BENJAMIN OSEI AKOTO V. GHANA AIRPORT CO. LTD.

JUDGMENT

ASUMAN-ADU, J.

The Plaintiff who was an employee of the Defendant Company commenced the current action against the Defendant on 24th March, 2009 for the following reliefs:

i. Declaration that Defendant’s termination of Plaintiff’s employment is unlawful and unfair.

ii. Order compelling Defendant to reinstate Plaintiff to his status quo ante or in the alternative damages to Plaintiff.

iii. Order compelling Plaintiff to pay special damages to Plaintiff.

iv. Order compelling Defendant to pay Plaintiff’s legal fees on full indemnity basis.

v. Costs.

The Defendant entered appearance on 1st April, 2009. It filed its statement of defence on the same day denying the claim of the Plaintiff. However, the Plaintiff brought an application to set aside the entry of appearance for non compliance of the rules but upon an agreement between the parties, the Defendant was allowed to withdraw the said entry of appearance and filed another one with a new accompanying statement of defence on 29th April, 2009.

On 13th May, 2009, the Plaintiff filed a reply to the statement of defence and went on to file an application for directions on the same day. No additional issues were filed by the Defendant so on 10th June, 2009, this court set down the issues raised in the application for direction for trial.

The Plaintiff’s case as stated in his statement of claim was that he was employed by the Defendant in 2003 as aviation security guard and had been in Defendant’s employment at all material times. On 12th December, 2008 he was detailed to work at arrival tunnel at the Kotoka International Airport. While on duty as aforesaid, a colleague of his by name Isaac Ofori approached him with a wheelchair bound passenger to indicate that he wanted the passenger to be assisted to board his flight through the gate being manned by the Plaintiff. The Plaintiff denied the request of his colleague and he contends that for all intends and purposes, he did not have anything whatsoever, to do with the said colleague or the wheelchair bound passenger before or beyond the said counter.

On 10th January, 2008, he received a letter from the Director of the Human Resource Department of the Defendant interdicting him from his employment. On 4th February, 2008 he was summoned at rather short notice to appear before an investigative committee.

According to the Plaintiff the composition of the committee was against the stipulation of the law and that he was not given ample time to prepare his defence or seek legal advice before attending the committee meeting. He claims that after a rather short enquiry at which the questions asked did not elicit any incriminating evidence whatsoever from him, he was asked to leave.

The Plaintiff asserts that to his utter dismay and chagrin he received a letter on 28th April, 2008 terminating his appointment. He contends that the termination of his appointment was without legal basis whatsoever and wholly unfair same being against his enshrined rights to work. He claims that the unfair dismissal has occasioned serious economic hardships against him and his dependant family and that the Defendant will not rescind its decision unless otherwise compelled to do so by this court.

The Defendant on the other hand denies Plaintiff’s claim in its statement of defence that the Plaintiff being a security guard of the Defendant, he was aware that the gate which he manned was only meant for arriving passengers and there was no way a passenger could board his flight through that gate. So having become aware of a breach of procedure, the Plaintiff was duty bound to report such an incident to his superiors for the necessary precautions to be taken. The Defendant contends that being an operator of an International Airport, maintaining security is paramount to its operations and that cannot be compromised in anyway.

The Defendant states that interdiction is part of its procedures when an employee is deemed to have committed a major offence to allow for investigations. It claims that in the instant case it granted the Plaintiff the opportunity to be heard and explain himself by setting up a committee of enquiry.

It contends that the Plaintiff’s appointment was terminated after due process had been complied with and his conduct found to be in contravention of the safety and Security Rules of the Airport. That is he acted in breach of his duty as an Aviation Security Guard. This implies, the Plaintiff acted in a way that compromised his position as an Aviation Security Officer and does not warrant the reliefs being sought by him in his statement of claim.

In his reply the Plaintiff avers that he has been aware at all material times that the gate which he manned was only meant for arriving passengers. That was why he fiercely resisted any attempt by Isaac Ofori to have the gate he was manning used for boarding purposes which would have breached the operation procedure of Defendant. He claims that it was soonest after the incident that he got to know that the culprits had been apprehended and the attempts of the wheelchair bound passenger had been botched.

The Plaintiff further avers that it would have been manifestly irresponsible to have abandoned his post, leaving his gate unmanned only to report the conduct of the said Isaac Ofori to his superiors of attempt he has successfully foiled. Plaintiff goes on to state that after he had vehemently denied the said Isaac Ofori’s request, he reminded him of the right procedure to follow in channeling his request through official channels. Plaintiff, therefore, never compromised the security status of the airport in any way but rather positioned himself in a way as to better the security status of the gate and exhibited extra-ordinary vigilance and professionalism that succeeded in sending signals to would-be miscreants on that day of the futility of using his manned gate for boarding purposes.

The Plaintiff insists in his reply that in dealing with him in the said matter, the Defendant did not observe the rules of natural justice in not according him fair opportunity to defend himself. He claims that the composition of the committee was overly hostile to him and did not evince any evidence from him to reach its decision which was not supported by evidence.

According to the Plaintiff he never violated any known regulation authored by the Defendant or compromise his position in any way at all material times and that the Defendant merely used him as a scapegoat in terminating his appointment.

The Plaintiff gave evidence in support of his case by essentially repeating the averments in his statement of claim. He went on to say that on 24th December, 2007 around 10 pm to 11 pm while at his duty point a colleague worker by name Isaac Ofori who was at the departure gate called him that there was a problem so he was coming to see him at the arrival gate. About 10 minutes time after, the said Isaac Ofori followed by a gentleman went to the Plaintiff. He told the Plaintiff that the man had a problem so he should assist him. The Plaintiff asked the man what his problem was and the man told the Plaintiff that he wanted the Plaintiff to assist him to use his duty point to board the North America aircraft. The Plaintiff told him that he had missed his way since that point was the arrival gate. He as a result directed him to the departure entrance. The Plaintiff then called his colleague who sent the man to him and told him that the man had missed his way so he directed him to the departure gate.

The Plaintiff went on to say that on the following morning when they were about to sign off there was a rumour that a man who pretended to be a wheelchair passenger and boarded a flight had been arrested in the flight. So all the officers at the gate he used were invited to give their statement. At that time the Plaintiff was not invited to give a statement. However, about a month later the Plaintiff was invited to the Intelligence and Investigations unit of the Defendant Company and questioned that the man who was arrested attempted to use his duty point to board the aircraft but he did not report. He explained that he thought the man had missed his way and this normally happens at the airport so he did not take it seriously. He as a result directed the man and thought it was not something he should report. He was asked to leave and about two weeks after he received a letter that the matter was being investigated so he should go on interdiction. He tendered in evidence his letter of interdiction as Exhibit A.

Whilst on interdiction, he had information on one Friday that he should come to the office on the following Monday. So on that Monday he went to the office and he was given a letter that he should appear before a committee on the same Monday. He tendered in evidence the invitation letter as Exhibit B.

On receipt of the letter the Plaintiff appeared before the committee. They asked him what happened on 24th December, 2007. He explained what happened to them. In all he was with the committee for about 20 minutes and he was asked to go and that if they needed him again they would call him. He did not hear from them again and in about three months time he was invited to the airport and he was given a termination letter. The Plaintiff claims the committee members were four but he could not give their names. He tendered in evidence his statement to the committee, the letter terminating his appointment and the committee’s report as Exhibits C, D and E respectively.

The Plaintiff went on to tender in evidence a copy of the Collective Agreement between Ghana Airport Company Limited and the Public Service Workers’ Union of Ghana Trades Union Congress, his letter of appointment and a letter confirming his appointment as Exhibits F, G and G1 respectively.

The Defendant gave evidence through one Grace Asare, the Operations Manager of the Aviation Security of the Defendant Company. In her evidence she told the court that at the airport, access control refers to measures put in place to control the movement of vehicles and persons at the airport. She went on to explain a restricted area at the airport to mean any area where one needs authorization for an access to the place. The arrival hall tunnel is, therefore, a restricted area.

The witness went on to explain the arrival procedures at the airport. She said the arrival hall tunnel is meant for passengers on arrival. So when they come from the aircraft that is the place where they access into the arrival hall. The place is, therefore, not a staff entrance point and it is also not a means to access any other place. She said that it was not possible for a passenger who wanted to board an aircraft to lose his way and appeared at the arrival tunnel. This is because before one gets to the arrival tunnel he needs to go through some other security check points. She went on to explain that if the person is escorted by an Aviation Security Guard then it must be reported to the shift leader on duty because it is a breach of security for an unauthorized person to be escorted to such restricted areas.

She avers that in the current case it was wrong for the Plaintiff to say that he just asked the gentleman who had wanted to use his point to board the aircraft to go on his own without a report being made. She claims that the aim of the Aviation Security is to prevent sabotage of an airport and its facility to prevent hijack of an aircraft. It was, therefore, a must that the Plaintiff should report the gentleman for him to be arrested and investigated to find out why he went there with the intention to board the aircraft. Having failed to report the incident the witness considers the Plaintiff to be a security threat.

One Nathanael Kwadjo Dei, the Security Manager in charge of Training of the Defendant Company gave evidence as DW1. He told the court that the Defendant has training programme for both security and non security staff. The Defendant, however, has a special package for security staff for them to acquire the necessary competence for the performance of basic aviation security functions.

The witness went on to explain that access control at the airport centers mainly on preventive measures. This implies that when an unauthorized person attempt to access a restricted area he must be denied by the security officer there and also he must be reported to the Supervisor of the security officer. He states that in the current case it was unprofessional for the Plaintiff to just deny access to the said Kofi Lamptey without reporting the incident. He says if the Plaintiff had done that he would have stopped him from attempting to board the flight since the man would have been arrested. There was, therefore, a security breach on the part of the Plaintiff. The witness tendered in evidence a document on the standard procedures at the airport as Exhibit 1.

Having reviewed the pleadings and the evidence of the parties I will now evaluate the evidence before the court vis-à-vis the issues that this court has been called upon to determine. The said issues will be considered seriatim.

The issues set down by this court for determination are as follows:

a) Whether or not Plaintiff had prior knowledge of an attempt to use his duty post as boarding gate.

b) Whether or not Plaintiff participated in the attempt to use his duty post as boarding gate.

c) Whether or not the Plaintiff was duty bound to report attempts to use his duty post as boarding gate to his superiors.

d) Whether or not the Plaintiff had opportunity but neglected to report the said attempt to his superiors.

e) Whether or not the Plaintiff compromised the security status of the airport at the material time or played any role therein.

f) Whether or not the Plaintiff breached his duty at the material time.

g) Whether or not the Defendant gave the Plaintiff fair opportunity to defend himself.

h) Whether or not the Defendant breached natural justice.

i) Whether or not the Defendant punished the Plaintiff twice for same alleged offence.

j) Any other issue(s) raised by the pleadings.

Issues a, b, c, d, e and f deal with an attempt made by the said Kofi Lamptey to use the Plaintiff’s duty post to board the aircraft and the role played by the Plaintiff, so those issues will be considered together. The evidence before the court as presented by the Plaintiff shows that on 24th December, 2007 around 10pm to 11pm he was on duty at the arrival terminal. Whilst there a co-worker by name Isaac Ofori who was also on duty at the departure terminal called the Plaintiff and told him that there was a problem so he was coming to him. About 10 minutes after, Isaac Ofori accompanied by a gentleman went to the Plaintiff. He told the Plaintiff that the man had a problem so the Plaintiff should assist him to use his duty post. The Plaintiff claims that he enquired from the man what his problem was and the man told him that he wanted the Plaintiff to assist him to use his duty post to board the North American aircraft. According to him he told the man that he had missed his way since his duty post was the arrival terminal. He as a result directed him to the departure entrance.

From the evidence of the Plaintiff as stated above some questions may be asked. The first one being that, why should Isaac Ofori leave his duty post at the departure terminal where the man was supposed to use to board the aircraft and rather sent him to the Plaintiff who was at the arrival terminal? Was Isaac Ofori aware that the man had wanted to use the arrival terminal to board the aircraft? When he went to the Plaintiff did he discuss with the Plaintiff the problem the man had? Had the man truly missed his way? It is my opinion that the Plaintiff being a security officer manning a restricted area it was his duty to screen all persons found in that area to find out their true intention and those found not to be genuine are reported for the necessary action to be taken against such persons.

In the current case if the evidence given by the Plaintiff was what actually happened then in the performance of his duty the Plaintiff did not act professionally. This is because if the man actually told the Plaintiff that he wanted to use his duty post then he should have found out from him why he was not assisted by Isaac Ofori who was at the departure terminal but rather wanted to use the arrival terminal which was not the proper place to use to board the aircraft.

Exhibit 1 provides at page 7 recognizing behavior that may be suspicious, one being attempt to gain access to restricted area. Since the man was escorted to the Plaintiff’s duty point by a colleague security officer who was manning a departure gate and made an attempt to use that point which was an arrival terminal he was a suspicious character so after denying him access the Plaintiff should have gone ahead to report him to his supervisor as stated at H3.3 of Exhibit 1 as follows:

“In the event that any person gains or attempts to gain unauthorized access to an airport restricted area, security personnel will endeavour to prevent such entry and will immediately notify the security supervisor.”

In the current case the Plaintiff failed to report the man to his supervisors as a result of which he made a second attempt to board the flight as a wheelchair passenger. So the failure of the Plaintiff to report the incident was a security breach at the Airport.

From the evidence before the court even though there is nothing to show that the Plaintiff had prior knowledge of the attempt made by the man to use his duty post to board the aircraft the fact that he had prior knowledge or not is not what matters. It is rather what he did after getting to know the intention of the man that matters. From the evidence when the Plaintiff was faced with this strange request from the man to use his duty point to board the aircraft he did not allow the passenger to use his duty point and ended there. He, however, did not see it necessary to report to his supervisors about the strange request but rather allowed the man to go out of the restricted area unescorted against the laid down procedures.

From the evidence as given by Grace Osei and Nathanael Kwadjo Dei which stands unchallenged access control basically centers on preventive so the Plaintiff being a security officer manning arrival terminal which was a restricted area he should have reported the incident to his supervisor which he did not and this amounts to a security breach. Even though there is no evidence that the Plaintiff participated in the attempt made by the man to use his duty post to board the aircraft he was duty bound to report the attempt made by the man to use his duty post to board the aircraft. It is my opinion that if he had asked himself the questions stated above he would have known that the man had not missed his way but for reasons best known to him he wanted to board the aircraft through the arrival terminal which was not allowed. The Plaintiff, therefore, had the opportunity to report the attempt made to board the aircraft but he did not report it to his superiors. For not making the report, the Plaintiff compromised the security status of the airport at that material time. If he had reported the man for him to be arrested he could not have made the second attempt to board the aircraft which led to his arrest. That incident could have been prevented if the Plaintiff had been vigilant.

The evidence shows that the Plaintiff had worked as a security officer with the Defendant Company for about 5 years before the current incident. This shows that he was an experienced Security Officer. He was aware of departure formalities so that if someone goes to him that he wanted to use his terminal to board the aircraft then he must be alert that there was something wrong. This is because the person should have gone through some other security check points and before one gets to the duty point of the Plaintiff he needs to get some form of authorization. It was, therefore, not possible for somebody to come and tell the Plaintiff that he lost his way. More so he was escorted to that point by another security officer who was manning a departure terminal. This is clearly a breach of security which should have been reported to the authorities. So failure on the part of the Plaintiff to report the incident amounts to a breach of his duty at the material time.

Issues g, h, and i deal with the termination of Plaintiff’s employment so they will be taken together and grouped under one issue as whether or not the termination of Plaintiff’s employment was wrongful. Since the three issues raised deal with wrongful termination of Plaintiff’s employment, it was his duty to prove to the court that the Defendant act terminating his employment does not comply with the terms of his employment. The principle on this is found in the case of Morgan and Ors. v. Parkinson Howard Ltd 1961 GLR 68 where Ollenu J. (as he then was) stated at page 70 as follows:

“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 terms of his agreement, or that the determination is in contravention of the statutory provisions for the time being regulating employment. His claim cannot succeed if he fails to satisfy the court on these points.”

This position of the law was adopted by the Supreme Court in the case of Kobi v. Ghana Manganese Co. Ltd. [2007-2008] SCGLR 771 at Page 786 where Ansah JSC states as follows:

“The issues agreed upon for trial, were whether or not the termination of the Plaintiffs’ appointment was wrongful and illegal and whether or not the Plaintiffs were entitled to their claims. This being an action for damages for wrongful dismissal, each Plaintiff assumed the burden of proving the terms of his employment; that the determination was in breach of the terms of the agreement, or in contravention of statutory provisions for the time being regulating employment. If a Plaintiff failed to satisfy the Court on these points, his or her claim cannot succeed.”

In applying the principles in the authorities referred to above to the current case, I am of the opinion that the current action being an action for wrongful termination of the appointment of the Plaintiff herein he assumed the burden of proving to the Court his terms of employment and that his termination is in breach of the terms of his employment, or it is in contravention of statutory provisions for the time being regulating employment in the country. This Court will, therefore, have to find out from the evidence before it whether the Plaintiff has been able to satisfy those principles in the current case.

As has been stated elsewhere in this judgment the Plaintiff tendered in evidence Exhibit F which is the Collective Agreement between the Ghana Airports Company Limited and the Public Services Workers Union. From the evidence the employment relationship between the Plaintiff and the Defendant was regulated by that exhibit. I must, therefore, state that the Plaintiff has satisfy the first duty on him in that in this proceedings he has tendered in evidence the Collective Agreement which clearly shows the terms of his employment with the Defendant.

The question that this court will have to address is whether by tendering Exhibit F in evidence the Plaintiff has been able to prove to this court that the circumstances leading to the termination of his employment were in breach of the terms of Exhibit F. To the Plaintiff he has not committed any offence that warrants his appointment being terminated; so his termination was wrongful. The Defendant’s case, however, is that the Plaintiff is guilty of gross dereliction of duty which constitutes a major offence under the Collective Agreement so the Defendant is justified in terminating the Plaintiff’s employment. To find out whether or not the termination of the Plaintiff’s employment was wrongful, I will refer to the relevant portions of Exhibit F in this judgment.

Article 17 of Exhibit F deals with disciplinary policy and procedure in the Defendant Company. The said Article provides for a major offence and a minor offence and the procedure to adopt in each case. It states that when a major offence is committed, the Managing Director of the Defendant Company shall appoint a Committee comprising of Management and the Union to investigate the incident and forward all the records and correspondence together with its recommendations in duplicate to the authorities for appropriate action.

Article 17 (2) (c) of Exhibit F provides for penalty for major offences. The following penalties are listed; final warning, suspension from duty without pay up to a maximum period of ten consecutive days, surcharge, withholding salary for days of absence, termination of appointment and summary dismissal.

Article 17 (2) (e) provides that if an employee is involved in a criminal case or major offence and such a case is under investigation or is referred to the Police or the Law Court, the employee shall be interdicted from duty and given two-thirds (2/3) pay during the period of the investigation or as long as the case remains with the Police or the Law Courts. If he is found guilty, his appointment shall be terminated or appropriate disciplinary action as may be deemed fit by Management would be instituted. But if he is acquitted, the remainder of his salary and other allowance withheld shall be restored to him and he shall retain the position he held before his interdiction.

By Exhibit E the Plaintiff was found guilty of dereliction of duty which is classified under a major offence. So the question that must be cleared is whether the Defendant adopted the appropriate procedure under the Collective Agreement in terminating the Plaintiff’s employment.

In the evidence before the court the Plaintiff claims that he was not given a fair opportunity to defend himself on the issue. He says that on a certain Friday he got a call that he should report at the Airport on the following Monday. When he got there on that Monday he was given a letter that he had been invited to meet a committee on that very day so he met the committee on that very day. According to the Plaintiff he appeared before the committee and he was asked what happened on 24th December, 2007 and he explained what happened to the committee. He was there for just about 20 minutes and he was asked to go for when they needed him they would call him. He never heard from them again until about three months after when he was called to the office. When he went he was given a termination letter. So by that the Defendant breached the natural justice rule therefore, making the termination of his employment wrongful.

The Defendant, however, insists that by failing to report the incident to the authorities the Plaintiff breached his duty. Also in terminating the Plaintiff’s employment it complied with the provisions in Exhibit F so the termination of the Plaintiff’s employment was lawful.

It is very clear from the evidence that when it came to the notice of the Defendant Company that the said Kofi Lamptey first attempted to use the duty point of the Plaintiff to board the North American Airlines, he was interdicted by a letter which was written by the Director Human Resources in accordance with Article 17 (2) (e) of Exhibit F. The letter was tendered in evidence as Exhibit A. A committee to investigate the matter which also involved other employees was set up so by Exhibit B the Plaintiff was invited to appear before the committee. The Plaintiff submitted a written statement to the committee and also appeared before it. The statement was tendered in evidence as Exhibit c. The committee went into the matter and submitted its report which was tendered in evidence as Exhibit D. By the said report the committee found the conduct of the Plaintiff as being a gross dereliction of duty under Article 17(2) (a) (ix) of Exhibit F and willful and deliberate violation of safety rules and practices under Article 17 (2) (a) (xvi) which constitute major offences so it recommended that the appointment of the Plaintiff be terminated.

By Exhibit D, the Plaintiff’s appointment with the Defendant Company was as a result terminated with immediate effect. By the said letter he was to be paid a month’s salary in lieu of notice in accordance with the provision in the Collective Agreement. The Director of Finance was also expected to pay him all his entitlements upon completion of departure formalities. Can it then be said that the termination of Plaintiff’s appointment was wrongful?

In his address counsel for the Plaintiff submitted that the Defendant did not observe due process in terminating the employment of the Plaintiff. He claims that at no time was the Plaintiff the subject of any investigation by the Defendant. He goes on to submit that at the committee, the Plaintiff was invited to assist the Defendant to determine matters that led to the arrest of the passenger on that fateful day. He claims that before attending the committee of enquiry, the Defendant never informed Plaintiff that any charges had been leveled against him warranting the need for him to prepare to defend himself or seek counsel. So by implication counsel for the Plaintiff submits that he was not made aware of the allegation made against him and that amounts to a breach of the natural justice rule.

It is trite law and a cardinal principle of justice that no man shall be condemned unless he has been given prior notice of the allegation against him and a fair opportunity to be heard. See Halsbury’s Laws of England 4th Edition vol.1 pg 76. It is also settled law that where there are rules for a disciplinary procedure to be followed an employer who fails to adopt the laid down procedure stands to be mulcted in damages for wrongful dismissal. Where, however, there are clearly no specific procedures, the employer is under a duty to act fairly and comply with the rules of natural justice; that is the Plaintiff must be given a proper opportunity of making out his case. See the case of the Republic v. Ghana Railway Corporation Ex-parte Appiah and Anor [1981] GLR 753. It was held in that case that the principle simply meant that a party ought to have reasonable notice of the case he has to meet and ought to be given the opportunity to make his statement in explanation of any question or to answer any arguments put forward against it. The principle does not in any way require that there must be a formal trial of a specific charge akin to court proceedings.

See also the case of Laguda v. Ghana Commercial Bank (2005-2006) SCGLR 388 in which it was held that the core idea implicit in the natural justice principle of audi alteram partem was simply that a party ought to have reasonable notice of the case he has to meet and ought to be given the opportunity to make his statement in explanation of any question and answer any argument put forward against him. The principle does not require that there must be a formal trial of a specific charge akin to court proceedings. Thus in dealing with the principles of natural justice, one has to always bear in mind that the principles are substantive rather than procedural safeguards. Therefore, the fact that a particular formal procedure is not adopted does not itself imply that the principle has not been applied in an appropriate case.

Baddoo JSC stated at page 400 of the same case that:

“I find that the written query inviting the plaintiff to submit an answer to the allegation of misconduct and his subsequent response to the query, comprehensively complied with the audi alteram partem rule.”

In the current case the evidence before this court shows that after the incident made by the man to use the duty point of the Plaintiff to board the aircraft, the Plaintiff was interdicted by a letter tendered in evidence as Exhibit A. The said letter makes it clear to the Plaintiff the reason for the interdiction and the setting up of a committee to investigate the matter in issue. For the avoidance of doubt I will reproduce the said letter in this judgment.

“Date: JANUARY 10, 2008

MR BENJAMIN OSEI AKOTO

AVIATION SECURITY DEPARTMENT

KIA – ACCRA

Dear Sir

INTERDICTION

Information reaching us indicates that on December, 12, 2007, you allegedly aided one Mr. Kofi Lamptey who pretended to be physically challenged and was later apprehended in a wheel chair at the Gang way of Flight NA 126 by a North American Airline Security official.

Management has consequently decided in accordance with Article 17:2 Section (f) of the Collective Bargaining Agreement to interdict you with immediate effect.

You shall be paid two thirds (2/3) of your salary during the period of interdiction in line with the aforementioned article until the committee set up to investigate determines the outcome of the case.

Yours faithfully

R. S TAGOE

DIRECTOR, HUMAN RESOURCES”

The said letter clearly accuses the Plaintiff for allegedly aiding one Kofi Lamptey to board a North American aircraft. It goes on to show that the said Kofi Lamptey was arrested at the Gang Way of the aircraft. It further shows that a committee had been set up to investigate the matter.

From the evidence given by the Plaintiff to this court on 10th March, 2011, the Plaintiff later got to know that the man who attempted to board the aircraft pretending as a wheelchair passenger was the same man who attempted to use his duty point to board the aircraft on 24th December, 2007. I will want to refer to that aspect of Plaintiff’s evidence in this judgment which states as follows:

“My lord on the 24th of December, 2007 I went to work I was detailed at the arrival tunnel of the Ghana Airport Company to perform night duty there. My lord around 10 pm to 11 pm a co-worker who was detailed at departure, his name is Isaac Ofori, he called me and said there was a problem so he was coming to see me at the arrival terminal. Ten minutes later he came there and he was followed by a gentleman. He then told me the man had a problem so I should assist him to the duty post. I asked the man his problem and he told me he wanted me to assist him to board the North America aircraft. I told him he had missed his way so I directed him to the departure entrance.”

The Plaintiff continued his testimony as follows:

“I did not hear anything again. The next morning when we were about to sign off then there was a rumour at the work that a man pretended to be a wheelchair passenger and board and flight and was arrested in the flight. Then where he passed to board the flight the officers over there were called to the office for them to write a statement, by that time I was not called, nobody told me anything, I was not part of anything. About one month later our Intelligent and Investigation Unit called me that the man who was arrested initially attempted to use my place to board the aircraft but why did I not report the man and I told them that I thought the man had missed his way. I did not take it seriously and normally at the airport people miss their ways. Sometimes people leave their baggage in the aircraft and they come back, they want to pass through the tunnel to go to the aircraft and pick their bag. We direct them and tell them that that is not so. So I thought the man had missed his way. I just directed the man that was why I did not report to my superior and he asked me to leave. About two weeks later I got interdiction letter that the matter was being investigated.”

So from the testimony of the Plaintiff he became aware that the man who attempted to board the North American aircraft as a wheelchair passenger and was arrested was the same man who had wanted to use his duty point to board the aircraft at about two weeks time before his interdiction which was on 10th January, 2008. It was also very clear from the letter of the interdiction that he would be invited to appear before a disciplinary committee on the matter. On 30th January, 2008 he was invited to appear before the committee. The said invitation which was tendered in evidence as Exhibit B states as follows:

“An incident occurred on 24th December, 2007 in which you were alleged to have aided one Mr. Kofi Lamptey who pretended to be a physically challenged passenger and was later apprehended at the gangway of flight NA 126 by the Airline security.

As a follow up to the incident, a committee of enquiry has been constituted to investigate and establish the circumstances leading to the incident.

You are kindly requested to appear before the committee together with a written statement Monday 4th February, 2008 at 1000hrs in the Personnel Manager’s office (GACL).”

It is very clear from Exhibits A and B that when the Plaintiff appeared before the disciplinary committee he knew of the charge that had been leveled against him. Also he had over a month’s notice of the allegation against him so he had enough time to prepare his defence and consult a legal counsel if he so wished. It is, therefore, not correct that the Plaintiff was not a subject of investigation as submitted by counsel. It is also not correct that the Plaintiff was never informed of any charge leveled against him. From the evidence the Plaintiff was aware of the charge and he had ample time to prepare his defence.

Counsel for the Plaintiff goes on to submit in his address that in further violation of due process, Defendant refused to accord Plaintiff his right to challenge any findings made against him as in the report of the enquiry that led to the termination of his appointment by not given him a copy of the said report. There is no evidence to the effect that Plaintiff requested that he should be given a copy of the report and he was declined. Exhibit F also does not state that the Plaintiff should by all means be given a copy of the report. The said exhibit states that after the investigations the committee shall forward all the records and correspondence together with its recommendations in duplicate to the authorities for appropriate action. Since it is not stated in the Collective Agreement that a copy of the report should be given to the person investigated and also there is no evidence on record that the Plaintiff requested for a copy and he was not given it cannot be said that the Defendant violated the due process for not making a copy of the said report available to the Plaintiff.

Counsel submits that the Defendant committed a major breach of the rule of double jeopardy by constituting another committee of enquiry to investigate the Plaintiff for the second time in the same incident which the National Security had already investigated and acquitted the Plaintiff.

From the evidence it is true that the National Security conducted its own investigations into the matter it is, however, not clear from the evidence that the National security acquitted the Plaintiff. This is because no evidence was led on that issue by the Plaintiff. Also he never tendered in evidence the report on the National Security investigations. It must, however, be noted that the fact that the National Security conducted investigations into the matter does not stop the Defendant herein from conducting investigations internally into the matter. The National Security cannot dictate to the Defendant as to disciplinary measures that can be taken against the staff of the Defendant who were found guilty. This is the more reason why it should conduct its own investigations in accordance with the Collective Bargaining Agreement in order to determine those staff whose actions and inactions facilitated the incident. The Defendant is mandated under Article 17 (2) (a) of Exhibit F that in cases of major offences to set up a committee of enquiry to conduct an investigation into the matter. The Defendant, therefore, did not breach any rule of double jeopardy by setting up the committee to conduct its own investigations into the matter.

Counsel goes on to submit that it is only the Director General of the Defendant Company who had the mandate to constitute any committee of enquiry in the form the Defendant purported to have done to investigate the Plaintiff. However, the committee that investigated the Plaintiff was not constituted by the Director General so it lacked the necessary legal backing. In view of that any actions purporting from it must be declared null and void.

By Exhibit F when a major offence is committed, the Managing Director shall appoint a Committee comprising of Management and the Union to investigate the incident. In the current case counsel for the Plaintiff claims that the committee that investigated the Plaintiff and the other colleagues was not constituted by the Director General so it had no legal backing so whatever action purporting from it is null and void. Exhibit A which informs the Plaintiff of the formation of a committee to investigate the incident was written by the Director of Human Resources on behalf of Management. Exhibit F defines Management to include the Company, Managing Director, Deputy Managing Director, Directors, Managers and analogous positions that may be determined by the Board of Directors. It is even not clear from that exhibit who actually instituted the committee. The letter just informs the Plaintiff that a committee has been set up. According to Grace Asare who gave evidence on behalf of the Defendant the committee was constituted by the Director of the Human Resources on behalf of the Managing Director. The Plaintiff could not give evidence to contradict that piece of evidence. The court, therefore, agrees with the Defendant that it was normal for the committee to be constituted by the Human Resources Director on behalf of the Managing Director. The court takes notice of the fact that a copy of the letter of interdiction which informed the Plaintiff of the setting up of the committee was sent to the Managing Director. Also the letter terminating Plaintiff’s appointment which was based on the committee’s report was signed by the Managing Director. This clearly shows that if the committee was set up by the Human Resource Director then it was done with the approval of the Managing Director. Had it not been so, he would not have based on that report to terminate Plaintiff’s appointment. The committee was as a result properly constituted so it had the legal backing of the Managing Director of the Defendant Company. It was, therefore, valid.

So from the evidence before the court, the appointment of the Plaintiff was terminated by the Defendant Company because the Plaintiff breached security procedures by failing to report to his superiors when an unauthorized person was accompanied by a security officer to his duty point which was an arrival terminal and told him that he wanted to use that point to board the aircraft. This constitutes a serious security breach.

It must be noted that employment is a contract of service and not servitude between an employee and his employer. In view of that in an employment relationship none of the parties can force the other to remain in the contract. So, just as an employee cannot be forced to remain an employee of an employer so one cannot force an employer to work with an employee it does not want to work with. The Plaintiff herein can, therefore, decide to leave the Defendant’s employment at any time. Much the same way the Defendant may decide to dispense with his services at any time provided it is done in accordance with the terms of the contract of the employment. 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.

In the current case the evidence before the court shows that when it came to the notice of Management of the Defendant Company that the Plaintiff allegedly failed to make a report to his superiors of the attempt made by the man to use his duty point to board the North American aircraft, he was interdicted in accordance with the provisions in the Collective Agreement. He was informed in the said letter of interdiction of the setting up of a committee to investigate the incident. He was subsequently invited to the committee where he submitted a statement and was interviewed. The committee submitted a report to Management of the Defendant Company in which it found the conduct of the Plaintiff on the day in question as a gross dereliction of duty under Article 17:2 (ix) of Exhibit F and a willful and deliberate violation of safety rules and practice under Article 17:2 (xvi) of Exhibit F. Considering the gravity of the offences and the security implications of the Plaintiff’s action the committee recommended that the Plaintiff’s appointment be terminated. So per Exhibit D Plaintiff’s appointment was terminated on 28th April, 2008. By the letter he was to be paid a month’s salary in lieu of notice as stated in the Collective Agreement. He was also to be paid all his entitlements.

So from the evidence before the court the Defendant followed due process in terminating the Plaintiff’s employment. The Plaintiff was given fair opportunity by the Defendant to defend himself. So there was no breach of the natural justice rule by the Defendant. The Plaintiff was never punished twice for the same offence. The termination of Plaintiff’s employment was, therefore, not wrongful. The Plaintiff is as a result not entitled to the reliefs endorsed on his writ of summons. His claim is as a result dismissed.

In conclusion I enter judgment for the Defendant.

SGD

KWABENA ASUMAN-ADU J

JUSTICE OF THE HIGH COURT

COUNSEL

MR. ALEXANDER OSEI OWUSU FOR THE PLAINTIFF

MS ROSEMARY BOAMPONG FOR THE DEFENDANT.