DANAA NANTOMAH V. THE RESIDENT DIRECTOR, FRIEDRICH EBERT STIFTUNG
JUSTICE ERIC KYEI BAFFOUR
Labour Law – Termination and Dismissal – Distinction between dismissal and termination – Misconduct – Right of employer to dismiss summarily – Requirement of fair hearing – Audi alteram partem – Unfair termination – Jurisdiction – Labour Commission The plaintiff, a Programme Coordinator of the defendant organisation, sued for wrongful dismissal and/or termination, damages, payment of entitlements, and damages for discriminatory and unfair labour practices. He contended that his dismissal was motivated by hostility to his trade union activities and that he was not given a fair hearing prior to dismissal. The defendant maintained that the plaintiff was dismissed for proven misconduct arising from his mishandling of an official programme involving a visiting German Member of Parliament. The court distinguished termination from dismissal, holding that termination flows from the contractual right of parties to bring employment to an end with notice or payment in lieu, and that an employer is not bound to give reasons for termination if contractual procedures are complied with. Dismissal, however, is predicated on misconduct of a grave nature that undermines the employment relationship. Held: That the letter complained of, though referring in parts to termination, was in substance a dismissal for misconduct. That at common law, an employer is not obliged to observe the rules of natural justice in their strict form before summarily dismissing an employee for misconduct, provided the facts objectively justify the dismissal. That sufficient evidence existed on record to establish misconduct on the part of the plaintiff, justifying his summary dismissal. That even if the severance were construed as a termination, the defendant had acted in accordance with the terms of the contract by paying salary in lieu of notice, rendering the termination lawful. That claims founded on unfair termination under the Labour Act, 2003 (Act 651) fall within the exclusive jurisdiction of the National Labour Commission, and not the High Court in the first instance. Accordingly, the action for wrongful dismissal and/or termination failed and was dismissed in its entirety. Costs were awarded against the plaintiff in favour of the defendant.
Adisa Boya v Zenabu Mohammed (Substituted by Adama Mohammed) & Anor
Adinyira, JSC (Presiding), Dotse, JSC, Baffoe-Bonnie, JSC, Gbadegbe, JSC, Benin, JSC
The Supreme Court determined a land dispute involving competing claims of title derived from a common stool. The central issue was whether the plaintiff’s later grant, supported by a conveyance, could override the defendants’ earlier customary grant coupled with possession. The Court held that a prior customary grant, even if unwritten, takes precedence over a subsequent grant. The plaintiff’s grant was declared null and void, and the appeal was dismissed.
ROBERT ODEI-NTOW V. TULLOW GHANA LTD.
JUSTICE KWABENA ASUMAN-ADU
Labour Law – Contract of Employment – Probation – Termination during probation – Whether a probationary employee is a temporary worker – Right of employer to terminate without notice or reasons – Construction of termination clauses – Section 75 Labour Act, 2003 (Act 651) – Regulation 5, Labour Regulations, 2007 (L.I. 1833) FACTS The plaintiff was employed by the defendant company under a written contract as a probationary employee for an initial period of six months. The contract expressly stated that during the probationary period, the plaintiff’s performance would be kept under continuous review, and that either party could terminate the employment without notice during that period. While still within the probationary period, the defendant terminated the plaintiff’s appointment without assigning any reasons. The plaintiff was paid his accrued salary and entitlements up to the date of termination. The plaintiff contended that his termination was wrongful and unlawful, arguing that the defendant failed to conduct a proper performance appraisal, did not communicate any adverse assessment to him, and breached the provisions of section 75 of the Labour Act, 2003 (Act 651) which requires fairness in termination. He further claimed that he was entitled to notice, reasons for termination, and damages. The defendant argued that the termination was lawful, having been done strictly in accordance with the terms of the employment contract governing probationary appointments. HELD 1. A probationary employee is not a temporary worker within the meaning of section 78 of the Labour Act, 2003. Consequently, the statutory protection under section 75 of Act 651 does not apply to employees serving under probationary contracts. 2. Where a contract of employment expressly provides that either party may terminate the employment during the probationary period without notice, the employer is entitled to rely on that provision and terminate the appointment simpliciter. 3. An employer is not obliged to give reasons for terminating a probationary employee where the contract does not impose such an obligation. The law respects the freedom of contract, especially in probationary employment. 4. The requirement of “continuous review” of performance during probation does not mandate a formal appraisal system or the communication of assessment results to the employee, unless the contract expressly so provides. Performance may be assessed subjectively through observation. 5. The defendant, having acted strictly in accordance with the contractual terms governing probationary employment and having paid the plaintiff his accrued entitlements, did not act wrongfully or unlawfully. Accordingly, the plaintiff’s action failed and was dismissed.
DZIFA MAGDALENE ATIASE VS. BRIGHT YAO ATIASE
HER LADYSHIP JUSTICE ELFREDA AMY DANKYI (MRS)
This case involves a wife’s petition for divorce filed in 2022 under the Matrimonial Causes Act, 1971 (Act 367). The parties, both Ghanaian, were married in April 2006 under the Marriage Ordinance and had two children. The Petitioner sought dissolution on the ground that the marriage had broken down beyond reconciliation, attributing this to the Respondent’s unreasonable behaviour, including desertion, neglect, lack of communication, and failure to provide for the family. She testified that the Respondent left the matrimonial home shortly after the birth of their first child and remained largely absent and unresponsive despite attempts by family and clergy to reconcile them. The Respondent, in his Answer and Cross-Petition, denied the allegations and instead blamed the breakdown on the Petitioner and her family, claiming interference by her relatives made the marriage intolerable. He also sought a 50% share in various properties allegedly acquired during the marriage. However, both parties later filed terms of settlement, effectively resolving property and financial claims between them. The court identified the sole issue as whether the marriage had broken down beyond reconciliation. It noted that under Act 367, divorce may be granted where parties have not lived as husband and wife for at least five years or have been unable to reconcile their differences. Based on the evidence, the court found that the parties had lived apart for over five years and that all reconciliation efforts had failed. Accordingly, the court held that the marriage had broken down beyond reconciliation and granted a decree of divorce. It adopted the parties’ terms of settlement, under which neither party claimed interest in the other’s property and no alimony was payable. Custody arrangements allowed shared access, with the Respondent having visitation rights on weekends and during vacations. On maintenance, the court ordered the Respondent to pay monthly support for the children and to bear their educational and medical expenses. Each party was to bear their own legal costs, and the settlement was deemed a final resolution of all claims arising from the marriage.
SYLVESTER PEPARH VRS FELICIA BOADI SIAW
HIS LORDSHIP GABRIEL NENE KWAO MATE TEYE
This case concerns a divorce petition filed for the dissolution of an ordinance marriage contracted in February 2020. The Petitioner, a teacher resident in Ghana, alleged that the marriage had broken down beyond reconciliation due to the Respondent’s unreasonable behaviour. Specifically, he claimed that the Respondent subjected him to emotional distress, made threats to have him deported from the United Kingdom, and threatened self-harm in a manner that could implicate him legally. He further stated that they had ceased living together as husband and wife and that all attempts at reconciliation had failed. The Respondent, though duly served through substituted service in the United Kingdom, failed to enter an appearance, file a response, or participate in the proceedings at any stage. The court therefore treated the petition as unopposed, noting that a party who deliberately abstains from proceedings cannot later complain of lack of hearing. As a result, the Petitioner’s evidence remained unchallenged. In its analysis, the court emphasized that under the Matrimonial Causes Act, 1971 (Act 367), the sole ground for divorce is that the marriage has broken down beyond reconciliation, which must be proven through one or more statutory facts such as unreasonable behaviour or irreconcilable differences. The court also reiterated that even in undefended petitions, the Petitioner bears the burden of proof. Relying on the uncontroverted evidence, the court found that the Respondent’s conduct amounted to unreasonable behaviour and that the parties had irreconcilable differences with no possibility of reconciliation. The threats and breakdown in cohabitation demonstrated that the marriage could no longer subsist. Accordingly, the court held that the marriage had irreconcilably broken down and granted a decree of divorce, dissolving the marriage forthwith. No order as to costs was made, and both parties were left to go their separate ways.
PRINCE AHUGAH VERSUS BERLINDA MAWUKU MAYOR AHUGAH
HER LADYSHIP JUSTICE ENYONAM ADINYIRA
This case concerns a husband’s petition for divorce filed in 2022 under the Matrimonial Causes Act, 1971 (Act 367), on the ground that the marriage had broken down beyond reconciliation. The parties, married in December 2017 under ordinance law, lived together in Accra and had two young children. The Petitioner, an IT consultant, alleged that the marriage became characterized by constant suspicion, accusations of infidelity and fraud, and frequent conflicts initiated by the Respondent. He claimed the situation became so distressing that it affected his mental well-being and employment, ultimately leading him to seek dissolution. The Respondent, a parliamentary staff member, denied these allegations and presented a contrasting narrative. She maintained that there were no serious fights or accusations, and that the Petitioner’s behaviour changed after he lost his job. She alleged that he became unstable, aggressive, and at one point threatened her with a knife, creating fear for her safety. She further contended that the Petitioner needed psychological help and initially opposed the divorce, expressing willingness to reconcile. The court emphasized that under Act 367, divorce is granted only where a marriage has irretrievably broken down, proven through specific statutory facts such as unreasonable behaviour or failure to reconcile. Not satisfied that sufficient efforts had been made to resolve the issues, the court initially ordered counselling for both parties and psychological evaluation for the Petitioner. However, the Petitioner refused to comply with these directives and remained resolute in seeking a divorce. Given the continued refusal to reconcile and the evident breakdown of the marital relationship, the court ultimately found that the marriage had broken down beyond reconciliation. It therefore granted the dissolution. Custody of the children was awarded to the Respondent, with reasonable access granted to the Petitioner. The court further ordered the Petitioner to pay monthly maintenance, share educational and medical expenses equally, and provide a lump sum financial provision to the Respondent.
MARTHA AMA AGBODZA VS. EMMANUEL AGBODZA
HER LADYSHIP JUSTICE ELFREDA AMY DANKYI (MRS)
Matrimonial Causes – Dissolution of Ordinance Marriage – Breakdown of Marriage beyond Reconciliation – Consent Judgment – Property Settlement – Costs. This case concerns a petition by a husband for the dissolution of a marriage contracted on 5 July 1987 under the Marriage Ordinance in Accra. The Petitioner sought divorce on the ground that the marriage had broken down beyond reconciliation due to the Respondent’s unreasonable behaviour. The Respondent filed an answer and cross-petition, and both parties later submitted terms of settlement for the court’s approval. The evidence showed that the parties had experienced longstanding marital conflicts, including accusations of neglect, lack of communication, and disagreements over property decisions. The Petitioner alleged that the Respondent deserted the matrimonial home in 2010 and had since lived a separate life, including allegedly marrying another woman. The Respondent, however, attributed the breakdown to the Petitioner’s conduct, including undertaking a building project without his involvement and refusing reconciliation. Despite these conflicting claims, both parties agreed that they had lived apart for about seven years and that attempts at reconciliation by family and church members had failed. The main issue before the court was whether the marriage had broken down beyond reconciliation under the Matrimonial Causes Act, 1971 (Act 367). The court held that the prolonged separation and inability to reconcile satisfied the requirements under section 2(1)(e) and (f) of the Act. Accordingly, the marriage was dissolved. On ancillary matters, the court adopted the parties’ terms of settlement as a consent judgment. The court awarded the three-bedroom house at Frafraha to the Petitioner, made no order for alimony or financial provision, and directed that each party bear their own costs. In conclusion, the court granted the divorce based on long separation and irreconcilable differences, emphasizing that once the statutory conditions are met, and parties themselves acknowledge the breakdown, the court may dissolve the marriage and adopt agreed settlement terms.
PHILIS LARYEA V ISAAC NII TEIKO TAGOE
HIS LORDSHIP, JUSTICE ABOAGYE TANDOH
This case concerns a petition for the dissolution of a customary marriage contracted in 2002 between the Petitioner and the Respondent. The Petitioner sought a divorce on the ground that the marriage had broken down beyond reconciliation and further requested division of matrimonial property, refund of certain monies, alimony, and maintenance for their two children. The Petitioner alleged that the Respondent was unfaithful, brought another woman into the matrimonial home, subjected her to abuse, and neglected his responsibilities toward the family, including the upkeep and education of the children. She also claimed that she solely bore the cost of their daughter’s education abroad and lost money during an incident where her belongings were ransacked. The Respondent denied these allegations, contending that the Petitioner had abandoned the marriage, returned the customary drinks (signifying dissolution), and that the properties in question were acquired with another woman. The main issues before the court were whether the marriage had broken down beyond reconciliation and whether the parties were entitled to a share in the properties acquired during the marriage. On the issue of dissolution, the court found that although neither party sufficiently proved misconduct such as adultery or abuse, the evidence showed that both parties had withdrawn from the marriage and could no longer live together as husband and wife. The court therefore held that the marriage had broken down beyond reconciliation and granted the divorce under the Matrimonial Causes Act, 1971 (Act 367). Regarding property distribution, the court applied constitutional and judicial principles that property acquired during marriage is presumed to be jointly owned, and that both financial and non-financial contributions are relevant. The court rejected the Respondent’s claim that the house belonged solely to him and found that the matrimonial home and one tipper truck were jointly acquired. Accordingly, the court awarded the parties equal shares in the house, while the tipper truck was granted to the Respondent. The court, however, refused the Petitioner’s claims for refund of sums of money, holding that she failed to prove that the Respondent was liable for those expenses, as they were incurred without his involvement. On ancillary reliefs, the court awarded the Petitioner a substantial amount as alimony and ordered the Respondent to pay monthly maintenance for the children, in addition to covering their educational and medical needs. In conclusion, the court dissolved the marriage, ordered equitable distribution of property, granted alimony and child maintenance, and dismissed claims that were not sufficiently proven, emphasizing that proof and fairness guide financial and property reliefs in matrimonial disputes.
TONY BEN COBBINAH vs MERCY AMA PARKER
G. K GYAN-KONTOH ‘J’
This case involves a petition for the dissolution of a marriage celebrated under the Matrimonial Causes Act, 1971 (Act 367). The Petitioner sought a divorce on the ground that the marriage had broken down beyond reconciliation, while the Respondent filed a cross-petition seeking a share in the matrimonial home, a lump sum payment, and costs. The Petitioner alleged adultery against the Respondent, claiming she was caught with another man. However, this allegation was based on hearsay evidence given through his attorney and was rejected by the court for lack of proof. The Respondent denied the allegation and instead asserted that the Petitioner had neglected the marriage, lived abroad for over 20 years, and failed to provide financial support for several years. The main issue was whether the marriage had broken down beyond reconciliation. The court found that despite the failure to prove adultery, the parties had lived apart for many years, had no marital relations since 2012, and were unable to reconcile. The Respondent was also deemed to have effectively consented to the divorce. The court therefore held that the marriage had irreconcilably broken down and granted the divorce. On ancillary matters, the court held that although the matrimonial home was primarily financed by the Petitioner, the Respondent made non-financial contributions. Applying the principle that property acquired during marriage is presumed joint, the court awarded her a 50% share of the matrimonial home. The court further awarded the Respondent GH¢100,000 as a lump sum payment, considering the Petitioner’s higher earning capacity and failure to maintain her. Additionally, the court granted maintenance of GH¢500 per month for three years, despite it not being specifically claimed, and awarded GH¢20,000 in costs. In conclusion, the court dissolved the marriage and granted substantial financial and property reliefs to the Respondent, emphasizing that long separation, not just fault, is sufficient to establish breakdown, and that both financial and non-financial contributions are relevant in matrimonial property distribution.
MRS. CELESTINE Y. WIREDU VS. PROFESSOR JOHN WIREDU
HER LADYSHIP ELFREDA DANKYI (MRS)
This case concerns an amended petition by a wife seeking dissolution of her marriage and ancillary reliefs, including alimony, compensation, and equitable distribution of property. The parties were married under the Marriage Act in 1997 and had no children together, though each had children from prior relationships. The petitioner alleged that the marriage had broken down due to the respondent’s unreasonable behaviour and prolonged separation, stating that they had lived apart for about fourteen years. The respondent denied allegations of misconduct and instead attributed the breakdown to the petitioner’s poor treatment of his children from a previous marriage. Both parties, however, agreed that the marriage had irreconcilably broken down. The court found that the petitioner failed to prove allegations of unreasonable behaviour and adultery due to lack of sufficient evidence. Nonetheless, it held that the marriage had broken down beyond reconciliation based on the undisputed fact that the parties had lived apart for over five years and had been unable to reconcile. Accordingly, the marriage was dissolved under the Matrimonial Causes Act, 1971 (Act 367). On the issue of property, the petitioner sought equal distribution of two properties acquired during the marriage. The court acknowledged the presumption that property acquired during marriage is jointly owned but found that the respondent successfully rebutted this presumption. Evidence showed that the respondent solely financed and acquired the properties in his own name through loans, demonstrating an intention for sole ownership. Consequently, the court held that the Lakeside Estate house remained the respondent’s exclusive property. However, in the interest of equity, the court awarded the petitioner the Oyibi plot of land as a form of settlement. Regarding financial relief, the court denied the petitioner’s claim for alimony, noting that she was in a stronger financial position than the respondent, who was retired and earning a lower income. The claim for compensation was also rejected, as it lacked legal basis under the governing statute.
EUNICE TETTEH vs JAMES PARKER
G. K GYAN-KONTOH ‘J’
Matrimonial Causes – Dissolution of Customary Marriage – Breakdown of Marriage beyond Reconciliation – Property Distribution – Alimony – Custody. This case concerns a petition for divorce brought by the petitioner against her husband following the breakdown of their customary marriage contracted in 1987 at Odumasi Krobo. The parties cohabited in Takoradi and had three children, though only one survived into adulthood. The respondent later travelled to the United Kingdom for several years, during which time the petitioner managed the home and contributed to the family’s upkeep. Both parties agreed that the marriage had broken down beyond reconciliation, though they attributed fault to each other. The petitioner alleged persistent abuse, threats of death, lack of maintenance, and being forcibly ejected from the matrimonial home, which even led to police intervention. The respondent, while denying some allegations, admitted that they had lived apart since 2013 and had not maintained the petitioner during that period. The court, applying the Matrimonial Causes Act, 1971 (Act 367), held that the parties’ conduct, marked by hostility, lack of cohabitation, and absence of marital relations, clearly established that the marriage had broken down beyond reconciliation. Accordingly, the marriage was dissolved. On the issue of property, the dispute centered on a matrimonial home and a Nissan Primera vehicle acquired during the marriage. The court found that the house was jointly acquired, as it was built during the subsistence of the marriage and the petitioner made substantial contributions, including supervising construction and completing parts of the building. Consequently, the court ordered an equal division of the property, awarding each party one of the two flats. However, the vehicle was awarded to the respondent. Although the petitioner did not expressly claim alimony, the court exercised its equitable jurisdiction and awarded her GH¢10,000 as financial support, noting her lack of maintenance over several years and her vulnerable economic position. No order as to costs was made.
S. N. K. NUNOOFIO V. FARMERS SERVICES COMPANY
ARYEETEY J.A. (PRESIDING), TWENEBOAH-KODUAH J.A., QUAYE J.A
Labour Law – Employment – Demotion and Termination – Disciplinary Procedure – Termination with Notice Facts The respondent was employed in December 1986 as Commercial Manager of the appellant company; his appointment was confirmed in December 1987. In February 1997, without any prior disciplinary proceedings, the company demoted him to Area Commercial Officer, allegedly on grounds of poor performance. In January 1998, his employment was terminated by the Board under section 63 of the Senior Staff Conditions of Service, with payment of two months’ salary in lieu of notice. The respondent sued, contending that both the demotion and termination were wrongful for failure to comply with the prescribed disciplinary procedure. The High Court held both the demotion and termination to be null and void. The employer appealed. Issues 1. Whether the demotion of the respondent amounted to a disciplinary action requiring compliance with the disciplinary procedure under section 54(E) of the Senior Staff Conditions of Service. 2. Whether an employer who terminates employment in accordance with the contractual notice provision is required to justify or prove the validity of reasons assigned for the termination. Holding 1. Demotion: The demotion was wrongful, as it constituted a disciplinary action imposed without formally charging the respondent or affording him a hearing, contrary to section 54(E). 2. Termination: The termination was not wrongful, since it complied with section 63 by payment of two months’ salary in lieu of notice; the employer was not obliged to prove the validity of the reasons assigned for the termination. Disposition 1. Appeal dismissed in respect of the finding of wrongful demotion. 2. Appeal allowed in respect of wrongful termination. 3. Respondent entitled to the difference in salary and allowances between the posts of Commercial Manager and Area Commercial Officer from the date of demotion to the date of termination, with interest.
CHARITY AKU HOSU VRS. KINGSLEY ABOAGYE
HER LADYSHIP AFIA N. ADU-AMANKWA (MRS.) J.
Matrimonial Causes – Dissolution of Marriage – Adultery – Breakdown of Marriage beyond Reconciliation – Custody – Maintenance – Burden of Proof. This case involves a divorce petition filed by Charity Aku Hosu against her husband, Kingsley Aboagye Darkwah, on the ground that their marriage had broken down beyond reconciliation. The parties were married in April 2011 and had one child. The petitioner alleged that the respondent engaged in multiple acts of adultery, including an affair that produced a child out of wedlock, and failed to provide maintenance for her and their child. The couple had also lived apart since 2016, and the respondent later expressed his intention to end the marriage. The respondent did not contest the proceedings despite being duly served, leaving the petitioner’s evidence unchallenged. The court held that allegations of adultery, though requiring a high degree of probability, were sufficiently proven in this case and deemed admitted due to the respondent’s silence. Applying the Matrimonial Causes Act, 1971 (Act 367), the court found that the respondent’s conduct rendered continued cohabitation intolerable and established an irreconcilable breakdown of the marriage. On the issue of custody, the court applied the best interests of the child principle under the Children’s Act, 1998 (Act 560). Given that the child had been in the petitioner’s care since the parties’ separation, the court granted her full custody.
LUIGI MARTINIS V. OUMAROU KANAZOE
JUSTICE ERIC K. BAFFOUR
Labour Law — Employment contract—Termination—Whether employer must give reasons—Payment in lieu of notice — Unpaid salaries and allowances—Burden of proof—Parol evidence rule—Oral variation of written contract—Profit sharing claim—Tax liability of expatriate employee—Counterclaim—Set-off. The plaintiff, an expatriate project manager, was employed by the defendant company for the rehabilitation of the Dodo–Pepesu–Nkwanta Road in Ghana under a fixed-term contract which was orally extended. Upon termination of his employment, the plaintiff claimed unpaid salaries, allowances, one month’s salary in lieu of notice, compensation for work done on Sundays and public holidays, airfares, 10% of the project profit allegedly agreed orally, and unpaid income taxes. The defendant denied liability and counterclaimed for overpaid allowances. Held: 1. Termination of employment: An employer is not obliged to give reasons for terminating a contract of employment, provided termination is carried out in accordance with the contract. However, failure to give notice or pay salary in lieu of notice renders the termination wrongful. 2. Payment in lieu of notice: The plaintiff was entitled to one month’s salary in lieu of notice, as the defendant failed to prove payment of same. 3. Unpaid salary: The plaintiff was entitled to salary for the period worked after the date of his last payment and before termination. 4. Allowances for Sundays and public holidays: In the absence of express agreement on double pay, the plaintiff was entitled only to single-rate remuneration for work done on Sundays and public holidays. 5. Profit-sharing claim: The claim for 10% of the project profit failed. There was no clear evidence of a definite offer and acceptance, and silence or vague assurances could not constitute acceptance. The parol evidence rule barred reliance on alleged oral terms inconsistent with the written contract. 6. Airfares: Entitlement to air tickets for leave could not be converted into cash for leave not taken; the claim was dismissed. 7. Taxation: Income earned in Ghana is taxable in Ghana, regardless of where the contract was signed or payments made. The defendant was ordered to comply with Ghanaian tax laws and facilitate the plaintiff’s tax clearance. 8. Counterclaim: The defendant succeeded in part. The plaintiff was found to have been overpaid certain allowances, which were set off against sums due to him. 9. Damages and costs: The plaintiff was awarded nominal general damages for wrongful termination and costs, reflecting partial success. Disposition Judgment entered for the plaintiff in part; defendant’s counterclaim allowed in part; sums due to be set off accordingly.
DANIEL MCCARTHY V. GHANA BAUXITE COMPANY LTD.
YEBOAH CJ (PRESIDING), PWAMANG JSC, AMEGACTCHER JSC, TORKORNOO (MRS.) JSC, KULENDI JSC
Labour Law – Wrongful Dismissal – Fair Hearing – Disciplinary Proceedings – Collective Bargaining Agreement – Appeals The plaintiff, an employee of the defendant company, was summarily dismissed on allegations of involvement in fuel theft. The dismissal was effected during the pendency of police investigations which later exonerated him. The High Court upheld the dismissal, but the Court of Appeal reversed that decision and awarded damages equivalent to eighteen months’ salary. The defendant appealed to the Supreme Court. Held: The appeal was dismissed.
EBENEZER AGBEKO NORNORMEY & 7 ORS V. GHANA TELECOMMUNICATIONS CO. LTD
JUSTICE GEORGINA MENSAH-DATSA
Labour Law – Termination of Employment – Right of employer to terminate by notice or salary in lieu – Effect of alleged non‑compliance with internal performance procedures– Unfair termination – Jurisdiction – Labour Commission – Whether High Court has original jurisdiction– Redundancy – Burden of proof – Allegation of disguised retrenchment Facts The plaintiffs were employees of the defendant company (Vodafone Ghana) whose appointments were terminated on 5 October 2012 on the ground of poor performance. They contended that the termination was wrongful, unlawful, null and void, unfair, and a disguised retrenchment exercise intended to avoid the payment of severance awards under the Collective Bargaining Agreement (CBA). The plaintiffs argued that the defendant failed to comply with its Performance Management System (PMS) and Performance Improvement Plan (PIP) procedures prior to termination. The defendant maintained that it lawfully exercised its contractual and statutory right to terminate the plaintiffs’ employment after paying three months’ salary in lieu of notice in accordance with the Labour Act, 2003 (Act 651). Holding The court held that the termination of the plaintiffs’ employment was lawful. The plaintiffs failed to establish that the termination breached the terms of their employment contracts or any statutory provision. Consequently, all claims failed and judgment was entered for the defendant.
CHRISTIAN ADU-AMANING V. THE COCA-COLA BOTTLING CO. GH. LTD.
JUSTICE KWABENA ASUMAN-ADU
Labour Law – Termination of Employment – Verbal Termination – Conditions of Service – Notice or Payment in Lieu – Standard of Proof HEADNOTE The plaintiff, a Supply Chain Manager in the executive management grade of the defendant company, commenced an action claiming unlawful, wrongful, and unfair termination of his employment. He alleged that at an emergency management meeting, the defendant’s Chief Executive Officer verbally informed him and another manager that they were “fired” and gave them the option to resign within four days or be forced out. He contended that this amounted to termination contrary to the Labour Act, 2003 (Act 651), and the defendant’s Conditions of Service, and sought general damages, redundancy benefits, and interest. The defendant denied terminating the plaintiff’s employment and maintained that no dismissal occurred. It argued that the plaintiff remained an employee, as evidenced by his submission of medical excuse duty notes, continued enjoyment of employment benefits, and receipt of salary. The defendant further counterclaimed for payment in lieu of notice on the basis that the plaintiff had wrongfully terminated his employment by refusing to report to work after the expiry of his excuse duty. Held: 1. On termination by verbal utterance: Where an employment contract and conditions of service require termination to be effected by written notice or payment in lieu of notice, a mere verbal statement by an employer, even if made in anger, does not amount to a lawful termination of employment. 2. On subsistence of employment relationship: The plaintiff’s submission of medical excuse duty notes to the defendant, acceptance of salary payments, and continued enjoyment of employment benefits after the alleged verbal dismissal were acts inconsistent with a completed termination and constituted recognition of the continuing employer–employee relationship. 3. On standard of proof in civil cases: In civil proceedings, the burden of proof rests on the party asserting a fact, and the court must determine the issues on a balance of probabilities pursuant to section 14 of the Evidence Act, 1975 (NRCD 323). 4. On wrongful termination claim: The plaintiff failed to establish that his employment was lawfully or effectively terminated by the defendant prior to the institution of the action. Consequently, he was not entitled to the reliefs claimed. 5. On the counterclaim: Although the plaintiff’s action in staying away from work was influenced by the conduct and utterances of the defendant’s Chief Executive Officer, it would be unjust to hold that the plaintiff wrongfully terminated his employment. The defendant was therefore not entitled to its counterclaim for payment in lieu of notice. Decision Judgment entered for the defendant on the plaintiff’s claims. The defendant’s counterclaim was dismissed. No order as to costs.
CHATLANI V. HAROUTUNIAN
ABBAN J.
Labour Law – Termination of Employment – Leave Entitlements – Gratuity – Misconduct – Employer’s Counterclaim Headnote The plaintiff, employed initially as a storekeeper and later promoted to manager of the defendant’s business, brought an action claiming damages for wrongful dismissal, payment in lieu of accumulated leave, and gratuity. The employment relationship was governed by an oral contract, under which the plaintiff was entitled to one month’s annual leave. Owing to the defendant’s refusal to grant leave on the ground that there was no suitable replacement, the plaintiff worked for several years without taking leave. Following discovery of shortages in stock and cash during periodic stock-taking exercises, the defendant summarily dismissed the plaintiff without notice. The plaintiff contended that the dismissal was wrongful and ulteriorly motivated. The defendant maintained that dismissal was justified by the plaintiff’s incompetence and misconduct and counterclaimed for the shortages and unpaid monies taken by the plaintiff. Held: 1. In the absence of an express agreement to the contrary, a term entitling an employee to annual leave may be implied, particularly where such benefit is customary in the employment. An employee who is denied leave at the employer’s insistence is entitled to recover accumulated leave salary up to the date of termination. 2. Where an employment contract contains no express provision as to termination, the employment is determinable by reasonable notice; however, summary dismissal is justified where the employee’s conduct or incompetence undermines the trust and confidence essential to the employment. 3. Persistent and unexplained shortages in stock and cash, coupled with the employee’s failure to exercise proper supervision and honesty in a position of trust, constituted sufficient grounds justifying summary dismissal. Accordingly, the plaintiff’s dismissal was not wrongful. 4. Gratuity is not payable as of right; it depends on faithful and efficient service and absence of misconduct, and must be grounded in express or implied contractual terms. The plaintiff was therefore not entitled to gratuity. 5. An employer is not entitled, in the absence of an express or implied agreement, to recover business losses or stock shortages from an employee merely because the employee was in charge of the business, unless misappropriation or contractual liability is proved. Result: Judgment entered for the plaintiff for accumulated leave salary. Defendant’s counterclaim dismissed except as to repayment of the outstanding balance of money taken by the plaintiff.
NATIONAL LABOUR COMMISSION V. PERGAH TRANSPORT LIMITED
JUSTICE GIFTY DEKYEM
Labour Law – Enforcement of National Labour Commission orders – Application to compel compliance – Redundancy pay – Termination during annual leave – Payment in lieu of notice – Burden of proof. The National Labour Commission applied to the High Court under Order 19 of C.I. 47 and section 172 of the Labour Act, 2003 (Act 651) for an order compelling the respondent to comply with its prior decision which awarded redundancy pay and payment in lieu of notice to a dismissed employee. The court held that, for a worker to be entitled to redundancy pay under section 65(2) of Act 651, it must be proven that the termination resulted from the employer’s closure, arrangement, or amalgamation. A mere restructuring of the company, without evidence of closure, arrangement, or amalgamation as defined under section 229 of the Companies Code, 1963 (Act 179), does not entitle an employee to redundancy pay. The Commission therefore erred in awarding same. On notice of termination, the court held that section 17 of Act 651 permits termination of employment at any time upon giving the requisite notice or payment in lieu thereof, and the law does not prohibit service of notice during an employee’s annual leave. Where notice is duly served, an employee is not automatically entitled to payment in lieu of notice merely because the notice was served while the employee was on leave. The court further reaffirmed the principle that a party who asserts a fact bears the burden of proving it, and failure to adduce corroborative evidence where an averment is denied is fatal to the claim. Accordingly, the application to compel compliance with the Commission’s decision was refused.
SAMUEL A. DANKWA V. GHANA TELECOMMUNICATIONS CO. LTD
JUSTICE KWABENA ASUMAN-ADU
Labour Law – Termination of Employment – Notice of termination – Effect of Labour Act, 2003 (Act 651) Facts The Plaintiff, an employee of the Defendant company, resigned from his employment with immediate effect and offered to pay one month’s salary in lieu of notice pursuant to section 17 of the Labour Act, 2003 (Act 651). The Defendant rejected the resignation on the ground that the Plaintiff’s contract of employment required three months’ notice or three months’ pay in lieu of notice. When the Plaintiff failed to report for work thereafter, the Defendant summarily dismissed him. The Plaintiff sued for wrongful dismissal and other reliefs, while the Defendant counterclaimed for breach of contract based on failure to give three months’ notice. Issues 1. Whether a contractual provision requiring an employee to give three months’ notice of termination was lawful. 2. Whether section 19 of the Labour Act applied to validate the contractual notice period. 3. Whether the Defendant was obliged to accept one month’s salary in lieu of notice under section 17 of the Labour Act. Holding 1. A contractual provision requiring three months’ notice of termination from an employee was unlawful where it was less beneficial than the statutory provision under section 17 of the Labour Act. 2. Section 19 of the Labour Act did not apply, as there was no collective agreement and the contractual term was not more beneficial to the worker. 3. The Defendant was obliged to accept one month’s salary in lieu of notice upon the Plaintiff’s resignation