FUSEINI VRS ROYALS VVIP (A2/66/22) [2023] GHADC 946 (7 September 2023)

IN THE DISTRICT COURT 2, TAMALE HELD ON THURSDAY 7TH SEPTEMBER, 2023 BEFORE HIS WORSHIP D. ANNAN ESQ. SUIT NO. A2/66/22 BETWEEN FUSEINI FUSEINI - PLAINTIFF AND ROYALS VVIP - DEFENDANT JUDGMENT INTRODUCTION 1. This judgment relates to employment/labour law. 2. The plaintiff described himself as a former chief security officer of the defendant company. The defendant is transport company with branches nationwide. This case regards the defendant’s transport terminal at Tamale. 3. On 14th June, 2022 the plaintiff took out a writ of summons against the defendant for the following reliefs: “a. A recovery of 9 months’ salary which is the period during which the plaintiff took ill. b. Interest on the said salary accrued from the date it became due to the date of final payment. c. General damages. - 1 - d. Legal costs. e. Any other relief(s) as the justice of this case may require.” 4. The defendant on 19th May, 2022 filed a response basically disputing the plaintiff’s claim. It contended that the plaintiff had feigned illness and abandoned his post for 9months. It, therefore, counterclaimed as follows: “a. A declaration that the plaintiff is in breach of his contract of employment for absenting himself from work for 9months, without permission of or notification to the defendant. b. Damages for breach of contract.” 5. Attempts were made at the labour office, Tamale to settle, but same failed. Parties thereafter resorted to this court for determination. Accordingly, parties were ordered to file their respective witness statements. The case of either party is detailed below. PLAINTIFF’S CASE 6. Plaintiff in his evidence stated that he was appointed in the defendant company at the Tamale terminal as a chief security cum chief porter. He attached copy of his appointment letter dated 8th March, 2013 as Exhibit A. He averred that per his nature of work, he reported to work every day, without taking any leave or sick days off. Unfortunately in 2022, he was bedridden for 9months and while receiving traditional treatment, the defendant refused to pay his salary. Upon his recovery, he tendered in his resignation and made a claim for the unpaid salaries. He added that he reported the matter to the labour office in Tamale, but the defendant refused to pay the 9months salary. Hence, this present action for the aforementioned reliefs. - 2 - DEFENDANT’S CASE 7. The defendant company testified through its officers, Ibrahim Alhassan (DW1), Adam Rufai (DW2) and Hafiz Mumuni (DW3). According to DW1, who is the Regional Manager, the plaintiff was employed as a loading boy in 2017. He disputed the fact that the plaintiff was employed as chief security in 2013. He contended that the appointment letter of the plaintiff, Exhibit A, is not on the main letterhead of the defendant company. He tendered a copy the defendant’s letterhead as Exhibit 1. He contended further that Exhibit A is fraught with typographical errors such that the content therein is not reflective of the defendant company. Nonetheless, he admitted that the plaintiff was an employee of the defendant. He added that the plaintiff abruptly stopped reporting to work in December 2021, without any notice. DW1 indicated that the chief security invited the plaintiff to explain why he (plaintiff) was not reporting to work, but plaintiff could not say anything. Then, the chief security instructed plaintiff to report to work or would have him suspended. Despite this, the plaintiff did not report to work and about a week of absence, he (DW1) personally called plaintiff to the office and at a meeting with the other staff, he enquired from plaintiff why he had absented himself. There plaintiff replied that he was not well and was seeking herbal treatment. According to DW1, he informed the plaintiff that what he (plaintiff) did was wrong and should have formally notified the defendant company. Nonetheless, he gave plaintiff a week to treat himself and report back to work, thereafter. DW1 averred that plaintiff then left and never returned. Nine (9) months later plaintiff shows up claiming for unpaid salaries. DW1 added that plaintiff never tendered in any resignation letter. 8. DW1 contended that the loading boys do not go on leave and that even when offered to the plaintiff, plaintiff would not go on leave. He contended further that plaintiff was not sick and that he saw plaintiff on numerous occasions in town. He alleged that - 3 - plaintiff was rather going to farm and deliberately chose not to report to work. He added that when plaintiff was working at the loading bay particularly on parcels, he connived with some of the drivers to appropriate fess, and that since the defendant formally opened a parcel office, plaintiff was no longer making money and so abandoned his work under the pretence of illness. 9. DW1 and DW3 added that they were employed with the plaintiff on the same day 13th June, 2017. DW3 stated that he and plaintiffs were engaged as loading boys. DW2 and DW3 corroborated the evidence of DW1 and added that they personally saw plaintiff on several occasions riding his motorbike in town, looking all healthy during plaintiff’s period of absence. DW3 indicated that when he and plaintiff were at post, plaintiff would not come to work early and the excuse plaintiff gave was that he was going to the farm. DW2 and DW3 maintained that plaintiff had simply refused to report to work under the pretence of ill health. ISSUE FOR TRIAL 10. The issues borne out of the facts are: a. Whether or not the plaintiff had been unwell for 9months? b. Whether or not the plaintiff had abandoned his work for 9months such that he is not entitled to salary? c. Whether or not either party is entitled to his/its claims. BURDEN OF PROOF 11. In civil cases, the general rule is that the party who in his pleadings or his writ raises issues essential to the success of his case assumes the onus of proof on the balance of probabilities. See the cases of Faibi v State Hotels Corporation [1968] GLR 471 and In re Ashalley Botwe Lands; Adjetey Agbosu & Ors. v. Kotey & Ors. [2003-2004] - 4 - SCGLR 420. The Evidence Act, 1975 (NRCD 323) uses the expression “burden of persuasion” and in section 14 that expression has been defined as relating to, “each fact the existence or non-existence of which is essential to the claim or defence he is asserting.’’ See also ss. 11(4) and 12(1) and (2) of NRCD 323. 12. It is when the claimant has established an assertion on the preponderance of probabilities that the burden shifts onto the other party, failing which an unfavourable ruling will be made against him, see s. 14 of NRCD 323 and the cases of Ababio v Akwasi III [1995-1996] GBR 774, Sarkodie v FKA Company Ltd. [2009] SCGLR 65 and Klah v. Phoenix Insurance Company Limited [2012] 2 SCGLR 1139. 13. Lastly, where there is claim and a counterclaim filed in the same action, the Supreme Court speaking through His Lordship Brobbey JSC (as he then was) in the case Aryeh & Akakpo v Ayaa Iddrisu [2010] SCGLR 891 held that, “A party who counterclaims bears the burden of proving his counterclaim …and will not win on that issue only because the original claim failed. The party wins on the counterclaim on the strength of his own case and not on the weakness of his opponent’s case…” See also the case Osei v Korang [2013] 58 GMJ 1. ANALYSIS OF THE ISSUE Issues a and b 14. At this moment, I shall consider issues a and b together. Issues a and b are: whether or not the plaintiff had been unwell for 9month and whether or not the plaintiff had abandoned his work for 9months such that he is not entitled to salary? 15. It is trite law that a contract of employment is an agreement between the parties, employer and the employee, as per the terms stated therein, save that should any of - 5 - the terms conflict with a statutory provision or that no express term was made, the statutory provision shall prevail. In Ghana, it is not uncommon to find employees working in conditions that are against the law. These employees will not report these unfavourable conditions for redress, until an issue arise. The Labour Act, 2003 (Act 651) provides for sick or annual leave for all workers. At section 24, it stipulates that: “Sick leave not part of annual leave A period of absence from work allowed owing to sickness, which is certified by a medical practitioner and which occurs after the commencement of and during annual leave shall not be computed as part of the leave.” 16. From the above, it means that a person is entitled to sick leave and same is different from an annual leave. Hence, an employer and employee cannot contract out of this statutory provision. It is, therefore, untenable on the part of the defendant company to say that even if the plaintiff was given the opportunity to go on leave, he would not take it. In certain instances, the said leave is accumulated or commuted with pay and it is a right so entitled the employee. Such right cannot be whittled away by a private agreement. Accordingly, the defendant is warned to do the needful at its workplace. 17. In our instant case, the issue regards the plaintiff alleging that he was unwell for a period of 9months. He claims he was not paid for the same period and so he has tendered in his resignation and now asking for the unpaid salaries. Defendant, on its part, is saying that the plaintiff was in fact not sick, rather plaintiff had faked it and was attending to his personal things. To defendant, plaintiff simply refused to report to work under the pretence of being unwell and so it was the plaintiff who had abandoned his post and therefore not entitled to any salary. - 6 - 18. As pointed out under section 24 of Act 651, the employee is entitled to a sick leave, subject to a certification by a medical practitioner. It is incumbent on the patient to so inform his employer that due to ill health and a certification from a medical practitioner, he cannot report to work. In Ghana, it is also common to hear people going for traditional or herbal treatment when unwell. However, in all instances, it does not preclude the patient-employee from notifying his employer that he is unwell. The employer is required to consider the said excuse and treat the employee as if he is still in employment and entitled to all benefits as appropriate. However, where an employee fails to notify his employer of his ill health, with or without any medical certification, he treads on dangerous grounds. He is likely to be considered to have abandoned his post, after a period. 19. From the evidence, plaintiff claims he reported his ill health to the defendant, via DW1. Let me state hear that plaintiff never stated his condition for which he was seeking traditional or herbal treatment. Nonetheless, it is not in doubt that DW1 had notice of plaintiff’s ill health. The issue is the defendant allowed the plaintiff a week to go treat himself but the plaintiff took 9months. From the evidence, the plaintiff maintained that the defendant was well aware of his ill health and for that matter spent those 9months on his health. The evidence, however, points to the fact that plaintiff was seen, severally by DW2 and DW3, riding his motorbike in town during the period of absence. Moreso, plaintiff admitted that during the period of absence, he was still attending to customers parcels. Below is an extract of what ensued when plaintiff was under cross-examination: “Q: In December 2021, you stopped reporting for work? A: I was not feeling well. - 7 - Q: When you fall sick, the hospital is your first point of call, not so? A: That is not so. Q: Did you submit any medical excuse duty to your employer? A: I was treating myself locally. I did not go to any hospital. Q: You never informed your employer that you were sick or receiving treatment? A: I informed my employer Q: Your employer only called you after a week when you were not reporting to work? A: My employer never called me. Q: When you were called to the office, a meeting was held with all the workers? A: I was not called by my employer. Q: You were present at the meeting and when asked why you were not present, you said you were not well? - 8 - A: That call is different from what you are alluding to. I was only called in the presence of chief driver, Master Alex and Bro. Sayibu. Q: When you informed them that you were sick, they gave you a week to go treat yourself and come back? A: That was when I was called in the presence of the aforementioned people and they gave me a week to go for treatment? Q: And now you are in court claiming 9months salary for the time you were absent, not so? A: That is so. Q: You see they only gave you a week, you went and never returned? A: When I was given a week, they called me later to return to work. I told them I was not feeling well. I was told to continue treatment till I return back. Q: During the time you claim you were sick, Hafiz Mumuni saw you in town riding your motorbike, hay and healthy? A: … Q: I was only attending to treatment at the village with my motorbike. During the time you claim you were sick you visited the workplace severally to send a parcel to Accra? - 9 - A: As a chief porter, people were calling me to assist in sending their parcels to Accra and this was something I could not decline because I work with those people who were calling.” 20. Based on the above, I make the following deductions. If plaintiff was bedridden, how was he able to ride his motorbike in town? Again, how was he able to attend to the customers who needed his assistance in sending parcels? If indeed, he could ride a motorbike in town or attend to these customers, then a call or reporting to the office indicating he was still unwell would have been appropriate. Having been given a week to treat himself, and the ill health had continued, then he should have reported same to the defendant. From the evidence, he failed to do that. He simply relied on the fact that he had informed the defendant that he was unwell and then spent 9months without any feedback on his continued ill health to the employer. Further, upon recovery he chose to resign and demand for the 9months salary. If, to him, he was still in employment, why then choose to resign upon recovery? Why was he not demanding for his salary during his absence? If he could attend to some customers, why not his own unpaid salary? I therefore come to a conclusion that plaintiff simply abandoned his post, under the pretence of continued ill health. Issue d 21. Issue d is whether or not either party is entitled to his/its claim. Having come to a conclusion that the plaintiff had abandoned his post, I hold that he is not entitled to his claim. Defendant, on its part, is praying for a declaration that the plaintiff is in breach of his contract of employment for absenting himself from work for 9months, without permission of or notification to the defendant. I shall grant this relief. However, I am unable to grant the prayer for damages for breach of contract. It is trite that parties to an employment contract can terminate same at any point in time. In the - 10 - case Aryee v State Construction Corporation [1984-86] 1 GLR 244, the court speaking through Adade JSC held that: “A contract of service was not a contract of servitude…The contract was framed in such a way that either party might bring it to an end and free himself from the relationship painlessly.” 22. In this instance, I am unable to tell whether or not the plaintiff was required to have served notice or make any payment in lieu of notice of his resignation. Defendant failed to tender the conditions of service or terms of the employment. Hence, in the absence of a contractual provision, the usual common law will apply, where an employer can summarily end its relationship with an employee for misconduct or that the employee walks away by way of abandonment. If employers are to chase every ex-employee for failing to serve notice of abandonment, then what would an abandonment of post mean? As defendant rightly puts it, the plaintiff abandoned his post and therefore treated him as such. Hence, I do not see the need to so award damages for breach of contract. Plaintiff simply abandoned his post and I so declare. CONCLUSION 23. I hereby enter judgment in favour of the defendant that the plaintiff abandoned his post for 9months, without permission of or proper notification of his continued ill health to the defendant company. 24. No order as to costs. H/W D. ANNAN ESQ. [MAGISTRATE] - 11 - SHEIK-ARIF ABDULLAH ESQ. WITH IAN A. ADAGWINE ESQ. FOR THE PLAINTIFF RASHID M. MUMUNI ESQ. WITH CYRIL ADAMS ESQ. FOR THE DEFENDANT Reference 1. ss. 11(4) and 12(1) and (2) of NRCD 323 2. s. 24 of the Labour Act, 2003 (Act 651). 3. Faibi v State Hotels Corporation [1968] GLR 471 4. In re Ashalley Botwe Lands; Adjetey Agbosu & Ors. v. Kotey & Ors. [2003-2004] SCGLR 5. Ababio v Akwasi III [1995-1996] GBR 774 6. Sarkodie v FKA Company Ltd. [2009] SCGLR 65 7. Klah v. Phoenix Insurance Company Limited [2012] 2 SCGLR 1139 8. Aryeh & Akakpo v Ayaa Iddrisu [2010] SCGLR 891 9. Osei v Korang [2013] 58 GMJ 1 10. Aryee v State Construction Corporation [1984-86] 1 GLR 244 - 12 -