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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

Page22of22

Payzu,Ltd.v.Saunders[1919]2K.B.581C.A.

Roperv.Johnson(1873)L.R.8C.P.167

Yettonv.EastwoodsFroyLtd.[1966]3AllE.R.353

HMPrisonsServiceandothersvJohnson[1997]IRLR162

VentovChiefConstableofWestYorkshirePolice[2003]IRLR102

Da’BellvNSPCC(UKEAT/0227/09)