IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA-AD 2021

CORAM: YEBOAH, CJ (PRESIDING)

PWAMANG, JSC
AMEGATCHER, JSC
OWUSU (MS.), JSC
HONYENUGA, JSC
CIVIL APPEAL
NO. J4/08/2021

16TH JUNE, 2021

GEORGE AKPASS ………. PLAINTIFF/APPELLANT/APPELLANT

VRS

GHANA COMMERCIAL BANK LTD. …..... DEFENDANT/RESPONDENT/RESPONDENT

JUDGMENT

MAJORITY OPINION

AMEGATCHER, JSC:-

Until 29th May 2009, the appellant, George Akpass was a chief clerk of the Bole Branch
of respondent bank, having worked there for approximately 27 years. The appellant
was summarily dismissed on 29th May 2009. He was initially interdicted for certain acts
of fraudulent transfer of funds into his accounts and uncredited lodgement into the
account of Total Petroleum by a customer of the bank called Gyimantwi Enterprise.
Prior to the dismissal, a disciplinary hearing was held into the source of his authority
to give immediate value to bank cheques sent for clearing between 1 st January 2007
and April 2008 contrary to laid down policies of the bank.

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FACTS:

The appellant challenged his dismissal by a writ at the High Court, Accra. He sought
a declaration that his dismissal was unlawful, reinstatement with full benefits,
compensation for unlawful dismissal, damages, costs, and solicitor’s fees, In the
alternative, he asked for payment of his end of service benefits from 20th May 2009,
interest on the amount at the prevailing commercial bank rate and any other reliefs
the court may deem fit. He contended that entries he passed to disburse the loan
facility for the purchase of a vehicle by the bank’s customer and letters he wrote or
co-signed to the bank’s customer were under the instructions of the bank’s branch
manager, Rev Duke Commey who was given authority by management to determine
appellant’s duties.

The respondent disputed this assertion and insisted that appellant failed to comply
with the staff responsibilities as set out in his appointment letter, bank’s books of
instructions, service rules, circulars, policy guidelines and the Collective Bargaining
Agreement (CBA). Additionally, respondent says the appellant perpetuated fraud
against the bank when he accepted cash inducement from the customer of the bank
to conceal his cheques thereby causing financial loss to the bank. The respondent,
therefore, counterclaimed for the sum of Ghc227,765.94 being the claim made against
the bank by the customer for dereliction of duty and damages for loss of business and
reputational damage.

After a full trial, the High Court presided over by Laurenda Owusu J on 4th July 2016
dismissed the appellant’s claim. Dissatisfied with the decision of the trial court, the
appellant appealed to the Court of Appeal which on 18th June 2019 unanimously
dismissed the appellant’s appeal. The current appeal before the apex court is the
result, again, of the dissatisfaction of the appellant to the judgments of the two lower
courts, albeit superior courts of record. The appellant filed and argued three grounds
of appeal as follows:

i. The judgment is against the weight of evidence.

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 ii. The court below erred in law when it held that plaintiff was given a fair
hearing within the defendant/respondent/respondent concerning his
dismissal.
iii. The court below erred when it held that the dismissal of appellant was fair.

APPEAL AGAINST CONCURRENT FINDINGS OF TWO LOWER COURTS:

We are guided by a long line of decisions of this court that our appellate jurisdiction
in appeals dealing with concurrent findings by two superior courts lower than the apex
court could be properly exercised in favour of the appellant if he is able to satisfy this
court that the trial and the intermediate appellate courts failed to properly evaluate
the evidence or have drawn wrong conclusions from the accepted evidence. Other
factors are that the two courts committed fundamental errors in their findings of fact
or there are strong pieces of evidence on record which are manifestly clear that the
findings of the two courts are inconsistent with the totality of the evidence led by the
witnesses. See the cases of Akuffo-Addo vrs Catheline [1992] 1 GLR 377 per Osei
Hwere JSC; Achoro vrs Akanfela [1996-97] SCGLR 209; Awuku Sao vrs Ghana Supply
Co. Ltd. [2009] SCGLR 710; Obeng v Assemblies of God Church, Ghana [2010] SCGLR
300; Gregory v Tandoh [2010] SCGLR 971.

We intend now to review the appeal record based on the grounds of appeal and
weigh it against the principles enunciated in the cases above.

THE OMNIBUS GROUND:

The appellant first argued grounds 1 and 3 together. Ground 1 being a ground dealing
with the judgment against the weight of evidence, the legal position is that the case
is open for fresh consideration of all the facts and related law submitted by the parties
to the appellate court. We are, therefore, invited to re-examine certain pieces of
evidence allegedly misapplied against the appellant or which if considered properly
will change the decision of the two courts in appellant’s favour.

DISCREPANCY BETWEEN LETTER OF INTERDICTION & CHARGES

PREFERRED BEFORE A DISCIPLINARY HEARING:

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The first complaint of the appellant under the omnibus ground is that his dismissal
contravened article 18(a) of the CBA and staff rules because there was a discrepancy
between the memo of interdiction and the memo inviting the appellant to the
disciplinary committee. The appellant was interdicted for acts of fraudulent transfer of
funds from Total Petroleum Ghana Limited into his account and uncredited lodgement
into the accounts of Total Petroleum by the bank’s customer, Gyimantwi Enterprise.
The invitation letter to appear before the disciplinary committee stated the matters to
be investigated as the authorisation and immediate value given by the appellant to
almost all other banks cheques sent for clearing between 1st January 2007 and April
2008 contrary to laid down policies of the bank and the source of appellant’s authority
for the actions he took. According to appellant, article 18(a) contemplated a situation
where the grounds for interdiction and the offence investigated by the disciplinary
committee would be the same. Therefore, where an employee is interdicted for one
offence and investigated for other offences, that article would have been breached.

In answer to the allegation of breach of article 18(a) of the CBA, respondent submits
that appellant was invited to the disciplinary committee first to answer acts of
uncredited lodgements into the accounts of Total Petroleum Ghana Ltd by Gyimantwi
Enterprise at the Bole branch. When he was queried by the inspectors/auditors, he
admitted giving immediate value to cheques. Secondly, he was to justify the non-
adherence to Executive Credit Committee’s directive on medium term loan to
Gyimantwi Enterprise. When confronted with this at the disciplinary committee
hearing, he admitted he did not have authorisation powers in the way he acted and
apologised. The list of cheques appellant was confronted with by the disciplinary
committee are in exhibit GA 11 at page 207 of the Record of Proceedings.

The allegation of the discrepancy between the reasons given for the interdiction and
the charges preferred against the appellant was not denied by the respondent. The
trial court and the intermediate appellate court all found as a fact that the reasons for
interdiction and the charges for the disciplinary hearing were different.

Article 18(a) of the CBA relied on by counsel for the appellant provides as follows:

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“If an officer is suspected to have committed an offence which might justify
summary dismissal or termination, the bank may interdict the officer from
duty while further investigation, inquiries or trial are carried out. A copy of
the letter of interdiction is to be delivered to the union. During the period
of interdiction from duty, the officer shall be entitled to be paid at half of
his or her salary. But if he or she is not found guilty of the offence, the officer
shall be re-instated in his employment and shall be paid his or her full salary
for the period during which he was interdicted.”

The core idea implicit in this article envisages that an offence would have been
committed which would then justify summary dismissal or termination of an employee.
In lieu of those actions, management has a discretion to interdict the employee for
further investigations and or a disciplinary hearing to take place. After the
investigations, the same offence may form the basis of the disciplinary hearings or
new matters may be uncovered. Depending on the gravity of the offence,
management reserves the right to either terminate, dismiss summarily, or demand a
written explanation from the worker before a decision is made. Management reserves
the right to also trigger the disciplinary hearing procedure, in which case to ensure
fair trial, the disciplinary committee should frame charges embodying the new offences
to enable the worker to prepare his defence.

A letter of interdiction only communicates to the worker that an offence is suspected

to have been committed which requires a written response, further investigation or
depending on the gravity, summary dismissal. It is prudent in ensuring fair trial to
hand over such charges to the employee concerned with the date and place of the
trial and reasonable time to prepare his defence. Since letters of interdiction are not
charges, we reject the submission of counsel for the appellant that the article
contemplates the offence for which the worker is interdicted to be the same as the
charges at the disciplinary hearing.

We are fortified in our position by a previous decision of this court on the dismissal of
a worker of respondent bank. The court reviewed the disciplinary rules of respondent’s
bank and the differences between a mere query and a disciplinary charge. Bamford-

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Addo JSC in the case of Aboagye v Ghana Commercial Bank [2001-2002]
SCGLR 797 held at page 814 as follows:

“Plaintiffs' rights cannot be wished away by a mere presumption, and

furthermore a query is not the same as a disciplinary charge or notice of an
ongoing disciplinary proceeding. The two queries in "Exhibit E" and "Exhibit
G" merely asked the plaintiff to give reasons why he signed the draft No.
177036 dated 17/7/92 for £15,000 and a cable authorising payment of
US$13,559.60 on behalf of White Chapel without ensuring that the
customer’s account were debited and why internal entries were not passed
to the debit of customers and to confirm whether the signature on the two
transactions were that of the plaintiff which he did. Surely these queries
cannot by any stretch of imagination be considered or likened to a
disciplinary charge or to notice. Nor did the queries refer to any disciplinary
charge against him”.

In this appeal, although the appellant was served with a notice of interdiction stating
the offences as fraudulent transfer of funds from Total Petroleum Ghana Limited into
his account and uncredited lodgement into the accounts of Total Petroleum by the
bank’s customer, Gyimantwi Enterprise, a formal charge was formulated dated 24th
November, 2008 (Exh GA 3) and served on him indicating that he was being tried
before the disciplinary committee for authorisation and immediate value given to
almost all other banks cheques sent for clearing between 1st January 2007 and April
2008 contrary to laid down policies of the bank and the source of his authority for the
actions he took.

The trial judge at page 352 of the record found that all the issues in the charges
levelled against the appellant in the memorandum inviting him to the disciplinary
hearing and the reasons for his dismissal were raised at the hearing and put across to
the appellant. The judge further found that the appellant was given an opportunity to
react to all the issues at the hearing. Additionally, the Court of Appeal at pages 452-
453 reviewed the report of the disciplinary hearings on the charges and reasons for
the dismissal of the appellant and affirmed the findings made by the trial judge that

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while the contents of the interdiction letter and the dismissal letter were different,
what was stated in the dismissal letter emerged from the investigation of the
allegations levelled against the appellant who had the opportunity to be heard on all
the charges. Reminding ourselves of the duty imposed on us when exercising our
appellate jurisdiction, can one say that the findings, inferences, and conclusions
reached by the trial court and affirmed by the intermediate appellate court were
unsupportable by the evidence on record?

As stated earlier, we are bound by a long line of sound decisions of law which we do
not intend to depart from. Our jurisdiction as the apex court would be properly
exercised in favour of an appellant if he is able to satisfy this court that the trial and
the intermediate appellate courts failed to properly evaluate the evidence or have
drawn wrong conclusions from the accepted evidence. See Obeng v Assemblies of
God Church, Ghana (supra) and Gregory v Tandoh (supra).

We have scrutinised the record, the evidence of the parties and the proceedings of
the disciplinary committee. The evidence is overwhelming that appellant was
confronted and questioned about the following:

1. The authorisation and immediate value given other banks cheques sent for
clearing between 1st January 2007 and April 2008; see pages 145-152 of the
record.
2. Signing letters pledging the bank to honour post-dated cheques issued by
Gyimantwi Enterprises; see pages 145-154 of the record.
3. Passing entries disbursing loan facility of Ghc33,600 to the bank’s customer
instead of the vendor for the purchase of vehicle contrary to instructions of the
Executive Credit Committee. Appellant at the hearing admitted he erred
because he did not know the vendor at the time; see pages 137-144 of the
record.
4. The source of authority for the actions he took; see pages 137-144 of the
record.

In the Aboagye’s case (supra), two queries were issued by the disciplinary committee
to the worker, but no charges were framed for the offences to be investigated by the

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committee. In this appeal, a query was issued and in accordance with article 18(1) of
the CBA, after further investigations, charges were framed. Even matters which came
up after the charges were served on the appellant were put before the appellant at
the disciplinary hearing for his comments which he did. We do not expect disciplinary
bodies involved in administrative justice to strictly follow procedures in criminal trials
in the courts; where any additional charge framed after commencement of trial
inevitably would lead to total withdrawal of the original charge and a substitution of
fresh charges for proceedings to start de novo. It is sufficient, in our view, for the new
charges to be placed before the affected worker for his response before a decision is
made. The position would have been different if the fresh charges were not placed
before the worker to be afforded an opportunity to respond. In that case, no
disciplinary sanctions could be applied on those charges.

We are of the view that the appellant was not disadvantaged in anyway when he
appeared before the disciplinary committee. We are satisfied that the trial court and
the intermediate appellate court properly evaluated the evidence before them and
drew the right conclusions from the accepted evidence. The appellant was served
with the charges to answer at the disciplinary hearing. The outcome of the hearing is
contained in the proceedings tendered at the trial. Both courts below were satisfied
that the fraudulent transfer of funds and uncredited lodgement into the accounts of
Total Petroleum by the bank’s customer, Gyimantwi Enterprise; the immediate value
given by the appellant to bank’s cheques sent for clearing contrary to laid down
policies of the bank were all serious infractions which by the bank’s policies warranted
dismissal. Their findings are supported by the record. Accordingly, we will decline the
invitation to interfere with those findings.

MEMBERSHIP OF THE DISCIPLINARY COMMITTEE:

This brings us to the next complaint under the omnibus ground and that is the
membership of the disciplinary committee. According to the appellant, the disciplinary
committee was not properly constituted in accordance with article 14(g) and rule 5.1
of the Staff Service Rules because it did not have a membership of six and that some
officers who were required to be on the committee such as the head of the legal

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department who was required to chair did not, leaving a representative from the legal
service division to chair. The respondent disagrees arguing that the committee was
properly constituted and that appellant’s argument on this is porous and should be
rejected.

We are not very much attracted by the submissions of the appellant's counsel on this.
We do not think any of the rules of the CBA has been breached for constituting a panel
of five instead of six to investigate the case of the appellant. Rule 5.2 of the Staff
Service Rules, Exh ‘GCB’ 5 provide for a disciplinary committee of six members made
up of the head of legal as chairman. Article 14 of the CBA Exh ‘GCB’ 14, however,
makes provision for the same disciplinary committee composed of five members and
chaired by the General Manager, Legal Services Division, or his representative. There
is therefore a clear conflict between the composition specified in the Staff Rules and
that of the CBA. Section 105 of the Labour Act, 2003, (Act 651) states that the
provisions of the collective agreement shall be regarded as terms of a contract of
employment and if there is any conflict between the terms of a collective agreement
and the terms of any contract not contained in the collective agreement, the collective
agreement shall prevail unless the terms of the contract are more favourable to the
worker.

In this appeal, selecting a representative of the Legal Services Division to chair the
committee instead of the General Manager and requesting the HRD representative to
play the dual role of a member/recorder instead of a non-member recorder in our
opinion, did not offend any provisions of the CBA. In any case, members of the
disciplinary committee are not named individuals appearing in their personal
capacities. They are representatives of divisions within the bank. In that respect, any
responsible officer of the division could be authorised to represent the division.
Further, recorders who sit on such committees are not essential members of the
committees. They are there to record the proceedings unless they are appointed as
member/recorder. We find no merit in this submission and decline to interfere with
the opinion of the Court of Appeal.

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CONFLICT BETWEEN RECOMMENDATION OF A DISCIPLINARY COMMITTEE
AND DECISION OF MANAGEMENT:

The appellant has also advanced in support of the omnibus ground that respondent
bank failed to give any reasons to the union for departing from the disciplinary
committee’s recommendation. According to the submissions by counsel, three officers
were investigated, and recommendations made on the three. Counsel submitted that
while management accepted and implemented the recommendation in respect of two,
in the case of the appellant, the disciplinary committee recommended that he should
be demoted but management failed to uphold that recommendation and substituted
demotion for dismissal. According to counsel, in the process, management breached
article 14(h) (iii) of the CBA which enjoined it to inform the union with reasons why it
was unable to uphold the recommendations of the committee. Counsel submitted that
the union should be informed of the reasons even before the decision is carried out.
However, in this case the bank failed to inform the union as required by the CBA and
yet the court below failed to hold that the respondent bank breached the CBA. This,
according to counsel, has made the dismissal unlawful.

SHIFTING OF EVIDENTIAL BURDEN WHEN THE NEGATIVE IS ASSERTED:

Counsel for the appellant then took on the trial judge and the Court of Appeal for
dismissing his arguments on the evidential burden. According to Counsel, the reason
given by the trial judge and the Court of Appeal that the appellant who bore the
evidential burden to prove that the union was not informed failed to do so was flimsy.
Admittedly, in answer to which of the parties bore the evidential burden to prove that
the union was informed, the learned High Court judge after her evaluation of the
evidence held at pages 352-353 as follows:

“Sure, this is true but what positive evidence on record suggests that
reasons for the departure were not given to the Union? It is not in dispute
that there were several correspondences between the Union and Executive
Management on the matter and the Union even wrote to plead on behalf of
the Plaintiff. He who asserts must prove. I refer to the case of OWUSU V

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TABIRI & ANOTHER [1987-88] 1 GLR @ 287. The plaintiff has failed to
establish that Management did not inform the union of reasons as to why
the recommendation of the Committee was not upheld. I find this as a fact”.

On appeal to the Court of Appeal on the failure of management to inform the union,
this is what the Court of Appeal also stated at page 454 of the record:

“It is the Plaintiff who is alleging that Management did not inform the Union
about its reasons for not upholding the recommendations of the disciplinary
committee as required by Article 14(h)(iii). It is clear from the record that
the plaintiff led no evidence in support of this position and the trial judge’s
finding that the said allegation was unproved is sound in law. I find in
answer to the third question that it is the Plaintiff who bore the burden of
proof and he failed to discharge it”.

Counsel for the appellant decried the reasons given by the two lower courts for
dismissing its claim for the management to inform the union of the change in the
recommendations of the disciplinary committee. According to counsel, it was the
respondent’s burden to prove that it had complied with article 14(h)(iii) of the CBA.
However, the trial court wrongly allocated the burden of producing the evidence to
the appellant and this was concurred to by the Court of Appeal. Counsel argued that
since appellant made a negative assertion of matters within the peculiar knowledge of
the respondent i.e., that respondent did not inform the union while the respondent
asserted the positive that it notified the union, the evidential burden then shifted unto
the respondent. Counsel cites the cases of Sumaila Bielbiel v Adamu Dramani
[2012] 1 SCGLR 370, Salifu v The Republic [1974] GLR 291 and Republic v
Bonsu, Ex-parte Folson [1999-2000] 1 GLR 523 in support of his submissions.

The position of the law admits of no controversy. Section 14(1) of the Evidence Act
1975 NRCD 323 contemplates situations where the evidential burden may shift. One
such situation is where, as a rule, the plaintiff who is the party on whom the burden
rest asserts the negative and the defendant who is required to disprove asserts the
positive. In the case of Boakye v Asamoah & Anor. [1974] 1 GLR 38, the plaintiff

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asserted that the amount paid was ¢120.00 while the defendant was saying that it
was not ¢120.00. The trial magistrate shifted the onus on the defendant to prove that
he paid more than ¢120.00. Osei-Hwere J (as he then was) held that the order of the
magistrate was to call on the defendant to prove the negative. In the words of the
learned judge at page 45:

"if a negative averment be made by one party, which is peculiarly within

the knowledge of the other, the party within whose knowledge it lies, and
who asserts the affirmative is to prove it, and not he who avers the
negative”.

Again, in Salifu v Mahama & Ors [1989-90] 1 GLR 431, Benin J (as he then was)
held that:

“Taking for guidance the rule of evidence that where the subject matter of
a party's allegation (whether affirmative or negative) was peculiarly within
the knowledge of his opponent, it lay upon the latter to rebut such
allegation, it would be an almost impossible task to ask the applicant to
prove that the respondents, the judgment creditors, were men of straw
when he did not know them previously, let alone the work they did and
other relevant facts. The applicant only had to raise a reasonable ground
as to their inability to refund money to be paid to them and then the burden
would be shifted to the respondents to satisfy the court that they would be
in a position to refund the money paid to them should the appeal succeed;
for they only knew their resources, means, assets, liabilities, and
commitments. Since it would seem from the available evidence that the
respondents had not been in any serious or gainful employment since the
accident, that was enough for the applicant and the court to, prima facie,
conclude they would not be able to refund any money paid to them. The
respondents were therefore enjoined to produce evidence peculiarly within
their knowledge to displace that reasonable prima facie conclusion”. See
also Salifu & Anor v. The Republic [1974] 2 GLR 291 cited by counsel for the
appellant.

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Relating the above cases to this appeal, the question we pose is which of the parties
bore the evidential burden to prove that the union was notified about the decision of
management to substitute the punishment prescribed by the disciplinary committee
from demotion to dismissal. The appellant asserts that the union was not informed of
management’s decision while the position of the respondent bank was that the union
was informed. In so far as the appellant asserted that the union was not notified, he
asserted the negative. The respondent who insisted that the union was notified
asserted the positive and therefore assumed the evidential burden to lead evidence to
establish that position. In Fynn v Fynn & Osei [2013-2014] 1 SCGLR page 729
this court held that one of the legal grounds that the Supreme Court would overturn
concurrent findings of two lower courts is when the finding was based on erroneous
proposition of law. In our opinion, the trial court misdirected itself and the Court of
Appeal concurred by placing the evidential burden on the appellant who asserted the
negative. That finding by the two courts placing the evidential burden on the appellant
to prove the negative is an error in law. We hereby set it aside.

FAILURE TO NOTIFY THE UNION OF THE DECISION OF MANAGEMENT NOT

TO UPHOLD THE RECOMMENDATIONS OF THE DISCIPLINARY COMMITTEE:

What, then, is the implications of correcting the shift in the evidential burden on the
merits of the appeal before us? Article 14(h)(iii) of the CBA provides that:

“where Management is unable to uphold the recommendation of the

committee it shall inform the Union with reason as to why it is unable to do
so”.

The key phrase here is “shall inform the union”. What if as in this case there is no
evidence led by the respondent that the union was informed. To be informed is to be
notified, told, apprised, or advised. It does not denote any negotiations with or consent
of the union before the decision substituting another punishment is made. The manner
of the information is not provided in the CBA. In that regard, good corporate
governance requires that any reasonable form of notification such as a letter, face to
face meeting or any electronic medium of communication would suffice. The timing of

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the notification should also be immediately the decision is made by management or
contemporaneously to when the decision is communicated to the worker concerned.

Article 48 of the CBA, however, provides an internal mechanism to be followed in the

handling of grievances and breaches of its provisions such as the one under
discussions. The procedure has five steps starting from an appeal or petition by the
worker and countersigned by the union to the head of department, next to General
Manager and Human Resource Manager, then summoning the Standing Joint
Negotiating Committee to meet and failing resolution by the four earlier steps,
referring the matter by either party to the National Labour Commission in accordance
with the Labour Act. The reason for this detailed internal procedure is clear. The union
is not the disciplinary body within the bank. The information to the union is not
intended to take over the disciplinary role of management but to promote good
corporate practice and industrial harmony. Article 16 of the CBA vests management
with power to dismiss summarily for causes involving dishonesty, fraud, wilful refusal
to obey legitimate and reasonable instruction, proven gross misconduct. Further all
penalties are applied at the discretion of management depending on the circumstances
and gravity of the offence. Thus, article 56 of the CBA on responsibility of parties to
the CBA states that “the union recognises the right of the bank to employ,
promote, demote, transfer, suspend or otherwise discipline any employee
for just cause…… The union also recognises the right of the bank to operate
and manage its business in all respects and to maintain order and
efficiency…. In all cases the laid down grievance procedure shall apply…”.

In Bani v. Maersk Ghana Limited [2011] 2 SCGLR 796, following the findings of
a subcommittee of the company, the employee was dismissed. This court held that
even if the finding of the subcommittee were ultra vires, it would not derogate from
the defendant’s common law right to dismiss the plaintiff for proven misconduct. Once
there are facts on the record justifying the defendant/respondent dismissing the
appellant for misconduct, the fact that the findings were made by a committee that
was acting, allegedly, ultra vires, is irrelevant.

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Thus, where the CBA has vested power in management (as in this appeal) to dismiss
summarily, the employer's power to exercise it is “short, sharp and peremptory
to the extent that where the employer has set up a departmental board of
inquiry which has made certain recommendations to the employer the
decision to dismiss is entirely for the employer who is not bound to accept
the recommendations”: see Republic v. State Hotels Corporation; Ex parte
Yeboah [1980] GLR 875 where the Court of Appeal per Edusei JA held at page 879
that:

“In our opinion, the recommendations of the investigation/fact finding

enquiry set up by the respondent Authority was not binding on
management. The Chief Executive was right in making his own decision to
dismiss the appellants summarily”.

Based on the provisions above, it is our considered opinion that the failure by the
respondent to comply with article 14(h)(iii) of the CBA could be remedied by the
internal procedures within the CBA. This, per se will not nullify or make management
decision on the worker unlawful. We are, therefore, unable to agree with counsel for
the appellant that the failure by respondent to comply with article 14(h)(iii) rendered
the dismissal unlawful.

OBEYING SUPERIOR ORDERS:

This brings us to the next submission under the omnibus ground. The appellant attacks
the court below for holding that the appellant disobeyed instructions of the bank by
disregarding the terms of the loan when the disciplinary committee found that the
blame was to the entire Bole branch. In the opinion of counsel, the branch manager
accepted responsibility for whatever happened. Appellant also alleges that the
customer to whom he lent money was the main customer of the bank and that it was
a decision of the Bole branch that the staff could lend money to save customer’s
cheques from being returned to keep their prime customers.

Counsel further submits that the instructions given to the appellant by the Bole branch
manager to co-sign the letter pledging on behalf of the bank to pay post-dated

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cheques were not illegitimate because article 13(a) of the CBA and Rules 2.1.2 of the
Staff Service Rules mandated staff to obey all legitimate orders and directions given
from time to time by any person under whose jurisdiction, superintendence or control
he may for the time being, be placed. It is also the case of the appellant that the Bole
branch manager who instructed him to sign the letter was the person he was placed
under and required to obey. The appellant again argues that the letter he signed did
not occasion any financial loss to the bank.

In response, the respondent submits that by keying the cheques and his branch
manager authorising the transaction when it had not been ascertained that the
customer had enough money in his account, appellant and his manager gave instant
value to the cheques which were returned unpaid because the customer did not have
sufficient funds to pay for the cheques. In acting that way, the appellant and his
manager disobeyed legitimate instructions on the payment of cheques which
constituted misconduct and therefore the Executive Committee was entitled and
justified in sanctioning the appellant with dismissal. Respondent further submits that
appellant was given a hearing in which he admitted signing exhibit GCB 8 to the
customer stating the approved terms and conditions of the facility i.e., payment was
to be made to the vendor but in disbursing the facility rather credited the customer’s
account with Ghc36,600.00 and issued a payment order of Ghc20,000.00 to the
vendor and made the remainder of Ghc13,600.00 to the customer. Respondent also
argues that appellant and his manager again varied the terms of the approval for the
payment of the 4x4 Pick Up when they pledged to honour post-dated cheques of the
customer on the due dates’ contrary to the Executive Credit Committee’s instructions.
This refusal to obey legitimate instructions justified the dismissal meted out to the
appellant.

The Court of Appeal reviewed the findings of fact made by the trial court on these
submissions. It concluded that it was satisfied that the reasons for the findings were
sound and borne out by the evidence on record and in line with the CBA and the law.
The Court of Appeal then itemised some acts of misconduct on the part of the
appellant which were incompatible with the faithful discharge of his duty to his
employers and constituted summary dismissal. These were:

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 1. Blatant disregard by the appellant and his manager of the terms of the facility
granted Gyimantwi Enterprise which stated that the money was to be paid
directly to the vendor of the vehicle to be purchased. But appellant and his
colleague chose to credit part of the amount to the customer’s account and in
doing so gave the customer access to part of the facility and committed the
bank to honouring the customer’s post-dated cheques issued on the balance.

2. Admission by appellant that he sometimes personally paid money into the

customer’s account when there were insufficient funds in the account to enable
his cheques clear and later got refund from the customer by payments into
appellant’s account.

In article 13(a) of the CBA, employees were only required to “observe, comply with
and obey all legitimate orders and directions which are in the interest of the
bank”. In that regard, though the appellant was working directly under PW1, the Bole
branch manager, he was only required to obey legitimate instructions.

The defence of obeying superior order has been held in law to be a weak defence
which sometimes, depending on the peculiar facts of a case, will not inure to the
benefit of any officer working under superiors. If while obeying superior orders
appellant had been made a ‘sacrificial lamb’ and victimised with disproportionate
punishment, that would have been the price to pay for opting to follow mortal man
rather than the code of ethos carved out to shape the work ethics and ensure smooth
functioning of the bank.

Halsbury’s Laws of England (4th ed), Vol. 11(1) has this principle on superior orders at
p. 34, para. 27:

“The mere fact that a person does a criminal act in obedience to the order
of a duly constituted superior does not excuse the person who does it from
criminal liability, but the fact that a person does an act in obedience to a
superior whom he is bound to obey, may exclude the inference of malice or
wrongful intention which might otherwise follow from the act.”

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In the case of Yaokumah v The Republic [1976] 2 GLR 147 a major in the Army
drove a military vehicle to the Ghana-Togo border and loaded uncustomed goods
headed for Accra. He was apprehended at a check point and arrested. At his trial, he
pleaded the defence of superior orders. On appeal to the Court of Appeal, Amissah JA
stated the legal position in the following words:

“This in effect amounts to a defence of superior orders. We agree that a

subordinate officer is obliged to obey the commands of his superior. But
this obligation is limited to commands which are lawful or at least are not
obviously unlawful. Besides the commands must be given in the course of
duty….. He was not under a duty to obey or to comply with any such order
or request.”

Again, the submissions of appellant that he did nothing wrong because it was a
decision of the Bole branch that the staff could lend money to save customer’s cheques
from being returned to keep their prime customers does not appeal to us. We will not
buy into the defence of an unlawful act being legalised because it has been made the
practice in an establishment. No matter how long the practice may be, what is unlawful
by the CBA will remain unlawful.

We have combed through the record and are satisfied that the findings of fact made
on this issue by the trial High Court judge and concurred to by the Court of Appeal
are justified and borne out of the proceedings at the disciplinary hearing and at the
trial court.

On our part we found from the record some breaches of respondent bank’s rules by
the appellant. These are first lending money to a customer of the bank without the
permission of the Managing Director. Appellant admitted that customer Gyimantwi
paid money into his personal account and at other times he paid monies into the
customer’s account when he did not have sufficient funds to enable his cheques to go
through. This behaviour on the part of the appellant contravened article 15(c) of the
CBA which provides that “An officer shall not lend money in his/her private
capacity to a customer or officer of the Bank.” Article 15(d) also provides

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“Except with the permission of the Managing Director, an officer shall not
guarantee in his or her personal capacity the pecuniary obligations of
another person or agree to indemnify another person from loss.”

The second breach is carrying on private farming activities without the permission of
the Managing Director as required by article 15(e) of the CBA. It states that “Except
with the permission of the Managing Director, an officer shall not engage in
any other banking financial business or in any commercial business whether
for reward or otherwise either on his/her own account or as agent for
another or others.”

The trial judge concluded that the appellant had breached the rules and regulations
of respondent bank making his conduct incompatible with the faithful discharge of his
duty to his master. There is no legal justification for us to do otherwise. We therefore
decline the invitation by the appellant to reverse the findings.

UNFAIR DISMISSAL

Argued along with the omnibus ground is the contention of appellant in ground 3 that
the court below erred in upholding his dismissal which was unfair. Counsel for the
appellant has forcefully argued that the trial court below did not consider the effect of
section 63(4) of Act 651 when it impliedly held that the dismissal of appellant was fair.
In the opinion of counsel, the dismissal was done in violation of the laid down
procedures in the CBA and the staff service rules.

The concept of fair and unfair termination of employment is a novel provision

introduced in Part VIII of Act 651. Thus, section 62 of the Act provides as follows:

“Section 62—Fair Termination.

A termination of a worker's employment is fair if the contract of

employment is terminated by the employer on any of the following
grounds:

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(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;

And section 63(4) also states:

“63 (4) A termination may be unfair if the employer fails to prove that,

(a) the reason for the termination is fair; or

(b) the termination was made in accordance with a fair procedure or this
Act”.

Being a creation of statute, the concept places an obligation on the employer to justify
the termination of the appointment of a worker. The overarching condition is that the
reason for the employee’s termination must be fair and in accordance with due process
of law. Dismissal as a right in labour relations was omitted from those sections thus
creating a challenge among stakeholders in the labour fraternity whether dismissal
has been abolished under the Act or is to be used interchangeably with termination.
The scope of sections 15-18 and 62-64 of Act 651 and its correlation if any with a
claim for wrongful dismissal is what we now turn to?

One of the grounds which Act 651 justifies termination of employment is by mutual
agreement between the employer and the worker. This is provided for in section 15(a).
Where a contract of employment provides that either party can terminate the
relationship by giving a specified period of notice or salary in lieu of notice, that mode
of termination could be triggered without the employer or worker assigning any
reasons. In our opinion, where termination is resorted to under this provision, the
fairness or otherwise of that termination cannot be called into question. There is
judicial support for this. In BANNERMAN-MENSON VS. GHANA EMPLOYERS’
ASSOCIATION [1996-97] SCGLR 417, the terms of employment of the parties
stated that either party may terminate the relationship by giving six months’ notice.

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The employer gave six months’ notice of its intention to retire the appellant and
dissatisfied the appellant sued. Aikins JSC explained the legal position in such contracts
of mutuality at pages 422-423 as follows:

“… the appellant’s conditions of service states that the contract was

terminable by six months’ notice on either side... the appellant could
terminate the appointment by giving his employers six months’ notice
if he decided to, without giving any reasons. So were the respondents
entitled to dispense with the appellant’s services by giving him six
months’ notice. This conforms with equitable principles. The
respondents exercised their right in giving the appellant six months’
notice to retire from the services of the association…. The respondent
owed no other obligation to the appellant…….

To me it is of no consequence if the respondents gave as a reason for

the termination of the appellant’s employment the fact that he had
reached the age of 60 years. What is important is the mutual
agreement of the parties that the contract of employment could be
determined by giving six months’ notice of intention to do so. I think
the appellant was labouring under a serious illusion in assuming that
this appointment was terminated for reaching the retirement age at
60 years. The respondents were under no obligation to give him
reasons for his termination.”

Where the termination is not by mutual agreement and the employer is compelled to
terminate on other grounds provided for in the contract of employment such as ill-
treatment or sexual harassment, medically unfit for the employment or inability of the
worker to perfume his role due to sickness, disability, incompetence or lack of
qualification for the position employed or other reasons which do not merit summary
dismissal, then the protocol envisaged under Act 651 is that the reasons for the
termination must be clearly stated and must be seen to be fair. This is because though
the employer has the power by contract and law to terminate on those grounds, that
power has been curtailed by statute and can no longer be exercised arbitrarily or

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capriciously. It must justifiably be substantively and procedurally seen to be fair.
Failing that acid test, the courts will have power to inquire into the fairness of the
decision to terminate and pronounce on it. The missing link, however, in this novel
provision is the measure of fairness and unfairness. This has not been provided for in
Act 651 making it unclear and uncertain for employers and stakeholders to fashion
out the appropriate framework to follow. It is in scenarios like this that the courts are
called upon to develop the framework to guide the stakeholders how to assess the
fairness or unfairness of their actions substantively and procedurally.

This is exactly what this court attempted to do in KOBI vs. GHANA MANGANESE
[2007-2008] SCGLR 771 where this Court at holding (3) stated that:

“The traditional rule in employer-employee relationship, relied upon

by the Court of Appeal (in the instant case) is that in dispensing with
the services of an employee, an employer is at perfect liberty to either
give or refuse to give reasons. However, in exercising that right,
fairness must be the watchword. The defendant company in the
instant case did not pay any regard to fairness in its dealings with the
plaintiff employees; it acted with some arbitrariness and
discrimination and these rendered its acts wrongful as not being in
accord with the terms and spirit of the collective agreement.”

It does not appear to us that sufficient guidelines have been provided by the courts
and regrettably, we do not intend in this appeal to formulate the framework because
the central issue before us is one of summary dismissal and not termination under
sections 62-64 of Act 651.

SUMMARY DISMISSAL UNDER THE LABOUR ACT 651

We intend, now, to address the legal effect of the dismissal within the context of Act
651 and the current labour environment especially the facts in this appeal where the
obligations imposed on the parties in their negotiated contract of employment is in
issue.

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Summary dismissal is a common law right which the employer exercises over an
employee. This right enables the employer to severe or cut short an employee’s
appointment immediately where the employee does something that threatens the
existence of the business or harms the reputation of the employer. Examples of such
conduct are gross misconduct, dishonesty, criminality, competition with the employer’s
business, violent conduct, drunkenness, insubordination, dereliction of duty, refusal to
follow legitimate instruction among other grounds provided in the contract of
employment. Most often the worker would have destroyed the trust and confidence
required between an employee and employer.

In KOBEA vs. TEMA OIL REFINERY [2003-2004] 2 SCGLR 1033 at pages

1039 and 1040, dismissal was explained by Twum JSC in the following words:

“… 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.”

Again, in LAGUDAH vs GHANA COMMERCIAL BANK LIMITED [2005-2006]

SCGLR 388, this court speaking through Badoo JSC stressed that an employer has
the right to summarily dismiss an employee whose conduct is incompatible with the
due or faithful discharge of his duties.

In LEVER BROTHERS GHANA LIMITED V DANKWA [1989-90] 2 GLR 385 at

388, the Court of Appeal held that the power to determine an employment summarily
meant that an employer could exercise such right in haste and on the spur of the
moment usually because the employee has been caught red-handedly committing the
offence.

Termination and dismissal as ways of severing relationship between workers and

employers developed out of the common law. However, in Ghana, termination has
been developed and given statutory recognition in sections 15-18 and 62-64 of Act

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651 while dismissal is not mentioned. The fact is there are similarities and differences
between the two terminologies.

One similarity between termination and dismissal is that just like death, retirement
and resignation provided for in the contract of employment, they constitute ways by
which a contract of employment could be determined, disengaged, and severed.
Another similarity is that the grounds for termination and dismissal are negotiated in
advance and specified in contracts of employment.

There is, however, a clear distinction between termination of a contract of employment

and dismissal. Termination usually goes with notice and may be voluntary or done for
organizational or business reasons while dismissal is done because of the behaviour
or wrongful act of the employee and notice is not required. Termination may not have
reasons assigned while because of the sharp and coercive nature of dismissal reasons
are assigned for the disengagement. Dismissal is usually punitive in nature while
termination is not and in most cases is simply a process to bring a contract of
employment to an end. Again, termination of employment is a right exercised by both
employer and worker while dismissal is the sole right of an employer. Further, under
termination, the worker receives an end of service benefits such as his gratuity, but a
worker who is dismissed loses all his benefits.

The differences between the two terminologies have been recognised and accepted
by our courts since the common law was introduced as part of the received laws of
this country. Under the current fourth republican dispensation, Article 11 recognises
the common law as part of the laws of Ghana. In that regard, a common law remedy
applied as part of our labour regime will continue to be part of the laws of this country
until it ceases to exist by express wording in a local legislation or clear conflict between
the application of that common law right and the provisions of the local legislation.
We have searched through Act 651 which is the current legislation affecting labour
relations in this country and have found no such express departure or conflict between
the common law remedy and local legislation. On the contrary, section 176 of Act 651
provides for the modification of existing enactments as follows:

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 “The provisions of any enactment of relevance to this Act in existence
before the coming into force of this Act shall have effect subject to
such modifications as are necessary to give effect to this Act, and to
the extent that the provisions of any of such enactment is
inconsistent with this Act, the provisions of this Act shall prevail”.

Our interpretation of this provision is that Act 651 did not repeal all previous provisions
of laws dealing with labour in this country unless they conflicted with the provisions
of the Act. In any case a scan through other provisions of Act 651 will leave no one in
doubt that the Act recognises and acknowledges the existence of the common law
remedy of dismissal.

Section 30 (3) headed “Termination of Employment Not To Affect Leave Entitlement”

states that the provision in the section that a terminated worker would be entitled to
his annual leave earned in the calendar year and shall not be deprived of any other
grants or awards including payment in lieu of notice of termination which the worker
is entitled to will not apply to cases where the “employer has the right to dismiss
a worker without notice”.

Section 57 (8) on Maternity, Annual and Sick Leave provides that an “employer shall
not dismiss a woman worker” because of her absence from work on maternity
leave.

Section 119 (2) headed “Exposure to Imminent Hazards” states that an “employer
shall not dismiss or terminate the employment of a worker” or withhold any
remuneration of a worker who has removed himself or herself from a work situation
which the worker has reason to believe presents imminent and serious danger to his
or her life, safety, .or health.

And finally, section 127 (2) headed Discrimination states that a “person who seeks
by intimidation, dismissal, threat of dismissal”, or by any kind of threat or by
imposition of a penalty, or by giving or offering to give a wage increase or any other
favourable alteration of terms of employment, or by any other means, seeks to induce
a worker to refrain from becoming or continuing to be a member or officer of a trade
union is guilty of unfair labour practice.

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We can safely conclude that the careful choice of words and language by the
Legislature in the sections referred to above, where in some cases “termination” and
“dismissal” were used disjunctively is a clear manifestation of the intention on the part
of the law maker to give effect to the separate and independent existence of the two
remedies in our labour law. We further believe that the failure to mention dismissal as
one of the remedies for severing relationship with a worker in sections 15-18 and 62-
64 of Act 651 would not affect the right of labour unions and their management to
agree to include it in their contracts of employment as was done in the CBA under
consideration between the Ghana Commercial Bank Ltd and the Union of Industry,
Commerce and Finance Workers of TUC.

In the appeal before us, the parties being persons of full age and understanding and
represented by labour experts on both sides negotiated in Article 16 of the CBA as
follows:

“Management may effect summary dismissal for just and reasonable cause
involving dishonesty, fraud, wilful refusal to obey legitimate and reasonable
instruction, proven gross misconduct and any of the provisions of sections
12(a), (b) and 13.”

The record revealed that management after the disciplinary investigations took a
serious view of the conduct of the appellant for signing the letter pledging the bank
to honour post-dated cheques when the customer did not have sufficient funds in his
account. The appellant also refused to obey legitimate instructions by passing entries
disbursing a loan facility for the purchase of a vehicle by Gyimantwi Enterprises
contrary to the Executive Credit Committee’s instructions. Based on these infractions,
some of which the appellant admitted he did not have authorisation powers in the way
he acted and apologised, he was dismissed summarily. It is the fairness of this
dismissal that the appellant is challenging in this ground.

We have no hesitation in stating that where a worker is dismissed summarily and the
employer cannot justify that the dismissal conforms with the terms of the contract of
employment, the dismissal would be wrongful, and the courts would be clothed with
power to strike down any such dismissal of a worker which is contrary to the CBA.

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This is how Ansah JSC explained it at pages 794-795 in Kobi v Ghana Manganese
Co Ltd (supra):

“It was time the ‘traditional rule’ epitomised by Aryee v State Construction
Corporation (supra), was re-considered because it had the potential of
resulting in oppression by the employer and creating docility in the
employee. With the fear of losing his job at anytime depending on the
whims and caprice of his employer who may dismiss him at will, staring at
him perpetually, the worker enjoyed no security of tenure. He would
become a malleable tool in the hands of his master and do his bidding.
However, his consolation was that a collective agreement may require that
the employer could only terminate an employment; upon certain
contingencies, namely, the employee being found guilty of an offence in a
schedule of offences in the collective agreement; or the laws of the land or
statute regulating employment in the land for the time being; or declared
redundant under special conditions”.

In the same way if the contract of employment vested the employer with the right to
dismiss a worker and the employer acted on that power based on justifiable evidence,
the court will uphold the dismissal as binding based on terms negotiated by the parties
in their CBA under section 105 of the Act 651 unless the contract is unconscionable,
i.e. so severely one-sided and unfair to one of the parties that it shocks the conscience
and it is thus deemed unenforceable. This is in consonance with the time-tested
common law strong rule of freedom of contract.

In Kobi v Ghana Manganese Co Ltd (supra) this court per Ansah JSC examined
the import of a contract of employment within the framework of disciplinary actions
imposed by employers and held at pages 790-791 as follows:

“In looking for justification for the action of the company, where a collective
agreement existed between the employer and the employees, that must be
the yardstick or the acid test to apply……. As stated, when the parties have
provided for certain eventualities and procedures in a collective agreement,
they ought to apply fully so as to justify any action by the parties to the

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agreement. The binding efficacy of collective agreement…. Must never be
whittled away”.

In this appeal management dismissed the appellant based on the terms of the contract
negotiated and agreed to in the CBA. We find the reasons provided for the dismissal
to be lawful and will not interfere with the decisions of the trial court and the Court of
Appeal on this ground.

FAIR HEARING IN ADMINISTRATIVE JUSTICE:

This brings us to ground of appeal 2 which is:

“The court below erred in law when it held that plaintiff was given a fair
hearing within the defendant/respondent/respondent concerning his
dismissal”.

The appellant argues that he was not given a fair hearing because he was taken by
surprise when he was confronted with other issues other than those for which he was
invited to the disciplinary committee and therefore, could not prepare with
documentary evidence to show the committee. This, according to him was evidenced
from failure to give him opportunity to confront the inspectors who did the audit during
their investigation or at the disciplinary hearing and further his right of appeal under
the CBA was hindered by the managing director. Further the hearing was biased
against him as the chair of the disciplinary committee was a judge in its own cause by
statements made by the chair at the beginning of the proceedings.

In response, the respondent submitted that in accordance with the decision of the
court in the Aboagye case (supra) a disciplinary committee was constituted, charges
were framed, and the appellant given the opportunity to appear and answer questions.
The respondent also submitted that the proceedings at the disciplinary hearing were
recorded, fair and that no evidence was adduced to support the assertion of bias or
that the respondent treated appellant unfairly. On the appeal to the board through
the Managing Director, the respondent stated that the appeal was submitted on 28th

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August 2009, three months after the dismissal instead of the 30 days provided in the
rules and so the appeal was dismissed.

Since fair trial has been raised, we turn to the primary document of the land for
guidance. Like the property rights of spouses, labour matters touching on the right to
work has been classified by this court as a human rights issue. See the dictum of Benin
JSC in REPUBLIC V HIGH COURT, ACCRA (INDUSTRIAL AND LABOUR
DIVISION COURT 2); EX PARTE PETER SANGBER-DERY [2017-2018] 1
SCLRG 552. In this case the Supreme Court noted that the prohibited grounds for
terminating an employment under section 63 of Act 651 are simply restatements of
the human rights provisions under the Constitution. Benin JSC noted at page 569 as
follows:

“Upon a close look at section 63 of the Act, it will be noticed that the
grounds stated therein as grounds of unfair termination of
employment are largely taken from the Human Rights provisions of
the 1992 Constitution particularly articles 24, 26 and 29 and it
appears the legislature was merely seeking to give effect to those
provisions.”

Being a human rights issue under our Constitution, the right to a fair trial must be
adhered to at all costs for the development of our democracy. Every step taken in the
adjudication process should be manifestly and undoubtedly be seen to be fair. Thus,
Article 19(13) of the Constitution dealing with the duties of adjudicating authorities
provides as follows:

"An adjudicating authority for the determination of the existence or extent

of a civil right or obligation shall, subject to the provisions of this
Constitution be established by law and shall be independent and impartial
and where proceedings for determination are instituted by a person before
such an adjudicating authority, the case shall be given an adjudicating fair
hearing within a reasonable time".

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To give effect to the aged-old principle of fair trial in labour matters, adjudication of
labour disputes affecting misconduct of workplace staff before disciplinary committees
should as nearly as possibly follow adjudication practices which promote procedural
fairness such as natural justice. There must also be pre-hearing protocols which
eliminate elements of surprises. Every effort must be made to avoid ‘ambush’ or
surprises likely to work against the interest of the staff under investigations. Elements
of surprises have been abolished in civil disputes in this jurisdiction by the passage of
C.I. 87 which introduced the exchanges of witness statements and exhibits at case
management conference before trial. In criminal cases accused persons now have true
sense of justice after the interpretation of Article 19 by this court in the celebrated
case of Republic v Baffoe-Bonnie & Ors [2017-2020] 1 SCGLR 327. Surprises,
therefore in administrative justice should be a matter of concern to the court.

The fairness expected by the framers of the Constitution has been further given a
boost in Article 23 where administrative officials and tribunals of administrative bodies
have been charged to act fairly. According to Article 23:

"Administrative bodies and administrative officials shall act fairly and

comply with the requirements imposed on them by law and persons
aggrieved by the exercise of such acts and decisions shall have the right to
seek redress before a court or other tribunal."

Administrative bodies, therefore, exercising discretionary power to determine the fate

of workers facing disciplinary hearings are to make conscious effort to guard against
“illegality, irrationality, and procedural impropriety” and to act with fairness and
reasonableness if the justice for all enshrined in the Constitution is to be given effect.

The appellant in that regard has argued that he was taken by surprise when he was
confronted at the hearing with other issues which were not part of the charges. He
also stated the hearing was biased against him, the chair of the disciplinary committee
was a judge in its own cause, and he was not given the opportunity to confront the
inspectors who made adverse findings against him leading to his interdiction,
investigation, and subsequent dismissal. The appellant gave an example as the

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opening comments of the chairman of the disciplinary committee at page 59 of the
record.

If, as alleged by the appellant, the disciplinary hearing was fraught with such acts,
that certainly would be a blight on the right to a fair trial which the courts and every
citizen in general must aspire to protect. The fairness of a trial is not limited to the
prosecution or the committee charged with investigating a disciplinary matter. The
defence also has a role to play in ensuring that the process of fairness is complete.
So, where an appellant as in this case has concerns about matters which he was not
charged with but failed to object to at the trial and was content to provide answers
without any compulsion, he cannot at this late stage raise these matters as grounds
of appeal especially when the record did not capture any of these alleged infractions.
Besides, the appellant did not plead any of these serious breaches at the trial court
and no evidence was led on them at the trial.

A second appellate court such as the Supreme Court in reviewing the record will limit
itself to the factual issues raised at the trial and not on appeal to this court. We have
read the introductory remarks of the chairman of the disciplinary committee which the
appellant alleges were prejudicial to the fair hearing of the investigation. The chairman
after stating the reasons for the invitation of the appellant stated the matters the
appellant was said to have been involved in and how he should answer allegations
i.e., an admission or a denial with evidential proof and not just bare denial. This is the
concluding comments from the chairman:

“Since the allegations are based on a report of an inspection, we will require

you to admit them or deny them. If you are denying them, you must come
with unimpeachable proof of the denial and not just by word of mouth”.

We find nothing prejudicial about these remarks which should incur the wrath of the
appellant and to accuse the disciplinary committee of being bias and judges in their
own cause. We are satisfied that the appellant received fair hearing when he appeared
before the disciplinary committee and that the constitutional requirements in articles
19(13) and 23 were satisfied in this matter. We find the appellant’s conduct

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incompatible with the faithful discharge of his duty to his employers, the bank.
Accordingly, we find no merit in the appeal and same is dismissed.

N. A. AMEGATCHER
(JUSTICE OF THE SUPREME COURT)

ANIN YEBOAH
(CHIEF JUSTICE)

M. OWUSU (MS.)
(JUSTICE OF THE SUPREME COURT)

C. J. HONYENUGA
(JUSTICE OF THE SUPREME COURT)

DISSENTING OPINION

PWAMANG, JSC:-

My Lords, the facts and the law in this case persuade me to a conclusion different
from the rest of you my esteemed and honourable colleagues. I therefore herewith
set out the reasons for my decision to grant one of the reliefs claimed by the plaintiff.
This case involves a claim by a dismissed worker for re-instatement in an employment
that does not have a public element to it and as this is a new area in our labour law
my judgment on this occasion will be a bit long so bear with me.

THE FACTS

The genesis of this case is a letter of interdiction dated 3rd October, 2008 which the
defendant/respondent/respondent (the defendant) wrote to the
plaintiff/appellant/appellant (the plaintiff), its employee working at the Bole branch of
the bank, interdicting him for his alleged involvement in acts of fraudulent transfer of

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funds between the bank accounts of Total Petroleum Ghana Limited and Gyimantwi
Entreprise (Gyimantwi), a customer of the branch. The plaintiff had by then worked
continuously with the defendant for 26 years and risen to the rank of Chief Clerk.
Following upon the interdiction, the plaintiff was invited to face a disciplinary
committee set up by the defendant on the basis of provisions of a Collective Bargaining
Agreement (CBA) it signed with the workers representatives. The plaintiff was served
with a charge for the enquiry by the Disciplinary Committee but the charge was
different from the reason for which he was interdicted. The charge stated that the
plaintiff authorized and gave immediate value to almost all other banks cheques sent
for clearing between 1st January, 2007 and April, 2008 contrary to laid down policies
of the bank. The plaintiff attended upon the Disciplinary Committee and took objection
to the shifted ground on which he was made to face disciplinary proceedings. He
nevertheless participated in the enquiry and presented his defences. In fact, the
investigations went beyond the matter of giving immediate value to other banks
cheques to include his role in the disbursement of a loan approved by the bank for
Gyimantwi to purchase a vehicle for its business.

My Lords, Gyimantwi at the material time was a contractor and dealer in petroleum
products at Bole and the major customer of the Bole Branch of the defendant. In its
report at the end of the enquiry, the Disciplinary Committee acquitted the plaintiff of
being involved in the manipulation of the accounts of Total Petroleum Ghana Limited
and giving immediate value to other banks cheques. However, the Committee found
that the plaintiff and the branch manager jointly signed documents for the
disbursement of the loan granted to Gyimantwi in a manner contrary to the conditions
of approval of the said loan. The plaintiff signed those documents as acting Second-
in-Command of the branch at a time the actual officer was said to be on leave. This,
the Committee held, constituted misconduct under the CBA for which the plaintiff was
liable to be sanctioned.

It must be stated at the outset that the Branch manager was also made to face
disciplinary proceedings and when he was questioned about the unapproved
disbursement of the loan to Gyimantwi, he accepted responsibility as the one who
requested the plaintiff to sign off the impugned letter and entries. After his disciplinary

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hearing, the Committee recommended that he be dismissed and he was accordingly
dismissed. He did not challenge his dismissal and even testified at the trial of this case
in defence of the plaintiff. One Mohammed Abdul Fatawu of the Bole Branch was also
investigated for the same matters but the Committee did not find him culpable so he
was exonerated.

As punishment for the misconduct the Committee found against the plaintiff, it
recommended to the Executive Management Committee, which is the disciplinary
authority of the defendant in respect of workers of the category of the plaintiff, that
he should be demoted as no dishonesty was established against him. However, the
Executive Committee did not act in accordance with the Committee’s
recommendations but decided, as permitted by Article 18(c) of the CBA, to dismiss
the plaintiff from its employment. In the letter communicating the decision, the
reasons for the dismissal were stated as; “(a) Signing the letter pledging the bank to
honour the post-dated cheques issued by Gyimantwi to the vendor of the vehicle, (b)
Passing the entries disbursing the loan facility for the purchase of the vehicle in a
manner contrary to the executive credit committee’s instructions, and (c) Refusing to
obey legitimate instructions as per article 16(a) of the CBA (2007-2009).”

THE EARLIER PROCEEDINGS

The plaintiff took strong exception to his dismissal as it meant that he lost all benefits
that he would otherwise have been entitled to considering his long service with the
defendant. He initially resorted to the internal mechanisms of the defendant to seek
redress but that did not yield positive results. Thus, on 22 nd December, 2014 he took
out a writ of summons from the High Court, Accra against the defendant and claimed
the following reliefs;

i. An order declaring the dismissal of the plaintiff as unlawful.

ii. Reinstatement of the plaintiff with full benefits.
iii. Compensation for unlawful Dismissal.
iv. Damages, costs and solicitor’s fees.
v. Any other reliefs deemed fit by this Honourable Court.

In the alternative, the plaintiff claimed as follows;

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 i. An order declaring the dismissal of Plaintiff as unlawful.
ii. Payment of end of service benefits to Plaintiff as of 20 th May, 2009 when
Plaintiff was unlawfully dismissed.
iii. Interest on (b) ii at the prevailing commercial bank rate.
iv. Compensation for unlawful dismissal.
v. Damages costs and solicitor’s fees.
vi. Any other reliefs deemed fit by this Honourable Court.

The plaintiff stated in his pleadings that his role in the disbursement of the loan to
Gyimantwi did not amount to refusal to obey legitimate instructions. He also
contended that the hearing he was accorded by the defendant before dismissing him
did not measure up to the proper standard of fair hearing under the CBA as the
defendant kept changing the allegations against him. By the claim for re-instatement,
the plaintiff seeks a relief under section 64 of the Labour Act, 2003 (Act 651) which
is predicated on section 63 of the Act on Unfair Termination of employment. In line
with that, the plaintiff pleaded at paragraphs 8 and 9 of his statement of claim as
follows;

“8. Plaintiff contends that his dismissal was not borne out of the realities
on the grounds given in Plaintiff’s dismissal letter as they are not borne out
of the disciplinary committee’s report…..

9. Plaintiff will contend that his dismissal is borne out of malice as the
Disciplinary committee did not recommend his dismissal and that Plaintiff
did absolutely nothing untoward to merit dismissal by Defendant.”

In its statement of defence and counterclaim, the defendant asserted that the
dismissal of the plaintiff was lawful and went further to allege fraudulent conduct
against him, claiming that Gyimantwi induced him with money for him to conceal some
of its cheques causing financial loss to the bank. The defendant insisted that the
plaintiff had been given a fair hearing before the Disciplinary Committee and he was
found to have acted together with the branch manager in a manner contrary to laid
down policy so he deserved to be dismissed for dereliction of duty.

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At the close of the trial the High Court gave judgment against the plaintiff but
dismissed the defendant’s counterclaim. The learned High Court judge held that the
defendant failed to prove its claim of fraudulent conduct against the plaintiff. The case
turned principally on the fact that the plaintiff signed jointly with the branch manager
for a loan approved by the defendant to be disbursed in a manner contrary to the
conditions for the loan as approved by management. In rejecting the defence of the
plaintiff that it was the branch manager, his immediate superior, who requested him
to sign, the judge said as follows;

“As afore stated, he may not have signed it deliberately with the intention
of obtaining a material advantage to the detriment of the Defendant but he
knew what he was doing was wrong as he contradicted an earlier
memorandum.”

At the trial of the case the defendant had raised new charges against the plaintiff that
it had not pleaded, one being that he contravened Article 15(c) of the CBA in that he
learnt money in his private capacity to Gymiantwi, a customer of the bank. The
defendant further accused the plaintiff of breach of Article 15(e) of the CBA which
forbids an employee from engaging in commercial business without permission from
the managing director. The defendant led evidence that the plaintiff, while working
with the bank engaged in farming and even won a National Best Farmer’s Award
without permission of the Managing Director. The plaintiff argued that his farming
activities were well known to his branch manager and when he won the National
Award his activities were deemed known by management but he was never queried
on it until at the trial in court only because he sued the defendant. In dismissing this
argument of the defendant not complaining about these matters the trial judge, relying
on the case of Lever Brothers Ghana Limited v Annan [1989-90] 2 GLR 385,
held that an employer can use new grounds to justify a dismissal after the dismissal.
I shall digest that case fully in fra.

The plaintiff appealed promptly against the judgment of the High Court but his appeal
was dismissed by the Court of Appeal. Lovelace-Johnson, JA (as she then was), with
whom the rest of the court agreed, summed up their reasons for dismissing the appeal
as follows;

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“The trial judge made a finding of fact at page 348 of the ROA that the
Plaintiff contravened the CBA and Staff Service Rules and in so doing
misconducted himself. Her reasons for this finding can be found at pages
348 to 349. At those pages the trial judge reproduced portions of the
proceedings and gave her reasons for this finding. I am satisfied that her
reasons for her finding are sound and borne out by the evidence on record
and in line with the law.”

THE APPEAL TO THE SUPREME COURT.

The plaintiff has appealed from the decision of the Court of Appeal to the Supreme
Court and the grounds of appeal set out in the notice of appeal are that;

i. The judgment is against the weight of the (sic) evidence.

ii. The court below erred in law when it held that appellant was given a fair
hearing within the defendant/respondent/respondent concerning his
dismissal.
Particulars of error
a. The court below did not take into account the fact that the appellant was taken
by surprise when he was confronted with other issues other than those for
which he was invited to the disciplinary committee of the respondent.
b. The court below ignored the fact that appellant’s right of appeal within the
respondent was hindered by respondent’s managing director.
iii. The court below erred when it held that the dismissal of appellant was fair.

ARGUMENTS OF THE PLAINTIFF IN THIS APPEAL

In his statement of case, the plaintiff partly re-echoes his arguments in the two lower
courts and submits that contrary to what those courts held, the whole conduct of the
disciplinary proceedings were not in line with terms of the CBA and the Staff Service
Rules. He maintains that on a proper reading of Articles 18(a)(b) and(c) of the CBA,
he ought to have been tried by the Disciplinary Committee for only the offences for
which he was interdicted. Not having done so, the defendant breached the CBA. The
plaintiff also points out that the membership of the Disciplinary Committee did not
conform to Article 14(g) of the CBA. Still on failure to grant him hearing in accordance

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with the CBA, the plaintiff contends that under Article 14(h)(iii) of the CBA, where
after disciplinary proceedings the disciplinary authority decides to vary the sanction
recommended by the Committee, it shall inform the union and provide the reason for
the variation. This was not done in this case so the defendant breached the CBA and
the procedure adopted was thus unfair. Additionally, the plaintiff argues before us,
very forcefully, that from all the circumstances of his case, it is wrong to conclude that
he failed to obey legitimate instructions of his employer. He quotes Article 13(a) of
the CBA and submits that it enjoined him to obey legitimate orders of persons under
whose jurisdiction he was serving and he did exactly that by signing off the entries as
ordered by the branch manager under whom he was serving. The plaintiff finally
submits that the lower court did not consider section 63(4) of Act 651, a statute
binding on the court, and that if they did they would not have held his dismissal as
fair.

ARGUMENTS OF THE DEFENDANT IN THIS APPEAL.

In response the defendant says that all the matters relating to the handling of the
account of Gyimantwi including the manner of disbursement of the loan and the
plaintiff’s role in it were raised at the disciplinary proceedings and he was given
opportunity to state his side so he cannot complain of not being given a fair hearing.
Respondent argues that where after interdiction investigations reveal other
misconduct not stated in the interdiction letter, it is not out of place to raise them
during the disciplinary hearing so Article 18 of the CBA was not breached. As to the
charges that were only laid for the first time at the trial in court, the respondent states
that they were uncovered during the case and the plaintiff cannot complain that he
was taken by surprise as the law permits reliance on new matters in defence of a
dismissal. Defendant contends that in any event, in court the plaintiff was given
opportunity to defend himself on those matters. The defendant says that the
composition of the Disciplinary Committee was in compliance with Article 14 of the
CBA. As to whether the Executive Management Committee complied with Article
14(h)(iii) of the CBA and provided reasons for varying the recommended punishment,
the defendant, without saying whether it did or did not comply with the provision,
states that the two lower courts held that the burden was on the plaintiff to prove that

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it did not but he failed to discharge that burden. On the issue of section 63(4) of Act
651, the defendant submits that the dismissal of the plaintiff was fair and that it was
in accord with section 62(b) of the Act. Defendant quotes the provisions of section
63(4) of Act 641 as follows;

“A termination may be unfair if the employer fails to prove that,

a. The reason for the termination is fair; or

b. The termination was made in accordance with a fair procedure or this
Act.”

Defendant then submits that;

“The defendant gave the reasons for the termination of the plaintiff’s
employment (sic) in exhibit GA at page 40 of the record. The proceedings
of the Disciplinary Committee and the trial at the High Court clearly shows
that the dismissal was effected after a fair process. The CBA exhibit GA5
was complied with. Plaintiff was given notice of the charges and he
defended himself. The defendant, it is submitted proved that the dismissal
of the plaintiff was fair and is in accord with fairness procedure under the
Act.”

My Lords, it is vital to recognize that Unfair Termination of employment as a cause

of action is separate and distinct from Unlawful Termination of employment or
wrongful dismissal as known to the common law. In the case of Charles Afram v
SG-SSB Ltd; CA NO. J4/71/2018, unreported judgment of the Supreme Court
dated 21st March, 2019, the court per Kotey, JSC observed as follows;

“Unfair termination”, as distinct from the common law concept of “wrongful dismissal”,
is therefore a creature of statute, currently the Labour Act, 2003 (Act 651).

Though unfair termination is new in our jurisdiction as it was introduced for the first
time by sections 62-66 of Act 651 in 2003, it has always been a part of English Law
since the passage by the British Parliament of the Industrial Relations Act, 1971.
As the plaintiff in this appeal has grounded his case on both Unlawful Dismissal and
Unfair Termination, I intend to consider the appeal on the lines of the following two

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main questions; (a) Was the dismissal of the plaintiff unlawful? and, (b) Was the
dismissal of the plaintiff unfair as envisaged by Act 651?

CONSIDERATION OF THE APPEAL.

TERMINATION OF EMPLOYMENT.

This case calls for a detailed discussion of how our employment law has evolved over
time to its present state as provided in Act 651 so my discussion of the legal principles
will include the historical progression of the law on termination of employment. At the
initial stages of the common law labour relations were seen only within the framework
of a contract, whether written or unwritten, and as such it may be brought to an end
just as any contract entered into by two parties. Bringing to an end an employment
contract is generally referred to as termination of employment. An employment
relationship may be brought to an end or terminated either by the employer or by the
employee. At common law the employer could dismiss the worker for valid reasons or
decide to terminate the employment because she no longer wished to work with the
particular worker. The worker too may voluntarily resign from the employment but
there are also situations where the employer creates conditions that make it
impossible for the worker to continue in the employment compelling the worker to
stop the work. That is referred to as constructive dismissal.

At the early times the common law principles on employment were influenced by
theoretical conceptions of the middle ages that regarded the services a worker
provides to her employer as a commodity the terms of exchange of which were freely
negotiated between the worker and the employer at arms length. The terminology
that was used to describe the relationship between worker and employer was “master-
servant” and the principles evolved understandably permitted the master to do as he
pleased with his servant who had no real rights except to stop the work. In the course
of time, where the worker and the employer entered into agreed terms for their
relationship, the courts enforced those terms as a matter of freedom of contract. But
with developments in human interaction for production of goods and services, the
gradual expansion of civil rights in Western democracies and the growth of trade
unionism, the fallacy of the theory of a worker’s services as only a commodity traded

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on free terms and at arms length with the employer became evident. This led
governments to pass legislations within a framework that totally shifted from the
theory of equality of arms in negotiations of terms of employment contracts and
offered protection to workers while accommodating the interests of employers. The
reality of the relationship between worker and employer that has influenced most of
modern labour legislations has been aptly captured by that doyen of British Labour
Law, Sir Otto Kahn-Freund in the following words in his book “Labour and the Law”
(1972) at p.8;

“[T]he relation between an employer and an isolated employee or worker is typically

a relation between a bearer of power and one who is not a bearer of power. In its
inception it is an act of submission, in its operation it is a condition of subordination,
however much the submission and the subordination may be concealed by that
indispensable figment of the legal mind known as the ‘contract of employment.”

On account of the recognition of the inherent inequality in the relationship of worker

and employer, the main object of labour legislation has been to act as a countervailing
force to counteract the unequal bargaining power which is ever present in the
employment relationship. Labour statutes impose terms and conditions on the
employment relationship and they have effect, unless expressly exempted,
irrespective of any contractual terms to the contrary. Thus Section 1 of Act 651 states
as follows;

“The Act applies to all workers and to all employers except the Armed
Forces, the Police Service, the Prison Service, and the Security and
Intelligence Agencies specified under the Security and Intelligence
Agencies Act, 1996 (Act 526).”

An exemption is also made in section 19 of Act 651 as follows;

“19. Exception

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

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In Nartey-Tokoli & Ors v Volta Aluminum Co Ltd [1989-90] 2 GLR 341, Taylor
JSC writing for the 4-1 majority of the Supreme Court at pages 362/363 of the Report
said as follows; “Lord Loreburn L.C. in, Attorney-General v. Birmingham, Tame
and Rea District Drainage Board [1912] A.C. 788 at 795, H.L. expressed the
collective view of common law judges when he said that: "[a] court of law has no
power to grant a dispensation from obedience to an Act of Parliament."

Therefore, while it is true that the rules of the common law on employment evolved
on the back of master-servant relationship have influenced some aspects of current
labour law, a substantial part of the rights, especially of the employer at common law,
have been greatly reduced, either by contracts of employment negotiated on behalf
of workers by strong trade unions or statutes passed by governments. Currently,
certain concepts on labour matters have gained the status of international best
practices and are promoted by the international labour movement in the form of
international treaties ratified by many countries. Hence it is stated in the Memorandum
that accompanied the Bill that has been enacted as Act 651 as follows;

“The purpose of this bill is to bring the existing enactments on labour into
conformity with the Constitution and the several International Labour
Organisation (ILO) Conventions to which Ghana is a signatory and to
consolidate the several pieces of enactments on the subject into one
statute.”

Against this background, though we refer to wrongful or unlawful dismissal as common

law cause of action, its full ambit has been profoundly affected by contractual terms
and statutes. Ollennu, J (as he then was) presented the accurate state of the law on
unlawful termination of employment when in the case of Morgan & Ors v Parkinson
Howard Ltd [1961] GLR 68 at p. 70 he said as follows;

“In a claim for wrongful dismissal it is essential that the plaintiff should prove the
terms of his employment and then prove either that the determination of the
employment is in breach of the terms of his agreement, or that the determination is
in contravention of the statutory provisions for the time being regulating employment.
His claim cannot succeed if he fails to satisfy the court on these points.”

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See also the case of Kobi v Ghana Manganese Co. Ltd [2007-2008] SCGLR
771(SC).

UNLAWFUL DISMISSAL AND UNLAWFUL TERMINATION

The common law from the beginning recognized certain grounds upon which it was
lawful for an employer to dismiss a servant. These grounds included dishonesty,
incompetence and acting against the interest of the employer, and for any of these
reasons an employer could lawfully dismiss her worker. The term that was used was
dismissal or summary dismissal and it generally referred to termination of
employment for cause in that the employer has a reason for bringing the employment
relationship to an end. The law was therefore that if the employer decides to dismiss
a worker on any of the above grounds and the worker disputes the reason and denies
being guilty of the misconduct alleged, the law required the master to prove that she
was indeed liable failing which the dismissal would be held wrongful or unlawful. This
is what in Kobea v Tema Oil Refinery [2003-2004] 2 SCGLR 1039 Dr Seth
Twum, JSC referred to when he said at page 1040 that:

“…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.”

When parties began writing formal and detailed contracts of employment, in drafting
provisions on termination for misconduct, the term used has been dismissal or
summary dismissal and this can be found in most contracts of employment and
collective bargaining agreements as we have in this case. Some statutes too in making
provisions concerning this right of the employer to terminate a worker’s employment
for cause employ the term dismissal. When the employment of a worker is ended by
dismissal as we have in this case, usually the worker goes home without any
compensation paid to him no matter the number of years of satisfactory work with the
employer.

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Another way an employment relationship may be brought to an end by the employer
that was recognized by the common law, as we have already noted, was that an
employer had a right to end an employment relationship for any reason or no reason
at all. Lord Reid said as follows in Ridge v Baldwin [1963] APP.L.R 03/14, HL;

“The law regarding master and servant is not in doubt. There cannot be specific
performance of a contract of service, and the master can terminate the contract with
his servant at any time and for any reason or for none.”

In the case of Aryee v State Construction Corporation [1984-86] 1 GLR 425

CA, at page 432, Adade, JSC speaking on behalf of the Court of Appeal said that;

It should be noted that a contract of service is not a contract of servitude. To say, as

we are wont to do, that it gives rise to a master-servant relationship is to distort reality.
The employee is not the servant; in the popular sense, of the employer. He is merely
his employee. The contract is framed in such a way that either party may bring it to
an end and free himself from the relationship painlessly. In this case, the defendant
could at any time give the relevant three months' notice (or forfeit an equivalent in
salary) and leave the corporation, without justifying his action to the corporation. He
need not give any reason for his action nor is the corporation entitled, if he should
give one, to satisfy itself that the reason is true or false, sufficient or insufficient,
justified or unjustified. In the same way it would seem to us that the corporation
need not assign any reason for choosing to terminate their contract with the
defendant. The contract merely requires that the corporation gives three months'
notice (or its equivalent in salary), and their conduct will be perfectly in order.

Also, in Kobea v Tema Oil Refinery (supra) Dr Seth Twum, JSC referred to this
situation in the following words;

… an employer is legally entitled to terminate an employee’s contract of employment

whenever he wishes and for whatever reasons, provided only that he gives due notice
to the employee or pay him his wages in lieu of notice. He does not have to reveal his
reason, much less justify the termination…”

In this opinion I take the view that, to the extent that these statements of Adade and
Dr Seth Twum, JJSC were in respect of the state of Ghanaian Law before the passage

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of Act 651, they were good law. Note that the term used here is “terminate” and that
is generally the term used where an employer brings an employment relationship with
a worker to an end but not on account of misconduct or incapability of the worker. So
in employment contracts and statutes, the term termination is regularly used to refer
to this ground of ending the employment relationship where the employer is not
alleging misconduct or incapability as distinct from dismissal or summary dismissal. It
is therefore understandable to refer to wrongful termination or unlawful termination
where conditions to be fulfilled by an employer before termination, such as period of
notice as contained in an employment contract or statute, have not been complied
with. Where the employment of a worker is terminated this way and in accordance
with the requisite notice, it normally goes with some compensation payable by the
employer calculated according to the worker’s salary and the length of time she was
in the particular employment.

Notwithstanding the above explanation of the difference between the terms

“dismissal” and “termination”, they both amount to termination and that term may be
used to refer to both situations. In fact, in the instruments of the ILO, they apply the
term “termination” to refer to both dismissals and termination properly so called. That
is what the draftsman also did in Act 651 and used the term “termination” to refer to
both what is usually called dismissal and what is termination properly so called. This
drafting is understandable because the Memorandum to the Act said it was to bring
our Labour legislation into conformity with ILO treaties ratified by Ghana. For
instance, Section 15 of the Act is as follows;

15. Grounds for termination of employment

A contract of employment may be terminated,

(a) by mutual agreement between the employer and the worker;

(b) by the worker on grounds of ill-treatment or sexual harassment;

(c) by the employer on the death of the worker before the expiration of the
period of employment;

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(d) by the employer if the worker is found on medical examination to be
unfit for employment;

(e) by the employer because of the inability of the worker to carry out work
due to

(i) sickness or accident; or

(ii) the incompetence of the worker; or

(iii) the proven misconduct of the worker.

It is obvious that the section refers to termination of the employment of a worker by

the employer for justifiable reasons and subsections 15(e)(ii) & (iii) are specifically in
respect of dismissal of an employee by the employer. Section 15(b) equally refers to
constructive dismissal but Act 651 uses the terminology “termination”. Termination
properly so called by exercise of the employer’s right to bring to an end an employment
relationship is covered by Section 17 of the Act which provides as follows;

17. Notice of termination of employment

(1) A contract of employment may be terminated at anytime by either party

giving to the other party,

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

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

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

(2) A contract of employment determinable at will by either party may be

terminated at the close of any day without notice.

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

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

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As aforesaid, the principles of the common law on employment have been markedly
affected by statute so though one may talk of common law cause of action for wrongful
dismissal or unlawful dismissal, if in the case reliance would be placed on section 15
of Act 651, then describing an action for wrongful dismissal as unlawful termination
would not be wrong in Ghanaian Law.

Now, let us return to what Ollennu, J stated in Morgan & Ors v Parkinson Holman
(supra) and answer the question whether in this case the plaintiff has been able to
prove that his dismissal was in breach of the terms of his employment as captured in
the CBA and Staff Service Rules or was in breach of section 15 of Act 651, which is
the relevant statutory provision on unlawful dismissals. At this point in the case there
is not much dispute about the primary facts as found by the trial judge and affirmed
by the Court of Appeal. The real difference between the parties is the interpretation
to be given to the primary facts and the legal consequences that flow from the facts.

I will first consider the plaintiff’s case that the courts below erred in admitting the
charge of lending money in his private capacity to a customer and undertaking
commercial business without permission of the managing director both of which were
not brought up before his dismissal but only after the dismissal when he sued in court.
The plaintiff’s case is that before he can be sanctioned for any charge of misconduct,
the charge ought to have been preferred at least before he faced the Disciplinary
Committee but that was not done in respect of these two charges. In answer, the
defendant quoted and relied on the following passage in the judgment of the Court of
Appeal in Lever Brothers Ghana Ltd v Annan [1989-90} 2 GLR 385 at 388;

“The learned trial judge in our view stated the correct principle of law when he said:

"The law is that where an employee has, in fact, been guilty of misconduct so grave
that it justifies instant dismissal, the [p.389] employer can rely on that misconduct
in defence of any action for wrongful dismissal, even if at the date of the dismissal the
misconduct was not known to him: see Boston Deep Sea Fishing & Ice Company
v Ansell (1888) 39 ChD 339 at 363, CA."(emphasis supplied).

First, that principle states that where the employee was guilty of misconduct so grave
that it justifies instant dismissal. In the Lever Brothers case, the employees

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committed fraud by dishonestly paying for and collecting large quantity of products of
the employer that were meant for their customers in Kumasi. At that time in Ghana
there was shortage of those products and there was an offence known as diversion of
essential commodities. The employees were reported to the police who arrested them
and carried out investigations that established their fraud and that justified the
application of the principle in the Boston Deep Sea Fishing case. That case can
therefore be distinguished from the case at bar. What is so grave a misconduct that
justifies instant dismissal about the plaintiff engaging in farming without permission
or using his own money to satisfy cheques of a key customer for no reward as we
have in this case? When the CBA talks of lending it must be understood to mean
lending at an interest in competition with the bank but in this case there was no
evidence of interest paid to the plaintiff or any benefit that accrued to him from that
gesture he extended to Gyimantwi.

The Boston Deep Sea Fishing case involved the discovery of fraud committed by
Mr Ansell, a director, which was not known to the employer until after the termination
of his employment, but in the instant case the trial court acquitted the plaintiff of any
fraud so those cases cannot serve as authority for holding that the defendant could
dismiss the plaintiff on these two new charges without laying them during the
disciplinary hearing. Similarly, the facts of Presbyterian Church Agogo v Boateng
[1984-86] 2 GLR 532 were that the plaintiff who was on duty as a senior nurse-
midwife was required to help pregnant women to deliver safely but she rather insulted
and twice slapped a woman who was in the pangs of labour with her child dropping.
She was served a query which she ignored to answer so she was summarily dismissed.
That was proven grave misconduct that justified instant dismissal so that decision can
also be distinguished from this case.

But, a more fundamental point against the defendant on this matter is that this so
called common law principle relied on in the Lever Brothers case has been held to
be subject to a right to hearing contained in an employment contract, and I will add,
to clear provisions of a binding statute. In Laguda v Ghana Commercial Bank
[2005-2006] SCGLR 388 at page 402 Date-Bah, JSC said as follows;

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“Thus, once there is evidence on the 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 there had been compliance with the rules of natural
justice, unless there was a contractual provision to the contrary.” (emphasis
supplied).

In this case, a reading of the provisions of the CBA and the Staff Service Rules as a
whole, and particularly Articles 14(e) on the mandate of the Disciplinary Committee
and 18 on interdiction and investigations of offences, I have no doubt in my mind that
the contract of employment between the parties entitled the plaintiff to be offered the
opportunity to be heard on any charge arising out of the CBA before that charge can
form the basis of a decision to dismiss him. These two new charges were based on
specific provisions in the CBA and not otherwise.

Furthermore, in Aboagye v Ghana Commercial Bank [2001-2002] SCGLR 797

the respondent contended that it had a right to dismiss the appellant without a formal
hearing as provided for in its Staff Service Rules since there was evidence before the
court that he had acted negligently in passing some foreign exchange entries without
properly verifying them. In dismissing that argument the Supreme Court held, per
Bamford-Addo, JSC, as follows at page 815 of the Report;

“Finally, in considering the question whether or not in any particular case there has
been a failure of natural justice, the fact that there was evidence to support the charge
preferred against the plaintiff, namely negligence, is immaterial to the determination
of the issue whether the plaintiff had not been given a fair trial. Lord Denning in the
case of Annamuthodo v Oil Field Workers Trade Union [1961] AC 945 on the point
said;

‘Mr Lazarus did suggest that a man could not complain of failure of natural justice
unless he could show that he had been prejudiced by it. Their Lordships cannot accept
this suggestion. If a domestic tribunal fails to act in accordance with natural justice,
the person affected by their decision can always seek redress in the courts. It is a
prejudice to any man to be denied justice. He will not be entitled to damages if he
suffered none. But he can always ask for the decision against him to be set aside.”

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On this issue there is the further question of if its amounts to a fair procedure to
dismiss a worker on new charges after the fact of dismissal? That I shall discuss under
unfair termination. For the reasons explained above, I am of the considered opinion
that the charges of doing commercial business and lending money to a customer could
not be relied on by the defendant as justification for dismissing the plaintiff.

I will next consider whether it was right for the defendant to use the evidence on the
manner of disbursement of the loan to Gyimantwi to dismiss the plaintiff as that issue
was not specifically stated either in his interdiction letter or the charge preferred
against him for the hearing before the disciplinary committee. The plaintiff submits
that Article 18 of the CBA implies that it is the charges set out in an interdiction letter
that must be tried by the disciplinary committee but I have read that provision closely,
as well as Article 14 of the CBA and they do not support such a rigid interpretation as
though it was a criminal trial. The charges in the interdiction letter and the letter
inviting him for the disciplinary proceedings read together sufficiently notified the
plaintiff that the propriety of the handling of issues concerning their customer,
Gyimantwi, were part of the subject matter of the disciplinary action. The
disbursement of the loan was an integral part of those issues so I am of the view that
the plaintiff had sufficient notice that the disbursement of the loan would be enquired
into. Though the defendant was generally sloppy in the handling of the whole
disciplinary action against the plaintiff, particularly having regard to the experience
accumulated from the several cases in the Law Reports concerning this very
defendant, some of which have been referred to in this case, it would still be stretching
the argument too far to demand criminal-trial-like charges that are drafted with the
precision of experienced prosecutors.

In fact, the issue of the disbursement of the loan to Gyimantwi and the plaintiff’s role
in it was extensively examined at the disciplinary hearing and the explanation of the
plaintiff was heard by the committee before it concluded that his role in it breached
his obligations under the CBA. The plaintiff does not seriously challenge that he signed
for the loan granted to Gyimantwi to be disbursed in a manner contrary to the
conditions of approval by the Executive Credit Committee of the Bank. Even if he was
not aware of the conditions, he ought to have familiarized himself with them before

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appending his signature. His explanation was that the branch manager, his immediate
superior, requested him to sign and he complied because he was his superior. Indeed,
a reading of Article 13(a) of the CBA, which elaborates on the offence of disobeying
legitimate instructions, and not Article 16(a) quoted in the dismissal letter, lends itself
to different interpretations. It is as follows;

Article 13(a) of the CBA provides that;

“[Every officer] shall observe, comply with and obey all legitimate orders
and directions which are in the interest of the bank and which may from
time to time, be given to him/her by any person or persons under whose
jurisdiction, superintending or control he may for the time being be placed.”

This provision is nebulous because it is capable of being interpreted to mean that the
interest of the bank as determined by the person under whose jurisdiction an officer
is serving. This makes the explanation of the plaintiff on this issue deserving of
favourable consideration when it came to the punishment to impose. The defendant
has argued that if a person carries out unlawful orders he will be held culpable for the
unlawful act and reference has been made to the case of Yaokumah v The Republic
[1976] 2 GLR 147. That case, with due respect, is a criminal case and it talks about
criminal liability for committing an offence with the defence of superior orders. In the
civil law realm, the legal consequences of a proven defence of superior orders has
always been taken into account in determining liability where malicious intent is
involved. The distinction of the defence between criminal culpability and civil liability
is shown in the following statement by the authors of the Halsbury’s Laws of
England (4th ed), Vol. 11(1) at p. 34, para. 27:

“The mere fact that a person does a criminal act in obedience to the order of a duly
constituted superior does not excuse the person who does it from criminal liability,
but the fact that a person does an act in obedience to a superior whom he
is bound to obey, may exclude the inference of malice or wrongful intention
which might otherwise follow from the act.”(emphasis supplied).

Nonetheless, since failing to obey laid down instructions is a ground of misconduct for
which the defendant may terminate the employment of a worker, the dismissal in this

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case is not unlawful on that score but the explanation of superior orders which was
confirmed by the branch manager who testified in support of the plaintiff ought to
have been taken into account by the Executive Management Committee in determining
the appropriate punishment as the Disciplinary Committee rightly did.

The plaintiff has next complained about the composition of the membership of the
Disciplinary Committee, but there is not much value in that complaint since the
defendant did not in substance breach the provisions of the CBA under which the
disciplinary proceedings were conducted so I am not persuaded to accept that
complaint. Finally, in respect of the failure by the Executive Management Committee
of the defendant to comply with Article 14(h)(iii) of the CBA, it seems to me that the
argument of the defendant leaves some critical questions unanswered but the issue
fits more into the procedural fairness of the dismissal so I will discuss it under the
heading of unfair termination, to which I now turn.

UNFAIR TERMINATION.

In order for us to have a full understanding of unfair termination as a cause of action

in our jurisdiction, we need to set out the three provisions of Act 651 on the concept
which are directly in issue in this case. There may be unfair termination arising out of
a redundancy exercise by an employer but that does not concern us in this case so
that will not be specifically considered.

They are sections 62, 63 and 64 and are as follows;

Fair and Unfair Termination of Employment

62. Fair termination

A termination of a worker’s employment is fair if the contract of

employment is terminated by the employer on 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;

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(d) due to legal restrictions imposed on the worker prohibiting the worker
from performing the work for which the worker is employed.

63. Unfair termination of employment

(1) The employment of a worker shall not be unfairly terminated by the

worker’s employer.

(2) A worker’s employment is terminated unfairly if the only reason for the
termination is

(a) that the worker has joined, intends to join or has ceased to be a member
of a trade union or intends to take part in the activities of a trade union;

(b) that the worker seeks office as, or is acting or has acted in the capacity
of, a workers’ representative;

(c) that the worker has filed a complaint or participated in proceedings

against the employer involving alleged violation of this Act or any other
enactment;

(d) the worker’s gender, race, colour, ethnicity, origin, religion, creed,
social, political or economic status;

(e) in the case of a woman worker, due to the pregnancy of the worker or
the absence of the worker from work during maternity leave;

(f) in the case of a worker with a disability, due to the worker’s disability;

(g) that the worker is temporarily ill or injured and this is certified by a
recognised medical practitioner;

(h) that the worker does not possess the current level of qualification
required in relation to the work for which the worker was employed which
is different from the level of qualification required at the commencement of
the employment; or

(i) that the worker refused or indicated an intention to refuse to do a work

normally done by a worker who at the time was taking part in a lawful strike

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unless the work is necessary to prevent actual danger to life, personal
safety or health or the maintenance of plant and equipment.

(3) Without limiting the provisions of subsection (2), a worker’s

employment is deemed to be unfairly terminated if with or without notice
to the employer, the worker terminates the contract of employment

(a) because of ill-treatment of the worker by the employer, having regard

to the circumstances of the case, or

(b) because the employer has failed to take action on repeated complaints
of sexual harassment of the worker at the workplace.

(4) A termination may be unfair if the employer fails to prove that,

(a) the reason for the termination is fair, or

(b) the termination was made in accordance with a fair procedure or this
Act.

64. Remedies for unfair termination

(1) A worker who claims that the employment of the worker has been
unfairly terminated by the worker’s employer may present a complaint to
the Commission.

(2) If on investigation of the complaint the Commission finds that the

termination of the employment is unfair, it may

(a) order the employer to re-instate the worker from the date of the
termination of employment;

(b) order the employer to re-employ the worker, in the work for which the
worker was employed before the termination or in any other reasonably
suitable work on the same terms and conditions enjoyed by the worker
before the termination; or

(c) order the employer to pay compensation to the worker.

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My Lords, it is instructive to underscore the fact that, as stated in the Memorandum
to the Bill, the above provisions are a replication of Part II of the ILO Termination
of Employment Convention, 1982 (No. 158). It is plain that the above provisions
are aimed at changing the law on termination of employment as it existed prior to the
enactment of Act 651. Therefore, in interpreting the above provisions to discover the
intention of parliament, we must take into account the mischief in the existing law
that the provisions on unfair termination of employment were intended to address.
This approach to the interpretation of statutes which introduce previously non-existing
rights and remedies is referred to as the Mischief Rule of interpretation. It was
established in the sixteenth Century English case known as Heydon’s Case (1584)
76 ER 637. In that case the Barons of the Exchequer unanimously held as follows;

“And it was resolved by them, that for the sure and true interpretation of all statutes
in general (be they penal or beneficial, restrictive or enlarging of the common law)
four things are to be discerned and considered:

1st. What was the common law before the making of the Act.

2nd. What was the mischief and defect for which the common law did not provide.

3rd. what remedy the Parliament hath resolved and appointed to cure the disease of
the commonwealth.

And, 4th. The true reason of the remedy;

and then the office of all the Judges is always to make such construction as shall
suppress the mischief, and advance the remedy, and to suppress subtle inventions
and evasions for continuance of the mischief, and pro private commodo, and to
add force and life to the cure and remedy, according to the true intent of the makers
of the Act, pro bono public”.

The above directive has been consistently applied by common law judges when called
upon to construe statutes that create new remedies previously unknown to the
existing law. See Mercer v. Guinea Press Ltd., [1962] GLR 638.

Since the provisions in issue here originate from the ILO treaty, the mischief they are
directed to cure can very easily be extracted from the instruments of that organization.

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In a review of employment protection globally, the ILO in its publication titled
“Employment Protection Legislation”, 2015 states the background and objectives of
its Termination of Employment Convention, 1982 (No. 158) as follows;

“Employment protection and promotion of employment security as an

essential aspect of the right to work have been a major concern of the
International Labour Organization (ILO) throughout its history.

1. The first international labour instrument dealing specifically with this

issue – the Termination of Employment Recommendation (No. 119)
was adopted in 1963. It marked the recognition at the international
level of the idea that workers should be protected against arbitrary
and unjustified dismissals and against the economic and social
hardship inherent in their loss of employment.
2. To take into consideration new developments since then, such as
heightened global competition and recurrent economic downturns,
the Termination of Employment Convention, 1982 (No. 158) and the
Termination of Employment Recommendation, 1982 (No. 166), were
adopted by the International Labour Conference in 1982
3. To date, most of the countries around the world have adopted some
type of employment protection legislation. These provisions usually
reflect the de facto asymmetry of contractual rights of either party to
terminate employment relationship, as well as the need to address
the consequences of this asymmetry: while termination of the
contract by the worker – exercising the fundamental right to protect
his or her freedom of work – is oftentimes merely an inconvenience
for the employer, the termination of the contract of employment by
the employer can result in insecurity and poverty for the workers and
their family, particularly during the periods of high unemployment.
4. Moreover, employment protection can also be seen as a gatekeeper
for fundamental principles and rights at work, as well as other rights
of a worker: for example, the fear of being dismissed arbitrarily may

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 induce employees to wave rights related to trade union activities,
maternity, or education (De Stefano, 2014).”

Accordingly, as I set out to interpret these provisions and apply them to the facts of
this case I have in my mind the above stated mischief of insecurity of employment in
the existing law that the legislation is meant to cure. I have undertaken an extensive
search for precedent within the limits of our poor system of up-to- date law reporting
but I have not come across a decision of our courts in Ghana which has thoroughly
considered sections 62, 63 and 64 of the Act and pronounced on their scope. But,
since unfair termination has been known in labour law globally for some years now,
when our parliament decided to introduce it into our jurisdiction the words used must
be presumed to bear certain meanings generally applied to them in labour instruments
and decided cases, particularly in countries with a similar system of law as us.

In the case of Unmin v Hanson [1891] 2 QB 115 at 119 Lord Esher said as follows;

“If the Act is directed to dealing with matters affecting everybody generally, the words
used have the meaning attached to them in the common and ordinary use of language.
If the Act is one passed with reference to a particular trade, business, or transaction,
and words are used which every body conversant with the trade, business or
transaction knows and understands to have a particular meaning in it, then the words
are to be construed as having that particular meaning though it may differ from the
common or ordinary meaning of words.”

As observed ut supra, the right of workers against unfair termination of employment

has been in force in Britain since 1971 when their parliament passed the Industrial
Relations Act, 1971. That Act was amended by the Trade Union and Labour
Relations Act, 1974 which has seen further amendments and the subsisting
legislation of Britain that talks of unfair termination is the Employment Rights Act,
1996. Section 94 of that Act, states as follows;

“An employee has a right not to be unfairly dismissed by his employer.”

Section 95 of the Act defines dismissal to include termination by an employer, with or

without notice. A similar drafting is used in Section 382 of the Fair Work Act, 2009
of Australia. The section declares the workers right against unfair dismissal which is

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then defined under Section 386 to include termination of employment by an employer,
with or without notice. The relevant legislation in South Africa is the Labour
Relations Act, 1995 and under section 185 thereof it states that an employee has
a right not to be unfairly dismissed or subjected to unfair labour practices. Under
section 186 of the South African Act, dismissal is defined to include termination with
or without notice. In those legislations, the draftsmen employ the words “dismissal”
when referring to termination for misconduct and incapability and “termination” when
referring to the right of an employer to end a contract of employment. That accounts
for the manner their legislations confer the right against unfair dismissal and unfair
termination. In all of those jurisdictions, the remedies accorded a worker whose
employment is unfairly terminated are re-instatement or re-engagement and
compensation. But as pointed out above, by way of terminology, Act 651 uses the
word “termination” to describe both dismissal and termination properly so called hence
our Act in section 63(1) states that;

“The employment of a worker shall not be unfairly terminated by the

worker’s employer” and this refers to both dismissal and termination properly so
called.

Though Act 651 does not use the words employed in the comparable statutes of the
countries I have referred to by declaring a straight right of a worker not to have her
employment unfairly terminated, the plain legal import of Sections 63(1) and 63(4) is
that an employer in Ghana can no longer terminate the employment of a worker
without assigning a reason for the termination. Not only is the employer compelled to
give a reason for termination either with or without notice or for misconduct, the
reason must be fair. Consequently, in current Ghanaian law, every worker, except
those exempted by Section 1 of the Act, has a right not to have her employment
unfairly terminated. By section 64, Act 651 accords a worker in Ghana whose
employment is unfairly terminated the remedies of re-instatement, re-employment
and compensation. What this means is that the common law right of an employer in
Ghana to terminate the employment of a worker for any reason or no reason has been
taken away by Sections 63(1) and 63(4) of Act 651 so Ghana has joined the many
other countries that give real meaning to the protection of the right to employment.

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In Kobi v Ghana Manganese Co. Ltd (supra), at page 794 of the Report, Ansah,
JSC, after lamenting the insecurity of employment in Ghana on account of the
“traditional rule” of the common law permitting an employer to terminate a worker’s
employment for any reason or no reason, welcomed the protection of employment
enacted in Act 651 in the following words;

“The passing of the new Labour Act, 2003 (Act 651), has brought relief to the
employee, for now there are statutory duties and rights of the employer and the
employee. The right to terminate employment does not depend on the whims of the
employer. Sections 62-66 of the Act are sub-titled; “Fair and Unfair Termination of
employment”. And section 63 of the Act headed; “Unfair termination of employment”
explains in its subsections (2)-(4) what constitutes unfair termination of employment.
Thus, under section 63(4), a termination may be unfair if the employer fails to prove
that the reason for termination is fair, or it was made in accordance with a fair
procedure under the Act.”

On account of the provisions of Act 651 referred to by Ansah, JSC and the analysis I
made above, my clear thinking is that, the Ghanaian cases that held that the employer
has a right to terminate the employment of a worker for no reason and that there can
be no specific performance of a contract of employment are no longer good law. The
cases include Kobea v Tema Oil Refinery (supra), Lt. Col. Ashun v Accra
Brewery Ltd. [2009] SCGLR 81 and Aryee v State Construction
Corporation(supra).

Yet, Date-Bah, JSC in Bani v Maersk Ghana Ltd [2011] 2 SCGLR 796 at 807 to
808 of the Report said as follows;

“These facts call for a restatement of the Ghanaian common law on the termination
of contracts of employment and the extent to which it has been modified by the
statutory provisions in the Labour Act 2003 (Act 651). It remains the common law
that the remedy available to an employee who has been wrongfully dismissed or
terminated is an action for damages. An employee cannot be awarded an order for
his reinstatement into a job from which he has been removed unlawfully, unless there
is a public law element which requires otherwise. See Lt. Col. Ashun v Accra Brewery

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Ltd. [2009] SCGLR 81. A reinstatement would be equivalent to specific performance
of a contract of employment, which is not permissible. It is settled law that contracts
of employment, in general, may not be specifically enforced at the suit of either party.
There is a sound policy underlay to this rule. It has to do with the courts restraining
themselves from interfering with personal liberty. The essence of the policy is
sometimes expressed in the saying that contracts of employment are not contracts of
servitude. It would not be wise to compel an employee to work for an employer he
does not want to work for, nor conversely to compel an employer to employ an
employee it does not want to. There is a large element of personal relationship in
many employment contracts which would make them unworkable if the parties were
compelled to work together. However, increasingly, modern legislation has been
intervening to give employees a right to reinstatement. This is in recognition of the
fact that the modern relationship of an employer to an employee may have less of the
personal element of the master and servant relationship in response to which the
equitable principle developed, that contracts of employment should not be specifically
enforced.”

From the above quoted speech, it is unclear if the respected jurists is saying that
notwithstanding the plain provisions of Sections 1, 63 and 64 of Act 651, in Ghana the
employer’s common law right of termination for no reason still exists and there cannot
be re-instatement of a worker. For, while he says “it still remains the common law
that….”, he ends his dictum by noting that increasingly, legislation has been
intervening on matters of termination of employment to give the right of
reinstatement. But that is precisely what parliament has done by passing Act 651 and
enacting sections 63 and 64 to give relief to workers against termination by employers
for no reason and effect must be given to the Act by courts.

In Republic v High Court (Fast Track Division) Accra; Ex Parte National

Lottery Authority (Ghana Lotto Operators Association & Ors Interested
Parties) [2009] SCGLR 390 at page 397 of the Report, Atuguba, JSC said as
follows;

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“It is communis opinio among lawyers that the courts are servants of the legislature.
Consequently any act of a court that is contrary to a statute such as Act 7; 22, & 58(1)
– (3) is, unless expressly or impliedly provided, nullity.”

At page 405 of the Report, Dr. Date-Bah JSC in the same case also said:

“The Judicial Oath enjoins judges to uphold the law, rather than condoning breaches
of Acts of Parliament by their orders. The end of the judicial oath set out in the Second
Schedule of the 1992 Constitution is as follows; ‘I will at all times uphold, preserve,
protect and defend the Constitution and laws of the Republic of Ghana.’ This oath is
surely inconsistent with any judicial order that permits the infringement of an Act of
Parliament.”

Therefore, where an Act of Parliament confers rights and remedies that plainly
override the common law, judges are under an obligation to uphold the Act of
Parliament in place of what the common law provided.

The point must however be made that, in his speech, the venerable Date-Bah, JSC
did not categorically take a position on whether or not Act 651 has taken away the
common law right of an employer to terminate a workers employment for no justifiable
reason and whether specific performance can be ordered against an employer in
Ghana. Ansah, JSC was certain in his dictum in Kobi v Ghana Manganese Co. Ltd
(supra) by stating that Act 651 has taken away that right of an employer and, in my
opinion, Ansah, JSC’s position is the correct statement of the current law on
termination of employment by the employer in Ghana. To the extent that Date-Bah,
JSC’s dictum did not state a definitive position on the effect of sections 1, 63 and 64
of Act 651, on the right of a workers not to have her employment unfairly terminated,
the jurist ought not to be understood as saying that those provisions are of no binding
effect.

For, as he himself recognized, the policy justification for the common law principles
on termination of employment by the employer for no reason and the denial of re-
instatement have long ceased to hold in the country of their origin on account of the
realities of modern systems of production. In the Report of the Royal Commission
on Trade Unions and Employers Associations (Donovan Commission) Vol 23

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Number 4, 1968, which recommended the enactment of the provisions on unfair
termination in the Industrial Relations Act, 1971, the following justification was
provided for the then radical recommendations by the Commission;

“Discussing the background against which the Commission surveyed its

problems and reached its conclusions, the report points out that the impact
of two world wars and changes associated with developing technology,
increasing scale of industrial organization, growing wealth and greater
Government intervention have contributed to a transformation of the social
and economic life of the country since the last Royal Commission reported
62 years ago.

Old industries have shrunk and new ones emerged. Processes of production
have been revolutionized, old crafts disappearing and new skills emerging.
With the continuing growth in the size of industrial units and the
amalgamation of companies there has developed a managerial society in
which ownership has become divorced from control. The running of large
businesses is in the hands of professional managers, responsible to boards
of directors. Trade unions have increased their membership from less than
2% million in 1906 to more than 10 million in 1966, and the membership
has been increasingly concentrated in a comparatively small number of
large and powerful unions.”

That was thirty five years ago Britain, and it had to take us that number of years and
after committing ourselves to international labour instruments on protection of
employment to accept that the industrial relations landscape has changed and to
follow the example of most countries by enacting sections 62-66 of Act 651. Therefore,
there is overwhelming justification for these provisions in our labour legislation.

In Bani v Maersk(supra) Date-Bah, JSC also held that the reliefs of re-instatement
and re-employment under section 64 can only be granted by the Labour Commission
on a complaint of unfair termination filed before them by an aggrieved worker and
that the courts have not been expressly given jurisdiction to make such orders.
However, in the case of Republic v High Court, Accra; Ex parte Peter Sangber-

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Der (ADB Bank Ltd- Interested Party) [2017-2018] SCLRG (Adaare) 552, the
Supreme Court unanimously held that the High Court has jurisdiction concurrently with
the Labour Commission to grant the reliefs of re-instatement and re-employment
provided for under section 64 of Act 651. At holding (2) in the Headnote, it was
decided as follows;

“Before the enactment of Act 651, the High Court had jurisdiction under Article 33(1)
of the 1992 Constitution to enforce the Human Rights provisions contained in articles
24, 25 and 29 of the 1992 Constitution, which are the basis of the provisions in section
63 of Act 651 which deals with unfair termination of employment. Prior to the
enactment of Act 651, the rights under section 63 of the Act existed and were enforced
by the High Court. The enactment of Act 651, did not therefore oust the jurisdiction
of the High Court in respect of matters of unfair termination of employment and that
was not the intention of the legislature when it enacted Act 651.”

In fact, in Ex Parte Peter Sangbe-Der (supra) the court stated that the statement
in Bani v Maersk denying jurisdiction to the High Court to grant reinstatement was
made per incuriam for not taking into account Article 140 of the 1992 Constitution.

My Lords, the defendant before us however argues that the case of the plaintiff does
not come within the scope of the right against unfair termination since he was
dismissed for proven misconduct which, by the provision of section 62(b) of Act 651,
amounts to fair termination. The provision is;

“A termination of a worker’s employment is fair if the contract of

employment is terminated by the employer on any of the following grounds:
………..

(b) the proven misconduct of the worker;”

This argument at first sight has some attraction however, when sections 62,63 and 64
are properly interpreted applying correct principles of interpretation including their
construction by courts that have considered similar legislation and the full ambit of
the right is set out, it becomes plain that a dismissal for proven misconduct may still
be unfair depending on the circumstances. To fully appreciate the statutory framework
in Act 651 on the right against unfair termination the three sections must be read and

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construed together against the background of the other provisions of the Act. See A-
G v Prince Augustus of Hanover [1957] AC 436.

Furthermore, in Hill v. William Hill (Park Lane) Ltd. (1949) A C 520, H.L at
546-547 Viscount Simon said.

“[I]t is to be observed that though a Parliamentary enactment (like. Parliamentary

eloquence) is capable of saying the same thing twice over without adding anything to
what has already been said once, this repetition in the case of an Act of Parliament is
not to be assumed. When the legislature enacts a particular phrase in a statute the
presumption is that it is saying something which has not been said immediately
before.”

Similarly, in Ditcher v Denison (1857)11 Moo PCC 324 at 337 the Privy Council
said;

“It is also a good general rule in jurisprudence that one who reads a legal document,
whether public or private, shall not be prompt to ascribe, should not without necessity
or some sound reason, impute to its language tautology or superfluity, and should be
rather at the outset inclined to suppose each word intended to have some effect, or
be of some use”

When the provisions are examined closely with the above cautions in mind it would
be realized that Section 62 provides that a termination of a worker’s employment is
fair if it is done by the employer on any of the following grounds; incompetence, lack
of appropriate qualification, proven misconduct, redundancy and legal prohibition. It
is however essential to understand that the section refers to “grounds” which relate
to what are normally grounds for dismissal. But the fact is that a termination may be
made under any of those grounds but the actual “reason” for the dismissal will differ
from case to case. Misconduct ranges from a negligent act such as a security man
failing to lock the door of an office which may not have caused any loss to the
employer, to grave dishonest act like a cashier stealing sales from the cash machine.
So the ground for termination in both of the above scenarios would be misconduct
but the reason for termination would be different. So it would be realized that Section
63 of the Act which confers the right against unfair termination talks of “reason” for

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the termination and not just the ground. Thus, if the reason for the termination falls
within the grounds under section 62, that would make the reason for the termination
only potentially fair but not automatically fair. While it is section 63(1) that confers the
right of a worker against unfair termination, it is subsections (2), (3) and (4) that
explain what is meant by unfair termination. Subsection (2) provides a category of
automatically unfair reasons for termination by the employer while subsection (3)
provides for reasons for constructive dismissal which are automatically unfair.
Subsection (4) is where all other reasons for terminations, both dismissal and
termination properly so called fall and it places the burden on the employer, when
challenged, to prove that the reason for the termination is substantially fair.

Under a similar statutory regime provided in the Industrial Relations Act, 1971 of
Britain, Sir John Donaldson, J (as he then was) in the case of Earl v Slater and
Wheeler (Airlyne) Ltd [1973] 1 WLR 51 at pages 55-56 of the Report explained
the operation of the provisions on unfair termination as follows;

“It (section 24 of the Act of 1971) operates in two stages. In the first stage, it is for
the employer to show what was the principal or only reason for the dismissal and that
it was a potentially valid reason, that is to say, a reason falling within section 24(1)(b)
‘or some other substantial reason of a kind such as to justify the dismissal of an
employee holding the position which that employee held.’ If the employer fails to
discharge this burden, the tribunal must find that the dismissal was unfair. In the
present case the employers proved that the principal reason for the dismissal related
to the incapability or conduct of the employee. The tribunal therefore, quite rightly,
proceeded to the second stage which consists of determining whether the dismissal
was fair or unfair in accordance with the provisions of section 24(4) (5) or (6).”

That was a case where an estimating engineer was dismissed for unsatisfactory work
output. This was only discovered during a period he was not at work so he was
dismissed upon resumption of work without a hearing. He sued for unfair dismissal
and the industrial tribunal held that failure to give him a hearing made the dismissal
unfair despite that the dismissal was on a justifiable ground. This case supports the
point I made earlier that the dismissal of the plaintiff for matters that were never

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raised for his reaction before dismissing him would have amounted to an unfair
procedure and therefore unfair termination.

In the recent case of Reilly v Sandwell Metropolitan Borough Council [2018]

UKSC 16, Lord Wilson restated the two stage consideration of unfair dismissals in
the following words at paragraphs 16,17 and 18 of the judgment of the UK Supreme
Court;

“16. A tribunal’s inquiry into whether a dismissal is unfair is governed by section 98 of

the Act. The first part of the inquiry, governed by subsections (1) to (3), is whether
the employer has shown both the reason for the dismissal and that the reason relates
to the employee’s conduct or falls within another part of subsection (2) or otherwise
justifies dismissal. In this case the employer showed the reason for the dismissal,
namely the non-disclosure, and that it related to Ms Reilly’s conduct.

17. The case turns on the second part of the inquiry, governed by subsection (4) of
section 98 of the Act. It provides that the tribunal’s determination of whether a
dismissal is unfair “(a) depends on whether in the circumstances … the employer acted
reasonably or unreasonably in treating [the reason shown by it] as a sufficient reason
for dismissing the employee, and (b) shall be determined in accordance with equity
and the substantial merits of the case.”

18. A tribunal’s inquiry into whether the employer acted unreasonably in treating the
reason as sufficient for dismissal seems simple enough in principle, albeit no doubt
often difficult in application. The later reference to a determination in accordance with
the merits of the case might have suggested that the tribunal somehow had a more
direct function in appraising the dismissal;”

See also the South African case of Sidumo and Anor v Rustenburg Platinum
Mines Ltd and Ors [2007] ZACC 22.

In the case of Act 651, where the termination is for misconduct, as we are concerned
with in this case, the first stage of considering the fairness or unfairness of the
termination is to determine if the reason for the termination is covered by the grounds
stated under section 62, namely whether the misconduct has been proven, and the
second stage is covered by section 63(4)(a) and (b) which are whether having regard

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to the reason, dismissal was a fair punishment or the procedure adopted in arriving at
the decision to dismiss was fair. Subsection (4)(a) is in respect of the substantive
fairness of the reason for termination provided by the employer while subsection
(4)(b) relates to procedural fairness, either of which may render a dismissal unfair. It
is important to note the point Sir John Donaldson, J makes in Earl v Slatter &
Wheeler (supra), namely if the reason for the dismissal does not pass the first stage,
that is if the misconduct is not proven, then the decision to dismiss apart from being
unlawful, is automatically unfair. That will mean that an aggrieved employee in that
situation who seeks re-instatement as a remedy may sue for unfair termination which
would entitle her to pray for relief under section 64 of Act 651.

From the above explanation of the scope of the right against unfair termination, it
becomes clear that the defendant herein is in error when it argues that because the
plaintiff’s dismissal is covered by section 62(b) of the Act (proven misconduct), it
makes the termination ip so facto fair. After all the mischief intended to be curtailed
by the provisions on unfair termination as noted in the ILO instruments is “the idea
that workers should be protected against arbitrary and unjustified dismissals.” From
the persuasive authorities referred to and a proper construction of sections 62,63 and
64 of Act 651 on unfair termination, the proven misconduct of the plaintiff in this case
only made the dismissal potentially fair and should lead to the second stage which is
a consideration of the substantive fairness of the actual or principal reason for the
dismissal, whether it was sufficient to merit the ultimate sanction of dismissal.

Unfortunately, Act 651 does not offer any guide for assessing the substantive fairness
of a reason for termination given by an employer that falls outside the automatically
unfair reasons. What this calls for is that the courts shall flesh out the provision using
their power of interpretation. We earlier on observed that Act 651 falls in the category
of technical legislations so, in interpreting “the reason for the termination is fair” and
“with a fair procedure” which are the words employed in section 63(4) of Act 651, I
shall once again have recourse to the meanings ascribed to those words in comparable
legislations on the subject and the interpretations of judges given on those terms.

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The Industrial Relations Act of 1971 provided a guide for determining the
substantive fairness or unfairness of the reason for termination in section 24(6) of the
Act in the following words;

“Subject to subsections (4) and (5) of this section, the determination of the
question whether the dismissal was fair or unfair, having regard to the
reason shown by the employer, shall depend on whether in the
circumstances he acted reasonably or unreasonably in treating it as a
sufficient reason for dismissing the employee; and that question shall be
determined in accordance with equity and the substantial merits of the
case.”

It is no doubt the discretion of the employer in a particular case that falls within
grounds contained in an employment contract or statute permitting dismissal or
termination to decide whether to impose that sanction or a lesser one. What the
statutory right against unfair termination does is that it restrains the employer from
acting arbitrarily in exercising her discretion on case by case whether to dismiss the
worker or impose a lesser punishment. In the case of Earl v Slater and Wheeler
(Airlyne) Ltd (supra) Sir John Donaldson J said as follows at page 57 of the Report:

“The question in every case is whether the employer acted reasonably or unreasonably
in treating the reason as sufficient for dismissing the employee and it has to be
answered with reference to the circumstances known to the employer at the moment
of dismissal.”

Accordingly, if a worker acts in a manner that entitles the employer to sanction her
the employer normally has at her disposal a band of alternative sanctions ranging from
reprimand to the severest sanction which is dismissal. It would not be reasonable for
an employer to dismiss a worker for any the least misconduct but an employer is
reasonably expected to consider the severity of the misconduct before deciding that
it is a sufficient reason to impose the extreme punishment of dismissal. However, in
determining the reasonableness of a termination, the Labour Commission or the court
would have to maintain a balance between the interest of the worker and that of the
employer. Thus, in the South African case of National Union of Metalworkers of

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SA v Vetsak Co-operative Ltd and Others, [1996] ZASCA 69, the Labour Appeal
Court stated the following:

“Fairness comprehends that regard must be had not only to the position and interests
of the worker, but also those of the employer, in order to make a balanced and
equitable assessment. In judging fairness, a court applies a moral or value judgment
to established facts and circumstances (NUM v Free State Cons at 446I). And in doing
so it must have due and proper regard to the objectives sought to be achieved by the
Act. In my view, it would be unwise and undesirable to lay down, or to attempt to lay
down, any universally applicable test for deciding what is fair.”

What it means is that in determining the fairness or unfairness of a reason for

termination, the commission or the court ought to have regard to the provisions of
sections 8,9,10 and 11 of Act 651 on the rights and duties of workers and employers,
the terms of the contract of employment and all the circumstances of the case before
coming to the conclusion whether dismissal was a fair and reasonable punishment to
impose.

In Sidumo and Anor v Rustenburg Platinum Mines Ltd (supra), the first
applicant was a security officer stationed at a strategic area of the respondents mine
and had the duty of controlling access to the area. He was dismissed because he failed
to follow the detailed random search procedure instituted by the employer. He filed a
petition and complained that his dismissal was unfair. The Commissioner after
conducting an arbitration came to the conclusion that the applicant was guilty of
misconduct but held that dismissal was too harsh a punishment so he ordered his
reinstatement. The respondent appealed and the case finally went before the South
African Constitutional Court, the apex court of that country. The court had to consider
whether the Commissioner was wrong in his determination that the dismissal of the
applicant was unfair. The factors the Commissioner stated as the basis for his finding
that the reason given by the employer was not sufficient to merit dismissal were as
follows;

“While I agree that this conduct was misconduct, I am not convinced that the
dismissal was an appropriate sanction. In my view dismissal under the circumstances

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would be too harsh when taking into account the following: There were no losses
suffered by the employer. The violation of the rule was done unintentional or “a
mistake” as argued by the employee. Lastly the level of honesty of the employee is
something to consider.

Based on the evidence before me the employee has had a clean record of service with
the employer for the past fourteen (14) years. This, in terms of the code of good
practice cannot be ignored. The labour court has endorsed the concept of corrective
or progressive dispute. Employees’ behaviour is to be corrected through a system of
graduated disciplinary measures such as counselling (sic) and warning.

It is therefore my view that the type of offence committed by the employee does not
go into the heart of the relationship, which is trust. I therefore believe that the
continued employment relationship is still intact. To deprive the employee of his
employment in this circumstance would be wholly unfair.”

By unanimous decision, the Constitutional Court approved of the reasoning of the

Commissioner and upheld his conclusion that dismissal as punishment in the
circumstances of the case was unfair and that the worker was rightly re-instated.

My Lords, it is with the above principles on unfair termination in mind that I now
consider the substantive and procedural fairness or unfairness of the dismissal of the
plaintiff on the facts and circumstances of this case. I will begin with the issue of the
reasons for which the Executive Management Committee substituted dismissal for
demotion as recommended by the Disciplinary Committee. The respondent has argued
in support of the holding by the trial judge that the plaintiff bore the burden of proof
on whether the Committee complied with Article 14(h)(iii) and provided reasons for
the departure but that is erroneous and does not take into consideration the applicable
rule of evidence which is section 17 of the Evidence Act, 1975 (Act 323). It
provides as follows;

“17. The burden of producing evidence

Except as otherwise provided by law, the burden of producing evidence of

a particular fact is on the party against whom a finding on that fact would
be required in the absence of further evidence.”

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In the absence of evidence showing that the Committee provided reasons for not
accepting the recommended punishment by the Disciplinary Committee, the finding
will go against the defendant so by law the burden was on the defendant to lead
evidence in proof of providing a reason and notifying the Union of the reason. In the
case of Total Ghana Ltd v Thompson [2011] 1 SCGLR 458 this court, speaking
through Anin Yeboah, JSC, (as he then was) said as follows at page 463 of the report;

“We think that by its conduct of neither calling the police alleged to have investigated
the complaint against the plaintiff nor the person who had allegedly made statements
that had implicated the plaintiff, the defendants may be said to have admitted
plaintiff’s claim that the allegations made against him were untrue. In the particular
context of this case, in our thinking, an obligation was placed on the part of defendant
company to lead credible evidence to the trial court that would render the allegation
on which its suspension of plaintiff was based, more probable than the version of a
denial by plaintiff.”

In that case, though Total Ghana Ltd was the defendant, it carried the burden of proof
on the averments they made in their defence regarding the grounds for dismissal of
the plaintiff. They tendered only the police investigation report without calling the
investigator to testify, which the Supreme Court held did not amount to sufficient
proof. See also the case of In Re Krah (Decd); Yankyeraah v Osei-Tutu [1989-
90] 1 GLR 638, SC.

Furthermore, it ought to be noted that section 17 of Act 323 has a proviso to the
general rule of evidence therein and states that except otherwise provided by law. In
this instance Act 651 has specifically placed the burden on the employer to prove that
the termination of the employment of a worker is fair. That would mean that it is the
employer and not the worker who ought to give the actual reason for the dismissal
and further proof that it is fair. Section 63(4) of the Act states as follows;

“(4) A termination may be unfair if the employer fails to prove that,

(a) the reason for the termination is fair, or

(b) the termination was made in accordance with a fair procedure or this
Act.(emphasis supplied).

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Therefore, because the defendant failed to lead any evidence to the effect that it
notified the union about any reason for varying the recommendation of the Disciplinary
Committee, I take the view that no reasons were provided to the union. Consequently,
the defendant breached Article 14(h)(iii) of the CBA. This is also borne out by the fact
that the reasons stated in the letter of dismissal are the same reasons the Disciplinary
Committee advanced to support their recommendation of demotion. The committee
concluded their report as follows; “It was Akpass who signed with the Retail
Manager, the letter pledging the bank to honour the post-dated cheques as
they fall due.

George Akpass also passed the entries disbursing the loan facility for the
purchase of the pick-up in the manner contrary to the Executive Credit
Committee’s instructions, albeit under the Manager’s instructions.

We do not find his direct involvement in the uncredited lodgments saga but
we find that he and the other staff appear to relate to Gyimantwi in a way
that is beyond the official level. For example, Akpass passed entries directly
debiting his account with GHS3,891.10 and crediting Gyimantwi account.
When asked why he did so, he said it was to help clear Gyimantwi’s cheques,
which would otherwise have been returned unpaid. We recommend that
George Akpass should be demoted to the grade of Seniour Clerk.”

The question that has to be answered is, is the above reason that the Disciplinary
Committee considered to merit demotion sufficient to justify the dismissal of the
plaintiff having regard to all the circumstances in this? The record shows that the
Disciplinary Committee established that the plaintiff worked with the bank for 26 years
without any disciplinary record and was one of the most experienced workers at the
Bole branch. The Committee cleared him of any dishonest conduct and when at the
trial in court the defendant tried to smear him with corruption allegations, the judge
saw through it and cleared him of any fraud or dishonesty. The act that landed the
plaintiff in this trouble was not done out of any dishonest motives but he found himself
between the rock and the hard place; his immediate superior, the branch manager
had signed the instructions for the disbursement of the loan before calling him to sign
because the second-in-command was unavailable and he had no reason to doubt that

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it was not in the interest of the bank since the manager was his immediate boss. What
is even of greater weight is the fact that the Disciplinary Committee who heard all the
evidence came to the conclusion that the reasonable punishment to give to the plaintiff
on all the circumstances was demotion and that dismissal would be unreasonable.
Using the view of the Disciplinary Committee as a guide of fairness and reasonableness
in the circumstances of this case, I am very clear in my mind that the dismissal was
substantively unfair.

I will now consider the procedural fairness of the dismissal as provided for under
section 63(4)(b). The CBA binding on the parties in this case insists that the
disciplinary authority must assign reasons for varying the punishment recommended
by the Disciplinary Committee. In the construction of deeds and statutes, the purpose
of a provision must always be kept in mind and the construction must be such as to
achieve that purpose. So, what is the purpose of Article 14(h)(iii) of the CBA? It is
obvious to me that the purpose is to bring transparency into the disciplinary process
of the bank and prevent the management from acting arbitrarily in the punishment
that is imposed in each case. In my thinking, that provision is in line with the modern
concept of fairness of disciplinary sanctions to be imposed by employers on workers
in individual cases and this is the same aim as of section 63 of the Act. Therefore, the
defendant’s failure to comply with that part of the provisions of the CBA in my opinion
renders the procedure by which the plaintiff was dismissed clearly unfair.

CONCLUSION.

In conclusion, I am of the considered opinion that the plaintiff has made out a case
of unfair termination of his employment against the defendant and would be entitled
to remedies open to him at law. The plaintiff prayed for re-instatement and
compensation which are remedies the court can grant under section 64 of the Act.
The relief of re-instatement must not be lightly decreed by the Commission or the
court and the interest of the employer has to be given serious consideration before it
is ordered. But this is a special case where there is little direct personal interaction
between the worker and the employer who is a large bank with branches throughout
Ghana. From the findings of the Disciplinary Committee, trust between the plaintiff
and the defendant as an organisation has not been lost so that foundation of the

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relationship of worker and employer, trust, that must at all times be present for the
relationship to exist is still present between the parties. The Disciplinary Committee
recommended demotion for the plaintiff, but I have taken into account the punishment
that the plaintiff has so far suffered between his dismissal and this judgment in his
favour and consider that he has been sufficiently punished for his indiscretion on the
facts of the case. I therefore grant the plaintiff’s prayer for re-instatement and order
that the defendant shall re-instate the plaintiff to the position he held at the time of
his unfair dismissal.

In the case of Nartey-Tokoli & Ors v Volta Aluminum Co Ltd (supra) the
Supreme Court upheld the finding of the trial judge (Benin J as he then was) that the
termination of the employment of the appellants was in breach of provisions of the
Industrial Relations Act, 1965 (Act 229) and consequently void. By way of what
the appellants were entitled to be paid, the court stated as follows in Holding (2) of
the Headnote of the Report;

“2) The measure of damages for wrongful dismissal from employment was not to be
confined to only loss of wages or salary but in addition the employee was to receive
his entitlements under the contract of employment. The plaintiffs were therefore
entitled to receive their salaries from the dates they ceased to receive them to the
dates of their respective de facto termination, including an additional twelve months'
salary (as awarded by the High Court in the exercise of its discretion) as damages for
wrongful dismissal as at the respective dates of the de facto termination of their
employment. As the termination of their employment was held to be void and of no
legal effect they remained employees de jure and would therefore, be entitled to
earned leave allowances, bonus, long service awards, including food packages and all
other benefits said to be enjoyed on a so-called gentleman agreement basis; all of
which should be converted into cash if feasible as at the respective dates of the
plaintiffs' de facto dismissal.”

This case is similar to the above referred case as I have concluded that the dismissal
of the plaintiff was in breach of section 63 of Act 651 and he is entitled to re-
instatement. The consequences are therefore that the plaintiff would be deemed not
to have been dismissed so he shall be paid all remunerations, entitlements,

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emoluments and benefits that he would have been entitled to had he not been unfairly
dismissed.

Having granted the plaintiff re-instatement with all benefits, it does not appear to me
that he is entitled to compensation. I will therefore dismiss all the other reliefs the
plaintiff prayed for.

G. PWAMANG
(JUSTICE OF THE SUPREME COURT)

COUNSEL
EUNAS KOFI ESHUN FOR THE PLAINTIFF/APPELLANT/APPELLANT.
KWAME D. S. ASIRI FOR THE DEFENDANT/RESPONDENT/RESPONDENT.

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