PART 0NE: CASES ON FUNCTIONS/POWERS OF NATIONAL

LABOUR COMMISSION

LABOUR COMMISSION V. CROCODILE MATCHET

The facts which have ended in this appeal and which are deduced from and
formed the case of the appellant Commission were that one James Agyemang
Badu and five others, who until 19-12-2005 were employees of the Crocodile
Matchets Factory, complained to the National Labour Commission of unfair
and unlawful termination of their employment. They proceeded under section
64 (1) of the Act. The section read: Remedies for unfair termination.
(1) A worker who claims that the employment of the worker has been unfairly
terminated by the workers employer may present a complaint to the
Commission.”. National Labor Commission, acting under Section 172 of the
Labor Act, 2003 (Act 651) to file an application before the High Court, Tema,
for the Company to enforce its orders. The said section provided that:
“172. Enforcement of orders of the Commission.
Where a person fails or refuses to comply with a direction or an order issued
by the Commission under this Act, the Commission shall make an application
to the High Court for an order to compel that person to comply with the
direction or order.”

Ruling, Supreme Court

The two-man committee that sat to settle the industrial dispute was like a
three or five legged object with some legs missing; it is next to an
impossibility that it can stand; it will certainly collapse. The composition of
the two-man panel that sat to hear the petition was not well founded; it was
not justified either under Section 140 (3) of the Act, it required a the quorum
at a meeting of members of the respondent commission in the performance of
their judicial administrative and other functions is as stated in section 140 (3)
of Act 651, five persons representing government, employers and organized
labor including either the chairperson or deputy chairperson of the respondent
commission

In this case, the statute itself entrusted the duty or function of settling
industrial disputes to the Commission in Section 140 and prescribed the
quorum needed to settle them: see Section 140 (3) above. Statute also
expressly stated that the Commission may appoint a Standing Committee and
an ad hoc committee for the efficient discharge of its functions: see section
141 (2) of the Act. The statute did not classify the functions to be assigned
and they presumably comprised judicial and/or administrative functions.
Thus, the Commission has the express Statutory power to assign such of its
functions to a committee as it may determine, standing or ad hoc. Therefore
it was wrong for the Court of Appeal to hold that “there was nothing to show
that the respondent-Commission formed a committee of whatever nature or
scope to deal with the complaint made against the appellant.

NATIONAL LABOUR COMMISSION VRS GHANA

TELECOMMUNICATIONS LTD

This is an appeal against the decision of the Court of Appeal which affirmed
the decision of the High Court refusing to enforce an order of the National
Labour Commission under section 172 of the Labour Act of 2003, (Act 651.)
The commission as Applicant had gone to the High Court to seek
enforcement of its order against Ghana Telecommunications Ltd, the
Respondent herein after hearing a petition settling a dispute between the
Respondent one Williams Hayford Appiah an Ex-employee of the
Respondent. Appiah was employed by the Respondent in January 2002 as
Senior General Manager with the audit department of the company and later
promoted to the rank of a chief officer. Whiles in the employment of the
Respondent, Appiah was asked to furnish management with his curriculum
vitae

Following this request, Appiah submitted a curriculum vitae indicating that

between 1974 and 1981, he attended Benkum Secondary School, Larteh
where he obtained his GCE “O” and “A” levels Certificates. A follow up
investigation revealed that Appiah did not attend Benkum Secondary School
and indeed over the period stated by him, the school did not have a sixth form
and has not offered a sixth form programme since its inception. Rather,
further investigations revealed that Appiah sat for and obtained the “O” and
“A” level passes as a private student having attended private classes
organized by some teachers of Benkum Secondary School. The passes were
obtained one at a time between 1973-81. For his conduct, he was charged in
accordance with regulation 144 (iv) of the Staff Rules and Regulation of the
company and a Board of Inquiry set up to investigate the matter found him
guilty of the charge of fraud or other acts of dishonesty.

Following this, he was dismissed from the employment of the company by a

letter dated 26th September 2007.

Ruling
The petitioner’s case before the commission was not one of unfair Labour
practice and thus the order made by the commission was not made under
Section 133. Commission to make orders: (with regard to unfair labour
practice)
The Labour Commission does not have power to enforce its decision, hence
the application to the High Court. It is not for nothing that the decision must
be sent to the court for its enforcement. The intendment of the Law maker to
me is to ensure that due process was followed and that the decision is justified
on the facts and the law.
A court of law which seeks to do justice cannot make an order for the
enforcement of the commission’s order without satisfying itself that the order
sought to be enforced is justified in law especially where there is an affidavit
in opposition as to why the order cannot be enforced

The commission came to a conclusion that what the petitioner did amounted
to a breach of the above Regulation hence its decision that his dismissal
should be converted to termination under the Regulation. The commission
had no Jurisdiction to prefer its own charge against the petitioner and proceed
against him for an offence for which he was not charged. The commission
had no Jurisdiction to prefer its own charge against the petitioner and proceed
against him for an offence for which he was not charged.

REPUBLIC V. HIGH COURT, ACCRA (INDUSTRIAL AD LABOUR

DIVISION), EX PARTE SANGBER-DERY (ADB INTERESTED
PARTY)

The applicant herein was an employee of the Agricultural Development Bank Ltd.,
the Interested Party herein, to be described as the Bank. In or about November
2015, the Bank declared the applicant redundant and consequently terminated his
appointment. The Bank paid the applicant some benefits which the Bank
considered to be his just entitlements. The applicant, believing that he has been
unjustly removed from office, instituted an action by way of a writ of summons
accompanied by a statement of claim (exhibit PS1) at the High Court claiming,
inter alia, these reliefs:

1. A declaration that the termination of the plaintiff's employment by way of

redundancy without agreeing with the plaintiff on the amount of the redundancy
pay and the terms and conditions of the payment thereof is unlawful and in
breach of the contract of employment of the plaintiff.
2. An order directed at the defendant to pay the plaintiff redundancy pay
calculated at three (3) months of plaintiff's salary for each year served by the
plaintiff less the amount......paid by the defendant as severance pay into the
plaintiff's bank account.
3. General damages for wrongful termination of plaintiff's employment.
This is the full text of the High court's order:
"The business for the day is to take Directions in this matter. I have carefully
perused the docket and the Court is of the firm view that this is a dispute
concerning the Plaintiff's redundancy pay. Under section 65(5) of the Labour Act,
such disputes are to be referred to the Labour Commission. Accordingly, the Court
hereby declines to hear this matter and refers the Plaintiff to the Labour
Commission. The suit is struck out for want of jurisdiction."

Supreme Court’s orders

Section 65(5) assumes that all matters pertaining to a redundancy exercise are
undisputed and if what remains to be resolved is the severance award then the
Commission has jurisdiction. Put in another way, where the parties have
negotiated the amount of severance pay and the terms of payment thereof but
they are unable to agree on these matters and a dispute arises, it is that dispute
that the Commission has power to resolve. The lawmaker was careful in restricting
the Commission to only severance award, leaving other issues to the courts

The court therefore has jurisdiction when the very fact of the redundancy is
challenged and when it decides on the liability of the employer, it has the power
to make the relevant award on the strength of the applicable law, terms of
employment and evidence adduced before it

In such scenario, there are two options open to such a court: it may strike out
those reliefs which are outside of its jurisdiction and proceed to hear those that
fall within its jurisdiction, or it may hear the whole case but decline to grant the
reliefs it is not competent to grant when it delivers its final judgment in the
matter.

The court below clearly committed an error when it declined jurisdiction and
referred the parties to the Commission when the issue of wrongful termination
was cognizable before the High Court as well as what damages or compensation
arises from such termination

PART TWO: CASES ON COLLECTIVE AGREEMENT

KOBEAH AND OTHERS V TEMA OIL REFINERY;

BOATENG AND OTHERS v TEMA OIL REFINERY
(CONSOLIDATED) [2003-2005] 1 GLR 485

And article 21(4) provided, inter alia, that “One of the following reasons may
justify the termination of the employment or the dismissal of the
employee. . .” and indicated the factual situations that might merit the
imposition of those sanctions. During an industrial action by the employees of
the company they locked out the chief executive, destroyed company property
and took over the running of the refinery for a week. The employees were
eventually moved out by the security agencies. Subsequently, the company
terminated the appointment of all the employees under article 4 (vii) of the
collective agreement and paid them all their entitlements. The employees then
brought an action against the respondent company for, inter alia, declaration
that the termination of their contract of employment was wrong, payment of
their accrued salaries and allowances, and damages for wrongful dismissal.
In support of their claims they contended that when articles 4 (vii) and 21(4)
of the collective agreement were read together it was clear that reasons were
required for the termination of their contract of employment and therefore
since no reason was stated in the letter terminating their appointment the
termination was wrongful and a breach of the collective agreement.

The trial High Court however dismissed their action on the ground that the
collective agreement empowered the respondent to terminate their
employment without assigning any reason. When the appellants’ appeal
from that judgment was dismissed by the Court of Appeal, they appealed
against that decision to the Supreme Court.

Held, dismissing the appeal: the circumstances of the take-over of the factory
by the appellants gave the respondent two options: it could have instituted
disciplinary procedures under article 21(4) or exercised its common law right
to terminate under article 4(vii) of the collective agreement by giving
appropriate notice and the payment of the appellants’ accrued salaries and
other entitlements. In an action for breach of contract of employment, the
employer was not liable for not doing what he was not bound to do.
Accordingly, since article 4(vii) did not require the respondent to give any
reasons for termination of the employment of the appellants under that
article, the termination of the appellants’ contracts of employment was not
wrongful.

The court also held that, if there is any conflict between the provisions of the
collective agreement extended to cover a worker and the terms of any
contract, the provisions of the collective agreement shall prevail, unless the
terms of the contract are more favorable. When the terms of the employment
contract are more favourable, the terms of the contract of employment
prevails
 VOLTA ALUMINIUM CO. LTD v AKUFFO AND OTHERS
[2003-2005] 1 GLR 502

The plaintiffs were members of the Industrial and Commercial Workers

Union (ICU) of the Trades Union Congress and former employees of the
defendant company. Article 13(a) of the labour agreement negotiated between
the ICU and the defendant and which was incorporated into the individual
employment contracts of the employees provided, inter alia, that: “If the
company terminates the service of a regular employee ... the company shall...
pay to the employee a sum equal to the amount of remuneration that would
have accrued to him during the period of the notice. Article 15(e) also
provided that: “Employees to be declared redundant will be given two
months’ notice or paid in lieu.” And by article 52 of the labour agreement
there was to be a salary review on 1 July 1994. A cutback in electricity supply
from the Volta River Authority to the defendant necessitated the shutdown of
one of the pot lines in the defendant’s smelter.

ICU and the defendant negotiated a benefits package that included six
months’ pay and, long service awards for employees who would be affected
by the expected redundancy exercise. On 16 May, 1994 the plaintiffs, among
others, were declared redundant and their appointments were terminated
under article 15(e) and they were paid their entitlements based on their
salaries as at 16 May 1994. Subsequently, as a result of the wage-re-opener
negotiations under article 52 between the ICU and the defendant, the
employees were given a 71.52 per cent increase in wages with effect from 1
July 1994. The plaintiffs then brought an action against, the defendant for,
inter alia, a declaration that the calculation of their terminal benefits should be
based on the amount or remuneration which would have accrued to them by
15 July 1994. In support of their claims, they contended, inter alia, that
articles 15(e) and 13(a) of the labour agreement should be read together
because redundancy under article 15(e) was a form of termination of
employment.

Held, allowing the appeal:

Section 10(4) of the Industrial Relations Act, 1965 (Act 299) now section
105(5) of Act 651 denied authority to individual employees to waive their
rights under collective agreements in order that the gains of collective
bargaining would not be whittled away by individual employees overawed by
the bargaining strength of their employer. However, that provision did not
deny to a trade union which had negotiated a collective agreement authority
to modify it or waive rights under it. On the evidence, however, it could not
be said that the union gave away the rights of the workers because even
though the union entered into negotiation on an expectation of a 60 per
cent rise in wages, not only was there no contractual or other right to such
increase, but the actual increase achieved by the negotiations with
management was 71.52 per cent. Accordingly, the majority of the Court of
Appeal had no legal basis for setting aside the agreement reached between
the trade union officials and the defendant company.

Although section 33(9) of the Labour Decree, 1967 (NLCD 157) provided
that whenever an employer who was terminating the employment of an
employee decided to pay the employee in lieu of notice, the pay should be
equal to the amount of remuneration which would have accrued to the
employee during the period of notice, section 33(10) of NLCD 157 provided
that section 33(9) of NLCD 157 was applicable to only “oral engagement to
work.” Accordingly, since in the instant case the employment contract
between the defendant company and the plaintiffs incorporated the collective
agreement which was in writing, section 33(9) of NLCD 157 was inapplicable
to the plaintiffs.
On the evidence, the ICU had entered into good faith negotiations with the
defendant which had taken into account an expectation of a 60 per cent rise
in wages. However, there had been no contractual or other right to such
increase. Therefore, the ICU could hardly be charged with giving away any
right. In the end, since the actual increase achieved by the negotiation was
71.52 per cent, it was not legitimate for the majority of the Court of Appeal to
castigate the ICU for negotiating away the rights of the employees.
Accordingly, the majority of the Court of Appeal had no valid legal basis for
setting aside the redundancy agreement between the ICU and the defendant.

It was clear from a review and construction of the totality of the labour
agreement that articles13—dealing with termination or resignation—and 15
—dealing with redundancy— had different purposes and therefore should not
be interpreted as one provision. On a true interpretation of article 15(e) the
employer in a redundancy situation had an option either to give the
employees two months’ notice of their termination or to pay them two
months of their existing salary, ie at the date of termination in lieu of such
notice (legal principle). Thus, the importation into article 15(e) of the concept
of payment under article 13(a) that the sum to be paid in 1ieu of notice in the
event of termination or resignation should be “a sum equal to the amount of
remuneration which would have accrued to [the employees] during the period
of notice” would be far-fetched and not justified by the overall structure of
the labour agreement. Accordingly, in reading articles 13(a) and 15(e) of the
labour agreement together, the majority of the Court of Appeal strayed
beyond the bounds of interpretation into re-making a contract for the parties
to the labour agreement. That position was indefensible.
NARTEY-TOKOLI AND OTHERS v. VOLTA ALUMINIUM CO. LTD.
(NO. 2)  [1989-90] 2 GLR 341-379

The employees of the defendant-company (Valco) were members of the

Industrial and Commercial Workers Union of the Trades Union Congress of
Ghana (I.C.U.).  A collective agreement (exhibit A) negotiated by I.C.U. and
Valco under the Industrial Relations Act, 1965 (Act 299), inter alia, provided
by article 14 that in the event of Valco undertaking a redundancy exercise to
lay off workers, length of service should be the determining factor, and where
a less senior worker was to be retained because of his ability or skill I.C.U.
should be informed.  Article 14 (e) further provided for two months' notice
or two months' salary in lieu thereof for determination of appointments. 
Article 1 proscribed the entry by any employee into any contract outside
exhibit A affecting his service conditions or bonding him to Valco without
prior discussion with I.C.U. When the plaintiffs, numbering 463 were not
recalled after their fourteen months' lay off they brought action against Valco
for: Meanwhile in the wake of the power reduction Valco had negotiated with
its local union of I.C.U. and the workers defence committee (W.D.C.) a
programme called "Leave of absence without pay/recall programme"
(L.O.A.) under which staff in excess of Valco's labour requirements were to
be disengaged for periods of up to fourteen months on condition that if at the
end of the period a worker had not been re-engaged he should consider
himself redundant with effect from twelve months retrospectively.  Each
worker was also, inter alia, to be given a farm loan equivalent to what he
would have been entitled to under a normal redundancy exercise.  In
pursuance of the L.O.A., three batches of workers were sent home on 1
November 1982, 7 February 1983 and 31 December 1983 in response to the
successive reduction of electricity to Valco.  (a) damages for wrongful
termination of employment; (b) a declaration that the purported
termination of their employment was null and void; and (c) arrears of all
salary, allowances and benefits due them, on the ground that Valco did not
comply with the provisions of exhibit A in dispensing with their services. 
They contended [p.343] that only the I.C.U. could, under exhibit A, negotiate
on their behalf and since the L.O.A. was negotiated by the local union and the
W.D.C. who lacked capacity to act on their behalf, the L.O.A. was void and
they were not bound by it. 

Ruling
Under the provisions of the Industrial Relations Act, 1965 (Act 299), ss. 5, 6-
7 and 10 the agreement (L.O.A.) was, in relation to the collective agreement,
invalid and null and void because: (i) the parties who entered into it had no
legal capacity to negotiate any employment terms or redundancy conditions
for Valco and its employees; (ii) section 10 (2) and (4) of Act 299 now
section 105(4) of Act 651 specifically and mandatorily denied a right to an
employee covered by a collective agreement to waive such rights for new
ones; and (iii) in purporting to declare redundancy the defendants did not
follow the procedural machinery set up under the collective agreement in
breach of section 10 of Act 299.  The plaintiffs were therefore entitled to a
declaration that the purported termination of their employment was null
and void and of no effect

When the legislature ... has devised mandatory and imperative provisions for
the protection of any employee or any person, an argument that the provisions
can be lawfully ignored and another provision said to be beneficial to the
employee or person substituted at the discretion of the court or any person is
one that a common law judge should not countenance.  It is an invidious and
dangerous argument subversive of the legal order

It is provided by the Industrial Relations Act, 1965 (Act 299), s. 10 (2) and
(4) that now in section 105(2) of Act 651. The provisions of a collective
agreement under this Act concerning terms of employment and termination of
employment, and personal obligations imposed on, and rights granted to, an
employee or employer shall be regarded as terms of a contract of employment
between each employee to whom the provision applies and his employer. The
rights conferred on an employee by a collective agreement under this Act
shall be rights which cannot be waived by the employee and, if there is any
conflict between a term of a collective agreement under this Act and the
terms of any contract not contained in such a collective agreement, then the
collective agreement shall prevail, whether or not the contract was
concluded before the collective agreement." (Similar holding in Kobeah &
Ohers v Tema Oil Refinery)

HEMANS v. GHANA NATIONAL TRADING CORPORATION

(GNTC) [1978] GLR 4-14

The appellant's terms of employment with the respondent corporation were

covered by a collective agreement under Act 299, by article 20 (a) of which it
was provided that: "where the services of an employee have proved
unsatisfactory or where he commits an offence which does not warrant
summary dismissal, then the employer may issue a written warning to which
the employee may reply. After two written warnings have been given or the
service of the employee continues to be unsatisfactory within a period of
twelve months, the employer shall have the right to terminate the employment
of the employee."
The respondents without written warnings terminated the appellant's
appointment on the ground that investigations had revealed huge shortages at
the departmental stores traceable to his negligence.  He was paid his
entitlements in lieu of notice and made to endorse the receipt (exhibit G)
discharging the respondents from further liability.  After the appellant's
petition for re-instatement had been refused he sued the respondents for, inter
alia, damages for wrongful dismissal.  In their defence the respondents
submitted that by endorsing exhibit G the appellant discharged them from
further liability.  They further submitted that since the appellant was paid a
month's salary in lieu of notice his appointment had been lawfully
terminated.  The trial judge upheld the respondents' submission and dismissed
the appellant's claim.
On appeal, counsel for the appellant contended that exhibit G was not a
complete discharge and that since there had been a breach of contract of
employment the appellant was entitled to damages for wrongful dismissal.
Counsel further urged the court to consider a possible award for the
appellant's injured feelings.

Held, allowing the appeal:

(1) in accordance with section 10 (4) of the Industrial Relations Act, 1965
(Act 299), the discharge, exhibit G, signed by the appellant was of no legal
effect since it was a purported waiver of his statutory rights.
(2) Before the appellant's appointment could have been lawfully terminated
the right to terminate should have accrued under article 20 (a) of the
collective agreement. Since at the time the appellant was dismissed he had not
been warned in terms of article 20 (a) the termination was unlawful.
(3) Where the compensation for lawful termination of a contract of
employment was one month's pay it would appear preposterous to award the
same one month's salary where the termination was unlawful.  In the instant
case a just award was four months' salary.

It is provided by the Industrial Relations Act, 1965 (Act 299), s. 10 (4) that:
"10. (4) now section 105 (4) of Act 651. The rights conferred on an
employee by a collective agreement under this Act shall be rights which
cannot be waived by the employee and [p.5] if there is any conflict between
a term of a collective agreement under this Act and the terms of any
contract not contained in such a collective agreement, then the collective
agreement shall prevail, whether or not the contract was concluded before
the collective agreement."
 REPUBLIC v. STATE TRANSPORT CORPORATION; EX PARTE
DJORHOE [1975] 2 GLR 471-479

In pursuance of the provisions of the Industrial Relations Act, 1965 (Act 299),
s. 10, a collective agreement was signed between the State Transport
Corporation (the Corporation) and a union of the Ghana Trades Union
Congress. The collective agreement laid down a mandatory procedure to be
followed whenever an employee of the corporation was to be dismissed. The
procedure was that a disciplinary authority appointed by the managing
director of the corporation must first serve the employee with dismissal
charges.  Where the employee's explanation was unacceptable, the
disciplinary authority was to appoint a committee of three members "who
shall investigate the case and make a report thereon." The collective
agreement further provided that "No employee shall suffer punishment
without being given the opportunity of defending himself against the charges
brought up against him." By its letter, the  corporation dismissed the
applicant, a driver grade 1, without complying with the procedure as to
dismissal.  The applicant therefore applied for certiorari to quash the
termination letter.  On an objection by the corporation that the application be
dismissed in limine because certiorari did not lie in the circumstances and that
the applicant's remedy, if any, was to be an action for damages for wrongful
dismissal

Ruling, Supreme Court

Held, overruling the objection: taking into consideration the Industrial
Relations Act, 1965 (which gave birth to the collective agreement), the
employee had a right to be heard by the three committee members and the
failure of the corporation to take the preliminary steps (which in law were
essential) rendered it powerless to dismiss and the purported dismissal was
therefore a nullity.  The employee's contract had never been terminated and
he remained legally in his employment.  In so deciding the court was not
ordering a reinstatement which in effect would have been a decree of specific
performance
Obiter.  If the collective agreement, which gave the employee something in
the nature of a status capable of protection, had not laid down the procedure
to be followed before dismissal, the court would have held that the remedy
open to him was an action for damages for wrongful dis missal
 DZAISU & ORS VRS. GHANA BRWERIES LTD.

The Plaintiffs/Appellants (hereinafter called the appellants) were employed as

casual workers by Ghana Breweries Ltd, the Defendant/Respondent
(hereinafter called the Respondent), in various periods ranging between the
years 1993 to April 2003. The appellants claimed they did the same work as
the permanent workers and yet were denied all other benefits and allowances,
which the Respondent made available to the regular or permanent workers
under a Collective Bargaining Agreement (CBA). Some of these benefits
were particularised in Paragraph 5 of the statement of claim to include:
overtime, night allowance, annual leave, back pay and participation in credit
and trade unions. According to the appellants they made several petitions to
the respondent to upgrade and make them permanent employees without
success. They also wrote to the Labour Office for help but to no avail, so they
instituted this action before the court

Ruling, Supreme Court

We endorse the finding of the Court of Appeal that the plaintiffs did not do
substantially the same work as the permanent staff.  The appeal fails on this
ground

under the repealed Labour Decree NLCD 157 that was applicable at the time
some of the plaintiffs were employed, it was not obligatory for an employer to
convert the status of a casual labourer to that of a permanent employee. We
will like to stress that the position is the same under the current Labour Act, 2003,
Act 651, which was in force at the time this writ was issued. Furthermore the
Labour Act does not require that a contract of a casual employment shall be
in writing.  See Section74 (1) which states:  “A contract of employment of a
casual worker need not be in writing.’

legal position as found under section 75 (1) of the Labour Act. Section 75 (1)
states: “A temporary worker (not casual worker/employee) who is employed
by the same employer for a continuous period of six months and more shall
be treated under this Part as a permanent worker”. So clearly there is no
statutory or contractual basis upon which the appellants could anchor their
claim for graduation from the status of casual workers to that of permanent
workers

It is to be noted that the Labour Act, 2003, Act 651, has repealed the
Industrial Relation Act, and the relevant section is now Section 105 (1) of Act
651, which provides in similar terms that:
“ (1) An agreement concluded by a trade union through a standing negotiating
committee or a joint standing negotiating committee shall, so far as the terms
of the agreement permit, apply to all workers of the class specified in the
certificate.”(Emphasis ours). “all employees” without distinction as to casual
or permanent status in the company. We are of the opinion that such 
interpretation  would lead to an absurdity, as senior staffs and supervisors are
also permanent employees but are not covered by the CBA. From the
foregoing we hold that the term “all employees” as used in the preamble of
the CBA and in other Articles does not apply to a casual worker in the
respondent’s company, but rather applies to unionized and permanent workers
who are members of the ICU of the TUC branch at Ghana Breweries Ltd

However, we wish to stress that although there is no legal requirement that a

contract of employment of a casual worker need be in writing, yet Section 74
(2) of the Labour Act, offers a casual worker some protection in the form of
conditions of employment, which every employer is obliged to comply, and
are therefore actionable. These are: “ A casual worker shall
(a) be given equal pay for work of equal value for each day worked in that
organisation;
(b) have access to any necessary medical facility made available to the
workers generally by the employer;
(c) be entitled to be paid for overtime work by his or her employer in
accordance with section 35; and
(d) be paid full minimum remuneration for each day on which the worker
attends work, whether or not the weather prevents the worker from carrying
on his or her normal work and whether it is possible or not, to arrange
alternative work for the worker on such a day.”

JAMES BAIDEN & OTHERS v GRAPHIC CORPORATION

The appellants were the employees of the respondent Graphic Corporation.

Their relationship was governed, inter alia, by a collective agreement. Section
28.03 thereof provided for long service awards to the employees, while
section 28.04 provided for end of service awards. However, in December
1990, the government of the Provisional National Defence Council (PNDC),
directed all public corporations and the state organisations having end of
service benefits to freeze them and to arrange with the unions regarding
payments to their employees entitled to such benefits up to the end of
December 1990. Pursuant to this directive and following talks on the matter
between the Ministry of Mobilization and Social Welfare, the Trade Union
Congress and management of the respondent, the end of year benefits were
calculated and 40 per cent thereof was paid out to the plaintiffs, leaving 60
per cent thereof on hold, which was paid to them upon the termination of their
employment in 1993
On 29 October 1993 the plaintiffs and others totalling 155 in number, were
served with letters, in identical terms, of termination of their employment
with the respondent. On their own evidence, in addition to the end of service
benefits as they stood at the end of December 1990 they were paid severance
awards and their provident fund contributions after the necessary deductions.
The appellants' however, contend that they were entitled to their end of
service awards from their time of employment up to the date of the
termination of the same on 29 October 1993 based on the provisions of
section 28.04 of their collective agreement. This claim was upheld by the trial
judge on the ground that the aforementioned directive of the PNDC was
contrary to the provisions of the Industrial Relations Act, 1965 (Act 299), as
it violated section 28.04 of the said collective agreement. This holding was
reversed by the Court of Appeal on the ground that the said directive of the
PNDC has been accorded
constitutional immunity by section 34(3) of the Transitional Provisions of the
1992 Constitution

The purview of the PNDC's policy statement on end of service benefits

envisages the huge lump sums that fell to be paid to employees from the end
of service schemes, which were a big stress on the country's economic
stamina. On the other hand the two to four months' severance awards were
not of such a nature; they are comparatively small. In my view, therefore,
the severance
awards fall outside the purview of the mischief aimed at in the PNDC's
policy statement concerning end of service benefits and should therefore be
retained by the plaintiffs/appellants.
I am fortified in this view by the fact that at page 10 of exhibit H, the PNDC
itself, acting through the Redeployment Management Committee, provides
under the heading "COMPENSATION PACKAGE"
for:
"(i) a severance payment equivalent to four months of gross terminal
salary;
(ii) an end of service payment equivalent to two months of gross salary at
the time of termination
for each year of uninterrupted service."

It is quite clear on the evidence that the defendant/respondent did not comply
with the requirement of section 23(a) by giving "the union two (2) calendar
months' notice in advance of final action being taken" as to the redundancy
exercise. In Nartey-Tokoli v Volta Aluminium Co Ltd (No 2) [1989-90] 2
GLR 341
In this case the defendant/respondent/respondent did comply with the
requisite condition for terminating the employment of the plaintiffs/appellants
laid down under section 20 of the collective bargaining agreement by paying
up the equivalent salaries in lieu of notice. But as pointed out (supra), this
was a redundancy exercise and with respect to that there is the additional
requirement as to notice of two months prior to final implementation of the
same, which the defendant/respondent/ respondent did not comply with. In
Kobea v Tema Oil Refinery [2003-2004] 2 SCGLR 1033

As this is purely a ministerial, mathematical exercise, and with the parties'

consent, we order that the parties with their counsel should together work out
the computation involved and any resultant unpaid difference should be paid
over to the appellants together with interest at the prevailing bank rate as at
today,sic from the 29 October 1993 to this day

My brother Dr Twum, J.S.C. has held that the severance awards paid to the
plaintiffs should be disallowed because they also constitute end of service
awards, made, if I understand him aright, beyond the frozen period of end of
service benefits. I, however, with respect, differ from him on this issue. In
Volta Aluminium Company Limited v Tetteh Akuffo [2003-2004] SCGLR
1158 there are dicta which indicate that severance awards made consequent
upon a redundancy exercise are also end of service benefits. That may be so
on the special facts of a particular case. However in this case, the end of
service benefits are clearly set out in section 28.04 of the collective
agreement. These do not include severance awards