EDMUND SIAW AKUGBEY V. CARE INTERNATIONAL GHANA

JUDGMENT

ASUMAN-ADU, J.

In an action against the Defendant filed on 7th May, 2009, the Plaintiff claims the following reliefs:-

1. A declaration that the summary dismissal of the Plaintiff was unlawful.

2. Recovery of all computed entitlements lawfully due the Plaintiff.

3. General damages.

4. Interest on the computed entitlements at the prevailing bank rate from the 20th day of December, 2007 to date of final payment.

The Defendant entered appearance on 2nd June, 2009 and subsequently filed its Statement of Defence on 24th June, 2009. In an accompanying Statement of Claim, the Plaintiff avers that he was a former employee of the Defendant who is an International Non-Governmental Organization. Until the 1st day of August, 2007 the Plaintiff was an Administrator/Accountant of the Defendant organization when he was summarily dismissed as per a dismissal letter dated the 20th day of December, 2007. Before his dismissal he was stationed at the Takoradi sub office of the Defendant Organization.

The Plaintiff goes on to aver that he was dismissed based on an allegation that he had been demanding 10% cut on procurement contracts issued by the Defendant Organization and that same had been confirmed by a vendor of same in his presence. He refuted the aforesaid allegation via a letter dated 23rd day of May, 2008 but he received no response from the Defendant. In view of that he wrote a reminder to the Defendant but that also fell on deaf ears.

Plaintiff contends that he was never given a hearing by the Defendant and that since he was dismissed summarily he had to forfeit all entitlements due him. Prior to his dismissal his basic salary was GH¢626.16 together with a transport allowance of GH¢42.00.

Plaintiff claims that since his dismissal he has been saddled with the problem of providing sustenance for his family. He has been ejected from his 2-bedroom house because he cannot afford same and now lives in a single room with his wife and two kids. Further to this he is unable to continually pay the school fees of his children. Also he is unable to remit his aged mother very often. He has now become the subject of public odium and ridicule.

He concludes his Statement of Claim by stating that his dismissal was unlawful and without foundation so the Court should so declare.

The Defendant denies the claim of the Plaintiff in a Statement of Defence filed on 24th June, 2009 in which it avers that the Plaintiff served a probationary period from 1st August, 2007 until 20th December, 2007 when his employment was lawfully terminated in accordance with his conditions of service and contract of employment. It admits that the Plaintiff was dismissed based on allegation that he had been demanding 10% cut on procurement contracts issued by the Defendant which he admitted in November, 2007 at the Takoradi office of the Defendant before his employment was terminated.

The Defendant avers that even though it received the two letters written to it by the Plaintiff on the termination of his employment, there was no need to send a response to the said letters because the Plaintiff’s employment had been lawfully terminated in accordance with his conditions of service and contract of employment.

The Defendant denies that the Plaintiff was not given a hearing by the Defendant. It states that the Plaintiff was questioned by his supervisor in November, 2007 and given an opportunity to respond and that he admitted the allegation and further stated that he meant it as a joke. Subsequent to that the Plaintiff and his supervisor went to the vendor in question who in the presence of the Plaintiff confirmed the allegation.

The Defendant goes on to aver that under Plaintiff’s conditions of service he was not entitled to any end of service benefits since his employment was terminated summarily. He is as a result not entitled to his claim.

The Plaintiff filed application for directions on 24th July, 2009 in which it listed down the following issues for trial:

(a) Whether or not the Plaintiff’s dismissal was lawful.

(b) Whether or not Plaintiff had allegedly demanded 10% cut on procurement contracts issued by Defendant.

(c) Whether or not a vendor confirmed the fact of Plaintiff’s alleged demand for 10% cut on procurement contracts issued by Defendant.

(d) Whether or not Plaintiff admitted the allegation of having demanded 10% cut on procurement contracts issued by Defendant.

(e) Whether or not Plaintiff is entitled to his claim.

(f) Any other issues arising out of the pleadings.

No additional issues were filed by the Defendant so on 11th August, 2009 the Court set down all the issues filed by the Plaintiff for trial.

At the trial the Plaintiff’s case which was essentially a repetition of his averments in the Statement of Claim was presented by the Plaintiff himself and one other person. In his evidence-in-chief given on 25th June, 2010, the Plaintiff told the Court that in August, 2007 he was employed by the Defendant as the Accountant/Administrator for Defendant’s Takoradi sub-office. However, by a letter dated 20th December, 2007, he was summarily dismissed by the Defendant. He tendered the dismissal letter in evidence as Exhibit A. On receipt of the said letter he wrote to the Manager of the Defendant Organization denying the allegation made against him but the Defendant did not reply so he wrote a reminder to it but he heard nothing from the Defendant. He tendered in evidence the two letters as Exhibits B and C respectively.

According to the Plaintiff what actually happened in respect of the allegation as a result of which he was dismissed was that in the course of the discussion on his appraisal with his supervisor, the supervisor told him that he had heard that the Plaintiff had been asking suppliers of the Defendant to give him 10% of all purchase prices but he denied it. He, therefore, refused to sign the appraisal form. It is, therefore, not true that he confirmed the allegation in the presence of the vendor who allegedly made that allegation. It is also not true that he has demanded 10% of the purchase prices from suppliers.

The Plaintiff claims that the dismissal has affected him financially as a result of which he is unable to do a lot of things he was doing by himself previously such as payment of his children school fees. His salary was GH¢626.00 a month. In addition to that he was given GH¢42.00 a month as transport allowance. He was also to be given GH¢400.00 every August, as Education Fund.

The Defendant’s case was presented by Albert Katako and Kenneth Hisson. Albert Katako is the Programme Coordinator of Defendant. He tendered in evidence Plaintiff’s appointment letter as Exhibit 3. He told the Court that paragraph 7 of the said exhibit states that the Plaintiff was to be on probation for three months and that in case he is not found satisfactory, he would either repeat the probation or his appointment would be terminated. Paragraph 8 also deals with standards of professional conduct.

He claims that he appraised the Plaintiff’s performance after the first three months and recommended that his probation be repeated in order for him to improve his competency and also demonstrate circumspection in his work. He went on to tell the Court that Plaintiff was dismissed because he has been demanding 10% kick back of the value of cheques that were paid to organizations and people supplying goods to the Defendant. The particular company involved as a result of which he was dismissed was Hecta Bookshop based in Takoradi. He told the Court that he was informed by the staff in his office that the Plaintiff had asked for 10% of the cheque value of Hecta Bookshop. He claims that on receipt of that information he went to Hecta Bookshop independently to find out what actually happened. After that during the appraisal of the Plaintiff he raised the issue with him. He initially denied it so he gave him a gist of the discussion he had at Hecta Bookshop and he said it was a silly joke he made.

Later the witness together with the Plaintiff went to Hecta Bookshop where the gentleman in question narrated every discussion that had taken place between him and the Plaintiff. The Plaintiff, however, said nothing in reaction to the narration made by the gentleman at Hecta Bookshop

He went on to tell the Court that Plaintiff’s employment was governed by the HR Manual as stated in his appointment letter. He said when Plaintiff was employed he was taken through orientation package which included the HR Manual so the Plaintiff was aware of the Manual. He tendered in evidence Section 4.1 of the HR Manual as Exhibit 4. He also tendered in evidence Section 5.3 of the HR Manual which deals with End of Contract of employment in the Manual as Exhibit 5.

He ended his evidence-in-chief by saying that the termination of the Plaintiff’s appointment is lawful so he is not entitled to be paid any benefit.

One Kenneth Hisson who was formerly working with Hecta Bookshop gave evidence as DW1. He told the Court that on a certain day when he was working at Hecta Bookshop he had a call that his cheque was ready for collection at Care Takoradi. He, therefore, went there. When he got there he was asked to see the Accountant. He normally received his cheques at the Administration office but this time around they said the Accountant wanted to see him so he decided to go to his office to see him. He said that the Accountant was the Plaintiff. When he got to the Plaintiff’s office he asked him whether he was the Accountant of Hecta Bookshop and he answered in the affirmative. The Plaintiff then said then he would want to see the Manager too and the witness said he was the same person managing the place. The Plaintiff then said that if so then he was the right person to discuss the deal with. The witness asked the Plaintiff what he should do and he said he hoped the witness as an Accountant knew what transpired between Accountants. The witness claims that he was wondering what was going on so he asked him if he could open up to him. The Plaintiff said that he could not come and collect his cheque without doing something. So he should do something so that they also pushed on. The witness asked him what he could do and he said the witness should look at the amount involved and offer something for he could not ask him the amount to offer. He told the Plaintiff that he would have to discuss with his CEO first. When he went back he informed his CEO of it and also informed the Administrator of Care Takoradi.

The Administrator and one other went to see the witness for confirmation of the discussion that took place between him and the Plaintiff and he confirmed the discussion to them. They went to him again in the company of the Plaintiff and he narrated everything to them. According to him Albert Katako asked the Plaintiff what he had to say about what the witness said. He never responded nor said anything to that. He, however, denied during cross examination that the Plaintiff demanded 10% of the value of cheques he collected.

From the pleadings and the evidence before the Court the issues for determination could be grouped as follows:-

a. Whether or not the Plaintiff’s dismissal was lawful and

b. Whether or not Plaintiff is entitled to his claim.

On the issue of whether or not the Plaintiff’s dismissal was lawful, it is the duty of the Plaintiff to prove to Court that by his terms of employment or by the terms of existing statutory provision the termination of his appointment by the Defendant Organization was unlawful. The principle on this is provided in the case of Morgan and Ors. v. Parkinson Howard Ltd. (1961) GLR 68 in which Ollenu J (as he then was) stated at page 70 as follows:

“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.”

This position of the law was adopted by the Supreme Court in the case of Kobi v. Ghana Manganese Co. Ltd. [2007-2008] SCGLR 771 at Page 786 where Ansah JSC states as follows:

“The issues agreed upon for trial, were whether or not the termination of the Plaintiffs’ appointment was wrongful and illegal and whether or not the Plaintiffs were entitled to their claims. This being an action for damages for wrongful dismissal, each Plaintiff assumed the burden of proving the terms of his employment; that the determination was in breach of the terms of the agreement, or in contravention of statutory provisions for the time being regulating employment. If a Plaintiff failed to satisfy the Court on these points, his or her claim cannot succeed.”

In applying the principles in the authorities referred to above to the current case, it is my view that the current action being an action for damages for wrongful dismissal the Plaintiff herein assumed the burden of proving to the Court his terms of employment and that his dismissal from the Defendant’s employment is in breach of the terms of his employment, or it is in contravention of statutory provisions for the time being regulating employment. This Court will, therefore, have to find out from the evidence before it whether the Plaintiff has been able to satisfy those principles in the current case.

In his evidence-in-chief he just told the Court that the Defendant has unlawfully dismissed him from its employment without proving to the Court his terms of employment. He never tendered in evidence his terms or contract of employment. Also he never referred the Court to any statutory provisions regulating his employment. Even in his address to Court, counsel for the Plaintiff failed to address the Court on statutory provisions regulating the employment of the Plaintiff and that his dismissal was in breach of the terms of the employment or the statutory provision. The Plaintiff only tendered in evidence his dismissal letter and two letters he wrote to the Defendant to deny the allegation leveled against him. His evidence is, therefore, not sufficient for this Court to base on to determine whether or not his dismissal was wrongful.

From the authorities referred to the Plaintiff having failed to satisfy the Court on the principles his action fails. However, the Defendant states that the dismissal of the Plaintiff from its employment is lawful. It goes on to state that the Plaintiff’s employment with it was governed by the HR Manual and went on to tender in evidence relevant portions of the HR Manual. Having admitted that it actually dismissed the Plaintiff from its employment, the onus shifted to the Defendant Organization to justify it. See the case of Kobi v. Ghana Manganese Co. Ltd (supra). The same case goes on to state that in looking for justification for the action of the company, where a collective agreement existed between the employer and the employees that must be the yardstick or the acid test to apply.

In the current case as has been stated elsewhere in this judgment, the Defendant tendered in evidence Plaintiff’s letter of appointment and some aspects of the HR Manual that governed Plaintiff’s employment with the Defendant as Exhibits, 2, 4 and 5 respectively. Exhibit 2 provides at paragraphs 7 and 11 as follows:

“7. Probation Period and confirmation of appointment

Your appointment’s confirmation is subject to the satisfactory completion of a three months probation during which period either party may terminate this contract. On satisfactory completion of the probation period, you will be confirmed in your appointment; if your performance has not been found satisfactory, your services may be terminated or your probation may be extended for another term.”

“11. End of appointment

a) Your appointment will end automatically on the due date as specified in Item 1 above.

b) The employment relationship can be terminated without notice by either party at any time during the probation period or at its end.

c) The employment relationship can end on resignation of the employee at any time by giving one (1) month notice in writing. Likewise, CARE can sever the employment relationship by giving one (1) month notice to the employee in writing.

d) This Agreement can also be terminated in accordance with the labour law, notably on the grounds as specified in Section 15 and 65 of the Labour Act, 2003 (ACT 615).

Where the required notice of termination is not given, the party withdrawing from the contract will pay to the other party a sum equal to the amount of remuneration which would have been due to the employee during the period of notice, in accordance with Section 18, (4) of the Labour Act, 2003 (ACT 615).”

Exhibit 2 which was signed by the Plaintiff on 1st August, 2007 to signify his acceptance of the terms and conditions therein is very clear on how the employment relationship between the Plaintiff and the Defendant could be terminated. By the terms of the provisions in that exhibit, Plaintiff was supposed to be on probation for a three months period. It goes on to show that during that period his employment could be terminated without notice. However, on satisfactory completion of the probation period he would be confirmed in his employment. In that case his appointment could be terminated after one month notice or one month pay in lieu of notice. On the other hand if his performance has not been found satisfactory by the end of the probation period his services could be terminated or the probation period could be extended for another three months period.

In the current case, the evidence shows that Plaintiff’s performance was not found satisfactory so it was recommended that his probation period be extended for another three months period. Evidence on this was given by Albert Katako who gave evidence for the Defendant. He told the Court in his evidence-in-chief that at the end of the three months probation period he appraised the Plaintiff and recommended that his probation period be repeated. This evidence is corroborated by Exhibit 1 which was tendered in evidence by the Defendant through the Plaintiff.

It is observed that when counsel cross examined Albert Katako he did not deny his evidence on the extension of probation period for the Plaintiff. Since that evidence was not denied by the Plaintiff during cross examination it is deemed that the Plaintiff has accepted the evidence on the extension of his probation period to be the true position. See the case of Quagraine v. Adams (1981) GLR 599.

The evidence before the Court shows that the Plaintiff was offered the appointment with effect from 1st August, 2007 so he had up to 30th October to complete his probation period. His performance was, however, reviewed on 10th December, 2007 and it was recommended to be repeated. This shows that he had up to 31st January 2008 to complete his probation. Meanwhile, his appointment was terminated on 20th December, 2007, which implies that his appointment was terminated within the probation period. So by the terms of paragraph 11 of Exhibit 2, his appointment could be terminated without notice.

In further justification of the dismissal of the Plaintiff from the employment of the Defendant, the Defendant tendered in evidence Section 5 of the HR Manual, which is captioned, “End of Employment Contract.” It provides at paragraph 5.1(2) the reasons for which an employee’s contract of employment could be terminated. These are as follows:-

- By mutual agreement between the employee and the organization,

- By the employee on the ground of ill-treatment or sexual harassment,

- By the Organization on death of the employee,

- By the Organization if the employee is found on medical examination to be unfit for employment,

- By the Organization because of inability of the employee to carry out his/her work due to:

i. sickness or accident,

ii. incompetence or unsatisfactory performances,

iii. proven misconduct.

In the instant case the evidence before the Court shows that Plaintiff’s appointment was terminated per Exhibit A which provides the reason for which his appointment was terminated. For the avoidance of doubt I will want to refer to the said letter in this judgment.

“December 20, 2007

Edmund Siaw Akugbey

CARE Sub-Office

Takoradi

Dear Edmund,

SUMMARY DISMISSAL

It has come to the attention of Management, that an allegation has been brought against you by some CARE preferred vendors that you have been asking for a 10% cut on procurement contracts issued by CARE.

As a follow up to this allegation, you were questioned and given an opportunity to respond, your supervisor then went with you to the vendor in question, who confirmed his allegation to your supervisor in your presence, to which you confirmed that these events had indeed happened.

This is a very serious matter in the light of the fact that you are responsible for all procurements made at the sub-office level and also for all payments to the vendors. According to CARE HR policy manual Section 4 (Appendix 4.1), this constitutes major misconduct and has been taken very seriously by Management.

We therefore regret to inform you that in line with Section 5.1.5 of the CARE HR Policy Manual, we are terminating your employment with immediate effect. You are expected to hand over every property of CARE in your possession.

If you have any comments or queries on the above, please do not hesitate to contact me. Kindly contact the Administration and Human Resources Manager on Monday, January 7th, 2008 to collect your final entitlements.

Thank you for your attention.

Yours faithfully,

.............................

Mercy Vigoda

Mission Director

Cc: ANR Team Leader

Staff File”

From Exhibit A the main ground for the termination of the Plaintiff’s appointment was that he has been demanding 10% cut on procurement contracts issued by the Defendant from some vendors of the Defendant. The Plaintiff, however, denies that he demanded 10% cut on procurement contracts from suppliers. Rather, what he told the gentleman at Hecta Bookshop was that they should sometimes give gifts. He claims that was a joke but if they had given him the gift he would have accepted it. In his evidence, the gentleman at Hecta Bookshop, Kenneth Hisson, explained to Court that he was in his office one day when he had a call from Hecta Bookshop that his company’s cheque was ready so he should come for it. He as a result went to the Administration at Hecta where he normally receives his cheques but this time around he was told that the Accountant who happened to be the Plaintiff wanted to see him. He, therefore, decided to go and see him at his office. At the office of the Plaintiff he was given a seat and the Plaintiff enquired from him whether he was the Accountant of Hecta Bookshop and he answered in the affirmative so the Plaintiff told him he wanted to see the Manager. The witness told him that he was the same person managing the place. The Plaintiff then said then he was the right person to discuss the deal with.

According to the witness he asked the Plaintiff what he could do and he said being an Accountant he knew what transpired between Accountants. The witness was wondering what was going on so he asked the Plaintiff to open up to him. The Plaintiff then told him that what he was doing was to collect his cheque and left but he could not come for the cheque and go. At least he should do something so that they could also help him. The witness asked him what he could do and he said he should look at the value of the cheque and decide on what amount he could offer. The witness asked him to suggest something and he said he should decide on something from his heart. The witness then told him that then he would have to discuss with his CEO before they could decide on what to do. He as a result reported the conduct of the Plaintiff to his CEO and CARE Administrator.

The only question he was asked during cross examination was as follows:

“Q. it was alleged by Care International, the Defendant that the Plaintiff demanded 10% of the value of cheques that you went to collect from him?

A. No sir”

From the evidence of Kenneth Hisson the Plaintiff did not specifically demand from him 10% of the value of cheques he collected from CARE. The evidence, however, shows that the Plaintiff demanded that he should give him a proportion of the amount he collected. This was why the Plaintiff told him that he should look at the value of the cheque and decide on whatever he would offer him so that he would also help him. It should be noted that the witness was not challenged on his evidence on his encounter with the Plaintiff during cross examination. So by the principle in Quagraine v. Adams (supra) the Plaintiff acknowledges what the witness narrated to Court about what took place between them. The evidence corroborates the evidence of the Plaintiff that he told the man that they should at times give gifts. It, however, shows that it was not a joke as he wants the Court to believe. If it was a joke he would not have sent a message to the Administration that the man should see him at his office when he went there for his cheque. Also the discussion that took place between them shows that he meant business. It is, therefore, my opinion that even though he did not specifically demand 10% of the value of the cheques collected by the witness he made a demand from the witness for the payment of a proportion of the value of the cheque to him.

In his address counsel for the Plaintiff argues that since Defendant could not prove the allegation that the Plaintiff demanded 10% cut on procurement contract from vendors the evidence of the Plaintiff should be accepted as being more reasonable so judgment should be entered for him.

It is true that the Defendant could not lead evidence to prove that Plaintiff specifically demanded 10% cut on procurement contracts, there is, however, no doubt from the evidence that he made a demand from Kenneth Hisson that a proportion of the value of a cheque he had collected should be given to him. This contravenes an aspect of Exhibit 4 which states that in conducting CARE business and other relationships outside CARE employees should not accept or seek anything of material value from vendors or persons providing services/materials to CARE.

It must be noted that in dispensing with the services of an employee, an employer was at perfect liberty to either give or refuse to give reasons; he may give good reasons, bad ones or none at all. See the case of Aryee v. State Construction Corporation [1984-86] 1 GLR 424 at Holding 1:

“(1) a contract of service was not a contract of servitude. To say as we were wont to do, that it gave rise to a servant-master was to distort reality... The contract was framed in such a way that either party might bring it to an end and free himself from the relationship painlessly. In this case, the appellant could, at any time, give the relevant three months’ notice or forfeit an equivalent in salary and leave the corporation without justifying his action to the corporation. In the same way the corporation need not assign any reason for choosing to terminate their contract with the Defendant. The contract merely required the corporation to give three months’ notice or the equivalent in salary and their conduct would be perfectly in order. On the evidence, the corporation discharged that obligation by giving the appellant three months’ pay in lieu of notice. In the event, the termination was perfectly in accordance with the contract of service and could not be wrongful. The corporation misled the appellant, and perhaps the Court below, by seeking to state the reasons for its action it need not do that. The fact that it did, however, did not detract in any way from the general validity of their action...”

However, in seeking to exercise the right to give or not to give reasons, fairness must be the watchword. Every allegation of misconduct must be proved. In the instant case though the Defendant could not prove that the Plaintiff specifically demanded 10% cut on procurement contract there is an overwhelming evidence that he made a demand of a proportion of the value of a cheque paid to the Hecta Bookshop man. This amounts to misconduct which contravenes Section 5.2 of Exhibit 5. The Defendant has, therefore, led enough evidence to prove misconduct against the Plaintiff. There is, therefore, a justification for the termination of Plaintiff’s appointment and I so hold.

The Plaintiff claims that he was not given a hearing by the Defendant before his appointment was terminated. However, the undenied evidence of the two witnesses for the Defendant shows that Albert Katako went to Kenneth Hisson in the company of the Plaintiff. Kenneth Hisson narrated to them what took place between him and the Plaintiff. After that Albert Katako asked the Plaintiff what he had to say about what Kenneth had said but he said nothing. Both Albert Katako and Kenneth Hisson told this to Court in their evidence-in-chief but they were not cross examined on it during cross examination which implies that both Plaintiff and his counsel acknowledge that the encounter described by Albert Katako and Kenneth Hisson actually took place. See Quagraine v. Adams (supra). The evidence, therefore, shows that even though a committee was not set up to hear the case, the procedure adopted by Albert Katako clearly shows that the Plaintiff was given the opportunity to confront his accuser in order for him to refute the allegation or not before his appointment was terminated but he said nothing during the encounter. He cannot, therefore, say he was not given a hearing before his appointment was terminated.

In conclusion it is my opinion that the Plaintiff could not prove that the termination of his employment breached his terms of employment or any statutory provisions which for the time being regulate his employment with Defendant. Also since the Plaintiff was still serving probation period the Defendant could terminate his appointment without notice so the Defendant did nothing wrong in terminating his appointment without notice. It is also my belief that since the Defendant has been able to establish that the Plaintiff demanded a proportion of the value of a cheque collected by the man at Hecta Bookshop which amounts to misconduct, it has been able to justify the termination of Plaintiff’s appointment, its failure to prove the 10% allegation notwithstanding.

In view of the foregoing the Plaintiff is not entitled to his claim. His claim is, therefore, dismissed and judgment entered for the Defendant. No order as to costs.

SGD

KWABENA ASUMAN-ADU J

(JUSTICE OF THE HIGH COURT)

COUNSEL

MR. D. K. SOKPOR FOE THE PLAINTIFF;

MR. JOHN OPOKU FOR THE DEFENDANT.