Court orders GES to reinstate teacher dismissed for being habitual absentee

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.

Source: www.myjoyonline.com