CHRISTIAN ADU-AMANING V. THE COCA-COLA BOTTLING CO. GH. LTD.

JUDGMENT

ASUMAN-ADU, J.

On 3rd February, 2009, the plaintiff instituted an action against the defendant and pursuant to this court’s order on 22nd day of April, 2009 he filed an amended writ and statement of claim on 5th May 2009 claiming as follows:-

(a) A declaration that by virtue of verbal utterances made by the defendant’s Chief Executive Officer and General Manager at a meeting on the 22nd January 2009 convened at the defendant’s premises to the effect that the plaintiff and one Emmanuel Duker are fired the defendant had unlawfully, wrongfully and unfairly terminated the plaintiff’s appointment.

(b) A declaration that by the unlawful, wrongful and unfair termination of the plaintiff’s appointment by the defendant, the plaintiff had been declared redundant.

(c) General damages for unlawful, wrongful and unfair termination.

(d) An order compelling the defendant to pay the plaintiff all his End of Service Benefits as contained in the defendant’s own Conditions of Service for Executive Managers with specific reference to Clause 17(d) on redundancy.

(e) Interest on total computed End of Service Benefit from date of termination to date of final payment.

The defendant entered appearance on 10th February, 2009 and went on to file its statement of defence on 2nd March, 2009 denying the claim of the plaintiff. It counterclaimed as follows:-

a. A declaration that the plaintiff’s refusal to report for work after the expiration of the excuse duty amounts to a termination of his employment without giving the defendant three months notice as required under the plaintiff’s conditions of service;

b. An order that the plaintiff pays the defendant the sum of GH¢12,000.00 (Twelve Thousand Ghana Cedis) being the plaintiff’s three months salary for termination in lieu of notice;

c. All legal fees incurred by the defendant in defending this suit.

On 12th March 2009, the plaintiff filed an application for directions in which he listed several issues and on 24th March 2009 the defendant filed additional issues in which he listed two issues. The court set down all the issues listed for trial as follows:

Issues filed by the plaintiff are:-

a. Whether or not the plaintiff discharged his duties creditably to the defendant and received bonuses and pay rises in recognition of his contribution to the defendant’s business.

b. Whether or not the plaintiff scored very high marks on his 2008 Job Evaluation Form as he had done in all previous evaluations.

c. Whether or not the plaintiff as Supply Chain Manager was responsible for developing, implementing and managing the total purchasing strategy for imports including the screw caps.

d. Whether or not it is ECCBC Procurement Department in Barcelona who are responsible for the determination of the defendant’s purchasing strategy for imports including screw caps.

e. Whether or not the effective management of inventory to support production is the responsibility of the Business Development Manager or the Plaintiff.

f. Whether or not the plaintiff was incompetent.

g. Whether or not at the 22nd January, 2009 meeting the defendant’s General Manager in the person of Conrad Van Nickerk stated that the plaintiff and Mr. Emmanuel Duker the Procurement Manager are fired from the defendant’s employment.

h. Whether or not at the said meeting of 22nd January, 2009 the plaintiff did in fact state to the defendant’s General Manager that he could not be fired for the shortage of the screw caps as that was not his responsibility but rather that of the Business Development Manager.

i. Whether or not at the said meeting of 22nd January, 2009 the defendant’s General Manager did tell the plaintiff and Emmanuel Duker that they had the option to resign by 26th January, 2009 or he would “force them out”.

j. Whether or not the alleged shortage of the screw caps fell within the ambit of the Commercial Manager and the Business Development Manager.

k. Whether or not the defendant has failed or refused to recall him to work and whether or not the defendant has assigned any reason for his termination.

l. Whether or not the defendant’s conduct violates the Labour Act and the defendant’s Condition of Service for Executive Managers.

The additional issues filed by the defendant are:-

i. Whether or not the plaintiff, by his conduct, has wrongly terminated his employment with the defendant.

ii. Whether or not the defendant is entitled to its counterclaim.

The case for the plaintiff is that until 22nd January, 2009, he was working at the defendant company as the Supply Chain Manager in the Executive Management grade. He claims that he started working at the defendant company from 5th of November, 2001. He, therefore, worked in the defendant company for about seven years. On 22nd January, 2009 there was an emergency meeting at the defendant company’s Board Room attended by all the Executive Managers. At the said meeting the Chief Executive and the General Manager of the defendant company informed the Manager’s present that there had been a 2 to 3 weeks shortage of screw caps for PET Carbonated Soft Drink production which he found unacceptable and that he holds the plaintiff and one Emmanuel Duker, the Procurement Manager (Overseas) responsible. The Chief Executive continued that by reason of the shortage aforesaid, he declared that the plaintiff and Emmanuel Duker were fired from the defendant’s employment.

The plaintiff goes on to aver that he informed the Chief Executive that he could not be fired for the shortage of screw caps because he was not responsible for the sales forecast (which is the responsibility of the Commercial Manager) and the planning on quantities and timing for procurement to order and deliver material imports (which is the responsibility of the Business Development Manager). In spite of the explanation aforesaid, the Chief Executive remained adamant and said the plaintiff Emmanuel Duker had the option to resign by 26th January, 2009 (within 4 days) or he would “force them out”.

The plaintiff contends that the decision of the Chief Executive to terminate his employment on tramped up charges was calculated to push the plaintiff out of his job and fill his position with an expatriate. He claims it was as a result of this that he issued a memorandum on 5th January, 2009 to all staff of the defendant company informing them of the company’s intention to “re-look” at its commercial structure generally and specifically to “re-look” at the warehousing, logistics, transport, procurement and supply chain and undertake “role sorts, alignment and coordination” of that section which fall under the remit of the plaintiff as Supply Chain Manager. The memorandum, therefore, targeted the plaintiff’s position and singled it out for detailed mention therein for the so-called “role sorts alignment and coordination”

The plaintiff goes on to aver that even though the alleged shortage of screw caps fell under the ambit of the Commercial Manager and Business Development Manager, the Chief Executive refused to hold them responsible because both of them are expatriates and rather found it easier to lay the blame on the plaintiff and Emmanuel Duker, who are local managers.

The plaintiff contends that the defendant has failed and/or refused to recall him to work and has also refused to give him a letter stating the reasons for his termination and the plaintiff’s health has been adversely affected. He goes on to contend that the purported termination of his employment by the defendant offends against Section 63(4) of the Labour ACT and Clause 17(c) of the Conditions of Service for Executive Managers of the defendant company. The plaintiff is, therefore, claiming as per the endorsement on the writ of summons.

The case for the defendant is that as the Supply Chain Manager the plaintiff was responsible for inter alia, developing, implementing and managing the total purchasing strategy for the business, and establishing efficient supplier networks and partnerships to ensure uninterrupted flow of highly-quality cost-competitive goods and services. He, therefore, had the responsibility to ensure that all materials required for production were readily available. The position of the Supply Chain Manager is so critical to the business of the defendant that the slightest incompetence will adversely and irreversibly affect the fortunes of the defendant. As the person in charge of the distribution of materials for production, the plaintiff ought to have known that the stock of screw caps was depleting and, therefore, the purchase of new quantities timeously was critical to ensure continuous production. Rather, the plaintiff failed to keep an effective inventory system and this manifest incompetence led to a huge loss of revenue and dealership relationships to the defendant. This is because the shortage of screw caps led to a key product of the defendant not being produced for a period of 2 to 3 weeks, damaging the defendant’s brand and position in the market.

According to the defendant this loss of revenue and dealership relationships would not have occurred but for the plaintiff’s incompetence in handling the affairs of the department of which he was the head.

The defendant goes on to contend that the memorandum of 5th January, 2009 which the plaintiff referred to was to ensure that the company was run in a more commercially efficient manner.

It contends further that the plaintiff at all material times remained an employee of the defendant who had merely taken some days off duty due to ill-health and was expected to return when the period of the excuse duty expired. This is because the plaintiff submitted an excuse duty duly signed by a medical officer of the Sakumono Multiplex Hospital excusing him for 4 days from January 26, 2009. Subsequent to that the plaintiff submitted another excuse duty from the same hospital for another 8 days from January 30, 2009.

It is the contention of the defendant that after the meeting of 22nd January, 2009 when plaintiff claims he was fired by the defendant, he continued to enjoy all the privileges of his employment including his official vehicle, his mobile phone and security provided in his residence among others signifying that he remained an employee of the defendant company. It, therefore, came to the defendant as a surprise when it was served with the plaintiff’s writ of summons while the second excuse duty had not run out. From the plaintiff’s behavior, it is clear that he misled the defendant into believing that he was taken ill by submitting the excuse duty to the defendant while he took steps to terminate his employment without the 3 months notice required under the plaintiff conditions of service.

The defendant, therefore, counterclaims for the sum of GH¢12,000.00 from the plaintiff being payment in lieu of three months notice the plaintiff should have given for his resignation from the employment of the defendant company. It also counterclaims from the plaintiff all legal fees incurred by the defendant in defending this suit.

As stated in this judgment several issues have been set down by this court for determination. However, considering the nature of the reliefs before the court, the main issues that are relevant for determination of this case will be grouped as follows:-

a. Whether or not at the 22nd January, 2009 meeting the Chief Executive and General Manager of the defendant company in the person of Conrad Van Niekerk stated that the plaintiff and Mr. Emmanuel Duker, the Procurement Manager were fired from defendant’s employment and that they had the option to resign by 26th January, 2009 or he would “force them out”

b. Whether or not the alleged behavior of the Chief Executive, if it actually happened amounts to termination of plaintiff’s employment from defendant company.

c. Whether or not by submitting two signed excuse duty notes to the defendant company, the plaintiff recognized the position of the defendant as an employer and, therefore remained an employee of the defendant company as at the time he filed his writ against the defendant.

d. Whether or not the plaintiff is entitled to his claim.

e. Whether or not the plaintiff, by his conduct, has wrongfully terminated his employment with the defendant company.

f. Whether or not the defendant is entitled to his counterclaim.

I will now proceed to evaluate the evidence before the court as regard the issues that have been identified by this court as being relevant for the determination of this case. I will take the issues seriatim. The first issue is whether or not at the 22nd January, 2009 meeting the Chief Executive and the General Manager of the defendant company in the person of Conrad Van Niekerk stated that the plaintiff and Mr. Emmanuel Duker, the Procurement Manager were fired from defendant’s employment and that they had the option to resign by 26th January, 2009 or he would force them out.

On this issue the evidence before the court as presented by the plaintiff is that on 22nd January, 2009, when he reported for work, he was invited by the Chief Executive’s Secretary around 9:50 am to an emergency meeting at the defendant company’s Board Room at 10 am. At the meeting, the following Executive and Sectional Managers were present:-

Conrad Van Niekerk - Chief Executive Officer and General Manager

Anton Van Zyl - Commercial Manager

Dan Larbi-Tieku - Financial Manager

Lolu Akinyemi - Business Development Manager

Daniel Amekudzi - Personnel Manager (Ag. Human Resource Manager)

Emmanuel Duker - Procurement Manager (Overseas)

Chris Adu-Amaning - Supply Chain Manager

The meeting started by the Chief Executive informing the Managers present that there had been a two to three weeks shortage of screw caps for PET Carbonated Soft Drink production which he found unacceptable. He, therefore, held the plaintiff and Emmanuel Duker, the Procurement Manager (Overseas) responsible. The Chief Executive continued that by reason of the shortage aforesaid, the plaintiff and Emmanuel Duker were fired from defendant’s employment. At that stage the plaintiff told the Chief Executive that he could not be fired for the shortage of screw caps because he was not responsible for the sales forecast which was a determinant in ordering materials. The plaintiff went on to say that he had responsibility basically for procurement which would only act when the request was placed before it. So when there was a shortage it was not his duty so he could not be fired. In spite of the explanation offered by the plaintiff, the Chief Executive remained adamant and said the plaintiff and Emmanuel Duker were given four days, that is, up to 26th January, 2009 to submit their resignation letters or he would force them out. The plaintiff told him that he would take the matter to whatever level to ensure his rights were respected.

The evidence of the plaintiff on the issue was corroborated by Daniel Kobla Amekudzi who was also at the meeting. He was the Personnel Manager and the acting Human Resource Manager of the defendant company. He told the court that at the meeting the Chief Executive of the defendant company held the plaintiff responsible for shortages of some materials and said that he was causing loss to the company. In the process the Chief Executive said the plaintiff was fired. This led to exchanges between them. Subsequently, the Chief Executive said that he was given him the opportunity to resign in 24 hours time and that if he did not avail himself of the opportunity then there was exit.

The defendant on the other hand denied that at the meeting, the Chief Executive told the plaintiff and Emmanuel Duker that they were fired and that they had been given four days to resign their positions. According to the defendant per Lolu Akinyemi who gave evidence on behalf of the defendant, the Chief Executive was visibly angry and upset at the meeting of 22nd January, 2009. This was because there was shortage of screw caps as a result of which they could not produce PET bottles. He, however, said that the Chief Executive did not fire the plaintiff as well as Emmanuel Duker at the meeting. So from the evidence before the court, can it be said that the Chief Executive actually told the plaintiff and Emmanuel Duker that they were fired and that they had four days within which they should resign their positions?

The plaintiff and his witness say the Chief Executive said at the meeting that they were fired. The plaintiff said he could not be fired since he was not responsible for the shortage of the screw caps but the defendant said the Chief Executive never said that.

This implies that the evidence of the plaintiff and his witness and that of the defendant boils down to oath against oath. This court must, therefore, examine the evidence of the witnesses critically and find out which of the evidence adduced is more probable. This is because the onus of proof on a party in civil cases is on a balance of probabilities. See Section 14 of the Evidence Act, 1975 (NRCD 323)

According to the plaintiff when the Chief Executive told him he was fired he got up and challenged him that he could not be fired since he was not responsible for the shortage. This evidence was corroborated by PW1 who went on to say that there were exchanges between the two of them. Lolu Akinyemi who gave evidence on behalf of the defendant admits that the meeting was held in a tensed mood. It is, therefore, more likely that the Chief Executive in his hysterical mood uttered those words that the plaintiff and Emmanuel Duker were fired and when he was challenged by the plaintiff he went on to say that they had the option to resign in four days time. So on a balance of probabilities those words were uttered by the Chief Executive of the defendant company and I so hold.

The next issue is whether or not the behavior exhibited by the Chief Executive towards the plaintiff amounts to the termination of plaintiff’s employment from the defendant company. In other words whether by uttering those words the Chief Executive actually meant that the plaintiff’s employment had been terminated.

By Exhibit C, the Conditions of Service for Executive Managers of defendant company at page 7 Clause A 17(c), the defendant company may terminate the appointment of an Executive Manager with notice or pay in lieu of notice, if he is found guilty of an offence which merits termination of appointment in the opinion of the company. Clause C 17(c) of Exhibit C goes on to state that three months’ notice or payment in lieu of notice will be given for termination of employment. This implies that for the employment of an Executive Manager of the defendant company to be terminated, he must be given three months’ notice or payment in lieu of notice. The provision on the three months’ notice or payment in lieu of notice found in the Conditions of Service was repeated in Exhibit three, the appointment letter of plaintiff in which it states as follows:-

“After successful completion of probationary period, termination/resignation will be on the basis of three (3) months’ written notice on either side or payment in lieu thereof.”

This implies that the defendant may terminate the appointment of an Executive Manager by given him three months’ written notice or payment in lieu of notice. Much the same way if the employee wants to resign he must also give the defendant three months’ written notice or payment in lieu of notice. So from the exhibits referred to the defendant cannot terminate the employment of an Executive Manager verbally without being given three months’ notice in writing or payment in lieu of notice. On the other hand the employee cannot resign without giving the defendant three months’ notice in writing or payment in lieu of notice. Since by the terms of plaintiff’s employment the defendant cannot terminate plaintiff’s employment except after given him three months’ written notice or payment in lieu of notice, the defendant has no right whatsoever to terminate his employment verbally. This shows that even though in his hysterical mood the Chief Executive told the plaintiff that he was fired that does not amount to termination of his employment by the defendant.

The next issue for consideration is that whether or not by submitting two signed excuse duty notes to the defendant company, the plaintiff recognized the position of the defendant as an employer and, therefore, remained an employee of the defendant company as at the time he filed his writ against the defendant.

The evidence goes on to show that it was on 22nd January, 2009 that the Chief Executive of the defendant company told the plaintiff that he was fired and that he had the option to resign in four days’ time or he would be forced out. The plaintiff, therefore, claims that effectively the termination of his employment takes effect from 22nd January, 2009. Meanwhile, he submitted an excuse duty to the defendant that he was unfit for work for four days with effect from 26th January, 2009. This was to expire on 29th January, 2009 implying that he should have reported for work on 30th January, 2009. However, on that day he submitted another excuse duty showing that he was unfit for work for another eight days with effect from 30th January, 2009. So the question one may ask is if plaintiff’s employment had been terminated with effect from 22nd January, then why did he submit the excuse duty notes to the defendant? Excuse duty is submitted to an employer so by submitting those notes to the defendant, it implies that the plaintiff at that time recognized the defendant as his employer. That is he did not accept that his employment had verbally been terminated by the defendant. He, therefore, as at that time remained an employee of the defendant company.

The evidence also shows that in spite of the words uttered by the Chief Executive that the plaintiff was fired, the defendant continued to recognize the plaintiff as its employee. This explains why it paid him in January and February. Even the plaintiff claims that he was fired with Emmanuel Duker but the evidence shows that Emmanuel Duker is still in the employment of the defendant company as the Procurement Manager. This shows that, even though the Chief Executive in his hysterical mood said at the meeting of 22nd January, 2009 that the plaintiff and Emmanuel Duker were fired he did not mean it. It was rather the plaintiff who took the words seriously as a result of which he reacted by not going to work and subsequently filing a suit against the defendant.

From the evidence before the court the verbal utterances made by the Chief Executive to the effect that the plaintiff and one Emmanuel Duker were fired could not amount to termination of employment. Also subsequent submission of two excuse duty notes to the defendant by the plaintiff and the payment of the plaintiff’s January and February salaries in 2009 by the defendant to the plaintiff which were accepted by him show that he still remained an employee of the defendant company as at the time he filed the suit against the defendant. It cannot, therefore, be said that the plaintiff’s employment had been wrongfully terminated at the time he filed the current writ on 3rd February 2009. The plaintiff is, therefore, not entitled to his claim.

The next issues are about the defendant’s counterclaim. The first one is whether or not by submitting the two excuse duty notes to the defendant, the plaintiff has wrongfully terminated his employment with the defendant company.

This court has established that in actual fact the Chief Executive of the defendant company told the plaintiff on the day in question that he was fired. According to the plaintiff this affected his health and had to report to the hospital. Since he still had properties of the defendant in his custody he had not completely left the employment of the defendant. This explains why between 22nd January, 2009 and 26th January, 2009 he still sent e-mails to some of the workers making certain enquiries in connection with his functions as an employee of the defendant company.

There is no evidence from the proceedings that the plaintiff had got another job as at the time he issued the writ. So the question is what motive will the plaintiff who was in a very senior position have in alleging that he had been fired if that was not what had happened? Why will he seek to fire himself from a lucrative job that he had held for over seven years? In the opinion of the court the plaintiff took the threat of the Chief Executive seriously. This explains why he stated that he would take the matter up to whatever level to ensure that his rights were respected and went on to issue the writ. Even though the court does not consider the said threat as termination of plaintiff’s employment it is the opinion of the court that if the Chief Executive had not uttered those words the plaintiff would not have left the employment of the defendant. It is, therefore, the opinion of the court that the plaintiff was prompted by the defendant to stay away from work so it cannot be said that he has wrongfully terminated his employment with the defendant company. It is rather the behavior of the Chief Executive that has compelled him to terminate his employment with the defendant. In view of that it will be unfair to declare that the plaintiff has wrongfully terminated his employment so he should be ordered to make payment in lieu of notice to the defendant. The defendant is, therefore, not entitled to its counterclaim.

In conclusion, judgment is entered in favour of the defendant against the plaintiff. However, considering the nature of the evidence before the court, the court has decided not to award costs in the case so none of the parties is entitled to be paid costs.

SGD

KWABENA ASUMAN-ADU J

JUSTICE OF THE HIGH COURT

COUNSEL

MR. LARRY OTU FOR THE PLAINTIFF/APPLICANT

MR. DAVID ASIEDU WITH MR. ERIC AGUDAH FOR THE DEFENDANT/RESPONDENT.