SAMUEL A. DANKWA V. GHANA TELECOMMUNICATIONS CO. LTD

RULING

 ASUMAN-ADU, J.

The Plaintiff issued out writ of summons against the Defendant on 16th August, 2010 for the following reliefs:-

a. Damages for wrongful dismissal.

b. Damages for defamation conveyed by the purported dismissal of Plaintiff.

c. An order for the payment of Ten Thousand Ghana Cedis (GH¢10,000.00) being Plaintiff’s entitlement as incentive package or sales commission.

d. Interest on (c) from 24th May, 2010.

e. An order for the payment of the sum of Six Thousand, Six Hundred Ghana Cedis (GH¢6,600.00) being Plaintiff’s entitlement as provident fund.

f. Interest on (c) from 24th May, 2010.

g. An order for the payment of the sum of Two Thousand, Nine Hundred and Seventy-Six Ghana Cedis (GH¢2,976.00)

h. Interest on (g) from 24th May, 2010.

i. Punitive costs of litigation.

The Defendant entered appearance on 18th August, 2010 and went on to file its statement of defence on 1st September, 2010 denying Plaintiff’s claim. It counterclaimed as follows;-

a. An order for the Plaintiff to pay the Defendant an amount of Seven Thousand, Five Hundred Ghana cedis (GH¢7,500.00) being the sum owed to the Defendant as a result of the Plaintiff’s failure to give the Defendant the required 3 months notice under the terms and conditions of his contract of employment.

b. Damages for breach of contract.

c. Interest on Seven Thousand, Five Hundred Ghana cedis from 24th May 2010 to date of final payment.

On 23rd September, 2010 the Plaintiff filed an application for directions in which it listed the following issues for trial:-

a. Whether or not there was a collective agreement which regulated Plaintiff’s employment.

b. Whether or not the provision in the terms and conditions of Plaintiff’s employment requiring Plaintiff to give three months’ notice of his desire to terminate his employment, was lawful.

c. Whether or not Section 19 of the Labour Act applied to Plaintiff’s employment with Defendant.

d. Whether or not Defendant was obliged to accept one month’s salary in lieu of notice consequent on the termination by Plaintiff of his employment with immediate effect.

e. Whether or not the purported summary dismissal of Plaintiff by Defendant was defamatory.

f. Whether or not the purported summary dismissal of Plaintiff by Defendant was defamatory.

g. Any other issue(s) arising on the pleadings.

The Plaintiff went on to state that issues (b), (c) and (d) be set down for preliminary legal arguments.

On 11th October, 2010 the Defendant filed the following additional issues:-

a. Whether or not the Plaintiff abandoned his position or post.

b. Whether or not Plaintiff breached the terms of his employment by resigning without giving the required notice.

c. Whether or not Plaintiff is entitled to commission during the period Plaintiff was not at post.

d. Any other issue(s) arising out of the pleadings.

On 4th November, 2010 the Court set down all the issues filed by both the Plaintiff and the Defendant for trial and went on to set down issues (b), (c) and (d) filed by the Plaintiff for preliminary legal arguments.

According to the Plaintiff he tendered in his resignation to the Defendant on 24th May, 2010 with immediate effect but the Defendant rejected it on the ground that Plaintiff was required to give three months’ notice of his resignation as per Defendant’s conditions of service. When the Plaintiff failed to report for work on 7th June, 2010 the Defendant summarily dismissed the Plaintiff.

Counsel for the Plaintiff submits that the three months’ notice required from an employee who wants to resign from the employment of Defendant company is unlawful in the light of provisions governing the Plaintiff’s employment as indicated in Section 17 of the Labour Act, 2003 (Act 651). He goes on to submit that Plaintiff’s employment was subject primarily to the Labour Act. He referred to Section 17(1) of the Act on “Notice of Termination of Employment” and submitted that by the provision in the Act any employee has the right to terminate his employment with an employer by giving one month’s notice in writing or one month’s pay in lieu of notice.

Counsel for the Plaintiff goes on to argue that by the provision in Plaintiff’s contract of employment that he should give three months’ notice or three months’ pay in lieu of notice if he wants to resign Plaintiff’s right to terminate his employment is being restricted. By the provision in Section 19 of the Act, the provision in Section 17 of the Act is more beneficial to the Plaintiff and by that the provision in the contract of employment is unlawful. So by Section 17 of the Act the Plaintiff is entitled to give one month notice or one month pay in lieu of notice in order to resign from Defendant’s employment and not three months’ notice or three months’ salary in lieu of notice as provided by the contract of employment.

In his submission counsel for the Defendant referred the Court to Section 12 of the Act and submitted that whilst in that provision the word “shall” is used in Section 17 of the Act the word “may” is used. So by the rules of interpretation “shall” is mandatory while “may” is permissive. In view of that the Defendant and the Plaintiff entered into a contract. By the terms of the contract “where either party wishes to terminate the agreement three months’ notice was required”. The Defendant was, therefore, not obliged to accept one month salary in lieu of notice upon termination by the Plaintiff of his contract with immediate effect. So to counsel for the Defendant the contract of employment does not restrict the Plaintiff’s rights to resign in any way. Rather it is enforceable contract between the two parties which the Plaintiff failed to abide by.

According to counsel for the Defendant the three months’ notice required by the contract of employment is not lawful and that the Labour Act allows employers and employees to enter into contracts of employment to quite clearly state what should govern their employment. So the Plaintiff’s bid to give less than one month notice by effectively resigning with immediate effect is unlawful. The Defendant was perfectly within the terms of agreement that three months, notice was what was required and agreed between the parties.

The issues under consideration are:-

(b) Whether or not the provision in the terms and conditions of Plaintiff’s employment requiring Plaintiff to give three months’ notice of his desire to terminate his employment, was unlawful.

(c) Whether or not Section 19 of the Labour Act applied to Plaintiff’s employment.

(d) Whether or not Defendant was obliged to accept one month’s salary in lieu of notice consequent on the termination by Plaintiff of his employment with immediate effect.

Relevant sections of the Labour Act, 2003 (Act 651) under consideration as far as this ruling is concerned are 12, 17(1) (a), 18(4) and 19. In terms of the contract of employment between the parties the relevant provision is found under “Notice To Terminate Employment” at page 7.

Section 17(1) (a) of the Act provides as follows:-

“(1) A contract of employment may be terminated at anytime by either party giving to the other party.

(a) In the case of a contract of three years or more, one month’s notice or one month’s pay in lieu of notice;”

Section 18(4) goes on to provide that:

“Notwithstanding section 17(1), either party to a contract of employment may terminate the contract without notice if that party pays to the other party a sum equal to the amount of remuneration which would have accrued to the worker during the period of notice.”

So from sections 17 and 18 as shown above the Act provides that parties to a contract of employment may terminate the employment by giving to the other party one month’s notice or one month’s salary in lieu of notice.

On contract of employment the Act provides at Section 12 as follows:-

“(1) 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.

(2) A contract of employment shall express in clear terms the rights and obligations of the parties.”

It is in view of this provision that the parties herein entered into a contract and by the terms of their contract as stated under “Notice To Terminate Employment” at page 7, each of the parties is to give the other party three months’ notice to terminate the employment. This shows that while the Labour Act provides for one month notice, the contract of employment between the parties provides for three months’ notice. So the question is which of them is applicable in the current case?

Section 19 of the Act provides the answer for that question. It provides as follows:-

“The provisions of sections 15, 16, 17 and 18 are not applicable where in a collective agreement there are express provisions with respect to the terms and conditions for termination of the contract of employment which are more beneficial to the worker.”

By the terms of section 19 there should be a collective agreement but nothing of that sort was shown to Court. This is because by Section 96 of the Act a collective agreement refers to conditions of employment of workers concluded between trade unions and employment. What was shown to Court is terms and conditions of service for senior staff which is not a collective agreement. However, granting that it represents contract of employment between the parties the provision in Section 17 of the Act becomes more applicable to the current case than the provision in the contract of employment. This is because Section 19 of the Act, oust the provision in Section17 where in a contract of employment there are express provisions with respect to the terms and conditions for termination of the contract of employment which is more beneficial to the worker. The only problem here is that the Act does not define what it means by “more beneficial to the worker” but from the evidence before the Court so far the Plaintiff considers the provision in Section 17 of the Act as being more beneficial to him. It is observed that the emphasis of section 19 is on where the provision is “more beneficial to the worker” and not to the parties or the employer. The intention of the framers of the Act was to protect the worker and it must be interpreted as such. It is not for this Court to read meanings into the provision. Any contrary interpretation of the provision will amount to re-writing it which is a function for the legislature and not me.

In the light of the foregoing the issues under consideration are resolved as follows:-

Issue (b)

In view of the provision in Section 17 of the Labour Act that parties to a contract of employment may terminate it by giving one month’s notice to the other party, the provision in the contract of employment that the Plaintiff is to give three months’ notice of his desire to terminate his employment is unlawful.

Issue (c)

To the extent that the provision in the contract of employment that the Plaintiff is to give three months’ notice of his desire to terminate his employment is not beneficial to the Plaintiff, Section 19 of the Act is not applicable to Plaintiff’s employment with the Defendant.

Issue (d)

In view of the fact that Plaintiff’s employment with the Defendant is governed by the provision in Section 17 of the Labour Act, the Defendant was obliged to accept one month’s salary in lieu of notice consequent on the termination by Plaintiff of his employment with immediate effect.

SGD

KWABENA ASUMAN-ADU J.

JUSTICE OF THE HIGH COURT

COUNSEL

MR. GODFRIED YEBOAH DAME FOR THE PLAINTIFF/APPLICANT

MR. SAM KORANTENG FOR THE DEFENDANT/RESPONDENT