DANAA NANTOMAH V. THE RESIDENT DIRECTOR, FRIEDRICH EBERT STIFTUNG

JUDGMENT

KYEI BAFFOUR J

Plaintiff in a writ issued on the 11th of March, 2013 claimed per the endorsement the following reliefs against the defendant:

i. A Declaration that the purported termination of the employment is tantamount to wrongful dismissal and or termination and is unlawful.

ii. Damages for wrongful dismissal and or termination.

iii. An order that the Defendant shall pay to the Plaintiff all entitlements due to him at the date of dismissal and or termination under his employment contract and or Conditions of Service in the workplace.

iv. Damages for discriminatory and unfair labour practice.

v. Any other relief found due

PLAINTIFF’S CASE

Plaintiff recounts the grounds upon which he mounts the claim he seeks in the statement of claim that he was employed by the Defendant as its Programme Coordinator in April 2009, and was made a permanent staff two years afterward in 2011.

Plaintiff claim that during his employment he spearheaded the unionisation of the employees of the Defendant even though the Resident Director was opposed to the idea of the unionisation of the employees. Plaintiff avers that without any prior consultation with or input from the employees, the management of the Defendant company drafted and served on the employees new Conditions of Service which the employees were required to sign.

Plaintiff asserts that he and other leaders of the local union resisted the management’s efforts and this made him a specific target of Defendant’s Resident Director.

Plaintiff states that in or about 2012 he coordinated a programme which involved a visit of a member of Parliament of Germany to Ghana, Dr. Barbel Kofler. At the conclusion of the programme the Resident Director orally reviewed the programme with the Plaintiff. Plaintiff states further that subsequently the Resident Director of the Defendant in her determination to find fault with the Plaintiff served on him a letter terminating his employment.

It is the case of the Plaintiff that the action of the Resident Director is in breach of the rules of natural justice- audi alteram partem and is clearly a punitive action against him. Plaintiff avers that the acts of the Resident Director amount to wrongful dismissal. Plaintiff therefore claims that he has been denied his lawful entitlements under his contract of employment and conditions of service, and has suffered substantial damages.

DEFENDANT’S CASE

Defendant denies all the material averments made by the Plaintiff, and makes the case that it had at all material times treated the Plaintiff fairly.

Defendant avers that the employees of the Defendant were unionised in 2003 long before the Plaintiff was employed, and that it was only in 2011 that the Plaintiff was appointed the Local Union Chairman and that it was not opposed to unions in Ghana.

Defendant asserts that the Plaintiff had failed to discharge his duties properly in respect of the programme organised by him on the 17th February, 2012 to Bonwire in the Western Region. The Defendant contends further that on the 27th February 2012 the Resident Director invited the Plaintiff to a hearing on the alleged misconduct in respect of the events that took place during the visit of the German MP on the 17th February 2012, and that at the said hearing the Plaintiff did not admit his mistakes or apologize. Defendant says that the Plaintiff was given a fair hearing and is not entitled to any of its reliefs.

Plaintiff joined issues with the defendant in his reply and noted further that the meeting held cannot be claimed to be the hearing as that was only a standard practice after such visit.

ISSUES FOR TRIAL

The following issues were filed by the counsel for plaintiff and with additional issues by the defendant and same were adopted by the court for determination:

1. Whether the Defendant’s then resident director exhibited hostility and or resentment towards trade union activities by the Plaintiff and other staff at the workplace.

2. Whether the Plaintiff as local union chairman in response to popular staff sentiments led the resistance to the Defendant’s attempt to impose a new or revised Conditions of Service without prior consultation or negotiations.

3. Whether the visit of the German MP became the casus belli which the Defendant seized upon to get rid of the Plaintiff.

4. Whether there was over a formal query issued to Plaintiff or formal disciplinary proceedings before the Defendant purported to dismiss Plaintiff.

5. Whether the purported dismissal was wrongful and unlawful.

6. Whether the Plaintiff has suffered damage and loss as a result of his purported dismissal

7. Whether Plaintiff is entitled to the reliefs sought

8. Any other issues arising from the pleadings.

The additional issues consisted of the following:

a. Whether or not plaintiff’s behaviour during the one week visit of Dr. Baerbel Kofler, a German Minister of Parliament to Ghana amounted to proven misconduct.

b. Whether or not the reputation of the defendant was damaged through the behaviour of the plaintiff during the visit of the German Minister to Ghana.

c. Whether or not the plaintiff was given the opportunity to be heard by the defendant on his alleged misconduct before dismissal.

d. Whether or not the dismissal of the plaintiff was lawful.

e. Whether or not the defendant owes the plaintiff the payment of any entitlements under his employment contract.

ANALYSIS OF THE EVIDENCE AND EVALUATION OF THE LAW:

From the issues and additional issues making a total of twelve issues the court can deduce that they can all be subsumed in about three or four issues of whether the dismissal or the termination of the appointment of the plaintiff was fair, whether or not plaintiff was entitled to a hearing before dismissal/termination and was so denied one and finally whether plaintiff had made a case of entitlement to damages.

This case just like the earlier transferred cases before me like GEORGE SARPONG v. WISCONSIN UNIVERSITY, (Unreported) dated 16th June 2016; which I had placed on record and now repeat of the the real and substantial difficulty that afflicts me even though as a trial Judge I have not had the benefit of listening to any of the evidence of the parties in court. This has been so because by some unfortunate coincidence, so notorious in this country for me to recount here, and whose ramifications are still raging, the trial Judge that tried the case to conclusion, has not had the privilege to preside over the judgment of the matter. Not presiding as an appellate Judge, nonetheless, my evaluation is limited to only the evidence on record same as the task that confronts any appellate court. And that does not in any way derogate or detracts or steal the glow out of the findings to be made upon analysis of the evidence.

Plaintiff testified in person and did not call any witness. He tendered, among others, the following vital evidence before the trial court in his evidence on the 4th of March, 2014: contract of employment as Ex ‘A’, job description as Ex ‘B’, employment contract as Ex ‘C’, conditions of service as Ex ‘D’, the conditions of service of 2011 as Ex ‘E’ and finally his dismissal letter as Ex ‘F’.

Defendant on the other hand testified through its resident director and two witnesses as Dw1 and Dw2.

In the endorsement plaintiff claims that the “purported termination of the employment is tantamount to wrongful dismissal and or termination”. And in relief ii he “seeks damages for wrongful dismissal or termination”. Throughout the addresses of the counsel for both parties I did not find a serious attempt to distinguish between the termination and dismissal. Plaintiff proceeded as if the two are virtually the same. I find it necessary before launching into analysis of the evidence that I acquit my mind with respect to dismissal and termination under labour law. As each has a different implication.

The courts draw a distinction between termination of an employee’s contract of employment and the dismissal of an employee. The Supreme Court in the case of ISAAC KOBI and 24 ORS v. GHANA MANGANESE COMPANY LTD HI/70/2004 held that:

“Clearly their severance of employment was not a summary dismissal but a termination of appointment. Without the need to quote any legal authorities, it is common knowledge that clear distinctions exist between the two. I will only attempt to note the commonest. While in summary dismissals the employer may state reasons for their action, the employer is not equally bound to give any reason for termination of appointment. Besides this, an employee whose service was to be terminated was entitled to notice or payment in lieu thereof, and also payment of all his entitlements.”

The distinction is important for two reasons: First, the right to terminate a contract of employment flows from the general principle of law that contracts of employment are not contracts of servitude from which parties cannot pull out. The position of the law on termination of contract of employment has been this: that the employer is not under duty or any obligation imposed by law to proffer reasons for termination the contract of an employee. And that it is enough if the contract is terminated in accordance with the procedural requirements and terms of the contract. See the case of WILLIAM AMPIAH v. COCOA MARKETING COMPANY (Unreported) H1/43/12 dated 21st March, 2013 COA. A termination was said to be wrongful where one of the parties terminates the contract of employment contrary to the terms stated therein. The Court of Appeal quoted with approval the decision of the Supreme Court in the case of BANNERMAN-MENSON V. GHANA EMPLOYERS ASSOCIATION [1996-97] SCGLR 417. The Court in discussing whether an employer or employee is duty bound to give reasons for termination of employment held at pages 422 and 423 thus:

“...the appellant could terminate the appointment by giving his employers six months notice if he decided to, without giving any reasons. So were the respondents entitled to dispense with the appellant’s services by giving him six months notice. This conforms to equitable principles...

To me it is of no consequence if the respondents gave as a reason for the termination of the appellant’s employment the fact that he had reached the age of 60 years. What is important is the mutual agreement of the parties that the contract of employment could be determined by giving six months notice of intention to do so. I think the appellant was laboring under serious illusion in assuming that his appointment was terminated by reaching the retirement age of 60 years. The respondents were under no obligation to give him reasons for his termination”.

See also the case of ARYEE v. STATE CONSTRUCTION COMPANY [1984-86] 1 GLR 424.

The dismissal of an employee, on the other hand, is occasioned by the misconduct of the employee or the doing of an act for which the contract of employment prescribes dismissal.

In circumstances where the conduct of a worker is of some grave and weightier character that it undermines the relationship of confidence which must exist between a master and a servant, then such an employee may be summarily dismissed. See the case of NEARY and NEARY v. DEAN OF WESTMINSTER [1999] IRLR 288. Instances of acts that may be capable of amounting to misconduct so grave and weighty enough to merit dismissal include, among others, fraud, stealing, extortion, corruption, bribery, falsification of accounts/records, fraudulent breach of trust, gross insubordination, dereliction of duty, sleeping at work, verbal or physical abuse, fighting, assault and battery, working under the influence of alcohol or any illicit psychotropic drug, conflict of interest, competition with the employer’s business, conversion of company’s property for private use without the employer’s permission, etc. This is a departure from the old standard which prevented the employer from automatically dismissing his employee without notice where such employee has committed an offence that have a criminal element(s) which criminal offence requires the proof in a court of law, of proof beyond all reasonable doubt.

The letter that plaintiff complains of is Ex ‘F’. It is captioned “Letter of Dismissal – Cessation of Employment”. And notes in paragraph 2 that:

“We are terminating your employment as Programme Coordinator due to your misconduct with immediate effect from February, 28th, 2012. This decision is based on the incident in respect of the visit of the Member of Parliament from Federal Republic of Germany...”.

It is my view, and I find as matter of fact and law that even though Ex ‘F’ features at some point a reference to termination of employment, on the whole the letter was in the nature of a dismissal and not termination from my analysis supra on the difference between a dismissal and termination of employment. Be that as it may, the court in the course of the analysis of the evidence will still consider the implications of the letter if it was in the form of a dismissal or in the form of a termination.

I proceed on the first leg to assess whether if the claim is one of dismissal before assessing if it is termination and whether any of the two legs could be sustained to enable plaintiff succeed in this action. In respect of the allegation of his dismissal that he deems unlawful, plaintiff catalogue a number of claims as evidence of the unlawful dismissal. First is what he claims was his involvement as the chair of the local union and being at the forefront of resisting an attempt by defendant to make each employee sign individual condition of service. As a result of this stand the resident director became hostile towards him, so plaintiff claims.

However, when the plaintiff came under cross examination regarding the claim that he was unfairly targeted this is what transpired:

Q: How were you targeted by the Resident Director.

A: This was when she started to impose conditions of service on Local Union members and we resisted it.

Q: Did you ever complain to the NLC?

A: We complained to the Mother Union which wrote to the Resident Director about Collective Bargaining.

Q: What was the response of the Defendant’s organisation?

A: She never responded to the letter written by ICU

The Defendant tendered a copy of the letter by Defendant to the General Secretary of the ICU dated 23/03/2014 on the subject “Your Demand for Collective Bargaining Agreement-FES Ghana”. Reading the letter as a whole, it appears the Defendant as employer was expressing genuine and legitimate concerns in respect of the agreement that ICU sought to reach with them. There is no indication of hostility towards the ICU neither can any negative sentiments towards unionisation be gleaned from that letter and accordingly find that allegation of plaintiff be unfounded and unproved.

Again, regarding the claim of unfair dismissal, plaintiff supports the assertion with the letter of his dismissal that the litany of the claims by defendant was untenable and besides he was not given a hearing and hence a breach of the audi alteram partem rule of natural justice. Among some of the reasons cited in Ex ‘F’ include, among others, choosing a low standard hotel, wrong scheduling of the programme and its timing, use of a political party, CPP vehicle to meet the German MP and the entourage etc.

It is worth noting that in article 7 of Ex ‘C’ the parties agreed that:

“Each contracting party shall have the right to terminate this contract without prior notice when facts occur which render it impossible to expect that the employment be continued by the terminating party until the agreed end of employment”.

The principle at common law as noted in Halbury’s Laws of England (3rd ed.) Vol 25 paga 487, paragraph 938 is that

"A servant, whose conduct is incompatible with the faithful discharge of his duty to his master, may be dismissed ...Dismissal is also justified in the case of a servant ... if his conduct has been such that it would be injurious to the master's business to retain him."

This principle was applied in the Ghanaian case of ABOAGYE V. GHANA COMMERCIAL BANK [2001-2002] SCGLR 797 where the respondent countersigned a cheque to allow a customer to withdraw an amount of 15,000 million cedis without verifying that the customer had that money in the account. He was dismissed and complained among others of the breach of the natural justice rule. The court held in line with the common law principle that:

“the conduct of an employee ought to be compatible with the faithful discharge of his duty and should not be injurious to the employer’s business”.

Plaintiff has parried the allegations made in Ex ‘F’ as a façade and a lame excuse to dismiss him as he claims that he was not responsible for most of the arrangements. However, under cross examination he admitted the level of his involvement in the following:

“Q: February 2012, what was your responsibility to plan that programme when the German MP came.

A: I had to meet partners, arrange meetings, send letters out, arrange accommodation ...”

I find therefore as a fact that plaintiff had a key role to play in the organization of the programme for the German MP and the attempt to distance himself from the lapses cannot be completely true. Regarding the claim of the meeting he held with the resident director that he claims was a normal review held after a programme has been held and therefore no adequate opportunity was provided him to defend himself; it has been held in the ABOAGYE v. GCB case supra that:

“Finally in considering the question whether or not in any particular case there has been a failure of natural justice, the fact that there was evidence to support the charge preferred against the plaintiff namely egligence, is immaterial to the determination of the issue whether the plaintiff had not been given a fair trial. ... Since the Disciplinary authorities of the defendant bank failed to apply the rules of natural justice there was no fair trial, and this is fatal to their decision to dismiss the plaintiff with loss of benefits.”

However, a different conclusion was reached in the case of JUSTICE AWUKU-SAO v. GHANA SUPPLY COMPANY LTD J4/15/2008 dated 11th March, 2009. In that case, the Plaintiff was dismissed for expending company monies’ to renovate his house after its sale to him. Counsel for the plaintiff submitted that this particular charge was not mentioned in the Draft Report and so the plaintiff had no chance to re-act to it and therefore a dismissal based on this charge was unlawful. Counsel for plaintiff also relied on the case of ABOAGYE V. GHANA COMMERCIAL BANK and urged at the trial and on appeal, that this in effect took away the plaintiff’s opportunity to be heard on the charge levelled against him.

The Court held that, “at common law it is enough if the fact upon which a person is summarily dismissed objectively establishes ground or cause for dismissal.”

And in the case LAGUDAH v. GHANA COMMERCIAL BANK [2005-2006] SCGLR 388, Date-Bah JSC in his judgment commented at page 401 that:

“I am not persuaded that, in a commercial setting, in the absence of a contractual provision to the contrary, an employer is bound to comply with the rules of natural justice. At common law, it is enough if the facts objectively establish cause for dismissal.”

The court went on at page 405 to state that:

“.... in the ordinary common law of employment, unaffected by public law considerations, there is no obligation on an employer to set up a tribunal or committee of enquiry before he can dismiss an employee summarily for misconduct. Irrespective of the procedure which he adopts, if he establishes facts justifying the dismissal, that is enough.”

In the Lagudah case above, both the trial court and the Court of Appeal were satisfied that there was sufficient evidence on the record to justify the summary dismissal of the plaintiff.

In a similar manner, the Court in BANI v. MAERSK GHANA LTD [2011] 2 SCGLR in answering the contention of the appellant that his dismissal was unlawful on the ground that the findings on which the dismissal was based was made by a subcommittee alleged to have acted ultra vires said:

“Assuming without admitting that the subcommittee’s findings were ultra vires, we do not consider that this would derogate from the defendant’s common law right to dismiss the plaintiff for proven misconduct. Once there are facts on the record justifying the defendant/respondent dismissing the appellant for misconduct, the fact that the findings were made by a committee that was acting, allegedly, ultra vires, is irrelevant.”

I am of the opinion that as long as the defendant sat with plaintiff to review his performance after the visit of the German MP, that should suffice for the purposes of dismissal to satisfy any hearing that plaintiff ought to have been given and the failure to abide by the principle of audi alteram partem in its strictest sense cannot invalidate the dismissal of an employee for misconduct or make such dismissal wrongful.

In the BANI case the Court was of the view that considerations of such doctrine as ultra vires is an important building block for the court in exercising control over administrative action, and consequently such considerations are a public law element. The Court held further that;

“A similar policy rationale does not exist for the courts supervising delegated decision-making in the private sector. Indeed, it would be against public policy to subject private sector business units to the same control over their administrative decisions as public bodies. The private sector needs more flexibility and is not expected to operate under the same rules of the game, so to speak, as government and public bodies.”

Let me also be quick to add to the authorities the case of in LEVER BROTHERS GHANA LTD v. ANNAN (CONSOLIDATED) [1989-90] 2 GLR 385 when the court affirmed the trial judge’s decision and said (at pp.388-9) that;

“The law is that where an employee has, in fact, been guilty of misconduct so grave that it justifies instant dismissal, the employer can rely on that misconduct in defence of any action for wrongful dismissal, even if at the date of the dismissal the misconduct was not known to him”

To elucidate the point further the Court held that,

“from the principle of law also quoted above which entitles an employer to dismiss summarily an employee he considers guilty of serious misconduct, such as dishonesty, it is evident that the employer is not obliged to set up an investigative process to give the employee a fair hearing: see Presbyterian Hospital, Agogo v. Boateng [1984-86] 2 GLR 381, CA. What is required is that when the employee’s dismissal is brought to question in a court of law the employer’s action can be vindicated.”

See also the following cases: EDWARD NASSER and CO LTD V. ABU- JAWDI [1965] 2GLR 532, PRESBYTERIAN HOSPITAL, AGOGO V. BOATENG [1984-86] 2 GLR 381, CA; BOATENG V. VOLTA ALUMINUM CO LTD [1984-86] 1 GLR 733, CA.; LEVER BROTHERS GHANA LTD V. ANNAN [1989-90] 2 GLR 385

I will hold and find that even if the meeting held with plaintiff did not meet the standard test of fair hearing, a breach of the audi alteram partem principle will not render a dismissal wrongful where there is sufficient evidence on the record to satisfy the court that the employee, which in this instance is the Plaintiff, is guilty of a misconduct of such a nature as to justify a dismissal.

Having found that if Ex ‘F’ was a dismissal letter, the claim of plaintiff for unlawful dismissal will not succeed from the evaluation supra. Assuming without admitting that even the court is wrong on this finding that the severance was a dismissal, can plaintiff succeed if it happens to be termination but not a dismissal? I do not think so and my reasons are as follows:

As far as termination is concerned it is the law that an employer need not assign reason for bringing to an end the employment of a worker as long as the termination is in accord with the terms of engagement between them. Ex ‘C’ which is the contract of employment gave the right to each party to terminate the contract without even prior notice. Then there is also the employment contract dated March 22nd, 2011 signed by the parties which also states at article 7 as follows:

“Both contracting parties shall have the right to give notice of termination within a period of four weeks to the end of the quarter. In addition, each contracting party shall have the right to terminate this contract without prior notice when facts occur which render it impossible to expect that the employment be continued by the terminating party until the agreed end of employment”.

So here the terms of the contract makes it possible for the contract to be terminated with four weeks notice or as is common one month pay in lieu of the notice. Plaintiff was paid the February, 2012 salary in lieu of the four weeks notice. This appears to be the essence of the decision in the case of BANNERMAN-MENSON V. GHANA EMPLOYERS ASSOCIATION [1996-97] SCGLR 417 where the court noted at page 422 that

“...the appellant could terminate the appointment by giving his employers six months notice if he decided to, without giving any reasons. So were the respondents entitled to dispense with the appellant’s services by giving him six months notice. This conforms to equitable principles...

To me it is of no consequence if the respondents gave as a reason for the termination of the appellant’s employment the fact that he had reached the age of 60 years. What is important is the mutual agreement of the parties that the contract of employment could be determined by giving six months notice of intention to do so. I think the appellant was laboring under serious illusion in assuming that his appointment was terminated by reaching the retirement age of 60 years. The respondents were under no obligation to give him reasons for his termination”.

As far as common law is concerned there is nothing like unfair termination, a concept that is only familiar to the Ghana’s statute law under section 15 of the Labour Act, 2003, Act 651 which provides the basis for termination of a contract to include, mutual agreement of the parties, by the employee when there is sexual harassment, ill treatment etc. And by the employer if there is death of employee, worker unfit medically to work, sickness, accident or proven incompetence etc.

Where a worker complains that the basis for the termination of his employment is unfair or do not meet the standard set down by law under section 63 of Act 651, then it is my view that such an employee has no recourse to the court without first proceeding to the Labour Commission. Why? Simple the Act 651 specifically under section 64 has provided a mode for redress when there is an allegation of unfair termination of employment or an employee finds his claim on any of the grounds under section 63 when it provides under section 64 as follows:

“A worker who claims that the employment of the worker has been unfairly terminated by the worker's employer may present a complaint to the Commission”

I am not unmindful of the fact that the word “may” is used in section 64, nonetheless, I am fortified in my position that an employee who complains of unfair termination must first proceed to the Labour Commission on the strength of two authorities. First is the Court of Appeal decision in the WILLIAM AMPIAH v. COCOA MARKETING COMPANY supra, and two the Supreme Court decision in the case of BANI V. MAERSK GHANA LTD. supra where the court considered the scope of the jurisdiction of the court to entertain actions for unfair termination rather than the Labour Commission in the following terms:

“These statutory remedies are made available to the Commission but not, at least expressly, to the courts. What then is the impact on the common law of these statutory provisions? These provisions, with respect, are to be construed as not directed at the court”.

And in the AMPIAH case supra, Professor Sir Dennis Adjei noted as follows:

“The aggrieved employee who thinks his/her employment has been unfairly terminated may make a complain[sic] to the Labour Commission for the Commission to investigate and take appropriate decision as provided in section 64(2) of Act 651. The power to handle unfair termination against an employer is the prerogative of the Labour Commission and not the Courts. Where a jurisdiction as in the instant case is not given to the courts and the court assumes jurisdiction, any order made by the court is a nullity. The trial High Court acted without jurisdiction when it usurped the powers or the Jurisdiction granted to the Labour Commission. It must be stated in unambiguous terms that the power to investigate unfair termination by an employer is exclusively vested in the Labour commission and not, the court and any court which may purport to exercise such power shall be acting without jurisdiction and any order emanating from it would be a nullity”.

From the above need I say more? The claim of the plaintiff if it is for unfair dismissal I have shown to be not maintainable and if it is for unfair termination, he is in the wrong forum from the binding authorities I have cited. And if the claim of plaintiff is for both unfair dismissal and termination he has no leg to stand on.

Having so found I consider it needless to embark upon the claim of entitlements to damages as damages could only be founded upon the establishment of a violation of a legal right. In other words, before damages could be assessed, the plaintiff must first provide the evidence to warrant the award of damages. He must also provide facts that would form the basis of assessment of the damages he would be entitled to. Plaintiff has failed in my estimation to meet the test of establishing the unfair dismissal or termination and in that respect I have no recitation at all in dismissing the reliefs the plaintiff seeks in its entirety. And I so dismiss the reliefs that plaintiff seeks in the court.

In awarding cost which is intended to cover for the legal fees of a successful party, the court may take into consideration the amount that may have reasonably been expended by the party in defending the claim or prosecuting same. On the whole I will be charitable to the plaintiff and award cost of Ghc 15.000.00 in favour of defendant against plaintiff.

SGD

ERIC KYEI BAFFOUR J

JUSTICE OF THE HIGH COURT