JOHN EDEY V. TESANO SPORTS CLUB

JUDGMENT

OWUSU, J.

Plaintiff on the 9th of December 2014 issued out a Writ of Summons and  Statement of Claim against the Defendant claiming the following reliefs:

1. A declaration that the termination of Plaintiff’s appointment as  General Manager of Tesano Sports Club is wrongful. 2. An order for the payment of compensation amounting to two (2)  years or 24 months’ salary. 3. Relocation cost of GH¢5,000.00 4. Legal Cost 

The Defendant filed a Statement of Defence and counterclaimed as follows:

a. Declaration that the termination of the Plaintiff’s appointment as  General Manager of Tesano Sports Club on or around 21st November, 2014 was done in accordance with the terms of the employment contract  and was therefore not wrongful. b. Costs.  

PLAINTIFF’S CASE 

The Plaintiff’s case as narrated in his Statement of Claim and his Witness  Statement filed on the 20th of October, 2015 is that on 16th June, 2014 he was  offered a contract of employment as the General Manager of the Defendant Club  under a one year renewal contract, effective 16th June 2014 and was initially  placed on a probationary period of three (3) months with the possibility of an  extension for a further three (3) months period if his performance was not  satisfactory and it is determined that this could be attributed to factors beyond his  control. According to the Plaintiff, he was placed on a basic salary of two  thousand Ghana Cedis (GH¢2,000.00) together with other benefits including fuel  allowance of thirty (30) liters per week, a mobile phone with one hundred Ghana  Cedis (GH¢100.00) of units per month and free medical care as well as free  entries for two guests at a time to the club. 

He state that he assumed duty and worked creditably such that on 24th October,  2015, which was the end of his probation period an appraisal was conducted by  the Honorary Secretary of the Defendant of which he was evaluated with good  marks for excellent performance. He tendered in evidence Exhibit E, the  evaluation report on him.  

Plaintiff further stated that three (3) months after his appointment as General  Manager, Defendant was now able to pay salaries and wages when hitherto it  struggled to do so. According to him he fixed the swimming pool, brought the  inherited debt of the Defendant down among many others. In the fifth month of  his work, Plaintiff claims he became sick and had excuse duty for two (2) weeks.  Upon his return to work and on the 21st of November, 2014, he received a letter  from the Chairman of the Council informing him of the termination of his appointment effective 24th November, 2014 for unsatisfactory performance.  According to him the staff evaluation done at the end of the probationary period  saw him scoring very high marks for good performance as such he could not have  been sacked for poor performance as claimed by the Defendant. 

It is his case that the termination of his employment is wrongful as it is contrary  to the terms of his employment since he is deemed to have been confirmed at the  end of the three months probationary period because he did not receive any  extension of his probationary period at the end of the term. It is his case further  that the decision to terminate his employment was unjustified, capricious and  without just cause and contrary to laid down procedures and the terms of his  contract.  

DEFENDANT’S CASE 

The Defendant sets out its defence to the instant action in its Statement of Defence  and Counterclaim and Witness Statement filed by Emmanuel Dormon on its  behalf on the 25th of November 2015. The Defendant’s case is that it was incorporated under the Trustees (Incorporation) Act, 1962 (Act 106). It averred that the termination of the Plaintiff’s contract of employment was not wrongful  but done in accordance with the terms of his employment contract. Defendant  stated that assuming without admitting that Plaintiff did not receive any notice of  extension of probation, the Defendant had met the terms and substance of its  obligation under the employment contract by paying Plaintiff one month salary  in lieu of notice. Defendant denied that Plaintiff performed creditably in all  aspects of his work and further averred that Plaintiff accepted the employment  with Defendant knowing that there was always the possibility of the employment  relationship being terminated for various reasons as per the employment contract. 

The following issues were set down as the issues for the trial:

1. Whether or not the termination on Plaintiff’s appointment by Defendant  was wrongful or unfair.2. Whether or not Plaintiff’s appointment as General Manager is deemed  to have been confirmed at the end of the initial three (3) months  probationary period.3. Whether or not Plaintiff is entitled to the reliefs sought.4. Whether or not Defendant is entitled to his counterclaim.

Defendant, though incorporated under the Trustees (Incorporation) Act, 1962  (Act 106) as a body corporate is governed by the Labour Act 2003 [Act 651]  by virtue of its status as an employer.  

I shall proceed to address issue 2 first. 

2. Whether or not Plaintiff’s appointment as General Manager is  deemed to have been confirmed at the end of the initial three (3)  months probationary period. 

Section 11(1) of the Evidence Act, 1975 (NRCD 323) provides that: “the burden of producing evidence means the obligation of a party to introduce  sufficient evidence to avoid a ruling on the issue against that party.” NRCD 323 further provides in Section 11(4) that: 

“In other circumstances the burden of producing evidence requires a party to  produce sufficient evidence which on the totality of the evidence, leads a  reasonable mind to conclude that the existence of the fact was more probable  than its non-existence.” 

In the case of ACKAH v. PERGAH TRANSPORT LTD 2010 SCGLR 728 at  731 the Supreme Court stated that: 

“…It is a basic principle of the law of evidence that a party who bears the burden  of proof is to produce the required evidence of the facts in issue that has the  quality of credibility short of which his claim may fail.” 

Exhibit A is the contract of employment, duly signed by parties. This employment  agreement thus governs the parties. It states among others as follows:

“……Contract duration: One year renewable from the effective date of  employment……Probationary Period: Three months which can be extended for up to a period of  a further three months if the Employees performance is unsatisfactory and it is  determined that this could be attributed to factors beyond your control. Your  appraisal will be based on your performance in achieving the monthly targets  below and any other criteria determined by Council and communicated to you at  the beginning of the probation period. Confirmation of probation is also  contingent on receiving satisfactory references from your last two Employers and  testimonials from your other Employers as well as a satisfactory Police  report……” 

After the probation period, the employer has the right to confirm or not to confirm  an employee. 

The effective date of Plaintiff’s employment with the Defendant is 16th June 2015.  Based on Exhibit A, the probation period is three (3) months. The three (3)  months’ probation period began on the 16th of June 2014 when he commenced  work and ended on 16th September 2014. Under cross examination and at page 3  of the record of proceedings of Friday the 15th Day of January, 2016 the  Defendant’s representative denied that Plaintiff’s probation ended on the 16th of  September 2014. He admits that in October and November 2014, the Plaintiff was  still working as General Manager of the Defendant but maintains that

“……My  lord the Plaintiff’s appointment letter gives the employer the option to extend the probation by a further three months if the performance in the first three months was unsatisfactory and this the Defendant sought to do by evaluating his  performance before coming to a conclusion as to whether it is satisfactory or  not.” 

Indeed if this were so, “up to a period of a further three months” would end  on the 16th of December 2014 and not 24th November 2014 when Plaintiff’s contract was terminated. Defendant had definitely not extended the probation  period as it was not up to a further three (3) months period. 

It is also the case of the Defendant that Plaintiff failed to meet the conditions  required of him in Exhibit A. This was what ensued between counsel for the  Plaintiff and the Defendant’s representative at page 4 of the record of proceedings  of Friday the 15th Day of January: 

Q: I am suggesting to you that after 16th September, 2014 the Defendant did  not write to extend Plaintiff’s probation but kept Plaintiff working as  General Manager through October and November 2014. Plaintiff’s  appointment was deemed as confirmed. A: My Lord I totally disagree with that assertion. I would like to further  emphasise the point I made earlier about the conditions precedent to his  confirmation in the position, that is providing references from his last two  employers as well as a satisfactory police report. None of these conditions were fulfilled by the Plaintiff. It cannot therefore be concluded that he  became duly confirmed on 16th September, 2014” 

If Plaintiff had not fulfilled these conditions, the Defendant should have  communicated this to him after the three (3) months, as to whether his probation  period would be extended for another three (3) months or not. By the Defendant’s  conduct, it is deemed to have confirmed Plaintiff as the General Manager of  Defendant. I find as a fact that Plaintiff’s appointment as General Manager is  deemed to have been confirmed at the end of the initial three (3) months  probationary period. 

I shall next address issue 1. 

1. Whether or not the termination of Plaintiff’s appointment by  Defendant was wrongful or unfair 

No employment contract can run in perpetuity. Dr. Date Bah JSC delivering the  judgment in the case of ASHUN v. ACCRA BREWERY LIMITED [2009]  SCGLR 81 @ page 84 paragraph 1 citing Wuaku JSC in NARTEY TOKOLI v. VOLTA ALUMINIUM CO. LTD [1987-88] 2 GLR 532 @ page  545, CA said:

“a contract of employment though it may be for an indefinite period, does not  mean life employment.” 

In the judgment of the Supreme Court in the case of KOBEAH AND OTHERS  v. TEMA OIL REFINERY; AKOMEA- BOATENG v. TEMA OIL  REFINERY (CONSOLIDATED) [2003-2004] SCGLR 1033 @ 1039 the court  said on the issue of termination of employment: 

“At common law, an employer and his employee are free and equal parties to the  contract of employment. Hence either party has the right to bring the contract to  an end in accordance with its terms. Thus an employer is legally entitled to  terminate an employee whenever he wishes and for whatever reasons, provided  only that he gives due notice to the employee or pay him his wages in lieu of the  notice. He does not even have to reveal his reason, much less to justify the  termination. Much of this is the positive application of the law of contract to  employment relationships. Of course, the situation can be unsatisfactory” 

Although one may say that with the passing of Act 651, Sections 15 and 63 seem  to suggest that the right to terminate employment does not depend on the whims  of the employer, the same Labour Act does not expressly preclude the employer  from terminating without assigning reasons provided only that due notices are  given. As stated at page 297 of the book LABOUR LAW by James Odartey Mills,  the pronouncement by Ansah JSC in the case of KOBI AND OTHERS V. MANGANESE COMPANY LTD [2007-2008] SCGLR 771 @790 is an obiter  dictum.

Section 12(1) and (2) of the Labour Act provides that the employment of a worker  by an employer for a period of six months or more or for a number of working  days equivalent to six months or more within a year shall be secured by a written  contract of employment and the contract of employment shall express in clear  terms the rights and obligations of the parties. 

It is trite law that where parties have entered into a contract or an agreement and  same has been reduced into writing it is from that document that the court must ascertain the intention of the parties and to construe the contract in terms of that  document. Where there are express terms in the contract of employment on notice  periods for terminating employment, parties are bound. Under the Labour Act, in  the absence of any express notice period in the contract of employment or in the  absence of a more favourable term in the contract, Section 17 of Act 651 provides  for the notice period. 

Exhibit A further provides: 

“……Notice and Termination: This appointment can be terminated by either  party giving one two weeks’ notice during the probation period, two months’  notice after confirmation of employment, or one month’s pay in lieu……”

Exhibit 7 series is documentary evidence. In the case of NABILLA v. ADAM  and 3 OTHERS [2014] 71 GMJ CA it was stated at page 49 that  “Documentary evidence is not sacrosanct though it is always to be preferred  where it is authentic and oral evidence conflicting”. 

The practice of the Court is to lean favourably towards documentary evidence.  Exhibit 7 is proof of the fact that Plaintiff was paid in lieu of notice. I find this as  a fact.  

Defendant has however given reasons for terminating Plaintiff’s employment. Defendant claims that Plaintiff’s employment was terminated because the Plaintiff did not perform creditably. Once these reasons have been given,  Defendant has to justify same. 

At page 7 of the record of proceedings for Friday the 15th Day of January, 2016,  the Defendant’s representative under cross-examination had this to say;

Q. “By exhibit B dated 21st November, 2014 Plaintiff’s appointment was  terminated based on an appraisal covering the period 16th June to October 2014.  Am I right?” A: Yes you are right” 

Defendant’s EXHIBITS 2 to 6 are queries to Plaintiff and responses from him.  Section 15(e) (ii) of Act 651 states that a contract of employment may be terminated by the employer because of the inability of the worker to carry out his  or her work due to the incompetence of the worker. There is no evidence to  suggest Plaintiff was incompetent. Defendant has not justified this assertion.  

3. Whether or not Plaintiff is entitled to the reliefs sought.

• The court hereby declares that the termination of Plaintiff’s appointment  as General Manager of Tesano Sports Club is wrongful. 
• The usual remedy for wrongful or unlawful dismissal and termination of  employment is damages or compensation. The Plaintiff is entitled to  damages for wrongful termination. 

In the case of KOBI v. GHANA MANGANESE CO. LTD (supra) the  Supreme Court held in holding 2 that in assessing damages for wrongful  dismissal, the court must have regard to all the circumstances of the case  considered as fair and reasonable. The Plaintiff was with the Defendant  from 16th June 2014 to 24th November 2014. The court hereby orders the  Defendant to pay the Plaintiff compensation based on three (3) months’  salary at the time of his termination which the Court deems fair and proper. 

• Plaintiff is asking for relocation cost of GH₵5,000.00. No evidence was  provided to indicate that Plaintiff was paid any relocation fee as a condition  of employment. Exhibit A does not provide for any such payment. The  court is of the view that Plaintiff is not entitled to any such award.  Accordingly his claim for relocation fee is hereby dismissed. 
• Cost of one thousand Ghana Cedis (GH₵1,000.00) is awarded in favour of  the Plaintiff. 

Defendant has filed a Counterclaim. Whenever a defendant files a counterclaim,  the same standard or burden of proof would be used in evaluating and assessing  the case of the defendant. The Defendants thus assume this same burden of proof. In the case of JASS CO. LTD v. APPAU [2009] SCGLR 269 @ 271 Dotse JSC  noted thus:

“…whenever a defendant also files a counterclaim, then the same standard or  burden of proof would be used to evaluating and assessing the case of the  defendant just as it was used to evaluate and assess the case of the plaintiff  against the defendant” 

The Court has found as a fact that the termination of Plaintiff’s appointment as  General Manager of Tesano Sports Club on 24th November 2014 was wrongful.  The Defendant’s Counterclaim fails and is hereby dismissed.

(SGD) 

JUSTICE LAURENDA OWUSU 

JUSTICE OF THE HIGH COURT

COUNSEL

OPOKU BOATENG FOR PLAINTIFF – PRESENT

ANTWIWAA ASANTE FOR ANDREW DANIELS FOR THE DEFENDANT – PRESENT.