JULIAN ERIC APPIAH V. COCOA PROCESSING COMPANY LTD

JUDGMENT

At all material times to this suit, Plaintiff was in the employment of the Defendant as a senior Security Guard, having been employed by the Defendant on 20th January, 1992. Per a letter dated 8th November, 2004, Plaintiff’s employment was terminated by the Defendant for sending a text message to a local radio station, Adom FM, which was read on air, alleging that a Senior Security Officer had not gone on leave for eight (8) years. A committee of enquiry was set up by management to investigate the allegation. At the committee sitting, the Plaintiff allegedly admitted having sent a text on the allegation to the radio station. The committee made a finding that by going to the press with his concerns without approval from management the Plaintiff had misconducted himself, contrary to the provisions of the Collective Agreement. Management accordingly terminated his appointment with immediate effect with payment of one (1) month’s salary in lieu of notice.

The Plaintiff being aggrieved with the termination of his appointment by the Defendant commenced the instant action against the Defendant by filing a writ of summons together with a statement of claim on 6th December, 2006. However, pursuant to leave granted by this court on 11th May, 2010, the Plaintiff filed an amended writ of summons and a statement of claim on 17th May, 2010 for the following reliefs:

(a) A declaration that the dismissal of Plaintiff by management as per a letter dated 8th November, 2004 and referenced CPC/HRD/31 is wrongful and unlawful.

(b) An order for the reinstatement of Plaintiff with his full benefits including accumulated salaries paid to him. Or

(c) In the alternative damages for wrongful dismissal.

(d) An order directed against the Defendant to join the leaders of the workers union to convey a building plot allocated to Plaintiff whilst he was in employment and had paid for it with an initial GH¢50.00 and subsequently with his share of sacks allocation due him.

(e) Costs.

The Defendant entered appearance on 4th January, 2007 and filed its statement of defence on 12th January, 2007. The Defendant filed an amended statement of defence on 27th May, 2010. Pursuant to this court’s order granted on 14th March, 2011, the Plaintiff filed further amended statement of claim on 15th March, 2011. The Defendant then filed an amended statement of defence on 30th March, 2011. Pursuant to this court’s order granted on 11th July, 2011, the Defendant filed further amended statement of defence on 15th July, 2011. The Plaintiff had on 30th April, 2008, filed an application for directions in which the following issues were raised.

i. Whether or not the Plaintiff misconducted himself when he sent in a text message to Adom FM Radio Station stating a fact that a supervisor of the Defendant Company had not gone on leave for about 8 years.

ii. Whether or not the conduct of the said supervisor had been brought to the notice of the management of the Defendant prior to the sending of the text message to Adom FM.

iii. Whether or not the dismissal of the Plaintiff was a fair and just punishment for sending a text message to Adom FM.

iv. Whether or not the Plaintiff has been paid any money representing his entitlements after his dismissal.

v. Whether or not the Plaintiff participated in a House Ownership Scheme whilst working with the Defendant.

vi. Whether the Plaintiff was dismissed or had his appointment terminated by the Defendant.

vii. Any other issues that may arise on the face of the pleadings.

The Defendant filed no additional issues so on 29th July, 2009 all the issues raised in the application for directions were set down as issues to be tried and determined by this court.

Plaintiff’s case as presented in his further amended statement of claim is that he was employed by the Defendant Company on 20th January, 1992 and worked with the Defendant for a period of 12 years, 9 months 2 weeks and 4 days before his appointment was unlawfully terminated on 8th November, 2004. The Plaintiff was unlawfully dismissed from his employment on the charge that he had sent a text message to Adom FM – a Tema based radio station expressing his view on a supervisor who had not gone on leave for a period of about 8 years. Plaintiff had also expressed the unlawful conduct of the said supervisor at the Security Section in a complaint to management which complaint had not been attended to. He contends that the subject matter of the text message he sent to Adom FM was not confidential information about the company.

The Plaintiff avers that it was established from investigations conducted into the matter by management that the allegation contained in the text message the Plaintiff sent to Adom FM was true and not a fabrication. He says he had earlier on in June, 2004 raised up the issue of the officer’s refusal to go on leave at a durbar organized by management for the then new Managing Director, Richard Armah Tetteh to interact with the workers at the Junior Staff Canteen.

He goes on to aver that at the same durbar, he stated that, that same officer for about two (2) years had some people clocking his card for him during weekends even though he did not attend work. However, when it was detected, no sanctions were given to him. Plaintiff wondered why the discrimination against junior staff who were promptly punished whenever they erred.

Plaintiff contends that he sent the test message to Adom FM after he had exploited avenues available to him to stop the wrongful conduct of the security supervisor with management turning a deaf ear to him. He states that the text message was sent by him in fulfillment of his patriotic duty to the Defendant and the state.

He goes on to contend that proper disciplinary procedure was not followed before he was dismissed. He says his dismissal was meant to silence staff that stood up to their rights. It was, therefore, borne out of malice. The Plaintiff was seen as a worker who would not shut up on matters of corruption. He had prior to his dismissal wrote a petition to the General Manager of the Defendant Company complaining about various injustices in which he indicated that he had been threatened. After his dismissal the Plaintiff sent a petition to the Board of Directors for redress but received no reply.

He contends that mere admission of sending a text message to a radio station simpliciter does not warrant a dismissal. He says he has not been paid any entitlement due him since his wrongful dismissal. He has also not been able to secure any employment since his wrongful dismissal.

According to the Plaintiff in the year 2004 he participated in a House Ownership Scheme instituted by management of Defendant and the local union for interested workers. An amount of GH¢50.00 was deducted from his Provident Fund account by management and the union to make the initial payment. Subsequently payments were made from the sale of his allocation of sacks given to workers. This went on for 2 years until his wrongful dismissal. In 2004 his name appeared in a list of employees who had been allocated plots in the scheme. However, the Defendant and the Union Executives have refused to allocate the said plot to the Plaintiff and they would not do so unless ordered by this court to do so.

On the other hand, Defendant’s case is that Plaintiff was not dismissed but his appointment was terminated in accordance with the Collective Bargaining Agreement (CBA). It contends that Plaintiff misconducted himself by going to the press with his grievances concerning Defendant Company. By this Plaintiff went contrary to the provisions of the CBA.

According to the Defendant, a report was made to management that the Plaintiff had sent a text message to Adom FM stating as Follows:

“... there’s a senior security officer of C.P.C. Tema who has (had) not been to (on) leave for almost 8 years. Is this not corruption – Investigate this with B.N.I. Pls. Julian ...”

When management received this report, in accordance with the CBA in force at that time, it constituted a Disciplinary Committee to investigate the matter. The Plaintiff appeared before the committee after which it recommended that the Plaintiff’s appointment be terminated. After considering the report management accepted the recommendations of the committee and accordingly terminated Plaintiff’s appointment.

The Defendant contends that its action was not malicious but was in accordance with proper corporate procedures in sanctioning employees who misconduct themselves by bypassing procedures and also imputing corruption in Defendant Company in the media. It further avers that it followed laid down procedures in the CBA in terminating Plaintiff’s appointment. It was, therefore, not unlawful and did not amount to dismissal.

Defendant avers that when Plaintiff’s appointment was terminated his entitlements were computed and he was duly informed of it. He was required to complete and submit a clearance certificate but he has refused to do so and collect the entitlement due him.

Defendant denies that Plaintiff is a beneficiary of the plots of land at Mobole near Afienya purchased by the Defendant and allocated to qualified staff under a Home Ownership Scheme. It says it is aware that the Industrial and Commercial Workers Union (ICU), Local Branch also independently ran a land purchase scheme which is entirely controlled by the union with the Defendant having nothing to do with it. Plaintiff is, therefore, not entitled to any of the reliefs endorsed on its amended writ of summons.

In his testimony in open court, the Plaintiff essentially repeated the averments in his pleadings. He told the court that on the relevant day he was listening to a Radio programme hosted by one Adakabre on Adom FM station. The host said the then Head of State of the country had gone on leave and that there were a lot of workers who were working without going on leave. The host went on to ask listeners to give their opinions on the air if they knew of some people who had not gone on leave for a long time and that if they knew of the reasons for that they should bring it up. The Plaintiff responded by sending a text message to the station that he knew of a security officer at his work place who had not gone on leave for about eight years.

He contends that he had earlier on raised the issue at workers’ durbar organized by management in 2004. He said at the durbar the then new Managing Director invited suggestions from the workers as to how the company would move on. In his contribution at the durbar, the Plaintiff said he knew of a security officer who had not gone on leave for so many years so he wanted to know from the MD why the officer had not gone on leave for that period.

He avers that a disciplinary committee was set up to go into the matter and the Plaintiff appeared before it. After the committee’s sitting the Plaintiff was given a letter terminating his appointment. He tendered the letter in evidence as Exhibit A.

He claims that in addition to the Security Officer not going on leave for 8 years he made management aware of other things that he was doing that were not good for the Defendant. He said he was not going for work during weekends but he got someone to clock for him in order for him to receive overtime payments that he had not worked for. Also he made the watchmen who were working under him worked for 12 hours but he marked them for 8 hours. So the extra 4 hours was in vain. He tendered in evidence a copy of a letter he wrote to the General Manager on the issue as Exhibit B.

He said when he was handed over the letter terminating his appointment he wrote a petition to the Board of Directors

The Plaintiff went on to tell the court that the union Chairman told them at a meeting that they had a scheme to assist workers to acquire their houses. The Chairman said the share of empty sacks of interested workers would be used to purchase the land for them. Plaintiff expressed interest in the project. The union published the names of those that had been allocated pieces of land and his name was on the list as a beneficiary. The union further deducted GH¢50.00 from the provident fund of those who had their names on the list. He said when his appointment was terminated the land was not given to him.

Plaintiff says that he refused to take his entitlements after the termination of his appointment because to him his appointment was not terminated on proper grounds.

One Herta Aidoo, the Acting Human Resource Manager gave evidence on behalf of the Defendant and Rockson Asare, Production Technician gave evidence as a witness for the Defendant. The evidence of Herta Aidoo was essentially a repetition of the averments in the amended statement of defence. She confirmed the termination of Plaintiff’s appointment by the Defendant. She tendered in evidence the Collective Bargaining Agreement between Management of Defendant Company and the Union as Exhibit 1 and stated that at the time of the termination of Plaintiff’s appointment that was the agreement in force. She said Plaintiff’s appointment was terminated in accordance with Article 36 of the CBA. She said in sending the text message to Adom FM on the Security Officer, the Plaintiff did not follow laid down procedures in the company.

Rockson Asare told the court that he was the Local Union Chairman from 2001 to 2004. He said in 2002, Management of the Defendant Company initiated a move to acquire parcels of land for old members of staff. So they managed to secure hundred (100) plots and allocated them to members of staff according to the years of service, years left to go on retirement and their positions in the company. Since a lot of staff members were interested as the union chairman he made an appeal to management to extend the gesture to other workers but the Defendant informed him that it was not financially sound to do that. The union, therefore, took it upon itself by assisting members to acquire some parcels of land by using their allocation of sacks. The Plaintiff was one of the workers who agreed to forgo their sack allocation in order to purchase the land. Also GH¢50.00 was deducted from the provident fund of the interested staff members including the Plaintiff. Plaintiff’s sack allocation at that time was GH¢9.00. So in all his total contribution towards the acquisition of the land was GH¢59.00.

According to DW1 when Plaintiff’s appointment was terminated, they realized he could not continue with the project so they sent a colleague to inform him that the amount he had contributed was ready so he should go for it but he never went for it. He avers that the second phase of the scheme was controlled by the union and not management.

The witness also denied that the Plaintiff complained to the union the failure of the Security officer to go on leave for 8 years. On the issue of security guards working for 12 hours and being paid for 8 hours, he denied that the Plaintiff made a complaint to the union. He, however, explained that it was some of the workers who brought the issue up to the union and they in turn took it up with management. It was explained to them that there were two categories of security staff. The security guards who worked for 8 hours and the watchmen who worked for 12 hours and they were paid differently.

He went on to say that the union nominated one Afari Gyamera to represent the union on the committee that investigated Plaintiff’s case. He said that after the committee’s meeting the report was submitted to management and at management meeting where the union is represented the report was discussed before a decision was taken on it.

Having reviewed the evidence of the parties I will now go on to evaluate the evidence vis-à-vis the issues this court has been called upon to determine. At the close of the pleadings about seven issues were set down for trial and determination. I will first deal with issue (iv) which is whether the Plaintiff was dismissed or had his appointment terminated.

On that issue it should be noted that both termination and dismissal have the effect of ending employment relationship between an employer and an employee. However, in the case of termination, the employment relationship ends with entitlements, especially with notice or payment in lieu of notice. Dismissal on the other hand ends the employment relationship with no entitlement usually no notice is given for dismissal of employment. It is the terms of the letter ending the relationship that will determine whether it is termination or dismissal.

In the instant case the letter ending the employment relationship between the Plaintiff and the Defendant which was tendered in evidence as Exhibit A was captioned as “Termination of Appointment”. It goes on to state at paragraph 4 that; “Management has accordingly decided to terminate your appointment with IMMEDIATE effect and pay you one (1) month’s salary in lieu of notice.”

Also the Collective Bargaining Agreement (CBA), Exhibit 1 makes a clear distinction between dismissal and termination. Article 15 of the said exhibit, deals with dismissal and it states that no notice shall be given in cases of summary dismissal. Article 36, deals with termination of appointment and it states that notice or payment in lieu of notice shall be given. Exhibit A makes it clear that Plaintiff’s appointment was terminated and there is no doubt about that. It is, therefore, my view that Plaintiff had his appointment terminated and I so hold.

Issues (i), (ii) and (iii) are related so in my view they could be narrowed or summarized as to whether or not the termination of Plaintiff’s appointment by the Defendant per a letter dated 8th November, 2004 was wrongful and unlawful.

On the issue of wrongful and unlawful dismissal of Plaintiff’s appointment the Court takes notice of the fact that, the instant action being an action for wrongful and unlawful termination of appointment, it is the duty of the Plaintiff to prove to the court that by the terms of his employment or by the terms of existing statutory provision the termination of his appointment by the Defendant was wrongful and unlawful. The principle on this is provided in the case of Morgan and Ors. v. Parkinson Howard Ltd. (1961) GLR 68 in which Ollenu 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.”

This position of the law was adopted by the Supreme Court in the case of Kobi v. Ghana Manganese Co. Ltd. [2007-2008] SCGLR 771 at Page 786 where Ansah JSC states as follows:

“The issues agreed upon for trial, were whether or not the termination of the Plaintiffs’ 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.”

In applying the principles in the authorities referred to above to the instant case, it is my view that the instant action being an action for wrongful and unlawful termination of appointment the Plaintiff herein assumes the burden of proving to the Court the terms of his employment and that the termination of his appointment is in breach of the terms of his employment, or it is in contravention of statutory provisions for the time being regulating employment in the country. This court will, therefore, have to find out from the evidence before it whether the Plaintiff has been able to satisfy those principles in the instant case.

In the course of cross examination of the Defendant’s representative, Herta Aidoo, Plaintiff tendered in evidence through her, Cocoa Processing Company Limited Factory Rules and Regulations as Exhibit D. It is, however, observed that Exhibit D was published in 2005. Meanwhile Plaintiff’s appointment was terminated on in 2004. This shows that at the time Exhibit D was published the Plaintiff was not in the employment of the Defendant so obviously that exhibit could not regulate the employment relationship between the Plaintiff and the Defendant. It is, therefore, not surprising that the Plaintiff failed to address the court on how the termination of Plaintiff’s appointment by the Defendant breached Exhibit D in his address. Exhibit D is, therefore, irrelevant as far as the instant case is concerned. The Plaintiff rather addressed the court on unfair termination by referring the court to Sections 62 and 63 of the Labour Act, 2003 (Act 651). It is presumed from his address that the Defendant could not prove the offence of misconduct against him so the termination of his appointment by the Defendant was unfair.

Sections 62 and 63 of the Labour Act, 2003, (Act 651), deal with factors that lead to fair and unfair termination of employment respectively. Section 64 provides remedies for unfair termination of employment. By Section 64(1) a worker who claims that his employment has been unfairly terminated by his employer may present a complaint to the Labour Commission. Section 64(2) goes on to state that if upon investigation of the complaint the Commission finds that the termination of the employment was unfair, it may decide on one of the following:

a. Order the employer to re-instate the worker from the date of the termination of employment,

b. Order the employer to re-employ the worker, either in the work for which the worker was employed before the termination or in other reasonably suitable work on the same terms and conditions enjoyed by the worker before the termination. Or

c. Order the employer to pay compensation to the worker.

So as provided by the Labour Act where an employee considers the termination of his employment to be unfair then the appropriate forum is the Labour Commission and not the courts. See the case of Bani v. Maersk Ghana Limited (2011) 2 SCGLR 796. In that case, the plaintiff, Felix Yaw Bani and two others were found guilty in a report of a sub-committee set up by the defendant to investigate them for an alleged offence committed by them. Whilst plaintiff’s appointment was terminated by the defendant, the other two colleagues were only served with warning letters. The plaintiff being dissatisfied with the defendant’s action against him, sued the defendant company for, inter alia, a declaration that the termination of plaintiff’s appointment by the defendant was unlawful, unfair and without any basis whatsoever; and an order for the immediate re-instatement of the plaintiff. On the issue of unfair termination the Supreme Court held that the original jurisdiction has been reserved for the Labour Commission to the exclusion of the courts. Date-Bah JSC delivering the lead judgment of the Court stated at page 809 as follows:

“Section 64 of the Act provides that a worker who claims that his employment has been unfairly terminated may present a complaint to the Labour Commission established under the Act. If the Commission finds that the termination of the worker is unfair, it may give him or her one of three remedies specified in the Act: an order to the employer to re-instate the worker from the date of termination of employment; an order to the employer to re-employ the worker in the work for which the worker was employed before the termination or in any other reasonably suitable work on the same terms and conditions enjoyed by the worker before the termination; or order the employer to pay compensation to the worker. These statutory remedies are made available to the Commission but not, at least expressly, to the courts.”

On the authority of Bani v. Maersk Ghana Ltd (supra) as stated above, the Plaintiff in the instant case cannot come to this court seeking remedy for unfair termination. As has been stated elsewhere in this judgment it is the Labour Commission that has original jurisdiction to adjudicate complaints of unfair termination of appointment. So by coming to this court for unfair termination the Plaintiff has come to the wrong forum so he cannot obtain judgment based on that relief.

I now go back to the issue of wrongful and unlawful termination of Plaintiff’s appointment. As has been stated elsewhere in this judgment, it has been established that Exhibit D could not operate retrospectively so the Plaintiff could not rely on that document as regulating the employment relationship between the Plaintiff and the Defendant. It has also been established that the Plaintiff cannot claim a relief of unfair termination from this court. His remedy, therefore, in this court lies with wrongful or unlawful termination of appointment which the burden lies on him to prove. Even though the Plaintiff apart from Exhibit D which has been established to be irrelevant to this case, did not tender in evidence any contract of employment between him and the Defendant, the Defendant tendered in evidence the CBA governing the employment relationship between the Plaintiff and the Defendant as Exhibit 1 and went on to state that the Plaintiff’s appointment was terminated in accordance with provisions in that exhibit.

When the Defendant tendered in evidence Exhibit 1, the Plaintiff did not object to it. The Defendant went on to say that at the time of the termination of Plaintiff’s appointment Exhibit 1 was still in force because new agreement had not been signed. Herta Aidoo went on to refer the court to Article 5 of Exhibit 1. During cross examination of Herta Aidoo she was not challenged on this assertion which implies that the Plaintiff admitted that at the time of termination of his appointment Exhibit 1 was the CBA in force. See the case of Quagraine v. Adams [1981] GLR 599. It was held in that case that where a party makes an averment and his opponent fails to cross-examine on it, the opponent will be deemed to have acknowledged, sub silentio that averment by the failure to cross-examine. The court, therefore, accepts the evidence of the Defendant that at the time Plaintiff’s appointment was terminated the CBA regulating the employment relationship between him and the Defendant was Exhibit 1.

By Article 1 of Exhibit 1 the CBA came into force on 1st January, 2001 and it was to operate for two years after which another agreement would be signed. It goes on to state that until a new agreement was signed Exhibit 1 would remain in force. According to Herta Aidoo at the time of the termination of Plaintiff’s appointment a new agreement had not been signed so the CBA in force at that time was Exhibit 1.

The evidence available in this case is that Management of the Defendant Company received a report that Plaintiff had sent a text message that was read on Adom FM Station that the Senior Security Officer of the Defendant Company had not gone on leave for almost 8 years and to him that constituted corruption so the host should inform the BNI to investigate. On receipt of the report the Defendant set up a committee of enquiry to investigate the report. The evidence goes on to show that the Plaintiff admitted the allegation during the committee sitting. The committee made a finding that by by-passing Management and going to the press with his concerns without authority the Plaintiff had gone contrary to laid down grievance procedure of the company which amounts to misconduct. In view of that his appointment was terminated by management with immediate effect with one month’s salary in lieu of notice.

The Plaintiff, however, contends that by sending the text message to the effect that the officer concerned had not gone on leave for 8 years did not amount to a misconduct which was contrary to the CBA as a result of which his appointment should be terminated. He says the allegation was true and also there is no provision in the CBA which made the Plaintiff’s communication with the press a misconduct for which a punishment of termination was prescribed. From the evidence can it be said that the termination of Plaintiff’s appointment was done in accordance with the CBA so it was lawful?

Article 43 (b) of the CBA provides for a grievance procedure. For the avoidance of doubt I will reproduce the said provision in this judgment as follows:

“GRIEVANCE PROCEDURE:

Step One: In the event of any grievance, the Employee should as a first step, take the matter up with his immediate Superior Officer. If within five (5) working days he does not obtain satisfaction, he may ask for his LOCAL UNION to present his case.

Step Two: If the matter remains unresolved within five (5) working days, the Local Union takes the matter up with the Head of Department. If within three (3) working days no progress is made, at this stage, the Local Union shall take the matter up with Management within fifteen (15) working days.

Step Three: If the matter remains unresolved, the Local Union will inform the Regional, Industrial Relations Officer of the UNION who will within ten (10) working days arrange to meet Management and endeavour to settle the issue.

The Complainant shall have the right to be present at all levels if he so desires.”

It is very clear that the Plaintiff did not follow the grievance procedure as shown in Article 43 (b) of the CBA above. Plaintiff creates the impression that by writing a memo to the General Manager and also allegedly making his concerns known at a staff durbar organized by management he has satisfied the provision on grievance procedure. It should be noted that the memo he sent to the General Manager, Exhibit B did not satisfy the grievance procedure as shown above. Also there is nothing on it in the text he sent to the Radio Station. The staff durbar also does not satisfy the procedure. He also claims that the allegation was true. The fact that the allegation was allegedly true does not give the Plaintiff the right to bypass the grievance procedure. He ought to follow the grievance procedure in making his concern known to management which he did not do. It is, therefore, my opinion that the Plaintiff breached the grievance procedure provided in the CBA by sending the text message to Adom FM without authority and I so hold.

Article 15 of Exhibit 1 provides for disciplinary measures to be taken in case an offence is committed by an employee. It goes on to state that the Union shall be notified in all cases of summary dismissal and termination of appointment. The evidence before the court shows that the Local Union was represented on the disciplinary committee that investigated the allegation against the Plaintiff. It was also represented on the management committee meeting that discussed and implemented the report of the disciplinary committee. Also a copy of Exhibit A was sent to the Local Union Chairman informing him of the termination of Plaintiff’s appointment. This shows that the Union was adequately notified of the termination of Plaintiff’s appointment.

The Plaintiff argues that there is nowhere in the CBA indicating that the act done by Plaintiff by by-passing laid down rules constitutes a misconduct. The termination of his appointment is, therefore, wrongful and unlawful.

Article 15 (a) of the CBA provides for offences that constitute grounds for summary dismissal. These offences include inter alia gross misconduct. It goes on to state that no notice shall be given in cases of summary dismissal. Article 15 (b) goes on to provide that ad-hoc Disciplinary Committees including Union Representatives shall be appointed in the company to deal with all reported/alleged offences committed.

Article 36 (1) of the CBA provides for termination of appointments. It states as follows:

“Except in the case of serious misconduct which calls for Summary Dismissal, the Employer may terminate the appointment of an Employee by giving him one month’s notice or by paying one month’s salary/wages in lieu of notice. An Employee who wishes to resign from the Service of the COMPANY shall be required to give one month’s appropriate notice or pay for the same in lieu of notice.”

Exhibit A, the letter terminating Plaintiff’s appointment clearly shows that Defendant did not consider the act of the Plaintiff as gross misconduct so it did not deal with the Plaintiff in accordance with Article 15 (a) of the CBA. It rather decided to consider it as a mere misconduct so it dealt with him in accordance with Article 36 (1) of the CBA. Paragraph 8 (a) of Exhibit 2 confirms this. The said paragraph of Exhibit 2 states as follows:

“Mr. Julian Appiah’s conduct was against grievance procedure of the company. This amount to MISCONDUCT, his appointment should be terminated as enshrined in article 36 [1] of the company’s Collective Bargaining Agreement. He should be paid one month’s salary in lieu of notice”

This explains why Plaintiff’s appointment was terminated with one month’s salary in lieu of notice. The position of the law on this is that where a contract of employment provides for termination on notice, there is no obligation on the employer to provide reasons for termination. See the case of Aryee v. State Construction Corporation [1984-86] 1 GLR 424, CA which states at holding 1 in the headnote at pages 425 – 426 as follows:

“(1) A contract of service was not a contract of servitude. To say, as we were wont to do, that it gave rise to a master-servant relationship was to distort reality. The employee was not the servant, in the popular sense, of the employer. He was merely his employee. The contract was framed in such a way that either party might bring it to an end and free himself from the relationship painlessly. In this case, the appellant could, at anytime, give the relevant three months' notice or forfeit an equivalent in salary and leave the corporation without justifying his action to the corporation. In the same way the corporation need not assign any reason for choosing to terminate their contract with the defendant. The contract merely required the corporation to give three months' notice or its equivalent in salary and their conduct would be perfectly in order. On the evidence, the corporation discharged that obligation by giving the appellant three months' pay in lieu of notice. In the event, the termination was perfectly in accordance with the contract of service and could not be wrongful. The corporation misled the appellant, and perhaps the court below, by seeking to state the reasons for its action. It did not need to do that. The fact that it did, however, did not detract in any way from the general validity of their action...”

The same position of the law was taken in the following cases (1) Bannnerman-Menson v. Ghana Employers Association [1996-97] SCGLR 417, (2) Kobi v. Ghana Manganese Co Ltd. (Supra) and (3) Nunoofio v. Farmers Services Co. Ltd. [2007-2008] SCGLR 926

In Bannerman-Menson’s case, the plaintiff was the Executive Director of the Ghana Employers Association and had been employed by the said Association for 19 years. The Association terminated his employment by giving him six months’ salary in lieu of notice. The Association did not give any reason for the termination of the employment of the plaintiff. The plaintiff being aggrieved sued the Association for wrongful termination of his appointment. The Supreme Court per Aikins JSC held that the effect of the provision in the employee’s conditions of service, namely, that the contract of employment was terminable by six months’ notice on either side, was that the employee could terminate the appointment by giving his employers six months’ notice if he decided to, without giving any reasons; so were the employers entitled to dispense with the employee’s service by giving him six months’ notice. This conforms to equitable principles. He further stated that the employers were under no obligation to give the employee, reasons for the termination of his appointment. It was, therefore, immaterial if they gave as a reason for the termination of his employment the fact that he had reached the age of sixty years. What was important was the mutual agreement of the parties that the contract of employment could be determined by giving six months’ notice of intention to do so.

In the case of Kobi v. Ghana Manganese Co. Ltd. (Supra), the plaintiffs-appellants (hereinafter called the plaintiffs), were employees of the respondent company (hereinafter called the defendant). Their terms of employment were, inter alia, set out in a collective bargaining agreement. Like the current case, the said agreement provides for disciplinary regulations that must be followed where an employee commits an offence and needs to be disciplined. Again just like the current case it goes on to provide that in the event of an employee being found guilty of an offence under termination in accordance with the schedule of offence, the company may terminate the employee’s appointment by giving him one month’s notice or pay in lieu of notice.

On 19th May, 1999, some of the defendant’s workers went on a demonstration on its premises against the termination of the employment of the company’s resident doctor. On the next day the company was closed down. Negotiations ensued between the Ministry of Employment and Social Welfare, the representatives of the National Mineworkers Union, the workers and management of the defendant. Consequently, the workers were asked to sign declarations of confidence in the management as a precondition for “readmission”. They did so but were rather issued with letters of termination of employment. The Plaintiffs were aggrieved and commenced the current action for wrongful termination of appointment.

The Supreme Court held at holding 1 as follows:

“A contract of service is not a contract of servitude. Even if a contract of employment is silent on the question whether it is terminable, the common law implies a right to terminate the same by either side upon reasonable notice to the other. However, the right to terminate is dependent on the terms of the contract and must be exercised in accordance therewith. In some cases, a contract of service may provide for the right of termination simpliciter or with an additional right of termination after the pursuit of disciplinary procedures. Where that is the situation, one cannot fault the employer for resort to the alternative right of termination simpliciter without recourse of disciplinary procedures. In the instant case, there is no right in the employer to terminate the employment of the plaintiffs simpliciter. Under the collective agreement binding on the parties, the right to terminate is linked to the commission of an offence requiring resort to disciplinary procedures. The defendant did not pursue the required disciplinary procedure. In any case, the termination of the plaintiffs’ employment was irregular because neither one month’s notice nor a month’s salary in lieu of notice was given as stipulated in the collective agreement. The termination of plaintiffs’ employment was therefore unlawful.”

Ansah JSC in his judgment in the case held that when the parties have provided for certain eventualities and procedures in a collective agreement, they ought to apply fully so as to justify any action by the parties to the agreement. He stated further that the binding efficacy of collective agreements must never be whittled away. He said that even if the plaintiffs in that case took part in the strike action, the company was obliged by terms of their agreement with the workers to follow the termination procedure. That was not done in that case. It, therefore, worsened an already bad case for the defendants.

In Kobi’s case, the Supreme Court allowed the appeal in part because the company in terminating the employment of the plaintiffs did not give the required one month’s notice or one month’s salary in lieu of notice and also did not follow the disciplinary procedures agreed upon with its workers.

Lastly, in the case of Nunoofio v. Farmers Services Co. Ltd. (Supra) the defendant, Farmers Services Co. Ltd. employed the plaintiff as a commercial manager on one year probation. The appointment was confirmed a year later. About eight years thereafter, the plaintiff was demoted from commercial manager to area commercial officer. Then about a year later, the defendant terminated his appointment. The plaintiff being aggrieved commenced an action before the High Court, Bolgatanga seeking among other reliefs a declaration that his demotion and termination of appointment respectively was null and void, and damages for wrongful termination of appointment. It was held by the Supreme Court that since the plaintiff had been paid two months’ salary in lieu of notice as well as his terminal benefits in accordance with his conditions of service the termination of his employment was not wrongful.

Delivering the lead judgment, Her Ladyship Georgina Wood JSC (as she then was) stated at page 929 that:

“In law, the company was not obliged to give reasons for the said termination, but they did. It bears mention that this does not per se detract from the validity of the termination. Neither does it impose any burden on the defendant, at the hearing, to prove the facts alleged therein.”

In her concurring judgment, Her Ladyship Sophia Adinyira JSC said at page 940 that:

“In respect of termination, either party in a contract of employment has a right to terminate the contract. An employer is entitled at common law or under the terms of employment to terminate the contract of employee for whatever or without reasons subject to due notice to the employee or payment of wages in lieu of notice. An employee also has an equal right to terminate his contract by giving due notice to the employer or payment of wages in lieu.”

From the authorities referred to above, just as a worker can terminate the contract of employment with his employer at any time so an employer could terminate the contract of employment with the employee at any time and for any reason or for none. But if he does so in a manner not warranted by the contract then he will be in breach of the contract so the termination of the contract will be wrongful and unlawful and must pay damages for wrongful and unlawful termination of contract of employment.

In the instant case Exhibit 1, the CBA provides for the right of termination simpliciter without recourse of disciplinary procedures. This is found in Article 36 (1) where it allows for termination of the employment by each party by giving one month’s notice or by paying one month’s salary in lieu of notice. At the same time it provides for additional right of termination of employment after the pursuit of disciplinary procedures. This is found in Article 15 of the CBA. The available evidence in the instant case shows that the Defendant terminated the appointment of the Plaintiff after the pursuit of disciplinary procedures upon payment of one month’s salary in lieu of notice. The Defendant, therefore, combined the two provisions in terminating Plaintiff’s appointment and it cannot be faulted for that. This is because just as the Plaintiff could terminate the employment at any time by giving one month’s notice or one month’s salary in lieu of notice without giving reasons so the Defendant could have terminated the Plaintiff’s appointment simplicter without giving reasons, provided one month’s notice or one month’s salary in lieu of notice was given. It is, therefore, the opinion of this court that since Plaintiff’s appointment was terminated upon the payment of one month’s salary in lieu of notice, the termination is not wrongful and unlawful and I so hold.

The next issue for determination is whether or not the Plaintiff has been paid any monies representing his entitlements after the termination of his appointment. There is no dispute that the Plaintiff has not been paid his entitlements. The Defendant claims that the Plaintiff has refused to accept his entitlement. Plaintiff accepted this position in his evidence-in-chief when he said on 13th April 2011 that it was because his appointment was not terminated on proper grounds that he refused to accept his entitlement. The evidence, therefore, shows that no issue arises for this court to determine. The court has made a finding that the termination of Plaintiff’s appointment was not wrongful and unlawful so it is up to the Plaintiff himself to decide whether or not he would go for his entitlement.

The last issue for determination is whether or not Plaintiff participated in a House Ownership Scheme whilst working with the Defendant. Plaintiff’s case on this issue is that whilst in the employment of the Defendant, it embarked on a House Ownership Scheme at a place called Mobole near Afienya which the Plaintiff was a member. The Plaintiff contends that interested workers including the Plaintiff were made to use their shares of sacks allocation as contributions towards the acquisition of the parcels of land. They also used part of their provident funds for that purpose and as at the time the Plaintiff was leaving the employment of the Defendant GH¢50.00 had been deducted from his provident fund.

The Defendant, however, contends that the Plaintiff was not a member of its House Ownership Scheme. It claims there was another scheme embarked on by the union which the Plaintiff was a member and that it had no control over that. The then Union Chairman, Rockson Asare who gave evidence as a witness for the Defendant confirmed this assertion. He said a second phase of the scheme was embarked on by the union for its members and the Plaintiff was a member of that scheme. He confirmed that the union used members’ sacks allocation and part of their provident fund as contributions towards the acquisition of the land for members of the scheme. He tendered in evidence a list of beneficiaries of the scheme and the Plaintiff was the 75th member.

The court takes notice of the fact that the Plaintiff tendered in evidence an indenture on the scheme through the Union Chairman as Exhibit F. It is observed that even though the land was purchased in the name of the Defendant only union members executed the document. No management member executed it, therefore, confirming the Defendant assertion that the scheme was controlled by the union. The evidence of the Defendant on the issue, therefore, shows that the Defendant had nothing to do with the second phase of the House Ownership Scheme of which the Plaintiff was a beneficiary.

It is observed that the evidence of the Plaintiff on the issue corroborates the evidence of the Defendant that the scheme was controlled by the union. The evidence-in-chief of the Plaintiff on the issue given on 13th April 2011 was as follows:

“Q: Tell the court is there anything in the organization that you were entitled to as a worker when your appointment was terminated?

A: My lord sometime ago the union chairman called us that they had a scheme which they buy land and build for the workers and if a worker is (was) interested, should let them know. When the cocoa beans are (were) poured from the sacks, the empty sacks are (were) given to the workers, so the union chairman said that those of us who were interested in the land they were not going to give us the sacks but they were going to sell (at) and use the proceeds to pay for the land for us. I was also one of those who were interested in this land. The land too is (was) being shared according to seniority. So we went for a meeting sometime ago and the union chairman said that those of us who were going to get the land that year our names were going to be pasted on the notice board.

Q: Was the list published?

A: The list was published and my name was inclusive (included). So the union chairman told us that they were going to deduct some money from the provident fund, add(ed) it to the sack money to pay for the land. I could remember that those of us who were supposed to get the land that year, GH¢50.00 was deducted from our provident fund. But when my appointment was terminated I didn’t get this land.

Q: The defendant is saying that the company didn’t have any such a scheme for its workers. What do you have to say about that?

A: I don’t agree with that because as far as I’m concerned I know the company had a scheme like that.

Q: The Company is saying that it’s the union, ICU who they know was planning a land purchasing for the workers?

A: My lord, I won’t agree with him because what I know is that if the union operates a scheme and management is not aware it can’t happen. So what I know is that (the) management is (was) aware of whatever the union is (was) doing. I could remember that there were some management members in this committee that was (were) having the building scheme.”

From the evidence given by the Plaintiff as shown above everything in connection with the acquisition of the land was done by the union except that management was aware. In the first place the Defendant has not said management was not aware of the scheme being undertaking by the union. All that it is saying is that it had nothing to do with it. Secondly, the fact that management was aware does not mean it was the Defendant that was undertaking the scheme. The evidence shows that management had its which the Plaintiff was not a member. Rather he was a member of the scheme that was being undertaking by the union. Plaintiff’s evidence on the issue, therefore, corroborates the evidence of the Defendant that the scheme of which the Plaintiff was a member was solely controlled by the union and the Defendant had nothing to do with it. See the case of Asante v. Bogyabi [1966] GLR 232 in which the Supreme Court quoted with approval at page 241 the dictum of Ollenu J (as he then was) in the case of Tsirifo v. Dua VIII [1959] GLR 63 as follows:

“ Where the evidence of one party on an issue in a suit is corroborated by witnesses of his opponent, whilst that of his opponent on the same issue stands uncorroborated even by his own witnesses, a Court ought not to accept the uncorroborated version in preference to the corroborated one, unless for some good reason (which must appear on the face of the judgment) the Court finds the corroborated version incredible or impossible.”

In the instant case the evidence clearly shows that the Plaintiff has corroborated the evidence of the Defendant that it has nothing to do with the House Ownership Scheme which was undertaken by the union of which the Plaintiff was a beneficiary. The evidence of the Defendant on the issue is, therefore, more credible than that of the Plaintiff. It is, therefore, the opinion of this court that even though the Plaintiff participated in a House Ownership Scheme whilst working with the Defendant, the Defendant had nothing to do with that scheme. That scheme was solely managed by the union with the Defendant having nothing to do with it.

The court takes notice of the fact that DW1 in his evidence told the court that when Plaintiff appointment was terminated the union sent a colleague to inform the Plaintiff that he should contact them for his contribution but he failed to contact them. He went on to say that the Plaintiff’s contribution was still with them. It is, therefore, the view of this court that as far as the issue of the House Ownership is concerned, the Plaintiff has no cause of action against the Defendant.

In the light of the foregoing, it is my view that the Plaintiff has not been able to lead sufficient evidence to prove any of the reliefs endorsed on his amended writ of summons. It is, therefore, clear that the suit herein instituted by the Plaintiff ought to fail and same is dismissed. No order as to costs.

SGD

KWABENA ASUMAN-ADU J

(JUSTICE OF THE HIGH COURT)



COUNSEL

KWAME ADUABENG YANKYERA ESQ. FOR THE PLAINTIFF

RICHARD AKPOKAVIE ESQ. FOR THE DEFENDANT