ROBERT AMISSAH V. ACCENTS AND ART GALLERY

JUDGMENT 

DEKYEM, J.

Plaintiff is a carpenter by profession and ex employee of Defendant Company; the  latter being a registered company under the laws of Ghana. Plaintiff had an  accident during the course of his employment with Defendant and sustained an  injury to his left eye. Plaintiff averred that due to the injury he was advised to go  off work for a while and attend regular checks at the hospital. It is Plaintiff’s case  that whilst receiving treatment for his injured eye Defendant wrote to him complaining about his inability to attend work whereupon he had a meeting  with Defendant’s managing director and affirmed his commitment and desire to work as soon as the pain in the injured eye reduced. Plaintiff contended that  Defendant refused to pay for the cost of medication and other incidental cost he  incurred due to the injury he sustained. Plaintiff averred that when his health  improved, he attended work but on 18th July 2014, Defendant terminated his  appointment for no reasonable cause wherefore Plaintiff claims the following  reliefs: 

a. Declaration that the termination of the employment of the Plaintiff is  wrongful. 

b. Compensation for wrongful termination. 

c. Order for payment of the Plaintiff’s salary from the date of purported  termination of appointment till the final date of the determination of the  matter. 

d. Order for the payment of GH₵5,000.00 being the medical and other  incidental cost incurred as a result of the injury of the left eye. 

e. Cost of specialize medical care for the left injured eye. 

f. General damages for the injury of the Plaintiff left eye and its associated  discomfort and pain. 

g. Cost of litigation. 

Defendant in its defence contended that Plaintiff elected contrary to company  policy not to wear the protective gear provided him by Defendant and sustained  the injury. Defendant averred that Plaintiff was given three weeks off work by the  medical officer who attended him and all compensation due under the Workmen’s Compensation Law was assessed and duly paid which Plaintiff  accepted as full and final settlement of all claims in respect of the injury. Defendant’s case is that when the time limit for the excuse duty granted Plaintiff  had expired, it wrote to Plaintiff inquiring why Plaintiff had not reported to work  but Plaintiff failed to respond to the inquiry as well as queries issued out to him  thus Defendant terminated Plaintiff’s employment. It is Defendant’s case also that  it paid all Plaintiff’s medical bills, medication and other costs incidental to his  injury thus Plaintiff is not entitled to his claim. 

The following issues were settled for trial: 

1. Whether or not the termination of the appointment of Plaintiff by  Defendants is wrongful? 

2. Whether or not the medical bills and other expenses of the Plaintiff  incurred as a result of the injury have been paid? 

3. Whether or not the Plaintiff is entitled to his claim 

The provisions of the Evidence Decree, 1975 (NRCD 323) regarding burden of  proof in civil cases are as follows: 

Section 10—Burden of Persuasion Defined. 

(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. 

(2) The burden of persuasion may require a party to raise a reasonable  doubt concerning the existence or non-existence of a fact or that he  establish the existence or non-existence of a fact by a preponderance of  the probabilities or by proof beyond a reasonable doubt. 

Section 11—Burden of Producing Evidence Defined. 

(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. 

(4) In other circumstances the burden of producing evidence requires a  party to produce sufficient evidence so that on all the evidence a  reasonable mind could conclude that the existence of the fact was more  probable than its non-existence. 

Section 12—Proof by a Preponderance of the Probabilities.

(1) Except as otherwise provided by law, the burden of persuasion  requires proof by a preponderance of the probabilities. 

(2) "Preponderance of the probabilities" means that degree of certainty  of belief in the mind of the tribunal of fact or the court by which it is  convinced that the existence of a fact is more probable than its non existence. 

Section 14—Allocation of Burden of Persuasion. 

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. 

Section 17—Allocation of Burden of Producing Evidence. 

(1) Except as otherwise provided by law, the burden of producing  evidence of a particular fact is on the party against whom a finding on  that fact would be required in the absence of further proof. 

(2) Except as otherwise provided by law, the burden of producing  evidence of a particular fact is initially on the party with the burden of  persuasion as to that fact. 

Whether or not the termination of the appointment of Plaintiff by Defendants is  wrongful? The principle in Morgan and Others v. Parkinson Howard Limited [1961]  GLR 68, is that in a claim for wrongful dismissal the plaintiff must prove the terms  of his employment and then prove that his dismissal is in breach of the said terms,  or that it contravenes some statutory provisions for the time being regulating  employment. (see also Sarfo v. A. Lang Ltd. [1978] I GLR 142). The same principle  was adopted in Kobi v. Ghana Manganese Co. Ltd [2007-2008] SCGLR 771 as  follows: “The issues agreed upon for trial, were whether or not the termination of  the Plaintiff’s 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.” The onus is on Plaintiff to prove that the termination of his  employment was in breach of his employment contract or in contravention of  statutory provisions regulating employment. 

Plaintiff averred that following the injury he was advised to go off work for a while  and whilst receiving treatment he received a letter from Defendant complaining  about Plaintiff’s inability to attend work. It is Plaintiff’s case that following the  letter he had a meeting with Defendant’s managing director and affirmed his commitment and desire to work as soon as the pains in the injured eye reduced thus resumed work when his health improved. Plaintiff contended that on 18th July 2014 Defendant terminated his appointment without reasonable cause. The  letter terminating his employment contract dated 18th July 2014 reads in part as  follows: 

TERMINATION OF CONTRACT 

Following our last letter to you dated 13th June 2014, in respect of you  declaring your intention to continue working with our establishment, we  still have not heard from you to date. 

You have been absent from work for close to three months without any  formal explanation. In line with our HR Manual, any worker who absents  himself from work for an extended period of time without permission will be  dismissed. 

This serves as a final letter. We thank you for your time spent with us and  wish you all the best with your future endeavours.

The reason for the termination of Plaintiff’s employment contract was that that  following his injury he absented himself from work for close to three months  without authorization and also failed to communicate to Defendant his intention  to return to work. Defendant’s letter dated 23rd April 2014 (Exhibit 3) to Plaintiff  stated among others: 

SICK LEAVE 

Please note, as per our HR Manual, Section 10.3 states that, employees may  be granted sick leave on the basis of formal certification from a recognised  medical officer of health..... 

You are to state in writing your intention to either continue with our  establishment or to resign within this time frame as we have not heard from  you. 

This is necessary to enable us also decide on whether or not we need to  engage the services of another carpenter as this is affecting our production  output. 

Further exhibit 4 of Defendant’s query letter to Plaintiff dated 3rd June 2014 reads: 

QUERY 

After receipt of our letter dated 23rd April, 2014 to you, following discussion  with the Medical Officer who attended to you, he said ideally you can  resume work.

Indeed after the third month of your unfortunate accident, we have not  received any formal intention from you to continue work or when (sic) you  are not returning at all. 

You are to explain within 48 hours why disciplinary action should not be  taken against you. 

Also exhibit 5 of Defendant’s letter of 13th June 2014 to Plaintiff reads as follows: 

QUERY 

This serves as your second query as to why you have not reported to work,  or if you intend to report to work at all to be reassigned to other floor  duties. 

We have made every effort to keep the communication channels with you  open. 

We have only finally finished following up with the insurance company on  the claim for compensation and also working closely with the labour  commission on how to handle your case. 

If you have any issues you wish to discuss, you do know the due processes to  follow and as such we are at a loss for the behaviour you are putting up. You are to respond to the above in writing. 

It is Defendants case that Plaintiff failed to respond to any of its letters namely  exhibits 3, 4 and 5 and consequently terminated the Plaintiff’s appointment. Plaintiff testified that due to his injury he was advised to go off work for a while  and go on regular medical review but failed to indicate who advised him or show evidence of same. The only medical certificate exhibited by Plaintiff was dated  24th February 2014 and signed by GP CAPT ALEX MENSAH of the 37 Military  Hospital which stated that Plaintiff was “No(t) fit yet” in answer to a question on  the form requiring date patient was declared fit for work. Rightly so, having been  injured on 20th February 2014, it was not out of place and unexpected to declare  him unfit for work four days after. In cross examination Plaintiff testified thus: 

Q were you granted any sick leave at any time after your injury?

A No My Lord 

Q When did you return to work after your injury? 

A My Lord I returned on 22nd June, 2014. 

Q As with standard practice with the Defendant company you always  sign when you go to work, not so? 

A Yes My Lord, but when I got injured I didn’t regularly sign.

Q Is there a particular reason why you chose as when to sign when you  resume work 

A Yes My Lord, the reason was that the time I was still going for  treatment. At the time I was using 2 types of eye drop which I apply 4  times a day due to that I was not regular at work in a week I go to  work two times. 

Q I suggest to you that after that accident the only time you showed up  and signed the attendance book was the 30th of June 2014. 

A My Lord I already said when I go for treatment and come back to the  office I don’t normally sign.

At paragraph 16 of Plaintiff’s witness statement, he testified that he has difficulty  in expressing himself in written English so he had a meeting with DW2, the  managing director of Defendant instead and agreed that Plaintiff should return to  work when his health improved. This assertion was denied by Defendant. In the  light of exhibits 3, 4 and 5, I find Defendant’s story more probable than Plaintiff’s. 

Amah v. Kaifio [1959] GLR 23 at 25 held that “the burden of proof rests upon the party who would fail if no evidence at all, or no more evidence, as the case may  be, were given on either side - i.e. it rests, before evidence is gone into, upon the  party asserting the affirmative of the issue; and it rests, after evidence is gone  into, upon the party [p.26] against whom the tribunal, at the time the question  arises, would give judgment if no further evidence were adduced” Plaintiff has  failed to discharge the burden of proof that his absence was authorized or agreed  upon by DW2. 

From Plaintiff’s own showing, he was not granted sick leave yet he absented  himself after the injury until 30th June 2014 per his own exhibit RAG 5. Plaintiff  admitted receiving at least exhibit 3 which is the same as his exhibit RAE yet he  failed to respond by stating in writing his intention to return to work or resign as  required of him by the letter. The court finds from the evidence placed before it  that Plaintiff absented himself for over three months following the injury to his  eye. Section 15 (e) (iii) of the Labour Act, 2003 (Act 651) is explicit on the ground  relating to an allegation of misconduct upon which a worker’s employment may  be terminated. The provision stipulates that a lawful termination of employment  is upon proven misconduct of the worker. The court will hold that Plaintiff  misconducted himself by absenting himself without permission and failed also to defend himself when the opportunity was given him. The termination of Plaintiff’s  employment was therefore not unlawful. 

The next issue is whether or not the medical bills and other expenses of the  Plaintiff incurred as a result of the injury have been paid? Plaintiff averred that  apart from medical bills incurred on 20th and 21st February 2014, Defendant  refused to pay further bills he presented. Under cross examination Plaintiff  admitted that Defendant paid receipt dated 10th March 2014. The evidence  placed before the court shows per exhibits 2 and 2A that apart from medical bills  of 20th and 21st February 2014 paid by Defendant in respect of Plaintiff, it also  paid pharmacy bill dated 25th February 2014 and cost of lens dated 10th March  2014. Throughout his testimony Plaintiff did not indicate which bills he presented  to Defendant but same remains unpaid. Plaintiff is also claiming GHS5,000.00  being medical and other incidental costs incurred as a result of the injury to his  left eye and also cost of specialized medical care for the injured eye but failed to  adduce any evidence to substantiate his claim. Plaintiff has failed to discharge the burden he assumed when he asserted that Defendant refused to pay his medical  bills apart from the ones dated 20th and 21st February 2014 and also that he has  incurred costs of GHS5,000.00 among others. 

Plaintiff is also claiming general damages for the injury and its associated  discomfort and pain. Exhibit 10 is an agreement entered into by parties herein pursuant to the Workmen’s Compensation Law, 1987 (PNDCL 187) and witnessed  by the Metro Labour Officer. The agreement is dated 20th November 2014 and the  parties agreed that Defendant will pay Plaintiff the sum of GHS10,481.16 as compensation for the injury. Plaintiff averred that he received GHS1, 000.00 from  Donewell Insurance in connection with the injury which amount Defendant  deducted from the compensation amount of GHS10, 481.16 agreed upon and  paid the remaining to him. Exhibit 10 precludes Plaintiff from taking proceedings  independently of PNDCL 187 to recover damages in respect of the injury. It is  therefore not out of order when the GHS1, 000.00 initially given to Plaintiff was  taken into account to achieve the compensation sum of GHS10, 481.16. Plaintiff is  thus not entitled to anymore damages having received the compensation sum of GHS10,481.16 thereby Defendant having discharged all liabilities to pay  compensation under the law. I do empathize with the predicament Plaintiff finds  himself in but the evidence must be weighed on its own merit. In conclusion,  Plaintiff’s claim fails in its entirety. Plaintiff’s action is hereby dismissed  accordingly. There will be no order as to cost. 

(SGD) 

Justice Gifty Dekyem (Mrs) 

Justice of the High Court

Labour Division 1, Accra

COUNSEL

Joyce Wireko Ampim Opoku ESQ for Plaintiff;

Amartei Amarteifio ESQ with Michael Karikari Yeboah ESQ & Mrs Christiana Bruce Ashirifi for Defendant.