THOMPSON ABOAGYE ABRADU V. RIDGE ALUMETAL PRODUCTS CO LTD

JUDGMENT

DEKYEM, J.

Plaintiffs were employees of Defendant. Although Defendant did not  communicate an intention to terminate the employment relationship, Plaintiffs  were sent home in or about April, 2014. Plaintiffs have since not worked with  Defendant and have since not received any remuneration. Plaintiffs contend that,  Defendant’s conduct constitutes breach of its statutory duty and the relevant provisions of the Collective Bargaining Agreement. Plaintiffs are thus seeking the  following reliefs: 

i. A declaration that the failure and or refusal by the Defendant to pay the  Plaintiffs all of emoluments and allowances that have accumulated over the  period is in breach of the Defendant’s statutory duty and the contract of  employment between the parties, to wit the Collective Bargaining  Agreement between the parties. 

ii. A declaration that the Defendant is under a duty to pay the Plaintiffs all  arrears of emoluments and allowances that have accumulated over the  period together with interest thereon from the various dates of accrual  thereof to the date of final payment at the prevailing commercial bank  lending rate. 

iii. An order for the payment forthwith of all arrears of emoluments and  allowances that have accumulated over the period together with interest  thereon from the date of accrual thereof to the date of final payment at the  prevailing commercial bank lending rate. 

Further or in the alternative: 

iv. A declaration that by its conduct, the Defendant has rendered the Plaintiffs  redundant under the terms of Section 65 of the Labour Act, Act 651 and the  Collective Bargaining Agreement between the parties. 

v. An order that the Defendant shall forthwith enter into negotiations with  the Plaintiffs or their lawful representatives with a view to fixing the  formula and modalities for calculating and paying to the Plaintiffs their  redundancy payments. 

vi. An order that the Defendant shall pay to the Plaintiffs interest on the  redundancy payments as worked out from the effective date of the  redundancy at the prevailing commercial bank lending rate until the date of  final payment. 

vii. Punitive damages for breach of the Plaintiffs’ contract of employment and  statutory duties. 

viii. Any other relief(s) found due. 

At directions stage, the following issues were settled for trial: 

i. Whether or not the Defendant has breached its statutory duty and the  contract of employment between it and the Plaintiffs by failing and or  refusing to pay the Plaintiffs all the arrears of emoluments and allowances  that have accumulated over the period. 

i. Whether or not the Defendant has by his conduct rendered the Plaintiffs  redundant. 

ii. Whether or not the Plaintiffs are entitled to all or any of the reliefs claimed. iii. Any other reliefs arising from the pleadings. 

Although Defendant was duly served, it failed to attend the trial. Where an action  is called for trial and plaintiff attends but the defendant fails to attend, the trial  judge may allow the plaintiff to prove his or her claim. The High Court (Civil  Procedure) (Amendment) Rules (CI 87), Order 32 rule 7A (3) provides that, where  a party fails to comply with orders of the court at case management by failing to  file his witness statement(s) and pre trial checklist, the court may strike out the  defence if the offending party is the defendant. Defendant having failed to file its  witness statement and pre trial checklist as ordered by the court, its defence was  accordingly struck out and Plaintiffs allowed to prove their claim. 

In civil cases such as the instant one, the party making the assertion forming the  bases of his claim assumes the burden of proof. The relevant provisions on the burden of proof are captured in sections 10, 11, 12 and 14 of the Evidence Act,  1975 (NRCD 323) as follows: 

Section 10—Burden of Persuasion Defined. 

(1) For the purposes of this Decree, the burden of persuasion means the  obligation of a party to establish a requisite degree of belief concerning  a fact in the mind of the tribunal of fact or the court. 

(2) The burden of persuasion may require a party to raise a reasonable  doubt concerning the existence or non-existence of a fact or that he  establish the existence or non-existence of a fact by a preponderance of  the probabilities or by proof beyond a reasonable doubt. 

Section 11—Burden of Producing Evidence Defined. 

(1) For the purposes of this Decree, the burden of producing evidence  means the obligation of a party to introduce sufficient evidence to avoid  a ruling against him on the issue. 

(4) In other circumstances the burden of producing evidence requires a  party to produce sufficient evidence so that on all the evidence a  reasonable mind could conclude that the existence of the fact was more  probable than its non-existence. 

Section 12—Proof by a Preponderance of the Probabilities. 

(1) Except as otherwise provided by law, the burden of persuasion  requires proof by a preponderance of the probabilities.

(2) "Preponderance of the probabilities" means that degree of certainty  of belief in the mind of the tribunal of fact or the court by which it is  convinced that the existence of a fact is more probable than its non existence. 

Section 14—Allocation of Burden of Persuasion. 

Except as otherwise provided by law, unless and until it is shifted a  party has the burden of persuasion as to each fact the existence or  non-existence of which is essential to the claim or defence he is  asserting. 

Section 17—Allocation of Burden of Producing Evidence. 

(1) Except as otherwise provided by law, the burden of producing  evidence of a particular fact is on the party against whom a finding on  that fact would be required in the absence of further proof. 

(2) Except as otherwise provided by law, the burden of producing  evidence of a particular fact is initially on the party with the burden of  persuasion as to that fact. 

The case of Bank of West Africa Ltd v. Ackun [1963] 1 GLR 176-182 SC (2) held  that, the onus of proof in civil cases depends upon the pleadings. The party who in his pleadings raises an issue essential to the success of his case assumes the burden of proof. The absence of a party at the trial does not lower the standard of proof of the party seeking relief. The onus is thus on Plaintiffs prove their claim. 

Plaintiffs’ case is found in paragraphs 5, 6 and 7 of the witness statement of 1st Plaintiff on behalf of all the Plaintiffs as follows:

3. Until the events herein complained of, we were all employees of the Defendant company and indeed are still employees of same in view of the fact that the Defendant has not formally declared us redundant. I hereby attach copies of the Appointment Letters of the 1st, 2nd, 3rd, 5th and 6th Plaintiffs which are attached and marked “A”, “A1”, “B”, “C”,  “D” and “E”. The 4th, 7th, 8th, 9th and 10th Plaintiffs were not issued  with their Appointment Letters. In any event Paragraph 2 of the  Defendant’s own Statement of Defence makes admission of the fact  that “the Plaintiffs are still employees of the Defendant Company”. 

5. In or about April 2014, the Defendant unceremoniously and without  any prior notice whatsoever sent us home without any explanation  whatsoever and without first negotiating and agreeing with us the  modalities and or quantum of the severance awards due to us upon  our being rendered redundant. 

6. All efforts by us and or our mother union, Industrial and Commercial  Workers Union of Ghana, to get the Defendant to sit with them to  work out the modalities and or quantum of the our said entitlements  and to get same paid to us have been rudely ignored by the  Defendant with the result that the same has remained unpaid to this  day. 

8. The Defendant has also not taken any steps to properly declare a  redundancy and pay us such entitlements as we are by law entitled to  under our collective bargaining agreement with the Defendant. The  effect is that we remain on the Defendants staff roll as employees up  to this day without any effort by the Defendant to discharge its  obligations to us by way of appropriate remuneration or redundancy  payment. 

The facts as gathered from the witness statement and indeed echoing the  averrements in the statement of claim show that Plaintiffs were sent home in  April, 2014 without notice and have since not worked or received any remuneration. Clause 35 of the Collective Agreement between parties herein states that: “Where the company wishes to terminate the appointment of a  worker or where a worker wishes to resign from his employment he shall be  given one (1) month’s notice or payment in lieu.” The safe inference to be drawn from this is that, Plaintiffs’ appointment were terminated without Defendant  giving the contractual notice period of one month or payment in lieu thereof. 

Defendant thus, breached its contractual and statutory obligation to give the  required notice before sending Plaintiffs home thereby terminating their  employment. 

Whether or not the Defendant has by its conduct rendered the Plaintiffs  redundant? Section 65 of the Labour Act, 2003 (Act 651) provides on redundancy  as follows: 

(1) When an employer contemplates the introduction of major changes in  production, programme, organisation, structure or technology of an  undertaking that are likely to entail terminations of employment of workers  in the undertaking, the employer shall 

(a) provide in writing to the Chief Labour Officer and the trade union  concerned, not later than three months before the contemplated changes,  all relevant information including the reasons for any termination, the  number and categories of workers likely to be affected and the period  within which any termination is to be carried out; and 

(b) consult the trade union concerned on measures to be taken to avert or  minimize the termination as well as measures to mitigate the adverse  effects of any terminations on the workers concerned such as finding  alternative employment. 

(2) Without prejudice to subsection (1), where an undertaking is closed  down or undergoes an arrangement or amalgamation and the close down,  arrangement or amalgamation causes 

(a) severance of the legal relationship of worker and employer as it existed  immediately before the close down, arrangement or amalgamation; and 

(b) as a result of and in addition to the severance that worker becomes  unemployed or suffers any diminution in the terms and conditions of  employment, the worker is entitled to be paid by the undertaking at which that worker  was immediately employed prior to the close down, arrangement or  amalgamation, compensation, in this section referred to as "redundancy  pay". 

(3) In determining whether a worker has suffered any diminution in his or  her terms and conditions of employment, account shall be taken of the past  services and accumulated benefits, if any, of the worker in respect of the  employment with the undertaking before the changes were carried out. 

(4) The amount of redundancy pay and the terms and conditions of  payment are matters which are subject to negotiation between the  employer or a representative of the employer on the one hand and the  worker or the trade union concerned on the other. 

(5) Any dispute that concerns the redundancy pay and the terms and  conditions of payment may be referred to the Commission by the aggrieved  party for settlement, and the decision of the Commission shall subject 

Evidence adduced before the court did not show that, Defendant contemplated  introduction of major changes in production, programme, organisation, structure,  technology or that Defendant closed down or underwent an arrangement or amalgamation which resulted in the termination of Plaintiffs’ employment. Defendant’s conduct cannot therefore be said to amount to redundancy. 

Are Plaintiffs thus entitled to their claim? The only breach of Defendant found by  the court is that, it failed to give the contractual notice or payment in lieu before  sending Plaintiffs home thereby terminating their employment unlawfully.  Plaintiffs are thus entitled to their notice pay of one month’s salary. It was held in  Hemans v. Ghana National Trading Corporation [1978] GLR 4 that ‘Where the  compensation for lawful termination of a contract of employment was one  month's pay it would appear preposterous to award the same one month's salary  where the termination was unlawful. In the instant case a just award was four  months' salary.’ In the circumstances, Plaintiffs are awarded four months pay  each. Costs of Five thousand Ghana Cedis (GHS5,000.00) is awarded against  Defendant. 

SGD

Justice Gifty Dekyem (Mrs) 

Justice of the High Court

Labour Division I, Accra

COUNSEL

Dick Anyadi Esq. for Plaintiffs;

Kingsley Amoakwa-Boadu Esq for Defendant (Absent).