TETTEH V. INTERTEK

JUDGMENT

ADJEI, J.A:

The Plaintiff/Appellant sued the Defendant/Respondent, his former employer, in the High Court (Labour Division), Accra for the following reliefs:

1. A declaration that Plaintiff was constructively dismissed by the Defendant and same was unlawful and wrongful.
2. An order against the Defendant to pay the Plaintiff his severance award in accordance with the practice at the Defendant Company.
3. Damages for breach of contract.
4. An order compelling the Defendant to return Plaintiff’s service vehicle.
5. Costs including legal fees.

For ease of reference, in this appeal, the Plaintiff/Appellant shall be referred to as the Plaintiff. Similarly, the Defendant/Respondent shall be referred to as the Defendant.

The brief facts of the case are that the Plaintiff was initially engaged by a company known as Transworld Laboratories which was subsequently taken over by Intertek Minerals Limited, the Defendant. The Defendant then engaged the services of the Plaintiff by an employment contract which was to take effect from 1st October 2008. The employment was regulated by a letter of appointment and the contract of appointment.

The Plaintiff had throughout his employment with the Defendant worked in Tarkwa where the Defendant’s head office is located until he was transferred to Tema. The Plaintiff being aggrieved by the nature and conditions of his transfer by a letter dated 14th April 2016 demanded for severance and for his entitlement to be paid to him.

The Defendant treated the Plaintiff’s letter as a letter of resignation and, therefore, paid to the Plaintiff the benefits due him. However, the Plaintiff’s case has been that he had not terminated his employment by virtue of this letter. The case before the trial court and, indeed, this Court, therefore, centres on the effect of the Plaintiff’s letter. Did the letter merely amount to a request for severance and the entitlements under the contract or did it amount to a resignation? The Plaintiff gave evidence by himself and the Defendant gave evidence through Theresa Aning, its human resource manager.

The High Court, at the application for directions stage, set down eight main issues for trial. After resolving all the issues, the trial High Court by its judgement delivered on 19th July 2019 dismissed the Plaintiff’s claim. 

The Plaintiff, being dissatisfied with the judgment of the trial High Court, filed an appeal to this Court on 15th August 2019. The Plaintiff, in his Notice of Appeal, set out two grounds of appeal which are as follows:

“a. The Judgment is against the weight of evidence adduced before the court.

b. The trial Judge misdirected herself in law.”

We now address ground (a) of the appeal which is that the judgment is against the weight of evidence adduced before the court. This is the omnibus ground of appeal in civil appeals. In the case of Tuakwa v. Bosom [2001-2001] SCGLR 61 the Supreme Court held that in civil appeals, where the appellant alleges in his notice of appeal that a judgment is against the weight of evidence the appellate court has a duty to analyze the entire record of appeal including the evidence adduced to determine whether the conclusions of the trial judge are supported by the evidence on a balance of probabilities.

The old position of the law in Ghana was that questions of law could not be raised and determined under the omnibus ground of appeal. This was the position of the Supreme Court in Brown v. Quarshigah [2003-2004] 2 SCGLR 930. However, subsequent cases of the Supreme Court have not followed this position. In the case of Attorney-General v. Faroe Atlantic [2005-2006] SCGLR 271 and Owusu-Domena v. Amoah [2015-2016] 1 SCGLR 791 the position taken by the Supreme Court was that legal and factual matters may be raised under the omnibus ground where the legal arguments would advance or facilitate the determination of the factual matters. In the recent case of Evelyn Asiedu Offei v. Yaw Asamoah and Odehye Kwaku Gyapong (Unreported) Civil Appeal No. J4/64/2016 delivered on 25th April 2018, the Supreme Court discussed both positions and indicated that the new position prevails in Ghana.

This Court is, therefore, called upon to correct all errors committed by the trial High Court and reach the proper conclusion supported by the evidence on record. The alleged errors committed by the trial High Court may be classified as errors arising from the failure of the Court to consider matters which if considered in accordance with law would have an impact on the judgment of the court and errors arising from the consideration of relevant matters influenced by wrong principles of law or factual errors. 

From the Written Submissions of the Plaintiff, the trial High Court judge’s conclusions that the Plaintiff was not constructively dismissed and that Exhibit D was a letter of resignation were not supported by the evidence on record. These submissions will be considered seriatim.

We hereby examine the evidence on record to ascertain whether or not evidence has been adduced to support the claim that the Appellant was constructively discharged or dismissed. Dismissal occurs where an employer gets an employee out of his employment and the employee loses all his legitimate benefits with the exception of his own contributions. Dismissal could either be actual or constructive. Actual dismissal arises where the employer disengages the services of the employee on grounds of misconduct and the employee, therefore, loses some benefits which ordinarily should have been paid to him if his employment was terminated.

There is no precise definition of constructive dismissal. Nonetheless, what is certain in cases of constructive dismissal is that the employment is terminated by the employee; however, the employee’s termination of the employment is the result of some wrongful act on the part of the employer. The real challenge is the determination of the conditions under which an employee is entitled to terminate the employment and still claim that he was constructively dismissed. 

One view of constructive dismissal is founded on the concept of repudiatory breach. The employee is entitled to terminate the agreement where the employee is entitled to rescind the agreement as a result of the breach of the employer. This position is clear from the judgement of Lord Denning in the case of Western Excavating (ECC) Ltd v. Sharp [1978] 1 All ER 713 at 717:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer's conduct. He is constructively dismissed. The employee is entitled in those circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once. Moreover, he must make up his mind soon after the conduct of which he complains; for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract.”

There is, however, the other view based on the breach of the implied term of mutual trust and confidence. The position was stated by Glidewel LJ in the case ofLewis v. Motorworld Garages Ltd. [1986] ICR 157 as follows:

“(1) In order to prove that he has suffered constructive dismissal, an employee who leaves his employment must prove that he did so as the result of a breach of contract by his employer, which shows that the employer no longer intends to be bound by an essential term of the contract: see Western Excavating (E.C.C.) Ltd. v. Sharp [1978] I.C.R. 221.

(2) However, there are normally implied in a contract of employment mutual rights and obligations of trust and confidence. A breach of this implied term may justify the employee in leaving and claiming he has been constructively dismissed: see Post Office v. Roberts [1980] I.R.L.R. 347 and Woods v. W. M. Car Services (Peterborough) Ltd. [1981] I.C.R. 666, 670,per Browne-Wilkinson J.

(3) The breach of this implied obligation of trust and confidence may consist of a series of actions on the part of the employer which cumulatively amount to a breach of the term, though each individual incident may not do so. In particular in such a case the last action of the employer which leads to the employee leaving need not itself be a breach of contract; the question is, does the cumulative series of acts taken together amount to a breach of the implied term? (See Woods v. W. M. Car Services (Peterborough) Ltd. [1981] I.C.R. 666.) This is the “last straw” situation.”

Constructive discharge is a term of art and has been defined by Black’s Law Dictionary, [Eight Edition] as:

“A termination of employment brought about by making the employee’s working conditions so intolerable that the employee feels compelled to leave.”

We take the view that in Ghana constructive dismissal may be established either by proving a breach of a fundamental term of a contract or of the implied term of mutual trust and confidence. What is necessary therefore is that the person alleging that he has been constructively dismissed adduces sufficient evidence to prove that his working conditions were made so intolerable that he had to terminate the agreement. 

We now consider the evidence of the Plaintiff to ascertain whether the Defendant made life so intolerable for Plaintiff to compel him to resign. In the Plaintiff’s witness statement, which by operation of law became his evidence-in-chief, he testified that he was transferred to Tema after an earlier attempt to terminate his employment had failed. He further testified that the transfer from Tarkwa to Tema was sudden and without accommodation and had serious impact on his family as his family had been in Tarkwa for years. His wife was a nurse with the Ghana Health service at Tarkwa and their daughter was in her third year in Junior High School. He, therefore, had to shuttle between Tema and Tarkwa. He further testified that even at Tema, he did not have a functioning office to work in. He, therefore, worked from his pickup. He also went to work even on Sundays. Based on the evidence above, the Plaintiff thought it was better for him to quit and take his benefits.

Neither the employment agreement nor the appointment letter prohibited the Defendant from transferring the Plaintiff to its office in another part of the country. Clause 7.0 of the employment agreement even envisages situations where the Plaintiff may be required to travel outside the country on the Defendant’s business and makes provision for it. Clause 12.0 of the employment agreement also makes provision for repatriation of the Plaintiff to his country of origin where the Plaintiff is required to work outside Ghana. We are, therefore, of the view that the transfer from Tarkwa to Tema alone will not constitute constructive dismissal by the employer. The burden to prove whether there was a constructive dismissal was on the Plaintiff to discharge. We are not satisfied, on the totality of the evidence on record, that the Defendant made life so intolerable for the Plaintiff to compel him to resign. To establish constructive dismissal the Plaintiff must demonstrate much more than a reduction in his comfort or the convenience of his working arrangement.

In Ghana, where an employee suffers ill-treatment or sexual harassment, he has the right to terminate the employment in accordance with section 15(b) of the Labour Act, 2003 and this will not constitute constructive dismissal. As discussed above, constructive dismissal is a term of art and its application is governed by the laws of the relevant country. In Ghana, the law gives the employee the right to terminate the employment were he suffers ill-treatment or sexual harassment and thus, the employee cannot claim to have been dismissed by the employer and on that basis bring an action for unlawful dismissal. For the avoidance of doubt, we quote section 15(b) of the Labour Act, 2003:

“15. Grounds for termination of employmentA contract of employment may be terminated,(b) by the worker on grounds of ill-treatment or sexual harassment;”

In all civil cases the standard of proof is proof by a preponderance of probabilities except where criminal wrongs are alleged and the burden will be proof beyond reasonable doubt. This position is clear from sections 11 and 12 of the Evidence Act, 1975 (NRCD 323). In the case of Adwubeng v. Domfeh [1996-1997] SCGLR 660 the Supreme Court at page 662 and in headnote three (3) held as follows: 

“Section 11(4) and 12 of the Evidence Decree, 1975 (NRCD 323) (which came into force on 1 October, 1979) have clearly provided that the standard of proof in all civil actions was proof by preponderance of probabilities – no exceptions were made. In light of the provisions of the Evidence Decree, 1975, cases which had held that proof in titles to land required proof beyond reasonable doubt no longer represented the present state of the law.”

Since the fact that the Defendant constructively dismissed the Plaintiff is essential to the case of the Plaintiff, the burden of persuasion with respect to this fact is on the Plaintiff pursuant to section 14 of the Evidence Act. 1975 (NRCD 323) which provides:

“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.”

We are satisfied that the Plaintiff has failed to prove on a preponderance of probabilities that his letter to the Defendant was written as a result of the pressure he received from the Defendant and we, therefore, dismiss the claim. 

It is important to reproduce the Plaintiff’s notice of his intention to quit contained in his letter dated 14th April 2016 as its effect is central to the determination of this appeal:

“NOTICE OF INTENTION TO QUIT

I humbly wish to inform management that the circumstances of my work have generated immense frustration on my part. I therefore wish to inform management that I am willing to be severed and my entitlement paid to me.

I am per this letter giving one and half month’s notice from 15th April 2016 to 31st May 2016 as required under my conditions of service.”

It was based on this letter that the Defendant on 18th April 2016 wrote to the Plaintiff accepting his letter as resignation under their employment contract. The Plaintiff subsequently responded and stated that the letter written on 14th April 2016 was not a letter of resignation; instead, it was a request to management to pay him off in the form of severance. 

It is clear from the Plaintiff’s letter dated 14th April 2016 containing the notice of intention to quit that the Plaintiff sent the letter in accordance with the requirement of his conditions of service. Both the letter and the employment agreement are non-statutory documents and in the circumstances of the case, this Court is required to construe them to determine whether or not the letter amounted to a resignation letter.

The general principle of law is that documents should be read and construed as a whole to ascertain the purpose for which they were made. This principle is clear from the case of Osei v. Australian Goldfields Ltd[2003-2004] SCGLR 69where the Supreme Court stated in the headnotes thus:

“The basic rules of construction of documents are that the interpretation or construction must be nearly as close to the word and intention of the maker as is possible and the intention must be ascertained from the document as a whole with the meaning and within the context in which they are used.”

A court called upon to construe a document purposively is required to ascertain the ordinary meaning of the text, the circumstances under which the text made, the purpose for which it was made, the scope of the text, and to some extent the background.

There is the need to refer to the employment agreement between the Plaintiff and Defendant which was tendered as Exhibit B. Clause 13.0 of the employment agreement governs the termination of the employment relationship. Clauses 13.1, 13.2, and 13.3 provides the circumstances under which the Plaintiff’s employment may be terminated. Clause 13.1 which is germane to the present dispute provides:

“The appointment of the Employee shall be subject to termination:

1. by the employee at any time by giving not less than one month’s prior notice in writing to the Employer;
2. automatically on the date of retirement of at the end of the month in which the Employee reaches normal retirement date under the Rules of Retirement Scheme;
3. automatically upon the Employee’s death;
4. upon the effective date in a written notice from the Employer, without the necessity of any cause for termination.”

Was the Plaintiff’s letter dated 14th April 2016 and containing the notice of intention to quit made in pursuance of Clause 13.1(a) of the employment agreement? We have carefully read and examined the entire employment contract and we are satisfied that Clause 13.1(a) is the only provision under which the Plaintiff may terminate his employment. We are also satisfied that it is the only provision under which the Plaintiff has an obligation to give notice to the Defendant. From the Plaintiff’s letter, the Plaintiff stated unambiguously that he was giving notice in accordance with his obligation under the conditions of service. The Plaintiff’s letter is itself titled “Notice Of Intention To Quit”. This is an indication that the Plaintiff’s letter dealt with his desire to terminate the agreement, which as stated above may only be carried out in accordance with Clause 13.1(a) of the agreement. It goes without saying that the title of a document, even though not considered as part of the document, is a useful guide to the interpretation of that document. On the other hand, where the title of a document could be considered as a long title, it may form part of the document.

The Plaintiff’s case, however, remains that the letter was a request for management to pay him off in the form of severance. There may have been some basis for this position because of the part of the letter which reads:

“I therefore wish to inform management that I am willing to be severed and my entitlement paid to me.”

However, this position does not seem to be supportable when the letter is read as a whole. Firstly, the Plaintiff requests for his entitlement to be paid to him upon severance. The language used by the Plaintiff does not suggest that the Plaintiff was seeking to negotiate a severance package with the Defendant. Rather, it appears that the Plaintiff was insisting that the Defendant complies with its obligation upon the termination of employment contract. These entitlements are provided in Clause 13.5 and they include the Plaintiff’s outstanding salary, the cash equivalent of the Plaintiffs outstanding leave, and the equivalent of the annual home leave ticket. Secondly, the Plaintiff in his letter stated that notice was being given to the Defendant in accordance with his contractual obligations. It is, therefore, beyond doubt that the Plaintiff’s letter was a letter of resignation.

We, therefore, find and hold that the Plaintiff rather terminated his employment. The defendant was right when it treated the Plaintiff’s letter dated 14th April 2016 as a letter of resignation from his employment. The subsequent letters from the Plaintiff to suggest that the previous letter giving notice of the intention to quit was not a letter of termination contradicts his own said letter and we affirm the trial judge’s finding of fact that it was the Plaintiff who terminated his own arrangement. The Defendant was to comply with Clause 13.5 of the employment agreement after the Plaintiff had validly terminated his contract. From the totality of the evidence on record the Defendant complied with Clause 13.5 and paid the outstanding leave and the salary which was due to the Plaintiff under the contract. 

We hold that the Plaintiff failed to prove that the trial High Court judge erred either in law or fact and we dismiss the omnibus ground of appeal as unproven. The plaintiff who had the burden to prove the factual or legal errors failed to establish same and we too did not find any. We are, therefore, satisfied that ground (a) of the appeal is without merit and same is hereby dismissed.

We now address ground (b) of the appeal which is that the trial judge misdirected himself in law. The plaintiff gave 5 particulars under the particulars of misdirection. 

The first particular of misdirection was that the trial judge erred in not applying section 15 of the Labour Act, 2003 (Act 651). Section 15 of the Labour Act provides the grounds for terminating a contract for employment. Section 15(a) provides that a contract of employment may be terminated by mutual agreement between the employer and the worker. Counsel for the Plaintiff, therefore, submits that Exhibit D should have been construed as an application by the Plaintiff for the employment to be terminated by mutual agreement. This Court has, however, already determined that Exhibit D was a resignation letter tendered in accordance with the employment agreement and not an invitation to enter into negotiations for the severance of the employment. At any rate, Exhibit D is a mutual agreement and the Plaintiff is the one who took advantage of the provisions in Clause 13.1. This ground is without merit and same is hereby dismissed.

The next particular of misdirection under ground (b) is that the trial Judge erred in her interpretation and application of Exhibit D and non-application of Exhibit F. Exhibit D is the notice of intention to quit and Exhibit F is a letter from the Plaintiff dated 15th May 2016 disputing that Exhibit D was a letter of resignation. We have already found that Exhibit D was a letter of resignation. We have examined the whole record of appeal including all the exhibits and we are satisfied that the reasoning and conclusion of the trial High Court judge was right in law and we hereby affirm same.

The third particular of misdirection was that the trial judge failed to deal with issues set out for trial at the application for directions stage. The Plaintiff, at page 12 of his Written Submission stated, “My Lords I do not intend to argue this ground.” We therefore strike same out as having been abandoned by the Plaintiff.

The fourth particular of misdirection was that the trial judge erred in her interpretation and application of constructive dismissal. We have examined the record and evidence and we are satisfied that there is no scintilla of evidence to show that the plaintiff was constructively dismissed.

We hereby affirm the judgment of the High Court (Labour and Industrial Division), Accra delivered on 19th July 2017 and dismiss the appeal as unmeritorious.

(SGD)

DENNIS D. ADJEI

JUSTICE OF THE COURT OF APPEAL

ACKAH YENSU, J.A.

I agree

(SGD)

BARBARA ACKAH YENSU

JUSTICE OF THE COURT OF APPEAL

AGBEVOR, J.A.

I also agree.

(SGD)

NICOLAS CHARLES A. AGBEVOR

JUSTICE OF THE COURT OF APPEAL

COUNSEL

KWAME OWUSU ESQ. FOR THE PLAINTIFF/ APPELLANT

NAA ADJELEY DSANE FOR THE DEFENDANT/ RESPONDENT