NATIONAL LABOUR COMMISSION V. HEALTH FACILITIES AND REGULATORY AGENCY
by JUSTICE GIFTY DEKYEM
Jurisdiction
High Court
Judge
JUSTICE GIFTY DEKYEM
Catalog Type
Case
Judgement Date
Feb 29, 2016
Summary
Labour Law – Unfair termination – Probation – Status of employee at end of probation – Powers of the National Labour Commission – Enforcement of NLC directives – Burden of proof – Absence of defendant The National Labour Commission (NLC) applied to the High Court under section 172 of the Labour Act, 2003 (Act 651) for the enforcement of its directives following a complaint of unfair termination by an employee whose appointment was subject to a one‑year probation. The employer failed to confirm or formally terminate the employee’s appointment at the end of probation, yet prevented him from continuing at post. Held: (1) Upon the expiration of a stipulated probation period, an employee ceases to be on probation and becomes a permanent employee unless the employment is lawfully terminated or the probation expressly extended in accordance with the contract and the Labour Act. (2) Where an employer alleges termination during or after probation, the burden shifts to the employer to justify the termination once the employee establishes a prima facie case of unfair termination. (3) The NLC is empowered under section 64 of Act 651 to order reinstatement, re‑employment, or compensation where termination is found to be unfair, and such directives are enforceable by the High Court. (4) In an application to enforce an NLC decision, the court will not automatically re‑open the merits of the decision but may satisfy itself that the directives are consistent with the law before ordering enforcement. (5) Where a respondent, duly served, fails to oppose an enforcement application, the court may proceed to grant the application provided the claim is supported by law and evidence. Accordingly, the court granted the application and ordered the enforcement of the NLC’s directives, including reinstatement of the employee and payment of all accrued entitlements.
Full Content
JUDGMENT
DEKYEM, J.
This judgment is in respect of motion on notice for an order for the enforcement of the decision of the National Labour Commission (NLC) pursuant to section 172 of the Labour Act, 2003 (Act 651) which provides that:
Where any person fails or refuses to comply with a direction or an order issued by the Commission under this Act the Commission shall make an application to the High Court for an order to compel that person to comply with the direction or order.
The affidavit in support of the motion paper indicates that a complaint was received by Applicant from one Stephen Owusu (Petitioner) against Respondent (also Respondent regarding the said complaint). Parties were heard and at the end of the hearing Applicant directed as follows:
1. That the Petitioner shall be reinstated with effect from the date of completion of his probation i.e. 21st August 2009.
2. That the Petitioner shall be paid all his entitlements thereof.
3. That the parties shall report compliance of this directive to the Commission within fourteen (14) days upon receipt.
4. That this settles the matter brought by the Petitioner against the Respondent.
Although there is proof of service on Respondent of the instant motion to be moved, they did not oppose the application. It is trite learning that where an action is called for trial and plaintiff attends and the defendant fails to attend, the trial judge may allow the plaintiff to prove his or her claim. (see Republic v. Court of Appeal, Ex Parte Eastern Alloys Co. Ltd [2007-2008] 1 SCGLR 371; In re West Coast Dyeing Industry Limited; Adams v. Tandoh [1984-86] 2 GLR 561 CA; Walata v. Ghana Primewood Products Ltd [1973] 2 GLR 126).
The above directives are what Applicant is seeking to enforce. It was held in The Republic v. The High Court (Commercial Division) Accra Ex Parte: Port Handling Company Limited AND Crosswinds Consulting and Financial Service (Civil Motion J5/23/2013 delivered 30th October 2013) that
“(T)he courts have been established to administer justice according to law. Administering justice according to law means according to the laws of the land, statutory and common law inclusive. No court will consciously order the enforcement of any decision that it knows to have infringed aspects of the laws of the land. That will be absurd and the thought of it would be inconceivable. It would only do so where there are express provisions of the law permitting the infringement.”
It was further held in the same case that “…. when the decision of the Commission was referred to the court for enforcement, the reference may not give rise to automatic re-opening of the decision or re investigation. At the same time, the reference does not compel the court to rubber stamp the enforcement. It will at best call for the record of the proceedings giving rise to the decision only if it can be demonstrated that that is necessary to do justice to the parties in the case. After calling for the record, it is not impossible for the court in the interest of justice to consider whether any aspect of the decision was supported by the investigation proceedings of the case.” A brief facts of the case will serve a good purpose.
Petitioner was appointed by letter dated 3rd September 2008 subject to one year probation period. Upon satisfactory work and conduct Petitioner will be eligible for confirmation per clause 4 of the appointment letter. Clause 4 of the appointment letter read as follows:
“You will be on probation for one year and subject to satisfactory work and conduct, you will be eligible for confirmation on your appointment.”
By letter dated 31st July 2009, Respondent wrote to Petitioner thus:
APPOINTMENT TO THE POST OF PRIVATE SECRETARY
PRIVATE HOSPITALS AND MATERNITY HOMES BOARD
RE: END OF PROBATION PERIOD
Paragraph 4 of your appointment letter dated 3rd September 2008, referred.
You assumed duty on August 1, 2008, and therefore end your probation period of one year on July 31, 2009. You have earned one month paid leave pending the confirmation or termination of your appointment.
You would be contacted to pick up your appointment/confirmation letter should your appointment be confirmed, by 21st August 2009.
The evidence shows that Petitioner was not called to pick up a letter confirming his appointment after probation. The probation period having ended on 31st July 2009 neither was any communication made to him terminating his appointment. In a letter from Petitioner to Respondent, he stated that “I have been unfairly treated by the Acting Registrar who is sending me away from my job without stating any reason for doing so...” Without any outcome from Respondent, Petitioner lodged a complaint with Applicant who made directives as reproduced above after hearing both parties.
Wordweb dictionary defines “Probation” as a trial period during which one’s character and abilities are tested to see whether he or she is suitable for work. Regulation 5 of the Labour Regulations, 2007 LI 1833 provides that “(W)here, as a condition for the engagement of an employee, a contract of employment requires probation, the contract shall specify the duration of the probation for the employee.”
At the end of the probation period, a worker ceases to be on probation. He or she becomes a permanent employee unless the contract is terminated in accordance with the employment contract or extended. The House of Lords held in Miller and Partners Ltd. v. Whitworth Street Estates (Manchester) Ltd. [1970] 1 All E.R. 796, H.L. that “in construing a contract, e.g. for the purposes of ascertaining any intention of the parties thereto ….., it was not proper to have regard to the conduct of the parties after the contract had been made. "Otherwise," as Lord Reid observed at p.798, "one might have the result that a contract meant one [p.422] thing the day it was signed, but by reason of subsequent events meant something different a month or a year later."
Clause 4 being the intention of the parties regarding the appointment at the beginning of the contract is explicit on the conditions of confirmation following the probation period. Eligibility for confirmation was subject to satisfactory work and (good) conduct and not whether or not one is contacted to pick up one’s appointment/confirmation letter by 21st August 2009. Acquaye v. Awotwi [1982-83] 2 GLR 110, held that the well-known rule of evidence is that although proof in a civil case rested on the plaintiff, that burden was discharged once the plaintiff had introduced sufficient evidence of the probability of his case. It would then rest on the defendant to rebut the plaintiff’s evidence.
Further in Re Ashalley Botwe Lands: Adjetey Agbosu and Ors v. Kotey and Ors [2003-04] SCGLR 420, it was held that “…. the burden of producing evidence in any given case was not fixed but shifted from party to party at various stages of the trial depending on the issue(s) asserted and/or denied.”
The onus thus shifted to Respondent to justify the termination of Petitioner’s employment in the manner that it did. There was no evidence to suggest that Petitioner’s appointment was not confirmed because during the probationary period he performed unsatisfactorily and or did not have good conduct. Applicant was thus entitled to come to the conclusion that it did that “the Petitioner is therefore deemed to be at post as the Respondent failed to notify him about any action taken on him after his probation.”
Section 64 of Act 651 provides that a worker who claims that the employment of the worker has been unfairly terminated by the worker's employer may present a complaint to Applicant and if upon investigation of the complaint Applicant finds that the termination of the employment is unfair, it may (a) order the employer to re-instate the worker from the date of the termination of employment; (b) order the employer to re-employ the worker, either in the work for which the worker was employed before the termination or in other reasonably suitable work on the same terms and conditions enjoyed by the worker before the termination; or (c) order the employer to pay compensation to the worker. Applicant was thus entitled to make the directives that it made. In the light of the above, the application is granted for the enforcement of Applicant’s directives dated 11th August 2011.
[SGD]
Justice Gifty Dekyem (Mrs)
Justice of the High Court
Labour Court 1, Accra
COUNSEL
Oscar Asante Nnuro ESQ for Applicant.
Cases cited:
Miller and Partners Ltd. v. Whitworth Street Estates (Manchester) Ltd. [1970] 1 All E.R. 796, H.L.
Republic v. The High Court (Commercial Division) Accra Ex Parte: Port Handling Company Limited AND Crosswinds Consulting and Financial Service (Civil Motion J5/23/2013 30TH October 2013
Republic v. Court of Appeal, Ex Parte Eastern Alloys Co. Ltd [2007-2008] 1 SCGLR 371
In re West Coast Dyeing Industry Limited; Adams v. Tandoh [1984-86] 2 GLR 561 CA
Watalah v. Ghana Primewood Products Ltd [1973] 2 GLR 126
Acquaye v. Awotwi [1982-83] 2 GLR 110
Re Ashalley Botwe Lands: Adjetey Agbosu and Ors v. Kotey and Ors [2003-04] SCGLR 420