TURKSON vs. MANKOADZE FISHERIES LTD [1987]DLHC2322

Date	1987-01-13
Suit No.
Citation No.	[1987]DLHC2322

AMPIAH JA

[1987]DLHC2322
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													<main id="main" class="content" style="min-height: 60rem" >TURKSON<o:p></o:p>vs.<o:p></o:p>MANKOADZE
FISHERIES LTD<o:p></o:p>[HIGH
COURT, ACCRA]<o:p></o:p>[1991]
GLR 430<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">Date: 13 JANUARY 1987<o:p></o:p>

</div>COUNSEL:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

<o:p>&nbsp;</o:p>

</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

AMPIAH JA<o:p></o:p>

</div>JUDGMENT
OF AMPIAH J.A.<o:p></o:p>The
plaintiff, until his dismissal from the defendant-company had been an employee
of the defendant-company for about ten years. By a letter dated 20 January 1984
his appointment with the defendant-company was terminated with effect from 1
February 1984. He claims that his said dismissal was wrongful. He therefore
claims for damages. Hence this action.<o:p></o:p>The defendant-company
has resisted the plaintiff’s claim. It contends that the plaintiff has been
dismissed in accordance with the provisions of the existing collective
agreement. The defendant-company subsequently amended its statement of defence.
In paragraph 2 of the amended statement of defence it stated:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“2.
Paragraph 4 of the statement of claim is denied. The defendants say that on 20
December 1984 the plaintiff was caught red-handed with two plastic containers
filled with edible oil stolen from the defendant’s premises at the time he was
leaving the premises. The matter was investigated in accordance with the
provisions of the existing collective agreement and the plaintiff was given an
opportunity to defend himself. As a result of the investigations the plaintiff
was dismissed.”<o:p></o:p>The
plaintiff denied this in his reply. At the close of pleadings, the main issue
agreed upon and set down for trial was whether or not the plaintiff’s dismissal
was lawful.<o:p></o:p>The
relationship between the plaintiff and the defendant-company was a contractual
one the terms of which are governed by the terms and conditions as contained in
exhibit 1 (the agreement between the Mankoadze Fisheries Ltd and the Maritime
and Dockworkers Union of the Trade Union Congress, Ghana). Both parties accept
this as the situation.<o:p></o:p>Section
10(2) of the Industrial Relations Act, 1965 (Act 299) provides:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“(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.”<o:p></o:p>The
plaintiff was dismissed for stealing. It is necessary therefore to look at the
collective agreement (exhibit 1) to see how under those circumstances, the
plaintiff could be dismissed, if at all. Discipline and discharge of an
employee is regulated by article 19 of the collective agreement. Sections 1(1)
and 3(iii) of article 19 state:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“1. (1)
Subject to the provisions of this agreement, the company has the right to
discipline or discharge any employee for sufficient and reasonable cause
including failure to comply with reasonable rules and for proven offence . . .<o:p></o:p>3.(iii) When
an employee is suspected of having committed a criminal offence he shall be
interdicted and put before a court of law. In the event of his being found
guilty and convicted, the company has the right to dismiss him. If the employee
is acquitted or discharged he shall be reinstated and his full pay restored
together with any accrued entitlements.<o:p></o:p>(The
emphasis is mine).<o:p></o:p>The
plaintiff was however not put before the court. The defendant-company admitted
this. This provision is mandatory and one would have expected compliance with
this. Thus, the plaintiff was denied one of his rights under the collective
agreement.<o:p></o:p>Assuming
however that the company was not obliged to resort to court action, the same
collective agreement (exhibit 1) provides at article 19, s 3(i) thus:<o:p></o:p>