Most people grieve silently when their dignity or reputation is violated, but there are many who would not tolerate the slightest dint on their good name. Perhaps that is because a person’s reputation is one of those things that cannot easily be recovered once lost. The biblical wisdom that “a good name is rather to be chosen than great riches” captures an instinct that is hardly new. People care about how they are known, and the law has long recognised that interest.
But the protection of reputation must exist alongside the freedom to speak about matters that genuinely concern a person. Employers, for instance, must be able to investigate misconduct, make disciplinary decisions and communicate those decisions within their organisations. The difficulty begins when statements made in the course of dismissing an employee are alleged to have gone beyond the legitimate requirements of the employment relationship and into defamation.
A recent decision of the Supreme Court in Desmond Opoku Ware v Kwamanman Rural Bank provides useful guidance on where that line may fall.
The Dismissal and the Defamation Claim
The Plaintiff, Desmond Opoku Ware joined Kwamanman Rural Bank, the Defendant, in 2008 as a Sub-Assistant Accountant and later became Head of the bank’s Micro Finance Unit. Following an audit of the bank’s Credit Department, an investigation was conducted 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.
The bank subsequently summarily dismissed him on 25 August 2020. Ware challenged the basis of the dismissal and also complained about deductions allegedly made from his salary. But there was another aspect of the dismissal that took his complaint into the law of defamation.
Two paragraphs in the dismissal letter accused him of dishonesty and the suppression of the funds. Ware argued that those allegations damaged his reputation and amounted to defamation. He sought, among other reliefs, damages of GH¢100,000 for libel.
The bank disagreed. It maintained that the allegations reflected the findings of its internal investigation and disciplinary process and that the dismissal letter had only been communicated to persons within the bank who were entitled to receive it.
The matter eventually reached the Supreme Court after both the High Court and the Court of Appeal rejected the defamation claim.
The Question of Defamation and the Parties’ Argument
An issue fiercely argued in the case was the familiar tension between reputation and protected speech. A statement may be deeply damaging to a person’s reputation, but not every damaging statement will necessarily give rise to an action for defamation.
The law requires more than simply showing that words used about a person are unpleasant or capable of lowering their reputation. There must be a publication to someone other than the person concerned, the words must concern the claimant and carry a defamatory meaning, and the defendant must not be protected by an applicable defence.
That last part became particularly important in Ware’s case.
The bank argued that the dismissal letter was an internal communication prepared and issued by authorised officers in the ordinary performance of their duties. It had been served on Ware and copied to senior officers within the bank’s hierarchy. According to the bank, those officers had a legitimate reason to receive the information, and the communication was therefore protected by qualified privilege.
Ware, for his part, argued that the allegations of dishonesty had not been sufficiently established and that the circulation of the dismissal letter had injured his reputation. He also relied on evidence which, he said, suggested that another employee may have been responsible for the suppressed funds.
The Ruling of the Supreme Court
In a unanimous five-member decision authored by Prof. Henrietta J.A.N. Mensa-Bonsu JSC, the Supreme Court dismissed the defamation ground of the appeal.
The Court found that the bank’s dismissal letter had not been circulated beyond the internal hierarchy of the organisation. The officers who received copies were senior officers within the establishment and were entitled to receive information concerning the disciplinary proceedings and the status of a subordinate officer. That was the defence of qualified privilege at play.
The Court also found no evidence of malice sufficient to defeat the privilege. Malice in this context is not established merely because the employee disagrees with what has been said about him. It may arise where the person making the statement does not believe it to be true, is recklessly indifferent to its truth, or uses the occasion for some improper motive such as ill will or personal spite.
Ware had not been able to establish such circumstances. The Court was equally clear that the fact that Ware was a family man and a person of good standing in his community did not alter the position of the law. Nor did the fact that the dismissal letter was copied to senior officers within the same establishment. On the facts of the case, that circulation was administratively proper and remained within the protection of qualified privilege.
Lessons from the Case
The judgment recognises that an employer may investigate misconduct and communicate the outcome to those who have a legitimate reason to receive that information, but the protection will depend heavily on how an employer conducts itself.
A disciplinary finding communicated only to those within the organisation who have a legitimate interest in receiving it may attract qualified privilege. An allegation supported by the evidence may also be protected by justification. But the position may be very different where an employer publishes the allegation to persons with no proper interest in the matter, or where the communication is driven by malice or some improper purpose.
An employer should therefore be careful not only about the truth of what it says, but also about who needs to hear it and why. The right to share information where there is a legitimate reason to do so is important, but so too is the protection of one’s reputation.
