ERASMUS NII AMOO AKUSHIE V. EPROCESS INTERNATIONAL SA

JUDGMENT 

DEKYEM, J.

Plaintiff was until 31st December 2014 an employee of Defendant the latter being  a company operating under the laws of Ghana. Plaintiff occupied positions in  Defendant’s company including Head of Card Issuance and Head of Card  Performance and Training. Plaintiff averred that he executed his duties diligently.  It is his case that in 2012 he was asked by the Group Head, Operations to defer his  annual leave because of a migration exercise at the work place but thereafter his repeated demands for his annual leave infuriated his superior officer and same was denied him. Plaintiff asserted that in January 2014, while he was on leave, he was deliberately and mischievously removed from his position as Head of Group Card Issuance. He stated the new position was comparable to a Personal Assistant  which did not match his professional skills and qualifications. He contended this was in an attempt to frustrate him. Plaintiff averred that on the 9th day of December 2014, he was notified of a meeting with Dominic Mensah at 4pm same day. Dominic Mensah informed Plaintiff at the meeting that his position had been  optimized thus he was made redundant with immediate effect. Plaintiff  contended that his academic and other qualifications and practical experience  constantly exposed the incompetence of Margaret Bekker, his boss. This  heightened his boss’ insecurity and resentment for him. Plaintiff contends further  that the purported redundancy was premeditated and amounts to unfair  termination of his employment. It is Plaintiff case that Defendant’s lack of  supervision of his boss and the absence of a defined process for redundancy  contributed to the unfair treatment and unfair termination of his employment. 

Plaintiff averred that at the 9th December 2014 meeting he was further informed  that he would be entitled to the following: 

a. Accrued Gross Salary up to the 31st of December 2014; 

b. Gratuity Pay at the rate of one month of Plaintiff’s basic salary for each  complete year worked, subject to a maximum of Twelve 12 months; 

c. One month’s salary in lieu of notice; 

d. Severance pay at the rate of two months of his gross pay for every year  worked, subject to a minimum of Three months and maximum of twelve  months;

e. To pay Plaintiff in lieu of his accrued or unused entitlement to leave up to  the date of departure and same was to be based on Plaintiff’s gross salary; 

f.To pay Plaintiff the amount accrued in respect of Plaintiff’s Provident Fund  (which includes the amount Plaintiff is entitled to from his contribution and  his employer’s contribution in full irrespective of the year contribution) 

g. Lastly all outstanding loans are to be deducted from the package. 

Plaintiff contended that failure of Defendant to give him three months notice and  to negotiate with him his redundancy package in the absence of agreed  modalities for making redundancy payments to employees is in breach of the  Labour Act 2003 (Act 651). Plaintiff contends also that the termination of his  employment was as a result of victimization and discrimination perpetrated  against him wherefore Plaintiff claims the following reliefs: 

a. A declaration that the purported redundancy exercise amounts to unlawful  termination of Plaintiff’s employment. 

b. A further declaration that the redundancy exercise violates the Labour Act  2003, Act 651 and is therefore unlawful. 

c. An order for Defendant to pay Plaintiff his salary from 1st day of January  2015 till date of judgment. 

d. An order for the Defendant to pay Plaintiff three months’ salary in lieu of  notice for the redundancy. 

e. An order for the Defendant to pay to Plaintiff Gratuity Pay at the rate of  Nine (9) months of Plaintiff’s Gross salary for each complete year worked.

f. An order directed at Defendant to in respect of the redundancy or  severance, pay to Plaintiff a Severance Pay at the rate of 9 months Gross  Salary for every year worked. 

g. An order for Defendant to absolve Plaintiff’s car loan. 

h. General damages for unlawful termination, discrimination and unlawful  redundancy. 

i. An order for Defendant to pay plaintiff’s bonus for the year worked for and  ended 2014. 

j. Cost including Solicitors fees 

k. Further or other reliefs that this Honourable Court may deem fit. 

Defendant averred that it undertook a redundancy exercise which affected all  categories of employees including the Plaintiff. That the exercise was carried out  under due process and not carried out with any malice to single out and  terminate the Plaintiff’s employment. Defendant denies Plaintiff’s claim and  contends that the underlying reasons for the redundancy exercise were explained  to Plaintiff. Also all other affected members of staff who had already been made  aware of the impending exercise. The redundancy had been necessitated by the  need to restructure the Defendant Company’s operations. Defendant averred that it complied with the statutory notice required under Act 651 and offered Plaintiff a generous redundancy package as summarized above. It is Defendant’s case that Plaintiff is not entitled to his claim. At the application for directions  stage the following issues were settled for trial:

1. Whether or not the purported redundancy exercise by the Defendant  amounts to unlawful termination of Plaintiff’s employment 

2. Whether or not the purported redundancy exercise by the Defendant  violates the Labour Act 2003, Act 651 

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

4. Any other issues arising from the pleadings 

It was held in Bisi and Others v. Tabiri alias Asare [1987-88] 1 GLR 360-413 SC that  the standard of proof required of a plaintiff in a civil action was to lead such  evidence as would tilt in his favour the balance of probabilities on the particular  issue. Whether or not the purported redundancy exercise by the Defendant  violates the Labour Act 2003, Act 651? It is Plaintiff’s contention that the  redundancy carried out by Defendant breached the provisions of the Labour Act in that Defendant failed to give him three months statutory notice. He contended  further that about thirty employees were made redundant but varying  redundancy packages were given to employees of similar categories. Also that Defendant failed to negotiate with him the redundancy package. 

Section 65 of Act 651 on redundancy provides as follows: 

(1) When an employer contemplates the introduction of major changes in  production, programme, organisation, structure or technology of an  undertaking that are likely to entail terminations of employment of workers  in the undertaking, the employer shall (a) provide in writing to the Chief Labour Officer and the trade union  concerned, not later than three months before the contemplated changes,  all relevant information including the reasons for any termination, the number and categories of workers likely to be affected and the period  within which any termination is to be carried out; and (b) consult the trade union concerned on measures to be taken to avert or  minimize the termination as well as measures to mitigate the adverse  effects of any terminations on the workers concerned such as finding  alternative employment. (2) Without prejudice to subsection (1), where an undertaking is closed down or  undergoes an arrangement or amalgamation and the close down,  arrangement or amalgamation causes (a) severance of the legal relationship of worker and employer as it existed  immediately before the close down, arrangement or amalgamation; and (b) as a result of and in addition to the severance that worker becomes  unemployed or suffers any diminution in the terms and conditions of  employment,  the worker is entitled to be paid by the undertaking at which that worker  was immediately employed prior to the close down, arrangement or  amalgamation, compensation, in this section referred to as "redundancy  pay".(3) In determining whether a worker has suffered any diminution in his or her  terms and conditions of employment, account shall be taken of the past  services and accumulated benefits, if any, of the worker in respect of the  employment with the undertaking before the changes were carried out. (4) The amount of redundancy pay and the terms and conditions of payment  are matters which are subject to negotiation between the employer or a  representative of the employer on the one hand and the worker or the trade  union concerned on the other. (5) Any dispute that concerns the redundancy pay and the terms and conditions  of payment may be referred to the Commission by the aggrieved party for  settlement, and the decision of the Commission shall subject to any other  law be final. 

Section 65 (1)(a) of Act 651 requires that in the event redundancy is  contemplated, the employer must provide in writing to the Chief Labour Officer  and trade union details of employees to be affected and the period within which  any termination of employment is to be effected. The written information must  be sent no later than three months before the contemplated changes. It is  observed that the three months notice is to the Chief Labour Officer and not to the employee. 

Defendant testified that it made initial consultations with the Labour Department  and followed up with correspondences which were exhibited as JA3 series. In  exhibit JA3 dated 19th September 2014, Defendant wrote to the Ag. Chief Labour  Officer declaring its intention to carry out a redundancy exercise with a proposed  date of 15th October 2014. Defendant in the said letter informed the Labour  Department that it would pay out terminal benefits to affected workers after  discussions with the employees individually. In a letter dated 22nd October 2014  (exhibit JA3A) in response to exhibit JA3, the Labour Department advised  Defendant pursuant to section 65 (1) of Act 651 that it ought to give three months  prior notice to the Labour Department of its intention to carry out the  redundancy exercise and also to negotiate with the representatives of the  affected workers concerning their severance packages. By letter dated 19th November 2014 (exhibit JA3B), Defendant wrote to the Ag. Chief Labour Officer referring to exhibit JA3 and informing him that date for the implementation of the  redundancy exercise had been changed to 30th November 2014 in compliance  with Act 651 and requested that the Labour Office amended its records accordingly. The Labour Department by a further letter dated 26th November  2014 (exhibit JA3C) wrote to Defendant to comply fully with section 65 (1) (a) of  Act 651. By letter dated 9th December 2014, exhibit JA4, Defendant wrote to  Plaintiff confirming earlier discussion with Plaintiff that he would be made  redundant effective 31st December 2014 and offer of compensation made to  Plaintiff as outlined above. The court finds that Defendant notified the Chief  Labour Officer by letter dated 19th September 2014 of its intention to carry out  the redundancy and Plaintiff’s employment was terminated by reason of  redundancy effective 31st December 2014 thereby giving three months notice to  the Chief Labour Officer in compliance with section 65 (1) (a) of Act 651 albeit  after promptings from the Labour Department. 

Plaintiff contended that Defendant failed to negotiate with him his redundancy  pay. He also alleged that the redundancy packages paid to affected workers in the  same category varied. Plaintiff testified in cross examination thus: 

Q And it is not about the manner in which you were asked to leave the  office? A My Lord this is not true. Paragraph 2 of the same letter, Management  also required to enter into negotiation with affected workers  concerning their severance package. My Lord I was not engaged in  any negotiation. I was asked to leave within twenty minutes. Q Go to exhibit EA9. This is an invitation letter to discuss a redundancy.  Is that correct? A My Lord it is correct, that was after I was asked to leave on the 18th December 2012.Q And therefore every effort was made to engage you in the  negotiation as per exhibit EA9 A My Lord this is not true. I was never given the opportunity to  negotiate…. Q Are you saying your lawyer never wrote to the defendant setting  down what you believe to be your redundancy package? A Yes My Lord my lawyer later wrote to the Defendant stating my  package in December 2014 Q And the letter of your lawyer was a counter offer to the proposal the  Defendant gave. A Yes My Lord because we never had any negotiation. Q You have told the court a couple of minutes that you made a counter  proposal to the Defendant, what was that counter proposal? A My Lord, I was negotiating on my package and the fact that the  Defendant has stated conditions in the package even that a minimum  of 3 months and a maximum of 12 months my counter proposal was  on 9 months and other related packages which we were negotiating  for but we were not given the opportunity. My Lord I also know that a junior officer in Human Resource who is lower than my grade 

Cross examination of PW1 

Q Do you agree that for the severance it was two months of his gross  pay for every year worked that was being offered and which Plaintiff  rejected? A I do agree that he rejected it

The penultimate paragraph of exhibit EA8, letter dated 15th December 2014 from  Plaintiff’s Counsel to Defendant stated that: “We are by this letter requesting that  a meeting be held between the parties within five (5) working days of receiving  this letter, to negotiate on an appropriate redundancy package for our client,…”.  In response, Defendant wrote exhibit EA9 dated 18th December 2014 inviting  Plaintiff to a meeting on 19th December 2014 to negotiate the redundancy  package per Plaintiff’s request in exhibit EA8. Defendant made an initial offer in  its letter, exhibit EA5 as redundancy payment which Plaintiff rejected and made a  counter offer which was not accepted by Defendant. The court finds that there  was negotiation between the parties but no agreement was achieved. 

Notwithstanding a finding that negotiation did take place between parties though  no agreement was reached with regards to redundancy pay, Ashun v. Accra  Brewery Limited Civil Appeal No J4/18/2007 12th November 2008, held in respect  of paragraphs 34 and 35 of the Labour (Amendment) Decree 1969, NLCD 342  (now repealed by the Third Schedule of the Labour Act, 2003 (Act 651)) which  provisions are essentially the same as section 65 (2) (3) and (4) of Act 651 (above  reproduced) that “we do not interpret these provisions as casting any duty of  negotiation on the parties to this suit. These provisions do not, by their very  terms, apply to redundancy situations, but rather to when an organization is  closing down or undergoing an arrangement or amalgamation and these result in  the termination of the employer-employee relationship.” In the instant suit  Plaintiff’s employment was terminated on grounds of redundancy and not as a  result of a closing down, an arrangement or amalgamation. The Supreme Court in the Ashun case supra was not persuaded by the plaintiff’s contention that the  redundancy package was unilaterally determined by the defendant company.  They held that it was open to the Plaintiff to reject it, if he was so minded. Plaintiff’s employment contract (exhibit EA1) did not have provisions on  redundancy pay, the only termination clause provided that the employment  relationship can be terminated by either party giving one month’s notice or  paying one month’s salary in lieu of notice. Plaintiff is thus not entitled to any  negotiation and it is entirely up to him to accept or reject the offer of redundancy  pay.

Plaintiff contended also that redundancy packages paid to affected staff varied; and cited Rachel, a junior and Human Resource Officer who did not have a degree  was paid US$200,000.00 and had all her loans absolved. An assertion denied by  Defendant who contended that the said Rachel exited Defendant on grounds of  early retirement. The onus was on Plaintiff to prove the assertion. ‘The principle  of law is 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” (see Amah v. Kaifio [1959] GLR 23). PW1  testified in cross examination thus: 

Q Do you know the basis of negotiations of each worker? A Yes I do. I am aware that package given to staff has to do with your  grade and number of years you have worked in the organization, there were instances where people with lesser pay than that of  Erasmus specifically Rachel Tchibozo who had 3A had over two  hundred thousand dollars as a package and all her loans were  absolved by the company whereas it wasn’t so for some of us  especially Erasmus whose grade far exceeded that of Rachel, he was  4A. Q Do you have documentary proof of what was paid to any other  employees particularly Rachel whom you just mentioned. A No My Lord…. 

No evidence was placed before the court to substantiate Plaintiff’s assertion that  Rachel was paid redundancy package of US$200,000.00. The principle in  Majolagbe v. Larbi [1959] GLR 190 applies for it is trite that where a party makes  an averment and his averment is denied, he is unlikely to be held by the Court to  have sufficiently proved that averment if he does not adduce that corroborative  evidence which if his averment be true is certain to exist. Plaintiff failed to  discharge the burden he assumed by being unable to prove that Rachel was made  redundant, paid a redundancy package of US$200,000.00 and by virtue of these  facts Defendant was obligated to pay him a higher sum. 

Whether or not the purported redundancy exercise by the Defendant amounts to  unlawful termination of Plaintiff’s employment? The basis of Plaintiff’s contention that the redundancy amounted to unfair termination of his employment are that  the purported redundancy was premeditated; Defendant’s lack of supervision of  Plaintiff’s boss; the absence of a defined process for redundancy; the timing was  unfair because Defendant had full knowledge that the abrupt and insensitive  withdrawal of rent supplement, health benefits and entitlements of Plaintiff as an  employee would have adverse consequences on his finances and the welfare of  his family; the system used in paying redundancy packages lacked uniformity and  amounts paid varied. Plaintiff contended that these actions of Defendant did not  only amount to him being made redundant but made the termination of his  employment unfair. 

Section 63 of Act 651 is explicit on what amounts to unfair termination of  employment. The section provides as follows: 

Section 63—Unfair Termination of Employment. (1) The employment of a worker shall not be unfairly terminated by the  worker's employer.  (2) A worker's employment is terminated unfairly if the only reason for the  termination is (a) that the worker has joined, intends to join or has ceased to be a member  of a trade union or intends to take part in the activities of a trade union; (b) that the worker seeks office as, or is acting or has acted in the capacity  of, a workers' representative; (c) that the worker has filed a complaint or participated in proceedings  against the employer involving alleged violation of this Act or any other  enactment; (d) the worker's gender, race, colour, ethnicity, origin, religion, creed, social,  political or economic status;(e) in the case of a woman worker, due to the pregnancy of the worker or  the absence of the worker from work during maternity leave; (f) in the case of a worker with a disability, due to the worker's disability;  (g) that the worker is temporarily ill or injured and this is certified by a  recognised medical practitioner; (h) that the worker does not possess the current level of qualification  required in relation to the work for which the worker was employed which is  different from the level of qualification required at the commencement of  his or her employment; or (i) that the worker refused or indicated an intention to refuse to do any  work normally done by a worker who at the time was taking part in lawful  strike unless the work is necessary to prevent actual danger to life, personal  safety or health or the maintenance of plant and equipment. (3) Without limiting the provisions of subsection (2), a worker's employment  is deemed to be unfairly terminated if with or without notice to the  employer, the worker terminates the contract of employment (a) because of ill-treatment of the worker by the employer, having regard to  the circumstances of the case; or (b) because the employer has failed to take action on repeated complaints  of sexual harassment of the worker at the work place. (4) A termination may be unfair if the employer fails to prove that,(a) the reason for the termination is fair; or (b) the termination was made in accordance with a fair procedure or this  Act. 

Plaintiff failed to demonstrate which subsection of section 63 of Act 651 grounds his claim for unfair termination of his employment. Plaintiff also alleged that his  boss sexually harassed him. He stated at paragraph 18 of his witness statement that “I was also harassed by Margaret Bekker by making sexual advances and also  telling one of our colleague Paul Ondiwa how much she loves me on several  occasions. The harassment by Margaret Bekker (was) so intense that I made a  verbal complaint to the Human Resource Department.” PW1 also testified in cross  examination thus: 

Q Kindly itemize for this court the incidence that you call sexual  harassment as you stated in your paragraph 12 A There were instances where some of his colleagues especially Paul Ondiwa use to tell Erasmus that Margaret liked him and there was  another instance where the group head of operations our overall boss  Dominic Mensah told Erasmus to learn how to kiss his boss’ ass Q And that is your evidence of Margaret Bekker’s sexual harassment of  Erasmus? A Yes 

The termination of employment is said to be unfair on grounds of sexual  harassment where the employer has failed to take action on repeated complaints  of sexual harassment of the worker at the work place and as a result the worker  has terminated the employment contract with or without notice. The evidence  placed before the court do not support a finding that Plaintiff made repeated  complaints of sexual harassment to Defendant and the latter failed to take action  thereon and as a result Plaintiff terminated the employment contract. Plaintiff  said he only made a verbal complaint to Defendant’s Human Resource  Department and this is suggestive that he made only one complaint and not repeated complaints. Plaintiff’s employment contract was terminated by  Defendant on grounds of redundancy and not Plaintiff terminating his  employment contract on grounds of sexual harassment in a manner as stipulated  by the Labour Act. Unfair termination on grounds of sexual harassment has not  been made as Plaintiff failed to discharge the burden of persuasion to convince  the court of the probability of his assertions. 

Whether or not Plaintiff is entitled to his reliefs? As already ruled, the redundancy  exercise carried out by Defendant was not unlawful thus the termination of  Plaintiff’s employment was not unlawful. Plaintiff is seeking an order for the  payment of three months’ salary in lieu of notice for the redundancy. This relief in  my view is premised on the erroneous belief by Plaintiff that pursuant to section  65 (1) of Act 651 Defendant ought to give him three months notice prior to being  made redundant. The said notice is required to be given to the Chief Labour  Officer and the trade union concerned. In the instant case, Plaintiff is neither the  Chief Labour Officer nor the trade union. No notice period has been stipulated in  either statute or Plaintiff’s employment contract which gives him the entitlement  of three months salary in lieu of notice for redundancy. 

Plaintiff is seeking an order for the Defendant to pay Plaintiff his monthly salary  from the 1st day of January 2015 till date of judgment. Plaintiff testified at  paragraph 24 of his witness statement thus:

“That if I was given the requisite  notice of three months I would have been paid my salary together with all  allowances as stated in the table below. But for the fact that I was set up for redundancy leading to my employment being terminated I would still be in  employment of the Defendant and I ask that I be paid all salaries and allowances due me pending the final determination of the case.”

The Court has already ruled  that the requisite notice was not directed at Plaintiff but to the Chief Labour  Officer and the trade union thus this claim fails. 

Plaintiff is also seeking an order directed at Defendant to pay Plaintiff redundancy  pay of nine months’ salary for each year worked. Paragraph 28 of Plaintiff’s  witness statement which he relied on as his evidence in chief stated thus: 

It was when I received the letter dated 9th day of December 2014, that I  realized that with respect to my gratuity pay and severance pay I was given  the following: a. Gratuity pay at the rate of one month of Plaintiff’s basic salary for  each complete year worked, subject to a maximum of twelve (12)  months; b. Severance pay at the rate of two months of his gross pay for every  year worked, subject to a minimum of Three months and maximum of  twelve months; That from the above it is clear that I was given a range and not a specific  amount and that led me to request for nine (9) months for my gratuity and  nine (9) months for my severance pay. At numerous meetings with my  lawyers and lawyers for Defendant’s this issue was raised yet Defendant  ignored this fact. 

This calls for interpretation of the above clauses as contained in the offer  Defendant made to Plaintiff. The gratuity pay being offered is one month’s basic  salary for each year worked and the maximum payment is 12 months which means that where an employee has worked for more than twelve years, his or her  entitlement under this head will be twelve months of basic salary. The least one  gets is one month and the most one gets is twelve months. In respect of the  severance pay offered, one gets two months gross pay for every year worked  subject to a minimum of three months and a maximum of twelve months. This  means that employees who worked for one year and six years upwards get three  months and twelve months gross salary respectively as severance pay. Plaintiff  having worked for four years is being offered four months’ basic salary as his  gratuity and eight months’ gross salary as his severance pay. Although a range  had been set by this offer what an affected worker was offered such as Plaintiff  was dependent on the number of years one had completed upon the termination  of employment by reason of the redundancy. The interpretation put on these  clauses by Plaintiff are therefore inaccurate and Plaintiff is not entitled to the said  relief as same is without basis. 

Plaintiff is also seeking an order for Defendant to absolve Plaintiff’s car loan. Plaintiff testified at paragraph 35 of his witness statement that:

“Considering the fact that I took a loan (i.e. a car loan) if I was informed of the redundancy exercise and package I would not have applied for the loan or I would have been better  prepared for the redundancy and would have enable me to plan adequately.” 

Further in paragraph 39 of his witness statement, Plaintiff asserts that: “Further  that I am entitled to my bonus for the year 2013 and 2014 as promised by  Defendant.” Be that as it may, the employment relationship is regulated by terms  and conditions as found in the contract of employment by which statutory  provisions regulating employment are implied. 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  provision for the time being regulating employment (see Morgan and Others v. Parkinson Howard Ltd [1961] 1 GLR 68). The rights and obligations of either party  to the employment contract derive their bases from the employment contract. It  was held in Acquaye v. Awotwi and Another [1982-83] GLR 1110-1118 that it was a  well-known rule of evidence that although proof in a civil case rested on the  plaintiff, that burden was discharged, when once the plaintiff had introduced  sufficient evidence of the probability of his case. Plaintiff failed to prove which  term of his employment contract entitles him to these claims by producing  sufficient evidence of the probability of his case. Plaintiff has thus been unable to  discharge the burden he assumed in making those claims and same fail. 

Plaintiff is seeking general damages for unlawful termination, discrimination and  unlawful redundancy. The issues on unlawful termination and redundancy have  been ruled upon already. Thus Plaintiff’s claim in this regard is for discrimination. Plaintiff averred at paragraph 16 of his witness statement that after the hard  work he put in to set up the Card Issuance Centre or the Card Issuance Bureau for  Defendant and Ecobank Group, he was denied promotion for nearly four years  because of the subjective promotion system employed by Defendant leading to  Defendant promoting and employing incompetent cronies and friends. Plaintiff  stated also that after all the hard work that went into building the 2 million USD  facility for the Ecobank Group, he has been denied promotion for nearly 4 years  because the Defendant’s appraisal and promotion system is subjective and  created room for discrimination and unfair treatment by leaving the decision to Plaintiff’s boss. He averred that for instance Defendant employed Francis K.  Boateng and promoted him to Head Group Card Issuance who had neither the  skill nor qualification to be in that position as compared to Plaintiff. Plaintiff  testified at paragraph 12 of his witness statement that: 

……despite receiving positive appraisals the said Margaret Bekker appraised  me in a manner inconsistent with Defendant’s Human Resources Polices and  continually refused to abide by the staff promotion principles which  required that; a. Promotions are based on an individual’s performance, abilities and  experience b. Promotion decisions are also based on the existence of a position in a  higher grade/level and the employee’s potential to fulfill the  requirements of the position. c. The potential is based on previous performance, demonstrated ability  of the individual to learn (through development and training) and  applying him/herself to new experiences as well as the competencies  that can continue to be realized from the individual that will meet the  requirements of the new position including conduct. A copy of which  is attached and marked as Exhibit EA4. 

Plaintiff testified in cross examination thus: 

Q According to the first witness statement dated 1st June 2015 Mr  Akushie let’s look at paragraph 12 of your witness statement of 1st June 2015. In paragraph 12 you state that the Defendant’s Human  Resource Policies on promotion. There is a laid down procedure how  the Defendant goes about their promotion and you annexed exhibit  EA4 which is the actual Human Resource policy for 2013. Now page 3  of exhibit EA4 sets down a number of criteria for promotion.A Yes My Lord Q And the promotions are always decided by ManagementA Based on performance Q If you look carefully at page 3 of exhibit EA4 Staff promotion forms  exhibit EA4 is based on performance, abilities, experience, existing of  position in a higher grade, the employee’s potential to fulfill the requirement of that position and always subject to promotion merits  that will be correct on exhibit EA4? A Yes My Lord Q It is therefore not a member of staff who decides on his or her  promotion but it is the decision of management. A My Lord it is correct based on performance, ability and experience  

Exhibit EA4 which is Defendant’s Human Resources policies states that promotion  is based primarily on an individual’s performance, abilities, experience; decisions  are also based on the existence of a position in a higher grade/level in addition to  the employee’s potential to fulfill the requirements of the higher position. The  court finds that promotion does not come about only on grounds of one’s  excellent performance but the existence of a higher grade and the employee’s  potential to fulfill the requirements of that higher grade or level. Promotion was  also the decision of management and not the decision of Plaintiff’s boss. Plaintiff  failed to show that there existed a higher grade which he had the potentials to  assume but Defendant failed to consider him. Plaintiff’s complaint in this regard is without basis and same cannot be upheld as promotion was not automatic or  based solely on one’s excellent performance at the lower grade. 

In conclusion and in the light of the above, Plaintiff’s claim fails in its entirety. Cost  of GHS2,000.00 awarded in favour of Defendant. 

(SGD) 

Justice Gifty Dekyem (Mrs) 

Justice of the High Court

Labour Court 1, Accra 

COUNSEL

Kofi Somuah ESQ for Plaintiff

Shadrack Arhin ESQ for Defendant