ADOLF LATEVI LAWSON V. ALLIANCE FRANCAISE D’ACCRA

JUDGMENT

DEKYEM (MRS), J.

Plaintiff’s case is that he was employed by Defendant in October 1990 as a  lecturer at Defendant’s educational institution. According to him although he was  employed in 1990, the contract of employment, exhibit A was signed 30th June  2000. Plaintiff averred that on the 1st October 2012 he received a letter from  Defendant interdicting him with immediate effect for allegations of sexual  harassment. Plaintiff stated that he denied the allegations through his lawyer’s  correspondence to Defendant. Plaintiff stated that he was called into a meeting  with Defendant and attended the said meeting with his lawyer in the month of  October 2012. He said at the meeting were Defendant’s Director, Secretary  General, Deputy Chairman of the Board of Directors, a gentleman who was  introduced as lawyer for Defendant and a Pastor. According to Plaintiff the  Secretary General started to read what she stated was an investigative report. At  this point Plaintiff averred his lawyer raised an objection that Plaintiff should have  been served with a copy of the report to enable him to respond but same was  overruled and the meeting continued. Shortly after that the Chairman of the  Board of Directors, DW1 arrived at the meeting late and raised the concerns  Plaintiff’s lawyer had earlier on raised at which stage DW1 brought the meeting to  a close with the directive that enquiries would be made and copy of the report  served on the Plaintiff and his lawyer for study and response. Plaintiff stated that  in February 2013 he received a six page unsigned investigative report dated 5th November 2012 from Defendant asking for his comment which he responded.  Plaintiff averred that he received a letter dated 10th April 2013 dismissing him  with immediate effect. 

Plaintiff contended that apart from his written comment on the investigation  report he was not given any opportunity to confront his accuser for the truth to  come out thus the procedure adopted was wrong rendering his dismissal unfair,  unjust and sins against the rule of natural justice. It is Plaintiff’s case that  Defendant’s action has caused great damage to his reputation and also his  finances wherefore Plaintiff seeks the following reliefs: 

a. An order that Plaintiff’s dismissal was unlawful and therefore wrong b. Damages for wrongful dismissal 

c. An order for re-instatement of plaintiff 

d. Or in the alternative, payment to plaintiff of all his entitlement in bulk,  and not by installment. 

Defendant’s case is that it received an email from a parent of one of its students  which stated among others that Plaintiff was sexually harassing Defendant’s  students. Defendant averred that the allegations against Plaintiff ranged from  physically touching the breast and buttocks of female students on the defendant’s  compound to visiting female students in their hostels uninvited and seeking  forcefully to undress one such student at least on one occasion. Defendant  averred that plaintiff was also alleged to have persistently asked female students  for sexual favours in return for marks and the female students who resisted such  advances got very poor marks in the subjects being taught by the plaintiff. Defendant states it set up an investigative committee and that after duly  investigating the matter that Plaintiff’s appointment was terminated and duly  offered to pay him his entitlements thus Plaintiff is not entitled to his claim. The  following issues were settled for trial: 

a. Whether the procedures adopted in terminating plaintiff from his  employment is legal or proper. 

b. Whether Plaintiff is entitled to his reliefs. 

c. Any other issue/s arising out of the pleadings 

The provisions of the Evidence Decree, 1975 (NRCD 323) regarding burden of  proof in civil cases are 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 13—Proof of Crime. 

(1) In any civil or criminal action the burden of persuasion as to the  commission by a party of a crime which is directly in issue requires proof  beyond a reasonable doubt. 

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. 

Whether or not the procedures adopted in terminating plaintiff’s employment is  legal or proper? Plaintiff averred at paragraphs 31 and 32 of his statement of  claim that apart from his written comment on the investigation report he was not  given opportunity to confront his accuser openly for the truth to come out and  that by this lapse, Defendant has violated the rule of natural justice and therefore was unfairly treated. The position of the law is that the employee is given notice  of the alleged misconduct and given the opportunity to defend himself by which  the natural justice rule would have been complied with. Aryee v. State  Construction Corporation [1984-86] 1GLR 424 held at at holding 2 that

“(A)  hearing did not necessarily, at all times, involve the physical presence of the  employee before the board of directors to be examined viva voce. Where a board  wrote to an employee drawing his attention to alleged acts of misconduct and  impropriety, and invited a written explanation, it would be thought that the  employee would have been given an opportunity to be heard. If the employee  wrote back answering the queries, and offered explanations and justifications for  his conduct, or otherwise upon "sober reflection" withdrew the allegations and  insinuations and apologised for his conduct, then surely he would have taken  advantage of the opportunity offered him and would have been heard. The board  would then be entitled to take a decision on the basis of the answers,  explanations, justifications or apologies given by the employee. The audi alteram  partem rule would have been complied with….”

This principle has been affirmed in  the more recent case of Lagudah v. Ghana Commercial Bank [2005-2006] SCGLR  388 that the “core idea implicit in the natural justice rule of audi alteram partem  was simply that a party ought to have reasonable notice of the case to meet and  ought to be given the opportunity to make his statement in explanation of any  question and answer any arguments put forward against it. The principle does not  require that there must be a formal trial of a specific charge akin to Court  proceedings. Thus in dealing with the principles of natural justice one has always  to bear in mind that the principles are substantive rather than procedural  safeguards. Therefore the fact that a particular formal procedure is not adopted , does not itself imply that the principle has not been applied.”

Plaintiff in cross-examination: 

Q Mr Latevi you have said in the court that you were not given a  hearing, is that correct 

A Yes I wasn’t (given) opportunity for hearing 

Q The Defendant wrote to you to Solicitor (for) response on the alleged  sexual harassment, that is correct 

A Yes my Lord 

Q So you will agree with me that they gave you an opportunity to  respond to the allegation 

A They gave me the opportunity to respond to the allegation but they  did not give me opportunity to hear me. 

The evidence before the court and indeed by Plaintiff’s own admission he was  given the investigative report to respond to which he did by essentially denying  any wrong doing on his part. The court finds that Defendant complied with the  rules of natural justice by affording Plaintiff an opportunity to be heard by his  written response in reaction to the investigative report. It did not matter whether  or not Plaintiff appeared before a disciplinary committee thereafter; what is  crucial is whether or not the alleged misconduct was proven to justify the  termination of his appointment. 

Section 15 (e)(iii) of the Labour Act, 2003 (Act 651) gives grounds upon which an  employer may terminate the employment of a worker. A termination of a worker's employment is fair if the contract of employment is terminated by the  employer due to the proven misconduct of the worker (see also section 62(b) of  Act 651). The employer may in this regard terminate the employment of the  worker because of the inability of the worker to carry out his or her work due to  proven misconduct of the worker. It is therefore essential that the employer  demonstrates when its conduct of terminating an employee’s appointment is  called into question that the alleged misconduct was proven to justify the  termination. 

DW1 testified thus in examination in chief: 

Q So doctor was the veracity of those allegations made against the  plaintiff confirmed or otherwise? 

A They were confirmed my Lord 

Q Doctor the plaintiff also says that he did not commit an offence as  alleged by your non existing committee, what do you say to that

A My Lord we had a proper investigation, the ladies involved were interviewed by our secretary general who is a lady, and also our then  counsel was also involved in the investigations. The student  representative council, the president was involved, his vice president  and a host of other lady students were interviewed and indeed  although many of the girls were afraid to give evidence, 3 or 4 came  forward with vivid description of the sexual harassment. We are  talking about adults and international students who have come to  Alliance Francaise for their studies, and therefore the victims  understand exactly what they are talking about.

Exhibit B is Defendant’s letter dated 1st October 2012 to Plaintiff and reads in part  as follows: 

“INTERDICTION – ALLEGATIONS OF SEXUAL HARASSMENT 

Alliance Francaise d’Accra recently received complaints from some parents  of some female students expressly outraged and alleging that you have  sexually harassed their daughters who are students of this school. 

Our preliminary investigations indicates that you have made sexually  offensive advances to some female students and some of those female  students who refused your sexual advances have failed your subject or  threatened with failure of your subject in their examination. 

As you are aware this allegation is serious and has grave consequences on  the reputation of our institution and as a result management has decided  that you will be interdicted with immediate effect to enable thorough  investigations to be conducted into this matter. 

Meanwhile a Disciplinary Committee has been set up by the board of  Directors to go into the matter and offer you a platform to enable you  defend yourself on this allegation….” 

An investigative report, exhibit F was sent to Plaintiff for his comments by  covering letter dated 31st January 2013. The investigative report stated that an  alleged father of a student sent an email to Defendant’s Secretary General alleging that some female students were subjected to sexual harassment by teachers of the school including Plaintiff. The report stated that “in conclusion, there appears to be evidence of unwarranted advances made by Mr Lawson to  most of our students and therefore the need to get to the bottom of this matter  and resolve it once and for all to save the integrity of the school.” The report  shows that ten persons were interviewed making various allegations against  Plaintiff to which the latter responded by a covering letter dated 20th February 2013 and tendered as exhibit H denying the allegations. Thereafter a letter of  dismissal dated 10th April 2013 and tendered as exhibit J indicated that after  considering and evaluating the evidence gathered and listening to Plaintiff’s  defense, explanation and responses, the committee found Plaintiff guilty of  sexually harassing some female students whilst he was in the employ of  Defendant. The dismissal letter did not indicate which students the committee  found Plaintiff to have sexually harassed. No minutes or report of the disciplinary  committee was placed before the court which demonstrated that the allegations  against Plaintiff were proved before he was dismissed by making findings of fact,  coming to conclusions based on the evidence. What the interviewees per exhibit F and also exhibit 4 being report of the interviewees purportedly signed by them were basically the same. It was a copy and paste job without more. A summary  will be useful.

In respect of Claire her account was hearsay; she stated she heard Marie Joseph  complaining about Plaintiff coming to a friend’s house where he attempted to  remove her cloth. She also heard that Guira, Nancy and Rebecca had issues with  Plaintiff and she also heard that after his meeting with the committee Plaintiff went to Reina’s house but did not meet her. 

In respect of Claudvie Kebakrishe the report stated she said Plaintiff called her  and told her he wanted to befriend her but she refused. She alleged that Plaintiff  sometimes tried to touch her buttocks but she would avoid him which tormented  her and fear gripped her anytime she saw Plaintiff which affected her  academically. She alleged that during the exams Plaintiff told her he would give  her minus five (-5) and he did give her the said marks. She also stated she had  seen Plaintiff a number of times touching student’s breast in the corridor and that  Plaintiff tried dating two of her friends. Her assertions were not shown to have  been proved. For instance exhibit 3 which is the minutes of disciplinary  committee meeting held on Wednesday October 17, 2012 stated that Plaintiff  was asked to provide copy of the result of Claudvi but same was not available  because copies of class tests are not kept at the school except final exams. Exhibit  3 stated further that Mr Sowah as the one responsible for Claudvi’s class observed  that she has not been performing well and had advised her on two occasions. There were no details of whose breast was being touched on the corridor as well  as names of her two friends Plaintiff allegedly tried to date. I fail to see what  informed Defendant’s conclusion that Plaintiff misconducted himself in that  regard.

In respect of Fofana Faridah Sahibou, she is reported to have said that once  Plaintiff went to her friend Traore Mariam’s house to invite her out but she  refused and has since been avoiding Plaintiff. Plaintiff allegedly asked her for her  number but she refused. Plaintiff denied these allegations and it was not  demonstrated how Defendant found Plaintiff culpable. 

In respect of Guira, she is reported to have said that a former lady student  warned her to be careful about Plaintiff so she has been avoiding him and refused  to give her number to him. She stated that once when she was on attachment at  Plaintiff’s office and alone with him, Plaintiff told her that “whenever he called her  she would not mind him now that they were alone what would she do?”; she did  not answer and hurriedly left the office. What findings did Defendant make of  these allegations to find Plaintiff culpable? None was placed before the court as  proof of the alleged misconducts. 

In respect of Harriet, according to her statement, she was once passing by Plaintiff  and the latter touched her breast. She said as a result she avoided Plaintiff and  when the latter asked why and she told him, Plaintiff denied it and she warned  him never to do that to her again and he has since not repeated it. Plaintiff  responded in defence that one day whilst entering the computer room, his phone  rang in his office which was opposite the computer room and as he turned to go  to his office, Harriet was behind him and his body touched her and he said sorry. What questions did Defendant ask to establish the truth or otherwise. These were  not proved.

In respect of Marie Joseph Yobo the report stated that she was at Rena’s hostel  which she states Plaintiff had helped her to rent. She stated that it was around  6pm – 7pm when she was coming from the bathroom with cloth around her  chest. Rena announced to her that Plaintiff had arrived. According to her when he  got to the door Rena told Plaintiff that she was not properly dressed but Plaintiff  insisted that the door should be opened thus they were compelled to let him in.  When let in, Plaintiff sat on a bed close to the bed Marie was sitting on and tried  to remove her cloth saying he wanted to see what was beneath whereupon she  started shouting and pushing before he left her. Another allegation was that she  was in front of the computer class and Plaintiff was passing by and he held her  buttocks so hard she was so shocked she could not react. The third allegation was  that she saw Plaintiff watching pornographic pictures on his computer. When he  realized she saw what he was watching, he quickly turned the computer off and  said to her that the pictures were sent to his box. Plaintiff denied the allegation  and explained the circumstances that made him go to Rena’s hostel. He stated  that he had been invited by Rena because she had been robbed. He said he met  Marie on the bed reading a prayer book and together with Rena they went to the  bathroom to see how the thief entered and made away with a television set,  money and some items. Plaintiff said he reported the matter straight from the  inspection to the hostel owner. In respect of the pornographic material, Plaintiff  stated that he was checking his mail when he opened it and there were the  offending pictures which he quickly closed but by which time Marie had seen  already. Did Defendant find Plaintiff’s explanations reasonable and thus  acceptable? If not what further evidence to the contrary grounded Defendant’s  conclusions that Plaintiff was culpable?

In respect of Nancy it was alleged that Plaintiff had been calling her his “wife”  since DS1 and he would sometimes give her a peck and she would reciprocate  thinking it was the French culture stuff. She is reported to have alleged that this  continued till once Plaintiff sat by her in the computer room and started caressing  her thighs and she shouted before he left her. It is alleged she refused Plaintiff’s  marriage proposal to her and an invitation to spend holidays with Plaintiff in  Lome. Consequently she scored 1 in the next exams and would be insulted and  disgraced by Plaintiff when she received calls but her class mates who received  calls were not so treated. The report continued thus: 

“He consistently gave her low marks even though he and his friends would study  together and in some instances she would have taught them. She does not  understand why they perform well in --- but do poorly in --- handled by Mr.  Lawson. 

The second term of DS2, for whatever reason he gave her script to Mr. Koussogbor  to mark and he gave her 5 whilst others 10 and 9. 

The last day of the attachment at the office is always a hell. As usual he gave her  a lot of work to do till after 6:30pm when everybody left. She was afraid and  started calling her friend Petra whom she asked to wait for her. Petra was not  picking the call and was getting more and more afraid at a point he asked her  where she lives and she told him Osu. He told her he would not allow her to go  home until he sees her breast. She was horrified and she refused to allow him.  Mr. Lawson started begging her to allow him to see her breast and she resisted  and she started shouting and calling her friend on phone before he allowed her to  leave. 

During the last holidays he spent all his time calling her but she never responded.”

Plaintiff in response to the above report concerning Nancy, denied every  allegation except to concede that he called those girls his wives (which I would  imagine included Nancy) but did that without any motive. As we shall soon see,  the report on Petra alleged that Plaintiff called her his wife thereby corroborating  Plaintiff’s assertion that he called those girls his wife without meaning any harm. There was no demonstration that Defendant investigated the matter further to  establish the facts for instance the report said “She does not understand why they  perform well in --- but do poorly in --- handled by Mr. Lawson.” Which subjects  were being compared remained at large yet this was an investigative report. Defendant also failed to make a finding of Nancy getting one mark in the exam. I  find from the same report that the fact that Mr Koussogbor gave Nancy 5 marks  whilst others had 10 and 9 is indicative that Nancy was a weak student and makes  Plaintiff’s assertion more probable that Nancy did not do well which is why she  got one (1) mark in the exams. The alleged incident of Plaintiff wanting to see  Nancy’s breast could have been investigated further especially as Petra was  mentioned as having been called on phone. Further the report on Petra did not  mention any such thing to confirm the allegations allegedly made by Nancy. 

During the trial, DW2 Rebecca testified thus: 

Q Tell this court what you know about this sexual harassment involving Mr  Lawson. 

A My Lord it was a sexual harassment involving my friend Nancy Nyame. We  go for internal internship as required by Alliance Francaise. And that week  Nancy happened to be in Mr Lawson’s office where she was to do her one  week internship. Nancy had told me to be checking on her. I do not close  early. I close around 8pm. I decided to go to one of the rooms to learn. She flashed me that I should be checking on her. She later gave me a quick flash.  It was several times so I hurried to the office to find out what was  happening. I opened the door to see Mr Lawson holding the shirt of Nancy.  After hearing my voice he turned himself to go to his seat. 

Rebecca’s testimony does not corroborate Nancy’s story. According to the report  Nancy had asked Petra to wait for her and when she felt the need she called Petra  several times and not Rebecca. Rebecca’s account of being asked by Nancy to  wait for her was not recorded by Defendant during its investigation and it’s not in  accord with Nancy’s own account. These cast doubts on the allegations made  against Plaintiff. 

In respect of Petra the investigative report stated as follows: 

“Petra 

Since DS2 Lawson started calling her my wife, my love etc. In the computer room  he would try to hold her and she would try to avoid him. 

She always tried hard not to say anything verbally to disrespect him because she  respected him as a lecturer. Any time she saw him she would try as much as  possible to avoid him. 

Her worse moments were when she was doing attachment in their office. Lawson  would give her a lot of work till everybody left. When she is alone with him and he  would try to touch parts of her body. At one time he tried to force her to kiss him  and he held her wrist in order to force her to kiss him. 

During her attachment in the office he would ask her to come and pick something  from the floor very close to him and when she bends down he would like to touch  you from behind. 

During one of his lectures he held her in his arms as if massaging or caressing your  shoulders. His general behavior always makes her feel unsecure any time he is around her. She told her sister about the issue and she later told her mother  about it. Her mother wanted to call her father but asked her not to do so because  she knew her father would not take it lightly.” 

There is no evidence before the court to show that the allegations made by Petra  were investigated to establish the facts or if not why her version was to be  preferred to that of Plaintiff. 

The investigative report stated regarding Rebecca thus: 

“Rebecca 

In her first year Mr. Lawson asked her out and she refused. In the exams he gave  her a very low mark. This made her to suspect a fowl (sic) play because she knew  she did not deserve that mark. 

Afterward during his lectures she tried to use the remote control of the air  conditioner in class and it could not work so as usual she asked him to look at it  and he shouted on her. She was not happy with his reaction because he is one  they normally report to when they have such problems. 

Since then he has been snubbing her; when she asks question in class he wouldn’t mind her. She complained to a teacher who told her that Mr. Lawson said she  insulted him in class. The teacher then asked her to apologize to Mr. Lawson.  After a lot of hesitations she went ahead and apologized.” 

Again no further investigation was carried out to ascertain whether or not  Rebecca deserved the low marks to establish whether or not the low marks  received by her was as a result of the refusal of alleged proposals of outings made  by Plaintiff. The investigation was insufficient to ground a finding of misconduct  against Plaintiff. 

The report stated regarding Réna as follows: 

“Réna 

Réna confirmed that Mr. Lawson came to her house on the day Marie Joseph  visited her and confirmed all that Marie Joseph said about Mr. Lawson. 

She said Mr. Lawson’s attitude towards her is suspicious and perhaps he restrains  himself because he knows her father. According to Réna on a number of occasions  he would call her “Cherie” and once he addressed her in a similar way in the  presence of her father and he warned Mr. Lawson never to address her like that  again.” 

Plaintiff denied the allegations and there was no record of further investigation to  prove any misconduct against Plaintiff. The report stated that Réna confirmed all  that Marie Joseph said about Mr Lawson but nothing of the said confirmation was  documented. The court is not convinced that the alleged misconducts were  proven. 

The report further stated of Tamandja, the president of the student’s association  as follows: 

“Tamandja 

The president of the student’s association confirmed that a number of ladies  complained to him about Mr. Lawson’s undesirable overtures towards them  especially when they are alone with him. Marie Joseph told to him about what  happened at Réna’s hostel and even threatened to report him to the Director. She  was so furious that he had to calm her down. At the same time Pépé (the late Mr.  Azalenkor) arrived. He also calmed her down and promised her that he would  speak to Mr. Lawson. 

Tamandja claimed he has seen with his own eye Mr. Lawson touching the ladies’  breast and hips in the corridors and computer room. 

According to him after Mr. Lawson appeared before the committee he was  informed that Mr. Lawson was threatening the girls to the effect that he knows  the girls who have been testifying against him and that when he comes back he  will deal with them.” 

Again Plaintiff denied these allegations and no further investigation was carried  out to ascertain the veracity of any of the allegations. Multitudinous allegations  and suspicions without proof will certainly not justify the termination of one’s  employment on grounds of misconduct. 

Charles Crabbe JSC in Darkwa v. The Republic (1981) GLR 241 at 246 held that ‘a  committee of inquiry, like a commission of inquiry, is a fact finding tribunal and  not a criminal trial. Its work implied the discovery of truth which ought to be  balanced against the interest of the individual; it therefore had the duty to  ascertain the truth which ought to be balanced against the interest of the  individual; it therefore had a duty to ascertain the truth before making a finding….  In its judicial connotation an ‘investigation or inquiry’ embraced the expression  ‘due enquiry’ which presupposed that the person against whom an allegation was  made should have been permitted to challenge the very allegations against him  and to have had the right to call evidence to support his contentions….especially  where the findings might result in …dismissal…’ In the light of the above the  investigative report and response from Plaintiff were insufficient to support the  finding that Plaintiff had misconducted himself as the allegations remained so and  were not proven. Defendant thus failed to discharge the burden it assumed when it alleged that Plaintiff had misconducted himself by sexually harassing students  and same being ground for the termination of his employment contract. Having  failed to prove the allegations, the termination of Plaintiff’s employment was  unlawful and will so hold. 

In the light of the above, is Plaintiff entitled to his claim? Plaintiff is seeking an  order for damages for wrongful dismissal, an order for re-instatement or in the  alternative payment to Plaintiff of all his entitlements in bulk and not by  installment. The position of the law is that an employee cannot be awarded an  order for his reinstatement into a job from which he has been removed  unlawfully, unless there is a public law element which requires otherwise. See Lt.  Col. Ashun v. Accra Brewery Ltd. [2009] SCGLR 81. A reinstatement would be  equivalent to specific performance of a contract of employment, which is not  permissible. It is settled law that contracts of employment, in general, may not  be specifically enforced at the suit of either party (affirmed in Felix Yaw Bani v. Maersk Ghana Limited Civil Appeal No. J4/48/2010). The court can therefore not  make an order for Plaintiff’s reinstatement. It remains the common law that the  remedy available to an employee who has been wrongfully dismissed or  terminated is an action for damages. . It was held in Ashun v. Accra Brewery Limited [2009] SCGLR 81 that ‘…. In principle, in the absence of any contrary  statutory or contractual provision, the measure of damages for wrongful  termination of employment….was compensation based on the employee’s current  salary and other conditions of service for a reasonable period within which the  aggrieved party was expected to find alternative employment…the measure of  damages was the quantum of what the aggrieved party would have earned from  his employment during such reasonable period, determinable by the court after  which the employee should have found alternative employment. That quantum  was subject to the duty of mitigation of damages.’ The onus on this issue of  mitigation of damages lies on the Defendant. (see Baiden and Others v. Graphic  Corporation, Supreme Court CAJ4/36/2004; Societe General de Compensation v. Ackerman (1972) 1GLR 413, CA). Defendant did not discharge the burden of  demonstrating that Plaintiff failed to mitigate his loses. It is well known in Ghana  that the period of award of damages is between one year and two years by which  time it is expected that the dismissed employee would have found alternative  employment (see the cases of Nartey-Tokoli v. Volta Aluminium Co Ltd (No 2)  [1989 – 90] 2 GLR 341, SC and Ghana Cocoa Marketing Board v. Agbettoh [1984 - 86] 1 GLR 733, SC). The court will award two years net salary as damages for  unlawful termination of employment with interest from date of judgment until  date of final payment. 

Plaintiff testified that after he had brought the instant action to court, he went to  the Social Security and National Insurance Trust to check whether Defendant had  paid social security contributions on his behalf. Plaintiff stated that he realized  that although he was employed in October 1990, Defendant started paying social  security contributions on his behalf in April 1999. In this regard Plaintiff tendered  exhibit N without objection. Exhibit N is a statement of Plaintiff’s social security  contributions per the records of the Social Security and National Insurance Trust.  Exhibit N shows that Plaintiff was enrolled for SSNIT purposes on 1st April 1999 and many shortfalls in the monthly contributions recorded. Defendant disputes  that Plaintiff was employed in October 1990 and argues per exhibit A, the  contract of employment that as the said exhibit was signed on 30th June 2000,  Plaintiff was employed in 1999/2000. Indeed although exhibit A was executed on  the 30th June 2000, its title is “CONTRACT OF EMPLOYMENT Updated” between  Alliance Francaise d’Accra and Lawson Drompenou L. Adolphe. It goes further to  say “It is agreed as follows: The Alliance has employed the employee Mr Lawson  Drompenou L Adolphe as from October 1990.” Exhibit A being an updated  contract of employment implies that there existed a contract of employment  prior to the execution of exhibit A. In the case of Yorkwa v. Duah [1992-93] GBLR  278, CA, it was held that “whenever there was in existence a written agreement  and conflicting oral evidence over a transaction, the practice in the Court was to  lean favourably towards the documentary evidence, especially if it was authentic  and the oral evidence conflicting” (See also Nsiah v. Atuahene, [1992-93] GBLR 897  C.A). Also in Ahiabley v. Dorgah (1984-86) 2 GLR 537 C.A., where documents  support one party’s case as against the other, the court should consider whether  the latter party was untruthful or truthful but with faulty recollection. This is  especially so because as laid down in Atadi v. Ladzekpo [1981] GLR 218 CA and  Republic v. Nana Akuamoah Boateng II, Ex parte Dansoah (1982-83) 2 GLR 913 S.C.  documentary evidence should prevail over oral evidence. The court finds  therefore that Plaintiff was employed by Defendant in 1990 as evidenced by  exhibit A duly executed by both Plaintiff and Defendant’s representative, Didier  Martin (Director). Defendant is hereby ordered to make payments accordingly of  months which have not been paid to the Social Security and National Insurance Trust of Plaintiff’s contributions from October 1990 to date of the termination of  his employment. 

The court in conclusion makes the following orders: 

i) The termination of Plaintiff’s employment was unlawful. 

ii) Plaintiff is awarded two years net salary as compensation for unlawful  termination of employment. 

iii) Defendant to make payments of months which have not been paid to the  Social Security and National Insurance Trust of Plaintiff’s contributions from  October 1990 to date of the termination of his employment within three  months from date of judgment. 

iv) Cost of GHS5,000.00 in favour of Plaintiff. 

(SGD.) 

Justice Gifty Dekyem (Mrs) 

Justice of the High Court

Labour Court 1, Accra

COUNSEL

Faustinus A. Gemegah Esq for plaintiff

Jerry Shaib Esq for defendant.