OVERSEAS BREWERIES LTD v. AGAH [1968] GLR 192

DIVISION: HIGH COURT, ACCRA

DATE: 28 FEBRUARY 1968

BEFORE: CAMPBELL J.

NATURE OF PROCEEDINGS

APPEAL against the judgment of the circuit court awarding damages to the respondent for wrongful dismissal. The facts are fully set out in the judgment.

COUNSEL

Bannerman-Menson for the appellants.

R. T. Seglah for the respondent.

JUDGMENT OF CAMPBELL J.

This is an appeal against the decision and judgment of the Circuit Court, Accra, delivered on 12 March 1965. The defendants-appellants were in that court sued by the plaintiff-respondent

[p.194] of [1968] GLR 192 for wrongful dismissal and the court gave judgment in favour of the respondent on the ground that the summary dismissal by the appellants of the respondent was wrongful and contrary to exhibit 3 which was a collective agreement entered into between the appellants and the appropriate negotiating body for and on behalf of the respondent and incorporated in the respondent’s terms of employment.

Both on the pleadings and on the basis of the evidence adduced in the court below, there was no disagreement that under the terms of the collective agreement entered into between the appellant company and the Industrial, Commercial and General Workers Union pursuant to section 17 (2) of the Industrial Relations Act, 1958 (No.56 of 1958), the appellant company was entitled under circumstances specified in article IV (1) of the aforesaid collective agreement to exercise the powers of summary dismissal of employees who were members of that union and also that the respondent was a member of the union. There was further no disagreement that under the gratuity scheme of the appellant company, employees were entitled to gratuity under normal circumstances but that they forfeited the same if their employment was terminated by reason of theft or misconduct and that the respondent was aware of this. There was further no disagreement that the appellant company had issued free of charge “goggles” for use as protection to the eye to all employees engaged in taking bottles of beer from the conveyor belt in the bottling plant of the factory for packing into crates.

The respondent in his evidence before the circuit court admitted that he was given goggles for use when removing bottles from the conveyor belt for package into crates; he admitted knowledge that the removal of the goggles from the eye was strictly forbidden when bottles were passing down on the conveyor belt; he further admitted that all employees including himself were warned that if they took off the goggles while actually working on the bottles disciplinary action would be taken against them. He admitted knowledge that it was dangerous to remove the goggles from the eye in such circumstances. His case was that he never took off the goggles while actually working, he usually did so only after the bottles had been packed and during intermittent stoppages of the conveyor belt. On the day in question, he had his goggles over his forehead and away from his eyes only when there were no bottles before him, and none was coming to him on the belt. On his own evidence there was no denial that on that particular day in question he did at the material time, when he was seen, have the goggles away from his eyes. The appellants’ case was that the respondent was seen with the goggles away from his eyes on to his forehead while he was engaged in removing bottles from the conveyor belt; this evidence was given

[p.195] of [1968] GLR 192 by the assistant technical manager of the appellant company and by the headman of the respondent who worked in the beer bottling and packing plant of the company. These witnesses further testified that the respondent had on at least three previous occasions been seen working without his goggles, and had been warned not to do so; shortly before the dismissal, the appellants through one of their employees who was also the branch union secretary of the respondent’s union had warned the employees at a meeting attended by the respondent, that the failure to wear the goggles provided when working on the conveyor belt would result in immediate dismissal.

Learned counsel for the appellant at the hearing of the appeal argued:

“that the learned trial judge failed to consider adequately the case put forward by the defendants as to whether the plaintiff’s conduct on 6 August 1963, after repeated warnings by the defendants constituted disobedience and disregard of the order issued by the defendants.”

Learned counsel for the respondent on the other hand submits that the judgment is clear and comprehensive, and that the court had not failed adequately to consider the case put forward by the defendants.

With deference to the learned trial judge, it is my opinion that he did not analyse fully the real issue which called for determination in the case before him, the issue which called for determination was not whether the respondent was seen with his goggles pushed back over his forehead on one or more occasions simpliciter, but whether he was seen on the occasion of his dismissal and, or, on other occasions with the goggles away from his eyes when actually engaged on the conveyor belt removing beer bottles for packing into crates. The appellants freely admitted that there was no absolute prohibition against pushing back the goggles from the eye merely because the respondent was at work in the general sense, they admitted that he could do so when the conveyor belt was not in motion, or even when it was in motion provided the respondent moved away from the said conveyor belt; what was expressly prohibited was for the respondent to remove the goggles while actually engaged in lifting bottles from the moving conveyor belt. The respondent fully cognisant of this prohibition, did not seek to justify his disobedience in having the goggles over his forehead while working on the moving conveyor belt even on grounds that he was suffering some inconvenience arising from profuse perspiration or difficulty in seeing; the gravamen of his case was that he never removed the goggles while moving bottles off the conveyor belt, he did so only after he had completed the removal. This is manifest in what he said under cross-examination and I quote: [p.196] of [1968] GLR 192

“I only took them off after I had finished working on the bottles. Water was going into my eyes so I had to wipe my face. I took the goggles off because the place was hot and I was perspiring and not because I could not see. I can see well. I could also see well at the time when I was working for the defendants: there was nothing wrong with my eyes.”

It is therefore abundantly clear, that what the learned trial judge had to decide first and foremost was whether the goggles were taken off by the respondent when he was actually working on the bottles.

The respondent admitted that there were five persons working on the bottles at the time, he did not however call any one of them to support his case that at the material time when he had the goggles off, there were no bottles on the moving conveyor belt, or that he had finished working on the bottles even though the suggestion was put fairly and squarely to him under cross-examination. On the other hand the appellants’ witnesses gave evidence that the respondent was seen on the day of his dismissal with his goggles off while working on the conveyor belt. Under thorough cross-examination they stood their ground and emphasised that the respondent had even been previously warned. The credibility of the witnesses was consequently of vital moment since the appellants’ dismissal of the respondent could be justified, if at all, on their own evidence, only if he had removed the goggles in the circumstances stated by them, as only in such circumscribed situation was the removal of the goggles strictly forbidden. The respondent in my opinion, contradicted himself on many vital issues in his evidence; firstly in his examination-in-chief he said he was never warned by the union secretary at any time to put on his goggles at work; under cross-examination he further said he was never warned by anybody about not using the goggles, yet in the same breath he admits this fact, for, he said: “all the labourers were warned that if they were working on the bottles we must wear our goggles.” Further on he said: “It is a fact that all of us were warned that if we took off the goggles while we were actually working on bottles disciplinary action would be taken against us.”

He was cross-examined on his instructions to his solicitor largely on the reason he gave for taking off his goggles on the day in question. This document exhibit 1 showed that the reasons given were that he was packing beer on 6 August without the usual spectacles because he could not see properly when he used the said spectacles that day. He was asked to use the said spectacles by one of the managers, he complied with the order and used the spectacles till he completed the work. After completing the work he took off the spectacles because [p.197] of [1968] GLR 192 he was suffering from the eyes. The manager who had ordered him to use his goggles got annoyed and dismissed him.

The learned trial judge in considering the question of credibility found that there was no conflict between this document exhibit 1 and the evidence given by the respondent. With respect to the trial judge I am of the opinion that the document and the evidence given by the respondent were clearly in conflict, firstly the respondent admitted in exhibit 1 that he was seen by a manager working without his goggles and was ordered to put them on, yet in his evidence he says he never ever took off his goggles when working. Secondly he said in exhibit 1 that the reason why he was working without his goggles was that he could not see properly when he used the said spectacles that day, he was suffering from the eyes. In his evidence in court he said he did not take off the goggles because he could not see, he further said he has never ever perspired so profusely that he could not see. The learned trial judge’s finding therefore, that the plaintiff’s reason for removing the goggles, namely “That he pushed his goggles back because of difficulty in seeing what he was doing owing to the presence of accumulated perspiration within the goggles and over his eyes,” is not a finding on the facts in evidence before him. In this state of conflict between the respondent’s evidence in court and his previous instructions to his solicitors two days after his dismissal, coupled with the recorded contradictions in his evidence on oath as to warnings received, it was not in my opinion open to the learned trial judge to find in favour of the respondent against the clear uncontradicted evidence of the appellants; the preponderance of evidence was in favour of the appellants that the respondent did take off his goggles when actually working on the conveyor belt and had on previous occasions been warned of the consequence of persisting in this conduct. I find in favour of the appellants that the learned trial judge erred in failing adequately to consider the case for the appellant and that, had he done so, he could not but find in favour of the appellants and against the respondent that the latter did take off his goggles when actually working on the bottles, and secondly that this was persistent conduct for which he was previously warned. Learned counsel for the appellants submits further that the trial judge misdirected himself when he held that, “Once the defendants had admitted that they dismissed the plaintiff summarily then on the particular issue of justification of that action the burden is clearly on them.” This ground of appeal as presented, is in my opinion without substance because the learned trial judge correctly stated the law as established in cases like Lush v. Russell (1849) 4 Exch. 637 and Horton v. McMurtry (1860) 5 H. & N. 667, namely, that it is for the [p.198] of [1968] GLR 192 plaintiff to prove the dismissal and for the defendant to show that it was justified because of misconduct or on some other lawful ground. However, the learned trial judge though correctly stating the law, appears to have misdirected himself as to the construction of this principle of law. I conceive it to be the law that in an action for wrongful dismissal, the plaintiff must allege and prove that his dismissal was wrongful, being without lawful cause or excuse, the defendant must allege and prove either that plaintiff was never dismissed at all which is a traverse, or he must confess the dismissal and plead and prove facts which prima facie show that the dismissal was lawful as for example disobedience of a lawful order. It is then for the plaintiff either to traverse the issuance of any lawful order whatsoever, or confess the same and plead in his reply and prove facts which show the order to be unlawful or so unreasonable as to justify wilful disobedience thereof. It is not the law that a defendant must prove that a prima facie lawful order is also reasonable, it is for the plaintiff to satisfy the court that the apparently lawful order is so unreasonable as to render it in the peculiar circumstances of the case unlawful by virtue of its unreasonableness. In two sections of his judgment the learned trial judge misdirected himself as to the true interpretation of the principle of law which he correctly enunciated. He said in the first section and I quote:

“Considering the evidence of Mr. Hutz in relation to article IV (1) I am of the opinion that the mere fact that a worker is seen with his goggles pushed back on to his forehead is not sufficient by itself to bring that worker within the scope of the article. The order of the defendant company was that eye goggles must be worn at work. In my view that order must, in order to be such a reasonable order as would fall within article IV (1) be read subject to some such qualification that an employee who actually has his goggles on his face while at work, is entitled to push them off his face for a few moments in reasonable and exceptional circumstances. To read the `goggles order’ to mean that under no circumstances can a worker push his goggles off his eyes even for a few moments and for just cause, is in my opinion to condemn that order as an unreasonable and impracticable order or rule and accordingly one that cannot come under the protective umbrella of article IV. The question then on this basis is not whether the plaintiff was seen with his goggles pushed off his eyes and on to his forehead but whether even if he did so that conduct of his amounted to misconduct of such a degree as to come within the article.” In the second section the learned trial judge said and I quote:

“I consider that the evidence given by Mr. Hutz and the other witnesses for the defence did not answer the question whether or not the plaintiff had rule when plaintiff had broken a reasonable order or rule when Mr. Hutz saw him on 6 August 1963. It seems to me that the defendants misconstrued their rights under exhibit 3 in relation to what actually happened. They seemed to think that they could dismiss summarily for a mere pushing back of the goggles from the eyes on to the forehead. What must appear from the evidence is that at the particular time when he was seen to have pushed the goggles to his forehead, the worker did not at that point of time have a reasonable excuse for having the goggles on his forehead instead of over his eyes. The plaintiff has given a reasonable explanation for his act. The defendants have failed to impress me that the plaintiff’s explanation is not so.” Now in respect of the first section quoted above the learned trial judge appears to have placed fairly and squarely on the appellants the onus of proving that the order that employees when actually engaged in working on bottles in the bottling plant should wear the goggles is a reasonable order even though the respondent never pleaded that the said order was unreasonable. As I have previously said, what the appellants had to prove are facts which show that prima facie the order made by them was a lawful one and that there was wilful disobedience of this order. It would then be for the respondent to attack the order for its unreasonableness. On the evidence, had the learned trial judge approached the problem in this way he could not have found otherwise but that the “goggles order” was prima facie a lawful order. The appellants did not deny that in reasonable and exceptional circumstances an employee could push the goggles away from the eye, this they could do when there were periodic stoppages of the conveyor belt which did occur; the evidence of the respondent in answer to a question by the court was: “The belt did not move all the time. It stopped every now and then especially when the engine was giving trouble.” Again the appellants admitted that even when the conveyor belt was in motion, the respondent could remove the goggles from his eyes by adopting the simple expedient of moving away from the conveyor belt, and on the respondent’s own evidence such a momentary moving away from and interruption in his work would not be disastrous since he said: “if I missed a bottle there was another man who would pick it up and put it in the crate.”

The evidence further disclosed that an employee was in fact injured by a flying bit of bottle for which the appellants had to pay

[p.200] of [1968] GLR 192 compensation, it was after this incident that the appellant company commenced the strict enforcement of the “goggles order” when employees were actually engaged in removing bottles from the conveyor belt. On the face of this order and on the evidence as to the conditions of its enforcement, it does not in law, or on the facts, amount to an unreasonable order. It was an order designed for the protection of the respondent and to safeguard the appellant company from excessive compensation claims which could at least increase the premiums payable for insurance against such claims.

In respect of the second section of the learned trial judge’s judgment, it is clear that he misdirected himself as to the facts and circumstances which render an otherwise prima facie lawful order unlawful for unreasonableness, the reasonableness of an explanation given by a servant for disobeying an order, prima facie lawful, does not per se render that order unlawful. The authorities as they stand establish the fact that for an order to be considered as unlawful justifying disobedience thereof, it must be shown by the servant that obedience to that order would subject him to immediate danger of violence to his person or an immediate threat to his life due to for example prevalence of disease in his work environment. In Turner v. Mason (1845) 14 M. & W. 112 a master dismissed his servant for refusing to obey an order not to leave his establishment for one night for the purpose of going to see her mother who was ill and in peril of her life. The servant in an action against the master for wrongful dismissal had specifically in her replication pleaded the unreasonableness of the order refusing her leave to attend her mother. The court held that though refusal of leave may be unkind and uncharitable it did not make the order of refusal unlawful, it would be otherwise if the order was that the servant should do something which would expose him to violence or threat to his life or health. Contrary to the finding of the learned trial judge in this case I would say obiter that following on the injury to an employee from a flying piece of bottle, an employee could well be justified in refusing to work on bottles on the conveyor belt in the appellant company without adequate protection to his eyes, and to insist on his working without goggles would likely be an unlawful order. Again in Spain v. Arnott (1817) 2 Stark. 256 a master dismissed his servant for refusing to take horses to a marsh about a mile away at the time appointed to the servant for dinner and before having the same, even though it was ready. The servant was ready to obey the order after having his dinner but not before, he having last eaten some nine hours ago. The order of the master was held to be reasonable. Lord Ellenborough had this to say at p. 257: [p.201] of [1968] GLR 192

“If the plaintiff persisted in refusing to obey his master’s orders, I think he was warranted in turning him away. He might have obtained relief by applying to a magistrate; but he was not bound to pursue that course, the relation between master and servant, and the laws by which that relation is regulated, existed long before the statute. There is no contract between the parties, except that which the law makes for them, and it may be hard upon the servant, but it would be exceedingly inconvenient if the servant were to be permitted to set himself up to control his master in his domestic regulations … the question really comes to this, whether the master or the servant is to have the superior authority.”

In Bouzourou v. Ottoman Bank (1930) 142 L.T. 535 the Privy Council adopted the reasoning and cited with approval the decision in Turner v. Mason (supra) that the master, the Ottoman Bank, was justified in treating the servant’s refusal to go on transfer to another country as disobedience which was faute grave within the meaning of the regulations which governed his employment. The servant had attacked the order of transfer as unreasonable on the grounds that he did not understand the language of the country to which he was being transferred and also that the people of the country to which he was being transferred were openly hostile to the race to which he belonged. The Privy Council repeated the criterion laid down in Turner v. Mason and found that the servant was justifiably dismissed for wilful disobedience of a lawful order amounting to misconduct. The servant had 22 years previous service with the bank, his justifiable dismissal carried with it forfeiture of any right to notice of termination and forfeiture of pension rights. It is my view that had these cases been cited persuasively to the learned trial judge he would have discerned that the principle enshrined in them is that the fact that an order may morally show unkindness or uncharitableness, or may result in hardship or inconvenience to an employee, does not make that order unreasonable, and in the particular circumstances of this case there was no evidence which could come near to unreasonableness, for reasons given elsewhere in this judgment the order was equally not impracticable. I therefore hold that though the learned trial judge correctly stated the principle of law as to the onus of proof of justification of dismissal, he misdirected himself in law as to the criterion for determining whether an order was unreasonable and consequently unlawful.

Learned counsel for the appellants further submitted that the judgment was against the weight of the evidence. Learned counsel for the respondent naturally argued to the contrary and further submitted that the fact that the appellants had previously merely warned the

[p.202] of [1968] GLR 192 respondent and had not dismissed him summarily when first he was seen not wearing his goggles is evidence that the appellants did not themselves consider such misconduct of the respondent as within article IV (1) of the collective agreement. In effect what learned counsel for the respondent is saying is that having failed to dismiss the respondent the first time he was seen without his goggles, the appellants could never thereafter elevate such misconduct as a faute grave warranting summary dismissal under article IV (1) but must comply with article IV (2); not having complied with these latter provisions, the dismissal without notice was wrongful. With respect to learned counsel’s argument I cannot accept this proposition, since it would mean that an employer must forever stand condemned for taking a lenient view of a first offender, further it would mean that because he has on one or two occasions waived his legal right to dismiss summarily he cannot thereafter notify his employee that for the future such misconduct if dersisted in will result in summary dismissal, a premium would thus be placed on cold-blooded heartlessness rather than on mercy and human understanding. The misconduct of the respondent in not wearing his goggles was dangerous and this was known to him, the fact that he was treated leniently on other occasions cannot in my opinion preclude the appellant from thereafter dealing with it as a faute grave once he has notified the respondent that he so intends to deal with such misconduct in future. The evidence establishes that he was previously warned and was strictly forbidden to do what he did, he was further warned that subsequent misconduct of this nature would result in immediate dismissal, he persisted in this misconduct, the weight of the evidence on this and other facts proved in the court, in my opinion fully established that the respondent refused or neglected to carry out a reasonable order of his employer, to wit, the wearing of goggles in the circumstances prescribed and made known to him by the appellants, this under article IV (1) of the collective agreement, and on the principle established in the cases cited, amounted to wilful disobedience of the lawful order of the appellant, this wilful disobedience was such a misconduct as to justify dismissal without notice. It was in my opinion further aggravated by the respondent’s refusal or neglect to heed the previous warnings lawfully given by the appellants and later by his own branch union secretary shortly before the dismissal when he was informed that the appellants for the future intended to deal with such misconduct under article IV (1) and not article IV (2); the misconduct was of a category which objectively and legally fell within the ambit of article IV (1). In conclusion and for the reasons given I hold that the appellants succeed in this appeal, I further hold that the dismissal without notice

[p.203] of [1968] GLR 192 of the respondent was justified in terms of article IV (1) of the collective agreement which governed the terms and conditions of his employment. The judgment of the circuit court is therefore set aside as to the claim of the respondent for salary in lieu of notice, payment of gratuity and costs. Judgment is to be entered in favour of the appellants, costs in the court below to be taxed and paid by the respondent to the appellants, in addition to costs of this appeal assessed at N¢100.00 in favour of the appellant.

DECISION

Appeal allowed.

S. K. T.