MAJOR NOBERT ABEBA TIBORI (RTD) V. ANGLOGOLD ASHANTI (GH) LTD.

JUDGMENT

ASUMAN-ADU, J.

The Plaintiff herein as at 5th June, 2008 had served the Ghana Armed Forces for almost 18 years. While the Plaintiff was preparing for a U.N. operations in Darfur, he received a call from one Wing Commander Allotey asking him to submit his curriculum vitae (CV) for submission to a corporate institution that needed an officer of his caliber. Wing Commander Allotey was the Managing Director of Talent Pool Ghana Limited, a recruiting agency. Without submitting any application to the Defendant he was invited for interview at the Gold House in Accra and the final interview at the High Gate Hotel also in Accra. Based on the assurance of engagement by Wing Commander Allotey, acting on behalf of the Defendant, subject to medical fitness, Plaintiff retired from the Armed Forces at short notice thus causing Plaintiff to forfeit a year’s remuneration and allowances in line with the Armed Forces Regulations. Plaintiff was as a result released honourably from the Armed Forces on 7th July 2008.

On 2nd June, 2008, Plaintiff was given an appointment letter personally by one Kwaku Awuku, the Human Resource Manager at the Gold House having been appointed as Asset Protection Superintendent, effective 1st June, 2008. On 5th June, 2008, the Plaintiff reported to the Senior Human Resource Superintendent, Kwaku Sefah who gave him pre-medical examination for fitness form and he went to the Defendant’s clinic to have the medical examination for fitness carried out on the same day. He was declared fit for work so he started work on the same day.

The Plaintiff was asked to complete and submit an application for employment form on 6th June, 2008 and per a memorandum dated 9th June, 2008 he was made to start his mine site induction on 10th June, 2009. The Plaintiff was made to undertake a study tour in South Africa from 6th to 16th October, 2008 by the Defendant.

According to the Plaintiff just as he was settling on his job he came across documents that indicated that over 75% of the Defendant’s workforce, were involved in gold theft and that three Asset Protection personnel were involved in illegal sharing a truck load of gold bearing ore. With that information on hand the Plaintiff started strategizing to deal with the canker as the superintendent in-charge of Investigations and Surveillance.

He says on 11 November, 2008, he received a mail from the Asset Protection Manager to the effect that he was not attending meetings arranged by his colleague Asset Protection Superintendent even though the organogram showed that the lateral superintendents were to report directly to the Asset Protection Manager. He, however, started attending meetings of his colleague superintendent.

On 11th December, 2008, the Plaintiff was served with a letter dated 4th December, 2008 and signed by the Managing Director on 10th December, 2008 terminating Plaintiff’s appointment with effect from 5th December, 2008 on grounds that an appraisal of his performance at the end of his six (6) months probation was unsatisfactory. Plaintiff, however, considered the termination of his employment by the Defendant as unfair, unlawful and wrongful. He as a result commenced the current action against the Defendant on 6th July 2010 for the following reliefs:

a. A declaration that the termination of his appointment on grounds of unsatisfactory performance after the lapse of his probationary period of six months was wrongful or unlawful.

b. Recovery of all remuneration that would have accrued to the Plaintiff effective, 11th December, 2008, the date of purported termination of his appointment, up to the date the court will deliver its judgment in this case.

c. Interest at the prevailing commercial bank rate on the accrued remuneration as claimed in paragraph 23(b) of the statement of claim.

d. Compensation for unlawful termination of Plaintiff’s appointment.

e. The sum of GH¢100,000.00 as special damages for the damage of Plaintiff’s reputation, the trauma and hardship brought on the Plaintiff, his spouse and children as a result of the unlawful termination of Plaintiff’s appointment.

f. Costs.

The Defendant entered appearance on 12th August, 2010 and went on to file its statement of defence on 11th October, 2010 denying the claim of the Plaintiff. Plaintiff filed a reply to the statement of defence on 10th November, 2010 and went on to file application for directions in which the following issues were raised by the Plaintiff:

a. Whether the Plaintiff’s appointment was terminated within the six months probation period.

b. Whether the termination of Plaintiff’s appointment on 5th December, 2008 was fair and lawful.

c. Whether the Plaintiff having been paid the sum of GH¢6,798.85 including payment in lieu of notice is estopped from claiming that the termination of his appointment was unlawful.

d. Whether the Plaintiff is entitled to all the reliefs endorsed on the writ of summons.

The Defendant filed no additional issues so on 15th December, 2010 the court set down all the issues raised in the application for Directions for determination. On 7th May, 2012, pursuant to this court’s order granted on 30th April, 2012, the Plaintiff filed an amended statement of claim.

The case of the Plaintiff is that the termination of his appointment by the Defendant was unfair and wrongful in the sense that as at 11th December, 2008 when he was served with the termination letter his probation period of six months had lapsed and was, therefore, no more a probationer. As at that time his employment with the Defendant was covered by the AngloGold Ashanti Senior Staff Conditions of Service. The Defendant was, therefore, obliged to act against the Plaintiff in accordance with the said terms and conditions of service.

The Plaintiff contends that the unlawful termination of his appointment by the Defendant after he had prematurely retired from the Armed Forces to take up the offer of the Defendant has caused very serious damage to his reputation and serious hardship on himself, spouse and children.

The Defendant’s case on the other hand is that the offer letter given to the Plaintiff stated that his employment was subject to confirmation after satisfactory performance during a 6-month probation period. It contends that the Plaintiff retired from the Armed Forces for his own personal reasons and without any influence from the Defendant, and communicated same at his interviews and elsewhere. It denies that Plaintiff resigned from the Armed Forces on 7th July, 2008. It says at the beginning of Plaintiff’s employment in June, 2008, he gave the impression of having already left the Armed Forces.

The Defendant denies that the effective date of Plaintiff’s appointment was 1st June, 2008. It says Plaintiff’s appointment letter stated that his appointment would be effective upon a successful medical examination or when he reported for work at the Iduapriem Mine, whichever was later. The Plaintiff’s employment, therefore, officially began on 9th June, 2008 when the medical officer communicated the Plaintiff’s fitness to the Defendant.

The Defendant contends that it arranged the duty tour in South Africa for the Plaintiff for him to achieve some level of competence, but he failed to achieve that. Rather he proved to be incompetent and insubordinate on several occasions during probation which contributed to the termination of his appointment at the end of his probation. He disobeyed direct instructions to attend meetings and only started attending same after several promptings.

The Defendant states that the Plaintiff was aware of his unsatisfactory performance so he knew his employment would not be confirmed after his probation; thus, he deliberately vacated his post and travelled to Accra without permission in order to evade service of the letter of termination on him. He could, therefore, not be served with the letter before the expiration of his probationary period. The failure to serve him with the letter before the expiration of the probationary period was also due to the absence of the Managing Director and public holidays around the time of the general elections in 2008.

The Defendant further states that in accordance with the terms and conditions of service, the Defendant paid GH¢6, 798.85 into the Plaintiff’s Barclays bank account as his entitlement. This amount included salary in lieu of notice of termination as well as one month’s basic salary, leave pay, provident fund, relocation allowance and senior staff overtime.

The Defendant contends that to the extent that the Plaintiff has accepted his entitlements, including salary in lieu of notice, he is estopped from claiming that his termination was unlawful or that there are any outstanding entitlements due him. The Plaintiff is, therefore, not entitled to his claim or any part of it.

In his testimony in court the Plaintiff essentially repeated his averments in his pleadings. He said that as part of his pre-employment requirements, he did his pre-employment medical examination on 5th June, 2008 and was declared fit to work on the same day. So the exact date of his engagement was 5th June, 2008. He further said that by the Defendant’s own end of probation certificate his probation period ended on 4th December, 2008. In view of that the termination of his appointment after the end of probation period on ground of unsatisfactory performance during the probation period was unfair and unlawful.

Kweku Awuku who was the Human Resource Manager at AngloGold Ashanti, Iduapriem during the time Plaintiff was in the employment of the Defendant gave evidence on behalf of the Defendant. His testimony was essentially a repetition of the averments of the Defendant in the statement of defence. One Kwaku Afrifa Nsia Asare, an in-counsel for the Defendant testified on behalf of the Defendant as a witness. In support of Defendant’s case, he tendered in evidence two documents as Exhibits 3 and 4. Exhibit 3 was the pre-employment medical report on the Plaintiff and Exhibit 4 was a letter written by the Defendant to facilitate the movement of Plaintiff’s family from Accra to Tarkwa.

I will now evaluate the evidence before the court in relation to the issues this court has been called upon to determine. The first issue for determination is whether the Plaintiff’s appointment was terminated within the six months probation period. According to the Plaintiff at the time his appointment was terminated he was not on probation because his probation period of six months had lapsed and, therefore, was no more a probationary. The termination of his appointment after the probation period was, therefore, unfair and unlawful.

The Defendant, however, denies Plaintiff’s assertion that at the time of the termination of his appointment he was not on probation. According to the Defendant, the Plaintiff was aware of his own unsatisfactory performance during the period of probation and knew that his employment would not be confirmed by the Defendant after the probation. So he deliberately vacated his post and travelled to Accra without the permission of the Human Resource Manager in order to evade service of the termination letter on him. Also the Defendant could not serve the letter of termination on the Plaintiff on time because of the absence of the Managing Director and the 2008 general elections. The Plaintiff’s appointment was, therefore, terminated when he was a probationer. The termination of his appointment was, therefore, fair and lawful.

There is a dispute between the Plaintiff and the Defendant as to the effective date of Plaintiff’s appointment. Whilst Plaintiff states that the effective date of his appointment was 5th June, 2008, the Defendant considers 9th June, 2008 as the effective date of Plaintiff’s appointment. So to the Plaintiff his probation period ended on 5th December, 2008 whist to the Defendant it ended on 9th December, 2008. The question then is considering the available evidence on record which of the dates is appropriate?

The appointment letter of the Plaintiff which was tendered in evidence by him as Exhibit A states in the first paragraph that the effective date of Plaintiff’s appointment was 1st June, 2008. It, however states at paragraph 3 as follows:

“The appointment will take effect from the date you are declared medically fit by our Medical Authorities or the date you actually report for duty at the Iduapriem Mine, whichever is later.”

Though Exhibit A states that the appointment takes effect from 1st June, 2008, by paragraph 3 of the same exhibit, the actual date on which Plaintiff’s appointment took effect would depend on either when he was declared medically fit for work by the Defendant’s doctor or the actual date on which the Plaintiff reported for duty at Iduapriem Mine, depending on which of the two happened later.

The evidence goes on to show that by Exhibit C, the pre-employment medical report on the Plaintiff, he was declared fit for work on 5th June, 2008 by the Defendant’s Medical Officer, Dr. Hayford Etteh. The Medical Officer, however, went on to issue a medical certificate on the Plaintiff to the Human Resource Department on 9th June, 2008. By this medical certificate, the Defendant contends that the effective date of Plaintiff’s appointment was 9th June, 2008. It is, however, my opinion that it was rather 5th June that the Medical Officer declared the Plaintiff fit for work and not 9th June, the day on which he chose to issue the medical certificate. So the effective date of Plaintiff’s appointment was 5th June, 2008. This was confirmed by the Defendant in Exhibit K where the Defendant stated 5th June, 2008 as the date on which he was engaged.

The court takes notice of the fact that Exhibit K was prepared by Plaintiff’s Head of Department (HOD), Capt. (Rtd) James Appiah and approved by K Awuku, Human Resource Manager of the Defendant Company on behalf of Defendant. Since the Defendant has admitted that the date Plaintiff was engaged was 5th June, 2008 it follows that he reported for duty on that day. Exhibit K also goes on to state that Plaintiff’s probation period ended on 4th December, 2008. It is, therefore, clear from the available evidence that the Plaintiff reported for duty on 5th June, 2008 so his probation period ended on 4th December, 2008 as stated in Exhibit K. This explains why the Defendant wrote Plaintiff’s termination letter on 4th December, 2008 and stated that it took effect on 5th December, 2008.

It is, however, observed that Section 3 (a) of Exhibit L, Senior Staff Conditions of Service provides that if the new employee is still in employment at the end of six (6) months probationary period he shall be deemed to be confirmed in his job or appointment. It has been established in this judgment that Plaintiff’s probationary period ended on 4th December, 2008. If the Defendant was not satisfied with his performance then it should have given him his termination letter within the probationary period but not after it. As at 10th December, when the letter terminating his appointment was handed over to him he was deemed to be a confirmed officer. It is, therefore, the opinion of the court that the Plaintiff’s appointment was terminated when his probation period had lapsed and he had become a confirmed staff.

The next issue for consideration is whether the termination of Plaintiff’s appointment on 5th December, 2008 was fair and lawful. As has been established in this judgment, the Plaintiff’s appointment was terminated outside his probationary period and not 5th December, 2008. So the issue that will be considered by this court is whether or not the termination of Plaintiff’s appointment by the Defendant was fair and lawful.

By the available evidence, the Plaintiff contends that the termination of his appointment was unfair and unlawful. The Defendant, however, avers that the termination of Plaintiff’s appointment was fair and lawful. This court must, therefore, find out which of the evidence before the court is more probable.

It is pertinent to note that unfair termination and unlawful termination are not the same. They will, therefore, be considered separately. I will first look at unfair termination. 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 current 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 his relief on that.

I now go on to determine the issue whether or not the termination of Plaintiff’s appointment was unlawful. In addition to Plaintiff claiming that the termination of his appointment by the Defendant was unfair he claims that it was unlawful in the sense that at the time his appointment was terminated his probation had ended so he was deemed to have been confirmed in his appointment. It was, therefore, wrong for the Defendant to terminate his appointment on grounds that an appraisal of his performance at the end of his probation of six months period had been unsatisfactory. In view of that the termination of his appointment without going through a disciplinary procedure was in breach of his terms and conditions of service.

The Defendant on the other hand claims that at the time Plaintiff’s appointment was terminated he was still on probation and that during that period Plaintiff’s performance was found to be unsatisfactory. It contends that Plaintiff’s letter of termination was ready on 4th December, 2008 to be signed and delivered to him. However, due to the absence of the Managing Director it could not be signed on time. Also the Plaintiff knew his appointment would not be confirmed so he vacated his post to avoid being served with the letter within the probationary period. The issue on the date of the termination of Plaintiff’s appointment has already been resolved in this judgment. So the issue that will have to be cleared is whether in view of the reason given for the termination of Plaintiff’s appointment in Exhibit M, the termination could be considered to be unlawful.

The Court takes notice of the fact that, the current action being an action for unlawful termination of appointment, it is the duty of the Plaintiff to prove to the court that by his terms of his employment or by the terms of existing statutory provision the termination of his appointment by the Defendant was 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 current case, it is my view that the current action being an action for unlawful termination of appointment the Plaintiff herein assumes the burden of proving to the Court his 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. 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 current case.

The Plaintiff tendered in evidence the Senior Staff Conditions of Service as Exhibit L and states that by Section 27.02 of Exhibit L an employee must first be found guilty of an offence before the employee’s appointment could be terminated on notice or be paid in lieu of notice. Section 27.02 of Exhibit L provides as follows:

“In the event of an employee being found guilty of an offence under termination in accordance with the Schedule of Offences, the Company may terminate the employee’s appointment by giving him one month’s notice or pay in lieu of notice.”

The said section states that the employee must be found guilty of an offence under termination in accordance with the schedule of offences. Meanwhile, no schedule of offences is provided in Exhibit L. The section referred to does not provide for any disciplinary procedure that must be followed before an employee’s appointment could be terminated. Section 26(b) of the exhibit provides that the Company’s Disciplinary Code prescribes disciplinary action to be taken for specific offence. Meanwhile, no such disciplinary code was tendered in evidence. It is, therefore, the opinion of this court that apart from stating that “in the event of an employee being found guilty of an offence under termination in accordance with the schedule of offences”, Exhibit L does not prescribe any procedure that must be followed in terminating the employment of any employee.

The evidence available in this case is that Plaintiff’s performance during the probation period was evaluated by the Defendant. The Evaluation Report was tendered in evidence by the Plaintiff as Exhibit K. Plaintiff’s Head of Department (HOD) recommended in the report that his performance was not satisfactory so his appointment should be terminated forthwith. In view of that the Human Resource Manager recommended on 3rd December, 2008 that Plaintiff’s appointment could not be confirmed so on 10th December, 2008 just about five days after his probation had lapsed, his appointment was terminated upon payment of one month’s notice to him.

The position of the law on termination upon notice or payment in lieu of notice 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. Unlike 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. However, 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 pay 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 and must pay damages for breach of contract.

In the current case the evidence shows that the performance of the Plaintiff during the probationary period was evaluated by his HOD on 2nd December, 2008. By the said evaluation, Exhibit K the performance of the Plaintiff was found not to be satisfactory so the HOD recommended that his appointment be terminated forthwith. On 3rd December, 2008, the Human Resource Manager approved the recommendation made by the HOD by stating that Plaintiff’s appointment could not be confirmed. So by 3rd December, 2008, the Defendant had decided that it would not confirm Plaintiff’s appointment. The evidence goes on to show that, the letter terminating Plaintiff’s appointment was written on 4th December, 2008 to take effect from 5th December, 2008. The letter was, however, signed by the Managing Director on 10th December, 2008 and handed over to the Plaintiff on 11th December, 2008.

So from the available evidence even though the letter was signed and handed over to the Plaintiff some few days after the probationary period there is no doubt that the Defendant had expressed the intention by the end of the probationary period that it was not satisfied with Plaintiff’s performance so it was not going to confirm the appointment of the Plaintiff. It is, therefore, the opinion of the court that in spite of the fact that the letter terminating the employment of the Plaintiff was signed and handed over to him after the probationary period it could not be faulted if the termination was done in accordance with other provisions of the conditions of service.

The court takes notice of the fact that Exhibit L, the conditions of service provides at Section 27.02 that in the event of an employee being found guilty of an offence under termination in accordance with the Schedule of Offences, the company may terminate the employee’s appointment by giving him one month’s notice or pay in lieu of notice. The said schedule of offences is not found anywhere in Exhibit L. Also no disciplinary procedure is provided in Exhibit L. Since no procedure is provided if the Defendant decides to terminate an employees’ appointment by giving him one month’s notice or one month’s salary in lieu of notice the Defendant cannot be said to have breached the conditions of service. It must be noted that the Plaintiff herein could have also terminated the contract of employment between him and the Defendant by just giving the Defendant one month’s notice or pay in lieu of notice without giving reasons and this would not be a breach of the conditions of service. So, on the authority of cases referred to herein, the Plaintiff having been given one month’s salary in lieu of notice the termination of his appointment is deemed to have been done in accordance with the Senior Staff Conditions of Service. The termination is, therefore, lawful and I so hold.

The next issue for determination is whether the Plaintiff having been paid the sum of GH¢6,798.85 including payment in lieu of notice he is estopped from claiming that the termination of his appointment was unlawful.

As per Exhibit M, the letter terminating Plaintiff’s appointment, Plaintiff upon termination of his appointment was paid the sum of GH¢6,798.85 made up of the following components:

i. One (1) month salary in lieu of notice.

ii. Two months’ salary as relocation allowance.

iii. His salary from 1st to 4th December, 2008.

iv. Fifteen (15) days’ leave accrued (pro-rata) commuted into cash.

v. Provident fund contribution (Accounts “A”) and an interest accrued thereon.

vi. Accrued bonus as at 4th December, 2008.

vii. Accrued leave savings.

viii. Accrued overtime as at 4th December, 2008.

The evidence before the court on this issue clearly shows that the Plaintiff accepted the said amount without protest. This was confirmed by the Plaintiff both in his reply to the statement of defence filed on 10th November, 2010 and during cross-examination on 18th May, 2012. He, however, contends that the acceptance of the payment does not make the termination of his appointment lawful. The relevant law on this is found in 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, opened 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 as has already been stated elsewhere in the judgment the Plaintiff accepted his benefits on termination without protest. He goes on to state in his address that payments made in respect of the benefits on termination were not gratuitous but unavoidable obligations and that payments under contract of employment or statute cannot constitute estoppel against the Plaintiff. With respect to learned counsel for the Plaintiff, that position of the law is wrong. It is observed that, the facts in Ashun v. Accra Brewery Ltd. (Supra) are similar to the facts in the current case. Just like in that case the Plaintiff herein accepted the benefits without objection. He neither rejected it nor stated that he was just accepting it under protest. After accepting the package Plaintiff turns round to take action against the Defendant for a declaration that the termination was unlawful.

Under general contract principles by accepting the payments made to him including one month’s salary in lieu of notice, the Plaintiff entered into a compromise agreement which extinguishes any claims he had against the Defendant in respect of the said unlawful termination of employment. So by accepting the package without protest, the Plaintiff has made the termination one by mutual agreement. He, therefore, had no cause of action against the Defendant. So by accepting the termination benefits which include payment in lieu of notice the Plaintiff is estopped from claiming that the termination of his appointment by the Defendant was unlawful and I so hold.

The last issue for determination is whether the Plaintiff is entitled to all the reliefs endorsed on the writ of summons. Having declared that the termination of the Plaintiff’s appointment was lawful, it follows that he is not entitled to any of the reliefs endorsed on his writ of summons. In view of that the court hereby dismisses all the reliefs endorsed on the writ of summons.

In conclusion I enter judgment for the Defendant against the Plaintiff. No order as to costs.

Appearances

MR. K. DANSO-ACHEAMPONG FOR THE PLAINTIFF

MR. JOSEPH KWADWO KONADU WITH MR. NELSON AKONDO FOR DAVID

ATTA ASIEDU FOR THE DEFENDANT.