AUGUSTIN BOGOLOH V INTERTEK GHANA LIMITED

JUDGEMENT 

Defendant was Plaintiff’s employer. Plaintiff averred that, he was employed by  Defendant between March 1986 and 1993 when the latter was called Caleb-Brett. Plaintiff averred that, in 1993, the company was sold to Q and Q Control Services  and Plaintiff continued to work with Q&Q from 1993 to 1998. By letter dated 21  July, 1998 (exhibit A), Plaintiff was employed by Intertek Testing Services Caleb  Brett at it’s Abidjan office as General Manager. By a further employment contract (exhibit B, same as exhibit 1) between INTERTEK COMODITIES and Plaintiff, the  latter was offered a position as an ex patriate to be stationed in Ghana as  REGIONAL MANAGER for FRENCH WEST AFRICA effective 1st July, 2011. The terms  of the contract were contained therein. By letter dated 1st June, 2016 (exhibit C),  Plaintiff’s employment was terminated by one month pay in lieu of notice. The  following were paid to Plaintiff on termination of his employment contract as  follows: 

1. One month salary in lieu of notice US$11,881.96

2. Redundancy Payment (5 months basic salary) US$77,175.60

3. Outstanding leave (39 days) US$20,065.50

4. Relocation Cost US$12,500.00 

Total Amount due and paid US$121,623.06Being aggrieved, Plaintiff commenced the instant action against the Defendant  claiming per his amended writ of summons and statement of claim thus: 

a. A declaration that the termination of plaintiff’s appointment by the  defendant is wrongful in law. 

b. A declaration that it is wrongful in law for the defendant to declare  the plaintiff redundant in the light of the Labour Act. 

c. A declaration that it is unlawful and wrong in law for the defendant  to sever relationship with the plaintiff without reference to their  employment contract.

d. A declaration and an order that plaintiff is entitled to all his benefits  under the contract document and any other statutory benefits  including but not limited to salary, leave, social security  contributions from date of termination of employment to retirement  and also children’s annual school fees allowance. Or in the  alternative 

e. Accurate and standard computation of redundancy or severance  package from 1998 and in addition to the reliefs below. 

f. Damages for wrongful termination of appointment, wrongful redundancy and wrongful severance. 

g. Refund of money paid for the service vehicle as it is supposed to be  part of his retirement package 

h. Costs including legal fees. 

Defendant denied Plaintiff’s claim and contended that, exhibit B contained the  entire contract terms regarding the employment relationship that existed  between parties herein. Defendant averred that, the company Caleb-Brent was  taken over by Intertek Global which is a separate legal entity from Defendant. It is Defendant’s case that, sometime in May, 2016, it decided to restructure its affairs  thus offered Plaintiff a new employment which was significantly reduced functions and equally reduced remuneration. By letter dated 23 May, 2016  (exhibit 8), Plaintiff rejected the offer. It is Defendant’s case that, it had no option but to terminate Plaintiff’s employment contract in accordance with the employment contract in the total sum of US$121,623.06 with a breakdown as reproduced above. Defendant averred also that, it accepted Plaintiff’s offer to  purchase his official vehicle at a price far below what pertains in the open market. Defendant contends that, the termination of Plaintiff’s employment in the  circumstances was not unlawful. At directions stage, the following issues were  settled for trial: 

i) Whether or not Plaintiff was declared redundant? 

ii) Whether or not the computation the Defendant did for Plaintiff’s purported severance or redundancy was accurate? 

iii) Whether or not the termination of Plaintiff’s employment contract  was lawful? 

iv) Whether or not Plaintiff is entitled to his claim? 

The burden of proof in civil actions such as the instant one, are set out clearly in the relevant provisions of the Evidence Decree, 1975 (NRCD 323) 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. 

The Supreme Court held in Takoradi Flour Mills v Samir Faris [2005-2006] SCGLR  882 -885 holding 4 that, “Since it was the plaintiff…..who made a claim ….., he had  to adduce evidence sufficient to establish a prima facie case…” The onus is thus on  Plaintiff in accordance with the rules of evidence to produce sufficient evidence to  make out his claim on a preponderance of probabilities as defined in section 12(2)  of NRCD 323. 

Whether or not Plaintiff was declared redundant? Plaintiff averred that, per his  employment contract and the Labour laws of Ghana, Defendant had no legal right  to declare him redundant especially so when the latter was doing well. It was  argued on behalf of Plaintiff that, exhibit B does not contain any provision on  redundancy thus Defendant did not have any basis for declaring Plaintiff  redundant. The Court finds that, although there is no provision on redundancy in  exhibit B, the last sentence in exhibit B states that, “All Labour and laws relevant  to employment as set out under Ghana legislation will apply for the duration of  this agreement, including laws to non nationals living in Ghana” thus making exhibit B subject to the Labour Act 2003 (Act 651) and all legislations for the’ time  being regulating employment relationships in Ghana. 

Section 65 of the Labour Act 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) envisages where an employer contemplates major changes that  may entail the terminations of workers’ employment. The section requires the  employer in such a situation to give notification to the Chief Labour Officer and  consult the trade union of the affected workers. The implication is that, the  affected employees must be union members of which Plaintiff is not so section  65(1) of Act 651 does not apply to him. Pursuant to section 65(2) of Act 651, where termination of the employment contract occurs as a result of an  undertaking being closed down or has undergone an arrangement or amalgamation, the affected employee is entitled to redundancy pay. Although the  termination of employment letter, exhibit C does not state any reason, a letter  prior to that, dated 17 May, 2016 (exhibit 7) states inter alia that, the decision to  terminate Plaintiff’s employment contract was due to economic reasons in that  Defendant could not afford to sustain the cost of the regional and Plaintiff’s role. Are economic reasons tantamount to closing down, arrangement or  amalgamation of an undertaking? 

There was no evidence placed before the court to demonstrate that Defendant  was closing down as it was in a position to offer Plaintiff a new job which he rejected. Section 229 of the Companies Code, 1963 (Act 179) define both ‘arrangement’ and ‘amalgamation’ as follows: 

“(a) the expression "arrangement" means any change in the rights or  liabilities of members, debentureholders or creditors of a company or any  class thereof or in the Regulations of a company, other than a change  effected under any of the foregoing sections of this Code or by the unanimous agreement of all the parties affected thereby; 

(b) the expression "amalgamation" means any merger of the undertakings  or any part of the undertakings of two or more companies or of the  undertakings or part of the undertakings of one or more companies and one  or more bodies corporate.” 

From the statutory definitions, it was not established that, Defendant was  undergoing an arrangement or amalgamation for which reason Plaintiff’s employment was terminated. The fact that Plaintiff was awarded a redundancy payment did not amount to him being declared redundant as the ingredients  prescribed by statute did not exist. No reason was proffered as grounds for the  termination of Plaintiff’s employment.  

Lt. Col. S. B. Ashun v Accra Brewery Ltd; Civil Appeal No. J4/18/2007, 12th  November, 2008 SC held in respect of section 65(2) of Act 651 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.” Plaintiff was thus not declared redundant and not entitled to  negotiations. The redundancy payment made to him could be described as ex  gratia and it was entirely up to Plaintiff to accept same or reject it. The issue  whether or not the computation the Defendant did for Plaintiff’s purported  severance or redundancy was accurate does not therefore arise. 

Whether or not the termination of Plaintiff’s employment contract was lawful? It  is Plaintiff’s contention that, exhibit B did not give Defendant the right to terminate the employment contract relying on section 12 of exhibit B thus the termination of Plaintiff’s employment contract was unlawful. Plaintiff also asserted that, his employment was to last till he retired yet Defendant terminated  same thus making the termination unlawful. The principle has been well laid in Morgan and Others v Parkinson Howard Limited [1961] GLR 68 per Ollennu J. (as he  then was) 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. 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.” 

Relevant portions of exhibit B, the written employment contract between parties  herein are as follows: 

“THEREFORE, in consideration of the natural promises set out in this Ex pat  Agreement, the parties agree as follows: 

1. The Employee will be employed as REGIONAL MANAGER for FRENCH  WEST AFRICA by the Employer from 01 JULY 2011 date subject to  change, pending approval of Ghana Work and Residence Permit. 

2. The offer of ex pat employment is for Ghana and for the purpose of employment relations and labour issues, Ghana legislation will apply. 

3. Given the nature of the requirements to work in Ghana, the Employer  is not in a position to guarantee the commencement of this contract period or continued employment should the Ghana authority reject  the Employee’s initial work permit application or any future applications for continued stay and work within the country for  reasons outside of the Employer’s control. The Employee further  acknowledges that: 

3.1.1 If either the Employer or the Employee do not wish to renew this ex  pat agreement after the expiry of the active work permit on, the  Employer or Employee, as the case may be, shall provide written  notice to that effect to the other party no later than one (1) month  prior to the expiry date of the active Work Permit. 

3.1.2 In the event either the Employer or the Employee gives notice to the  other of non-renewal of the agreement. The employee will be offered employment in Ivory Coast and his previous employment with the Employer will be recognized. 

3.1.3 In the event of neither party giving notice to the other party this  agreement shall continue with the terms and conditions of this  agreement applying on condition that the Employee continues to  renew his Ghana work permit. 

4.9 Should the Employer decide to not extend the contract in future the  Employer will at Employer cost relocation (sic) the Employee and his  family back to Abidjan, Cote d’Ivoire and the Employee will resume  his normal duties prior to the ex pat period. 

12. TERMINATION OF CONTRACT 

11.2 At any time during the operation of this agreement, the Employee  shall be entitled to submit his resignation by giving not less than one  (1) month’s written notice to the other party. Subject to the Employee  being liable for re-imbursing relocation costs as set out in section 6.2  of his agreement, should the Employee resign within the first two (2)  years of being employed. 

This agreement constitutes the entire contract between the parties with  regard to the matters dealt with in this agreement and no representation, terms, conditions or warranties not contained in this agreement shall be  binding on the parties. All Labour and laws relevant to employment as set out under Ghana legislation will apply for the duration of this agreement,  including laws to non nationals living in Ghana.” 

It was held in Boateng v Volta Aluminum Company Limited [1984-86] 1 GLR 733 at  738 that: “In attempting to construe the termination provisions regard should be  had to all the ….termination clauses. That is the language used and all the provisions in the termination clauses should be looked at as a whole and every clause must be compared with the other and one entire sense made out of them.  It is only by so doing that the true meaning and the intention of the parties could  be discovered.” From exhibit B, the court finds that there is a start date of the  employment relationship under reference being 1st July, 2011 without an end  date. No mention was made of the employment terminating on the retirement of  Plaintiff. The contract of employment was thus not for a fixed term such as up to the date of Plaintiff’s retirement. The employment contract is thus for an  indefinite period or permanent. It was held in Nartey-Tokoli v Volta Aluminium Co.  Ltd [1987] 2GLR 532 at 545 SC that: “The defendants are like any individual who  gives employment to an employee; though it may be for an indefinite period, it  does not mean life employment.” In absence of express terms to suggest that, the  employment contract between parties herein was until the retirement of Plaintiff  thereby making it a fixed term contract, the court will hold that it was for an  indefinite period. As held in the Nartey-Tokoli’s case (supra), employment for an indefinite period does not mean life employment or indeed until retirement. 

Plaintiff contended also that exhibit B did not give Defendant the right to terminate the employment contract. The last paragraph of exhibit B states that:  “All Labour and laws relevant to employment as set out under Ghana legislation will apply for the duration of this agreement, including laws to non nationals living  in Ghana.” By this term in the contract, the laws of Ghana for the time being  regulating employment are implied into exhibit B. Section 17 (1) (a) of the Labour  Act, 2003 (Act 651) on notice of termination of employment provides that: “(1) A  contract of employment may be terminated at anytime by either party giving to  the other party, (a) in the case of a contract of three years or more, one month's  notice or one month's pay in lieu of notice;” However, section 19 of Act 651 gives  exception to the application of section 17 of Act 651 where in a collective agreement there are express provisions with respect to the terms and conditions  for termination of the contract of employment which are more beneficial to the  worker. In the instant case, apart from Plaintiff, no provision was expressly made  in favour of Defendant to terminate the employment simpliciter. This is obviously  not beneficial to Defendant, unlike Plaintiff having been deprived of the chance to terminate the contract of employment upon one month’s notice. Section 17 of  Act 651 is thus applicable in the instant case and parties are entitled to terminate  the employment contract upon one month’s notice or payment in lieu thereof. 

Exhibit C, dated 1 June, 2016, the termination letter states in part thus:  “RE: TERMINATION OF EMPLOYMENT 

In accordance with your employment agreement with the company, signed  by you on the 30th May, 2011. This is to inform you that the company hereby  terminates your appointment with the company with immediate effect and  hereby confirm you have already been paid for the month of May 2016 and  so find attached an extra one month salary in lieu of the statutory notice.” 

It is discernible from exhibits B and C that, Plaintiff having worked for more than  three years, Defendant pursuant to statutory provisions terminated the employment contract upon payment in lieu of notice. This is very much in accord  with section 17 (1) (a) of the Labour Act as implied into exhibit B thus making the  termination lawful. Plaintiff has failed to prove that, term(s) of his employment  contract have been breached and the court will hold that the termination of  Plaintiff’s employment was not unlawful. 

Plaintiff has failed to prove his claims. In respect of reliefs d and g, no evidence  was adduced to demonstrate that upon termination of his employment, Plaintiff  is entitled to other benefits such as salaries, leave, social security contributions  from the date of termination of employment to retirement, children’s annual  school fees allowance and refund of money paid for his official vehicle as same is supposed to be part of his retirement package. The reason for the termination  was not retirement thus Plaintiff cannot be entitled to retirement related  benefits. In the light of the above, is Plaintiff entitled to his claim? The answer is  an emphatic no. Plaintiff’s claim fails in its entirety and same is dismissed. Costs of  GHS10,000.00 is awarded in favour of Defendant. 

(SGD) 

Justice Gifty Dekyem (Mrs) 

Justice of the High Court

Labour Division I, Accra  

COUNSEL

Augustines Obour ESQ for Plaintiff

Belinda Norvihoho ESQ holding brief of Justin Amenuvor ESQ for Defendant