ROBERT ODEI-NTOW V. TULLOW GHANA LTD.

JUDGMENT

ASUMAN-ADU, J.

Per his writ of summons filed on 1st June, 2009, the Plaintiff claims against the Defendant as follows:

(1) A declaration that the termination of Plaintiff’s appointment is arbitrary, unfair, unlawful and a breach of the contract of employment dated 5th December, 2008 and executed between the parties.

(2) Payment of salaries and benefits otherwise due the Plaintiff with effect from 16th February, 2009 until the date of judgment.

Or

(3) In the ALTERNATIVE PAYMENT of GH¢200,000.00 being compensation and/or damages for breach of contract.

(4) Interest on (2) or (3) with effect from 5th December, 2008 until the date of final payment.

(5) Costs, including Plaintiff’s Solicitor’s fees and litigation expenses.

Defendant entered conditional appearance on 14th July, 2009 but it went on to file its statement of defence on 6th August, 2009 denying the claim of the Plaintiff.

In the attached statement of claim, the Plaintiff avers that he was employed by the Defendant on 5th December, 2008 and had his employment terminated by the Defendant on 16th February, 2009. Whilst in the employment of the Defendant his employment was governed by terms and conditions contained in the “Individual Employment Contract” dated 5th December, 2008 executed between him and the Defendant.

By Section 2.2 of the Contract of Employment, the Plaintiff was to be on probation for three months during which period his performance could be reviewed at any time and if found to be unsatisfactory, then his employment could be terminated forthwith without further notice.

He goes on to aver that for all the period that he was at post he was never queried, reprimanded and/or reproached in any manner whatsoever by his immediate boss, Mr. Newcomb or any other superior official of the department. It, therefore, came to him as a shock when on 16th February, 2009 barely two and half months into his contract he was called by his immediate boss, Mr. Newcomb into the office of the Human Resource Manager, Mr. Festus Anagla and informed him simply that his appointment had been terminated, without assigning any reason whatsoever. He was then handed over a letter of termination of appointment and pressurized to sign an undertaking before receiving a cheque for GH¢10,034.18 as terminal benefit and told to leave the premises of the Defendant immediately.

The Plaintiff claims that no matter how hard he pressed for his boss and the Human Resource Manager to give him reasons for the termination of his employment, they would not budge.

According to the Plaintiff later at a meeting with the Group Human Resource Manageress, Ms. Jane Young at which Mr. Newcomb and Mr. Anagla were present, he insisted that as a matter of fairness, he was entitled to be given a reason(s) for the termination of his appointment to give him a sense of where he had failed to meet Defendant’s expectation of his performance. It was during that meeting that he was told by Mr. Newcomb that a due diligence (and/or reference) into his previous employment revealed that he had been involved in some activities while working for one of his previous employers, which activities Defendant would not tolerate. However, despite persistent demands for him or any of the officials present to clarify the activities alleged and the former employer concerned, to enable him respond they would not budge.

Plaintiff contends that upon true and proper interpretation of Sections 2.2, 2.3, 2.4, and 2.5 of the Contract of Employment, termination within the probation period and without notice can only be on condition that the Plaintiff’s performance has been found to be unsatisfactory. He further contends that to the extent that Defendant had not found his performance to be unsatisfactory the condition precedent to Defendant’s option to terminate without notice had not occurred.

Also by the terms of the offer contained in the Contract of Employment, the Defendant induced and led the Plaintiff to quit his employment in the hope that as long as he put up a satisfactory performance during his probation period, his employment was secured, otherwise the Plaintiff would never have opted out of his reasonably settled employment and prospects at Zain to take the Defendant’s offer. The Plaintiff is as a result entitled to his claim.

As has been stated elsewhere in this judgment, the Defendant denies the claim of the Plaintiff in his statement of defence. It contends that by clause 2.3 of the Contract of Employment, either party could terminate the contract within the probation period, which said period witnessed the exercise of the Defendant’s right of termination. The Defendant was, therefore, within its right to terminate the Plaintiff’s appointment and in the manner that it did.

It avers that the option to terminate without notice is not contingent upon any condition precedent and that upon true and proper construction of clauses 2.2, 2.3, 2.4 and 2.5 of the Contract of Employment, the said provisions were to meet and did meet the requirements of Section 75 of the Labour Act and Regulation 5 of the L.I. 1833. It avers further that no representations were made by or binds the Defendant save what is in the Contract of Employment. The Plaintiff is, therefore, not entitled to his claim.

At the trial the Plaintiff gave evidence which was essentially a repetition of his averments in his statement of claim and he was cross examined by counsel for the Defendant. However, counsel for the Defendant contended that the issues for determination being mainly legal there was no need for the Defendant to give evidence. Instead he would address the Court on the issues. He as a result filed his address which was responded by the Plaintiff.

In the course of his testimony the Plaintiff tendered in evidence the following Exhibits:

1. Exhibit A – Plaintiff’s appointment letter.

2. Exhibit B – the Contract of Employment.

3. Exhibit C – Termination letter.

4. Exhibit D – Cheque being the payment of entitlements of the Plaintiff.

5. Exhibit E– letter dated 18th March, 2009 from Plaintiff’s Solicitors to the Defendant.

6. Exhibit F – letter dated 30th March, 2009 from Defendant to Plaintiff’s Solicitors.

At the application for directions stage, the following issues were set down for trial:

1) Whether or not on the proper interpretation of Clauses 2.2 and 2.3 of the Individual Employment Contract, the Plaintiff’s employment could be terminated within the probation period without embarking on the procedure of a continuous review to inform the Defendant of the Company’s satisfaction of Plaintiff’s performance.

2) Whether or not clauses 2.2, 2.3, 2.4 and 2.5 of the Individual Contract of Employment are relevant to the requirements of Section 75 of the Labour Act and Regulations 5 of the LI 1833.

3) (And if so), whether Defendant/Company complied with the requirements of Section 75 of the Labour Act and Regulation 5 of the LI 1833.

4) Whether or not the Plaintiff was entitled to reasons upon termination.

I will first consider issues 2 and 3 together. Issue 2 is whether or not clauses 2.2, 2.3, 2.4 and 2.5 of the Individual Contract of Employment are relevant to the requirements of Section 75 of the Labour Act and Regulation 5 of the LI 1833 and issue 2 is whether Defendant/Company complied with the requirements of Section 75 of the Labour Act and Regulation 5 of the LI 1833.

The said issues became important because in his statement of defence the Defendant stated that the option to terminate without notice is not contingent upon any condition precedent and that upon true and proper construction of clauses 2.2, 2.3, 2.4 and 2.5 of the Individual Employment Contract, the said provisions were to meet and did meet the requirements of Section 75 of the Labour Act and Regulation 5 of the L. I. 1833. The Plaintiff, however, stated in his reply that Section 75 of the Labour Act is not relevant to Plaintiff’s case as it was not one of those falling under temporary worker.

In his address counsel for the Defendant submits that by the definition given to temporary worker by Section 78 of the Labour Act the Plaintiff being a worker on probation was a temporary worker as stated in Section 75 of the Labour Act. He, therefore, had limited rights. Also by Regulation 5 of LI 1833 where a contract of employment requires probation, the contract shall specify the duration of the probation for the employee.

The said clauses of the Contract of Employment are produced here as follows:

Clause 2.2 – “You will be on probation for a period of three (3) months during which Your performance will be continuously reviewed. If at any time during the probationary period your performance is considered not to be satisfactory, this contract will be terminated.”

Clause 2.3 – “During the probationary period, this appointment may be terminated by either party without any notice.”

Clause 2.4 – “if the contract is so terminated by the Company, all earned benefits at the time of the termination shall be paid to you less any commitments to the Company.”

Clause 2.5 – “However, if at the end of the probationary period your performance is considered satisfactory, your continued employment will be confirmed in writing.”

Section 75 of the Labour Act, 2003 (Act 651) provides as follows:

“(1) A temporary worker who is employed by the same employer for a continuous period of six months and more shall be treated under this Part as a permanent worker.(2) Without prejudice to the terms and conditions of employment mutually agreed to by the parties, the provision of this Act in respect of minimum wage, hours of work, rest period, paid public holidays, night work and sick leave are applicable to a contract of employment with a temporary worker.”

Regulation 5 of Labour Regulations, 2007 (L. I. 1833) also provides as follows:

“Where, as a condition for the engagement of an employee, a contract of employment requires probation, the contract shall specify the duration of the probation for the employee.”

By Exhibit A, the Plaintiff was offered appointment by the Defendant as Administrative Manager. He was, however, put on probation for a period of three months at the end of which period if his performance was considered to be satisfactory, his continued employment would be confirmed in writing. The Plaintiff was, therefore, offered a permanent job. Only that he was put on probation for three months implying that his ability and performance were being evaluated during the three months period.

Probationary employee is defined by the Black’s Law Dictionary 9th Edition at page 602 as follows:

“A recently hired employee whose ability and performance are being evaluated during a trial period of employment.”

In the current case by clause 2.2 of Exhibit B, the Plaintiff had been employed by the Defendant as a permanent worker but he was on trial for three months’ period after which it would be determined whether his appointment would be confirmed or not. He is not a temporary worker as defined by Section 78 of the Labour Act. I, therefore, do not agree with counsel for the Defendant that because the Plaintiff was on probation he was a temporary worker. Since Plaintiff was not a temporary worker, there is no relationship between clauses 2.2, 2.3, 2.4 and 2.5 of the Individual Employment Contract and Section 75 of the Labour Act. Also clause 2.2 of the Contract of Employment was in line with Regulation 5 of L.I. 1833 since the Plaintiff was put on three months probationary period. So, apart from clause 2.2 satisfying the provision in Regulation 5 of L. I. 1833, clauses 2.2, 2.3, 2.4 and 2.5 of the Individual Employment Contract had nothing to do with Section 75 of the Labour Act. Issues 2 and 3 are, therefore, not relevant as far as the current case is concerned.

I will take the next two issues together. These are issues 1 and 4. Issue 1 is whether on the proper interpretation of Clauses 2.2 and 2.3 of the Individual Employment Contract, the Plaintiff’s appointment can be terminated within the probation period without embarking on the procedure of a continuous review to inform the Defendant of the company’s satisfaction of Plaintiff’s performance and issue 4 is whether or not the Plaintiff was entitled to reasons upon termination.

Once again the clauses of the Individual Employment Contract referred to are as follows:

Clause 2.2 – “You will be on probation for a period of three (3) months during which your performance will be continuously reviewed. If at any time during the probationary period your performance is considered not to be satisfactory, this contract will be terminated.”

Clause 2.3 – “During the probationary period, this appointment may be terminated by either party without any notice.”

Even though by Clause 2.3 the contract could be terminated by either party within the three months period without notice, Clause 2.2 states that during the period his performance would be continuously reviewed and if at any time during the period his performance was considered not to be satisfactory the contract would be terminated. So the question that may be asked is how was his performance continuously going to be reviewed?

The Plaintiff claims that by true and proper interpretation of Clauses 2.2, 2.3, 2.4 and 2.5 of the Individual Employment Contract, the condition precedent for the termination of his appointment by the Defendant within the probation period without notice was that the Plaintiff’s performance during the period had been found to be unsatisfactory. Meanwhile, within that period he received no query and his performance was never reviewed so there was no basis for the termination of his appointment within the probationary period. He claims that from what his immediate boss Mr. Newcomb told him at a meeting the Defendant based on some unknown activities while working for one of his previous employers, which activities Defendant would not tolerate to terminate his employment. Meanwhile, neither those activities nor the former employers concerned were made known to the Plaintiff by the Defendant. The Plaintiff, therefore, claims that by reading Clauses 2.2, 2.3, 2.4 and 2.5 of the Individual Employment Contract together the condition precedent to Defendant’s option to terminate his appointment without notice had not occurred. Also the Defendant failed to provide him with reasons for the termination of his appointment. The termination of his appointment was, therefore, wrongful.

The Defendant on the other hand claims that there was no indication in the Contract of Employment as to how the ‘continuous review’ found in Clause 2.2 of the Contract of Employment was to be done. Counsel for the Defendant submits that even the Plaintiff himself agrees to that assertion when he admitted in cross-examination that there is no standard way of doing it and that the review method could differ from place to place. According to counsel for the Defendant the whole period of probation is a trial period where the employee or probationer goes through examination or an assessment in order to test his strength, temperaments, value system and the ability to fit into the new work environment or culture, amongst others. So to him the issue of continuous review is an inbuilt or inherent part of probation in the sense that the employer is bound to make a decision either during or at the end of the probation whether the probationer fits into his employment or not.

Counsel for the Defendant goes on to submit that nothing in Clauses 2.2 and 2.3 of the Individual Employment Contract gives any further rights to the employee to demand a particular form of review that should be special to him. The employer is not bound to inform him when a review is to be made unless it is specifically stated that the employee would be given such information and opportunity for him to react. Where no such rights are given the probationer cannot claim that he was not observed or reviewed by the employer. The employer would have to assess the worker to decide whether he should stay or not. In the same way the worker is equally within his right to assess his employer and decide whether he should stay or leave. No further right is provided by the said clause beyond that point. So from the submission made by counsel for the Defendant, the Defendant was neither obliged to inform the Plaintiff that his performance was being reviewed nor inform him of the results of the review. The review was solely for the subjective benefit of the Defendant.

Counsel for the Defendant submits further that just as the Plaintiff could have walked out of his employment within the probation period without notice or reasons to the Defendant so the Defendant could terminate Plaintiff’s appointment without notice or reasons to the Plaintiff. He, therefore, submits that the Plaintiff is not entitled to his claim.

In the current case Exhibit A, Plaintiff’s letter of appointment states that his employment would be subject to the terms and conditions contained in his contract of employment, Exhibit B. Per Exhibit C, the Plaintiff’s employment with the Defendant was terminated on 16th February, 2009. No reason was stated for the termination of Plaintiff’s appointment. From Exhibit C the Defendant based on clauses 2.2 and 2.3 of Exhibit B to terminate Plaintiff’s appointment. This being because the Plaintiff was still under probation. There was, therefore, no need for him to be given notice. He was also not given reasons for the termination of his appointment and the Plaintiff has challenged that. He claims that in view of the fact that clause 2.2 of Exhibit B states that his performance will be continuously reviewed the Defendant must provide him with reasons for the termination of his appointment. So the question that this Court is being called upon to address is whether the Plaintiff was entitled to be given reasons for the termination of his appointment by the Defendant.

It should be noted that in dispensing with the services of an employee, an employer was at perfect liberty to either give or refuse to give reasons; he may give good reasons, bad ones or none at all. See the case of Aryee v. State Construction Corporation [1984-86] 1 GLR 424 at Holding 1 which states as follows:

“(1) a contract of service was not a contract of servitude. To say as we were wont to do, that it gave rise to a servant-master was to distort reality... The contract was framed in such a way that either party might bring it to an end and free himself from the relationship painlessly. In this case, the appellant could, at any time, give the relevant three months’ notice or forfeit an equivalent in salary and leave the corporation without justifying his action to the corporation. In the same way the corporation need not assign any reason for choosing to terminate their contract with the Defendant. The contract merely required the corporation to give three months’ notice or the equivalent in salary and their conduct would be perfectly in order. On the evidence, the corporation discharged that obligation by giving the appellant three months’ pay in lieu of notice. In the event, the termination was perfectly in accordance with the contract of service and could not be wrongful. The corporation misled the appellant, and perhaps the Court below, by seeking to state the reasons for its action it need not do that. The fact that it did, however, did not detract in any way from the general validity of their action...”

However, in seeking to exercise the right to give or not to give reasons, fairness must be the watchword. Every allegation of misconduct must be proved. In the current case the letter terminating the Plaintiff’s appointment stated no misconduct. Rather it based on clauses 2.2 and 2.3 of Exhibit B to terminate Plaintiff’s appointment which implies that the Defendant was not satisfied with the performance of the Plaintiff so it was not prepared to continuously work with him. It, therefore, decided to take advantage of clause 2.2 of Exhibit B by terminating Plaintiff’s appointment within the probation period. On the issue of continuously reviewing the performance of the Plaintiff no standard procedure was provided by Exhibit B. It was, therefore, within the right of the Defendant to adopt whatever procedure it considered fit in assessing the performance of the Defendant. It could even be in the form of observation without making the Plaintiff aware that he was being observed. The Defendant was not bound to inform him when a review was to be made, how it would be made and how often it would be made. It was not provided by Exhibit B that the Defendant should inform him that he was being assessed and also of the results of the assessment.

It was up to the Defendant to adopt what procedure to use to assess the Plaintiff in order to decide whether or not he should stay after the probationary period. Much the same way it was within the right of the Plaintiff to assess the Defendant in order to decide whether or not he should stay. So reading clauses 2.2 and 2.3 together it was perfectly within Defendant’s right to terminate Plaintiff’s appointment without given notice and reasons within the probationary period.

The fact is even that in an employment relationship one cannot force an employer to work with an employee it does not want to work with. The authorities are legion that an employer is legally entitled to terminate the contract of any employee it decides not to work with. See the cases of Nunoofio v. Farmers [2007-2008] 2 SCGLR 925; the consolidated cases of Kobea and Others v. Tema Oil Refinery and Akomea-Boateng and Others v. Tema Oil Refinery [2003-2004] SCGLR 1033; Kobi v. Ghana Manganese Co Ltd [2007-2008] 2 SCGLR 771 and Baiden v. Graphic Corporation [2005-2006] SCGLR 154.

In the Kobea’s case the Supreme Court in its first holding, delivered itself in the following words:-

“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’s contract of employment 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 notice. He does not even have to reveal his reason, much less to justify the termination...”

Also in Kobi v. Ghana Manganese Co Ltd (supra) Atuguba JSC states at page 775 as follows:

“What I consider to be trite learning on this issue is that a contract of service is not a contract of servitude. That being so, even if the contract of employment is silent on the question whether it is terminable, the common law implies a right to terminate the same by either side upon reasonable notice to the other ... Subject to this the right to terminate a contract of service is dependent on the terms of the contract and must be exercised in accordance therewith.”

Atuguba JSC goes on to state at page 780 of the same case as follows:

“In some cases, a contract of service may provide for the right of termination simpliciter or with an additional right of termination after the pursuit of disciplinary procedures. Where that is the situation one cannot fault the employer for resort to the alternative right of termination simpliciter without recourse of disciplinary procedures.”

From the authorities referred to above, the only criterion is that the termination must follow due process. That is it must be in accordance with the terms and conditions of the contract of employment.

It is also the principle that in attempting to construe the termination provisions in a contract of employment, regard should be had to all the clauses, that is, the language used and all the provisions in the termination clauses should be looked at as a whole and every clause must be compared with the other and one entire sense made out of it. it was only by so doing that the true meaning and the intention of the parties could be discovered. See Boateng v. Volta Aluminium Company Limited [1984-86] 1 GLR 733. See also BCM Ghana Limited v. Ashanti Goldfields Limited [2005-2006] SCGLR 602 at 611 where Sophia Adinyira JSC remarked in support of the lead judgment as follows:

“The cardinal presumption in the interpretation of a document is that the parties are presumed to have intended what they have in fact said or written. As Jessel MR, said in Smith v. Lucas (1881) 18 Ch D 531 at 542: ‘... one must consider the meaning of words used, and not what one may guess to be the intention of the parties.’... The question, therefore, is: what the parties said or written?”

In the current case the combined effect of clauses 2.2 2.3 2.4 and 2.5 of Exhibit B is that the Plaintiff’s appointment could be terminated at any time without notice or reasons by any of the parties within the probationary period. So as has been stated elsewhere in this judgment, since Plaintiff’s appointment was terminated within the probationary period the Plaintiff was not entitled to be given notice and reasons for the termination of his appointment. He was only entitled to be paid the amount due him. This the Defendant satisfied by issuing him a cheque for GH¢10,034.18. He is as a result not entitled to be paid any other amount. The termination of the Plaintiff’s appointment was, therefore, done by the Defendant in accordance with the terms of clauses 2.2 and 2.3 of Exhibit B so it was not wrongful.

In the light of the foregoing the Plaintiff is not entitled to his claim so it is dismissed and judgment entered for the Defendant.

No order as to costs.

SGD

KWABENA ASUMAN-ADU J

JUSTICE OF THE HIGH COURT

COUNSEL

MS. NANA NSAFOOAH SARPONG HOLDING THE BRIEF OF MR. YONI KOLENDI FOR THE PLAINTIFF

MR. KWAKU GYAU BAFFOUR WITH MR. ERNEST OSEI AFFUL FOR THE DEFENDANT