EBENEZER AGBEKO NORNORMEY & 7 ORS V. GHANA TELECOMMUNICATIONS CO. LTD

JUDGMENT

MENSAH-DATSA, J.

This is not a Financial and Economic Crimes case. I exercise jurisdiction in this case pursuant to an Order of Transfer dated 23rd February 2015.

Plaintiffs claim against the Defendants the following reliefs:

1. A declaration that the purported termination of plaintiffs employment of service for non performance is wrongful unlawful null and void and unfair.

2. A declaration that the purported termination of plaintiffs’ employment is a retrenchment exercise disguised as termination of employment for non performance.

3. Order for the payment of severance awards as provided for in the collective bargaining Agreement and the relevant laws and agreements.

4. General Damages for unlawful termination of appointment.

5. Costs.

The plaintiffs were all employees of the defendant company until 5th October 2012 when the defendant terminated their appointment. The defendant is a company registered as a limited liability company in Ghana dealing in telecommunication business and operations and trading under the name Vodafone.

The issues to be decided are as follows:

1. Whether or not the purported termination of the plaintiff employment of service is wrongful and unlawful.

2. Whether or not plaintiffs are entitled to the reliefs prayed for in the suit.

3. Whether or not by the employment contract statute and practice the defendant has the power to terminate the plaintiffs’ employment in the event that plaintiff fails to perform their duties in accordance with the terms of their employment.

4. Whether or not the application of the PIP review process formed the mode and procedure for accessing the performance of an employee in respect of their duties as per the terms of the employment and their exit from the defendant company where applicable and if defendant applied same.

5. Whether or not plaintiffs were made to face any disciplinary action before the purported termination of employment.

6. Whether or not the application of the one, observation sheet and Personal dialogue forms the basis for grading employees including a Plaintiff and for which non compliance affects enquiry as the performance of Plaintiffs.

7. Whether or not the defendants purported termination of plaintiff’s employment on the 5th of October before the completion date of the PIP process on 30th October signed to by plaintiffs and defendant renders the PIP incomplete and unfair and unfair and wrongful basis for the termination of plaintiffs’ employment.

8. Whether or not plaintiffs were put on the PIP review process.

9. Whether or not the reasons assigned for the termination of plaintiffs employment were not the main reason but a disguised retrenchment exercise.

Due to the nature of the evidence adduced and the submissions made by both learned counsel herein, I will take most of the issues together and give a decision based on the analysis of them.

The first plaintiff testified on behalf of all the plaintiffs herein. He gave evidence that on the 5th October 2012, the defendant terminated their employment for nonperformance and they appealed against the decision but the termination was upheld by the Appeal Committee. He stated that in the defendant company there is a procedure used to monitor, evaluate and review employees’ performance contained in a document known as Performance Management System (PMS) exhibit G, but the defendant did not comply with it. He added that contrary to their agreement the plaintiffs did not complete the Performance Improvement Plan (PIP) so they cannot be said to have performed poorly and be the basis for terminating their employment. He said the plaintiffs were given three months salary in lieu of notice of the termination of their appointment contrary to what is provided by their Collective Bargaining Agreement (CBA) exhibit 2, the plaintiff’s should have been given three months salary per the number of years served with the defendant company but were not. He stressed that the termination is a disguised retrenchment exercise so the plaintiffs are entitled to severance award. Under cross-examination the first plaintiff admitted that under the terms and conditions of employment, the defendant as employer has the right to terminate the plaintiffs’ employment but said where the reason for the termination is non- performance the parties need to go through and complete the PIP process. The first plaintiff admitted that the amount paid in lieu of notice of termination of employment has been paid to all of the plaintiffs herein.

Mr. Daniel Asiamah of the Human Resource Department of the defendant company testified on behalf of the defendant. He said he had worked with the defendant company for twelve (12) years. He contended that in terminating the employees’ appointment the company is required to give three (3) months notice or pay three (3) months’ salary in lieu of notice. He asserted that termination based on non-performance is stated in the PMS (exhibit G) and added that at the appeal if the employee shows that his/her performance was good the rating given is reversed. He explained that the PIP is run within three consecutive months with a monthly update or review on the employee’s performance however within the PIP period if the employee is nit showing significant improvement in performance the company has the right to terminate the employees’ appointment. He stated that in redundancy (as claimed by the plaintiffs) the company has to contact the Labour Commission and the Communications Workers Union of GTUC before making an employee redundant. Under cross-examination Mr. Asiamah disagreed that the decision to terminate the employment of the plaintiffs’ before the completion of the PIP process amounted to a breach of agreement and emphasised that the plaintiffs’ termination was based on 2011-2012 assessment and not that of 20102011. He contended that the positive comments of the line manager did not indicate poor performance on the part of some of the plaintiffs but added that they have emails from the functional head which indicate that the expectation of some plaintiffs was not up to the standard expected by the functional head and he has the final say. He stated that Vodafone took over from Ghana Telecom around August 2008 and admitted redundancy exercises in Vodafone commenced in 2009. He admitted that in 2009 the 4th and 6th plaintiffs herein were issued with notices seeking to put them on compulsory redundancy (exhibit GG) and said in 2010 defendant company pursued a similar redundancy exercise but the 6th plaintiffs name did not appear in the 2010 one. He said he was not aware of the 2010 notice of redundancy issued to the 4th plaintiff. He added that benefits were applicable to those employees who exited under the compulsory programme but the 4th plaintiff was reassigned to a new role which she accepted so the exit package stated in exhibit HH was not applicable to her. He insisted that the termination of the plaintiffs’ appointment was not unilateral because the plaintiffs were aware of the performance standards set by Vodafone and the consequences for non-performing employees. He stated that the 6th plaintiff was issued with a redundancy letter and he took the option of taking up a new role and it was stated in exhibit 3 so the redundancy notice given to the 6th plaintiff in September 2009 had no link with his termination.

Learned counsel for the plaintiffs stated that parties to an employment agreement can terminate same by notice and within the confines of the agreement however in doing so fairness is required or else would be said to be wrongful and cited the cases of Kobi v. Ghana Maganese Co. Ltd [2007-2008] SCGLR 771; Aryee v. State Construction Corporation (1984-86) GLR 424; Ghana Cocoa Marketing Board v. Agbettoh and Others (1984-86) GLR 122; Nartey Tokoli and Ors v. Volta Aluminum Co. Ltd. (2) (1989-90) GLR 341 and Baiden v. Graphic Corporation [2005-2006] SCGLR 154.

One of the grounds stated by the plaintiffs in their reliefs is that the purported termination of the plaintiffs employment of service for non- performance is unfair. Learned counsel for the defendant in his written address raised a preliminary legal issue on the jurisdiction of the High Court on unfair termination. He submitted that Section 64 of the Labour Act, 2003 (Act 651) provides that a worker who claims that his employment has been unfairly terminated may present a complaint to the Labour Commission, and if it finds that the termination was unfair may give the worker one of three remedies specified in the Act. He contended that those remedies are made available to the Commission but not to the Courts. He cited the Supreme Court case of Felix Yaw Bani v. Maersk Ghana Limited, Civil Appeal No: J4/48/2010 dated 30th March 2011, in which Dr. Date-Bah JSC stated at page 19 that “it is unclear to us from where this concept of unfair termination as a cause of action before the courts is derived. It is certainly not a common law principle..,” and concluded that based on that the High Court does not have jurisdiction to pronounce on the plaintiffs’ first relief of unfair termination.

Learned counsel for the plaintiffs stated that under section 64 of Act 651 a worker may present a complaint to the commission but it is not mandatory. He stressed that the High Court has jurisdiction to declare a termination as unfair in addition to wrongful under the common law.

On wrongful dismissal learned counsel for the defendant cited the case of Morgan v. Parkinson Howard Ltd. (1961) GLR 68 which held that 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 said terms of his agreement or that the determination is in contravention of the statutory provision for the time regulating employment. His claim cannot succeed if he fails to satisfy the court on these points.

The plaintiffs’ second claim is for a declaration that the purported termination of plaintiffs’ employment is a retrenchment exercise disguised as termination of employment for non performance and they led evidence on that. Learned counsel for the plaintiffs’ stated that in effect they were pleading and leading evidence in respect of redundancy. Counsel submitted that the defendant seeking to avoid payment of severance awards to the plaintiffs craftily terminated their appointment for non-performance. He argued that where it is found that the defendant’s reason for the termination cannot be sustained then it can be inferred that the defendant terminated the employment of the plaintiffs on grounds of redundancy which qualifies the plaintiffs to enjoy the benefits as provided in terms of contract and the collective agreement. He submitted that the court can find for redundancy which is specifically used in the Labour Act despite the use of the word retrenchment which all involves a reduction in workforce and relied on the case of Hanna Asi (No 2) v. GIHOC Refrigeration [2007-2008] SCGLR 16.

Learned counsel for the defendant quoted Section 65 of Act 651 on redundancy and stated in detail the processes the employer must go through to satisfy the requirements of the law and submitted that the plaintiffs claim that the termination of their appointment was a redundancy in disguise should be examined with the above section in mind.

Learned counsel for the plaintiff contended that the termination of plaintiffs appointment sins against the PMS and that under the PMS especially the PIP defendant failed to comply with the agreed duration, timelines, review dates, manner for running evaluation and reviving the entire PIP program designed to assist employees rated I and P improve upon their performance. He stated that the administration of the PIP is a contract between the plaintiffs and defendant and same cannot be unilaterally and abruptly breached by the defendant without the consent of the plaintiffs/ employees. Counsel submitted that the defendant’s representative testified that when the employee is not showing significant improvement the company has the right to terminate the employees appointment and stated that that position is not supported by any document or practice or evidence in the form of reviews.

Learned counsel for the defendant submitted that counsel for plaintiffs’ main argument is that the defendant did not follow through the PIP process before terminating the plaintiffs’ appointment and this operated to suspend the right of the defendant to terminate the plaintiffs’ appointment. He stressed that if that argument is accepted it would operate to deny the right of an employee who has been put on PIP to end his relationship with defendant because the right to terminate created by Section 17 of Act 651 is reciprocal. He stated that Section 17(1) of Act 651 provides the period of notice required before a termination can be effected, for example in Section 17 (1) (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. He stressed that the plaintiffs’ herein were paid three months basic salary in lieu of notice of termination and any entitlement and accrued holiday till the 5th October 2012. He added that by accepting the three months pay in lieu of notice the plaintiffs have compromised any other right which they have and cited the case of Ashun v. Accra Brewery Ltd. [2009]SCGLR 81.

Learned counsel for the plaintiffs asserted that as a result of the termination of their appointment the plaintiffs have suffered emotional trauma among others and relied on the following cases in support of their case In Re Ashalley Botwe Lands; Adjetey Agbosu and Ors v. Kotey and Ors [2003-2004] SCGLR 420; Gunton v. London Borough Of Richmond Upon Thomas [1980] 3 All ER 577; National Labour Commission v. Ghana Telecom Ltd. (SC) Civil Appeal JA/53/2010 and dated 13th January 2012; Wilson v. Smith (1980) GLR 152 and Edusei Diners Club Susse SA (1982-83) GLR 809.

Learned counsel for the defendant submitted that on the totality of evidence before the court the plaintiffs are not entitled to the reliefs endorsed on the writ in view of the fact that Act 651 and the terms of the plaintiffs appointment confers on either party the right to terminate the relationship after giving three months notice or in lieu of the notice the payment of three months’ salary. He stated that the plaintiffs having received the three months pay cannot come to court to declare their termination null and void and cited the cases of Edward Nasser v. Abu Jadai (1965) GLR 523; Arkhurst v. Ghana Museum and Monuments Board (1971) 2 GLR 1; Bank of Ghana v. Nyarko and Another (1973) 2 GLR 265; Aluminum Co. Ltd. v. Tetteh –Akuffo [2003-2004] SCGLR; Kobea and Others v. Tema Oil Refinery, Akomea-Boateng and others v. Tema Oil Refinery (consolidated) [2003-2004] SCGLR 1033 and Faibi v. State Hotels Corporation (1968) GLR 471 in support of their case.

By Section 17 (1) of Act 651, a contract of employment may be terminated at any time by either party giving to the other party the required notice.

It is a fact that the termination must be in accordance with law and not against the rights of the party negatively affected by the termination. I have reproduced the detailed submissions made by both learned counsel in this case and after considering them with respect to the facts, circumstances and applicable law I am persuaded by the case of the defendant that the termination of the employment of the plaintiffs herein was lawful. I therefore find that the termination of the employment of the plaintiffs herein is lawful. Having so found the consequential orders or reliefs sought by the plaintiffs do not arise.

An evaluation of the evidence adduced indicates that the plaintiff has not discharged the burden of proof on it as required by Section 11(1) and (4) of the Evidence Act 1975 (NRCD 323). The plaintiffs claim fails and judgment is entered for the defendant.

I have considered the facts, circumstances and the relationship of the parties in this case and come to the conclusion that it is in the interest of justice not to award costs to the winning party herein.

There is no order as to costs.

SGD

GEORGINA MENSAH-DATSA J

JUSTICE OF THE HIGH COURT

COUNSEL

Mr. Alfred Agyei-Mensah for Plaintiffs.

Mr. Festus Kayi for Defendant.