NATIONAL LABOUR COMMISSION V. HARLEQUIN INTERNATIONAL (GH) LTD.
by KWABENA ASUMAN-ADU
Jurisdiction
High Court
Judge
KWABENA ASUMAN-ADU
Catalog Type
Case
Judgement Date
Jul 22, 2009
Summary
LABOUR LAW — WRONGFUL TERMINATION — NOTICE REQUIREMENT — EXTRINSIC EVIDENCE — ENFORCEMENT OF NLC DECISIONS The National Labour Commission (NLC) applied to the High Court under s.172 of the Labour Act, 2003 (Act 651) to compel the respondent employer to comply with its earlier decision awarding various reliefs to the petitioner, a former employee, for wrongful termination of employment. The employee had been dismissed by a letter dated 3 November 2008, effective immediately, contrary to Clause 13.2 of the employment contract which required three months’ written notice prior to termination. A previous warning letter of 15 October 2008 concerning poor performance did not constitute the required notice. The Court held that the respondent employer breached the contract by failing to comply with the mandatory three‑month notice requirement. The termination was therefore wrongful. The Court affirmed the NLC’s award of reliefs including: three months’ salary in lieu of notice; compensation for wrongful termination; repatriation allowance (including the employee’s spouse); pro‑rated commuted leave; and salary from the date of termination to the conclusion of proceedings. On the question of the applicable salary, the Court held that extrinsic evidence — including bank transfers (Exhibits LB6–LB14) — could not vary the unambiguous salary provision in the written contract, which stated £9,600 per year (£800 per month). Consistent with the rule against admitting extrinsic evidence to vary written terms, the Court concluded that the employee’s entitlements must be computed on the basis of £800 per month. Application granted. Respondent ordered to pay all entitlements as determined by the NLC on the contractual salary rate, and to provide repatriation tickets and allowances. Costs of GH¢1,000 awarded against the respondent.
Full Content
RULING
ASUMAN-ADU, J.
This ruling is in respect of an application for the enforcement of the decision of the applicant against the respondent filed by the applicant on 22nd May, 2009.
In an Affidavit in Support of the said application, the applicant avers that on 24th November, 2008 one Lee Martin Baker (hereinafter referred to as the petitioner), a former employee of the respondent company filed a petition with it against the respondent for wrongful termination of his employment. The applicant found that the notice of termination of employment served on the petitioner was in breach of clause 13.2 of the contract of employment signed between the two parties attached as Exhibit LB1. So on 27th November, 2008 the applicant having listened to the parties involved ruled in favour of the petitioner.
According to the applicant, the notice of the termination of employment purported to have been served by the respondent on 15th October, 2008 attached as Exhibit LB4 cannot be termed as notice because it was drawing petitioner’s attention to poor performance. Meanwhile, the purported termination was in respect of gross misconduct.
The applicant goes on to aver that the said notice and the date of termination is less than three (3) months as required under the agreement signed between the two parties.
The applicant avers that the monthly salary of the petitioner was £3000 per month out of which he was paid allowance of £800 in Ghana and £2,200 transferred into his account at the Barclays Bank in Great Britain. It supported this assertion with Exhibits LB 6-14 to LB14
The respondent opposed the application in an Affidavit in Opposition filed on 8th June, 2009. It avers that the termination of the petitioner’s employment is not in breach of the contract of employment. It goes on to aver that petitioner’s salary was as stated in clause 4.1 of Exhibit LB1. His salary was £9,600 per year.
The respondent avers that by paragraphs 9 and 10 of its Affidavit in opposition, the applicant is attempting to import unknown terms into the said Exhibit LB1 and to mislead this court into making an order for the payment of monies which are not supported by the contract of employment that formed the basis of the applicant’s decision.
It goes on to aver that Exhibits LB6-14 to LB14 were never before the applicant during the hearing of the petition by the applicant, so they must be expunged as inadmissible. In any case, the amount stated on the said exhibits does not form part of the petitioner’s salary.
According to the respondent, it is prepared to pay the petitioner what is due him based on the contract of employment but the petitioner has refused to accept same. The application is, therefore, unnecessary and should be dismissed with cost.
The submissions made by counsel for the parties flow from the various Affidavits filed by the parties. According to counsel for the applicant, the salary of the petitioner was £3,000 per month so that should be used for the enforcement of the decision of the applicant.
Counsel for the respondent submits that the applicant made the decision based on the contract of employment attached as Exhibit LB1. It is the same contract that determines the salary of the petitioner so that is what should be used to determine what is due the petitioner. He referred the court to the case of Motor Parts Trading Company v. Nunoo (1962) 2 GLR 195 at 200. He goes on to submit that the exhibits attached do not in any way show that the amount stated was the salary of the petitioner. According to counsel for the respondent, the burden of proof is on the applicant to prove that those transfers were for his salary which would then contradict the contract on which the applicant itself relied on. He went on to refer the court to the case of Peters v. Peters (1962) 2 GLR 182 at 211.
The current application has been brought under Section 172 of the Labour Act 2003 (Act 651) which states as follows:
“Where any person fails or refuses to comply with a direction or an order issued by the Commission under this Act, the Commission shall make an application to the High Court for an order to compel that person to comply with the direction or order.”
From the said provision, this court has been called upon to order the respondent to comply with the order of the applicant delivered on 27th November, 2008.
Having found the termination of petitioner’s employment wrongful, the applicant decided as follows:
a) The respondent to pay to the petitioner 3 months’ salary in lieu of notice
b) The respondent to pay to the petitioner 6 months’ salary for wrongful termination
c) The respondent to pay to the petitioner repatriation allowance including his spouse
d) The respondent to pay the petitioner’s salary from time of termination to time of determination of case by the applicant. That is from 3rd November, 2008 to 28th November, 2008.
e) Respondent to commute annual leave to cash on pro rata basis and pay the petitioner that amount.
The respondent has asked the court to dismiss the application on ground that the termination of the petitioner’s employment was fair and in accordance with the contract of employment signed between the parties.
In deciding whether or not to grant the application, the court must consider the following issues.
a) Whether or not the termination of the petitioner’s employment was wrongful;
b) Whether or not the respondent is entitled to be paid the various amounts stated in the decision of the applicant; and
c) Whether or not petitioner’s salary was £3,000 per month.
The first issue that this court is to determine is whether plaintiff’s dismissal was wrongful. Having stated in the Affidavit in Support that the notice of termination of the petitioner’s employment was in breach of the contract of employment signed between the respondent and the petitioner, it was the duty of the applicant to prove to this court that the termination of the petitioner’s employment does not comply with the terms of the said contract Exhibit LB1 particularly clause 13.2.
The law on this is stated in the case of Morgan and Ors. v. Parkinson Howard Ltd. (1961) GLR 68 where Olleum J (as he then was) stated at page 70 as follows:
“In a claim for wrongful dismissal it is essential that the plaintiff should prove the terms of his employment and then prove either that the determination of the employment is in breach of the terms of his agreement, or that the determination is in contravention of the statutory provisions for the time being regulating employment. His claim cannot succeed if he fails to satisfy the court on these points.”
Going by the decision, the applicant in this case has a duty to prove the terms of the employment of the petitioner and also demonstrate that the reasons assigned for the termination of his employment are in breach of the terms of his employment. I must state that the applicant herein has crossed the first hurdle. This is because in the proceedings, the applicant attached Exhibit LB1 which clearly shows the terms of petitioner’s employment with the respondent.
The question that has to be answered is, has the applicant been able to prove that the reasons assigned for the termination of the employment were in breach of the contract of employment, Exhibit LB1?
Clause 13.1 of Exhibit LB1 gives events that may lead to the termination of the employment of the petitioner. Clause 13.2 provides that should the petitioner commit any of the offences stated under clause 13.1, his employment may be terminated by giving him three (3) months prior notice in writing. This implies that, before the employment of the petitioner could be terminated by the respondent, he must be given three months notice in writing. So the question that will have to be answered is whether the said notice was given to the petitioner before his employment was terminated.
The letter terminating the employment of the petitioner, Exhibit LB5 was written on 3rd November, 2008 to take effect on the same day. By the said letter, clause 13.2 of Exhibit LB1 was not complied with. That is, the three (3) months notice was not given. However, from the record of proceedings the respondent argues that the termination of the employment of the petitioner was not in breach of the contract of employment. This is because prior to the termination of his employment, petitioner was put on notice for his poor performance. This was communicated to the petitioner in a letter dated 15th October, 2008, Exhibit LB4.
Granting without admitting that the said letter was to serve as notice for the termination of the employment of the petitioner, his employment should have been terminated on 15th January, 2009 as per clause 13.2 of Exhibit LB1 and not 3rd November. Exhibit LB4 gives just 18days notice which is contrary to the provision in clause 13.2 of Exhibit LB1.
Exhibit LB4 cannot therefore, represent notice for the termination of the petitioner’s employment by the respondent. Rather, it was a warning given for his alleged poor performance. So that if the respondent was still not satisfied with his performance and would want to terminate his employment, then it should have complied with clause 13.2 of Exhibit LB1. Since the letter was written on 3rd November 2008, the termination of the petitioner’s employment should have taken effect from 3rd February, 2009 and not 3rd November, 2008. This clearly shows that the respondent was in breach of Clause 13.2 of Exhibit LB1. The termination of the petitioner’s employment was therefore wrongful and I so hold.
I now address the issue whether or not the petitioner is entitled to be paid his reliefs as stated in the decision of the applicant attached as Exhibit LB3. Unfortunately, a copy of the petition of the petitioner sent to the applicant was not attached to the current application for this court to know the reliefs the petitioner sought for. However, from the proceedings the following were the reliefs the petitioner sought for:
a) The respondent to pay him all benefits due him under the contract of employment
b) The respondent to pay him repatriation allowance since he was recruited in the United Kingdom. This is to enable him convey his belongings.
c) The respondent to provide him with ticket to travel back to U.K.
d) He should be paid his entitlement
e) He should be paid three months pay in lieu of notice
f) He should be paid in lieu of the unexpired part of the contract
g) Compensation for wrongful termination.
Having found that the termination of petitioner’s employment was wrongful, it follows that he should be awarded such damages, as he will be entitled by law. The principle on this is given in the case of Ridge v. Baldwin (1964) A.C. 40 at page 65 in which Lord Raid in his judgment states as follows:
“The law regarding master and servant is not in doubt. There could be specific performance of a contract of service, and the master can terminate the contract with his servant at any time and for any reason or for none. But if he does so in a manner not warranted by the contract he must pay damages for breach of contract. So the question in a pure case of master and servant does not at all depend on whether the master has heard the servant in his own defence; it depends on whether the facts emerging at the trial prove breach of contract.”
It was also held in the case of Turkson v. Mankoadze Fisheries Ltd. (1991) 2 GLR 430 by Ampiah J (as he then was) at holding 2 as follows:
“The parties having provided in article 19(4) of the collective agreement that when an employee was found to have been wrongfully dismissed he should be reinstated and his full pay restored together with any arrears, the defendant would be ordered to do so accordingly. But should the defendant be unable to reinstate the plaintiff, it would be ordered to pay to the plaintiff all his entitlements from the date of the wrongful dismissal to the date of judgment.”
From the authorities referred to, where the employment of an employee is terminated in breach of the contract of employment, the employee is entitled to be paid compensation. So in the current case, having found that the termination of the petitioner’s employment was wrongful, he is entitled to be paid reasonable compensation.
In its decision attached to the application, Exhibit LB3, the applicant awarded the petitioner the following reliefs:
a) 3months salary in lieu of notice
b) 3months salary for wrongful termination
c) Repatriation allowance including his spouse
d) Annual leave commuted to cash on pro-rata basis
e) He should be paid his salary from time of termination to time of determination of case. That is, 3rd November, 2008 to 26th November, 2008.
Since the petitioner is entitled to be paid compensation, I hold that he be paid the reliefs stated in Exhibit LB3 shown above by the respondent.
It is unfortunate that the applicant did not state the salary of the petitioner in its decision. It is, therefore, not clear from the decision the specific amount that the respondent should pay the petitioner. This explains why the applicant attached some transfers to the application and stated that those were part salaries of the petitioner, so the respondent should be ordered to use the amount stated in the said transfers together with an alleged domestic allowance paid to the petitioner to calculate the payment to be made to him. It gave the salary of the petitioner as £3,000 out of which £2,200 is paid to his foreign account and £800 paid to his local account.
The respondent has disputed that assertion. According to the respondent, clause 4.1 of Exhibit LB1 gives the salary of the petitioner as £9,600 per year payable monthly in arrears. It is, therefore, not correct that his salary was £3,000. So the question is what was the salary of the petitioner at the time his employment was terminated?
Though Exhibits LB6-14 to LB14, show that some transfers were made into the account of the petitioner by the respondent in U.K., there is nothing to show that the said transfers were salaries of the petitioner. Moreso, the said documents were not made available to the applicant at the time of the hearing of the petition. So the said documents cannot be relied upon by this court as representing the salaries of the petitioner.
Exhibit LB1, the contract of employment states at clause 4.1 the salary to be paid to the petitioner by the respondent. It states as follows:
“The company shall pay to the FORKLIFT CENTRE MANAGER and SPECIAL PROJECTS by way of remuneration for the proper performance of his duties, a salary at the rate of UK £9,600 per year payable monthly in arrears by equal monthly installments.”
The said contract was for a period of 2years and it commenced on 2nd February, 2008. This shows that as at the time of the termination of the employment of the petitioner on 3rd November, 2008 it was still in operation. Also, it is the same contract that the petitioner is saying that the respondent has breached in terminating his employment without giving him notice. So how come that part of the contract will be accepted to the applicant but part will not be accepted by it? If there has been amendment to the contract in respect of the remuneration paid to the petitioner, then it must be specifically proved by him. This is because the onus is on the petitioner to prove that his salary was £3000 per month and not £800. Exhibits LB6-14 to LB14, do not prove that there has been amendment to the remuneration. So no other document apart from the contract can be relied upon in determining the salary of the petitioner at the time of termination of his employment.
The principle on this is given in the case of Motor Parts Trading Co. v. Nunoo (supra) in which it was held by the Supreme Court that when a transaction has been reduced into or recorded in writing by agreement of the parties, extrinsic evidence is in general inadmissible to contradict, vary, add to or subtract from the terms of the document.
In the current case Exhibit LB1 is very specific on the salary to be paid to the petitioner so Exhibits LB6-14 to LB14 cannot be used to vary the remuneration of the petitioner stated in Exhibit LB1. I, therefore, hold that as at the time of the termination of the employment of the petitioner, his annual salary was £9,600 which implies he was earning £800 a month so that is the amount that will have to be used to calculate his entitlement.
From the foregoing, the application is granted and it is ordered that the petitioner is paid all his entitlement as stated in Exhibit LB3 using the salary of £800 per month.
On the payment of the repatriation allowance, it is ordered that the respondent should provide the petitioner and members of his family tickets to enable them travel back to U.K. In addition to that the respondent is ordered to provide them with travel allowance as pertained in the company.
Cost of GH¢1,000.00 made against the respondent.
COUNSEL
WILLIAM KOB LUMOR (ESQ.) FOR THE APPLICANT;
ISAAC OSEI BONSU (ESQ.) FOR THE RESPONDENT.