JOHN ETSIBAH vs. AFRICAN MINING SERVICES GH. LTD. [2017]DLCA4984

Date	2017-03-27
Suit No.	CIVIL APPEAL NO: H1/4/17
Citation No.	[2017]DLCA4984

HONYENUGA J.A. (PRESIDING)

GYAN J.A.

SUURBAAREH J.A.

MISS PANDA ARNOH MENSAH FOR THE DEFENDANT/APPELLANT

MR. PHILIP BUCKMAN FOR THE PLAINTIFF/RESPONDENT

[2017]DLCA4984
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													<main id="main" class="content" style="min-height: 60rem" >JOHN ETSIBAH<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>AFRICAN
MINING SERVICES GH. LTD.<o:p></o:p>(DEFENDANT/APPELLANT)<o:p></o:p>[COURT OF APPEAL, CAPE COAST]<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">

CIVIL APPEAL NO: H1/4/17&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: 27TH MARCH, 2017<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MISS
PANDA ARNOH MENSAH FOR THE DEFENDANT/APPELLANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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MR.
PHILIP BUCKMAN FOR THE PLAINTIFF/RESPONDENT
<o:p></o:p>

</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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HONYENUGA
J.A. (PRESIDING), GYAN J.A., SUURBAAREH J.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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JUDGMENT<o:p></o:p>

</div>HONYENUGA, J.A.<o:p></o:p>This is an
appeal filed by the defendant/appellant, (hereinafter called the appellant),
against the judgment of the Circuit Court, Takoradi dated the 31st
day of July 2014.&nbsp; The said Court entered
judgment for the plaintiff/respondent (hereinafter called the respondent) on
his relief claimed.<o:p></o:p><o:p>&nbsp;</o:p>The facts of
this appeal were that the respondent was an auto electrician of the appellant
and earned US$477.28 a month.&nbsp; The
respondent was said to have been involved in an illegal strike with other
employees on duty, as a result, the respondent was interdicted and paid half
his salary.&nbsp; The respondent was
subsequently invited to appear before a Disciplinary Committee set up by the
appellant having been accused of having “called emergency on the radio and also
activated siren to gather workforce to hold on operation”.&nbsp; The respondent vehemently denied the
accusation.&nbsp; Without following the
disciplinary procedure in accordance with the Collective Bargaining Agreement,
the appellant terminated the employment of the respondent.&nbsp; Aggrieved by his dismissal, the appellant
caused the instant writ of summons to be issued against the respondent claiming
as follows:-<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; “General
damages for wrongful termination of employment”.<o:p></o:p>The writ was
accompanied by a statement of claim in which the respondent averred that he was
an Auto Electrician with the respondent since 6th December 2007, on
a salary of US$477.28 per month.&nbsp; He was
interdicted on 18th November, 2011 and subsequently invited to a
disciplinary hearing on the 24th November 2011.&nbsp; At the disciplinary committee he was said to
have “called emergency on Radio and also activated siren to gather workforce to
hold on operations” which he vehemently denied.&nbsp;
The respondent further averred that without following disciplinary
procedure in accordance with the Collective Agreement, his employment was
terminated on the 24th November 2011 without establishing any wrong
doing against him.&nbsp; He averred that the
committee siting was unfair, bias and inequitable.&nbsp; The respondent also averred that he had since
remained unemployed and that his termination is wrongful.<o:p></o:p><o:p>&nbsp;</o:p>The
appellant entered appearance and also filed a statement of defence and denied
the allegations made by the respondent and contended that the respondent was
involved in an illegal strike together with other employees and the entire lot
had their employment terminated.&nbsp; The
appellant averred that the respondent was not entitled to his relief as
claimed.<o:p></o:p><o:p>&nbsp;</o:p>The
respondent filed a Reply and subsequently filed an Application for Directions
which was adopted with its issues for the trial of the action as follows:-<o:p></o:p>“i.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Whether
or not the defendant company followed the disciplinary procedure in the
Collective Agreement of January 2010 in terminating plaintiff’s appointment?<o:p></o:p>ii.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Whether
or not the National Ghana Mineworkers Union of Trade Union Congress and the
Local branch of the Union wrote to the defendant complaining about plaintiff’s
dismissal.<o:p></o:p>iii.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Whether
or not plaintiff’s account at Merchant Bank was temporarily frozen?<o:p></o:p>