Ending Employment Relationships Under Ghanaian Law: Basic Terms (2)
The first part of this piece discussed in general terms the differences between termination and dismissals under the Ghanaian law. The piece went on to look at the differences between a dismissal (simpliciter) and summary dismissal. The author also considered the differences between unlawful dismissal and wrongful dismissal.
The second part of this article examines the concept of termination in a bit more detail; and considers the concepts of wrongful termination, unlawful termination, and unfair termination.
As was noted in the first part of the article, a termination comes about when the employer or in the case of a resignation, an employee exercises his contractual right to bring the contract to an end. It is worth noting that there is no negative inference in being terminated. As some cases put it, there is no embarrassment in being terminated. And the employee walk away with his or her benefits intact. In most instances, where an employee alleges that he has been wrongly terminated, the employee’s main cry is that the relevant notice requirement has not been met or more generally, the terms of the employment contract have not been complied with.
In John Tagoe v Accra Brewery Limited[1], the Supreme Court summed up the requirement for proving wrongful or unlawful termination as follows:
“However, in a claim founded on
wrongful terminationof employment contract, the plaintiff assumes the initial burden of producing evidence to satisfy the court about his terms of employment and also that the termination of his appointment was contrary to the terms of his appointment or existing law. The Defendant would then be obliged to produce evidence to justify the termination.”
Similarly, the Court of Appeal in Faustina Asantewaa & 7 ors v Registered Trustees of the Catholic Church of Koforidua[2]at page 180 held that a termination is said to be unlawful where the parties who terminate the employment fail to give the required notice or salary in lieu of notice.
In Kobea & Ors v Tema Oil Refinery; Akomea Boateng & Ors v Tema Oil Refinery (consolidated)[3], the court equated wrongful termination with breach of contract. The court held that in an action for breach of contract of employment, the employer was not liable for not doing what he was not bound to do.
From the above definitions, it is clear that there is no difference between a wrongful termination and an unlawful termination. In both “wrongful termination” and “unlawful termination”, the employee’s main obligation is to (a) establish the terms of her employment; and (b) and demonstrate how the breach has occurred.
The determination of whether a termination is wrongful or unlawful is primarily an exercise of
“The company is not bound to give reasons or show grounds to justify the termination. It may even be unfair as for instance where it is caused by a quarrel or clash of personalities. But if notice requirements or other contractual terms are complied with, it is lawful.”
Thus, it matters not whether the undercurrents leading to the termination of the employment was tainted with malice or instigated by quarrels or clashes of personality. What matters is whether the employer has complied with all the contractual requirements.
In the Nigerian case of Afribank (Nig) Plc v Osisanya[4], Amaizu J.C.A (following the reasoning of the Ghanaian Court of Appeal) noted that:
“In a purely master and servant relationship devoid of any statutory flavour and in which the relationship is purely contractual, as in this case, termination of employment by the employer cannot be wrongful unless it is in breach of the terms and conditions of the contract. Notwithstanding that the employer gave a totally untenable reason for the termination, once he complies with the terms of the contract, there could be no breach of contract of employment.
Similarly, inAgbo v. Central Bank of Nigeria[5], the Nigerian Court of Appeal per Uwaifo JCA (as he then was) stated that “… where an employment has been properly terminated in terms of the contract of service, intention and motive of the termination become irrelevant”
Further, in another Nigerian Court of Appeal (Port Harcourt Division) case of Rivers Vegetable Oil Company Ltd v. Mrs. Mercy Egbukole[6], the position of the law was summed up as follows:
The position is that the validity of the exercise of a right – in this case a right to terminate an employment cannot be vitiated by proof of malice or improper motive. And the law has always been that in the ordinary case of master and servant, the master can terminate the contract of employment at any time for good or for bad reasons or for none. In other words, motive which impelled an employer to terminate lawfully a contract of employment is not relevant in the determination of an action by the employee for breach of contract of employment:
The final concept to be examined is unfair termination. The concept of unfair termination is unique and takes its origin from the Labour Act, 2003 (Act 651). The circumstances under which an unfair termination under Act 651 arises include terminating a worker because of the worker’s gender, race, colour, ethnicity, origin, religion, creed, social, political or economic status; or in case of a woman worker, due to pregnancy of the worker or the absence of the worker from work during maternity leave; or in the case of a worker with a disability, due to the worker’s disability. (See Section 63 for the full list). In Republic v High Court, Accra (Industrial and Labour Division Court 2); Ex Parte Peter Sangbah-Dery[7], the Supreme Court noted that the prohibited grounds for the termination of employment under section 63 of Act 651 is simply restatements of the human rights provisions under the Constitution. Benin JSC noted:
Upon a close look at section 63 of the Act, it will be noticed that the grounds stated therein as grounds of unfair termination of employment are largely taken from the Human Rights provisions of the 1992 Constitution particularly articles 24, 26 and 29 and it appears the legislature was merely seeking to give effect to those provisions.
[1][2015] GHASC 10 (25 March 2015)
[2][2016] 92 GMJ 176
[3] [2003-2004] SCGLR 1033
[4][2000] 1 NWLR (Pt. 642) 598 C.A
[5](196) 10 NWLR [pt.478] 370 at 377
[6](No: CA/PH/139/2002)
[7](Civil Motion No. JS/53/2017)
Educative piece