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IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE, INDUSTRIAL/LABOUR DIVISION I
HELD IN ACCRA ON MONDAY 4TH JULY, 2016 BEFORE HER LADYSHIP JUSTICE GIFTY DEKYEM (MRS)
SUIT NO. INDL/53/13
DR FESTUS NII BOYE BOYE PLAINTIFF VRS GHANA PORTS & HARBOURS AUTHORITY DEFENDANT
PARTIES: Plaintiff Absent
Defendant Absent
COUNSELS: Maame Ama Hany ESQ holding brief of Egbert Faibille Jnr ESQ for Plaintiff
Joshua Nimako ESQ Defendant (Absent)
JUDGMENT
Defendant is a corporate entity established pursuant to the Ghana Ports andHarbours Authority Act, 1986 (PNDCL 160). Plaintiff is a medical doctor whoworked on “locum” basis with Defendant’s medical services at various timesspanning a period of about six years. Subsequently, Defendant offered Plaintiff
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appointmentasMedicalOfficerwitheffectfrom1stNovember,2012andpostedhimtoTakoradisubjecttomedicalfitness.Byaletterdated6thDecember,2012(exhibitD),DefendantinformedPlaintiffthat,hewasunsuccessfulinthemedicalexamination and with effect from 10th December, 2012 withdrew hisappointment.Thefactsarenotdisputed.ItisPlaintiff’scontentionthat,thebasisfortheterminationofhisappointmentbyDefendantisunfair,discriminatoryandviolationofhisfundamentalhumanrightswhereforePlaintiffclaimsthefollowingreliefs:
a. AdeclarationthatDefendantoughttohavefurnishedPlaintiffwiththefulldetails of the medical examination Plaintiff underwent at the behest ofDefendantaspartoftheconditionsofPlaintiff’semploymentbyDefendantandwhichconstitutedthegroundforDefendant’sterminationofPlaintiff’sappointment.
b. An order directed at Defendant to release the full details of themedicalexamination Plaintiff underwent at the behest of Defendant to Plaintiffforthwith.
c. A declaration that Defendant’s termination of Plaintiff’s employment perthe letter dated the 6th day of December, 2012 amounts to unfairtermination of employment in the intendment of section 63(4)(a) of theLabourAct,2003(Act651).
d. A declaration that Defendant’s termination of Plaintiff’s employment pertheletterdated6thdayofDecember,2012isaviolationofPlaintiff’shumanright to the extent that it is discriminatory in the intendment of Article17(2)and(3)ofthe1992Constitution.
e. DamagesforunlawfulterminationofPlaintiff’sappointment.
f. Costs
g. Anyotherrelief(s)whichthisHonourableCourtdeemsjustandequitable.
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Attheapplicationfordirection,thefollowingissuesweresettledfortrial:
a. Whether or not the termination of the Plaintiff’s employment by theDefendantwasinaccordancewiththetermsofemployment?
b. Whether or not the Defendant having terminated Plaintiff’s employmentbasedonhismedicalstatushasinfringedPlaintiff’srighttoemploymentasguaranteedunderthe1992Constitution?
c. Whether or not the Defendant is entitled to a release by Plaintiff of alldetails of the medical examination he underwent at the direction ofDefendant?
d. Anyotherissuesarisingoutofthepleadings?
Ontheburdenofproof incivilcases,theSupremeCourt inPokuvPoku [2007-
2008]2SCGLR996at1022perGeorginaWoodCJstatedthestatutorydutyona
partyinacivilsuittodischargetheburdenofproofwhenitheldasfollows:-
“Itraisesthelegalquestionofwhobearstheburdenofpersuasioninsuchcivil matters, ….Who has the onus of proof and what is the degree orstandardofproof?Generallyspeaking, thisdepends largelyon…. the factaverredandthereforethefacts in issue…Generally,theburdenofproof istherefore on the party asserting the facts, with the evidential burdenshiftingasthejusticeofthecasedemands.Thestandardordegreeofproofmust also necessarily be proof on the preponderance of the probabilitieswithinthemeaningofsection12(2)oftheEvidenceAct,1975(NRCD323).”
Theprinciple isbasedonsections10,11,12,14and17oftheEvidenceDecree,
1975(NRCD323)asfollows:
Section10—BurdenofPersuasionDefined.
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(1)ForthepurposesofthisDecree,theburdenofpersuasionmeansthe
obligationofapartytoestablisharequisitedegreeofbeliefconcerning
afactinthemindofthetribunaloffactorthecourt.
(2)Theburdenofpersuasionmayrequireapartytoraiseareasonable
doubt concerning the existence or non-existence of a fact or that he
establishtheexistenceornon-existenceofafactbyapreponderanceof
theprobabilitiesorbyproofbeyondareasonabledoubt.
Section11—BurdenofProducingEvidenceDefined.
(1) For the purposes of this Decree, the burden of producing evidence
meanstheobligationofapartytointroducesufficientevidencetoavoid
arulingagainsthimontheissue.
(4) Inothercircumstances theburdenofproducingevidence requiresa
party to produce sufficient evidence so that on all the evidence a
reasonablemindcouldconcludethattheexistenceofthefactwasmore
probablethanitsnon-existence.
Section12—ProofbyaPreponderanceoftheProbabilities.
(1) Except as otherwise provided by law, the burden of persuasion
requiresproofbyapreponderanceoftheprobabilities.
(2)"Preponderanceoftheprobabilities"meansthatdegreeofcertainty
of belief in themindof the tribunalof factor the courtbywhich it is
convinced that the existence of a fact ismore probable than its non-
existence.
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Section14—AllocationofBurdenofPersuasion.
Except as otherwise provided by law, unless and until it is shifted a
party has the burden of persuasion as to each fact the existence or
non-existence of which is essential to the claim or defence he is
asserting.
Section17—AllocationofBurdenofProducingEvidence.
(1) Except as otherwise provided by law, the burden of producing
evidenceofaparticularfactisonthepartyagainstwhomafindingon
thatfactwouldberequiredintheabsenceoffurtherproof.
(2) Except as otherwise provided by law, the burden of producing
evidenceofaparticularfactisinitiallyonthepartywiththeburdenof
persuasionastothatfact.
Whetherornot theterminationof thePlaintiff’semploymentbytheDefendant
wasinaccordancewiththetermsofemployment?Plaintiffaverredthat,theonly
reason proffered by Defendant as basis for the termination of Plaintiff’s
appointmentwasthat,Plaintiffwasnotsuccessfulinthemedicalexaminationhe
underwent.DefendantcontendedthattheterminationofPlaintiff’sappointment
wasstrictlyinlinewiththetermsoftheofferofemploymentwhichthePlaintiff
wholeheartedlyacceptedwithoutduressfromanyperson.Defendantarguedthat
as the appointment was subject to medical fitness, failure at the medical
examination entitled it to withdraw the offer of appointment; thus the
withdrawalwasinlinewiththeofferofemployment.PlaintiffdeniesDefendant’s
position. Section 11(4) of the Evidence Decree put the obligation in civil
proceedings, like the instant one, of producing evidence on a party to produce
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sufficientevidencesothatonalltheevidence,areasonablemindcouldconclude
thattheexistenceofthefactwasmoreprobablethanitsnon-existence.Itisalla
questionofwhichofthepartieswasbetterabletoproveitscasethantheother
on all the evidence led at the trial? The offer of appointment letter dated
September 28, 2012 stated inter alia: “We….have the pleasure to offer you
appointmentwithGhanaPortsandHarboursAuthorityasMedicalOfficerwith
effect from1stNovember,2012subjecttomedical fitness.”Thebigquestion is,
whatismedicalfitnessorwhatdidthepartiestotheemploymentcontractintend
when they agreed that the appointment was subject to medical fitness. The
evidence placed before the court showed that, Plaintiff subjected himself to
medicalexaminationafterwhichhewas informedbyexhibitDthat,hewasnot
successfulinthemedicalexaminationandconsequentlytheofferofappointment
waswithdrawn.Incrossexamination,Plaintifftestifiedthus:
Q Youalsoagreewithmethattheparamountclauseintheoffer,thatisexhibit A before you, that your appointment was subject to yourmedicalfitness.
A YesMyLord
Q Andyouagreewithmethatyourterminationtookplaceduringyourprobationperiod
A YesMyLord
DW2,testifiedincrossexaminationthus:
Q Can you tell this court what the Defendant meant by “subject tomedicalfitness”?
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A MyLordIwouldn’tbeabletoanswerthisquestionbecauseIamnotamedicaldoctor.
Q Canyou tell thishonourable court thebasis forwhich thePlaintiff’sappointmentwasterminated?
A Thebasis for the termination of the appointmentwas his failure tomeet the medical test as presented by the medical doctor of theauthority.
Q Canyoutellthishonourablecourttheresultofthemedicaltestwhichseem to indicate that the Plaintiff had failed the medicalexamination?
A MyLord Iwouldn’tbeable toanswer thisquestionbecausewe justreliedonthereportassubmittedtotheCEOandfurtherinstructionsto me as the head of administration then to terminate theappointment.
Q Whatwastheinstructiongiventoyoutoterminatehisappointment?
A If I could recollectwell, itwas indicatedby themedical doctor thatPlaintiffwasseverelyhypertensiveanddiabetic.
It isnot indisputethat theappointmentofemploymentofferedPlaintiff,which
heacceptedwassubjecttomedicalfitness.Therewasnoevidenceplacedbefore
the court to suggest the parameters ofwhat is deemedmedical fitness by the
partiesasfarastheemploymentcontractwasconcerned.DW2couldnottell.In
myhumbleview,medical fitness testingregardingemployment is toensurethe
prospectiveemployee is fittoperformhisorherdutiesandtokeepthemselves
andothers safe in theworkplace. Thequestion then to ask is, did themedical
examinationonPlaintiff showhewasnot fit toperformhisdutiesasamedical
doctoranddidhepresentasunsafetohimselfandtoothersatDefendant’swork
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place? In other words did hismedical conditions of diabetes and hypertension
hinderhisworkasadoctor?ThemedicalreportonPlaintiff,exhibitF,dated26th
November,2012statedasfollows:
“FROM : HEADOFMEDICALSERVICES
TO : THEDIRECTORGENERALHEADQUARTERS
RE:MEDICALEXAMINATIONDR.FESTUSNIIBOYEBOYE–MEDICALOFFICERWe conducted thorough medical examination on the above-namedprospectiveemployee.
Hewasfoundtobeaknownhypertensiveanddiabetic.
Hismedical fitness for the job is subject to regularuseofmedicationandregularmedicalreviews/followups.
Forwardedforyournecessaryattention.
[Sgd]
DRVITUSV.ANAAB-BISIHEADOFMEDICALSERVICES”
There was nothing in exhibit F, to indicate that Plaintiff failed the medical
examinationor did notmeet themedical fitness envisagedby the employment
contract.DW1,theauthorofexhibitFtestifiedincrossexaminationthus:
Q You gave the final report to the Defendant not so? So you knowexactlywhatyouwroteinthereport.
A YesIknow
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Q AndyouwrotethatthePlaintiffwasnotfittopracticeasamedicaldoctorintheDefendant,notso?
A Ididnot.
Q I also put it to you that themedical report that you endorsed, youstatedthatDr,FestusBoyeismedicallyfitbuthashypertensionanddiabetes.
A YesIstatedthat.IfImayexplain,thatisnottheonlythingIstated.Istatedthatheismedicallyfitifhisdiabetesandhypertensionarewellcontrolled and will require regular follow ups, the issue of hishypertensionanddiabetesisnotincontention.
From DW1’s admission, Plaintiff was found to be medically fit, subject to his
medical conditions beingwell controlled andwould require regular follow ups.
Plaintiff was never declared unfit. It was not shown by the evidence adduced
during the trial that Plaintiff’s medical conditions were uncontrolled. It was
therefore not established byDefendant following themedical examination that
Plaintiffwasnotmedicallyfitinspiteofhimbeinghypertensiveanddiabetic.The
reason given by Defendant as grounds for the termination of Plaintiff’s
appointmentwasutterlyfalse.Theterminationwasthusnotinaccordancewith
theemploymentcontract.Thereisaclearbreachofthecontractwhichmakesthe
terminationoftheemploymentcontractunlawful.
AquestionposedtoPlaintiffthattheterminationofhiscontractwasduringthe
probationaryperiodseemtosuggestthatDefendantwasjustifiedinterminating
hisemploymentinthecircumstances.Section63(4)oftheLabourAct,2003(Act
651)stipulatesthataterminationofemploymentmaybeunfair iftheemployer
failstoprovethat,thereasonfortheterminationisfairbutthisprovisiondidnot
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applytoanemployeewhowasonprobationasprovidedinsection66(b)ofAct
651.TheSupremeCourtthroughAnsahJSC stated inKobivGhanaManganese
CoLtd [2007-2008]SCGLR771at773that:“Thepassingof thenewLabourAct,
2003 (Act 651), has brought relief to the employee. The right to terminate
employmentdoesnotdependonthewhimsoftheemployer.”Thesamecaseheld
at holding 1, that “..the right to terminate is dependent on the terms of the
contract and must be exercised in accordance therewith.” This principle
presupposes that the employment contract must be terminated in accordance
withitsveryterms.Theofferofappointmentletterwasexplicitthattheofferwas
subject tomedical fitness thusDefendantwasboundby thesaid term. Inorder
therefore, to justify a termination of the appointment, it was crucial that
DefendantfoundasafactthatPlaintiffwasnotfitmedicallytoperformhisduties
asamedicaldoctor.Section66(b)ofAct651willthusnotavailDefendantasthe
terms of the employment contract appeared to be more favourable than the
statutory provisions regarding the termination of an employee on probation.
Defendant did not follow its own procedure by showing through the medical
examination that Plaintiffwasmedically unfit to hold the offer of appointment
madetohim.Theterminationoftheappointmentwasthusinclearbreachofthe
employmentcontractandsameisunlawful.
The next issue is whether or not the Defendant having terminated Plaintiff’s
employment based on his medical status has infringed Plaintiff’s right to
employment as guaranteed under the 1992 Constitution? Plaintiff averred that
thebasisoftheterminationofhisemploymentwasunfair,discriminatoryanda
violationofhishumanrights.TheSupremeCourtheldinBankofWestAfricaLtdv
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Ackun[1963]1GLR176-182SC,holding2that:“Theonusofproofincivilcases
depends upon the pleadings. The party who in his pleadings raises an issue
essentialtothesuccessofhiscaseassumestheburdenofproof.”Theonusisthus
onPlaintifftoprovethattheterminationofhisappointmentwasdiscriminatory
and a breach of his human rights havingmade those assertions. The court has
alreadyfoundthattheterminationbreachedtheemploymentcontractasPlaintiff
was never found to be unfit per the medical report. Article 17 of the 1992
Constitutionstatesasfollows:
Article17—EqualityandFreedomfromDiscrimination.
(1)Allpersonsshallbeequalbeforethelaw.
(2)Apersonshallnotbediscriminatedagainstongroundsofgender,race,colour,ethnicorigin,religion,creedorsocialoreconomicstatus.
(3) For the purposes of this article, "discriminate"means to give differenttreatment to different persons attributable only or mainly to theirrespective descriptions by race, place of origin, political opinions, colour,gender, occupation, religion or creed,whereby persons of one descriptionare subjected to disabilities or restrictions to which persons of anotherdescription are notmade subject or are granted privileges or advantageswhicharenotgrantedtopersonsofanotherdescription.
The Supreme Court speaking through Brobbey JSC regarding Article 17 of the
Constitution in Ghana Commercial Bank Ltd v The Commissioner, CHRAJ Civil
Appeal No. 11/2002, 29th January, 2003 stated that: “For the purposes of this
article, “discriminate” means to give different treatment to different persons
attributableonlyormainlytotheirrespectivedescriptionsbyrace,placeoforigin,
politicalopinions,colour,gender,occupation, religionorcreed,wherebypersons
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ofonedescriptionaresubjectedtodisabilitiesorrestrictionstowhichpersonsof
anotherdescriptionarenotmadesubjectoraregrantedprivilegesoradvantages
whicharenotgrantedtopersonsofanotherdescription.Whenthefundamental
law of the landmandates that everyone is equal before the law, the appellant
cannotoperateasystembywhichitsemployeesarenotequalbeforethelaw.A
systembywhichthereappearstobedifferentlawsfordifferentemployeesorby
whichthelawsinthebankareapplieddifferentlytodifferentemployeesissurely
discriminatory….” It is thusmandatedby the 1992Constitution that all persons
shallbeequalbeforethelawandapersonshallnotbediscriminatedagainston
grounds of any description by which they may be identified. Plaintiff is both
hypertensiveanddiabetic.Althougharticle17(2)and(3)donotspecificallystate
disability or persons living with diabetes and hypertension as grounds for
discrimination,article33(5)ofthe1992Constitutionwidensthescopeofhuman
rightsviolationsthus:
“The rights, duties, declarations and guarantees relating to thefundamental human rights and freedoms specifically mentioned in thisChaptershallnotberegardedasexcludingothersnotspecificallymentionedwhichareconsideredtobeinherentinademocracyandintendedtosecurethefreedomanddignityofman.”
Thecourttakesjudicialnoticeofthefactthatdiabetesandhypertensionaffecta
substantial number of the adult population the world over. Sufferers can
thereforebedescribedbytheirconditionsasbeingHypertensiveandordiabetic
as in Plaintiff’s case. Being so identified by such description, sufferers of these
medical conditions qualify for protection under the Constitution not to be
discriminatedagainstonaccountoftheirmedicalconditions.
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Section 59of the PersonsWithDisabilityAct, 2006 (Act 715) defines a "person
with disability" as “an individualwith a physical,mental or sensory impairment
including a visual, hearing or speech functional disability which gives rise to
physical, cultural or social barriers that substantially limits one or more of the
major life activities of that individual.” It is not in dispute that Plaintiff is
HypertensiveandDiabetic.Diabetes isagroupofmetabolicdiseaseswherebya
personhashighbloodsugarduetoaninabilitytometabolizesufficientquantities
ofthehormoneinsulin.Hypertensionalsoisadisorderofabnormallyhighblood
pressure. Both conditions are long-term medical conditions which need
medicationandorlifestylechangestomanagewithoutwhichthesufferermaybe
disabledintheperformanceofhisorherdaytodayactivities.Thereforepersons
livingwithhypertensionandordiabetescanbeclassifiedasdisabledpersonsto
affordthemtheneededprotectionenvisagedbyAct715.
Section1ofAct715stipulatesthatapersonwithdisabilityshallnotbedeprived
of the right to participate in, economic activities such as employment. Further
section4(2)ofAct715providesthat,anemployershallnotdiscriminateagainsta
prospective employee or an employee on grounds of disability unless the
disabilityisinrespectoftherelevantemployment.Plaintifftestifiedthusincross
examination:
Q HowdidyouknowtheDefendant?
A Closely I have aworking relationshipwithGhana Ports&Harboursauthority forwelloversixyearsbefore Iwas formallyengagedwiththeDefendant.IwasfirstworkingonlocumbasisatDefendantclinicin Tema spanning over a period of six years and there was an
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opportunity where I had to apply formally to work on permanentbasis.
Q Soyouwerenotworkingwiththem?
A Iwasworkingforthemonparttimebasisforaperiodofsixyearsonlocumbasis then in2012 therewasa jobopening in theDefendantclinicandIappliedtofillthatposition.
Q Butbeingonmedicationwhatdoyoumean
A I takemedicines tocontrolmyhypertensionanddiabetesandthesehavebeentakenforwellover14yearsnow.
CrossexaminationofDW1on18thApril,2016:
Q ForhowlonghasthePlaintiffbeenyourmedicalcolleague?
A Igottoknowthathewasadoctorsomefewyearsago
Q Andduringthoseyears thatyouknewhewasamedicaldoctor,didyou ever have any indications of his chronic medical conditionsinterferingwithhiswork?
A Nobecauseyoucannottellwhethersomeonehasdiabetesifyouarelooking at him and also he had not worked with me before as apermanentdoctor.
The uncontroverted evidence is that prior to Plaintiff applying for employment
withDefendant,thesubjectmatteroftheinstantsuit,heworkedatDefendant’s
onparttimebasis,commonlycalled“locum”spanningoversixyearsandduring
theseyears,theevidencedoesnotsuggestthathismedicalconditionshindered
his ability to performhis duties. Plaintiff’smedical conditions cannot therefore,
justifyDefendant’sconductofwithdrawingtheofferintheintendmentofsection
4(2)ofAct715.
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Further, the UN Convention on the Rights of Persons with Disabilities, 2006,
(CPRD) which Ghana ratified (31 July 2012) states in its Article 1 that: “The
purposeofthepresentConventionistopromote,protectandensurethefulland
equal enjoyment of all human rights and fundamental freedoms by all persons
withdisabilities,andtopromoterespectsfortheir inherentdignity.Personswith
disabilities include those who have long term physical, mental, intellectual or
sensory impairmentswhich in interactionwith various barriersmayhinder their
fullandeffectiveparticipationinsocietyonanequalbasiswithothers.”TheCPRD,
Article2,goesfurthertodefinediscriminationonthebasisofdisabilityas“…any
distinction,exclusionorrestrictiononthebasisofdisabilitywhichhasthepurpose
oreffectof impairingornullifying the recognition, enjoymentorexercise,onan
equal basis with others, of all human rights and fundamental freedoms in the
political,economic,social,cultural,civiloranyotherfield.It includesallformsof
discrimination, including denial of reasonable accommodation.” This is a clear
demonstrationthat,bothatnational levelandtheworldover,rightsofdisabled
personareprotected.ItisclearthatPlaintiffhasadisabilityaswithouttreatment
andorwithchangeinlifestyle,hemaynotbeabletofunctioneffectivelyonequal
basiswithpersonswhodonothave theconditionshehas.Section11(b)ofAct
751provides that:“Apersonwhoemploysapersonwithdisability shallprovide
appropriate facilities required by the person with disability for the efficient
performance of the functions required by the employment.” By this, Act 751
entreats employers such as Defendant to make “reasonable adjustments” for
personssuchasPlaintiffifnecessarytoensureefficientperformancerequiredof
Plaintiff and not resort to termination of his appointment. This will entail a
thoroughobjectiveassessmentofPlaintifftoascertainwhathisrequirementsare
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ifatalltoensurehisefficiencyonthejob.ThisDefendantfailedtodoandsame
amountstodiscriminationongroundsofPlaintiff’sdisability.
In determiningwhether an employer has discriminated against an employee in
terminating his or her appointment on grounds of disability, I think the test to
apply is whether the reason for the termination of the employment is the
employee’s disability and if so whether the employer failed to make any
reasonable adjustment. In the instant case, it is without doubt that Plaintiff’s
employmentwasterminatedbecauseofhismedicalconditionswhichDefendant
failedtoascertainwhetherornotareasonableadjustmentwouldhaveensured
his efficiency. In the light of the above, by the withdrawal of the offer of
appointmentbyDefendantongroundsthatPlaintiffisdiabeticandhypertensive
andfailuretoassessPlaintiffforreasonableadjustment ifnecessaryamountsto
discriminationbyDefendantagainstPlaintiffandwillsohold.
ThethirdissueiswhetherornotthePlaintiffisentitledtoareleasebyDefendant
of all details of the medical examination he underwent at the direction of
Defendant?Plaintiff testified thatDefendant communicated tohim thathewas
notsuccessfulinthemedicalexaminationheunderwentandyetDefendantfailed
tofurnishhimwiththeresultsofthemedicalexamination.ItwasheldinParslow
vMasters&Great-WestAssuranceCompany(1993)6W.W.R273SackQBthat,a
personisentitledtotheproductionofindependentmedicalexaminationreports
on thebasis that thepatienthadapersonal interest inmedical documentation
pertainingtohimorherself.TheJudgeintheParslowcasereliedontheprinciples
setout in the SupremeCourtofCanada in the caseofMcInerney vMacdonald
(1992)2SCR146(SCC)andconcludedthat:“WhileitistruethatGreat-Westpaid
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for the medical report in respect of Parslow, it is also true that Parslow was
required to disclose private and personal information about herself to enable
Masters prepare the report. In this respect, a physician-patient relationshipwas
created,evenifthepurposeofthemedicalconsultationwithMasterswasnotto
enablehimadviseParslowandprescribeacourseoftreatmentforher…..Thereis
atbestonlyadifferenceofdegreeandnotofsubstanceinthesituationwherethe
patientattendsaphysicianforathirdpartymedicalratherthanforprofessional
services.” Plaintiff having submitted to medical examination and undoubtedly
providedhisprivateandpersonalinformationisentitledtocopyoftheresulton
groundsofhispersonal interest. Itwas thereforeoutoforder forDefendant to
denyhimcopyofthemedicalresultsculminatinginthemedicalreportprepared
attheinstanceofDefendant.Duringthetrial,DW2wasorderedbythecourtto
produce the medical report on Plaintiff, exhibit F, which has been reproduced
above.Thereportdoesnotgivedetailsoftheresultswhichledtotheexamining
doctor’s conclusion that Plaintiff was found to be a known hypertensive and
diabetic.DW1,amedicalofficerwithDefendantwhoauthoredthemedicalreport
testified at paragraph 5 of his witness statement that: “Plaintiff was among a
numberofmedicalofficerswhowerereferredbytheDefendanttotheclinic for
medicalexamination.Mygoodselfandothercolleaguemedialdoctorsattheclinic
conductedathoroughmedicalexaminationonthePlaintiffandfoundoutthathe
had some chronic medical condition.” In spite of this assertion of having
conducted a thorough medical examination culminating in definite findings,
Defendant was unable to produce evidence of the results of the medical
examination if truly same did exist. Regarding the above quoted paragraph 5,
DW1wascrossexaminedthus:
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Q SincethemedicalreportwasdeliveredtoyouforwhichyoucertifiedandsentuptotheAuthorityandyouweretheheadoftheteamthatconducted the investigation, can you educate this Court the sort ofinvestigationsthatweretakenorconducted?
A Wehaveastandardmedicalexamsformatfromprospectemployeesandeverybodygoes through the same formatbywayof laboratoryinvestigations, physical examination including eye examination andeverythingisputtogetherforthefinalreport.
Q And based on those results you arrived at a conclusion that thePlaintiffismedicallyunfitnotso?
A Iforwardedourreporttotheemployers.
Having testified that Plaintiff went through the standard medical format at
Defendant’s which included laboratory investigations among others, it would
havebeenexpectedthatthemedicalreportwillcontainoutcomesoftheresults
formingthebasisofconclusionsinthereport.DW1wasevenevasivewhenasked
whetherhisconclusionwasbasedontheresults tomakea findingthatPlaintiff
wasunfit.Plaintiff testifiedatparagraph19ofhiswitnessstatement that,atall
material time, his medical condition was disclosed to the Defendant’s medical
Director.IfindPlaintiff’sstorymoreprobablethanDefendant’s.Iaminclinedto
come to the conclusion that, Defendant did not conduct any thoroughmedical
examinationonPlaintiffbutifitdid,theresultsweresosatisfactorythatitwould
notadvancethecourseofDefendant;thatisprobablywhydetailsofthemedical
examinationresultshavenotsurfacedanywhere.InthelightoftheaboveIamof
the opinion that,Defendant decidedwhen it had the information that, Plaintiff
was both hypertensive and diabetic towithdraw the offer of appointment. If it
werenotso,afterathoroughmedicalexamination,themedicalreport,exhibitF,
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will show thebasisof the conclusion in the report.Consequently, even though,
Plaintiff is entitled to the release of details of themedical examination results,
there isnopoint inmakinganorder for the releaseof sameas thecourt isnot
convinced furthermedical report/results exists apart from exhibit F,whichwas
providedatthetrial.
In conclusion, the court finds the termination of Plaintiff’s employment with
Defendant unlawful on grounds of breach of the employment contract and
discrimination.IsPlaintiffthusentitledtohisclaim?Plaintiffisclaimingdamages
forunlawfulterminationofhisappointment,costsandanyotherrelief(s)asthe
courtmaydeemfit.Itremainsthecommonlawthat,theremedyavailabletoan
employee who has been wrongfully dismissed or terminated is an action for
damagesasenunciatedinFelixYawBanivMaerskGhanaLimitedCivilAppealNo.
J4/48/2010SC30thMarch2011.Thegeneralprincipleas laiddown in the locus
classicus,Hadley vBaxendale [1854]9Ex341 is that, theclaimant isentitled to
full compensation for his loses (restitutio in integrum). It was held in Ashun v
AccraBreweryLimited[2009]SCGLR81that‘….Inprinciple,intheabsenceofany
contrarystatutoryorcontractualprovision,themeasureofdamagesforwrongful
terminationofemployment….wascompensationbasedontheemployee’scurrent
salary and other conditions of service for a reasonable periodwithinwhich the
aggrieved party was expected to find alternative employment… That quantum
wassubjecttothedutyofmitigationofdamages.’ Itwasfurtherheld inSociete
GeneraldeCompensationvAckerman(1972)1GLR413,CAholding6,that:“The
measure of damages for wrongful dismissal is the loss thereby incurred; and
subjecttothedutyofaplaintifftomitigatehisloss,itwillnormallybetheamount
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ofwagesdueandpayablefortheagreedperiodofservice inclusiveofanyother
benefit towhich he is entitled by virtue of the contract. Steps to be taken by a
plaintiff inmitigatinghis loss isaquestionof factnotof law;andtheburdenof
proofisonadefendantnotonaplaintiff…”ThecourtinthiscasereliedonPayzu,
Ltd.v.Saunders [1919]2K.B.581atp.588,C.A.;Roperv.Johnson (1873)L.R.8
C.P.167atpp.181-182andYettonv.EastwoodsFroyLtd. [1966]3AllE.R.353.
Theonuson the issueofmitigationofdamages thus lieson theDefendant.No
evidencewasadducedbywayofcrossexaminationorotherwiseastowhetheror
notPlaintifffailedtomitigatehislosses.Defendantthusfailedinthedischargeof
this burdenofmitigation. Plaintiff being amedical officerwith vast experience,
havingworkedinquiteafewestablishmentsshouldbeabletosecurea jobina
year. Accordingly, the court awards Plaintiff one years’ salary as damages for
breachofcontractresultingintheunlawfulterminationofhisappointment.
In assessing the level of compensation in discrimination cases, pecuniary loss
arisingdirectlyfromanactofdiscrimination,damagesandinjurytofeelingsmust
betakenintoaccount.Thecourthasalreadyawardeddamagesforbreachofthe
employmentcontractresultingintheterminationoftheemploymentcontractin
termsoflossofearnings.InHMPrisonsServiceandothersvJohnson[1997]IRLR
162,theEmploymentAppealTribunalupheldanawardforinjurytofeelingsmade
bytheindustrialtribunaltoaclaimantinadiscriminationcase.Therehavebeena
plethora of cases in the British jurisdiction such as Vento v Chief Constable of
West Yorkshire Police [2003] IRLR 102 and Da’Bell v NSPCC (UKEAT/0227/09)
whereawardsweremade indiscriminationcases for injury to feelings. Ibelieve
samewouldbeanappropriatecompensationinthecircumstances.Thecourtwill
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therefore,awardPlaintiff thirtythousandGhanaCedis (GHS30,000.00) for injury
to feelings. Account is also taken of the industry of Plaintiff’s Counsel in
prosecuting this case, costs is therefore, assessedat five thousandGhanaCedis
(GHS5,000.00).
[SGD]
JusticeGiftyDekyem(Mrs)JusticeoftheHighCourt,LabourDivision1,Accra
Casescited:
PokuvPoku[2007-2008]2SCGLR996
KobivGhanaManganeseCoLtd[2007-2008]SCGLR771
BankofWestAfricaLtdvAckun[1963]1GLR176-182SC
GhanaCommercialBankLtdvTheCommissioner,CHRAJCivilAppealNo.11/2002,29thJanuary,2003
ParslowvMasters&Great-WestAssuranceCompany(1993)6W.W.R273SackQB
McInerneyvMacdonald(1992)2SCR146(SCC)
FelixYawBanivMaerskGhanaLimitedCivilAppealNo.J4/48/2010SC30thMarch2011
HadleyvBaxendale[1854]9Ex341
AshunvAccraBreweryLimited[2009]SCGLR81
SocieteGeneraldeCompensationvAckerman(1972)1GLR413,CA