SALLY ANN AMPOMAH AND ANOTHER vs. CADBURY GHANA LIMITED [2017]DLHC3918

Date	2017-05-18
Suit No.	SUIT NO: HRC/18/2013
Citation No.	[2017]DLHC3918

JUSTICE GIFTY AGYEI ADDO HIGH COURT JUDGE

JOE ABOAGYE DEBRAH ESQ. FOR THE PLAINTIFFS.

A.K. DABI ESQ. FOR THE DEFENDANT.

[2017]DLHC3918
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													<main id="main" class="content" style="min-height: 60rem" >SALLY ANN AMPOMAH AND
ANOTHER<o:p></o:p>vs.<o:p></o:p>CADBURY GHANA LIMITED<o:p></o:p>[SUPERIOR COURT (HUMAN
RIGHTS DIVISION ONE), ACCRA]<o:p></o:p>SUIT NO: HRC/18/2013&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; 18TH MAY, 2017<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:31.0pt 31.0pt 1.0pt 31.0pt;mso-border-shadow:yes">

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

</div>COUNSEL:<o:p></o:p>JOE ABOAGYE DEBRAH ESQ., FOR THE PLAINTIFFS.<o:p></o:p>A.K. DABI ESQ., FOR THE DEFENDANT. <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<o:p>&nbsp;</o:p>

</div>CORAM:<o:p></o:p>JUSTICE GIFTY AGYEI ADDO, HIGH COURT JUDGE <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>JUDGMENT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 31.0pt 1.0pt 31.0pt">

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

</div>The Plaintiffs’ employment with the Defendant was severed by the
Defendant per separate letters both dated 10th May, 2011, to each of
the Plaintiffs. Per the said letters, marked as Exhibits “AE” in relation to
the 1st Plaintiff and “C” in respect of the 2nd Plaintiff,
the Defendant stated that it terminated the Plaintiffs’ employment under
section 26 of the terms and conditions of service for senior managers. The said
section 26 of Exhibit “B” is on termination by mutual separation or mutual
agreement. It states as follows: 26. 1 Mutual Agreement <o:p></o:p><o:p>&nbsp;</o:p>Without prejudice to items 25.1 and 25.3 above, the Company and
the Employee may terminate the contract of employment at any time by giving to
the other not less than one (1) month’s notice in writing or by the payment of
one (1) month’s salary in lieu thereof provided however that: <o:p></o:p><p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in;
mso-pagination:none;mso-list:l0 level1 lfo1;border:none;mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;
mso-border-shadow:yes">(i).&nbsp;&nbsp;
in the case of termination by
the Company it shall in addition to any payment in lieu of notice, pay to the
employee a termination benefit to be calculated at the rate of at least 2
month’s consolidated salary for each year of service subject to a maximum of 18
months pay. <o:p></o:p><p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in;
mso-pagination:none;mso-list:l0 level1 lfo1;border:none;mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;
mso-border-shadow:yes">(ii).in the
case of termination by the Employee, on the submission of the letter of
termination to the Company, all outstanding accounts and loans with the Company
shall fall due for immediate payment by the employee. <o:p></o:p><o:p>&nbsp;</o:p>What the Defendant is in effect saying by the reason assigned for
terminating the Plaintiffs’ employment is that it did not take a unilateral
decision to terminate. That it arrived at the decision to terminate the
Plaintiffs’ employment with their consent or agreement. The Plaintiffs have
expressed a contrary view. They claim the termination of their employment was
not based on mutual agreement between the Defendant and them. To them, it was a
unilateral decision. I have found the divergent positions from the pleadings.
At paragraph 5 of its statement of defence filed on 12th December,
2011, the Defendant averred that it terminated the appointments of the
Plaintiffs on grounds of mutual separation under section 26 of the agreed terms
and conditions of service for senior managers of the Defendant company. In
their reply filed on 12th January, 2012, the Plaintiffs also
traversed paragraph 5 of the statement of defence and reiterated that their
termination was not mutual as it was entirely without their consent and
foreknowledge. The issue such contrary positions poses is whether the grounds
for the termination of the Plaintiffs’ employment with the defendant was by
mutual agreement? The answer to this issue is key to the resolution of the
conflict before the Court concerning the severance of the Plaintiffs’
employment with the Defendant. Since it is the Defendant who asserted the
allegation of fact that it terminated the appointment of the Plaintiffs on
grounds of mutual separation, the burden to prove such assertion lies on it.
Should the Defendant fail to prove the allegation, then it would have the
consequence that the termination was for a reason other than what the Defendant
claimed. The burden of persuasion imposed on the Defendant and defined under
section 10 (1) of the Evidence Act 1975 [NRCD 323] is as follows: for the
purposes of this Act, the burden of persuasion means the obligation of the
party to establish a requisite degree of belief concerning a fact in the mind
of tribunal of f</main>