perception to the evidence or wrong principles of the law. See Ballmoos v. Mensah [1984-86] 1 GLR 727 at 730 CA.

So, was Daniel’s role indeed made redundant? Daniel, according to a letter dated May 25, 2000, was employed as a Satellite Technician in the Operation Department of Western Telesystems which metamorphosized to Airtel Communication Gh. Ltd. in 2010. By a letter dated 8th June, 2013 titled, “LETTER OF TRANSFER AND RELOCATION”, Daniel’s employer assigned him to a new role with a Job Title “Zonal Operations Manager” for the Northern/Volta/Brong Ahafo Regions.

Counsel for the Appellant invited the Court to examine the wording of section 65 of Act 651 to make a determination as to whether Daniel’s role had become redundant. Counsel also relied on the dictum in the case of Kwapong and Ors v. Ghana Cocoa Marketing Board and Ors. (Consolidated) [1984-86] 1 GLR 74 as follows:

“… it was not the mere mouthing of “re-organization” and redundancy in letters of dismissal or at a press conference that proved the truth of those facts. An employer could not declare an employee redundant unless any one of the following situations existed (a) where the business has ceased; (b) where the place of business has been moved; and (c) where the business no longer required the same number of employees to carry out work of a particular kind”.

There is on record email communication between Daniel and one Oladipo Babalola of the Human Resource Division of Airtel Ghana and for its full force and effect, I will quote the whole of the said email (WTC-5 on pages 35-36 of the Record of Appeal).

“From: Oladipo Babalola [Oladipo.Babalola@ng.airtel.com]Sent: Wednesday, August 07, 2013 3.47PMTo: Daniel Oblie QuayeCc: Maruf LawalSubject: RE: Towerco – Transfer to Northern RegionAttachments: Image001.pngDear Daniel,Just to clarify, by you line here, I was referring to the Network Director but thanks for your response.Regards.Oladipo Babalola/HR/Airtel Ghana/NGM: (+233) 269 008 286http://gh.airtel.com /Airtel Ghana, Ceremonial Road, North Ridge, Accra, Ghana
From: Daniel Oblie Quaye [malito:Daniel.Quaye@gh.airtel.com]Sent: Wednesday, August 07, 2013 4.38PMTo: Oladipo BabalolaCc: Maruf LawalSubject: RE: Towerco – Transfer to Northern RegionDear Oladipo,Thanks for the MoM but have few points to be corrected.1. This was not a discussion but a decision forced on me and I did not emphasized “will not”. I only referred to my mail attached.2. My line Manager was not present at this meeting. It was between you, ND and myself.3. I can confirm that ND said my current role has become redundant and not the line manager.Chief, in reference to the business exigencies as mentioned, I wish to state also that, the entire towerco business is not my core.Regards.Daniel
From: Oladipo Babalola [Oladipo.Babalola@ng.airtel.com]Sent: Tuesday, August 06, 2013 6.50PMTo: Daniel Oblie QuayeCc: Maruf LawalSubject: RE: Towerco – Transfer to Northern RegionDear Daniel,In reference to you meeting today on above, you re-emphasised that you will not be favorable to a transfer to the north. This was also after consultations with your line manager where he explained the rationale and the business exigencies involved.Recalled he also mentioned that your current role has become redundant thus the need for the transfer and to ensure business continuity.Kindly confirm to me that this captures our discussions.Regards.Oladipo Babalola/HR/Airtel Ghana/NGM: (+233) 269 008 286http://gh.airtel.com /Airtel Ghana, Ceremonial Road, North Ridge, Accra, Ghana

Daniel, by email dated September 19, 2013 to the Appellant, stated that the new role was a complete switch from transmission to power systems engineering which required holistic training at HND level to enable him perform effectively. In the same email, he raised the issue of working tools, to wit, vehicle and driver considering the geographical location, inter-site distances being quite sparse, and also the documentation of additional terms and conditions as captured in e-mails. Consequently, he requested for additional terms and conditions (monthly air ticket including Friday and Monday) to be captured in an addendum to an earlier letter, and the other issues of training and vehicle/driver to be given some consideration to aid maximum delivery on expectation. The Appellant responded to Daniel’s request by email on the same date indicating that the new role did not come with a driver. Subsequently, by a letter dated September 25, 2013, Appellant terminated Daniel’s employment with payment in lieu of notice effective September 30, 2013.

Clearly, from the correspondence on August 2, 2013 referred to above, Daniel’s original role as Satellite Technician was different from the new role of Zonal Operations Manager. According to Babalola, the “rationale and business exigencies involved” were explained to Daniel. As aforesaid, Daniel responded by stating that “… in reference to the business exigencies as mentioned, I wish to state also that, the entire towerco business is not my core”.

The critical question to ask is whether or not the facts of the instant case satisfy the requirement for redundancy. There are lots of commonly known reasons for redundancy, and some of them are that:

- New technology has made the job necessary.

- The job no longer exists.

- The employer needs to cut costs by reducing staff numbers.

- The business is closing down or moving.

- The business has been bought by another company.

The position of the law in Ghana (Section 65 of Act 651) is that redundancy arises under subsection 1 in the following situations:

1. Introduction of major changes in production of the company.

2. Changes in programme of the company.

3. Changes in the organization of the company.

4. Changes in the structure and of the company.

5. Changes in the technology of the company.

Other grounds for redundancy occur under situations provided by subsection 2 of section 65; i.e. where the company closes down or undergoes an arrangement or amalgamation and that the close down, arrangement or amalgamation servers the legal relationship of the workers and the employer and because of the severance of the relationship the worker becomes employed or is still employed but under diminished terms and conditions as compared to the situation before the close down, arrangement or amalgamation. The employee will in these circumstances be entitled to the payment of “redundancy pay”.

Counsel for the Appellant submitted that the transfer and relocation of Daniel was not based on any role redundancy but was based on expression of interest by Daniel. That, in spite of the email alluding to the redundancy, in fact and in law there was no redundancy situation. That, there was no evidence placed before the Respondent which indicated that the Appellant had closed down, undergone an arrangement or amalgamation which resulted in the severance of the legal relationship of employer and employee as it existed between Appellant and Daniel. In spite of this, the learned trial Judge determined that Daniel’s role was a complete switch from what he did previously and ought to have been given appropriate training to enable him discharge his duties.

So, did the trial Judge err when she made a finding that the new role was a complete switch from what Daniel previously did? The information placed before the Respondent was that the Appellant in its letter of employment to Daniel dated May 23, 2000, stated that he was being recruited to the position of a Satellite Technician. Daniel stayed in that position in spite of the fact that the company that employed him changed hands at least two times. However, by a letter dated July 8 2013, titled “LETTER OF TRANSFER AND RELOCATION”, it was contained therein that the TOWERCO strategic business unit being created within the Appellant’s Operations, the Petitioner was given a new role as Zonal Operations Manager to be relocated in the Northern, Brong Ahafo and Volta Regions, effective June 19, 2013.

This is the summary presentation of facts by Daniel (page 7 of Record of Appeal) regarding the events leading to the termination:

“1. A presentation was organized by HR Department which officially informed some selected staff about the formation of a subsidiary company called Towerco within Airtel.

2. Based on the understanding, I signed the expressed interest letter.

3. A technical team from India came to Ghana and highlighted on the core responsibilities of Towerco. (i.e. 48v must always be available)

4. I then raised questions on towerco, the core business, Training, expertise, zonal relocation/transfers, terms and conditions.

5. My request was met by inhuman verbal responses. I then requested that all verbal promises be documented and signed to serve as authentic document for future reference, once again, I received verbal attacks.

6. On Friday, 13th September, 2013, I received a letter of Transfer and Relocation to the Northern, Brong-Ahafo and Volta Regions”.

Clearly, when Daniel expressed interest in a role in Towerco, he and the other staff members at the presentation organized by the HR Department were only informed about the formation of the company as a subsidiary of Appellant/Company. It was subsequent to this that a technical team from India came and highlighted on the core responsibilities of Towerco. And it was at that point that Daniel raised questions and the trouble began. One of the questions raised by Daniel was the need for training since, in his own words “the entire Towerco business is not my core”. He accordingly requested training to enable him perform effectively since the new role was a complete switch from Transmission to Power System Engineering. HR promised to send Daniel his old job description so that they could compare and contrast, but this never happened. A couple of weeks later, Daniel’s appointment was terminated.

We cannot agree with Counsel for Appellant that from the new job description marked as WTC-1 (page 30 of Record of Appeal), Daniel’s new role was purely managerial and not technical to require technical training. It is not as obvious as Counsel is making it out to be. What is clear is that Daniel informed the Appellant that the new role was not his “core” and therefore required training.

The right of an employee to be provided with appropriate equipment and tools and to develop the human resources by way of training and retraining is provided in section 9(a) and (c) of Act 651. Regulation 4 of the National Labour Regulations 2017 L.I. 1833 also provides that where the need arises the employee shall be trained by the employer having regard to the relevance of the training on the job and the enterprise.

We are of the considered opinion that Daniel’s new role was a complete switch from what he did previously, hence his old role had become redundant.

In its Decision dated 12th September, 2014 (page 61 of Record of Appeal), the Respondent stated that based on the email from Oladipa Babalola referred to above, Daniel claimed that his termination was unfair as he should have been declared redundant and compensated in accordance with the Labour Act 2003, Act 651. The Respondent opined that: “From the available evidence in the sworn affidavits, the Commission is convinced and declares the termination of the appointment of the complainant is unfair”. This position was endorsed by the trial Judge.

In response to Daniel’s Complaint, Appellant stated in NLC 3 that the termination was in accordance with law as Daniel was given payment in lieu of notice; thus, the termination was fair. Under section 63(4) of Act 651, a termination may be unfair if the employer fails to prove that the reason for the termination is fair or it was made in accordance with fair procedure under the Act.

It is trite learning that the onus was on Daniel to prove that his employment had been wrongfully terminated in that it was in breach of the terms of employment or in contravention of statutory provisions regulating employment. The burden is deemed to be discharged once a plaintiff had introduced sufficient evidence of the probability of his case. See Acquaye v. Awotwi and Anor [1982-83] GLR 1110.

The Labour Act, 2003 (Act 651) has brought an intervention into the common law principles on termination of employment. Section 15 of Act 651 deals with five (5) grounds for termination of employment. The law itself admits that the said five grounds are not exhaustive hence providing that an employment contract may be terminated by applying any of the said grounds. The Act has made a distinction between fair and unfair termination of employment. Section 62 of Act 651 states what grounds would make termination of an employee’s appointment fair. Section 63 is on unfair termination and states inter alia that:

“4. A termination may be unfair if the employer fails to prove that:(a) The reason for the termination is fair, or(b) The termination was made in accordance with a fair procedure or this Act”.

In the case of Kobi v. Ghana Manganese Co. Ltd. [2007-2008] SCGLR 771 at 794, Ansah, JSC stated as follows:

“The passing of the new Labour Act, 2003 (Act 651), has brought relief to the employee, for now there are statutory duties and rights of the employer and the employee. The right to terminate employment does not depend on the whims of the employer. Sections 62 – 66 of the Act are subtitled “Fair and Unfair Termination of Employment”. And section 63 of the Act headed: “Unfair termination of employment” explains in its subsections (2) – (4), what constitutes unfair termination of employment. Thus under section 63(4), a termination may be unfair if the employer fails to prove that the reason for the termination is fair, or it was made in accordance with a fair procedure under the Act. An unfair termination may attract sanctions and the fact that entitlements had been paid may not make an unfair termination fair or the reverse. A fair termination, on the other hand, is one made upon proven misconduct of the worker: see section 62(b) of the Act. And now termination of employment may be fair or unfair even if it is recognized the employer has power to terminate the employment under section 8 of the Act”.

A termination might be based on redundancy. In such a case the employer-employee relationship would be curtailed and brought to an end on grounds of redundancy. In the instant case, it is clear that Daniel’s role had become redundant and even though Appellant admitted so, for whatever reason they rather terminated Daniel’s appointment as per the Conditions of Service. The Appellant has however failed to prove that the termination of Daniel’s appointment was made in accordance with any fair procedure. The termination was therefore unfair and Daniel is consequently entitled to compensation.

We endorse the decision of Respondent that Daniel’s termination was unfair and the award of one year’s salary in the sum of GH¢54,482.88 as compensation for unfair termination.

In the circumstances the appeal fails and is hereby dismissed. The judgment of the High Court dated 27th February, 2015 is accordingly affirmed.

(SGD.)

BARBARA ACKAH-YENSU

(JUSTICE OF APPEAL)

V. D. OFOE, JA

This is a supporting judgment to the lead judgment ably delivered by my sister, Her Ladyship Babara Ackah-Yensu. I had the opportunity to read her judgment and I am in total agreement with her conclusion that the appeal should be dismissed. I however wish to add this view of mine believing that it will give a further confirmation to her judgment.

As narrated in her Ladyship’s judgment the applicant to the Labour Commission, Mr. Oblie Quaye had worked with the appellant company for the past thirteen years at the time his employment was terminated by the appellant company on the 25th September 2013. The antecedents to this termination needs brief narration for this concurring judgment to be appreciated.

Mr. Quaye, the interested party, was engaged by the appellant on the 25th of May 2000 as Satelite Technician. By a letter dated the 8th of June 2013 he was assigned a new role in a new unit created within the appellant company and was to be the Zonal Operations Manager with location mentioned in the transfer letter as Northern/ Volta/ Brong Ahafo Regions. This transfer which was to take effect from the 19th June 2013 was followed by e mail correspondence in which Mr. Quaye sought some information concerning his transfer and made a request for a driver and a vehicle for his new role. He also asked for training since he considered the new role a shift off his core business, qualification and function.

By e- mail dated the 6th of June 2013, addressed to Mr. Quaye, Mr. Babalola referred to a meeting at which he alleged Mr. Quaye disclosed that he was not favourable to a transfer and that at that meeting Mr. Quaye was informed of the rationale behind the relocation. And that it was mentioned at the meeting to Mr. Quaye by his line manager that the current position of Mr. Quaye was redundant hence the need for the transfer. The e mail requested Mr. Quaye to confirm to Mr. Babalola the contents of the e-mail.

Mr. Quaye responded to the e-mail that there was no discussion on his relocation at the meeting and that the whole idea was being forced on him. He mentioned that he never said he was not favourable to a transfer but can confirm that it was stated at the meeting that his current role has become redundant. Mr. Babalola responded thanking him for his response.

On the 19th September 2013 at 12.02, Mr. Quaye by e- mail wrote to Tina Muparadzi and Patrick Ayivor, copy to Babalola, that he had discussions with Patrick and issues considered were his new role which he considered a complete switch from Transmission to Power Systems Engineering and that this demanded holistic technical training to enable him perform. Also considered was the geographical location and the sparse inter-site distances which he considered physically challenging and the provision of a driver and a vehicle that will go a long way to assist him discharge his duties efficiently after his training. He requested in the e-mail that the driver and the vehicle and the training be given some consideration to aid him perform to the maximum. He ended his communication that they were working on the development plan.

On the same 19th September 2013 Tina e- mailed Mr. Quaye and copied Babalola responding that she has left the issue of the development plan to Mr. Quaye and his line manager. And that they expected the development plan to have been ready three months after Mr. Quaye had started the job. In response to the request for the driver Tina stated that the job did not come with a driver but a driver will be assigned to send him to the new station. That Dipo will send him a confirmation note that he will be entitled to travel to Accra once a month for a maximum of three months. The communication ended that it is her belief that Mr. Quaye will be relocating to the North and asked Patrick when Mr. Quaye will be relocating.

These e-mail correspondences can be found at pages 33 and 35 of the record of appeal.

After the 19th September 2013 e-mail from Tina, Mr. Quaye was served with a termination letter waiving notice and paying him a month’s salary in lieu of notice. The termination letter was dated the 25th of September 2013. The last e-mail from Tina was on a Thursday. By simple calculation Mr. Quaye was terminated 3 working days after Tina’s e-mail. The question to ask is what transpired for which the company decided to terminate the employment of Mr. Quaye? Had he refused to relocate? There was no evidence on record to that effect. Had Patrick responded to Tina’s enquiry when Mr. Quaye was moving to the north? Again, there was no evidence on record that there was a reply from Patrick.

From the responses of the appellant to the respondent Labour Commission it appeared to be clinging to the understanding that they were entitled to terminate the employment of Mr. Quaye at any time provided it gave him the requisite notice of the termination or paid him in lieu. Having given the required notice, it was not liable to him in anyway. Reading the record of appeal, particularly Mr. Quaye’s appointment letter, it is true that under the terms and conditions under which Mr. Quaye was employed that mode of termination was a right conferred on the company. Indeed, Mr. Quaye also had that right to terminate his appointment with the appellant on giving that requisite notice. His letter of appointment found at page 14 of the record of appeal provided that:

“Either side upon one month’s salary in lieu of notice may terminate this contract. The company may however terminate this contract without notice if you are guilty of gross misconduct in breach of any of the terms of this employment….”

Indeed, section 17 of the Labour Act, Act 651 statutorily provides for this reciprocal right of termination. Under subsection 1(a) of this section it is provided

“A contract of employment may be terminated at any time by either party giving to the other partyIn the case of a contract of three years or more, one month’s notice or one month’s pay in lieu of notice;.............................

The question I pose for consideration is whether this right of notice and termination can be exercised under any circumstances, be it fair or unfair? I will start this consideration mentioning section 8 of the Act. There is no doubt that by this section the employer, like the appellant herein, has the right to terminate the employment of the employee after resorting to the notice giving regime. But section 63 of the act also provides in clear terms that the employment of a worker shall not be unfairly terminated by the worker’s employer. When would it be said that the employment has been unfairly terminated? Subsection 63(2) provides some of the grounds for determining when a termination would be unfair. It is worth noting that subsection 3 provides that whether termination is with or without notice breach of subsection (2) shall be considered as unfair. This subsection states

“3. Without limiting the provisions of subsection (2), a worker’s employment is deemed to be unfairly terminated if with or without notice to the employer, the worker terminates the contract of employment”

It would appear from these provisions that in certain situations it is not simply giving the requisite notice of termination that confers legality to the termination.

A further reading together of sections 15 which provides for grounds for termination, section 62 which provides for fair termination and section 63 particularly its subsection (1) which forbids unfair termination by employers (earlier quoted) and its subsection (3) and (4) which enjoins the employer to prove that the termination is fair, I come to the conclusion that for the notice giving provision to be accepted as fair and an acceptable when invoked, it should be evident from the circumstances of the case that there was no unfairness surrounding the giving of the notice. The Labour Act provides fairness as the basic and ultimate goal in employer/employee relations. Rights of the worker at his work place has been enhanced and protection from arbitrariness and capricious management practices have to a large extent been statutorily blunted by provisions of the Act. The Labour Act should be interpreted and applied progressively to achieve such further goals. This view of mine does not appear to be a sole voice in the wilderness. For in the case of Kobi v. Ghana Manganese Co Ltd (2007-2008) SCGLR 771, His Lordship Ansah JSC, had this to say at page 794 of the report. Even though long, it is worth quoting

“It was time the “traditional rule” epitomized by Aryee v. State Construction Corporation(supra) was reconsidered because it has the potential of resulting in oppression by the employer and creating docility in the employee. With the fear of losing his job at any time depending on the whims and caprice of his employer who may dismiss him at will, staring at him perpetually, the worker enjoyed no security of tenure. He would become a malleable tool in the hands of his master and do his bidding. However, his consolation was that a collective agreement may require that the employer could only terminate an employment upon certain contingencies, namely, the employer being found guilty of an offence in a schedule of offences in the collective agreement; or the laws of the land or statute regulating employment in the land for the time being; or declared redundant under special conditions. The passing of the new Labour Act, 2003(Act 651) has brought relief to the employee, for now there are statutory duties and rights of the employer and the employee. The right to terminate employment does not depend on the whims of the employer. Section 62-65 of the Act are sub-titled ‘Unfair termination of employment’ explains in its subsections (2)- (4) what constitutes unfair termination of employment. Thus, under sections 63(4), a termination may be unfair if the employer fails to prove that the reason for the termination is fair, or it was made in accordance with a fair procedure under the Act. As unfair termination may attract sanctions and the fact that entitlements had been paid may not make an unfair termination fair or the reverse. A fair termination on the other hand, is one made upon proven misconduct of the worker: see section 62(b) of the Act. And now termination of employment may be fair or unfair even if it is recognized the employer has power to terminate the employment under section 8 of the Act.”

When discussions were on going as to what needs to be provided for Mr. Quaye’s relocation and Patrick was to advise on the time for the relocation, then the termination unexpectedly dropped on Mr. Quaye. Even though there were faint indications that Mr. Quaye was not enthused about his relocation, an attitude which is common with workers, there is no evidence on record that Mr. Quaye had made it clear, whether expressly or impliedly, that he was not relocating. In his last e-mail to Tina he said, “we are also working on the developmental plan”. Such communication cannot come from someone refusing to relocate. Mr. Quaye was appointed a Satellite Technician and was now to be a Zonal Operations Manager. The officers of the appellant had accepted that Mr. Quaye’s “current role has become redundant thus the need for the transfer and to ensure continuity”. If his current role has become redundant and was to perform another role, was it wrong for him to have asked for retraining? I do not think so. He was to manage the Northern/ Volta/ Brong Ahafo Regions. The distances to be covered over this terrain no doubt was not only extensive but lonely. Was he wrong and asking too much when he asked for a vehicle and a driver? And if these issues were still on the discussion table, as shown by the communications through the e-mails referred to in this judgment, for what reason was he terminated? The only reason the appellant had was its right to give a month’s notice or pay in lieu. It is my view that despite this right to terminate by giving the requisite notice of the termination, the facts of this case is an example of clear exhibition of administrative high handedness, intolerance and arbitrariness in the termination which qualify to be described as grossly unfair and cannot be protected by an argument that the appellant has the right to terminate and its only obligation is to give the requisite notice and nothing more.

It is from the forgoing reasons that I find the termination of Mr. Quaye unfair and therefore wrongful, as rightly found by the respondent commission and confirmed in by the trial High Court judge.

I agree that the appeal be dismissed.

(SGD.)

V. D. OFOE

(JUSTICE OF APPEAL

A. B. POKU-ACHEAMPONG, J. A.

I agree

(SGD.)

A. B. POKU-ACHEAMPONG

(JUSTICE OF APPEAL)

COUNSEL

JUSTICE SALLAH FOR RESPONDENT/APPELLANT

YEHODA KOTEY FOR APPLICANT/RESPONDENT