NARTEY-TOKOLI AND OTHERS vs. VOLTA ALUMINIUM CO LTD [1997-98] 1 GLR 867

CASES REFERRED TO

(1) Nartey-Tokoli v Volta Aluminium Co Ltd [1987-88] 2 GLR 532, CA.

(2) Nartey-Tokoli v Volta Aluminium Co Ltd (No 2) [1989-90] 2 GLR 341, SC.

(3) Nartey-Tokoli v Volta Aluminium Co Ltd (No 3) [1989-90] 2 GLR 513, SC.

(4) Wright v British Railways Board [1983] 2 AC 773.

(5) Sowah v Bank for Housing and Construction [1982-83] GLR 1324, SC.

(6) United Railways of Havana and Regla Warehouse Ltd, In re [1961] AC 1007; [1960] 2 WLR 969;

[1960] 2 All ER 332, HL.

(7) Arkorful v State Fishing Corporation [1991] 2 GLR 348.

(8) Turner v Sawdon [1901] 2 KB 653.

(9) Collier v Sunday Referee Publishing Co Ltd [1940] 2 KB 647.

(10) Royal Dutch Airlines (KLM) v Farmex Ltd [1989-90] 2 GLR 623, SC.

NATURE OF PROCEEDINGS

REFERENCE by the Supreme Court to the High Court to calculate, inter alia, the salaries, damages, allowances and benefits awarded the plaintiffs for their wrongful dismissal by the defendant in Nartey-Tokoli v Volta Aluminium Co Ltd (No 2) [1989-90] 2 GLR 341, SC. The facts are sufficiently stated in the judgment of the court.

COUNSEL

Agyemang-Bempah for some of the plaintiffs.

Nii Osah-Mills for the other plaintiffs.

R Bannerman (with him George Thompson) for the defendants.

[p.870] of [1997-98] 1 GLR 867

JUDGMENT OF AFREH JA.

On 19 June 1987 the plaintiffs instituted proceedings against the defendant company (hereinafter referred to as the defendants) to claim:

“(1) Damages for wrongful termination of employment.

(2) Declaration that the purported termination of their employment is null and void, is of no legal effect and ought to be vacated.

(3) Arrears of all salary, all allowances and all benefits due to the plaintiffs from their respective dates of wrongful termination to date of judgment.”

The plaintiffs are all former employees of the defendants who lost their employment as a result of measures taken by the defendants to deal with the situation created by a drastic cut in electric supply from the Volta River Authority. The cut in the supply of electric supply was necessitated by the severe droughts in 1982 and 1983 as a result of which the level of water in the Volta Lake, from which Volta River Authority generates electricity, became too low. With its electricity supply severely cut, the defendants were compelled to reduce their operations. One consequence of this situation was that some employees had to be laid off. After discussions with representatives of the local union of the Industrial and Commercial Workers Union (ICU) and the Valco Workers Defence Committee, the defendants came out with an arrangement described as “Valco Leave of Absence Without Pay/Recall Programme” (LOA).

Under this programme the plaintiffs were asked to go on leave of absence without pay. The affected persons were offered a loan equal to 200 per cent of their monthly base pay for each completed year of service and were encouraged to use the loan for farming or other profitable ventures in the national interest. The defendants promised that employees on LOA would be given first opportunity for re-employment at VALCO. Re-employed employees would be required to repay the loan over five years at eight per cent interest beginning from the date of re-employment, and continue to accumulate service less the period of the LOA. If Valco was not able to re-employ these employees by certain specified dates, they were to be considered redundant and the loan

[p.871] of [1997-98] 1 GLR 867 amount converted to redundancy payment in accordance with article 40(d) of the collective agreement between Valco and ICU.

The defendants, ie Valco, were unable to re-employ the plaintiffs. Aggrieved by the loss of their employment, they instituted proceedings as mentioned above. The High Court, the Court of Appeal (see Nartey-Tokoli v Volta Aluminium Co Ltd [1987-88] 2 GLR 532, CA) and the Supreme Court (Amua-Sekyi JSC dissenting) (see Nartey-Tokoli v Volta Aluminium Co Ltd (No 2) [1989-90] 2 GLR 341, SC) all gave judgment in favour of the plaintiffs. Because these proceedings are to carry out the order of the Supreme Court, I quote it in full as drawn up and signed by Taylor JSC presiding dated 8 March 1990:

“This appeal coming on for hearing on 22 January and 8 March 1990 before Taylor JSC (Presiding), Francois, Amua Sekyi, Osei-Hwere JJSC and Ofori Boateng JA sitting at Accra in the presence of Jones Mensah (with him D K Lotsa) for the appellants and Bannerman (with him George Thompson) for the respondents, I HEREBY CERTIFY that and order as follows:

The appeal of the defendant-company is dismissed and the appeal of the plaintiff is allowed to the extent following:

The parties are ordered to appear before the High Court for the court to calculate how much is due to the plaintiffs, including the trainee of the plaintiffs as follows:

(a) Their salaries from the dates of their respective de facto termination which are 1 January 1984; 6 February 1984; and 15 November 1984, respectively, and so in the case of the first batch: from 31 October 1982 to 1 January 1984; and in the case of the second batch: from 7 February 1983 to 6 February 1984; and in the case of the third batch: from 16 November 1983 to 15 November 1984.

(b) For all the plaintiffs, additional twelve months’ salary as damages for wrongful dismissal as at the respective dates of their de facto termination.

(c) Since I have held that de jure they are still employees, having declared their dismissals null

[p.872] of [1997-98] 1 GLR 867 and void, they will be entitled to earned leave, bonus, long service awards, including food package and all the other benefits said to be enjoyed on a so-called gentleman’s agreement, all these to be converted if feasible to cash as at the respective dates of their de facto termination.

(d) Their entitlement under article 40 of the collective agreement. In calculating their entitlement, account should be taken of any period within which an employee had obtained employment within the relevant period covered by these awards.

The proceedings are accordingly transmitted to the court below ie the High Court to carry out.”

In its judgment the Supreme Court also said that although the LOA programme was null and void, the resultant nullity did not imply or mean that an employee subject to the collective agreement could not enter into a contract to take a loan from his employers. It did not condemn such a loan so long as its terms were not in conflict with the collective agreement. And in any case if the conflicting terms were expunged, the loan contracted remained in full force and the debtor must repay it.

The mandate of this court under this Supreme Court order is clearly defined and limited. This court cannot review the order of the Supreme Court. It cannot exceed its limits. It cannot make any award that the order or the Supreme Court does not permit it to do. As I see it, the function of this court in these proceedings is to calculate, that is estimate:

(a) the salary due to each employee during the relevant period specified in paragraph (a) of the Supreme Court order;

(b) the amount of damages due to each employee based on twelve months’ salary as at the date he is deemed to have had his employment wrongfully terminated;

(c) the earned allowance, bonus, long service awards, including food packages and all other benefits of each plaintiff under the so-called gentleman’s agreement as at the date he is deemed to have had his employment wrongfully terminated; and

[p.873] of [1997-98] 1 GLR 867

(d) the entitlement of each employee under article 40 of the collective agreement.

By salary, I believe the Supreme Court meant the fixed regular payment each plaintiff was receiving from the defendants at the time of termination. I do not think the court meant the fixed regular payment that would have been made to the employee if he had been in employment and holding the same post at the time the judgment of the High Court or the Supreme Court was given or at the time judgment in the present proceedings is given. It must be remembered that the plaintiff claimed “all arrears of salary, all allowances and all benefits due to the plaintiffs from their respective dates of wrongful termination to date of judgment.” The Supreme Court ordered that they should be paid the arrears of salary “from the dates they ceased to receive salaries to the dates of their respective de facto termination which are 1 January 1984, 6 February 1984 and 15 November 1984.” In view of this clear judgment of the Supreme Court, this court cannot give the plaintiffs any salary that was not prevailing at the respective termination dates specified by the Supreme Court.

Although the value of the cedi has been depreciating speedily and steeply since the writ was filed on 19 June 1987 the plaintiffs have never sought leave to amend their writ or statement of claim to claim the “money of today.” That is the salary that would have been paid to each employee if he had been in employment holding the same post at the time the judgment of the High Court or the Supreme Court was given or the judgment in the present proceedings is given. I do not have the power to grant what the plaintiffs have never claimed by their writ or pleadings, even if the Supreme Court had not specified any dates for the determination of the arrears of salary.

In their application to the Supreme Court for review of its judgment: see Nartey-Tokoli v Volta Aluminium Co Ltd (No 3) [1989-90] 2 GLR 513, SC the plaintiffs did not ask that court to interpret or explain “salary” to mean money or salary of today. They were mainly interested in trying to persuade the court to order the payment of their salaries, allowances and damages up to the date of judgment. Even this attempt was firmly rejected by the Supreme Court. Osei-Hwere JSC said at 522:

[p.874] of [1997-98] 1 GLR 867

“Be that as it may, our decision that the breach of the statutory procedure rendered the dismissals of the plaintiffs a nullity was no ground to disturb the quantum of the damages awarded (except to correct an arithmetical error) and expand it up to the date of judgment.”

The plaintiffs have cited a statement in the ruling of Francois JSC on the application for review by the Supreme Court to support their argument that the salaries that should be ordered by this court to be paid or be used to calculate the damages should be the salaries of Valco as at the date of his judgment. Francois JSC said at 518:

“Finally, this court has ordered the parties to appear before the High Court for their entitlements to be calculated. It is patent that all entitlements are open for consideration at that forum, even the indices of money depreciation.”

(The emphasis is mine.)

With respect, this statement should not be interpreted as an order or mandate of the Supreme Court to this court to convert salaries and damages already awarded and known or ascertainable into prevailing salaries at Valco. At the time the Supreme Court ruling was made, the salaries that the High Court, the Court of Appeal and the Supreme Court had mentioned in their judgments, were known or were easily ascertainable from the records of the defendants. It was therefore not necessary to reassess them. I do not think his lordship by that statement was asking this court to do so.

But there are other matters covered by these proceedings where consideration of “indices of money depreciation” may be necessary. As I understand his statement, Francois JSC was urging this court to consider all relevant factors. I do not think he intended to ask this court to reconsider matters that had been determined and settled by the decision of the Supreme Court. That the Supreme Court did not order or expect this court to change the values of salaries and damages awarded by it on account of inflation and the decline in the purchasing power of the cedi is

[p.875] of [1997-98] 1 GLR 867 clear from the ruling of Aikins JSC on the application for review. He said at 528:

“Mr Jones-Mensah, counsel for the plaintiffs, urged before us that to compensate rights and entitlements declared de jure with only twelve months’ damages, can only mean that there is no jurisprudential difference between the verdict of wrongful dismissal and that of a declaration of nullity in terms of relief, and cited the case of Sowah v Bank for Housing and Construction [1982-83] GLR 1324, SC emphasising the rate of inflation and the decline in the purchasing power of the cedi.”

After considering the submissions of Mr Thompson, counsel for the respondents, he declared at 530: “I have considered very carefully the arguments of counsel for the plaintiffs, and regret that I am not at all convinced that I should accede to his application. In my view, he tried to use the application for review for an interpretation of the court’s decision and for academic purposes aimed at breaking new grounds in the law. There has not been any fundamental and basic error which this court has inadvertently committed.”

The arguments of counsel for the plaintiffs to convert the salaries of the plaintiffs to money of today would have been more cogent, even unanswerable, if the salaries of the plaintiffs had been denominated in dollars or indexed to the dollar. But it is clear from exhibit GG, the agreement between Valco and the ICU dated 23 November 1981 on wages, that the wages of the plaintiffs were denominated in cedis only. The evidence of Mr K K Awuah on behalf of the defendants that VALCO salaries were not denominated in dollars was not challenged.

An employer’s obligation to pay salary or other remuneration is founded on a contract between the employer and the employee. Unless a term of a contract is illegal or void or unenforceable, a court of law has to give effect to it. It cannot change, set it aside or ignore it because in its opinion it is unfavourable to one of the parties. In my view, the salaries that the plaintiffs are entitled to

[p.876] of [1997-98] 1 GLR 867 are the salaries, including increments and increases, that should have been paid to them at the respective dates of their termination.

In claiming arrears of salary, the plaintiffs were in effect claiming a debt. When a person claims a debt, he can only recover the nominal sum that he had lent or which the defendant has refused or failed to pay. He cannot demand that the defendant pay a bigger amount which in his view compensates for loses in the purchasing power of the currency. He may be entitled to interest but he is not entitled to an amount bigger than what he lent or the defendant refused or failed to pay.

I have carefully considered the authorities cited by the counsel for the plaintiff in support of their contention for money of today, but I do not think they are applicable to this case. The passage from Kemp on Damages for “Personal Injury and Death” and Wright v British Railways Board [1983] 2 AC 773 deal with assessment of damages affected by changes in money in personal injury cases. The principles enunciated there cannot be applied to a claim for debt or assessment of damages for breach of contract of employment. In Sowah v Bank for Housing and Construction [1982-83] GLR 1324, SC there was a term that price fluctuations would necessitate variation in the contract price. No such term can be implied in the case now before me.

There is ample authority for the proposition that changes in the value of money should not justify the payment of a bigger amount than was due to the plaintiff at the time the cause of action accrued. McGregor on Damages (15th ed, 1988) devotes a whole chapter to a discussion on the effect of changes in the value of property, services and money on damages. Changes in the value of money is dealt with under several headings. On general changes in the internal value of sterling over the years, the learned editor writes at para 624, p 406:

“The spectacular decline in the purchasing power of sterling over the past quarter-century is normally reflected in the award of damages without any special consideration of this factor, because the cost of property and of services rise correspondingly and any award of damages in respect of property or services is based upon their present-day market value. Similarly where the damages are awarded for a

[p.877] of [1997-98] 1 GLR 867 failure to pay money, the amount of the money which will be awarded against the defendant will be the same nominal sum as he has promised and failed to pay.”

(The emphasis is mine.) Under the heading “Particular changes in the internal value of sterling between the time of accrual of the cause of action and the time of judgment” he states in para 629 at 409: “Where the losesic(2) is a money lose, the fact that a change in the value of money is involved is unmasked: It is submitted that there is a good argument for basing the award on the value of the money at the time of the breach in the case of contract and at the time that the loss was determined in the case of tort.”

In In Re United Railways of Havana and Regla Warehouses Ltd [1961] AC 1007 at 1070 Lord Denning put the general rule tersely: “[W]ithin this country itself, a man who stipulates for a pound must take a pound when payment is made, whatever the pound is worth at that time.” So also in this country a man who stipulates for a cedi must take a cedi when payment is made whatever the cedi is worth at the time. The harsh reality is that devaluation may reduce the purchasing power of money. It can wipe away a lifetime’s savings and bankrupt a trader who only a day before was well-to-do. This has been the lot of Ghanaians for decades. Take for example the days when the government used to devalue, a man who found that the purchasing power of some ¢1 million he had in the bank had abruptly been reduced to ¢700,000 the day after a devaluation exercise, could not go to the bank and ask that steps be taken to restore what he had lost. I suppose a person who had ¢1 million in the bank in 1982 or 1983 was considered wealthy. Suppose it was a savings account and he did not withdraw it until 1997. Can he insist that the bank pay him not the capital sum of ¢1 million he had put in the bank but an amount which will be the equivalent of the purchasing power of ¢1 million in 1982 or 1983? The answer should be in the negative. He will be entitled to interest but not a bigger capital sum. Or take the farm loans given to plaintiffs under the LOA project. If counsel

[p.878] of [1997-98] 1 GLR 867 for the plaintiffs are right, then those loans too will have to be paid back in the money of today—and that can be millions of cedis for each plaintiff. Tried as they did, counsel for the plaintiffs could not produce any acceptable basis or formula for converting the salaries that were due to the plaintiffs at the respective dates of their termination into money of today.

An attempt to claim damages on the “estimated current values” was rejected by Osei-Hwere JA (as he then was) sitting as an additional High Court judge in Arkorful v State Fishing Corporation [1991] 2 GLR 348, a claim similar to the one before me. In that case the plaintiff was wrongfully dismissed in 1976. Among his claims was one for the estimated current value of his salaries. The judgment of Osei-Hwere JA (as he then was) was delivered on 27 October 1987. On that claim the learned judge said at 356 of the report:

“In spite of the damages to his pocket which the plaintiff is claiming, his counsel, with much industry, argues that he is entitled, in addition to the ‘estimated current value’ of the salaries he has lost. His argument, as far as I could understand him, proceeded on the premises that if say in 1976 the plaintiff’s salary of ¢10 per month could buy say ten bottles of whisky then if there should be a refund to him today of the said salary then that lost salary must be reckoned by the value of ten bottles of whisky today. To advance this claim, he tried to call a government statistician whose evidence, unfortunately, threw no light on this novel proposition. I do not think that this court can admit such a claim which, if entertained, will open the floodgates to embrace such an economic loss as a new head in assessing damages in breach of contract. I think that the invitation is dangerous and I reject it.”

Like Osei-Hwere JA (as he then was) I think the invitation by the plaintiffs’ counsel that I should convert their salaries as at the date of their de facto termination into money of today is dangerous and without legal basis and I reject it. It is therefore my conclusion that the arrears of salary to be recovered under paragraph (a) of the Supreme Court’s order and the salary on which damages are

[p.879] of [1997-98] 1 GLR 867 based under paragraph (b) are the salaries payable to the plaintiffs as at the respective dates of their termination.

I now turn to the determination of allowances and benefits of the plaintiffs under paragraph (c) of the Supreme Court’s order. Here too the function of this court is limited by the terms of the Supreme Court order. This court’s duty or mandate is to calculate:

“earned leave allowance, bonus, long service awards, including food packages and all other benefits said to be enjoyed on a so called gentleman’s agreement, all these to be converted if feasible to cash as at the respective dates of their de facto termination.”

Emphasis must be laid on the word “earned.” It qualifies all the allowances and benefits that are mentioned in the order or can be granted under it. Before the defendant becomes liable to pay any of them to any plaintiff, it must be shown that he had earned it as at the date of his de facto termination and that it had not been paid as at that date.

These allowances and benefits can be grouped into two categories. In the first group are those where the mere fact of a person being employed de jure during the relevant period qualified him to receive the allowance or benefit. In the second category are those where the mere fact of employment is not a sufficient qualification. In addition to that, the person claiming the entitlement must have done a further act, such as having been present physically to carry out a scheduled assignment or there should have occurred an event contingent upon which the entitlement accrues, such as attainment of a set target or the earning of profit.

Many of the claims are based on terms in the applicable collective agreement and therefore are contracted obligations. Others arise out of the so-called gentleman’s agreement but under the Supreme Court judgment are enforceable as if they were contracts. It seems clear from the terms of the Supreme Court order that any new allowances or benefits introduced after the respective dates of the de facto termination or any increase in the value of any allowance or benefit after such a date cannot be awarded by this court.

[p.880] of [1997-98] 1 GLR 867

During these proceedings much time was spent on the existence, quantum or value of various allowances and benefits. But very little time was given to showing who has earned what. For example, much time was devoted to proving that there are shift and discomfort allowances. But no effort was made to show which of the plaintiffs used to work on shift or in discomfort areas; and whether any of such plaintiffs had outstanding, unpaid, at the date of their de facto termination, any allowances earned by working on shift or in discomfort areas. Perhaps counsel for plaintiffs did not think it was necessary to do so. They stated the basis of the plaintiffs’ claims as follows:

‘‘‘We would therefore urge this court in this onerous exercise to always bear in mind the fact that the LOA by which the plaintiffs were sent home has been declared null and void. Thus in our humble view it has no effect whatsoever and should be treated as never having taken place (a non-event). It therefore follows that the plaintiffs until the respective dates of their de facto termination, were employees of the defendants (they are to be taken as if they were never sent home under LOA). (We say this because the defendants have in their address, have almost always been relying on the LOA talking about force majeure). Thus being employees of the defendants, they are to be taken as being at work during the period and therefore entitled to all their benefits both under the collective agreement and under the ‘gentleman’s agreement.’ The plaintiffs are therefore legitimately claiming all the benefits, entitlements and facilities which they would have enjoyed as employees at work.

The plaintiffs are saying that if they had not been sent home under the LOA they would have been working for the defendants. They say they were employees of the defendants until the respective dates of the de facto termination of their employment. This view is supported by the judgment of the Supreme Court. Being employees of the defendants they were entitled to:

(1) Free lunch at work—a lunch has been estimated to cost between US$8-US$10 even though K K Awuah claimed he did not know the value of

[p.881] of [1997-98] 1 GLR 867 lunches. But we have given a figure which has been unchallenged.

(2) 25% of their salary as rent subsidy.

(3) Various kinds of safety awards including:

(a) Trimester award worth US$30 per worker.

(b) Plant Safety Award of US$2—US$40 per worker.

(c) International Safety A ward of between US$40—US$50.”

Counsel say their view is supported by the judgment of the Supreme Court. But it seems not to have fully considered or taken into account the word “earned” in the Supreme Court judgment. To earn in the context it was used by that court is to gain or be paid money or other payment in return for work or service. I have already discussed how the plaintiffs in this case could have earned their benefits, entitlements and facilities, and there is no need to repeat it. But if the Supreme Court wanted the plaintiffs to be paid or given all the benefits, entitlements and facilities they would have enjoyed as employees at work if they had not been sent home, the court would have said so. But they chose to use the word “earned” which connotes proof of accrued rights.

When facts are clear or incontrovertible there is no need to resort to presumptions or fictions to prove them. The incontrovertible fact in this case is that for twelve or fourteen months the plaintiffs were not at work. What they are saying in effect is that nonetheless they should be paid the value of lunches they might have eaten if they had gone to work, paid shift and discomfort allowances they might have earned if they had gone on shift or had worked in areas of discomfort, and paid incentive and safety awards they might have earned if they had been at work—in all cases whether or not the plant of the defendants was in operation and whether or not the defendants were in as position to give them work. Does the judgment of the Supreme Court and the statement of Francois JSC support such a claim?

The argument of the plaintiffs would have been valid if the defendants, the employer, had been under an obligation to provide work that would have enabled them to earn the allowances they are claiming, for instance shift allowance or discomfort allowance.

[p.882] of [1997-98] 1 GLR 867 But the general rule is that the employer is under no obligation to provide work. It is within his provision to say he will go on paying wages, but that he is under no obligation to provide work: see Turner v Sawdon [1901] 2 KB 653; and Collier v Sunday Referee Publishing Co Ltd [1940] 2 KB 647. There are three main exceptions: (1) contracts, for example with theatrical performers in which apart from remuneration there is an obligation to provide the employee with an opportunity of making himself better known through appearances; (2) contracts with commission or piece-workers where there is an obligation to provide a reasonable amount of work so that the employee can earn his remuneration; and (3) in contracts with skilled workers where there may be an obligation to provide work so that the employee can maintain or develop his skills. Apart from these exceptions the general rule is as stated by Hepple and O’Higgins, Employment Law (4th ed, 1981), para 292 at p 136:

“An employee on general duties cannot insist that he be allowed to exercise particular duties at a particular time. Suggesting that ‘it is arguable that in these days a man has, by reason of an implication in the contract, a right to work’ cannot be reconciled with the weight of authority, nor with other common law rules.”

There is no evidence that the contract of any of the plaintiffs fell into any of the exceptions mentioned above. It is therefore my view that the defendant is not bound to pay allowances or benefits which could only be earned by an employee being present on the premises of the defendant at a particular time and place to carry out an official assignment.

Some of the allowances or benefits payable or that maybe awarded under paragraph (c) of the Supreme Court order were payable or given in kind or denominated in dollar. They should remain payable or given in kind or denominated in dollar because it is not feasible or necessary to convert them into cash as at the respective dates of their de facto termination.

It is with the guidance of these general principles or propositions that I proceed to consider the various items the plaintiffs are claiming.

Cloth

The evidence is that each employee of VALCO was given two pieces of cloth at Easter and another two at Christmas. The plaintiffs did not suggest or propose how many pieces of cloth each plaintiff was entitled to at the time their contracts were de facto terminated. But the defendants admitted that the plaintiffs were entitled to cloth as follows:

LOA 1—At the time they left Valco on 1 January 1984 each employee was entitled to two pieces of cloth for Easter 1983 and two pieces for Christmas 1983, making a total of four pieces for each employee in this batch.

LOA 2— The de facto date of termination was 6 February 1984. As part of the LOA agreement with them when they were asked to go home in February 1981 each employee in this batch was given two pieces of cloth for the Easter of 1983. So each employee is entitled to be given the two pieces that should have been given to himsic(3) for the Christmas of 1983.

LOA 3—The de facto date of termination for this group is 28 February 1985. In accordance with the LOA agreement with this batch, each employee collected two pieces of cloth for the Christmas of 1983 and two pieces for the Easter of 1984. What is left for each employee in this batch are two pieces of cloth that should have been given for the Christmas of 1984.

I do not think it is feasible to convert each employees entitlement to this item to cash as at the date of his de facto termination. Cloth is cloth. I therefore order that the defendant should arrange to give to each employee the number of pieces of cloth he is entitled to. It should be left to each employee to decide what he would like to do with the cloth that is given to him or he is entitled to. If he wants to commute his entitlement into cash it should be a matter between him and the defendants; or he may sell it when he receives it. It is entirely up to him.

[p.884] of [1997-98] 1 GLR 867

Food packages

Each year the defendants supplied to each employee food packages, some free, others for purchase. The plaintiffs’ witnesses disagreed as to how many packages were supplied in a year: one said eighteen, the other fourteen. The defendants say it was twelve. I accept the defendant’s figure. Of the twelve packages, six were supplied free of charge while the others were sold to the employees. Each package contained items like cooking oil, corned beef, sugar, rice, tuna and ovaltine. There was some dispute about the value of each food package. But I accept the evidence that the value was about US$31.67. I also accept the evidence of the defendant as to the number of packages owed to the plaintiffs at the respective dates of their de facto termination. By the defendant’s own admission, there were the food package entitlements of the plaintiffs as at the respective dates of their departure from VALCO:

LOA 1—One supplementary food package (to be purchased by the plaintiffs). Six regular food packages (free).

LOA 2—Two supplementary food packages (to be purchased by the plaintiffs). Five regular food packages (free)

LOA 3—One supplementary food package (to be purchased by the plaintiffs). Seven regular food packages (free).

The plaintiffs who want to have the supplementary food packages should pay for them, but they should not be compelled to do so.

The values of the food packages were denominated in dollar. They should remain in dollar. A dollar is a dollar. This court has jurisdiction to award damages in foreign currency: see Royal Dutch Airlines (KLM) v Farmex Ltd [1989-90] 2 GLR 623, SC. So I see no reason why an obligation which is denominated in dollar should be converted into cedis before payment. The Supreme Court order only proposed to the court; that it may convert all these allowances and benefits, into cash, if feasible. So this court has a discretion in the matter. I think the whole purpose of giving food packages would be defeated if their values as at the respective dates of the plaintiffs’ de facto termination are used since the amount in cedi cannot buy even two tins of milk.

[p.885] of [1997-98] 1 GLR 867

Rent subsidy, annual bonus, end-of service benefits

There does not appear to be any dispute about the claim for these allowances or benefits.

Rent subsidy—In accordance with article 37 of the collective agreement 1980-83 which at all relevant periods was the applicable agreement, each plaintiff is entitled to 25 per cent of his monthly base pay between the date they were sent home and the date of his de facto termination. By base pay is meant the base pay including increments payable to a plaintiff as at the date of the de facto termination.

Annual bonus—Every plaintiff who on termination had had eleven months’ service is entitled to be paid an annual bonus under article 39 of the collective agreement 1980-83 at the rate of 250 per cent of his monthly pay as at the respective date of his termination. Employees with less than eleven months service will receive pro-rated payment. The bonuses are payable in respect of:

LOA Phase 1—Bonus in December 1983 and December 1984.

LOA Phase 2—Bonus in December 1983.

LOA Phase 3—Bonus in December 1984.

In calculating the amounts payable annual increments and increases in salary should be included.

End-of-service benefits—Under article 40 of the 1980-83, on being declared redundant each plaintiff became entitled to an end-of-service benefit of 200 per cent of his monthly base pay as at the respective date of his termination for each completed year of service. This should be paid.

Provident Fund—All regular employees were members of the company’s provident fund and were required to pay five per cent of their salaries into it while the employer, the defendants, contributed ten per cent: see article 44. On redundancy the employee was entitled to have his contributions paid back to him plus a certain amount or percentage paid by the defendants depending upon the number of years served by the employee. The defendants admits and I order that these provident fund contributions should be paid back to the employees plus any differences arising out of wage adjustments during the LOA periods of fourteen, twelve and fourteen months.

[p.886] of [1997-98] 1 GLR 867

Long service award

Article 52 of the collective agreement provided that the company agreed to continue its long service award programme for its employees. The items for the award was to be discussed between the company and the union. The parties did not agree on how long a person should serve before he could qualify for long service award. The plaintiffs said five years, the defendants ten.

I prefer the defendants’ evidence because five years in any employment cannot be called long. Only those who had qualified for this award at the respective dates of termination can be awarded it. Details of the award were not fully given before this court. But it would appear from the defendants’ own explanatory notes, the plaintiffs’ data and computation relating to the LOA which was tendered in evidence that the value was denominated in dollar. The defendants converted it into cedis. As I have said, such conversion is unnecessary. So the award should be given to the beneficiaries in the form agreed between the defendant and the union or in the dollar value thereof if that was what was agreed.

Annual leave

The defendant argued that technically the plaintiffs were not entitled to annual leave during the LOA because, according to them, to be entitled to annual leave a person must have physically worked for at least 200 days.

In my opinion the plaintiffs were entitled to annual leave during LOA. There are several types of leave. The enjoyment of one does not preclude the enjoyment of the other in the same year. Thus a women may go on maternity leave and enjoy annual leave in the same year. However, unless there is provision for payment of an additional salary during annual leave, an employee on leave continues to receive only his normal remuneration during leave. However, article 36 provides for payment of 100 per cent of month base pay as travelling expenses. This should be paid to every eligible plaintiff. And that is all they should get in respect of annual leave.

Lunch

The plaintiffs claim that while they were still employed they were entitled to free lunch when they went to work. But when

[p.887] of [1997-98] 1 GLR 867 they were asked to stay at home they could not go and eat the lunch. They say it was not their fault that they could not go to work to eat lunch during the LOA. Since the LOA has been declared null and void by the Supreme Court they should be treated as if they had gone to work and the lunch that they would have eaten should be given to them in cash at the rate of US$8 per lunch.

I do not think they are entitled to this claim. As they themselves admitted, the free lunch was intended to feed employees while they were at work. An employee who for any reason apart from absence on union duties—was absent from work, could not claim it. He could not send his wife or child to go and “take it away” for him. I do not see why the plaintiffs should be paid the value of lunches they could not take because they were away on LOA.

However, in the case of LOA Phase 3 employees, the defendants agreed to give them one food package each in April, July and October 1984 to “compensate” for the loss of lunches which they would have otherwise got between the 15 November 1983 (the date of the undertaking) and 31 December 1983. Each employee in the third batch of LOA should therefore be given additional three free food packages on the same terms as ordered above in respect of regular food packages.

Shift allowance

This allowance was paid to employees who worked throughout the night or partly in the night. It was obviously intended to compensate workers for the inconvenience of working the whole night or part of the night. It was for this reason that workers who worked only in the day time were not entitled to shift allowance.

All this is clear from article 49 of the collective agreement. Under this article, to qualify for shift premium for “graveyard” shift of six cedis the employee must have worked for a minimum of two hours; and for swing shift allowances of three cedis for a minimum of four hours. The allowance was payable for each day that an employee worked on shift. It is clear that for an employee to qualify for the allowance he must have reported physically for the shift and worked for the prescribed minimum number of hours. If for any reason he was absent he did not get paid shift allowance.

[p.888] of [1997-98] 1 GLR 867

In my view, while the plaintiffs were away on LOA, they did not qualify for any shift allowance and so their claim for this allowance should be rejected.

Discomfort allowance

This allowance was paid to workers who worked in areas which were dusty or noisy or where temperatures were very high. It was calculated on a daily basis. The employee had to work in a discomfort area before he could qualify for the allowance. So employees who worked in the comfort of an office or some area outside a discomfort area or were absent from work, did not qualify for it.

In my opinion, while the plaintiffs were away on LOA, even those among them who normally worked in discomfort areas could not qualify for this allowance. The plaintiffs’ claim for this allowance is rejected.

VALCO incentives programmes and safety awards:

In order to boost productivity and ensure maximum safety the defendant instituted elaborate safety programmes. VALCO also competed with Kaiser Corporation subsidiaries in other parts of the world in safety programmes. The plaintiffs are claiming awards they say were won or made during the LOA.

Safety awards—Under article 30 of the collective agreement the defendants agreed to continue to make reasonable provisions for the safety and health of their employees during the hours of work. They also undertook to continue to provide protective devices, wearing apparel and other equipment necessary to protect employees from industrial injury or disease. They promised to communicate and discuss relevant safety issues from time to time with the union. It must be pointed out that apart from this provision, the defendants have a statutory duty to ensure the safety of their worker. In my opinion, the safety programmes instituted by the defendants were more than a gentleman’s agreement but were for the discharge of their legal obligations.

There were several safety programmes: (a) international safety competition; (b) a plant safety achievement award; (c) a departmental safety achievement award; (d) an inter-depar

[p.889] of [1997-98] 1 GLR 867 ental safety competition; and (e) the intra-departmental trimester award.

International safety competitions. For this award VALCO competed with subsidiaries of Kaiser International in other parts of the world. VALCO has won it on some previous occasions. There is unchallenged evidence of Mr Asante Amankwah, a defendant witness, that although two awards were won in 1983 (ie the Progress Award and Significant Award for Safety) they did not go with cash payments. Only plaques and recognition statements were given. I accept this evidence and reject the plaintiffs’ claim for cash payments under the international safety competitions.

LOCAL COMPETITIONS. Plant and departmental safety Achievements. The defendants admit that “regarding local competitions some awards were made.” The details are set out in exhibit AA entitled: “PLANT AND DEPARTMENTAL SAFETY ACHIEVEMENTS/AWARDS 1 November 1982 through 1985.” I have decided to incorporate the whole of this document in my judgment for its full effect.

There is evidence from the defendants’ own witness, Mr Asante Amankwa that if VALCO won an internal competition all its staff, including those on sick, annual or other leave shared in the awards that were made. Similarly, if a department won an inter-departmental award or a group within a department won an intra-departmental competition all members of the department or group, including those who were legitimately absent on leave, enjoyed the award that was given.

But counsel for the defendant strenuously argued that the LOA programme, which was declared void, cannot be likened to annual leave, sick leave etc. They argued:

“The LOA programme is a peculiar case and it ought to be looked at as such. It was a very large group which had to go home for a long time in a redundancy situation. The safety award as the evidence clearly shows was aimed at reducing or eliminating on-the-job accidents and injuries. During the LOA periods targets were set for those on the job. Unlike persons on annual leave, sick leave, maternity leave and casual leave who were taken into consideration in setting these targets, because it was certain they were still in the

[p.890] of [1997-98] 1 GLR 867 stream and any of them would join it at any time, it cannot be said that the targets set during the LOA period took the plaintiffs into consideration.”

In answer to this it must be said that the plaintiffs were de jure employed until the respective dates of their termination. They expected to go back. The company had promised to re-employ them first when conditions improved. They were absent from work at the insistence of the defendants. So I do not see any difference between their position and that of people on sick or annual leave. If those people could enjoy safety awards won during their leave, then employees who were sent on LOA should also be able to do so. So the plaintiffs whose departments or groups won inter-departmental or intra-departmental safety competitions during the LOA are entitled like those who were on the job, during their LOA.

Exhibit AA fully sets out the details of achievement type, award value, and eligible employees with necessary comments. It is reproduced here. The parties should work out each eligible plaintiff’s entitlement and report to me at the next adjourned date.

The awards were denominated in dollar and should remain denominated and payable in that currency. [The court then set out and incorporated in the judgment the “Plant and Departmental Safety Achievement Award-November 1982 through 1985” indicating the awards and the respective beneficiaries and then continued.]

VALCO incentive programme or BOT

This programme is not mentioned in the collective agreement. It was a production based programme which was instituted by management. I accept the evidence of the defendants that it could be suspended by management if they did not think it was in the interest of the company and that it was suspended at the end of 1982. I therefore make no award in respect of the item.

Medical coverage

During the LOA programme plaintiffs were entitled to full medical cover. It seems they took advantage of it. No outstanding

[p.891] of [1997-98] 1 GLR 867 claim was put before this court. So I make no award in respect of this item.

Education

There is no evidence that any education allowance remains unpaid. So I make no award in respect of this item.

Interest

Interest on the sums of money awarded by this judgment will be as follows:

Interest on arrears of salary under paragraph (a) of the Supreme Court order and twelve months’ salary as damages under paragraph (b) shall be at the prevailing bank rate in terms of the High Court (Civil Procedure) (No 2) Rules, 1977 (LI 1295) with effect from the respective dates of the plaintiffs’ termination until the date of payment into court in compliance with the order of Brobbey JA on 2 July 1995, in respect of money so pre-paid.

No interest shall be paid after that date on any money paid into court in compliance with Brobbey JA’s order. It is not the fault of the defendants that the plaintiffs did not go to collect the money or did not even know that such an order had been made and money paid into court. When they decided to change their solicitor they should have filed a notice of change of solicitor under Order 7, r 2 of the High Court (Civil Procedure) Rules, 1954 (LN 140A). That rule states that unless and until notice of any change of solicitor is filed and copies are lodged and served in accordance with paragraphs (2) to (5) inclusive of the rule, the former solicitor shall be considered the solicitor of the party until the final conclusion of the cause or matter. The solicitors for the defendants therefore acted properly when they served notice of payment into court on the solicitor the plaintiffs say they had removed.

The rule is that no interest is payable on money paid into court by the party who paid it. The defendant having done what the court (Brobbey JA) had asked them to do, should not be liable to pay any further interest after the date of payment.

Sums of money awarded in cedi under paragraph (c) of the Supreme Court order shall bear interest in the same terms as interest on sums of money awarded under paragraphs (a) and (b) as specified above.

[p.892] of [1997-98] 1 GLR 867

Any new payments in cedi ordered today or any difference between any sum of money already paid into court and any amount ordered by this judgment shall bear interest at the prevailing bank rate from the respective dates of the plaintiffs’ de facto termination to the date of this judgment.

Interest on any sum of money payable in dollar should be at the rate of the United States Federal Reserve Bank prevailing as at the date of this judgment: see Royal Dutch Airlines (KLM) v Farmex Ltd (supra).

The case will be adjourned to allow the entitlements of each plaintiff to be worked out fully so that on the next adjourned date judgments for specified sums or awards can be made in respect of each plaintiff.

DECISION

Judgment accordingly.

Endnotes

1 (Popup – Footnote) sic same in original. 2 (Popup – Footnote) sic same in original. 3 (Popup – Footnote) sic same in original.