SAMPSON ASARE V. GRANITES AND MARBLES CO. LTD

JUDGMENT



The Plaintiff instituted this action against the Defendant on 3rd February, 2010 per Writ of Summons and a Statement of Claim. He, however, filed an Amended Writ and a Statement of Claim on 16th April, 2010 claiming against the Defendant as follows:

i. 75 days (2 1⁄2 month) Salary with Allowances for leave earned @ GH¢220.31 per month, making GH¢550.78.

ii. Four months unpaid Salary arrears as follows:

September, 2009 --- GH¢ 220.31

October, 2009 --- GH¢ 220.31

November, 2009 --- GH¢ 220.31

1st – 15th December, 2009 --- GH¢ 110.15

TOTAL --- GH¢ 771.08

iii. Plaintiff does not merit summary dismissal and, therefore, entitled to one month’s Salary in lieu of notice which is GH¢220.31.

iv. Recovery of “Back Pay” for 5 years to compensate for “no increment in Salary” which is GH¢ 272.00 earned by staff across board.

v. General Damages for wrongful dismissal in the sum of GH¢200,000.00.

vi. Costs occasioned by this suit.

The Defendant entered appearance on 16th February, 2010 but failed to file a defence so on 13th May, 2010 the Plaintiff filed a motion on notice for interlocutory judgment under Order 10 of CI 47. On 7th June 2010 when the motion came on for hearing, counsel for the Defendant told the Court that they would want to attempt settlement. Case was as a result adjourned to 7th July, 2010 for either settlement to be announced or motion to be moved. On that day neither the Defendant nor its counsel came to Court. Counsel for the Plaintiff told the Court that even though case was adjourned for parties to attempt settlement, the Defendant never invited them for settlement. Case was as a result adjourned to 14th July 2010 and hearing notice ordered to be served on the Defendant. In spite of the fact that the Defendant was served with the hearing notice, neither parties nor their counsel came to Court. Case was as a result adjourned to 4th October, 2010 for the motion to be moved and hearing notice ordered to be served on the Defendant. Even though the hearing notice was served on the Defendant as ordered, neither the Defendant nor its counsel came to Court on that day so counsel for the Plaintiff moved the motion and it was granted as prayed. Interlocutory judgment was, therefore, entered for the Plaintiff and case adjourned to 19th October, 2010 for the Plaintiff to prove his damages. Further hearing notice was served on the Defendant yet still it did not come to Court so Plaintiff gave evidence on that day. It closed its case on 22nd October, 2010 and case adjourned for counsel for the Plaintiff to file his address. After counsel for the Plaintiff had filed his address case was adjourned to today for judgment. From the proceedings, the Defendant was given adequate hearing notices for it to be in Court but it decided not to come to Court and since the Court could not wait for it, it went on with the case without it and case adjourned to today for final judgment to be delivered.

The case for Plaintiff is that on or about 6th day of November, 1998 he was employed by the Defendant company as a security officer and was given an appointment letter to that effect. He was later interviewed and was appointed as a store keeper on an enhanced salary. After working for sometime as a store keeper, the Plaintiff was sent to the commercial department to assist in marketing of company’s products. Plaintiff’s contract of employment was covered by a Collective Bargaining Agreement (CBA). He tendered an extracts of it in evidence as Exhibit A.

Plaintiff goes on to aver that due to changes in his work schedule he could not take his leave for three years. He said it was approved on 3rd December, 2009 that he should proceed on leave on 7th December, 2009. He took his leave as scheduled but it was cancelled and he was asked to report back to work on 14th December, 2009. He tendered in evidence the letter cancelling his leave as Exhibit B. He claims he resumed work as per Exhibit B and reported himself to his immediate boss who assigned him work to do. Whilst he was working in his office on 15th December, 2009 he was given a letter of dismissal which states that he had been dismissed with effect from 1st December, 2009. He tendered in evidence the letter as Exhibit C. The Plaintiff went on to tender in evidence the letter which allowed him to take his outstanding leave dated 3rd December, 2009 as Exhibit D and his appointment letter as Exhibit E. According to the Plaintiff his dismissal was wrongful.

He claims he was not paid his salaries for September, October, November, and up to 15th December, 2009. The Plaintiff avers that even though his dismissal took effect from 1st December, 2009 the dismissal letter was not given to him until 15th December when he was recalled from leave. He also claims that he was not allowed to take his leave for three years so it must be converted to cash and paid him. He claims he has a family of six. His children are in the house without going to school because of the dismissal. Even how to take care of them is a problem since he is not working. He avers that he is currently 47 years old and it is difficult to secure another work in the public sector at that age. He gave his salary at the time of his dismissal as GH¢220.31 per month.

The Plaintiff avers further that for five years they have not received salary increment and they have not been compensated for that. Also between 1st December and 15th December 2009 he was working and the dismissal letter which took effect from 1st December 2009 was given to him. He should, therefore, be paid for that period.

The Plaintiff went on to tender in evidence the Collective Bargaining Agreement as Exhibit F. He referred the Court to the various articles in the agreement to prove to Court that his dismissal was contrary to the provisions in the CBA. The Defendant’s action is, therefore, without just cause and amounts to wrongful dismissal since due process was not followed. He is, therefore, entitled to his claim.

From the pleadings and the evidence before the Court the main issue for determination is whether or not Plaintiff’s dismissal was wrongful. 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 his dismissal by the Defendant Company was wrongful.

The principle on this is provided in the case of Morgan 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 that the reason assigned for his dismissal is in breach of the terms of his conditions of service and any existing statutory provision on employment.

According to the Plaintiff his dismissal was in blatant violation and contravention of his terms of employment with the Defendant company. The Plaintiff tendered in evidence his appointment letter as Exhibit E and it states in paragraph four that his services may be terminated after one month’s notice or one month’s pay in lieu of notice. He went on to tender in evidence the Collective Bargaining Agreement (CBA) which governs his employment with the Defendant company as Exhibit F. Article 8 of the CBA deals with disciplinary procedures. Article 8.01 (b) and (c) states as follows:

“(b) Discipline is the Company’s responsibility and will be applied fairly. Every employee is entitled to know the reason for any disciplinary action against him.

(c) There shall be a disciplinary committee comprising representatives of the Company and the Union to deal with all issues under these regulations.”

The CBA goes on to provide at Article 8.03 (a), (b) and (c) as follows:

“(a) Each case shall be dealt with on its own merit taking into account the relevant circumstances and evidence.

(b) The decision as to whether an employee is guilty of an offence will be determined on a balance of probabilities.

(c) An employee is entitled to state his case in any disciplinary matter and the disciplinary committee will listen to every employee with an open mind. An employee shall also have the right to call witnesses and to question witnesses.”

It must be noted that an employer has the right to dismiss an employee he does not want to work with. However, the right to dismiss is dependent on the terms of the contract and must be exercised in accordance therewith. In some cases a contract of service may provide for the right of dismissal simpliciter or with an additional right of dismissal after the pursuit of disciplinary procedures. Where that is the situation, one cannot fault the employer for resort to the alternative right of dismissal simpliciter without recourse of disciplinary procedures. In the instant case, there is no right in the Defendant to dismiss the Plaintiff simpliciter. Under the collective bargaining agreement binding on the parties, the right to dismiss is linked to the commission of an offence requiring resort to disciplinary procedures. See the case of Kobi v. Ghana Manganese Co. Ltd. [2007-2008] SCGLR 771.

As has already been stated in the judgment, the dismissal of Plaintiff was irregular because neither one month’s notice nor one month’s salary in lieu of notice was given as stipulated by the collective agreement. Also the evidence shows that he was given a letter dated 3rd December, 2009 to take his outstanding leave with effect from 7th December, 2009. By a letter dated 11th December, 2009 he was recalled from leave. He was to report on 14th December, 2009. When he reported for work he was given a letter dated 7th December, 2009 by the Defendant dismissing Plaintiff from its employment with effect from 1st December, 2009. This shows that he was dismissed before he proceeded on leave. It is also observed that he worked up to 7th December, 2009 before going on leave. He was also on leave up to 14th December, 2009 before he was recalled and handed over the dismissal letter on 15th December, 2009. All this time he remained an employee of the Defendant company but by the contents of his dismissal letter he was a dismissed employee which makes the dismissal irregular. The Plaintiff was also dismissed without recourse of disciplinary procedures as provided by the collective agreement. From the provisions in the collective agreement, if an employee is accused of committing an offence, a disciplinary committee comprising representatives of the Defendant company and the union will be set up to go into the matter. The committee will give the employee the opportunity to state his case by calling witnesses and also questioning witnesses who testifies against him. This implies that no employee of the Defendant company will be found guilty of an offence without being given a hearing. However, in the current case the Plaintiff was dismissed without being given a hearing. The dismissal of Plaintiff from Defendant’s employment is, therefore, wrongful and of no legal effect.

Having found that the Plaintiff’s dismissal was wrongful, it follows that he should be awarded such general damages, as he will be entitled by law.

The principle on this is stated by Lord Raid in the case of Ridge v. Baldwin (1962) A. C. 40 at page 65 as follows:

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

In the instant case, it has already been established by this Court that the dismissal of the Plaintiff by the Defendant was wrongful. So by the decision in Ridge v. Baldwin (supra), the Plaintiff is entitled to be paid general damages. The question is what quantum of damages is appropriate to be paid to the Plaintiff?

Various authorities have provided different measures of damages that must be paid in cases of wrongful dismissal. Holding 5 of the case of Owusu-Afriyie v. State Hotels Corporation (1976) 1 GLR 247 states as follows:

“The entitlement of the Plaintiff to her salary as from the date of dismissal depended upon the practice of the Defendant corporation and the terms and conditions of staff, for even though the general principle was that a person was not entitled to claim money as payable under a contract unless he had earned it under the contract, this was not an absolute rule. Under the Industrial Relation Act 1965 Section 32, where an unfair practices tribunal ordered reinstatement, it could also order the employer to pay the employee a specific sum by way of compensation for any loss of earnings attributed to the unfair dismissal. Where it was shown that absence from work with the permission of the employer did not debar the employee from earning under the contract, an employee who had not worked as a result of the action of the employer could claim his salary or wages under his contract of employment. Under Article 24 of the Condition of Service, a suspended or interdicted employee was entitled to full salary if eventually exonerated by the employer. The Plaintiff had been exonerated by the Court and was therefore equally entitled to her salary.”

There is also the case of Nartey Tokoli and Ors. v. Volta Aluminum Co. Ltd. No. 2 (1989-90) 2 GLR 341 in which the Supreme Court in reviewing its own decision held in holding 2 as follows:

“The measure of damages for wrongful dismissal from employment was not confined to only loss of wages or salary, but in addition the employee was to receive his entitlements under the contract of employment. The Plaintiffs were, therefore, entitled to receive their salaries from the dates they ceased to receive them to the dates of their respective de facto termination, including an additional twelve months salary (as awarded by the High Court in the exercise of its discretion) as damages for wrongful dismissal as at respective dates of the de facto termination of their employment. As the termination of their employment was held to be void and no legal effect they remained employees de jure and would therefore be entitled to earn leave allowance, bonus, long service awards, including food packages and all other benefits said to be enjoyed on a so called gentleman agreement basis, all of which should be converted into cash if feasible as at the respective dates of the Plaintiff de facto dismissal. They were also to receive their entitlement under Article 40 of the Collective Agreement. However, in calculating their entitlements, account should be taken of any period within which any employee had obtained employment within the relevant period covered by the award.”

The Supreme Court also held in the case of G.N.T.C and Anor. v. Baiden (1991) 1 GLR 567 that where a public officer was dismissed or removed from office, without a just cause his dismissal was not only wrongful but was unconstitutional and null and void. And in all such cases, reinstatement might be ordered or if that was impracticable damages going beyond the period of notice might be awarded.

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

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

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

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

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

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

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

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

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

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

So from the authorities referred to in this judgment, since the dismissal of Plaintiff’s employment has been held to be wrongful and of no legal effect he is entitled to enjoy all benefits enjoyed by employees of the Defendant Company.

It is in evidence that the Plaintiff was earning GH¢220.31 a month. Also, at the time of his dismissal he had 75 days leave outstanding that he had not enjoyed for three years. It is also in evidence that he had not been paid his salary for four months from September, 2009 to 15th December 2009. He was not given one month’s notice or one month’s salary in lieu of notice as provided in the CBA. There has also been no increment in salary for five years. So on the authorities referred to, considering the circumstances under which the Plaintiff was summarily dismissed by the Defendant Company, he is entitled to be paid his salaries for the period that he had not been paid. He is also entitled to be paid one month’s salary in lieu of notice his outstanding leave must also be converted to cash and paid to him in addition to all this he is entitled to be paid general damages for wrongful dismissal.

On general damages the Plaintiff claims that he is currently 47 years old so it is not likely he will be able to secure work in the public sector. He should, therefore, be paid general damages to cover the period left for him to go on retirement. He is as a result demanding GH¢200,000.00 as general damages. In my opinion the Plaintiff has not been able to justify the reason why he should be paid that huge amount as general damages. More so the fact that it may not be easy for him to secure job in the public sector at that age does not mean he cannot work again. With whatever compensation he will be paid he may secure job in the informal sector. He can even invest it in interest yielding assets. So the fact that he is entitled to be paid general damages for wrongful dismissal does not mean he is entitled to be paid that huge amount as compensation. In awarding damages to the Plaintiff for wrongful dismissal the Court takes notice of the fact that he worked with the Defendant company for about eleven years. So on the authorities referred to in this judgment and considering the circumstances of this case it is the opinion of this Court that the Plaintiff is entitled to be paid 24 months’ salary as general damages. It is also ordered that his 75 days outstanding leave be commuted to cash and paid to him.

In conclusion, I enter judgment for the Plaintiff and order the Defendant to pay the Plaintiff as follows:

a. 75 days (2 1⁄2 month) salary with allowances for leave earned @ GH¢220.31 per month --- GH¢550.78

b. Four (4) months unpaid salary arrears from 1st September 2009 to 15th December 2009 @ GH¢220.31 per month --- GH¢771.08

c. One month’s salary in lieu of notice --- GH¢220.31

d. “Back pay” for 5 years to compensate for “no increment in salary” earned by staff across board --- GH¢272.00

e. 24 months salary as general damages for wrongful dismissal --- GH¢5287.44.

Plaintiff’s costs are assessed at GH¢3,000.00

COUNSEL

MR. KWAKU NTI FOR THE PLAINTIFF