RALPH AGBALENYO V. GHANA MINE WORKERS UNION OF TUC

JUDGMENT

MARFUL-SAU, JA

The record of this appeal raises one fundamental issue, which is whether or not the termination of plaintiff/appellant's appointment by the defendant/respondent was lawful. I will therefore address this issue and later comment on the two grounds of appeal formulated in the Notice of Appeal.

The defendant/respondent to be referred to as the respondent, by a letter dated the 5th of May 2005 terminated the appointment of the plaintiff/appellant to be referred to as appellant. The appellant until the termination of his appointment was the Industrial Relations Officer of the respondent union. The letter of termination, which was tendered as Exhibit B, provided in the last paragraph as follows:-

"The report of the investigation Committee was placed before the Management Committee of the Union at its sitting on 27th April, 2005. The Management Committee unanimously endorsed the recommendation of the Committee that your appointment with the Ghana Mineworkers Union be terminated on grounds of proven misconduct as contained in section 15(e) (iii) of Labour Act, 2003, Act 651 with effect from 3rd May, 2005. You will receive a month's pay in lieu of notice............"

The appellant aggrieved by the action of the respondent took out a writ of summons that commenced this action which principally sought a declaration that the termination of his appointment was contrary to his conditions of service. At paragraph 22 and 23 of the appellant's statement of claim, he pleaded that the respondent erred by terminating his appointment under section 15 (e) (iii) of Labour Act, 2003 and that his termination could only have been done in accordance with his conditions of service. The trial High Court after the trial found nothing wrong in law with the conduct of the respondent in terminating the appointment of the appellant. The court accordingly dismissed appellant's action, hence this appeal which was fought on two main grounds. As already stated, the said grounds would be addressed in the course of this judgment, but for now, I seek to address the fundamental issue earlier identified, which is whether or not the termination of appellant's appointment was lawful?

As noted from Exhibit B, the letter of termination, appellant's appointment was terminated on grounds of proven misconduct as provided under section 15 (e) (iii) of the Labour Act, Act 651. The appellant finds this wrong and argues that his termination should have been based on his conditions of service with the respondent. It is important to emphasise that appellant's appointment was terminated as indicated in Exhibit B. In other words appellant was not dismissed. What then is the law on this subject? Our courts have in several cases upheld the principle that at common law an employer is at liberty to terminate the appointment of an employee without assigning reasons, provided the employer satisfies the terms of the service contract.

In the case of Kobea and Others v. Tema Oil Refinery; Akomea-Boateng and Others v. Tema Oil Refinery (Consolidated) (2003-2004) 2 SCGLR 1033, the Supreme Court addressed the difference between termination and dismissal of employment. On termination of appointment the court spoke through Dr. Twum, JSC at page 1039 as follows:-

"At Common law, an employer and his employee are free and equal parties to the contract of employment. Hence either party has the right to bring the contract to an end in accordance with its terms. Thus an employer is legally entitled to terminate an employee's contract of employment whenever he wishes and for whatever reasons, provided only that he gives due notice to the employee or pay him his wages in lieu of the notice. He does not even have to reveal his reason, much less to justify the termination..........."

Again, in the case of Kobi and Others v. Ghana Manganese Co. Ltd. (2007-2008) SCGLR 771, the Supreme Court per Atuguba, JSC delivered at page 775 as follows:-

"What I consider to be trite learning on this issue is that a contract of service is not a contract of servitude. That being so, even if the contract of employment is silent on the question whether it is terminable, the common law implies a right to terminate the same by either side upon reasonable notice to the other: See Bauman v. Hulton Press Ltd (1952) 2 All ER 1121. Subject to this, the right to terminate a contract of service is dependent on the terms of the contract and must be exercised in accordance therewith."

My understanding of the decisions of the Supreme Court in the two cases cited above is that at common law an employer is at liberty to terminate the appointment of an employee provided the employer satisfies or complies with the terms of the service contract. In other words for a termination of appointment to be lawful, there must be evidence that the employer has complied with the terms of the contract of employment. In this appeal, the appointment of the appellant was regulated by the Ghana Mineworkers' Union of Trades Union Congress Conditions of Service for Senior Staff, which was tendered in evidence at the trial as Exhibit C. Article 12 of the Conditions of Service which is headed Leaving the Service of the Council provides as follows:-

'"12.1. IntroductionAn employee may leave the service of the council through the following: Termination, Resignation, Retirement, Retirement on Medical grounds, Redundancy/Severance, Death.12.2. TerminationIn cases other than gross misconduct an employee's appointment shall be terminated with one month notice or pay in lieu of notice.

From the conditions of service therefore all the respondent needed to do, if it intended to terminate the appointment of the appellant, was to satisfy the term by giving one month notice or pay in lieu of the notice. From the record of appeal, it is clear that the respondent did pay the appellant the one month pay in lieu of the notice. Indeed, the appellant under cross-examination admitted he collected the one month pay in addition to his provident fund.

Even though it is clear that the respondent complied with terms of the conditions of service in terminating the appointment of the appellant, the appellant is arguing that the termination was unlawful for the mere fact that it was grounded under section 15 of the Labour Act, instead of the Conditions of Service. This argument to my mind is misplaced because as held by the Supreme Court, at common law the respondent was not under any obligation to give reasons for the termination. Again, even though the respondent quoted section 15 of the Labour Act, it paid the appellant the one month salary in lieu of notice. Having complied with the conditions of service, I do agree with the trial court that the appellant suffered no miscarriage of justice, when the respondent mistakenly grounded the termination under section 15 of the Labour Act. On this point of law, the trial Judge rightly applied the law as was held in the case of Bannerman Menson v. Ghana Employers Association (1996-97) SCGLR 417, where the Supreme Court held that an employer was not under obligation to give reasons for termination of appointment but where the employer gives reasons and it is not true, the employee cannot use the false reasons as the basis to seek to set aside the termination as being wrong.

On the record of appeal, there is ample evidence that the respondent complied with the terms of the conditions of service when it terminated the appointment of the appellant. The appellant accepting and collecting the one month salary in lieu of notice as directed in the letter of termination did not suffer any miscarriage of justice, even though the respondent grounded the termination under section 15 of the Labour Act. I therefore hold as found by the trial Judge, that the termination of the appointment of the appellant was lawful and as such the judgment of the trial court ought not be disturbed.

At the beginning of this judgment I indicated that I will comment on the grounds of appeal as formulated in the notice of appeal. The two grounds of appeal are as follows:-

"a. The trial High Court erred when it failed to hold that "PROVEN MISCONDUCT" in section 15 (e) (iii) of Act 651 is undefined and that the absence of a proven misconduct as a ground of termination in the plaintiff/appellant's Senior Staff Terms and Conditions is more beneficial to the plaintiff/appellant than section 15 (e) (iii) and therefore could not be applied to the detriment of the plaintiff/appellant as provided in section 19 of Act 651.

b. The trial High Court erred when it failed to advert its mind to the fact the Labour Act, 2003 makes the provisions concerning the terms of employment and termination of employment and personal obligations imposed and rights granted to the plaintiff/appellant and the defendant/respondent that are contained in the contract of employment applicable and the same be mandatorily regarded as the terms of a contract of employment which must apply in the termination of the employment relationship."

Rule 8(4) and (5) of the Court of Appeal Rules, CI 19 provides as follows:-(4). Where the grounds of an appeal alleges misdirection or error in law, particulars of the misdirection or error shall be clearly stated.(5). The grounds of appeal shall set out concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively."

The two grounds of appeal stated above clearly violate Rule 8 as quoted above. Firstly, the grounds by its content allege errors which are legal in nature, but no particulars were provided as required under Rule 8 of CI 19. Secondly, the two grounds as formulated are very argumentative and therefore a violation of the Rules of this court. The said grounds are therefore bad in law and therefore not worthy of any consideration. This court has always advised appellants to comply strictly with the Rules that give them the right to invoke its jurisdiction. An appeal is a creature of statute and the settled law is that appellants are obliged to comply with the law that vests them with the right to appeal. The two grounds of appeal are therefore struck out as being bad in law. SeeNye v. Nye (1967) GLR 76

In conclusion, the appeal will fail as it is without any merits whatsoever. The decision of the trial court dated 27th October 2014 dismissing appellant action is hereby affirmed. The appeal is accordingly dismissed.

SGD.

MARFUL-SAU, JA

JUSTICE OF COURT OF APPEAL

I agree

SGD.

AGNES DORDZIE,JA

JUSTICE OF COURT OF APPEAL

I also agree

SGD.

TANKO AMADU, JA

JUSTICE OF COURT OF APPEAL

COUNSEL

KWASI DANSO- ACHEAMPONG FOR PLAINTIFF/ APPELLANT

CHARLES BAWADUAH FOR DEFENDANT/RESPONDENT