Thompson Vrs Total Ghana Ltd (H1/124/2008) [2008] GHACA 34 (31 July 2008);
IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL - A C C R A
CORAM:- QUAYE, JA [PRESIDING]
APALOO, JA
GYAESAYOR, JA
H1/124/2008
31ST JULY, 2008
WILLIAM G.K. THOMPSON … PLAINTIFF/RESPONDENT
V E R S U S
TOTAL GHANA LIMITED … DEFENDANT/APPELLANT
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J U D G M E N T
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QUAYE, JA:- The plaintiff/respondent herein claimed in his evidence in the trial court that he was employed by, and remained in the service of the defendants/appellants for sixteen years. This allegation of fact did not raise an issue in the eyes of the appellants. No issue was therefore joined on this allegation. It stands out however that neither in his writ of summons, the statement of claim, nor in his evidence before the court below, did the respondent give any indication as to when exactly his relationship with the appellants
as employee started.
The relevant issues pertaining to this appeal dated from a correspondence under confidential cover, bearing the date of 18th November 2004, by which the appellants appointed the respondent as Retail Network Development Manager. That appointment was to take effect from 1st January 2005. (refer to exhibit A). The employer-employee relationship between the appellants and the respondent continued, presumably, satisfactorily, until the appellants wrote a letter dated 1st November 2005 to suspend the respondent from work with effect from the same date. This letter, suspending the respondent from duty was the singular event that occasioned the action in the lower court and the subsequent appeal therefrom.
The letter of suspension itself was very brief. It states as follows:
“RE SUSPENSION FROM DUTY. Due to the ongoing Police
investigations relating to losses at the East Legon Filling
Station, for which you have been implicated, Management
hereby suspends you with half pay with effect from 1st
November 2005, initially for six (6) months, pending full
Investigation into the matter…”
The respondent’s reaction to the suspension was captured in his statement of claim which was filed together with the writ of summons on 18th November 2005. I hereby reproduce excerpts therefrom:
“6. The Plaintiff avers that as categorically stated in the letter under
reference, the purported suspension from duty was in respect of
the “ongoing Police investigations” into alleged losses at the East
Legon Total Filling Station.
7. Plaintiff avers that the Legon Police invited him and he gave a
statement in his capacity as one of the officers whose responsibility
among others includes the supervision of the East Legon Total
Filling Station.
8. Plaintiff avers that neither the Legon Police made any adverse findings
nor charged him with any offence.
9. The Plaintiff further avers that the Defendant neither confronted him
with any wrong doing, invited him to appear before any administrative
committee nor heard him before the said purported suspension.
10. The Plaintiff avers that as a senior Management staff he is not covered
by any Collective Bargaining Agreement with the Defendant.
11. Plaintiff avers that the said suspension was wrongful and in contravention
of all the principles of fair trial…”
On their part, the appellants responded to the respondent’s claim inter alia, as follows hereunder:
“5. Paragraph 4 of the Statement of Claim is vehemently denied. In further
answer thereto, Defendant says Plaintiff’s suspension from duty was
prompted by the decision of the police to invite him to assist in
investigation into loses (sic) at Defendant’s East Legon Service
Station.
6. In answer to paragraph 6 of the Statement of Claim Defendant says
Plaintiff’s role in assisting the police in their investigations was
wholly incompatible with his duty or work schedule as Retail
Development Manager of Defendant Company.
7. …in whatever capacity that Plaintiff gave statement to Police, his role
in the matter under investigations was to be determined by the police
at the conclusion of investigations.
8. Police investigations were at the virgin stages when Plaintiff issued his
writ and therefore allegation that no adverse findings or charge had
been laid against him at that stage was premature.
9. …Plaintiff was suspended from duty as a result of police’s invitation to
him to assist in investigations into loses (sic) at Defendant’s East Legon
Service Station. Criminal investigation is Statutory duty of Police and
Defendant could not usurp the powers of the police and take statement
from Plaintiff. In any event, Plaintiff was given every opportunity
by the police to state his case; an opportunity which he fully utilized
by making a statement.
10. …in as much as Plaintiff’s suspension was occasioned by criminal
investigations his status was of no consequence.
11. Plaintiff’s suspension from duty pending result of criminal investigations
did not amount to conviction or a decision to terminate his contract of
service…”
After issues had been joined, the parties proceeded to trial.
The plaintiff/respondent gave evidence on 14th February 2006 and continued on 28th February 2006. The salient aspects of his case are that
(1) he was invited to the Police, Legon where he made a written statement
concerning what he knew about losses at the East Total Filling Station.
(2) he received letter by which the appellants suspended him from duty to await
the outcome of police investigations.
(3) his employment was not regulated by the Collective
Bargaining Agreement of the appellants, which was tendered in
evidence as Exhibit E, by virtue of his rank as a Senior Management Staff;
(4) that the suspension of him by the appellant was null and void.
The appellants, on their part gave evidence through their Human
Resources Manager and also the Legal and Corporate Affairs Manager. The appellants, admitted that the respondent was suspended from duty because he was under investigation for conduct which suggested criminality; that the collective bargaining agreement did not apply to the appellant; that the suspension slapped on the appellant was justified and accorded with law.
After evidence had been led and submissions made in the trial court, the trial judge entered judgment for the plaintiff/respondent. The decision of the trial court was informed by the findings that certain of the issues set down for trial ie. a – e, were not established; that not withstanding the evidence led by both parties to the effect that the appellant’s employment was not regulated by the Collective Bargaining Agreement, exhibit E, it had become clear to him, upon the evidence, that “although no part of the Agreement was specifically quoted in the suspension letter, defendant inferentially had this article in mind.” (a reference to Article 18(b) of exhibit E). The learned trial judge therefore held that “that defendant indeed proceeded on the basis of Article 18(b) of the CBA to suspend the plaintiff. This is a slip on the part of the defendant.” The next question which exercised the mind of the trial judge was the claim by the respondent that he was not given a hearing by the appellant on any issue of impropriety, misconduct or criminality prior to his suspension. The trial judge, being confronted as it were, with the non-applicability of the Collective Bargaining Agreement Exhibit E, to the respondent, and the admission on behalf of the appellant that the respondent was not given the chance to explain his side of the matter before he was suspended, found solace in the provisions of the Constitution of Ghana 1992 and the Labour Act 2003 (Act 651) and came to the conclusion that the requirements of natural justice had not been met.
Three main grounds were canvassed in this appeal by the defendant/appellant. The grounds are:
(a) the judgment is against the weight of evidence.
(b) the learned trial Judge erred in law when he applied public law
remedy to private law claim.
(c) the learned trial Judge erred in law when he held that Defendant/
Appellant was required to give Plaintiff/Respondent a hearing prior
to his suspension from work.
In arguing the appeal, learned counsel for the appellants contended that the respondent failed to lead strong enough evidence to establish his case. Indeed the trial Judge found that neither party led any evidence in proof of issues a – e of the issues set down at the summons for directions stage for determination. Learned counsel for the appellant concluded however that there was sufficient evidence on the record, more particularly, as found in the Police Report, exhibit 1 to sway the trial court Judge’s mind in favour of the appellant in respect of the matters that stood to be resolved in issues a – e
Those issues are that, the Manager of the East Legon Total Filling Station lodged a complaint with the Police; that the plaintiff/respondent had a case to answer in respect of the complaint of incessant losses at the said Filling Station; that the conduct of the respondent was being investigated; that the respondent was invited to the Police as a suspect.
Upon the evidence I agree with the trial Judge’s conclusion that the above issues were indeed not conclusively proved at the trial. Exhibit 1 was a report from Police investigation into allegations made to them. The report perse does not prove the guilt or culpability of the suspects. If adverse findings were made against any suspect or a person against whom an allegation of misconduct had been made, those finding remain undetermined unless or until the suspect had been charged and successfully prosecuted in a court of law properly constituted. It would be a dangerous proceedent to conclude that once adverse findings had been made against a person who was suspected of criminal behaviour, then it means that that person’s guilt had been proven. With respect, our criminal law system presumes every one, including persons against whom criminal charges had been preferred, innocent until their guilt had been finally established, leading to their conviction. Until that level had been attained, after due process of the criminal procedure, it would, to put it mildly, not accord with jurisprudence to say that a person’s guilt had been established or proven.
I however uphold the argument of learned counsel for the appellant that the trial court committed the error of misconception when he concluded that the appellant, in suspending the respondent, invoked any part of the Collective Bargaining Agreement,
exhibit E. Evidence was led to show that the respondent’s employment was not regulated by the said exhibit. At no time in the trial was it shown that the said exhibit, or any provision thereunder was invoked. I would reiterate at this juncture that, the semblance of words or phrases that are contained in a document with those applied in another document, would not without more, lead to an irresistible conclusion that the one or the other document was being applied. In this case therefore, words or phrases used in the letter of suspension, exhibit B, which have a semblance with certain provisions in exhibit E, would not entitled or justify a conclusion that the latter agreement, which both parties had unambiguously stated that it was not applicable, and was not intended to be invoked, was being applied. That conclusion is clearly in error. The submission by learned counsel for the respondent that was intended to circumscribe the powers of an appellate court vis a vis findings of fact made by a trial court must be taken with circumspection. The proper application of that injunction is that an appellate court has no mandate to disturb a trial court’s findings of fact, unless those findings are erroneous. In this appeal, there was nothing on the record to justify or support the trial courts finding that the Collective Bargaining Agreement was invoked to suspend the respondent. That finding is erroneous and is therefore set aside.
I have carefully considered the submissions of both counsel on whether or not the respondent was given a hearing prior to being suspended. I have also examined the submissions on private law remedy and public law remedy. I have come to a conclusion however, that the real issue that required to be addressed in the action had rather incidentally been relegated into nothingness. I propose to deal with the two issues herein, after which I may come back to the concerns highlighted.
In the first place, I consider it essential to know or show what the essence or import of suspension from duty is. This way, we shall be in a proper position to appreciate whether it was necessary for the appellant to give the respondent a hearing before suspension.
In certain jurisdictions, suspension from employment was a disciplinary measure. An employee after administrative investigation or inquiry was suspended from duty without pay for the duration of the suspension as a lesser punishment than summary dismissal. Under such conditions, the affected employee was found guilty or culpable in
respect of the alleged offence. In such a case, there could be no suspension, or punishment imposed without prior inquiry where the suspect was given a hearing. The other instance of suspension is where that term is used inter-changeably with interdiction.
Interdiction, without attempting a precise legal definition of it, is when a worker is asked to step or stand aside, or excuse himself from work pending investigations into whatever improper conduct was alleged against him. Usually, the affected employee was placed on a percentage of his normal salary, about one third or one half part, and the part of the salary so withheld was paid to him in full if he was exculpated of the allegations, at the end of the investigations. Where the term suspension is used, but with the trappings of interdiction, that is that the part of the salary withheld was restorable upon being discharged of the allegations, then, in that case, suspension is not a punishment, but rather, a way in the procedure for establishing culpability or otherwise. Where therefore suspension is imposed on a worker to await findings of investigations then in that case, the affected worker would not require to be given a hearing before being suspended because it is during the suspension period that the matter against him would be gone into. In this appeal, the facts and evidence establish without doubt that the respondent was placed under suspension pending police investigations. This means the allegation against him was yet to be gone into, and his guilt or innocence would be established after that. The suspension, was therefore not a punishment. In this case.
I would not fault the appellant for not giving him prior hearing. A case in which an employee was interdicted in similar fashion as the herein respondent was ACHINA VRS. KASSONA-NANKANI LOCAL COUNCIL [1962] 1 GLR 499.
In that case the court did not go deep down into the merits of the interdiction. It was held that the plaintiff was not formally dismissed, he was deemed to have been under interdiction until he voluntarily vacated his post. He was therefore adjudged to be entitled to his interdiction money. Since he was not recalled from interdiction before he vacated his post, the part of the money that was withheld was not ordered by the court to be paid to him. This case under reference should however be distinguished from the instant appeal, in the sense that the respondent was entitled to recover the percentage of his salary that was withheld, in view of the failure of the Police to make any adverse findings against him, fuelled further by the Attorney-General’s advise against prosecution. The above conclusion notwithstanding, I have carefully examined the submissions on the alleged error of the trial judge in applying public law remedy to an
entirely private claim. Learned counsel for the appellant cited the cases of R.VRS EAST BERKSHIRE HEALTH AUTHORITY; EX Parte WALSH [1985] 1 QB 152; REPUBLIC VRS. HIGH COURT, KUMASI, Ex Parte MOBIL OIL GHANA LIMITED [2005-06] SCGLR 312 and LAGUDAH VRS. GHANA COMMERCIAL BANK [2005-2006] SCGLR 388. In the LAGUDAH case, Date-Bah JSC stated that “I am not persuaded that, in a commercial setting, in the absence of a contractual provision to the contrary, an employer is bound to comply with the rules of natural justice before dismissing the employee for misconduct. At common law, it is enough if the facts objectively establish cause for dismissal…”
With the greatest respect to learned counsel, the views expressed in the judgments cited do not oust the basic tenets of right and wrong which underlie and regulate all human affairs across board. Each case has to be determined according to its own circumstances and merits. I am yet to come across any arrangement be they private or public that would outst generally accepted principles of organized society.
It is a fact that in an employee/employer setting, the latter has right to dismiss without hearing. This principle comes with a rider that the employer could dismiss once he was satisfied that the conduct of the employee so warranted provided that the employer when called upon, in a trial, would be able to justify his action. I should point out furthermore that even in commercial cases, courts have power to declare contracts as improper, unconscionable etc., if certain provisions of unfairness were not provided for. The above however, is merely an academic exercise, in view of my earlier decision that the appellant, under the circumstances prevailing, committed no error in suspending the respondent without firstly, having given him a hearing. This conclusion was founded on my understanding that the suspension was to open the way for hearing or investigations, and that the employer would after that decide to recall or dismiss the respondent depending on the findings.
The second aspect of this case, that I consider very relevant to be resolved in this appeal is whether or not the appellant had right, in terms of the conditions of the contract of employment between them and the respondent to impose a suspension on him. At the beginning of this judgment, I mentioned that neither party had put before the trial court the contract of employment between the parties. It is expected that the contract of
employment would contain the terms under which, or which regulate the relationship between the parties. Such terms may include, salary, leave, expectations on each side, disciplinary procedure, what constitutes good or bad conduct, rights of the respective parties etc. The issue that would arise here is, on which side the burden of proof lies.
The respondent complained that the appellant should have given him a hearing, which the latter did not, and so the suspension was null and void.
On their part the appellants plead justification. It is my view that the onus is on the appellant to show that they did not breach the conditions of employment which they had with the respondent by suspending him. The legal requirement is clear. In LANDO VRS. ANGELO & ANOR. [1961] GLR 210 the plaintiff was initially dismissed from the employment of J. CONTE LTD., a building contracting company.
The plaintiff sued for wrongful dismissal. At the trial the defendant company led evidence contrary to their pleaded case that they did not dismiss the plaintiff but merely suspended him for misconduct and disobedience.. The court per Ollennu J. held that
“(2) in any case, there being no provision in the contract of employment
empowering the defendants to suspend the plaintiff, the defendants
are not entitled to suspend him…”
The learned Judge stated further in the body of the judgment at page 211 that “Moreover, there is nothing in the service agreement, exhibit A which could be construed as giving the defendants power to suspend the
plaintiff for any cause. The law is that in the absence of any express
or implied term in a contract giving power to a master to suspend his
servant from his employment for misconduct, the master is not entitled
to punish the servant for alleged misconduct by suspending him from
employment…” Refer to Volume 25 of Halsbury’s Laws of England 3rd Edition page 518. See furthermore the case of HANLEY VRS. PEASE & PARTNERS LTD. [1915] 1 KN 698 at 751 and the commentary on its ratio decidendi as discussed in CHITTY ON CONTRACT 27TH EDITION para. 37-073. In the HANLEY case (supra)
it was held that
“there is no generally implied contractual right on the part of employers
to suspend employees without pay on disciplinary grounds. It must
be shown that there is an express or implied term in the particular
contract justifying this inroad upon the employer’s normal obligations
to the employee; and written particulars of such terms must now be
given to the employees.”
In the instant appeal, the appellant did not show the power which entitled them to impose the suspension term on the respondent. In the course of her evidence in chief, the witness on behalf of the appellant talked about the fact that the respondent had been implicated in a case of losses at the East Legon Filling Station which the Police were investigating. When a question was put to her by her counsel, the witness maintained that the appellant followed procedure in suspending the respondent. What the appellant failed to do was to show which procedure it was that they claimed to have followed. It is my view that if such a right or power to suspend the respondent existed in the contract of employment, the appellants would have quickly tendered, or referred to it.
As matters stand, I am bound to hold that there was no condition in the contract of service between the appellant and the respondent, which vested power in the appellant to suspend the respondent on disciplinary grounds.
I have carefully cautioned myself as to the propriety in presenting this letter view as regards the powers reserved to the parties in a contract of employment and the invocation of such powers. This is because the want of jurisdiction on the part of the appellant was not stated in very clear terms in the notice of appeal even though the respondent merely claimed that the suspension was contrary to procedure. I am however fortified in my stand by the provision in rule 8(8) of CI 19, the Court of Appeal Rules 1997 which grants power that
“(8) Notwithstanding sub rules (4) & (7) of this rule, the court in
deciding the appeal shall not be confined to the grounds set out by
the appellant but the court shall not rest its decision on any ground
not set out by the appellant unless the respondent has had sufficient
opportunity of contesting the case on that ground.”
Where the respondent indorsed his writ with a claim for a declaration that his suspension was null and void and of no effect, and the action was fought on that basis it is my respectful view that the appellant had obligation to demonstrate the source of the right
to suspend. Appeal fails and it is dismissed.
G.M. QUAYE
JUSTICE OF APPEAL
I agree. R.K. APALOO
JUSTICE OF APPEAL
I also agree. P.K. GYAESAYOR
JUSTICE OF APPEAL
COUNSEL: MR. PEASAH BOADU FOR DEFENDANT/APPELLANT.
MR. HAYIBOR DJABENG FOR THE PLAINTIFF/RESPONDENT.
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