EMMANUEL LARBI V. AFRICAN MINING SERVICES

JUDGMENT

DENNIS D ADJEI JA

The Plaintiff Respondent herein (hereinafter referred to as the Plaintiff) joined the Defendant Appellant Company (Also hereinafter referred to as the Defendant) in 1997 as Lube Bay Attendant and was promoted to the rank of Aid Service Mechanic within two years. On 26th October 1999, the Defendant served a letter of interdiction on the Plaintiff.

According to the letter of interdiction, the Plaintiff’s interdiction was to take effect from 26th October 1999. The letter of interdiction was served on the Plaintiff on that same day. The reason for the interdiction was that there was an alleged fraud and theft of the Defendants lubricants, and the Plaintiff was suspected to be one of the people involved in the crime. The interdiction letter was signed by the Project Manager of the Defendant one Geof F Stock.

On 1st September, 1999 the Plaintiff was asked by the Defendant to give a statement in connection with the alleged crime. The Plaintiff denied knowledge of the crime in the written statement he gave to the Defendant on 1st September 1999. On 25th November 1999 when the Plaintiff was still on interdiction,. the Defendant terminated his appointment by a letter captioned RE: TERMINATION OF APPOINTMENT. The Plaintiff was paid one month salary in lieu of notice and was to receive any entitlement due and payable to him. The letter for termination of the Plaintiff’s appointment was signed by one John Watkins, who was the General Manager of the Defendant Company.

The Plaintiff felt aggrieved and petitioned to the Defendant per a letter dated 1st December 1999 to rescind its decision. The Defendant did not rescind its decision and as a result of that the Plaintiff took an action against the Defendant in the High Court Tarkwa. The reliefs sought by the Plaintiff on his writ of summons were: "damages for unfair dismissal or reinstatement of the Plaintiff or both".

The Defendant resisted the Plaintiff’s claim and averred that it could have dismissed the Plaintiff on justifiable grounds but decided to deal with him magnanimously by terminating his employment by paying him one month salary in lieu of notice together with all his benefits.

Four issues were set down for trial namely:

1. Whether or not the Plaintiff was wrongfully or unfairly dismissed by the Defendant.

2. Whether or not there were lawful, fair or proper enquiries into the allegations of theft or fraud.

3. Whether or not theft in fact took place.

4. Whether or not the Plaintiff has suffered loss and damage.

The Plaintiff gave evidence without calling any witness. The Human Resource Superintendent of the Defendant gave evidence without calling any witness. At the close of the case the trial Court gave judgment in favour of the Plaintiff on 10th April 2003.

The Defendant being dissatisfied with the ruling of the trial court filed Notice of Appeal against the judgment. There were five grounds of appeal against the judgment namely:

1. The trial judge erred gravely when he referred to a Collective Bargaining Agreement [CBA] which was not in evidence throughout the trial.

2. The trial judge erred when he failed to appreciate that the burden to prove the terms and conditions of employment was on the Plaintiff which he failed to discharge.

3. The trial judge award of damages was against established principles of law relevant to the determination of the issue.

4. The trial judge decision is not more than a reproduction of parts of the address of Counsel for Plaintiff which is unsupported by the evidence adduced.

5. The trial judge’s determination of Plaintiff’s salary when no such evidence was led at the trial is erroneous.

On 21st May 2003 the Defendant who had indicated to file additional grounds of appeal did so at the trial court and the additional grounds of appeal filed were:

a. The trial judge failed to appreciate that different consequences flow from a determination of the nature of severance of the Plaintiff’s relationship with the Defendant being dismissal or termination

b. The trial judge failed to take into account the fact that Plaintiff had been paid salary in lieu of notice together with all his entitlements.

c. The trial judge failed to consider the defence of the Defendant.

d. The trial judge erred in determining the issue of whether or not there has been a wrongful and/or illegal termination/dismissal on a balance of probabilities.

I will not hasten to state that looking at the pleadings and the exhibits tendered, it seems to me that the plaintiff's pleadings particularly, the reliefs endorsed on his writ of summons belied any pretence to a serious claim against the Defendant. It is sad and unfortunate that the learned High Court judge failed to appreciate the fact that the Plaintiff’s appointment was terminated and was given his monthly salary in lieu of notice and his fringe benefits but acted on wrong assumption that it was a dismissal and gave judgment in favour of the Plaintiff. If the trial judge had adverted his mind to Exhibit "B" the letter of termination and Exhibit "C" petition against the termination of appointment, he would have satisfied himself that the Plaintiff’s action which was about unlawful dismissal was misconceived.

Exhibit "B" is unequivocal evidence that the plaintiff's appointment was terminated and not that he was dismissed. A cursory look at Exhibits "B" and "C" vis-à-vis the Plaintiff’s action clearly demonstrates that the Plaintiff's pleadings belied any pretence to a serious claim against the Defendant and his action should have been dismissed.

Neither of the disputants tendered CBA during the trial but the trial judge in his judgment held thus:

"From my analysis the case for the Plaintiff, which I believe is this:

1. The Plaintiff was dismissed, but it was termed a termination. He was accused of theft fraud and dishonesty. These allegations were not dealt with legally.

2. The outcome of these allegations operated on the minds of the Defendant Company to decide as they did. The (SIC) said down disciplinary procedure of the CBA were not followed. The mode of work of the Plaintiff however was customary and authorized. The Plaintiff ought to be paid damages. Whether or not the Plaintiff was dismissed is not resolved by the use of the word "dismissed" as the Court must look at the circumstances, particularly the CBA.

The CBA provides that the relation of the plaintiff and the Defendant Company shall be governed by the provisions of the Industrial Relation Act 1961 and the Labour Decree 1961.

I conclude that the relationship between the Plaintiff and the Defendant Company, as the CBA contemplate was not fully complied with".

The Plaintiff throughout his evidence did not complain that the Defendant did not comply with the CBA. Furthermore, no CBA was tendered and it is therefore strange for the trial court to import or introduce into his judgment the CBA which did not form part of the evidence on record. The importation of the CBA into the judgment influenced the trial judge to find and hold that the Defendant did not comply with the CBA when in fact the CBA was not in evidence. The Plaintiff throughout his evidence did not raise any issue about non compliance with the CBA by the Defendant. If the CBA is expunged from the judgment, there is nothing on record to support the judgment that the Plaintiff was wrongfully dismissed by the Defendant. The introduction of the CBA by the judge influenced his decision and has thereby occasioned serious miscarriage of justice to the Defendant.

The Defendant's ground one of the grounds of appeal which attacks the trial judge's importation/introduction of the CBA into his judgment even though the CBA was not part of the evidence adduced at the trial succeeds. Furthermore, the trial judge did not use the standard burden of proof to evaluate the evidence adduced at the trial Court. The judge in the concluding part of his evidence held that:

"I have looked at the evidence by the Defendant and the cross-examination of the Defendant Company's Lawyer and have to conclude that I am not convinced by it. The evidence of the Plaintiff is more probable than the Defendant Company. In such circumstances, I will have to give judgment in favor of the Plaintiff."

The trial judge's appreciation of burden of proof is contrary to what the law requires. Sections 11 (4) and 12 (1) of the Evidence Decree NRC Act 323 provides thus:

"11 (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that in 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".

In the case of Adwubeng v. Domfeh [1996-97] SC GLR 660 the Supreme Court held that Sections 11 (4) and 12 of the Evidence Decree have clearly provided that the standard of proof in all civil actions was proof by preponderance of probabilities and no exceptions were made.

If the trial judge had properly evaluated the evidence adduced and used the proper standard of burden of proof, that is, proof on the preponderance of probabilities, he would have come to the conclusion that the Plaintiff’s appointment was terminated and not that he was dismissed and had failed to prove the issue of dismissal on the preponderance of probabilities. It is important to state here that a party is bound by his own admissions contained in his own pleadings and his opponent is not then required to prove them. The Plaintiff could not adduce a scintilla of evidence to disclose that he was dismissed and that the dismissal was wrongful. It was not enough for the trial court to state that the Plaintiff's evidence is more probable than that of the Defendant Company and as a result of that enters judgment in favour of the Plaintiff. The standard of burden of proof used by the trial judge falls short of the standard burden of proof that is proof on the preponderance of probabilities. I find as a fact that the trial judge used a wrong burden of proof and thereby arrived at a wrong conclusion. The defendant's ground two of the Grounds of Appeal also succeeds.

From the evidence on record I find and hold that the Plaintiff's employment was terminated and the termination was done in consonance with law. The letter of termination states in unambiguous language that the Plaintiff’s appointment was terminated and in lieu of notice, he would be paid the month's basic salary together with any entitlement.

The Defendant provided vital evidence to distinguish termination from dismissal and the witness was not challenged under cross-examination. He stated thus:

"He is not an employee. He (SIC) relationship with AMS came to an end. He was in fact terminated. The Plaintiff was given notice of his termination. It's Exhibit "B". There are three ways by which the Company could terminate employees thus:

1. We could terminate a confirm employee by giving him one month bulk salary in lieu of notice or given a month's notice.

2. Where there is gross insubordination, he could be dismissed.

In the case of the Plaintiff he was served by notice of a termination not dismissal. After terminating his employment, we gave him one month salary, the leave he earned but not taken and the amount standing in his provident and that of the company and payment for work he had done to the date of termination in that particular month. We paid him through the bank and that was the agreement we had with the bank. There is a pay slip which details his final payment. It is tendered and marked Exhibit "C". (SIC, it is exhibit 8).

If the Plaintiff was dismissed he would not have been given a month's salary in lieu of notice and his other entitlements. Furthermore, the letter of termination did not level any charge against the Plaintiff. In the case of termination the employer can terminate the employment of the employee and the employee can terminate his appointment with his employer without assigning any reason but in each case the procedure for termination must be religiously obeyed else it may constitute unlawful termination of employment which may attract damages. The letter of termination and the Plaintiff's petition talk about termination and not dismissal and I find as a fact that the Plaintiff’s appointment was terminated.

In the case ofBannerman Menson v. Ghana Employers Association [1996-97] SC GLR 417 holding 2 the Supreme Court stated the position of termination thus:

"The effect of the provision in the employee's Conditions of Service, namely, that the contract of employment was terminable by six months notice on either side was that the employee could terminate the appointment by giving his employers six months notice if he decided to, without giving any reasons. So were the employers entitled to dispense with the employees service by giving him six months notice. That was in conformity with equitable basis."

From the ratio above, the Defendant was justified by terminating the Plaintiffs appointment without assigning any reason and having complied with the conditions of service by giving the Plaintiff one month salary in lieu of notice. It cannot be construed to mean dismissal owing to the fact that at the time the Defendant terminated the Plaintiff's appointment the Plaintiff was on interdiction. The Plaintiff could have terminated his appointment while on interdiction by complying with the rules on termination and the employer (the Defendant) could not have forced him to assign reasons for his exit from the company. The basic principle in termination of appointment is that the courts would ordinarily not interfere with the rights of employer where the termination is in accordance with the agreement and does not breach any conditions of employment or statutory provision.

See the case of Morcan v. Parkinsons [1961] GLR 68 at 70. Termination of appointment and dismissal of employee have different and distinct meaning and their implications. I find and hold that the Plaintiff's appointment was validly terminated in accordance with his Conditions of Service and his action was bereft of merits. By these findings additional ground A also succeeds.

The next ground I intend to address is ground five which is the trial judge's determination of the plaintiff salary. The trial judge's assessment of the Plaintiff's salary was arbitrary and lacked legal basis. The Plaintiff throughout his evidence did not tell the Court his monthly salary. It was the Defendant who tendered Exhibit 8. In Exhibit 8 the net pay of the Plaintiff was given as ¢1,161,140.34 (old Cedis) and there was no justification for the trial judge to state the Plaintiff's monthly salary as ¢2,084,892.00 (old Cedis) which was inclusive of annual leave which is earned annually and other contributions like Income Tax and SSNIT contributions which must be deducted and paid to Internal Revenue and SSNIT respectively.

The last ground of appeal I will consider in this judgment is ground C and I find that the trial judge did not properly consider the evidence of the Defendant in his evaluation of the evidence and that was made contrary to law and additional ground C also succeeds.

The appeal succeeds and the judgment given by the High Court, Tarkwa on 10th April 2003 is set aside.

SGD

DENNIS D ADJEI JA

JUSTICE OF THE COURT OF APPEAL

SGD

S K MARFUL-SAU JA [PRESIDING]

JUSTICE OF THE COURT OF APPEAL

SGD

K A ACQUAYE JA

JUSTICE OF THE COURT OF APPEAL

COUNSEL

MR. D A OTOO FOR PLAINTIFF/RESPONDENT

MR SAMUEL DZIGBA FOR DEFENDANTS/APPELLANTS