JOHN MICOCK V. RED SEA HOUSING SERVICE GH. LTD.

The Plaintiff herein issued out a writ of summons accompanying with a statement of claim, against the Defendant on 3rd August, 2010 for the following reliefs:

a. Declaration that the nature and circumstances of Plaintiff’s termination amount to unfair termination.

b. A further declaration that the reasons assigned for the termination of the Plaintiff’s employment amount to redundancy.

c. Damages for unfair termination.

d. An order of the Court to compel the Defendant to pay to the Plaintiff 6 months’ salary for each completed year of service with the Defendant Company upon being declared redundant.

e. An order of the Court compelling Defendant to pay to the Plaintiff an amount of $10,466.00 being wrongful deductions made from his entitlements, a return air ticket for his spouse, unpaid medical bills and repairs of Plaintiff’s vehicle.

f. A declaration that the said publication of Plaintiff’s image in the Thursday 15th October, 2009 edition of the Daily Graphic amounts to libel.

g. An order of the Court to compel the Defendant to pay to the Plaintiff an amount of GH¢100,000.00 as general damages for libel and cost of the suit herein.

The Defendant entered appearance on 3rd November, 2010 and went ahead to file its statement of defence on 4th December, 2010. On 24th February, 2011, the Plaintiff filed a reply to the statement of defence and an application for directions in which it raised the following issues for determination:

(a) Whether or not by the nature of Plaintiff’s job with the Defendant Company same was affected by the global economic downturn for his appointment to have been terminated.

(b) Whether or not termination of Plaintiff’s employment as a result of the global economic downturn amounts to redundancy under the Ghana Labour Laws.

(c) Whether or not the Defendant used the global economic downturn as a ploy to terminate Plaintiff’s employment.

(d) Whether or not the circumstances under which the Plaintiff’s employment was terminated amount to unfair termination under the Ghana Labour Laws.

(e) Whether or not by the contractual agreement between the Plaintiff and the Defendant, Plaintiff was entitled to 90 days payment in lieu of notice of termination.

(f) Whether or not Defendant subjected Plaintiff to extreme duress into signing the Release and Quitclaim.

(g) Whether or not the signing of the Release and Quitclaim bars Plaintiff from claiming what was legitimately due him under the law.

(h) Whether or not by the very nature of Plaintiff’s job the termination of his employment by the Defendant should not warrant publication of same in the newspapers.

(i) Whether or not the publication of the Plaintiff’s termination of employment in the newspaper in the manner it was carried out amounts to defamation.

(j) Whether or not the Plaintiff is entitled to his claims.

(k) Any other issues raised by the pleadings.

The Defendant on the other hand filed the following additional issues on 1st March, 2011:

(a) Whether or not Plaintiff’s employment was terminated unlawfully.

(b) Whether or not the Plaintiff was unduly influenced to sign the termination agreement.

(c) Whether or not the publication in the Daily Graphic of Thursday, 15th October, 2009 was libelous and or defamatory.

(d) Whether or not Plaintiff suffered any damages from the said publication.

(e) Whether or not Plaintiff is entitled to any of the reliefs claimed.

In the said additional issues, the Defendant stated that issues (a), (b) and (c) of the additional issues be set down for legal arguments. On 10th March, 2011, this court set down for determination, all the issues in both the application for directions and the additional issues. However, upon agreement by the parties the court set down only additional issue (a) for legal arguments and parties ordered to file their written submissions. Parties complied with the order of the court by filing their written submissions.

On 9th day of June 2011, this court gave its ruling on the legal arguments and held that in view of the fact that, the Plaintiff was not given 90 days notice of the termination of his employment as stated in the Contract of Employment, the termination of Plaintiff’s employment by the Defendant was unlawful. Having resolved that issue which is the main issue for determination the court will go ahead to resolve the other issues.

The Plaintiff’s case is that he is a Canadian and by a Contract of Employment dated 9th day of February, 2009, he was engaged by the Defendant Company as its Marketing and Development Manager. As Marketing and Development Manager, Plaintiff’s duties involved sourcing out for jobs for the Company and also attending tendering and undertaking jobs and duties involving policy decisions in the Company. The duties assigned to the Plaintiff and their very nature place Plaintiff in a high management position and had for some occasions taken over the management of the Company in the absence of the Managing Director.

Under the Contract of his Employment, the Plaintiff was engaged to serve a probation period of 3 months after which he would be entitled to 3 months notice or pay in lieu of notice in the event that, the employer who is the Defendant herein decides to terminate the contract. Also by the said contract, in the event of termination of Plaintiff’s employment, the Defendant was to pay the Plaintiff a gratuity in accordance with local labour laws.

Per a letter dated 7th October, 2009, Plaintiff’s employment was terminated with effect from the same date on grounds that, there was a global economic downturn as a result of which there was no major project in sight. Plaintiff contends that, the position he occupied in the Defendant Company and the nature of services he rendered were such that his job could not have been affected by any alleged global economic downturn. His termination on the reasons assigned was, therefore, a hoax and same amounted to unfair termination.

It is the case of the Plaintiff that if his termination was due to global economic downturn as alleged by the Defendant, then he would be a redundant employee and upon termination was entitled to be paid severance award negotiated by the parties in accordance with Ghana Labour Laws. Even though, the Defendant purported to terminate his employment on grounds of redundancy, no negotiated severance award was paid to him.

Immediately after the termination of Plaintiff’s employment, he was compelled to sign a Release and Quitclaim in order for him to receive certain sums of money as settlement claim. Initially Plaintiff refused to sign the Release and Quitclaim but was told by the Defendant that no money would be made available to him until same was signed. He contends that considering his circumstances, he was under extreme duress to append his signature to the Release and Quitclaim in order for him to receive some moneys as final settlement of his claim.

He contends further that apart from Defendant’s refusal and or failure to negotiate and pay to him severance payment in accordance with Ghana Labour Laws, he was entitled to 3 months pay in lieu of notice one month of which was paid to him. Also by his Contract of Employment, his spouse was entitled to a return air ticket fare, which at that time amounted to $1,802.00 which was also not paid. In making Defendant’s acclaimed final payment to him, the Defendant wrongfully deducted from his entitlement and amount of $2,700.00.

Plaintiff contends further that he was entitled to medical treatment by his conditions of service and an amount of $500.00 he spent on his medical bill to the notice of the Defendant was also not paid to him. Whilst in the Defendant Company, the Plaintiff used his private vehicle for official duties and in the course of using it, it suffered a major break down which was later fixed at a cost of $6,264. The Defendant, however, refused to pay for the cost of repairs of the vehicle.

The Plaintiff avers that the Defendant caused to be published in the Thursday, 15th October, 2009 edition of the Daily Graphic at page 42, his photograph and passport details notifying the whole world that he has ceased to be its employee and that any other transaction done on its behalf would not be honoured by the Defendant. He claims that the nature of his job and the circumstances of his termination do not ordinarily call for the said publication. He does not handle money or anything of that nature for which after his exit, the Defendant should cause such publication. By the said publication, the Defendant is creating the impression that he is a criminal who might have done something terrible in the Defendant Company for which the general public is being warned against him. It is the case of the Plaintiff that the publication was actuated by the highest form of malice which has indeed imputed criminality on him. It has indeed dented his image and he has since been receiving calls from people who know him, enquiring of whether he had engaged himself in any criminality in Defendant Company. He has since lost several job opportunities as a result of the publication. So by the publication the Plaintiff has been libeled and indeed tremendously damaged.

In conclusion the Plaintiff avers that his termination was most unfair and is, therefore, entitled to the reliefs endorsed on his writ of summons.

The Defendant’s case on the other hand is that the Contract of Employment between the Defendant and the Plaintiff, dated 9th day of February, 2009 could be terminated by either party. It denies that the duty assigned to the Plaintiff placed him in a high management position as alleged by him. He only shared some management responsibilities in the absence of the General Manager of Defendant. It denies that Plaintiff discharged his duty with diligence and competence in accordance with dictates of his job.

The Defendant confirms that Plaintiff’s employment was terminated due to the global economic downturn and avers that per the Labour Act Plaintiff is not due anything more than he has already received. It denies that the nature of Plaintiff’s duties were such that he could not have been affected by any global economic downturn.

On the Release and Quitclaim, the Defendant contends that Plaintiff read and understood it before voluntarily appending his signature to it. It denies that Plaintiff signed it under extreme duress. It avers that on the day Plaintiff signed it he had packed and boxed his personal items and belongings and was ready to vacate the property provided by the Defendant. It contends that the Plaintiff began working for another company, WDP, in less than a week of his departure from the employ of the Defendant and the said company was a client of the Defendant.

The Defendant contends that a total sum of US$36,875.00 was paid to Plaintiff by the Defendant as severance payment upon mutual agreement to terminate the employment contract. On the issue of air ticket for Plaintiff’s spouse, the Defendant avers that the policy of the Defendant was that the ticket was to be purchased which ticket Plaintiff refused to accept.

The Defendant admits that whilst in the Defendant Company, the Plaintiff used his private vehicle for official duties. Plaintiff, however, agreed to be paid a monthly allowance for that in lieu of the use of the Defendant’s vehicle for official duties which was paid to him. It denies that by the said publication Plaintiff was libeled and as a result he has lost several job opportunities. It says Plaintiff had a job offer before his termination was a week old. It goes on to deny that the termination of Plaintiff’s employment was most unfair. It concludes that the Plaintiff is not entitled to his claim and same ought to be dismissed.

Having reviewed the evidence before the court, I will go on to evaluate the evidence vis-à-vis the issues this court has been called upon to determine. The issues will be taken seriatim. Issues (d) and (e) of the application for directions and issue (a) of the additional issues relate to the alleged unfair or unlawful nature of the termination so they will be taken together. Issue (d) of the application for directions is whether or not the circumstances under which the Plaintiff’s employment was terminated amount to unfair termination under the Ghana Labour Laws and the additional issue (a) is whether or not Plaintiff’s employment was terminated lawfully. Issue (e) of the application for direction is whether or not by the contractual agreement between the Plaintiff and the Defendant, Plaintiff was entitled to 90 days payment in lieu of notice of termination. The first two issues could be grouped together in one issue as whether or not the termination of Plaintiff’s employment by the Defendant was unlawful and unfair.

At the hearing of the application for directions on 10th March 2011, counsel for the Defendant moved the court to set down additional issues (a), (b) and (c) for legal arguments. The court, however, set down only additional issue (a) for legal arguments as a result of which parties were ordered by the court to file their written submissions which they obliged and the court gave its ruling on 9th day of June, 2011. The court ruled that the Defendant having failed to give the Plaintiff the required notice of 90 days as enshrined in the terms of the contract of Plaintiff’s employment, the termination of his employment was unlawful. The court having ruled that the termination of Plaintiff’s employment without the required notice was unlawful it follows that the termination of Plaintiff’s employment was unfair and I so hold.

On the issue of notice Clause 5 of the Contract of Employment, tendered in evidence as Exhibit A, shows how the contract of employment between the Plaintiff and the Defendant could be terminated by either party after the three months probationary period. The said clause states as follows:

“Following the Probationary period described in item 4, this contract may be terminated:

5.1 By the Employer without notice if the Employee:

5.1.1. Is absent without permission or cause for more than 7 consecutive days, in one year of service;

5. 1. 2. Violates safety rules;

5. 1. 3. Causes Substantial loss to the Employer;

5. 1. 4. Convicted of dishonesty;

5. 1. 5. Drunk on duty or is ill-disciplined.

5. 2 By the Employer giving 90 days’ notice in writing to the Employee.

5. 3 By the Employee giving 90 days’ notice in writing to the Employer.”

So by Clause 5.1 of the Contract of Employment the Plaintiff’s employment with the Defendant could be terminated by the Defendant without notice after the probationary period if the Plaintiff is involved in any of the following events:

(a) He is absent without permission or cause for more than 7 consecutive days or over 21 days in one year of service;

(b) He violates safety rule;

(c) He causes substantial loss to the Defendant company;

(d) He is convicted of dishonesty;

(c) He is drunk on duty or is ill-disciplined.

The said clause goes on to provide that the contract of employment could be terminated by either party by giving 90 days’ notice. No provision is made by the Contract of the Employment for payment in lieu of notice.

By a letter dated 7th October, 2009 Plaintiff’s employment with the Defendant was terminated by the Defendant without notice. The said letter goes on to state that the Plaintiff would be paid 30 days’ salary in lieu of notice. So the question is on what basis was the Plaintiff paid 30 days’ salary in lieu of notice? As has been stated elsewhere in this judgment no provision was made in the Contract of Employment for payment in lieu of notice which implies that the notice was mandatory. That is if any of the parties decides to terminate the contract for any reason other than the reasons stated in 5.1.1 to 5.1.5 of the Contract of Employment after the probationary period of 90 days notice. Meanwhile, in the letter terminating Plaintiff’s employment with the Defendant no notice was given. Rather he was given 30 days’ salary in lieu of notice.

From the evidence before the court in the instant case the parties have specifically agreed that their employment relationship should be governed by the Contract of Employment, Exhibit A. See Sections 17 and 19 of the Labour Act (Act 651) which provide as follows:

“17. (1) A contract of employment may be terminated at any time by either party giving to the other party,

(a) in the case of a contract of three years or more, one month’s notice or one month’s pay in lieu of notice;

(b) in the case of contract of less than three years, two weeks’ notice or two weeks’ pay in lieu of notice; or

(c) in the case of contract from week to week, seven days’ notice.

(2) A contract of employment determinable at will by either party may be terminated at the close of any day without notice.

(3) A notice required to be given under this section shall be in writing.

(4) The day on which the notice is given shall be included in the period of the notice.”

“19. The provisions of sections 15, 16, 17 and 18 are not applicable where in a collective agreement there are express provisions with respect to the terms and conditions for termination of the contract of employment which are more beneficial to the worker”.

In the instant case since the parties have agreed that their employment relationship should be governed by Exhibit A, the Contract of Employment signed by both of them, by Section 19 of the Labour Act, Section 17 of the Act is not binding on them. Rather it is the Contract of Employment that is binding on them.

By the terms of the Contract of Employment Plaintiff’s employment was for two years and by Clause 5.2 of Exhibit A, he was to be given 90 days’ notice for the termination of his employment. By the terms of the said contract Plaintiff could have also left the employment of the Defendant by giving the Defendant 90 days’ notice. See Kobea and Others v. Tema Oil Refinery and Akomea-Boateng and Others v. Tema Oil Refinery [2003-2004] SCGLR 1033; Kobi v. Ghana Manganese Co Ltd [2007-2008] 2 SCGLR 771 and Baiden v. Graphic Corporation [2005-2006] SCGLR 154.

In the Kobea’s case the Supreme Court in its first holding, delivered itself in the following words:-

“At common law, an employer and his employee are free and equal parties to the contract of employment. Hence either party has the right to bring the contract to an end in accordance with its terms. Thus, an employer is legally entitled to terminate an employee’s contract of employment whenever he wishes and for whatever reasons, provided only that he gives due notice to the employee or pay him his wages in lieu of notice. He does not even have to reveal his reason, much less to justify the termination...”

Also in Kobi v. Ghana Manganese Co Ltd (supra) Atuguba JSC states at page 775 as follows:

“What I consider to be trite learning on this issue is that a contract of service is not a contract of servitude. That being so, even if the contract of employment is silent on the question whether it is terminable, the common law implies a right to terminate the same by either side upon reasonable notice to the other ... Subject to this the right to terminate a contract of service is dependent on the terms of the contract and must be exercised in accordance therewith.”

In the instant case as has been stated elsewhere in this judgment the employment relationship between the Plaintiff and the Defendant was that of a “Fixed Term Contract of Employment” of two years and each party was required to give 90 days’ notice to terminate the employment relationship between them.

The letter terminating Plaintiff’s employment, Exhibit C shows that he was not given the required 90 days’ notice. Rather he was given 30 days’ pay in lieu of notice which does not form part of the contract. So by the contractual agreement between the Plaintiff and the Defendant the Plaintiff was entitled to be given only 90 days’ notice. However, if considering the circumstances of the termination of Plaintiff’s employment, it could not be possible to give notice so there should be payment in lieu of notice, then Plaintiff should have been paid 90 days pay in lieu of notice and not for the Defendant to unilaterally decide to pay him 30 days’ pay in lieu of notice. This is supported by Section 18 (4) of the Labour Act which states that either party to a contract of employment may terminate the contract without notice if that party pays to the other party a sum equal to the amount of remuneration which would have accrued to the worker during the period of notice.

In the instant case since the amount of remuneration which would have accrued to the Plaintiff during the period of notice was 90 days’ pay, if the Defendant had decided to terminate the Plaintiff’s employment without notice, then he should have been paid 90 days’ salary and not 30 days’ salary. Therefore, by the contractual agreement between the Plaintiff and the Defendant, Plaintiff was entitled to be paid 90 days’ salary in lieu of notice of termination.

Issues (a), (b) and (c) of the application for directions relate to the alleged global economic downturn so they will be taken together. Issue (a) is whether or not by the nature of Plaintiff’s job with the Defendant Company same was affected by the global economic downturn for his appointment to have been terminated; Issue (b) is whether or not termination of Plaintiff’s employment as a result of the global economic downturn amounts to redundancy under the Ghana Labour Laws and issue (c) is whether or not the Defendant used the global economic downturn as a ploy to terminate Plaintiff’s employment.

During his evidence-in-chief the Plaintiff tendered in evidence the letter terminating his employment as Exhibit C. The said letter states that, with the global economic downturn and with no major projects in sight, Red Sea Housing was by the letter informing the Plaintiff that his services would no longer be required by the Defendant. So by that letter Plaintiff’s employment was terminated with effect from the date of the letter which was 7th October, 2009. It is, therefore, clear from Exhibit C that the Plaintiff’s employment with the Defendant was terminated due to the alleged global economic downturn. It is not for this court to decide whether or not by the nature of Plaintiff’s job with the Defendant Company same was affected by the global economic downturn for his appointment to have been terminated. From Exhibit C, due to the global economic downturn, the Defendant had no major projects in sight so it decided to reduce its staff strength. The court is not privy to the criteria the Defendant decided to use in reducing its staff strength. It must be noted that Exhibit A allows each of the parties to the contract to terminate it at any time provided 90 days’ notice is given. See the case of Aryee v. State Construction Corporation [1984-86] 1 GLR 424, CA which states at holding 1 in the head note at pages 425 – 426 as follows:

“(1) A contract of service was not a contract of servitude. To say, as we were wont to do, that it gave rise to a master-servant relationship was to distort reality. The employee was not the servant, in the popular sense, of the employer. He was merely his employee. The contract was framed in such a way that either party might bring it to an end and free himself from the relationship painlessly. In this case, the appellant could, at anytime, give the relevant three months' notice or forfeit an equivalent in salary and leave the corporation without justifying his action to the corporation. In the same way the corporation need not assign any reason for choosing to terminate their contract with the defendant. The contract merely required the corporation to give three months' notice or its equivalent in salary and their conduct would be perfectly in order. On the evidence, the corporation discharged that obligation by giving the appellant three months' pay in lieu of notice. In the event, the termination was perfectly in accordance with the contract of service and could not be wrongful. The corporation misled the appellant, and perhaps the court below, by seeking to state the reasons for its action. It did not need to do that. The fact that it did, however, did not detract in any way from the general validity of their action...”

The same position of the law was taken in the following cases (1) Bannnerman-Menson v. Ghana Employers Association [1996-97] SCGLR 417, and (2) Nunoofio v. Farmers Services Co. Ltd. [2007-2008] SCGLR 926

In Bannerman-Menson’s case, the plaintiff was the Executive Director of the Ghana Employers Association and had been employed by the said Association for 19 years. The Association terminated his employment by giving him six months’ salary in lieu of notice. The Association did not give any reason for the termination of the employment of the plaintiff. The plaintiff being aggrieved sued the Association for wrongful termination of his appointment. The Supreme Court per Aikins JSC held that the effect of the provision in the employee’s conditions of service, namely, that the contract of employment was terminable by six months’ notice on either side, was that the employee could terminate the appointment by giving his employers six months’ notice if he decided to, without giving any reasons; so were the employers entitled to dispense with the employee’s service by giving him six months’ notice. This conforms to equitable principles. He further stated that the employers were under no obligation to give the employee, reasons for the termination of his appointment. It was, therefore, immaterial if they gave as a reason for the termination of his employment the fact that he had reached the age of sixty years. What was important was the mutual agreement of the parties that the contract of employment could be determined by giving six months’ notice of intention to do so.

In the case of Nunoofio v. Farmers Services Co. Ltd. (Supra) the defendant, Farmers Services Co. Ltd. employed the plaintiff as a commercial manager on one year probation. The appointment was confirmed a year later. About eight years thereafter, the plaintiff was demoted from commercial manager to area commercial officer. Then about a year later, the defendant terminated his appointment. The plaintiff being aggrieved commenced an action before the High Court, Bolgatanga seeking among other reliefs a declaration that his demotion and termination of appointment respectively was null and void, and damages for wrongful termination of appointment. It was held by the Supreme Court that since the plaintiff had been paid two months’ salary in lieu of notice as well as his terminal benefits in accordance with his conditions of service the termination of his employment was not wrongful.

Delivering the lead judgment, Her Ladyship Georgina Wood JSC (as she then was) stated at page 929 that:

“In law, the company was not obliged to give reasons for the said termination, but they did. It bears mention that this does not per se detract from the validity of the termination. Neither does it impose any burden on the defendant, at the hearing, to prove the facts alleged therein.”

In her concurring judgment, Her Ladyship Sophia Adinyira JSC said at page 940 that:

“In respect of termination, either party in a contract of employment has a right to terminate the contract. An employer is entitled at common law or under the terms of employment to terminate the contract of employee for whatever or without reasons subject to due notice to the employee or payment of wages in lieu of notice. An employee also has an equal right to terminate his contract by giving due notice to the employer or payment of wages in lieu.”

From the authorities referred to above, just as a worker can terminate the contract of employment with his employer at any time so an employer could terminate the contract of employment with the employee at any time and for any reason or for none. But if he does so in a manner not warranted by the contract then he will be in breach of the contract and must pay damages for breach of contract.

In the instant case the Defendant gave reasons for terminating Plaintiff’s employment as due to the global economic downturn and the fact that it had no major project in sight. From the authorities referred to above the Defendant was not bound to give reasons for terminating Plaintiff’s employment and the fact that it did, does not mean it should justify the termination. It is, therefore, my opinion that whether or not by the nature of Plaintiff’s job he should be affected by the global economic downturn or whether or not the global economic downturn was used as a ploy to terminate Plaintiff’s employment is immaterial. This is because the Defendant was not obliged to justify its reasons for terminating the employment of the Plaintiff.

It is, however, observed that if truly the Plaintiff’s employment was terminated due to the global economic downturn as a result of which the Defendant had no major project in sight, then the Plaintiff’s employment was terminated due to redundancy. This is because due to the fact that the global economic downturn had affected the rate at which it secured projects, there was going to be major changes in its production as a result of which the Plaintiff’s employment was affected. This was a clear case of redundancy.

Section 65 of the Labour Act, 2003 (Act 651) provides for how redundancy exercise should be undertaking in work places. 65(1) provides that when an employer contemplates the introduction of major changes in production, programme, organization, structure or technology of an undertaking that are likely to entail termination of employment of workers in the undertaking, the employer shall

(a) Provide in writing to the Chief Labour Officer and the trade union concerned, not later than three months before the contemplated changes, all relevant information including the reasons for any termination, the number and categories of workers likely to be affected and the period within which any termination is to be carried out; and

(b) Consult the trade union concerned on measures to be taken to avert or minimize the termination as well as measures to mitigate the adverse effects of any terminations on the workers concerned such as finding alternative employment.

In the instant case the Plaintiff being a senior officer was not a member of a trade union. More so he was an expatriate working under a specific Contract of Employment. Also the evidence does not show that other staff members were affected by the exercise. Considering the fact that the Plaintiff was an expatriate staff and was not a member of the trade union and also he being the only staff involved, there was no point involving the Chief Labour Officer in the exercise. The Defendant had to deal directly with the Plaintiff which it did by informing the Plaintiff of it in Exhibit A. However, the Plaintiff was entitled to be paid redundancy award which was to be negotiated between the Plaintiff and the Defendant. See Section 65 (2) of the Labour Act which provides as follows:

“Without prejudice to subsection (1) where an undertaking is closed down or undergoes an arrangement or amalgamation and the close down, arrangement or amalgamation causes

(a) severance of the legal relationship of worker and employer as it existed immediately before the close down, arrangement or amalgamation; and

(b) as a result of and in addition to the severance that worker becomes unemployed or suffers any diminution in the terms and conditions of employment, the worker is entitled to be paid by the undertaking at which that worker was immediately employed prior to the close down, arrangement or amalgamation, compensation, in this section referred to as “redundancy pay”.

From the said provision the fact that the Plaintiff herein is entitled to be paid redundancy pay is not in doubt.

Section 65 (3) of the Act provides that in determining whether a worker has suffered any diminution in his or her terms and conditions of employment, account shall be taken of the past services and accumulated benefits, if any, of the worker in respect of the employment with the undertaking before the changes were carried out.

Section 65 (4) of the Act goes on to provide that the amount of redundancy pay and the terms and conditions of payment are matters which are subject to negotiation between the employer or a representative of the employer on the one hand and the worker or the trade union concerned on the other. This clearly shows that the redundancy pay agreed upon between the Plaintiff and the Defendant is subject to negotiations.

Section 65 (5) of the Act explains what should be done where there is a dispute on the quantum of redundancy award to be paid to the redundant worker. It provides that any dispute that concerns the redundancy pay and the terms and conditions of payment may be referred to the National Labour Commission by the aggrieved party for settlement, and the decision of the Commission shall subject to any other law be final.

So from the evidence before the court since the termination of Plaintiff’s employment became necessary due to the alleged global economic downturn as a result of which the Defendant had no major project in sight, the termination amounts to redundancy under the Labour Act. This implies that the Plaintiff was entitled to be paid redundancy package which was subject to negotiations between the Plaintiff and the Defendant.

Issues (f) and (g) of the application for directions and the additional issue (b) relate to the signing of the Release and Quitclaim so they will be taken together. The said issues are; (f) whether or not Defendant subjected Plaintiff to extreme duress into signing the Release and Quitclaim; (g) whether or not the signing of the Release and Quitclaim bars Plaintiff from claiming what was legitimately due him under law and the additional issue (b) which is whether or not Plaintiff was unduly influenced to sign the termination agreement.

Plaintiff claims that immediately after the termination of his employment, he was compelled to sign a Release and Quitclaim to enable him to receive certain sums of money as settlement claim. He says he refused to sign it initially but he was told by the Defendant that no money would be paid to him until he signed it. He, however, claims that his financial circumstances were such that he was under extreme duress to the extent that he could not refuse to sign. He, therefore, had to sign it in order for him to be paid some moneys as final settlement of his claim. The Defendant, however, denies that the Plaintiff signed the Release and Quitclaim under extreme duress. It insists that the Plaintiff read and understood it before signing it.

The said Release and Quitclaim was tendered in evidence by the Defendant through the Plaintiff as Exhibit 1. It states in paragraph 1 that the Plaintiff had received from the Defendant all his entitlements in full and to his complete satisfaction. By paragraph 2 of the Release and Quitclaim, the Plaintiff waived, released, acquitted and discharged the Defendant of all claims, demands, damages, actions or causes of action that the Plaintiff might have against the Defendant. The said document was executed by the Plaintiff on 12th October, 2009. It is clear from the said exhibit that the Plaintiff was paid some moneys as his full entitlements for the termination of his employment. The evidence before the court, however, shows that Plaintiff’s employment was terminated due to redundancy. He is as a result entitled to be paid redundancy pay which must be negotiated. Meanwhile, there was no negotiation between the Plaintiff and the Defendant before he was paid the moneys paid to him by the Defendant as his entitlements. This court cannot therefore say with that degree of certainty that the moneys paid to him by the Defendant was in full satisfaction of what was due to the Plaintiff.

The court takes notice of the fact that the Plaintiff’s employment was terminated without notice on 7th October, 2009 and the “Release and Quitclaim” was signed on 12th October, 2009, 5 clear days after the termination of the employment of the Plaintiff. This shows that by the time the “Release and Quitclaim” was signed, the Plaintiff was no longer an employee of the Defendant and also the Defendant had already breached the employment contract by terminating Plaintiff’s employment without the required notice and also terminating his employment on grounds of redundancy without negotiating his redundancy benefit. The “Release and Quitclaim” cannot, therefore, operate retroactively to regularize the breaches committed by the Defendant in respect of termination of Plaintiff’s employment. In view of that the signing of the “Release and Quitclaim” by the Plaintiff is of no legal effect.

The court takes notice of the fact that by Exhibit D, the Final Settlement, the Plaintiff was paid the amount thereon on 12th October, 2009, the very day the “Release and Quitclaim” was signed. It is, therefore, my opinion that the Plaintiff had to sign it under extreme duress. It is also my opinion that the signing of the document does not bar Plaintiff from claiming what was legitimately due him under the law.

Issues (h) and (i) and additional issues (c) and (d) relate to the publication in respect of the termination of Plaintiff’s employment in the Daily Graphic so they will be taken together. Issue (h) of the application for direction is whether or not by the very nature of the Plaintiff’s job the termination of his employment by the Defendant should warrant publication of same in the newspapers; issue (i) of the application for directions is whether or not the publication of the Plaintiff’s termination of employment, in the newspaper in the manner it was carried out amounts to defamation; additional issue (c) is whether or not the publication in the Daily Graphic of Thursday, 15th October, 2009 was libelous and or defamatory and (d) is whether or not Plaintiff suffered any damages from the said publication. The said issues could be grouped together under the following headings: (i) whether or not the publication in the Daily Graphic of Thursday, 15th October, 2009 was libelous and or defamatory and (ii) whether or not Plaintiff suffered any damages from the said publication.

With respect to the first one, the evidence shows that after Plaintiff’s employment had been terminated the Defendant caused a publication in the Daily Graphic in respect of the termination. The Plaintiff claims that due to the said publication he received several calls from people enquiring from him what he had done. He says even the Head of Security at the Canadian Embassy called to enquire from him the cause of the publication. He says by the publication he was branded as a fraudster which dented his image. He also claims that as a result of the publication he found it difficult to secure a new job.

The page of the Daily graphic publication on the Plaintiff was tendered in evidence as Exhibit G. It is page 42 of the Daily Graphic of 15th October, 2009. The said publication which was captioned “NOTICE” and had a passport size picture of the Plaintiff beneath the caption had the following as its contents:

“This is to advise that MR JOHN LOGAN MICOCK, a Canadian National with passport Number BA 539935 has ceased employment with Red Sea Housing as of October 7, 2009.

Any and all transactions done on his behalf will not be honoured by Red Sea beyond this date.”

The publication just states that the Plaintiff had ceased working with the Defendant. It does not go on to give the circumstances under which he ceased working with the Defendant. It could be that, the Plaintiff resigned or his appointment was terminated or his contract had expired. None of these was stated in the publication. The evidence also shows that the Plaintiff was transacting business on behalf of the Defendant. So the publication was just to inform their clients that the Plaintiff was no longer working with the Defendant. In view of that whoever transacted business with him after the due date did so at his or her own risk and that the Defendant would not be held liable for any thing that happened in respect of the transaction since it would not honour such transactions.

I do not see how the said publication becomes libelous and defamatory since in my view it was done with no malice or intention to defame the Plaintiff. The court takes notice of the fact that the Plaintiff after his termination in October, 2009 started discussions with W.D.P and started working for it in January, 2010, two months after the termination of his employment. If truly, the publication had dented the image of the Plaintiff as he wants the court to believe, he would not have been able to secure new employment within two months after the termination of his employment. It is, therefore, my opinion that the said publication is not libelous and or defamatory. The Plaintiff has, therefore, suffered no damages as a result of the publication and I so hold.

The last issue for determination is whether or not the Plaintiff is entitled to any of the reliefs being claimed by him. On this issue I will take the reliefs seriatim and decide whether or not the Plaintiff is entitled to them.

The evidence before the court shows that the Plaintiff’s employment was terminated by the Defendant on 7th October, 2009 without the required notice. In view of that the court has declared that the termination of Plaintiff’s employment was unfair and unlawful. The Plaintiff claims damages for unfair termination. However, this court has no jurisdiction to grant damages for unfair termination. As provided by the Labour Act where an employee considers the termination of his employment to be unfair then the appropriate forum is the National Labour Commission and not the courts. See the case of Bani v. Maersk Ghana Limited (2011) 2 SCGLR 796. In that case, the plaintiff, Felix Yaw Bani and two others were found guilty in a report of a sub-committee set up by the defendant to investigate them for an alleged offence committed by them. Whilst plaintiff’s appointment was terminated by the defendant, the other two colleagues were only served with warning letters. The plaintiff being dissatisfied with the defendant’s action against him, sued the defendant company for, inter alia, a declaration that the termination of plaintiff’s appointment by the defendant was unlawful, unfair and without any basis whatsoever; and an order for the immediate re-instatement of the plaintiff. On the issue of unfair termination the Supreme Court held that the original jurisdiction has been reserved for the Labour Commission to the exclusion of the courts. Date-Bah JSC delivering the lead judgment of the Court stated at page 809 as follows:

“Section 64 of the Act provides that a worker who claims that his employment has been unfairly terminated may present a complaint to the Labour Commission established under the Act. If the Commission finds that the termination of the worker is unfair, it may give him or her one of three remedies specified in the Act: an order to the employer to re-instate the worker from the date of termination of employment; an order to the employer to re-employ the worker in the work for which the worker was employed before the termination or in any other reasonably suitable work on the same terms and conditions enjoyed by the worker before the termination; or order the employer to pay compensation to the worker. These statutory remedies are made available to the Commission but not, at least expressly, to the courts.”

On the authority of Bani v. Maersk Ghana Ltd (supra) as stated above, the Plaintiff in the instant case cannot come to this court seeking remedy for unfair termination. As has been stated elsewhere in this judgment it is the National Labour Commission that has original jurisdiction to adjudicate complaints of unfair termination of appointment. So by coming to this court for unfair termination the Plaintiff has come to the wrong forum so he cannot obtain his relief on that. However, based on an issue raised by the Defendant, this court has already declared that the termination of Plaintiff’s employment was unlawful. Even though the Plaintiff did not plead unlawful termination as a relief, since that issue came up and the court ruled on it, it follows that the evidence before the court supports that relief. The question that will have to be resolved is whether this court having declared that the termination of Plaintiff’s employment was unlawful it can grant damages for unlawful termination of employment, notwithstanding the fact that the Plaintiff did not plead it? See the case of Hanna Asi (No 2) v. GIHOC Refrigeration [2007-2008] SCGLR 16.

The main issue in that case was whether the applicant, Hanna Asi, because he did not make a counterclaim, could nonetheless be granted the remedies of declaration of title and recovery of possession. The trial High Court granted those reliefs to the applicant but on appeal from that decision, the Court of Appeal disallowed them on ground that the same had not been pleaded. The applicant appealed to the Supreme Court where the ordinary bench affirmed the decision of the Court of Appeal. The applicant applied for a review of the decision of the ordinary bench and the Supreme Court reviewed the decision of the ordinary bench by affirming the High Court’s decision. It held as follows:

“...a court may at any time, and on such terms as to costs or otherwise as the court may think just, amend any defect or error in any proceedings and in all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceedings. This power can be exercised by the court suo motu. Since the absence of a counterclaim can in thus in an appropriate case be cured by way of amendment, it is erroneous to hold that a court in its absence lacks jurisdiction to grant appropriate remedies to a defendant. The power of amendment also enables the court even where the defendant has not applied for such amendment to grant relief to a defendant who has not counterclaimed...”

Atuguba JSC in his opinion said at page 24 as follows:

“I have often in my judgments in this court stressed that the modern attitude of the courts is that as much as possible pleadings should not disable the doing of substantial justice and the power of amendment particularly aids and abets that objective, subject always to the requirements of fairness and justice in a particular circumstances of a case.”

Prof. Ocran JSC also said at page 40 of the same case that:

“Upon reviewing all these precedents, I have arrived at the conclusion that the case presently before us is reviewable, because the effect of our failure to correct the majority decision handed down at the ordinary panel of this court would be to brush aside a legitimate case of exceptional circumstances that would in turn result in a miscarriage of justice as “prejudice to the substantial rights of a party.” And I base my opinion on the real likelihood that applicant would be confronted with a brickwork defence of res judicata if he should attempt to return to the High Court to file a fresh case of recovery of title.”

Prof. Ocran JSC goes on to say at page 41 that:

“..., if we do not grant the applicant’s request for a formal declaration of title in this court but ask him to go back to the High Court to seek the relief under the circumstances of this case, we would be undercutting the importance of judicial economy and at the same time unduly increasing the cost of the citizen’s access to justice. More importantly, if the applicant’s case were thrown out in the High Court on grounds of res judicata, we would have unwittingly contributed to a gross miscarriage of justice.”

In the instant case as already stated elsewhere in this judgment, the Plaintiff pleaded for a declaration that his dismissal was unfair. It did not plead for the court to declare that the dismissal was unlawful. However, the Defendant made it an issue as a result which the court had to rule on it. The court ruled that in view of the fact that the Plaintiff’s employment was dismissed without the required notice the dismissal was unfair and unlawful. With respect to the unfair nature of the termination of Plaintiff’s employment, on the authority of Bani v. Maersk Ghana Ltd (supra) this court has no original jurisdiction to grant Plaintiff’s relief for damages for unfair termination of employment. That jurisdiction has been reserved for the National Labour Commission. However, in view of the fact that the facts before the court support unlawful termination of employment and in view of the fact that this court has ruled that the termination of Plaintiff’s employment was unlawful then on the authority of Hanna Asi (No. 2) v. GIHOC Refrigeration (supra) this court has jurisdiction to grant damages for unlawful termination of employment, notwithstanding the fact that the Plaintiff did not plead it.

In the opinion of this court failure to plead that relief by the Plaintiff should not disable the doing of substantial justice by this court. Granting the relief of unlawful termination of employment by this court will avoid a situation where the Plaintiff will have to incur unnecessary expense by going back to commence fresh action against the Defendant for that relief. It is, therefore, my opinion that, even though the Plaintiff did not plead damages for unlawful termination of employment since the facts of the case support that relief and the court has already ruled on it the Plaintiff is entitled to be granted damages for unlawful termination of employment. The question then is what quantum of damages is appropriate to be granted the Plaintiff? In deciding on the appropriate damages to be paid to the Plaintiff, the court will take into consideration damages paid in some decided cases.

In the case of GNTC and Anor. v. Baiden (1991) 1 GLR 567, the Supreme Court held that it would be unrealistic to pay the Plaintiff salary as though up to the date of the judgment of the High Court he was rendering services to the defendants. He was, therefore, awarded two years salary for wrongful dismissal. The Court also held that since the dismissal was a nullity and not merely wrongful, it was proper that the plaintiff be paid in addition all allowances he would have received during the period but excluding the salaries of servants of the corporation such as a driver or watchman, assigned to render him personal services. He was also entitled to gratuity and other retiring benefits as though he had retired from the service of the corporation at the end of the period.

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

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

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

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

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

The calculation of his entitlement should be reckoned on the substantive post he held at his dismissal. He was also entitled to damages for prospective loss of promotion and loss of

employment. He had been kept out of his employment for over ten years. If he had stayed in his job, he would have earned his promotion.”

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

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

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

So from the authorities referred to in this judgment on the issue of unlawful termination of employment, since the termination of Plaintiff’s employment has been held to be unlawful in ordering the quantum of damages to be paid to the Plaintiff I will consider the fact that Plaintiff’s Contract of Employment was expected to expire on 31st December, 2011. I will also consider the circumstances surrounding the termination of Plaintiff’s employment by the Defendant. I will also take into consideration the fact that Plaintiff has been able to mitigate his loss by securing another employment, which he first secured in January, 2010 at W.D.P and secondly, on 1st September, 2011 at Devtraco Real Estate Developers. Lastly, I will take into consideration damages paid by the courts in similar cases. Taking all these circumstances into consideration I consider damages of 12 months’ salary to the Plaintiff as appropriate.

The next relief is a declaration by this court that reasons assigned for the termination of Plaintiff’s employment amount to redundancy. On this relief considering the fact that the Plaintiff’s employment was terminated due to the global economic downturn which affected Defendant’s work, the termination amounts to redundancy so the Plaintiff is entitled to be paid redundancy package. However, by Section 65(4) of the Labour Act, the redundancy package to be paid the Plaintiff is subject to negotiations. This explains why in his address counsel for the Plaintiff submitted that this court should uphold Plaintiff’s relief (b) and order the Defendant to negotiate and pay to the Plaintiff his redundancy pay. Since the amount to be paid to the Plaintiff is subject to negotiations, this court cannot impose any amount on the Defendant as redundancy pay for the Plaintiff because doing that will amount to violating the provision in the Labour Act on redundancy. This court cannot, therefore, grant relief (d). It will rather order the Defendant to invite the Plaintiff for negotiations on the amount of money to be paid the Plaintiff as redundancy pay.

The next relief is an order of the court compelling the Defendant to pay to the Plaintiff an amount of $10,466.00 being wrongful deductions made from his entitlements, a return air ticket for his spouse, unpaid medical bills and repairs of Plaintiff’s vehicle. Details of the amount being demanded from the Defendant are as follows: $1,802.00 being a return air ticket for Plaintiff’s spouse at the time of his exit which he was entitled by his contract of employment but was not paid to him by the Defendant. He is also demanding the refund of $2,700.00 which was wrongfully deducted from his entitlement by the Defendant. He claims that this money was Defendant’s money in his custody which was in a briefcase in his car that was parked at Accra mall at the time thieves broke into the car and stole the briefcase. He is also demanding $500.00 medical expenses and $6,264.00 being repairs on his vehicle which he used for official purposes.

The Defendant, however, denies Plaintiff’s claim of the said amount and states that in respect of the air ticket, the policy of the Defendant was not to pay money in lieu of the ticket. Also the spouse of the Plaintiff left the country for personal reasons, three months before Plaintiff’s employment was terminated. With respect to the $2,700.00, the Defendant contends that the amount was stolen due to Plaintiff’s negligence so he was responsible for paying that amount and that explains why it was deducted from his entitlement. The Defendant also avers that it did not pay the $500.00 medical expenses to the Plaintiff because as its policy, the medication he went through requires pre-approval which the Plaintiff did not obtain. On the repairs of Plaintiff’s vehicle, the Defendant contends that for the use of his personal vehicle for official duties, Plaintiff was given a monthly allowance of $1,250.00 for repairs and maintenance. In addition to that he was given fuel allowance. He was as a result not entitled to be paid the $6,264.00 as reimbursement for the repairs on his vehicle.

On the issue of air ticket for the spouse of the Plaintiff, the evidence shows that by his Contract of Employment he was supposed to be given an air ticket in respect of the spouse to their destination. The evidence goes on to show that his spouse had left the country for Canada to attend to family matters about three weeks before the termination of Plaintiff’s employment. In my opinion since that was part of his entitlement, the fact that his spouse had left the country does not mean he should not be provided with the ticket. The Contract of Employment states that he was considered as a married employee and must be treated as such. At the time his wife left for Canada there was no indication that he was going to lose his job. Also the evidence did not show that his spouse had left the country for good. So since it is part of his entitlement he must be given, the absence of his spouse notwithstanding. Even though the contract says he must be provided with air ticket in respect of the spouse, it could be commuted to cash and given to him. He is claiming an amount of $1,802.00 which represents air ticket from Ghana to Canada his home origin which in the opinion of the court is reasonable and also the Defendant has not challenged that amount. The Plaintiff is as a result entitled to be paid $1,802 as air ticket in respect of his spouse.

In respect of the $2,700.00 which was stolen, the amount belongs to the Defendant and it was not stolen in the course of Plaintiff’s official duties. The evidence shows that he went to the Accra Mall, parked his car at the car park and left for the Mall itself. On his return the car had been broken into and a briefcase containing the money and some other items had been taken away. Since the money was stolen not in the course of Plaintiff’s official duties it is up to the Defendant to decide whether or not it would asked the Plaintiff to refund the money. The Defendant chose to take advantage of the payment of Plaintiff’s entitlement to him to deduct the amount from it. Since it is the Defendant’s right to demand the payment of the money from the Plaintiff if it has deducted it from the entitlement of the Plaintiff, it cannot be faulted. It is, therefore, the opinion of the court that the Plaintiff is not entitled to the refund of that money.

On the issue of medical expenses, the contract of employment is very clear that the Defendant would bear the cost of medical treatment required by the Plaintiff during the period of the contract. The Defendant, however, claims that it did not pay the $500.00 medical expenses to the Plaintiff because the medication he went through required pre-approval. In my opinion since the Defendant is not denying that the Plaintiff incurred the said medical expenses and since the hospital involved is one of the approved hospitals of the Defendant he is entitled to be paid the said amount.

With respect to the repairs on Plaintiff’s vehicle which he used for official duties, the evidence shows that for the use of Plaintiff’s vehicle for official duties he was paid a monthly maintenance allowance of $1,200.00. In addition to that he was given fuel on monthly basis. Since Plaintiff was paid maintenance allowance on monthly basis if he has incurred some costs on repairs of his vehicle he cannot demand it from the Defendant. It is, therefore, the opinion of this court that the Plaintiff is not entitled to be paid $6,264.00 being cost of repairs he allegedly incurred on his vehicle.

The next relief is for this court to declare that the publication of Plaintiff’s image in the Thursday 15th October, 2009 edition of the Daily Graphic amounts to libel and if so an order of this court to compel the Defendant to pay to the Plaintiff an amount of GH¢100,000.00 as general damages for libel and cost of the suit. Having established by this court that the said publication is not libelous, this court cannot declare that the publication amounts to libel and so Plaintiff is entitled to be paid general damages of GH¢100,000.00.

In conclusion I enter judgment for the Plaintiff as follows:

a. It is hereby declared that the termination of the Plaintiff’s employment by the Defendant is unfair and unlawful.

b. The Defendant is as a result ordered to pay to the Plaintiff 12 months’ salary as general damages for unlawful termination of his employment.

c. It is further declared that the reasons assigned for the termination of Plaintiff’s employment amounts to redundancy. The Defendant is as a result ordered to invite the Plaintiff for negotiations within one month for the payment of redundancy pay to the Plaintiff in accordance with the Labour Act.

d. The Defendant is ordered to pay to the Plaintiff an amount of $2,302.00 being an air fare of $1,802 in respect of Plaintiff’s spouse and $500.00 being Plaintiff’s medical expenses incurred by him but the Defendant has refused to pay.

e. The Defendant is ordered to pay to the Plaintiff costs of GH¢4,000.00.

COUNSEL

MR. PAUL OPOKU FOR THE PLAINTIFF

MR. JOHN F. APPIAH FOR THE DEFENDANT