MAMPRUSI vs. AGC (GHANA) LTD [1997-98] 1 GLR 847

CASES REFERRED TO

(1) Morgan v Parkinson Howard Ltd [1961] GLR 68.

[p.849] of [1997-98] 1 GLR 847

(2) Marrisson v Bell [1939] 2KB 187.

(3) Poussard v Spiers & Pond (1986) 1 QBD 410.

(4) Morgan v Manser [1948] 1 KB 184; [1947] 2 All ER 666.

(5) Horlock v Beal [1916] 1 AC 486; [1916-17] All ER Rep 81.

(6) Nordman v Rayner & Sturges (1916) 33 TLR 87.

NATURE OF PROCEEDINGS

APPEAL by the plaintiff, a former employee of the defendants to the Court of Appeal from the decision of the trial circuit court dismissing his action for a declaration that the termination of his employment on medical grounds was wrongful and for payment of special and general damages. The facts are sufficiently stated in the judgment of Benin JA.

COUNSEL

Nii Osah Mills for the plaintiff-appellant.

Amarteifio for the defendant-respondents.

JUDGMENT OF SAPONG JA.

The plaintiff issued a writ against the defendants in December 1990 claiming: (a) a declaration that his discharge from the defendants’ employment in June 1990 amounts to a wrongful termination of his contract of employment; and (b) special and general damages for breach of his contract of employment.

At the end of the day, judgment was given for the defendants, for the plaintiff failed to establish his case in terms of the proposition of law enunciated in the headnote of Morgan v Parkinson Howard Ltd [1961] GLR 68 thus:

“In a claim for wrongful dismissal the plaintiff must prove the terms of his employment and then prove that his dismissal is in breach of the said terms, or that it contravenes some statutory provisions for the time being regulating his employment.”

Against this judgment of the Circuit Court, Obuasi, the plaintiff has appealed on the grounds that the judgment is against the weight of the evidence, and that his discharge was contrary to the provisions of the collective agreement. Even if his dismissal was lawful, the award of end of service benefits and other entitlements made by the trial court was not stipulated by the conditions of service. There being abundant evidence that the

[p.850] of [1997-98] 1 GLR 847 plaintiff was still capable of being employed by the defendants after having being cured of his illness, his discharge from the defendants’ employment on being found ill, without more, was wrongful.

I must observe that the appellate court must satisfy itself as to whether the plaintiff was able to spell out the terms and conditions of his employment with the defendants. The plaintiff throughout the trial and before this court relied on exhibit A, that is the collective agreement between the plaintiff and the defendants, to show the terms and conditions of his employment. This exhibit A, Mr Amarteifio for the defendants says, at the time of the plaintiff’s dismissal, was inoperative for it had then not come into force, for exhibit A by clause 1(a) thereof states categorically that the said exhibit A came into force on 28 April 1987. And so if the plaintiff was discharged in 1984 then clearly an instrument which came into force on 28 April 1987 will not cover the plaintiff. It was also not made retroactive. I therefore fail to see the reason why Nii Osah Mills for the plaintiff put all his zeal and faith in exhibit A—the collective agreement which did not cover the plaintiff.

In the result, I do say with all the emphasis at my command that the plaintiff failed abysmally and woefully to satisfy the principle of law as enunciated in Morgan Parkinson Howard Ltd (supra). The plaintiff did not, in my view, as the law demanded of him, prove the terms and conditions of service which the defendants have breached to enable him sue for wrongful dismissal. And more so to ask for a declaration that his discharge from the defendants’ employment in June 1990 amounts to a wrongful termination of his contract of employment. This appeal is therefore misconceived and unmeritous. It is accordingly dismissed.

JUDGMENT OF BENIN JA.

The plaintiff-appellant, a former employee of the defendant-respondent company (hereinafter called the defendant or the company) fell sick; precisely, he contracted tuberculosis (TB) whilst still in the employment of the company. A medical report recommended that he was unfit to continue working in the mines so the company terminated his employment and paid him his entitlements. However, the company continued to pay him some benefits in cash whilst he was undergoing treatment. Accor

[p.851] of [1997-98] 1 GLR 847 ing to the company, these benefits were to cease as soon as the plaintiff was declared medically fit. So it came to pass that the plaintiff became whole again and as a result the company terminated the cash payments. The company did not re-engage him.

The plaintiff felt cheated out of his contract of employment so he issued this writ of summons against the company claiming these reliefs:

“(a) A declaration that his discharge from the defendant’s employment in June 1990 amounts to a wrongful termination of his contract of employment.

(b) Special and general damages of ¢1 million for breach of his contract of employment.”

I will go into the facts in detail having regard to the pleadings. From the plaintiff’s case, as pleaded, he only underwent medical treatment between March 1984 and July 1990 during which period he was paid his full salary. But when he was declared medically fit, the defendant dispensed with his services. He claimed special damages by way of lost earnings of ¢22,000 per month from July 1990 and terminal benefits.

For its part, the company pleaded that the plaintiff was first engaged on 16 March 1964 and he resigned his appointment on 1 April 1968. However, he was re-engaged as a general labourer on 8 January 1971 and discharged on medical grounds on 11 July 1984. That the plaintiff was paid all his terminal benefits thereby severing the contract of employment. However, he was placed on the company’s list of TB patients and paid a subsistence allowance equivalent to the basic minimum wage of his category whilst undergoing treatment. The payment of the subsistence allowance was understood to cease once the plaintiff was declared fit by a medical board. Accordingly, when in June 1990 the plaintiff was declared medically fit, the payment of the subsistence allowance to him ceased. The defendant denied that the plaintiff was earning ¢22,000 salary a month.

By an amendment to the statement of claim, the plaintiff averred that his contract of employment was governed by conditions of service dated 19 March 1968 and that the company contravened articles 8, 9 and 15 thereof.

[p.852] of [1997-98] 1 GLR 847

The trial circuit court heard viva voce evidence from the plaintiff as well as a medical officer, Dr Ankrah.

The defendant also called a medical officer by name Dr Ansah as well as one Yankey, an employee. The court dismissed the plaintiff’s claim but without costs. The court found that the disease, namely TB which the plaintiff contracted was not an occupational disease. The court next considered the terms of the plaintiff’s employment and whether there has been a breach thereof by the defendant in the light of the decision in Morgan v Parkinson Howard Ltd [1961] GLR 68. The court dismissed a submission by defence counsel that the collective bargaining agreement (hereinafter called the agreement) on which the plaintiff relied to establish the terms of his employment was inapplicable since it was executed in 1987 and not 1968. The court, however, dismissed the plaintiff’s action having found that the plaintiff was duly terminated on medical grounds and was paid his terminal benefits. He made reference to the Mining Regulations, 1970 (LI 665) which prohibited anybody suffering from TB from working in the underground of any mine. The plaintiff fell into this category of prohibited persons, being a blastman at the time. He accepted that the out of job benefits paid to the plaintiff were to cease as soon as he became medically fit again.

The plaintiff appealed on the ground that the judgment is heavily against the weight of the evidence. Additional grounds of appeal filed were:

“(1) The learned trial judge erred in holding that by operation of the Mining Regulations, 1970 (LI 665) the plaintiff was lawfully dismissed from the defendants’ employment; the said law made no such stipulation.

(2) There being abundant evidence that the plaintiff was still capable of being employed by the defendants’ after having been cured of his illness, his discharge from the defendants’ employment on being found ill, without more was wrongful.

(3) Even if the plaintiff’s dismissal was lawful, the award of end of service benefits and other entitlements made by the trial court was not as stipulated by the conditions of service.

[p.853] of [1997-98] 1 GLR 847

(4) The plaintiff’s discharge was contrary to the provisions of the collective agreement.

(5) The trial judge erred in law in finding as lawful the defendants’ so-called policy of discharging workers who fall ill, and paying them allowances.”

Counsel for the plaintiff submitted that the provision in LI 665 cannot form the basis in law for the defendants to discharge the plaintiff the moment he was diagnosed with TB, since what that regulation says is that a person with TB should not work underground and not that he cannot work at all.

Regulation 191 of LI 665 on which the trial court relied provides that:

“191. No person known to the manager to be infected with tuberculosis shall enter or be allowed to enter the underground working of any mine for the purpose of working therein and no manager shall employ such person underground knowing that he is so infected.”

Every employment contract is subject to the general law of the land and any such contract which runs counter to statutory provision will be void and unenforceable to the extent of the conflict or inconsistency. This regulation is thus applicable to the company which undertakes underground mining operations.

Counsel for the plaintiff was of the view that the plaintiff was originally employed to work on the surface before his present position of blastman so he could have been engaged elsewhere than in the underground. Suffice it to say that an employer who engages a workman for a particular assignment is not obliged to retain him and assign him to a new position if the particular assignment for which he was engaged cannot be performed by him for whatever reason.

All the other grounds of appeal were argued on the basis that the agreement was binding on the parties. But it was not since it was made on 28 April 1989, at a time the plaintiff’s employment had come to an end. For that reason, the trial court erred when it held that the agreement became effective in 1968. This point was belatedly conceded by counsel for the plaintiff after the sub

[p.854] of [1997-98] 1 GLR 847 ission of counsel for the defendants. I believe counsel for the plaintiff was also under a mistaken belief, like the counsel for the plaintiff who handled the case at the trial level and also the trial judge, that the agreement was in force at the material time.

Be that as it may, the agreement would still be binding and effective as between the parties herein if it is established that the plaintiff’s appointment was wrongly terminated. But in the absence of any written contract of employment, the general laws of the land as well as the common law will apply to their relationship, where possible, so long as they both acknowledge the master-servant or better still employer-employee relationship between them. Here the plaintiff failed to establish the burden of proving his case by reference to a written contract of employment valid as of 1984 when he became ill and was terminated. The common law and statutory provisions, if any, will have to apply.

I have already referred to regulation 191 of LI 665 which enjoins an employer not to permit an underground mine worker to continue working underground if he is established to have the TB disease. I have also said that the employer is not obliged to engage an employee elsewhere than he was engaged. In these circumstances, the employer will be entitled to treat the contract of employment as frustrated and therefore determine it.

Under the common law the nature or duration of the illness plays an important role in considering whether it frustrates the purpose or object of the employment. But as held by the English Court of Appeal in Marrison v Bell [1939] 2 KB 187 at 198, CA: “wages continue, through sickness and incapacity from sickness to do the work contracted for, until the contract is terminated by a notice from the employers.” There is no dispute that the plaintiff was paid in full until his appointment was terminated by the defendant. And after this all his terminal benefits were paid to him. The company is saying it terminated the plaintiff’s employment when he contracted TB. Was the company justified in doing so?

The case of Poussard v Spiers & Pond (1876) I QBD 410 provides an example of where the nature and effect of the illness is influenced by the nature of the employment. In that case an opera singer was engaged for three months, but was unable to perform on the first night and it was found that the duration of the illness

[p.855] of [1997-98] 1 GLR 847 was not certain. It was held that the contract was frustrated. Two other decided cases will be cited here. The first is Morgan v Manser [1948] 1 KB 184. There, a music hall artiste employed a manager for ten years from 1938. Two years later, the manager was called up for military duties and was demobilised in 1946 and sought to resume his position which the defendant refused. At the trial, the defendant contended, inter alia, that by reason of an implied term, the agreement was rescinded or dissolved by reason of this call-up to the army; alternatively, that the agreement was frustrated and rendered impossible of performance. It was held that there was such a change of circumstances and for such a duration that the original contract, looked at as a whole, was invaded by the call up of the defendant so fundamentally that it must be held to have been frustrated by that event.

Next, in the case of Horlock v Beal [1916] 1 AC 486 a seaman signed articles in May 1914 to serve the British ship for a voyage not exceeding two years’ duration. In August 1914, when war broke out between Britain and Germany, the ship which was in the port of Hamburg, was detained by the Germans. The crew were kept as prisoners on board the ship till 2 November 1914, when they were interned as prisoners of war. It was held by the majority (Lord Parmoor dissenting) that the contract of service having become impossible of performance by the internment of the crew for an indefinite period, had been thereby terminated, and the seaman was not entitled to any wages from the owner of the ship after the date of such detention.

It is to be said that what is important to consider is that there should be some permanency about the illness or, at least, that the duration of the illness be uncertain to determine in order to frustrate the contract of service. Thus, in contrast to the foregoing, if the illness is of a temporary duration and not that serious it will not frustrate the contract. An example is the case of Nordman v Rayner & Sturges (1916) 33 TLR 87. The facts were these: In July 1914 the plaintiff and the defendants entered into a contract by which the plaintiff became the London agent for the defendants and was to receive a commission. The plaintiff was born in Germany, and in September 1914 he was interned, but as he was an Alsatian of French extraction with anti-German sympathies he was released in October 1914. In an action to recover damages for

[p.856] of [1997-98] 1 GLR 847 breach of contract, it was held that the contract was not dissolved by the outbreak of the war nor was its basis destroyed either by the outbreak of the war or by the plaintiff’s temporary internment, and therefore the plaintiff was entitled to maintain the action.

In the present action, the plaintiff was diagnosed to be suffering from TB. It is common knowledge that TB, though curable, takes a much longer time to cure and, indeed, the duration of its cure cannot be determined with any degree of certainty. It could be one year, it could be five years or even ten years or more. On account of the uncertain duration that it could last, an employer would be justified to treat the contract of employment as frustrated and therefore determine it. There was even a medical report which recommended the termination on account of this ailment.

Thus under both the statutory law (vide regulation 191 of LI 665) and the common law, the company was justified in determining the plaintiff’s employment on health grounds. In legal terms the contract of service was frustrated so the provisions of the agreement do not apply.

What remedies by way of terminal benefits are available to the plaintiff? Unfortunately the agreement does not apply. Hence we have to go back to any statutory provision in force as well as the common law, since it is applicable, to determine this question. These being matters of law, need not be pleaded by a plaintiff in order to take the benefit thereof. First, the common law. Under the common law the employee whose services are terminated is entitled to payment for services actually rendered. If the contract of employment did not specify a particular amount or rate of salary or wages, or if there is no contract of employment at all, the employee is entitled to be paid a reasonable remuneration on quantum meruit basis. He would have been entitled to damages usually calculated on the basis of what he would reasonably be expected to have earned if he had remained in employment up to a period that he would reasonably be expected to secure another employment if his engagement was wrongfully terminated. He is also entitled to any other benefits which he would have received but for his termination.

But I have to state that the common law is applicable only where statutory provision is lacking. There is the Labour Decree, 1967 (NLCD 157) which is still in force. Paragraph 33(8) of [p.857] of [1997-98] 1 GLR 847 NLCD 157 enjoins the employer to pay the worker all remuneration due to him. This has been satisfied by the defendant. In fact, the provisions of this Decree deal with those workers whose employment is governed by a written contract. Granting that NLCD 157 is applicable, the plaintiff would have been paid all his entitlements to the date of termination, except expenses involved in travelling to his hometown. And even here the defendant is ready with the necessary facility, to the knowledge of the plaintiff, according to counsel.

And going by the common law too, there is nothing left to pay the plaintiff. In short, the appeal is without merit and it fails altogether and is accordingly dismissed.

JUDGMENT OF ANSAH J.

I agree.

DECISION Appeal dismissed.