COLLINS AMPADU V. THE NEEM TREE LEISURE CENTRE LIMITED

JUDGMENT 

OWUSU, J.

By an amended Writ of Summons filed in the Registry of this Court the Plaintiffs are claiming against the Defendant the following reliefs:  

i) An order that the termination of the Plaintiffs appointment was wrongful and arbitrary. 

ii) Payment of Nine Thousand, Six Hundred and Ninety Seven Ghana Cedis One Pesewa (GH₵9,697.01) being unpaid overtime allowances due the Plaintiffs. 

iii) Payment of Thirty Thousand Ghana Cedis (GH₵30,000.00) as damages for wrongful dismissal 

iv) Costs.



By an accompanying Statement of Claim the Plaintiffs averred that they were employees of the Defendant Company but were dismissed on 8th November 2013. Plaintiffs averred further that since their employment on 1st December 2011 to the date of their dismissal they were not issued with employment contracts contrary to the Labour Laws of Ghana. 



According to them they had been working between 10-13 hours daily without any overtime allowance and had approached management of Defendant Company on several occasions to demand their overtime allowance all to no avail. Plaintiffs claimed that management of the Defendant Company had on several occasions brought in expired drinks and other products to the bar to be put in the fridges for sale to customers and when their advice to management to desist from this unprofessional behaviour went unheeded they thereafter reported the Defendant to the Food and Drugs Authority (FDA). They maintain that their dismissal is wrongful and unfair because it was based on the report they made to the FDA.  

The Defendant admitted that the Plaintiffs were not issued with appointment letters but averred that even though they were not issued with appointment letters they were considered as employees of Defendant and accorded the treatment and benefits due them under the Labour Laws of Ghana. Defendant denied that Plaintiffs ever approached management to demand payment of overtime allowances and say that it was only in October 2013 when Plaintiffs solicitors wrote demanding same that this alleged claim came to their notice. According to the Defendant they do not owe overtime arrears. In respect of the sale of expired drinks Defendant’s case is that Plaintiffs had displayed incompetence by placing the expired drinks in the fridge and serving same to the FDA official.  

At the close of pleadings the following issues were set down for trial: 

1. Whether or not the Plaintiffs worked overtime without any allowance contrary to the Labour Laws of Ghana. 

2. Whether or not the Plaintiffs have demanded payment of their overtime allowances from management without success. 

3. Whether or not the Plaintiffs were instructed by management to put expired drinks in fridges for sale to customers.

4. Whether or not the Plaintiffs informed officials of the Food and Drugs Board of the sale of expired drinks by the Defendant who confirmed the information given to them. 

5. Whether or not the Plaintiffs’ dismissal is wrongful. 

On the principle as to whom the evidential burden must fall, the Supreme Court in the case of TAKORADI FLOUR MILLS v. SAMIR FARIS [2005-2006] SCGLR 882 Holding 2, enunciates the law that a Plaintiff in a civil case is required to produce sufficient evidence to make out his claim on a preponderance of probabilities. 

This understanding is further reinforced in Holding 5 of the above case as follows: 

“It is sufficient to state that this being a civil suit, the rules of evidence require that the plaintiff produces sufficient evidence to make out his claim on a preponderance of probabilities, as defined in section 12(2) of the Evidence Decree, 1975(NRCD 323). In assessing the balance of probabilities, all the evidence, be it that of the plaintiff or the defendant, must be considered and the party in whose favour the balance tilts is the person whose case is the more probable of the rival versions and is deserving of a favourable verdict.” 

It is trite that the legal burden of proof will generally lie on a party asserting the affirmative of an issue and it is the duty of such a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the Court. I refer to Section 11 and Section 14 of the EVIDENCE ACT 1975 [NRCD 323] and the case of GIHOC REFRIGERATION and HOUSEHOLD v. JEAN HANNA ASSI [2005-2006] SCGLR 458 @ page 485. 

Before I proceed to address the issues it would be pertinent to make reference to Section 12(1) and (2) of the LABOUR ACT, 2003 [ACT 651]. The section provides that the employment of a worker by an employer for a period of six months or more or for a number of working days equivalent to six months or more within a year shall be secured by a written contract of employment and the contract of employment shall express in clear terms the rights and obligations of the parties.

From the evidence adduced, there is no written contract of employment governing the parties. The Defendant’s representative in the person of Mr. David Carreras had this to say in his evidence at page 4 of the record of proceedings dated 3rd December 2015: 

“Q. Plaintiffs say that they were not issued with employment contract. What do you say to that? 

A. That is true. They were not issued with hard copies of employment contract it was only verbal contract but we treated them in any other matter as employees.” 

Again at page 7 of the record of proceedings dated 3rd December 2015 the Defendant had this to say: 

“Q. How were these conditions of service made known to the plaintiffs. Was it written or verbal? 

A. Verbal.”  

The manner in which people become part and parcel of an undertaking and its activities is dependent on the contract or agreement entered into between the two. According to the 4th Plaintiff who testified on his behalf and that of the other Plaintiffs their appointments were confirmed during their separate interview sessions and it was again at these interview sessions that they were told the duration of their probation, how many hours they were supposed to work (that is eight hours a day) and how much each was to be paid at the end of each working month. Plaintiffs were hired under a contract of service or employment for a period of six months and more and same had to be secured by a written contract. It is the case of the Plaintiffs that the Managing Director of the Defendant told them that he will confirm their appointments after three months but this was not done. The following transpired on 9th February 2015: 

“A: My Lord, after the interview we were confirmed by the MD as workers……Then the MD told us that we will be given probation for three months and after the three months, he will confirm our appointment with letters to us.

Q: After the three months what happened? 

A: My Lord, after the three months, the Plaintiffs waited for a month to hear a word from the MD but then we were issued with no appointment letters, nor employment contract letters from the MD so we then through the 3rd Plaintiff, Jacob Azakpo who was our manager at the time and our head bar man, who spoke to the MD demanding for our appointment letters but he told us the Defendant were out of town and that when they return he will make sure that everything is sorted out. The Defendant then came back from their trip but we did not receive any appointment letter from them immediately. 

Q: But did you receive any appointment letter after? 

A: After their trip, we did not receive any appointment letter from the Defendant.”  

In the absence of a written contract of employment between the parties the provisions in the Labour Act should govern the parties. 

I shall now proceed to address issues 1 and 2 together. 

∙ Whether or not the Plaintiffs worked overtime without any allowance contrary to the Labour Laws of Ghana. 

∙ Whether or not the Plaintiffs have demanded payment of their overtime allowances from management without success. 

Sections 33 and 34 of ACT 651 provide that the hours of work of a worker shall be a maximum of eight hours a day or forty hours a week. The Act further provides that the rules of an undertaking or its branch may prescribe hours of work different from eight hours a day on one or more days in the week. Shorter hours could be fixed and longer hours could be fixed. However where shorter hours of work are fixed, the hours of work on the other days of the week may be proportionately longer than eight hours but shall not exceed nine hours a day or a total of forty hours a week. Again where longer hours of work are fixed, the average number of hours of work reckoned over a period of four weeks or less shall not exceed eight hours a day or forty hours a week.  

Section 36 also provides that workers who work on shifts are also to work for an average number of hours which if reckoned over a period of four weeks or less shall not exceed eight hours a day or forty hours a week if there is an established time-table for the shifts. The working hours and the period of work by the worker are supposed to be agreed on by the employer and the worker and same enshrined in the contract of employment.  

In Section 35(1) and (2) where however a worker in an undertaking works after the hours of work fixed by the rules of that undertaking, the additional hours done shall be regarded as overtime work or allowance and such a worker may not be allowed to do overtime work unless that undertaking has fixed rates of pay for overtime work and this is the allowance Plaintiffs are seeking. 

Now within the context of the afore-mentioned the question I ask is did the Defendant prescribe hours of work different from those stipulated in the Labour Act? Did it have fixed rates of pay for overtime work? The Defendant has argued that although Plaintiffs were not provided with written terms and conditions of their employment Plaintiffs were duly informed and worked within the terms and conditions of the Labour Act.  

Section 175 of ACT 651 is the interpretation section of the Act and it defines “contract of employment” to mean a contract of service whether express or implied, and if express whether oral or in writing. This means that there may be instances were a court may recognize such an oral contract of employment where parties intended same to be contractual and where same does not contravene provisions in the Act. Where these terms are within the law the courts may enforce same. So was this verbal contract in accordance with the Labour Act? Plaintiffs say that they worked beyond 8 hours and the hours permitted by the Act. They claim that they did not run shifts as the Defendant wants the court to believe.  

Plaintiffs insist they were never paid overtime allowance although they demanded for same without success from management. As enunciated by the Supreme Court in the case of GIHOC REFRIGERATION and HOUSEHOLD v. JEAN HANNA ASSI [2005-2006] SCGLR 458 @ page 485 the Plaintiffs are required to produce sufficient evidence to make out their assertion that they worked overtime without any overtime allowance contrary to the Labour Laws of Ghana. Defendant admits that there were some days that the Plaintiffs stayed longer and later hours but they were compensated monetarily between GH₵20.00 to GH₵50.00. Defendant contends that on some special event days like Flamingo days, Brazilian party days staff are paid bonuses for the overtime. Again workers received tips on weekends and to ensure that all workers participated in the tips received from customers Defendant introduced a service charge on its services which was shared among all the workers every two weeks. This pertinent piece of evidence was not challenged by the Plaintiffs. I refer to the case of FORI v. AYIREBI and OTHERS [1966] GLR @ page 627. The Plaintiffs are deemed to have admitted this piece of evidence. They claim they demanded payment of their overtime allowances from management without success and this was done even before they were dismissed from the Defendant’s employment. Defendant denies this and insists that the issue of overtime allowance was never raised by the Plaintiffs until they were dismissed. Again Plaintiffs have failed to proof this. He who asserts must proof and in the case of ZAMBRAMA v. SEGBEDZI [1991] 2 GLR 221 the Court of Appeal expounded on this principle of the law and stated that “a person who makes an averment or assertion, which is denied by his opponent, has the burden to establish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact(s) he assets can be properly and safely inferred. The nature of each averment or assertion determines the degree and nature of that burden” 

As already established the Plaintiffs have failed to discharge the evidential burden placed on them. They have failed to prove that they are entitled to overtime allowances. They have also failed to prove that they ever demanded the payment of their supposed overtime allowances before their dismissal from the Defendant Company. This claim fails and is hereby dismissed. I move on to my next issue of

∙ Whether or not the Plaintiffs were instructed by management to put expired drinks in fridges for sale to customers. 

In their evidence in chief Plaintiffs case is that the Defendant imported beer from Spain and when the beer expired they were still asked to sell the expired beer to the unsuspecting public although they had advised Defendant about the dangers of selling expired drinks. The Defendant denied that Plaintiffs were instructed by Defendant’s Management to put expired drinks in fridges for sale to customers and argued that it was just a calculated step by the Plaintiffs to get back at them for hiring a new manager. Under cross examination, this was an answer given by the Defendant’s witness to a question asked by counsel for the Plaintiffs: 

“Q: So can you tell this court why you were keeping these expired drinks in your home until the FDA visited your premises when you knew they were expired? 

A: We had lots of products, some which were expired and I was drinking myself and some that had expired which we sent to the restaurant.” 

Why would the Defendant send expired drinks to the restaurant if they did not intend to use them there? What would be the basis for sending such expired drinks to the restaurant? These drinks were there when the FDA visited the Defendant’s premises. I am inclined to believe the Plaintiffs who have asserted that they were asked to sell these expired drinks which had found their way into the restaurant. I find as a fact that Plaintiffs were instructed by management of the Defendant Company to put expired drinks in the fridge for sale to customers. 

∙ Whether or not the Plaintiffs informed officials of the Food and Drugs Board of the sale of expired drinks by the Defendant who confirmed the information given to them. 

Although the Defendant suggests that the FDA did not come on the complaint of anybody, remarkably however Exhibit B, a formal document from FDA states otherwise. The letter is addressed to the 2nd and 4th Plaintiffs and it clearly states that there was an investigation by the FDA, based on a complaint made by the 2nd and 4th Plaintiffs. I find as a fact that 2nd and 4th Plaintiffs informed officials of the FDA of the sale of expired drinks by the Defendant. I shall next proceed to address the last issue of 

∙ Whether or not the Plaintiffs’ dismissal is wrongful.  

Plaintiffs contend that they were dismissed for the singular reason that they lodged a complaint to the FDA regarding the Defendant’s sale of expired drinks under the FOOD and DRUGS ACT 1992, Section 1(b). The Defendant sought to prove that Plaintiffs were dismissed for various reasons other than the fact that they reported the Defendant to the FDA. Plaintiffs are seeking a declaration that the termination of the Plaintiffs employment is wrongful and also seeking an order for Defendant to pay damages for wrongful dismissal. Indeed as counsel for the Defendant rightly submitted in his address, there is a difference between dismissal and termination but same have been used interchangeably by the Plaintiffs. He referred to the case of NUNOOFIO v. FARMERS SERVICES CO. LTD [2007-2008] SCGLR 926 at 940. Termination is simply an expression of the terminating party’s unwillingness to continue with the employment relationship with the other party and requires specific periods of notice to be given. A wrongful dismissal is the discharge of the contract of employment by the employer without notice at all, with insufficient notice where this is required or without justification. I refer to page 361 of the book LABOUR LAW by JAMES ODARTEY MILLS. It must be noted however that the distinctions are not as distinct as they have simply been merged together under the common term ‘dismissal’. As afore- mentioned, the Plaintiffs are claiming that they were dismissed because they lodged a complaint with the FDA. Section 63 of ACT 651 deals with unfair termination of employment and provides in subsection 2 that a worker’s employment is terminated unfairly if the only reason for the termination is that the worker has filed a complaint or participated in proceedings against the employer involving alleged violation of this Act or any other enactment. I have had a look at Exhibit C series, the termination letters of the Plaintiffs. The issue of display of gross incompetence and dereliction of duty by reckless placement of expired drinks in the fridge runs through all their letters with the exception of the 5th Plaintiff who was dismissed for misconducting himself, to be precise, for allegedly stealing money belonging to the Defendant. In the light of Exhibit C series and in the light of evidence before me I am again inclined to believe that the 1st to 4th Plaintiffs were unfairly dismissed for this reason and find so as a fact. In respect of the 5th Plaintiff’s dismissal the 4th Plaintiff who testified in court said that the Police had come out to say there was no evidence to substantiate the allegation that 5th Plaintiff stole the Defendant’s money. Defendant denies this. Defendant was thus expected to lead such cogent and positive evidence to support the allegation but failed to lead any evidence in support of their stance. I again find as a fact that 5th Plaintiff’s dismissal was unfair. The court herby declares that the dismissal of the Plaintiffs was wrongful and they are entitled to damages for unfair dismissal.  

Damages are generally measured by looking at how much the employee who has been dismissed wrongly or unlawfully has lost as a result of the dismissal. The purpose is to put the dismissed person in much the same position as he would have been. I refer to the case of ARKORFUL v. STATE FISHING CORPORATION [1991] 2 GLR 348.  

In calculating general damages I take into consideration the period which Plaintiffs have not been in Defendant’s employ and how much they were earning at the time and I hereby order the Defendant to pay to the five Plaintiffs an amount of GH₵ 18,000.00 as damages for wrongful dismissal. 

Cost of GH₵1, 00.00 is awarded in favour of each Plaintiff. 

(SGD) 

JUSTICE LAURENDA OWUSU 

JUSTICE OF THE HIGH COURT

COUNSEL

MICHAEL AKAMBEK FOR PLAINTIFFS

ROMA LOKKO FOR TONY LITHUR FOR DEFENDANT