Tanihu Vrs Empire Concrete (C11/19/18) [2024] GHACC 205 (18 March 2024)

IN THE CIRCUIT COURT, 28TH FEBRUARY ROAD ACCRA, SITTING ON MONDAY THE 18TH DAY OF MARCH 2024 BEFORE HER HONOUR ELLEN OFEI-AYEH (MRS.) CIRCUIT COURT JUDGE SUIT NUMBER: C11/19/18 SIMON TANIHU ……………………………………… PLAINTIFF H/NO. 2 ADISA ABABA AVENUE EAST LEGON ACCRA V EMPIRE CONCRETE ………………………………….. DEFENDANT UNNUMBERED PLOT NEXT TO CASA TRASACO SPINTEX RD, ACCRA LAWYERS: BENJAMIN SEVOR (ESQ) FOR THE PLAINTIFF JOHN DARKO (ESQ) FOR THE DEFENDANT JUDGMENT On 9/10/2017, the plaintiff issued a writ of summons and statement of claim, seeking the following; A declaration that the nature and circumstances of the plaintiff’s termination amount to unfair termination and for the plaintiff to recover all salaries not paid from October 2016 till date or the last payment of the plaintiff’s entitlements. 1 SIMON TANIHU V EMPIRE CONCRETE Damages for unfair termination Recovery of special damages of GHc12, 800.00 Recovery of interest on the special damages of GHC12,800.00 at the commercial bank rate from the 22nd day of September 2016 to the date of final payment. Costs occasioned by this suit. The plaintiff averred that, as a concrete shooter operator in the employment of the defendant company, he was entitled to certain listed benefits such as a net salary of GHC29,888.00 per annum, and an overtime allowance of 350.00 per month. It is averred that he is also entitled to GHC7470.00 which is an amount due him instead of annual leave. It is also averred that he was sick and given 3 days of excuse duty at the Akuse Government hospital and upon returning to work he was told that he had been dismissed. He claims in his statement of claim that his dismissal was wrongful. It is also averred his dismissal was a result of the fact that he had asked his managing director for a copy of his employment contract for which he was never heard. Neither was he given appropriate notice of his dismissal, hence the instant action. The statement of defense denies the claim for the net basic salary and overtime allowance claimed by the plaintiff. The defence is that the plaintiff was lawfully dismissed on grounds of theft of concrete which was reported to the police even before the plaintiff vacated his post and he did not resume work despite several communications from the defendant. It is also averred that the plaintiff was offered salary and overtime payment pending the determination of police investigations but he declined to receive it. The plaintiff is alleged to have vacated his post immediately after the theft allegation and before the lawful dismissal which was for cause. The 2 defendant company further avers that it never asked the plaintiff to restrain from SIMON TANIHU V EMPIRE CONCRETE taking his annual leave and that per his employment contract, leave cannot be carried forward into the following holiday or year and no payment instead of it, would be made where the employee does not use the whole of the leave entitlement. The defendant counter-claimed as follows; Recovery of GHC5200.00 being the value of the Pre-Mix Concrete unaccounted for by the defendant. A Reply and Defence to Counter-claim was filed by the plaintiff on 22/12/2017. The following were set down as issues for determination; a. Whether or not the plaintiff’s appointment was lawfully terminated? b. Whether the defendant breached the principle of Natural Justice in terminating plaintiff’s appointment. c. Whether or not the plaintiff is entitled to his claims. Additional issues filed on 27/3/2018 were also adopted and for determination as follows; 1. Whether or not the plaintiff was dismissed in accordance with the contract of employment? 2. Whether or not the unexplained loss of the concrete placed under the authority of the plaintiff is grounds for dismissal? 3. Whether the defendant is entitled to its counter-claim. 3 SIMON TANIHU V EMPIRE CONCRETE THE EVIDENCE AND THE LAW The principle in Law is that he who asserts must prove. In Okudzeto Ablakwa (No 2) v Attorney General & Obetsebi Lamptey, the Supreme Court in dealing with the burden of proof, held at page 867 of the report that, ‘He who asserts, assumes the onus of proof…… what this rule means is that, if a person goes to court to make an allegation the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted. If he fails to do that the ruling on that allegation will go against him. Stated more explicitly, a party cannot win a case in court if the case is based on an allegation which he fails to prove or establish.’ It is also the view of the law that the burden of producing evidence shifts from party to party at the various stages of the trial based on the issues asserted or denied. See the case of In Re-ASHALLEY BOTWE LANDS; ADJETEY AGBOSU AND OTHERS VRS. KOTEY AND OTHERS {2003-2004} SCGLR 420 AT PAGE 425. The standard of proof in civil cases is that the party who alleges is to prove his case on a balance of probabilities. Section 12(2) of the Evidence Act (1975) NRCD 323 defines the preponderance of probabilities as that “degree of certainty of belief in the mind of the court by which it is convinced that the existence of a fact is more probable than its non-existence. In consequence, the counter-claim by itself must be proven just like that of the claim, and the standard of proof just like that of the plaintiff is by the preponderance of probabilities, and for the defendant as if he were the plaintiff in respect of his claim. He assumes the same burden as the plaintiff to adduce sufficient evidence in support of his case if he is to succeed. See holding (b) in the Court of Appeal decision in Rev. Daniel Okpotiokertchiri v Eddie Nelson 2016 101 GMJ at page 138. 4 SIMON TANIHU V EMPIRE CONCRETE Issues a, b and 1 relate primarily to the issue of whether the employment of the plaintiff was lawfully terminated as per the relief of unfair termination sought. The reliefs sought by the plaintiff expressly relate to unfair termination. Section 2 of the Labour Act, 2003, Act 651, provides the grounds applicable to unfair termination. It is statute, that has provided specific grounds for which unfair termination is applicable, and for which I shall quote for emphasis. 63(2) of Act 651 provides; 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; 5 (f) in the case of a worker with a disability, due to the worker's disability; SIMON TANIHU V EMPIRE CONCRETE (g) that the worker is temporarily ill or injured and this is certified by a recognized 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 his or her employment; or (i) that the worker refused or indicated an intention to refuse to do any work normally done by a worker who at the time was taking part in a lawful strike unless the work is necessary to prevent actual danger to life, personal safety or health or the maintenance of plant and equipment. Which of these provisions has caused the plaintiff to claim unfair termination? The plaintiff has testified that on the 11th and 12th day of September 2016, he fell sick and was admitted to the Akuse Government hospital and was given three days off work duties by the medical doctor which form he had handed over to the defendant company He reported to work on the 19th September 2016 only to be told that he had been dismissed without notice. He was given a voucher with a face value of GHC2500.00 which he was to endorse his acceptance but he refused to do so because his firm belief was that his dismissal, was without reason. He has also testified that his dismissal was a result of his persistent demand for his copy of the contract of employment contract which upon execution, the defendant refused to deliver them their copies. Samuel Amuzu testified as PW1 stating that the plaintiff was dismissed because he led the agitations of workers demanding a contract of employment from the defendant company. He added that the defendant’s refusal to deliver the contract of employment was also in respect of other workers and it led to an agitation by the workers in 2015, 6 led by the plaintiff. Under cross-examination he was challenged that he was never SIMON TANIHU V EMPIRE CONCRETE an employee of the defendant company and the defendant didn’t know him, because there was no evidence of his employment or termination. Exhibit ‘’A’’, is described as a contract agreement, however, what has been tendered as Exhibit ‘’A’’ is rather a letter written by the plaintiff’s counsel to the defendant. Exhibit ‘’B’’ is a copy of an invitation letter written by the Labour Commission, Exhibit ‘C’; a copy Request for a Response written by the Labour Commission, and Exhibit ‘D’; a copy of an invitation by the National Labour Commission. Exhibit ‘E’ is a copy of the letter of ‘wrongful dismissal’ from Benjamin Sevor Esq. Under cross-examination, the plaintiff rather admitted that his dismissal was connected to other matters other than his involvement in any agitation. This is not consistent with paragraph 8 of his witness statement, where he had stated it was due to an agitation by workers that he was dismissed. It is also inconsistent with PW1’s testimony. The defendant company in its pleadings denied the alleged agitations allegedly led by the plaintiff. DW1 has denied the allegations of the plaintiff and in his testimony stated that the plaintiff was given his contract of employment soon after his employment and that at a workers' meeting, the plaintiff walked out saying he had his contract of employment. DW1 tendered as Exhibit 1, which is a copy of the contract of employment signed in the name of Simon Tanihu on 1/7/2014. Under cross-examination, he was insistent that all workers were given a copy of their contract of employment because they signed two copies and at that time he was the administrator in charge. Notably, the plaintiff failed to tender his copy even though he referred to his intention to tender it. The following transpired under cross-examination; 7 SIMON TANIHU V EMPIRE CONCRETE Q8 You are aware your dismissal was connected to other matters other than your involvement in any agitation. A. Yes, I know it bothers on other matters …. Q. 13. Your dismissal by the defendant took place almost a year after the agitation A. I know nothing about that. What constitutes proof has been stated in the case of Ambrose Dotse Klah v Phoenix Insurance Co. Ltd (2012) 2 SCGLR 1139, per Akoto Bamfo (Mrs) JSC, relying on the case of Majolabe v Larbi 1959 GLR 190, as “… where a party makes an averment capable of proof in some positive way, example by producing documents, description of things, reference to other facts, instances and his averment is denied, he does not prove it by merely going into the witness box, and repeating the averment on oath, or having it repeated on oath by a witness. He proves it by producing other evidence of facts and circumstances from which the court can be satisfied that what he avers is true.” In respect of the agitation, how many workers were allegedly involved? Were there other leaders or organizers of the alleged agitation? For how many days did the agitation last? Were there specific dates and how were the agitations carried out? These are questions I find are necessary in discharging the burden of proof, that plaintiff led agitations by the workers. Having regard to the inconsistencies of the plaintiff’s responses regarding the termination, the challenge made to PW1’s employment with the defendant, the year of the alleged agitation in 2015, if that is true, and the defence raised, I do not find the plaintiff led agitations at the defendant company in the year 2015. On the evidence led, I do not find that the plaintiff's termination in September 2016 has been proven to be attributable to alleged agitations of 2015. 8 SIMON TANIHU V EMPIRE CONCRETE Regarding the plaintiff’s absence from work, due to the allegation made by the defendant in respect of stealing 10m3 concrete mix on the 17th of September 2016, I find it necessary to delve into the following that transpired under cross-examination; Q. 14 Before your dismissal by the defendant, you had exhibited gross misconduct by absenting yourself from work without permission. A. It is not true. I had been punctual; every day Q.15 In your statement of claim and witness statement you stated that you took ill on 11th September 2016 and was hospitalized. A. Yes Q. 16 you have also stated that because of ill health you were given three days excuse duty from work. A. that is correct. Q.17 But you claim you also reported to work on the 19th September 2016 A. Yes it is correct Q.18 But calculating 3 days from 11th September you were to report on the 14th September is that correct? A. Yes. Sunday was the 11th of September, Monday was Sallah-an Islamic holiday. So that day there was no work. The following day Tuesday was an off day for all workers. I was discharged on Monday and the 3 days excuse dates fall on the weekend. We don’t work on Saturdays so I went to work on 19th September instead of 14th September. He responded as follows during cross-examination; 9 SIMON TANIHU V EMPIRE CONCRETE Q19. I Put it to you that if your excuse duty started on Monday, you were required to work on Thursday and not the following Monday? A. I was discharged on Monday before the three days was given to me. So Monday is not included and Tuesday was a holiday which did not form part of the three days given to me. Q20. So are you telling the court that because Tuesday was a holiday it couldn’t be included in your excuse duty days? A. Yes. Notably, I find Exhibit E contains an attachment which is a statement and contains paragraph 5 as follows; ‘13th September 2016 was Sallah Holiday but I was sick and was admitted to the hospital and was discharged on 18th September 2016. When I came to work on Monday the Manager asked the security to sack me from the yard that I had stolen concrete so he gave me a summary dismissal.’ By this response and the contents of Exhibit ‘’E’’, the plaintiff has been inconsistent in his testimony. The assertion of an excuse duty having been given to him by the Akuse Government Hospital has been denied and challenged by the defendant. The plaintiff has testified under cross-examination that he furnished it on the defendant, but this has been denied. Neither has the plaintiff subpoenaed any hospital official to produce his hospital records to prove that his absence from work was justified, particularly when the defendant has denied this allegation. With these referred responses, considering the plaintiff’s evidence alone, assuming without admitting that his assertions are correct, if the 11th was a Sunday, then the 15th of September was a Thursday and in my view, he ought to have reported on Thursday the 15th of September and not on Monday the 19th September. I find as a fact that the plaintiff indeed did not report to work as required in his employment. In the defence, a complaint of stealing was leveled against the plaintiff as the basis of 10 his dismissal. DW1, Nana Kwaku Duah, narrated events that occurred on 17th SIMON TANIHU V EMPIRE CONCRETE September 2016, involving the plaintiff leading to 10m3 of premix concrete that went missing and unaccounted for by the plaintiff. He explained in his adopted witness statement that the plaintiff’s duty and responsibility as a ‘shooter operator’’ included supervision, and directing the mixer truck drivers who delivered the pre-mix concrete to the sites of the clients where he was stationed. The plaintiff had been stationed at the site of Rana Motors, a client of the defendant company, and there was a delivery of an Order of 190 m3 out of the 200 m3 pre-mix concrete. It was made in batches of 10m3 to be delivered by other drivers including Mumuni Ashimui, a mixer Truck driver. He testified that after 190m3 of the pre-mix concrete had been supplied, it was found to be sufficient to complete the job. He testified that later that day on 17th September 2016, the plaintiff parked the shooter truck without a waybill and the following day was an Islamic holiday. It came to light that 10m3 of premix concrete was missing and unaccounted for by the plaintiff and Mumuni Ashimui. He testified that when the company reported to the police the theft occurrence after investigations the Police Report in exhibit 2 was provided. He tendered into evidence the Employment contract with the plaintiff as Exhibit 1, Police Report dated 16/1/2017 and the National Labour Commission letter as Exhibit 3. DW1, Enoch Adom, in his testimony, narrated that he happened to be on the vehicle that was to dispatch the concrete mix at Rana Motors. The plaintiff took the waybill from Mumuni and told him to take the concrete away so in his mind there were two sites. He testified that they went to dispatch the concrete at Estate Junction, and the driver Mumuni called Plaintiff on the phone and told him that the person dispatching the concrete paid him GHC1700.00, as the phone was on loudspeaker, plaintiff on the phone responded to Mumuni to give him (DW1) GHC200.00 and bring the rest of the money to him at the motorway. He therefore received the money to use as evidence. He testified that this resulted in investigations and inquiries which brought to light that the plaintiff and Mumuni Ashimui had committed a theft and they were 11 summarily dismissed. The matter was reported to the police on 25th October 2016. SIMON TANIHU V EMPIRE CONCRETE Under cross-examination, DW1 responded that stealing warranted an outright dismissal. He explained that he was dismissed under points 3.3 .1 to 3.3.4 of Exhibit 1, the Employment contract. 12 SIMON TANIHU V EMPIRE CONCRETE It provides as follows; 3.3 Immediate dismissal: Employer may by notice terminate this agreement with immediate effect if the employee (emphasis mine) 3.3.1 Commits any act of gross insubordination, misconduct, or repeats or continues (after written warning) any other breach of his/her obligations under this agreement; 3.3.2 is guilty of any conduct which in the opinion of the employer brings the employee or employer into disrepute 3.3.3 Is convicted of any criminal offence (excluding an offence under the road traffic legislation in Ghana or elsewhere for which he /she is not sentenced to any term of imprisonment whether immediate or suspended) 3.3.4 Commits an act of dishonesty whether relating to the employer or any of its employees or otherwise; and/or The dates referred to by the defence further buttresses their denial that the accused person did not have his employment terminated based on ill health or absenteeism. The dates mentioned; 17th September 2016, were days the defence was claiming the plaintiff was at work. In the absence of any evidence of absenteeism on 17th September 2016, I find as a fact that the plaintiff was at post. I have already referred to the provisions under sections 62 and 63 of the Labour Act 651 as amended. The Labour Act, Act 651 also provides; Section 15—Grounds for Termination of Employment. SIMON TANIHU V EMPIRE CONCRETE 14 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; (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 his or her work due to (i) sickness or accident; or (ii) the incompetence of the worker; or (iii) proven misconduct of the worker.” These grounds are not exhaustive – see Williams Appiah v Cocoa Marketing Company 2013 62 GMJ CA DW1 has admitted that the plaintiff has not been convicted of a criminal offence but that is not the only singular ground for which an employee can be ‘dismissed summarily’. In respect of Exhibit 2, when questioned at Question 23 of cross- examination he admitted as follows; Q 23. This police report, Exhibit 2 does not confirm that the plaintiff stole 10 cubic meters of concrete belonging to the defendant A. This is per the interpretation to the police. It is not my interpretation It is worth noting that paragraph 2.7 of Exhibit 1 mentions that Rules of conduct have been incorporated in the document. Therefore even if the plaintiff has not been 14 convicted of a criminal Offence, but has been suspected of his involvement in SIMON TANIHU V EMPIRE CONCRETE stealing, and in my humble view, when proved it would constitute an act of dishonesty under paragraph 3.3.4 of Exhibit 1, and misconduct. In respect of misconduct under 3.3.3 of Exhibit 1, proven misconduct of a worker has been discussed in the case of Pearce v Foster 1886 17 QBD 536, relied upon in David K. Hodanu’s Labour Law in Ghana: An Essential Guide, 2022, Icon Publishing at page 235. It contains as follows, ‘……….. It is sufficient if it is a conduct that is prejudicial or is likely to be prejudicial to the interest of the reputation of the master and the master will be justified, not only if he discovered at the time but also if he discovers it afterward, in dismissing that servant….’’, Lopes LJ. I find as a fact that the allegation of stealing has not been found as proven beyond reasonable doubt, by a court of competent jurisdiction, however on the evidence led, in particular, DW2’s testimony there is corroboration about the allegation made of a theft, and I find no reason to discredit the evidence of DW2. Bowen LJ had expressed his view on employees' conduct, in 1888 when he said that it is right for the employer to instantly dismiss the employee if the latter’s conduct is not only wrongful and inconsistent with his duty towards his master but also inconsistent with the continuance of confidence between them: see Boston Deep Sea Fishing & Ice Co v Ansell (1888) 39 Ch.D. 339 at 363.” By the earlier findings of fact made, the plaintiff has not been able to prove his absence from work by sick leave, or that his termination was due to his ill health and absence from work on the 17th of September 2016, or that his termination was due to workers agitations he had led. Having considered the evidence led by the defence and upon considering Exhibit 1, I find the undisputed fact that an allegation of stealing made by the defendant against the plaintiff and one Mumuni to the police was sufficient to infer dishonesty or misconduct. By virtue of paragraph 3.3.1 of Exhibit 1, the contract of employment, I 15 find as a fact that the defendant had the discretion to issue a notice under ‘’immediate SIMON TANIHU V EMPIRE CONCRETE dismissal’’ as a basis to terminate the plaintiff’s employment, without conducting a hearing where it deemed fit. I do not find the grounds raised by the plaintiff in his claims for unfair termination succeeds. It is noteworthy that unfair termination has specific remedies. I find on the balance of probabilities that the plaintiff’s allegation of unfair termination has not been proved, and his employment was terminated lawfully. Thus, his claims of unfair termination fail. In proving the counterclaim, the defendant company is to prove that GHC5200.00 being the value of Pre-Mix Concrete was unaccounted for by the plaintiff. No evidence was led to prove the sums claimed to be the value of the premixed concrete, as the evidence relied upon was partly hearsay and was expunged. The invoice from Rana Motors was also not tendered. As the burden did not shift, this claim is dismissed. COSTS Ordinarily, in assessing costs, ‘the court takes into consideration reasonable remuneration, for the lawyer in respect of the work done by him in the proceedings and compensates the victor for reasonable expenses incurred as well as the cost fees paid’. See Sega Exports Ltd v Dart Hills Ltd. suit number H1/197/2012 delivered on 2/5/2013, C.A. As the parties have failed in proving their claim and counter-claim respectively, there shall be no order as to costs. FINAL ORDERS- 1. The plaintiff is not entitled to any of his claims. The plaintiff's claims are dismissed. 2. The defendant company fails on their counter-claim 16 SIMON TANIHU V EMPIRE CONCRETE 3. The parties are to bear their respective costs. SGD HH ELLEN OFEI-AYEH(MRS.) 17 SIMON TANIHU V EMPIRE CONCRETE