DONKOR AND OTHERS vs. GLIKSTEN (WA) LTD [1997-98] 1 GLR 799

CASES REFERRED TO

(1) Hemans v Ghana National Trading Corporation [1978] GLR 4, CA.

(2) Addis v Gramaphone Co Ltd [1909] AC 488; 78 LJKB 1122; 101 LT 466, HL.

(3) Herbert Clayton & Jack Waller Ltd v Oliver [1930] AC 209.

(4) Nartey-Tokoli v Volta Aluminium Co Ltd [1989-90] 2 GLR 341; [1909] 4 WASC 17, SC.

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NATURE OF PROCEEDINGS

ACTION by the plaintiffs against the defendant company for, inter alia, damages for their wrongful dismissal. The facts are sufficiently stated in the judgment.

COUNSEL

Edward Asante for the plaintiffs.

Micheal Xatse for the defendant company.

JUDGMENT OF ASIAMAH J.

The plaintiffs who were formerly employees of the defendant company and were sacked for allegedly constituting themselves into “an unlawful conspiracy masterminded by the plaintiffs to harass and intimidate management and to incite the other workers of the company to embark on an illegal strike” have brought this action, claiming the sum of ¢387,200 “being the total amount representing the respective monthly half salaries of the plaintiffs from December 1995 to March 1996 during which period they were unlawfully interdicted by the defendant company” and “general damages for the unlawful dismissal … by the management of the defendant company in April 1996” and “an order compelling the defendant company to give the plaintiffs their other terminal benefits in line with the company’s operating collective agreement.”

The event leading to the dismissal of the plaintiffs was traced to a letter purported to have been written by the entire workers of the defendant company to the management of the company. The signatories to this letter tendered in evidence and marked exhibit 4 were the plaintiffs. Paragraph (1) of this exhibit reads: “We workers of Gliksten (WA) Ltd are informing the management of Gliksten that due to the lock up of our two months’ salary, new pay and the back pay, we are putting down our tools with effect from 30 October 1995 until our salary and everything is okay.”

Upon the receipt of this letter management on 28 November 1995 interdicted the plaintiffs. The interdiction letter, exhibit A, was signed by the acting personnel manager. Its first and third paragraphs state as follows:

“(1) We refer to letter dated 24 November 1995 captioned ‘DEMONSTRATION AGAINST TWO MONTHS’ SALA

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Y, NEW PAY AND BACK PAY’ and other information reaching management indicating you are unlawfully inciting workers of Gliksten (West Africa) Ltd either singly or in concert with others to embark on an illegal strike, contrary to the rules and regulations of the company as contained in the collective agreement. Management views your action and those of others connected therewith as contrary to the Industrial Relations Act …

(3) On account of the above therefore, you are immediately interdicted from work whilst investigations are carried out into the matter.”

The report of the committee appointed by management to investigate the planned industrial action contemplated by the workers was tendered in evidence as exhibit 5. The committee arrived at the following conclusion:

“It was established that the planned demonstration was meant to expose Gliksten to the outside world for them to know what was happening within Gliksten, particularly on the part of the management, since they felt that the downward trend of the company was caused by the management. The intended demonstration for the two months’ salary arrears was therefore a camouflage; hence they circulated copies of the letter to outsiders without serving copies to the management.

We observed that the series of meetings which were attended by not less than 150 workers from various departments could not be ‘detected.’”

Consequent upon this report, exhibit 5, management dismissed the plaintiffs. The dismissal letter was put in evidence and marked exhibit B. It is apropos that the relevant portion of the summary dismissal letter served on the plaintiffs be reproduced. In the first paragraph of it, it is stated as follows: “We refer to our interdiction letter to you dated 28 November 1995, and write to inform you that your services with the company will no longer be required, with effect from 1 April 1996, for the following reasons:

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(1) You were found to have contravened the grievance procedures, as contained in the collective agreement, article 34.

(2) You were involved in writing, circulation and dissemination of a document which was likely to cause the employees of the company to embark on an illegal strike.”

The “grievance procedure” referred to in the letter of dismissal under article 34 of the defendant company’s collective agreement talks of resolution of “any offence” arising “between an employee or group of employees and the company or management or . . . any local disagreement of any kind pertaining to the parties … “ The interpretation section of the collective agreement does not define “offence” as used in article 34. The word “offence” is generally synonymous with crime. The Industrial Relations Act, 1965 (Act 299) which governs the contractual relationship between the employer and the employee has neither declared non-payment of a worker his salary at the end of the month to be a crime.

There is nothing said in article 34 of the collective agreement which forbids the workers in the defendant company to band themselves together to ask for the payment of deferred salaries. What the plaintiffs and the other workers did was to agitate for the payment of their salaries which have fallen into arrears. Delays in the payment to a worker of his wage or salary do not only, cause social and economic hardship but have the unpleasant effect of consigning him to a state of slavery or servitude which article 16(1) of our Constitution, 1992 forbids. Article 16(1) states thus: “16. (1) No person shall be held in slavery or servitude.” And article 24(1) of the Constitution, 1992 gives protection to the worker for his economic rights as follows: “24. (1) Every person has the right to work under satisfactory, safe and healthy conditions … “ It is an aberration of article 24(1) of the Constitution, 1992 for a worker to work without being paid promptly at the end of the month, when it is the legitimate expectation of the worker that he would be paid at the close of every month. Any action or inaction of an employer to frustrate that expectation would in law amount to subjecting the worker to work under unsatisfactory,

[p.804] of [1997-98] 1 GLR 799 unsafe and unhealthy conditions in contravention of article 24(1) of the Constitution, 1992 and the beatific vision of a good day at the end of every month when he is to find his pay packet ensconced in his hand is thereby proved a mirage.

It is certainly a bad regime of law which prescribes sanction against the worker who does not conceal his intention but makes it known to his employer by way of a letter, if the employer continues to remain insensitive to the plight of the worker and the law empowers him to aggravate the worker’s predicament by sending him home on interdiction. A court of law in any orderly society should never give any body of persons, be it a company or individuals banded together, carte blanche to wantonly trample upon the legitimate rights of others.

It is certainly to forestall such a situation in our society that the Constitution, 1992 has accorded Ghanaians in the preamble an ‘‘inalienable right … to equality of opportunity and prosperity.” This right cannot be whittled away by any employer. The worker’s prosperity would be seriously stunted if his wages or salary is not promptly and dutifully paid at the end of every month, and he cannot in concert with other workers in the company meet to discuss what action to take to quicken the employer to be sensitive to the plight of the workers.

The collective agreement of the defendant company, exhibit C, stipulates in article 33(6) thereof the factors which would influence management to summarily dismiss a worker in the company. The said article says:

“33. (6) Summary dismissal may be effected by management for a just and reasonable cause involving dishonesty, fraud, willful refusal to obey a legitimate and reasonable instruction and proven gross misconduct. Before a worker is summarily dismissed, he shall be given the opportunity to defend himself or herself.”

It is manifest from article 33(6) that for a worker to be summarily dismissed from the defendant company, he must have been involved in any of the following despicable behaviours: dishonesty, fraud, wilful refusal to obey legitimate and reasonable instruction and proven gross misconduct. In the letter of dismissal,

[p.805] of [1997-98] 1 GLR 799 exhibit B, served on the plaintiffs by the defendant company, the reasons stated therein did not cover any of these acts stated in article 33(6). In the circumstances, the right of dismissal did not accrue for there was no evidence adduced that any of the plaintiffs was in breach of article 33(6) of the collective agreement, exhibit C.

In exhibit B, the dismissal letter, the plaintiffs were said to have been “involved in writing, circulation and dissemination of a document which was likely to cause the employees of the company to embark on an illegal strike.” What constitutes “an illegal strike” was not defined in exhibit B. The collective agreement, exhibit C, is also silent on it. Perhaps we might turn to Act 299 for a definition of the expression “illegal strike.” The meaning of strike is to be found in section 23 of Act 299 which reads thus:

“23. (1) For the purposes of this Act strike is the act of any number of employees who are or have been in the employment of the same employer or of different employers of—

(a) discontinuing that employment whether wholly or partially;

(b) breaking their contract of service;

(c) refusing or failing after and any such discontinuance to resume or return to their employment;

(d) refusing or failing to accept engagement for any work in which they were or are usually employed; or

(e) reducing their normal output or their normal rate of work.

(2) An act committed under subsection (1) shall not amount to a strike unless it is due to or is the consequence of or is in pursuance of any combination, agreement, common understanding or concerted action whether express or implied, made or entered into by any employees with intent to—

(a) compel or induce any employer to agree to terms of employment or comply with any [p.806] of [1997-98] 1 GLR 799 demands made by the said or any other employees;

(b) cause loss or inconvenience to any such employer in the conduct of his business;

(c) incite, aid, abet, instigate or procure any other strike; or

(d) assist workers in the employment of any other employer to compel or induce that employer to agree to terms of employment or comply with any demands made upon him by any employees.”

It has not been urged upon this court that any of the plaintiffs or all of them ever did any of the acts stated in this section. They never discontinued their employment either wholly or partially or compelled their employer to agree to any terms of employment. What they did was to ask for the payment of their salaries which had fallen into arrears. They were exercising their human and constitutional rights to forestall the company in subjecting them into slavery or servitude.

The defendant company instead of expiating its rough justice on the workers by not paying them their legitimately earned income, compounded matters and exhibited a wanton disregard for the plight of the plaintiffs by dismissing them. The courts being a bastion of the liberties of the individual should always be seen to be safeguarding those liberties, and must not only be concerned with the appearance of justice but with justice itself. The demands of justice enjoin the courts not to be the protagonists of those who exploit the poor because they are poor, and not crush the needy in the courts. It is not justice if workers fighting for their right to quick and prompt payment of their wages, are made to forfeit their right to work.

Doctrines of equity are part of the common law of Ghana. Equity imputes an intent to fulfill an obligation. Every company doing business with employed workers is obligated to pay its workers at the end of every month, for the worker must live to be able to continue working for his employer. The employer should “not muzzle the ox while it is treading out the grain.” Any delay or unreasonable postponement of payment of wages or salaries

[p.807] of [1997-98] 1 GLR 799 would constitute a breach of the employer’s obligation under the law. In the book of Deuteronomy, chap 24, vs 14-15 there is the following command or law:

“Do not take advantage of a hired man who is poor and needy… Pay him his wages each day before sunset, because he is poor and is counting on it. Otherwise he may cry to the Lord against you, and you will be guilty of sin.”

This divine law has been incorporated in the Constitution, 1992 of Ghana in article 16 (1) thereof, already referred to in this judgment. It is only a slave who does not regularly and as of right get paid for work done for his master. Assuming that the plaintiffs do not know how to “cry to the Lord” direct against the defendant company, they know the law courts whose foundation is rooted in equity; hence their court action against the defendant. Again there is this warning against employers who deprive or oppose workers of their wages in the book of Malachi, chap 3, v 5. It states as follows in the King James version: “And I will come near to you to judgment; and I will be a swift witness against … those that oppress the hireling in his wages.”

Both the civil law and the divine law which dovetail into each other frown upon maltreatment of workers by their employers. Therefore any infraction of the law whereby the worker is ignominiously consigned to some status akin to slavery or servitude should be abhorred and swiftly restrained by the courts. The inhumanity that a worker stands to suffer in a situation like the kind the plaintiffs found themselves in, far outweighs the attempt to band themselves together to stage an industrial strike action. After all, strikes have not been prohibited by the supreme law of the land. The defendant company’s action in dismissing the plaintiffs was improper and unjustified in the circumstances. The plaintiffs’ action succeeds and judgment is entered for them.

In a situation like this, two courses of action are open to the court: either to reinstate the workers or to order the defendant who is in breach of contract to pay indemnity to the wrongly dismissed workers. I would at this stage put dismissal into two categories: wrongful dismissal and legitimate dismissal. In the second category, the worker would either be entitled to benefits due him

[p.808] of [1997-98] 1 GLR 799 at the time of retrenchment or may not be entitled to anything at all. If the loss the dismissed worker has occasioned, assessed in monetary terms, exceeds what he would otherwise have been entitled to, he would not get anything. But in the first category, the wrongfully dismissed worker would in equity be paid some indemnity, for in such a situation the worker’s right to work has unjustifiably been abruptly curtailed but he should not abruptly be deprived of his right to sustenance. The plaintiffs fall into this latter category.

When the Court of Appeal in 1977 had to determine whether or not the appellant was entitled to damages for wrongful dismissal in the case of Hemans v Ghana National Trading Corporation [1978] GLR 4, CA it had the occasion to advert its mind to and adopt the following view of Lord Loreburn LC in the House of Lord’s case of Addis v Gramaphone Co Ltd [1909] AC 488 at 491, HL:

“If there be a dismissal without notice the employer must pay an indemnity; but that indemnity cannot include compensation either for the injured feelings of the servant, or for the loss he may sustain from the fact that his having been dismissed of itself makes it more difficult for him to obtain fresh employment.”

And 21 years later, the House of Lords affirmed this view of Lord Loreburn LC per Lord Buckmaster in Herbert Clayton & Jack Waller Ltd v Oliver [1930] AC 209 at 220, HL where he said: “It is true that as a general rule the measure of damage[s] for breach of contract is unaffected by the motives or manner of its breach. What are known as vindictive or exemplary damages in tort find no place in contract nor accordingly can injury to feelings or vanity be regarded.”

As recently as 1990 the Supreme Court in the case of Nartey-Tokoli v Volta Aluminium Co Ltd [1990] 4 WASC 17 at 19 holding (6) was of the same view as that held in the two cases just referred to above regarding the issue of adequacy of damages when it said:

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“The intention of the legislature in dealing with industrial relations was to compensate an employee for loss he had suffered by reason of unfair treatment by his employer and not to impose penalties on the employer for his default.”

In order not to “make the law a still more ‘lawless science’ than it is said to be” in the words of Lord Atkinson in the Addis case (supra) at 495, I would not order the reinstatement of the plaintiffs. An award of an indemnity would not be inappropriate on the basis of the authorities mentioned supra. During the period that the plaintiffs were on interdiction up to the period of their dismissal, the plaintiffs were given half pay. They are to be paid fully for this period, in addition to the months that the salaries stood unpaid before the interdiction. For the wrongful dismissal, I would award six months’ salary to each one of the plaintiffs as compensation. They are also to be paid any other benefits they would have been entitled to if they had been legitimately retrenched. I award ¢200,000 costs in favour of the plaintiffs. The registrar is to meet the personnel manager of the defendant company and the plaintiffs to work out these and furnish the court with a written record of the agreed figures duly signed by the parties on Wednesday 23 April 1997.

DECISION

Judgment for the plaintiffs.

Endnotes

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