DANIEL MCCARTHY vs. GHANA BAUXITE COMPANY LTD. [2021]DLSC11514

Date	2021-12-08
Suit No.	CIVIL APPEAL NO. J4/34/2021
Citation No.	[2021]DLSC11514

YEBOAH CJ (PRESIDING)

PWAMANG JSC

AMEGACTCHER JSC

TORKORNOO (MRS.) JSC

KULENDI JSC

DANIEL ARTHUR ESQ. FOR THE PLAINTIFF/APPELLANT/RESPONDENT.

WEIQIANG YANG ESQ. FOR THE DEFENDANT/RESPONDENT/APPELLANT.

[2021]DLSC11514
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													<main id="main" class="content" style="min-height: 60rem" >DANIEL MCCARTHY<o:p></o:p>(PLAINTIFF/APPELLANT/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>GHANA BAUXITE COMPANY LTD.<o:p></o:p>(DEFENDANT/RESPONDENT/APPELLANT)<o:p></o:p>[SUPREME 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;">

CIVIL APPEAL
NO. J4/34/2021&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 8TH DECEMBER,
2021<o:p></o:p>

</div>COUNSEL<o:p></o:p>DANIEL ARTHUR ESQ. FOR
THE PLAINTIFF/APPELLANT/RESPONDENT.<o:p></o:p>&nbsp;<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;">

WEIQIANG YANG ESQ. FOR THE DEFENDANT/RESPONDENT/APPELLANT.<o:p></o:p>

</div>CORAM&nbsp;&nbsp;&nbsp; <o:p></o:p>YEBOAH CJ
(PRESIDING), PWAMANG JSC, AMEGACTCHER JSC, TORKORNOO (MRS.) JSC, KULENDI JSC<o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: windowtext; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: windowtext; border-right: none; padding: 1pt 0cm;">

<p class="MsoNormal" align="center" style="text-align:center;line-height:150%;
border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">JUDGMENT<o:p></o:p>

</div>&nbsp;KULENDI JSC:-<o:p></o:p>INTRODUCTION:<o:p></o:p>This is an
appeal from the judgement of the Court of Appeal, dated 25th
November, 2020. The Court of Appeal in the said judgment reversed the judgement
of the High Court dated 28th March, 2019, and held that the termination
of the Plaintiff/Appellant/Respondent’s (hereinafter called “the Respondent”) employment
by the Defendant/Respondent/<o:p></o:p>Appellant
(hereinafter called “the Appellant”) was wrongful, and accordingly awarded general
damages equivalent to eighteen (18) months’ salary in favour of the Respondent.<o:p></o:p>The
Appellant, aggrieved by the judgment of the Court of Appeal, has appealed to
this Court praying for a reversal of the decision of the Court of Appeal.<o:p></o:p>BACKGROUND<o:p></o:p>The
antecedent contentions by the parties which have culminated into the present
appeal are as follows:<o:p></o:p>&nbsp;The
Respondent was summarily dismissed on 4th October 2017, from the employ
of the Appellant as a Bulldozer Operator. The Respondent, who had been in the
employment of the Appellant for 5 years, was terminated by the Appellant on his
alleged involvement in a theft of diesel that occurred on 20th
September 2017.<o:p></o:p>&nbsp;On the
said day, two men were allegedly seen siphoning diesel from a Bulldozer in full
view and within close proximity to the Respondent who watched on as the fuel
was being siphoned. According to the Appellant, an Engineer of the Appellant
passing by noticed the ongoing theft and where upon, the men took to their
heels after they saw him. Given the Respondent’s proximity to the location where
the fuel was being siphoned and his indifference to the obviously illegal
activity, the Appellant assumed the Respondent’s complicity in the theft and
therefore caused his arrest by the police on 21st September, 2017. However,
before the police could conclude their investigations into the role and
involvement or otherwise of the Respondent in the theft, the Appellant summarily
dismissed the Respondent, based on an alleged hearing, findings and
recommendations by a Disciplinary Committee said to be set up in accordance
with Appellant’s Collective Bargaining Agreement and the Labour Act, 2003, Act
651.<o:p></o:p>&nbsp;Subsequently,
the ongoing police investigations concluded that the evidence was “too weak and
porous to warrant a criminal charge” of aiding and abetting crime or conspiracy
to commit the crime of stealing.&nbsp; <o:p></o:p>&nbsp;Following the
conclusion reached by the police, the Respondent made unsuccessful attempts to
be re-instated by the Appellant. He also procured the intervention of the Western
Regional Labour Officer to mediate the dispute but to no avail. Consequently,
the Respondent commenced an action in the High Court, Sekondi, contending,
among others that he was neither invited or appeared before any Disciplinary
Committee constituted by the Appellant or any other body to defend himself on
any date and therefore that the conduct of the Appellant is not only contrary
to the provisions of the Collective Bargaining Agreement but also the Labour
Act. As a result, the Respondent claimed per his writ of summons as follows:<o:p></o:p>a.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
A declaration
that the Defendant’s purported summary dismissal is wrongful, null, and void. <o:p></o:p>b.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;