EBENEZER ADJAIDOO V. NOVOTEL HOTEL

JUDGMENT

DEKYEM, J.

Plaintiff was an employee of Defendant until his employment was terminated on  14th July, 2014. Plaintiff was a Laundry Attendant at Defendant’s company, the  latter being a hotel in the city of Accra. Plaintiff’s story, per his pleadings, giving rise  to his claim is that, on or about 2nd July, 2014, he had a request from Defendant’s  guest to perform some laundry duties. Plaintiff averred that, whilst laundering the  guest’s clothing, the guest called him to give further instructions. Plaintiff averred  that, whilst on his way to the guest’s room, he met Fabio, the Room Division Manager (RDM) of Defendant, who asked him whether he had prepared a laundry  bill for the guest, to which Plaintiff replied in the negative. On his return from the  guest to the laundry, Plaintiff stated he met Fabio again. Plaintiff averred that when  he had completed the job, he prepared the bill in which he made an error which  was corrected at the front desk and the guest made to pay the correct amount.  Plaintiff stated he was queried, which he answered and thereafter he was called  into a meeting with the General Manager and Human Resource Manager where he  answered questions regarding the query. Plaintiff contended that, on the 14th day  of July, 2014, his appointment was terminated without due process as per the Staff  manual and the Collective Bargaining Agreement; thus the termination of his  employment was wrongful and unlawful. It is Plaintiff’s case that this wrongful and  unlawful termination was due to his age and the reason given was only a pretext  to cover up the unconstitutional breach by the Defendant. Plaintiff thus claims the  following reliefs: 

a. A Declaration that the plaintiff’s employment was wrongfully terminated.

b. A declaration that the plaintiff’s employment was terminated because of  his age; 

c. Payment of a year’s salary for the wrongful termination; and 

d. Payment of Fifty Thousand Ghana Cedis (GHS50, 000.00) as  compensation for age discrimination. 

Defendant, per the statement of defence, denied Plaintiff’s claim and contended  that contrary to laid down procedure, Plaintiff prepared the bill for the guest only  after he had been queried by the RDM. Defendant contended also that, Plaintiff did  not prepare the invoice for the laundry in accordance with the laid down procedure  and it was corrected before payment by the guest. Defendant averred that, a disciplinary committee was set up to hear Plaintiff after his response to the query. At the Application for Direction stage, the following issues were settled for trial: 

i) Whether or not the Plaintiff committed the offence of not preparing a  laundry bill for a guest in the hotel, until queried? 

ii) Whether or not Plaintiff was granted a fair hearing? 

iii) Whether or not the termination of Plaintiff’s employment was fair and  lawful? 

iv) Whether or not Plaintiff was discriminated against because of his age? v) Whether or not the punishment handed out to Plaintiff was unreasonably  harsher than others who had committed similar infractions? 

The position of the law as to the burden of proof as provided in sections 10, 11, 12  and 14 of the Evidence Act, 1975 (NRCD 323) was applied by the Supreme Court in  GIHOC v. Hanna Assi [2005 – 2006] SCGLR 458 at 485, where Sophia Akuffo JSC held  as follows: 

“10. (1) For the purposes of this Decree, the burden of persuasion means the  obligation of a party to establish a requisite degree of belief concerning a fact  in the mind of the tribunal of fact or the court. 

(2) The burden of persuasion may require a party to raise a reasonable doubt  concerning the existence or non-existence of a fact or that he establish the  existence or non-existence of a fact by a preponderance of the probabilities  or by proof beyond a reasonable doubt. 

11. (1) For the purposes of this Decree, the burden of producing evidence  means the obligation of a party to introduce sufficient evidence to avoid a  ruling against him on the issue.

(4) In other circumstances [i.e. civil matters] the burden of producing  evidence requires a party to produce sufficient evidence so that on all the  evidence a reasonable mind could conclude that the existence of the fact was  more probable than its non-existence. 

12. (1) Except as otherwise provided by law, the burden of persuasion  requires proof by a preponderance of probabilities  

(2) ‘Preponderance of the probabilities’ means that degree of certainty of  belief in the mind of the tribunal of fact or the court by which it is convinced  that the existence of a fact is more probable than its non-existence. 

14. Except as otherwise provided by law, unless and until it is shifted a party  has the burden of persuasion as to each fact the existence or non-existence  of which is essential to the claim or defence he is asserting. 

“….. Since the enactment of NRCD 323, therefore, except otherwise specified  by statute, the standard of proof (the burden of persuasion) in all civil matters  is by a preponderance of the probabilities based on a determination of  whether or not the party with the burden of producing evience on the issue  has, on all the evidence, satisfied the judge of the probable existence of the  fact in issue: see Odametey v. Clocuh [1989-90] 1 GLR 14, SC; Odonkor v. Amartei [1992-93] GBR 59 and Tuakwa v. Bosom [2001-2002] SCGLR 62.  Hence, by virtue of the provisions of NRCD 323, in all civil cases, judgment  might be given in favour of a party on the preponderance of the probabilities  ‘……rather than on an archaic principle which might not accord with reason  or common sense …’’ (see Holding (2) in Odonkor v. Amartei).” 

The Supreme Court further in Poku v. Poku [2007 -2008] 2 SCGLR 996 at 1022 per  Georgina Wood CJ further restated the statutory provisions on the duty of a party  in a civil suit to discharge the burden of proof when she held as follows:-

“It raises the legal question of who bears the burden of persuasion in such  civil matters, ….Who has the onus of proof and what is the degree or standard  of proof? Generally speaking, this depends largely on …. the fact averred and  therefore the facts in issue… Generally, the burden of proof is therefore on  the party asserting the facts, with the evidential burden shifting as the justice  of the case demands. The standard or degree of proof must also necessarily  be proof on the preponderance of the probabilities within the meaning of  section 12(2) of the Evidence Act, 1975 (NRCD 323).” 

Whether or not the Plaintiff committed the offence of not preparing a laundry bill  for a guest in the hotel, until queried? Defendant averred that, the plaintiff contrary  to laid down procedure, prepared the bill for the guest only after he had been  queried by the RDM. The import is that, laundry procedure required that a laundry  bill is prepared before laundry services are rendered. Further that, it is the guest  who completes the laundry form and not the laundry attendant as Plaintiff  contends. The issue that falls for determination is which assertion is the correct  position? The following are paragraphs from Plaintiff’s statement of claim: 

6. Plaintiff avers that on the 2nd day of July, 2014 while at post there was a call  to the Laundry by a guest of the hotel in room 134 requesting for laundry  services. 

7. Plaintiff avers that while Plaintiff was laundering the clothing items the guest  called the laundry room again that she wanted to give further instructions on  the clothing items. 

8. Plaintiff says that while he was on his way to receive the instructions from  the Guest he met, one Fabio, the Room division manager, who asked him if  he had prepared the laundry bill for the guest to which Plaintiff responded in  the negative.

9. Plaintiff further says that on his way to the laundry, after receiving further  instructions about how the items should be laundered and returned, plaintiff  met the said Fabio who asked him again if he had prepared a bill for the  guest. 

10.Plaintiff avers that when he had completed the job he prepared a bill for the  guest and left a copy at the front desk. 

From Plaintiff’s pleadings, he prepared the bill after he had completed the laundry. At paragraphs 3, 4, 6, 8, 9, 10, 11 and 12 of his witness statement, Plaintiff testified  that, he had a call from room 134 to collect items to be laundered which he did and  took the items to the laundry room. When he had laundered the items, Plaintiff  testified that the guest called him again for further instruction. Plaintiff stated that, he put the items on hangers and on his way up to the guest’s room met Mr Fabio,  the RDM and Mr Ayivor (DW1) who took a look at the items and asked him whether  he had prepared a bill to which he answered ‘no’. Plaintiff stated that on his return  to the laundry room, RDM and DW1 came to the laundry room and enquired about  the bill. He said he finished preparing the bill after which the RDM and DW1 left  the laundry room. Plaintiff testified in cross examination on 1st December, 2015  thus: 

Q But you had already laundered the clothes 

A Yes I have (sic) laundered 

Q Had you prepared the bill for the guest? 

A I have (sic) not prepared it. 

By Plaintiff’s own showing, the bill was prepared after he finished laundering the  items and clearly this was after he been queried By the RDM and DW1 on his way  up for further instructions from the guest and on his return to the laundry room.

The next question to ask is, what is the procedure for rendering laundering services  at Defendant’s hotel? On 1st December, 2015, Plaintiff testified thus in cross  examination: 

Q So you are familiar with the process for doing laundry for guest – are  you not? 

A Yes My Lord 

Q That procedure starts with the filling of a form by the guest – isn’t it? A Yes My Lord 

Plaintiff in cross examination on 18th January, 2016 

Q The bill for the guest laundry, it is done on the same form that the  guest fills in when he gives the laundry to the attendant? 

A Yes my Lord 

Q The rules I showed you in document six (exhibit VK6) are the current  rules that are used by laundry attendant in the hotel, I put it to you. 

A Yes My Lord. 

Exhibit VK6 is as follows: 

LAUNDRY PROCEDURES FOR GUEST LAUNDRY 

1. GUEST CALL THROUGH TO HOUSEKEEPING DEPARTMENT 

2. THE LAUNDRY IS PICKED FROM THE GUEST ROOM. 

3. THE STAFF PICKING THE LAUNDRY MUST ENSURE THAT THE LAUNDRY FORM  IS FILLED BY THE GUEST AND IS CORRECT (THUS ITEMS IN THE LAUNDRY BAG  IS THE SAME AS WHAT IS ON THE FORMS AND THE ROOM NUMBER) 

4. THE LAUNDRY IS RECORDED IN THE GUEST LAUNDRY BOOK

5. THE LAUNDRY IS THEN SENT TO THE LAUNDRY FOR SORTING AND TAGGING

6. THE BILLING IS ALSO DONE AT THIS STAGE AND THE FORMS SENT TO THE  FRONT OFFICE FOR POSTING INTO THE GUEST ACCOUNT

7. THE ITEMS ARE EITHER WASHED OR DRY CLEANED DEPENDING ON WHAT  THE GUEST WANTS 

8. THE ITEMS ARE THEN PRESSED AND DELIVERED TO THE GUEST. 

Per the above, the correct procedure is the contents of exhibit VK6. The court has  no difficulty in finding that, Plaintiff did not follow the procedure as laid down in  exhibit VK6. Plaintiff explained in cross examination that, the forms which the guest  needed to make the order for the laundry and which same form doubles as the bill  had run out at the time he collected the laundry which was why same was not filled  out at the commencement. Plaintiff testified thus on 18/1/16 in cross examination: 

Q My question was, there will be no situation where there will be no form  because that form is the same form for which the guest makes his order  for services. 

A My Lord there is a situation where there will be no form in the room  because we go to dress the room. 

Q And when it happens like that who provides the guest with the form? 

A My Lord, when it happened that there is no form in the room, the guest  can request from the top or housekeeping office. We also have some  of the forms in our laundry section so anytime we are going to render  service and we short form, we also take some from our laundry section  and give it out. 

From the above, Plaintiff knew what ought to be done in the event that the form  runs out in the guest rooms. Either the guest requests for some or he supplies the guest with the form from the laundry. The form, exhibited as EA2 is titled ‘ORDER  FORM’ which has a column to be completed by the guest in making his or her order,  for without which Defendant cannot render the services required. The form has detailed information by which the guest is able to give specific instructions for the  service required. It is therefore imperative that, the form is filled by the guest to  make the order and not when the transaction has been completed. 

Further on 22nd January, 2016, Plaintiff testified thus in cross examination: 

Q You said in paragraph 34 of your witness statement that in this  particular instance you were under pressure when filling the bill  because Fabio, the food and beverage manager was standing on you  – is that correct 

A Yes My Lord 

Q And that in fact they had followed you down to the laundry to enquire  about the bill and asked whether the guest will pay or not, isn’t it? 

A Yes My Lord that is so 

Q So that it will be fair for me to say that for this particular instance they  wanted to make sure that you prepare the bill because they were  suspicious 

A Yes My Lord. 

From the above, the RDM and DW1 followed Plaintiff to ensure that he prepared  the bill (form) which ought to have been prepared before the laundry service was  rendered. It is manifestly clear, that Plaintiff committed the offence of not  preparing a laundry bill for a guest in the hotel, until queried by the RDM and DW1.  Plaintiff’s conduct was not in accordance with laid down procedures and will so  hold.

Whether or not Plaintiff was granted a fair hearing? Plaintiff averred at paragraph  15 of his statement of claim that, on the 14th day of July, 2014 his appointment was  terminated without due process as per the Staff manual and the Collective  Bargaining Agreement. He further stated at paragraph 35 of his witness statement  that, he was not informed of the disciplinary committee and had no idea the panel  were members of the disciplinary committee. The Supreme Court had the  opportunity to explain the phrase “to act fairly and reasonably” in the case of Awuni v. West African Examinations Council [2003-2004] SCGLR 471, where Kpegah JSC at  page 489 in his judgment stated: 

“The phrase ‘to act fairly and reasonably’ in my opinion necessarily imports  a duty to observe the common law maxim of audi alteram partem and other  principles of natural justice which is very much part of our jurisprudence and  are implicit in the constitutional provisions in article 23. Because I cannot  contemplate how a person could be said to have acted fairly and reasonably  if he did not give notice or hearing to another who was entitled to such notice  or hearing before taking a decision which adversely affects his rights; neither  can I contemplate a situation where a person could be said to have acted  fairly as a judge in his own cause or give a biased and perverse decision.” 

On her part, Sophia Akuffo JSC expounded further at page 514 thus: 

“I will not venture to give a comprehensive definition of what is fair and  reasonable, since these qualities are dictated by the circumstances in which  the administrative function is performed. At the very least however, it  includes probity, transparency, objectivity, opportunity to be heard, legal  competence and absence of bias, caprice or ill-will”

In cross examination on 18th January, 2016, Plaintiff testified thus: 

Q Can you look at exhibit VK1, it is attached to our witness statement. Do  you recognize that document? 

A Yes My Lord 

Q Is that the query management gave you? 

A Yes 

Q Is that your response you gave to the query? 

A Yes My Lord, that is the response. 

Further on 22nd January, 2016, Plaintiff testified thus: 

Q You said in your witness statement that, after about a week regarding  the incident involving guest in the room 134, you were called by the  personnel manager, you found some persons seated in her office, is  that correct?  

A Yes My Lord 

Q Did they tell you why you were there? 

A The personnel manager told me to explain to them how the incident  happened. 

Q And you mentioned in your witness statement the positions and name  of the persons in the room, didn’t you? 

A Yes My Lord 

Q The personnel manager was with these other persons, wasn’t she?

A Yes My Lord

Q I put it to you that the committee that met was the disciplinary  committee 

A My Lord, I have not attended such a meeting before, it was after I have  left the room on that day before I got to know that Mr Kingsley was  the head of the disciplinary committee. I also know the union  chairman. 

The principle laid down in the Awuni case supra, is that, a person cannot be said to  have acted fairly and reasonably if he failed to give notice or hearing to another  who was so entitled before taking a decision which adversely affects his rights. The  import is that, the alleged offender must be given the opportunity to be heard  before any decision is taken to his detriment. In the instant case, Plaintiff has  testified that he was given a query to which he responded. He also appeared before  a panel where he was asked to tell what happened regarding the incident. He was  asked questions and told to await the outcome which culminated in the  termination of his appointment. Plaintiff did not exhibit the staff handbook or the  conditions of service which he alleged Defendant terminated his appointment  without reference to. What is crucial is that, he must be given the opportunity to  be heard, which Defendant did. The court finds that, Plaintiff was given a fair  hearing, having been made aware of the allegations leveled against him and given  the opportunity to respond and appear before a committee panel before a decision  was taken. The court will so hold. 

The next issue is whether or not the termination of Plaintiff’s employment was fair  and lawful? Plaintiff averred at paragraphs 16 and 17 of his statement of claim that, the termination of his employment was due to his age as the General Manager has been terminating (the employment) and or harassing most of the elderly  employees because of their ages. This assertion grounds the next issue whether or  not Plaintiff was discriminated against because of his age. Plaintiff averred in his  reply that Defendant’s management put up a notice requesting that certain  persons over a certain age to voluntarily resign and benefit from a package but  Plaintiff did not exercise the said option. Plaintiff did not lead evidence in his  witness statement, being his evidence in chief on the issue of discrimination at all. 

The case of Zabrama v. Segbedzi [1991] 2 GLR 221 held that the ‘correct proposition  is that, a person who makes an averment or assertion, which is denied by his  opponent, has the burden to establish that his averment or assertion is true. And  he does not discharge this burden unless he leads admissible and credible evidence  from which the fact or facts he asserts can properly and safely be inferred. The  nature of each averment or assertion determines the degree and nature of that  burden.’

No evidence was adduced to prove Plaintiff’s assertion that, the  termination of his employment contract was due to his age. He has thus failed to  discharge the burden of proof when he asserted that he had been discriminated  against on grounds of his age. 

Having failed to prove that the termination of his employment was due to his age,  the next question to ask is whether or not the termination of Plaintiff’s  employment was lawful. The Supreme Court held in Kobi v. Ghana Manganese Co. Ltd [2007-2008] SCGLR 771 at 786 as follows: “The issues agreed upon for trial, were  whether or not the termination of the Plaintiff’s 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.”

The allegations leveled against Plaintiff, the  reason for the termination of his employment contract, put the matter within the  scope of misconduct and same must be proved to justify the termination. Plaintiff  failed to exhibit the conditions of service and the staff manual which govern the  employment relationship between the parties. In its absence, the statutory  provisions regulating employment for the time being, applies. Section 15 (e) (iii) of  the Labour Act, 2003 (Act 651) provides that a contract of employment may be  terminated, by the employer because of the inability of the worker to carry out  his or her work due to proven misconduct of the worker. Further section 62 (b) of  Act 651 provides that a termination of a worker's employment is fair if the  contract of employment is terminated by the employer on the proven misconduct  of the worker. The onus is on Plaintiff to prove that Defendant breached the  statutory provisions for the time being regulating employment with regards to  termination of employment on grounds of misconduct. 

The query (exhibit VK1), following the alleged misconduct dated 4th July, 2014,  reads as follows: 

On the 2nd day of July 2014 at about 7pm you were seen by the RDM and the  Assistant Housekeeper with five (5) Delta shirts without a bill being taken to  room 134. Could you explain why disciplinary action should not be taken  against you. 

Plaintiff responded to the query thus:

Dear Sir, I was alone at the laundry when the guest call (sic) for services, I  waited for a while because my colleague has (sic) gone to eat. I went to the  guest room when she was bathing, so she gave me the items with the  intention of filling the bill when I bring it back. 

I met the RDM and Mr Ayivor on my way back to the guest with the items.  They asked for the bill but the work is still in progress, so I end the work by  posting the bill. 

Following Plaintiff’s response, he appeared before a disciplinary panel and  subsequently handed a letter of termination of appointment (exhibit EA1) dated  14th July 2014. The said letter reads as follows: 

TERMINATION OF APPOINTMENT 

We refer to the case where you: 

1. Went to the floors to pick up clothes without authorization 

2. Washed the guest’s clothes without a signed laundry request form, 3. Prepared the bill only after your Manager saw you with the clean  clothes and instructed you to do so 

4. Prepared a wrong bill which was later corrected by your Manager 5. Did the laundry in two and a half hours and did not charge for express  service. 

Your response to the query issued and hearing subsequently was  unsatisfactory. You are well aware of the Laundry procedures that you ate  not supposed to enter any hotel room without assignment, and also not  allowed to pick any item from any room. You are also not to clean items  without a signed request form by the guest. 

You have clearly flouted Article 23 subsection (ii) of the staff manual and  Management has lost all confidence in you. 

Management regrets therefore to terminate your appointment forthwith.

No report of the disciplinary committee was exhibited but exhibit EA1, shows the  findings of the committee. The court has already made findings regarding items 1,  2 and 3 of exhibit EA1. Regarding items 4 and 5 of exhibit EA1, this is the testimony  of Plaintiff in cross examination on 1st December, 2015: 

Q How long did it take you to launder the items 

A About three hours 

Q I put it to you that was express service 

A I did not charge her for an express service I charged for a normal service  although I did the work quickly for her. 

Q You are aware that express service will demand additional charge to  the guest are you aware? 

A Yes My Lord 

Further on 18th January, 2016 in cross examination of Plaintiff: 

Q When were you called by the guest to come for the laundry? A After four in the afternoon 

Q Actually it was 4:30pm 

A Yes My Lord 

Q And what time did you return the items? 

A 7:30 

Q Actually it was 7pm 

A Yes My Lord 

The above shows that Plaintiff laundered the items in about two and half hours and  yet did not charge for express service as stated in exhibit EA1. Exhibit EA2, the order/bill form states that “laundry handed in before 9a.m will be returned by  8p.m the same day. Express Service: Add a 50% charge for a delivery at 1:00pm.’ Express service per Defendant’s regulations is done within four hours at a charge  of fifty per cent (50%) extra of the standard charge, yet Plaintiff failed to apply this rate in the billing. In further cross examination on 22nd January, 2016, Plaintiff testified thus: 

Q You made mistakes on the bill in this particular instance because you  had been caught red handed, you were under pressure – I put that to  you. 

A My Lord that is not so. 

Q What was the mistake you committed? 

A My Lord I did not make those mistakes on the billing, those mistakes  were made by the girl at the reception. 

Q So when you say in paragraph 17 of your witness statement that the  mistake I made was instead of US Dollars I wrote Ghana Cedis is not  true? 

A Is true. 

In his witness statement, Plaintiff testified thus: 

13. I finished preparing the bill after which Mr. Ayivor and Mr. Fabio left, I  dropped a copy of the bill at the reception and then I took the other  copy together with the laundered clothing to the Guest in RM134.  

14. The following morning while at home I received a call from a colleague  at work by the name Grace who informed me that I had made a  mistake on the bill. Attached and marked “Exhibit EA2. 

15. After her call I rushed from home to the work place even though I was  scheduled to report to work in the afternoon.

16. Grace had corrected the mistakes on the bill. 

17. The mistake I made was instead of the US Dollar I wrote Ghana Cedis. 

Exhibit EA2 shows the standard cost of cleaning one shirt is US$6.50. Having  laundered five shirts will amount to US$32.50 plus 50% if charged at express rate  but Plaintiff charged GHS32.50 less discount of 20%. If this is not a grave error, I  don’t know what else will be. The court finds that Plaintiff made a mistake on the  bill. The court finds further that, the evidence was overwhelming to ground  Defendant’s findings in exhibit EA1.

In conclusion, the alleged acts of misconduct levelled against Plaintiff, were proven before his employment contract was  terminated. The termination of Plaintiff’s employment contract was thus fair and  lawful and will so hold. Accordingly, Plaintiff’s claim fails in its entirety and same is  dismissed. Costs of GHS1,000.00 awarded against Plaintiff. 

[SGD] 

Justice Gifty Dekyem (Mrs) 

Justice of the High Court

Labour Division, Accra

COUNSEL

John F Appiah ESQ for Plaintiff;

Margaret Owusu ESQ for Defendant.