Agbeti and Another v Ericsson AB Ghana Branch (H1/190/2022) [2023] GHACA 237 (18 May 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA, GHANA – AD, 2022 CORAM: JUSTICE ANTHONY OPPONG J.A (PRESIDING) JUSTICE JANAPARE A. BARTELS-KODWO (MRS.) J.A JUSTICE EMMANUEL ANKAMAH (J.A) SUIT NO: H1/190/2022 DATE: 18TH MAY, 2023 1. ISRAEL AGBETI :: PLAINTIFFS/ 2. STEPHEN AMOAH :: APPELLANTS VRS ERICSSON AB GHANA BRANCH :: DEFENDANT/ RESPONDENT ------------------------------------------------------------------------- JUDGMENT EMMANUEL ANKAMAH, JA: The Plaintiffs/Appellants (herein after referred to as the Appellants) participated in the planning of a family day out, a gathering for chosen MTN and Ericsson employees and their families. 1 Following the event, the RSSA Head of Sourcing filed a complaint with the defendant/respondent (herein after referred to as the Respondent) alleging that the organization of the event may have violated the code of business ethics. A preliminary investigation was conducted by the respondent to determine whether a breach had occurred and whether any of the employees involved needed to be disciplined. According to the investigative report, which was published on 02/03/2017, the respondent's sourcing Process was not followed, and the RSSA sourcing mandate was violated. The study recommended that disciplinary hearings be held for six individuals, including the appellants and Panacea consulting limited (Vendor). The respondent initiated disciplinary proceedings against the appellants based on the report. On the 27th of March, 2017, the appellants who failed to submit their testimony to the committee filed an initial notice of motion for judicial review by means of Prohibition at the Human Rights Division of the High Court to prevent the Disciplinary Committee from continuing its work (hearings). The application was rejected. A second originating notice of motion was denied due to incompetence. The respondent then used this opportunity to terminate the appellants' employment by paying them three months' salary in lieu of notice in compliance with their employment contracts and the respondent's Collective Bargaining Agreement. All other benefits owed to the appellants were paid. The appellants, who believed that the termination of their employment contract was illegal, filed an action against the respondent in the High Court, seeking the following reliefs: a) A declaration that the termination of the appointments of the Plaintiffs by the defendant was unlawful. b) A declaration that the termination of the appointments of the plaintiffs by the defendant was discriminatory. 2 c) A declaration that the termination of the appointments of the plaintiffs by the defendant violated the basic principle of natural justice d) A declaration that the defendant acted in bad faith by terminating the appointments of the plaintiffs. e) An order to the defendant to pay the plaintiffs outstanding salaries and all other benefits plaintiffs are entitled to from November, 2017 till the final payment. f) General damages for wrongful termination of plaintiff’ appointments. g) An order directed at the defendant to award the plaintiffs their entitlement due formula as agreed between the plaintiffs and the defendant. h) Interest on the said entitlement from November, 2017 till the date of final determination at the prevailing Bank rates. i) Damages. j) Attorney’s fees. k) Cost. The appellants accompanied their writ of summons with 58 paragraphs statement of claim. The respondent entered appearance and filed 59 paragraphs statement of defence. The appellants filed 14 paragraphs reply to the defendant statement of defence. The following issues and additional issue were accepted by the court for determination:  Whether or not Defendant Company’s claim of an alleged loss of GHC 3000.00 was caused by plaintiffs’ role in organising the MTN family Day Out event.  Whether or not the plaintiffs’ role in the MTN event and the alleged loss of GHC 3000.00 was an offence of misconduct per defendant’ disciplinary code and procedure entitling the defendant company to dismiss the plaintiffs. 3  Whether or not the procedures of 22nd March, 2017 disciplinary committee hearing and the decision to terminate plaintiffs’ employment without an opportunity for plaintiffs to defend themselves before the said disciplinary committee was irregular, and in breach of the rules of natural justice.  Whether or not the termination of plaintiffs’ contract of employment was unlawful.  Whether or not the procedures and conduct of the 22nd March,2017disciplinary hearing was irregular and in breach of the rules of natural justice. Following the trial, the High Court issued its decision on 23/04/2018, holding that the termination of the appellants' employment was valid and that the appellants were not entitled to the retrenchment packages they requested. The court, on the other hand, determined that the respondent's behaviour leading up to the termination of the appellants' employment was discriminatory and in violation of the standards of natural justice, and as a result, awarded each of the appellants GHC 100,000.00 in damages and GHC 20,000.00 in costs. Dissatisfied with the court's decision, the appellants filed an appeal with this court on the following grounds: 1) That the part of the judgment complained of in paragraph 2 page 19 was against the weight of evidence; 2) That the trial judge respectfully erred in resolving issue 4 against plaintiffs while she made findings that issues 1,2,3 and 6 were resolved in favour of the plaintiffs and granted plaintiffs reliefs b, c and d; 3) That the learned judge erred in law by refusing to hold that the defendant’ termination of plaintiffs’ contract of employment was unlawful; 4 4) That the trial judge respectfully erred in refusing to award plaintiffs damages for unlawful termination of contract; PARTICULARS OF ERROR OF LAW Section 15 (e) (iii) of the Labour Act 2003 (Act, 651) requires that an employer can terminate an employee’ contract for “proven mis conduct”. The Honourable trial judge, erred to hold that the defendant termination of the plaintiffs’ employment was lawful, though the court found that the charges of misconduct was not proven against plaintiffs. The cases of In Republic against State Transport Corporation; Ex parte; Djorhoe [1975] 2GLR 471 and Tagore versus Accra Brewery [2016] 163 SCGLR were mentioned as examples of legal errors. In his written submission, the respondent's counsel raised a preliminary objection to the appellants' grounds II, III, and IV of the grounds of appeal, specifically with regard to the Particulars of error of law. His justification was that Rule 8(4) of the Court of Appeal Rules, 1997 (C I 19) prohibits argumentative and ambiguous legal details, both of which are found in the notice of appeal. As a result, the counsel, asked the court to use its authority under Rule 8 (6) of C I 19 to strike out these particulars of error of law. The respondent's lawyer urged the court that, if it agreed with his submission, then grounds ii, iii, and iv ought to be struck out as well, under Rule 8 (4) of C I 19, which requires an appellant to particularise grounds of appeal that are clear and concise. For the purposes of determining on this preliminary objection, we cite Rule 8 subsections (4, 5 and 6) of C I 19; (4) “where the grounds of appeal allege misdirection or error in law, particulars of the misdirection or error in law shall be clearly stated” (5) “the grounds of appeal shall set out concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively” 5 (6) “No ground which is vague or general in terms or which discloses no reasonable ground of appeal shall be permitted, except the general ground that the judgment is against the weight of the evidence; and any ground of appeal or any of the ground which is not permitted under this rule may be struck out by the court of its own motion or by an application by the respondent”. In the case of INTERNATIONAL ROM LIMITED VERSUS VODAFONE GHANA LMITED civil Appeal NO. J4/2/2016 dated 6th June,2016, the Supreme Court cracked the whip and struck out offending grounds of appeal. It stated as follows: “Thus, the first defendant’ so called grounds of appeal when juxtaposed with the above requirement of Rule 6 (4) and (5) of C I 16 reveals an obvious non- compliance with the Rules of court. Undoubtedly, it is only in an atmosphere of compliance with procedural rules of court would there be certainty and integrity in litigation. All the so, called grounds filed by the appellant (above) are generally argumentative and narrative and to that extent non- compliant with rule 6 (4) and (5) of C I16. They are struck out”. Also, in the case of FAUSTINA TETTEH VERSUS T. CHANDIRAMS & 3 OTHERS Civil appeal No, J 4/52/2018, the Supreme per Marful- Sau JSC (of blessed memory) relying on DAHABIEH VERSUS TRUQUI & BROTHER held as follows: “The appellant failed to particularize the errors alleged by the said grounds of appeal to enable this court effectively address same as required by law. The errors alleged cannot also be inferred sufficiently from the wording of the grounds to enable us address same. Accordingly, the offending grounds……. Of the appeal will be struck out”. The provisions in Rule 6 subsections (4, 5 and 6) of C I 16 are the same as in Rule 8 subsections (4, 5 and 6) of C I 19. We have carefully read and/or examined the appellants' grounds of appeal and particulars of error of law filed in support of grounds ii, iii, and iv of the grounds of appeal. We agree with the respondent's counsel that they are unclear and argumentative. As a result, they are in violation of C I 19 Rule 8 (4) and (5). 6 Accordingly, the particulars of error of law set out in the appellant's notice of appeal, as well as grounds ii, iii, and iv, are struck out. After ruling out grounds ii, iii, and iv, the only remaining ground of appeal to be decided is ground 'i,' which is as follows: 'That the section of the judgment complained about in paragraph 2 page 19 was contrary to the weight of evidence'. While the appellants argued that the court's determination that the appellants' employments were lawfully terminated was incorrect because it went against the weight of evidence, the respondent urged this court not to overturn the trial court's decision that the appellants' employments were lawfully terminated by the respondent. There are so many decided cases to the effect that an appeal is by way of rehearing, especially if the appellant claims that, the trial court's decision is against the weight of evidence. Before making a decision, the appellate court must examine the record of appeal, examine the testimonies, and analyse all documentary evidence. In Korkor v. Robert Tettey Mensah [Unreported, Civil Appeal No: J4/38/2018, dated 12th December, 2018, SC], the Supreme Court which had to address the responsibility of the court of appeal with regard to this ground of appeal that the judgment is against the weight of evidence stated thus: 'Having regard, however, to the fact that an appeal is by way of rehearing; it is incumbent on this court, nonetheless to examine the whole record, and analyse the pieces of evidence on record. It is also undisputed that when an appellant claims that the trial court's decision is against the weight of evidence, the appellant bears the burden of demonstrating, from the evidence on record, that the decision is indeed against the weight of evidence, and if the appellant fails to meet this burden, the appeal must fail’. See Djin v Musah Baako [2007-2008] 1 SCGLR 686 and page 687, where the Supreme Court stated: ‘Where (as in the instant case) an appellant complains that a judgment is against the weight of evidence, he is implying that there were some pieces of evidence on record 7 which, if applied in his favour, could have changed the decision in his favour, or certain pieces of evidence have been wrongly applied against him. The onus was on such an appellant to clearly and properly demonstrate to the appellate court the lapses in the judgment appealed against’ Unlawful termination of employment, also known as wrongful termination or wrongful dismissal, refers to the firing or termination of an employee in a way that violates their legal right to be protected. It occurs when an employer ends an employee's employment contract or relationship for no valid or legal cause, or by violating the employment agreement's terms and conditions. Depending on the country, state, or jurisdiction, the particular rules and regulations governing wrongful termination may differ. However, the following are some common examples of illegal termination: 1. Breach of employment contract: It may be considered unlawful termination if an employer terminates an employee in contravention of the terms and conditions outlined in their employment contract. This could include firing an employee without adequate notice or without cause, in violation of the agreed-upon terms of employment. 2. Discrimination: It may be considered unlawful termination if an employee is fired because of their race, colour, gender, religion, national origin, age, handicap, or other protected characteristics. Anti- discrimination laws protect employees from being fired because of these protected characteristics. 3. Retribution: It may be unlawful to fire an employee if the action was taken in retribution for the employee asserting his legal rights, such as reporting workplace harassment, discrimination, or criminal activity. Different labour laws provide protection against retaliation. 8 4. Whistle-blower Protection: Whistle-blowers are protected from reprisal in many jurisdictions when they report corrupt practices, illegal actions, or other wrongdoing within their organizations. It may be illegal to fire a worker for making a whistle blower report. 5. Contravention of public policy: Terminating an employee for grounds that go against public policy may be deemed unlawful. It might be illegal to fire a worker for exercising his right to vote or for taking a leave under conditions that are legally allowed (such as a family or medical leave). 6. Constructive dismissal: In some instances, a company may impose working conditions that are so terrible that the worker is essentially coerced into quitting. Constructive dismissal is a word used to describe this situation and is an illegal termination. The procedure by which an employer can stop an employment relationship with an employee in accordance with applicable rules and regulations is referred to as lawful termination of employment. Depending on the jurisdiction and the exact circumstances, an employer may legally fire an employee for a variety of reasons, including: 1. Termination for cause: An employer may fire an employee for cause if the employee has committed substantial misconduct or breached the contract, such as theft, harassment, or a violation of business policies. 2. Termination for bad performance or productivity: An employer may fire an employee for poor performance or productivity if the employee is given adequate notice and an opportunity to improve. 3. Termination owing to redundancy: When a job is eliminated or the employer restructures its business, an employer may terminate an employee due to redundancy. 9 4. Termination owing to a fixed-term contract: An employer may terminate an employee at the conclusion of a fixed-term contract if the employer follows the contract's provisions. 5. Termination with pay in lieu of notice: An employer may terminate an employee by providing the required notice time or pay in lieu of notice, as prescribed by applicable employment legislation. Section 15 of the Labour Act of 2003 (Act 651) outlines grounds for valid termination of an employment contract in Ghana. Section 17 of the same Act states that an employment contract may be ended at any time by either party giving the other party notice. a. In the case of contract of three years or more, one month notice or one month’ salary 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. (3) A notice required to be given under this section shall be in writing. It is the case of the respondent that the appellants contract of employment was lawfully terminated under the appellants contract of employment and the Collective Bargaining Agreement (CBA) in accordance with the Labour Act, 2003 (Act 651) and the terms of the appellants’ employment To prevail in this appeal, the appellants must demonstrate that the termination of their contract of employment was unlawful and in violation of their employment contract or of statute, namely the Labour Act, 2003 (Act 651). In the matter of Jonas Kwami Dzakah vs. Akosombo Textiles Limited & another [Unreported: No. H1/185/2010; 17TH February, 2011], the Court of Appeal ruled 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 the determination 10 of the employment is in breach of the terms of his employment or that the termination is in contravention of the statutory provisions for the time being regulating employment. His claim will not succeed if he fails to satisfy the court on these points”. The appellants claim that the respondent terminated their employment contracts while a disciplinary proceeding was pending against them on the grounds that they caused the respondent a loss of GHC3000.00. The appellants contended that the respondent failed to follow the disciplinary procedure outlined in Article 32 of the collective Bargaining Agreement (CBA) tendered in evidence and marked as Exhibit "3" before terminating their contracts. The appellants' lawyer further contended that the respondent terminated their employment contract in bad faith because the respondent was unable to demonstrate that the appellants' actions cost it Ghs 3000.00. The appellants' counsel was thus at a loss when the trial judge, after remarking that the circumstances surrounding the termination of the appellants' contracts did not leave room for the thought that the termination of the appellants' contracts was not as a result of the appellants going to court challenging the respondent's conduct in establishing the Disciplinary Committee to investigate them, proceeded in error to resolve that the termination was lawful. This judgment, according to counsel for the appellants, was contrary to facts on record. The respondent's counsel argued that the termination of the appellants' employment contracts was legal and that the trial court erred in granting appellants reliefs b, c, and d. Exhibits 1, 2, and 3 were revealed to be the documents that governed the appellants' employment contracts during cross-examination. See, for example, the inquiries and responses provided by the appellants as recorded by the respondent's counsel in his written submissions to the court: 11 CROSS- EXAMINATION OF 2ND APPELLANTS BY COUNSEL FOR RESPONDENT, Q: kindly take a look at the Defendant’ Exhibit 2, according to Exhibit 2 you were employed as a sourcing manager on 5th January, 2009 A: Yes, my lady Q: Please, turn to page 3 of the same Exhibit 2, you signed the contract of employment, did you not A: I did Q: You will agree me that by signing this contract you agreed to be bound by its terms A: Yes, my lady Q: The collective Bargaining Agreement that you referred to is it the one that was signed on 13th May, 2015 as per Exhibit Z or 3 A: Yes, My lady Q: If you go to Article 4 of Exhibit Z which is the same as Exhibit 3, it sets out the scope of the Collective Bargaining Agreement A: Yes, My lady Q: According to Exhibit 4, the Agreement applies to all Union members A: I agree CROSS- EXAMINATION OF 1ST DEFENDANT Q: Please take a look at Defendant’ Exhibit 1, exhibit 1 is a copy of your contract of employment with the defendant, is it not A: Yes, My Lady, this was a contract I signed on 4th June, 2010 12 According to Article 1 of Exhibit 1 either party could terminate the contract by either giving 3 months’ notice or payment of 3 months salaries in lieu of notice A: Yes, as on the face of the contract, I signed on 4th June, 2010 Q: Is there anywhere in exhibit 1 that requires of the parties, terminating the contract to state reasons for termination A: Per exhibit 1 and on the face of it, I don’t see anything like that. Q: You were a member of the Defendant’ Union, were you not A: Yes, My Lady, I was a member, and not just a member but at the time my appoint was, terminated I was the Local Union Chairman of the Defendant’ Managerial and Professional Workers Union. Q: So, you are very much aware and conversant with the CBA negotiated and entered into between members of the Union and the Defendant’ (This is Exhibit 3) A: Yes, My Lady Q: You would agree with me that Exhibit 3 also forms part of your Terms and Conditions of employment with the Defendant A: Yes, My Lady. The CBA works hand in hand with the various contracts that I have signed over my seven years period in the Defendant’ company. Q: Exhibit 3 also makes provisions for how, an employee may exit the company A: Yes, My Lady. Q: Please, turn to Article 36 of Exhibit 3 Titled ‘Leaving the service’. Turn to page20, the sub heading ‘Termination’. Please read to the hearing of the Honourable Court A: It is read 13 Q: Would you agree with me from what you have just read that if an employee is terminated summarily, that employee is not qualified to be paid any benefits A: I agree according to what is in the document Q: However, an employee who is terminated simpliciter is entitled to one month’ [sic] salary in lieu of notice, is that not the case A: Yes, My Lady. Although, the 1st plaintiff/ appellant, in the cause of the cross-examination stated that he had signed other contracts of employment with respondent, no such contract was tendered to substantiate this claim leaving Exhibit 1 as the one governing his contract of employment with the respondent. Exhibits 1, 2, and 3 show that the appellants' and respondent's contracts of employment and the CBA had distinct notice provisions when either party wished to terminate the contract. When the respondent chose to terminate the appellants' contracts of employment and gave them three months' pay in lieu of notice, it exercised its rights under Exhibits 1 and 2. The appellants received all of the benefits that were due to them. Exhibits 'O and Y' speak to that. The appellants’ employment was terminated for no reason. As a matter of law, the respondent was not even obliged to offer the appellant any reason (s) because it was not part of the employment contract. Thus, in the case of Kobea and Others v. Tema Oil Refinery; Akomea Boateng and Others versus Tema Oil Refinery (consolidated), [2003- 2004] 2SCGLR 1033 THE Court held: ‘That an employer is legally entitled to terminate an employee’ contract of employment whenever he wishes and for whatever reasons, provided only that he gives the notice 14 to the employee or pay him his wages in lieu of notice. He does not even have to reveal his reasons, much less to justify the termination’. There is no evidence before us that the respondent terminated the employment of the appellants because of a stated misconduct’. There is also no evidence on record that the appellants contracts of employment were terminated because of any investigative report. We therefore, as appellate court, are unable to determine whether the reason (s) given by the respondent was/were justified or not because none was/were given. The respondent, we find rightly terminated the contract of employment of the appellants in compliance with the terms and conditions of their relationship. See exhibits 1, 2 and 3 In our opinion, the trial judge was correct in her conclusion that the appellant's employment was terminated lawfully. We find also that, the trial judge erred in determining whether the respondent's actions prior to the termination of the appellants' employment contracts could be punished with damages after concluding that the appellants' employment contract was lawfully terminated. The trial court's judgment that the Respondent had Lawfully terminated, the Appellants' employment contracts is upheld as it is supported by the evidence on record and the law. However, the damages awarded to the appellants are hereby set aside as the said award was unwarranted. Save the variation of the judgment of the court below regarding the unwarranted award of damages, the decision of the court below is hereby affirmed. The appeal is accordingly, dismissed. [SGD.] 15 JUSTICE EMMANUEL ANKAMAH J.A. (JUSTICE OF THE COURT OF APPEAL) [SGD.] JUSTICE ANTHONY OPPONG J.A. (JUSTICE OF THE COURT OF APPEAL) [SGD.] JUSTICE JANAPARE A. BARTELS-KODWO (MRS.) J.A (JUSTICE OF THE COURT OF APPEAL) Counsel: Kate Aborhei for Plaintiff/Appellant Daad Akwasi for Defendant/Respondent absent 16