SETH ADJETEY MENSAH & ORS V. AFRICAN CONCRETE PRODUCTS

JUDGMENT

ASARE-BOTWE (MRS.), J.

INTRODUCTORY REMARKS

This matter was transferred to this court by order of the Honourable Chief Justice dated 13th November, 2015. In view of the fact that it had been previously heard by another judge, which proceedings had been recorded in long hand, and the fact that the judge was, as at the time of the transfer, unavailable to vet the proceedings even if they could be typewritten, it was agreed by the parties and the court that the matter be heard de novo for the sake of an expeditious trial. This matter was heard from day to day and the hearing completed in five days.

I must put on record my commendation of all the counsel in this matter for their hard work and diligence.

FACTS:

On the 20th of July, 2012, the Plaintiffs issued a writ of summons in the Registry of this Court, which was subsequently amended, claiming the following reliefs;

a. An order declaring that defendant’s termination of the plaintiff’s employment is unlawful.

b. An order of the court for payment by the defendant of accumulated salaries and other benefits due to the plaintiffs from November, 2009 to date of judgment.

c. Interest on the said payments.

d. Damages

e. Costs

f. Any other remedies as this Honourable Court may deem fit.

THE CASE OF THE PLAINTIFFS

The case of the Plaintiffs as set out in their pleadings is that;

• That they were employees of the Defendant Company, which is engaged in the production, marketing, sale and distribution of concrete products in Ghana.

• That they were in the employment of the Defendant Company for periods ranging from three (3) to thirty-one (31) years.

• The plaintiffs say that they were unionized under the Construction and Building Materials Workers’ Union (CBMWU) of the Trades Union Congress (TUC) and through the latter, they successfully negotiated conditions of service of the plaintiffs as contained in the Collective Bargaining Agreement (CBA).It is their case that the terms of employment with the Defendant are governed by the said CBA.

• The Plaintiffs say that in accordance with the terms of their employment, there has been an annual revision through negotiations between the parties. That the CBS was last revised in 2008.

• They plead that under the agreement, the Defendant Company was required to renegotiate the terms of the CBA, but which the Defendant refused to do despite persistent agitation for same by the Plaintiffs. That as a result of the defendant’s refusal to engage plaintiffs for negotiations, plaintiffs within their rights embarked on an industrial action to press home their demands on 9th November, 2009.

• That in reaction to the plaintiffs’ lawful action, the defendant locked out the workers on 10th November, 2009.

• That the TUC intervened for an amicable settlement of the matter between the parties.

• The Plaintiffs say further that following the Union’s intervention no amicable settlement was reached and the matter was referred to the National Labour Commission (NLC) for mediation.

• That at the NLC, it was recommended that only employees of the Defendant who were present on the days of the industrial action should be interdicted as contained in a letter dated 13th November, 2009.

• The Plaintiffs also claim that the NLC also recommended that all employees affected by the Defendant’s action should remain in the position they were before the said investigation had been until an authorized, complete and proper investigation into the matter by the defendant had been concluded and this was communicated in a subsequent letter in a subsequent letter by the NLC dated 2nd December, 2010.

• The Plaintiffs say that without resorting to the advice of the NLC purported to interdict the Plaintiffs in November 2009 against the recommendation of the NLC and that while on interdiction, they were paid half their salaries for five (5) months from November, 2009 to April, 2010.

• The Plaintiffs say finally that without recourse to due procedure, the Company, in May 2010, purported to terminate their employment.

• In response to the defendant’s counterclaim, the Plaintiffs deny the losses incurred from, in particular, the recruitment of replacement workers in that there was already a plan in place to make part of the workforce, (100 in number) redundant and that the first batch of workers had been terminated already. In other words, since the Defendant Company already had plans to reduce their workforce, there would be no need to replace the ones who were summarily dismissed.

THE CASE OF THE DEFENDANT

The case of the defendant as set out in their amended defence and counterclaim is that;

• To all intents and purposes, the Plaintiffs were illegal strikers against the defendant , after having embarked on an illegal strike without proper union notification or due process, and therefore fell within the status of workers under section 168(4)of the Labour Act, 2003 (Act 651) which provides that ;

“…..a worker who takes part in an illegal strike may have his or her services terminated by the employer without notice for breach of his or her contract of employment or may forfeit his or her remuneration in respect of the period during which he or she is engaged in the illegal strike.”

• That under the CBA which came into effect on 1st January, 2008, embarking on an illegal strike action is clearly and explicitly stated as a ground for summary dismissal under Article 33(1)(e), (f) and (g)

• The defendants deny any agreed practice nor contractual requirement under the CBA for a yearly revision of terms governing the relationship between the Defendant and its unionized workers and that under Article 3 of the CBA which provided that the agreement was to remain in force for a period of not less than 2 years. That it provided;

“The duration of this Agreement shall be for a period of not less than two(2) years from 1st January, 2008…..Until a new Agreement is signed and its, they effective date is agreed upon, the present Agreement shall continue in force.”

• They say that the persistent agitation was wrongful, injurious and in flagrant breach of the CBA that the reason for it was due to the dislike they had for the Managing Director of the Defendant Company. That on the 4th of November, 2009 they had written to two of the company’s shareholders making false claims against the Managing Director and calling for his resignation.

• The defendant says that on the morning of 9th November, 2009, the Plaintiffs locked the gates of the company preventing management or any persons from going in or out of the premises and confined the staff to their offices, under threat of harm and intimidation for seven hours until the Police intervened.

• That what occurred on that day was a violent strike action which was reported in the print and electronic media. The Defendant says that for several days after the strike, in order to save life, limb and property, the premises of the Company had to be closed by management.

• That it was the workers’ union that agitated and caused the strike, and subsequently complained to the NLC who rebuffed and reprimanded them for having embarked on an illegal strike. That the NLC notified both parties that it had established inter alia that there was no notice by either party of a strike on the part of the workers’ union and the subsequent lockout by management as required by law.

• That by the said letter, the NLC relying on the finding of fact that the strike was illegal directed that “In line with Managements’ stance that the strike action was illegal, Management is free to interdict the workers to pave the way for investigation into the matter.

• That they rely on the NLC’S finding of fact stated above and on Section 168(4) of the Labour Act, (Act 651) which renders the Plaintiffs liable to summary dismissal for embarking on an illegal strike.

• That they were well within their rights to terminate the employment of the Plaintiffs on the unchallenged finding of the NLC that the Plaintiffs had embarked on an illegal strike in breach of their employment contract.

• That as a result of the Plaintiffs action in breach of their employment contract, the Company had to shut down its factory premises, resulting in damage by way of a fall in production and the resultant loss of profit.

• That in order to mitigate its loss, the defendant company had to take immediate steps to hire and replace the vacancies in its work force which had arisen as result of the illegal and unlawful breach of commitment in bad faith by the Plaintiffs.

• The defendant therefore counterclaims for the losses which they say the suffered jointly and severally as follows;

i. Defendants’ factory shut down(5 days)

USD 35,000 ii. Defendants’ cost of retraining replacement workers

USD 10,000

TOTAL USD 45,000

THE LAW THIS CASE

THE BURDEN OF PROOF/ BURDEN OF PERSUASION

Before proceeding to deal with the evaluation of the law and the evidence in this case viz-a viz the issues set down, let me make some preliminary remarks about what was required by the law in relation to the duty of the Plaintiff. By law the Plaintiffs had a burden to prove their case to the standard required in civil actions; that is, on a balance of probabilities.

Section 11 of the Evidence Act, 1975 (NRCD 323) states in part;

Section 11—Burden of Producing Evidence Defined.

(1) For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.

(4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence.

In explaining the principles relating to the duty to produce evidence, the learned S.A Brobbey states at page 31 of his book ESSENTIALS OF THE GHANA LAW OF EVIDENCE thus;

“This literally means “The proof lies upon him who affirms, not on him who denies, since by the nature of things, he who denies a fact cannot produce proof.”

Where the Plaintiff makes a positive assertion at the start of the trial, he bears the legal burden. At the same time, he bears the evidential burden to adduce evidence at the start of the trial.”

In the wrongful dismissal case of FAIBI v. STATE HOTELS LTD.[1968] GLR 471, it was held thus;

“Onus in law lay upon the party who would lose if no evidence was led in the case; and where some evidence had been led it lay on the party who would lose if no further evidence was led. In the instant case, since the Plaintiff’s contention was that his dismissal was wrongful whilst that of the defendant was that the dismissal was not wrongful, the party who would lose if no evidence was led would be the plaintiff. The onus was therefore on the plaintiff to prove that he was wrongfully dismissed. The plaintiff must prove that he did not contravene the orders of his employers, or if he did, the orders were unlawful and unreasonable…”

In the case of GBEDEMAH v. AWOONOR-WILLIAMS (1970) CC 12 (ALSO G&G 438), the Supreme Court of Ghana held that once made, a counterclaim proceeds as an independent action. By that measure, it goes without saying that the Defendant’s would also assume the burden of proving their counterclaim on a balance of probabilities in the same way that the Plaintiffs had to prove their claim.

At the close of pleadings, the following issues were set down for determination;

i) Whether or not the Plaintiff’s persistent agitation for renegotiation of the Collective Bargaining Agreement (CBA) is unlawful, injurious and in breach of the CBA? ii) Whether or not on the 9/11/2009 plaintiff locked the gates of the defendant company?

iii) Whether defendant closed down the firm and factory premises for five (5) days as a result of the plaintiff’s industrial action.

iv) Whether the termination of the plaintiff’s employment by the defendant was unlawful?

v) Any other issue(s) that may arise from the pleadings.

The additional issues set down were;

1. Whether or not the Plaintiffs obtained prior permission to embark on the strike action.

2. Whether or not the National Labour Commission declared in its letter of 13th November, 2009 that the Strike Action embarked upon by the Plaintiffs on 9th and 10th November was illegal.

3. Whether or not the Plaintiffs expressed dislike for the Defendant’s Managing Director.

4. Whether or not upon embarking on an illegal Strike Action the Defendant is entitled in law to terminate the Plaintiffs’ employment by the process of dismissal.

Per the court notes of 25/7/13, issue (iv) in the Application for Directions was deleted.

After having heard the evidence in this case, it would be expedient to deal with some of the issues together as they overlap. I shall also deal with any other relevant issues in order to deal with the matters at hand conclusively.

In DOMFE v. ADU, [1984-86] 1 GLR 653, CA, it was held that the primary facts which a trial judge might find as having been proved to his satisfaction were those necessary to establish the claim of a party or in some cases the defence and which had been alleged on one side and controverted on the other. The trial judge was not required to make findings of fact in respect of irrelevant matters on which the parties had led evidence when such findings would not assist in the determination of the issues involved in the case.

(See also FIDELITY INVESTMENT ADVISORS v. ABOAGYE ATTA (20032005) 2 GLR 188, CA) in which it was held that what issues were relevant and essential was a matter of law entirely for the judge to determine.

In dealing with the issues, I shall first, deal with the matter of the nature of the events of the 9th through to 13th of November, 2009, the cause(s) of the events and justifications if any and end with the bottom line question of the legality or otherwise of the termination of the employment of the Plaintiffs.

The issues relating to the nature of the events of 9th through to 13th of November, 2009 are those set down as (ii),(iii) in the Application for directions and (1.) in the Additional issues.

ii) Whether or not on the 9/11/2009 plaintiff locked the gates of the defendant company?

iii) Whether defendant closed down the firm and factory premises for five (5) days as a result of the plaintiff’s industrial action.

1. Whether or not the Plaintiffs obtained prior permission to embark on the strike action.

In their pleadings as well as the oral evidence adduced, the Plaintiffs seem to be at cross-roads as far as defining what event that occurred on the 9th of November, 2009. They apparently do not wish to describe it as a strike. In their pleadings, they described it as an industrial action. They also say in their pleadings that they were within their rights to undertake the industrial. They also say that the action was a spontaneous and unplanned.

I have assessed the evidence before the court and have drawn the conclusion certain conclusions and made findings of fact on issues raised for consideration by the Court.

It is borne out by the evidence of the witnesses for the Plaintiffs themselves who said that they were singing in the forecourt of the company’s premises that work did not proceed as the norm on the 9th of November, 2009. The 1st Plaintiff said that they were singing until the arrival of the Police and that although there were some management staff at the premises at the time, nobody did anything to them. On the other hand, it is the case of the defendant that the plaintiffs locked up the premises. To buttress this, they called DW2, Nuworzah Tetteh, who was at the time of the incident, the Head of Human Resource in the company. He corroborates the case of the Defendant. Additionally, the defendant tendered in evidence a publication in the Ghanaian Times newspaper (Exhibits 1 and 5). The witness for the Plaintiffs do not deny the accuracy of the publications as from the evidence of the 1st Plaintiff, the Newspaper is located not far from the premises of the Defendant Company where the events unfolded.

In any case, no serious effort was made to deny that the workers put the gates of the factory under lock. 1’

I do also find as a fact that the defendant Company also locked out the workers on the four days subsequent to the 9th of November, 2009. The reason they give for this is that they were seeking to protect lives, limb and property of the Company and staff. In the course of this strike, DW2 said that he was escorted by the 1st Plaintiff from the factory area to the administration building and that he and his colleagues in the administrative/management class were locked up at all material times and could not even go and buy food.

In cross-examination, this was untraversed. On the matter of failure to crossexamine, the law is very clear.

In FORI v. AYIREBI [1966] GLR 627, SC, it was held at Holding 6 of the head notes;

“When a party had made an averment and that averment was not denied, no issue was joined and no evidence need be led on that averment. Similarly, when a party had given evidence of a material fact and was not cross-examined upon, he need not call further evidence of that fact.” (See also TAKORADI FLOUR MILLS v. SAMIR FARIS [2005-2006] SCGLR 882)

Clearly then, the staff who were on the premises at the time were under apprehension that they were not free to leave, or go about the premises without any resistance from the workers then on strike.

From the evidence-in-chief of the 1st Plaintiff, even though he did try to water down what occurred, it took the intervention of the Police for the staff who were in the administration section to be set free. In my view, that is not indicative of a peaceful sing song but was something which needed the Police to intervene to enforce peace and order.

It is undisputed evidence that in the year 1998, an industrial action occurred which culminated in the Managing Director at the time being stripped and assaulted. That incident was alluded to in the letter written to the directors and shareholders of the Defendant Company and marked as Exhibit 2. That letter concluded;

“We are therefore appealing to you as a matter of urgency for your swift response to avoid repetition of the bitter history we experienced some years ago.”

That, in the context of the parties in this case, would appear to be a threat.

In such circumstances, I also find as a fact that the exigencies of the conditions at the time would merit the Defendant Company locking the workers out of the premises until calm was restored.

It is also not at all disputed that the Plaintiffs did not give any notice of the intended industrial action. They explain that it was a spontaneous act arising from a refusal of the Management of the Defendant Company to renegotiate their Collective Bargaining Agreement. It is borne out by the record that prior to the event of Monday, 9th November, 2013, the Plaintiffs had written Exhibit 2 entitled REMOVAL OF THE CHIEF EXECUTIVE OFFICER dated November 4th 2013 (just 5 days earlier). With that in mind, I find the assertion by the Plaintiffs, that they could not have served notice of this strike and that this was an unintended, unplanned and spontaneous one, quite unworthy of credit.

I therefore find as a fact that the strike was without the notice required by law and as such was illegal.

I will now discuss the issues relating to the reasons that may have accounted for the strike. These are;

(i) Whether or not the Plaintiff’s persistent agitation for renegotiation of the Collective Bargaining Agreement (CBA) is unlawful, injurious and in breach of the CBA?

3. Whether or not the Plaintiffs expressed dislike for the Defendant’s Managing Director.

It is the case of the Plaintiffs that they went on the strike, by whatever name, because of the failure of management to come to the negotiation table when their Collective Bargaining Agreement had lapsed and was due for renegotiation. They say that the CBA was to be reviewed every year. On the other hand, it is the case of the Defendant Company that the Collective Bargaining agreement was yet to lapse and that the real reason for the agitation was the dislike that the workers had for the Defendant Company’s Managing Director, Mr. Carl Richards.

It would appear that these issues would boil down to a matter of oath against oath.

In the case of OXYAIR LTD and DARKO v. WOOD [2005-2006] SCGLR 1057, It was held inter alia that in the case of oath against oath, it was the duty of the trial court, or for that matter, any court to consider the evidence adduced. In that case, the trial judge was entitled to form a judgment as to what version of events was more credible. The judge could not be faulted on his decision since it had been based on the evidence on record.

Also of assistance would be the case of LUTTERODT v. COMMISSIONER OF POLICE [1963]2 GLR 429, SC, in which it was held that when it comes to oath against oath, it is incumbent upon the trial court to examine the evidence before preferring one to the other. The court should then give reasons for the preference. (See also AMARTEY v. STATE [1964] GLR 256 SC)

For the determination of these issues, I shall have recourse to the Collective Agreement itself.

The CBA was tendered in evidence as Exhibit E.

Article 3 of the CBA states;

DURATION OF AGREEMENT

The duration of this Agreement shall be for a period of not less than two (2) years from 1st January, 2008. At any time from not less than one month prior to the expiry of this Agreement either party may give notice of its intention to open negotiations on a new Agreement. Until a new Agreement is signed and its effective date agreed upon, the present Agreement shall continue in force.

The Plaintiffs say that this aspect of the Agreement was not agreed upon and that accounts for why that particular page was not signed.

I have taken a look at the entire Agreement, including the page where the signatories to the CBA had appended their signatures (page 19). In fact there are no signatories on behalf of the Company. What signatures there are those of P.M.K Quainoo, General Secretary, James Sarpong (Industrial Relations Officer) and the Branch Secretary, Local Union, ACP Limited. I have also taken a close look at the signature which occurs in some of the pages of the Collective Agreement. None of the signatures on page 19 match with this signature. In my view, to be able to depend on the CBA, the document ought to be read as a whole. I do not think that the Plaintiffs can rightly expect the Court to read parts of the document they have themselves tendered in evidence to assist their case and not others. In the circumstances, I hold that the entire CBA shall be construed to determine the contractual agreement between the parties.

In ATADI v. LEADZEKPO [1981]GLR 218, CA, it was held that where, oral evidence by one party conflicted with documentary evidence bearing some relevance to the date at issue, and where such documentary evidence tended to make the oral testimony as to the date in issue improbable (as on the facts of the instant case) then unless for good cause shown to justify the rejection of the documentary evidence, it would be wrong for a trial court to rely on demeanor of a host of witnesses to determine the issue at stake. Also whenever the testimony of a party on a crucial issue was in conflict with the testimony of his own witness on that issue (as in the case of the respondent in the instant case) it was not open to a trial court to gloss over such a conflict and make a specific finding on that issue in favour of the party whose case contained the conflicting evidence on the issue.

In the circumstances, I find it difficult to accept oral evidence over a documentary one, particularly when the document was tendered in evidence by the Plaintiffs who expect the Court to accept parts of it and not the entire document.

In the circumstances, I find that the terms of the CBA were valid and in force as at the 9th of November, 2009 and that the continued agitation in the light of its terms was unlawful.

Quite apart from that, I find that the antecedents of the events of 9th November, 2009, point to a personality clash between the Plaintiffs and the Managing Director/Chief Executive Officer, Mr. Carl Richards. This is borne out by the letter they wrote, Exhibit 2 as well as the messages on the placards they bore when the strike was ongoing …. “We are suffering, Moko Aya, Moko Aba CEO, literally meaning somebody should go for another to come”.

In his testimony, PW1 Isaac Tackie Ofori, also made a point that the CEO/Managing Director had run down the company and had not been properly managing it.

I very much have in mind the documents tendered in evidence as Exhibits F and F1, dated October 7th and 15th respectively which seem to point at requests to meet to discuss the CBA. However it is my candid view that Exhibit 2 dated November 5th was more contemporaneous to the event of 9th November, 2009 and, taken together with the what was reported by the Ghanaian Times newspaper, after having interviewed the workers, on whatever date, I find that the more credible explanation was that the workers agitated mainly because they no longer wanted the CEO at post and that accounted for the strike.

I shall now discuss the legality or otherwise of the termination of the plaintiffs’ employment.

iv) Whether the termination of the plaintiff’s employment by the defendant was unlawful?

v) Any other issue(s) that may arise from the pleadings.

The additional issue set down in relation to the matter of the legality or otherwise of the Defendant’s action was;

4. Whether or not upon embarking on an illegal Strike Action the Defendant is entitled in law to terminate the Plaintiffs’ employment by the process of dismissal.

The Plaintiffs say that their dismissal was wrongful for the following reasons;

1. That having acceded to the directive of the National Labour Commission (NLC) to interdict the striking workers to pave way for investigations into the matter, it was wrong for the management of the Defendant Company to unilaterally dismiss the workers without recourse to the NLC.

2. That per the Standing Negotiating Committee had been set up to investigate the reasons for the strike and lockout, to identify the culprits and to recommend appropriate sanctions and as such management was wrong to go ahead and summarily dismiss the plaintiffs without recourse to the Committee.

3. That having disregarded the directive of the NLC, the dismissal of the workers is unlawful.

4. That in any case, the CBA prescribed a warning and not summary dismissal in the event of an illegal strike.

To resolve this matter, I have had recourse to the founding documents of the contractual agreement between the parties, i.e. the Collective Agreement as well as the Labour Act, 2003 (Act 651).

The relevant portions of the CBA are Articles 33 and 33(1)(e),(f) and (g).

Section 168(4) of Act 651 also states;

(4) Without prejudice to subsection (2), a worker who takes part in an illegal strike may have the services terminated by the employer without notice for breach of contract of employment or may forfeit remuneration in respect of the period during which the worker is engaged in the illegal strike.”

Without a doubt, embarking on an illegal strike constitutes misconduct under both the CBA and the Act 651 which can result in the company exercising the right to summarily dismiss those who have, without any equivocation, admitted having participated in the illegal strike.

The authorities are legion that an employer can exercise the right to summarily dismiss an employee who engages in misconduct.

In KOBEA and ORS v. TEMA OIL REFINERY; AKOMEA-BOATENG and ORS v. TEMA OIL REFINERY (CONSOLIDATED) [2003-2004] SCGLR 1033, the Plaintiffs in both suits were members of the General Transport Petroleum and Chemical Workers Union of TUC. In September 1990, they demanded a meeting with the Chief Executive who scheduled one for 28th September, 1990. Although the all employees were invited to what was to be a durbar, the workers boycotted it. On Monday, 1st October, 1990, the workers summoned the CEO. A lot of noise was heard on the compound, the workers blocked the entrance to the administration block, preventing the chief executive from entering, beating drums and singing war songs. Most of them appeared drunk and resolved not to allow the chief executive to work at the factory. They ordered him to leave the compound. He was driven away and they threw stones at the vehicle. The factory was occupied by the workers for a week. The management decided to terminate the appointment of all the workers. The High Court held that the termination was not wrongful and same was affirmed by the Court of Appeal.

Several ratios were given by the Supreme Court, which would be of relevance in this case.

Per Dr, Seth Twum JSC-“The Plaintiffs sought by cross-examination that in the light of the tumultuous situation leading to the collapse of law and order in the refinery, the defendant ought to have set up a committee if enquiry to identify the actual persons who had seized the refinery. It was further suggested to the defendants worked at the refinery and so could not have taken part in the riot and disturbances. In my view, that is only relevant when disciplinary measures are to be applied…..A trade union is not an army and each member was liable for the acts committed by the direction of the union…..

The defendant had two options: it could institute disciplinary procedures or waive its right to discipline and take the less acrimonious step to bring normalcy to the refinery. It chose the latter, namely, its common law right to terminate ….In an action for breach of contract of employment, the employer is not liable in damages for doing what he is not bound to do.”

In AWUKU-SAO v. GHANA SUPPLY CO. LTD [2009] SCGLR 710, it was held at Holding 3 of the judgment that at common law, unaffected by public law considerations, it was enough if the fact upon which a person had been summarily dismissed objectively established the ground or cause for the dismissal. Thus at common law, a servant whose conduct was incompatible with the faithful discharge of his duty to his master, might be dismissed. Dismissal would also be justified in the case of a servant where his conduct had been such that it would be injurious to the master’s business to retain him.

(See also LEVER BROTHERS GHANA LTD v, ANNAN [1989-90] 2 GLR 385, PRESBYTERIAN HOSPITAL AGOGO v. BOATENG [1984-86]2 GLR 381, LAGUDAH v. GHANA COMMECIAL BANK [2005-2006] SCGLR 388, and “FROM HIRING TO FIRING –THE ROLE AND CHALLENGES OF THE IN HOUSE COUNSEL, A Paper Presented by Abena Asafo Boakye CLE, ANNUAL GHANA BAR CONFERENCE, HO, 2014, www.ghanabar.org)

It would appear from the authorities that the question of whether or not the right to dismiss had been compromised in any way by a failure to exercise the right immediately or to have abided by the directives or recommendation/directive by the NLC or the committee set up by the NLC is of no relevance. The bottom line in such a case is whether per the contract of employment between the parties, there had been proven misconduct in such a manner as to make the servants’ conduct incompatible with their continued stay in the master’s business.

It is also clear from the authorities that it would be of no consequence if previous incidents or offenders have gone unpunished or that the treatment of the incident is considered inconsistent. (See BANI v. MAERSK GHANA LTD [2011] 2 SCGLR 796]

I find as a fact in this case, that in this instance, there had been an illegal strike which is defined by both the legislation and the CBA to amount to misconduct and as such the dismissal is lawful.

In the circumstances, the Plaintiffs’ action would fail.

I will now address the issue of the Defendant’s counterclaim. As stated elsewhere in this judgment, the defendant has the same evidential burden of proving their counterclaim as the plaintiffs their claim. In the instant suit, the defendant claims loss of income arising from having to recruit and train replacement workers as well as what would seem to be projections of what could have been their income.

What was offered by way of evidence for these losses were Exhibits 9 and 10. Exhibit 9 is a document purportedly showing historical sales information for 2009 and 2010. Exhibit 10 is supposed to depict the proposed production schedule for the week in which the strike/lockout occurred.

In my candid view, I fail to see how these two documents will serve the purpose of proving that workers were recruited and trained by the defendant. In the same way, I fail to see how the subsequent year’s income (i.e. income for 2010) would be an indicator of what could have been the income for the previous year in the light of constant hikes in prices in this country. The previous years’ figures might have been of better use.

Quite apart from these, I would have thought that duplicate receipts and pay vouchers would have been of better probative value than these documents which, for want of a more polite expression, are self-created and self-serving.

Without going into any further detail, I find that the Defendants have been unable to prove their counterclaim to the required standard and same must fail.

Nominal costs of GH¢3,000 in favour of the Defendant.

SGD

AFIA SERWAH ASARE-BOTWE (MRS.) J

JUSTICE OF THE HIGH COURT.

COUNSEL

MR K. O. LARBI FOR THE PLAINTIFFS PRESENT.

MR CHARLES ZWENNES WITH HIM JOHN FREDERICK AGUDETSE FOR THE DEFENDANT PRESENT