YAW ASARE DARKO V. GHANA PORT & HARBOUR AUTHORITY

JUDGMENT

KUSI-APPIAH, J.A.

By his amended writ of summons at the High Court, Tema, the plaintiff/respondent (hereinafter referred to as the plaintiff) sued the defendant/appellant (hereinafter simply referred to as the defendant) claiming the following reliefs:

(1) Damages for constructive wrongful dismissal

(2) Exemplary damages

(3) An order compelling the defendant to compute and pay plaintiff all his terminal benefits together with Interest

(4) Alternatively to 1 and 2 above an order that defendant computes and pays to plaintiff redundancy benefits due to him with interest by reason of the redundancy exercise embarked upon by the Defendant Authority.

The facts relied on by the parties to establish their respective claims were not complicated. The plaintiff's case was that he is a lawyer by profession and was employed by the defendant on probation as legal officer on 1st February, 1992 and confirmed on 1st February 1993. The plaintiff averred that until 28th September, 2001, he had attained the rank of a Senior Legal Officer in the Legal Department of the Defendant Authority. On that date, (28th September, 2001) the plaintiff decided to resign from his employment, but his employers (defendant) did not accept his resignation. They contended that he had a case to answer on his role in the arrest of vessels "MV ZIRIA" and FLORIA 1" and was subsequently interdicted. As a result, a committee was set up by the management of the defendant company to go into the matter and at the end of the enquiry, the plaintiff's interdiction was lifted. Subsequently, the plaintiff was informed by his employers that they had accepted his earlier resignation. When he protested to the chairman of the Board of Directors, against the late acceptance of his resignation the decision was rescinded. On or about 24th September 2002, he was posted to the Takoradi Port as Acting Port Personnel and Administration Manager.

The plaintiff further averred that his interdiction and suspension from leave by the defendant was malicious and that his new posting to Takoradi Port as Acting Personnel and Administration Manager was an act of bad faith on the part of his employers.

According to the plaintiff, the following acts constituted a fundamental breach of the terms of his employment contract with the defendant:

(i) His removal from contractual duties as legal officer to essentially non-legal duties of Personnel and Ports Management;

(ii) His transfer from Tema to far away Takoradi;

(iii) Not well trained for his new Job at Personnel

He claims that he had no desire to relinquish his employment but was compelled to do so by the Intolerable and unbearable conduct of the defendant. He therefore, resigned from his employment on 31st January, 2003 on the basis that the defendant had constructively dismissed him.

For their part, the defendant company in their amended statement of defence denied that the plaintiff was employed as a legal officer, and averred that he was employed as a Management Trainee in February, 1992. Defendant averred further that plaintiff attained the rank of Senior Legal Officer on 1st January 1996 and was again promoted in January, 1999. According to the defendants, the plaintiff was at all material times aware of the arrest of the vessels "M.V. ZIRIA and M.V. FLORIA" and was required to appear before a Committee of Inquiry set up by defendant to investigate the said arrest and subsequent events. For this reason, they could not accept plaintiff's resignation.

The defendant denied any malice in interdicting and suspending plaintiff from leave and maintained that they conducted itself within the scope of its rules and procedures. They claimed that the Board of defendant's company considered the report of the Committee of Inquiry and based upon that lifted the interdiction of the plaintiff from 9th September 2002. And following from that, accepted plaintiff's desire to continue working with them and re-assigned him to Takoradi as part of a restructuring exercise.

The defendant says that the re-assignment was not an act of bad faith but was a promotion. They contended that under the defendant's conditions of service, an officer could be transferred or re-deployed as the service of the defendant company required. The defendant therefore concluded that the plaintiff was not in any way compelled to resign his employment and that he did so on his own accord. After a full trial, the learned trial Judge, on 22nd December, 2004 entered judgment for the plaintiff against the defendant herein for:—

(a) An Order that plaintiff be paid all his salary together with all his entitlements for a period of not more than one year to be calculated from the date of termination of employment.

(b) Interest on the said amount to be calculated at the prevailing bank rate.

(c) An order that plaintiff be paid additional twenty four months salary in addition to all his benefits.

(d) Costs of ¢20,000,000.00.

The defendant was aggrieved by this judgment and appealed against it to this court on the following grounds:

(1) That the ruling was against the weight of evidence adduced at the trial

(2) The trial Judge erred in ruling that the plaintiff was constructively dismissed by the management of the defendant

(3) That the trial Judge erred in ruling that defendant acted in bad faith in interdicting plaintiff.

Arguing on behalf of the appellants, Mr. K. K. Sey began with grounds 1 and 2 together, and submitted that the trial Judge failed to properly evaluate the evidence of the defendant. He contended that as the plaintiff's case was that the conduct of defendant "after" "the Committee of Inquiry had submitted its report constructively dismissed him, it was wrong for the learned trial Judge to extensively refer to matters which occurred "before" plaintiff submitted his initial resignation on or about 28th September, 2001 as the basis for finding that he had been constructively dismissed. Learned Counsel argued that at the time of his (resignation) letter of 28th September, 2001, the plaintiff had not alleged that any act of Defendant had amounted to constructive dismissal and submitted that none existed at that time. He submitted further that the only matters which could conceivably, which they denied, form the basis of constructive dismissal are those which took place after plaintiff was notified that his initial resignation had been accepted by the Defendant. Counsel for the defendant maintained that the re-assignment of the plaintiff as Acting Port Personnel and Administration Manager did not in anyway contravene the Senior Staff conditions of Service which emphatically states that a serving officer could be redeployed to any section of the Authority or transferred to any of the Authority's branches as the exigency of work requires.

He reiterated that the plaintiff was first appointed as a Management trainee in February 1992 for which his progression in the defendant's company was not limited to the Legal Department alone. His transfer to Takoradi was for a higher position with added responsibility and cannot in anyway be seen as constructive dismissal and/or determination of his contract of employment. Counsel therefore submitted that the trial court erred in holding that the plaintiff was not subject to administrative change and promotion in the same way as any other Senior Management of the Defendant.

Secondly, counsel for the defendant attacked the trial court's finding that the plaintiff had no training for the Job as Personnel and Administration Manager nor any intended for him as incorrect and without basis. He submitted that the plaintiff would have been taken through an induction course that is why he was appointed as Acting Port Personnel and Administration Manager until he was confirmed by the defendant.

He concluded that had the trial High Court properly evaluated the evidence of the defendant, it would have found that none of the essential ingredients of constructive dismissal were established before it. Counsel therefore, invited this court to set aside the decision of the court below including the consequential awards.

By way of reply, Learned Counsel for the plaintiff contended that the posting of the plaintiff to Takoradi to undertake the duties of Acting Ports Manager which is outside the purview of his regular employment constitutes an unreasonable change in the core duties to which the plaintiff was contractually employed. He submitted that this new posting constitutes such a fundamental change or variation of the plaintiff's conditions of employment as to be tantamount to a constructive wrongful dismissal by the defendant.

The main issue in this appeal is whether or not the plaintiff's contract of employment was constructively terminated by the defendant. In other words, was the plaintiff technically or wrongfully dismissed by his employers? Before this crucial issue is resolved I must say that it is apparent from the record of appeal that the plaintiff tendered his letter of resignation Exhibit "4", dated 31st October 2002 to the defendant barely one week after his re-assignment and posting to Takoradi as Acting Port Personnel and Administration Manager. He considered his new position at Takoradi Port as re-deployment of his services as Senior Legal Officer with the defendant Authority.

But the basic question here is; Was there any breach of the terms and conditions of employment of the plaintiff by the defendant in re-assigning and posting him to Takoradi as Acting Port Personnel and Administration Manager? In other words, has the plaintiff's position as Senior Legal Officer been substantially changed to his detriment by his re-assignment and posting to Takoradi as Acting Ports Manager by the defendant?

The plaintiff's employment was governed by the 1997 Collective Agreement which set out the conditions of service for Senior Officer of Ghana Ports and Harbour Authority Exhibit "C".

Article 10 of the said provision reads

"10. The duties of the officer shall include the normal duties of the officer to which he had been appointed "and any other duties" that the Authority may call upon him to perform."

(Emphasis mine).

In her judgment at page 133 of the record of appeal, the Learned High Court Judge in interpreting Article 10 of the conditions of service for Senior Officers of Ghana Ports and Harbour Authority Exhibit "C" delivered herself as follows:—

“...........Thus the normal duty of plaintiff for which he was appointed was to handle legal issues. And Article 10 says further that the normal duties include any other duties that the authority may call upon the officer to perform. The "other duties" which the Authority may call upon an officer to perform to my mind, cannot take the place of normal duties such as to completely vary the normal duties...................."

The Learned Judge continued at page 135 of the record of appeal:—

"Plaintiff in this instant suit, as was the situation in the cases cited above, had his normal duties unilaterally varied by defendant, in breach of the contact of employment. And as in the said cases, plaintiff should succeed on that leg alone for constructive dismissal.................."

Reading that sentence (in Article 10 of the Collective Agreement Exhibit "C" which states: "and any other duties") carefully, I hold that the Learned trial Judge misconceived and misapplied the meaning and import of that provision in the Collective Agreement. She gave it rather a narrow meaning.

Reading the provision as a whole, it should be given a wider meaning. In other words, the word "and any other duties" in the provision must not be read, "ejusdem generis" with the preceding clause.

The whole sentence of section 10 of the Collective Agreement Exhibit "C" to my mind means that an officer who has been appointed as for example, to a Legal position can be re-assigned to another department in the company to which his expertise and experience shall be reasonably related and required. Further, this "other duties" must not be derogation or diminution of his earlier position. In other words, the word "any other duties" should not necessarily be of the same designation or description as the first part of the sentence or the initial appointment. "Any other duties" must mean any other permissible or related work It is pertinent to note that the Learned trial Judge's interpretation of the Section would mean that a legal officer with the requisite competence and experience can never rise to the position of General Manager, Deputy Managing-Director or the Managing Director of the company. This, with due deference would be untenable. In any case, if it can be said that the plaintiff's new appointment is substantially unrelated to his initial appointment as a legal officer, then it can be inferred that his appointment has been changed to his detriment. If not, then, no wrong had been done to him and there would be no breach of his contract.

So what is the position here? The bone of contention between the parties herein is the re-assigning of the plaintiff to a new position as Acting Port Personnel Manager. While the plaintiff claimed that his new assignment is a substantial variation of the core work for which he was appointed; the defendant contended otherwise. To resolve this issue, I think it is necessary to compare the job of a legal officer to his new position as Personnel and Administration Manager in the defendants company. The work of a legal officer is normally to handle all legal matters affecting the company. And legal matters can be said to be those matters or issues for which an expertise of a lawyer is required. On the other hand, the work of Personnel and Administration Manager, are all those matters pertaining to the appointment of the employees of the company, i.e. their conditions of service, welfare, dismissals and termination and other incidental matters reasonably related to the foregoing. Administration in general relates to the mechanics and the working processes in or of the company.

There is no doubt that this new position of Port Personnel and Administration Manager entails a much broader scope or work than that of a legal officer. For, it virtually encompasses the whole workings or mechanisms of a company than that of a legal department. It cannot also be gainsaid that working as a Personnel and Administration Manager entails the employment of legal knowledge. Indeed the lawyer is equally if not more competent to work in this broader sphere than any other person. One does not have to go too far to see that a lot of legal issues crop up in Personnel Management and General Administration.

I hold therefore, that the Learned trial Judge took a narrow view of the plaintiff new position when she held that his normal duties had been unilaterally varied by the defendant, in breach of the contract of employment and that the plaintiff was not subject to administrative changes and promotion in the same way as any other senior management of the defendant.

The true position is that the plaintiff's new assignment is not a substantial variation or diminution of the core work for which he was appointed.

Articles 30 and 31 of the Collective Agreement of the parties herein, that is Exhibit "C", which cover posting and transfer of senior staff of defendant's company are in simple and lucid language. They admit of no interpretation. Infact, they strengthen my position that the appointment of a legal officer does not mean that the legal officer must be permanently pegged at the legal office: The relevant parts of Articles 30 and 31 read as follows:—

“30. On appointment, an officer may be posted to any of the Authority's branches as the exigencies of the service require.“31. A serving officer may also be transferred from one station to another.”

Under Articles 30 and 31 of the Collective Agreement for Senior Officers of defendant's Company, Exhibit C, the plaintiff like any other employee of the defendants was a statutory employee and thus subject to the Collective Agreement. He could thus be re-deployed to any section of the defendant's company or transferred to any of the company's Authority's branches as the exigency of work required so long as it will not lead to his detriment in terms of loss of income or remuneration.

It appears to me that since by his terms of employment the plaintiff can be redeployed to any section of the defendants company or transferred to any of the Authority's branches where his services are needed, there is nothing wrong with his reassignment or transfer to Takoradi as Acting Ports Personnel and Administration Manager by the defendant. In a claim for wrongful or constructive dismissal, the plaintiff must prove the terms of his employment and then prove that his dismissal is in breach of the said terms, or that it contravenes some statutory provisions for the time being regulating employment. See MORGAN and OTHERS V. PARKINSON HOWARD LTD (1961) 1 GLR 68. STATE HOTEL CORPORATION V. OWUSU AFRIYIE (1977) 2 GLR 488 C.A. The facts in STATE HOTELS case, Supra, are on all fours with the current case before this court. The headnotes to the above case states: The appellant employed the respondent as an assistant restaurant manageress. In October 1970 she was transferred from the Ambassador Hotel to the Continental Hotel. She did not report for duty for eleven days as she had petitioned the Ministry of Trade against her transfer in what she alleged was an inferior capacity, namely as pastry chef. When she did report for duty she was informed that the hotel did not require a pastry chef and was asked to work as a sauce cook, which she interpreted as a further demotion. From 18 November she did not attend work and on 3 December she was informsic by the appellants through the general manager that because she had absented herself from duty for a continuous period of over ten days she was deemed to have abandoned her post. The Minister endorsed the appellants’ action but nevertheless requested the respondent to report for work and do whatever duties were assigned to her. She reported on 18 December and on subsequent days visited the hotel without reporting officially or doing any work. In 1972 she issued a writ against the appellants claiming damages for wrongful dismissal.

The trial Judge found that the job of a sauce cook was not relative to that of a pastry cook and that the respondent was entitled to protest. He further held that in the circumstances the respondent had not abandoned her post and that the letter of 3 December terminating her engagement was ultra vires the powers of the Managing Director. The trial Court ordered her reinstatement with all her back pay. The appellants appealed to the Court of Appeal. Allowing the appeal, the Court of Appeal held that the evidence adduced at the trial was preponderantly against the claims of the plaintiff/respondent and that her action should have been dismissed by the trial High Court. The court further held that the respondent could not establish that she was given derogatory work in order to embarrass her and compel her to resign.

In this appeal since the plaintiff alleged that his transfer to Takoradi as Acting Port Manager should be regarded as a variation or demotion by all standards of his core duties as a legal officer which forced him out of employment, it was incumbent upon him to adduce evidence to establish this allegation. However, apart from his own evidence, there was no other evidence to support what he said. On the contrary, the defendant adduced evidence through D.W.1, Kwabena Adansi, Bonna General Manager in charge of Administration and D.W.2 Richard John Dei General Manager, Legal Department to demonstrate that the position of Acting Ports Personnel and Administration Manager is higher than the rank of Senior Legal Officer in order of command and that the plaintiff was not the first legal officer to be re-assigned as Ports Personnel and Administration Manager. The record shows that Mr Daniel Ameley Kofi, the then Chief Legal Officer was re-assigned to Takoradi as Ports Personnel Manager.

I therefore, hold that the plaintiff was not able to establish that he was compelled to resign because he was given derogatory work in order to embarrass, oppress and victimized sic him by his employer. In effect, the plaintiff has not been constructively dismissed by the defendant as he claims. On the other hand, I find that he had been given an enhanced position as Acting Ports Personnel and Administration Manager. His benefits, entitlements, emolument and privileges have also not been diminished in any way. Rather, he is to be on a higher level of service from level 4 to level 3.

The third ground which I believe was put down because of the exemplary damages awarded against the defendant was that the trial Judge erred in ruling that the defendant acted in bad faith in interdicting the plaintiff. As far as interdiction goes, there was a case pending against the plaintiff over his role in the arrest and sale of the two vessels at the Port of Tema and subsequent events. His employer had reasonable ground to suspect him of conflict of interest, and to enable the employer conduct a thorough and independent investigation without any let or hindrance in the matter, the defendant interdicted him.

On the issue of plaintiff's initial resignation, I do not think that merely asking the plaintiff to hold on until after the Committee of Inquiry had completed its work amounted to evidence of malice or bad faith on the part of the defendant.

Neither did his interdiction and suspension from leave also amount to malice or bad faith. The defendant did not accept the plaintiff's resignation of 28th September, 2001 because he was due to appear before a Committee of Inquiry set up by the management of defendant's company to investigate him. The withholding of the plaintiff's resignation, his interdiction and recall from leave were all done to ensure his necessary presence at the inquiry. For, if the defendant had done otherwise, there would have been no obligation on the plaintiff to attend the sitting(s) of the committee of inquiry. So it was a prudent decision on the part of the defendant to ensure that all issues that had been raised in the inquiry were completely and effectually determined before the plaintiff got out of hand. So in appropriate case, (as in this case), the employer will be entitled to put the letter of resignation on hold before the final determination of the pending matter.

For these reasons, I hold that the trial Judge fell into a grave error of law when he held that the defendant acted in bad faith and with malice in withholding the plaintiff's initial resignation, interdicting and recalling him from leave to appear before a committee of inquiry.

Having found that the plaintiff was not in any way constructively or wrongful dismissed by his employer and that he resigned from his employment on his own accord when he was re-assigned to Takoradi as Acting Ports Manager, I find that this sufficiently disposes of the appeal and I would not think that any purpose would be served by dealing with the issue of consequential damages.

In the premises, I would allow the appeal and set aside the judgment of the High Court, Tema dated 22nd December, 2004.

COUNSEL

MR. K. K. SEY FOR THE DEFENDANT/APPELLANT

MR EMMANUEL AVENORGBO FOR MR JAMES MENSAH FOR THE PLAINTIFF/ RESPONDENT