ISAAAC K. KOBI & 24 ORS V. GHANA MANGANESE CO. LTD

JUDGMENT

ATUGUBA, J.S.C.

The appellants were employees of the respondent company. Their terms of employment were, inter alia, set out in a collective Bargaining Agreement, exhibit AA.

On the 19th day of May 1999 some of the respondent’s workers went on a demonstration on its premises against the apprehended termination of the employment of the company’s resident doctor. Next day the workers found per notices to that effect, that the company had been closed down. Negotiations ensued between the Ministry for Employment and Social Welfare, representatives of the National Mineworkers Union, the workers and management of respondent. Consequently the appellants and the rest of the workers were asked to sign declarations of confidence in the management as a precondition for “re-adminission”. They did so but were rather issued with letters of rejection. Hence the action.

The appellants’ claims were dismissed both by the trial High Court and the Court of Appeal.

The appellants contend inter alia, that the judgment of the Court of Appeal is against the weight of evidence. It is interesting to note that the Court of Appeal acknowledged that the trial court’s judgment could not be supported on the evidence. What they regarded as the solid legal rock sustaining the appellants’ dismissal is stated at p.239 of the record of appeal per Quaye J.A, as follows:

“Even though the respondents did not lead sufficient or satisfactory evidence why the appellants and not any of the other employees had their appointments terminated, they have the legal right qua employers to dispense with any worker and no court can challenge that decision and act once the necessary payments had been made”,

This statement of the law is largely right. What I consider to be trite learning on this issue is that a contract of service is not a contract of servitude. That being so even if the contract of employment is silent on the question whether it is terminable, the common law implies a right to terminate the same by either side upon reasonable notice to the other. See BAUMAN v. HULTDNY PRESS LTD (1952) 2 ALLER 1121. Subject to this the right to terminate a contract of service is dependent on the terms of the contract and must be exercised in accordance there with.

Thus in GHANA COCOA MARKETING BOARD v. AGBETTOH (1984 – 86) 1GLR 122GA at 125 Apaloo C.J delivering the judgment of the court said:

“The Plaintiffs were servants of the appellant board (hereinafter referred to as the Defendant board) and had severally entered into written contracts of personal service with it.The available evidence shows that save salaries, the board had a stereotype type of letter of appointment and in it provision is made by which the board can dispense with the Plaintiffs’ services. The latter have a corresponding right. For instance clause 7 of the first Plaintiff’s letter of appointment (exhibit 6) provides that:“The appointment may be terminated by either party on giving three months’ notice or payment of three months’ salary in lieu of notice. The Board, however, reserves the right to dismiss you summarily on grounds of indiscipline and inefficiency.”

The effect of a termination of the Plaintiffs’ employment effected in contravention of such terms of employment was poignantly stated by Apaloo C.J at p.126 thus:

“At the very least it can be said that the purported termination which is, in fact, a removal from office, did not accord with the service contract between the board and the Plaintiffs. They were not removed for indiscipline or inefficiency. They were given no notice of their projected removal. In those circumstances, it cannot be gain said that the action of the interim management committee was unlawful”. 

See also ARYEE v. STATE CONSTRUCTION CORPORATION (1984 – 86) 1GLR 424 at 431 and KOBEA v. TEMA OIL REFINERY (2003 – 2004) SCGLR 1033.

In this case the collective agreement provides as follows:

ARTICLE 8 – DISCIPLINARY REGULATIONS

Introduction

a. There shall be a Disciplinary Committee comprising the Company and the Branch Union representatives to deal with all issues under this regulation.

b. The Company shall not terminate an employee’s employment without due consideration of his record.

c. Disciplinary measures shall be taken in accordance with the gravity of an offence having been proved beyond reasonable doubt and after according the suspect full right of defence either orally or in writing.

d. A schedule of offences that may constitute grounds for termination, summary dismissal and other disciplinary action is shown in Appendix (11).

Interdiction Procedure

a. If an employee is suspected of having committed an offence which would require investigation, he shall be interdicted on half pay pending the outcome of the investigation or final disposal of the case.

b. A period of 30 calendar days from the date the offence was committed shall be allowed for the final disposal of the case or the employee involved shall be paid in full pending the final determination of the case.

c. If after the investigation the Disciplinary Committee exonerates the employee, he shall be paid in full for the period of his interdiction.

Disciplinary Procedure

a. Where an employee commits an offence, he shall be disciplined in accordance with the schedule of offences. The offence shall be stated in writing.

b. Before the above disciplinary action is taken a discussion will be held with the employee regarding the offence. During this time, the employee shall be given an opportunity to make a statement or defend himself in the presence of a representative of the Branch Union.

c. A warning or suspension from work or termination of appointment or summary dismissal may be imposed as a result of the findings.

ARTICLE 10 – LEAVING THE SERVICE OF THE COMPANY

10.01 Introduction

a. The modes by which an employee may leave the service of the Company shall be as follows:

i. By termination of appointment

ii. By summary dismissal

iii. On resignation

iv. On reaching retirement

v. By retirement on medical grounds

vi. Upon incident of death

vii. On being declared redundant/or through severance

b. The Company shall upon request, give a certificate of service to any employee who leaves the service of the Company.

10.02 Termination of Employment

In the event of an employee being found guilty of an offence under termination in accordance with the schedule of offence the Company may terminate the employee’s appointment by giving him one month notice or pay in lieu of notice.

10.3 Summary Dismissal

a. In the event of an employee being found guilty of an offence under gross misconduct in accordance with the schedule of offences he shall be summarily dismissed”.

The appellants contend that both the trial High Court and the Court of Appeal overlooked the fact that even if the respondent had exercised his power of termination of the appellants’ employment, it did not comply with the terms thereof as set out above.

The respondent did not pursue the disciplinary procedure laid down in the aforementioned provisions, particularly articles 8.01 to 8.03 and 10.01 to 10.03.

The failure by the respondent to pursue the said laid down procedures has been fully admitted by the respondent’s representative, Jurgen Eijgendaal. At pp. 77 to 78 between lines 18-38 and 1-22 of the record of appeal he testified under cross-examination as follows:

“Q. At your end, you cannot dismiss a worker without first setting up a committee of enquires?A: TrueQ: In the present case, Ghana Manganese Company cannot lose confidence in a worker until he commits an offence?A: Yes.Q: Where Ghana Manganese Company worker has committed an offence, leading to lost of confidence, a committee is set up to go into the matter?A: Yes.Q: The committee is made up of Management representative, Union representative where the worker is unionized?A: Yes.Q: It is only when the worker is found wanting that Management can terminate?A: Yes.Q: You have consistently made the point that the Plaintiffs were all terminated for lost of confidence?A: Yes.Q: I put it to you that the Plaintiffs were terminated without Management first setting up a committee of enquiries to go into the matter?A: This case is a special one. There was a breach of communication between Management and branch unions and senior staff. It was taken up to a higher level, bringing in the Ministry of Employment and the National Mines Workers Union.Q: I put it to you that, that not withstanding, the Plaintiffs could not have been terminated without setting up a committee at the Mines level?A: Because of this breach of communication we followed the directives of the Ministry of Employment.”

It is clear from this evidence and exhibits A to Z and AA that the Plaintiffs were dismissed from the company as from the 19th day of May 1999 (at any rate not later than the 20th day of May 1999) and not that their employment was merely terminated. In some cases a contract of service may provide for the right of termination simpliciter or with an additional right of termination after the pursuit of disciplinary procedures.

Where that is the situation one cannot fault the employer for resort to the alternative right of termination simpliciter without recourse to disciplinary procedures. Thus in ARYEE v. STATE CONSTRUCTION CORPORATION, supra, at pp. 431 – 432 Adade J.S.C said:

“In the light of the Defendant’s claim that he was not given a fair hearing, it is necessary to distinguish between two sets of provisions in exhibit C governing the severance of the employer-employee relationship by the corporation. These are: (a) termination of contract; and (b) summary dismissal. The end result of either action by the corporation is the same, ie that the employee ceases to be an employee. But they are different methods of bringing about the same result, and carry different incidents. We cannot share the view that in the context in which the terms are used in exhibit C they are synonymous and interchangeable terms.Article 49 is headed “Disciplinary Action” and the two terms are used to denote different forms of punishments. Article 49 is part of chapter VII, titled – “Discipline”. Termination and summary dismissal are two out of six kinds of punishments which may be meted out to erring officers. The other four are:(a) warning or reprimand;(b) deferring increment;(c) suspension from duty without pay not exceeding two weeks; and(d) reduction in rank and pay.But there is yet another form of termination which is not necessarily a punishment, but which also results in the severance of the employer-employee relationship. This comes under chapter X of exhibit C, headed: “Termination of Contract of Services”. Under this, either employer or employee may bring the contract of service to an end, upon fulfilling certain conditions. It cannot be said that when the employee terminates the contract he is taking a disciplinary action. If so, against whom? In the same vein the corporation can terminate the contract without necessarily taking a disciplinary action against the employee.In the instant case, the corporation purported to act under chapter X [article 56 (c)], and not under chapter VII (article 49). Accordingly the only yardstick by which to guage the propriety of the corporation’s action is whether the provisions of article 56 were complied with. If they were not, the termination will contravene the said article, and will be wrongful; if they were, the termination will be proper and lawful, being in accordance with the contract. The corporation’s only obligation under article 56 (c)is to give the Defendant three months’ notice, or three months’ pay in lieu. This reciprocates a similar obligation cast on the Defendant by article 56 (a), in case he takes the initiative to bring the contract to an end. On the evidence the corporation discharged the obligation by giving the Defendant three months’ pay in lieu of notice. In the event, the termination was perfectly in accordance with the terms of the contract of service and could not be wrongful.”

That being so, despite the sweet admissions of Jurgen Elijgendaal, supra, to the effect that the Respondent cannot dismiss a worker without setting up a committee of inquiry I am constrained to hold the contrary. It is trite law that the question of the construction of a document is for the court alone and unless in very exceptional cases (where the document is of a special technical character) is not a matter of evidence.

Surrounding circumstances, of course, are a different and relevant matter.

I redeemed myself from the path of error when I particularly noticed that articles 8.01 to 8.03 appear under the heading “ARTICLE 8 – DISCIPLINARY REGULATIONS” whilst articles 10.01 to 10.03 appear under the heading “ARTICLE 10 – LEAVING THE SERVICE OF THE COMPANY”. Not only that. Under acticle “8.03 Disciplinary Procedure”, regulation (c) thereof provides as follows. “(c) A warning or suspension from work or termination of appointment or summary dismissal may be imposed as a result of the findings”. By contrast article 10.02 does not require the power of termination to be exercised against an employee as a result of the findings” but “by giving him one month notice or pay in lieu of notice”. Also article 10.3 does not tie the power of summary dismissal to “a result of the findings” but provides that in “the event of an employee being found guilty of an offence under gross misconduct in accordance with the schedule of offences he shall be summarily dismissed”. Though the words of a document are to be construed together for the sake of consistency, see BOATENG v. VOLTA ALUMINIUM COMPANY (1984-86) 1 GLR 733 S.C, where it is clear that a difference in intent exists the same must be upheld, see VOLTA ALUMINIUM COMPANY v. TETTEH AKUFFO (2003 – 2004) SCGLR 1158.

I was at first inclined to think that the words “In the event of an employee being found guilty”, in articles 10.02 and 10.03 necessarily imply the idea of a prior inquiry. But for the reasons already given and that in LEVER BROTHERS v. ANNAN (1989 – 90) 2GLR 385 C.A virtually the same words were construed as not necessarily requiring any prior enquiry, I changed my mind.

In the present case however, as earlier stated, there is no right in the employer to terminate the employment simpliciter. That right is linked to the proven commission of an offence. It is however to be noted that a confirmed employee may under article 10.04 may resign by giving a month’s notice. There is here no option of paying a month’s salary in lieu of notice by the employee as opposed to the employer (vide article 10.02. These provisions as to termination are so clearly and intentionally set out by the parties thereto that there is no room for implying a corresponding right of termination on the employer as in BOATENG v. VOLTA ALUMINIUM COMPANY (1984 – 86) 1 GLR 733 S.C. This line of reasoning is supported by this court’s decision in VALCO v. TETTEH AKUFFO (2003 – 2004) SCGLR 1158.

It is clear as held by the Court of Appeal that none of the 1st, 4th, 6th, 11th, 15th, 16th, 22nd, 23rd, 24th, and 25th Appellants was challenged during their cross examination by counsel for the Respondents on their specific denial of involvement in the strike action.

Indeed the Defendant’s representative, Mr. Jurgen Eijgendaal, stated at p.64 of the record between lines 10-13 as follows: “I have not stated that these 28 who were not re-admitted took part in any demonstration. The Company refused to admit these 28 people because of loss of confidence”. Not only that. In KOBEA v. TEMA OIL REFINERY, supra, at p. 1043 my learned brother Dr. Justice Twum J.S.C held that where a trade union embarks on an action on behalf of its members, all such members are thereby bound whether they individually partook of the same or not. Without further comment, it is clear that in this case, the strike action was not held by the trade union on behalf of their members.

The Respondent contends that it was empowered by the joint talks between it, the Ministry of Social Welfare and Employment and the Ghana Mineworkers’ Union of TUC (Ghana) “to reject a certain number of workers”, hence the Plaintiffs, plight. This is preposterous. In any case the evidence does not support this. The Minutes of that meeting are contained in exhibit 2 which evidences that the conclusion reached thereat was as follows:

“FINAL AGREEMENT

After a long deliberation, it was finally agreed by all the parties concerned that Management would come out with a form on which the conditions of the re-entry to the Company would be spelt out with a detachable portion for the workers to sign and deposit at the Labour Office.

This, it was agreed would be collected later by Management for the recalling of workers to start work on Monday 7th June 1999”.

This vindicates the appellants’ averment in paragraph 6 of their statement of claim that: “Ultimately the workers were made to sign a prepared form declaring their confidence in and loyalty to management of Defendants, as a condition precedent for the re-opening of the mine for work to continue”. (e.s)

This brings me to another angle of this industrial drama. I have earlier said that the appellants were dismissed not later than the 20th day of May 1999. But even if one were to hold that they were terminated and not dismissed on that date, the termination too would be irregular because neither one month’s notice or one month’s salary in lieu of notice was given to the appellants on that date (or contemporaneously, at the worst) as stipulated by article 10.02 of the collective agreement. A person who has not been dismissed or terminated cannot be and indeed does not need to be re-admitted to the employment concerned. However it was at the state of the exercise of re-admission that the Respondent offered the appellants various sums of money including a bloated “Three months pay in lieu of notice”.

This was on the 3rd day of July 1999, a period of almost 11/2 months later!

The case put forward by the Respondent is not clear. It would however appear from its pleadings and the evidence on record that it dismissed the appellants not solely because of the illegal strike or demonstration of the 19th day of May 1999 but because of loss of confidence in its entire workforce arising from a "culmination of previous incidents” being “force to five times of such activity” (see p.79 lines 22 + 028 of the record of appeal and exhibit 2). Although this evidence was hotly challenged in cross-examination no confirmatory evidence was led by the respondent.

Since this is the common basis for the dismissal of the appellants which has not been proved, it is not even necessary to sort out those who partook in the strike action of 19th May 1999 and who did not. The vice of failing to discharge the burden of producing evidence, let alone the burden of persuasion, on that issue infects the dismissal of all the appellants and renders the same wrongful.

In any event since the appellants duly fulfilled the conditions for their return to work by filling the requisite forms of declaration the Respondent’s failure to discharge its part of the bargain cannot justify their conduct.

There are changing faces of this farcical industrial drama which I would be merely vexatious to deal with. The claim for defamation was like wise not meant to be taken seriously for wrongful dismissal. As to damages the principles have been exhaustively reviewed by Taylor J.S.C in the celebrated case of NARTEY – TOKOLI v. VOLTA ALUMINIUM CO. LTD (No.2) (1989-90) 2 GLR 341 S.C All told it appears that an award of damages which having regard to all the circumstances of the case can be considered as fair and reasonable, will pass the test.

W. A. ATUGUBA

JUSTICE OF THE SUPREME COURT

ANSAH, J.S.C.

This is an appeal from the judgment of the Court of Appeal that dismissed the appeal from the judgment of the High Court, Tarkwa. In the action the plaintiffs numbering about 25, claimed damages for wrongful termination of appointment with the defendants and a second claim for defamation of character.

In their statement of claim, the plaintiffs described themselves as employees of the defendant, a mining company until 19th May 1999, when junior staff workers of the company went on a demonstration against an intended retirement of the medical officer, a Dr Opoku. The defendant’s reaction was to close down the mines the next day. Following interventions the parties appeared before a committee under the auspices of the then Deputy Minister of Employment for settlement. The outcome was that the workers were to sign a prepared form declaring their loyalty and confidence in the management as a precondition for re-opening the mine, and re-apply for re-engagement. The plaintiffs complied with both requests. When they did some workers were taken back but the plaintiffs were not. They asserted they did not take part in the demonstrations and considered they had been wrongly dismissed; they took the action against the defendants for damages for wrongful termination of appointment and defamation.

The defendants confirmed the strike action by some of the plaintiffs, which they contended was illegal for being contrary to their collective agreement and the laws of the land. That was the casus belli for the defendants to close down the mines. They also admitted the attempts at settlement of the dispute at a meeting held on 31 May 1999 which representatives of the workers Union, National Mines Workers Union, Senior Staff, and defendant’s Management attended and the decision that workers of the company must re-apply for re-engagement; the defendants did reject the applications by the plaintiffs and paid their entitlements to them.

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/her claim cannot succeed: see Morgan and Others v. Parkinson Howard Ltd. [1961] GLR 68 at 70.

I desire to give a resume of the case presented by each plaintiff.

The first plaintiff giving evidence for himself said on the day in question, he was on his annual leave and only got to hear of the demonstration as people of Nsuta and workers of the defendant company hooted horns and made noise. He as the Assemblyman for Nsuta informed the District Chief Executive of it. When management closed down the mines, he filled and signed a form to go back to work but his employment was rather terminated. He asserted this was wrongful for he did not take part in the demonstration.

The 9th Plaintiff, Kojo Boakye Yiadom, gave evidence for himself, 2nd-5th, and 7th, 8th, and 10th, 12th-14th and 18th-20th plaintiffs. He confirmed the demonstration by junior staff workers against the intended dismissal of Doctor Oduro. He and the plaintiffs he represented were some of the workers who were not taken back to work after the defendants closed down the mines, even though none of them took part in the demonstration.

The 22nd plaintiff, Esther Mensah Nuamah, confirmed there was a peaceful demonstration on 19th May 1999, but denied taking part in it for by then she was heavily pregnant with child, her expected date of delivery having drawn nigh and was preparing to proceed on her annual and maternity leave. She backed her evidence with a maternity certificate in exhibit ‘F’.

The 23rd plaintiff, Sam Pendrix Tetteh Abayateye, the Organising Secretary of the Senior Staff Association, denied taking part in the demonstration for, after closing from his night shift he slept from 6.00 am till about 5.00 pm on 19 May 1999. He signed the forms and re-applied for employment but he was rejected.

The 24th plaintiff, James Aidoo and Francis Kangah, the 25th, said as senior staff members they did not attend the meeting by the junior staff or take part in the demonstration.

Kwame Tawiah the 4th plaintiff went for hunting and came back home at about 1.00 pm on 19th May 1999. Later he went to sign documents at the Police Station. Then he was given a certificate of service and told the company could no longer work with him. The 6th, Emmanuel Kojo Boafo a dumper driver, said he closed from work around 12.00 noon that day. It was later in the day when he heard of the closure of the mines from their headman. He denied participating in the demonstration yet he was dismissed.

The 11th, Yaw Anowah Ponko, was on leave at the time material to the case; Janet Adjei the 15th plaintiff attended Hospital that day; the 16th, Mary Akua Zumanu the nurse, added her voice to the chorus that she did not take part in the demonstration. In short therefore, all plaintiffs who gave evidence described the termination of their appointments as unlawful for they did not take part in the demonstration.

The defendants did not deny terminating the employment of the plaintiffs in their pleadings and evidence. With that, the onus shifted to them to justify their action.

The Resident Director of the company, Mr. Jurgen Eijgengard, who represented the defendants in court, confirmed the termination of appointment and attributed it to the defendant’s loss of confidence in the workforce. This witness said he saw the demonstrators but could not detect their identities for they wore masks.

The DW1, Augustine Akufo Gamey confirmed efforts he made to mediate in the dispute between the company and the workers. He tendered minutes of the meeting as Exhibit ‘2’. The terms of the settlement were that the workers were to write a fresh application the basis on which management was to recall them.

The DW2, Divine Arthur Bosompem, tendered Exhibit ‘3’ in evidence for and on behalf of Mr Atsu-Apenteng, the Assistant Chief Labour Officer. He confirmed that the result of the meeting was that the workers were to re-apply. The workers were declared redundant but their appointments were not terminated.

The trial judge found in his judgment that “1st, 4th, 6th, 11th, 15th, 16th, 21st, 22nd, 23rd, and 24th plaintiffs did not take part in the said meeting and demonstration for various reasons, yet their appointments were terminated. He referred to section 23(1) and (2) of the Industrial Relations Act, 1965, (Act 299), in force at the time material to the action, on what amounted to a strike in law and said “the conduct of the defendant’s employees including the plaintiffs on the day amounted to the grounds specified above, (that was in both sections). All the employees became affected even though they all did not participate in the act and the fact of discontinuance of employment for a short period is caught by the provisions of this section”. The trial judge labelled the strike illegal and for that reason concluded the termination of their employment was right and justified.

On the other hand, the Court of Appeal said when the defendants failed to challenge any of the plaintiffs mentioned above on his/her denial of involvement in the strike action, it raised the presumption that the opponent (who did not cross-examine on the fact) conceded the plaintiff’s denial was correct. The judgment of the Court of Appeal held that this failure by the defendants (to take on the plaintiffs in respect of their denial of participation in the strike action for one reason or the other), was injurious to the stand taken by the respondents and rendered their action in terminating the appointments of the appellants ‘very worrying’. The Court of Appeal upheld the trial court’s decision that not all of the workers took part in the strike action. The Court also referred to the evidence of the Resident Director of the company, and described it as too ‘porous and dangerous’ to justify any allegation of ill conduct by the plaintiffs. That was a concurrent finding of fact by the lower courts which, the evidence on record supported it. In those circumstances the principle is that this court will not interfere with the findings. The Court of Appeal referred on what it called the ‘substantial evidence’ rule by which was meant that a decision by the respondents to penalise any or some of the employees must be founded on reasonably justifiable grounds and must not be arbitrary. The Court further posed the question whether or not there was any justification for the termination of the appointments of the plaintiffs and said that: “Relying upon the facts alone I do not think so”. Finally, after re-appraising the evidence, the Court said: “I firmly agree with counsel for appellants’ contention that the trial court’s judgment is against the weight of the evidence led.”

The evidence showed no error in the findings by the lower courts on these facts and there is no reason to reject them in this appeal.

However the Court of Appeal did not feel satisfied to base its judgment on that alone, for it held to do so would be basing its judgment on a one sided portion of the evidence. The court therefore considered the nature of what the defendant company did and held it was a ‘termination’ but not a ‘redundancy’ and concluded that under Article 10.02 of the Collective Agreement between Ghana Manganese Company Limited and the Ghana Mine Workers Union of the TUC (Ghana) of 8th June 1996, there could be termination of employment.

The Collective Agreement did not define either term though it made provisions for them. Speaking generally, the two terms have different meanings and connotations, for in its ordinary meaning, to ‘terminate’ is to put an end to, bring to an end; or, to conclude. In a cause or matter affecting employment, it means to sever an employer-employee relationship. A ‘redundancy’ arose where major changes in the mode of production, programmes or activities of a company were likely to result or resulted in reduction of the needed labour force. And there was excess labour. Kwapong v. Ghana Cocoa Marketing Board (Consolidated) [1984-86] 1 GLR 74 described when ‘redundancy’ would be declared, namely,

“(a) where the business ceases;(b) the place of business is moved, and(c), the business no longer required the same number of employees to carry out work of a particular kind.”

Section 34(1) of the Labour Amendment Decree referred to a total close down as against a temporary cessation of business as necessitating a redundancy. Whether it was a termination or redundancy was a matter of fact. A ‘termination’ might be based on ‘redundancy’ and either was a mode for leaving the employment of the company under Article 10 of the Collective Agreement. In this case, there did not exist any of the grounds stated in either Kwapong v. GCMB (supra) or the Labour Decree above, but the employer-employee relationship between the parties was curtailed and brought to an end undoubtedly by the respondent company, on grounds of redundancy, according to them by a fiat of the Labour office in exhibit ‘3’.

Having admitted they terminated the employment of the plaintiffs, the onus shifted to the defendant company to justify it. A dismissal would be wrongful depending on the facts peculiar to a case on hand. In the instant case, there was no doubt that the demonstration of 19 May 1999 triggered off what culminated in the termination of appointment. In my opinion that there was a demonstration per se was not a justifiable ground for terminating the appointment of the plaintiffs. The defendant should go forward to show that they took part in it. The case against each plaintiff should de considered on its merits instead of lumping all together for punishment. The lower courts found they did not and the defendant company offered no evidence to the contrary. That was a concurrent finding of fact that the evidence supported. This court therefore has no reason to interfere with it.

In seeking to justify 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. Exhibit “AA” the collective agreement, provided in Article 10.02 when an appointment would be terminated in the company. It reads:

“In the event of an employee being found guilty of an offence under termination in accordance with the schedule of offence the Company may terminate the employees appointment by giving him one month notice or pay in lieu of notice.” (Emphasis mine.)

By this provision the parties agreed that there could be termination upon these terms and conditions, namely:

(1) the employee must be found guilty of an offence under termination in accordance with the schedule of offences,

(2) the company would give a months notice, or

(3) pay in lieu of notice.

It would appear the defendant company did not follow this procedure when they purported to terminate the employment of the plaintiffs. The defendants did not show that the plaintiffs or any of them was found guilty of any offence under any schedule of offences in the first place before they terminated the employment. Even if a strike action attracted the dire consequence of terminating one’s employment, there was no proof that any of the plaintiffs took part in it. That made the termination of their employment wrongful.

Article 10.08 was elaborate on ‘Redundancy/Severance’; it provided that:

“(a) In the event of Redundancy or severance four months’ notice shall be given to the Union.(b) On receipt of the notice, the Union shall enter into discussion with the Company on the matter. During this period, the Company undertakes that no notice shall be given to any employee.(c.) When new employment occurs, preference shall be given to an employee whose employment was terminated as a result of the redundancy severance...”

As stated, when the parties have provided for certain eventualities and procedures in a collective agreement, they ought to apply fully so as to justify any action by the parties to the agreement. The binding efficacy of collective agreements made clear in Section 10 (2) of the Industrial Relations Act, 1965, (Act 299), (now repealed by the Labour Act, 2003, (Act 651) must never be whittled away. Even if the plaintiffs took part in the strike action, which the lower courts did not so find, the company was obliged by the terms of their agreement with the workers to follow the termination procedure. That was not done in this case. It worsened an already bad case for the defendants.

A study of the evidence revealed that the ‘redundancy’ was only a stopgap measure, a solution for a settlement; it was not that in truth the workers were redundant within the accepted meaning of the word in labour circles. In other words a redundancy situation did not arise in the company for, the company did not contemplate introducing any major changes in production, organisation structure or technology that was likely to entail terminations of its workers, or the situation covered by Kwapong v. CMB (supra).

The Labour Department declared redundancy for the purpose of providing succour for the 24 employees who were not re-employed: see exhibit ‘3’. This document stated that the declaration of redundancy was based on approval to an understanding reached at the joint meeting of all stakeholders under the chairmanship of the Hon. Deputy Minister of Employment. Minutes of that meeting were in exhibit ‘2’. That document never mentioned any such understanding to declare anybody redundant, and was a fabrication.

On the evidence the defendants did not establish any link between the affected workers, the plaintiffs in this action and the demonstrations of 19 May 1999 and the lower courts so found. The plaintiffs complied with the terms of the settlement, signed the declaration of confidence and loyalty in the management, re-applied for employment with the company as was requested of them according to exhibit ‘2’; the company assured in a circular in exhibit ‘C’ that Management had rescinded its decision to close down the company and dismiss all workers thus inferentially ‘forgiving them of their trespasses’, yet their applications were rejected. There can never be any doubt that in as much as no worker could compel an employer to employ him, so can’t an employer compel an employee to remain in his employment. These were the corresponding rights in any employer-employee relationship. 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. This was the traditional rule made clear in Aryee v. State Construction Corporation [1984-86] 1 GLR 424, CA. I most respectfully quote a chunk of that judgment relied upon by the Court of Appeal, namely,

“(1) a contract of service was not a contract of servitude. To say, as we are wont to do, that it gave rise to a servant-master relationship 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 its equivalent in salary and their conduct be perfectly in order. On the evidence, the corporation discharged that obligation by giving the appellant three [8] 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 reason for its action. It need not do that. The fact that it did, however, did not detract from the general validity of their action...”

However, in seeking to exercise that right fairness must be the watchword. Every allegation of misconduct ought to be proved. The defendant company did not pay any regard to this in their dealings with the plaintiffs. They acted with some arbitrariness and discrimination and rendered their acts wrongful as not being in accord with the terms and spirit of the collective agreement.

The substance of the additional ground of appeal was that the Court of Appeal erred in substituting a case of termination proprio motu for the appellants. Cases like Dam v. Addo [1962] 2 GLR 200, SC; Seraphim v. Amuah-Sekyi [1971] 2 GLR 132, CA; and Ackumey v. Kumah [1989-90] 2 GLR 283 were cited in support. There can be no doubt about the correctness of the legal proposition or principle in this line of cases. An appeal on this ground imposed a duty on the appellant to satisfy the appellate court that the charge was validly made. The claim on the writ of summons, the pleadings and the statement of claim, the issues settled for trial the evidence led and the submissions by counsel must be studied to determine the nature of the case the plaintiffs put up. In this case, issues settled for trial, viva voce and documentary evidence in support of the claim, mentioned ‘termination’. Redundancy was not raised as an issue or the pleadings so as to call for a determination by the court of Appeal. The court was clear that it was beyond dispute that the appointments of the appellants were terminated. For that reason, I am of the opinion the additional ground of appeal was unmeritorious and must be dismissed, and is dismissed accordingly.

When the Court of Appeal found that the judgment of the High Court was against the weight of the evidence that was enough to torpedo the judgment, allow the appeal and set it aside. It failed to do so and rather went on to determine the nature of the exercise by the defendants as to whether it was a ‘termination’ or ‘redundancy’. That was uncalled for, for there was no dispute raised on that.

The courts below considered that the respondents paid all entitlements due the plaintiffs and gave the requisite length of notice to them so the termination was legal and complete. This court has cause to interfere with the judgment of the Court of Appeal by setting it aside and allow the appeal for the reason that it (lower appellate court) found the judgment of the trial it to be against the weight of evidence and should have allowed the appeal against that judgment.

It was time the ‘traditional rule’ epitomised by Aryee v. State Construction Corporation (supra) was considered for it has the potential of resulting in oppression by the employer and docility in the employee. With the fear of losing his job 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, like he the employee being found guilty of an offence in a schedule of offences in the collective agreement, the laws of the land, or statutes regulating employment in the land for the time being, or declared redundant under specified conditions.

Now, the passing of the new Labour Act, 2003, (Act 651), hereinafter called the Act, has brought relief and hope 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. Part VIII of the Act provided for fair and unfair termination of employment explained in section 63 (1). Termination of employment may be fair or unfair even if it is recognised the employer has power to terminate the employment under section 8 of the Act. Under 63 (3), 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 [10] 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. The Court of Appeal did not pay any attention to these matters but contended itself that once the defendants paid all entitlements to the plaintiffs then termination was right and they could not complain; no court could question their action. I think I have said enough to show that this was untenable in law.

An appeal to the Supreme Court is by way of rehearing: see Tuakwa v. Bosom [2001-2002] SCGLR 61, where Sophia Akuffo JSC said at 65 that

“Furthermore, an appeal is by way of a re-hearing particularly where the appellant, that is the plaintiff in the trial court in the instant case alleges that, that the decision of the trial court is against the weight of evidence. In such a case, although it is not the function of the appellate court to evaluate the veracity or otherwise of any witness, it is incumbent upon an appellate court, in a civil case, to analyse the entire record of appeal, take into account the testimonies and all documentary evidence adduced at the trial before it arrives at its decision, so as to satisfy itself that, on a preponderance of the probabilities, the conclusions of the trial judge are reasonably or amply supported by the evidence.”

After considering the entire record of this case, I incline to the opinion that the employment of the plaintiffs was wrongfully terminated. I will allow the appeal on the omnibus ground that the judgment was against the weight of evidence, set aside the judgments of the lower courts, and grant each plaintiff the relief he/she sought at the trial court for damages for wrongful termination of employment. The lower courts rightly dismissed the relief for damages for defamation and that decision is hereby affirmed.

In the result, I agree the appeal on the omnibus ground be allowed and the additional ground dismissed. I also agree with the damages assessed by the President of this court in his judgment read earlier.

J. ANSAH

(JUSTICE OF THE SUPREME COURT)

MRS. G. T. WOOD

(JUSTICE OF THE SUPREME COURT)

PROF. T. M. OCRAN

(JUSTICE OF THE SUPREME COURT)

S. K. ASIAMAH

(JUSTICE OF THE SUPREME COURT)

COUNSEL

MR. G. F. GARDINER FOR APPELLANTS

MAJOR (RTD.) AGBENOTO FOR RESPONDENTS