ALFRED TETTEH ANNAN V. GOLD ROYAL ENTERTAINMENT CO. LTD.

JUDGMENT

OWUSU, J.

By an amended Writ of Summons filed in the Registry of this Court the  Plaintiff is claiming against the Defendant the following reliefs:  

1. A Declaration of the Court that the demotion and termination  of the Plaintiff as a Pit Boss by the Defendant was unlawful.

2. An order of the Court that the Plaintiff be paid his outstanding  salary as Pit Boss from March, 2014 at the rate of GH₵900.00  per month, plus interest at the commercial bank rate thereon,  until date of final payment. 

3. Compensation of GH₵10,000.00 for Plaintiff’s arbitrary, capricious and wrongful termination. 

4. Legal fees comprising of a consultancy fee of GH₵500.00 plus  15% of all sums paid to the Plaintiff. 

5. Costs plus any additional reliefs that this honorable Court  might deem fit. 

SUMMARY OF CASE 

THE PLAINTIFF’S CASE 

By an accompanying Statement of Claim and the Witness Statement of  Plaintiff filed on the 4th of November 2015 the Plaintiff’s case is that he was  until 17th March, 2014 an employee of the Defendant. According to him he  was appointed on the 4th of January, 2013 as an Inspector and after  successfully working for ten (10) months he was promoted to the position 

of Pit Boss. It is Plaintiff’s case further that on the 15th of February, 2014,  one of the Defendant’s employees by name Patricia Asante was alleged to  have stolen gambling chips belonging to the Defendant and he and another employee were linked to it. After investigation, he was ordered to go back  to work but he received a letter dated 22nd February, 2014 demoting him to  the lesser position of Dealer Inspector from Pit Boss. On the 17th of March,  2014, another letter was received from the Defendant, this time terminating  his employment immediately. The Plaintiff maintains that the termination  of his appointment for no justifiable reason is unlawful. 

THE DEFENDANT’S CASE 

By its amended Statement of Defence and the Witness Statement of one  Richard Fairweather Sowah filed on the 12th of November 2015, the  Defendant’s case is that Plaintiff was employed as a Dealer Inspector and  was never promoted to the position of a Pit Boss. According to the Defendant, for a specific period during his period of employment and  throughout the said period Plaintiff was undergoing training as a Pit Boss  and was requested to work as an intern Pit Boss. Plaintiff was never made a  substantive Pit Boss. It is their case that whiles undergoing training as a Pit  Boss Plaintiff’s conduct was unsatisfactory hence he was issued with a  warning letter on or about 14th February 2014 but since his performance did  not subsequently improve he was requested to revert to his former position  as a Dealer Inspector but was not demoted. It is their case further that the  termination of Plaintiff’s appointment is justifiable and in accordance with  his conditions of employment and the Defendant’s rules and regulations.  

ISSUES FOR TRIAL 

i. Whether at the time of termination of Plaintiff’s appointment he  was a Pit Boss or Dealer Inspector. 

ii. Whether or not termination of Plaintiff’s appointment was  wrongful. 

iii. Whether or not the Plaintiff is entitled to his claim against the  Defendant. 

iv. Any other issues raised in the pleadings. 

ANALYSIS OF THE ISSUES IN THE LIGHT OF THE LAW AND  FACTS 

∙ Whether at the time of termination of Plaintiff’s appointment he was  a Pit Boss or Dealer Inspector. 

Although it is his case that in the course of his employment he was promoted  to the position of a Pit Boss there is no evidence of such promotion except the evidence of the Defendant’s witness under cross examination. This is  how cross examination went: 

“Q. Are you also aware that the Plaintiff was promoted to the position of  Pit Boss? 

A: My Lord that promotion was made by the Board of Pit Bosses  including me. 

Q: Are you aware that he earned this promotion after he had served his  probation period? 

A: My Lord, I was also promoted after my probation that was in June,  2013 and from that time to the time he was promoted, he had served  a probation as an Inspector Pit Boss till my salary was moved up to  GH₵1,400.00 as a Pit Boss.”  

At paragraph 7 of his Witness Statement, admitted in evidence as his  Evidence in Chief, this same Witness had this to say: 

“The Plaintiff was employed as an Inspector but was subsequently made to  undergo training as a Pit Boss. During that period he was an intern and not  a substantive Pit Boss. The letter of appointment dated 1st June 2013, states  that his basic salary plus allowances and compensation was One Thousand,  One Hundred and Twenty Ghana Cedis (GH₵1,120.00). The basic salary  plus allowances of a Pit Boss at the time was in excess of the amount that  the Plaintiff was being paid so he could not have been a substantive Pit  Boss”. 

The evidence of such a witness cannot be relied upon especially where no  reasons have been given for these inconsistencies.

Counsel for the Defendant applied to the Court to treat the said witness as a hostile witness  on the basis that he was contradicting his Written Statement and same was  granted. In her written address to the Court, in paragraph 22, counsel for the  Defendant referred to the case of IN RE OKINE (DECD); DODOO AND  ANOTHER v. OKINE AND OTHERS [2003-2004] 1 SCGLR @ page  582 and prayed the Court not to rely on the evidence of the said witness in  arriving at a decision.  

In the case of OBENG v. BEMPONG [1992-1993] GBR part 3 @ PAGE  1027 the Court of Appeal held that “inconsistencies, though individually  colorless, may cumulatively discredit the claim of the proponent of the  evidence.”  

Not much weight would be attached to this evidence. In the absence of any other evidence from the Plaintiff’s camp in prove of his assertion that he  was a Pit Boss at the time of the termination of his employment, the Court  cannot make findings of fact in this regard. Exhibit A and Exhibit 1, the  Plaintiff’s appointment letter states that he was appointed as an Inspector.  Accordingly the Court finds as a fact that at the time Plaintiff’s appointment  was terminated, he was a Dealer Inspector. 

∙ Whether or not termination of Plaintiff’s appointment was  wrongful. 

An employer, just like the employee could terminate the contract of  employment at any time. In the case of ASHUN v. ACCRA BREWERY  LTD [2009] SCGLR 81 the court held that: 

“a contract of employment is not necessarily a contract till retirement age.  In other words, a contract of employment, though it may be for an indefinite  period, does not mean life employment.”  

In the case of CHATLANI v. HAROUTUNIAN [1974] 2 GLR 263, the  court held that the employer, like the employee, could indeed terminate the  contract of employment at any time provided only that the appropriate  notice requirements are observed. I again refer to the case of KOBEAH  AND OTHERS v. TEMA OIL REFINERY; AKOMEA-BOATENG V. TEMA OIL REFINERY (CONSOLIDATED) 2003-2004 SCGLR 1033  @ 1039. 

Section 15 of the Labour Act, 2003 [Act 651] headed “Grounds for  Termination of Employment” among others, provides grounds on which an  employer may terminate the contract of employment between him and his  employer. 

It is trite law that where parties have entered into a contract or an agreement  and same has been reduced into writing it is from that document that the  court must ascertain the intention of the parties and to construe the contract  in terms of the document. Where an employee’s employment is terminated  in breach of these contractual provisions or in breach of the provisions in  the Labour Act regarding termination, the termination is wrongful. 

Exhibit C is the letter terminating the Plaintiff’s employment. It is dated 17th March, 2014 and the termination is effective immediately. It gives the  reason for the termination of Plaintiff’s employment as: 

“1. Your name was mentioned in the theft case that went on few weeks  ago…” 

Section F of Exhibit A and 1, headed “Notice of Termination and Dismissal”  provides that either party may by giving notice in writing seven days in  advance terminate the agreement or in lieu of notice by paying or forfeiting  the salary for the period of notice. Again it states that if serious mistakes are  made in the company, the offending employee would be given a final  written warning to leave the company immediately. This section does not  go on to list the so called ‘serious mistakes’ although the reason given for  the termination has criminal connotations. In paragraph 23 of the written  address of counsel for the Defendant, she submitted that Plaintiff had  admitted that under his watch as an intern Pit Boss there were incidents of  stealing. In law, there is a difference between dismissal and termination. I  refer to the case of NUNOOFIO v. FARMERS SERVICES CO. LTD  [2007-2008] SCGLR 926 at 940 where Sophia Adinyira JSC stated that: 

“...‘dismissal’ and ‘termination’ though both have the same effect of  bringing to an end a contract of employment, yet they may not be  synonymous as the legal consequences are different in terms of a contract  of employment. A dismissed employee stands to lose all his entitlements;  whereas an employee whose contract of employment is terminated takes  away all his entitlements.” 

In his book LABOUR LAW at pages 304 and 305, the learned author James  Odartey Mills draws a distinction between the two. A dismissal is a  discharge of the contract of employment by the employer with justification,  and which justification often imputes or connotes an element of misconduct  on the part of the employee. This is against a termination which is simply  an expression of the terminating party’s unwillingness to continue with the  employment relationship with the other party.  

Unlike a mere discharge of the contract of employment, in the case of a  termination of appointment which may not go with reasons, a dismissal on  the other hand usually requires the reason or reasons for the dismissal to  be stated.  

Additionally, a termination can be at the instance of either the employee or  the employer but a dismissal can only come from the employer. Whereas a  termination requires specific periods of notice to be given to the other party,  in a dismissal there are no such specific requirements in law and therefore  it may or may not be given depending on the circumstances. In terminations  the periods of notice are paid for where the party terminating prefers not  to give any notice and this payment can be enforced, in a dismissal the notice  that is not given may not be paid for and is also generally not enforceable  against the employer. 

Furthermore, whereas in a termination the employee receives all his  terminal benefits and privileges, in a dismissal the employee usually loses  most of these with the exception of arrears of salaries and allowances  accrued prior to the dismissal. 

Also because a dismissal connotes misconduct or wrongdoing, an employee  accused of such misconduct has to be taken through internal disciplinary  processes to establish his guilt or otherwise before any action is taken but  this requirement is not mandatory in the case of terminations unless a  contract of employment dictates otherwise.  

These two words are however often used interchangeably. Though Exhibit  C is headed “Letter of Termination and “Termination of Employment”,  evidence suggests that the Plaintiff was dismissed. This is because a reason was given for the termination and the reason imputes criminality. Again no  notice was given and Plaintiff’s employment was terminated immediately.  

Contrary to evidence that Plaintiff’s employment was terminated because  under his watch, incidents of stealing took place, the reason given in his  termination letter associates him to the theft. The Defendant has failed to  show any justification for the discharge of the contract of employment. I  find as a fact that termination of Plaintiff’s appointment was wrongful and  unlawful. 

∙ Whether or not the Plaintiff is entitled to his claim against the  Defendant. 

A Declaration of the Court that the demotion and termination of the  Plaintiff as a Pit Boss by the Defendant was unlawful. 

Based on the above findings of fact, the Court hereby declares that the  termination of the employment of the Plaintiff as a Dealer Inspector is  unlawful as there is no evidence that Plaintiff was ever promoted to a Pit  Boss. 

An order of the Court that the Plaintiff be paid his outstanding salary as  Pit Boss from March, 2014 at the rate of GH₵900.00 per month, plus  interest at the commercial bank rate thereon, until date of final payment. 

Under cross-examination Plaintiff said he had not rendered any services for  the Defendant since his appointment was terminated. Plaintiff’s  appointment was terminated on 17th March, 2014. He can therefore not  claim outstanding salary for a period that he was not an employee to the  Defendant. He admitted under cross- examination that he was paid his last salary on 28th February, 2014. In the month of March, Plaintiff worked until  the 17th of March, 2014 and he is entitled to be paid this outstanding salary. 

Compensation of GH₵10,000.00 for Plaintiff’s arbitrary, capricious and  wrongful termination. 

Damages are generally measured by looking at how much the employee  who has been dismissed wrongly or unlawfully has lost as a result of the  dismissal. The Supreme Court in the case of KOBI v. GHANA  MANGANESE CO. LTD [2007-2008] SCGLR 771 @ 772 held in  holding 2: 

“In assessing damages for wrongful dismissal, the court must have  regard to all the circumstances of the case considered as fair and  reasonable……; and bearing in mind that judicial discretion should  not be out of joint with the general trend on the matter and the fact  that the award of damages in these matters has ranged between two  years and one year……”  

In the case of ARKORFUL v. STATE FISHING CORPORATION  [1991] 2 GLR @ 348, the court held that damages are to be measured by  the amount of salary which the employee has been prevented from earning  by reason of the wrongful dismissal. Again in the case of BANK OF  GHANA v. NYARKO and ANOTHER [1973] 2 GLR 265 the Court of  Appeal held that just as an employee of a statutory corporation who has been  wrongfully dismissed is entitled to all sums that he would have earned up to  the date of judgment, so is an employee of a private organization. 

The court hereby awards the Plaintiff damages based on twelve (12)  months’ salary at the time of his termination.

Legal fees comprising of a consultancy fee of GH₵500.00 plus 15% of all  sums paid to the Plaintiff. 

The payment of legal fees results from the client- lawyer relationship.  Accordingly this claim fails and is hereby dismissed. 

Costs plus any additional reliefs that this honorable Court might deem fit. 

The Court hereby awards costs of Five Hundred Ghana Cedis (GH₵500.00)  in favour of the Plaintiff. 

(SGD) 

JUSTICE LAURENDA OWUSU  

JUSTICE OF THE HIGH COURT

COUNSEL

NOAH ASOMANY FOR THE PLAINTIFF

YAA GYAKOBO FOR THE DEFENDANT.