LT. COL. S. B. ASHUN v. ACCRA BREWERY LTD

JUDGMENT

DR. DATE-BAH, J.S.C:

This case, with respect, is based on a flawed conception of the nature of a contract of employment. A contract of employment is not necessarily a contract till the retirement age. As Wuaku JSC said in Nartey-Tokoli v Volta Aluminium Company [1987-88] 2 GLR 532 at p. 545, a contract of employment, though it may be for an indefinite period, does not mean life employment. Claim (d) endorsed on the Plaintiff’s writ of summons is, however, based on the fallacious conception that there is an expectation interest in a contract of employment till the age of retirement. The claim is in the following terms:

“an order for the payment to plaintiff of all salaries, increments and all other benefits for the remaining six (6) years of service with defendant company.”

A contract of employment is clearly terminable. Even if it is terminated wrongfully, that does not give the aggrieved party the right to be paid salary till his retirement age. The Supreme Court held in Nartey-Tokoli v Volta Aluminium Company [1987-88] 2 GLR 532 that where an employer terminates an employee’s appointment in breach of a contract of employment, the employer is liable to pay damages to the employee and that the damages are not limited to salary in lieu of notice. Thus, for instance, in Hemans v GNTC [1978] GLR 4 where an employee’s contract was wrongfully terminated, the Court of Appeal awarded him four months’ salary in damages, though the notice period under the contract was only one month. Nevertheless the duty of mitigation of damages devolves on an employee. Accordingly, he or she has the duty to take steps to find alternative employment. In principle then, in the absence of any contrary statutory or contractual provision, the measure of damages in general damages for wrongful termination of employment in the common law of Ghana is compensation, based on the employee’s current salary and other conditions of service, for a reasonable period within which the aggrieved party is expected to find alternative employment. Put in other words, the measure of damages is the quantum of what the aggrieved party would have earned from his employment during such reasonable period, determined by the court, after which he or she should have found alternative employment. This quantum is, of course, subject to the duty of mitigation of damages. These principles outlined above, however, hold true in relation to only contracts not affected by public law provisions. Ghan