Labour LAW Assignment - WHETHER AN ORDER TO RE-ENGAGE A DISMISSED WORKER IS ACCEPTABLE PDF

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WHETHER AN ORDER TO RE-ENGAGE A DISMISSED WORKER IS ACCEPTABLE...

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COURSE:

LABOUR LAW II

QUESTI ON

“An employee cannot be awarded an order for his reinstatement into a job from which he has been removed unlawfully, unless there is a public law element which requires otherwise…” By Dr Date-Bah, JSC, in Bani v. Maersk Ghana Limited [2011] 2 SCGLR 796 at 807. Discuss the above statement of law, fully touching upon circumstances in which reinstatement is permissible or not permissible, your analysis indicating the remedies available in both situations, citing relevant authorities. (30 marks). INTRODUCTION An unlawful dismissal is a dismissal or termination of employment which is not in accordance with either the general principles of common law, the contract of employment between parties. The dismissal could also be one that infringes on statutory requirements. That Statutory provision being the Labour Act 2003, (Act 651) refers to all the above instances as unfair termination.

WHAT CONSTITUTES UNLAWFUL DISMISSAL OR UNFAIR TERMINATION The termination of job of any worker must only be backed by law. Section 63 of the Labour Act provides that the employment of an employee shall not be unfairly terminated by the employer. In addition subsection 2 of Section 63 provides that a worker’s employment is terminated unfairly if the only reason for termination is

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(a) that the worker has joined, intends to join or has ceased to be a member of a trade union or intends to take part in the activities of a trade union; (b) that the worker seeks office as, or is acting or has acted in the capacity of, a workers' representative; (c) that the worker has filed a complaint or participated in proceedings against the employer involving alleged violation of this Act or any other enactment; (d) the worker's gender, race, colour, ethnicity, origin, religion, creed, social, political or economic status; (e) in the case of a woman worker, due to the pregnancy of the worker or the absence of the worker from work during maternity leave; (f) in the case of a worker with a disability, due to the worker's disability; (g) that the worker is temporarily ill or injured and this is certified by a recognised medical practitioner; (h) that the worker does not possess the current level of qualification required in relation to the work for which the worker was employed which is different from the level of qualification required at the commencement of his or her employment; or (i) that the worker refused or indicated an intention to refuse to do any work normally done by a worker who at the time was taking part in lawful strike unless the work is necessary to prevent actual danger to life, personal safety or health or the maintenance of plant and equipment. There are instances where the employee conduct terminates the contract of employment but the law still deem it unfair termination of employment by the employer. Subsection 3 of Section 63 states that a worker’s employment is deemed unfairly terminated with or without notice to the employer, the worker terminates the contract of employment on the following reasons

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(a) because of ill-treatment of the worker by the employer, having regard to the circumstances of the case; or (b) because the employer has failed to take action on repeated complaints of sexual harassment of the worker at the work place.

THE ISSUE TO AWARD AN ORDER OF RE-INSTATEMENT INTO A JOB FOR UNFAIR TERMINATION To elaborate more on whether an employee can be awarded an order for reinstatement into a job, this calls for a restatement of the Ghanaian common law on the termination of contract of employment and the extent to which this has been modified by the statutory provision in the Labour Act 2003, (Act 651). The common law remedy available to an employee who has been wrongfully dismissed or unfairly terminated is an action for damages. In a High Court Case of Dr. Festus Nii Boye Boye v. GPHA, Her Ladyship Justice Gifty Dekyem (Mrs) made the following comment: “…It remains the common law that, the remedy available to an employee who has been wrongfully dismissed or terminated is an action for damages as enunciated in Felix Yaw Bani v. Maersk Ghana Ltd. The General Principle as laid down in the locus classicus, Hadley v. Baxendale [1854] 9 Ex 341 is that, the claimant is entitled to full compensation for his loses (restitutio in integrum)…” In the case of Ashun v. Accra Brewery Ltd [2009] SCGLR 81 It was held that …”in principle, in the absence of any contrary statutory or contractual provision, the measure of damages for wrongful termination of employment…was compensation based on the employee’s current salary and other conditions of service for reasonable period within which the aggrieved party was expected to find alternative employment…”

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At common law an employee cannot be awarded an order for re-instatement into a job for which he has been unlawfully removed. Another reason why the common does not award an order for re-instatement is that re-instatement is equivalent to specific performance of a contract of employment which is not permissible. Contracts of employments in general, may not be specifically enforced at the suit of the employer or the employee. This policy is to restrain the courts from interfering with personal liberties. In the case of Kobi and others v. Ghana Manganese Co. Ltd it was clearly stated that a contract of service is not a contract of servitude. It will not be conducive for the court to compel an employer to employ an employee it does not want to. The reason is that large element of personal relationship exist in many employment contract which would make them unworkable if the parties were forced to work together. In Halsbury Law of England (3rd ed.) page 485 stated that “ A servant whose conduct is incompatible with the faithful discharge of his duty to his master may be dismissed…Dismissed is also justified in the case of a servant…if his conduct has been such that it would be injurious to the master’s business to retain him” The common law position is also in agreement to Bowen LJ’s expression made when he said the employer is right to instantly dismiss the employee if the latter’s conduct is not only wrongful and inconsistent with his duty toward his master but also inconsistent with the continuance of confidence between them – Boston Deep Sea Fishing & Ice Co. Ansell (1888) 39 Ch. D 339 at 363 The turning point On the contrary, modern Legislation has been intervening to give employees a right for reinstatement. This is in recognition of the fact that modern relationship of an employer to an employee may have less of the personal element of the master and servant relationship in response to which the equitable principle developed that contract of employment should not be specifically enforced. In Ghana the statutory intervention that gave employees the right for an order of re-instatement has not been to set aside the equitable principle for enforcing contract of employments but it is a

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remedy that is made available to the Labour Commission under the Section 64 of Labour Act 2003, (Act 651).

CIRCUMSTANCES PERMISSIBLE FOR AN ORDER OF REINSTATEMENT Section 64 of the Labour Act 2003, (Act651) provides that a worker who claims that his employment has been unfairly terminated may present a complaint to the Labour Commission. If the Labour Commission finds that the termination of the worker is unfair, it may give him or her some remedies to include an order for re-instatement into the lost job. Section 64 provides: (a) an order to the employer to re-instate the worker from the date of termination of employment; (b) an order to the employer to re-employ the worker in the work for which the worker was employed before the termination or in any other reasonably suitable work on the same terms and conditions enjoyed by the worker before the termination; (c) or order the employer to pay compensation to the worker. One must not that the above statutory remedies are made available to the Commission but not, at least expressly, to the courts.

CIRCUMSTANCES NOT PERMISSIBLE FOR AN ORDER OF REINSTATEMENT The common law and the statutory provisions gives the employee rights to seek for an order of reinstatement in a job that he or she has been unlawfully dismissed. The provisions of Section 64, Labour Act 2003 are to be construed as not directed to the court but rather to the Labour Commission as remedies for reinstatement into ones job.

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Section 15, Labour Act 2003 can be construed as addressing the courts. Section 15 and 18 of Labour Act 2003 provides Grounds for termination of employment and Remuneration on termination of employment respectively. Section 15—Grounds for Termination of Employment. A contract of employment may be terminated, (a) by mutual agreement between the employer and the worker; (b) by the worker on grounds of ill-treatment or sexual harassment; (c) by the employer on the death of the worker before the expiration of the period of employment; (d) by the employer if the worker is found on medical examination to be unfit for employment; (e) by the employer because of the inability of the worker to carry out his or her work due to (i) sickness or accident; or (ii) the incompetence of the worker; or (iii) proven misconduct of the worker. These are the conducts of an employee which an employer may not wish to keep him or her. An employer can dispense off the service of an employee who exhibits the above conducts who feels such relationship is not healthy to the continuance of his business.

REMEDIES FOR WHERE AN ORDER FOR REINSTATEMENT ARE NOT PERMISSIBLE 6|Page

Section 18 provides the remedies for which an employee can apply to the court for being dismissed from work unlawfully. Section 18 of Labour Act 2003 provides as follows: (1) When a contract of employment is terminated in the manner stated in section 15, the employer shall pay to the worker, (a) any remuneration earned by the worker before the termination; (b) any deferred pay due to the worker before the termination; (C) any compensation due to the worker in respect of sickness or accident; and (d) in the case of foreign contract, the expenses and necessaries for the journey and repatriation expenses in respect of the worker and accompanying members of his or her family in addition to any or all of the payments specified in paragraphs (a), (b) and (c) of this subsection. (2) The employer shall pay to the worker not later than the date of expiration of the notice all remuneration due to the worker as at that date. (3) Where no notice is required, the payment of all remuneration due shall be made not later than the next working day after the termination. (4) Notwithstanding section 17(1), either party to a contract of employment may terminate the contract without notice if that party pays to the other party a sum equal to the amount of remuneration which would have accrued to the worker during the period of the notice. The above statutory provisions are the remedies readily available for the courts can grant a person who is wrongly dismissed or unlawfully terminated.

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The general rule is that specific performance or reinstatement of a contract of service will not be granted by the courts as discussed above. The main reason is to avoid compelling employers to work with certain personalities which is wrongful and inconsistent with the continuance of confidence between them. The general rule also seeks to avoid turning contracts of services into contract of slavery. This is based on the mutuality principle that the rights and obligations available to one party to a contract should likely be available to the other party. Alderson B stated in his judgment- Societe General de Compensation v. Ackerman [1972] 1 GLR 413 (CA) “Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, that is according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it.” The remedy usually available for wrongful or unlawful dismissal is damages or compensation, and this is mainly granted by the court. The purpose is to put the dismissed person in the same position as he would have been if the wrong had not been committed. This is based on the principle of restitutio in integrum.

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