KOFI SENKYIRE V. ABOSSO GOLDFIELDS LTD

JUDGMENT

ANINAKWA, J.S.C.

This is an appeal from the unanimous judgment of the Court of Appeal dated the 25th July 2002 reversing the decision of the Circuit Court, Tarkwa.

The Appellant (hereinafter referred to as the Plaintiff) was in the employment of the Respondents (hereinafter referred to as the Defendants), on the terms contained in the letter of appointment dated the 26th September, 1996 which is in evidence as Exhibit 1. There is also in evidence as Exhibit 3 the Defendants’ full Conditions of Service titled, “ABOSSO GOLDFIELDS LTD CONDITIONS OF SERVICE”

These two Exhibits spell out in full details the Terms and Conditions of the Plaintiff’s employment, which took effect from the 1st October 1996.

The plaintiff was appointed to join the Defendants’ Staff as core Cutter/Sampler based at the Damang Gold mines. The Plaintiff rose to become the foreman of the Sampling Department of 14 men.

On 29th March, 1999 the plaintiff went to work with his group of 14men at 6:30pm and closed at 5:30am the next morning, i.e. on the 30th March 1999. On this fateful day the plaintiff, contrary to the normal practice at this department on closing days, despatched the workers under him to go by the bus and directed the driver to come later to pick him. As had been arranged the bus came to pick him alone to the security gate.

When the bus reached the Security gate and he got down, the security man on duty at the gate confronted him of his mission. He informed the security man that he was looking for a friend, one Kenneth Nukute. Not satisfied with the plaintiff’s said reply, the security man inspected a sample bag which Plaintiff was carrying. The security man found that the bag contained gold bearing rocks and immediately informed Plaintiff that he was under arrest for attempting to steal the sample. Plaintiff was made to write a statement. The Defendants, invoking the disciplinary rules in the Terms and Conditions of Plaintiff `s employment, imposed on him an instant suspension.

Two weeks later he was invited to appear before a three man Committee to explain his conduct in carrying the sample bag containing Gold bearing rocks to the Security gate.

The Committee was not satisfied with his explanation, and recommended that his appointment be terminated and the relevant entitlements paid to him. Accordingly the Defendants’ dismissal letter dated the 14th of April 1999, and in evidence as Exhibit 2, brought the plaintiff’s employment to an end by dismissal. The Plaintiff fired by his summary dismissal, on the 2nd August 1999, launched this action at the Circuit Court Tarkwa, Western Region, claiming against the Defendants the following reliefs: -

“(a) General damages for wrongful and unlawful dismissal.(b) Payment of salaries and entitlements of the Plaintiff, from 15th April 1999 plus interest thereon at the prevailing Bank rate till date of judgment”.

On 19th February 2001, the Circuit court sitting at Tarkwa Western Region gave judgment in favour of the Plaintiff for all the reliefs claimed by him, and awarded him costs of 300,000 cedis against the Defendants.

Dissatisfied with the judgment of the Circuit Court Tarkwa, the defendants on 2nd March, 2001, appealed to the Court of Appeal on various grounds, the main one being that the Honourable Circuit Court erred in holding the defendants liable for wrongful dismissal of the plaintiff, as no evidence was led by the plaintiff to support this assertion.

The judgment of the Circuit Court Tarkwa could not find favour with the learned Judges of the Court of Appeal, and by their unanimous decision of the 25th July 2002,allowed the Defendants’ appeal and set aside the judgment of the Circuit Court-Tarkwa dated 19th February, 2001.

The plaintiff has now, pursuant to leave granted him by the Court of Appeal, appealed to this court on three main grounds thus -

“(a) The judgment is against the weight of evidence adduced at the trial.(b) That the Court of Appeal failed to appreciate the high standard of proof required in the circumstances before the Appellant would be dismissed by his employers.(c) That the Court of Appeal failed to advert it’s mind that even the Committee of Inquiry set up by the Defendant/Appellants/Respondents recommended that the Plaintiff/Respondent/Appellant’s entitlements be paid to him.”

The Plaintiff’s case is that the Defendants accused him of attempting to steal gold bearing rocks. This according to him is a very serious offence which required high standard of proof. And as expressed by counsel for plaintiff in his statement of case to this Court “this is because the higher the offence the greater the proof required. In this case the circumstancial (sic) evidence as the trial judge found was not sufficient to render the appellant culpable”.

Defendants on the other hand think differently and contend that the termination of Plaintiffs employment was lawful and in accordance with all relevant procedures and that Plaintiff is not entitled to the reliefs sought or at all.

It is observed that the main issue stringing through the case is, whether or not plaintiff’s contract of employment was terminated in accordance with his conditions of service.

In embarking upon an examination of the said issue, it is well to bear in mind that in a claim for wrongful dismissal the plaintiff must prove the terms of his employment and then prove that his dismissal is in breach of those terms.

The terms under which Defendants employed Plaintiff cover provisions for termination of employment as well as dismissals.

Even though either of the two methods when adopted brings an end to the employee’s employment they carry their different procedures and effects.

In the letter appointing the plaintiff, i.e. Exhibit 1 dealing with the summary of the terms and conditions is a paragraph on termination thus: -

“Employment with the Company may be terminated by either party on the given of one (1) month’s notice in writing or by the company with payment in lieu.”

And under the full Conditions of Service Exhibit 3, is a provision in section 12 thereof for “DISCIPLINE”

These two methods of bringing an end to the contract of employment give the employer the option to put an end to the employee’s contract. The right to choose either one of them may lie with the employer, but he is not compelled to exercise it. An employer may choose to put an end to the contract by using the method that may have much less severe adverse consequences on the employee and at the same time relieve the employer of the necessity to establish anything. The employer may even choose to overlook the employee’s offence, misconduct or otherwise.

However, when the disciplinary procedure is resorted to, then the employer must, when challenged, establish that good grounds existed for his action.

The employer in our instant case having accused the Plaintiff of attempting to steal chose to use the Disciplinary procedure under section 12 of the Condition of Service. Defendants, therefore, assume the obligation of proving that the provisions under section 12 have been complied with.

Section 12 (1) states... “AGL shall in cases of gross misconduct reserve the right to summarily dismiss the employee after he has had the opportunity to reply to the complaints made against him.

12.7 An employee guilty of gross misconduct, may be suspended pending investigation

AGL will give an employee whose employment is liable to be terminated a full opportunity to defend himself against all charges against him.

12.6 Employees terminated for gross misconduct will receive no notice or pay in lieu of notice.”

The Defendants maintain that the employment of the plaintiff was properly terminated under paragraphs 12(1), 12(6), and 12(7), of Exhibit 3.

Arriving at it’s decision, the Circuit Court –Tarkwa made the following pertinent finding thus:-

“In the instant suit I find from Exhibit 4 that a meeting was held by the Committee of inquiry at which the Plaintiff narrated his role in the incident and answered various questions on his particular location when the Security personnel accosted him and the reasons for carrying the Samples materials on him. Apparently there was no witness called by either the plaintiff or the Committee to substantiate the allegation.Since the plaintiff challenged the authenticity of the Sample shown to him by P.W.I, then the Committee should have called the Security men to give evidence to prove that Sample material.”

By this finding, the Circuit Court Tarkwa is deemed to have admitted that the Defendants before putting an end to Plaintiff’s contract of employment complied with the obligations imposed on them under section 12 of the Conditions of Service.

The three men committee sat to go into the matter and to give the plaintiff a fair chance to explain himself. They did not sit in pannel as a criminal Court whose decision was to be beyond reasonable doubt, or to get a conviction.

At their sitting this is what the committee said, “The evidence available was found to be largely circumstantial and did not clearly establish without reasonable doubt, that Kofi had indeed stolen or attempted to steal the alleged gold concentrate. The onus was therefore to explore and possibly establish on the basis of the circumstantial evidence available, the motive for carrying the sample up to where he was accosted”.

The following were the views of the three men committee.

“That as the foreman of the crew it was appropriate that Kofi will send any grade control sample, which he considered peculiar to the Supervisor for further investigations as he claimed was his intention.

That he informed his colleague Kwakye Mensah about his intentions to carry the stuff to his supervisor and recorded it accordingly in his notebook was appropriate.”

Having commended him so positively, the Committee in the most virulent manner condemned and virtually convicted him. And in the end the committee made the following recommendations: -

“The Committee believes that it has exercised due diligence in regard to the disciplinary procedures of the Company pertaining to dismissal of an employee. Kofi Senkyire has been given ample opportunity, both orally and in written form to defend him against the charge of attempting to steal gold concentrate. The Committee was however not convinced that he defended himself satisfactorily.

The Complexity of the case and the absence of overwhelming evidence of Stealing leave the Committee’s our ability not to apply maximum Disciplinary action almost impossible (?). However, the Committee remains convinced that the intentions of the suspect in carrying the samples on him were malicious. This being the case the Committee recommends that the Company employ its right to terminate his employment by paying the relevant entitlements to the employee.”

The Circuit Court’s finding that the Committee rightly found that the available evidence was circumstantial and did not clearly establish without reasonable doubt that the plaintiff had indeed stolen or attempted to steal the alleged gold concentrate is a far cry from the Committee’s views and recommendations.

The Committee by its views and recommendations is telling the Defendants that the Plaintiff cannot be trusted.

Halsbury’s tells us in the 3rd Edition at pages 485/6 that at Common Law,

“misconduct, inconsistent with the due and faithful discharge by the servant of the duties for which he was engaged, is good cause for his dismissal, but there is no fixed rule of law defining the degree of misconduct which will justify dismissal”. Clouster and Co Ltd v. Corry [1906] AC. 122 PC at p129 per Lord James of HEREFORD.

If he is guilty of fraud or dishonesty in connexion with the business of his employer he may be dismissed.Brown v. Craft (1828), 6 C& P at 16.

Arkhurst v. Ghana Museum and Monuments Board (1971) 2 GLR at p7.

The overwhelming evidence is that

(a) Plaintiff was found with gold bearing rocks and he does not deny it.

(b) That he was found at a place that he should not have had the gold bearing rocks on him.

(c) That he never bothered to give any reason or attempted to give one why he had the gold on him at that time.

(d) That the person he went to look for had nothing to do with the handling of gold.

(e) The fact that he alleges that the gold bearing rocks shown to the Security is richer than what the Security took from him is neither here nor there and this does not help his case.

It is admitted by both sides that the first duty of a Sampler is to hand over any gold found to the Sampling supervisor immediately after closing.

The Court of Appeal per BADDOO JA (as he then was) states:

“To comprehend the logic behind the reasoning, it must be recognized that the Defendant Company is engaged in the production of gold.In the gold mining industry it is common knowledge that the raw materials are the gold bearing rocks from which the gold is extracted.Every “Galamsay” operator in the Country knows this. It stands to reason, therefore, to conclude that gold bearing rocks on the premises of the Defendant/Company, must be valuable and precious commodities which the company would do its utter-most to protect.Any handling of the gold bearing rocks or concentrate sample in any unusual manner as occurred in this case, is bound to create suspicion.And where the trustworthiness of the employee is in doubt as a result of this suspicion the employer would find it unsafe to keep the employer (sic) in his establishment. The employer would be justified to dispense with the services of the employee.See Arkhurst v. Ghana Museums and Monuments Board supra.The conduct of the Plaintiff created a doubt about his trustworthiness and his employers found it unsafe to keep him in the company. The law permits it.”

This Court is in total agreement with the said statement of the Learned Justices of the Court of Appeal and endorses same.

The opinion of this Court, therefore is that the Defendant/Company took the right procedure and complied with the Conditions of Service Exhibit 3, as admitted by the Plaintiff.

He was even offered his entitlements, which he himself refused to collect.

It is the considered opinion, of this Court, that the Plaintiff’s dismissal was not wrongful and this Appeal is hereby dismissed.

The judgment of the Court of Appeal is affirmed.

SGD

R.T. ANINAKWA

JUSTICE OF THE SUPREME COURT

SGD

G. K. ACQUAH

CHIEF JUSTICE

SGD

G. T. WOOD

JUSTICE OF THE SUPREME COURT

SGD

DR. S. TWUM

JUSTICE OF THE SUPREME COURT

SGD

PROF. T. M. OCRAN

JUSTICE OF THE SUPREME COURT

COUNSEL

MR. FRED AWUAH WITH MR. NTWO FIANKO FOR APPELLANT.