HIGH COURT, SEKONDI
Date: 24 JULY 1975
EDUSEI J
CASES REFERRED TO
(1) Vidyodaya University of Ceylon University Council v. Silva[1965] 1 W.L.R. 77; 108 S.J. 896; [1964] 3 All E.R. 865, P.C.
(2) Francis v. Municipal Councillors of Kuala Lumpur [1962] 1 W.L.R. 1411; 106 S.J. 833; [1962] 3 All E.R. 633,P.C.
(3) Republic v. Inspector-General of Police; Ex parte Wood [1973] 2 G.L.R. 113.
(4) Malloch v. Aberdeen Corporation [1971] 1 W.L.R. 1578; [1971] 2 All E. R. 1278, H. L. (Sc.)
(5) Ridge v. Baldwin [1964] A.C.40; [1963] 2 W.L.R. 935; [1963] 2 All E.R. 66; 127 J.P. 295; 107 S.J. 313; 61 L.G.R. 369, H.L.
(6) Republic v. State Transport Corporation; Ex parte Woolams, High Court, Ho, 29 May 1975, unreported.
NATURE OF PROCEEDINGS
PRELIMINARY OBJECTION to an application for certiorari. The facts are sufficiently stated in the ruling.
COUNSEL
J. A. Dawson for the applicant.
Frimpong-Boadu for the respondent.
JUDGMENT OF EDUSEI J
The applicant was a driver grade 1 employed by the State Transport Corporation, the respondents. He was involved in a motor accident in Kpeve, Volta Region, some time ago whilst he was driving the respondents’ truck No. CR 3168. On 25 July 1974, he received a letter from the regional manager of the respondents at Takoradi to account for the loss of certain items which formed part of a consignment on the truck he was driving at the time of the accident at Kpeve. The applicant, on 29 July 1974 wrote back explaining the circumstances of the loss. And on 27 September 1974 he received a letter terminating his employment. This letter is exhibit C. The applicant has therefore applied to this court by certiorari for the purpose of quashing the termination letter of 27 September 1974 on the following grounds, namely:
“(a) the letter terminating the appointment of the applicant is ultra vires the collective agreement signed on September 1973 between the State Transport Corporation and the General Transport and Petroleum Workers Union of the Trades Union Congress (Ghana);
(b) that the termination of appointment is null and void and of no effect since the procedure. adopted was contrary to the one laid down in the collective agreement;
(c) the termination was wrongful because the procedure adopted sinned against the rules of natural justice;
(d) the regional manager had no authority to terminate the appointment of the applicant.”
Learned counsel for the respondents, Mr. Frimpong-Boadu, has raised the point that the application is misconceived in that the court cannot order specific performance of a contract between a master and his servant, and the relationship between the applicant and the respondents was that of master and servant. His contention therefore is that the application be dismissed in limine because certiorari does not lie in the circumstances. If anything at all it is an action for damages for wrongful dismissal. Counsel for the applicant, Mr. Dawson, has argued the contrary and has added that the application is properly before the court.
I think it is necessary to set out some of the provisions of the Industrial Relations Act, 1965 (Act 299), since the collective agreement which is the subject-matter of this application was the creation of Act 299, section 10 (1), (2) and (4) of which read as follows:
“10. (1) An agreement concluded by a trade union through a standing negotiating committee shall, so far as the terms of the agreement permit, apply to-
(a) all employees of the class specified in the certificate and
(b) all their employers.”
“(2) The provisions of a collective agreement under this Act concerning terms of employment and termination of employment, and personal obligations imposed on, and rights granted to, an employee or employer shall be regarded as terms of a contract of employment between each employee to whom the provision applies and his employer.”
“(4) The rights conferred on an employee by a collective agreement under this Act shall be rights which cannot be waived by the employee and, if there is any conflict between a term of a collective agreement under this Act and the terms of any contract not contained in such a collective agreement, then the collective agreement shall prevail, whether or not the contract was concluded before the collective agreement.”
It is quite clear that the terms of employment of the applicant by the respondents are those contained in the collective agreement and the rights of the employee, i.e. the applicant in this case cannot be waived by the employee: see section 10 (2) and (4) of the Act. Rights and duties are corollary and I do not think the respondents can do anything contrary to the terms of the collective agreement which was the creation of the Industrial Relations Act, 1965. Articles 7 (d) and 11 (a) of the collective
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agreement are as follows:
“7 (d). ‘Disciplinary Authority’ means any person or body of persons appointed by [the] Managing Director to institute disciplinary proceedings under this Agreement.”
“11 (a). Subject to Article 8 (f) where it has been established by a disciplinary authority in accordance with Article 14 of this Agreement that an employee should suffer termination for misconduct, such an employee shall be given notice of termination or payment in lieu. Such notice shall be one (1) month for employees covered by this Agreement.”
Article 14 (a) and (d) stipulate as follows:
“(a) Whenever it is considered that disciplinary action should be taken against an employee, the disciplinary authority shall put up the charge(s) which the employee is called upon to answer in writing within forty-eight (48) hours. Failure to reply by the date specified shall be deemed that the employee does not wish to make any defence and the disciplinary authority may proceed with the appropriate punishment. If the employee’s reply is unacceptable, the disciplinary authority shall appoint a committee of three (3) members, one of which shall be a representative of the local Union who shall investigate the case and make a report thereon. At such enquiry:
(i) copies of queries/charge(s) sheet issued to an employee shall be made available to the members of the committee.
(ii) documentary evidence may be produced and witnesses may be called at the request of either the Corporation or the employee.
(iii) copies of enquiry reports shall be served on the employee and the Local Secretary of the Union.”
“(d) Letters in respect of summary dismissal and termination of appointment shall be copied to the Union.”
Again article 15 (a), (c) and (d) are also in these words:
“(a) Disciplinary action shall be taken against an employee in respect of inefficiency or any act of misconduct, such as proven insubordination, negligence, absenteeism, stealing, dishonesty, misappropriation, embezzlement, drunkenness, dereliction of duty, conscious contravention of or failure to observe lawful instructions or any other conduct or behaviour which can be proved by a disciplinary authority to bring the Corporation into disrepute.”
“(c) Where a disciplinary authority establishes a case of theft, fraud, dishonesty or any other wilfull act resulting in a loss of cash, property or revenue to the Corporation, the punishment shall be summary dismissal. In addition, the employee shall be called upon to make good the loss.”
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“(d) No employee shall suffer punishment without being given the opportunity of defending himself against the charge(s) brought up against him.”
It is quite evident that if the respondents considered the circumstances surrounding the loss of the goods on truck No. CR 3168 in Kpeve as coming under the provisions of article 15 (a) then a disciplinary authority ought to have been appointed to investigate the matter. This disciplinary authority which will be appointed by the managing director of the respondent corporation is required to put up the charges in writing for the answer of the person concerned, and if this answer is unacceptable the inquiry does not end there, but the disciplinary authority “shall appoint a committee of three (3) members, one of which shall be a representative of the local Union who shall investigate the case and make a report thereon.” I am prepared to accept for the purposes of argument that the regional manager was appointed as a disciplinary authority and that his letter (exhibit A) asking for the explanation of the applicant for the loss of the goods itemised therein constituted the charges and the applicant’s reply (exhibit B) constituted his defence. I also assume that the applicant’s explanation contained in exhibit B was unacceptable to the regional manager and the disciplinary authority. In such a situation the disciplinary authority was obliged to appoint a committee of three members to investigate the matter before, perhaps, the employment of the applicant may be terminated. But this vital procedure was not followed.
However, Mr. Frimpong-Boadu in the course of his arguments referred me to the case of Vidyodaya University of Ceylon v. Silva [1964] 3 All E.R. 865, P.C. In this case the applicant was appointed by letter as a lecturer grade 1 in the Vidyodaya University by the vice-chancellor. Later he was appointed to the post of professor and head of the department of Economics and Business Administration. Mr. Silva accepted by letter this appointment. At a later date the university council terminated his appointment and the professor sought by certiorari to quash the order of the council. The trial judge upheld the professor’s application basing himself on the ground that the council was under a duty to act judicially at the stage of ascertaining objectively the facts as to incapacity or misconduct and that as they had not acted judicially (in the sense of giving a hearing after notifying the grounds of complaint) the professor was entitled to succeed. The university took the matter on appeal to the Privy Council and the issue involved was whether there was as a matter of obligation or duty on the council to give the professor an opportunity to be heard and a duty to do all that in law is denoted by the words “act judicially.” Their lordships advised that the order of the Ceylon Supreme Court be set aside. Their lordships’ view (as stated at p. 875) was this: “It seems to their lordships that a ‘teacher’ who has an appointment with the university is in the ordinary legal sense a servant of the university unless it be that s. 18 (e) gives him some altered position.” Their lordships went on to say (at the same page) that, “He invoked a procedure which
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is not available where a master summarily terminates a servant’s employment …”
I was again referred (after arguments) to Francis v. Municipal Councillors of Kuala Lumpur [1962] 1 W.L.R. 1411, where the Privy Council held that where there has been a purported termination of contract of service, a declaration to the effect that the contract of service still subsisted would rarely be made and would not be made in the absence of special circumstances because of the principle that the courts would not grant specific performance of contracts of service. The court also held that there were no special circumstances and therefore the applicant’s remedy lay in damages for wrongful dismissal, and the declaratory judgment sought would not be made. Here the relationship between the council and the applicant was held to be that of master and servant. The principle deducible from these two cases shows that where the relationship between the parties is that of ordinary master and servant then certiorari would not lie and the remedy of the applicant lies in damages.
Mr. Dawson, counsel for the applicant, also invited me to consider two other decisions, one of which is my own, namely, Republic v. Inspector-General of Police; Ex parte Wood [1973] 2 G.L.R. 113. In this case the applicant, a police inspector, was removed from the police force and his application for certiorari was granted because the senior police officer who inquired into the charges against the applicant was not clothed with jurisdiction under the Police Act, 1970 (Act 350), and its regulations, i.e. the Police Service (Disciplinary Proceedings Regulations), 1971 (L.I. 688). The other case is Malloch v. Aberdeen Corporation [1971] 1 W.L.R. 1578, H. L. This is a Scottish case that went to the House of Lords. Here the applicant “concluded for production and reduction of a pretended resolution” passed by the corporation’s education committee to terminate his employment on the ground that he was not given a hearing. The House held that teachers in Scotland had a general right to be heard and the appellant might have had an arguable case before the committee and might have influenced sufficient members to vote against his dismissal. It was decided also that the committee was in breach of duty in denying him a hearing and the resolution and dismissal were accordingly nullities. Lord Reid in his opinion said, inter alia, at p. 1584:
“So, if in general Scottish teachers have a right to be heard before they are dismissed, then I think that the appellant had that right and that the respondents’ committee were in breach of duty in not hearing him. I fully realise that it would have been highly inconvenient to hear 38 teachers in succession. But that arises from the very clumsy machinery which had to be used if the respondents’ interpretation of the regulation is correct.
If, then, the respondents were in breach of duty in denying the appellant a hearing, what is his remedy? It was argued that it would not be right to reduce the resolution of dismissal because that would involve the reinstatement of the appellant-in effect granting specific implement of his contract of employment which the law does not permit. But that would not be the effect. There would be no reinstatement. The result would be to hold that the appellant’s contract of employment had never been terminated and it would be open to the respondents at any time hereafter to dismiss him if they chose to do so and did so in a lawful manner. Unless they chose to do that the appellant’s contract of employment would continue.
Then it was said that the proper remedy would be damages. But in my view if an employer fails to take the preliminary steps which the law regards as essential he has no power to dismiss and any purported dismissal is a nullity. We were not referred to any case where a dismissal after failure to afford a hearing which the law required to be afforded was held to be anything but null and void.”
Again I wish to refer to the case of Ridge v. Baldwin [1963] 2 All E.R. 66, H.L. where a chief police constable who was acquitted of criminal charges in a court of law was subsequently dismissed by the watch committee of the police authority of the County Borough of Brighton, purporting to act under a provision of the Municipal Corporations Act, 1882 (45 & 46 Vict., c.50). The House of Lords allowed the appeal by the chief constable and held inter alia that the failure of the watch committee to formulate charges against the chief constable and to allow him a hearing rendered their decision void and of no effect, the purported exercise of power of dismissal under the Police Act, 1919 (9 & 10 Geo. 5, c. 46), and its regulations notwithstanding. Lord Morris of Borth-y-Gest in the course of reading his opinion said at p. 102:
“My lords, I cannot think that any decision so reached can have any validity and unless later events have made it valid it ought not to be allowed to stand. Had the regulations been applied but if there had been some minor procedural failure different considerations might have applied. There was, however, no kind of compliance with them. In my judgment once there was a report or allegation from which it appeared that a chief constable might have committed an offence it was a condition precedent to any dismissal based on a finding of guilt of such offence that the regulations should in essentials have been put into operation. They included and incorporated the principles of natural justice which, as HARMAN, L.J. ([1962] 1 All E.R. at p. 850), said, is only fair play in action. It is well established that the essential requirements of natural justice at least include that before someone is condemned he is to have an opportunity of defending himself and in order that he may do so that he is to be made aware of the charges or allegations or suggestions which he has to meet: see Kanda v. Government of The Federation of Malaya of ([1962] A.C. 322). My lords, here is something which is basic to our system: the importance of upholding it far transcends the significance of any particular case.”
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In this case the parties have in a solemn collective agreement laid down the procedure to be followed when an employee is to be dismissed on stated charges. The procedure is that if the employee’s explanation is unacceptable the disciplinary authority shall appoint a committee of three members who shall investigate the case and report thereon. It is not impossible that the applicant might be able to influence all or the majority of the committee members who might advise against dismissal. And it might well also be that the State Transport Corporation would accept the recommendation of the committee not to dismiss the applicant. But no committee of three was appointed, let alone to afford the applicant the opportunity of being heard in defence. Taking into consideration the Industrial Relations Act, 1965 (which gave birth to the collective agreement), I think that the applicant had a right to be heard by the three committee members (and there is no affidavit from the respondents that such was the case) and the failure of the respondents to take the preliminary steps which in law were essential rendered them powerless to dismiss; and the purported dismissal was therefore a nullity. The applicant’s contract had never been terminated and he remained legally in his employment. In so deciding this court is not ordering a reinstatement which in effect would have been a decree of specific performance. In the language of Lord Reid in the Malloch case (supra) at p. 1584:
“The result would be to hold that that appellant’s [i.e. the applicant’s herein] contract of employment had never been terminated and it would be open to the respondents at any time hereafter to dismiss him if they chose to do so and did so in a lawful manner. Unless they chose to do that the appellant’s [i.e. the applicant’s] contract of employment would continue.”
I must, however, say that in the instant case if the collective agreement had not laid down the procedure to be followed before dismissal, I would have had no hesitation in agreeing with the respondent’s counsel that the remedy open to the applicant was an action for damages for wrongful dismissal. But here there is an element of public employment or service or support by statute or something in the nature of an office or status which is capable of protection. The cases of Vidyodaya University of Ceylon v. Silva and Francis v. Municipal Councillors of Kuala Lumpur (supra) may be distinguished from the instant application. In these two cases there was no laid down procedure between the parties in any agreement to be followed if an employee was to be dismissed though I expect that the audi alteram partem rule will be followed. In the case before me the parties by a solemn declaration in a written contract have outlined the procedure to be followed if the employers intended a dismissal of an employee, and it is my view that such a procedure must be adhered to. I cannot lend my support to a flagrant disregard of the collective agreement which evolved out of the Industrial Relations Act of 1965.
Before I conclude this ruling I must say something about the ruling of Andoh J. in the case of Republic v. State Transport Corporation; Ex parte Woolams, High Court, Ho, 29 May 1975, unreported to which I was
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referred. There, Andoh J. upheld the contention of Mr. Frimpong-Boadu that the relationship between the parties was that of master and servant and therefore certiorari did not lie and he dismissed the application. Having regard to the very terse nature of the ruling (it consists of only fifteen lines) I think Andoh J. wrote his ruling in court immediately after the arguments and his attention was not drawn to the authorities which I was privileged to consider. My view is that if Andoh J. had had the opportunity to consider the collective agreement in relation to the Industrial Relations Act, 1965, as well as the many authorities mentioned in the cases to which I was referred, (and there were no fewer than 43 cases referred to in the Ridge case) he might have come to a different conclusion. It is unfortunate that I cannot adopt Andoh J.’s decision though his decisions are generally entitled to some respect. In the result I decide that the application for an order of certiorari is proper and available in the instant case. The case is to proceed.
DECISION
Preliminary objection overruled.
Application to proceed.
