It is trite knowledge that human resource plays an integral role in the success or failure of a business. The value of input employees make in a business in sum are what defines a company. This may be in the form of customer service exhibited by storekeepers or the efficiency of accountants in preparing audit reports. It is therefore very important for a business to have as part of its legacy, proficient and skillful human resource.
It is for this reason that the process of hiring is very strict in most establishments and equally as crucial when it comes to firing. It is in the normal course of business for a company to hire or fire employees when the situation calls for it, however, some legal considerations must be considered.
The law on labour relations, which is the Labour Act, 2003 (Act 651) is one of the primary legislations governing employment relations in Ghana. The Act regulates employment in the country by setting out general conditions of employment and the rights and duties of employers and their employees.
Particularly, sections 15, 62, and 63 of the Act provide various grounds that must be met to determine whether the termination of an employee’s contract is fair or unfair. These include employee incompetence, proven misconduct, and being medically unfit for employment.
On the other hand, discrimination, illness, maternity leave, and termination as a result of ill-treatment or sexual harassment are considered unjustified grounds. These grounds are just a few mentioned in the Act and will be discussed in sequence.
Fair Termination
- Incompetence of an employee
The incompetence of an employee is fair ground for employment termination. This is specified in Act 651, which provides that the termination of the employment of an individual by reason of incompetence is a fair ground for employment termination.
This applies in any event where the employee lacks the qualification to do the work for which he or she is employed. This may occur in a situation where the employee after being hired or sometime after consistently fails to perform their job functions. An employee may also be deemed incompetent due to lack of or little improvement despite many training opportunities given.
What must the employer do?
In order to determine the incompetency of the employee, the employer is expected to communicate the job expectations and responsibilities clearly and ensure that the employee understands them. The employer must also carry out various forms of performance evaluations to track the progress of each employee.
After, analyzing the results of the evaluation the employer may conduct a one-on-one session with the employee to determine the reason for their low performance. The employer must then organize training sessions and improvement workshops to remedy the incompetence.
If all efforts to improve the employee’s performance fail, the employer may then terminate the employment fairly. It is therefore pertinent that employers organize frequent workshops and employee evaluation sessions to regulate the performance of their employees and also give the employees the chance to improve.
Thus, an employee who lacks the requisite skill, knowledge, or abilities for his or her job may have their employment terminated and the termination will be deemed fair.
2. Proven Misconduct of an Employee
Proven misconduct of an employee is deemed fair ground for the termination of employment. This is where the employer has gathered sufficient evidence that the employee has breached company policies, procedures, or the required legal standards in that line of work.
The employer, in reaching the conclusion of the employee’s misconduct, must give the employee a fair hearing as mandated by law. The investigation into the misconduct must be conducted impartially and thoroughly.
What must the employer do?
To rely on established misconduct, the employer must ensure that the company has a clear set of internal rules and that these policies are well-communicated to all employees, including the individual in question. If an investigation reveals that the employee was aware of the company’s policies and still engaged in misconduct, the employer is legally justified in terminating the employee’s contract based on these findings.
3. Medically Unfit for Employment
Under the Labour Act, an employer may terminate employment if an employee is found to be medically unfit for the job. This determination must be based on a medical examination conducted by a qualified medical practitioner.
The examination report must outline the nature of the medical condition, its effect on the employee’s performance, and the expected duration of the condition and its effects. The employer is required to take steps to accommodate the employee’s condition, such as adjusting duties or providing assistive technology. If the measures prove ineffective, the employer may then notify the employee of the situation, terminate the employment, and provide all due benefits.
Grounds for Unfair Termination
- Discrimination
Termination of an employment contract will be deemed unfair if it is based on discriminatory grounds. Act 651 provides that termination of an employment contract is considered unfair if it is based on sex, race, colour, ethnicity, origin, religion, creed, social, political, or economic status.
The fundamental law of the land, the 1992 Constitution of Ghana, also includes entrenched provisions against discrimination based on race, origin, political opinions, colour, gender, occupation, religion, or creed. The Labour Act enforces the same principles, particularly in employment contexts.
To prove discrimination in employment termination, the burden lies with the employee to demonstrate that the termination was based on personal bias rather than objective criteria. This can be shown by providing evidence that the grounds for termination were influenced by personal opinions or that the employer applied stricter performance metrics to employees within the same protected class compared to others. Consequently, any termination based on an employee’s membership in a protected class is deemed unfair.
2. Illness
An employee’s employment is unfairly terminated if it is solely due to their illness. Act 651 states that such termination will be unfair if the employee is temporarily ill or injured as certified by a recognized medical practitioner.
Therefore, illness alone is considered an unfair ground for employment termination. However, termination may be deemed fair if the illness impairs the employee’s ability to perform their job duties effectively or if it poses a risk to the employee’s health or the safety of others.
3. Maternity Leave
Terminating an employee’s employment by reason of their pregnancy is unfair under Ghanaian law. The Labour Act stipulates that a woman may not have her employment terminated by reason of her pregnancy or her absence from work due to her being on maternity leave.
The law entitles a female employee to a period not less than 12 weeks with full remuneration and other benefits she is otherwise entitled to while pregnant. Hence, it is regarded as unfair for a woman on maternity leave to have her employment terminated as a result of her exercising a statutorily provided right.
4. Ill Treatment or Sexual Harassment
Act 651 permits termination of employment on grounds of sexual harassment or ill-treatment. If an employee resigns due to sexual harassment or ill-treatment, the resignation is considered an unfair termination.
Sexual harassment can take various forms, and if an employee reports it to the appropriate authority without any subsequent action, the employee may resign, though this resignation will still be deemed unfair. Similarly, mistreatment, such as discrimination against a protected class or the creation of a hostile work environment, also constitutes grounds for unfair termination.
Resignation under these circumstances is considered unfair. Therefore, sexual harassment and ill-treatment are recognized as unfair grounds for contract termination.
The Labour Act in setting out grounds that qualify as fair or unfair termination of employment, seeks to protect the interests of the employees from unjustified terminations and provide an avenue for employers to lay off employees fairly when necessary.
The law permits employers to terminate employment contracts if the reasons are fair and proper notice is given. Employees who believe their contracts have been unfairly terminated may file a complaint with the Labour Commission.
If the Commission after investigation, finds the termination unfair, it may order the reinstatement of the employee or mandate compensation. Therefore, it is pertinent for employers to ensure that the grounds for termination are fair to avoid legal consequences.
Philipa N. A. Sima Nuamah on behalf of OSD & Partners
