IN THE HIGH COURT OF SIERRA LEONE (INDUSTRIAL  COURT DIVISION)

TRADE DISPUTE LAW COURTS BUILDING SIAKA  STEVENS STREET

 

 

I.C. NO. 1/ 16

 

 

 

MOHAMED FULLAH                                                   PLAINTIFF

 

 

AND

THE GENERAL  MANAGER

COLUMBIA DAVIES MEMORIAL FUNERAL PARLOUR. -   DEFENDANTS

 

 

 

 

 

 

 

 

 

 

 

 

BEFORE THE HON. MR. JUSTICE SENGU KOROMA - JA JUDGMENT DELIVERED ON THE 13TH  DAY OF MARCH,  2019

 

 

 

 

 

 

 

 

 

1. This matter was referred to the  Industrial  Court  memorandum  from the Ministry of Labour and Social Security f'The Ministry") dated 2nd  December, 2015.
2. The complaint, as summarized by the Ministry is that the Plaintiff worked for the Defendant for the period January, 2001 to  July, 2015. The Plaintiff alleged that he was unfairly terminated by the Defendant and his end of Service Benefits and backlog of salaries were  not  paid.      The   Ministry   invited  the Defendants  to   five meetings,  which they did not attend. As a result of  their failure  to

attend the conciliatory meeting, the entitlements of the Plaintiff was computed and forwarded to the Defendants by letter  dated  28th October, 2015. The Defendants did  not  respond  to  the  said  letter.  The Ministry         therefore referred the matter to the I ndustrial Court.

1. The matter commenced before Justice Hamilton J.S.C. (President ) on the 29th February, 2016. There were fifteen adjournments due to the absence of either the parties of their Counsel or both. The first witness was led in evidence on the 9th November, 2016. The Plaintiff was represented by Sonia Bobanie-Browne and the Defendant by S. Bell Esq. This evidence was taken before Justice Hamilton JSC.

EXAMINATION  OF THE WIT NES S ES

 

PW1  -  MOHAMED FULLAH

 

1. PWl informed the Court that he was employed  by the Defendant  as a driver in 2001 and was sacked in July, 2015.  He was not  given a letter of employment but was paid his salary by management which was initially Le150, 000.00 per month but was later increased to Le400, 000.00. PWl informed the Court that he signed for his salary in a voucher.

 

 

 

 

 

 

 

 

 

 

 

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PW1 identified a pay slip in respect of salary received. This was tendered as Exhibit z1 16  .PWl  had no identity  card but had    medical

papers given to him     by the Defendants.    The Medical  Papers were

 

tendered and marked as Exhibit A-i
 

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1. PWl testified that he worked during the Ebola period and even drove General Manager, Raymond Macauley to the Connaught Hospital where he passed away; he however ran away when he was  asked  to  drive  the  deceased  to  the  burial  ground.  PWl

thereafter  went  into  hiding  in Jui  but  he  was  traced  and  taken for

testing. He was found to be free of the Ebola virus. When he reported for duty to the new General Manager, the latter told him that he did not know anything about his employment. He was then dismissed. As a result of this, he reported the matter to  the Ministry.

1. The matter was adjourned for a further four times during which Hamilton JSC retired from the  bench.  The  matter  was reassigned to me on the 22nd June, 2017.
2. The Defendant's Counsel was again absent on successive adjourned dates and so on the 8th August, 2017, the plaintiff's Counsel was  allowed to lead her next witness.
3. PW2 - Idrissa Dumbuya. He is the Labour Officer who  investigated this complainant. PW2 got to know the Plaintiff in July, 2015 when he came to the Ministry and reported the matter of unfair termination against the Defendants.
4. On receipt of the letter of complaint, PW2 sent letters of invitation dated 23rd July, 2015, 295y January, 2015, 5th August, 2015 and 2nd September, 2015 respectively to the Defendants. All of these invitations were not honoured. A final letter was sent to the Defendant on the 28th October, 2015, and when the  Defendants

did not still cooperate with the investigations, the complaint was summarised  and  referred  to  the  Industrial  Court.    A  copy  of

 

 

 

 

 

 

 

 

 

 

 

 

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Computation    of   the   Entitlements   of   Plaintiff   was  tendered  as Exhibit B1 12•

CROSS EXAMINATION OF PWl  -  26/9/17

 

1. PWl answered that he worked for the Raymond Macauley in 2001 but as an employee of the Defendant and not a family driver. He was not given a letter of employment. PWl recalled bringing medical slips to Court but  was not able to show the earliest   time

on  the slip.  He agreed that he did not have slips prior  to  2007 but   said it  was  because the Defendants  were not handing  them   to

staff at the time.PWl also agreed that he did not have the slips from w 2008 up to 31st  December, 2013.

1. PWl did not agree that he did not have medical  slips  for  those periods because he worked for the company for only six months. He insisted that he was signing the voucher  whenever  he  received  his  salary.
2. PW.1 recognised a list of employee salary vouches for the period June 2007  to June 2008.                                          PW1 agreed that he signed for  June, 2007, August,  2007,  September,  2007  and October,  2007.   He also agreed  that he did not sign a er  October,  2007 but insisted   that

he continued in the employment of the Defendants  and  worked for them up till the Ebola period

1. Under further cross examination, the PWl agreed that if Mr. Raymond Macauley had been alive, he would have brought him to Court and only brought the Defendants because of he was now deceased.
2. Under re-examination, PW1 clarified that he was working for the Defendant and Mr. Raymond Macauley.

EXAMINATION  OF PW2-IDRISSA DUMBUYA.

 

 

 

 

 

 

 

 

 

 

 

PWI is the Labour Officer who investigated the complaint. He testified that he got to know the Plaintiff in July, 2015 when he came to the Ministry to report a case of unfair termination against the Defendants. On receipt of the letter of complaint, he sent out letters of invitation to the Defendants   dated  the  23r d July,2015;  29th July,  2015;  5t h August, 2015 and 2nd  September,  2015 respectively.  All of these invitations were not honoured. A final letter of invitation was sent to the Defendants on the   28t h  October,   2015   and   when   they   did   not   co-operate,   the entitlements of the Plaintiff were computed, the complaint summarised and matter referred to the Industrial Court.

 

 

CROSS EXAMINATION OF PW2- 31/ 10/ 17

1. PW2 admitted that he only had evidence from the Plaintiff but states that, that was because the Defendant did not honour the Ministry's invitation. The computation of the entitlement of the Plaintiff was therefore based on the information received from him.

In the opinion of PW2 if the Plaintiff worked for less than 12 months, he wouId not be entitled to benefits.

RE - EXAMI NATI ON OF PW2

1. PW2 clarified that he did not receive any documentary evidence from  the Defendant.

EXAM I NATI ON OF PW3

 

1. PW.3 Yusifu Kamara. PW.3 was a previous employee of the Defendant as a driver. He knew the plaintiff when they were both working as employees of the Defendant. PW3 received salary monthly.

 

 

 

 

 

 

 

 

 

 

 

 

1. PW3 testified that they  signed  a  voucher  on  receipt  of  their salaries . PW3 concluded that they were all  laid  off  during  the  Ebola period.
2. Counsel for the Defendant, S.A. Benjamin as usual was not in Court to Cross examine the witness and the matter was adjourned to 13th November, 2017. On the next adjourned date of 13/11/2017 Mr. Benjamin did not again cross examined witness and sough an adjournment.
3. The matter was again adjourned twenty-one times largely due to the absence of Mr. A.S. Benjamin for the Defence. The Plaintiff's Counsel also shared part of the blame because she could not get her third witness to be present for cross examination. PW3 was finally cross examined on the 18th May, 2018.

CROSS EXAMINATION OF PW3 - 18/5/18

 

1. PW3 confirmed that he worked as a driver for the Defendants and during the time he worked, he signed for his salary. PW3 answered that there were two branches in the company but could not recall working with the Plaintiff at the same branch.
2. PW3 insisted that he was at the time an employee of the Defendant and the payment of salary to  him  was proof  of  that. He however agreed that he was not present when the offer of employment was made to the Plaintiff.

CASE FOR THE DEFENDANT

 

1. In his characteristic fashion, Mr. Benjamin did not attend Court to open the case for the defence until he was deputized by Ms. S. Bell on the 5th June, 2018 who did so.
2. The matter was however adjourned after DWl; Oliver Vernon Macauley took the oath. The absence of the defence counsel continued again unabated.

 

 

 

 

 

 

EXAMINATION  OF DW1

1. DWl described himself as a Manager at the Defendant Company and had been in that position  for about 18  years.
2. DWl confirmed that the Plaintiff was  an  employee  of  the Defendant but could not state the number  of years he  worked for; it could have been two years. The employees all received their salaries at the office and signed for  them.
3. He knew PW3 as a former employee.  DWl  identified the paying  in

 

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slips for  2007 -  z1  2    2008 -  v1  2    2009  x x1  2  2010 Exhibits,  c1  12 ,

 

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2011, Exhibit 01 2•  All of these continued the name of  PW3.

1. DW1 answered that the Plaintiff signed for  his  salary  whilst working for the Defendant and that they never stopped  workers  from signing for their  salaries.
2.  

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DW1 tendered Exhibits E1 7 vouchers and paying slips for  the  period June, - December, 2007. He identified the name of the Plaintiff who signed for his salary during that   period.

 

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DWl  tendered Exhibit F1   5

The pay slip for the period January  and

 

May, 2008 to prove that the Plaintiff's name was not on the  voucher. He stated that it was not possible for an employee to be paid without signing for his  salary.

1. DW1 stated that he used to see the Plaintiff regularly as he was employed by the then General manager to drive for his   wife.

CROSS EXAMINATION OF DWl

1. DWl - stated that the company  was establish  in  1997 but could  not confirm when the Plaintiff started working for the company; it could have been 2007.

 

 

 

 

 

 

 

 

 

 

1. DW1 recognised the NASSIT SS 1A Form. The name of the employer is stated as the Defendant Company and the date of employment of the Plaintiff is stated as 15th November, 2001.
2. DWl clarified that there were three branches of  the company.  Each of the branches had their pay slips indicating each branch. Dwl recalled paying the Social Secretary Contributions for the Plaintiff during the period he worked for the company. He insisted that the Plaintiff worked for the company in 2007.
3. DWl stated he would be surprised to learn that the Plaintiff had documents from 2006 to prove that the Defendant paid Social Security contributions for the Plaintiff. NASIT Member Contributions Statement was identified as " W".
4. DW1 recognised the pay slip for July 2008, June, 2009 and November,  2009 and agreed that PW3 did not sign   them.

 

 

RE-EXAMINATION

 

1. DW1 clarified that during cross-examination, he identified three pay slips

EXAMINATION OF DW2 - JOHN SESAY

1. DW2 started working for the Defendant as  Administrative Assistant on 1st November, 2011. He knew the Plaintiff in 2010 when he was driving the wife of the Manager. He agreed that he never supervised the Plaintiff as the Plaintiff did not drive any of the   Defendants'   vehicles.      Plaintiff   did   not   work   for    the

Defendants.

 

CROSS EXAMINATION OF DW2

 

 

 

 

 

 

 

 

 

 

 

1. DW2 stated that he worked at the Race Course Branch of the company. He agreed that he did not have any form of identification.

CASE FOR THE DEFENDANT ISSUES   FOR  DETERMINATION

1. It is not in dispute that the Plaintiff at some stage was an employee of the Defendant. The question however is what was the duration of that employment for the purpose of determining the quantum of benefits payable.
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The first issue therefore is the duration of the employment of the Plaintiff. The Plaintiff in his evidence informed the Court that he was recruited by the Defendant in January, 2001 and was sacked in July, 2015. During cross examination, Counsel for the Defendants tried to establish that the Plaintiff was employed for a period of Six months in 2007. In support of this DWl, as the Manager of the Defendant tendered Exhibit E1 1 pay slips for the period June, 2007 to December, 2007 on which the Plaintiff signed for his salary. He also tendered Exhibit Fl -6 which is the pay slip for January, 2008 to May, 2008 to prove that the Plaintiff's name was not on the list for that period.   This was the same for    2009,

2010 and 2011.  According to DW1 it was not possible for an employee to be       paid without signing for his salary.

1. DW1 had however testified that he could not recall the exact number  of years the  Plaintiff  worked  for  the  Defendants  but it

could         be  two  years.     There  is  therefore  inconsistency   in  his testimony in this respect.

1. The Plaintiff as PW1 tendered Exhibit Al-13 which were medical papers issued by the Defendants to the Plaintiff. He had established that when he was employed, his monthly salary was Le150,  000/00.   This was proved  by pay  slip for a period of   10

 

 

 

 

 

months. The medical forms from  the  Defendant  were  for  2014. The Plaintiff also produced his Social Security Contributions statement for 2006 with the  Defendant  listed  as  employer.  His date of joining the scheme was listed as 15th November,   2002.

1. As I stated earlier, there is evidence that the Plaintiff was an employee of Defendants. The Defendants are arguing that the employment lasted for a period of  Six  months  in  2007.  The Plaintiff has however been able to prove that he  was  in  employment by 15th November, 2001. During  cross examination, the DWl was confronted with the NASSIT SS lA form which confirmed the date of  employment  claimed  by  the  Plaintiff. Counsel for the Plaintiff was also able to  elicit  evidence  during cross  examination  that  it   was  not  at  all  times  that   employees

signed        the pay  slips.   This was evident  from the slip  for  July, 2008, June, 2009 and November, 2009 all of which were not signed by PW3 though the Defendant witnesses had agreed that he was an employee at that time. This testimony is important because right through  cross  examination,   Defence  Counsel  tried  to   establish

that PW3 signed payment slips as proof of employment whilst the Plaintiff  did not.

1. A cursory assessment of the evidence on this  point  would  reveal that the Plaintiff was employed by the Defendant in  November, 2001. In this, I  rely mainly on the NASSIT SS 1A Form completed  by the Plaintiff. This  document  was  recognised  by  DWl  who made no attempt to contradict it. The SS lA is important as Regulation    4    of    the   Social    Security    and   Insurance  Trust

Regulations 2004 Provides as follows: -

 

4(1) "Every employer shall require every employee of his to complete the appropriate parts of the SS lA  Form prescribed  in the schedule which shall be certified  by  an  Inspector  of the  Trust".

 

 

 

 

 

1. It follows that the Plaintiff could not have registered himself as an employee of the Defendants without the latter's knowledge. The Plaintiff also produced contribution schedule for 2007 with the Defendant  employer.   The  relevance  of  contribution schedules

could be found in Regulation 12 thereof.

1. For the reasons given above, I hold that the employment of the Plaintiff commenced on 15th November, 2001.
2. The next question is when the employment terminated. The Plaintiff is alleging that he was sacked in July, 2015 and his last salary was Le400, 000.00. The problem with this date is that the Plaintiff has not provided any evidence in support thereof. PW3 in his testimony though corroborating the evidence of the Plaintiff merely stated that they worked right though the  Ebola  period. The Plaintiff in his testimony stated that when the then Manager, Raymond Macauley passed away, he became afraid and ran away.
3. I must point out that the Plaintiff's conduct may at this point amount to abandonment of his employment and not an unfair dismissal. The situation is a difficult one as this was a period of medical emergency.  On his return to work, the new Manager   of

the Defendant did not to allow the  Plaintiff  to  continue  his employment and in the testimony of the    PW1  "the  new  Manager said he did not know about my     employment".

1. The principle governing abandonment of duty is that for an abandonment of employment to arise, the employee must have shown a clear intention to no longer be bound by the terms of the contract of employment. If an employee fails,  without  explanation, to attend at work, the point at which the employee will be considered to have abandoned their employment will depend on how long the absence extends and the context in  which it occurred.

 

 

 

 

 

1. The legal effect of abandonment is that the employee would be held to have repudiated the employment contract. In such a situation, the employer may then elect to either accept the repudiation or terminate the contract of employment o to affirm  the employment contract so that it remains on foot.
2. The election to either terminate or affirm should be clearly communicated to the employee although it can be implied by conduct.
3. The act of abandonment of the employment does not terminate the employment;  the abandonment  gives the employer  the right

to elect to terminate the  employee.  In  follows  that  an  unfair  dismissal claim is available. That does not mean that the dismissal is unfair. In these circumstances, the fact of abandonment will usually be the reason which the employer relies upon to justify the dismissal.

1. The  case of  LAZAR  - v- INGHAM   ENTERPRISES  LVY.LTD

( 20 13)       FWC 3447 provides a neat example of the many issues described above.

56, In the instant case, the Plaintiff had driven the then Manager to the  hospital  who  has  later  died  as  a  result  of  Ebola  infection. When he was asked to drive the corpse to the cemetery, he became afraid and ran away. This was understandable in view of

the type of  medical  emergency  created  by  the  Ebola  virus.  However when Plaintiff returned, he was informed by the new Manager that he did not know about his employment.  This to  my

mind does not constitute dismissal as it was    the  right of the employer to elect whether to take him back or terminate his services.

57. It is my conclusion that the plaintiff's services terminated when he abandoned his duty - evidence of which has not been provided. The  only  evidence  available  is medical  slips  up  to November,

 

 

 

 

 

2014. In fairness to both parties, I hold that the  employment period of the Plaintiff was from 15th November, 2001 to end of November, 2014 and his benefits and other entitlements should be worked out for that period.  I  so order

 

 

 

 

 

 

 

 

 

 

 

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Hon. Mr. Justice Sengu Koroma  (J.A.)

 

IN THE HIGH COURT OF SIERRA LEONE (INDUSTRIAL COURT DIVISION)

TRADE DISPUTE LAW COURTS BUILDING SIAKA  STEVENS STREET

 

 

I.C. NO. 1/16

 

 

 

 

,

MOHAMED FULLAH                                                    PLAINTIFF

 

 

AND

THE GENERAL MANAGER

COLUMBIA DAVIES MEMORIAL FUNERAL PALOUR             DEFENDANTS

 

 

 

 

 

 

 

 

FINAL JUDGMENT DATED 3Ro   APRIL, 2019

 

1. Following on the Judgment of this Court dated the 13th day of March, 2019, the Ministry of  Labour  and  Social  Security  through the Plaintiff submitted the re-computat ion of the  benefits  of  the  Plaint iff for the period 15th November, 2001 to  30th  November, 2014.

In consequence thereof, I order as follows:  -

 

1. The Plaintiff is entitled to the following as end of service benefits and other entitlements:  -
   1. Termination Notice                         Le    500,000.00

 

1. End of Service Benefits                   Le13, 295,454.00

 

1. Annual Leave Rate                         LelO, 636,363.00
2. Annual Leave Allowance                 Le  1,560,000.00

Total Due                     Le25, 991,817.00 2).                                                          Interest thereon at the  rate of 10 percent per annum from the   6th

day of June, 2016 to date of Judgment.

 

3). Costs of Le3, 00,000.00 to be borne by the Defendant  to  the Plaintiff.

 

 

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Hon. Mr. Justice Sengu Koroma (JSC)