AKUFO AND OTHERS V. VOLTA ALUMINIUM CO LTD

Brobbey JA.

The respondent company employed the appellants until 16 May 1994 when they were declared redundant. They were paid two months’ salary in lieu of notice and their employment terminated. Dissatisfied with the two months’ salary, they issued a writ of summons at the High Court, Tema claiming:

“(i) A declaration that the calculation of their terminal benefits should be based on the amount of remuneration which would have accrued to them by 15 July 1994.

(ii) An order directing the defendants to pay plaintiffs the balance of their terminal benefits on (i) above.

(iii) Interest on the balance from the day it became due to the date of payment.”

After the trial at the High Court, Tema judgment was given in favour of the respondent company. Dissatisfied with the judgment, the appellants appealed to this court on the main grounds that:

“(a) The learned trial judge erred in law when he held that the calculation of the plaintiffs’ end-of-service benefits (redundancy) benefits ought not to be based on the amount of remuneration which would have accrued to them by 15 July 1994.

(b) The learned trial judge misconceived the legal point in controversy when he held that the calculation of the plaintiffs’ end-of-service benefits on the basis that the plaintiffs’ employment had been terminated with effect from the 16 May 1994 was proper, since by the contract of employment, the ‘Labour Agreement’, the date of termination of employment was not necessarily the basis upon which end-of-service benefits were to be calculated.

(c) The learned trial judge erred in law when he held that the plaintiffs’ contention proceeds on the fallacy of ‘if we had been given two months’ notice’ when this was not the factual situation.

(d) The learned trial judgeerred in law when he held that article 13 and article 15 of the labour agreement deal with two sets of completely different situations, and that article 13 cannot be of assistance in the interpretation of article 15.

Counsel for the appellants argued grounds (a) and (b) together. He contended that the appellants’ employment was regulated by the labour agreement which was tendered as exhibit A. Article 15(e) of exhibit A contained the following provision: “Employees to be declared redundant will be given two months’ notice or paid in lieu.” It was upon reliance on this clause that the respondent paid the appellants the two months’ salary in lieu of notice

Counsel contended further that it was wrong to have paid the appellants no more than the two months’ salary in lieu of notice because at the time of the termination of the appointments the wage opener was about to begin and infact was started within the period between the time of their termination and the notice period prescribed under article 15(e). Counsel bases his argument on the fact that article 13(a) which also deals with dismissals generally requires that where an employee is to be given notice of termination of service, he is to be paid “a sum equal to the amount of remuneration which would have accrued to him during the period of notice.” In his view, articles 15(e) and 13(a) should be read together in order to give exhibit A its real meaning and effect.

Counsel for the respondents opposed his arguments. His contention was that articles 15(e) and 13(a) are distinct and different and deal with entirely different situations, namely “redundancy” and “leaving the service of the company.” He further argued that the respondent as an employer had the discretion to either give notice of two months or pay two months’ salary in lieu. It opted to give them two months’ salary instead of notice and no one could fault that. He stressed that since the employer had the discretion to choose one or the other options, it could not be said to have acted wrongly after it had exercised one. The trial judge in his judgment held in favour of the contention that the employer was right in paying the entitlements on the basis of the salary of the appellants as at the time of the termination of their employment, ie May 1994.

There is no doubt that the employment of the appellants was governed by exhibit A. By article 52(1) of exhibit A, the agreement was to last for three years. The same article contained the provision that there was to be a wage re-opening to review wages eighteen months from the end of the agreement. In effect, wage reopening was part of the agreement. At the time the appellants were laid off, the wage re-opening had not commenced. It was commenced, according to the evidence, on 1 July 1994. The two months’ pay from 16 May expired on 16 July. If the contention of counsel for the respondent is accepted and the effective date of the termination of employment were taken to be the 16 May when the entitlements were paid, then those who were paid could be taken to have severed their relations with the company and could not be affected by the wage re-opening.

That reasoning would, however, not be accurate or fair to the appellants for the following reasons: The wage re-opening resulted in increasing the earnings of the employees. In fact the evidence showed that the increase was as much as 71.25 per cent. To peg the entitlements of the appellants to the time of their termination on 16 May would mean a diminution in the emoluments of the appellants because on 16 May, the emoluments were less by 71.25 per cent. The respondents themselves realised this fact and therefore gave the appellants what they described as “Goodwill payment to employees declared redundant on 16 May 1994 to make up for the apparent financial loss prior to an anticipated 60 per cent wage settlement.” This could also be found in the Valco Newsletter tendered as exhibit B, pp 3-4.

The reality of the situation was that the respondent was faced with two choices: one choice was to make the emoluments of the employees worse off by obvious diminution in their entitlements if they were given entitlements based on their earning as at 1 May 1994; the second choice was based on the wage re-opening which would have enhanced the emoluments of the employees by the 71.25 per cent which the wage re-opening brought about. To my mind, there are four reasons why it was wrong for the employer to have exercised the discretion which resulted in the diminution of the emoluments of the appellants as employees. In the first place, where an employer has to exercise any discretion which would reduce the employees’ emoluments as against that which would enhance those emoluments, commonsense dictates that latter the should be preferred.

Secondly, the generally accepted principle is that the earnings of an employee cannot be reduced unless for stated misconduct or stated just cause. There is no evidence that the employees did anything amounting to misconduct, which justified a reduction in their emoluments.

Thirdly, the employers themselves realised that the emoluments of the workers would be reduced and that was evidenced by their goodwill payment. That realisation alone was enough support for the view that the employees were not being fairly treated by the payment based on the day of their termination. If the employers realised that the employees would be taking less emoluments home by that mode of payment, why should they be allowed to make that payment to the employees? Was it because the employer had greater bargaining power? If that were the correct situation, would that not amount to encouraging employers to take undue advantage of situations warranting resort to redundancy to lay off workers and thereby bring about reduction in the earnings of workers? That will surely be against public policy.

Fourthly, it was argued that when the redundancy exercise took place, and during the wage re-opening, there were negotiations between the employers and the workers represented by their local union officials. A certain package was agreed upon and the employees collected their portions of the package. Therefore, if the package was unsatisfactory, the employees had their union officials to blame and not the employers. The short answer to this instrument is to be found in the Industrial Relations Act, 1965 (Act 299), s 10(4) which reads as follows:

“(4) The rights conferred on an employee by a collective agreement under this Act shall be rights which cannot be waived by the employee and, if there is any conflict between a term of a collective agreement under this Act and the terms of any contract not contained in such a collective agreement, then the collective agreement shall prevail. . .”

This subsection was the subject-matter for consideration in Nartey-Tokoli v. Volta Aluminium Co Ltd (No 2) [1989-90] 2 GLR 341, SC in which it was held, as stated in the headnote, holding (1) that:

“. . . (ii) section 10(2) and (4) of Act 299 specifically and mandatorily denied a right to an employee covered by a collective agreement to waive such rights for new ones; and (iii) in purporting to declare redundancy the defendants did not follow the procedural machinery set up under the collective agreement in breach of section 10 of Act 299. The plaintiffs were therefore entitled to the declaration that the purported termination of their employment was null and void and of no effect.”

In the instant case, when union officials were authorised to negotiate, on behalf of workers, there was the obvious presumption that they were required to negotiate fairly and in the best interest of the workers. The union officials surely had no mandate to negotiate in such a way as to give away the rights of workers. For reasons stated below, articles 13 and 15 should be read together in order to give correct and full interpretation to exhibit A. On the face of the provisions of article 13, if the union officials proceeded to negotiate for 60 per cent instead of 71.25 per cent, the contract arising out of the negotiation contravened section 10(4) of Act 299 and was therefore void for the simple reason that the negotiators had given away the rights of the workers which they could not do under Act 299, s 10(4). The employees were not obliged to accept the 60 per cent merely because it was the result of negotiations conducted on their behalf by their union officials. The fact that the negotiation were void in the terms of Act 299 is sufficient ground to set aside what was agreed upon. When that is set aside, the question which will arise is whether the employees made a sufficient case for the court to grant them what they have requested in their claim. In my view, they have made more than necessary to warrant being given what they claim in their writ.

As stated already, the employers themselves knew that by paying the workers their entitlements based on their salary as on the day of the termination of their employment, the workers had been deprived of their rights in the form of lost benefits as reflected in the portion of exhibit B quoted above. At the end of the wage re-opening, “all employees across board were given 71.2 per cent increase.” If the employees had been given notice, that would have been how much they would have earned. If there had been no redundancy and they had remained at post, that was how much they would have earned.

When the facts are carefully analysed, one cannot help but come to the conclusion that by the fact of the redundancy, the employers had saved for the company the difference between what actually was paid to the employees and the 71.2 per cent. No court of equity and conscience should allow or even encourage employers, using a declaration of redundancy, to benefit from its employees by depriving them of what they would have earned or would have been entitled to. This should be so, even if it is argued that the redundancy was not the making of the employer or was not brought about by the employer, like the instant case where the redundancy was brought about by a request of the Volta River Authority for Valco to shut down some of its plants. If the employer should not be blamed for the redundancy because it did not bring it about, the employees should equally not be blamed because they too did not bring about the state of redundancy.

The logical sequel to all the above is that wherever there is an agreement with the provision that an employer may exercise the option to give notice or make payment in lieu of notice, there is an inherent obligation on all the parties to such an agreement to be just and fair to one another in the implementation of that provision. In the instant case, the employer had the duty to have been fair to the employees by not paying them what amounted to obvious diminution of their earnings. In fact this view is emphasised in the labour agreement, exhibit A, article 13(a) of which provides that:

“If the company terminates the services of a regular employee other than in case of summary dismissal, the company shall give to the employee at least fourteen (14) days’ notice to expire not earlier than the last day of current month or pay to the employee a sum equal to the amount of remuneration which would have accrued to him during the period of notice”

(The emphasis is mine.)

It is quite important to note that reference in article 13(a) is to “period of notice”, not day of payment. In the instant case, period of notice covers 16 May to 15 July. This provision is binding on the employers and should have been applied in calculating the entitlements of the employees. If it had been applied, it would have dawned on the employers that the exercise of the discretion to give notice or make payment in lieu was qualified by this provision that the amount to be paid in lieu should be equal to the amount of remuneration which would have accrued to the workers during the period of notice. That would have been the justification for paying the employees on the basis of the 71.26 per cent which all employees across board were to earn after the wage re-opening. So long as the wage re-opening covered part of the period of two month’s notice, the workers who had to be paid over a period, which covered that period, should receive what would have been given to them within that period. What is the basis for the discrimination that under section 13(a) an employee whose services were terminated should be fairly treated by being given what would have accrued to him during the period of notice, but where an employee is declared redundant he should not be paid what would have accrued to him during the period of notice? There is none whatsoever.

Counsel for the respondent strenuously argued that article 13 of exhibit A is different from article 15 in that the former deals with “Leaving the service of the company” while the latter deals with “Redundancy.” That cannot, with respect, be the correct interpretation to be given to exhibit A. The well-established rule of interpretation is that a document like exhibit A should be considered as a whole in order to obtain its full meaning and effect. When a similar issue arose in Boateng v. Volta Aluminium Co Ltd [1984-86] 1 GLR 733, CA, this court stated the applicable principles thus, as stated in the headnote, holding (1):

“(1) in attempting to construe the termination provisions, regard should be had to all the four clauses, ie the language used and all the provision the termination clauses should be looked at as a whole and every clause must be compared with the other and one entire sense made out of them. It was only by so doing that the true meaning and the intention of the parties could be discovered.”

We should endeavor in our courts to engender some measure of consistency because such consistency will nurture certainty in the law. I pay a great deal of respect to the view expressed in the Boateng case (supra) on termination provisions because the instant case also deals with a termination provision.

Consistent with the principles in that case, article 13 should rather be given the general meaning, which the heading suggests, that is, the concept of leaving the service. Under exhibit A, there are various modes of leaving the service and these included departmental transfer or redeployment (article 17), redundancy (article 15), termination (articles 9 and 13), resignation (article 13), vacation of office (article 12) and summary dismissal (article 11). They are in fact termination provisions and so regard should be had to all of them in construing the entire exhibit A. It is significant to note that of all these sections, only article 11 dealing with summary dismissal has been expressly mentioned as having been excluded in the application of article 13(a). If article 13(a) were not intended to apply to the other articles, it would have been so stated as was done to article 11. To that extent, the argument of counsel for the respondent based on the principle of expressio unius exclusio alterius does not help the case of the respondent. This is because although article 13 expressly mentions “resignation”and “termination”, it goes on to exclude the application of article 11. A literal application of that principle would mean that those articles not expressly excluded are to be considered as having been intended to apply. Such an argument would in my view be correct, but that would defeat the very case being made on behalf of the respondents.

This kind of argument under these circumstances underlies the view that the principle can be a faithful servant but a dangerous master. It is no wonder that in his book, The Law of Interpretation in Ghana (Exposition and Critique) (1995) at p107, Mr Bimpong-Buta, after reviewing some authorities on the issue, commented that a religious adherence to the application of the maxim of expressio unius exclusio alterius in construing provisions in a statute or document might lead to the creation of absurdity, injustice or inconsistency in the operation of a statute.”

It may also be observed that the expression “pay in lieu” is referred to expressly or impliedly in various parts of exhibit A, but it is only article 13(a) which contains the qualification that the employer is to give the employee notice or pay a sum equal to the amount of remuneration which would have accrued to him during the period of notice. It cannot however be seriously argued that the omission in other articles to state that qualification, expressly means that in respect of all those other articles equal remuneration was not intended. That would be an erroneous way to consider the entire exhibit A. To insist that everywhere there is reference to “pay in lieu” that qualification should appear expressly and repeatedly would only have the effect of rendering exhibit A a clumsily drafted document. Article 13 stated the intentions of the parties when they negotiated for exhibit A. It is binding on all the parties and should be applied to all other sections. That is the only reasonable interpretation which can be given to exhibit A.

If this interpretation is unacceptable, it would imply that all the other sections which do not contain that phrase could be interpreted otherwise to mean that the remunerations in respect of those other sections do not have to be “a sum equal to the amount of remuneration which would have accrued to the employee during the period of notice.” That would, to say the least, be absurd. As already stated in this opinion, there is no reason why article 13 alone should be given that fair and reasonable interpretation but the rest of the same labour agreement should be given different and unfair, unjust and inequitable interpretation. It follows from the foregoing that the only way to give correct and full meaning and effect to exhibit A and to effectively enforce the intentions of the parties is to read articles 13 and 15 together. The trial judge was consequently wrong when he held that article 13 is not helpful in the interpretation of article 15.

Lastly, the necessity to pay a sum equal to what the employee would have earned is further emphasised in the Labour Decree, 1969 (NLCD 57). Section 33(9) of NLCD 57, the paragraph dealing with notice or pay in lieu of notice provides that:

“(9) Either party to an agreement, to which this paragraph applies, may determine the agreement without notice upon the payment to the other party of a sum equal to the amount of remuneration which would have accrued to the employee during the period of the notice.”

(The emphasis is mine.) This obviously provides statutory backing for the view that whenever an employee has to be given pay in lieu of notice, the pay should be equal to the amount of remuneration which would have accrued to him during the period of the notice.

The reply of counsel for the respondents to ground (3) of the notice of appeal cannot be correct. The argument of the appellants cannot be reduced to the simplistic expression of “if we had been given two months’ notice.” Theirs was a contention based on the very terms of the labour agreement; exhibit A, which governed the relations between the employers and the employees.

It follows from the foregoing that the trial judge erred by calculating the end-of-service benefits from 16 May when the appellants were laid off. To my mind the calculation of their end-of-service benefits should include the period, which the wage reopening covers and should have been based on the earnings, which would have accrued to them during the latter period up to 15 July 1994.

It has to be emphasised that this is a peculiar case in which some payment arose to be made within the period of notice. If nothing arose to be paid within that period, that would have been the end of the workers and their association with the company. But something arose to be paid within that period. The crux of this entire case is this: The package which the employers offered the workers on 16 May cannot be viewed in isolation, that package was given to cover the period of 16 May to 15 July. The recommendations in the wage re-opening were effective from 1 July. The period of 1 July to 15 July formed part of the period of that package. Therefore, if any amount arose to be paid within that period, that amount belonged to the workers as their entitlements for that period and should therefore be paid to them. This is because that amount arose to be paid under the wage re-opening which formed part of the contract-the labour agreement—which at all material times governed the relationship between the parties. This, to my mind, is the justification for the claim made by the workers for the payment of the entitlements covered by the period up to 15 July, being additional payments brought about the wage re-opening.

In the end, what the respondent should actually pay to the appellants should obviously be less what has been given to the appellants by the ‘Goodwill payment.’ This means the difference between the 60 percent and 71 25 percent as well as the other entitlements contained in the writ which have not been given to the appellants already, provided they formed part of the package agreed upon in the negotiations of the wage re-opening and covered the period which ended on 15 July. This amount may not be much, but the essence of this litigation is the principle involved in the claims made by the workers. Of course, this principle cannot be stretched to cover claims subject to the discretion of the employer, such as annual increments. Payments not made automatically payable to workers but subject to other conditions and other factors cannot be regulated by the principle in the instant case.

The appellant also claimed interest in relief (4) of their writ of summons. The correct factual situation is that the respondent was entitled to give the appellants two months’ notice or pay them two months’ salary in lieu of notice. If they had been given two months’ notice, that notice would have expired on 15 July 1994. The 71.25 per cent was said to be effective from 1 July 1994. In effect, the period covered by the package, which was not paid by the respondent, would be between 1 July and 15 July. If that amount was effective form 1 July, then that is the date on which the entitlements of the appellants made in the instant case should have been calculated from. That would be the date on which their entitlements became due.

On the basis that interest is the amount paid for keeping money which belongs to another person, the respondent is liable to pay interest on the amount due to the appellants from 1 July 1994 up today, the date of judgment at the prevailing bank rate at all relevant times but on simple interest basis, as provided in the Courts (Award of Interests) Instrument, 1985 (LI 1295). After today, interest should be calculated at the rate of four per cent, in the terms of Order 42, r 15 of the High Court (Civil Procedure) Rules, 1954 (LN 140A), since this case emanated form the High Court.

In sum, the appeal succeeds and should therefore be allowed.

Afreh JA.

This is an appeal from the judgment of Acquaye J, sitting at the High Court, Tema on 3 June 1998. The plaintiff-appellants (hereinafter referred to as the appellants) on behalf of themselves and all other workers of Volta Aluminium Co Ltd (Valco) laid off on grounds of redundancy in May 1994, claimed against the respondents the following reliefs:

“(i) A declaration that their terminal benefits should be based on the amount of remuneration which would have accrued to them by 15 July 1994;

(ii) an order directing the defendants to pay the plaintiffs the balance of their terminal benefits based on (i) above; and

(iii) interest on the balance from the date it became due to the date of payment.”

The appellants are erstwhile workers of (Valco) the respondents herein, and members of the Industrial and Commercial Workers’ Union (ICU) of the Trades Union Congress (TUC). (Valco) is a limited liability company incorporated under the laws of Ghana. On 16 May 1994 Valco terminated the employment of the appellants together with other employees on grounds of redundancy. They did that under article 15(e) of the “Labour Agreement” between the Valco and ICU, representing the unionised workers of Valco (exhibit A), which provided that in the event of redundancy Valco might either give the employees to be declared redundant two months’ notice or pay them remuneration in lieu of the two months notice.

The cause of the redundancy and how the redundancy payments were negotiated are best stated in the words of the first appellant herein who gave evidence on behalf of all the appellants and other persons affected by the redundancy. He said:

“In the middle of April 1994, management announced that the Volta River Authority had asked them to shut down one potline because the water level in the dam was such that they could not meet the power requirements of Valco. Management met the ICU to discuss how the affected employees will be laid off. We came to work on 16 May 1994 to receive letters from Valco management that our appointments were terminated on grounds of redundancy. It was then about one-and-half months to the salary review time. The other plaintiffs and myself received two months pay based on our salaries as at 16 May1994, and our end- of-service or redundancy benefits were calculated based also on the salaries we were receiving as at 16 May 1994. Then we were given a package that management termed ‘Golden handshake ...’

We were not satisfied with the terminal benefits paid us. Our grievance in the present suit is that the defendants did not comply with the terms of the collective agreement. End-of-Service benefits or redundancy benefits should have accrued to us if we had been given two months notice, that is, our end of service benefits should have been calculated on the basis of the 71.25 per cent increase which took effect from 1 July 1994 or at the very least it should have been calculated on the anticipated 60 per cent wage in the salary of senior staff in January 1994. Also, senior staff who were laid off in May 1994 had their end of service benefits calculated on the 60 percent pay increase.”

(The emphasis is mine.)

Under cross-examination, the first appellant admitted that negotiations leading to a redundancy were negotiated on behalf of the workers by their union. In this particular case the union that represented the workers was the ICU. The body that has the statutory power to negotiate is the union and not members individually. He knew that the workers affected by the redundancy of 16 May 1994 were represented by the ICU and that the ministry or a section of it approved the redundancy exercise. The first appellant also admitted that as a former trade union member, he knew that when a collective bargaining had been arrived at between management and the union then that agreement became part of the contract of employment of the workers involved. The redundancy agreement which was arrived at between the workers union and Valco in this particular case talked of a package, ie agreed upon the redundancy or end-of-service benefits that should be paid to the workers involved. It also appears clear from the cross-examination of the first appellant that workers affected by the redundancy were aware of the redundancy package or exercise before they were given letters of termination of employment and paid their entitlements on 16 May 1994. The first appellant admitted that it was a requirement that they should be paid money agreed upon when they were leaving. One of the payments was six months salary in addition to the two months’ salary paid in lieu of notice. When asked whether the payment of six months’ salary was not in lieu of a possible loss of increment, the first appellant said:

“The six months’ salary was paid because they were anticipating 60 per cent pay increase and that money was to make up for the loss. But the six months’ pay never made up for the losses that would have come on our end-of-service benefits . . . It was far below what we would have got and that is why we are here.”

I have referred extensively to the evidence of the first appellant, the only person to give evidence at the trial, because it sums up well the case of the appellants, their motives or reasons for suing, and the realities of the case before us. It is clear from the evidence of the first appellant that he and his colleagues are not challenging the validity of the termination of their contracts of employment or the redundancy agreement that was negotiated and agreed upon by Valco and their union, the ICU, as the workers in Nartey-Tokoli v. Volta Aluminium Co Ltd (No 2) [1989-90] 2 GLR 341, SC did. Their only complaint or grievance is that the salary they were earning the day they left the employment of Valco should not have been used to compute their benefits. Rather, an anticipated increment due to be negotiated in July 1994 should have been used when they were terminated on 16 May 1994. Originally it was thought it would be 60 per cent. But it turned out to be 71.5 percent. They did not know of the rate of increment at the time they left. It came into effect on 1 July 1994, through it was announced in September. But if Valco had given them two months’ notice on 16 May 1994, they would have received the new salary before the notice expired on 15 July 1994. As the appellant put it: “end of service benefits or redundancy benefits should have accrued to us if we had been given two months notice.”

Before I proceed to consider the grounds of appeal and arguments of counsel, I would like to deal with one or two matters concerning the validity and effect of collective agreements and the right of an employee or employer affected by such an agreement to come to this court to vary parts of a valid agreement. They are not new matters, but in view of the arguments that have been urged upon us they had to be revisited if only to remind us of the basic rules.

As is clear from section 10 of the Industrial Relations Act, 1965 (Act 299), an agreement concluded by a trade union through a standing negotiating committee, so far as the terms of the agreement permit, applies to all employees specified in the certificate issued under section 3 of Act 299 and all their employers. The provisions of a collective agreement are regarded as terms of a contract of employment between each employee to whom the agreement applies and his employer. The provisions continue to have effect after the expiration of the collective agreement so long as they have not been varied by agreement of the parties or in pursuance of Act 299. The rights conferred on an employee by a collective agreement cannot be waived by him and if there is any conflict between a term of a collective agreement and the terms of any agreement contained in it, then the collective agreement shall prevail, whether or not the contract was concluded before the collective agreement or not.

The question in this case is whether an employee covered and bound by a valid collective agreement can compel the employer to change certain aspects of the agreement he does not agree with or like. The answer must be no! Under section 6 of Act 299, negotiations on all matters connected with the employment or non-employment of employees covered by a collective bargaining certificate issued under section 3 of Act 299, like the appellants, must be conducted through the standing negotiating committee set up under section 5 of Act 299. Section 10 of Act 299 is also relevant on this question. In my view only the ICU could have gone back to Valco to renegotiate the terms of the redundancy package. This view is reinforced by article 2 of the labour agreement (exhibit A) which provides:

“Article 2—Individual contract

No employee covered by this agreement shall be compelled or allowed to enter into contract or agreement with the company concerning the conditions of employment, wages and salaries as dealt with in the agreement or shall be allowed to be bonded with the union.”

The exclusive power of a certified national union was authoritatively confirmed in Nartey-Tokoli v. Volta Aluminum Co Ltd (No 2) [1987-88] 2 GLR 476, CA; and [1989-90] 2 GLR 341, SC.

The second question is whether the court has power to do for an individual employee what he cannot do individually by varying the terms of a valid redundancy agreement on the ground that in its opinion a provision of the general labour agreement between the employer and the union was not correctly interpreted, There are several reasons why a court should refuse to do so. In any opinion a court can set aside a contract only if it is illegal, void or voidable; refuse to enforce it if it is unenforceable; rectify it if it contains a rectifiable mistake; grant an order specific performance or injunction award damages if there is a breach of contract. There maybe other grounds for a court’s intervention but these are the main ones. However, I do not know of any case where a court has or can set aside all or any part of a valid contract because a part of it is not as good or adequate as a party thereto expected.

Suppose the ICU and VALCO should have computed the appellants’ benefits on the anticipated increment but chose to base it on the prevailing salary on the day the appellants left, would that make the agreement or part dealing with the benefits invalid? In my opinion it would not. While an individual employee cannot waive any right conferred upon him by a collective agreement or negotiate a separate contract, there is nothing to prevent an employer and a certified union from entering into a new contract whose terms are at a variance with an earlier agreement. This is because parties to a contract can agree to modify or vary it. The employer and the union are the only parties to a collective bargaining. So far as they are concerned the collective agreement is not unalterable. If they deem it necessary, they can modify the terms of an existing collective agreement. If they do so, I do not think the court has power to change what they have done, because that would be tantamount to the court making a contract for the parties or preventing them from exercising the freedom of contract.

It must also be remembered that in negotiations with an employer, the union is the representative of the employees. It is the agent and the employees are the principals. When an agent has entered into a valid agreement with another person the principal cannot repudiate or reject certain terms of the agreement on the ground that he does not like them or that they are different from what be expected. Certainly he cannot do so on the ground that if the agent and the other party had waited for a certain period he would have got better terms.

What the appellants herein are asking the court to do is to set aside what their certified union, ICU, their representative or agent, has validly concluded with another person. I think the court should reject the invitation because it will be wrong to do what the appellants are asking it to do. If the appellants were aggrieved when the redundancy package was made known to them or they were paid or when the new package was announced in September 1994, they should gone back to their representative, the ICU, to request it to renegotiate new and better terms.

There are four grounds of appeal, viz:

“(a) The learned trial judge erred in law when he held that calculation of plaintiffs’ end-of-service (redundancy) benefits ought not to be based on the amount of remuneration which would have accrued to them by 15 July 1994.

(b) The learned judge, with all due respect, misconceived the legal point in controversy when he held that the calculation of plaintiffs’ end-of-service benefits on the basis that the plaintiffs’ employment had been terminated with effect from 15 May 1998 was proper, since by the contract of employment, the “Labour Agreement, the date of termination of employment was not necessarily the basis upon which end-of-service benefits were to be calculated.

(c) The learned trial judge erred in law when he held that the plaintiffs contention proceeds on the fallacy ‘if we had been given two months notice’, when this was not the factual situation.

(d) The learned trial judge erred in law when he held that article 13 and article 15 of the labour agreement deal with two sets of completely situations, and that article 13 cannot be of assistance in the interpretation of article 15.”

Counsel for the appellants the argued grounds (a) and (b) together. His basic argument on these two grounds is that article 13 and article 15 do not deal with completely different situations. Both are forms of termination of employment; that is in both cases the employment comes to an end or is put to an end. Article 17 also says among other things that an employee on departmental transfer may in certain circumstances be terminated on grounds as of redundancy or on medical grounds. So he submits that reading article 13, 15, 17 as a whole the trial judge’s position that article 13 and 15 are two different situations which stand independent of each other was erroneous and should be so held to enable the plaintiffs and others to claim the protective advantages.

Everybody knows that there are several ways a contract of employment may be terminated. The labour agreement itself deals with some of them:

(i) Summary dismissal Article 11

(ii) Vacation of office Article 12

(iii) Leaving of the service Article 3

(iv) Temporary lay off Article 14

If an affected employee opts for redundancy:

(v) Redundancy Article 15

(vi) Departmental transfers if employee is given an option of termination on grounds of redundancy or medical Article 17

Article 48 classifies end-of-service benefits according to the reasons for leaving the service of the company as follows:

(a) (i) Old age retirement

Compulsory Voluntary

(ii) Ill-health

(iii) Redundancy

(iv) Death

(b) Early retirement

(c) Resignation/Termination

Each of these categories has its own benefits schedule. The end-of-service benefits for category (a) are more generous than the benefits for category (b) which are more generous than those for category (c).

In Boateng v. Volta Aluminum Co Ltd (supra) at 738 this court, per Abban JA (as he then was), stated the approach that should be used in attempting to construe the terminal provisions a labour agreement like this one. It was also an agreement between Valco and ICU. He said:

“In attempting to construe the termination provisions, regard should be had to all the four termination clauses. That is the language used and all the provisions in the termination clauses should be looked at as a whole and every clause must be compared with the other and one entire sense made out of them. It is only by doing this that the true meaning and the intention of the parties could be discovered.”

Applying this dictum to interpretation of the labour agreement, exhibit A, in this case, the question that must be asked is: If articles 13 and 15 do not deal with two separate situations why did the labour agreement deal with the situation in two clauses or articles? Why do end-of-service benefits for redundancy and termination/resignation differ so remarkably? Under article 48 a person who is declared redundant may get, depending upon the number of years he has served, 134 percent to 234 percent of the consolidated pay for each pro-rata year of service as end-of-service benefits. But a person whose contract is terminated or who resigns can only get 67 percent to 100.46 percent. And why is redundancy put in the same category as retirement, ill-health and death and not as termination or resignation?

The differences between articles 13 and 15 become more stark if the two clauses are read in full. And I quote them in full.

“ARTICLE 13—LEAVING THE SERVICE OF THE COMPANY

(a) If the company terminates a services of a regular employee other than in case of summary dismissal, the company shall give to the employee at least fourteen (14) days notice to expire not later that the last day of current month or pay to the employee a sum equal to the amount of remuneration that would have accrued to him during the period of notice.”

(b) Similarly, a employee wishing to resign from the company should give to the company the required notice under (a) above or in lieu of notice pay the equivalent sum of money.

(c) Notwithstanding the above, a month’s notice will be given by either party in case of termination or resignation of an employee with over three (3) years continuous services.”

ARTICLE 15—REDUNDANCY

(a) In the event of redundancy, the company shall notify the Union in advance as far as possible.

(b) The criteria for determining employees to be declared redundant shall be based on merit, potential skill, physical and mental ability to assume other jobs and good conduct. All things being equal, length of service shall be the determinant factor.

(c) When subsequent employment arises in the same department within three (3) months from the date employees in that department were declared redundant; these employees will be given preference for reemployment. It is understood that any redundant employee rehired under this article shall be considered a new employee.

(d) Where the company wishes to retain the services of the less senior man because of his merit, ability or skill, regardless of his length of service, the union will be informed accordingly.

(e) Employees to be declared redundant will be given two (2) months’ notice or paid in lieu.”

(The emphasis is mine.)

The differences between the two articles are obvious. There is no requirement in article 13 that if the company wants to terminate the services of a regular employee the company must notify the union as far in advance as possible. This is required in article 15. The reason for this is that termination by the company under article 13 is regarded as a matter between the employer and the employee and there is no need for the union and the company to negotiate the terms of settlement or end-of-service benefits with the union. Normally the conduct (or rather misconduct) or performance of the employee is involved. The company is not bound to give reasons or show grounds to justify the termination. It may even be unfair as for instance where it is caused by a quarrel or clash of personalities. But if the notice requirements or other contractual terms are complied with, it is lawful. It may be, and normally is unilateral in the sense that the company can decide to terminate without consulting the employee or the union. It may be bilateral or multilateral if the company and the employee or employees mutually agree to part company.

Resignation is also unilateral in that the employee without consulting the company or the union decides to leave the service of the company. Normally it is voluntary but sometimes the employer may make it inevitable by his conduct, in which case it may be regarded as dismissal. The union may become involved in a termination in article 13 but not as of statutory or contractual right but as a defender of the rights and interests of the employees. Its intervention is more industrial than as a legal right.

In the case of redundancy under article 15 however, section 35 of the Labour Decree, 1967 requires that the conditions under which severance pay, and the amount of such pay that shall be payable, shall be matters for negotiation between the employer or his representative and the worker or his representative. Under section 6 of Act 299 the employee or worker must be represented by the union in all negotiations connected with his impending non-employment. It is for this reason that I think article 15(a) requires that in the event of redundancy the company must notify the union because it is only the anion that can negotiate redundancy payments or benefits.

In the language of industrial or labour law, redundancy connotes the termination of the services of several employees who have become superfluous to the needs of an employer due to close-down, amalgamation or arrangement (see section 34 of Act 299), or unfavourable economic performance, change of location, introduction of new equipment that reduces manpower or as in the case before us, force majeur etc. Before the employer lays off employees on the ground of redundancy, the certified union, in the case of unionised employees, must be informed of the impending redundancy. This, in my opinion, is a significant difference between the situations in art 15 and article 13.

As can be seen in article 15(b), there are criteria for determining employees to be made redundant. These do not exist nor are required in article 13. Under article 15(b) employees declared redundant are give preference for rehiring when subsequent employment in the same department arises within three months from the date employees in that department were declared redundant. No such preferential treatment is offered under article 13. And under article 15(d) if the company wants to deviate from any of the criteria for determining redundancy it must inform the company. No such information is required under article 13.

The question is, if articles 13 and 15 do not deal with two different situations, why did Valco and ICU take the trouble to make such detailed provisions? Any one who is familiar with industrial relations practice in this country knows that a lot of time and energy is spent in protracted negotiations before agreements on such matters are reached. If the two articles do not deal with two different situations, I cannot understand how or why busy and serious people would put so much effort into making separate detailed provisions on them.

The other significant difference between the two articles is the notice requirements in the two articles. As we have seen article 13 requires “at least fourteen (14) days notice to expire at the end of the month” in the case of regular employees who have worked for less than three continuous years, and “one month’s notice in case of termination or resignation of an employee with over three (3) years continuous service with the company.” In my view these words are clear and should be given their ordinary meaning.

Under, article 13(a) an employee must be given or give not less than fourteen days notice of termination or resignation. But the notice is not open-ended. If the requisite notice is given in a particular month it cannot take effect until the last day of that month even though that may be more than fourteen days. Thus, if a an employee is given notice of termination on the tenth day of a month it will not take effect on the 25th day- that is fourteen days thereafter but on the thirtieth or thirty first day- of the month as the case may be.

In the case before us, if the appellants herein had been given requisite notice on 16 May 1994 it would have expire on the 31 May 1994 and they would have left on the 1 June. The provision in article 13(c) is simpler and more straightforward and requires no further comment. But in my view the over all effect of article 13 is that notice under it should not exceed one month. The provision in article 15(e) is also simple and straight forward and does not require the invocation of any rules of interpretation to construe it. Employees to be declared redundant must be given two months notice or they must be paid two months salary instead of such notice. That is how all the parties understand it.

As the comparison of the provisions of the two articles shows, article 13 and 15 deal with two different situations and the learned trial judge did not err when he so held. It is not necessary or correct to subsume article 15 under article 13. Article 15 is of no assistance in the interpretation of Article 13, and vice-versa, and I do not find any basis for saying that redundancy under article 15 is just one way of terminating services under article 13.

Redundancy, although a form of termination of contract of employment, is not in my opinion one of the forms of termination contemplated under of article 13. That article should not therefore be applied to redundancy under article 15. That article is self-contained and sufficient and should not be made subject to article 13. The two articles are so clear that there should have been no controversy over their meaning or effect. In spite of the able, but ingenious, arguments of counsel for the appellants, I think grounds (a) and (d) should be dismissed.

Ground (b)

Ground (b) is to the effect that the trial judge misconceived the legal point in controversy when he held that the calculation of appellants’ end-of-service benefits on the basis that the appellants’ employment had been terminated with effect from 15 May 1994, was proper. As counsel for the appellants acknowledged, the success of this grounds depends upon the success of the argument that article 15 should be subsumed under article 13(a) of the labour agreement. I have already rejected this argument. I therefore think ground (b) too should be dismissed.

But I want to add a few comments on this ground. If, as The appellants seem to admit, their employment were terminated on 16 May 1994, then it is difficult to see how the calculation of their end-of-service benefits could be based on any salary other than the one which was prevailing at the time their contracts ended. It had been agreed that they should be paid their end-of-benefits on the day that they left. The only salary Valco and ICU knew of was the salary that was prevailing on that day. Although a wage-opener was anticipated sometime in July 1994 the negotiations had not even begun. A 60 per cent increment was anticipated but that anticipation had not been translated into a legal reality. Certainly, as the first appellant himself admitted, on 16 May 1994 the 71.25 percent increment was not anticipated. So how the end-of-service benefits should have been calculated on the basis of a 71.25 per cent increment I find it difficult to understand. Only a prophet could have predicted on 16 May 1994 that a 71.25 increment was certain to occur and it rather than the salary of May 1994 should be used for the calculations.

With the failure of the argument that article 15 should be subsumed under 13(a), the only way the appellants can justify the argument that the salary for May 1994 should not have been used as the basis of calculating their end-of-service benefits is to argue either that the appellants contract of service did not end on 16 May 1994 or but subsisted until 15 July 1994 or that Valco had no option to end the appellants contracts contracts on 16 May 1994 and pay them two months salary in lieu of notice. But the appellants have not seriously put forward this argument.

Ground (c)

It is the position of the appellants that the trial judge erred when he held that the plaintiffs’ contention proceeds on the fallacy “if we have been given two months notice,” when this was not the factual situation. Arguing this ground, counsel for appellants said that Valco “had the singular discretion to exercise either the option of giving the appellants and others the required two months notice or pay to the appellants the sum equal to the amount of remuneration which would have accrued to them during the period of notice.” He then went on to argue:

“Under article 15(e) of exhibit A, either the defendant gives two months notice to would-be affected employees or pay in lieu of the notice which article 13(a) says payment should be a sum equal to the amount of remuneration which would have accrued to the employees during the two months notice which in this instant case was not given.”

I am not sure I understand this statement. But as I have said, article 15 should not be subsumed under or be used in construing article 13 and viceversa. In spite of differences in wording, the option in article 13(a) and also 13(a) and (c) is the same as the option in article 15(e): either Valco gives the requisite notice or pay a requisite sum in lieu. In article 13(a) and (b) it is at least fourteen days and not more than the last day of the month it is given, or payment of money for the period the notice should have lasted. In article 13(c) it is one month-notice or one month’s salary in lieu of notice, and under article 15(e) it is two months notice on two months salary in lieu.

If the company (or in the case of article 13 the employee too) exercises one option, the other option does not apply; so in this case once Valco and ICU agreed that the affected employees should be paid two months salary on the day they received their letters of termination, the option of two months notice ceased to exist. The result is that on 16 May 1994 the contract of employment between Valco and the appellants ended. They ceased to be entitled to any new rights or benefits conferred on continuing employees after that day; and to be subject to any new liabilities or duties imposed on continuing employees after that date. I am sure if had demanded that they should comply with any liabilities or duties introduced after 16 May 1994 they would have stoutly, and rightly, rejected such demand on the ground that there was no more a contractual relationship between them and Valco. Why then should they insist on enjoying benefits or salary increments that were negotiated and came into force after they had left the employment of Valco?

The only reason they are insisting on that proceeds, as the trial judge rightly held, on the fallacy “if we had been given two months notice.” The truth and the reality is that they were not given that notice. Valco had the right not to give such notice and it duly exercised it with the agreement of the appellants’ union, ICU. The appellants took their generous package in May 1994. I do not think on that day they felt aggrieved. But later in the year they learned that the increment was not 60 per cent as expected but 71.5 per cent. It appears it was then they felt cheated and rued the fact that their contracts were terminated on 16 May 1994. So on 22 January 1996 they sued to claim they thought they would have received if they had been given two months notice. Ground (c) too should be dismissed.

Ansah JA. This is an appeal against the judgment of the High Court, Tema given on 3 June 1998. The plaintiff-appellants (hereinafter referred to as the appellants) issued a writ against the defendant-respondents (hereinafter referred to as the respondents) claiming:

“(i) A declaration that the calculation of their terminal benefits should be based on the amount of remuneration which would have accrued to them by 15 July 1995.

(ii) An order directing the defendants to pay plaintiffs the balance of their terminal benefits based on (i) above.

(iii) Interest on the benefits from the date it become due to the date of payment.”

The learned trial judge dismissed the appellant’s action. Aggrieved by this, the appellants to this court on the following grounds:

“(a) The learned trial judge erred in law when he held that thecalculation of plaintiffs end-of-service(redundancy) benefits ought not to be based on the amount of remuneration which would have accrued to them by 15 July 1994.

(b) The learned trial judge with all respect misconceived the legal point in controversy when he held that the calculation of plaintiffs end-of-service benefits on the basis that plaintiffs employment had been terminated with effect from 15 May 1994 was proper since by the contract of employment, the ‘Labour Agreement’, the date of termination of employment was not necessarily the basis upon which end-of-service benefit were to be calculated.

(c) The learned trial judge erred in law when he held the plaintiffs contention proceeds on the fallacy ‘if we had been given two month’s notice’, when this was not the factual situation.

(d) The learned trial judge erred in law when he held that article 13 and 15 of the labour agreement dealt with two sets of completely different situations, and that article 13 cannot be of assistance in the interpretation of article 15.”

The undisputed facts were that the appellants were former workers of the respondent company and also members of the Industrial and Commercial Workers Union (ICU) of the Ghana Trades Union Congress. On 16 May 1994 the respondents terminated their employment on ground of redundancy.The appellants asserted that under article 15(e) of the labour agreement between the respondents and the ICU, in the event of redundancy, the respondents had to give the affected employees either two months notice or pay them in lieu of notice. The respondents waived the need to give the two months notice but rather paid the affected workers two months salary.

According to the appellants, wage-opener-negotiations were due to commence on 1 July 1994 and it was anticipated that would rake in some 60 per cent settlement or pay rise. Before the real negotiations could commence, they were declared redundant and laid off. The appellants admitted they were paid some benefits but they fell far short of what was due them. The action was to recover what they lost with interest thereon. With regard to the 60 per cent, the appellants said in January 1994 unionised workers received pay rise by that margin and traditionally non-unionised workers received an equal amount for their pay rise. At the end of the negotiations however the actual figure came up to ¢71.25 per cent. Therefore what should have been paid them was that enhanced pay which they should have received by 15 July 1994 and not the wage as at 15 May 1994 the date of their termination.

The respondents led no evidence at the trial but in their statement of defence averred that they exercised an option open to them under article 15(e) of the labour agreement by paying the affected workers two months salary in lieu of notice and with that severed any employment relationship with the plaintiffs. With regard to the wage-opener negotiations, the respondents took the view that they did not apply to the appellants for as on 15 May 1994, when they were terminated, they were not completed. What was due the appellants was their salary as at 15 May 1994 the date of their termination and not as at 15 July 1994. The reason was that the salary on the latter date was speculative and unknown at the time of, the redundancy.

The learned trial judge found more favour with the respondents, case than with the appellants and dismissed the same; hence the present appeal to this court on the above grounds.

Grounds (a) and (d) of appeal were argued together. In support of these grounds it was submitted that the trial judge held erroneously that articles 13 and 15 of the collective agreement dealt with two different situations, namely “Termination” and “Redundancy”, respectively. As I understood from counsel’s address, if the learned judge had read the collective agreement and more particularity article 13, 15, 17 and 52 together he would have seen that they talked of one and the same thing. The reply by counsel for the respondents the was that it was wrong to attempt to subsume article 13 under article 15. The reason was that the two dealt with two different situations and by the well-known aid to construction of a written document expressio unius exclusio alterius, that is to say once an express mention was made of one or more things of a particular class, it could be regarded that all the other members of the class were silently or inferentially excluded.

In article 13, “termination”, “resignation” and “summary dismissal” were mentioned. However, summary dismissal is expressly excluded from consideration under article 13. Redundancy was not mentioned at all and by the application of the maxim above-mentioned was intended to be excluded. In fact redundancy was treated separately and under article 15. The issue then is: are articles 13 and 15 to be read and taken together or to be treated in isolation of each other? It is pertinent at this stage to quote the two articles hereunder:

“ARTICLE 13 - LEAVING THE SERVICE OF THE COMPANY.

(a) If the company terminates the service of a regular employee other than in case of summary dismissal, the company shall give to the employee at least fourteen (14) days notice to expire not earlier than the last day of current month or pay to the employee a sum equal to the amount of remuneration which would have accrued to him during the period of notice.

(b) Similarly, an employee wishing to resign from the company should give to the company the required notice under (a) above or in lieu of notice pay the equivalent sum of money.

(c) Notwithstanding the above, a month notice will be given by either a party in case of termination of an employee with over three (3) years’ continuous service with the company.”

Article 15 is long and (e) is relevant here and is also reproduced as follows: “(e) Employees to be declared redundant will be given two (2) months notice or paid in lieu.” And article 17 reads thus:

“ARTICLE 17—DEPARTMENTAL TRANSFERS

Departmental transfers may be effected at the discretion of management. However, if the transfer is necessitated by redeployment and such transfer involves changing the employees trade or job, the employee will be given the option of accepting the new job assignment or termination on grounds of redundancy or medical if the transfer was necessitated by the employee having sustained an Industrial injury (Disease) on the plant and such transfer was requested the company doctor or any other doctor. The wage of such employee would be protected in his new job.”

Clearly article 13 in dealing with leaving the service of the company cited the following modes viz: (1) Termination of the services of a regular employee, (2) summary dismissal and (3) resignation from the company. No mention was made of redundancy which as stated was specifically dealt with in article 15. However reasons for leaving the service of the company are specified under article 48 as follows: (i) “Old age retirement, (i) ill health,(iii) redundancy, and (iv) death. These are for purposes of end of service benefits.

It becomes clear from these articles that and employee can leave the service of the company where the company terminates his services under article 13(a); or resigns under article 13(b); or is summarily dismissed under article 11 or declared redundant under article 15. Other modes are as prescribed in article 48. There are other conditions attached to the above. For example in the case of a “terminations” under article 13(a), the employee is given at least fourteen days notice or payment of a sum of money which would have accrued to him during the period of notice, ie at least fourteen days. Employees resigning give the company notice of the same duration (ie at least fourteen days) or pay the same amount of money to the company. Where the worker has worked for three years and above with the company the period of notice the company gives him is a month. The period of notice in the case of redundancy however is two months as under article 15(e).

I must make it clear that either by termination, resignation or redundancy etc an employee leaves the service of the company. They therefore say and mean the same thing, namely, leaving the service of the company. That is the heading of article 13. The significant point to note is that they do not fall under the same article.

Counsel for the appellants was right when he submitted that for a written instrument like the labour agreement, exhibit A, to be clearly understood, the whole of the articles dealing with leaving the service must be read together. In Boateng v. Volta Aluminum Co Ltd [1984-86] 1 GLR 733 at 738-739, CA, Abban JA (as he then was) said that:

“In attempting to construe the termination provisions, regard should be had to all the four termination clauses. That is the language used and all the provisions in the termination clauses should be looked at as a whole and every clause must be compared with the other and are entire sense made out of them. It is only by doing this that the true meaning and the intention of the parties could be discovered.”

The learned judge cited Re Jodrell., Jodrell v. Seale (1890) 44 Ch D 590 and Wigsell v. the Corporation of the School for the Indigent Blind (1880) 43 LT 218 in support of this approach. In the local case of Manu v. Emeruwa [1971] 1 GLR 442. The same judge held that the document in issue must be considered as a whole to determine whether or not the contract in issue was one of a pledge or a mortgage. Therefore in this appeal to determine what should be paid by the respondents to the appellants when the latter were terminated or had to leave the service of the respondent company on ground of being declared redundant, the document in exhibit A and the provisions therein contained and pertaining to leaving the service must be read together. It would not help much if one limited oneself to one article simply because it specifically dealt with one ground namely “redundancy.” This is to say in effect then that on the authority of Boateng v. Valco (supra) and the authorities therein cited, airticle 13 must be read in conjunction with article 15(e) to determine how much should be paid to the appellants when they were declared redundant.

Much clearly, article 15(e) gives the respondents the option of either giving a two-month notice to terminate the employment of the affected employees or paying them in lieu. In my opinion where the respondents chose to exercise the option to dispense with the two months notice but pay cash they were obliged to pay cash for the two months period. But the question is, is that all?

It is here that article 13 becomes needful for an answer. The article as seen from the quotation above says in clear and unambiguous terms that except in a case of summary dismissal, the worker must be paid a sum equal to the amount of remuneration which would have accrued to him during the period of notice. That, in my opinion, would include the salary of the two months, as well as all the other accruals within those two months. What the employee would have earned within the period must be paid to him includes not only the salary, but allowances, bonuses earned but not paid to him etc. If that is correct, then that which must be paid to him, does not look only to the salary as at the date of the termination, but also includes what would have been earned in the future. It is prospective in outlook. However in order not to make it indefinite and thereby enable the worker who has been terminated earn money for the period during which he did not work for the company a time limit was set which was the notice period, ie two months in this case.

The hard facts of the case are that by 16 May 1994, when the redundancy exercise was effected, wage re-opening negotiations were in the offing. That was as a result of article 52 of exhibit A; the purpose of this exercise was to review wages and to benefit workers. Before the negotiations were concluded, the workers were given 60 percent pay rise. In fact that figure was only anticipated as at the time. It was not the real figure. As it turned out to be, the negotiations yielded a higher figure of 71.25 percent across the board. There is evidence that negotiations were completed by 1 July 1994 which date significantly fell within the two months period after termination on 16 May 1994. The plaintiffs were not paid anything based on the new wage raised by 71.25 per cent. Rather a goodwill payment negotiated by the body clothed with authority to do so, was given them to make up for the loss they were likely to suffer.

Pausing here for a moment, I would say that it was unjustifiable to say that regular employees who were terminated without any notice served on them like the appellants in this case should go home without what would have accrued to him if notice had been served on them; but those going home with pay (for the two months) should not. That would be unfair discrimination and an unjustifiable one at that, that the parties to exhibit A could not be said to have intended that to be the lot of workers declared redundant. Having held that article 15(e) must be read in conjunction with article 13, then in so far as the learned trial judge held that the two must be read separately for article 15(e) dealt with redundancy and article 13 with leaving the service of the company, it stands to reason that he must be wrong in the view he took of those sections and I so hold.

A careful reading of the evidence of the appellants shows that the gravamen of their case was not that if they had been given two months notice, they would have been entitled to what they were claiming. The plain fact was that they were not given any notice in what would aptly be labelled a redundancy situation. The respondents decided to exercise the option not to give them notice. I understand from the appellants’ stance then that all they said was if they were to be paid in lieu of notice then they should be paid what would have accrued to them if they had been given the notice. That I think they were perfectly entitled to ask for and not merely their salary as at the date of their termination. I have asked myself several times over if in fact the respondents themselves were not of the view that they were to pay more than the two months salary to the appellants during the redundancy exercise? There is evidence that the appellants were paid inter alia some six months pay expressed to be in lieu of a possible loss of increment and called “goodwill”. At this stage I wish to refer to the following portion of the special edition of Tuesday, 20 September 1994 of the Valco Newsletter, and more particularly at page 3 thereof:

“Management agreed to the six (6) months “goodwill” payment for unionised employees to make up for the apparent financial loss in end of service (Redundancy Benefits) to employees who were proceeding on redundancy prior to an anticipated 60 percent settlement during the July 1994 re-opener negotiations. The wage re-opener settlement turned out to be higher than anticipated 71.25 percent cross the board.”

This is to say that while they were anticipating a 60 per cent settlement, the July 1994 negotiations yielded a higher figure of 71.25 percent. That was the reality of the situation. Of course on 16 May 1994 when the appellant were declared redundant, the negotiations had not been completed. They were only anticipating a 60 per cent hike in salary. If there was a positive change in their fortune, what stopped the respondent from paying the remainder so as to make the 71.25 per cent. When that was done, it did not amount to either a goodwill, golden handshake, gratuity or any such high sounding name. That was what accrued to them within the notice period. That period was calculable from 16 May 1994 ending two months later, ie 15 July 1994. There is evidence that 1 July 1994 was the commencement date for the 71.25 per cent salary hike. That was what the appellants were praying for by their action. They should have been heard and granted their request.

I have a few comments to make here. Counsel for the respondents harped on the fact that when the respondents offered and the appellants received the amount which they now complain about then all relationships between them lapsed. In that state they could not turn round to complain about the insufficiency of what they received. I cannot accept that contention. It can never be accepted that the payment and receipt of any amount of money under the guise of redundancy award bars the worker from ever suing for his rights under the collective bargaining agreement. It is rather when the worker has received all the remuneration due him within a notice period when the employer had exercise his option not to give him notice and had paid also the two months salary and in fact all his entitlements under the agreement and has no justifiable cause to complain that the doors to the courts will be barred unto him. If that were not so, employees would just decide on what to give their employees, declare redundancy and terminate the employment and still leave the worker with no hope for seeking a redress or a reversal of his misfortune. When the worker does that that does not mean he is still in the services of the company. He has been effectively terminated but in fact he is suing for the recovery of what would have been paid him under agreement in exhibit A.

One other fact in this case was that what was paid the workers declared redundant was the result of negotiations by the ICU and the respondents. Ordinarily, such negotiations are of a binding efficacy and none of the parties can ever resile from the terms. The efficacy of agreements so concluded is given a statutory backing. Thus, in the Industrial Relations Act, 1965 (Act 299) it is provided in section 10(1) that:

“10 (1) An agreement concluded by a trade union through a standing negotiating committee shall, so far as the terms of the agreement permit, apply to -

(a) all employees of the class specified in the certificate; and

(b) all their employers.

Section 10(4) of Act 299 deserves mentioning:

“(4) The rights conferred on an employee by a collective agreement under this Act shall be rights which cannot to waived by the employee and, if there is any conflict etween a term of a collective agreement under this Act and the terms of any contract not contained in such a collective agreement, then the collective agreement shall prevail, whether or not the contract was concluded before the collective agreement.”

By section 10(4) of Act 299 then, collective agreement are given omnipotence over other contracts like the negotiations conducted by the ICU with the respondents. Conflicts between these negotiations and the terms of the collective agreement in exhibit A is that whereas exhibit A provided in article 13 and 15(e) that on being declared redundant the respondents should pay the worker a sum of money equivalent to what would have accrued to him in the notice period, the negotiations failed to declare that, the workers were entitled to that in lieu of notice. In that situation the provisions of exhibit A prevailed over the terms so negotiated. It can be said that the negotiations, though by the appropriate and legally recognised body, lost its efficacy and the workers affected thereby could resile from it without derogating from any of the strong points of collective bargaining. If article 13 and 15(e) are read together as they should, then it is manifest that the appellants got less than what should have been give them. They are entitled to the difference.

I have had the benefit of reading beforehand the judgment just read by Brobbey JA and I hereby express my entire agreement with the reasons and the conclusions therein contained. I concur with the opinion that the appeal be allowed and also in the orders for the arrears of what was paid to the appellants with interest and on the period specified. I allow the appeal.

COUNSEL

DR SETH TWUM FOR THE APPELLANTS

DANSO ACHEAMPONG FOR THE RESPONDENT