NATIONAL LABOUR COMMISSION vs. UNION OF INDUSTRY, COMMERCE & FINANCE WORKERS [2019]DLHC10311

Date	2019-06-24
Suit No.	SUIT NO. MSIL/03/2019
Citation No.	[2019]DLHC10311

HER LADYSHIP JUSTICE ANANDA J. AIKINS (MRS).

APPLICANT REPRESENTED BY LEONARD KUMANGTUM

RESPONDENT REPRESENTED BY SAMUEL K.D BAFFOE

MS EFFIBA AMIHERE COUNSEL FOR THE APPLICANT PRESENT

[2019]DLHC10311
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													<main id="main" class="content" style="min-height: 60rem" >NATIONAL LABOUR COMMISSION<o:p></o:p>(PLAINTIFF/APPLICANT)<o:p></o:p>vs.<o:p></o:p>UNION OF INDUSTRY, COMMERCE &amp; FINANCE
WORKERS &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;(DEFENDANT/RESPONDENT)<o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

</div>COUNSEL:<o:p></o:p>APPLICANT REPRESENTED BY LEONARD KUMANGTUM<o:p></o:p>RESPONDENT REPRESENTED BY SAMUEL K.D BAFFOE<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

MS EFFIBA AMIHERE, COUNSEL
FOR THE APPLICANT PRESENT<o:p></o:p>

</div>CORAM:<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

HER LADYSHIP JUSTICE ANANDA J. AIKINS (MRS).<o:p></o:p>

</div>&nbsp;MOTION ON NOTICE FOR AN ORDER FOR THE ENFORCEMENT
OF THE DECISION OF THE NATIONAL LABOUR COMMISSION (ORDER 19 OF CI 47 AND
SECTION 172 OF ACT 651).<o:p></o:p>RULING
<o:p></o:p>It
is provided by Section 172 of the Labour Act, 2003 (Act 651) as follows:-<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; “Where a person fails or refuses to comply with
a decision or an order issued &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; by the
Commission under this Act the Commission shall make an application &nbsp;&nbsp;&nbsp;&nbsp; to the High
Court for an order to compel that person to comply with the &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; direction or order.”<o:p></o:p>It
is under this provision that the applicant herein brings this application for
an order directed at the respondent herein to comply with its decision against
the respondent delivered on the 2nd day of June, 2017. It is the
case of the applicant that it received a complaint from one John Esiape who was
once the General Secretary of the respondent. That the said complainant
petitioned the applicant against his alleged wrongful dismissal by the
respondent and that after the Commission had heard evidence from both the
respondent union and the complainant (John Esiape), the Commission delivered
its decision which it forwarded to the respondent. <o:p></o:p>The
applicant continued to say that it found from the evidence before it that the
respondent, in dealing with the complainant (John Esiape) who was then its
General Secretary in respect of certain allegations that had been levelled
against the said complainant not only breached its own constitution but abused
the powers given it under the said constitution.<o:p></o:p>It
is the further case of the applicant that after it had forwarded its decision
to the respondent with a request to the latter to comply with the said decision
forthwith, the respondent has remained recalcitrant and has refused to comply with
same hence necessitating this present application.<o:p></o:p>The
respondent herein, in its affidavit in opposition to the application, stated
that it was aggrieved by the decision of the applicant delivered on 2nd
June, 2017 because the applicant ought to have realised that it lacked
jurisdiction to entertain the complaint filed by John Esiape as the said
complainant had not exhausted the internal mechanisms of the respondent union
to seek redress for his grievances. The respondent also stated that the
decision delivered by the applicant was not supported by the evidence adduced
before it and that same ought to be set aside. The respondent requested this
Court to refuse the applicant’s request for an order to enforce the applicant’s
decision against the respondent.<o:p></o:p>The
main issues for determination in this application are whether or not the
applicant had jurisdiction to entertain John Esiape’s complaint and whether or
not the decision of the applicant delivered on 2nd June, 2017 should
be enforced by this Court? On the issue of jurisdiction, it is the case of the
respondent that the applicant ought to have told John Esiape that it lacked
jurisdiction to entertain his complaint because the complainant had not
exhausted the internal mechanisms provided for in the respondent’s constitution
regarding grievances that its members might have. The respondent referred to
article 21 of its constitution which deals with grievance procedure and stated
that John Esiape failed and/or refused to invoke article 21.10 (a), (b), (c)
and (d) of the said constitution. A careful reading of the provisions of
article 21.10 shows that it deals with the procedure to be followed by a person
who is aggrieved by the decision of the complaints committee of the respondent,
and article 21.12 also states that a member of the respondent’s union is not to
have recourse to the law Courts unless he has complied with the provisions of
article 21.<o:p></o:p>The
applicant on the other hand stated that the respondent in its initial response
to the complaint of John Esiape acknowledged that it suspended John Esiape in
error and that it would rectify the error but later on the respondent rather
went ahead and dismissed the complainant based on the report of an
investigative panel which was unconstit</main>