DORA KUAMPAH V. GLOBAL ACCESS SERVICES LTD

JUDGMENT

ADDO J.

The Plaintiff on 28th October, 2013, per her Writ of Summons and accompanying Statement of Claim, instituted an action against the Defendant for the following reliefs:

(a). A declaration that the Plaintiff’s purported summary dismissal by the Defendant from its employment was wrongful and in contravention of the Defendant’s Employee’s Handbook, the 1992 Constitution and the Labour Act, 2003 (Act 651).

(b). An order for the payment of the Plaintiff’s net salary from the date of the purported dismissal to the date of final payment.

(c). Damages for prospective loss of promotion and loss of employment.

(d).General damages for wrongful dismissal.

(e). Interest on all sums of money found due to the Plaintiff from the date of the purported dismissal to the date of final payment.

(f). Any further or other orders as to this Court may appear just.

The Defendant on 12th November, 2013, entered appearance and filed a Statement of Defence to the action on 26th November, 2013. The Plaintiff subsequently filed a reply to the Statement of Defence on 23rd January, 2014. At the application for directions stage, the following issues were set down for the trial of the case by this Court differently constituted:

(a). Whether or not the Plaintiff violated any provisions of the Terms and Conditions of Service which regulated her employment.

(b). Whether or not the Plaintiff breached any other rule and regulation of the Defendant Company.

(c). Whether or not the Defendant gave the Plaintiff a fair hearing before dismissing her.

(d).Any other issues raised by the pleadings.

On 15th June, 2015, this Court differently constituted ordered the parties to file their respective Witness Statements on or before 2nd July, 2015, and their Pre-Trial Check-List on or before 10th July, 2015, with the case fixed for case management on 16th July, 2015. The case subsequently suffered various adjournments before this Court differently constituted until 18th October 2016, when the matter was assigned to me for determination.

On 7th November, 2016, when the case was slated for case management, the Witness Statement of the Defendant filed on 2nd June, 2016 was struck out as incompetent as the potential exhibits the Defendant was to rely on at the trial were not referenced in the Witness Statement, nor were they attached to the Witness Statement. The Defendant was ordered to file its Witness Statement on or before 11th November, 2016. Upon many adjournments from 11th November, 2016, to 24th November, 2016, through to 8th December, 2016, up to 13th February, 2017, the Defendant had failed to comply with the order of Court. Hence, on the 13th February, 2017, the Statement of Defence of the Defendant filed on 2nd June, 2016, was struck out pursuant to Order 32 Rule 7 A of C.I. 87, and the Plaintiff was asked to prove her claim.

In proof of her claim the Plaintiff tendered in evidence her Witness Statement filed on 2nd June, 2016, together with the accompanying Exhibits, Exhibits ‘A’ to ‘E’. Although the Plaintiff’s evidence stands uncontroverted in that the Defendant’s defence was struck out and therefore the Defendant could not contest the trial, it was incumbent on the Plaintiff to proof her claim.

The burden of persuasion imposed on the Plaintiff and defined under section 10 (1) of the Evidence Act 1975 [NRCD 323] is as follows:

for the purposes of this Act, the burden of persuasion means the obligation of the party to establish a requisite degree of belief concerning a fact in the mind of tribunal of fact or the Court.

The burden of producing evidence is also defined under section 11 (1) of NRCD 323 as

“...the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against the party”.

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 his 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 state of the trial. In proof of her claim, the Plaintiff tendered in evidence Exhibit ‘A’ dated 18th November, 2012, which offered the Plaintiff an appointment to the position of operator/cashier in the Defendant’s outfit on 25th November, 2002. Exhibit ‘B’ evidences the appointment of the Plaintiff to the position of a bank cashier from October, 2010, following the licensing of the Defendant to undertake savings and loans operations.

Paragraph 10 of the Plaintiff’s appointment letter provides:

Either party (the employee or the Company) may terminate this contract of employment by giving to the other party thirty (30) days’ notice or payment to the other party of an amount equal to two months’ salary of the employee in lieu of the notice.

Paragraph 11 also provided for additional grounds of termination, referencing pages 6 to 8 items 3.9.4, 3.9.5, 3.9.6, 3.9.7, 3.10 and 3.10.1.1 of the Employee Handbook of the Defendant’s Company. The Plaintiff, per exhibit ‘C’ indicated that as at April, 2011, her net salary was GH₵370.35. In paragraph 6 of her Witness Statement, the Plaintiff indicated that her net monthly salary as at June, 2013, had moved up to GH₵562.01.

It is further her case that as at 15th April, 2015, she had worked diligently with the Defendant Company for over ten years and was blameless, not having been queried at any time. She further stated that it was from 15th April, 2013, when she came under the supervisorship of one Michael Kittoe that the events leading to her summary dismissal began to unfold.

Per paragraphs 8 to 15 of her Witness Statement, the Plaintiff testified that her new supervisor, contrary to laid down procedure, pressurised her to pay huge sums of money to some unidentified persons by different identification cards. That when she refused to do same, the supervisor took offence, insulting her and daring her to report to the Defendant’s Chief Executive Officer. Events as unfolding brought the matter up before her superiors and the Plaintiff was asked to pen her version of the facts in writing, and which she captured in Exhibit ‘D’. At a meeting with her superiors and immediate supervisor, the Plaintiff states that she was told her immediate supervisor had written a report alleging that she, the Plaintiff, had various identity cards of customers in her possession to whom she paid regularly, various sums and received 50% of such payments.

The Plaintiff states in her evidence-in-chief, per paragraphs 20 to 27 of her Witness Statement, that she did not see a copy of the said report, neither was her explanation for the cards in her possession taken. That she was not given an opportunity to confront her supervisor about his allegations. Besides her superiors did not see the said identity cards but merely told her to leave, with an indication that the matter will be investigated.

The Plaintiff states in paragraph 27 of her Witness Statement that:

I did not hear anything from the Defendant until I was informed of my summary dismissal upon which I went to the Head office to collect the letter of summary dismissal dated June 27, 2013. Copy of letter is annexed hereto and marked as Exhibit ‘E’.

The Plaintiff concludes that the treatment meted out to her in dismissing her is unlawful in that all the allegations against her were untrue and for the fact that she had done nothing untoward and for which she had been warned. That if even there were warnings, such warnings could not have been verbal. She further testifies that since she did not misconduct herself but rather complained of the misconduct of her immediate supervisor to her superiors, the resulting effect in dismissing her was indeed unlawful.

This piece of evidence of the Plaintiff stands uncontroverted as the Defendant chose not to contest the claim of the Plaintiff. I shall now proceed to determine whether the conduct of the Defendant in summarily dismissing the Plaintiff in the light of this piece of evidence ‘is just and fair’ having regard to the terms of her contract, the Labour Act 1971 and the Constitution of the Republic of Ghana, 1992. Exhibit ‘B’ dated May, 2010, is the letter of appointment of the Plaintiff to the position of Bank cashier in the Defendant’s employment set up. Per paragraph 10 of Exhibit ‘B’, the appointment letter of the Plaintiff, the employment contract of the Plaintiff could be terminated by giving her 30 days’ notice or payment of two months’ salary in lieu of notice.

Paragraph 11 of Exhibit ‘B’ also sets additional grounds for termination by reference to the provisions of the company’s Employee Handbook.

Having regard to Exhibit ‘E’ dated 27th June, 2013, which is the letter summarily dismissing the Plaintiff, the Plaintiff was dismissed pursuant to Section 3.9.5 of the Employee Handbook. The Section 3.9.5 states:

(a). Summary dismissal may be effected by the Chief Executive Officer for just and reasonable causes involving dishonestly, fraud, theft and wilful gross misconduct.

(b). An employee aiding and abetting another employee to commit dishonesty, fraud, theft or wilful gross misconduct on the company shall render himself herself liable to dismissal from the service. (The emphasis is mine).

From Exhibit ‘E’ and Section 3.9.5 of the Employee Handbook, since the Plaintiff’s contract of employment was not terminated but rather that the Plaintiff was dismissed, no duty was incumbent on the Defendant to give the Plaintiff 30 days’ notice or two months’ salary in lieu of notice. Per Section 3.9.5 of the Defendant’s Employee Handbook 2, upon which the Plaintiff’s dismissal was hinged, the summary dismissal of the Plaintiff should have been effected by the Chief Executive Officer of the Defendant and not the Head of Human Resource as Exhibit ‘E’ indicates. Besides, there should have been established a “just and reasonable cause involving dishonesty, fraud, theft and wilful gross misconduct against the Plaintiff or that she must have abetted or aided in such misconduct.

The Plaintiff indicates that she did not misconducted herself in any such way as to warrant her dismissal but rather she reported a supervisor who was pushing her to act contrary to the laid down procedure of the company as contained in exhibit ‘D’. In paragraph 26 and 27 of the Plaintiff’s Witness Statement she states that at the meeting in which she and her supervisor were called, she was told by her superiors that the matter would be investigated. That she did not hear neither was she involved in any such investigations until she was given Exhibit ‘E’, summarily dismissing her. In view of this piece of evidence which stands uncontroverted could it be said that the Plaintiffs dismissal was lawful?

In the case of Laguna v. Ghana Commercial Bank (2000-2006) SCGLR 338 at page 401- 402, Date-Bah JSC (as he then was) said:

I am not persuaded that in a commercial setting, in the absence of a contractual provision to the contrary, an employer is bound to comply with the rules of natural justice before dismissing an employee for misconduct. At common law, it is enough if facts objectively establish cause for dismissal.

Also inAboagye v. Ghana Commercial Bank (2001-2002) SCGLR 797 at page 828-831, Adzoe JSC (as he then was) correctly expounded the common law’s position on summary dismissal. He stated at page 828 to 829 as follows:

But it has been argued that the conduct of the Plaintiff viewed in the context of the nature of the business of banking constitutes such grave misconduct that it was lawful to dismiss him even without a hearing.

The cases of Lever Brothers Ghana Ltd. v. Annan (1984-86) 2 GLR 385, Presbyterian Hospital, Agogo v. Boateng (1984-86) 2 GLR 523, Edward Nasser and Co. Ltd v. Abu Jawdi (1965) 2 GLR 532 and Halsbury’s laws of England (3rd edition) at page 85 paragraph 938 were cited in support. The principle relied on is as follows:

A servant whose conduct is incompatible with the faithful discharge of his duty to his master may be dismissed ....... Dismissal is also justified in the case of a servant ...... if his conduct has been such that it would be injurious to be master’s business to retain him.

Per the decisions cited supra, an employee may summarily be dismissed without a hearing or a reason. The dismissal must however be hinged on proof of some grave misconduct which is incompatible with the faithful discharge of his/her duty to the master. Besides, per Section 3.9.5 of the Employees Handbook, the dismissal must be based on just and reasonable cause of dishonesty, fraud, theft and wilful gross misconduct. A mere report of a supervisor whose conduct is incompatible with the Defendant’s laid down procedure, coupled with the said supervisor also levelling allegations against the Plaintiff, per the unchallenged evidence of the Plaintiff, cannot ground Section 3.9.5 of the Employee Handbook regulating the employment relations of the parties with respect to summary dismissal.

The evidence before this Court is that allegations were levelled by the Plaintiff’s immediate supervisor to the Plaintiff’s superiors. There is no evidence before this Court that the allegations were proved, and even if proved, qualified to ground summary dismissal as prescribed by Section 3.9.5 of the Employee Handbook regulating the employment relations of the parties herein. This is because although the letter summarily dismissing the Plaintiff indicates that the Plaintiff misconducted herself, contrary to the Defendant’s laid down procedure, same stands unproved in this Court.

On the basis of the reasoning above, the Plaintiff’s relief (a) succeeds as her dismissal is in contravention of the Defendant’s Employee Handbook. The reason being that contrary to the requirement that the dismissal be carried out by the Chief Executive Officer, I see from the letter of dismissal of the Plaintiff that it is was the Human Resource Manager of the Defendant who effected same. Besides, there is no evidence of proven misconduct by the Plaintiff as prescribed by Section 3.9.5 of the Employee’s Handbook before the Court.

Further, in line with what is fair and just dismissal as prescribed by Section 3.9.5 of the Employees Handbook of the Defendant Company, Section 62 of the Labour Act 2003 (Act 651) states inter alia that termination of a worker’s employment is fair if the contract of employment is terminated by the Employer on any of the following grounds:

(b) the proven misconduct of the worker.

The evidence before this Court does not indicate that the Plaintiff’s employment was not curtailed upon any proven misconduct and therefore her dismissal also sins against 62 of Act (651).

Consequent upon relief (a) as granted, the Defendant is hereby ordered to pay all arrears of the Plaintiff’s salary from 27th June, 2013, when it purported to summarily dismiss the Plaintiff to the date of this judgment and not the date final payment as prayed by the Plaintiff. The Plaintiff’s only evidence as adduced in support of her relief (c) (damages for prospective loss of promotion and loss of employment) is found in paragraph 29 of her witness statement, which states:

That I am unable to find alternative employment due to the fact that I was dismissed summarily and no employer will employ me.

The Plaintiff is heard to be saying that on the basis of her dismissal supposedly occasioned by some proven misconduct, she does not have a good testimonial with regard to her past employment to convince any organisation to employ her.

With respect to her prospective chances of promotion in the Defendant’s employment, I am unable to assess her prospective loss of promotion from 27th June, 2013, when she was dismissed, as the Plaintiff did not adduce evidence as to her capabilities and educational strength to enable the Court to assess same. Besides, there is also no evidence before the Court that she was due for some promotions when her unfortunate dismissal occurred.

For her inability to procure alternative employment as a result of the basis for her dismissal from the Defendant’s employment, the Plaintiff did not put before this Court any evidence of attempts to secure alternative employments and which attempts failed by reason of the grounds for her summary dismissal. Relief (c) is therefore dismissed as same stands unproved. I shall award in favour of the Plaintiff GH₵5,000.00 as general damages for her wrongful dismissal that has caused the Plaintiff to be unemployed for a period of about four (4) years. Our Courts have held the view that interest should be paid on damages awarded to the aggrieved Plaintiff. In Nkegbe v. Africa Motors Ltd (1978) GLR 32, the Court took into account the fact that the case took six (6) years to come to trial and awarded interest in damages.

I hereby further order that interest at the prevailing Commercial bank lending rate be paid on all sums as ordered to be paid to the Plaintiff by the Defendant from the date of the purported dismissal to the date of final payment. Costs of GH¢5,000.00 awarded in favour of the Plaintiff against the Defendant.

COUNSEL

JULIUS ASINYO ESQ. HOLDING BRIEF FOR ARCHIE DANSO ESQ; FOR THE PLAINTIFF.

OLIVER ATSU ABADA ESQ. FOR THE DEFENDANT.