Attoh and Others v Graphic Communication Group Limited (IL/0031/2022) [2025] GHAHC 78 (30 July 2025)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, INDUSTRIAL AND LABOUR DIVISION 2 HELD IN ACCRA ON WEDNESDAY THE 30TH DAY OF JULY, 2025, BEFORE HER LADYSHIP JUSTICE ANANDA JULIANA AIKINS (MRS), JUSTICE OF THE HIGH COURT. SUIT NO. IL/0031/2022 1. SAMUEL ATTOH 2. FRED OFORI 3. STANLEY OWUSU ANSAH VRS GRAPHIC COMMUNICATION GROUP LIMITED COUNSEL FOR THE PLAINTIFF: MR. BEN SEVOR ESQ., COUNSEL FOR THE DEFENDANT: MR. STEPHEN SAH, ESQ. JUDGMENT ‘DAY’ Page 1 of 29 1. INTRODUCTION On 20th December, 2021 a writ of summons and statement of claim were filed the by three (3) Plaintiffs: Samuel Attoh, Fred Ofori, and Stanley Owusu Ansah all of H/NO. 123/4, Jamestown – Accra against their employer Graphic Communication Group Limited, and one Peggy Addo its Director of Human Resource and Administration as 1st and 2nd Defendant respectively. However, the 2nd Defendant on the 18th of January, 2021 filed a motion for misjoinder before this court on grounds that she acted for and on behalf the 1st Defendant in her capacity as the Director of Human Resource and Administration and was therefore not a proper party to the suit because the 1st Defendant was a legally recognized person. The Court duly granted the application and struck out the name of Peggy Addo as the 2nd Defendant. 2. THE PLAINTIFFS’ CASE The 1st plaintiff in the amended statement of claim filed on 24th February 2021, stated that on 1st July, 2014 he was employed by the defendant as a Transport Officer for an indefinite period. As part of his employment benefits, he was entitled to a monthly salary of Three Thousand Five Hundred and Four Thousand Ghana Cedis, Thirty-Six Pesewas (GHC3,504. 36). The salary was to be reviewed on an annual basis. ‘DAY’ Page 2 of 29 The 2nd plaintiff also stated that on 1st July, 2014 he was employed by the defendant as a Transport Officer for an indefinite period. As part of his employment benefits, he was entitled to a monthly salary of One Thousand Six Hundred and Seventy Three Ghana Cedis, Sixty-Two Pesewas (GHC 1, 673. 62). The salary was to be reviewed on an annual basis. The 3rd Plaintiff in the statement of claim stated that on 1st July, 2014 he was employed by the defendant as a Procurement Officer for an indefinite period. As part of his employment benefits, he was entitled to a monthly salary of Three Thousand and Seventy-One Ghana Cedis, Eighty-Four Pesewas (GHC 3, 071. 84). The salary was to be reviewed on an annual basis. The plaintiffs stated that on 22nd July, 2021 the defendant, in a letter addressed to them individually, accused plaintiffs of stealing six hundred (600) liters of diesel. The plaintiffs stated that on 26th July 2021 they accordingly submitted their individual responses to the Security Manager denying any involvement in the alleged theft. On 23rd August 2021, the defendant issued a letter interdicting all three plaintiffs. Subsequently, on 7th September 2021, the plaintiffs were invited to appear before an Investigative/Disciplinary Committee. During the hearing, the plaintiffs responded to the Committee’s questions but claimed they were denied a fair hearing, as they were not given the opportunity to question their accusers. They also noted that although the Committee invited nine other individuals to give evidence against them, the plaintiffs were not permitted to cross-examine these witnesses. ‘DAY’ Page 3 of 29 The plaintiffs stated that upon being furnished with a copy of the committee’s report, they noticed that despite the findings of the Disciplinary Committee that the allegation of stealing 600 liters of diesel remained unproven, the Defendant nonetheless, dismissed the plaintiffs on the 22nd of November, 2021. The plaintiffs therefore brought this action before this Court, seeking the following reliefs: (a) Declaration that the nature and circumstances of plaintiffs’ dismissal by the 2nd defendant amount to unlawful dismissal. (b) Damages for wrongful and unfair dismissal. (C) Reinstatement of the plaintiffs in the employment of the 1st defendant company effective 22nd day of August 2021 without any variations in the employment contract to the detriment of the Plaintiffs. (d) Costs occasioned by this suit. 3. THE DEFENDANT’S CASE ‘DAY’ Page 4 of 29 On the 25th of February 2021, the defendant filed its statement of defence admitting that it had employed the 1st plaintiff. The defendant, however stated that it was not in a position to admit or deny whether it had employed the 2nd and 3rd plaintiffs. The defendant further stated that it dismissed the plaintiffs, because they had siphoned unspecified amounts of fuel and not six hundred (600) liters of diesel as alleged by the plaintiffs. The defendant also stated that apart from this reason, it has a right to dismiss the plaintiffs for stated misconduct. The defendant again denied the claim by the plaintiffs that the defendant did not afford them a fair hearing and stated that the plaintiffs were given a fair hearing in line with the procedures under its collective agreement. The defendant further added that the report of the Disciplinary Committee was only a guide and although considered in its termination process, same was not binding on the defendant especially where the plaintiffs were dismissed following the procedures set down in the collective agreement. Lastly, the defendant denied the plaintiffs’ assertion that the Investigative Committee did not find plaintiffs culpable to have siphoning 600 liters of diesel and stated that the plaintiffs rather did not exhaust internal appeals process under the collective agreement but side-stepped same and prematurely instituted this action before the court. 4. PLAINTIFFS’ REPLY The plaintiffs on the 14th March, 2021 filed a reply to the defendant’s statement of defence, denying that the defendant had dismissed the plaintiffs on grounds of unspecified amounts of fuel. The plaintiffs added that the defendant was only entitled ‘DAY’ Page 5 of 29 to dismiss the plaintiffs according to the laid down principles of law. Plaintiffs also added that, their decision to seek redress from the court was justified because at the time they received a copy of the Investigative report, the time for lodging an appeal had already expired. The plaintiffs maintained their claim of being denied a fair hearing, because the investigative committee did not afford them the opportunity to question their accusers. 5. ISSUES FOR DETERMINATION On the 13th of April, 2021, the plaintiffs filed their application for directions, but the defendant did not file any additional issues. The court set down the following issues for the trial: (i) Whether or not the plaintiffs siphoned 600 liters of diesel from the defendant’s fuel dump? (ii) Whether or not defendant breached the natural justice rule when plaintiffs were not given opportunity to quiz those who testified before the committee of inquiry? (iii) Whether or not the defendant has any justification for the dismissal of plaintiffs? ‘DAY’ Page 6 of 29 (iv) Whether or not the action of the defendant in dismissing plaintiffs amounts to unlawful dismissal? 6. BURDEN OF PROOF In litigation, the obligation on a party to prove every statement of fact made by that party before a court of competent jurisdiction by means of relevant evidence is referred to as burden of proof. This means that every party has to establish facts which go in the party’s favor or against the party’s opponent. Proof has been explained by Justice Ollenu in Majolagbe v. Larbi [1959] 1 GLR 190 as follows: “Proof in law, is the establishment of fact by proper legal means; in other words, the establishment of an averment by admissible evidence”. A party alleging a fact must also establish a requisite degree of belief concerning the fact in the mind of the judge that the alleged fact is true or not. Thus, the burden of proof carries with it two obligations to be observed by a party in a trial. The first obligation is the production of sufficient evidence on a particular issue before the court and the second obligation is that of persuasion. The Supreme Court of Ghana in Barkers-Wood v Nana Fitz [2007-2008] SCGLR 879 at 891 explained the burden of persuasion in these terms: ‘DAY’ Page 7 of 29 “The common law has always followed the common sense approach that the burden of persuasion on proving all facts essential to any claim lies on whoever is making the claim” It is also trite that the burden of persuasion, unless shifted, always lies on the party alleging a particular fact in issue and the party is expected to lead evidence to establish that fact. Section 14 of Evidence Act, 1975 (NRCD 323) puts it this way: “Except as otherwise provided by law, unless it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence that party is asserting” This burden has further been explained by Adinyira, JSC in the Supreme Court case of ACKAH v. PERGAH TRANSPORT [2010] SCGLR 728 @736, “It is a basic principle of law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often describes as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as jury. It is trite law that matters are capable of proof must be proved by producing sufficient ‘DAY’ Page 8 of 29 evidence so that on all the evidence a reasonable mind could conclude that the existence of fact is more reasonable that its non-existence”. Thus, in this instant case, the onus is on the plaintiffs to establish by evidence before this court that the defendant unlawfully dismissed the plaintiffs and that they are entitled to their reliefs against the defendant. 7. ANALYSIS OF ISSUES (i) Whether or not the Plaintiffs siphoned 600 liters of diesel from the Defendant’s fuel pump? In resolving the first issue, the plaintiffs in their amended statement of claim filed on 24th February 2022 at paragraph 8, averred that on July 22, 2021 the defendant wrote a query addressed to all the plaintiffs alleging that the plaintiffs were involved in siphoning of 600 liters of diesel. This resulted in the interdiction of the plaintiffs on August 23, 2021 and their subsequent dismissal on November 22nd, 2021. The plaintiffs did not adduce any direct documentary evidence of this query. However, from exhibits A to L attached to the witness statement filed on June 23, 2022 by the 1st plaintiff, ‘DAY’ Page 9 of 29 who testified on behalf of the plaintiffs, it is clear that there is indirect evidence suggesting that the defendant suspected the plaintiffs of siphoning 600 liters of diesel from the defendant’s fuel dump at its place of business. Though the plaintiffs tendered evidence in proof of their assertion, a careful analysis of exhibits (A - L) reveals, however that save from exhibit L, which is a copy of the Investigative Committee Report, the defendant’s actions in exhibits A,B,C and K were all based on unspecified amounts of fuel. The plaintiffs tendered exhibit L as evidence of the fact that Defendant had set up a committee to investigate siphoning of 600 liters of diesel by the plaintiffs. It is clear from Exhibit L that, the subject matter of the committee’s investigation was centered on the alleged culpability of the plaintiffs and the siphoned 600 liters of diesel. At page 1 of the Investigative Committee’s Report, the Executive Summary puts it this way, “A five member committee was set up in August 2021 to investigate an alleged fuel theft involving a fuel attendant and two drivers. The quantity of fuel allegedly siphoned was 600 liters of diesel.” ‘DAY’ Page 10 of 29 The committee after its investigation, could not find any wrongdoing on the part of the plaintiffs, although it acknowledged unusually high records of fuel usage as shown by the data submitted to the committee. The Committee’s Report at page 24 states, “On the allegation that Stanley Owusu Ansah of the procurement unit, Samuel Attoh and Frederick Ofori both of the transport unit syphoned 600 liters of diesel on June 20, 2021, the committee on the face of documents and interviews held, concludes that even though the diesel consumption for the period under consideration was exceptionally high, the data submitted by the procurement manager did not confirm this discrepancy”. The Defendant also acknowledged the fact that the allegation remained unproven during cross examination conducted on July 31, 2024. The is what transpired at the cross examination, Q. Take a look at Exhibit L attached to the witness statement of the plaintiff and read out the conclusion of the investigative report at page 24. A. Witness reads to the hearing of the court Exhibit L, the conclusion of the investigative report at page 24. ‘DAY’ Page 11 of 29 Q. You will agree with me that the report did not indict the plaintiffs? A. Yes I agree Q. Your allegation against the plaintiffs that they siphoned 600 liters of fuel from your fuel dump on the 20th June 2021 that cannot be true. Do you agree? A. Yes my lady I agree it cannot be true. My lady according to the report, there was a significant loss pf fuel on the said day, it might not be 600 liters but was significant. It is trite that the onus is on the one who alleges to prove the facts of the allegation. My finding of fact on the 1st issue is that the plaintiffs neither stole 600 liters of diesel nor any unspecified amounts of fuel as alleged by the defendant, because the alleged theft was not proved by the defendant. The evidence before this Court rather shows defendant’s committee set up to investigate the alleged siphoning of 600 liters of diesel or unspecified amounts of fuel, was not able to prove or establish the plaintiffs’ culpability or guilt. ‘DAY’ Page 12 of 29 (ii) Whether or not Defendant breached the natural justice rule when Plaintiffs were not given opportunity to quiz those who testified before the committee inquiry? The plaintiffs averred that defendant queried their involvement in the alleged theft on July 22, 2021 and requested their response by July 26, 2021. The plaintiffs further averred that on September 2, 2021 they were requested by the defendant to attend a disciplinary hearing scheduled for September 7, 2021. The plaintiffs averred that at the committee hearing, they were denied the opportunity to question nine (9) other persons invited by the defendant to give evidence against the plaintiffs, breaching the natural justice rule and denying them fair hearing. However, at the cross examination of the 1st plaintiff on July 30, 2021, he admitted that the plaintiffs responded to the defendant’s query and also attended the investigative committee hearing. This is what transpired at the cross examination. Q. Did you respond to the query? A. Yes my lady. Q. And then what followed when you responded? ‘DAY’ Page 13 of 29 A. A committee was set up. Q. At the time the Committee was set up you had been interdicted, is that correct? A. Yes my lady. Q. And you appeared before that Committee. Is that correct? A. Yes my lady. The defendant witness tendered before the court, exhibit 2 which is a copy of the query addressed to the plaintiffs, alleging the involvement of the plaintiffs in the theft of 600 liters of diesel. The witness also tendered exhibits 1, 2, 3 series, 4, and 5 in support of the fact that the plaintiffs were given a fair hearing. Exhibit 1, is a copy of the collective agreement between the parties which requires the defendant at Section 19 to form a disciplinary committee to investigate the allegations, made against the employee. The record speaks for itself that the defendant performed its part of the agreement. “SECTION 19 – DISCIPLINE ‘DAY’ Page 14 of 29 d) where an employee is alleged to have committed an offence listed under section 22(a), the punishment for which is summary dismissal, there shall be formed a disciplinary committee whose function will be to investigate the allegations against the employee and submit its findings and recommendations to management.” The Counsel for the plaintiff in his written address filed on behalf of the plaintiffs, cited parts of Article 19 and in particular Article 23 of the Constitution, 1992 in support of his submissions on natural justice. Article 23 states as follows, “Administrative bodies and administrative officials shall act fairly and reasonably 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”. In the ascertaining if the defendant afforded the plaintiffs a fair hearing, the Supreme Court case of ABOAGYE v. GHANA COMMERCIAL BANK [2001 – 2002] SCGLR p797, is instructive on the principle to be followed by the defendant. At p799 of the report the Supreme Court held, “All Courts and adjudicating authorities were required under Article 19(3) of the Constitution, 1992 to give a fair hearing within a reasonable time. That required that a notice of proceedings be given to the person affected by any decision of the adjudicating authority and that he be given the opportunity to defend himself. Administrative bodies and officials were ‘DAY’ Page 15 of 29 also required under Article 23 of the Constitution to act fairly. Acting fairly implied natural justice which had been elevated to constitutional rights and were binding on all adjudicating and administrative bodies as well as Courts and tribunals. Consequently, in the instant case, the defendant bank, which took disciplinary action against the plaintiff, by invoking the procedures provided by the bank’s disciplinary procedure rules, should have followed the said procedures in those rules and were bound to apply the rules of natural justice”. It is true that the rules of natural justice are not applicable to private employment contracts unless stipulated by the terms of the employment contract. Thus, where the parties have incorporated into their agreement, the rules of natural justice, they are bound to apply the said rules. The position of the law in ALLAN SUGAR PRODUCTS v.GHANA EXPORT COMPANY LTD [1982 – 1983] 2 GLR 922 CA was stated as follows, “… in ascertaining the real intention of parties to an agreement and in construing it, where parties had reduced into writing their intentions they were bound by their written word…” A careful read of Section 19 of exhibit 1 shows that the defendant had incorporated the rules of natural justice in this agreement. In the event of disputes or disciplinary action, the defendant had evinced a clear intention to afford the parties affected, the right to be heard by use of query and disciplinary committee hearings. The defendant indeed performed its part of the bargain by conducting a disciplinary hearing. The ‘DAY’ Page 16 of 29 composition of the disciplinary committee satisfied the terms under Section 19. Exhibit 2 shows that the defendant first brought notice of the allegation to the plaintiffs and requested the responses of the plaintiffs. Exhibits 3 series are copies of the responses of the plaintiffs. Exhibits 4 and 5 show that the plaintiffs were referred to the Disciplinary Committee where the matter was thoroughly put through investigation. On this second issue, I make a finding of fact that the plaintiffs were given a fair hearing in accordance with the laid down principles of law and the collective agreement which governed the employment relationship of the parties. The plaintiffs were given the opportunity to be heard by the defendant, when the defendant issued a query, obtained their responses and also set up a disciplinary committee to investigate the matter. The threshold of natural justice was sufficiently met by the defendant taking cognizance of the evidence before the court. (iii) Whether or not the defendant has any justification for the dismissal of plaintiffs? The plaintiffs averred in their pleadings that despite the positive findings of the Investigative Committee in their favor, the defendant dismissed them on November 22, 2021 without due regard for their innocence in the allegations of siphoning 600 liters of diesel levelled against them. Plaintiffs averred that the defendant failed to rely on the findings of the committee and dismissed them without proof of these claims. ‘DAY’ Page 17 of 29 In support of this claim, the 1st plaintiff testifying on behalf of the other plaintiffs tendered in evidence, exhibits A, B and C which are copies of the dismissal letters, showing the action taken by defendant in dismissing the plaintiffs. A careful read of these exhibits shows that the plaintiffs were dismissed on grounds of alleged involvement in siphoning of fuel belonging to the company without prior authorization. A portion of this dismissal letter dated 22nd November 2021 addressed to the 1st plaintiff marked exhibit A is quoted as follows, “Management has considered the Committee’s Report and has decided to dismiss you for involvement in siphoning of fuel belonging to the Company without prior authorization on 20th June 2021. The offense constitutes gross misconduct in accordance with Section 22(b)(i) of the Collective Agreement. Your dismissal takes effect from the date of your interdiction, which is 23rd August 2021, in line with the Collective Agreement”. This same statement is repeated in the dismissal letters of the other plaintiffs in exhibits B and C respectively. These letters are proof of the fact that the defendant dismissed the plaintiffs on grounds that they had allegedly siphoned fuel belonging to the defendant. The defendant in its pleadings filed on February 25, 2022 at paragraph 9, also admitted that the plaintiffs were indeed dismissed for siphoning unspecified amounts of fuel belonging to the company and not specific amounts of fuel (600 liters of Diesel) belonging to the Company as claimed by the plaintiffs. ‘DAY’ Page 18 of 29 The defendant’s witness on July 30, 2021 testified during cross examination, that the plaintiffs were dismissed on grounds of siphoning fuel. This is what transpired at the cross examination. Q. Why did the defendant dismiss the plaintiffs? A. There was an allegation that fuel had been siphoned and they were the culprits. They were taken through the disciplinary process and at the end of the disciplinary process management deemed it fit to dismiss them per the report from the disciplinary proceedings. On July 31, 2021 the defendant’s witness was further cross examined and he again reaffirmed that the defendant dismissed the plaintiffs based on the findings of the committee. This is what transpired at the cross examination. Q. Your statement yesterday that the plaintiffs were dismissed based on the investigative report cannot be true. You will agree with me? A. No I do not agree because the decision to dismiss them was based on findings/incoherent stories that were presented to the investigative committee. ‘DAY’ Page 19 of 29 Q. And are those findings and incoherent stories recorded in the Investigative Report? A. Yes my lady. Q. Now kindly show where the plaintiffs gave those stories to the court? A. My lady there was a query that was given up to the plaintiffs and one of them response to the query was that he never filled any tank with fuel but when he appeared before the committee he said he filled two tanks for Jasikan and Kumasi vehicles. Q. I am putting it to you that there is nothing like that in the Investigative Committee’s report. A. I don’t agree my lady. The plaintiffs further adduced Exhibit L in support of their claim that the Defendant’s action was unjustified in light of the findings of the Investigative Committee. Further, the defendant in its pleadings at paragraphs 16 and 17 stated that, it has a right to dismiss the plaintiffs, following the procedure set out in its Collective ‘DAY’ Page 20 of 29 Agreement and that the report of the Disciplinary Committee was not binding it but was only advisory in nature. In justifying its decision to dismiss the plaintiffs, the defendant relied on Sections 19(d) and 22(b)(i) of the Collective Agreement (Exhibit 1). Sections 19(d) and 22(b) and (c) are quoted below. It is also important to quote section 22 (a) in addition to the sections already mentioned. “SECTION 19 – DISCIPLINE d), where an employee is alleged to have committed an offence listed under section 22(a), the punishment for which is summary dismissal, there shall be formed a disciplinary committee whose function will be to investigate the allegations against the employee and submit its findings and recommendations to management. “SECTIONS 22 – SUMMARY DISMISSAL a) Summary dismissal may be effected by the Company for sufficient, just and reasonable cause involving dishonesty, fraud, proven drunkenness, smoking in prohibited area, willful refusal to obey legitimate and reasonable instructions, stealing and proven misconduct… ‘DAY’ Page 21 of 29 b) The alternative penalties for these offences may be applied at the discretion of Management depending on the circumstance and gravity of the offence. c) Dismissal with an entitlement to which he may be eligible” It is trite that the recommendations and findings by an investigative committee are not binding on management, and in the instant case the defendant, as it reserves a right to dismiss in accordance with the Collective Agreement or the Labor Act, 2003 (Act 651). The defendant is thus enjoined to dismiss the plaintiffs on grounds justified by the Collective Agreement or by following the law. The position of the law was stated in the Supreme Court case of BANI v. MAERSK GHANA LIMITED [2011] 2 SCGLR 796, as follows; “…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. 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 ‘DAY’ Page 22 of 29 employer the decision to dismiss is entirely for the employer who is not bound to accept the recommendations”: See also Republic v. State Hotels Corporation; Ex- parte Yeboah [1980] GLR 875 where the Court of Appeal per Edusei JA held at page 879 thus: “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”. In this instant case the defendant had the onus to prove that the dismissal was done following the procedure set out in the collective agreement. Considering the evidence on record, the defendant’s action to dismiss the plaintiffs was not justified in line with sections 19 and 22 of the collective agreement which have been quoted above. Indeed, though the findings of the Committee were not binding on the defendant, the terms of the Collective Agreement mandated that a summary dismissal of this nature must be based on misconduct which must be proven. However the investigative report did not establish the guilt of the plaintiffs and as such the defendant had no just cause in dismissing the plaintiffs. In light of this, it is my finding of fact that the dismissal of the plaintiffs by the defendant was unjustified under the Collective Agreement because, the defendant ‘DAY’ Page 23 of 29 was unable to prove that the plaintiffs were involved in the alleged theft of fuel. The dismissal of the plaintiffs was therefore wrong. (iv) Whether or not the action of the Defendant in dismissing Plaintiffs amounts to unlawful dismissal? 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, the Supreme 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. ‘DAY’ Page 24 of 29 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. The Collective Agreement between the parties herein, warrants summary dismissal where there is sufficient, just and reasonable cause involving inter alia stealing and proven misconduct. However in the case of the plaintiffs, they were dismissed on grounds of stealing which allegations remained unproven. The following words in the dismissal letters are very instructive in ascertaining the basis of the defendant’s action in dismissing the plaintiffs: - “Management has considered the Committee’s Report and has decided to dismiss you for involvement in siphoning of fuel belonging to the Company without prior authorization on 20th June 2021. The offense constitutes gross misconduct in accordance with Section 22(b)(i) of the Collective Agreement. Your dismissal takes effect from the date of your interdiction, which is 23rd August 2021, in line with the Collective Agreement”. Though the investigation committee could not establish the guilt of the plaintiffs’ the defendant went ahead to dismiss them on mere allegation of their involvement in ‘DAY’ Page 25 of 29 the siphoning of diesel fuel. The defendant was clearly wrong in relying on unproven allegations against the plaintiffs. The laws of Ghana have expressly stated that an employer is at liberty to terminate its relationship with an employee on certain grounds. Section 15 of the Labour Law, 2003 (Act 651) provides that a contract of employment may be terminated by mutual agreement between the employer and the worker, or by the worker on grounds of ill- treatment or sexual harassment or by the employer on the death of the worker or if the worker is found to be unfit for the work he is employed to do and also due to sickness, incompetence or the proven misconduct of the worker. Any dismissal which does not conform to these standards is termed as unlawful or wrongful, depending on the circumstances in which it occurs. This is how Ansah JSC explained it at pages 794-795 in KOBI v. GHANA MANGANESE [2007- 2008] SCGLR 771, “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 ‘DAY’ Page 26 of 29 the land or statute regulating employment in the land for the time being; or declared redundant under special conditions”. Again, in KOBI v. GHANA MANGANESE (supra) the Supreme 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 agreement. The binding efficacy of collective agreement.... Must never be whittled away”. It is my finding of fact on the final issue, that the dismissal of the plaintiffs was unlawful because the evidence on record shows that the defendant’s action was taken without due recourse to the Labour Act or the Collective Agreement that existed between the parties i.e. exhibit 1. 8. CONCLUSION ‘DAY’ Page 27 of 29 In light of the foregoing discussion, this court is of the opinion that the plaintiffs have established their case on the balance of probabilities and the court therefore awards judgment in favor of the plaintiffs against the defendant. The Court orders as follows; (1) The Court declares that the dismissal of the plaintiffs is wrongful and unlawful. (2) The Court orders the reinstatement of the plaintiffs in the employment of the defendant company effective 22nd August, 2021 without any variations in the employment contracts to the detriment of the plaintiffs. (3) The plaintiffs are to be paid their full salaries from 22nd August, 2021 to date. (4) The Court also awards damages of Thirty Thousand Ghana Cedis (GHC 30,000.00) in favour of the Plaintiffs for wrongful dismissal. (5) Final cost in cause of Thirty Thousand Ghana Cedis (GHC 30,000.00) is also awarded in favour of the Plaintiffs. ‘DAY’ Page 28 of 29 (SGD.) H/L ANANDA JULIANA AIKINS (MRS.) JUSTICE OF THE HIGH COURT ‘DAY’ Page 29 of 29