CLIFFORD SOWAH V. MCARIAN LIMITED AND IAN WEBSTER

JUDGMENT

ASUMAN-ADU, J.

Plaintiff’s action against the Defendant filed on 12th June, 2009 is for the following reliefs:-

“a. To pay severance accrued of 3 month’s salary for every completed year of service.

b. An order to compel the Defendant Company to pay the social security contribution for the Plaintiff which he failed to pay.

c. To pay salary for the Plaintiff for 11 days in December, 2008.

d. To pay Plaintiff’s accumulated statutory annual leave which he was denied half salary for 14 years.

e. Damages for assault.

f. Costs.”

The Defendants entered appearance on 24th June, 2009 and went on to file their statement of defence on the same day denying that the Plaintiff is entitled to his claim.

On 13th July, 2009, the Plaintiff filed application for directions in which the following issues were raised by him:

1. Whether or not the Defendant complied with all the terms of settlement embodied in the letter dated 26/2/09 from the Labour Commission.

2. Whether the assault case was discussed at a meeting with the Defendant and Plaintiff’s family members.

3. Whether or not the assault case was settled with money and drinks provided for purification and compensation to the Plaintiff.

4. Whether or not the Defendants paid Plaintiff’s salary in December, 2008.

5. Whether or not the Defendant paid Plaintiff’s accumulated annual leave for 14 years.

6. Whether or not the Defendant paid Plaintiff’s social security contribution to SSNIT.

7. Any other issues raised by the pleadings.

On 22nd July, 2009 the Defendants filed one additional issue as follows:-

“Whether or not Plaintiff’s leave arrears was subject matter of settlement at the Labour Commission.”

On 19th November, 2009 the Court set down all the issues for trial.

The Plaintiff’s case is that on 24th August, 1994 he was employed by the Defendants as a permanent staff and worked in that capacity as carpenter until the Defendant terminated his appointment on 11th November, 2008. He tendered in evidence his appointment letter as Exhibit A. He went on to tender in evidence his contract of employment with the Defendants as Exhibit B. He avers that he served and worked for the Defendant company for 14 years and was denied his normal statutory annual leave. In the process the Director of the company informed him that there was no work at the carpentry section of the company and as a result it had been closed down so he was given one month notice to leave the company.

The Plaintiff contends that the reason given by the Director in terminating his appointment amounts to redundancy so he is entitled to be paid severance pay.

He claims that prior to the termination of his appointment, he had worked for 11 days in December, 2008 without pay. Also the Defendants have failed to pay part of his Social Security contributions. According to him Defendants did not pay his Social Security contributions from 1994 to the middle of 2001. In support of that averment, he tendered in evidence his Social Security record as Exhibit C.

The Plaintiff avers that during a meeting to inform him of the closure of the carpentry section, the Director of the company spat on his face without any provocation in the presence of his colleagues. He claims that the action of the Director was callous and disrespectful to him. He as a result reported the case to Adabraka Police. However, the Director pleaded with him to withdraw the case from the police for settlement which he obliged so the case was withdrawn for settlement at home but it was never settled.

The Plaintiff contends that he filed a petition against the Defendants at the Labour Commission. The Commission went into the matter and ordered the Defendants to pay him GH¢1,500.00 which the Plaintiff accepted but complained that it was too low. He was as a result advised by the Commission that if that amount was not enough for him then he should take the matter to Court. He as a result pleaded with the Court to grant him all his reliefs endorsed on the writ of summons.

The Defendants on the other hand deny the Plaintiff’s claim and state that the Plaintiff was employed as a carpenter to work both at Aburi and the Asylum Down office of the 1st Defendant company. However, around November, 2008 the company was facing financial problems. It was as a result realized that the company did not require the services of a carpenter so in line with the provisions in the Labour Act they declared the Plaintiff redundant and offered some money which he refused to take. They could not arrive at the amount to be paid to him so 2nd Defendant advised him to take the matter to the Labour Commission. He as a result petitioned the National Labour Commission on the matter. Defendants were invited to the Commission and it sat on the matter and made orders which were reduced to writing addressed to both parties. According to the Defendants they complied with all the orders of the Commission embodied in its letter written to the parties after the final settlement of the case by the Commission. He was made to pay GH¢1,500.00 which he has duly paid to the Plaintiff. The Defendants tendered in evidence the decision of the Commission and the invitation to it as Exhibits 1 and 2 respectively as well as official receipts from the Labour Commission as Exhibits 3, 3a and 3b.

On the issue of the Social Security, Defendants claim they have paid all contributions due the Plaintiff. The 2nd Defendant explains that between 1994 and 2001, the Plaintiff was not an employee of the 1st Defendant. During that period he was working for the 2nd Defendant as a local carpenter on a contract and he was paying him from his own pocket and not from the company. He, therefore, did not qualify for the payment of Social Security contributions on his behalf for that period.

On the issue of leave the Defendants admit that the Plaintiff did not take his annual leave. However, his leave period was calculated and worked into his salary. That is 1/12 of his annual salary has been paid to him to compensate him for the annual leave he did not take.

On the issue of the alleged assault, 2nd Defendant claims that the incident was discussed at a meeting with the Plaintiff and his father and other family members and friends. At the said meeting the 2nd Defendant explained that the saliva that touched the Plaintiff as a result of the alleged spitting was not deliberate. The relatives of the Plaintiff, however, asked the 2nd Defendant to provide monies and drinks for purification and compensation to Plaintiff, which he duly provided. In all he gave them GH¢101.00 and a bottle of schnapps for the purification of Plaintiff and by that he concluded that the matter was settled.

On the issue of Plaintiff’s December, 2008 salary, the 2nd Defendant claims that he gave Plaintiff 30 days notice and at that time he had taken advances from the company so after deducting them from his salary he was left with GH¢86.00 which he left with his secretary to be paid to the Plaintiff but he refused to take it. That money has, therefore, not been paid to the Plaintiff so it is still there for him. The Plaintiff is, therefore, not entitled to his claim apart from the GH¢86.00 which is yet to be paid to him.

From the pleadings and the evidence before the Court, the issues for determination will be grouped as follows:-

a. Whether or not the Plaintiff is entitled to be paid further severance award.

b. Whether or not the Defendants have satisfied their obligation of paying Plaintiff’s Social Security contributions in full to the SSNIT.

c. Whether or not the Plaintiff is entitled to be paid for the accumulated leave he was denied whilst in the employment of the Defendants.

d. Whether or not the assault case was settled with money and drinks allegedly provided for purification of Plaintiff.

e. Whether or not Plaintiff is entitled to be paid damages for the assault.

f. Whether or not the Defendants paid Plaintiff’s salary for December, 2008.

The issues for determination as shown above will be taken seriatim. The first issue is whether or not the Plaintiff is entitled to be paid further severance award. On that issue the evidence shows that when Plaintiff’s appointment was terminated, the Defendants gave him some amount which he rejected. He as a result petitioned the Labour Commission on his redundancy award. The Commission went into the matter and decided that the Defendants should pay GH¢1,500.00 in three installments as severance award. Plaintiff claims that even though he accepted the amount he complained to the Commission that it was too small so he was asked by an officer of the Commission to take it to Court. The Defendants, however, deny that assertion and insist that the stated amount was for final settlement of the matter and that the Plaintiff was never asked by the Commission to take the matter to Court. They went on to tender in evidence the decision of the Commission through the Plaintiff as Exhibit 1. The said exhibit states as follows:

“FINAL SETTLEMENT

RE: IN THE MATTER BETWEEN CLIFFORD SOWAH v. M. CARIAN LTD.

We make reference to the Commission’s meeting with the parties, Mr. Ian Webster, respondent and Mr. Clifford Sowah, Petitioner on Wednesday, 25th February, 2009.

The Commission orders the following settlement:

· That the respondent shall pay a total sum of GH¢1,500.00 as redundancy pay to the petitioner.

· That as agreed, the respondent shall pay the amount in 3 monthly instalments of GH¢500.00 per month on 2nd March, 2009, 1st April, 2009 and 1st May, 2009 respectively.

· That the respondent shall pay the monies to the Account Department of the Commission for the petitioner to collect.

· That this agreement settles the dispute.

TAKE NOTE AND ENSURE COMPLIANCE”

From Exhibit 1 there is no doubt that the decision of the Labour Commission was for final settlement of the redundancy award to the Plaintiff. Since the issue of the redundancy has been settled by the Commission, it is not possible that an officer of the Commission who signed the decision would advise the Plaintiff to take the matter to the High Court. If anything at all then she would have advised him to take the matter to the Court of Appeal in view of the provision in Section 134 of the Labour Act, 2003 (Act 651) which states that a person aggrieved by an order, direction or decision made or given by the Commission may, within fourteen days of the making or giving of the order, direction or decision, appeal to the Court of Appeal. So by that provision if the Plaintiff was not satisfied with the amount then the right forum for him to have sent the matter was the Court of Appeal and not this Court.

More so the evidence goes on to show that he has gone to the Commission to collect all the monies paid by the Defendants to the Commission in his name. This implies that he has compromised his position and cannot now turn round to demand that he be paid another severance award. So by accepting that amount as redundancy award, the Plaintiff is estopped from demanding another severance award from the Defendants. See the case of Ashun v. Accra Brewery Ltd. (2009) SCGLR 81. In that case the Plaintiff was in the employment of the Defendant company as chief of security. On 29th November 1996, the Plaintiff received a letter from the managing director of the company, informing him that his services would no longer be required as from 2nd December 1996 because his post in the company had been declared redundant as a result of manpower rationalization exercise by the company. The letter also offered the Plaintiff a monetary compensation package consisting of salary up to 2nd December 1996 plus three months’ salary in lieu of notice; severance award of two and half pay for each year of service commencing from 1st January 1991; and accrued leave entitlements.

On 5th December 1996, the Plaintiff collected the monetary compensation package offered by the Defendant company. However, on 29th January 1997, barely some six weeks later, the Plaintiff (per his lawyer) wrote to the Defendant company complaining that the applicable Senior Staff Conditions of the company contained no provision covering payment for redundancy; and that the Defendant’s action declaring him redundant was unlawful and smacked of arbitrariness and injustice. On the other hand, the stance taken by the Defendant company was that the redundancy exercise was in accordance with contractual terms implied by practice and usage.

In the event, the Plaintiff sued in the High Court, Accra claiming, inter alia, that: (i) he had been unlawfully declared redundant; (ii) damages for unlawful termination of employment; and (iii) “an order for payment of all salaries, increments and all other benefits for the remaining six years service with Defendant company.” The trial judge granted the Plaintiff’s claims but refused to award general damages for wrongful termination of contract. He, however, ordered the parties to negotiate over the severance award within one month. Both parties appealed to the Court of Appeal from the decision of the trial Court, the Plaintiff complaining that the trial judge should have awarded him general damages for wrongful termination of his contract. The Court of Appeal dismissed the appeal by the Plaintiff. He further appealed to the Supreme Court on the grounds, inter alia, that the Court of Appeal had erred in failing to appreciate that the Plaintiff’s right to negotiate for an appropriate severance award had not been extinguished by the mere receipt of the monetary package offered by the Defendant company. The Supreme Court held that under general contract principles, the Plaintiff, by accepting the package offered him, entered into a compromise agreement which appeared to extinguish any claims that he had against his employer in respect of the wrongful termination of his employment. At the very least, he should have indicated at the time he accepted the package that he was doing so, without prejudice, or under protest. It was, however, open to the Plaintiff to reject the redundancy package, if he was so minded. By accepting the package, he made the termination one by mutual agreement, not unilaterally determined by the employer. Furthermore, the acceptance by the Plaintiff of the redundancy package offered him by the employer, meant that the termination of his employment was not unlawful or wrongful.

In the current case the Plaintiff claims that he complained to the Commission that the amount was not enough and he was advised to take the current action but the Defendants have denied that assertion and they allege that the Plaintiff accepted that amount as final settlement. Since that averment has been denied by the Defendants he should have invited the officer at the Commission whom he allegedly made the complaint to for her to come to Court to give evidence to corroborate his evidence that he accepted the amount under protest. For not doing that, the Court accepts the evidence of the Defendants as being more probable than that of the Plaintiff so on the authority of Ashun v. Accra Brewery Ltd.(supra) I hold that by accepting the amount of GH¢1,500.00 as final settlement of the redundancy award, the Plaintiff is not entitled to be paid further severance award by the Defendants. Exhibit 1, however, shows that the Labour Commission settled only the redundancy award without settling the other issues. There is, therefore, the need for this Court to consider the other issues.

The next issue for consideration is whether or not the Defendants have satisfied their obligation of paying Plaintiff’s Social Security contributions in full to the SSNIT. On this issue the Plaintiff claims he was employed by the Defendant in 1994 and that until 2001, the Defendants did not pay his Social Security Contributions. He tendered in evidence the statement of account of his Social Security contributions as Exhibit C and it shows that his Social Security contributions paid to SSNIT by the Defendants were from the middle of June 2007 to 2009. Defendants, however, have denied that the Plaintiff was employed by the 1st Defendant in 1994. According to the 2nd Defendant the Plaintiff was employed as an employee of the 1st Defendant in 2001. So from 1994 to 2001 he was not an employee of the 1st Defendant. He claims that during that period he was working as a local carpenter on a contract and he paid him from his own pocket and not from the company. The Plaintiff, however, tendered in evidence his appointment letter and his contract of employment with 1st Defendant as Exhibits A and B respectively which show that his appointment with 1st Defendant takes effect from 24th August, 1994.

By Exhibit A, the Plaintiff gave his date of appointment as 24th August, 1994. The exhibit goes on to show that the Defendants provisionally accepted that date as Plaintiff’s date of employment. It goes on to show that full contract of employment would be given to Plaintiff after consultation with the T.U.C. In accordance with that provision in Exhibit A, the Defendants gave Plaintiff his contract of employment which states that his date of first employment is 24th August, 1994. There is, therefore, overwhelming evidence that the Plaintiff’s employment with 1st Defendant takes effect from 24th August, 1994 and not 2001 as alleged by the 2nd Defendant.

According to counsel for the Defendants Exhibit A shows that there is uncertainty as to the effective date of Plaintiff’s employment by the Defendant. The Court should, therefore, accept the evidence of 2nd Defendant on the date of Plaintiff’s employment. In my view there is no uncertainty on Plaintiff’s date of employment. Even though the exhibit was written on 14th October, 2006 it provisionally accepts 24th August, 1994 as Plaintiff’s date of employment. Exhibit B confirms this date by stating categorically that Plaintiff’s date of first employment was 24th August, 1994. Even Exhibit A states that they were tracing the date to confirm it. So if they have not been able to confirm that date or otherwise which of the date should be accepted as the date of Plaintiff’s first employment? Obviously, it will be the one which has been proved. See the case of Agyei Osae and Others v. Adjeifio and Others (2007-2008) 1 SCGLR 499 which states at Holding 1 that:-

“Whenever there was in existence a written document and conflicting oral evidence, the practice of the Court was to lean favourably towards the documentary evidence, especially if it was authentic and the oral evidence was conflicting.”

So on the authority of Agyei Osae and Others v. Adjeifio and Others(supra) this Court considers the evidence of the Plaintiff on the date of his first employment with first Defendant as being more probable than that of the second Defendant. The Court, therefore, accepts 24th August, 1994 as the date on which the Defendants employed the Plaintiff. Since Plaintiff was employed on 24th August, 1994, it follows that the payment of his Social Security contributions should take effect from 24th August, 1994 and not 2001. This implies that the Defendants have not satisfied their obligation of fully paying Plaintiff’s Social Security contributions to SSNIT. They have paid from 2001 to the date of the termination of his appointment but have not paid from 24th August, 1994 to 2001 which they are obliged to pay and I so hold.

The next issue for consideration is whether or not the Plaintiff is entitled to be paid for the accumulated leave he was denied whilst in the employment of the Defendants. According to the Plaintiff he worked for the Defendants for 14 years without enjoying his normal statutory annual leave. He is, therefore, entitled to be paid for the accumulated leave in cash. The Defendants, however, claim that the issue of the leave as well as the redundancy payment was the subject matter of a petition sent by the Plaintiff to the Labour Commission. The 2nd Defendant goes on to admit that the Plaintiff did not go on leave over the period the Plaintiff worked for the company. However the leave period was calculated and worked into his salary. He claims that 1/12 of the annual salary was paid to the Plaintiff to compensate for the leave.

By Section 20 of the Labour Act, 2003 (Act 651), every employee is entitled to a minimum of fifteen days leave in each calendar year of continuous service. The Labour Act goes on to state at Section 31 that any agreement to relinquish the entitlement to annual leave to forgo such leave is void. The said provisions clearly show that leave is mandatory and on no account should it be commuted to cash. It is, therefore, wrong for the Defendants to claim that 1/12 of the annual salary was paid to the Plaintiff to compensate him for the leave he did not enjoy. The Court finds it difficult to accept that assertion of the Defendants in the sense that Exhibit B, the contract of employment states that holiday pay of one month is included in Plaintiff’s salary. In addition to that 14 days leave is allowed for personal reasons. This does not mean his leave was commuted to cash and paid to him. It does not state that the one month holiday pay was payment in lieu of the leave.

On the issue of the leave it is the Defendants who are alleging that the leave was compensated in cash payment to the Plaintiff so the burden of proof of that averment lies on the Defendants. See the case of Majolagbe v. Larbi [1959] GLR 190 in which it was held that when a party makes an averment which is capable of proof in a positive way and the averment is denied, that averment cannot be sufficiently proved by just mounting the witness box and reciting the averment on oath without adducing some corroborative evidence.

In the current case the 2nd Defendant just told the Court that Plaintiff’s annual leave was commuted to cash and paid to him without leading some corroborative evidence. Meanwhile, the Defendants could have led evidence by tendering relevant documents to prove that truly the leave that was denied the Plaintiff was commuted to cash and paid to him. For not leading such corroborative evidence, the Plaintiff’s evidence on the issue of leave becomes more probable than that of the Defendants. The Court, therefore, accepts that truly the Plaintiff worked for 14 years without going on leave and no payment was made for that. The Plaintiff is as a result entitled to be paid for the accumulated leave he was denied whilst in the employment of the Defendants. He is, therefore to be paid 15 days’ salary for each year of the 14 years service as cash in lieu of leave. This implies that he will be paid 7 months’ salary to cover the 14 years he worked for the company as cash in lieu of leave for the period.

The next two issues will be taken together. These are whether or not the assault case was settled with money and drinks allegedly provided by the 2nd Defendant for purification of Plaintiff and whether or not the Plaintiff is entitled to be paid damages for the assault. On these issues the evidence before the Court as presented by the Plaintiff shows that on the day the Plaintiff told him that there was no work for him so he was to leave the company on redundancy, he was sitting in the yard when 2nd Defendant was passing by and he spat onto his face. He reported the matter to Adabraka Police. However, the 2nd Defendant pleaded with him for out of Court settlement. The matter was as a result withdrawn from the Police for out of Court of settlement but it was not settled.

This evidence of the Plaintiff was corroborated by one Clement Odai Annang, an uncle of the Plaintiff who gave evidence as PW1. He told the Court that the 2nd Defendant invited him and the father of the Plaintiff for the settlement of the assault case but it was not settled. According to him when they went to the 2nd Defendant, they told him that spitting onto Plaintiff’s face was a taboo so they needed to purify him. Meanwhile, those who were to do the purification would not be able to go to the 2nd Defendant so he should give them money to be given to those people for that purpose and later sit down with them to see what could be done.

The 2nd Defendant on the other hand claims that he did not deliberately spit onto the face of the Plaintiff. He claims that he was talking to the Plaintiff and in the process the saliva came out of his mouth onto the Plaintiff. However, when the case went to the police the matter was withdrawn for settlement. The 2nd Defendant admitted spitting on Plaintiff, though he claims it was not deliberate. In spite of that his evidence shows that he agreed that the Plaintiff needed to be purified so he provided 1 bottle of schnapps and GH¢101.00 for that purpose. Even though the Plaintiff and his witness claim the money was provided for transport the evidence of the 2nd Defendant on the issue is more credible than that of the Plaintiff and his witness. This is because the evidence of PW1 during cross examination corroborates the evidence of the 2nd Defendant that he provided money for the purification of the Plaintiff. I will want to refer to the said evidence of PW1 in this judgment as follows:

“Q. This money that was given to you and your brother was for purification is that not so?

A. That was not the case. What happened was that we told the Defendant that spitting on the Plaintiff’s face is a taboo and that they needed to purify him and those who will purify the Plaintiff, they do not easily go out and they cannot come to the Defendant’s work place so he should give us that money to the people so that later on when he comes to the people who will do the purification we sit down as to what to be done.”

Even though the witness goes on to say in that cross examination that the money was for transportation, considering the answer provided by him in the cross examination shown above, the amount involved and the fact that they were also given a bottle of schnapps, the Court takes it that the money was for the purification of the Plaintiff. It should, however, be noted that purification of the Plaintiff does not amount to compensation paid to the Plaintiff as alleged by the 2nd Defendant. The evidence before the Court clearly shows that, the 2nd Defendant admits liability. This is shown by the fact that he admitted that the Plaintiff needed to be purified for the assault. This implies that the Plaintiff needed to be paid damages to compensate him for the said assault on him.

The 1992 Constitution of the Republic of Ghana provides at Article 15(1) that the dignity of all persons shall be inviolable. This implies that the 2nd Defendant is expected to respect the dignity of the Plaintiff. He cannot, therefore, spit onto his face and go scot free. How can he say that an amount of GH¢101.00 was to cover for purification of the Plaintiff and at the same time as compensation to him? That is even an insult to the dignity of the Plaintiff which should not be encouraged. Just as he considers that amount to be too big to be given to two people as transportation from Accra to Teshie so that amount is considered to be too small to be paid to the Plaintiff as compensation for the spitting onto his face by the 2nd Defendant. It is, therefore, the view of this Court that the amount of GH¢101.00 paid to the relatives of the Plaintiff by the 2nd Defendant was for the purification of the Plaintiff which has nothing to do with compensation to him. He is, therefore, entitled to be paid damages as compensation by the Defendant. So considering the circumstances of the whole act and the fact that the action of the 2nd Defendant violates the dignity of the Plaintiff as enshrined in the Constitution he is entitled to be paid GH¢3,000.00 as damages.

The last issue for determination is whether or not the Defendants paid Plaintiff’s salary for December, 2008. There is no doubt that the Plaintiff has not been paid his salary for that month. According to the 2nd Defendant, the Plaintiff had taken some advances which were deducted from his salary so he was left with an amount of GH¢86.00 which he gave to his secretary to be paid to the Plaintiff but the Plaintiff refused to take it. That piece of evidence was not denied by the Plaintiff. The principle on such undenied evidence is given by the Court of Appeal in the case of Quagraine v. Adams [1981] GLR 599 in which it was held 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. So on the authority of Quagraine v. Adams (supra) the Court accepts the evidence of the 2nd Defendant that because the Plaintiff had taken advances from the company they were deducted from his December, 2008 salary so he was left with GH¢86.00 which has not been paid to him. The Plaintiff is as a result entitled to be paid that amount so the Defendants are ordered to pay it to the Plaintiff.

In view of the foregoing, judgment is entered for the Plaintiff in part as follows:-

a. In view of the fact that the Labour Commission has settled the issue of redundancy payment the Plaintiff is not entitled to be paid further severance award.

b. The Defendants are ordered to calculate and pay Plaintiff’s Social Security contributions from 24th August, 1994 to June, 2001 to SSNIT forthwith and accordingly inform the Plaintiff of the payment.

c. The Defendants are ordered to pay to the Plaintiff GH¢86.00 being the balance of his December, 2008 salary that has not been paid to him.

d. Defendants are ordered to pay to the Plaintiff 15 days’ salary for each year of the 14 years service the Plaintiff rendered to Defendants as pay in lieu of leave that he was denied over the period.

e. The 2nd Defendant is ordered to pay to the Plaintiff an amount of GH¢3,000.00 as damages for assault.

Plaintiff’s costs are assessed as GH¢2,000.00

JUSTICE KWABENA ASUMAN-ADU

(JUSTICE OF THE HIGH COURT)

COUNSEL

MR. VINCENT GARR FOR THE PLAINTIFF

MR. JOSEPH AWUDU FOR THE DEFENDANT.