SEBASTIAN DZAISU & 92 ORS V GHANA BRWERIES LTD.

JUDGMENT

SOPHIA ADINYIRA (MRS.), J.S.C.: 

The Plaintiffs/Appellants (hereinafter called the appellants) were employed as casual workers by Ghana Breweries Ltd, the Defendant/Respondent (hereinafter called the Respondent), in various periods ranging between the years 1993 to April 2003. The appellants claimed they did the same work as the permanent workers and yet were denied all other benefits and allowances, which the Respondent made available to the regular or permanent workers under a Collective Bargaining Agreement (CBA). Some of these benefits were particularised in Paragraph 5 of the statement of claim to include: overtime, night allowance, annual leave, back pay and participation in credit and trade unions. According to the appellants they made several petitions to the respondent to upgrade and make them permanent employees without success. They also wrote to the Labour Office for help but to no avail, so they instituted this action before the High Court (Fast Track Division) Accra, claiming:

i. A Declaration that:

[a] The employment by the Defendant of the Plaintiffs as casual workers and others as regular workers for the same work on different terms or conditions of employment;

[b] The Defendant’s failure to ensure that the Plaintiffs received or had adequate rest, leisure and reasonable limitation of working hours and period of holidays with pay;

[c] The purported mass termination of the plaintiffs’ appointments or dismissal howsoever called were wrongful, discriminatory, unjust, unfair, unconscionable and offend articles 16[1], 21[1] [e] and 24 of the Constitution of 1992 as well as the Labour Decree 1967 [NLCD.157]; and

[d] The Plaintiffs were entitled to be placed on the same terms and service conditions as that of the other regular workers of the Defendant, including, but not limited to the full package under the CBA and all other benefits paid by the Defendant to the regular workers from time to time.

[ii] An order directed to the Defendant to compute subject to verification by a Court Appointed Expert and pay to the Plaintiffs allowances, benefits, entitlements which were ordinarily or otherwise available to the regular workers and to which they were entitled but were denied, with interest thereon from respective dates on which the amounts first became due.

[iii] An order for the appointment of a Court Expert to receive from the Defendant all relevant record books and information relating to Plaintiffs’ entitlements, allowances etc. for the express purpose of computing Plaintiffs’ entitlements, allowances, benefits or any financial package payable or due to the Plaintiffs in connection with their employment;

[iv] Damages of ¢200,000,000.00 for wrongful termination of appointment; and

[v] Further or any other orders or Reliefs as the Honorable Court will deem meet.

The respondent denied the claim on the main grounds that the appellants as casual workers were not entitled to be upgraded as permanent workers despite their long stay in the company; and that in any event they offered them permanent service contract in place of the day-to-day contract subject to routine medical examination but they refused.

For brevity, the main issues set down for determination at the trial will be set out in the course of this judgment.

At the trial the 1st appellant gave evidence for himself and on behalf of the other 92 appellants. He said in November 1992 the respondent employed him as a casual worker and he worked in the respondent’s Company for about 10 years. He worked at the raw material section until 16 March 1993 when he was transferred to the bottling hall. He said they worked on the same shift with the permanent workers and did the same work but were put on different working conditions and denied certain benefits as categorized in the statement of claim. He said “to my understanding casual work is brief work which is being done daily or weekly or a period of 3 months.’ He conceded that as a casual worker the Collective Bargaining Agreement (CBA), which applied to only permanent employees, did not cover him. He expected that after working with the defendant for a period of 6 months, he was entitled to be upgraded and made a permanent staff in order to benefit from the CBA.

The respondent gave evidence per its Company Secretary/Legal Adviser as DWI and the Personnel and Training Manager as DW2. Their evidence was to the effect that the appellants were casual workers and they did not do the same work as the permanent employees. As casual workers they were not covered by the CBA, which only applied to permanent and unionized employees.

The appellants lost the case both at the High Court and Court of Appeal. They have come to this Court on the sole ground of appeal that “the judgment was against the weight of evidence at the trial.” In his statement of case, Counsel set out 4 issues to be argued under this omnibus ground of appeal. These are:

1. “That the view formed by the High Court and affirmed by the Court of Appeal on the plaintiffs’ relationship to the CBA was against the weight of evidence adduced at the trial.
2. The trial judge’s finding affirmed by the Court of Appeal that the plaintiff were not entitled to a graduation from casual workers to permanent employees nor to any relief founded on statute was manifestly wrong and unjust.
3. The High Court and the Court of Appeal erred in holding that the plaintiffs were not to be allowed any reliefs founded on the statutes cited because the pleadings were contrary to Order 19 rule 16 of LN 140 A and/or that a surprise would thereby be caused to the defendant.
4. The finding by the Court of Appeal that the plaintiffs did not do substantially the same work as the permanent staff was against the evidence led at the trial.”

 For clarity in this judgment, we do not propose to deal with the above issues in the order presented by counsel for the appellants. The Court of Appeal affirmed all the findings of facts by the trial court except one. We propose to deal with this first as it raises pertinent issues on the burden of adducing evidence at a trial and the role of an appellate court in assessing findings of facts by a trial court. 

“1. THE FINDING BY THE COURT OF APPEAL THAT THE PLAINTIFFS DID NOT DO SUBSTANTIALLY THE SAME WORK AS THE PERMANENT STAFF WAS AGAINST THE EVIDENCE LED AT THE TRIAL.”

It is a basic principle in the law of evidence that the burden of persuasion on proving all facts essential to any claim lies on whosoever is making the claim. Section 10(1) of the Evidence Act, 1975, Act 323 defines burden of persuasion as:

“(1) For the purposes of this Decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court.” and

 Section 11 (1) defines the burden of producing evidence as:

(1)  For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.”

The appellants by paragraph 5 of their statement of claim pleaded that:

“At all material times the defendant maintained a second stream of employees that were categorized as regular or permanent workers who did the same jobs and performed the same duties as the plaintiffs, with the important distinction being that, apart from basic salaries, the plaintiffs were, for all practical purposes, denied all their benefits and allowances which the defendant made available to the regular workers.’

This was flatly denied by the appellant in it statement of defence and put the appellants to strict proof. This averment by the appellants became one of the crucial issues set down by each party for determination when directions were taken. For purposes of clarity we have set them out here.

Issue 1 set down by the plaintiffs was: “Whether or not the employment by the Defendant of the Plaintiffs as casual workers and others as regular workers for the same work but with distinct and separate terms or conditions of service was unlawful and unconstitutional.”

Additional issues set down by the defendant was: b) “whether or not the various categories of workers employed by the Defendant performed the same duties as the plaintiffs alleged.”

 c.) “Whether or not the employment of the various categories of Defendant’s employees are based on terms of employment mutually agreed upon as averred.”

Since it was the appellants who made this assertion, the burden of proof was therefore on them to prove that they did the same work as the permanent staff. See Section 14 of Evidence Act supra, which provides that:

“Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting”.

The Ist appellant in mounting the witness box merely repeated Paragraph 5 of the statement of claim without any elaboration. Neither did he call any witness in support of this. Counsel for the appellant urged upon this Court that the respondent did not cross-examine the 1st appellant on this bare assertion and must therefore be deemed to have admitted the appellants’ claim that that they did the same work as the permanent workers. Counsel is obviously referring to the line of Ghanaian authorities like Akyea-Djamson v. Duagbor and Others (1989-90) 1GLR 223 which applied the dicta of Herschel L.C. in Browne v. Dunn (1894) 6 R. 67 at 71, H.L. and of Adumua-Bossman J.S.C. in Ayiwah v. Badu [1963] 1 G.L.R. 86 at 95, S.C. Counsel said further that had the 1st appellant’s evidence been challenged he would have called further evidence in support. We are not impressed by this argument as the principle that when a party fails to cross-examine on an issue that issue would be ruled against him is not an inflexible rule. It is trite law that a bare assertion by a party of his pleadings in the witness box without proof did not shift the evidential burden onto the other party. Furthermore, we believe that, it is an art of cross-examination for a counsel to know when it is wise to be terse in cross-examination so that the person being cross-examined is not given the chance to fill in the ‘pot holes’ in the evidence he/she gave during examination in chief.

 In any event it is not correct that the defendant did not cross-examine the 1st appellant on this issue. The Ist appellant was cross-examined extensively on the two categories of workers and their different conditions of service in the company. He admitted that the service conditions of the two categories of workers were different but claimed that after working with the defendant company for 6 months as casual workers, they were entitled to be upgraded as permanent employees so that they could enjoy the same privileges and fringe benefits under the CBA. The defendant not only cross-examined the appellant on this issue but also led evidence by DW1 and DW2 (which he was entitled to) as to the distinction between casual workers and permanent employees in the company. DW2 ‘s evidence in particular showed that the permanent workers were usually skilled and trained employees who worked on the sophisticated equipments in the brewery and the casual workers usually did manual work like packing crates of bottles and sweeping the factory floor. There was also evidence that the appellants were paid back pay, received fringe benefits like medical attention, and subsidized meals.

The trial judge in assessing the evidence on the issue whether the appellants did the same work as permanent staff concluded that:

 “Defendant led sufficient evidence for which I should find in their favour but I am bound by the authorities of Akyea-Djamson v. Duagbor and Others referred to since the plaintiffs were not challenged when they stated that they did the same work with the permanent workers.”

The Court of Appeal however set aside this specific finding by the trial judge for the following reasons:

 “When it comes to the finding of the trial court that the Appellants did the same work as the permanent workers, it is my opinion that the trial judge erred in coming to that conclusion since there was no evidence to support that conclusion. The Appellants never told the trial court what work they did as casual workers; nor did they state what work the permanent workers did.

The only evidence as to what each group did, came from the Respondents witness DW.2, but these pieces of evidence were never challenged. The learned trial judge therefore should not have come to the conclusion, which he did and found in favour of the appellants. We therefore hold that the Appellants’ job description as given by DW.2 is quite different from that of the permanent workers.”

Counsel for the appellants further complained that the respondent did not appeal against the finding of the trial court hence there was no basis for the reversal of this finding by the Court of Appeal. This is clearly a misconception, as an appellate court in appropriate circumstances has the right to interfere with the findings of fact by a trial court, if such findings of facts are not supported by evidence on record. This is trite law and therefore we will only cite the cases of Adokor v. Gatsi [1966] GLR 31 S.C. and Domfe v. Adu [1984-86] 1GLR 653 , where the duty of an appellate court is well expounded. The appellants as aforesaid were unable to lead sufficient evidence on this issue to discharge the burden of proof, which was on them. The trial court’s reliance on the case of Akyea-Djamson v. Duagbor is unfortunate as the facts are clearly distinguishable from that of this case, and secondly the principle enunciated in the case of Brown v. Dunn is not inflexible. We endorse the finding of the Court of Appeal that the plaintiffs did not do substantially the same work as the permanent staff. The appeal fails on this ground.

2. GRADUATION FROM CASUAL TO PERMANENT WORKER.

The appellants were demanding by this action that having worked for a period of more than 6 months in the respondent’s employment as casual workers, the respondent was obliged to convert their status from that of casual workers to that of permanent employees. Their Counsel argued that: “by graduation from casual to permanent status, the plaintiffs meant nothing more than to suggest that the defendant was to confirm their appointments as permanent staff after the first 6 months. The requirement by the trial judge that an employee must be able to point to a contractual term assumes that there was a written contract in place between the parties at the time the plaintiffs were engaged individually. But the overwhelming evidence was that there was no written contract.”  Counsel conceded that under the repealed Labour Decree NLCD 157 that was applicable at the time some of the plaintiffs were employed, it was not obligatory for an employer to convert the status of a casual labourer to that of a permanent employee. We will like to stress that the position is the same under the current Labour Act, 2003, Act 651, which was in force at the time this writ was issued. Furthermore the Labour Act does not require that a contract of a casual employment shall be in writing. See Section74 (1) which states: “A contract of employment of a casual worker need not be in writing.’

So the respondent cannot be faulted for not giving the appellants written contracts at the time of their employment.

 Having made such a concession, what then is the legal basis for Counsel to claim that the appellants ought to be graduated to the status of permanent employees? Counsel complained that the trial judge looked for evidence from a written agreement that was non-existent and in a statute, which had no such provision, whereas the evidence could be founded in the CBA. Counsel submitted that there was explicit provision in the CBA “that anyone recruited as a casual who worked in excess of 6 months must be deemed to be a permanent worker.” We are completely taken aback by this statement by counsel in the face of the clear and unambiguous words of Article 3(e) which states: Apart from casual employees, no person shall be engaged for more than 6 months on temporary basis and that after six (6) months such person shall be deemed to have become permanent.” (Emphasis mine) This provision clearly and explicitly does not cover casual employees. This particular section in our opinion applies only to temporary workers who are in a class different from casual workers. The Labour Act, recognize this distinction in the various categories of workers in the definition of a worker under section 175: "worker" means a person employed under a contract of employment whether on a continuous, part-time, temporary or casual basis.” (Emphasis mine). In our opinion Article 3 (e) of the CBA is coterminous with the wording and legal position as found under section 75 (1) of the Labour Act. Section 75 (1) states:

“A temporary worker who is employed by the same employer for a continuous period of six months and more shall be treated under this Part as a permanent worker”.

So clearly there is no statutory or contractual basis upon which the appellants could anchor their claim for graduation from the status of casual workers to that of permanent workers. This ground is clearly misconceived and therefore fails. For the same reasons, the other complaint that “the High Court and the Court of Appeal erred in holding that the plaintiffs were not to be allowed reliefs, founded on the statutes cited because the pleading was contrary to Order 19 rule 16 of LN140A and/or that a surprise would thereby be caused to the respondent” is of no moment, and hereby dismissed. 

Accordingly we hold that that the trial judge’s finding affirmed by the Court of Appeal that the plaintiffs were not entitled to a graduation from the status of casual workers to permanent staff as valid.

1. PLAINTIFFS RELATIONSHIP TO THE CBA

The common ground in this case, if we may repeat ourselves, is that the appellants as casual workers were not members of the ICU of TUC of Ghana Breweries Ltd and they were also not covered by the CBA. However, Counsel for the appellants is urging upon this Court that, “ as a matter of law the ICU holds a bargaining certificate to represent all industrial workers in the defendant’s company without distinction as to permanent or casual employee. Section 10 of the Industrial Relation Act, 1965, Act 299 provides that an agreement concluded by a trade union shall, so far as the terms of the agreement permit, apply to all workers of the class specified in the certificate. The class envisaged under the CBA was the junior staff without distinction as to casual or permanent status. It therefore permitted the application of its terms to all employees including the plaintiffs”

The respondent on the other hand contended that casual workers are not a class of employees within the contemplation of the CBA. 

It is to be noted that the Labour Act, 2003, Act 651, has repealed the Industrial Relation Act, and the relevant section is now Section 105 (1) of Act 651, which provides in similar terms that:

“ (1) An agreement concluded by a trade union through a standing negotiating committee or a joint standing negotiating committee shall, so far as the terms of the agreement permit, apply to all workers of the class specified in the certificate.”(Emphasis ours)

It is our considered opinion that “ all workers of the class specified in the certificate” refers to no other class than members of the particular branch of the TUC, on whose behalf a CBA is signed. The CBA before us was signed between the Ghana Brewery Ltd and the Industrial Commercial Union (ICU) of TUC Ghana, so it will obviously apply to only the members of the ICU of TUC in Ghana Brewery Ltd,, unless there is an express provision to the contrary in the CBA. This Court has to look at the CBA as a whole to resolve this issue.

In the preamble to this particular CBA which was tendered in evidence as Exhibit C, it was stated that:

 “This Agreement shall apply to a) All employees in the Company at the time of concluding and signing the agreement. b) All new employees taken on after the agreement”.

We have been invited by counsel for the appellants to interpret the word “employee” in clauses a) and b) of the Preamble to the CBA to cover “all employees” without distinction as to casual or permanent status in the company. We are of the opinion that such interpretation would lead to an absurdity, as senior staffs and supervisors are also permanent employees but are not covered by the CBA. So we have to look at the language used in the relevant Articles in the CBA as a whole.

 Article 2(a) provides that:

For the purpose of this Agreement

(a) “the term ‘Employee’ shall apply to all employees covered by this agreement”. What does “All employee covered by this agreement” mean? We can find some assistance in Article 5 which states that: “ Every employee covered by this agreement shall be deemed to be a member of the Union and shall pay Union Dues uniformly leveled against all members of the Union”. Properly construed, Article 5 is referring to the class of workers who are deemed to be members of the Union and on whose behalf the CBA was signed. Logically, unless a worker is a member of the TUC he cannot fall within the scope of the CBA. In the respondent’s company casual workers are not members of the Union so they do not automatically fall in that class of employees covered by the CBA as counsel for the appellants wants us to believe.

Article 3 also provides some guidance. It states: “(a) On engagement of any Employee who falls within the scope of this Agreement, the Employer shall furnish him with a copy of this Agreement. (b) The employer shall give the newly engaged employee a letter of appointment stating salary (starting point), salary scale, effective date, probation period, job title, department assigned, (c) An employee so engaged shall normally undergo a probationary period of three (3) months but not exceeding six (6) months. Unless informed in writing to the contrary, the employee who has completed his probation will be deemed to have been confirmed in the appointment. (d) Before a probationer’s service is terminated for unsatisfactory work and conduct, his performance should be appraised on two occasions with a reasonable interval in between and the results of the appraisals known to him, (e) Apart from casual workers no person shall be engaged for more than six (6) months on temporary basis and after six (6) months such person shall be deemed to have become permanent. (f) The Union shall be informed of all engagements involving junior employees.”

We are inclined to agree with counsel for the respondent that the provisions of Article 3 can only apply to an employee who has applied for a permanent position, been interviewed, appointed on merit and given an appointment letter, which usually puts the person on probation. Such mode of appointment is in contrast to the mode of appointment of a casual worker, who is usually as in this case employed on a daily basis and is obliged to go and come as he wished without notice to his employer. His employer is also not obliged to give him notice on termination of his contract of employment. The evidence on record was that the appellants were engaged on daily basis at the gate of the company’s premises as and when work was available. Obviously such casual workers employed on daily basis cannot be given appointment letters on a daily basis and put on probation as stipulated under Article 3 (c) and (d) of the CBA. The only understanding was that as and when they work, they were marked and paid daily wages, which they collected at the end of each month according to the number of days they have worked. This is the usual accepted practice of casual labour. Neither the employer nor the casual worker is required to give the other notice to terminate the contract of employment. As a result the reference to employees in Articles 34, and 36 on redundancy, resignation and termination of contract do not cover casual workers. The casual worker was free to go and come and the respondent were not obliged to hire him for the day.

From the foregoing we hold that the term “all employees” as used in the preamble of the CBA and in other Articles does not apply to a casual worker in the respondent’s company, but rather applies to unionized and permanent workers who are members of the ICU of the TUC branch at Ghana Breweries Ltd.

 However we wish to stress that although there is no legal requirement that a contract of employment of a casual worker need be in writing, yet Section 74 (2) of the Labour Act, offers a casual worker some protection in the form of conditions of employment, which every employer is obliged to comply, and are therefore actionable. These are:

 “ A casual worker shall

(a) be given equal pay for work of equal value for each day worked in that organisation;

(b) have access to any necessary medical facility made available to the workers generally by the employer;

(c) be entitled to be paid for overtime work by his or her employer in accordance with section 35; and

(d) be paid full minimum remuneration for each day on which the worker attends work, whether or not the weather prevents the worker from carrying on his or her normal work and whether it is possible or not, to arrange alternative work for the worker on such a day.”

 These provisions are to prevent an employer from exploiting casual workers on the labour market in the absence of a written contract. The respondent gave evidence, which showed section 74 (2) of the Labour Act was complied with. The respondent paid the casual workers wages, back pay, and provided subsidized meals, medical services and some protective clothing to the casual workers and even at the last minute before this action was commenced, offered written contract of casual employment, in the form of Exhibit D, to the appellants but they rejected the offer. 

On the totality of the evidence on record we do not find any fault with the conclusion reached by the trial court and as affirmed by the Court of Appeal that the CBA did not apply to the appellants. There is also no evidence upon which to grant the appellants any of their reliefs, as there is no evidence of discrimination, unfair treatment or victimization or wrongful dismissal against any of the casual workers.

For the above reasons the appeal fails in its entirety and it is accordingly dismissed. The decision of the Court of Appeal to dismiss the appeal is hereby affirmed. Accordingly the judgment of the High Court is hereby affirmed.

S.O.B. AKUFFO (MRS)

JUSTICE OF THE SUPREME COURT

S.A. BROBBEY

JUSTICE OF THE SUPREME COURT

J. ANSAH

JUSTICE OF THE SUPREME COURT

S.O.A. ADINYIRA (MRS)

JUSTICE OF THE SUPREME COURT

S.K. ASIAMAH

JUSTICE OF THE SUPREME COURT

COUNSEL:

Kweku Y. Paintsil for Appellants.

George Agyemang-Sarpong for the Respondent.