EUNICE OPOKUA OTCHERE V. MONOLO PLANT LIMITED

JUDGMENT

DEKYEM, J.

Plaintiff was an employee of Defendant, the latter being a company registered  under the laws of Ghana. Plaintiff was engaged in September, 2010. In 2014,  Plaintiff claims she fell pregnant and upon resumption from maternity leave in  May, 2014, one Klaudia Raphael, her immediate boss told her that, she must give  the company some more time before conceiving again. It is Plaintiff’s case that,  she conceived again between October/November 2015 and her belly began to  protrude visibly in February, 2016. Plaintiff averred that, on 15th February, 2016,  Defendant handed her a letter headed “REDUNDANCY” terminating her  employment on that ground. Plaintiff contends that, her pregnancy was the reason for the termination of her appointment which amounts to unfair termination and further that, the redundancy award was determined unilaterally by Defendant without negotiation contrary to provisions under the Labour Act,  2003 (Act 651). Plaintiff therefore claims against the Defendant as follows:

1.  General damages for unfair termination,

2. The payment of 5 months’ salary for  each year she worked as an employee of the Defendant, as redundancy pay and  3. 15% of all the above as costs including legal fees. 

Defendant denied Plaintiff’s claim and contended that, although it used the word  ‘redundancy’ in the letter terminating her employment it was not a redundancy  and that payment made to Plaintiff were her entitlement. At directions stage, the  following issues were settled for trial: 

1. Whether or not the Plaintiff was declared redundant by the Defendant and terminated as such. 

2. Whether or not the Defendant terminated the Plaintiff’s employment through redundancy because of her pregnancy. 

3. Whether or not the Defendant negotiated the redundancy package with the Plaintiff. 

4. Any other issues arising from the pleadings 

The provisions regarding standard of proof in civil cases are found in the following  sections of the Evidence Decree, 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. 

It was held in Takoradi Flour Mills v. Samir Faris [2005-2006] SCGLR 882 -885 at  holding 4 that: “Since it was the plaintiff, …… who made a claim ……., he had to  adduce evidence sufficient to establish a prima facie case. When the plaintiff has  been able to discharge the burden of proof on him and has by his evidence,  established facts from which an inference can reasonably be drawn in his favour,  then the onus would shift on the ….defendant ...... to dispute that inference, not by  a mere denial, but by reasonable inference.” The onus is thus on Plaintiff to prove  her claim. Whether or not the Plaintiff was declared redundant by the Defendant  and terminated as such and whether or not the Defendant negotiated the  redundancy package with the Plaintiff? In other words if Plaintiff was declared  redundant, was she entitled to negotiation between her and Defendant for the  payment of redundancy pay? Plaintiff relied on exhibit B in support of her assertion that she was made redundant. The said exhibit B, from Defendant to  Plaintiff dated 15th February, 2016 states thus:

“REDUNDANCY  

We are writing to inform you that your service with the company is no more  required; management has therefore decided to terminate your  appointment today 15th February 2016. 

Please find attached your entitlements including your notice pay, leave pay  and February salary…..” 

The only provision on redundancy under the Labour Act, 2003 (Act 651) is section 65 which stipulates 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. 

Section 65 of Act 651 envisages two situations of redundancy. First is where an employer contemplates the introduction of major changes in production,  programme, organisation, structure or technology of an undertaking. In this  regard, both the Chief Labour Officer and the Union are consulted by the  employer with the view to averting or minimizing the termination as well as  finding mitigating factors such as alternative employment for affected workers. 

Secondly, redundancy occurs where an undertaking is closed down or undergoes  an arrangement or amalgamation and same results in the termination of the  employment contract. In this regard the worker is entitled to redundancy pay  which is subject to negotiation between the employer or its representative on the one hand and the worker or the trade union concerned on the other hand.  Section 229 of the Companies Code, 1963 (Act 179) defines "Arrangement" as  any change in the rights or liabilities of members, debentureholders or creditors  of a company or any class thereof or in the Regulations of a company, other than  a change effected under any of the foregoing sections of this Code or by the unanimous agreement of all the parties affected thereby; and "Amalgamation" as  any merger of the undertakings or any part of the undertakings of two or more  companies or of the undertakings or part of the undertakings of one or more  companies and one or more bodies corporate. In the instant suit, there is no  demonstration that, Defendant has closed down, or undergone an arrangement  or amalgamation which has resulted in the termination of Plaintiff’s employment.  There was also no evidence that, Defendant contemplated the introduction of  major changes in production, programme, organisation, structure or technology  within it. There is therefore no evidence to suggest that Plaintiff was declared  redundant by Defendant. Consequently, no duty of negotiation was cast upon the  parties herein. Plaintiff is thus not entitled to negotiation and rightly so,  Defendant did not oblige her. It was held in Acquaye v. Awotwi and Another [1982- 83] GLR 1110-1118 CA that, “it was a well-known rule of evidence that although  proof in a civil cases rested on the plaintiff, that burden was discharged, when  once the plaintiff had introduced sufficient evidence of the probability of his case” The onus is thus on Plaintiff to adduce sufficient evidence in support of her claim  that she is entitled to negotiation which she has failed to. Plaintiff’s employment  contract, exhibit A, did not provide for redundancy pay. The court finds that,  Plaintiff was not declared redundant even though the letter terminating her  appointment is headed “REDUNDANCY” thus not entitled to negotiation or redundancy pay. Plaintiff failed to discharge the burden she assumed having  made that assertion. 

Plaintiff admitted that, attached to exhibit B was a breakdown of her entitlement  upon termination including redundancy award. The said breakdown, also marked  as exhibit 4, showed Plaintiff’s entitlements as basic pay, notice pay and leave pay  at GHS1,797.54 each totaling GHS5,592.62 and a redundancy award of GHS  19,641.28 making a total of GHS25,033.90. An amount of GHS5,000.00 was  deducted from this total amount as loans Plaintiff owed, leaving a total net  amount payable to be GHS20,033.90. Exhibit 3, is evidence of receipt by Plaintiff  of the total net amount dated 17th February, 2016 and on Defendant’s letterhead which states as follows: 

“REDUNDANCY 

I Opokua Otchere Eunice HAVE RECEIVED AN AMOUNT OF 20,033.90 BEING  ALL ENTITLEMENTS DUE ME AND I HAVE NO MORE CLAIM (SIC) IN CASH OR  KIND FROM DESIMONE LTD.

SIGNED WITNESS” 

Exhibit 4 clearly shows that, Plaintiff received an amount of GHS20,033.90 in full  and final settlement of any future claim she may have against Defendant.  Although the undertaking was not to make any claim against Desimone Ltd, it was  on the letterhead of Defendant. The court will accept that, that undertaking was  in favour of Plaintiff’s employer, Defendant herein. It was held in Ashun v. Accra  Brewery Limited Civil Appeal No. J4/18/2007, 12th November, 2008 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 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.” The Ashun case further  held that: “The acceptance by the Plaintiff of the redundancy package offered him  by the defendant meant that the termination of his employment was not unlawful  or wrongful. We are not persuaded by the Plaintiff’s contention that the  redundancy package was unilaterally determined by the defendant company. It  was open to the Plaintiff to reject it, if he was so minded. By accepting the  package, he made the termination one by mutual agreement. He therefore had  no cause of action against the defendant.” 

By Plaintiff’s conduct of accepting the award offered her without protest, not only  did she enter into a compromise agreement extinguishing any future claims she  might have but also making the termination of her employment by mutual  agreement thus lawful. Plaintiff cannot bring any claim such as the instant one  against Defendant in respect of the termination of her employment. The issue  whether or not the Defendant terminated the Plaintiff’s employment through  redundancy because of her pregnancy is thus of no legal moment. Accordingly,  Plaintiff’s claim fails in its entirety and same is dismissed. Costs of GHS2,000.00 is  awarded in favour of Defendant.

 (SGD) 

Justice Gifty Dekyem (Mrs) 

Justice of the High Court

Labour Division I, Accra

COUNSEL

Aubrey Tamakloe ESQ for Plaintiff

William Addo ESQ for Defendant.