MICHAEL KWAKU OKYERE BAMPO V. VODAFONE GHANA LIMITED

ACKAAH-BOAFO, J.

Introduction:

[1] The Plaintiff, Michael Kwaku Okyere Bampo, is an Information Technology Professional who was an employee of the Former Ghana Posts and Telecommunications Corporation, which later became known as Ghana Telecom Company Limited. He was employed in August 1982, and was terminated by the Defendant Company, the successor to Ghana Telecom on January 10, 2007.

[2] In this action the Plaintiff is asking for a declaration that the termination of his employment with the Defendant Company was wrongful and unlawful and therefore demands that he be reinstated.

[3] Pursuant to leave obtained on November 5, 2013 the Plaintiff issued out a writ of summons sealed in this registry on November 12, 2013 and claimed against the Defendant the following reliefs:-

a) A declaration that the Plaintiff’s employment with the Defendant Company was wrongfully and unlawfully terminated.

b) An order for the reinstatement of the Plaintiff in the Defendant’s employment with all promotions due to him since the wrongful and unlawful termination of his employment.

c) An order for the reinstatement of the Plaintiff’s salary, including social security contributions, with effect from 1st March 2007 and a further order for all arrears to be paid to him together with interest from due date to date of final payment at the prevailing bank rate.

d) General damages

e) Costs.

The claim of the Plaintiff was met with a statement of defence by the Defendant in which the Plaintiff’s claim was vehemently denied. The Plaintiff filed a reply to the defence filed.

Background

[4] In August 1982, Mr. Bampo began employment as an Assistant Computer Programmer with Ghana Posts and Telecommunications Corporation, now Ghana Telecommunication Company Limited trading under the brand name, Vodafone Ghana. He continued as an employee for approximately twenty five years. Following the receipt of medical reports from Swan Clinic and Valley View Clinic, Mr. Bampoe’s employment was terminated by a letter dated January 10, 2007 with the effective date of February 28, 2007. Incidentally, it is exactly 10 years today. At the time of the termination he had attained the position of a Chief Manager. Following the termination the Plaintiff received payments from the Defendant Company’s Provident Fund Scheme and also the Medical Boarding-Out Benefits.

[5] Upon the termination, the Plaintiff attended at the Social Security and National Insurance Trust (SSNIT) to start the processing of his Social Security Invalidity Benefits as he was advised by the Defendant Company. The challenges the Plaintiff faced in processing the Invalidity Benefits and the events which followed motivate this suit.

[6] At the close of the pleadings, the Issues which were set down for determination as contained in the Application for Directions filed by the Plaintiff on the 30th January, 2014 and adopted by the Court were as follows:-

a) Whether or not the Swan Clinic and Valley View Clinic medical reports were competent to conclude that Plaintiff was not medically fit for further employment.

b) Whether or not the Plaintiff’s employment with the Defendant Company was wrongfully and unlawfully terminated.

c) Whether or not the Plaintiff is entitled to be reinstated in his employment.

d) Whether or not the Plaintiff is entitled to the reinstatement of his salary and other benefits.

e) Any other issue (s) arising from the pleadings.

The Plaintiff's Case

[7] The Plaintiff says when he attended at the SSNIT following the termination he was told that he was not entitled to receive the Invalidity Benefit unless he was genuinely declared permanently invalid and incapable of any normal gainful employment by a Certified Medical Officer. He says he went back to the Defendant to collect his Medical Report but was told several times that his Medical Report was “private and confidential” and so same could not be released to him. The Plaintiff further says he reported the Defendant to the Trades Union Congress (TUC) who advised him to seek legal assistance or report the incident to the National Labour Commission (NLC). The Plaintiff opted to petition the NLC and says after several attempts he managed to obtain the Swan Clinic Medical report relied on by the Defendant to retire him. Armed with the Report, the Plaintiff says he returned to pursue the Invalidity Benefit at SSNIT. The Plaintiff says he was made to appear before the SSNIT Medical Board, which after examining him concluded that he was not permanently invalid and was medically fit for any normal gainful employment.

[8] After the SSNIT Medical Board conclusion, the Plaintiff informed the Court that he returned to the Labour Commission and petitioned for reinstatement by the Defendant Company. He also asked to be paid compensation for wrongful termination. According to the Plaintiff the NLC on April 12, 2012 determined his petition in the following terms; that all his salary including his Social Security contributions should be reinstated with effect from March 1, 2007 to April 30, 2012 and all arrears paid to him by May 25, 2012. The NLC also determined that the Plaintiff should be recalled to work until another SSNIT Medical Board was set up to re-examine him with a view to determine his eligibility or otherwise of the Invalidity pension.

[9] The Plaintiff said the Defendant later filed an application at the High Court, Accra to quash the NLC’s findings and determination. After quashing the determination though, the Court ordered that the Defendant Company request a more comprehensive and adequate Medical Report from Swan Clinic for the purpose of processing the Plaintiff’s SSNIT Invalidity Pension Claims. This order of the Court, according to the Plaintiff was not complied with by the Defendant within the time frame given. The Plaintiff though went back to Swan clinic for a further medical examination, the report issued after the examination however showed that the Plaintiff was medically fit for employment. Indeed, it is this report dated March 12, 2013 (Exhibit “M”) that the Plaintiff relies on as the basis for instituting this suit.

[10] The Plaintiff alleges that the termination of his employment was wrongful and unlawful. According to him he has suffered dire consequences from the termination of his employment. He said but for the termination, he would have earned promotions in rank or position with the Defendant Company. The Plaintiff further says his fundamental right to work, to earn legitimate income, to live in dignity as a professional have all been violated due to the termination. Mr. Bampo further alleged that he has been subjected to emotional and psychological stress as well and lost several local and international opportunities as a professional. The Plaintiff gave evidence for himself and called no witness to close his case.

The Defendant's Case

[11] The Defendant gave evidence per its representative, Peter Duplan and called no other witness before closing its case. The Defendant said the Plaintiff’s appointment was terminated on February 28, 2007 by a letter dated January 10, 2017 as a result of medical reports from Swan Clinic and Valley View Clinic certifying that the Plaintiff was not medically fit to work anymore. The Defendant Company said the two clinics which certified the Plaintiff as unfit for work were part of the Defendant’s panel of clinics. The Medical report from Swan Clinic was tendered as Exhibits “C”. The Defendant witness said the medical examination became necessary in 2006 after the Plaintiff exceeded the twenty (21) days sick leave provided for in the Collective Bargaining Agreement (CBA) for the Defendant Company for eight (8) consecutive years.

[12] The Defendant further said in 2004, the Plaintiff was referred to see a Specialist after he sought and obtained sick leave for a period of 41 days in the year 2003. The Defendant says the Plaintiff was always reporting sick and there was an instance where he spent 72 days out of the office because he was unwell to the extent that the Plaintiff was once referred to the Swan Clinic for psychiatric treatment. According to the Defendant, Swan and Valley View clinics, following their respective examinations and treatment, having known the Plaintiff for sometime, came to the conclusion that the Plaintiff was not medically fit for further employment.

[13] The Defendant says following the receipt of the report, its Human Resource Department discussed the report with the Plaintiff and subsequently his family at separate meetings after which his appointment was terminated. The Defendant says the Plaintiff was paid his entitlements under the Defendant’s Provident Fund Scheme as well as his Medical and Boarding Out benefits. The Defendant says it provided the Plaintiff with copies of his medical reports and advised him to use same to pursue and obtain his Invalidity benefits under the Social Security Fund Scheme from SSNIT.

[14] The Defendant’s witness testified that the SSNIT Medical Board found the Plaintiff’s report submitted to be inadequate and that was when the Plaintiff petitioned the NLC to compel the Defendant to provide a comprehensive report from the two clinics. The Defendant’s says following the NLC’s petition and advice, the Defendant wrote to SSNIT, which requested that the Plaintiff present himself for medical examination at the Trust Hospital. The Defendant tendered Exhibit 4, a letter dated June 10, 2011 sent to the Plaintiff’s lawyers advising him to make himself available for the examination. The Plaintiff did not attend for the examination. The Defendant testified and conceded that NLC ruled that the Plaintiff was prematurely retired and therefore ordered for his reinstatement and made further orders.

[15] The Defendant admitted that being dissatisfied it applied to the High Court to quash the NLC’s findings. Following the High Court’s decision, the Defendant says it made a formal request to Swan Clinic to provide it with the Plaintiff’s report but the Clinic notified it that the Plaintiff’s folder could not be located. The Defendant denied that the Plaintiff was unlawfully and wrongly terminated and therefore is entitled to his reliefs. On the contrary, the Defendant maintained that the Plaintiff’s retirement was proper and lawful because the Defendant acted based on the medical director’s advise as provided for in the Terms and Conditions of the Service for Chief Managers, Exhibit “A” and the Plaintiff accepted the medical decision at the time it was given. In a nutshell, this is the evidence before the court.

The Court’s Opinion and Analysis

[16] The most important issue for the court to decide is whether or not the Plaintiff’s employment was wrongfully and unlawfully terminated.

Was the Plaintiff wrongfully and unlawfully Terminated?

Based on the facts of this case and the nature of the Defendant's defence it is important to determine what the applicable law required to be done and whether or not same was done. Learned counsel for the Defendant submitted that on the evidence, the court should hold that the Plaintiff was properly and lawfully retired and relied on Section 71 of the National Pensions Act, 2008 (Act 766) to say that firstly, the Plaintiff was incapable of normal employment based on the medical reports issued at the time and he qualified for invalidity pension because of the number of years worked and the contributions made. Counsel further contended that the court can also hold that having regards to Section 57 of the Basic National Social Security Regulations, 2011 the Plaintiff is an invalid member of the Scheme. Mr. Aidoo relied heavily on the letters used to terminate the Plaintiff’s employment to show that the Defendant did no wrong when it terminated the Plaintiff’s employment. That letter from Swan Clinic was tendered as Exhibit 2 by the Defendant Company.

[17] I will deal first with the contention about the terms and conditions of the service that existed between the Plaintiff and the Defendant Company. Considering the evidence as a whole, did the Defendant comply with the terms and conditions of service and apply the said terms before terminating the Plaintiff’s employment?

[18] That there was a contract of service between the parties before it was terminated is not in doubt. As a Chief Manager at the time of the termination I find that the contract of service was governed by the ‘Terms and Conditions of Service for Chief Managers (CMs)’ which came into effect on January 1, 2006 and tendered as Exhibit “A”. It is instructive to note that Defendant Counsel only referred to Exhibit “A” in passing but rather dwelt much on the National Pensions Act, 2008 (Act 766) even though that Act was not in operation at the time the Plaintiff was terminated. To my mind, the mode by which a Chief Manager may leave the Defendant Company and be eligible for the Invalid Pension Benefit are set out in the relevant applicable statutory provisions are as follows:

[19] Article 36 of Exhibit “A” titled “Leaving the Service”, Clause (c) (ii) provides:

“A chief Manager may retire from the Company on ground of physical or mental incapacity upon certification by a medical board”.

Further, Exhibit “A” by Article 33 made the Workmen’s Compensation PNDCL 187, 1987 the governing law for the terms and conditions of Chief Managers. Part Nine (IX) of PNDCL 187 titled Benefits and Qualifying Conditions for Invalidity Pension also provides under Section 34 (1) (c) - Classes of Benefits as follows:

(1) The following benefits shall be payable under this law—

(c) an Invalidity Pension based on a member's right when a member of the Scheme has contributed for not less than twelve months within the last thirty six months and is certified by a Medical Board to be incapable of any normal gainful employment by virtue of a permanent physical or mental disability:

Provided that where a person is certified by a Medical Board to have fully recovered from any disability and he has not attained the pensionable age under this Law, he may rejoin the Scheme (Emphasis Mine).

[20] Also, Section 71 (1) of the National Pensions Act, 2008 - Act 766 titled Invalidity Pension also provides:

71. (1) A member of the social security scheme who becomes an in­valid is entitled to invalidity pension if

(a) the member has contributed to the Fund for not less than twelve months within the last thirty-six months before the occurrence of the invalidity; and

(b) a medical board certifies that the member is incapable of normal gainful employment because of the permanent physical or mental disability.

(2) Where a person to whom subsection (1) applies is subsequently certified by a medical board to have fully recovered and that person has not attained the compulsory retirement age, that person may rejoin the scheme.

[21] It is a settled rule of interpretation of statutes and documents that where the words contained in the statutes and documents are plain, obvious and unambiguous it does not call for interpretation. Effect shall be given to those words. Undoubtedly, the above statutory provisions are so plain and unambiguous in my view that it means nothing than what it says.

One main condition precedent in all the above laws and terms of condition quoted supra is the certification by a medical board that a member is incapable of normal gainful employment because of permanent physical or mental disability. All the legislations do not define what constitute a medical board. However, the Collins online English Dictionary defines a Medical Board to be “a group of people qualified to give opinions on medical matters” (Emphasis Mine). The simple interpretation is that to constitute a medical board, there ought to be a group of people who are qualified to proffer opinion on a medical matter in issue.

[22] In the instant case, based on the evidence the letter from Swan Clinic the main evidence used by the Defendant to terminate the employment, Exhibit C, cannot in any way be described as a decision of a medical board. On the contrary, it is a medical report written by a medical director. To leave no one in doubt, I hereby produce the content of that letter dated 25-09-2006 –

Titled “MEDICAL REPORT – RE: MICHAEL BAMPOE (45YRS)”.

“We refer to your letter dated 18/09/2006 Ref no. HQ/HRM/HLTM/1/1/06.

DIAGNOSIS

1. Recurrent Depressive Syndrome

2. Duodenal Ulcer

We want to state that despite intensive medical treatment through Psychiatrist and our outfit, it is unlikely that Mr. Michael Bampoe can recover from these ailments. His response to treatment is rather unsatisfactory.

He is therefore medically unfit for further employment by your outfit.

Signed

DR. EMMANUEL DOGGBATSE

(MEDICAL DIRECTOR).

[23] Based on the relevant law at the time the Plaintiff was terminated on medical grounds, it is my finding that the Defendant Company, influenced by motives of rupturing its relationship with an Employee constantly on sick leave, did not follow through with the laid down procedure. The Plaintiff ought to have first appeared before a medical board to be certified that he was incapable of normal gainful employment because of permanent physical or mental disability. Not having done so and relying only on Exhibit “C” was contrary to the laid down procedure. I further find that the termination as a result was unlawful and wrongful.

I now turn to the next issue as to whether or not the Plaintiff is entitled to be reinstated in his employment together with his salaries and benefits?

Reinstatement of Employment or Not!

[24] The Plaintiff relying on the writings of James Odartey Mills in his book Labour Law (2014) and the strength of Section 64 of the Labour Act, 2003, Act 651 the Plaintiff’s Counsel has with some force submitted that this Court should order for the Defendant’s reinstatement of the Plaintiff as an employee. I note that the Defendant’s Counsel having taken the position that the Defendant Company did no wrong made no submission on this issue.

[25] Based on the law, I would reject this submission and the Plaintiff’s case on this ground. In my respectful view this is not a case for reinstatement. As I understand it, the contention is anchored on the Labour Act and the common law position as explained by the learned author, James Odartey Mills. In my respectful opinion, the Plaintiff’s position on this issue is inconsistent with the law and the peculiar facts of this case.

[26] First, at common law, nobody can be compelled to work for an employer if he does not wish to do so. Conversely, no employer can be compelled to continue to engage a person in his employment. Therefore, an employee or an employer may decide to end the employment contract relationship provided the laid down rules and procedures have been adhered to including notices to be given for the termination. The policy rationale as I understand it is that, a re-instatement would be equivalent to specific performance of a contract of employment, which is not permissible because the Courts restrain themselves from interfering with personal liberty of both natural and artificial persons.

[27] Secondly, with regards to Section 64 of the Labour Act, it is my finding that based on the facts it is not applicable in this case. Even though the section uses the expression “may” which can be construed as permissive and empowering, in my view reinstatement is in the context of options open to the Labour Commission after it investigates and concludes that a termination was unfair and the circumstance of the case permits the making of that order. In BANI v. MAERSK GHANA LIMITED [2011] 2 SCGLR 800 the Supreme Court pronounced on Section 64 of the Labour Act at Holding 3 as follows:

“Sections 62 and 63 of the Labour Act 2003 (Act 651) set out clearly the law on fair and unfair termination of employment...Section 64 of the Act provides that a worker who claims that his employment has been unfairly terminated may present a complaint to the Labour Commission established under the Act. If the Commission finds that the termination of the worker is unfair, it may give him or her one of three remedies specified in the Act: an order to the employer to reinstate the worker from the date of termination of employment; an order to the employer to re-employ the worker in the work for which the worker was employed before the termination or in any other reasonably suitable work on the same terms and conditions enjoyed by the worker before the termination; or order the employer to pay compensation to the worker. At section 64 of Act 651 these statutory remedies are made available to the Commission but not, at least expressly, to the Courts.”

[28] The further question that arises from the reinstatement argument here is the issue of the Plaintiff’s health. Based on the evidence and the law one cannot be naïve that all was well with Mr. Bampo at the time he was terminated. As the evidence confirms, Mr. Bampo conceded that he spent some time off work for a period of time due to some medical challenges.

[29] Plaintiff testified on May 9, 2016, when he opened his case. Under cross-examination by Defendant Company’s Counsel on the same day he conceded that he had some sick leave days within a certain time period. Below is a reproduction in part of the exchange between Counsel for the Defendant and the Plaintiff during cross-examination of the Plaintiff:

“Q: Can you tell the Court why you were asked by the Defendant to go for the medical check-up?

A: Please refer to EXH “B” to know the reason why I was asked to go to Swan Clinic for the medical check-up. It was stated in the letter that I had exceeded the number of days for sick leave.

Q: Is it not the case that from the year 2000 to the year 2006, you had consistently exceeded the 21 days sick leave limit provided in the CBA?

A: I would not be able to answer that question because I am not too sure of the number of sick leave I had. But I acknowledge that I did have some sick leave days within the period mentioned...

Q: In addition to your attendance at Swan Clinic, you were referred to Valley View Clinic for psychiatric assessment, Is that not so?

A: Yes, my Lord. I personally paid for my treatment at the Valley View Clinic because I thought I was not given fair treatment at Swan Clinic. And to the best of my knowledge, my employers did not pay for the treatment.

Q: Were you referred by the Swan Clinic or you chose to go to Valley View yourself?

A: I opted for another place for treatment because I wasn’t given fair treatment at Swan Clinic. I believe that I told the Doctor I wanted second opinion.

Q: Is it not the case that Swan Clinic themselves referred you to Valley View Clinic?

A: Yes, my Lord.

Clearly, from the above discourse it is clear that the Plaintiff acknowledges that he did have some sick leave absence from work and attended two clinics for some medical issues within a certain period of time. Having reviewed the evidence and the record before me, I find that no worker in the best of health would consistently absent himself from work for long periods of time. The record shows that between the year 2000 and 2006 he either exceeded the 21 days sick leave or made use of all every year. To my mind therefore, even though I have found that the circumstances under which the Defendant’s terminated him was unlawful because the laid down procedure was not followed, as a corporate entity it does not make any business sense to re-engage an employee with history of many absences from work based on ill-health. Also, for an IT professional who has not worked with the Company for over 10 years, would he still be of use to them as a programmer? Has technology not passed him by? With respect to the Plaintiff, to be blunt, his remedy lies in the award of damages and not reinstatement as an employee as he claims. I shall therefore dismiss the Plaintiff claim “B”.

Is the Plaintiff entitled his Relief “C” being Reinstatement of salary, including social security contributions, with effect from March 1, 2007 and further order for all arrears to be paid together with interest from due date to date of final payment?

[30] For the above claim the Plaintiff pleaded from paragraph 22 to 26 of the statement of claim as follows:

“22. The Plaintiff avers that he would have earned promotions in rank or position but for the wrongful termination of his employment.23. The Plaintiff has suffered loss and damage by reason of the matters aforesaid.24. In particular the Plaintiff’s fundamental rights to work, to earn legitimate income, live in dignity as a professional, self-esteem, social recognition and privileges of office as a chief Manager of the Defendant Company were all violated by reason of the matters aforesaid.25. The Plaintiff was also subjected to emotional and psychological stress by reason of the matters aforesaid.26. The Defendant Company’s treatment of Plaintiff has also cost him a lot of local and international affiliations and opportunities.”

The Defendant filed a 31 paragraph defence and reacted to the above averments in paragraphs 28-30 as follows:

“28. The Defendant therefore denies paragraphs 20, 21 and 22 of the Statement of Claim.29. The Defendant will contend at the trial that the Plaintiff has been unable to procure his invalidity benefit from SSNIT as a result of his own default and/or neglect and not through the fault of the Defendant.30. The Defendant therefore denies paragraphs 23-27 of the Statement of Claim and will put the Plaintiff to strict proof.”

[31] From the above pleadings it is clear that the Defendant positively denied the Plaintiff’s averment with regards to promotions and enhancement of salary and his entitlement to other benefits. Since the pleadings constitute allegations as opposed to evidence, it is incumbent upon the Plaintiff to substantiate the assertions contained in his pleadings at paragraphs 22 to 27. For after all as was observed by Charles Crabbe JSC in HAMMOND v. ODOI [1982-83] 2 GLR 1215 at 1235

“Pleadings do not only define the issues between the parties for the final decision of the court at the trial; they manifest and exert their importance throughout the whole process of the litigation. They contain the particulars of the allegations of which further and better particulars may be requested or ordered, which help still further to narrow the issues or reveal more clearly what case each party is making... Pleadings are the nucleus around which the case - the whole case — revolves. Their very nature and character thus demonstrate their importance in actions, as for the benefit of the court as well as for the parties. A trial judge can only consider the evidence of the parties in the light of their pleadings. The pleadings form the basis of the respective case of each of the contestants. The pleadings bind and circumscribe the parties and place fetters on the evidence that they would lead. Amendment is the course to free them from such fetters. The pleadings thus manifest the true and substantive merits of the case. And the reply is very much a part of the pleadings”.

[32] The issue for my determination therefore is has the Plaintiff proved the allegations with cogent evidence regarding his claim for reinstatement of salary and other benefits after the Defendant Company denied the assertions pleaded? Or did the Plaintiff rely on the pleaded facts filed without more?

[33] It is trite that where a party in a civil suit raises issues that are essential to the success of his claim, he assumes the onus of proof. Discharging this burden requires that a party go beyond merely repeating the averments in the pleadings on oath and produce evidence of other facts and circumstances from which the Court can ascertain that what he claims is true. Indeed, the principle of what constitutes proof was articulated and expressed in the celebrated and frequently cited decision of Ollenu J (as he then was) in the case of MAJOLAGBE v. LARBI [1959] GLR 190.

[34] The court has also explained in the recent case of OKUDZETO ABLAKWA (No. 2) v. ATTORNEY GENERAL and ANOTHER [2012] 2 SCGLR 845 at 867 that:

“If a person goes to court to make an allegation, the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted. If he fails to do that, the ruling on that allegation will go against him. Stated more explicitly, a party cannot win a case in court if the case is based on an allegation which he fails to prove or establish. This rule is further buttressed by section 17 (b) which, emphasizes on the party on whom lies the duty to start leading evidence...”

[35] The Evidence Act, 1975 (NRCD 323) re-states the above principle of law in Section 14 where it uses the term the “burden of persuasion” and provides that the asserting party must prove each fact of his claim, the existence or non-existence of which is essential to the claim or defence he is asserting. Section 12 of NRCD 323 provides another dimension to the general rule that the burden of persuasion requires proof by a “preponderance of probabilities” defined in Section 12(2) as “that degree of certainty of belief in the mind of the tribunal of fact or the Court by which it is convinced that is more probable that its non-existence.”

[36] In the instant case, it is my finding that the Plaintiff failed to discharge his onus or the burden of proof placed upon him with regards to his claim for reinstatement of salary and other benefits. The Plaintiff did exactly what Majolagbe advises against, that is ‘he repeated the pleadings in the Witness Statement filed on December 31, 2015 and mounted the witness box on May 9, 2016 to repeat the averments contained in his pleadings on oath’ by adopting the witness statement filed as the evidence-in-chief without any cogent acceptable evidence. For instance, how much is the salary the Plaintiff is claiming? Is it based on his salary in February 2007 or now? And how much are those who were of the same rank with him now earning, what other benefits was he earning/enjoying and what are his contemporaries earning/enjoying now? What type of local and international opportunities did he lose? Was it an opportunity to educate himself on the job or acquire new skills through his employment with the Defendant Company? No attempt was made at substantiating the allegations contained in the statement of claim. Sadly therefore, they remained allegations at the end of the trial as the Court was left in quandary as to what the Plaintiff is claiming. In the circumstances, the Plaintiff claim “C” also fails and it is so dismissed.

Conclusion and Disposition:

[37] I should make it clear that based on my finding that the Defendant breached the terms and conditions of Chief Managers and the statutory provisions which regulated the employment, I do not think that I have to repeat it all over again that the Plaintiff has proved to the satisfaction of the Court that his termination was unlawful and is therefore entitled to some general damages.

[38] This been a contract of employment and having found that Defendant breached same in terminating the Plaintiff when it failed to follow the laid down procedure, in awarding damages, the principle is to place the Plaintiff as far as money could do so in the position he would have been but for the breach. See ROYAL DUTCH AIRLINES (KLM) v. FARMEX LTD [1989-90] 2GLR 623, SC. But it should be noted that the damages must be assessed as compensation to the Plaintiff for the loss he has sustained and not as punishment of the Defendant’s wrong in terminating the employment.

[39] In ASHUN v. ACCRA BREWERY LTD. [2009] SCGLR 81 Dr. Date-Bah JSC, speaking for the Supreme Court at page 84 set out the law and a methodology for the analysis of the issue of assessment of damages that in the case of an employee who is wrongly dismissed, he is required to make reasonable effort to secure a comparable job. His Lordship stated as follows:

“the duty of mitigation of damages for wrongful dismissal devolves on an employee. Accordingly, he or she has the duty to take steps to find alternative employment. In principle then, in the absence of any contrary statutory or contractual provision, the measure of damages for wrongful termination of employment under the common law of Ghana is compensation, based on the employee’s current salary and other conditions of service, for reasonable period within which the aggrieved party is expected to find alternative employment. Put in other words, the measure of damages is the quantum of what the aggrieved party would have earned from his employment during such reasonable period, determinable by the court, after which he or she should have found alternative employment. This quantum is, of course, subject to the duty of mitigation of damages.”

[40] In the instant case, it is interesting that until the Plaintiff was denied the Invalidity Pension, he accepted the decision of termination. He only began to question same after the SSNIT Medical Board rejected Exhibit “C” and eventually the report dated March 12, 2013 (Exhibit “M”) that he is fit to work. Now, since March 2013 when he became aware that he was fit to work has the Plaintiff made any attempt to secure an alternative employment? There is no evidence before me as to whether or not he is presently employed. I note that it is a notorious fact that gainful employment is difficult to come by in contemporary times in our country. The Plaintiff worked with the Defendant Company as an IT Professional on full time basis from August 1982 until February 28, 2007, that is almost 25 years. He was a Chief Manager at the time of the termination. According to the evidence the Plaintiff was paid his entitlements under the Defendant’s Provident Fund Scheme as well as his Medical and Boarding Out benefits. Taking all that together therefore, in my view, based on all of the evidence and the circumstance of this case, GH¢15,000.00 should be an adequate award of damages for the Plaintiff's wrongful termination by the Defendant Company.

Plaintiff’s cost shall be assessed at GH¢10,000.00.

SGD

K.T. ACKAAH-BOAFO J

JUSTICE OF THE HIGH COURT

COUNSEL

MR. A.A. SOMUAH ASAMOAH WITH CECIL ADASI FOR THE PLAINTIFF

MR. KWAW AIDOO FOR THE DEFENDANT.