Kwarteng v Accra Hearts of Oak (A2/85/22) [2025] GHADC 202 (27 February 2025)

BEFORE HER WORSHIP ANNA AKOSUA APPIAAH GOTTFRIED ANAAFI GYASI, MAGISTRATE SITTING AT DISTRICT COURT GBESE, ACCRA, ON THURSDAY THE 27TH DAY OF FEBRUARY, 2025. -------------------------------------------------------------------------------------------------------- SUIT NO. A2/85/22 CHARLES KWARTENG ::: PLAINTIFF VRS. ACCRA HEARTS OF OAK ::: DEFENDANT --------------------------------------------------------------------------------------------------------- Time: 10:29 am. Parties: Plaintiff Present. Defendant absent. Legal Representation: Perpertual Owusu Asare, Esq, holding brief of Joshua Addae- Boateng, for Plaintiff present. Counsel for Defendant absent. -------------------------------------------------------------------------------------------------------- JUDGMENT -------------------------------------------------------------------------------------------------------- By a Writ of Summons and Statement of Claim dated 12th April, 2022 the Plaintiff invoked the jurisdiction of this court for the following reliefs; 1. An order for payment of the sum of GH₵ 24,650.00 for the 17 months arrears for fuel. 1 | P a g e 2. An order for payment of August, 2021 salary in arrears amounting to the sum of GH₵10,974.00. 3. An order directing the Defendant to pay compensation of GH₵100,000.00 to the Plaintiff for using his private vehicle for official work for the period of 24 months. 4. An order compelling Defendant to pay Plaintiff’s Tier 2 deduction for the 24 months. 5. Cost including legal fees. The Defendant on 9th June, 2022 also filed a Statement of Defence and counterclaimed, of which the Plaintiff filed a reply dated 5th July, 2022 for the following reliefs; 1. A refund of an amount of GH₵3,400.00 being telephone allowance unconventionally received by the Plaintiff. 2. A refund of an amount of GH₵9,800.00 being fuel coupon unconventionally received by the Plaintiff. 3. Cost including legal cost. THE CASE OF THE PLAINTIFF The Plaintiff was a former employee of the Defendant under a contract of employment dated 1st August, 2019 and worked for the Defendant for 24 months as General Manager, Commercial and Merchandizing until the Plaintiff voluntarily resigned from the Defendant's employment on 3rd September, 2021. The Plaintiff says that per the Contract of Employment dated 1st August, 2019 his consolidated salaries and allowances include the following: 1. Monthly consolidated salary GH¢ 10,974.00 after deductions. 2. Telephone credit GH¢200.00 per month. 3. Clothing GH¢500.00 per month 4. Fuel allowance GH¢l,450.00 (7 months paid leaving 17 months to be paid) 5. Mid-year leave allowance of half of Plaintiff's one-month salary. 2 | P a g e The Defendant failed and/or refused to pay Plaintiff's salary for August, 2021 and therefore the said salary has been in arrears till now without a plausible explanation. The Plaintiff' avers that at the time of his resignation, his fuel allowance has been in arrears for seventeen (17) months amounting to the sum of GH¢24,650.00. The Plaintiff avers that his terms of employment stipulated that the he would be given an official vehicle which the Defendant failed and/or neglected to provide forcing Plaintiff to use his own private vehicle to perform official duties for the 24 months (both working days/weekends) during the Plaintiff's course of employment with the Defendant. Plaintiff avers that he should be compensated for the sum of GH¢ 100, 000.00 in lieu of the defendant's refusal and/or neglect to provide an official vehicle for him. The Plaintiff says that these concerns were reported to the Ghana Football Association for their intervention but they were not able to deal with the issue as they were not privy to the contract between the Plaintiff and the defendant according to them. The Plaintiff avers that he also called the attention of the management of the Defendant to the various outstanding payments in his handing over notes dated 20th August, 2021 but nothing was done about it. Plaintiff says that his responsibility as Chief Commercial Officer included maximization of revenue from ticket sales, sponsorships, commercial activities and club merchandises which he performed to the best of his ability. Plaintiff’s Tier 2 contributions for the period were also unpaid by the defendant and also failed to inform Plaintiff, the Company to which the Tier 2 was paid. All efforts to make the Defendant commit itself for the payment of these claims have failed. THE CASE OF THE DEFENDANT The Defendant unsurprisingly denied the plaintiff’s claims and averments generally and made some admissions. Defendant states that the consolidated salary included all the other allowances listed by the plaintiff. Defendant says further that it was paying the Plaintiff as per the terms of engagement a consolidated salary of Ten thousand nine-hundred and seventy-four Cedis (GH¢10,974.00) and that includes all the other allowances contained in 5(b) to 5(d) of the Plaintiff’s statement of claim in addition to three hundred and twenty-five cedis (GH¢325.00) as transport allowance. The 3 | P a g e Defendant avers that except for the theft issue which happened under the watch of the Plaintiff and caused the August, 2021 salary to be halted, that particular salary would have been paid. Further the Defendant says that the Plaintiff’s fuel allowance is already factored in the consolidated salary paid him and that the Plaintiff has unconventionally received certain allowances in double form which he has to refund same to defendant, particularly telephone allowance of GH¢200.00 for 17 months totalling GH¢3,400.00 as well as fuel coupons of GH¢1,400.00 for seven months amounting to GH¢9,800.00. Defendant says that the terms of engagement did not promise the Plaintiff a vehicle rather what it says was that an opportunity exists for the Plaintiff to use a vehicle. Unfortunately, the Plaintiff did not get that vehicle hence the transport allowance which was part of the consolidated salary. The Defendant says further that it only paid transport allowance to the Plaintiff but did not state which form of transportation the plaintiff should use. It was the Plaintiff who opted to use his car to satisfy the transport allowance paid him. Defendant says that concerning Plaintiff’s seeking for intervention from GFA, the club was undergoing the 2021 licensing as it is normally done for all clubs in Ghana, the new management requested the Plaintiff to submit his details including appointment letter and CV for the purpose of registration but he never did and therefore the GFA did not have much information about the Plaintiff at the time he petitioned them. Defendant says that the Plaintiff was the cause of his own woes by not performing his duty diligently especially when right under his watch a serious theft occurred for which over 500 replica Jerseys belonging to the defendant went missing. The defendant says the non-payment of the Tier 2 contribution is a general problem and the Plaintiff is not the only person affected. As a result of the Covid-19 period and the Anas expose on GFA, football activities were halted which affected even salaries. Post Covid however, the new management of the club has started the process to resolve all such matters. Management has submitted proposal to the Board for a fund manager and once that is concluded all issues with Tier 2 and other pensions would be paid. Defendant says that the club administrator in the person of Mr. Jonas has been in 4 | P a g e constant touch and communication with the Plaintiff who has been uncooperative with the defendant. Thus, Plaintiff is not entitled to the reliefs sought. PLAINTIFF’S REPLY AND DEFENCE TO COUNTERCLAIM Plaintiff says his consolidated salary as agreed with the former CEO of the defendant, Mr. Fredrick Moore who handled salary negotiation with the Plaintiff did not include monthly fuel and monthly telephone allowances. The Plaintiff avers that fuel and monthly telephone allowances were paid separately from his salary. The two allowances were paid from the Club Secretariat Account whiles the salary was paid by SAS Company owned by the Executive Chairman of the Club that took responsibility of paying salaries. Plaintiff contends that when then CEO, Mr Fredrick Moore, was to leave the Defendant Club his handing over notes submitted to the Board specifically mentioned fuel allowance and telephone allowances owed to the Plaintiff at the time of his exit and urged the Board to take note and pay the Plaintiff accordingly. Plaintiff asserts the supposed theft happened in April 2021 which was immediately reported to the Police for investigation by Plaintiff. Thereafter, a comprehensive report issued to the Defendant did not in any way implicate the plaintiff. Apart from the police report, the Defendant did not issue any query to the Plaintiff or hold any disciplinary proceedings against same until the Plaintiff resigned in September, 2021. Therefore, the Defendant had no basis to withhold the Plaintiff’s salary for August, 2021 whilst the Plaintiff was still at post. Plaintiff states that the fuel and monthly telephone allowances were legitimate payments and did not amount to double payment as alleged. Plaintiff says that the employment letter stipulates that the Plaintiff will be given official vehicle for his role as Senior Management Staff but the defendant did not provide same to the plaintiff tor his official duties and was compelled under the circumstances, to use his private vehicle to perform official duties for the period of his employment. Plaintiff says that in 2021/2022 league season the plaintiff was not part of the defendant Club to be added to that football season's club licensing application. The football season started in September, 2021 and the plaintiff left the club on 3rd September, 2021 prior to his accumulated leave. The 2019/2022 league Season, his full 5 | P a g e details including his CV indicating his position in the defendant club and the employment contract were submitted to the Ghana Football Association as part of the defendant Licensing Application requirement. Even if the Plaintiff refused to submit his details to the Defendant's new Management for 2021/2022 Club Licensing Application even though the Plaintiff had then left, the defendant had access to his employment file which contains copies of his appointment letter, CV, and other certificate submitted to the Defendant prior to his appointment. It is therefore, shocking for the Ghana Football Association to say that they did not have the records of the Plaintiff’s employment letter. Plaintiff refutes the Defendant's assertion that he did not perform his duties with diligence on the basis of the theft case that occurred. The Police report at the time issued mentioned a previous theft case that had occurred when the Plaintiff was not a staff. More so, the police report did not indict the plaintiff in any way and the defendant too could not blame the Plaintiff for the theft until he left. The Plaintiff claims to have contributed immensely to the success of the Defendant in his position as General Manager, Commercial and Merchandizing and full details of his performance were clearly stated in his handing over report to the Defendant. Plaintiff asserts that the Defendant never made a single Tier 2 payment on behalf of any of its staff members since establishment of the Club and since Tier 2 Pension law came into force. Plaintiff says that using the Anas Expose and COVID-19 as an excuse of the Defendant's inability to pay the Tier 2 fund for the Plaintiff is an afterthought. Defendant and its Administrator have never reached out to the Plaintiff and same has refused to cooperate. Plaintiff has sent many mails seeking answers from the Defendant including its Executive Chairman but did not get any response from them. Plaintiff contends that these miscommunications started when the Plaintiff’s position in the defendant Club was advertised for replacement whilst the Plaintiff was still at post and had not intended to resign but on excuse duty during that period. The only time the Administrator reached out to the Plaintiff after his resignation was in respect of the Plaintiff's unpaid Salary tor August, 2021 and petition to the Ghana Football Association Player Status Committee but not on Tier 2 contribution. Plaintiff says that 6 | P a g e the Defendant is not entitled to his Counterclaim. The Plaintiff denies receiving any unconventional payments from the Defendant. All the payments received including allowances were legitimate payments and therefore, Plaintiff denies the Counterclaim by the Defendant in its entirety. ISSUES 1. Whether or not there was a new/varied employment contract subsisting between Plaintiff and Defendant at the time Plaintiff resigned from the Defendant’s employment. 2. Whether or not Plaintiff is entitled to compensation of GH₵100,000.00 for using his personal vehicle in lieu of an official vehicle. 3. Whether or not Defendant was right in withholding Plaintiff’s August, 2021 salary. 4. Whether or not Plaintiff is entitled to the telephone and fuel allowance arrears. 5. Whether or not the Defendant is liable to pay the Tier 2 contributions of Plaintiff. 6. Whether or not Defendant is entitled to a refund of the telephone allowance and fuel coupons given to plaintiff. THE LAW The Burden and Persuasion of Proof Evidence Act 1975 (N. R. C. D. 323) In examining the case put forward by the parties, the court must be circumspect and deal with facts as well as the evidence adduced and most importantly the law. The law that this court will be instructed by are as follows: 7 | P a g e Section 10 (1) For the purposes of this Act, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the Court. (b) To establish the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt. Section 11 (1) For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party. (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence which on the totality of the evidence, leads a reasonable mind to conclude that the existence of the fact was more probable than its non- existence. Section 12 1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities. (2) "Preponderance of the probabilities" means that degree of certainty of belief in the mind of the tribunal of fact or the Court by which it is convinced that the existence of a fact is more probable than its non-existence. Section 15 Unless it is shifted, 8 | P a g e (a) The party claiming that a person has committed a crime or wrongdoing has the burden of persuasion on that issue; Section 17 Except as otherwise provided by law, (a) The burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of further proof; (b) The burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to that fact. In the case of Mojolagbe v. Larbi and Others (1959) GLR 190, which found favour in the case of Ackah v Pergah Transport Ltd supra the court held as follows: “Proof, in law, is the establishment of fact by proper legal means; in other words, the establishment of an averment by admissible evidence. Where a party makes an averment, and his averment is denied, he is unlikely to be held by the Court to have sufficiently proved that averment by his merely going into the witness-box, and repeating the averment on oath, if he does not adduce that corroborative evidence which (if his averment be true) is certain to exist. … “Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, e.g. by producing documents, description of things, reference to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness-box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true.” …Therefore, the role of a trial judge “in a civil matter is to determine from the evidence available which of the parties adduced credible and sufficient evidence to tilt in his favour the balance of probabilities on an issue.” (my emphasis) In applying the above statute and case, in Ackah v. Pergah Transport Ltd (2010) SCGLR 728 @ 736 the Supreme Court held: 9 | P a g e “It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence) without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable than its non-existence.” With employment, the law generally is found in the Labour Act, 2003 (Act 651). Section 12 states when there must be a contract of employment and section 13 states the terms must be clearly spelt out. Section 12 (1) The employment of a worker by an employer for a period of six months or more or for a number of working days equivalent to six months or more within a year shall be secured by a written contract of employment. (2) A contract of employment shall express in clear terms the rights and obligations of the parties. Section 13 Subject to the terms and conditions of a contract of employment between an employer and a worker, the employer shall within two months after the commencement of the employment furnish the worker with written statement of the particulars of the main terms of the contract of employment in the form set out in Schedule I to this Act signed by the employer and the worker. ANALYSIS 10 | P a g e Issue 1 On the 1st issue, the Plaintiff’s claims can be summarised that by his contract of employment he is entitled to the reliefs he seeks which Defendant vehemently disagrees with. The law on employment contracts can be found in the Labour Act particularly sections 12 and 13 as above indicated. It is the Plaintiff’s case that although he was originally employed as General Manager, Commercial and Merchandizing on 1st July 2019, by 1st August 2019 this role had changed to Chief Commercial Officer. Under cross examination the following ensued: Q: Take a look at the title of your position. Can you read it for me (read out by witness)? After this designation, you were given another designation, can you kindly mention the said designation? A: The new position agreed on was Chief Commercial Officer. Q: It is the truth that you do not have that subsequent employment letter is that not so? A: That is true. Q: It is reasonable to conclude that the Terms of Conditions of Exhibit A was what bound you and Defendant in an employer/employee relationship not so? A: That is not so because these were the terms that were varied upon the renegotiation that changed the role from General Manager to Chief Commercial Officer. Q: The said variation of terms of employment is not before this Court is that not so? A: That is before this Court. Per my submission of statement of claim and Witness Statement. The Defendant on the other hand claims that since there was no letter in evidence of the said change in position, it cannot be that Plaintiff’s role and resulting compensation had changed. The law generally is that a contract of employment determines the relationship between an employer and employee as seen in sections 12 and 13 of the Labour Act. Without one, it is more probable than not that a person cannot be described as an employee of another. (see also Abubakari Umar & Mohammed Hafiz 11 | P a g e vrs. National Health Insurance Authority Supreme Court, Civil Appeal No. J4/1/2020, 24 Mar 2021). In this instant case, there is no doubt that an employer- employee relationship existed between the Plaintiff and the Defendant. The question however is what was plaintiff’s role at the time of his resignation and was there a letter that existed. According to Plaintiff, he was the Chief Commercial Officer. Defendant disagrees with this because there was no employment letter exhibited to that effect. Both counsel for Plaintiff and Defendant have given spirited arguments in their respective addresses as to why this court should side with one side or the other. Looking at the evidence on record, beginning with the contract of employment i.e. Exhibits ‘A’ and ‘AK 1’ there were clear terms stated. In there, the Plaintiff’s role is described as ‘General Manager, Commercial and Merchandizing’. In the terms, the net basic salary is stated as GH₵ 8000.00. After this, the other entitlements such as fuel allowance and so on are clearly spelt out. However, in Exhibit ‘AK 2’ exhibited by defendant which is the pay roll for various months, the position of the Plaintiff is ‘CCO’. In this as well, this lists plaintiff’s earnings namely, basic, rent, clothing, transport etc as well as deductions. By each item, if there is an earning, there is a figure attached and where there is a deduction, there is also a figure. The basic has by it GH₵15,000.00. For the rest of the earnings, there are no other figures by them. With the deductions, there are two i.e. employee social security fund at 5.5% being GH₵ 825.00 and income tax being GH₵ 3201.00. There is no deduction for staff welfare neither is there any for salary advance. This runs throughout Exhibit AK 2. Defendant argues that the allowances were consolidated into the salary hence the Plaintiff’s salary being GH₵ 10,974.00 though it should have been GH₵10,150.00. It was thus Plaintiff’s duty to have drawn Defendant’s attention to this error. I would have agreed with Defendant but for several inconsistencies such as the description in the position and the fact that Plaintiff was entitled to GH₵500.00 rent allowance per exhibits ‘A’ and ‘AK1’ which would bring the total to GH₵10,650.00 leaving a surplus of GH₵324.00 if indeed the allowances were consolidated. In addition to this, adding up the net basic of GH₵8,000.00 to the various allowances as well as tax and the social security should 12 | P a g e total a gross of GH₵13,851.00. However, the basic listed in the pay roll is GH₵15,000.00 showing an excess of GH₵1,149.00. Clearly, the net basic arrived was after tax and Social Security deductions and for GH₵15,000.00 to be the gross basic there must have been an agreement. Again, if indeed there was a consolidation, I think this would have been stated in the contract or at the very least have the attached figure in the pay roll. There are other pieces of evidence that do not add up to support Defendant’s argument. For instance, the position Plaintiff held as at 1st July, 2019 was ‘General Manager, Commercial and Merchandizing’ which initials as ‘GMCM’. However, the description on the pay roll is ‘CCO’ which can only mean Chief Commercial Officer based on the evidence on record. This means that at all material times the defendant knew that the plaintiff was the Chief Commercial Officer. Could it then be that indeed there was a written agreement which was then fed into the system to cause the plaintiff to be described as ‘CCO’ on the payroll, a description that plaintiff did not have the power to describe himself from his job description? I find it strange that the defendant would make a mistake in the description of the position of plaintiff in the pay roll which is quite essential; defendant also did not exhibit the pay roll for 2019 when this employment relationship began at least for comparison. A look at the other evidence on record such as Exhibits ‘AK 4 series’ particularly that of November, 2020 shows that plaintiff was at some point described as ‘Chief Commercial’ by Defendant. In Exhibit ‘C’ being the response to the handing over report Plaintiff prepared to Defendant, the Chief Administrative Officer who is the Defendant’s witness only commented on the issue of theft but did not comment on Plaintiff’s claim to being a Chief Operating Officer at least to set the record straight. In Exhibit H at page 41 and 43 of the handing over notes of the Chief Executive Officer (CEO) of the defendant at that time, he also described the Plaintiff as ‘Chief Commercial Officer’ or (CCO). The former CEO was subpoenaed and under cross examination by counsel for Defendant the following ensued: Q: Did you mention there was a variation subsequently to this employment letter? 13 | P a g e A: Yes. It is a fact. Q: Do you have a registry i.e. in Accra Hearts of Oak when you were CEO where you file documents? A: I had a P. A who had a filing system where things like these were filed. Q: The Plaintiff’s employment letter was filed not so? A: Yes both the original and varied contract. Q: In respect of the purported varied contract did it have the approval of the board? A: No, because of confidentiality senior staff salaries were approved by executive chair. Q: Was the varied letter filed in the registry? A: Yes but I’m aware you will not be able to find that file because before I left executive chair asked me to box all personnel files and bring to his office which is what I did. Q: All the personnel files included Exhibit A not so? A: Yes. All the files were boxed and sent to him. The Defendant’s witness also testified as follows: Q: Do you know Plaintiff in this matter? A: Yes. Q: How do you know him? A: Former Chief Commercial Officer of the club. Ordinarily, the testimony of a witness of a party who testifies for the said party to corroborate his evidence could carry some weight but may not be sufficient to satisfy the court to establish the probability or otherwise of a material fact. (See Mojolagbe v. Larbi and Others supra). In this case though, considering all the evidence on record and the testimonies, I find it more probable than not that there was indeed a 14 | P a g e new/varied contract of employment letter that made the Plaintiff Chief Commercial Officer which also increased Plaintiff’s salary. Issue 2 The second issue will discuss Plaintiff’s entitlement or otherwise to compensation of GH₵100,000.00 for using his personal vehicle in lieu of a company car. Plaintiff argues that by clause 6 of the employment letter dated 1st July 2019, he is entitled to a company car which he was denied. Defendant argues on the other hand that there was no provision as to a promise of a vehicle to plaintiff but rather opportunities exist for a senior manager to use a vehicle. Under cross examination the following ensued: Q: Refer to paragraph 6 of Exhibit A (read out). Your claim is that you used your personal car for official duties. A: That is correct. Q: In the course of your employ, you mentioned the CEO promised to secure two vehicles, one for you and the other for the CEO not so? A: That was what was agreed prior to employment negotiation between myself, CEO, and board chairman and that was one of the main conditions precedent to my accepting the offer. Q: So it was one of your prior discussions to accepting the position not so? A: That is correct. Q: When the vehicle was not given you still started to work not so? A: I did due to a discussion CEO had with me. Because of that I delayed my start of the offer for a month. Q: Why did you accept it subsequently? A: I accepted to start after a month because the CEO assured me that the car was being procured. 15 | P a g e Q: So it means that your assumption of duty as far as clause 6 of employment letter is based on assurance from CEO to get you a vehicle not so? A: Yes. After a month and the CEO who has offered me the job to be working with him, I could not stand down on his words hence my acceptance. Q: You would agree with me that the assurance was an alternative not so? A: That was not so. It was a way for him to buy time to get a car. Q: The time bought was not specific not so? A: It was not specified but it shouldn’t take 24 months to buy a care if it wasn’t deliberately intended not to give me. Q: If it were deliberate, was it the case he bought one for himself leaving yours outstanding. A: No he did not. Q: Look at page 26 of your witness statement (read out) it means that you actually were not forced by the Defendant to use your own vehicle but based on these reasons you decided to use your vehicle not so? A: No I was not forced but I was compelled by the circumstances and assurances by the C. E. O to use my vehicle to work and it paid off to the company that I did not wait. Q: I put it to you that, what you have just said is very inconsistent with paragraph 26 where you never indicated that CEO compelled you to use your vehicle while you await company’s vehicle? A: That is not true. There is no inconsistency here because the CEO was assuring me to work while he worked to get the car in. Q: Notwithstanding the above you received transport allowance and vehicle fuel coupons not so? 16 | P a g e A: I never received transport allowance and the fuel coupons were in respect of fuel allowance. The two are not the same. The exact clause states as follows: ‘6.0 JOB GRADE The organisation has various salary ranges and levels for staff. This position of General Manager, Commercial and Merchandizing is classified under Senior Management Salary Range and the level of position comes with a company car. Opportunities exist for you to rise in your grade with your performance and the performance of the Club.’ Considering that the use of the word ‘and’ between ‘This position of General Manager, Commercial and Merchandizing is classified under Senior Management Salary Range’ and ‘the level of position comes with a company car’ a reasonable man would believe that the position comes with a company car because of the conjunctive ‘and’ used in the same sentence. Now that it is established that Plaintiff was entitled to the use of a company car, the question is whether Plaintiff can be compensated. The pleadings and the evidence do not show how Plaintiff came by the figure of GH₵ 100,000.00. In my opinion this required sufficient evidence to succeed. Plaintiff did not show by receipts or some other means how GH₵100,000.00 would be a fair compensation. He did state in paragraph 26 of his Witness Statement that he used his own vehicle to attend meetings on behalf of the Defendant to meet prospective sponsors and such. Considering that there would be general wear and tear of a vehicle when used and there will be need for repairs and so on I find that the Plaintiff, having used his personal vehicle for company business over a period or 24 months is entitled to some compensation. Issue 3 This issue deals with the withholding of Plaintiff’s August 2021 salary. The Defendant does not deny withholding Plaintiff’s salary. The question is whether this was lawful. Sections 69 and 70 of the Labour Act are instructive. Same is reproduced below: 17 | P a g e Section 69—Prohibited Deductions. (1) An employer shall not make any deduction by way of discount, interest or any similar charge on account of an advance of remuneration made to a worker in anticipation of the regular period of payment of remuneration. (2) An employer shall not (a) Impose a pecuniary penalty upon a worker for any cause whatsoever; or (b) Deduct from remuneration due to a worker, any amount whatsoever, unless the deduction is permitted by section 70 or by any other law or is by way of repayment of an advance of remuneration lawfully made by the employer to the worker. Section 70—Permitted Deductions. (1) An employer may, with the consent of the worker, make any of the following deductions from the remuneration of the worker: (a) Any amount due from the worker in respect of contributions to any provident, pension, or other fund or scheme agreed to by the worker; (b) Any financial facility advanced by the employer to the worker at the written request of the worker or any facility guaranteed by the employer to the worker; (c) Any amount paid to the worker in error, as remuneration, in excess of what the worker is legitimately entitled to, from the employer; (d) On the written authority of the worker, any amount due from the worker as membership fee or contribution to an organisation of which the worker is a member; (e) For meeting any loss suffered by the employer as a result of the loss of, or damage to, any property or thing used in connection with, or produced by, the employer's business and which is under the control of the worker; (f) Any deduction in compliance with an order made by the Commission. (2) No deduction shall be made under subsection (1)(f) unless the employer is satisfied, 18 | P a g e (a) That the loss or damage has been caused by the worker and the worker is clearly shown to be responsible; (b) That the amount to be deducted is fair and does not exceed the actual value of the loss or damage suffered by the employer or that the amount represents a fair estimate of the loss or damage suffered; (c) That the worker has been given reasonable opportunity to show cause why the deductions should not be made; and (d) That the rate of the deductions is such as to avoid hardship to the worker and his or her dependants. The above sections show that no deduction from the remuneration of an employee shall be made unless there are cogent reasons to do so such as a loss or damage that is proven to be caused by a worker. According to exhibit ‘C’ the Defendant withheld Plaintiff’s August 2021 salary due to an audit concerning the replica jerseys that were stolen from Plaintiff’s office. This information emanated from defendant’s witness which stated that because Plaintiff admitted the jerseys were stolen from Plaintiff’s office and that the final report was to be completed by Plaintiff, a final decision, I suppose, on the salary will be given pending the conclusion of the forensic report. When cross examined on this, the Defendant stated as follows; Q: If the Plaintiff was not the subject of audit then tell the court the basis of withholding the salary for the month of August, 2021? A: As I said in my earlier submission and the letter addressed to the Plaintiff, the basis for withholding the salary was stated therein. Also the Plaintiff was invited to a meeting to discuss the findings of the audit that concerned the Plaintiff to make a decision afterwards. The Plaintiff decided not to show up and resorted to the court to address his issues. Q: Do you have any document before the Court by way of letter, text messages, email or whatsapp inviting Plaintiff to discuss the audit report that concerns him? 19 | P a g e A: No but I sent him an email. Q: I am putting it to you that, continuing withholding the Plaintiff salary on the month of August, 2021 was baseless and just to flex your muscles against the Plaintiff? A: I do not agree with you. Q: I am also suggesting to you that failing to give the Plaintiff a copy of the audit report for his answer was irregular? A: No I do not agree. The audit report as I indicated earlier was on the entire operations of the club. Plaintiff did not honour the invitation to discuss findings that concerns him and has resorted to the GFA and the local courts to address the issue despite the avenue we open for him to engage us more fully. The said report was not included in evidence thus the contents of the report remain unknown. However, there was a police report that confirmed the theft. According to the handing over notes Exhibit ‘B’, this theft occurred in April 2021. What is missing is any form of evidence showing that the Plaintiff, and the Plaintiff alone was responsible for the theft. The police report did not show that the Plaintiff was a suspect, neither was he charged for the theft or convicted. The evidence does not also show that there was any form of administrative action immediately following the theft whilst the Plaintiff was still in the employ of the Defendant neither is there any record to show that the Defendant proceeded to hold Plaintiff responsible or liable for the missing jerseys following Plaintiff’s refusal to attend the meeting to discuss the findings from the audit. As a matter of fact, there is nothing on record to justify the withholding of Plaintiff’s August 2021 salary. I therefore find the withholding of Plaintiff’s salary unlawful. Issue 4 The Plaintiff’s claims to telephone and fuel allowance arrears are based on the new/varied contract of employment. It has already been concluded that there was a new/varied contract of employment so there will be no further discussion here. What 20 | P a g e remains is Plaintiff’s entitlements to the allowance arrears above mentioned. Defendant claimed that the various allowances were consolidated. As already indicated, a consolidation of basic and allowances would have been stated in the contract or at least the breakdown in the pay roll would have indicated same. Per the evidence on record, Exhibits ‘G’ shows proof of fuel allowance being separately paid and ‘H’ at page 48, confirms the fuel allowance arrears being owed to Plaintiff. Clearly, fuel allowance was paid separately at all material times and the evidence supports the fact that the Defendant owes the plaintiff fuel allowance. Moving on to the telephone allowance Exhibit ‘AK 4 series’ is evidence sufficient to prove that at some point, telephone allowances were also included as part of allowances for certain members of Defendant’s staff. When asked about this, Defendant’s witness stated as follows: Q: So on what basis did the people listed including the Plaintiff collect the telephone credits? A: So based on what I came to meet it was only those who did not have staff credit indicated in their salaries. It must be noted ‘staff credit’ is not indicated in the pay roll, at least not what was exhibited in ‘AK 2’. I find it more probable than not that the telephone credits were paid separately considering how recurring the payments were made and also how the staff members, including the Plaintiff, signed for it. Plaintiff is entitled to the telephone allowance arrears. Issue 5 On the issue of the Tier 2 payment, the Defendant has already admitted to not paying and that payment would have been made to Plaintiff if he had furnished the Defendant with his Ghana Card details. Q: So you will agree with me that at the time the Plaintiff was in employment the Defendant refused to pay his SSNIT contributions and Tier 2 is that not the case? 21 | P a g e A: No, the club did not refuse to pay his SSNIT and Tier 2 contributions. I stated in the Statement of Defence there was a challenge with regards to the payment of both SSNIT and Tier 2 contributions. That challenge has been resolved now pending SSNIT contributions has been paid for all staff. Also we attached a letter as exhibit to the Witness Statement indicating the decision of the board to approve a Tier 2 fund manager that has also been done. Plaintiff would agree with me that he was called by the office to give his personal details including his Ghana card number so that his Tier 2 contributions would be paid as it has been done for other staff. Q: Which specific letter are you referring to as attached to your Witness Statement in support of this fact? A: Yes, Exhibit AK5 it is addressed to the board chairman. Q; I am putting it to you that as I am speaking the Tier 2 contributions of the Plaintiff at the time of his employment has not been paid? A: No, he would have been paid if he had given his personal details. Q: I am finally putting it to you that, the refusal of Defendant to pay Tier 2 contributions for the 24 months of the Plaintiff has denied him his dividend that would have improved his status? A: No I do not agree. The club has not refused to pay the Plaintiff Tier 2 contributions and as I have indicated earlier he was called to submit his details for payment to be made as it has been done for others. So payment would have been made if Plaintiff had given his details and his status as indicated by his counsel would have been improved. Clearly there is no issue here. Defendant claims to be ready to pay Plaintiff’s Tier 2 contributions once they have the Ghana Card details. Plaintiff therefore must avail his Ghana Card and Defendant is to pay the said Tier 2 immediately. Issue 6 Flowing from the discussion so far, the evidence on record does not support Defendant’s entitlement to a refund. I find it rather appalling that the Defendant would 22 | P a g e try to double down and act as though the Plaintiff has no entitlement to the reliefs he seeks and rather that the Plaintiff owes the Defendant. CONCLUSION In conclusion, the evidence supports the Plaintiff’s claims and I find that he is entitled to the reliefs he seeks. The Defendant on the other hand has not been able to satisfy this court that it is entitled to the reliefs in its counterclaim as such its action fails. FINAL ORDERS 1. Defendant is ordered to pay the sum of GH₵ 24,650.00 for the 17 months arrears for fuel. 2. Defendant is ordered to pay Plaintiff’s August, 2021 salary in arrears amounting to the sum of GH₵10,974.00. 3. Defendant is ordered to pay compensation of GH₵50,000.00 to the Plaintiff for using his private vehicle for official work for the period of 24 months. 4. 5. Defendant is ordered to pay Plaintiff’s Tier 2 deduction for the 24 months. Costs of GH₵20,000.00. (SGD.) H/W. ANNA AKOSUA APPIAAH GOTTFRIED ANAAFI GYASI (MRS.) (DISTRICT MAGISTRATE) 23 | P a g e