ISAAC ODURO & 39 ORS vs. BEVERAGE INVESTMENT [2008]DLCA6735

Date	2008-12-04
Suit No.	H1/255/05
Citation No.	[2008]DLCA6735

MRS. ABBAN JA [PRESIDING]

KANYOKE JA

YAW APPAU JA

MR. EKOW AWONOR FOR DEFENDANTS/RESPONDENTS.

DR. KWAKU NSIAH FOR THE PLAINTIFFS/APPELLANTS

[2008]DLCA6735
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													<main id="main" class="content" style="min-height: 60rem" >ISAAC ODURO &amp; 39 ORS<o:p></o:p>vs.<o:p></o:p>BEVERAGE INVESTMENT<o:p></o:p>[COURT
OF APPEAL, ACCRA]<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">

H1/255/05&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 4TH DECEMBER, 2008<o:p></o:p>

DR.
KWAKU NSIAH FOR THE PLAINTIFFS/APPELLANTS<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;border:none;
mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>MRS.
ABBAN, J.A. <o:p></o:p>This appeal from the
judgment of the High Court, Accra, delivered on the 5th day of May 2004.&nbsp; The Plaintiffs {hereinafter referred to as
the Appellants} lost the suit and being dissatisfied have appealed against same
to this court. <o:p></o:p>The Plaintiffs in their
writ of summons claimed:<o:p></o:p>a.&nbsp; A declaration that the purported termination
of their appointments infringes Act 47 of the Defendant’s Collective Bargaining
Agreement. <o:p></o:p>b.&nbsp; An order for the payment to the Plaintiffs of
all entitlements including their Provident Fund. <o:p></o:p>c.&nbsp; General damages for wrongful termination. <o:p></o:p>In their statement of
claim, the Plaintiffs averred that during the pendency of their employment, the
Defendant {hereinafter referred to as the Respondent}, in an effort to boost up
production, encouraged the Appellants to work overtime.&nbsp; Nevertheless, their earnings for the overtime
hours worked were most often wrongly calculated due to the defect in the
clocking machine resulting in underpayments.&nbsp;
Besides this, they also claimed that the Respondent tried to force them
to work on Sundays with effect from the month of February 2002 and on certain
Islamic holidays in the same month. <o:p></o:p>Having complained about
these issues to the Human Resources Manager without result, they decided to
complain to the Board of Directors.&nbsp;
Whilst awaiting the outcome of their complaint to the Board, the
Plaintiffs passed a vote of no confidence in the Human Resource Manager and
insisted that the latter should not be allowed onto the premises of the
company.&nbsp; By 4th March 2002, they had had
no re-action from the Board and therefore they decided to wear red bands to
work.&nbsp; This continued till 11th March
2002.&nbsp; On that particular day, the Human
Resource Manager who had been absent from work for some time returned to work
and the Appellants staged a protest against her return.&nbsp; As a result the Respondent closed down the
factory on 11th March 2002.&nbsp; In their
statement of claim, the Appellants further alleged that on the 12th March 2002,
a meeting was held between Management, I.C.U. of T.U.C. and the acting Chief
Labour Officer to find a lasting solution to the issues that had culminated in
the closure of the factory.&nbsp; On that
particular day, a memorandum of understanding was signed.&nbsp; However in spite of this memorandum of
understanding, the Respondent terminated their appointments with effect from
12th March 2002.&nbsp; They averred that the
purported termination of their appointments was wrongful, in that it
contravened Article 47 of the Collective Bargaining Agreement which was signed
when they were first appointed. <o:p></o:p>The Respondent’s defence
to this claim was that the miscalculations in overtime hour worked, and
payments, in respect for same were resolved as soon as they were reported to
management; and that it was after management of the Respondent company and the
union executives had met that the Appellants were asked to work on Sundays and
the Islamic holidays and therefore the decision was not unilaterally imposed on
them by management. <o:p></o:p>The Respondent also
averred that the Appellants’ vote of no confidence in the Human Resource
Manager was of no consequence since she was not a unionized employee. The
Respondent averred that the memorandum of understanding dated 12th March 2002
did not form the basis of terminating Appellant’s appointment, since it was
rejected by the Respondent company and it was executed without the authority of
its Board of directors and furthermore it did not reflect the issues agreed
upon.&nbsp; Respondent also averred that the
termination of Appellants’ appointment was not wrongful because it did not
contravene any provision of the Collective Bargaining Agreement.&nbsp; In fact the procedure for termination stated
therein was followed to the letter and all benefits and/or entitlements due to
the Appellants were paid to them. <o:p></o:p>The Respondent then
counter-claimed for recovery of assets consisting of safety boots, uniforms,
identity cards and mobile phones which the Appellants had failed and/or refused
to return to the Respondent upon termination of their appointments. <o:p></o:p>The Appellants defence to
the counter-claim was that the said items were left in lockers at the
Respondent Company.&nbsp; The issues set down
for determination at the summons for directions stage were; <o:p></o:p>i.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
whether or not the management encouraged
Plaintiffs to do overtime and overtime earnings of Plaintiffs were always
wrongly calculated culminating in underpayment? <o:p></o:p>ii.&nbsp;&nbsp;&nbsp;&nbsp;&</main>