OWUSU-AFRIYIE v. STATE HOTELS CORPORATION

JUDGMENT OF HAYFRON-BENJAMIN J.A.

The plaintiff's claim against the defendants is for general damages for her wrongful dismissal and an order for her reinstatement. In 1964 she was engaged by the defendants, who are state hotel operators as a catering officer. Her letter of employment signed by the defendants' then managing director states:

"I am happy to offer you employment with the corporation as a catering officer attached to the Ambassador Hotel, Accra, provided you are in good health, to perform all the duties that shall be expected of you in a satisfactory manner, such employment to date from 8th June, 1964.

(2) The appointment carries a basic salary, of £G600 x 20-£G720 per annum, and you would enter the scale at £G600 per annum. You will be on probation for six months from the date of this letter of appointment on a day to day basis the corporation reserving to itself the right to terminate this appointment on giving one week's notice in writing or in payment of an equivalent sum in lieu when such appointment shall automatically cease.

(3) The period of your probation shall continue and no change shall be made thereto until the corporation is satisfied as to your ability, efficiency, honesty and general conduct when your appointment may be confirmed in writing by the managing director. Provided these conditions are satisfactory you would be entitled to receive annual increment in the scale on your incremental date, namely, 8th June.

(4) In the event of your appointment being confirmed in the manner aforesaid you would, also, be entitled to participate in all of the benefits of the staff provident fund.

(5) Kindly state in writing, at your earliest possible convenience, whether you accept the offer of appointment on these terms."

Prior to her engagement by the defendant, the plaintiff had trained in London and Paris in the catering and hotel business, there being at that time no facilities for such courses in Ghana. At the time of the institution of this case, it would seem she was no longer on probation, as this was not canvassed by the defendant corporation.

The defendant corporation was first set up under the Instrument of Incorporation of Ghana Hotels and Tourist Corporation, 1963 (E.I. 7), which was later substituted by the Instrument of Incorporation of the State Hotels Corporation, 1965 (L.I. 403), made under the Statutory Corporations Act, 1964 (Act 232). It is easily the largest hotel operator, and occupies a dominant position in the hotel industry in the country. It is the largest employer of trained hotel staff. It operates the Ambassador, the Star, the Continental, and the Airport Hotels, in Accra, the City Hotel in Kumasi, the Atlantic Hotel, Sekondi-Takoradi, and catering rest-houses in all the regional capitals, and also some beach chalets and game lodges. Some of these hotels and rest-houses were commissioned or acquired subsequent to the engagement of the plaintiff by the defendant corporation.

In the events that happened it would seem that the statement in the plaintiff's letter of appointment that she was to be attached to the Ambassador Hotel was not understood to preclude the defendant corporation from transferring her to other establishments even outside Accra.

The basis of the plaintiff's case is that she was harassed by constant transfers, victimise non-promotion, embarrassed by unfair transfer to posts which seemed to imply diminution in her authority, and humiliated by assignments which were likely to appear to the public as a reduction in her status. She now agrees that under the staff regulations as later promulgated all these posts were within the same grade as a catering officer, and that she suffered no reduction in emoluments as a result of these transfers. The victimisation by non-promotion however, according to her, resulted in her not being placed in a higher grade like all her colleagues with the same qualifications and length of service; she therefore earns a lower salary. She later articulated these grievances in a letter to the managing director on 26 October 1970 (exhibit C) which I shall have occasion to refer to later.

The attitude of the then managing director of the defendant corporation was simple. He was the boss and so long as she had not been reduced in grade or salary, she had no cause for complaint.

It is against this background that the events leading up to these proceedings occurred. On 21 October 1970 a memorandum was circulated within the corporation, dealing with certain transfers. In less than two months thereafter the plaintiff's post had been declared vacant, her name struck off the books of the corporation, and steps were afoot to attach her means of transport. The memorandum has been received in evidence as exhibit F. It reads:

"It has been decided by management for operational reasons to effect the following postings of personnel to take effect from the dates against the names of the officer's concerned:

(1) Mr. J. M. Selby has been appointed sales representative as of 1 November 1970 and should report to the general manager for assignment.

(2) Mr. S. O. Lamptey of Star Hotel, now on leave, will report at the Ambassador Hotel as assistant manager on return from vacation leave.

(3) Miss Mamata Yakubu will remain at the Star Hotel on general operational duties on return from vacation leave. Personnel matters will now be handled directly by the manager.

(4) Mr. G. W. Annan, now secretary to the personnel manager, Head Office, will proceed to Sunyani Catering Rest House in order to take up post of supervisor as soon as a replacement is found for him and is briefed on controls to be managed by the training officer

(5) Mr. Ashialy will then proceed to the Ambassador Hotel after handing over to Mr. Annan and assume the position of a night officer.

(6) Mrs. Ernestina Owusu-Afriyie, now at the Ambassador Hotel will report at the Hotel Continental effective as of November 1 1970 as pastry chef and for other relative jobs as shall be assigned to her from time to time."

It is clear from this memorandum that all other officers mentioned were transferred to or assigned specific jobs. The plaintiff alone was transferred to be an odd job woman. She was to be a pastry chef and do "other relative jobs as shall be assigned to her from time to time." It is not clear from the memorandum whether the intention was that she should be assigned such other jobs as are usually performed by persons within her grade. The memo is however clear that she was to do jobs which are related to the jobs of a pastry chef. Be that as it may, the plaintiff has specifically pleaded that when she reported "for work in the kitchen at the Continental Hotel she was told that there were no pastry chef facilities." This is denied by the defendants in their statement of defence. The manager of the Continental Hotel at the relevant time however testified in evidence as follows:

"During the latter part of 1970 I was in charge of the Continental Hotel as the manager. I know the plaintiff. I had to handle her transfer matters. She was transferred to the Continental Hotel from the Airport (Ambassador) Hotel. She was transferred to the Continental Hotel as a pastry chef. This was some time in November 1970. She did not work as a pastry chef. By the time she was transferred to the Hotel, the pastry section was not functioning. I advised her to report back to the headquarters, while I reported to the group personnel manager. When I got in touch with the group personnel manager, he advised the plaintiff to get in touch with the executive chef, who was in charge of all kitchen personnel. She contacted this chef and she was asked to report back at the hotel as a sauce cook. She reported, in three days. She however complained about the assignment. She left the premises and after three days I reported her conduct to the head office."

It is clear therefore that at the time of the plaintiff's transfer, the Continental Hotel did not need and had not requested the services of a pastry chef. The manager however offered some explanation which is unconvincing to say the least. He said:

"We now have pastry facilities. The transfer was made pending the completion of the rehabilitation of the pastry facilities. She was transferred to the Continental Hotel because, of her background to assist and advise on the reconditioning of the pastry facilities."

On 26 October 1970, the plaintiff as I have said articulated her grievances in a letter to the managing director of the defendant corporation. This letter has been received in evidence as exhibit C. The managing director rejected the prayers in her letter in respect of the transfer, but said that her grading would be looked into at the appropriate time: vide exhibit B dated 7 November 1970. Having rejected her petition and the effective date for transfer having expired, one would have expected a new date for reporting at the Continental Hotel. No such indication was given in the memorandum from the managing director. He however sent a note to the manager of the Ambassador Hotel saying:

"As you are certainly aware, Mrs. E. Owusu-Afriyie was instructed to report for duty at the Continental Hotel with effect from 1st November, 1970. It appears she is still at the Ambassador Hotel and is not showing willingness to comply with the instructions.

(2) Please ensure that she moves to the Continental Hotel immediately and report back to me otherwise I shall be compelled to take severe disciplinary action against her."

In view of this threat of severe disciplinary measures, the plaintiff reported to the Continental Hotel only to discover that there was no work there for her as pastry chef. She was to be a sauce cook. Irrespective of the grade of a sauce cook, I am of the view that the job of a sauce cook cannot be said to be a job relative to that of a pastry cook. She was entitled to protest. She said in evidence:

"I tried to have the position rectified. I told Mr. Adabie that I was asking the Ministry of Trade to intervene on my behalf because they have the final say. I wrote a letter to the Ministry of Trade and I sent a copy to the State Hotel's Corporation. Pending hearing from the ministry I used to go to the Continental Hotel to report myself. I did not get any reply from the ministry, but I got a letter from the State Hotels Corporation that I had been sacked."

From this letter it is clear that the management of the Continental Hotel reported to the head office that the plaintiff had not reported for work since 18 November 1970. Mr. Adabie in his evidence said:

"She left the premises and after three days I reported her conduct to the head office. She was coming to the hotel but not to work. She was reporting as a customer, and on one such occasion, I summoned her to my office and warned her about her attitude. She told me that she had made a petition to the ministry complaining about her transfer. This was long after her disappearance. This was about a week after I had written to head office."

It is this letter which informed the plaintiff that her post had been declared vacant, and that her name had been removed from the staff roll of the corporation. The main issue for determination in this case is whether the defendants were right in declaring the plaintiff's post vacant, and if not whether the plaintiff can claim relief by way of reinstatement or damages or both. The defendants state affirmatively that having absented herself continuously for a period of over ten days, the plaintiff had abandoned her post and the defendants were justified in treating her post as vacant.

Before dealing with this central issue, however, I shall deal with other matters which intervened between this letter and the issue of the writ in December 1971. Nearly two weeks after the letter exhibit D, the long awaited reply from the Minister of Trade was received. The minister, it is clear, accepted the decision of the management that the plaintiff had vacated her post, and endorsed their "action." This can only mean that he agreed that the plaintiff's post should be declared vacant and her name removed from the staff roll for this is the only action taken by the management of the defendant corporation. Having thus unequivocally endorsed their action, the minister proceeds to negative his own endorsement by directing the plaintiff to report for work. This equivocal political attitude was not likely to improve matters, and in the events that happened, the management maintained their stand that unless the plaintiff agreed to be a sauce cook her post was deemed vacated. The plaintiff on her part refused to be a sauce cook. She did indeed report for work as directed by the minister, but according to the report sent by the manager of the Continental Hotel to the managing director:

"After having been told what to do, she disappeared from the hotel that day. Although she has been coming to the hotel in the mornings, only to show her face, she has not, officially been reporting for duty, and up till the time of writing this report, Mrs. Owusu-Afriyie has not as yet, performed any work at all in the kitchen."

The minister's attempt to please both sides of the dispute proved a fiasco, and the plaintiff resorted to the courts for redress. The defendants as I have said are relying on their declaration of vacancy in the plaintiff's post as an effective answer to her claims. Article 27 of the conditions of service with the corporation provides:

"Any officer who fails to report for duty without prior permission from the head of his unit or branch for ten consecutive days will be considered as having abandoned his post and his name will be removed from the pay-roll."

There is a vast difference between failing to report for duty, and refusing to do work assigned to you when you report on the work premises. In this case I am satisfied that the plaintiff reported for duty but was unwilling and refused to perform the duties of a sauce cook, because she felt rightly or wrongly that it amounted to a reduction in her status. Her conduct might have amounted to gross insubordination or wilful disregard of instruction for which penalties are provided if she had had no reasonable or probable cause. It certainly does not amount to "failing to report for duty without prior permission." Article 24 of the condition of service provides:

"An officer who commits an offence of a serious nature such as wilful dereliction of duty, gross insubordination, wilful disregard for instruction, dishonesty, drunkenness and fighting on duty, etc. shall be dismissed summarily and will lose all rights and privileges under these conditions of service. Such officer shall be given the opportunity to exculpate himself within a specified period which shall not be less than 48 hours. He may be suspended or interdicted from duty whilst investigations continue and shall be on half pay provided that if he is eventually exonerated he will receive the difference of his pay for the period of the suspension."

There is no evidence that the procedure laid down under this article was followed. The corporation itself apparently did not consider that her conduct amounted to either gross insubordination or wilful disregard of instruction and I think they were right. In any event I am of the view that even where a person is said to have vacated his post by being absent for more than ten days without prior permission the penalty is only that his name is removed from the pay roll. This I understand to mean that he would earn nothing for the period he is absent; such absence may give the employer the right to terminate the appointment summarily, but the mere absence does not of itself put an end to the engagement. However, as I have said, I am of the view that the plaintiff did not fail to report for duty within the intendment of article 27. I must therefore hold that her dismissal is wrongful. However, even if she had, the question arises as to the person or body of persons with the 'requisite authority to terminate her the defendant corporation. The legislative instrument the corporation was set up, L.I. 403, and the conditions of service of the employees adopted within the corporation are singularly silent on the question of dismissals.

The legislative instrument, L.I. 403, makes provision for, the appointment of officers, and provides in Part VII, para. 6 that:

"Employees of the Corporation appointed under this Part shall hold office upon such terms and conditions as the Board shall with the approval of the State Enterprises Secretariat determine so however, that the Internal Auditor shall not be removed from office without the prior approval of the State Enterprises Secretariat."

It would seem that all employees except the internal auditor can be removed by the board. Part VII, paras. 3 and 4, however, provide:

"3. Subject to the provisions of this Part, the Board shall be responsible for the appointment of persons as employees of the Corporation in respect of any post other than a post to which paragraph 2 of this Part applies [i.e. the posts of Managing Director, Manager, etc.].

4. The Board may delegate to the Managing Director or to any other officer of the Corporation the power to appoint persons as employees of the Corporation in respect of any post the initial salary attached to which is less than £G680 per annum."

The plaintiff was admittedly appointed to a post with an initial salary of £G600 in 1965; since then the initial salary for the grade has risen to ¢1,600 that is £G800. Meanwhile the figure in the legislative instrument has remained unchanged. Her grade is that of supervisor grade II, and the appointments to this grade must be by the board, and cannot be delegated to the managing director. In the absence of anything in the condition of service it must be deemed that it is the board that can terminate her appointment. In this case there is no evidence that her case even got to the board. It is clear that the termination was the decision of the managing director, and I must hold that it was beyond his powers.

I must now consider what remedies the plaintiff is entitled to in this court. She has by her writ claimed damages for wrongful dismissal and an order for her reinstatement. An initial step in considering remedies for wrongful dismissal should be an examination of the legal effect of a wrongful dismissal. Wrongful dismissal can take place in a variety of ways, and the following enumeration provides only examples and is not necessarily exhaustive. It may arise from:

(a) The dismissal of an employee by some organ of the corporation which is not empowered by the instrument setting the corporation, or by some statute or other delegated legislation governing the structure and the functions of the corporation to do so.

(b) The summary dismissal by the proper organ of an innocent employee of the corporation.

(c) The dismissal by the proper organ of an innocent employee on notice which is too short or otherwise invalid, as not complying with the terms and condition of service, e.g. not being in writing where written notice is required.

(d) The dismissal even on proper notice by the proper authority of an innocent employee without reason. This must be so because an obligation to be fair and candid is now imposed on all persons, who have to exercise discretionary powers.

It is true that Apaloo J A. said in Bank of Ghana v. Nyarko [1973] 2 G.L.R. 265 at p. 276, C.A. "Thus, the bank was entitled, even without assigning any reason, to dispense with the services of any of its employees." The dismissal complained of in that case occurred in 1967 before the coming into force of article 173 of our suspended Constitution, 1969. I do not think that the suspension of the Constitution has relieved public officers of their obligation to be fair and candid.

I cannot see how an organ of a statutory corporation, be it the board of directors or the managing director, which is empowered by the statute or legislative instrument to dismiss employees, can legitimately do so now without reason, and I am of the view that the courts can examine the validity of the reasons. And I cannot visualise any valid reason for such termination which is unconnected with the capacity or conduct of the employee or unrelated or not based on the operational requirement of the corporation. The government as a businessman is still the government, and its officers and instrumentalities have to be fair and candid.

The first of the examples enumerated above, is the most relevant in this case and it does not require innocence in the employee dismissed to render the dismissal wrongful. By innocence I simply mean that the employee has done nothing which would warrant summary dismissal. The innocence or guilt of the employee would seem to be immaterial. This would seem to follow from the reasoning of their Lordships of the Privy Council in Francis v. Municipal Councillors of Kuala Lumpur [1962] 3 All E.R. 633. In that case the president had voted with the council for the summary dismissal of the plaintiff, but it was held that the dismissal was the decision of the council and not the president, and therefore wrongful. In other words where the proper organ has not done so, a dismissal of a person on perfectly good grounds is still wrongful.

Now what is the effect of a wrongful termination of a contract of employment? The general principle of contract was authoritatively stated by Lord Reid in White and Carter (Councils), Ltd. v. McGregor [1961] 3 All E.R. 1178 at p. 1181, H.L. when he said: 

"If one party to a contract repudiates it in the sense of making it clear to the other party that he refuses or will refuse to carry out his part of the contract, the other party, the innocent party, has an option. He may accept that repudiation and sue for damages for breach of contract whether or not the time for performance has come; or he may if he chooses disregard or refuse to accept it and then the contract remains in full effect."

Again in Decro-Wall International S.A. v. Practitioners in Marketing Ltd. [1971] 2 All E.R. 216 at pp. 227-228, C.A. Sachs L.J. said:

"The general law as to the effect of repudiation has long been settled. The locus classicus for reference purposes is the statement in plain and simple terms in the speech of Viscount Simon LC in Heyman v. Darwins Ltd. [1942] 1 All ER 337 at 341, [1942] AC 356 at 361)' . . . repudiation by one party standing alone does not terminate the contract. It takes two to end it, by repudiation, on the one side, and acceptance of the repudiation, on the other.' Whether the other party accepts is a matter for his option; if he does not, the contract remains alive, as was recently emphasised in White & Carter (Councils) Ltd. v. McGregor [1961] 3 All ER 1178, [1962] AC 413)."

It has however often been suggested that a contract for services forms an exception to this general rule. In Vine v. National Dock Labour Board [1956] 3 All E.R. 939, H.L. for instance, the House of Lords adopted the words of Jenkins L.J. in the Court of Appeal in Vine v. National Dock Labour Board [1956] 1 All E.R. 1, where he said at p. 8:

"In the ordinary case of master and servant, however, the repudiation or the wrongful dismissal puts an end to the contract, and a claim for damages arises. It is necessarily a claim for damages and nothing more. The nature of the bargain is such that it can be nothing more."

And Viscount Kihmuir L.C. said in the House of Lords at p. 944:

"This is an entirely different situation from the ordinary master and servant case. There, if the master wrongfully dismisses the servant, either summarily or by giving insufficient notice, the employment is effectively terminated, albeit in breach of contract."

In Hill v. C. A. Parsons & Co., Ltd. [1971] 3 All E.R. 1345, C.A., Sachs L.J. had occasion to consider these words. In that case the primary contention advanced for the defendants was that a wrongful repudiation of a contract of service terminates the contract irrespective of whether or not the other party elects to accept it. It was urged that in this respect contracts of service are an exception to the general rule. Sachs L.J. dissenting said at p. 1353:

"In support of the defendants' submission reliance was naturally placed on a number of statements in general terms in judgments entitled to especial respect. High among them were the words of Jenkins LJ in his dissenting judgment in Vine v National Dock Labour Board which was adopted by the House of Lords."

His lordship then quoted the words which I have referred to above and continued at pp. 1353-1354:

"But Jenkins LJ would have been the first (whatever be the meaning attached to the word `ordinary') to deprecate over-extended reliance on words spoken in general terms ... Similarly, the general words quoted to us from the judgment of Salmon LJ in Denmark Productions Ltd. v Boscobel Productions Ltd. ([1968] 3 All ER 513, [1969] 1 QB 699) must be read subject to what he said in the Decro-Wall case ... having now heard the matter so well argued again it is only right to say that I feel reinforced in the view, of which I am now convinced, that the defendants' primary contention is wrong."

It seems to me that for too long there has been a confusion between the practical effects of a wrongful dismissal and its effect in law. None of the parties would be compelled to perform a contract for personal services, and therefore the courts have treated a contract of service to all intents and purposes as ended with dismissal. But as Lord Hodson said when he restated the law regarding an unaccepted repudiation in White and Carter (Councils) Ltd. v. McGregor [1961] 3 All E.R. 1178 at p. 1193 "The true position is that the contract survives and does so not only where specific implement is available."

The confusion of the practical effects of wrongful dismissal with its effect in law has led the English courts into some inelegent positions.

In Francis v. Municipal Councillors of Kuala Lumpur [1962] 3 All E.R. 633 at p. 637, P.C. for example, Lord Morris of Borth-y-Gest said:

"In their Lordships' view, when there has been a purported termination of a contract of service a declaration to the effect that the contract of service still subsists will rarely be made. This is a consequence of the general principle of law that the courts will not grant specific performance of contracts of service. Special circumstances will be required before such a declaration is made and its making will normally be in the discretion of the court."

I do not know what special circumstances can arise which will warrant a court to say that a contract which in law is dead is still in law alive. Moreover this confusion led the honourable Lords of the Privy Council to advise Her Majesty that a notice of dismissal which had been held to be null and void nevertheless operated in law to put an end to a contract.

'The practical effect of a wrongful termination of employment in my view results from the practices adopted by the English courts, and two very general principles in the law of contract. These are:

(1) The practice that the English courts will not as a rule grant relief by way of specific performances where

(a) damages are an adequate remedy;

(b) there is absence of mutuality;

(c) enforcement would result in slavery or a condition akin to slavery:

(d) the contract needs personal confidence as between the parties when such confidence may not exist;

(e) there may be difficulty of reinstatement where the plaintiff's post has already been filled;

(f) where the order if made would be nugatory, uncertain or as a practical matter impossible to enforce.

(2) The general principle that a party cannot claim money as payable under a contract if he had not earned it under the contract. A party can only recover remuneration for work done. The fact that he is prevented by the other party from doing any work under the contract is considered irrelevant.

(3) The principle that a party claiming damages is under a duty to take reasonable steps to minimise the loss he has suffered.

An employee in England who is wrongfully dismissed is most unlikely to obtain an order on his employer to perform the contract; he cannot earn any remuneration while he is not working, and his only remedy is to claim damages, and to claim damages, he must show that he has taken steps to minimise his loss. He cannot therefore claim as damages the loss of the whole remuneration he would have earned if he had not been dismissed.

The plight of the employee in England is well portrayed in this passage from the judgment of Salmon L.J. in Decro-Wall International S.A. v. Practitioners in Marketing Ltd. [1971] 2 All E.R. 216, C.A. His lordship said at p. 223:

"I doubt whether a wrongful dismissal brings a contract of service to an end in law, although no doubt in practice it does. Under such a contract a servant has a right to remuneration, including what are sometimes called fringe benefits, in return for services. If the master, in breach of contract, refuses to employ the servant, it is trite law that the contract will not be specifically enforced. As I hope I made plain in the Denmark Productions case, the only result is that the servant, albeit he has been prevented from rendering services by the master's breach, cannot recover remuneration under the contract because he has not earned it. He has not rendered the services for which remuneration is payable. His only money claim is for damages for being wrongfully prevented from earning his remuneration. And like anyone else claiming damages for breach of contract he is under a duty to take reasonable steps to minimise the loss he has suffered through the breach. He must do his best to find suitable alternative employment. If he does not do so, he prejudices his claim for damages. I doubt whether, in law, a contract of service can be unilaterally determined by the master's breach. Perhaps the servant could sit still whilst the contract ran its course with the knowledge that the contract was, in law, still alive. But, in practice, this knowledge could be of little real comfort to him because he would be failing to take reasonable steps to minimise his loss and, since a claim for damages is his only money remedy, he would be prejudicing that claim by doing nothing. Accordingly he would, as a rule, be far better off to treat his contract as if it were at an end; and this is usually what happens."

In recent years valiant efforts are being made by the English judges themselves to assail the rationale behind the practice of not affording an order for specific performance of a contract of service, notwithstanding the fact that this practice has been going on since the chancellorship of Truro L.C. over 200 years ago.

The ground that an order for specific performance if made in respect of contract of service would be nugatory, uncertain or as a practical matter impossible to perform has been shown to be unrealistic in C. H. Giles & Co., Ltd. v. Morris [1972] 1 All E.R. 960 where Megarry J. said at p. 969:

"One day, perhaps, the courts will look again at the so-called rule that contracts for personal services or involving the continuous performance of services will not be specifically enforced. Such a rule is plainly not absolute and without exception, nor do I think that it can be based on any narrow consideration such as difficulties of constant superintendence by the court. Mandatory injunctions are by no means unknown, and there is normally no question of the court having to send its officers to supervise the performance of the order of the court. Prohibitory injunctions are common, and again there is no direct supervision by the court. Performance of each type of injunction is normally secured by the realisation of the person enjoined that he is liable to be punished for contempt if evidence of his disobedience to the order is put before the court; and if the injunction is prohibitory, actual committal will usually, so long as it continues, make disobedience impossible. If instead the order is for specific performance of a contract for personal services, a similar machinery of enforcement could be employed, again without there being any question of supervision by any officer of the court. The reasons why the court is reluctant to decree specific performance of a contract for personal services (and I would regard it as a strong reluctance rather than a rule) are, I think, more complex and more firmly bottomed on human nature."

This ferment in English judicial practice has been occasioned by the realisation by some English judges that the previous practice, even though of long standing, has sometimes occasioned a miscarriage of justice. The English legislature has also recognised with the rise of organised labour that the arbitrary power in the hands of employers to terminate employment contracts should be controlled. The court's attitude is well exemplified in this passage from the dissenting judgment of Sachs L.J. in Hill v. C. A. Parsons & Co., Ltd. [1971] 3 All E.R. 1345 at p. 1355, where he said:

"Finally it was urged that any order made would run contrary to the policy or trend of previous practice. At the risk of reiterating views expressed in my judgments on other subject-matters, it seems appropriate to repeat that in matters of practice and discretion it is essential for the courts to take account of any important change in that climate of general opinion which is so hard to define but yet so plainly manifests itself from generation to generation. In that behalf account must, inter alia, be taken of the trend of the views of the legislature expressed on behalf of the community in its enactments and also of the trend of judicial decisions. Over the last two decades there has been a marked trend towards shielding the employee, where practicable, from undue hardships he may suffer at the hands of those who may have power over his livelihood - employers and trade unions. So far has this now progressed and such is the security granted to an employee under the Industrial Relations Act 1971 that some have suggested that he may now be said to acquire something akin to a property in his employment. It surely is then for the courts to review and where appropriate to modify, if that becomes necessary, their rules of practice in relation to the exercise of a discretion such as we have today to consider - so that its practice conforms to the realities of the day."

The mere fact however that the English courts have now shown indications that they may be prepared to alter an age old practice does not necessarily mean that the courts in these parts should also do the same. The imitative nature of the monkey in Lord Kitcher's calypso "I don't know what to do that monkey won't do," should not be a pattern in the evolution of law in this country. I am of the view that where the practice has been adopted, we should stick to it notwithstanding developments in England, unless it can be demonstrated that it is working injustice or that it is not in tune with public opinion as manifested in current legislation on the subject or for some other weighty and substantial reasons.

There can be no doubt that the practice of the English courts has been adopted lock stock and barrel by the Ghana and, indeed, the West African courts, and that these courts will not grant specific performance of a contract of service. However, in none of the cases was any consideration given or reference made to local legislation governing employment or labour. I therefore feel free to consider the position in the light of these statutory provisions.

The Labour Ordinance, Cap. 89 (1951 Rev.), was first enacted in 1948. It was re-enacted with minor amendments in the Labour Decree, 1967 (N.L.C.D. 157). The Decree covers contracts of employment of what is generally referred to as junior staff, that is clerical workers, artisans and labourers. There are exceptions in the case of domestic servants. Para- graphs 36 and 38 (2) (c) of the Labour Decree, 1967, provide:

"36. Where any employer or worker neglects or refuses to fulfil any contract, or where any question arises as to the rights or liabilities of either party or touching any misconduct, neglect or ill-treatment or injury to the person or property of either party under any contract, the party aggrieved may lay a complaint before the Court against any party and the Court may thereupon take appropriate civil proceedings against such other party."

"38. (2) Upon the hearing of the complaint the Court may exercise all or any of the following powers, that is to say— . . .

(c) The Court may direct fulfilment of the contract, and, in cases where damages might be awarded for any breach of contract, may in place of the whole or part of the damages which would otherwise have been awarded, direct the party in breach to give security to the satisfaction of the Court, by deposit, or otherwise, for the due performance of so much of the contract as remains unperformed."

(The emphasis is mine.)

The legislature has made its intention clear that, apart from purely personal contracts such as contracts for the engagement of domestic servants, all other contracts of employment of junior staff may be specifically enforced by the district courts. The objection to the grant of specific performance in respect of contracts of service cannot be tenable in this country in view of this legislation.

The unfair practices tribunal set up under the Industrial Relations Act, 1965 (Act 299), also can order the reinstatement of an employee who has been unfairly dismissed; section 32 (2) of the Industrial Relations Act, 1965, provides:

"32. (2) Where the tribunal finds that a person has engaged in an unfair labour practice under section 26 which involves the termination of employment of an employee or the alteration of his employment or of the conditions of his employment, the tribunal may, if it thinks fit, make an order requiring his employer -

(a) to take such steps as may be specified in the order to restore the position of the employee; and

(b) to pay to the employee a sum specified in the order by way of compensation for any loss of earnings attributed to the contravention."

There is no evidence that this power of reinstatement is causing such havoc in industrial relations as to make it undesirable for the courts to exercise their undoubted jurisdiction to order specific performance of a contract of engagement. The power is discretionary, and an order cannot be granted as of course. Each case must be considered on its own merits. It would obviously be invidious to order specific performance of a contract with a domestic servant, but I do not see why a statutory corporation should not be ordered to reinstate an employee who has been wrongly dismissed. As I have shown above, it is already being done by the unfair practices tribunal. In this case it seems to me that if the minister's directives had been acceptable to the plaintiff the defendants would have carried them out. What the minister can do with doubtful legal backing I think the courts, with full legal authority can do. Although I am statutorily bound by the decisions of the Court of Appeal that there is no distinction between wrongful dismissal in public and private employment, speaking for myself, I would, in the exercise of the discretion to order specific performance, more readily accede to such a claim in respect of wrongful dismissal, in public than in private employment. I would therefore grant the order sought, and direct that the plaintiff be reinstated in her employment, and that her name which was removed from the pay-roll of the corporation be re-inserted thereon as from that date.

The question whether the plaintiff will be entitled to her salary as from the date of her wrongful dismissal depends on the practice of the defendant corporation and the terms and conditions of employment of the staff. The general principle as I have stated is that a person is not entitled to claim money as payable under a contract unless he has earned it under the contract. This principle is normally applied to rents and instalments under hire-purchase contracts, where the hirer has refused to take delivery. It is however not an absolute rule, and in its application to a contract of employment under the Industrial Relations Act, 1965 (Act 299), s. 32, the tribunal, where it orders reinstatement, can also order the employer to pay to the employee a sum specified in the order by way of compensation for any loss of earnings attributed to the unfair dismissal.

Everything depends, on the terms and conditions of employment and the practice of the employer. Where it is shown that absence from work with the permission of the employer does not debar the employee from earning under the contract, I think the courts should be slow to hold that absence from work on the orders of the employer should without more, do so. Article 24 of the terms and conditions of service of the defendant corporation, which deals with discipline prescribes the procedure for summary dismissal of an employee. It says inter alia:

"He may be suspended or interdicted from duty whilst investigations continue and shall be on half pay provided that if he is eventually exonerated, he will receive the difference of his pay for the period of the suspension."

I cannot readily accept the proposition that where the employer himself eventually exonerates the worker then the worker is entitled to his full pay even though he had not worked, but that where the worker is eventually exonerated by the court, he is not so entitled. I am of the view that under, the terms and conditions of service of the defendant corporation there is no room for the application of the general principle that an employee who has not worked as a result of the action of the employer cannot claim his salary or wages under his contract of employment. In the result I hold that the plaintiff is entitled to her full salary from the date of her wrongful dismissal, and I order that this should be paid by the defendant.

The plaintiff will have her costs which are assessed at ¢400.00 inclusive of ¢300.00 for counsel.

DECISION

Judgment for the plaintiff.

D. R. K. S.