MERCHANT BANK LTD V. NATIONAL LABOUR COMMISSION

JUDGEMENT

OFOE, JA

Reverend Joseph Koranteng, hereinafter referred to as Rev, attended the Annual General Meeting of the appellant Bank on the 27th of March 2012 as proxy of the Merchant Bank (Ghana) Limited Permanent Staff Provident Fund. This Fund is managed by trustees. It is these trustees who gave the mandate to Rev to represent the staff of the Fund since it will not be convenient for all of them to leave their post to attend the meeting. Shareholders of the bank, include some members of staff, both unionized and non- unionized staff and ex employees. All these were entitled to attend the meeting. In addition to being a shareholder, Reverend was also the Union Chairman.

After the said Annual General Meeting Reverend was alleged to have circulated false information with intent to cause disaffection for the Board members and other workers of the Bank using the Banks intranet. By the Collective Bargaining Agreement the intranet is considered part of the notice board of the bank. The appellant viewed this conduct reprehensible and queried him to explain his conduct. There were two queries dated the 20th April 2012 and 7th May 2012 which were responded to on the 23rd of April 2012 and 7th of May 2012. Management was not satisfied with the answers to the queries and so on the 20th of May 2012 Rev was summoned to appear before a Disciplinary Committee as demanded by the Collective Agreement of the appellant bank. On the 1st of June 2012 the Union issued a notice to embark on an industrial strike if the Disciplinary Committee sitting was not discontinued. The stand of the Union was that since the Reverend’s act complained of by the appellant bank was done in his capacity as a workers representative and a Union Chairman, it was for the appellant to summon Reverend to the Standing Joint Negotiating Committee (SJNC) and not a Disciplinary Committee. The appellant bank held the contrary view. It is that the Rev, being a staff first and foremost, should be taken through the Disciplinary Committee in terms of the Collective Agreement existing between the appellant bank and the Union. On the advice of the Union of Industrial, Commercial and Finance Workers (UNICOF) ie the Union, Reverend did not appear before the said Disciplinary Committee. One other reason the union gave warning of the industrial strike was that the appellant bank had disconnected the leadership of the union from using the intranet facility thereby disabling the leadership of the local union in communicating with its members. A copy of the 1st June warning letter was copied the Labour Commission.

The Labour Commission, the respondent in this case, on the basis of the warning letter copied it by the Union, invited the parties for a solution of the impasse on the 6th of June 2012. It would appear that even though there was this dispute pending over which internal forum should entertain the allegations made against the Rev, the appellant bank proceeded with the Disciplinary hearing and terminated the his appointment on the 5th of June 2012, a day before they were to appear before the commission. On the 6th of June after each party had expressed his concern the union was advised to add what the Chairman of the meeting called a “sub issue” of Unfair Termination and to give a formal notice of the strike to the respondent Commission. The Union, subsequent after this meeting, gave the formal notice of the strike to the respondent Commission as directed at the earlier sitting. This notice was confirmed in another letter of the 8th of June. No separate complain of unfair termination was however lodged with the Commission as advised.

On the 20th June 2012 the parties testified on their respective case after which they were asked to file their written submissions. Relying on the statements and the submissions of the parties the respondent Commission made findings and gave judgment as follows:

“........The Disciplinary Committee did not make any recommendations to the management. However the Management based their reasons for the termination on the findings.Annual General Meetings are not confidential matters therefore the question arises whether communicating matters arising out of Annual General Meetings could constitute gross disrespect.The respondent asserted that the e-mail communication of the complainant brought the Bank and its Board into disrepute but the Bank failed to prove that the communication was false. The National Labour Commission cannot therefore find that the complainant communicated falsehood and as such the benefit of the doubt goes to the complainantAgain the respondent alleged misuse of e-mail by the complainant but failed to establish the sanction that should be imposed on such misuse. Again the benefit of the doubt in this instance also goes to the complainant.DECISIONThe National Labour Commission is of the considered view that the respondent has not met the burden of proof imposed on it by law and therefore, considered the termination of Reverend Smart void ab initio”

It is against this judgment that the appellant has appealed to this court. I will reproduce his grounds of appeal:

a) The whole of the decision is against the weight of evidence

b) The Labour Commission erred when it failed to consider the case of the appellant particularly the fact that the complainant before it had grossly misconducted himself warranting dismissal in accordance with the Collective Bargaining Agreement of the appellant company

c) The respondent commission erred when it failed to take evidence on oath from the parties before arriving at its decision.

d) The respondent commission erred when it failed to comply with regulation 6, 7 and 33 of L.I 1822

e) The respondent commission erred when it failed to appreciate and thereby misdirected itself of the fact that the complainant misconducted himself when it failed to appear before the Committee of Enquiry set up to investigate his misconduct.

An appeal is by way of rehearing and as stated in the Supreme Court case of Tuakwa v. Bosom (2001-2002) SCGLR 61, we have to analyze the entire records of appeal taking into account all the evidence adduced at the trial so as to be satisfied that on the balance of the probabilities the conclusions drawn by the Commission is amply supported by the evidence. Refer to other cases of Gregory v. Tanoh (2010) SCGLR 971, Koglex v. Field (2000) SCGLR 175.

The respondent Commission being a quasi judicial body with a specific mission has its establishment law, Act 651 and regulations made thereunder providing procedures to be followed by Labour Unions, employers and workers anytime any of these industrial partners consider it necessary to submit a complaint to the Commission. Depending upon the issue involved, a party is required to invoke the powers of the respondent Commission by a particular stated procedure. What procedural step the Commission adopts to a complaint and its responses will depend upon the matter before it. All these have been provided for by the Labour Act and regulations made theron.

One of the grievances of the appellant bank before us is that the respondent Commission ignored statutory procedures when it arrived at the decision ordering the reinstatement of the Rev. The appellant has this grievance in their 4th ground of appeal. It will assist in understanding this judgment providing in outline some of the salient procedures provided in the Act.

That the Commission has both adjudication and dispute settlement functions cannot be doubted. (Refer to section 138 (2) of The Labour Act 2003, Act 651. Under sections 62 through to 64 it has the mandate to address issues of unfair termination and issues of unfair labour practice provided for under sections 127 through to 134 of the Labour Act. Then there is the settlement of industrial dispute function conferred on it by sections 153. Which of these duties of the Commission are invoked by a worker or an aggrieved person requires different responses from the Commission. Where for example a worker approaches the Commission with a complaint of unfair termination under section 64, the Commission’s responses may be to order reinstatement, order the worker to be paid compensation or order the employer to reassign the worker in other suitable work. The Commission’s response where a complaint of Unfair Labour Practice is lodged and established is provided for under section 133 of the Act. Some are that where the Commission concludes that there has been unfair labour practice it may order the practice to stop. If a worker has been terminated he may be reinstated, reassigned, restored to his old position etc. Under both unfair termination and unfair labour practice the worker or the party is supposed to lodge a complaint and that is all that the Commission needs to proceed to investigate. I have no reason to doubt that the complaint will have to be in writing, detailing the grievances of the party or the complaint will have to be in the form provided under regulation 6 of L.I 1822.

With the other equally important function of settlement of industrial dispute by the Commission, provided for under sections 153 through to 159 of the Labour Act, there are detailed provisions and procedures for negotiation and mediation by arbitrators through voluntary arbitration. Where the issue between the parties remain still unresolved, compulsory arbitration is resorted to, resulting in a binding arbitration which by the law supercedes any other contract of employment or collective bargaining agreement between the parties. Under this function of settlement of industrial dispute, specific and detail procedures have been provided for under regulation L.I 1822. In making a complaint to the Commission the complainant shall submit his complaint in writing or complete a form provided for by the Commission. The complaint is referred to the other party for his response. This may be followed by the appointment of mediator. If the issues still remain unsolved reference is made to arbitration.

Voluntary arbitration runs into compulsory arbitration where the dispute is still not settled. All these processes have time frames within which the various steps are to be taken. It is worth emphasizing that compulsory arbitration comes in when mediation and arbitration proceedings have failed or the parties are not agreed to refer the dispute to arbitration and either party intends going on strike. This is the import of sections 159, 160, 164 through to 167. The procedures end with a binding arbitration award. It is at this point that any party aggrieved by the award may enter the adjudication stream of the judiciary at the Court of Appeal, if dissatisfied with the compulsory arbitration.

It would be realized that procedures for settlement of industrial dispute engaged the attention of the legislature and the Commission more than the others expecting that all parties will comply with the procedures for effective resolution of any industrial dispute. Now there is this important provision which for our purposes I find necessary to quote.

Regulation 33

“After the receipt of a complaint in accordance with regulation 6 and a response to the complaint in accordance with regulation 7, the commission may, after giving the parties to the dispute the right to be heard, settle the dispute summarily without recourse to mediation or arbitration”

By this provision the Commission has the authority to resort to summary settlement of industrial dispute without sending the parties through the mediation and arbitration processes outlined above.

When the notice of intention to strike issued by the union is examined through the spectacles of these provisions, particularly sections 159 and 160, it becomes less doubtful that the union did not disrespect these provisions. Notice of intention to strike comes up at the tail end of industrial relations, as I have pointed out, where the parties fail to agree to refer the dispute to voluntary arbitration or the dispute remains unresolved at the end of the arbitration proceedings. One needs to go through negotiation, mediation and arbitration processes before intention to strike is issued. The record of appeal does not disclose the union went through any of these processes before issuing the notice of intention to strike. It may be argued that the Commission should have directed the union to conform to the procedure instead of proceeding to hear them. But the Commission may be defended by the provisions of regulation 33 which provides that after the commission had received a complaint and has given the parties the right to be heard, it can settle the dispute summarily without recourse to mediation or arbitration. But for the Commission to adopt this summary procedure it appears the matter should also be an industrial dispute.

What then was the issue that came before the respondent Commission? Was it an industrial dispute? Section 175 defines industrial dispute as:

“..dispute between an employer and one or more workers or between workers and workers which relate to the terms and conditions of employment, the physical condition in which workers are required to work, the employment and non employment or termination or suspension of employment of one or more workers and the social and economic interests of the workers but does not include any matter concerning the interpretation of this Act, a collective agreement or contract of employment or any matter which by agreement between the parties to a collective agreement or contract of employment does not give cause for industrial action or lockout”

Industrial dispute by this definition includes dispute over termination or suspension of employment of one or more workers.

The record of appeal is clear that the main issue between the parties at when they appeared before the Commission was the termination of appointment of the Rev.

On application of the definition of industrial dispute quoted herein it is my view that the issue between the parties was an industrial dispute since it involved also termination of appointment of the Rev. And this is what the Commission settled summarily as they are entitled to do under regulation 33 of LI 1822 without going through the mediation and arbitration procedures. Having given hearing to the parties as is disclosed in the record of appeal and scrutinizing their respective statements submitted to the Commission it is my conclusion that the Commission was right in summarily disposing off the dispute between the parties.

The point has been forcefully made by counsel for the appellant that what the union brought before the respondent Commission was an industrial strike and not unfair termination and since the union did not come to the Commission with a complaint of unfair termination it was wrong for the Commission to resolve the matter as if it was a complaint of unfair termination and make orders for reinstatement. It is the submission of the appellant bank that if the union had brought a matter of unfair termination the bank would have convinced the Commission why the appointment of the Rev had to be terminated.

This submission, to some extent, cannot be glossed over since the labour laws provide separately for matters of unfair termination and matters of settlement of industrial dispute. In fact, that the union had proceeded to the Commission through a doubtful procedure was recognized by the Commission during the hearing, prompting it to advise the union to present a sub issue of unfair termination if they so wish. As already mentioned no sub issue was presented. It is true that what the union brought to the Commission they termed as notice of intention to go on industrial strike but a cursory reading of the contents show that it was also in all respects a dispute over the termination of the appointment of Rev. When it is borne in mind that the Commission is a quasi judicial body and therefore should not be constrained by rigid application of procedures but rather should be proactive and flexible in its approach in resolving industrial cases that come to its attention, one will appreciate why the substance of what comes before it should be its main concern rather than the form. The notice to embark on industrial strike presented by the Union to the Commission had also the complain of unfair termination within. This fact is confirmed at page 39 of the record of appeal. And both parties were given the opportunity to address the issue of termination. In the circumstances of this case the Commission treating the complaint of the union as unfair termination when the formal notice before it was for industrial strike should not attract a major indictment on the Commission as to void their decision.

But again when one takes note of the definition of industrial dispute, quoted above, and further notice is taken of what the law provides as unfair termination under section 62 to 64 of the labour law, it is not difficult to conclude that these sections read cumulatively, i.e. sections 153 running through to 167 on one hand and section 62 to 64 on the other both provide forum for settlement of certain same or similar worker/employer disputes. A clear instance of such a case is matters of termination, the type that confronted the appellant and the union. On a reading of these sections in the context of the Labour Act as a whole, it is my view that matters of unfair termination can also be handled under settlement of industrial dispute provided for under section 153 to 167 even though the procedure at arriving at a settlement may vary. Nothing prevents an arbitrator of an industrial dispute, however, from resorting to unfair termination provisions provided for under section 62 when disposing off a complaint of industrial dispute.

My conclusion on this aspect of the appeal, which in essence attacks the procedural approach of the Commission in handling the complaint of the union, is that whether the Commission determined the matter under settlement of industrial dispute i.e. sections 153 to 167 or unfair termination i.e. sections 62 to 64, they cannot be faltered. Unfair termination can be handled under both procedures. Grounds e and d of the grounds of appeal are hereby dismissed.

The submissions of counsel for the appellant allege another procedural breach during the hearing before the Commission. It is the case of the appellant that when they appeared before the Commission the trial was not directed mainly at enquiring whether the appellant had reason to terminate the Rev’s appointment By this omission the appellant submits it was not given ample opportunity to give evidence in support of its case. I have stated the powers of the Commission to dispose of cases summarily. Of course that is not to say the Commission can proceed without regard to appropriate rules of procedure and legality and thereafter seek to defend such lapse with regulation 33 which gives them the power to try cases summarily. Where there is established fundamental breach in procedure or law in an enquiry by the Commission, which occasions prejudice or injustice to a party, a claim by the Commission based on regulation 33 is likely to be rejected by the courts. In the case before us all the parties appeared before the Commission and stated their case orally. After this both parties, as directed by the Commission, presented their written submissions for the consideration of the Commission thereafter judgment was given. I have read the evidence of the parties before the Commission and their written submission and there is no reason to doubt that both parties presented the details of their respective cases to the Commission. These submissions can be found at pages 37 to 48 of the record of appeal. The appellant had 14 annexures to its well argued position why they terminated the Rev. appointment and their dutiful appliance of the Collective Bargaining Agreement in arriving at the termination decision. I think I should reject this submission by the appellant that it was not given the opportunity to put across fully its case to the Commission.

The appellant Bank’s other grievance is that the Commission failed to consider the fact that the complainant had grossly misconducted himself warranting his dismissal. The appellant also alleges that the Commission failed to appreciate that the complainant misconducted himself when he refused to appear before the committee of enquiry set up to investigate his misconduct.

The question that arises from these submissions of the appellant is whether the appellant was able to establish the misconduct alleged against the Rev and whether the Commission failed to properly consider that aspect of the case. It is worth the emphasis before I proceed to determine these complaints of the appellant that the labour law has come to outlaw any dismissals based on the whims and caprices of the employer. Refer to the Supreme Court case of Kubi v. Ghana Manganese Co. Ltd (2007-2008) 771 at 794. It is therefore for the employer to establish that the termination was based on a proven misconduct of the worker, in our case the Rev, and therefore the termination was fair.

The Rev had had two queries from management for the alleged offences. The first was in these terms:

“The Board requires that you show reason why disciplinary action should not be taken against you:1. For misconduct in respect of miscommunication which both in fact and in possibility bringing the bank and the board into disrepute2. Divulging information without the requisite authority and consent3. Serious misuse of the banks e-mail network4. Making false statements about the bank officials”

The other was:

“You are requested to explain in writing the following specific comments1. “The Trustees insisted that the numerous board meetings must be curtailed..” the board request a full explanation and detailed analysis of the number of Board meetings based upon which you made this assertion. Can you explain that this statement had the support of the other shareholders you alleged.2. “The numerous meetings of the board had been of little benefit, relative to the worrying performance achieved..” Provide a full explanation of this assertion”

These two queries were issued on different days, April 20th 2012 (found at page85 of the report) and 7th May 2012(found at page 86 of the report). It would be realized that the queries were not the same in content.

Rev answered the queries. This was followed by the invitation to appear before the Disciplinary Committee. I will reproduce the invitation letter.

“NOTICE TO ATTEND DISCIPLINARY HEARINGWe refer to our letter dated the May 15th 2012 on the above subject matter and invite you to the Disciplinary Hearing on Friday June 1, 2012 at 10.30am. The venue is the Board Room of the Head Office Annex building situate at the Ridge Branch. Please note that the request for you to appear before the Disciplinary Committee is a legitimate directive from Management.If you fail to appear, the committee will proceed to sit without you and submit a report to Management.....”

Noting the varying contents of the two queries earlier issued and reading this invitation letter which did not provide the charges for which the Rev was to appear before the committee what is it that Rev was supposed to appear before the committee for? What are the charges he was to meet for which he would need to prepare to meet the committee? What does the rule on appearance of parties before such bodies and other quasi adjudication bodies’ demand? It has been established by several authorities that the rules includes a party should be told beforehand the charges for which he is appearing before the committee and he would have to be given sufficient time to prepare to meet the committee. Nowhere in the records were these rules for fair hearing honoured. Probably we need not flog this issue for it may be argued that since the Rev did not appear he was not prejudiced by such omission in the invitation letter.

Why was the Rev appointment terminated by the /Appellate Bank? I will reproduce the relevant parts of his termination letter

“Your refusal to submit yourself to the Disciplinary Committee hearing (which offered you an opportunity to be heard) constitutes a refusal to carry out a legitimate and reasonable instruction under the Bank’s rules and regulations.As indicated in the notice to you to appear before the Disciplinary Committee, the committee met and considered the facts on hand, copies of all the information relied on were served on you. Based on the facts established and your conduct in refusing to attend the hearing your employment is hereby terminated......”

What could be gleaned from this termination letter is that he was terminated because he failed to appear before the Disciplinary Committee and “facts established”.

As earlier stated, under sections 62 and 63 of the Labour Law, for this termination to be fair, lawful it is for the appellant to prove the misconduct of the Rev. Indeed the Collective Bargaining Agreement emphasis this point that the Bank has to establish misconduct of the Rev. for a lawful termination. (Refer to Article 12(1)(v). Misconduct is defined under Article 11(1).

To the appellant it was gross insubordination for Rev to have refused to attend to the Disciplinary Committee hearing and for such offence the appellant had the right to terminate his appointment in terms of the Collective Agreement. On a more incisive reading of this agreement I hold a different view. Where a party has been summoned to a disciplinary committee of the type instituted by the appellant, it is the right of the party to choose whether to appear or not. Where a party waives his right to appear and be heard on the charges leveled against him that cannot be grounds for finding a misconduct. He cannot be compelled to appear before the committee. The refusal to obey legitimate instructions as contained in Article 11(1ii) of the Collective Bargaining Agreement for which a worker may be sanctioned is not applicable in situations of this type. The legitimate instructions that a worker is bound to carry under this Article should be the type which relate specifically to the duties for which the worker was employed. It should have nothing to do with an invitation to appear before a committee where sanctions may be imposed on the worker. The appellant’s reliance on this provision in the Agreement to terminate the Rev appointment I am of the view is flawed. What is important in such situations where the worker waives his right to appear is whether the proceedings and conclusions of the disciplinary committee at the end of hearing, in the absence of the worker, can be justified if the termination is called into question. Clearly this ground for terminating the appointment cannot stand.

So what were the “facts established” by the Disciplinary Committee which formed the other reason for the termination?

It is the submission of the appellant that there was sufficient reason for terminating the appointment of the Rev. He was terminated for circulating information without the authority of the Board of Trustees that authorized him to attend the AGM as their proxy. His duty as a proxy was to report to the Board of Trustees who delegated him to represent the Fund. It is the appellant’s submission that Rev failed to do this and his offence was worsened when without this requisite authority the circulated information was also falsehood disparaging of the board members and some other workers. According to counsel’s submissions when these wrongs were detected the appellant bank dutifully invoked the Collective Bargaining Agreement which demanded they go through certain procedures before sanctioning the Rev. He was invited to appear before the Disciplinary Committee after his answers to the queries were not satisfactory to the bank but he refused to appear. Having gone through these procedures demanded by the Collective Agreement, counsel submitted, there was no reason for the Commission to have found the termination of the Rev wrongful.

From the records of appeal, particularly the report of the Disciplinary committee, the Rev was indicted for not waiting for the official report or minutes of the meeting but rather relying on his own recollections and interpretations of what happened at the AGM and circulating same, which happened to be falsehood. It is worth the emphasis that Reverend did not only represent a section of the worker share holders of the Bank but he himself is a shareholder.

How did the committee come to the conclusion that what the Rev circulated was false? The committee also surprisingly relied on draft minutes of the AGM and not the certified minutes. It used the draft minutes of the meeting to test the accuracy of what the Rev communicated on the intranet. It is obvious to me that use of the draft for any findings against the Rev was also inappropriate and clearly unacceptable. To indict him of communicating falsehood and thereby impose a major penalty of termination on him, I think there should be clear evidence that firstly as a shareholder he was not entitled to circulate happenings of the AGM to whoever and secondly that what he claimed are his recollections and interpretations which he sent out on the intranet were false and really damaging to the Bank or others with the Bank.

On this same issue of communicating happenings at the AGM the question I ask is what discussions and conclusions at an Annual General Meeting of a company, in our case the Bank, is supposed to be confidential that shareholders are not supposed to comment on or communicate to others, whether the communication is to workers or individuals? The committee should have been clear specifying the details and the rules on confidentiality that was breached by the Rev. For it is always important to remember that in our constitutional dispensation where freedom of speech has been engraved in our constitution there should be clear exceptions created for such freedom to be restricted. Sight should not also be lost of the fact that flowing from this constitutional rights, anybody wherever he is has the right to express his opinion on any matter, be it public or private. The only limiting factor being restrictions legally sanctioned.

Again Rev is alleged to have communicated a copy of a draft letter issued out by the Ag Chairman of the PSPF meant for the Chairman of the Board. This letter the committee found was a confidential letter which Rev had in his possession by virtue of his position as a Trustee of the PSPF. Here again what was the basis for the committee finding this letter a confidential letter? We are not told. What is confidential should vary from institution to institution and it is the institution which should determine before hand and to the knowledge of its workers what documents or other materials are to be considered confidential. Before the Commission, all that the appellant needed to do was to present the said document, i.e. the draft letter, and testify to its confidentiality. The appellant failed to do this even though it put before the Commission myriads of annexures during the trial. I do not think the appellant bank discharged its duty establishing this misconduct for which the Rev should be terminated.

One other charge against the Rev was serious misuse of the Bank’s e-mail net work. The appellant Bank appeared so incensed at the alleged e-mail publication of the Rev it decided to conduct an over view of all e- mail messages sent out by the Rev between the period 1st April 2012 to 23rd April 2012. The Head of Group Audit and Assurance Department (GAAD) was mandated to conduct the investigations. By the report out of the 109 e-mails examined 10 did not pass the mark of the Bank. They were found to be offensive and unacceptable. The Disciplinary Committee simply adopted the findings of GAAD that the said identified e-mail were in breach of various aspects of the appellant’s e-mail guidelines. It is not too clear how this report was used or influenced the decision of the appellant Bank to terminate Rev appointment. But clearly such findings of misuse of the e-mail facilities of the Bank, if that was what happened, should be a wrong known to the workers and indeed all staff and therefore breach of their Collective Bargaining Agreement or any part of the labour laws with appropriate sanctions provided. It is not that the Rev. had no authority to use the e-mail. He had. His offence was that he misused it issuing unacceptable mail to union members. Breach of a policy, in this case an e-mail policy, or guidelines would not necessarily be sanctioned unless the organization has clear provisions to that effect. This is not the case of the appellant proofed on the record of appeal.

We have conducted a rehearing of this appeal by reviewing the evidence as it applies to the applicable laws and we are convinced that the respondent Commission did not err when it ordered Rev. to be reinstated. Even though its decision may be described as sketchy, a detailed examination of the case put before it supports its decision to order the reinstatement. We consequently dismiss the appeal as without merit.

SGD

V. D. OFOE

(JUSTICE OF APPEAL)

SGD

MARIAMA OWUSU

(JUSTICE OF APPEAL)

SGD

GERTRUDE TORKORNOO

(JUSTICE OF APPEAL)

COUNSEL

MR. SACKEY FOR RESPONDENT/APPELLANT,

MR. ASANTE NUNOO FOR RESPONDENT