- 10 Marks
Question
Three individuals, namely, Agogo, Djiku and Esinam, worked for MNS Bank, upon completing their National Service for a period of five years. It is the case of the workers that for a period of five years the Bank engaged them as temporary employees. Sometime in the year 2023, the workers received letters from a firm called Bansey HR Ltd, an employment agency, engaged by MNS Bank. In the letter, the three individuals had been offered a contract agreement for a six-month period from 2 May, 2023 to 2 November, 2023 by Bansey HR Ltd, and assigned to the Bank.
The letters sought to change their status from temporary employees of the Bank to temporary employees of Bansey HR Ltd. The three workers, however, tendered their resignations from MNS Bank effective 2 June, 2023. The three workers then commenced an action in the High Court, Accra, claiming damages for wrongful termination, arguing that having worked for more than six months with MNS Bank as contract workers, they had become permanent workers and could not be transferred to Bansey HR Ltd.
The Bank resisted the action, arguing that in accordance with a new Policy of the Bank, the Management decided to outsource the employment of all its temporary staff, which includes the three individuals, to Bansey HR Ltd. The Bank contended that upon receipt of the letters from Bansey HR Ltd, the three workers on their own volition resigned and are therefore not entitled to their claim.
Required:
In the light of the provisions of the Labour Act, 2003, Act 651, explain the chances of the three individuals in their court action against MNS Bank. (10 marks)
Answer
Section 12 of the Labour Act, 2003 (Act 651) provides that the employment of a worker by an employer for a period of six months or more, or for a number of working days equivalent to six months or more, shall be secured by a written contract of employment.
The three individuals, namely Agogo, Djiku, and Esinam, were said to have worked for 5 years as temporary workers in MNS Bank. On the strength of Section 12 of Act 651, MNS Bank should have secured the employment of the three as permanent workers by a written contract.
On the Bank’s failure to do so, the three individuals succeed in their court actions. As regards the resignation of the three individuals, Section 15 of Act 651 provides for the grounds for termination, stating that a contract of employment may be terminated, inter alia, by the worker on the grounds of ill-treatment.
Section 63(3) of Act 651 also provides that the termination of a worker’s employment is considered unfair if, with or without notice to the employer, the worker terminates the employment because of ill-treatment of the worker, having regard to the circumstances of the case.
The Act does not define what constitutes ill-treatment. However, the circumstances of the facts that they were denied what was legally due them by not securing their employment by written contract imply ill-treatment.
Section 63(4) further provides that a termination may be considered unfair if the employer fails to prove that:
(a) The reason for the termination is fair, or (b) The termination was in accordance with a fair procedure as provided by Act 651.
The three individuals terminated their employment by resignation. The argument by the Bank that their decision to outsource the employment of the three, based on the new Policy, is neither fair nor in accordance with fair procedure or as provided in Act 651 to secure the employment of three individuals by a written contract of employment.
On the basis of Section 63, the three individuals have a good chance of succeeding in their court action.
(10 marks)
- Topic: Employment law
- Series: MAR 2024
- Uploader: Dotse