DANIEL MCCARTHY (PLAINTIFF) vs. GHANA BAUXITE COMPANY LTD (DEFENDANT) [2019]DLHC7057

Date	2019-03-28
Suit No.	SUIT NO. E3/6/18
Citation No.	[2019]DLHC7057

HIS LORDSHIP JUSTICE RICHARD ADJEI – FRIMPONG J.

EDMUND AKWAA ARHIN ESQ. FOR THE PLAINTIFF.

NANA B. ADENU MENSAH ESQ LED BY MR. WILBERFORCE FOR DEFENDANT.

[2019]DLHC7057
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													<main id="main" class="content" style="min-height: 60rem" >DANIEL MCCARTHY<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>GHANA BAUXITE COMPANY LTD<o:p></o:p>(DEFENDANT)<o:p></o:p>[HIGH
COURT, SEKONDI]<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">

SUIT
NO. E3/6/18&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: 28TH
MARCH, 2019<o:p></o:p>

</div>COUNSEL:<o:p></o:p>EDMUND
AKWAA ARHIN ESQ. FOR THE PLAINTIFF.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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NANA B. ADENU MENSAH ESQ, LED BY MR.
WILBERFORCE FOR DEFENDANT.<o:p></o:p>

</div>CORAM:<o:p></o:p>HIS
LORDSHIP JUSTICE RICHARD ADJEI – FRIMPONG J.<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="text-align:center;line-height:115%;
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>Until he was summarily dismissed on
4th October 2017, the plaintiff had been in the employment of the
defendant company as a Bull Dozer Operator. His employment since 2013 ended in
connection with a theft case that occurred on 20th September 2017.
On the said day, two men were seen siphoning fuel from a Bull Dozer allegedly
in the full view and closeness of the plaintiff who watched them commit the
unlawful act. It took one engineer of the defendant passing by to detect the
theft whereupon the men took to their heels leaving the booty behind. Apparently
suspecting the plaintiff’s involvement in the theft, the defendant suspended and
handed him over to the police. Before the police would conclude their
investigations however, the defendant summarily dismissed the plaintiff. The
dismissal was based on a disputed disciplinary proceeding launched by the
defendant. Eventually, the police issued a report essentially exonerating the
plaintiff. <o:p></o:p>The plaintiff claims that the
defendant never invited him to attend any disciplinary hearing and that there
was no proof of theft against him. He claims the defendant’s conduct
contravenes the Collective Bargaining Agreement and the provisions of the
Labour Act. He caused his lawyers to write to the defendant to address his
concerns or reinstate him but same was refused. He reported the matter to the
Regional Labour Officer. A meeting was held with representatives of the
defendant in attendance. In the end, a technical advice was issued demanding
the defendant to go back and do the right thing. This was also to no avail. The
plaintiff therefore came to this court to sue seeking the following reliefs:<o:p></o:p>a)A declaration that defendant
purported summary dismissal is wrongful, null and void.<o:p></o:p>b)An order compelling defendant to
pay adequate compensation to the plaintiff for the financial and psychological
hardship and embarrassment occasioned as a result of the defendant’s action.<o:p></o:p>c)Consequential orders including but
not limited to the payment of all salaries, entitlements, benefits due.<o:p></o:p>d)Refund of legal cost of GHC
10,000.<o:p></o:p>The defendant resists the
plaintiff’s claim and seeks to justify its decision to dismiss the plaintiff.
It is pleaded that on the day of the incident, the plaintiff was working at the
stock pile of the defendant’s company close to the other Bull Dozer from which
the fuel was siphoned. The theft was taking place to the plaintiff’s knowledge
and in his full view. In all 114 litres of diesel were siphoned into four
separate drums with the plaintiff looking on. <o:p></o:p>The defendant further claims that
upon reporting the matter to the police, it also set up its internal
disciplinary process and interdicted the plaintiff. It is averred that an
employee under disciplinary procedure has a full right of defence either orally
or in writing. The plaintiff in this case elected to send a written defence to
the committee formed in accordance with Collective Bargaining Agreement. The
committee however found the written defence false and misleading recommending
that the plaintiff be dismissed which was carried out.<o:p></o:p>It is contended that the Labour
Officer’s technical advice did not take into consideration the Collective
Bargaining Agreement and the defendant was not bound by the advice. The
dismissal according to the defence was therefore proper.<o:p></o:p>The paramount issue to determine in this
case is whether or not the plaintiff’s dismissal was fair and proper in law. I
consider all other relevant questions subordinate and will answer them along
the determination of the main question.<o:p></o:p>Basically, unfair dismissal,
wrongful dismissal and unlawful dismissal are several of the terms used to
refer essentially to the same cause of action: a claim in breach of contract or
tort for the ending of an employment for some unlawful reason. A finding as to
unfair dismissal is essentially an assessment of facts in each case. The
Learned Authors of Halsbury’s laws of England 4th edition (2005)
Vol. 16 page 97 have noted:<o:p></o:p>“The
determination as to whether the dismissal is fair or unfair having regard to
the reason shown by the employer …must be determined in accordance with equity
and the substantial merits of the case. An employment tribunal must test both
procedural and substantive elements to decide on the merits of the case”<o:p></o:p>In this assessment, the law is that
the employer bears the onus of proof that the dismissal was fair. An employer
who dismisses an employee has a reason for doing so. The employer knows what it
is and must prove it.<o:p></o:p>BAMFORD ADDO JSC in the case of
BANNERMAN VRS STATE TRANSPORT CORPORATION Supreme Court Civil Appeal No.
15/2001 dated 2nd April 2002 stated the legal position thus: 
 
<o:p></o:p>“The
employer must first show that the principal reason for dismissal was one of
four potentially fair reason (capacity, conduct, redundancy, statutory
requirement) or some other substantial reason </main>