ANANG VRS NORPALM GHANA LIMITED (MISC. 6/2021) [2023] GHAHC 424 (7 November 2023)

Key Facts

Issues

• Whether or not the Defendant insisted on the said reduction or diminution in its then management team's conditions of service because it claimed to be in financial crisis and could not support the existing conditions of service of the management team?
• Whether or not the Defendant sought to restructure its affairs after the acquisition of some of its shares by African Tiger Holding Limited?
• Whether or not the Plaintiff's termination constitutes a redundancy?
• Whether or not the Plaintiff's employment was terminated after he had made it clear to the Defendant that a reduction or diminution in his then conditions of service was not acceptable to him?
• Whether or not the Plaintiff is entitled to his claims?
• Whether or not the Defendant insisted on a reduction or in the conditions of service of its management team, then headed by the Plaintiff, as part of its restructuring exercise?

Holdings

• The Defendant insisted on a significant reduction in the SMT's conditions of service, including salaries, as part of its restructuring efforts.
• The Defendant restructured its affairs following the acquisition of 31.7% shares by ATHL, including reconstituting the Board and introducing new roles like CEO and IAM.
• The conditions of service for senior staff (Exhibit BB) were not formally applicable to senior management, though portions were used by the SMT.
• The Plaintiff, as General Manager, was a member of the Senior Management Team (SMT), not senior staff.
• The Plaintiff's termination was found to be mala fide and constituted redundancy under the Labour Act (Act 651), entitling him to a redundancy package.

Remedies

• 4. Award of costs of Ghc40,000.00 to the Plaintiff as against the Defendant, with the court refusing to order additional legal costs.
• 3. Interest on the redundancy package from the date of this judgment until final payment at the prevailing Bank rate.
• 1. A Declaration that the purported termination of the Plaintiff's employment is for all purposes and in effect a redundancy masked as Termination.
• 2. An order directed at the Defendant to pay to the Plaintiff the sum representing his three (3) months basic salary for each year served as redundancy package, as per the Defendant's conditions of service for senior staff effective 1st January, 2018.

Monetary Damages

Legal Principles

• The court applied the principle that silence may amount to admission when a response is expected, as in Bessaka v. Stern [1877] 37 LI. 88, EA. This supported the Plaintiff's case regarding the restructuring's impact on his role.
• In civil matters, the standard of proof is 'proof on the preponderance of probabilities' as outlined in Sections 11(1) and 12(2) of the Evidence Act (NRCD 323). This principle was applied in cases such as Majolagbe v. Larbi [1959] GLR 190 and Sumaila Bielbei v. Adamu Dramani [2012] SCGLR 370.
• Admissions and implied admissions were critical. The Defendant's failure to deny certain allegations (e.g., restructuring events) and the cross-examination of DW1 constituted implied admissions, per cases like Fori v. Ayirebi [1966] GLR 627, SC and Takyi v. Appiah [1982–83] 1 GLR, C.A.
• The Labour Act (Act 651) Sections 15 and 65 were central. Section 15 allows termination without reason, but Section 65 defines redundancy as arising from organizational or structural changes. The court held that the Plaintiff's termination met redundancy criteria under Section 65(2) due to restructured roles and diminished employment terms.
• The court emphasized that a party must prove their case on the balance of probabilities. This was reinforced by the corroboration of the Plaintiff's evidence through the Defendant's witness (DW1), aligning with the Supreme Court's guidance in Emmanuel N. A Kotey v. Kwame Pianim [2022] DLSC 11684, SC.

Precedent Name

• Sumaila Bielbei (No. 3) v. Adamu Dramani, A – G
• Appiah v. Anane
• Baiden & ors v. Graphic Corporation
• Yakubu v. Yakubu
• Fidelity Investment Advisor's v. Aboagye-Atta
• S. O Ablakwah & anor v. J. O. Lamptey & ors
• Avadzinu v. Njona
• Majolagbe v. Larbi
• Obeng v. Bempomaa
• Asante v. Bogyabi & ors
• Danielli Construction Ltd v. Mabey & Johnson Ltd
• Domfe v. Adu
• Adams Addy & anor v. Solomon Mintah Ackaah
• Williams Appiah v. cocoa Marketing Company
• Achana v. Kasena-Nankani Local Council
• Kobi v. Ghana Manganese Co. Ltd
• Hammond v. Amuah & anor
• National Labour Commission v. First Atlantic Bank Limited
• Takyi v. Appiah
• Okwei Mensah (D'd) (Action by) Adumuah Okwei v. Laryea (D'd) (action by) Ashieteye Laryea & anor
• Equity Assurance v.Palme Green Ent., Ltd
• Kusi & Kusi v. Bonsu
• Fori v. Ayirebi & ors
• Ashun v. Accra Brewery Ltd
• Manu v. Nsiah
• Vincentia Mensah v. Numo Adjei Kwawko II

Cited Statute

• Evidence Act (NRCD 323)
• Labour Act (Act 651)

Judge Name

Passage Text

• I order the parties to as a matter of urgency and within 30 days from the date of this judgment enter into negotiations on the redundancy package...
• S. 65(1) When an employer contemplates the introduction of major changes in production, programme, organisation, structure, technology of an undertaking that are likely to entail terminations of employment of workers in the undertaking, the employer shall...
• I therefore do not hesitate at all in holding that from the evidence, the Defendant insisted on the said reduction or diminution on its management team's conditions of service.