If we were to go into details and examine the labour laws of Ghana, we would notice that the bulk of it is about employee protection. However, I do not seek to bore you with intricacies of the law, rather, focusing on employee dismissals and the possible causes of action available to the dismissed employee would enhance our understanding of the protective labour laws and put employers on their feet. We do not want to go to court for something that is as avoidable as a breach of employment contract, do we?
A wrongful dismissal could take place in breach of the terms of the contract itself by an employer. This could include the violation of express terms such as redundancy or disciplinary procedures, notice, and implied terms such as trust and confidence, before effecting a dismissal. So, if an employer is required by the contract of employment to follow certain procedures but fails to do so before dismissing an employee, the dismissal would be wrong in law, Act (ACT651).
In determining whether a dismissal is unfair, for the purposes of the labour laws, recourse must be taken to the criteria, which set out fair grounds on which an employer can fall to dismiss an employee including conduct, capability, illegality, and some other substantial reason. A contract may be terminated expressly. It may be terminated by dismissal, resignation or by mutual consent. It also remains unfair when an employee is dismissed or selected for redundancy on grounds such as trade union membership or non-membership, assertion of a statutory right, pregnancy, taking advantage of maternity or parental leave or in connection with being a worker representative.
Before a worker can seek some protection under the labour laws, it must be settled that such a worker is indeed an employee. A worker is an employee when he or she has entered into a contract of employment or a contract of service with the employer. There have been times when the courts have had to first decide whether a worker is an employee before determining whether a dismissal has taken place. It must be borne in mind that a dismissal must be wrong or unfair against an employee for a court or a commission to award a remedy.
Here, we need to first deal with the question which sometimes arises: has this employee actually been dismissed? In order to sue either for unfair or for wrongful dismissal, the employee has to show that he or she was actually dismissed. In some cases, as where the employer has expressly sacked the employee, this is easy. But what of the case where the employee seeks to return to work after a year’s sickness or imprisonment or where the employer has treated the employee so badly that he or she no longer feels able to continue working? Is that employee entitled to consider him dismissed?
The answers to both of these questions lie in the contract of employment that exists between an employee and an employer
Employees who leave work because their employers have made it impossible for them to continue to work may claim that they have been constructively dismissed. However, constructive dismissal requires that the employer has actually committed a serious breach of the contract of employment. Whether or not a particular employee has been constructively dismissed depends upon the terms of his or her contract with the employer.
When an employee is certain he or she has been wrongfully dismissed, providing that the breach is sufficiently serious may treat the contract as an end and sue for damages. An employee could also arm the contract, that is, continue to perform his or her contractual obligations and sue the other party for damages.
LEGAL CHECKLIST
In Alcan Extrusions Ltd v Yates, Mr. Yates worked for Alcan Extrusions as a Press Crew man under a shift system. In 1994, the employer introduced a new shift pattern, which included Sundays and bank holidays. Under the new system, no overtime would be paid in respect of weekends and bank holidays and employees’ choice in relation to holidays would be more restricted than it had been under the old system.
THE RULING
The tribunal held that the unilateral change of the express terms of the employee’s contract of employment constituted a dismissal which enabled the dismissed employees to sue for unfair dismissal and breach of the employment contract.
by Nana Owusu Agyemang
