RALPH AGBALENYO vs. GHANA MINE WORKERS UNION OF TUC [2016]DLCA5013

Date	2016-11-17
Suit No.	CIVIL APPEAL NO. H1/22/2016
Citation No.	[2016]DLCA5013

MARFUL-SAU JA (PRESIDING)

AGNES DORDZIE JA

TANKO AMADU JA

KWASI DANSO- ACHEAMPONG FOR PLAINTIFF/ APPELLANT

CHARLES BAWADUAH FOR DEFENDANT/RESPONDENT

[2016]DLCA5013
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													<main id="main" class="content" style="min-height: 60rem" >RALPH AGBALENYO<o:p></o:p>(PLAINTIFF/APPELLANT)<o:p></o:p>vs.<o:p></o:p>GHANA MINE WORKERS UNION OF TUC<o:p></o:p>(DEFENDANT/RESPONDENT)<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;
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CIVIL APPEAL NO.
H1/22/2016&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; 17TH
NOVEMBER, 2016<o:p></o:p>

</div>COUNSEL:<o:p></o:p>KWASI DANSO- ACHEAMPONG FOR PLAINTIFF/ APPELLANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>CORAM:<o:p></o:p>MARFUL-SAU JA (PRESIDING), AGNES DORDZIE JA, TANKO
AMADU JA<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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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>MARFUL-SAU, JA: -
The record of this appeal raises one fundamental issue, which is whether or not
the termination of plaintiff/appellant's appointment by the
defendant/respondent was lawful. I will therefore address this issue and later
comment on the two grounds of appeal formulated in the Notice of Appeal. <o:p></o:p>The
defendant/respondent to be referred to as the respondent, by a letter dated the
5th of May 2005 terminated the appointment of the plaintiff/ appellant to be
referred to as appellant. The appellant until the termination of his
appointment was the Industrial Relations Officer of the respondent union. The
letter of termination, which was tendered as Exhibit B, provided in the last
paragraph as follows:-<o:p></o:p>'' The report of the
investigation Committee was placed before the Management Committee of the Union
at its sitting on 27th April, 2005. The Management Committee unanimously
endorsed the recommendation of the Committee that your appointment with the
Ghana Mineworkers Union be terminated on grounds of proven misconduct as
contained in section 15(e) (iii) of Labour Act, 2003, Act 651 with effect from
3rd May, 2005. You will receive a month's pay in lieu of notice............''<o:p></o:p>The
appellant aggrieved by the action of the respondent took out a writ of summons
that commenced this action which principally sought a declaration that the
termination of his appointment was contrary to his conditions of service. At
paragraph 22 and 23 of the appellant's statement of claim, he pleaded that the
respondent erred by terminating his appointment under section 15 (e) (iii) of
Labour Act, 2003 and that his termination could only have been done in
accordance with his conditions of service. The trial High Court after the trial
found nothing wrong in law with the conduct of the respondent in terminating
the appointment of the appellant. The court accordingly dismissed appellant's
action, hence this appeal which was fought on two main grounds. As already
stated, the said grounds would be addressed in the course of this judgment, but
for now, I seek to address the fundamental issue earlier identified, which is
whether or not the termination of appellant's appointment was lawful?<o:p></o:p>As
noted from Exhibit B, the letter of termination, appellant's appointment was
terminated on grounds of proven misconduct as provided under section 15 (e)
(iii) of the Labour Act, Act 651. The appellant finds this wrong and argues
that his termination should have been based on his conditions of service with
the respondent. It is important to emphasise that appellant's appointment was
terminated as indicated in Exhibit B. In other words appellant was not
dismissed. What then is the law on this subject? Our courts have in several
cases upheld the principle that at common law an employer is at liberty to
terminate the appointment of an employee without assigning reasons, provided
the employer satisfies the terms of the service contract.<o:p></o:p>In
the case of Kobea and Others v. Tema Oil Refinery; Akomea-Boateng and Others
v.Tema Oil Refinery (Consolidated) (2003-2004) 2 SCGLR 1033, the Supreme Court
addressed the difference between termination and dismissal of employment. On
termination of appointment the court spoke through Dr. Twum, JSC at page 1039
as follows:-<o:p></o:p>'' At Common law, an employer
and his employee are free and equal parties to the contract of employment.
Hence either party has the right to bring the contract to an end in accordance
with its terms. Thus an employer is legally entitled to terminate an employee's
contract of employment whenever he wishes and for whatever reasons, provided
only that he gives due notice to the employee or pay him his wages in lieu of
the notice. He does not even have to reveal his reason, much less to justify
the termination...........''<o:p></o:p>Again,
in the case of Kobi and Others v. Ghana Manganese Co. Ltd. (2007-2008) SCGLR
771, the Supreme Court per Atuguba, JSC delivered at page 775 as follows:-<o:p></o:p>'' What I consider to be
trite learning on this issue is that a contract of service is not a contract of
servitude. That being so, even if the contract of employment is silent on the
question whether it is terminable, the common law implies a right to terminate
the same by either side upon reasonable notice to the other: See Bauman v.
Hulton Press Ltd (1952) 2 All ER 1121. Subject to this, the right to terminate
a contract of service is dependent on the terms of the contract and must be
exercised in accordance therewith.'' <o:p></o:p>My
understanding of the decisions of the Supreme Court in the two cases cited
above is that at common law an employer is at liberty to terminate the
appointment of an employee provided the employer satisfies or complies with the
terms of the service contract. In other words for a termination of appointment
to be lawful, there must be evidence that the employer has complied with the
terms of the contract of employment. In this appeal, the appointment of the
appellant was regulated by the Ghana Mineworkers' Union of Tr</main>