PAULINA EFFISAH V. TULLOW GHANA LIMITED

JUDGMENT

ASUMAN-ADU J

The plaintiff, Paulina Effisah, a former employee of the Defendant Company commenced the current action against the Defendant, Tullow Ghana Limited on 8th February, 2010 for the following reliefs:

(a) Reinstatement of Plaintiff to her former employment with all the benefits and promotions due from the date of her purported termination of her appointment. Or

(b) In the alternative, payment to the Plaintiff an amount of GH¢200,000.00 being compensation for unlawful termination of her appointment.

(c) Costs.

The Defendant entered conditional appearance on 11th February, 2010 but went on to file its statement of defence on 3rd March, 2010 denying the claim of the Plaintiff. On 26th April, 2010, the Plaintiff filed a reply to the statement of defence and went on to file application for directions on the same day. Issues raised by the Plaintiff in the application for directions were as follows:

1. Whether or not Plaintiff’s appointment took effect from 17th October, 2008.
2. Whether or not Defendant was informed of Plaintiff’s medical condition prior to her assumption of duty at Takoradi.
3. Whether or not Plaintiff’s presence in Accra from 22nd October to 10th November was with the permission and knowledge of the Defendant.
4. Whether by proper interpretation of the provisions of the Contract of Employment particularly Sections 2.2, 2.3 and 11, the Defendant was entitled to terminate Plaintiff’s appointment allegedly for absence and inability to perform on her duties as Travel Assistant.
5. Whether termination of Plaintiff’s employment was unlawful.
6. Any other matters arising out of the pleadings.

On 5th May, 2010, the Defendant also filed the following additional issues:

1. Whether or not Plaintiff knew at all times that her duty post was Takoradi.
2. Whether or not the Plaintiff hid vital information about her medical condition from the Medical Officer during her pre-employment medical examination.

Whether or not the Defendant assured the Plaintiff that staff of the Defendant were rotated every six months.

At close of pleadings this court set down all the issues raised in the application for directions and the additional issues for determination.

On 14th May, 2012, pursuant to an order of this court the Plaintiff filed an amended writ of summons and statement of claim, claiming the following reliefs:

1. A declaration that the purported termination of the employment of the Plaintiff per a letter dated 10th day of November, 2008 is unlawful.
2. Reinstatement of the Plaintiff to her former employment with all the benefits and promotions due from the date of purported termination of her appointment. Or
3. In the alternative the payment to the Plaintiff an amount of GH¢200,000.00 being compensation for unlawful termination of her appointment.
4. Costs.

Plaintiff’s case as stated in her pleadings is that until 10th November, 2008 she was an employee of the Defendant having been employed as Travel Assistant on the 17th day of October, 2008. On or about the said day the Plaintiff was posted to Takoradi along with a colleague and was accommodated at the Hillerest Hotel. Prior to their departure to Takoradi, the Plaintiff had undergone a surgical operation on 2nd September, 2008 and discharged on 5th September, 2008 after she had already passed the pre-employment medical examination. Plaintiff, therefore, pleaded that she be made to remain in Accra for some time to enable her attend medical reviews. She was assured that in view of her special circumstances, her posting would be reviewed so she should check in three days time for the response to her petition.

When plaintiff reported as requested, she was informed that staff were rotated every six months so she should accept the posting to Takoradi for she could easily be brought back to Accra. Based on this assurance she accepted the posting and reported at Takoradi as originally scheduled.

According to the Plaintiff as soon as she got to Takoradi, she started bleeding from the wounds of the operation she had undergone. She says the situation got worse when on the following day she was compelled to stand on her feet from 9.00 am to 2.00 pm in the office to work because Defendant had not yet provided sufficient office furniture and equipment. She was rushed to Ghana Ports and Harbours Authority (GPHA) Hospital at Takoradi where she was detained for two (2) hours and after treatment she was advised to be taken back to the hotel to rest due to her excessive bleeding. She was also given one week sick leave from that day. She was referred back to the Doctor who performed the operation on her in Accra by the GPHA Hospital.

The Plaintiff avers that the Country Representative of the Defendant Company, Mr. Kofi Esson who was then in Takoradi instructed her to report at Defendant’s Headquarters in Accra on 27th October, 2008 which she did. When she reported she was referred to one William who asked her to wait as he wanted to contact one Rob, the Administrative Manager. After waiting for some time, William told her that he had not been able to speak to the Administrative Manager so she should go home and expect his call. Later the Plaintiff was called by one Linda and asked to go for another medical examination at WARA which Plaintiff obliged.

According to the Plaintiff after some discussions with Linda she was made to undergo another medical examination at Defendant’s clinic. The report from Defendant’s clinic declared Plaintiff medically fit for her job as a Travel Assistant.

On the expiration of her sick leave Plaintiff sought to resume duty at Takoradi but was asked by the Defendant to wait till she met the Administrative Manager. On 9th November, she met with the Administrative Manager. After discussions with her on the medical report, she was asked to see the doctor, who operated her for another report on 11th November, 2008 and submit the report to him on 12th November, 2008.

On 10th November, 2008 before she could see her doctor, the Plaintiff was invited to the Headquarters and a letter purporting to terminate her appointment on grounds of absence from duty and inability to perform her duties since 2nd October, 2008 was handed over to her.

According to the Plaintiff she was never given the opportunity to defend herself contrary to the audi alteram partem rule of natural justice as the issue of her inability to perform her duties never came up in any of her discussions with Defendant. This was against her fundamental human rights.

The Plaintiff contends that based on the assurance of a stable employment by the Defendant she had to resign from her previous occupation in order to join Defendant Company. By the termination the Plaintiff has been subjected to enormous inconvenience, embarrassment and distress. Plaintiff is, therefore, entitled to the reliefs endorsed on her writ of summons.

Defendant’s case on the other hand as stated in its amended statement of defence is that the Plaintiff was employed by the Defendant on 1st October, 2008 and not 17th October, 2008 as alleged by the Plaintiff. It avers that the Plaintiff underwent a pre-employment medical examination on 13th August, 2008 which did not reveal any condition that could prevent her from starting work. She was declared fit to work by the medical officer who examined her. Based on the medical report, the Defendant furnished the Plaintiff with a contract of employment on 2nd September, 2008 which was to be executed by the Plaintiff within a week and which indicated that the Plaintiff was to commence work at Takoradi on 1st October, 2008. However, the Plaintiff chose to execute the contract of employment on 7th October, 2008. It is, therefore, the belief of the Defendant that the Plaintiff had always known her duty post to be Takoradi from the commencement of her appointment when she was furnished with the contract of employment.

The Defendant goes on to aver that instead of commencing work at her duty station in Takoradi on October, 1 2008, Plaintiff rather reported on October 20, 2008 without assigning any reason for the delay. The Defendant discovered later that Plaintiff had for reasons not disclosed at the pre-employment medical examination, proceeded to undergo surgery without notice to the Defendant. The Defendant contends that it was this surgery that prevented Plaintiff from commencing work on 1st October, 2008.

The Defendant avers that it never gave assurance to the Plaintiff that her posting would be reviewed and that she could be brought back to Accra. It says Plaintiff assumed duty on 20th October, 2008 instead of 1st October, 2008 on her own volition and not based on any assurances from Defendant. Notwithstanding, the late execution of the contract and Plaintiff’s delay in assuming duty, Defendant tolerated Plaintiff and offered her every opportunity to work.

Upon Plaintiff’s return to Accra, it made Plaintiff undergo another medical examination on 30th October, 2008 to ascertain her fitness to work due to her reluctance to resume duty at her Takoradi post. According to the Defendant although the report declared Plaintiff fit to work, Plaintiff was still reluctant to resume her post.

The Defendant contends that a meeting was held with Plaintiff concerning her inability/reluctance to resume her duty post at Takoradi on the 7th November, 2008 based on which her appointment was terminated on 10th November, 2008 during the probationary period. It says in terminating the appointment of the Plaintiff, it held meetings with her and gave her enough opportunity to defend herself. The audi alteram partem rule of natural justice was, therefore, complied with. Plaintiff’s appointment was duly terminated during the probation period in accordance with the terms of the contract of employment and the relevant laws governing employment matters in the country. The Plaintiff is, therefore, not entitled to her claim.

The Plaintiff gave evidence in court in support of her case and her testimony was essentially a repetition of her averments in her pleadings. In the case of the Defendant, in spite of series of adjournment granted it to produce its witness to testify in support of its case in court, it failed to produce the witness. The court as a result closed its case on 17th December. 2012. So having reviewed the evidence before the court, the court will go on to evaluate the evidence vis-à-vis the issues this court has been called upon to determine. The issues will be taken seriatim. The first issue is whether or not Plaintiff’s appointment took effect from 17th October, 2008. This issue relates to issue (1) of the additional issue which is whether or not the Plaintiff knew, at all times that her duty post was at Takoradi. The two issues will, therefore, be taken together.

In her amended statement of claim filed on 14th May, 2012, the Plaintiff averred in paragraph 1 that the Plaintiff was until 10th November, 2008 an employee of the Defendant having been employed as Travel Assistant on the 17th October, 2008. She further stated in paragraph 3 that on or about 17th October, 2008 she was posted to Takoradi along with a colleague and was accommodated at the Hillerest Hotel. She further stated that based on the assurance given to her that her posting would be reviewed in the light of her special circumstances she accepted the posting and reported at Takoradi.

In her evidence-in-chief given on 26th March, 2012 the Plaintiff told the court that she got employment with the Defendant somewhere in October, 2008. She went on to say that she was called by one Linda on 17th October, 2008 to get ready and travel to Takoradi on 20th October, 2008. She said Linda asked her to come to the office at 9 am to travel with a colleague called Sammy. So she got to the office around 8.30 am and they left Accra around 2 pm and got to Takoradi around 6.30 pm.

During cross-examination the Plaintiff told the court that she got to know that her duty post was Takoradi when she picked up her appointment letter. So from the evidence of Plaintiff as stated above it was on 17th October, that she was officially assigned her duty at Takoradi and she assumed duty there on 20th October, 2008. She also got to know that her duty post was at Takoradi.

The Defendant on the other hand stated in paragraph 2 of its amended statement of defence that the Plaintiff was rather employed on 1st October, 2008 and not 17th October, 2008 as alleged by the Plaintiff. It further stated in paragraph 6 of the amended statement of defence that it furnished the Plaintiff with a contract of employment on 2nd September, 2008 which was to be executed by the Plaintiff within a week and which indicated that the Plaintiff was to commence work at Takoradi on 1st October, 2008. The Plaintiff, however, chose to execute the contract of employment on 7th October, 2008. It further stated in paragraph 8 of the amended statement of defence that the Plaintiff had always known her duty post to be Takoradi from the commencement of her appointment when she was furnished with the contract of employment. It went on to state in paragraph 9 that instead of commencing work at her duty station in Takoradi on 1st October, 2008, Plaintiff rather reported on 20th October, 2008 without assigning any reason for the delay.

Defendant further contended at paragraph 13 of the amended statement of defence that the Plaintiff assumed duty on the 20th October, 2008 instead of 1st October, 2008 on her own volition and not based on any assurances from the Defendant. So from the amended statement of defence as presented by the Defendant the Plaintiff was supposed to assume duty at Takoradi on 1st October, 2008 and not 17th October, as alleged by the Plaintiff.

The evidence before the court, therefore, shows that whilst Plaintiff is saying that she was offered the appointment on 17th October, 2008 and assumed duty on 20th October, 2008 at Takoradi, the Defendant is saying that, the Plaintiff was offered the job on 1st October, 2008 but chose to assume duty on 20th October, at Takoradi on her own volition. This court must, therefore, find out on a balance of probabilities which of the evidence is more preferable. See Section 12 of the Evidence Act which states that burden of proof in civil cases is by preponderance of the probabilities. It states in Section 12 (1) as follows:

“Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities.”

Section 12 (2) defines “preponderance of the probabilities” as that degree of certainty of belief in the mind of the tribunal of fact or the Court by which it is convinced that the existence of a fact is more probable than its non-existence. See also the case of Adwubeng v. Domfeh [1997-98] 1 GLR 282 in which the Supreme Court held at page 295 that Sections 11(4) and 12 of NRCD 323 clearly provide that the standard of proof in all civil actions is proof by a preponderance of probabilities. No exceptions are made.

In the current case the Plaintiff tendered in evidence her employment contract with the Defendant as Exhibit A. The exhibit clearly states that Plaintiff’s duty post would be at Takoradi. It states at Section 2.1 that Plaintiff would be based at the Company’s Offices in Takoradi, Ghana. Also Plaintiff’s appointment letter which was tendered in evidence by the Defendant Through The Plaintiff as Exhibit 1 states that Plaintiff’s duty post would be at Takoradi’ There is, therefore, no doubt that Plaintiff’s duty post was at Takoradi.

Exhibit A goes on to state at 2.1A that the commencement date of Plaintiff’s contract is 1st October, 2008. The said contract was, however, executed by the Plaintiff on 7th October, 2008. Exhibit 1 also shows that the offer of the appointment to the Plaintiff was accepted by her on 7th October, 2008. The evidence, therefore, shows that even though by Exhibit A, the contract of employment, her contract was supposed to commence on 1st October, 2008 she did not accept the contract on that day. Rather as per Exhibit 1 she accepted it on 7th October, 2008.

The evidence before the court as presented by the Plaintiff in court shows that it was on 17th October, 2008 that one Linda, called her to get ready and travel on 20th October, 2008 to Takoradi with a colleague called Sammy. This implies that the Plaintiff was offered the appointment which was supposed to commence on 1st October, 2008. She, however, accepted without objection from the Defendant on 7th October, 2008. The evidence goes on to show that even though she accepted the offer on 7th October, 2008, it was 17th October, 2008 that she was called to get ready to travel to Takoradi to assume duty. It is pertinent to note that after Plaintiff’s evidence-in-chief she was cross-examined by counsel for the Defendant, but he never challenged Plaintiff on her evidence that she was called by Linda on 17th October, 2008 to get ready to travel to Takoradi on 20th October, 2008.

Since the Plaintiff had made the assertion that the effective date of her appointment was 17th October, 2008, the day Linda invited her and told her to get ready to travel to Takoradi on 20th October, 2008, if in the opinion of the Defendant the assertion was not true then the Plaintiff should have been challenged on it. See the case of Fori v. Ayirebi [1966] GLR 627 in which it was held by the Supreme Court that if a party has given evidence of a material fact and he is not cross-examined upon that, he need not call further evidence of that fact.

Also in Wiafe v. Kom [1973] 1 GLR 240 it was held in holding 1 that:

“Where a witness testified on oath on certain vital matters and the opposing side was silent in cross-examination on those matters, he would be taken to have admitted those matters.”

This point was also supported by the Court of Appeal in the case of Quagraine v. Adams [1981] GLR 599. It was held in that case that where a party makes an averment and his opponent fails to cross-examine on it, the opponent will be deemed to have acknowledged, sub silentio that averment by the failure to cross-examine.

See also the case of In re Ashalley Botwe Lands; Adjetey Agbosu and Others v. Kottey and Others [2003-2004] SCGLR 420 in which the Supreme Court held that; the rule is that where an averment is made that is not challenged, the one making the averment need not lead evidence in proof of it. The same case goes on to state that, the rationale for this is simply that no one has an obligation to prove the obvious or what is not challenged.

In the instant case, the Defendant did not challenge the Plaintiff on the day she claims her appointment took effect. Since she was not challenged on that, she needs not call further evidence on that. It is also deemed that the defendant had acknowledged that averment to be true.

It is even observed that the Defendant never led evidence on oath in court in support of its averment that Plaintiff’s appointment took effect from 1st October, 2008. See the case of West African Enterprises Ltd. v. Western Hardwood Enterprise Ltd [1995-96] 1 GLR 155 at 167 in which the Court of Appeal held that where an averment made by the other party in his pleadings is denied by the other in his defence or reply, it is necessary for the one who made that averment to produce evidence in proof of it. See also the case of Zabrama v. Segbedzi [1991] 2 GLR 221 at 246 where Kpegah JA (as he then was) giving the lead judgment in that case said:

“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 or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of that burden.”

In the instant case counsel for the Defendant referred the court to relevant portions of Exhibit A in his address and goes on to submit that it is a well accepted norm of interpretation that words and phrases used in non-statutory documents are in the first instance be construed in their ordinary or plain meaning in context, to wit, that interpretation must at first instance be based on the text of the non-statutory document itself. So in the instant case, we have to confine the scope of interpretation to the contract of employment agreed by the Parties. Counsel for the Defendant referred the court to the case of BCM Ghana Limited v. Ashanti Goldfields Ltd [2005-2006] SCGLR 602 in which Sophia Adinyira JSC stated as follows:

“The cardinal presumption in the interpretation of a document is that the parties are presumed to have intended what they have in fact said or written. As Jessel MR said in Smith v. Lucas (1881) 18 Ch D 531 at 542: ‘... one must consider the meaning of words, and not what one may guess to be the intention of the parties.’...The question therefore is: what the parties said or written?”

Counsel, therefore, submitted that the parties herein had stated the date on which they intended the contract to commence which was 1st October, 2008 in clause 2.1A of Exhibit A. I perfectly agree with counsel that per Exhibit A, the parties intended that the contract should commence on 1st October, 2008. However, the evidence does not show that it actually commenced on 1st October, 2008. Exhibit 1 which was tendered in evidence by the Defendant gives the Plaintiff the opportunity to acknowledge her acceptance of the offer by signing it and it shows that she signed to accept the offer on 7th October, 2008. So is the Defendant saying that the Plaintiff’s appointment took effect on 1st October, 2008 but he accepted the offer on 7th October, 2008? It is obvious that, that is not possible. What would actually happen is that the Plaintiff would first accept the offer before taking up the appointment. So what is more probable is that the Plaintiff accepted the offer on 7th October, 2008 and took up the appointment on 17th October, 2008. It is, therefore, the opinion of the court that the existence of the fact that the Plaintiff’s appointment took effect from the 17th October, when he was called by Linda to assume duty at Takoradi is more probable than its non-existence. So the court agrees with the Plaintiff that her appointment with the Defendant took effect from 17th October, 2008 and not 1st October, 2008 as alleged by the Defendant the provision in 2.1A of Exhibit A notwithstanding.

The next issue for consideration is whether or not Defendant was informed of Plaintiff’s medical condition prior to her assumption of duty at Takoradi. This issue is related to additional issue (2) which is whether or not the Plaintiff hid vital information about her medical condition from the medical officer during her pre-employment medical examination. The two issues will as a result be taken together.

Plaintiff stated in paragraph 4 of her amended statement of claim that prior to their departure to Takoradi, she had undergone a surgical operation on 2nd September, 2008 and had been discharged on 5th September, 2008 after she had already passed the pre-employment medical examination. She further said in paragraph 5 of the amended statement of claim that as a result of the operation when the Defendant informed her of her being posted to Takoradi, she pleaded that she be made to remain in Accra for some time to enable her attend medical reviews.

In her evidence-in-chief, the Plaintiff told the court that on the day she was interviewed for the job, after the interview she was not feeling too well so she was rushed to the Lister Hospital. She went on to say that when she was given her contract of employment she realized she had been posted to Takoradi so she informed Linda that she had just had a surgery which was just about 11⁄2 weeks then so she asked her what she could do about it. Linda asked her to take the contract and that she would speak to the Administrative Manager and get back to her. She, therefore, went home with the contract but heard nothing from Linda. So three days after the Plaintiff called Linda and she informed Plaintiff that she would call her back. Two days after that Linda called Plaintiff and informed her that the only vacancy left was Takoradi so she should take up the appointment and that for every six months they rotate people. She could, therefore, be changed after six months. The Plaintiff, therefore, decided to take up the appointment. Whilst the Plaintiff was leaving the office, Linda asked her to go for a letter from the hospital where she did the surgery. She, therefore, went for the letter and sent it to Linda. She tendered the said letter in evidence as Exhibit B.

During cross-examination Plaintiff confirmed that she underwent an operation at Lister Hospital on 2nd September, 2008 and was discharged five days later. She went on to say that after she had submitted Exhibit B to the Defendant she was asked to see the Defendant’s own doctor for another examination which she did and she was declared fit to work at Takoradi after which she travelled to Takoradi where she fell ill. So from the evidence given by the Plaintiff as shown above, she made the Defendant aware of her medical condition prior to her assumption of duty at Takoradi. He also did not hide vital information about her medical condition from the medical officer during her pre-employment medical examination.

Defendant states in its amended statement of defence in paragraph 4 that the Plaintiff underwent a pre-employment medical examination on 13th August, 2008. It goes on to state in paragraph 5 that the pre-employment medical examination did not reveal any condition that could prevent the Plaintiff from starting work and Plaintiff was accordingly declared fit to work by the medical officer who examined her. The Defendant further avers in paragraph 7 of the amended statement of defence that it had reason to believe that either Plaintiff hid vital information about her medical records from the medical officer during the medical examination of Plaintiff or had medical problems subsequent to the examination which she failed to disclose.

Defendant further states in paragraph 10 that it discovered later that Plaintiff had for reasons not disclosed at the pre-employment medical examination proceeded to undergo surgery without any notice to Defendant. It says it would contend at the trial that it was this surgery which prevented Plaintiff from commencing work on 1st October, 2008. From the averments of the Defendant on the health condition of the Plaintiff prior to taking up her appointment and travelling to Takoradi, even though the Plaintiff was declared fit for work during the pre-employment medical examination, the Defendant had cause to believe that either the Plaintiff hid vital information about her health condition from its medical officer during the examination or she had medical problems which she failed to disclose. In spite of this assertion the Defendant failed to lead evidence to prove in court whether truly the Plaintiff hid information about her health condition to its doctor. It also did not lead evidence to prove that it was because of the surgery that she underwent that prevented her from commencing work on 1st October, 2008.

Since it is the Defendant who is alleging that it had cause to believe that the Plaintiff hid information about her health condition from their medical doctor and also it was because of the surgery that she could not take up the appointment on 1st October, 2008, the onus is on it to lead sufficient evidence to prove those allegations. See Section 14 of the Evidence Act, 1975 (NRCD 323) which states as follows:

“Except as otherwise provided by law, unless it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence that party is asserting.”

See the case of Bank of West Africa Ltd v. Ackun (1963) 1 GLR 176 in which the Supreme Court held as follows:

“The onus of proof in civil cases depends upon the pleadings. The party who in his pleadings raises an issue essential to the success of his case assumes the burden of proof ...”

Also in Re Ashalley Botwe Lands; Adjetey Agbosu and Others v. Kotey and Others (Supra) the Supreme Court held as follows:

“Under the Evidence Decree 1973 (NRCD 323) the burden of producing evidence in any given case was not fixed but shifted from party to party at various stages of the trial depending on the issues asserted and/or denied”.

In the instant case since the Plaintiff has denied that she hid information about her health from the Defendant’s doctor during the pre-employment medical examination and also that it was because of the surgery that she could not take up the appointment on 1st October, 2008 the burden has now shifted to the Defendant to produce sufficient evidence to prove that the Plaintiff actually hid the information and also she could not take up the appointment on 1st October, 2008 because of the surgery she underwent. When the Plaintiff gave evidence on these issues she was not cross-examined on them by the Defendant. So the Plaintiff’s assertion that she notified the Defendant about her health conditions could not be disputed by the Defendant. Also the Defendant could not lead further evidence on the issues under review by inviting Linda and its medical officer who examined the Plaintiff to give evidence. See in Re Ashalley Botwe Lands; Adjetey Agbosu and Others v. Kotey and Others (Supra) .

It is also observed that the plaintiff’s evidence that she informed Linda about her health conditions when she was asked to report at Takoradi to assume duty was not denied by the Defendant. Also the medical report from Lister Hospital which was tendered in evidence by the Plaintiff as Exhibit B was allowed in evidence without objection. The Plaintiff was also not cross-examined on it. Exhibit B is very clear that the Plaintiff underwent the surgery on 2nd September, 2008 and was discharged on 5th September. 2008.

It is, therefore, the opinion of this court that the existence of fact that the Defendant was informed of Plaintiff’s medical condition prior to her assumption of duty at Takoradi and also that the Plaintiff did not hide vital information about her medical condition from the medical officer during her pre-employment medical examination is more probable than its non-existence. So the court agrees with the Plaintiff on those issues.

The next issue for consideration is whether or not Plaintiff’s presence in Accra from 22nd October, 2008 to 10th November, 2008 was with the permission and knowledge of the Defendant. The evidence before the court shows that the Plaintiff and one Sammy travelled to Takoradi on 20th October, 2008 and they checked into a hotel. At Takoradi when the Plaintiff went to bath she observed that she was bleeding from where she was operated upon. It was too late so she took her medicine and did nothing about the bleeding. On the following morning she went to the office. At the office there was no furniture so she stood up on the veranda from 8.30 am to about 2 pm and became very uneasy. She realized that she was still bleeding so she went downstairs to look for the washroom. In the process she fell down so she sat on the stairs for some time. A certain white man who was passing saw her and asked her what was happening. She told him she was feeling uneasy. She called in the West African Rescue team who brought in an ambulance. They gave her first aid after which they took her to the Ghana Ports and Harbours Authority hospital where he was detained for some time. She was given one week excuse duty. She was given a report to that effect which she tendered in evidence as Exhibit C.

The following day whilst she was still at the hotel the Country Representative of the Defendant Company called Kofi Esson went to her and told her that they were trying to get her a ticket and if they did not get it then she would have to go to Accra with the company’s vehicle. The Country Representative went on to ask the Plaintiff to see him at the Headquarters in Accra after she had seen her doctor. When she went to Accra she went to see her doctor who also said Plaintiff needed some rest. From the hospital the Plaintiff went to see the Country Representative to give him feedback from the doctor. After listening to her, the Country Representative referred Plaintiff to one William.

William told the Plaintiff that he had to speak to the Administrative Manager but he was on leave and was also outside the country. He as a result asked Plaintiff to go home for he would call her in the evening of that day. Around 6.30 pm William had not called her so she called him. William told her that he had spoken to Linda who had asked him to leave the case with her and that she would call the Plaintiff.

After the Plaintiff had been asked to go for a second medical examination in the Defendant’s hospital and a report had been issued on the second medical examination, a meeting was arranged between the Plaintiff on the one hand and the Administrative Manager, Linda and the Human Resource Manger on the other hand. At the meeting they told the Plaintiff that the report said she was fit to work so they wanted to find out what she had to say. She told them that her doctor had asked her to see him on the following Monday. The Administrative Manager, therefore, asked the Plaintiff to go and see her Doctor on Monday and come back to see them on Wednesday. On Monday morning on her way to the hospital she had a call from the Secretary that she had a letter for the Plaintiff. The Plaintiff, therefore, went for the letter and when she opened it, it stated that her appointment had been terminated with immediate effect. She tendered in evidence the termination letter as Exhibit D

From the evidence, the Plaintiff was in Accra from 22nd October, 2008 to 10th November, 2008 when her appointment was terminated. The Plaintiff claims that the hospital gave her one week sick leave from 22nd October, 2008 to 28th October, 2008. Also it was the said William who asked her to wait till he was able to talk to the Administrative Manager. Whilst waiting Linda called her on 29th October, 2008 and asked her to go for another medical examination at WARA which she obliged. When her sick leave expired, the Plaintiff sought to resume duty at Takoradi but was asked to wait till she met with the Administrative Manager.

The Defendant, however, denies in the amended statement of defence that the Plaintiff was given one week sick leave. The Defendant confirmed that the Plaintiff was made to undergo another medical examination on 30th October, 2008 to ascertain her fitness to work due to her reluctance to resume duty at Takoradi. It said it would contend that although the report declared Plaintiff fit to work, she was still reluctant to resume her post. It goes on to state that a meeting was held with Plaintiff concerning her inability/reluctance to resume her duty post at Takoradi on 7th November, 2008 based on which her appointment was terminated on 10th November, 2008. So from the statement of defence as stated above the Defendant claims the Plaintiff was given no sick leave and also she was reluctant to go back to Takoradi to resume work in spite of the fact that she was declared fit to work.

From the evidence before the court, the fact that Plaintiff had undergo surgery prior to her travelling to Takoradi to assume duty is not in doubt. Also the fact that she travelled to Takoradi on 20th October, 2008 is not in doubt. It is also not in doubt that when she got to Takoradi she fell ill. The evidence goes on to show that she was taken to the Ghana Ports and Harbours Authority hospital where she was advised to stay away from work for one week. This is confirmed by Exhibit C. The said exhibit was issued on 22nd October, 2008 which implies she had up to 29th October 2008 to rest without doing active work.

It is pertinent to note that in her evidence-in-chief the Plaintiff confirmed that she had sick leave and that after the sick leave she had wanted to resume work at Takoradi but she was asked to wait until she had met the Administrative Manager who was then outside the country. Also she was asked to go and see her personal doctor again. So it was while she was getting ready to go and see her doctor that her appointment was terminated. The Defendant cross examined the Plaintiff but it never challenged her on the evidence on the issue at stake. So on the authority of Quagraine v. Adams (Supra), the Defendant is deemed to have admitted that truly the Plaintiff was away from Takoradi firstly, because she was on one week sick leave. Secondly, it was the Defendant that asked her to hold on till she had met the Administrative Manager who was outside the country. The court, therefore, agrees with the Plaintiff that her presence in Accra from 22nd October, 2008 to 10th November, 2008 was with the permission and knowledge of the Defendant.

The next two issues of the Application for directions will be taken together since they are related. These are issues (d) and (e). Issue (d) is whether by proper interpretation of the provisions of the contract of employment particularly sections 2.2, 2.3 and 11; Defendant was entitled to terminate Plaintiff’s appointment allegedly for absence and inability to perform on her duties as Travel Assistant. And issue (e) is whether the termination of Plaintiff’s employment was unlawful.

The provisions of the contract of employment referred to above state as follows:

“2.2 You will be on probation for a period of three (3) months during which your performance will be continuously reviewed. If at any time during the probationary period your performance is considered not to be satisfactory, the contract will be terminated.

2.3 During the probationary period, this appointment may be terminated by either party without any notice.

11.1 In event that you absent yourself from work for a continuous period of ten (10) working days without notifying the Company or without the Company’s consent, you shall be deemed to have vacated post or abandoned employment without notice.”

Plaintiff tendered in evidence the letter terminating her employment as Exhibit D. For the avoidance of doubt I will reproduce the letter in this judgment. The letter which was dated 10th November, 2008 was addressed to the Plaintiff, Ms Paulina Naana Efua Effisah and it was signed by the HR Manager Jane Young for and on behalf of Tullow Oil Ghana Limited, the Defendant. The letter states as follows:

“Dear Paulina,

Further to our meeting on Friday, 7th November, and our discussion regarding your absence from work since 2nd October, 2008, I write to advise you of our decision which has now been reached as result of full and careful consideration of the situation.

As a result of your absence and inability to perform your duties as Travel Assistant – Takoradi we have decided to terminate your employment with immediate effect. This is in accordance with clauses 2.2 and 2.3 of your Contract of Employment and within your three month probationary period.

Accordingly you are advised that you will no longer be required to report to work and your salary will be paid up to and including 30th November, 2008.

Whilst we very much regret this course of action we believe we have no alternative given the circumstances.”

From the contents of the letter as shown above, the Defendant is contending that Plaintiff’s appointment took effect from 1st October. Meanwhile, it has been established by this court that Plaintiff’s appointment took effect from 17th October, 2008 and not 1st October, 2008. If Plaintiff’s appointment took effect from 1st October, 2008 and she did not assume duty until 17th October, then why did the Defendant allow her to travel to Takoradi on 20th October, 2008? Having allowed Plaintiff to assume duty on 17th October, 2008 which was a Friday and having allowed her to travel to Takoradi on the following Monday which was 20th October, 2008 to assume duty, it is deemed that the Defendant had allowed Plaintiff to take the appointment on 17th October, 2008. So it cannot turn round to say she took up the appointment on 1st October, 2008 and refused to report for duty from 2nd October, 2008 to 17th October, 2008. Also when the Plaintiff gave evidence on this in court, she was not challenged on it so it is deemed that the Defendant has even acknowledged that the effective date of Plaintiff’s appointment was 17th October, 2008 and not 1st October, 2008.

Clause 11 (1) of the contract of employment is as a result not applicable to the current case since the condition precedent has not occurred for its application. This is because from the evidence before the court the Plaintiff had not absented herself from duty for continuous period of ten (10) working days without the Defendant’s consent.

The Defendant is also contending that the appointment of the Plaintiff was terminated because of her inability to perform her duties as a Travel Assistant. Meanwhile the evidence shows that the Plaintiff assumed duty at Takoradi on 20th October, 2008. She reported for work on the following day and whilst at work she fell ill on the very day. She was sent to the hospital and was given one week excuse duty. So how did the Defendant assess her performance in accordance with clause 2.2 of the contract of employment? Obviously, Plaintiff’s performance could not have been reviewed continuously by the Defendant in a day. The Defendant, therefore, has no basis to conclude that the Plaintiff could not perform her duties. More so it is clear from the evidence that the Plaintiff fell ill on the very day that she reported for duty so her performance could not have been reviewed on that day.

Reading clauses 2.2 and 2.3 of Exhibit A together, it is observed that the Defendant cannot just decide to terminate the appointment of the Plaintiff at any time it decides without notice just because she is on probation. That would mean any employee in the Defendant’s employment on probation would not have protection under the contract of employment so her continuous stay in Defendant’s employment would depend on the whims and caprice of the Defendant, her performance notwithstanding. The provisions show that there must be continuous review of her performance and where Defendant is not satisfied with her performance then her appointment could be terminated at any time without notice. It is worth noting that a probationary period in an employment is just to ascertain if the probationer is likely to prove efficient. If he is found to be efficient within the period he remains. If on the other hand he is found not to be efficient within that period his appointment may be terminated.

In the instant case the Defendant did not have the opportunity to review the performance of the Plaintiff for it to find out whether or not she was efficient since she only went to work for one day but fell ill. The Defendant could, therefore, not rely on clauses 2.2 and 2.3 of the contract of employment to terminate the appointment of the Plaintiff.

See the case of Societe Generale De Compensation v. Moshie Ackerman [1972] 1 GLR 413 in which the employment of the plaintiff was terminated during the period of probation.

In the said case the parties had agreed in their contract of employment that either party could terminate the contract during a 4 months probation period without either notice or compensation subject to the express limited right of the defendants to terminate the contract for either “a professional or disciplinary reason”. However, before the expiration of the probation period the defendants summarily terminated the Plaintiff’s contract on completely different grounds. In an action by the plaintiff for damages for wrongful dismissal, the trial judge held that the plaintiff had been wrongfully dismissed. He accordingly awarded him damages.

On appeal by the defendants it was held by the Court of Appeal in dismissing the appeal that the plaintiff was dismissed during the probationary period when the contract of service had not become fully effective. In his judgment Anin JSC held at page 430 as follows:

“It is unnecessary to decide, for the purpose of this case, the rights of a probationer generally, since each must depend on its own facts; and since the question of the rights of the plaintiff qua probationer must accordingly be determined from a proper construction of the relevant clauses of both written agreements herein. In this case, the defendants have been rightly adjudged to be in breach of contract for wrongful termination of the probation and the contract as a whole. I would only content myself with stating, purely obiter, that in my opinion, a probationer, generally speaking, is not without a vestige of a legal right during the period of his probation. He has a duty to undergo the prescribed test, and a correlative right to receive any contractual remuneration or benefits or both accruing therefrom or incidental thereto. Beyond that, he may reasonably expect to be confirmed in his post upon the satisfactory completion of his probation or trial period”.

In the current case as has been stated elsewhere in this judgment, the Defendant had no cause to terminate the appointment of the Plaintiff at the time it did since she had not breached any of the provisions in the contract of employment. More so the Defendant should have considered that the Plaintiff as at that time had a right that should have been protected. It should have considered that she had to resign from her previous employment on the assurance of the Defendant that she was going to have a stable employment. Also there is no evidence as to when the performance of the Plaintiff was found to be unsatisfactory during the probationary period. It could not be her sick leave period or the one day attendance of work when she was taken ill. The Plaintiff was neither absent nor unable to perform her duties. It was, therefore wrong for the Defendant to terminate Plaintiff’s appointment on grounds that she absented herself from 2nd October, 2008 and also that she was unable to perform her duties.

On the issue of unlawful termination of employment, Section 63 (1) of the Labour Act, 2003 (Act 651) provides that the employment of a worker shall not be unfairly terminated by the worker’s employer. Section 63 (2) (g) of the Act provides that a worker’s employment is terminated unfairly if the only reason for the termination is that the worker is temporary ill or injured and this is certified by a recognized medical practitioner.

In the current case the evidence is very clear that the Plaintiff reported for duty at Takoradi on 20th October, 2008. On the following day she went to the office to work whilst working, she fell ill so she was rushed to the hospital and the doctor after examining her gave her one week excuse duty which ended on 29th October, 2008. On 27th October, 2008 the Plaintiff went to the Headquarters of the Defendant where she met the Country Representative Kofi Esson who handed her over to one William who in turn instructed her to wait for the Administrative Manager, one Rob who was then outside the country. William, therefore, asked the Plaintiff to go home and wait for his call. He did not call so Plaintiff on her own called William but he told her that Linda had taken over the issue from him so she would call the Plaintiff.

On 29th October, 2008, Linda told the Plaintiff to go for another medical examination at WARA. It is pertinent to note that the said medical facility is in Accra and not Takoradi so obviously the Plaintiff could not go for the said medical examination whilst in Takoradi. When after the medical examination she decided to report at her station in Takoradi she was asked to wait for a discussion before proceeding to Takoradi which she obliged. Subsequently, Linda asked the Plaintiff to come for a discussion on 9th November, 2008. It is interesting to note that whilst waiting for the said discussion the Plaintiff was again made to undergo another medical examination at Defendant’s clinic which she did and was declared fit to work. When finally the said meeting took place on 9th November, 2008 to discuss the report that had declared her fit to work, she was still instructed to go to her doctor at Lister Hospital for another medical examination.

As has been stated elsewhere in this judgment these averments of the Plaintiff were not disputed by the Defendant during cross-examination which amounts to admission of those averments by the Defendant. It is, therefore, very clear from the evidence that the absence of Plaintiff from work between 29th October, 2008 and 10th November, 2008 was due to instructions of the Defendant for the Plaintiff to wait for a discussion with the Administrative Manager who was then outside the country and also for the fact that she had to undertake series of medical examinations in Accra. Her absence during the period was, therefore, with the knowledge and consent of the Defendant.

From the evidence before the court the Defendant had no right to terminate the appointment of the Plaintiff at the time it did since she had done nothing to call for the termination of her appointment. The termination of Plaintiff’s appointment was, therefore, unlawful.

The last issue for determination is whether or not the Defendant assured the Plaintiff that staff of the Defendant were rotated every six months. In paragraphs 4 to 8 of the amended statement of claim the plaintiff avers that prior to their departure to Takoradi, she had undergone a surgical operation on 2nd September, 2008 and discharged on the 5th September, 2008 after she had already passed the pre-employment medical examination. So when the Defendant informed her that she had been posted to Takoradi she pleaded that she be made to remain in Accra for some time to enable her attend medical reviews. Plaintiff says that the Defendant assured her that her posting would be reviewed in the light of her special circumstances, and was requested to check in three day’s time for response. When Plaintiff reported as requested, she was informed that as staff were rotated every six months, she should accept the posting to Takoradi as she could easily be brought back to Accra. Based on this assurance Plaintiff accepted the posting to Takoradi.

The Defendant on the other hand stated in its statement of defence that it never assured the Plaintiff that her posting would be reviewed and that she could be brought back to Accra. It further stated that it could not have assured Plaintiff that her posting would be reviewed because her services were primarily and urgently required at Takoradi, for which purpose she was engaged.

At the trial the Plaintiff repeated her averments in the amended statement of claim. She said Linda told her that the only vacancy available was Takoradi so she should take up the appointment for every six months they rotate staff so she could be changed. The Plaintiff went on to say that the Defendant asked her to bring a letter to that effect which she did. The said letter was tended in evidence as Exhibit B. She, therefore, accepted the appointment and travelled to Takoradi.

During cross-examination Defendant disputed that Linda assured Plaintiff that she would be rotated after six months but the Plaintiff insisted that she was given that assurance by Linda and that was the reason why she asked her to go for Exhibit B. Defendant could, however, not lead further evidence on it to prove that no such assurance was given. Since Linda was available if truly no such assurance was given by her it could have invited her to testify in court. Since Defendant led no evidence on oath on the issue it makes Plaintiff’s evidence on the issue more probable. See Wiafe v. Kom (Supra) I, therefore, agree with the Plaintiff that she was given assurance by the Defendant that its staff were rotated every six months so the Plaintiff could be rotated.

In view of the foregoing is the Plaintiff entitled to the reliefs endorsed on her amended writ of summons?

The first relief is a declaration that the purported termination of the employment of the Plaintiff per its letter dated the 10th day of November, 2008 was unlawful. This court has already established from the evidence before the court that the termination of Plaintiff employment was unlawful and I so hold.

The next relief is reinstatement of Plaintiff to her former employment with all the benefits and promotions due from the date of purported termination of her appointment or in the alternative the payment to the Plaintiff of GH¢200,000.00 being compensation for unlawful termination of her appointment.

As has already been stated in this judgment, the court has declared that the termination of Plaintiff’s appointment by the Defendant on 10th November, 2008 was unlawful. However, the Defendant being a Public Limited Liability Company this court cannot compel it to work with an employee it does not want to work with. In view of that this court cannot order the Defendant to reinstate the Plaintiff to her former employment as requested by the Plaintiff in relief (b) of the amended writ. In the alternative, the Plaintiff has requested the court to order the Defendant to pay compensation of GH¢200,000.00 to the Plaintiff in relief (c). So the question is whether the Plaintiff is entitled to be paid that quantum of compensation?

Having found that the termination of Plaintiff’s appointment on 10th November, 2008 was unlawful, it follows that she ought to be awarded compensation as she would be entitled by law. The principle on this is stated in the case of Ridge v. Baldwin (1962) A.C. 40 at 65 as follows:

“The law regarding master and servant is not in doubt. There cannot be specific performance of a contract of service, and the master can terminate the contract with his servant at any time and for any reason or for none. But if he does so in a manner not warranted by the contract he must pay damages for breach of contract. So the question in a pure case of master and servant does not at all depend on whether the master has heard the servant in his own defence. It depends on whether the facts emerging at the trial prove breach of contract”

In the current case it has already been established by this court that the termination of the appointment of the Plaintiff by the Defendant was unlawful. So by the decision in Ridge v, Baldwin (Supra) the Plaintiff is entitled to be paid compensation. The question then is what quantum of compensation is appropriate to be paid to the Plaintiff? In deciding on the appropriate compensation to be paid to the Plaintiff, the court will consider compensation or damages paid in some decided cases.

In the case of GNTC and Anor. v. Baiden (1991) 1 GLR 567, the Supreme Court held that it would be unrealistic to pay the Plaintiff salary as though up to the date of the judgment of the High Court he was rendering services to the defendants. He was, therefore, awarded two years salary for wrongful dismissal. The Court also held that since the dismissal was a nullity and not merely wrongful, it was proper that the plaintiff be paid in addition all allowances he would have received during the period but excluding the salaries of servants of the corporation such as a driver or watchman, assigned to render him personal services. He was also entitled to gratuity and other retiring benefits as though he had retired from the service of the corporation at the end of the period.

There is also the case of Ankorful v. State Fishing Corporation (1991) 2 GLR 348 in which Osei Hwere J. A. (as he then was) held at holding 2 as follows:

“On the authorities where a servant had been wrongfully dismissed from his contract of employment, damages were to be measured by the amount of salary which the servant had been prevented from earning by reason of the wrongful dismissal. The Plaintiff was, therefore, entitled to:

i. all his salaries calculated from the date of his interdiction to the date of judgment,

ii. payment of three months’ salary in lieu of proper notice and

iii. all his end of service awards calculated from the date of his interdiction up to the date of judgment.

The calculation of his entitlement should be reckoned on the substantive post he held at his dismissal. He was also entitled to damages for prospective loss of promotion and loss of employment. He had been kept out of his employment for over ten years. If he had stayed in his job, he would have earned his promotion.”

Ampiah J (as he then was) also held in the case of Turkson v. Mankoadze Fisheries Ltd. (1991) 2 GLR 430 at holding 2 as follows:

“The parties having provided in Article 19 (4) of the Collective Agreement that when an employee was found to have been wrongfully dismissed he should be reinstated and his full pay restored together with any arrears, the Defendant would be ordered to do so accordingly. But should the Defendant be unable to reinstate the Plaintiff, it would be ordered to pay to the Plaintiff all his entitlements from the date of the wrongful dismissal to the date of judgment.”

Also in assessing damages for wrongful dismissal, the Court must have regard to all the circumstances of the case considered as fair and reasonable. It must consider the general unemployment problem in the country and all the circumstances of the case and also the fact that the award of damages in these matters has ranged between one year and two years. See Kobi v. Ghana Manganese Co. Ltd. (2007-2008) SCGLR 771.

So from the authorities referred to in this judgment, since the termination of Plaintiff’s appointment has been held to be unlawful and considering the circumstances surrounding the termination of her appointment by the Defendant, even though she is entitled to be paid compensation, the court cannot award the quantum of compensation demanded by her since is far on the higher side. So considering compensation paid in similar cases and the fact that the evidence shows that the Plaintiff has been able to mitigate her loss by securing another employment at Ocean Rig, Ghana, I consider compensation of 12 months’ salary to the Plaintiff as appropriate.

In conclusion I enter judgment for the Plaintiff as follows:

It is hereby declared that the termination of the appointment of the Plaintiff by the Defendant per a letter dated 10th November, 2008 was unlawful.

The Defendant is hereby ordered to pay to the Plaintiff 12th months of Plaintiff’s salary as compensation for unlawful termination of her appointment by the Defendant.

The Defendant is ordered to pay costs of GH¢3,000.00 to the Plaintiff.

SGD

KWABENA ASUMAN-ADU J

JUSTICE OF THE HIGH COURT



COUNSEL

MR. ROBERT DASSAH FOR THE PLAINTIFF,

MR. MICHAEL GYAN NYARKO WITH MISS AKOSUA BOATENG FOR THE DEFENDANT