Ex-GHAPOHA staff lose court battle

By William Yaw Owusu

Saturday,April 21,2007
The Court of Appeal yesterday declined to affirm a Tema High Court decision that ordered the Ghana Ports and Harbours Authority (GHAPOHA) to pay severance awards to the authority’s former casual employees.

The court in a two-to-one majority pointed out that there were some procedural errors in the trial at the High Court so it could not ask GHAPOHA to pay the severance awards to the 4,195 ex-workers.

A three member panel presided over by Justice J.B. Akamba however ordered GHAPOHA to pay the severance award due Clement Agbesi, the only person among five others who initiated the suit on behalf of all the ex-workers at the Tema High Court.

On July 11, 2003, the retrenched workers filed the suit at the High Court against GHAPOHA seeking damages for breaching the provisions of the collective bargaining agreement and asked the court to award compensation for maintaining them as casual workers in violation of their economic rights under the Constitution.

They also sought an order that compensation packages payable for severance of permanent employees be paid to them and an interest on all sums found due and owing them at the bank rate from October 1, 2002 to the date of judgment.

The court on January 18, last year, entered judgment in favour of the ex-workers.

It ordered GHAPOHA to pay ¢5 million to each ex-worker for breach of the collective bargaining agreement and ¢10 million to each for each year of service “after the expiration of 154 continuous working days,” for keeping them as casual workers.

Furthermore, the court ordered the company to pay severance awards comprising three months salary for each year of service, ¢3 million in lieu of rent, ¢2 million as medicals, two bags of rice, two gallons of oil, ¢1.5 million conveyance fees, bonus for 2001 five months salary as handshake, interest from October 2001 and ¢10 million as cost.

GHAPOHA appealed against the court’s decision on the grounds that “the trial judge gave judgment for 3,839 workers plus a further 356 plaintiffs as if they were parties to the action although the record of proceedings and relevant rules of the court established that they were not.”

The Authority argued that the trial judge’s finding that the company acted illegally and unlawfully in treating the ex-workers as non-permanent employees was erroneous since there was no evidence on record of the period of employment of each plaintiff, adding, “There is no evidence that any of the plaintiffs had worked satisfactorily for 154 days in any year to qualify for upgrading as permanent employees or to warrant the finding of the trial judge that GHAPOHA breached the collective bargaining agreement.

GHAPOHA further argued that although the judge rightly declared his intention to restrict the adjudication of the issues set down for trial and the evidence on record, his findings were not supported by the record.

“The trial judge erred in finding that GHAPOHA had violated the constitution of the Collective Bargaining Agreement.”

It said the provision did not provide for the automatic conversion of casual employees to the status of permanent staff, and that the finding by the court that the severance package paid to them was not negotiated, is against the weight of evidence.

It said the judgment left various matters yet to be decided and the award of damages was baseless in the law and should be set aside.

Inviting the court to affirm the high court’s decision, the ex-workers contended that they were subjected to grave injustice and unfair treatment by their employer for a long time.

“The defendant/appellant in fragrant violation of all the Collective Bargaining Agreements that existed, exploited and cheated us and even when GHAPOHA carried out a re-organisation in or about September 2003 they still sought to cheat and exploit us.”

Reading the decision of the majority the presiding judge, Justice Akamba held that the inclusion of 3839 list of ex-workers and 356 others by the plaintiffs should have been done with the leave of the trial court which they failed to do.

“The supplementary list has therefore become total strangers in the whole action and have found themselves in a comedy of errors”.

The majority’s view which also included that of Justice G.M. Quaye, said that there is lack of clarity about the whole list adding “the steps taken in filing the lists are unwarranted by the rules and this entitles the appellant to have the purported joinders set aside”.

They also said the information accompanying the supplementary list bore no evidencial value since the ex-workers failed to discharge the burden of proof.

Ruling in favour of the ex-workers, Justice W.H.K. Addo held that failuer to take leave of the court to ammend the list did render the action of the ex-workers action void.

He said the trial judge exercised his discretion in finding GHAPOHA liable and the appellant could not also show at the appeal whether the trial judge exercised that discretion wrongly.

He said the appeal had no merit and dismissed GHAPOHA’s action.

Justice Akamba later said even though GHAPOHA was entitled to cost, the court will not give one.

Later in an interview Albert Adaare, counsel for the ex-workers said they will apply for the ruling and see their next line of action.

Gathered in front of the Supreme Court building were hundreds of the ex-workers who had travelled from different parts of the country to listen to the court’s verdict.

While some felt disappointed about the verdict others did not understand the whole issue and kept asking themselves what was going on.