JAMES ATTOH JNR. V. BARCLAYS BANK GHANA LTD.

JUDGMENT

ASUMAN-ADU, J.

Per his writ of summons filed together with a statement of claim on 7th July, 2009, Plaintiff claims against the Defendant as follows:

(a) Declaration that Defendant having employed Plaintiff for a continuous period of more than six months Defendant ought to treat Plaintiff as a permanent worker.

(b) Declaration that Defendant’s treatment of Plaintiff as an employee was discriminatory and illegal in terms of the laws of this country.

(c) An order that Defendant pays Plaintiff all meals allowances due Plaintiff and withheld by Defendant.

(d) An order that Defendant pays Plaintiff in lieu of the shortfall in notice of termination given Plaintiff by Defendant.

(e) An order that Defendant makes payment to Plaintiff in lieu of the shortfall in annual leave granted Plaintiff by Defendant.

(f) Payment of severance or redundancy pay.

(g) Damages for wrongful termination of Plaintiff’s employment with Defendant.

The Defendant entered conditional appearance on 15th July 2009 and went on to file its statement of defence on 29th July 2009 in which it denied the claim of the Plaintiff and stated that at the appropriate time it would apply for the writ to be struck out as being unmeritorious, vexatious and abuse of the judicial process. Plaintiff filed a reply on 23rd October, 2009 and went on to file an application for directions on 27th October, 2009.

On 28th January, 2010, the Defendant filed motion on notice for an order to dismiss Plaintiff’s action under Order 11 Rule 18(1) (a) of CI 47 which was heard on 7th February, 2010. The Court dismissed the application on ground that it had no merit.

The Defendant did not file additional issues so on 12th April, 2010, the Court set down all the issues raised in the application for directions for trial.

The Plaintiff’s case is that by an agreement dated 23rd day of October, 2007 and concluded between Plaintiff and Defendant, the Defendant was employed as a worker in the Defendant company for a fixed period of one year with effect from 1st day of November, 2007 to the 31st day of October, 2008. During the period of the contract, the Defendant treated the Plaintiff less favourably than a comparable permanent worker.

Under the contract, the Defendant was obliged to give Plaintiff only two weeks’ notice or two weeks’ pay in lieu of notice in case of abrupt termination whilst a permanent worker was entitled to one month’s notice or one month’s pay in lieu of notice. By the contract the Plaintiff was entitled to only 15 days annual leave whilst a permanent worker was entitled to at least 22 days annual leave. The Plaintiff was not entitled to be paid meal allowance but a permanent worker enjoyed meal allowance of GH¢2.00 a day.

The Plaintiff avers that on 27th August, 2008, he received a letter dated 21st August, 2008 from the Defendant giving him two weeks’ notice of termination of the employment contract with Defendant. The said letter shocked Plaintiff and caused a lot of hardship to the Plaintiff. In view of Plaintiff’s unexpected notice of termination of appointment, he made a request to the Defendant for the payment of his severance pay as well as all other entitlements due him but the Defendant ignored it. The Plaintiff, therefore, referred the matter to the National Labour Commission (NLC) but it dismissed the matter without giving award. The Plaintiff has, therefore, brought the current action before this Court for the reliefs endorsed on the writ of summons.

The Defendant’s case on the other hand is that the contract executed between the Plaintiff and the Defendant spelt out the terms and conditions of service of the Plaintiff whilst in the employment of the Defendant. The Plaintiff out of his own volition executed the said agreement and cannot now be heard saying anything to the contrary.

The Defendant goes on to contend that the Plaintiff’s contract of employment was consistent with the provisions of the Labour Act, 2003 (Act 651). Under Clause 5 of the Plaintiff’s contract of employment, Plaintiff was entitled to a daily unpaid lunch break of one hour.

It contends that the decision of the National Labour Commission is binding on the Plaintiff since he has not appealed against the decision. He is, therefore, estopped from mounting the present action by virtue of Section 134 of Act 651.

The Defendant goes on to aver that the termination of Plaintiff’s contract of employment was in accordance with Section 4 of his contract of employment and Section 17 of Act 651. He is as a result not entitled to his claim.

The Plaintiff gave evidence in Court in support of his case and he was cross examined by counsel for the Defendant. The Defendant on the other hand gave evidence through one Kingsley Amoako Mensah, the Employees Relations Manager of the Defendant company and he was also cross examined by counsel for the Plaintiff. Their testimonies were essentially a repetition of their respective cases as shown in their respective pleadings.

The issues set down for trial by this Court were as follows:

1. Whether or not Defendant ought to treat Plaintiff as a permanent employee.

2. Whether or not Defendant treated Plaintiff less favourably than comparable permanent workers.

3. Whether or not the less favourable treatment of Plaintiff by Defendant is legal in terms of the Labour Act.

4. Whether or not Defendant’s termination of Plaintiff’s contract of employment was legal.

5. Whether or not the National Labour Commission made any order or gave any direction or decision which is binding on the parties to this action.

6. Whether or not the National Labour Commission made any order or gave any direction or decision under Section 133 of the Labour Act.

7. Whether or not Plaintiff ought to have appealed against any decision of the National Labour Commission.

8. Whether or not Plaintiff is estopped from mounting the instant action.

9. Whether or not Plaintiff was entitled to be given redundancy pay.

10. Whether or not Defendant is liable to Plaintiff in respect of all or any of the reliefs claimed by Plaintiff in this case.

11. Any other issue arising from the pleadings filed in this case.

The Court will first consider issue (4) which is whether or not Defendant’s termination of Plaintiff’s contract of employment was legal before considering the other issues.

As to the issue of whether or not the termination of Plaintiff’s employment is legal or lawful it is the duty of the Plaintiff to prove to Court that by his terms of employment or by the terms of existing statutory provision the termination of his employment by the Defendant company was illegal or unlawful.

The principle on this is provided in the case ofMorgan and Ors. v. Parkinson Howard Ltd. (1961) GLR 68 in which Ollenu J (as he then was) stated at page 70 as follows:

“In a claim for wrongful dismissal, it is essential that the Plaintiff should prove the terms of his employment and then prove either that the determination of the employment is in breach of the terms of his agreement, or that the determination is in contravention of the statutory provisions for the time being regulating employment. His claim cannot succeed if he fails to satisfy the Court on these points.”

Going by this decision, the Plaintiff in this case has a duty to prove to Court the terms of his employment and also demonstrate to Court that the termination of his employment is in breach of the terms of his conditions of service and any existing statutory provision on employment. See also Kobi v. Ghana Manganease Co. Ltd. [2007-2008] SCGLR 771 at 786 where Ansah JSC relied on the principle in Morgan and Ors. v. Parkinson Howard Ltd. (supra).

To prove his case the Plaintiff herein tendered in evidence his Contract of Employment with the Defendant company as Exhibit A. The said exhibit shows that the nature of Plaintiff’s employment with the Defendant was a fixed term contract of one year commencing on 1st November, 2007 and ending on 31st October, 2008. It goes on to state at clause 4 that each of the parties could terminate the contract at any time by giving two weeks’ notice or two weeks’ pay in lieu of notice. The Defendant, however, reserves the right to summarily dismiss the Plaintiff without notice on stated grounds shown in clause 6 of Exhibit A.

The Defendant based on the said provision in Exhibit A to terminate Plaintiff’s employment after being given the required two weeks’ notice as stated in Exhibit B. However, the Plaintiff claims that he was treated less favourably when he was given only two weeks’ notice instead of one month’s notice as given to permanent workers. According to the Plaintiff since he worked for more than six months he should have been treated like a permanent worker as provided by Section 75 of the Labour Act. So the question that this Court will have to address is whether the Plaintiff’s employment should have been governed by Exhibit A or he should have been treated as a permanent worker with his employment governed by Exhibit E, the Collective Bargaining Agreement.

Section 75(1) of the Labour Act, 2003 (Act 651) provides that a temporary worker who is employed by the same employer for a continuous period of six months and more shall be treated as a permanent worker.

A temporary worker is defined by Section 78 of the Act as a worker who is employed for a continuous period of not less than one month and is not a permanent worker or employed for a work that is seasonal in character. By this definition the Plaintiff claims he was a temporary worker and since he worked for more than six months he should have been treated as a permanent worker. This becomes possible only where the said worker works under no contract of employment. In the case of the Plaintiff his employment was a fixed term contract of one year so he cannot be classified as a temporary worker within the meaning of Section 75 of the Act.

As has been stated elsewhere in this judgment Exhibit A was signed between the Plaintiff and the Defendant in accordance with Section 12 of the Labour Act which provides as follows:

12. “(1) The employment of a worker by an employer for a period of six months or more or for a number of working days equivalent to six months or more within a year shall be secured by a written contract of employment.(2) A contract of employment shall express in clear terms the rights and obligations of the parties.”

Since the Plaintiff was offered employment for more than six months he was made to sign a contract which governed his employment. The said exhibit expresses in clear terms the rights and obligations of the Plaintiff and the Defendant which is in accordance with Section 17 of the Labour Act which provides as follows:

17. “(1) A contract of employment may be terminated at anytime by either party given to the other party,(a) in the case of a contract of three years or more, one month’s notice or one month’s pay in lieu of notice;(b) in the case of a contract of less than three years, two weeks’ notice or two weeks’ pay in lieu of notice; or(c) in the case of contract from week to week, seven day’s notice.(2) A contract of employment determinable at will by either party may be terminated at the close of any day without notice.(3) A notice required to be given under this section shall be in writing.(4) The day on which the notice is given shall be included in the period of notice.”

Plaintiff’s employment was for one year so by Section 17 (1) (b) he was entitled to be given 2 week’s notice which was the same as the notice period given in Exhibit A. By the terms of the said exhibit just as the Plaintiff could have left the employment of the Defendant by giving the Defendant two weeks’ notice so the Defendant could terminate the contract by giving the Plaintiff two week’s notice. See Kobea and Others v. Tema Oil Refinery and Akomea-Boateng and Others v. Tema Oil Refinery [2003-2004] SCGLR 1033; Kobi v. Ghana Manganese Co Ltd (supra) and Baiden v. Graphic Corporation [2005-2006] SCGLR 154.

In the Kobea’s case the Supreme Court in its first holding, delivered itself in the following words:-

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

Also in Kobi v. Ghana Manganese Co Ltd (supra) Atuguba JSC states at page 775 as follows:

“What I consider to be trite learning on this issue is that a contract of service is not a contract of servitude. That being so, even if the contract of employment is silent on the question whether it is terminable, the common law implies a right to terminate the same by either side upon reasonable notice to the other ... Subject to this the right to terminate a contract of service is dependent on the terms of the contract and must be exercised in accordance therewith.”

In the current case as has been stated elsewhere in this judgment the employment relationship between the Plaintiff and the Defendant was that of a “Fixed Term Contract of Employment” of one year as shown in Exhibit A. by clause 4 of the Contract of Employment, the Defendant was expected to give the Plaintiff two week’s notice for the termination of the contract or two week’s pay in lieu of notice.

Exhibit B shows that in terminating the Plaintiff’s employment with the Defendant, he was given the required two week’s notice. This clearly shows that the termination of Plaintiff’s employment by the Defendant was in line with the terms and conditions of the Contract of Employment so the termination was not wrongful or illegal. Rather it was lawful and I so hold.

I will next consider the first three issues together. These are as follows:

1. Whether or not Defendant ought to treat Plaintiff as a permanent employee.

2. Whether or not Defendant treated Plaintiff less favourably than comparable permanent workers.

3. Whether or not the less favourable treatment of Plaintiff by Defendant is legal in terms of the Labour Act.

Since the Plaintiff was a fixed contract employee with a specific contract of employment, he could not have been treated differently from the terms and conditions of his employment so he could not have been treated as a permanent worker with no fixed term of his employment relationship with the Defendant coming to an end. If he had been treated as a permanent worker under Exhibit E without a change in the nature of his employment relationship with the Defendant, it would have been contrary to the terms and conditions of his contract of employment. Even though Plaintiff enjoyed conditions of service which were different from those enjoyed by other employees it could not be said that he was treated less favourably since he was treated in accordance with the terms and conditions of his contract of employment. The treatment of the Plaintiff as a fixed contract employee by the Defendant under Exhibit A was, therefore, lawful in terms of the Labour Act and I so hold.

I will consider issues 5 to 8 together. These are as follows:

5. Whether or not the National Labour Commission made any order or gave any direction or decision which is binding on the parties.

6. Whether or not the National Labour Commission made any order or gave any direction or decision under Section 133 of the Labour Act.

7. Whether or not Plaintiff ought to have appealed against any decision of the National Labour Commission.

8. Whether or not Plaintiff is estopped from mounting the instant action.

As has been stated elsewhere in this judgment the Plaintiff petitioned the National Labour Commission and it went into the matter. Per its letter dated 5th February, 2009, addressed to both the Plaintiff and the Defendant, the Commission ruled on the matter as follows:

“The Commission having heard the parties, and having examined the evidence (documentary and oral) relating to the employment relationship brought before it, and having considered the terms and conditions of the various employment relationships under the Labour Act, 2003, (Act 651), dismissed the petition based on the following facts and findings:

a) That the employment relationship between the petitioner and the respondent was that of “Fixed Term Contract of Employment” for a period of 1 year as stipulated in a Contract duly signed between the parties on 23rd October, 2007.

b) That notwithstanding sub-item (a) above, Article 4 of the Contract titled: “Conditions of Employment” had a termination clause, which states as follows: “Your employment under this contract may be terminated at anytime by the Bank by giving you two weeks’ notice or by paying you two weeks’ salary in lieu of notice.

You may also resign by giving the Bank two weeks’ notice or pay to the Bank two weeks’ allowance in lieu of notice.

The Bank however reserves the right to summarily dismiss you from its employment without notice as specified in Section 6 below.”

Furthermore, Article 11 titled: “Contracting out Clause” states therein: “On the expiry of this contract you will not be entitled to claim any severance payment, Gratuity or other End of Service Benefits.”

c) That there was no Redundancy clause in the Contract signed between the parties and the grounds for terminating the contract by either party was explicit.

d) That the employer in terminating the contract satisfied the termination clause by giving the petitioner two (2) weeks’ notice as required.

e) That by satisfying the notice period, the petitioner is not entitled to any other payment(s).”

By the ruling stated above it is clear that the National Labour Commission after going through the matter between the Plaintiff and the Defendant gave its ruling under Section 133 (1) of the Labour Act which states as follows:

“Where the Commission finds that a person has engaged in an unfair labour practice it may, if it considers fit, make an order forbidding the person to engage or continue to engage in such activities as it may specify in the order.”

In his address counsel for the Plaintiff submits that the Labour Commission is empowered under Section 133 of the Labour Act to make binding decisions and orders relating to unfair labour practices based on unionization of workers and/or negotiations between employers and labour unions. So Exhibit 1 which is classified as the decision of the Commission has nothing to do with unfair labour practices based on unionization of workers and/or negotiations between Defendant and Plaintiff. It could, therefore, not be said in the circumstances that the NLC made any order or gave direction or decision under Section 133 of Act 651.

It must be noted that Section 133 of the Labour Act talks about unfair labour practices in general and unfair labour practices under Sections 127 and 128 of the Act. Section 133 (1) deals with unfair labour practices in general. This explains why it states “an unfair labour practice”. Section 133 (2) and (3) of the Act, deals with unfair labour practices under Sections 127 and 128 respectively of the same Act which are limited to unionization of workers and/or negotiations between employers and labour unions.

The Act does not give a general definition of an unfair labour practice. This is, however, defined by the Black’s Law Dictionary 9th Edition page 1667 as follows:

“Any conduct prohibited by state or federal law governing the relations among employers, employees, and labour organizations.”

So from the definition given to unfair labour practices shown above the petition sent to the Commission by the Plaintiff related to an alleged unfair labour practices and the Commission ruled on it under Section 133 (1) of the Act. The decision was, therefore, binding on the Plaintiff so if he was not satisfied with the decision then he should have appealed against it under Section 134 of the Act which states as follows:

“A person aggrieved by an order, direction or decision made or given by the Commission under section 133 may, within fourteen days of the making or giving of the order, direction or decision, appeal to the Court of Appeal.”

So Plaintiff having failed to appeal against the decision within the stipulated time, he is estopped from mounting the instant action against the Defendant and I so hold.

The next issue is whether or not the Plaintiff was entitled to be given Redundancy pay. Clause 11 of Exhibit A states that “On the expiry of this contract you will not be entitled to claim any severance payment, Gratuity or other End of Service Benefits.” This clearly shows that the Plaintiff is not entitled to be paid any form of End of Service Benefit on the expiry of the contract. As has been stated elsewhere in this judgment the contract could be terminated at any time within the contract period provided the Plaintiff is given two weeks’ notice. In the current case the Plaintiff was given the required notice before his employment was terminated. He was not declared redundant. The termination of his employment was in accordance with the terms and conditions of Exhibit A so he is not entitled to be paid redundancy pay and I so hold.

The last issue is whether or not Defendant is liable to Plaintiff in respect of all or any of the reliefs claimed by the Plaintiff in this case. For the same reasons given above the Plaintiff is not entitled to any of his reliefs. In view of that all the reliefs of the Plaintiffs endorsed on the writ of summons are hereby dismissed and judgment is entered for the Defendant. No order as to costs.

SGD

KWABENA ASUMAN-ADU

JUSTICE OF THE HIGH COURT

COUNSEL

MR. SHAHADU MOHAMMED FOR THE PLAINTIFF

MR. ACHIE DANSO FOR THE DEFENDANT