NYARKO VRS DANGOTE CEMENT GHANA LTD (H1/131/21) [2022] GHACA 118 (1 December 2022)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA CORAM: - SENYO DZAMEFE, JA (PRESIDING) AMMA GAISIE, JA NOVISI ARYENE, JA Civil Appeal Suit No: H1/131/21 1st December, 2022 MARY NYARKO - PLAINTIFF/APPELLANT VRS. DANGOTE CEMENT GHANA LTD - DEFENDANT/RESPONDENT JUDGMENT DZAMEFE, JA The Appellant instituted an action by writ of summons and statement of claim seeking the following reliefs;- i. ii. iii. Declaration that her dismissal was wrongful Damages for wrongful dismissal Benefits as at the date of dismissal. The appellant per her statement of claim filed on 1st March 2016, was employed as the Human Resource Manager by the Respondent. She averred sometime in 2014, she was approached by the chairperson of the Dangote Cement Ghana Ltd Workers Union, one Thompson Ntow, on behalf of the employees who wanted introductory letters for loan applications that they were processing personally with Sinapi Aba Savings and Loans Limited. The Union chairperson submitted a list of employees who needed the introductory letters and had attached the respective pay slips of the employees. Appellant further averred that in her capacity as Human Resource Manager, she issued introductory letters for the list of employees submitted to her by the Union Chairperson. Subsequently, it was discovered that the Union Chairperson had mislead the Appellant by adding the name of a non-employee, Noah Frimpong, to the list he submitted to the Appellant and also misrepresented the job description of another employee on the list. An investigative committee was established to look into the matter but same did not afford the appellant a fair opportunity to be heard on the matter. The respondent dismissed the appellant on grounds that by issuing the introductory letters, she had been fraudulent, grossly negligent, had seriously misconducted herself, was guilty of dereliction of duty and had breached the trust reposed in her by the company. Appellant averred that the grounds on which she was dismissed were not factual and accordingly the dismissal was wrongful. The respondents in their statement of defence filed on 28th April 2016 (at page 10-13), denied the appellant’s claim of wrongful dismissal and averred that the dismissal was not wrongful because an investigative committee was set-up and it found that the appellant was fraudulent, grossly negligent, had seriously misconducted herself and been found guilty of dereliction of duty and breach of trust when she issue the introductory letters. Respondent averred that it was on the basis of the committee’s findings that the appellant was dismissed. In reply filed on 6th June 2016, the appellant further denied all allegations of wrongful dismissal stating that she took all reasonable precautionary steps before the letters were issued. At the close of pleadings, the issues set down for trial were; a. Whether or not the Internal Audit Department found the performance of the Human Resource and Administrative Department unsatisfactory ad the plaintiff was competent at her job? b. Whether or not the plaintiff was attacked by the General Manager? c. Whether or not the alleged conduct of the plaintiff adversely affected the interest of the defendant? d. Whether or not the plaintiff’s dismissal was wrongful? e. Whether or not the plaintiff’s conduct whiles in the employ of the defendant amounted to gross misconduct? f. Whether or not the investigative committee established serious misconduct, gross negligence, dereliction of duty and breach of trust against the plaintiff and recommended her dismissal? g. Whether or not the plaintiff is entitled to her claims? The trial High Court delivered its judgment on 26th March 2018 dismissing the claims of t e appellant. Aggrieved and dissatisfied with the judgment the appellant launched this appeal on the following grounds;- a. The judgment is against the weight of evidence. b. The court erred in relying on the Investigative Committee Report to dismiss the plaintiff’s claim when the report itself was founded on incorrect conclusions of facts. c. The court erred in its finding that the reasons given by the Investigative Committee is dismissing the plaintiff were legally and factually justified. d. The learned trial judge’s holding that the plaintiff’s conduct of issuing the introductory letters to Sinapi Aba Savings and Loans Company Limited had an adverse effect on the defendant is not warranted by law and the evidence before the court. e. The court erred in failing to consider the fact that the defendant breached the rules of natural justice when it dismissed the plaintiff. f. The court erred in holding that an outright dismissal was fair and legally justified under the circumstances. GROUNDS I, II III AND VI 1. The judgment is against the weight of evidence. 2. The court erred in relying on the investigative committee report to dismiss the plaintiff’s claim when the report itself was founded on incorrect conclusions of facts. 3. The court erred in its finding that the reasons given by the investigative committee in dismissing the plaintiff were legally and factually justified. 4. The court erred in holding that an outright dismissal was fair and legally justified under the circumstances. Counsel submits that the High Court’s conclusion that the appellant was guilty of negligence and dereliction of duty which justified her dismissal is erroneous and not supported by the evidence on record. That the learned trial court judge failed to take into account the factual circumstances surrounding the appellant’s actions as revealed by the evidence. Counsel referred this court to the case of Boateng vrs Valco[1984/6] l GLR 735 where this court differently constituted held that “there is no fixed rule of law defining the degree of misconduct which will justify dismissal from service. It is a question of fact whether the degree of misconduct is inconsistent with the fulfillment of the express or implied conditions of service, so as to justify dismissal”. (Emphasis mine) Counsel said based on this principle the court ought to properly examine all relevant facts to come to its conclusion. He said in the instant appeal although the trial judge rightly found that there was no proof that the appellant had acted dishonestly or fraudulently by signing the introductory letters, the judge contrary to pertinent facts revealed by the evidence on record concluded that the appellant had neglected her duties which constituted serious misconduct. Counsel submits that the trial judge based her decision on the findings of the respondent’s investigative committee set up to investigate the matters, however those conclusion arrived at by the committee and recognized by the trial judge as constituting valid reasons for the appellants’ dismissal were incorrect and not supported by any evidence as well as legally and factually unjustified. The findings by the trial judge of negligence and dereliction of duty stemmed from the following conclusions of the respondents’ investigative committee – [page 278-9 ROA] a. That no employee actually requested a letter of introduction from the Human Resource and Administration Department. b. That a non-employee was amongst the list of persons in the introductory letter. c. That the appellant recruited someone without carrying out necessary checks. d. That the appellant failed to notice that portions of the loan applications brought to her were fraudulently filled by the Union Chairman. e. That the appellant failed to notice forged pay slips attached to the loan applications. f. That the appellant failed to do anything about a complaint of fraud lodged by employees of the respondent. g. That the appellant described an employee as a “Tank Attendant” instead of a “loader” in exhibit “HI”. It is counsel’s opinion that the committees’ report contains vague conclusions which have no factual basis and are mere suspicions. That if the judge had taken into careful consideration key facts unraveled by the evidence adduced in the trial, would have realized that the basis for the appellant’s dismissal was wrongful. Counsel submitted that thought the trial high court judge rightly found after the trial that there was no proof that the appellant had acted dishonestly or fraudulently by signing the introductory letters, yet contrary to pertinent facts revealed by the evidence on record concluded that the appellant had neglected her duties which constituted serious misconduct. Counsel submitted that from the cross examination of the appellant it came out clearly that she was not negligent. That she received the list from the Union Chairman and one other senior officer. She referred the list to the Pay Roll officer who cross checked and affirmed the status of the workers on the list before she gave the introductory letter. That the appellant did what any reasonable person in her position would have done and would not have suspected any fraudulent intentions on the part of the Union Chairman. That the appellant acted on the reasonable confidence and that which the union Chairman’s office created between the Union and management of the respondent. There was therefore no reasonable cause for the appellant to suspect any deception on the part of the Union Chairman. Counsel opined that it was most unfair to ignore the circumstances highlighted in the appellants cross examination to hold that she had been negligent and guilty of dereliction of duty when she acted like any reasonable person would have done. Counsel submitted further that the conclusion that the appellant failed to properly review the loan application forms of the employees was also unsupported by the evidence on record because those forms were never submitted to the appellant. Those forms from the evidence were completed at the bank and submitted. That the appellant had nothing doing with those loan application forms since these were private loans being applied for by the employees within their private rights. The appellant had no responsibility or oversight on the loan application process. The appellant in her capacity as the Human Resource Manager, merely granted a request for introductory letters which were eventually rendered useless because from the evidence available they were issued long after the loans had been approved and disbursed. On the allegation of the appellant recruiting a former loan officer of Sinapi Aba without proper background checks, counsel submit is unsubstantiated by the evidence on record. He said absolutely no evidence was adduced to prove that such an officer was recruited by the appellant. Counsel submit that the appellant as the Human Resource Manager, though her department plays a vital role in the process of recruiting staff, the appellant did not have the ultimate power to employ. The assertion that the appellant did so is therefore baseless and ought not to have been accepted by the learned judge in the absence of evidence proving same. On the issue of the appellant being negligent because exhibit “HI” had misdescribed one employee, Noah Frimpong as a “Tanker Attendant” so he would qualify for the loan is not supported by the evidence on record because the apparent misdescription was clarified by the appellant in cross examination – [page 217 of ROA] The appellant explained that “tank attendants or silo attendants as we called them and “loaders” were all in the production department and they took the same salary so they were often interchanged without any notice to Human Resource”. Counsel said the appellant in cross examination revealed that the loaders and tank attendants work in the same department, both designations were on the same salary grade and owing to how related their roles and duties are, workers interchange roles on the field as convenience would demand. Counsel explained that the first introductory letter by the appellant exhibit ‘H” did not specify designations of the staff as in the second letter exhibit “H1”. It is his submission that for the trial judge to treat the second letter, exhibit H1 as fatal and amounting to negligence and dereliction of duty is untenable and unsupported by the evidence on record. Counsel submits also that it is imperative to note that neither of the introductory letters issued by the appellant made reference to a loan application. The letters merely requested that persons named therein be accorded the needed assistance. The letters were in no way recommendations for loans nor were they to persuade the recipient bank to approve any loan application. Counsel contends that the conclusion that the introductory letters issued by the appellant confirmed the loans was not true nor supported by the evidence on record because before the introductory letters the said loans had already been approved and disbursed. So therefore the findings that some employees did not request for introductory letters to transact business with the Sinapi Aba was not supported by the evidence on record and therefore that finding was wrong and cannot constitute a ground for holding that the appellant was negligent. Counsel for the respondent in answer said the respondent had a policy to use only five listed or specific banks in relations to employees’ salaries, overtime and other benefits including loan agreement. This policy was to enable management monitor and have correct details on staff salaries and effective accountability. This policy he said was authored, signed and circulated by the appellant. It is his submission that the appellant went contrary to the above directive and issued introductory letters to 18 employees of the respondent company to Sinapi Aba Saving and Loan Company Limited without the knowledge or direct involvement of some of these employees. He said it is also a fact that Sinapi Aba was not one of the listed banks in the Respondent’s directive. It is his contention that when the knowledge of the fraud perpetuated on some of those employees got to the appellants’ knowledge she as Human Resource Manager failed to take any action. Counsel submits that the appellant listed one Marvin Akrofi, who was not an employee of respondent, also one Noah Frimpong without his knowledge of any loan application. That she misrepresented Noah Frimpong position and salary level on the loan forms by inflating his salary and processing a loan which he never applied nor benefited from. Counsel contends that the appellant had exhibited gross insubordination, disloyalty and negligence towards the respondent’s business processes and was rightly held by the trial High Court Judge to have misconducted herself. By failing to properly scrutinize her work carefully and diligently the appellant was guilty of dereliction of her duties and by extension allowed the Chairman of the workers union to use her to fraudulently acquire loans on innocent employees and defaulting on these loans. Counsel referred this court to the provisions of the Labour Act, 2003 (Act 651) which provides in Section 15 (e) (iii) the grounds under which a contract of employment may be terminated as:- “By the employer because of the inability for the worker to carry out his or her work due to proven misconduct of the worker”. Counsel also referred this court to the case of Aryee vrs State Construction Corporation [1984/6] 1 GLR 424 per Adzoe JSC that “Once there was evidence or record sufficient to justify the conclusion that the plaintiff’s behavior amounted to misconduct, the learned trial judge did not have to concern himself with whether these had been compliance with the rules the natural justice unless there was a contractual provision to the contrary”.(Emphasis mine) Counsel submitted that the trial judge had made findings of fact from the investigative committees’ report and found evidence to support those findings. The principal reason for the dismissal of the appellant was based on misconduct which the investigative report established as a fact. The appellants appeal must therefore fail. GROUND I, II, III & VI There are a plethora of authorities to the effect that when an appellant’s ground of appeal is the omnibus ground that the judgment is against the weight of evidence such appellant is inviting the appellate court to rehear the matter. It is thus incumbent on the appellate court, in civil cases, to analyses the entire record of appeal, take into account the testimonies and all documentary evidence adduced at the trial before arriving at its decision so as to satisfy itself that, on a preponderance of probabilities, that the conclusions of the trial judge are reasonably or amply supported by the evidence. Simply put, what the appellant meant is that certain pieces of evidence if used in his favour would have changed the decision into his favour and also certain pieces of evidence were wrongly used against him that made the court found against him. It is however incumbent on such an appellant to point out those mistakes he is alleging. See;- (i) (ii) Tuakwa vrs Bosom [2001/2] SCGLR 61 Musah Baako vrs Djin [2007/8] SCGLR 686 The law is that, the appellate court ought not under any circumstances interfere with the findings of fact made by the trial judge unless it would be clearly establish that the trial judge was wrong and where the appellate court comes to the conclusion that the trial court was right, the appeal be dismissed. Bonney vrs Bonney [1992/3] GBR 779 SC Ogbarmey Tetteh vrs Ogbamey Tetteh [1993/4] 1 GLR 353 SC An appeal is by way of rehearing especially with the omnibus ground as stated earlier in the judgment. We shall therefore revisit the issues set down for trial before the high court to see if the findings of the trial court were supported by the evidence on record. Issue 1 & 2 are not of any much importance to the instant appeal. Issue ‘e’ is of most importance and gemaine to this instant appeal. That is “whether or not the plaintiffs conduct whiles in the employ of the defendant amounted to gross misconduct”. The trial court dealt with issues “d”, “e” & “f” together and so shall I. The trial judge distinguished “dismissal” and “termination”. She said “A dismissal can only come from the employer and unlike a termination which may not go with reasons a dismissal on the other hand usually requires the reasons, a dismissal on the other hand usually requires the reason or reasons for the dismissal to be stated. Furthermore, a dismissal connotes misconduct or wrongdoing as such an employee accused of any such misconduct has to be taken through any available internal disciplinary processes which must include the observance of the rules of natural justice, to establish the guilt or otherwise of the employee before any action is taken against the employee”. Exhibit A which is the plaintiffs appointment letter provides among others as follows;- “The company (respondent) however reserves the right to dispense with your services if you are found guilty of corporate offences such as theft, drunkenness, sleeping on duty, bribery and corruption, insubordination etc”. (Emphasis mine) The learned trial judge continued that those offences stated may be classified as misconduct. She states “in general, misconduct in the workplace is characterized as an objectionable action that is wilful but in some instances as careless act could also amount to serious misconduct even if not a deliberate act, provided it has the effect of destroying or undermining the relationships of trust and confidence between the employer and employee. Exhibit Q, the appellants dismissal letter states;- “………….. by their recommendations, your action was improper and against an established rule of conduct expected of a Human Resource Manager. Therefore, you are guilty of serious misconduct, gross negligence, dereliction of duty, Breach of Trust and Confidence vested in your position and responsibilities as a Human Resource person”. The learned trial High Court judge found in her judgment “the defendant has failed to establish that the plaintiff was fraudulent but there is ample evidence to suggest that there was an act of lack of diligence or omission on the part of the plaintiff leading to some consequence”. The trial court held further that the acts of the plaintiff may not have caused any financial loss to the defendant but it had the effect of destroying or undermining the relationship of trust and confidence between her and the defendant. The court stated, there is no evidence to suggest that the plaintiff was dishonest or knew of Ntow’s fraudulent acts but the chronology of events shows that she was negligent, through dereliction of duty, and this can justify an employee’s decision to dismiss for serious misconduct considering the seniority of plaintiff’s position at the defendant’s company. The question that immediately comes to mind from these findings of the trial court is “how can someone be dismissed for serious misconduct when there is no evidence of the person being dishonest nor fraudulent or aware of the fraudulent act of another person? What then shows that the person was negligent through dereliction of duty that can justify dismissal for serious misconduct? The trial judge held in her judgment that in general, misconduct in the workplace is characterized as an objectionable action that is wilful and in some circumstances careless act. From the evidence before us, did the appellant wilfully commit any offence? Was she careless in the circumstances? If the answer is no to both questions as I hold why dismiss her? Was the explanation she gave the investigative committee and during the trial not convincing that she did what every reasonable officer in her supervisory role would have done? The evidence before this court not controverted nor challenged is the plaintiff’s evidence that workers do not come to her direct for introductory letters but they do so through the Union officials like the Chairman Ntow. It is the plaintiff’s case that on two occasions, a senior officer (13th on list), the Union Chairman Ntow and Staff of Sinapi Aba come to her office with a list of staff who needed introductory letters to enable than access a private loan facility with Sinapi Aba. The list is Exhibit ‘H’ and ‘H1’. They first brought exhibit ‘H’ and later H1. Her evidence is that though she signed the letter, she first gave the list to her pay roll officer to cross check the names on the list to ensure they are all staff of defendant. This assertion by the plaintiff to the committee was not challenged by the defendants so it is deemed accepted and therefore there was no obligation on the plaintiff to a call the officer as a witness. The trial judge held the plaintiffs conduct lacked diligence. I beg to differ because she did what every manager in a supervisory role would do in the circumstances. She gave the list to her Pay Roll Officer to verify and cross check which was carried out before she signed the list. That is what every reasonable person in her role will do. She signed the exhibit after her officer had crossed checked and raised no issues. Secondly she said the list was presented officially by a senior officer of the defendant and the workers Union Chairman of the defendant company who are not ordinary staff so to speak. It turned out that one name on the list was not a staff of the defendant company. Plaintiff admitted before the Investigative Committee that it was an oversight on her part knowing the list was cross checked by her officer. This piece of evidence coupled with the courts own finding that there was no evidence of the plaintiff being dishonest nor aware of the chairman’s fraudulent activity, how can we then conclude she was grossly negligent? Negligence is defined in Black Law Dictionary as “the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly, or wilfully disregardful of others rights. The term denotes culpable carelessness. – [page 1061 ROA] The same dictionary defines gross negligence as “A conscious, voluntary act or omission in reckless disregard of a legal duty and of the consequences to another party”. The dictionary states that “several courts however, dissatisfied with a term so nebulous have construed “gross negligence” as requiring wilful, wanton or reckless misconduct or such utter lack of all care as will be evidence thereof” – [page 1063] (emphasis mine) The question I ask is whether the evidence before the court depicts any willful, wanton, or reckless misconduct on the part of the plaintiff to warrant a dismissal for gross misconduct? Was her conduct of not noticing that one name was not an employee so serious and so fatal to the defendant company to warrant her dismissal for gross misconduct? Was it established by any shred of evidence that her action was wilful, wanton or reckless? Was her act of referring the list to her subordinate officer to cross check short of what any reasonable person in her position as Human Resource Manager would have done? Obviously no. How do we blame her for dereliction of duty when she referred the list presented to her by two recognized officers of the defendant company to the pay roll officer to verify and cross check before her authorization? I am not oblivious of the fact that as the Human Resource Manager of a company you must be on top of all employees of the company. The defendant company is a Cement Production Company with a lot of staff, office staff and production site staff. There is the human possibility of an oversight and though the pay roll officer failed to notice it the plaintiff did admit same as an oversight on her part before the committee. Does this single oversight by the plaintiff, which was not that serious nor fatal to the company’s core job merit a dismissal for “serious misconduct”. I don’t think so. Boateng vrs Valco (Supra) states that there is no fixed rule of law defining the degree of misconduct which will justify dismissal from service. It is a question of fact whether the degree of misconduct is inconsistent with the fulfilment of the express or implied condition of service, so as to justify dismissal. This implies that every case must be looked at on its own merits since there is no fixed rule. Plaintiff was employed as a Human Officer in 2010, rose through the ranks to become the Human Resource and Administration Manager. She signed exhibit “HI” in 2014. She was queried about those loans in December 2015 which she answered and on 18th December 2015 she was dismissed based upon the recommendations of an investigative committee set up to go into the query. We must therefore consider this case on its own merits since there is no fixed rule of law defining degree of misconduct. The defendant company is a private company that produces cement. It is not a civil service or public service nor government instruction like the MDA’s (Ministries). The plaintiff was employed by the defendant based on a contractual relationship created between them. Simply put there is a contract of employment between plaintiff and the defendant. The law is clear that for a plaintiff to win a case of wrongful dismissal must establish that the employers’ conduct violates the terms of his employment contract and the existing law. The existing law here is the Labour Act 2003 ACT 651. Our law on labour relationship is governed by Statue, the Labour Act 2009 ACT 651 and not the Common Law The contract of the plaintiff states some grounds for termination of appointment as stated earlier but not limited. That contract of employment of the plaintiff states;- “The company (respondent) reserves the right to dispense with your services if you are found guilty of corporate offences such as theft, drunkenness, sleeping on duty, bribery and corruption, insubordination etc” (emphasis mine). Their own contract of employment states if found guilty of “corporate offence”. All the examples of such corporate offences mentioned are offences relating to the personal character of the officer. The ejusdem genesis rule of interpretation tells us that things of the same kind go together. The rule requires that where in a statute there are general words following particular and specific words, the general words must be confined to things of the same kind as those specifically mentioned. Therefore the general word shall not extend in its effect beyond subject ejusdem generis. The examples of the corporate offences the respondents mentioned in the appellants contract of employment by the rules of interpretation does not include a simple issue of an oversight of a name of one employee among the lot. Those corporate offences as I said earlier relates to personal character and if found guilty of them deserves dismissal. Unfair termination as distinct from the common Law concept of “wrongful dismissal” is therefore a creature of statue, currently the Labour Act, 2003 (Act 651). The trial High Court in this case erred in not considering whether the plaintiff’s employment had been wrongfully terminated under the terms of her contract of employment. This was required of the trial High court as an initial first step. This failure was a grievous error. Under Section 62 of the Labour Act the termination of a worker’s employment is fair if the contract of employment is terminated by the employer because the worker is incompetent. In the instant appeal if her employer felt the plaintiff by her conduct is incompetent for the job of the Human Resource Manager, then her contract of employment must be terminated but not dismissal. The defendants in the instant appeal chose to dismiss the plaintiff based on the investigative committee’s findings of alleged incompetence instead of terminating her contract of employment based on incompetence. That is the very reason why the dismissal was wrongful. See CHARLES AFFRAM VRS SG-SSB LTD. CIVIL APPEAL NO. J4/74/2018 DATED 21ST MARCH, 2019. Section 62 of the Labour Act states;- A termination of a worker’s employment is fair if the contract of employment is terminated by the employer in any of the following grounds;- a. That the worker is incompetent or lacks the qualification in relation to the work for which the worker is employed. b. The proven misconduct of the worker c. Redundancy under Section 65 d. Due to legal restriction imposed on the worker prohibiting the owner from performing the work for which the worker is employed. The trial High Court judge referred to the case of Mr. Collins Adesokan vrs Sainsbury’s supermarkets Ltd [22017] EWEA Civil 22, 24th January [2017] WLR (D) 37 where the Court of Appeal held “Although he was not dishonest, there was a serious dereliction of his duty and this failing constituted gross misconduct because it had the effect of undermining the trust and confidence in the employment relationship. That the appellant seemed to have been indifferent to what is the company’s eyes was a very serious breach of an important procedure” I dare say this case is not on all fours with the instant appeal. In the case above the employee breached a very important company procedure. This is not the same as the plaintiff in this instant appeal. She had the power as the Human Resource Manager to issue the letters requested by the Union Chairman. This is not challenged. The question is but for the oversight of that one name who is not a staff, would she have been dismissed for gross misconduct? I don’t think so. The defendant company listed 5 banks only through which staff salaries and allowances will be paid. This policy does not affect private loan transactions of the staff. They are at liberty and have their right to contract or deal privately with other banks and financial institutions. The company policy affect only salaries and allowances paid by the company to its staff according to them for easy monitoring and effectiveness. Much as I agree the company is not bound by that contract to keep an employee they no longer wanted, they must follow the law. In this case the law is to terminate the contract between them and the employee by following due process of notice in lieu and payments but not to unlawfully dismiss her for any alleged gross misconduct which was not proven or established on the preponderance of possibilities. I do not think the evidence on record supports the High Court’s findings that the plaintiffs’ conduct amounted to proven gross misconduct. Gross misconduct as defined by Black’s Law dictionary has not been established against the plaintiff in the circumstances. The plaintiff’s dismissal letter states;- “…… By their recommendations, your action was improper and against an established rule of conduct expected of a Human Resource Manager. Therefore you are guilty of serious misconduct, Gross Negligence, Dereliction of duty, Breach of Trust and confidence vested in your position and responsibilities as an Human Resource person”. With all due respect to the defendant this dismissal letter is vague. What do they mean by the plaintiffs action “was improper and against an established rule of conduct expected of a Human Resource Manager”. What exactly is the definition of the established rule of conduct expected of a Human Resource Manager? Established rule by who? In their own contract of employment they stated corporate offences, listed examples of same and then goes to say established rules. How do you dismiss an officer based on “established rule” by who and known to who? To dismiss someone for being guilty of an offence, that offence and its punishment must be known prior to the commission of the offence. You do not give a dog a bad name and hang it as the saying goes. The rules of the game must be known before you go into the game. They must be express or at least implied. In the case of CHRAJ VRS GHANA COMMERCIAL BANK [2001/2] I GLR 531, a manager of the bank was dismissed because he broke the rules of the bank on what to do when a customer drew a cheque on a bank when he did not have sufficient money in his account. In this case the rules and procedures for such situations in the bank are clearly stated and specified which the staff violated and so deserves the dismissal. This is unlike the appellant’s situation with no stated rules. These are my reasons for my decision that the issue has not been established against the plaintiff on the preponderance of probabilities as required and the appeal must succeed. The decision of the High Court is against the weight of evidence before it and that ground of appeal must succeed. If the trial judge had taken into consideration her own finding that the plaintiff was not dishonest, nor aware of Ntow’s fraudulent plans, also that she infact sent the list to pay roll officer to verify and cross check as any reasonable Human Resource Manager would have done and admitting it was an oversight, she would not have found that the plaintiff’s conduct amounted to a gross misconduct to merit a straight dismissal. These issues raised by the defendant’s are mere job related issues and nothing near personal misconduct on the part of the plaintiff. If the defendants find the plaintiff incompetent on the job, then they can terminate her appointment but not dismissal. Dismissals connotes unfaithfulness or something related to criminality I guess. She did nothing wilful as the trial court itself held. She was not dishonest nor knew anything about the Union Chairman’s fraudulent activity so why dismiss her? Dismissal is warranted when an employee goes contrary to what is stated in the conditions of service or CBA etc for disciplinary procedures that constitutes a behaviour that will amount to dismissal. This is a mere human error and not aggregated in nature to warrant a dismissal, else for every error or mistake by an employee there must be dismissal. The defendants could not establish the gross misconduct against the plaintiff on the preponderance of probabilities per the available evidence to me and that ground of appeal must succeed. With respect to a conditions under which an employer may apply the major penalty, we find the ruling of the Supreme Court in Gavor vrs Bank of Ghana [2012-2013] 2 SCGLR 1081, very instructive. Addressing the issue, it was held, “A servant whose conduct is incompatible with the faithful discharge of his duty to his master may be dismissed. Dismissal is also justified in the cse of a servant…. if his conduct has been such that it would be injurious to the master’s business to retain him”. See also Lloyd vrs McMahon [1987] 2 WLR 821 where it was held thus, “A servant whose conduct is incompatible with the faithful discharge of his duty to his master may be dismissed …. Dismissal is also justified in the case of a servant …… if his conduct has been such that it would be injurious to the master’s business to retain him” We also find the opinion of Seth Twum JSC in the earlier case of Kobea vrs Tema Oil Refinery (supra) a useful guide. The legal luminary highlighted the position thus: “At common law, an employer may dismiss an employee for many reasons such as misconduct, substantial negligence dishonesty, etc …. These acts may be said to constitute such a breach of duty by the employee as to preclude the further satisfactory continuance of the contract of employment as repudiated by the employee….. There is no fixed rule of law defining the degree of misconduct that would justify dismissal”. Discussing the distinction between dismissal and termination in Faustina Asantewaa & Ors vrs Registered Trustees of the Catholic of Koforidua [2016] 92 GMJ 176 (CA) Dennis Adjei JA observed as follows: “……. dismissal is where an employee’s appointment has been truncated based on his behavior …. A dismissal is an embarrassment as the employee loses most of his benefits. Termination on the other hand is not an embarrassment. The employee who is being terminated goes with all the benefits. An employer may terminate the employment of an employee without any reason provided the notice to be given or the salary in lieu of the notice to be given is in accordance with the collective agreement or the contract regulating their relationship. The employee too may terminate his employment with his employer without any reason provided the requisite notice is given or salary in lieu of notice is given ….” A judge writes and delivers a judgment which was found to be wrong or full of errors, and overturned on appeal because of those errors, is he dismissed from the service? No. Misconduct that will warrant dismissal must be personal acts that are detrimental to the defendant company for example theft, lateness, drunkenness, fraud, bribery and corruption etc as their own terms of conditions of employment stated and not a simple error on the job. If the error is an aggravated or serious error that is fatal to the wellbeing of the company fine but not the kind of error per the evidence before us. We do not assume that a Human Resource Manager knows every worker especially those at the production site by face and name. It is impossible and the only reasonable thing for her to do in the circumstances was to give the list to her pay roll officer to verify which she did. If she did not would have amounted to negligence but she did what was expected of any reasonable officer in a supervisory role. She is the boss and so boldly admitted the error as an oversight what more? Why dismiss her? The list was supplied by the Union Chairman, who is not an ordinary staff but well recognized and respected staff together with another senior officer. What reason will make the plaintiff suspicious of that list yet she still cross checked. We think the plaintiff’s dismissal was wrongful. The plaintiffs conduct per the evidence on record relating to the issue does not amount to gross misconduct. It does not even affect her core duty as the Human Resource Manager nor does it affect the defendant company in any way to warrant such drastic punishment. It does not even come near same. We do not think Section 62 (b) of the Labour Act has been established on the preponderance of probabilities as required. The defendant’s could not prove the misconduct of the plaintiff to our satisfaction. The plaintiff never misconducted herself per the available evidence before us. We are of the view and hold that the Investigative Committee’s finding of serious misconduct, gross negligence, dereliction of duty and breach of trust against the plaintiff were not established on the preponderance of probabilities as required by law. The appeal therefore succeeds and the plaintiff is entitled to her claims and we hold so. Senyo Dzamefe (Justice of Appeal) AMMA GAISIE (Justice of Appeal) NOVISI ARYENE (Justice of Appeal) I agree I also agree COUNSEL BAFFOUR ASARE-KORANG FOR PLAINTIFF/APPELLANT DAUDA JAWARA FOR DEFENDANT/RESPONDENT 24