 |
| Prof. Kwasi Opoku Amankwa is Director General of GES |
It was the court’s decision
that an embargo placed on Mr. Augustine Mac-Hubert Gabla’s salary by the GES
since 2013 meant he had been “constructively” dismissed, but the said dismissal
was unlawful, capricious and against his fundamental human rights as guaranteed
in the 1992 Constitution.
Apart from ordering the GES to
reinstate Mr. Gabla, the court further ordered the payment of all his salaries
and gratuities, including increments and bonuses, which were suspended since
December 2013.
It also awarded cost of
GH¢10,000 in favour of Mr. Gabla, but dismissed his relief for the payment of
interest on all his outstanding salaries, with the explanation that it was not
the norm for a court to order the payment of interest on salaries.
The court further held that the
removal of Mr. Gabla was a violation of Articles 23, 190, 191 and 296 of the
1992 Constitution, and a breach of Section 9 of Act 506.
Article 23 deals with the
upholding of the fundamental human rights of people, Article 190 and 191
protect public servants from victimization and prevent their removal without a
just cause, while Article 296 stipulates that the exercise of discretionary power
must be fair and in accordance with due process of the law.
Unfair
treatment
According to the court,
presided over by Justice Ananda Juliana Aikins, the GES breached the rules of
natural justice by failing to give Mr. Gabla an opportunity to respond to the
allegations levelled against him.
Justice Aikins ruled that the
GES should have initiated disciplinary proceedings against the teacher in line
with Section 9 of the Ghana Education Service Act, 1995 (Act 506) to enable him
to respond appropriately before reaching a determination that he vacated his
post on numerous occasions.
“The court finds as a fact from
the evidence before it that the plaintiff (Mr. Gabla) was not given a hearing
on the issues of his alleged vacation of post.
“If indeed the plaintiff
absented himself from work without reasonable cause as the defendants say he
did, then it was incumbent on the officers of the first defendant (GES) to put
the defendant through the laid down disciplinary procedure provided for under
the first defendant’s code of conduct and conditions of service and give the
plaintiff an opportunity to be heard and thereafter the appropriate sanctions
applied if need be.
“The failure to do that amounts
to a travesty of the rules of natural justice and was in the circumstance
unfair to the plaintiff,” Justice Aikins ruled.
Mr.
Gabla’s case
Mr. Gabla was employed as a
teacher by the GES in 1994. He worked in various capacities and as of 2012, he
was the Statistics Officer of the Winneba Municipal Education Directorate.
In December 2013, an embargo
was placed on his salary on allegations that he was a habitual absentee.
The teacher failed to have the
embargo lifted despite numerous efforts and in 2015, he dragged the
Director-General of the GES and the Attorney-General (A-G) to court.
It was his case that during his
time as a Statistics Officer, the Winneba Municipal Education Director
allegedly asked him to massage some figures but he refused.
He alleged that after his
refusal, he became a target of discrimination and was eventually transferred to
the Winneba Anglican Primary School to teach.
According to him, while working
at the primary school, he attended an interview for a position as the
Statistics Officer for the Awutu Senya District.
His lawyers argued that due to
follow-ups after the interview, he was unable to attend class at all hours.
They further argued that the
embargo placed on their client’s salary was discriminatory and that he had been
constructively dismissed without a just cause.
Among other reliefs, Mr. Gabla
wanted to be reinstated and all the salaries due him paid with interest.
Mr. Gabla was represented by
Lawyer Victor Kwesi Opeku
Defendants’ case
Lawyers for the defendants,
however, argued that Mr. Gabla had a habit of regularly absenting himself from
work and that his salary was suspended due to that and not his allegations of
discrimination.
According to the defense
lawyers, even as a Statistics Officer, Mr. Gabla was not regular at work and
due to that he was cautioned in a letter dated November 14, 2012.
It was their contention that it
was after the said caution that Mr. Gabla was transferred to the Anglican
Primary School on November 26, 2012.
They further contended that
even as a teacher at the Anglican Primary School, Mr. Gabla continued to
absent himself from class and as a result, an embargo was placed on his salary
in 2013.
The defense argued that Mr.
Gabla neither resigned nor was he dismissed and, therefore, he was not entitled
to the reliefs that he sought from the court.
Court’s
decision
In her judgement delivered on
June 26, 2019, Justice Aikins held that there was no evidence on record to
support the claim of Mr. Gabla that he was asked by the Municipal Director to
massage figures, neither was it wrong for the GES to transfer him.
The presiding judge was,
however, of the view that the manner in which an embargo was placed on the
teacher’s salary was unlawful.
