OGOE vs. L’AIR LIQUIDE CO., LTD. [1973] 1 GLR 195

CASES REFERRED TO

(1) Re African Association, Ltd. and Allen [1910] 1 K.B. 396; 79 L.J.K.B. 259; 102 L.T. 129; 26 T.L.R. 234, D.C.

(2) Boston Deep Sea Fishing and Ice Co. v. Ansell (1888) 36 Ch.D. 339; [1886-90] All E.R. Rep. 65;

59 L.T. 345, C.A.

(3) Cyril Leonard & Co. v. Simo Securities Trusts Ltd. [1972] 1 W.L.R. 80; [1971] 3 All E.R. 1313, C.A.

(4) Arkhurst v. Ghana Museum and Monuments Board [1971] 2 G.L.R. 1.

(5) Sinclair v. Neighbour [1967] 2 Q.B. 279; [1967] 2 W.L.R. 1; [1966] 3 All E.R. 988; 1 K.I.R. 451, C.A.

[p.197] of [1973] 1 GLR 195

(6) Koranteng v. S.C.O.A., Court of Appeal, 24 April 1967, unreported; digested in (1967) C.C. 92.

NATURE OF PROCEEDINGS

ACTION for general and special damages for wrongful dismissal. The facts are fully set out in the judgment.

COUNSEL

Joe Reindorf for the plaintiff.

Charles M. Cann for the defendant.

JUDGMENT OF ABBAN J.

In this action the plaintiff is claiming general and special damages for wrongful dismissal. The defendant company admits that it dismissed the plaintiff summarily from its employment, but it contends that it did so on good grounds.

The facts are that the defendant, a French company (hereinafter referred to as the company) carrying on business in Ghana, employed the plaintiff as chief clerk in 1957, on the salary of £G20 a month. When the present dispute arose, the plaintiff had worked for the company in various capacities and his salary had been increased to ¢180.00 a month. In 1969, the plaintiff was in charge of the company’s new depot at Tema and there were other officers of the company working under the plaintiff.

At the depot, the plaintiff was in control of the company’s accounts. That is, he received payments of moneys intended for the company and paid the same into the company’s banking account; and he was also responsible for making purchases on behalf of the company. The plaintiff therefore kept two separate accounts—an account of moneys received and an account of moneys paid out. There is a petty cash box at this depot. It was out of the money kept in this box that the plaintiff was authorised to make the required purchases for the company.

Some time in or about February 1969, the plaintiff was in some financial difficulties, and in consequence thereof, he resorted to the petty cash box and took therefrom the sum of ¢160.00 without first obtaining the consent or permission of the company. A check of his account’s books was made by the assistant accountant of the company who came from Accra. During the check, the petty cash box from which the plaintiff had taken the ¢160.00 was also checked, and, as could be expected, it was found to be short of ¢160.00. The plaintiff tried to explain away the absence of the ¢160.00, and promised to refund the amount. The said assistant accountant, not being convinced of the plaintiff’s explanation, reported the disappearance of the ¢160.00 from the petty cash box to his superior officer, the Ghana Manager of the company, in Accra.

The Ghana Manager then deputed his next in command, the assistant Ghana Manager, together with the said assistant accountant to go back to the Tema Depot, and to inform the plaintiff of the company’s disapproval of his conduct of taking money from the cash box for his personal use without first seeking the approval of the company. The plaintiff repeated to this delegate his earlier promise to refund the

[p.198] of [1973] 1 GLR 195 amount. He further explained that he did not intend to steal the money. He only used it in settling maintenance bills in respect of his private car which he was using partly for the business of the company; and because he had the intention to refund it, he left in the petty cash box an I.O.U. chit to indicate that he had taken the ¢160.00 as a loan which was to be repaid at a later date.

The plaintiff said this I.O.U. chit was picked from the petty cash box by the assistant accountant who first checked the plaintiff ‘s account books, and was taken away by this officer to Accra. According to the plaintiff, the assistant Ghana Manager and the assistant accountant, who came to interview him at the Tema depot, on the instruction of the Ghana Manager, accepted his (plaintiff ‘s) explanation and agreed that the ¢160.00 should be treated as a salary advance refundable by 15 February 1969. A note to that effect was signed by the plaintiff and he in fact refunded the ¢160.00 some time before the said 15 February. After the said refund the plaintiff wrote a letter, exhibit D, to the company rendering his profound apology for what he did. This letter is of utmost importance and I will set out its contents in extenso.

“Dear Sir, I borrowed N¢160.00 from the petty cash box against an I.O.U. chit, without first obtaining your permission.

However this has since been replaced. I did not do this with any bad motive nor with the intent to defrauding the company; but being very much faced with some financial difficulty and counting so much on the promise of an overdraft by the bank to meet this pressing demand, I utilized this amount just to have it paid back immediately I get the overdraft.

I agree that I am not to do this without first obtaining your approval, and I hereby render my deepest apology for this error on my part. I promise that this will not happen again and with this letter, I give the undertaking that as from today’s date up to the 6th February, 1970, if anything of this nature happens again, or anything adverse is found with my duties, I am to hand you my resignation.

Yours faithfully, (Sgd.) E. V. Ogoe.”

Notwithstanding this apology and the refund, the company on 26 February 1969 dismissed the plaintiff from its service. The letter of dismissal, exhibit F was in the following terms:

“Mr. Emmanuel Victor Ogoe, c/o P.O. Box 24, TEMA.

Dear Sir, We regard the reason you gave us, namely, that you were very much faced with some financial difficulties and counting on

[p.199] of [1973] 1 GLR 195 the promise of an overdraft by the bank, for the shortage of ¢160.00 we discovered in your accounts, to be unsatisfactory.

You are aware that you misappropriated funds belonging to the company when you were in charge of Kumasi depot and you were as a result of this transferred to head office, Accra.

You will agree that it’s not possible for us to retain you in our employment because of such gross misconduct on your part and as such we hereby terminate your services with immediate effect. Please, call at the accountant office for your entitlement, if any.

Yours sincerely. for L’AIR LIQUIDE (Sgd.) Alain Fix Ghana Manager.”

On the receipt of this letter, exhibit F, the plaintiff issued the present writ of summons. The plaintiff in his pleadings and in his evidence denied all allegations of misappropriation. He contended that, on the contrary, he was transferred from Kumasi to Accra on promotion; and that the taking of the ¢160.00 from the petty cash box, in the circumstances as explained, could not amount to gross misconduct so as to warrant the termination of his service without reasonable notice.

The Ghana Manager of the defendant company, who testified on behalf of the company stated that the plaintiff, when he took the ¢160.00, never left any I.O.U. chit in the petty cash box, neither was his explanation for taking the money acceptable to the company. To the company, the plaintiff intended to steal the ¢160.00. He said when the theft was discovered the company decided to get rid of the plaintiff from the service of the company, as it was then realized that the plaintiff had still not changed from his dishonest conduct of misappropriating the company’s funds. He further stated that the company at first gave the plaintiff a chance to resign, and when he refused to do so, the company by its letter, exhibit F, dismissed the plaintiff from its service.

The first question to be decided is whether in the circumstances of this case the conduct, which the company complained of, was such that the company could use it as a ground to terminate the plaintiff ‘s service without notice. It may be observed that the plaintiff was employed for an indefinite period. Where a servant is employed for an indefinite period, he cannot be dismissed, except where justified, unless he receives reasonable notice or an advance in salary in lieu thereof. Because, in nearly all such cases, the law will imply an obligation to give reasonable notice of intention to terminate the employment. Even where the engagement is for a specific period and the agreement provides that the employer may, at his own absolute discretion, terminate the engagement at any time before the period specified in the agreement, it will be implied that in the absence of misconduct, that power to terminate the engagement at an earlier date than that specified

[p.200] of [1973] 1 GLR 195 could only be exercised after giving reasonable notice: see Re African Association. Ltd. and Allen [1910] 1 K.B. 396 at p. 400 per Lord Alverstone C.J.

Turning now to the facts, I think the plaintiff ‘s behaviour amounted to gross misconduct, and that he was not entitled to any notice of termination of his service. It appears to me that the plaintiff, when he took the ¢160.00, did not leave any I.O.U. chit in the petty cash box. I am of the view that he surreptitiously took the amount and he never, for a moment, anticipated that there would be a surprise check of his accounts. I believe that when the shortage was discovered the explanation offered by him was so implausible that it was not accepted by the company.

I also find that the regulations of the company, of which the plaintiff was aware, forbade employees to take the company’s money for their personal use. As I have said, the plaintiff never in fact left any note in the form of an I.O.U. in the petty cash box, neither did he make any record in his account books that he had borrowed the ¢160.00. To my mind, this kind of conduct is not susceptible of an innocent interpretation. It is not only a clear case of dishonest conduct of an employee towards his employer, but also a case which shows that the plaintiff is unfit for a position of trust and confidence. The plaintiff was, indeed, guilty of untrustworthy conduct, and such misconduct, in my opinion, merited immediate dismissal.

It is a well-established principle that a servant can be dismissed instantly, when his conduct is such that it not only amounts to a wrongful act inconsistent with his duty towards his master, but is also inconsistent with the “continuance of confidence between them.” It is the revelation of character which justifies dismissal: see Boston Deep Sea Fishing and Ice Co. v. Ansell (1888) 38 Ch.D. 339 at p. 363, C.A. per Bowen L.J. In that case, Cotton L.J. and Bowen LJ. in their respective judgments at pages 352 and 364, even went further to hold that where an employee has, in fact, been guilty of uncondoned misconduct so grave that it justifies instant dismissal, the employer can rely on that misconduct in defence of any action for wrongful dismissal, even if at the date of the dismissal, the misconduct was not known to him. The Boston Deep Sea Fishing case (supra) has recently been approved and followed by the Court of Appeal in England in the case of Cyril Leonard & Co. v. Simo Securities Trusts Ltd. [1971] 3 All E.R. 1313, C.A. See also Arkhurst v. Ghana Museum and Monuments Board [1971] 2 G.L.R. 1 at p. 7 where the following was stated:

“An employee owes a duty of fidelity to his employers. If therefore the employee does any act incompatible with due and faithful discharge of his duty to his employers the employers have every right to dispense with his services.”

It must be remarked that whether the plaintiff intended to refund the ¢160.00 or not was neither here nor there. Because the fact still

[p.201] of [1973] 1 GLR 195 remained that he had no right to help himself to his employer’s money in the way he did and even if it is assumed that he left an I.O.U. chit in the petty cash box, that would not make any difference. For he was not entitled to borrow money from the petty cash box to settle his private debts when he had not first sought permission from the company.

Sinclair v. Neighbour [1966] 3 All E.R. 988, C.A. is a classical case on this point. Here, as appearing in the headnote, S. a manager of a betting shop, openly, but without his employer’s knowledge, took £15 out of his employer’s till and put in an I.O.U. for the money, and used the £15 to place a bet of his own elsewhere. On the next day, he repaid the £15. S. knew that if he had asked his employer for permission to borrow the money from the till, the employer would have refused it. Later on when the employer discovered what had happened, he dismissed S. instantly without notice. S. brought an action for wrongful dismissal against the employer and the Court of Appeal in England held at p. 988 that S.’s conduct, even if it was honest, “was inconsistent with his duty towards his employer and with continuance of the confidential relationship of master and servant:” and in the circumstances the employer was justified in dismissing him summarily.

In reading his judgment, Sacks L.J. at pp. 990-991 said, “To state those facts quite simply seems to me enough to make plain that here indeed there was beyond a peradventure misconduct of a type which justified instant dismissal.” The learned Lord at p. 991 continued:

“As between the employer and the employee (and that seems to me to be cardinal matter), where the former deliberately takes money illicitly behind the back of his employer and appropriates it, even temporarily, for his own use, knowing that the employer would disapprove, that is sufficient, to my mind, to establish that as between the employer and the employee that conduct is dishonest.”

Learned counsel for the plaintiff submitted that even if it is found that the taking of the ¢160.00 amounted to gross misconduct, the company, by agreeing later on to treat the amount as salary advance to the plaintiff, should be taken to have condoned the said misconduct. With respect to learned counsel, I do not share this view. Whether or not the company condoned the dishonest conduct of the plaintiff is a question of fact, and the burden lies on the plaintiff to prove it, since the company has been able to prove facts which justify the dismissal: see Koranteng v. S.C.O.A., Court of Appeal, 24 April 1967, unreported; digested in (1967) C.C. 92. In the course of reading his judgment, Azu Crabbe J. A. (as he then was) said, “In an action for wrongful dismissal the onus is on the servant to prove that his master has waived his right to dismiss him, if the master alleges in his pleadings and proves facts which but for that waiver would justify dismissal.”

In the present case the plaintiff has failed to discharge the onus of proof that lies on him. As explained by the Ghana Manager in his

[p.202] of [1973] 1 GLR 195 evidence, which I accept, when it was found that the plaintiff had stealthily made use of the company’s ¢160.00, the company decided to dismiss the plaintiff summarily. But at the same time the company was bent on deducting the amount from the salary of the plaintiff; and because of the nature of the accounting system of the company, the said deduction could not easily be made. The company’s accounting system has columns for loss through thefts. But moneys specified under those columns are not to be refunded out of anybody’s salary. So that if the company treated the amount as a loss through theft the company could not recover it from the plaintiff ‘s salary. Thus for the sake of convenience and to make it possible to deduct the ¢160.00 from the plaintiff ‘s salary, the company was compelled to classify the amount as having been advanced to the plaintiff. By this classification the company was able to take the ¢160.00 from the plaintiff ‘s salary without any accounting difficulty. It is interesting to note that far from the company condoning the misconduct, when the company found the plaintiff ‘s explanation most unconvincing, the company gave the plaintiff two alternatives. That is, the company asked the plaintiff either to tender his resignation and go away quietly, or he should be prepared to face summary dismissal.

The plaintiff pleaded for time to make up his mind and the company allowed him some few days. However, instead of a letter of resignation, the plaintiff wrote the letter, exhibit D, asking for forgiveness.

The company, by giving opportunity to the plaintiff to make up his mind as to which of the two alternatives he would choose, and by simply classifying the amount as salary advance for accounting purposes as explained above, could not be taken to have condoned the gross misconduct of the plaintiff. I am satisfied that from the moment the company became aware of the plaintiff ‘s dishonest conduct up to the time the letter of dismissal was handed over to the plaintiff, the company never, in any way, gave the plaintiff the impression that it was not going to exercise its right of summary dismissal. I therefore find that the company did not condone the plaintiff ‘s gross misconduct.

In the circumstances, I hold that the defendant company was justified in dismissing the plaintiff. The plaintiff ‘s claim therefore fails and the same is hereby dismissed, and judgment entered in favour of the defendant company. The defendant is awarded costs assessed at ¢150.00, inclusive.

DECISION

Judgment for the defendant company.

S.O.