Adinkrah Vrs Fun Milk Ghana Limited (IL/0029/2017) [2022] GHAHC 127 (4 November 2022)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE,INDUSTRIAL AND LABOUR DIVISION 2 HELD IN ACCRA, ON THE 4TH DAY OF NOVEMBER 2022, BEFORE HER LADYSHIP JUSTICE ANANDA J. AIKINS (MRS) JUSTICE OF THE HIGH COURT. SUIT NO. IL/0029/2017 EDWARD LEBENE ADINKRAH VRS FAN MILK GHANA LIMITED COUNSEL FOR THE PLAINTIFF: FRANCIS XAVIER SOSU, ESQ. COUNSEL FOR THE DEFENDANT: S. K AMOAH, ESQ. JUDGMENT INTRODUCTION The plaintiff originally sued the defendant on the 17th of March, 2017 for certain reliefs. However, on the 6th of May 2022, the plaintiff sought the leave of the court and amended his writ and statement of claim with the following reliefs endorsed on same: (a) An order that the plaintiff was unlawfully dismissed under the guise of termination and the said purported termination was unlawful, capricious and against the fundamental rights to natural justice of the plaintiff as enshrined in the 1992 constitution. (b) An order for the payment of salary arrears due to and owing to the plaintiff on account of the termination of his employment with interest at the prevailing commercial bank rate from 14th March, 2014 till the date of final payment together with various increments and bonuses that he may be entitled to. (c) General damages of GH¢450,000.00 for unlawful termination of employment. (d) Legal fees and cost. ISSUES FOR TRIAL 2. The defendant denied any liability for the claims of the plaintiff in its statement of defence filed on the 9th of June 2017. On the 11th day of July, 2018 the court, then differently constituted, set down the following issues for determination at the trial: (a) Whether or not the plaintiff’s appointment was wrongfully terminated? (b) Whether or not the plaintiff received a fair hearing on the disciplinary issues raised by defendant prior to the termination of plaintiff’s appointment. (c) Whether or not plaintiff blew a whistle over a stealing syndicate at defendant’s company for which plaintiff submitted a report to defendant prior to the termination of plaintiff’s appointment? (d) Any other issue that may arise from the pleadings. 3. It must be noted here that the application for directions filed by the plaintiff on the 2nd of May 2018, had an issue ‘C’ as follows: “Whether or not defendant observed due process and procedure outlined in the Collective Agreement for Professional and Managerial Staff Union in the termination of plaintiff’s appointment?” This issue was however not set down for trial. The court then differently constituted, in its wisdom stated partly as follows: “Having regards to the pleadings and issues as contained in the application for directions issues a,b,d,e, and f are set down as issues for trial”. However in this judgment there will be no discussion of the original issue (e) which is “Whether or not the plaintiff is entitled to his reliefs” because of the admonition of our Supreme Court that the setting down of such an issue is otiose because a plaintiff always believes he/she is entitled to the claims endorsed on his/her writ and that is why he/she proceeds to the court in the first place. See the case of Dalex Finance and Leasing Co. Ltd. v. Ebenezer Densel Amanor & 2 ors. [2021] 172 GMJ 256 @ 304, where the Supreme court per Pwanang JSC stated “… we take this opportunity to deprecate the emerging wrong practice where in setting down on issues for trial in a civil case ‘whether or’ not the plaintiff is entitled to her claim’ is put down as an issue for trial. The whole trial is aimed at determining whether or not the plaintiff is entitled to the reliefs claimed so how can that be a distinct issue? This practice is a product of lazy work and a stop must be put to it…” PLAINTIFF’S CASE 4. According to the plaintiff he was employed by the defendant in the year 2005, precisely on the 11th of April, 2005. He joined the defendant company as an Assistant Production Coordinator and worked with the defendant for a period of 8 years 11 month. He claimed that he was unlawfully dismissed by the defendant under the guise of termination on the 14th of March 2014. 5. The plaintiff claimed he was exposing pilfering and stealing of finished products in his department and just 14 days prior to the termination of his appointment, he uncovered what appeared or looked like a stealing syndicate in the defendant company and that this syndicate was known to his head of department. The plaintiff further stated that contrary to the desires of his head of department he went ahead to prepare a report showing what was clearly a pilfering and stealing of finished products and that he handed the report to his superiors so that steps could be taken to address the problem. However on 14th March, 2014 his appointment was terminated by the defendant and he believes that the threat of him exposing the syndicate is part of the reasons for the unlawful termination of his employment. 6. The plaintiff said he felt aggrieved by the decision of the defendant and therefore wrote a petition to the Industrial and Commercial Workers Union (ICU) for intervention and also to the National Labour Commission. He also said that following his petition to the ICU, meetings were held between the ICU and the defendant and there were also some correspondence between the ICU and the defendant. 7. According to the plaintiff the ICU in its interactions with the defendant wanted to know the reasons for the defendant’s termination of the plaintiff’s employment and the defendant told the ICU that there were many disciplinary issues against the plaintiff and that these were the basis for the termination of the plaintiff’s employment contract. The plaintiff therefore stated that the termination of his employment and the eventual reasons given by the defendant as the basis of the termination clearly showed that the defendant denied him his right to natural justice and a fair hearing because he was not given an opportunity to respond to the issues raised against him by the defendant. DEFENDANT’S CASE 8. The defendant on the other hand stated that it lawfully terminated the plaintiff’s appointment in accordance with the collective agreement that existed between it and its professional and managerial staff union (PMSU) of which the plaintiff was a member. ANALYSIS OF ISSUES ISSUE A – whether or not the plaintiff’s appointment was wrongfully terminated? 9. The plaintiff claimed that he was unlawfully dismissed under the guise of termination because he was not given an opportunity to be heard on the disciplinary issues that were allegedly raised against him by the defendant before the ICU. The plaintiff tendered in evidence his termination letter as his exhibit ‘C’. A careful read of the said termination letter dated March, 14, 2014 shows that the defendant did not assign any reason for the termination. The defendant simply stated that its management had decided to terminate the plaintiff’s appointment with effect from 15th March 2014. The letter then lists the entitlements of the plaintiff which included one month salary in lieu of notice. There was no mention of disciplinary issues in the termination letter. 10. The plaintiff admitted under cross examination that his contract of employment was governed by the Collective Agreement for Professional and Managerial Staff Union of the defendant company and he tendered in evidence portions of this collective agreement as his exhibit ‘K’. Now article 46 of the said exhibit ‘K’ provides that the defendant company may terminate the appointment of an employee having given the said employee not less than one (1) calendar month’s notice in writing or payment in lieu of the said notice. The article also lists further payments that are to be made to an employee on his termination. For example article 46.1.3 states that an employee with 5 years but less than 10 years continuous service is entitled to 4 months’ salary in addition to the one month salary paid in lieu of notice. 11. A careful perusal of the plaintiff’s termination letter shows that he was paid his termination award of 4 months basic salary in addition to the one month salary in lieu of notice and also other benefits that he was entitled to, for example, his six weeks leave was commuted to cash and paid to him. 12. Though the appointment letter of the plaintiff (exhibit ‘A’) did not specifically state how the employment relationship was to be determined by the parties, paragraph 3 of the said letter made it clear that the employment relationship that existed between the plaintiff and the defendant was governed by the company’s collective agreement which has already been referred to supra. 13. The burden of proof lies on he who alleges. This position of the law is trite and section 14 of the Evidence Act of 1975 provides “except as otherwise provided by law unless and until it is shifted, a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting”. 14. In this instant case the plaintiff did not pinpoint to the court which portions of the said collective agreement had been breached by the defendant in its decision to terminate his appointment. He only made reference to meetings that had taken place between the defendant and the Industrial & Commercial Workers Union (ICU) after the termination of his appointment to make the claim that his termination was unlawful because the defendant had told the ICU that there were a lot of disciplinary issues concerning the plaintiff and that the plaintiff had been terminated because of those issues. The plaintiff tendered in evidence exhibits F, G and H to support his assertion that the real reason of the defendant for his termination was because the defendant claimed that there were many disciplinary issues against the plaintiff. The plaintiff insisted that his termination was unlawful because the defendant did not give him the opportunity to be heard on the said disciplinary issues. 15. In the case of SARFO v. A. LANG LTD [1978] 1GLR 142 147, the High Court, Kumasi, then presided over by Owusu-Addo J. stated as follows:- “In a claim for wrongful dismissal a plaintiff would only succeed if he could prove the terms of his employment and then prove either that the determination was in contravention of the statutory provisions for the time being regulating the employment. In the instant case the plaintiffs’ failure to prove that the dismissal was in breach of the terms of their collective agreement or any other terms of his appointment was fatal to his claim.” The learned judge relied on the dictum of Ollenu J. (as he then was) In Morgan v. Parkinson Howard Ltd. [1961] GLR 68 AT P. 70. 16. As already noted above the defendant in exhibit ‘C’ gave no reasons for its decision to terminate the plaintiff’s appointment. It also made no reference to any disciplinary issues against the plaintiff. Therefore the plaintiff’s contention that his appointment was terminated by the defendant because of disciplinary issues is not supported by the contents of the termination letter. 17. It is trite learning that an employment contract is not one of servitude. Our law reports are replete with cases to that effect. An example is Aryee v State Construction [1984-86] 1GLR 424. The employer and employee are said to be free agents who can decide to bring the employment contract to an end in accordance with its terms. And it is also trite that an employer is not bound to give reasons for his decision to terminate an employee so long as he acts in accordance with the terms of the employment contract. 18. Even though section 63(4) of the Labour Act of 2003 Act 651 provides that a “termination may be unfair if the employer fails to prove that the reason for the termination is fair”, there is no specific provision in the said Act that states that an employer is bound to give a reason or reasons for its decision to terminate an employee. Section 15 only provides the grounds for which an employment contract may be terminated. It is not specified in the said section that an employer must necessarily give a reason for the decision to terminate an employee. 19. In this instant case before me the evidence is clear that the collective agreement that governed the relationship between the plaintiff and the defendant clearly made provision for the termination of the said relationship. The defendant followed the provisions as captured in the said collective agreement. As rightly submitted by the defendant’s counsel in his written address, the collective agreement (exhibit ‘K’) did not require the defendant to give any reason for the termination of the plaintiff’s appointment and therefore the defendant cannot be faulted for its termination of the plaintiff because it acted in accordance with the terms of the said collective agreement. Moreover the fact that the defendant was compelled by the ICU to disclose reasons for the termination cannot override the contents of the termination letter itself. Indeed whatever reasons that the defendant later disclosed to the ICU as informing its decision to terminate the plaintiff’s appointment is immaterial and they are of no moment. Therefore my finding of fact on this issue is that there was nothing unlawful or wrongful about the termination of the plaintiff’s appointment by the defendant. ISSUE B – Whether or not plaintiff received a fair hearing on the disciplinary issues raised by the defendant? 20. It was the case of the plaintiff that he was denied the opportunity to be heard by the defendant on the issues of discipline as raised by the defendant. In paragraph 21 of his witness statement the plaintiff states that the defendant misconstrued and violated article 45.2 of its collective agreement because it failed to give the plaintiff a hearing and that it only concluded that the plaintiff had committed an offence without subjecting the plaintiff to the necessary disciplinary hearing. The plaintiff continued to say that in his over 8 years of continuous service to the defendant, he received one suspension letter and one warning letter. He said further that the defendant’s practice of imputing an offence to him without any formal hearing was in itself a breach of natural justice. 21. Now article 45:2 of the collective agreement (exhibit ‘C’) states as follows: “45.2 Warnings and Termination Where an employee commits an offence, which does not amount to serious misconduct, such employee will be warned in writing. If after three (3) such warnings a fourth is committed by the employee, his/her service shall be terminated. Copies of warning letters shall be sent to the Union. Warnings shall cease to have effect after 12 months from the date of warning. However, persistent offenders will be treated in accordance with their previous records.” 22. The tenor of this article is clear, offences that do not amount to serious misconduct will only attract warnings. The exhibit ‘G’ series tendered by the plaintiff show that the plaintiff received lots of queries and was given warnings and even a suspension during his employment period with the defendant. The plaintiff was given the opportunity to answer all queries that were given him by the defendant and a careful perusal of the exhibit ‘G’ series show that the plaintiff was queried for acts like failing to carry out lawful instructions, the creation of distortions in the defendant’s production control records, absenteeism, submission of inaccurate records among others. None of the acts the plaintiff was queried on amounted to a serious offence or misconduct as provided for in article 45.1 of the collective agreement so there was really no need for a formal disciplinary hearing to be conducted in respect of the plaintiff. However the fact that he responded to the queries that were given him meant that he had been given the opportunity to explain himself on each query. That is a clear evidence that the defendant complied with the audi alteram partem rule. It gave the plaintiff the right or opportunity to be heard on the queries that were served on him. 23. Our Supreme Court per Adinyira JSC of Awula Sao v. Ghana Supply Co. Ltd, Civil Appeal no J4/15 of 2008[2009] GHASC 21 dated 11th March, 2009 stated as follows: “it is trite law and a cardinal principle on justice that no man shall be condemned unless he has been given prior notice of the allegation against him and a fair opportunity to be heard” The eminent jurist in this statement referred to Halsbury’s Laws of England, 4th Edition, Volume 1, page 76. In summing up, on this issue, it is my finding of fact that the plaintiff was given a hearing on all the disciplinary issues that were raised against him by the defendant during the period of his employment with the defendant and that all these disciplinary issues occurred before termination of his appointment by the defendant. Issue C – Whether or not plaintiff blew a whistle over a stealing syndicate a defendant’s company for which plaintiff submitted a report to defendant prior to the termination of his employment. 24. The plaintiff tendered exhibit B as the report that he submitted to the defendant over a stealing syndicate at the defendant company. That report is assigned and there is nothing on it that shows that it was submitted to the defendant’s management and in any case the plaintiff could not lead any cogent evidence to convince this court that it was the submission of the report (exhibit ‘B’) to the defendant’s management that contributed to the defendant terminating his employment contract. CONCLUSION On the totality of the evidence adduced by the parties herein the court is of the opinion that the plaintiff has failed to establish his case on the preponderance of probabilities and therefore he is not entitled to any of the reliefs he seeks against the defendant. The case of the plaintiff is dismissed as same is without merit. The court awards final cost of GH¢6,000.00 against the plaintiff in favour of the defendant. (SGD.) JUSTICE ANANDA J. AIKINS (MRS) JUSTICE OF THE HIGH COURT *day* 12