Court Rise with Martin Kpebu – Episode 3

Now the context is this, there are many ways of bringing an employment contract to an end. But today’s episode is specifically looking at the right of an employee to be given reasons for the termination of his or her employment contract.

Yes, so that’s a specific subject and so we’ll look at the Supreme Court cases that have dealt with this subject and then come to a conclusion. Now, as you are aware, there are many facets of employment law. We cannot deal with all of that in one podcast. So I’m specifically interested in employers giving reasons for terminating an employee’s contract or not, and also the matter of summary dismissal.

Yes, these are very key. You know, as a developing country, we should be interested in seeing our law develop, you see, as a democracy. And the Supreme Court makes this point in the case of George Akpass versus Ghana Commercial Bank. So we’ll come to the details of this.

Now, and further, there’s a background to this topic. I’ve chosen it at this time because we all know that as employees, we usually build our lives around our jobs. You see, you wake up, dress up to go to work, you dream about your work, you project that in a few years you’ll get this promotion, that promotion, you’ll get extra benefit, you’ll be able to use that benefit to, you know, develop something for yourself, be it residential property, etc. So many things.

So, we build our dreams and our lives around our jobs. So, when your job is yanked from you without notice and in circumstances that are very surprising, you know that it causes a lot of pain, anguish, and so we should be interested in finding out what the law says and if we need to improve that law.

So, we will start today’s discussion with the case of National Labour Commission versus Barclays Bank. Now, we’ll just do as usual the main points.

This is a case in which the National Labour Commission had to go to court to enforce its decision. The decision it had given in favour of Mrs Lokko. Mrs Lokko was Human Resource Manager of Barclays Bank.

However, at a point that the MD she worked with left Barclays Bank, she also decided to leave. And so, she, as an employee, approached management that she was willing to leave if that is acceptable to management.

Management initially didn’t warm up to it, but later they also came to her that, okay, negotiations could be begun to sever the relationship between the two parties. So, negotiations began. And then it got to a point they just couldn’t agree on the terms; the benefits she was supposed to go away with.

That’s the main thing. However, they had agreed that she was going to leave. So fast forward sometime in 2009, she went on leave. And when she returned, Mr. Dabrah, then called her in and handed her a letter that her employment had been terminated. So, can you imagine they were discussing mutual separation for a while before she went on leave, she came back from leave and was handed a letter that her appointment had been terminated. Without any reasons?

I’m sure you can imagine the pain and the anguish, but well, let’s do the legal analysis. Now, with this state of affairs, she lodged a complaint with the National Labour Commission. The Commission went into the matter and then fast forward, they came to a decision that  Barclays Bank had treated her unfairly, because for the National LaboUr Commission, the fact of the separation that she was leaving had already been agreed.

It was just the terms- what were they to give her to leave that hadn’t been agreed. So once that had been done, the bank couldn’t turn around to terminate her appointment. Most especially, without even assigning any reasons. Well, so fast forward, the law allows that once the National Labour Commission has held for a party, if the losing party is not complying with the decision, then the National Labour Commission is allowed to go to the High Court for the enforcement of the decision.

So that is what National Labour Commission did. In the High Court, the National Labour Commission lost, but they went on appeal and lo and behold, they won on appeal. Then it went to the Supreme Court.

So, I’m looking at the salient points to make for this discussion. So, the key thing was this. Now, to the extent that they’re already in negotiations for the mutual separation, could the bank do a U-turn and then exercise its right to just terminate her without giving any reasons? Well, the Supreme Court held that yes, that could be done.

Yes, on the facts of that particular case. That’s what the Supreme Court held, that the bank was within its right to now use the right to terminate without assigning reasons. And so, Mrs. Lokko, of course, it’s National Labour Commission that’s on the record as the appellant, (but the beneficiary is Mrs. Loko). So, they lost in the Supreme Court.

Now let’s assess and deal with the reasons for this loss. So, the Supreme Court takes the view that the right of an employer to terminate an employee without giving reasons is sanctioned in law.

You’re looking at the Labour Act 2003, (Act 651). So that right to terminate without giving reasons is recognized and nothing would be taken or that right can’t be wished away. Now, before we come to deal with that right specifically, let’s look at the jurisprudence around the right to be informed about reasons for a termination or not.

Now, what the Supreme Court did was that, remember, as we’re saying, Mrs. Lokko is contesting the right of the Barclays Bank (now Absa Bank) to terminate her without any reasons when they were already discussing mutual separation. So, the Supreme Court went into the law and looked at the history of our Labour Act. Now, the comparison had to be done with the UK or let’s say the Supreme Court chose to do the comparison with the UK.

Now, the comparison showed that in the UK, they had expressly taken away the common law right of an employer to terminate an employee without assigning reasons. Yes. So, the Supreme Court went into it. They looked at the Industrial Relations Act 1971. Then they went to the Trade Unions Act 1974. Then there’s the 1975 Act, the Employment Protection.

Then also there’s the Employment Rights Act. Then finally, Human Rights Act. So, you find that four major laws on this particular subject were reviewed by the Supreme Court.

And they saw that in each of these, that right to terminate an employee without giving reasons was expressly taken away by Parliament in the UK. You know, in the UK, Parliament is supreme. In Ghana, it’s the Constitution that’s supreme.

But in the UK, it’s Parliament, right? Yeah. So, they reviewed Industrial Relations Act 1971, and concluded it took the right to terminate without reasons away from an employer. Trade Unions and Labour Relations Act 1974, also took away that right.The Employment Protection Act of 1975 also took away the right of an employer to dismiss without giving reason. Then there is the Employment Rights Act of 1996, also taking away that right. You see, so having looked at all these, the court came to a conclusion that our Parliament failed in the enactment of Act 651 to take away that right.

So once our Parliament failed to take it, it’s not within the purview of the court to reinstate it through the back door. Now, there’s this popular principle we use in the interpretation of statutes that, yes, you know, judges, it’s a fact that they make law whilst interpreting the cases. But sometimes when the situation is so glaring, when what you want from the court is so obvious that it cannot be taken, I mean, when you say obvious, when what you want from the court is a far stretch, that is to say, the court cannot easily interpret it to give you what you want.They will tell you no, they don’t make laws. Yes, because what as a party, whether plaintiff or defendant, you want from the court is so far from what is in the written text. In that case, a lot of the time the court will tell you that no, the court is not in the business of making law.So, that right cannot be granted.

But sometimes when it is very close, then they can say, okay, within the intent of the law, what Mr. X as plaintiff or defendant is looking for is covered by the law. But where the difference or the gap is very wide, you don’t find a court easily filling in. But of course, in every situation, there are exceptions.

But in this particular case, the Supreme Court says no. For them, the failure of parliament to take away the employer’s right to dismiss an employee without reason is so glaring that the Supreme Court cannot do otherwise.

Let’s now go into the basis of the termination further afield discussing the case of National Labour Commission versus Barclays Bank.Apart from what we’ve discussed earlier, the Supreme Court looked at sections 15 of the Labour Act, which provides the grounds for termination of employment. And if I may just read that briefly, it says a contract of employment may be terminated;

1. by mutual agreement between the employer and the worker,

1. by the worker on grounds of ill treatment or sexual harassment,

1. by the employer on the death of the worker before the expiration of the period of employment,

1. by the employer if the worker is found on medical examination to be unfit for employment,

1. by the employer because of the inability of the worker to carry out work due to

(i), sickness or accident,

(ii) the incompetence of the worker,

(iii) the proven misconduct of the worker.

So, you see, so these are the options.Of course, some of them too are open to the employee. So, let’s note that from what I’ve read, you have a mutual agreement like what Mrs. Lokko and Barclays Bank started doing. So, it’s within an employee’s right to approach an employer that you want to leave.I’m sure we are all familiar with an employee resigning and all that, right? Yes. So that is it.

But apart from that Section 15, the one that spelled doom for Mrs. Lokko is section 17.

Now let’s go to Section 17. That’s where it says that you can just terminate and then pay what you are required to pay. That’s money, salary in lieu of notice. So, Section 17 of the Labour Act 2003, (Act 651) states that:

• A contract of employment may be terminated at any time by either party giving to the other party,

1. in the case of a contract of three years or more, one month notice or one month pay in lieu of notice.

1. in the case of a contract of less than three years, two weeks notice or two weeks pay in lieu of notice. or,

1. in the case of contract from week to week, seven days notice.

And then there are other provisions the same.

So that is it. This is what the Supreme Court stood on to say that the bank could terminate Mrs. Lokko by just paying the one-month salary in lieu of notice. That’s when it’s in the case of three years or above, then you just pay one month salary or you give one month’s notice.

So that is it. Section 17, it appears is very harsh to employees, right? So, we should be looking at what we do about it. Because as I’ve said, even in George Akpass, the Supreme Court recognized that labour matters are human rights issues.

So, where the human rights are not good, should we continue? We’ll come back to that point in the conclusion. So, the court also looked at these previous cases on that matter. There was a case of Bannerman Manson versus Ghana Employer’s Association that was decided and reported.

When we say reported, where you can find it, the record of it is called, you can find it in the 1996-1997 Supreme Court of Ghana Law reports. So, you find how Mr. Manson, who had worked for the Association for 19 years, was just terminated by giving him six months salary in lieu of notice. The Association did not give any reason for the termination of the employment of the plaintiff.

So, the plaintiff was very aggrieved and sued. But the Supreme Court looked at it, and even that time it wasn’t under this current Labour Act. The Supreme Court looked at it, looked at his conditions of service and saw that inside the conditions of service, it was provided that the employment was terminable by six months notice on either side.

Yes. So, you could terminate the appointment by giving six months notice if you want to,  alright, without giving any reasons. So also, could the employee have done the same.

So that is one of the cases that the Supreme Court relied on and said the Ghana Employer’s Association was not under any obligation to give a reason or assign a reason for the termination. So now having dealt with the case of National Labour Commission versus Barclays Bank, then we can go to another case to review it too.

That is the case of George Akpass versus Ghana Commercial Bank. Now, George Akpass, if you are looking for that decision, you can find it in the (2021) 172 Ghana Monthly Judgments. Now, briefly, this is a case in which Mr. Akpass, among others, was involved in giving value.

So, one of the charges against him was that he gave value to cheques on the same day as they were presented, contrary to laid down procedure. Two, he also signed for some loans for a customer, contrary to the laid down procedure. Three, some monies were transferred from a customer’s account into his account, contrary to laid down procedure, et cetera, et cetera.There were more. So at least you get to hear a few of these.

Now, on some of the charges, his main answer was that he, he was a clerk.Now, being a clerk, he says he did it based on the instructions of the branch manager.

So, it means that he’s talking about what we refer to as superior orders. So, he was taking superior orders. Now, the Supreme Court looked at it and showed that one, a junior officer or a subordinate can only justify his actions based on superior orders If the superior orders themselves or that superior order in itself is lawful. So, meaning if the boss gave an unlawful order, then the employee or the subordinate who obeys such an order does so at his own peril.

So that is the thing. Yes. For a junior officer or a subordinate, you obey superior orders or unlawful superior orders at your own peril. Because once the matter comes before a court of law or an adjudicating panel, they would look at the laws or the rules of the establishment. And once that order that employee was obeying is illegal, it means that the employee cannot be saved. It is not an answer. And this is the key thing.

It is not an answer for the employee to say, oh, but everybody does it in the workplace. Yes, that’s one matter that has been coming up. It came up in Bani, etc.

Even sometimes two people can commit an offence. So, when I say offense, not a criminal offense, or let’s say two people can breach a rule so that we can run away from the word offence. Two people can breach a rule or can breach rules or regulations in an establishment. But sometimes one can be taken through the disciplinary proceedings and the other one left off the hook. When you go to court, you can’t use the fact that another person was left off the hook as a reason to justify what you did or the reason why you should not be terminated.

No, that’s not it in law. That’s not a valid reason in law. Yes.

So, let’s beware. So based on what Mr. Akpass is alleged to have done, Ghana Commercial Bank took him through the disciplinary proceedings. Now let’s also mention something that we should all note.

Now, you know, in some of the contracts of employment, there’s express provision that when a rule has been breached, when an employee is said to have breached some rules and a disciplinary decision has to be taken or sanctions meted out, the employee will first be taken through an adjudicatory process. Some adjudication will be done to find out whether he’s liable or not before sanctions will be meted. So, sometimes before that process is undertaken, the employee is given an interdiction letter.

The point we wish to make here is that sometimes the interdiction letter may state one reason for the interdiction, but as the investigations into the alleged breach continue, other grounds, other breaches would have been found. So, the point is this, if your interdiction letter states ground A or reason A for interdiction, but it turns out that at the end of the investigation, they found B, C, D, E, F. And so, they invite the employee to a disciplinary hearing based upon all of them, or even let’s say the original A is now discounted by the B, C, D, E, F and other grounds. You can’t go to court to say that because the interdiction letter stated ground A, but eventually the charges, that’s what the employee is said to have done wrong is B, C, D, E, F. The employee should be left off the hook.

No, that’s not a valid reason in law. So that’s also something we should take notice of. Because otherwise, if you go challenging a decision based upon a discrepancy between the interdiction letter and the charges that were laid against you at a disciplinary hearing, you’ll be throwing money away. Sometimes, it’s better that you are well-informed so that you don’t go trying something that’s already been decided by the court.

So, in Mr. Akpass’ own, that particular ground failed. And that was one of the main grounds they were canvassing. It failed.

We’ve already talked about the lawful orders saying that he was obeying orders. That one too failed because the court found that in this case, the orders were not lawful. So, there was no way the court could save Mr. Akpass based upon his reason that he was obeying orders.

So, another key thing that the court had to address was the matter of whether reasons should be assigned or not. And once again, based upon everything, the court came to the conclusion that the employer may not assign reasons. But that apart, we’re also interested in the matter of summary dismissal or dismissal.

Now, the reason the court had to deal with the issue of dismissal is that there were concerns in the labour field, or let’s say the industry, that the right of an employer to summarily dismiss an employee had been taken away or put in another way. There were doubts. So, some people were of the opinion that now an employer doesn’t have a right to summarily dismiss an employee.If anything, the employer must go through a trial. That is one of the things the court had to look at. In the Mrs. Lokko case, that is the National Labour Commission case, National Labour Commission versus Barclays Bank, the court looked at it too.

But the substantive discussion started in the George Akpass case. So, the Supreme Court in the George Akpass case gave a number of reasons why an employer retains the right to summarily dismiss. Now, briefly, what is summary dismissal? So, from the word ‘summary’, yes, so short, right? So, they tell you that, among others, it’s short, sharp, right? Yes, it can be a short and sharp dismissal.

What makes it short and sharp? So, let’s say there are certain grounds. If an employee is involved in certain very serious breaches of company rules, sometimes the circumstances are such that there’s no need to go through a long process of trial. But we’ll come to the long process of trial that the Supreme Court is advocating for.

When I say long, not necessarily long, but ‘due process’ that employers should up the game. But you know, to every rule, there’s an exception. So, even though you find that in George Akpass, the Supreme Court is saying to the employer should up their game and make the disciplinary processes very fair, etc.There are exceptions. The exception is the case of summary dismissal.

So, let’s take, for instance:

The MD calls a driver, a junior officer,

” Oh, Kofi Baboni, please, can you go to Osu and fetch some customers? They want to come to this office, but they can’t find their way.

Then Kofi Baboni, the driver who is subordinate to the MD retorts,

“No, but MD, in this day and age, they should get Uber. I have this office location on Google, this is on my WhatsApp, I can just send them the Google location via WhatsApp, then they should get Uber and come here. Yes, when you infer, this is what we call insubordination.

Can you imagine MD says go and fetch them? Yes, what Kofi Baboni is saying may be sensible, but if MD says no, you know, customer service, so many reasons why MD thinks go and fetch them yourself, take the company car and go and take them, bring them here, first class treatment, etc. Kofi Baboni says no. That is an example of insubordination.

Because MD saying go and fetch those customers is a lawful order, so, if you refuse, insubordination, you can be summarily dismissed. He doesn’t have to go through full trial.

This is key, we’ll come back to it again. If the company rules say that there must be a trial for all of the offences or breaches of the rules, then so be it. So, let’s get it very clear.

What the Supreme Court is saying is that if the rules of the organization, the personnel manual, or you call it the CBA, or the terms and conditions of employment, whichever one of them applies to you, expressly says that for every breach, there must be a procedural disciplinary process, then that one, the employer cannot just summarily dismiss you based upon that. Insubordination is just one of them. Let’s come to other ones.

Let’s say the employee is been found to have committed a criminal offence, stealing, robbery. You see it? Yes. If the rules don’t protect the right of the employee to go through an adjudicatory process, the employee can be summarily dismissed.

A third example for summary dismissal. Let’s say the employee does something that brings the name of the company into disrepute. So, what example can we write? So, you bring the name of a company into disrepute. So maybe let’s say that the employee goes, while he’s been sent on official duties, he goes, he’s wearing company attire, maybe the name of the company on it, and so many other things.

And then he sees that maybe there’s a chief of the locality, the employee insults the chief in public. Can you imagine insulting the chief in public in a company vehicle? Straight away, this brings the reputation of the company into disrepute. It embarrasses the company.

You are wearing company uniform, sitting in a company car, you go to insult a chief, a chief who is superintending over hundreds, I mean, millions of citizens. Even if it’s hundreds of thousands, if there’s a community, a small community, still, it will be bringing the name of the company into disrepute. Yeah.

So, these are four examples of things that may attract a summary dismissal. So, in the George Akpass case, the Supreme Court recognized that right, that employers still have that right, if only they have not, in their own terms and conditions, taken it away. So, in simple terms, what does your contract of employment say on summary dismissal? If it says it can be done, then it means that if they find you, they can just do it quickly.

But if your contract of employment or your collective agreement, (we used to call it ‘collective bargaining agreement’), or any other personnel manual. If these say that no matter the breach, no matter the offence the employee should be taken through an adjudicatory process, then there cannot such a summary dismissal. So, it is all about contracts.

So come back to George Akpass. So that is what the Supreme Court finally held. So, for those who are concerned whether there is still a right of summary dismissal or not, the Supreme Court has settled it that, yes, there’s still that right, depending on how your contract of employment is made. Okay, of course, it’s not something generally we’ll be happy about if we are employees, right? But for employers, there’s that gives them a lot of leeway.

So, they will be happy. So, it depends, depending on where you sit, you may not be happy with the decision, but so is the law.

Okay, so now let’s come to the concluding part of today’s episode.So, what’s the way forward on the matter of an employer retaining the right to dismiss an employee without assigning any reason? On that one, I think that what we should be looking at is that various employee associations, the TUC and other labour unions should look at how they can take up that matter, you see, and lobby government so that the Act 651 can be amended.

Now, the reason I’m saying so is that this debate won’t die off. If I remember correctly, more than 10 years ago, TUC, it’s either TUC or ICU took up the matter where they advocated that no, they won’t accept a High Court decision at that time.It was a high court decision that repeated this principle that an employee can be terminated without the employer assigning any reasons. But the advocacy at the time didn’t go far, it died off. Now, to the extent that the Supreme Court has once again given decisions that have reiterated this point, I think it’s about time that the labour unions got up to put their act together.

Because once the Supreme Court itself, (and let’s read various aspects of the Supreme Court decision) says that labour matters are human rights matters. So, where your human right is being abused, why shouldn’t you fight to have it restored like the UK has done? And when the UK did it, the International Labour Organisation (ILO) also adopted a convention. After the UK taking away the right to dismiss without a reason, to terminate without a reason, the ILO adopted it.

And so, if Ghana also adopted a convention, why is it that locally when we’re passing Act 651, we didn’t take care to include or to take away the right of an employer to dismiss without reasons?

So, now let’s read those instructive parts of the Supreme Court decision. So, at page 770, here’s what the Supreme Court says. Says that 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. Relevant here is the dictum of Benin JSC in Republic versus High Court Accra, ( Industrial and Labour Division, Court 2) Ex parte, Peter Sangbe Dery, [2017-2018] 1 Supreme Court of Ghana Law Report 552.

There, the Supreme Court noted that the prohibited grounds for terminating unemployment under Section 63 of Act 651 are simply restatements of the human rights provisions under the Constitution. Benin JSC noted therein that, and I’m reading the quote, they were quoting Benin JSC in the Ex parte, Peter Sangbe Dery case. He says, “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. Then the Supreme Court, was quoting Sangbe Dery in the George Akpass case. So, after quoting Sangbe Dery, the Supreme Court returns to George Akpass.

And this is what his Lordship says,  “Being a human rights issue under the Constitution, the right to a fair trial must be adhered to at all costs for the development of the country’s democracy”. So, you see the point, the right to a fair trial must be adhered to at all costs for the development of the country’s democracy. So, what I quoted this is to say that, is to buttress the point that the right to employment, et cetera, these are human rights rights.

These are human rights, right? And they have been enshrined in the constitution. And so, if they are even enshrined in the Constitution and then through a contract of employment, employers have certain provisions that are inimical to human rights, then it is time TUC and the other labour organizations,  got up to lobby for us to do the right thing because fair trial must be adhered to at all costs for the development of Ghana’s democracy. And we are coming back to this point.

So that’s it on the right of an employer to terminate without giving reasons. So, let’s go to point two, how the Supreme Court is calling upon employers to up their game. Yes, up their game.

Don’t treat employees unfairly. Take them through due process because as we’ve stated earlier, most of us build our lives around our jobs. So, when your job is just taken away anyhow like that, it can be very devastating, very traumatizing, et cetera, et cetera.

So, this is what the Supreme Court said. He says at page 771, he says to give effect to the age-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 surprise and every effort must be made to avoid ambush or surprises likely to work against the interests of the staff and the investigations. Yes. And the court goes on to make the point that even in court now we’ve removed elements of surprises.

So, you hear about CI 87. Now, before the witness comes to speak in the box, he has to do a witness statement, say everything he wants to say so that the other side will get to read and everything prepared for cross-examination before the day.

Then also when it comes to criminal trials, there’s what we call a criminal disclosure. So that too, once again, before the criminal trial starts, the state has to give the accused person and his lawyers all the materials so that they can study and prepare. So, the Supreme Court is saying, look, this should be done for employees as well.

And then the Supreme Court goes on to make the point that this is further buttressed by Article 23. That’s also under chapter five, the human rights provisions. Article 23 is on administrative justice.

As a matter of fact, 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. Then they go on, according to article 23, then let’s read it.

“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.”

Then the court goes on to say for this prior proceeding. So, it says therefore, “administrative bodies 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, then they go on and on. So, in the George Akpass case, then they go on to make the point that his complaint about the administrative injustice due process wasn’t followed.

But unfortunately, the court couldn’t help him, because he didn’t lead evidence on that. He didn’t put that case forward. So, in the Supreme Court, there wasn’t much that the court could do to help him.

But this is a case that I recommend to all employers that the Supreme Court is calling upon employers to up their game, make sure that they are giving employees fair trials rather than surprises and ambush litigation. Like you see some cases, the employer would just call in the employee once he’s suspected to have done something wrong. They just match the employee to the home and start searching, breaching the privacy of the employee and such matters that are not commendable at all.

So, employers should take notice. We all are developing a thriving democracy. And so, when we say human rights, labour rights are also human rights.

So, let’s take care of those. And in the process, we’ll all be building a very strong democracy to make Ghana better for all of us and our generations yet unborn. Thank you very much for your attention.

Hopefully next week, we’ll come back to you with another episode of Court Rise with me, Martin Kpebu. Thank you.