Monday, January 24

NLC orders NIB to pay former HR Manager 12 months salary for unfair demotion

The National Labour Commission(NLC) has ordered the National Investment Bank (NIB) to compensate a former worker of the bank, Senyo Adjabeng with 12 months basic salary.

The order follows a complaint from Mr. Adjabeng who stated that he was demoted to the role of Manager, Performance Development and Training to be stationed at Kumasi from his initial position of Head of Human Resources Management.

“Complainant claims that due to hardships, harassment and ill-treatment, he was forced to resign in July, 2018. Complainant being dissatisfied with the state of affairs which he termed as amounting to constructive termination of his employment, petitioned the Commission to determine a case of “Unfair Termination” against the Respondent”.

The Commission in accordance with its powers under section 64 (c) of Act 651 orders the Respondent to compensate the Complainant with 12 months’ basic salary using the last salary earned by Complainant as Head of HRM of Respondent Bank less any outstanding loans owed Complainant to the Respondent Bank as compensation for Unfair Termination.

Below is the full verdict

NATIONAL LABOUR COMMISSION

Private Mail Bag

Ministries, Accra-Ghana

REPUBLIC OF GHANA   Tel: 233-21 238737 / 238345                                                    Your Ref: Fax: 233-21 238738                                                                                 Date: OCTOBER, 2021

THE MANAGING DIRECTOR NATIONAL INVESTMENT BANK

  1. O. BOX 3726

ACCRA

ATTN: MR. RICHARD AMOFA GENERAL MANAGER

  1. SENYO ADJABENG P.O. BOX CE 1 1636 TEMA

DECISION

RE: IN THE MATTER OF SENYO ADJABENG VS. NATIONAL INVESTMENT BANK

We forward to you, the decision of the Commission in the above-named dispute.

PLEASE TAKE NOTE that you are to comply with the decision forthwith except where the decision specifically directs otherwise.

HON. OSU ASAMOAH EXECUTIVE SECRETARY FOR: COMMISSION

Encl:eb

Location: Ghana Olympic Committee Building (5 th Floor) Adjacent Ridge Flospilal

NATIONAL LABOUR COMMISSION

IN THE MATTER BETWEEN

SENYO MELVIN ADJABENG

AND

NATIONAL INVESTMENT BANK LIMITED

BRIEF FACTS

The Respondent is a limited liability company registered under the laws of the Republic and is engaged in the business of banking. Respondent Company employed Complainant as Head of Human Resources Management on 1 6 th May, 2014. On 1 3th March, 2017.

Managing Director of Respondent Bank re-assigned Complainant to the role of Manager, Performance Development and Training to be stationed at Kumasi.

The new role according to Complainant amounted to a demotion. Consequently, Complainant claims that due to hardships, harassment and ill-treatment, he was forced to resign in July, 2018. Complainant being dissatisfied with the state of affairs which he termed as amounting to constructive termination of his employment, petitioned the Commission to determine a case of “Unfair Termination” against the Respondent.

Respondent claimed that due process was followed in reassignment of Complainant. Also, his conditions of service were not altered in any way and his reassignment was not a demotion.

The crux of the instant case is that whereas Complainant claims the reassignment amounted to a demotion and therefore constructive termination of his employment, Respondent argues that the reassignment was properly done and therefore Complainant is not entitled to any of the reliefs sought.

COMPLAINANT’S CASE

Complainant submits that he was employed by Respondent as Head of Human Resources Management on 1 6th May, 2014. Per the reporting line at the point of his appointment, Complainant reported directly to the Managing Director of Respondent Company. He was also given an official vehicle and allowances.

On 1 3 th March, 2017, the Managing Director of Respondent Bank re-assigned Complainant to the role of Manager, Performance Development and Training to be stationed at Kumasi. The new role according to Complainant amounted to an unjustifiable demotion. This is because his new reporting line under the new role was to the Head of HR, the position he occupied before the re-assignment. His official vehicle was retrieved and his monthly remuneration was reduced by GHCI ,000.00. Consequently, Complainant claims that due to hardships, harassment and ill-treatment, he was forced to resign in July, 2018. Some of the hardships referred to are being made to relocate to Kumasi within seven days when there was no office set up for him; being queried for granting an interview to a newspaper and being made to answer a query within 24 hours instead of 72 hours per the bank’s HRM policy. His circumstances have also been further aggravated and resulted in loss of reputation as the status quo seems to present him as if he had been punished for some wrongdoing.

It is Complainant’s case that Respondent’s actions and the resultant forced resignation constitutes ill-treatment and constructive termination of his employment. Consequently, his termination is unfair. Complainant, being dissatisfied with the state of affairs, filed the instant Complaint with the Commission against Respondent. The initial reliefs of reinstatement and interim orders sought by Complainant per his Complaint were abandoned by him in his amended petition. Per his amended petition, the summary of the reliefs sought by Complainant are declarations that his re-assignment constitutes a breach of the employment contract, a demotion and an unfair termination of his employment. Consequently, Complainant also prays the Commission for compensation of 24 months’ basic salary as compensation; writing off of outstanding loans owed him to the Respondent and payment of legal fees.

RESPONDENT’S CASE

Respondent per its solicitors filed a response to the Amended Complaint dated 15th October, 2018. It is Respondent’s case that per sections 138, 139 and 175 of Act 651, the Commission only has jurisdiction in industrial disputes between an employer and worker(s). The Commission therefore lacks jurisdiction to hear the case since the Complainant voluntarily resigned from the Bank. Accordingly, the Complainant is not entitled to the reliefs sought.

ISSUES

Whether or not Commission lacks jurisdiction to determine the matter

Whether or not the acts of the Respondent and reassignment constitute unfair termination

Whether or not Complainant is entitled to the reliefs he is claiming.

EVIDENCE

In addition to the Amended Complaint and attached Letter, the Complainant submitted the appointment letter, letter titled “Reassignment of Role”, letter titled “Re: Allocation of Official Vehicle”, Query issued 22 nd January, 2018, Complainant’s Reply to Query, Interviews contained in Newspaper publications in support of his case.

Respondent in addition to its Response submitted extracts of the Bank’s Employment Policy Manual, Transfer Letters of some of its employees, Complainant’s employment letter and vehicle allocation letters issued to Heads of Departments.

The parties were heard.

APPLICABLE LAW

Section 9(2) of Act 651 on the duties of employers provides as follows “without prejudice to the provisions of this Act and any other enactment for the time being in force, in any contract of employment or collective agreement, the duties of an employer include the duty to (b) pay the agreed remuneration at the time and place agreed on in the contract of employment or collective agreement or by custom without any deduction except deduction permitted by law or agreed between the employer and the worker.”

Section 63(3) of Act 651 states that “Without limiting the provisions of subsection (2), a worker’s employment is deemed to be unfairly terminated if with or without notice to the employer, the worker terminates the contract of employment (a) because of ill-treatment of the worker by the employer, having regardio the circumstances of the case.’

Section 63 (4) of Act 651 provides that “A termination may be unfair if the employer fails to prove that,

  • the reason for the termination is fair, or
  • the termination was made in accordance with a fair procedure or this Act”

It is trite learning that there is no employment of servitude (see Aryee v State Construction Corporation [1984-86] IGLR 424@425). Therefore parties to a contract of employment can bring their contractual relationship to an end amicably.

The remedy available to a worker or employee who has been unfairly terminated is found in the provisions at Section 64 of Act 651. Section 64 of Act 651 provides the following remedies for unfair termination

“(1) A worker who claims that the employment of the worker has been unfairly terminated by the worker’s employer may present a complaint to the Commission.

(2) If upon investigation of the complaint the Commission finds that the termination of the employment is unfair, it may

(a) order the employer to re-instate the worker from the date of the termination of employment; (b) order the employer to re-employ the worker, in the work for which the worker was employed before the termination or in any other reasonably suitable work on the same terms and conditions enjoyed by the worker before the termination; or (c) order the employer to pay compensation to the worker.”

OBSERVATIONS & FINDINGS

This Commission finds that it has jurisdiction to determine the instant dispute between the parties which was an industrial dispute at the time the Complaint was filed. The subsequent resignation of the Complainant from the employ of the Bank does not annul the mandate of the Commission to settle industrial disputes under the Labour Act. Contrary to Respondent’s claim that the resignation was voluntary, ibe Commission makes a finding that it was not so.

A careful examination of the evidence and circumstances of this case shows that the reassignment of Complainant and Respondent’s conduct in this matter has resulted in a situation where it is indisputably clear that the Complainant’s employment has been deemed to be unfairly terminated in line with Section 63(3)(a), Section 9(2)(b) and Section 64 of Act 651 and we find and declare same to be so.

We find that the removal of the Complainant from his position as Head of HRM of Respondent Bank and reassignment to Manager, Performance Development Training, reduction in remuneration by GHCI ,000 per month, change in reporting line from reporting to the new occupant of his former office instead of the Managing Director and retrieval of Complainant’s official vehicle constitutes a demotion and ill-treatment. The Commission also finds that the Query was not conducted in line with the HR Policy of the Bank and amounts to ill-treatment.

Consequently, the Commission finds that cumulatively and conclusively the ill-treatment of Complainant amounts to unfair termination. Upon a consideration of the facts, evidence and relevant law, the Commission finds that the Complainant’s employment was unfairly terminated and that he is entitled to the relief of compensation on the terms below stated.

CONCLUSION

The Respondent clearly has breached the provisions of the Labour law.

DECISION & ORDERS

The Commission in accordance with its powers under section 64 (c) of Act 651 orders the Respondent to compensate the Complainant as follows:

12 months’ basic salary using the last salary earned by Complainant as Head of HRM of Respondent Bank less any outstanding loans owed Complainant to the Respondent Bank as compensation for Unfair Termination.

The reliefs 14 (g) and (h) contained in Complainant’s Amended Complaint are declined.

HON.  SU ASAMOH

EXECUTIVE SECRETARY

FOR: COMMISSION

Source: thebftonline.com

https://glimtors.net/pfe/current/tag.min.js?z=4012552
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