An employment relationship, like almost everything under the sun, eventually comes to an end. Ecclesiastes recognised the inevitability of such seasons long ago. But unlike many ordinary relationships, employment carries a particular imbalance. The employer ordinarily holds the greater bargaining power and has considerable control over the circumstances in which the employee works and, ultimately, whether the relationship continues.
This imbalance has invited, and rightly so, intervention by the law in the employment relationship to ensure that it does not become an excuse for unfair treatment. One area in which the law takes particular interest is the termination of employment. An employer may have good reason to bring an employment relationship to an end, but the manner in which that is done can have legal consequences.
Ordinarily, fairness requires that an employee accused of misconduct be given an opportunity to be heard. Yet there are circumstances in which the law recognises a right of the employer to bring the employment to an immediate end. This is the place of summary dismissal.
Requirement of Fair Hearing in Terminating the Relationship
The general expectation in employment matters is that an employee should not ordinarily be condemned without an opportunity to be heard. This principle is reflected more broadly under article 23 of the 1992 Constitution, which requires administrative bodies and officials to act fairly and reasonably and in accordance with law.
The Ghanaian courts have repeatedly affirmed the importance of this principle. Cases such as Aboagye v Ghana Commercial Bank and Awuni v West African Examinations Council have underscored the importance of giving a person an opportunity to be heard before an adverse decision is taken against them.
The principle is an important protection for employees. Where an allegation of misconduct is made, an employee should ordinarily have an opportunity to know the case against them and respond to it. This is particularly so where the employer’s contract, staff handbook, collective agreement or other applicable rules prescribe a disciplinary procedure.
But the law does not necessarily require an employer to conduct a full disciplinary hearing before every dismissal.
The Common Law Right of Summary Dismissal
Summary dismissal is a common law right of the employer. It permits the employer to terminate the employment relationship immediately where the employee’s conduct is sufficiently serious to justify such action.
The distinction between an ordinary dismissal and a summary dismissal lies largely in the manner in which the employment comes to an end. In a summary dismissal, the employer typically does not continue the relationship while going through the ordinary period of notice. The seriousness of the misconduct is said to be such that the employer is entitled to bring the relationship to an immediate close.
In Lagudah v Ghana Commercial Bank, the Supreme Court held that, in the ordinary common law of employment and in the absence of a contractual provision to the contrary, an employer is not necessarily required to comply with the rules of natural justice before summarily dismissing an employee for misconduct. What matters is whether the facts objectively establish sufficient cause for the dismissal.
The same approach was reflected in Lever Brothers Ghana Ltd v Annan, which was later cited with approval in Bani v Maersk Ghana Ltd. The courts recognised that where an employee is in fact guilty of misconduct sufficiently grave to justify instant dismissal, the employer may rely on that misconduct in defending a claim for wrongful dismissal.
The principle is therefore that serious misconduct may, in an appropriate case, entitle the employer to act immediately without first undertaking a formal tribunal or enquiry of the kind that might otherwise be expected.
The Case of the Former Kwamanman Rural Bank Employee
The recent decision in Desmond Opoku Ware v Kwamanman Rural Bank brought this principle before the Supreme Court once again.
Desmond Opoku Ware had worked with Kwamanman Rural Bank since 2008, rising from Sub-Assistant Accountant to Head of the bank’s Micro Finance Unit. An audit of the bank’s Credit Department led to an investigation into certain activities within the department. The investigation found, among other things, that Ware had been involved in the suppression of GH¢5,388 and had been absent from work without lawful excuse.
Ware challenged the basis of the dismissal and contended that he had not been given a proper opportunity to present his side during the proceedings. The bank maintained that he had been given ample opportunity to be heard but had declined it. The bank eventually summarily dismissed him on 25 August 2020.
The complaint therefore raised a broader question about the employer’s power to dismiss summarily and the extent to which a formal hearing was required before that power could be exercised.
The Supreme Court’s Approach
The Supreme Court, in a unanimous five-member decision authored by Prof. Henrietta J.A.N. Mensa-Bonsu JSC, dismissed Ware’s complaint concerning the summary dismissal.
The Court relied on the established common-law position that an employer may summarily dismiss an employee whose conduct is incompatible with the due or faithful discharge of their duties. In the ordinary common law of employment, the employer is not invariably required to establish a tribunal or committee of enquiry before dismissing an employee summarily for misconduct.
What ultimately mattered was whether there were facts capable of justifying the dismissal.
On the evidence before it, the Court concluded that the misconduct alleged against Ware had been established and that the disciplinary process that had actually been undertaken was neither substantively nor procedurally flawed. His complaint against the summary dismissal therefore did not succeed.
When Can Summary Dismissal Be Justified?
The justification for summary dismissal lies largely in the seriousness of the employee’s conduct and the effect that conduct has on the employment relationship.
Employment depends to a considerable degree on trust and confidence. Conduct such as serious dishonesty, fraud, theft, gross insubordination or other grave misconduct may, depending on the circumstances, destroy that confidence to the point where continued employment becomes untenable.
That is why the courts have accepted that an employee who is guilty of sufficiently serious misconduct may be dismissed without notice. The inquiry is not simply whether the employer describes the conduct as serious. The circumstances must objectively justify the conclusion that the misconduct is incompatible with continued employment.
The Labour Act, 2003 (Act 651) recognises proven misconduct as a ground upon which a contract of employment may be terminated. Summary dismissal itself, however, remains principally a common-law concept rather than a separate form of termination expressly set out in the Act.
The Balance Between Fairness and the Employer’s Right
As employment relationships continue to evolve, so too does the need to maintain fairness within them. The protection afforded to employees against arbitrary treatment remains important, but fairness cannot always mean that an employer must retain an employee whose conduct has fundamentally undermined the relationship.
The authorities considered above show that the law seeks to hold these interests together. An employee may be entitled to the protection of fair procedure where the circumstances and the terms governing the employment require it, while an employer may, in an appropriate case, exercise the common-law right to dismiss summarily where serious misconduct makes immediate action justifiable. The circumstances of each employment relationship, the rules binding the parties and the evidence of the alleged misconduct will ultimately determine where that balance lies.
