Comium (S.L) Limited V Jemima M. M'cormack (CIV APP 27 of 2012) [2014] SLCA 2 (18 May 2014)

Ue, St I Civ.App: 27/2012 In the Court of Appeal of Sierra Leone Between: es Comium (S.L,) Ltd - Appellant And Jemima M. M’Cormack - Respondent Hon. Justice S. Bash-Taqi Jsc. Hon, Justice V. M. Solomon J. A Hon. Justice A. Charm J. Advocates: E, Pabs-Garnon Esq, for the Appellant.

1. Kanu Esq. for the Respondent ' a thay 2014 . Hon Justice V, M. Solomon J. A, . Judgment * BackcRounp:. 1) The respondent/plaintiff commenced this action in the High Court in Which she sought the following orders to wit: salaries from 1* January, 2007; terminal benefits including NASSIT contributions; medical and nursing care from 4% November, 2006; recovery of $30,000/00 or its " equivalent in Leones as redundancy employment; recovery of $50,000/00 or its equivalent in Leones as damages for unlawful and unfair termination; interest at a rate of 35% per annum; further and other orders; and costs. An appearance was entered after judgment in default had been taken which was set aside; and a defence was filed Directions were given and the matter proceeded to trial

. Sr . P 2) ‘The brief facts are that the respondent/plaintiff was an employee of the defendant and went on a promotional tour in Bo when she fell ill. The appellant/defendant brought her to Freetown where she received medical treatment by its doctor; and referred to the cupid nursing home where she received medical attention. The respondent/ plaintiff's mother been not satisfied moved her out of the cupid nursing home. It is averred that the respondent/plaintiff moved out of the cupid AAtASut knowledge Us and consent of the attending physician. __It is also averred that she did not provide any medical evidence of her inability to work; nor did she request for sick leave from absence from work; nor.was she granted leave The appellant/defendant further contended that the respondent/plaintiff was provided with adequate medical and nursing care, and that she did not suffer any loss as alleged or at all. Two witnesses testified for the respondent/plaintiff and one testified for the ® appellant/defendant. Judgment was delivered on the 16% April, 2012 in : favour of the respondent/plaintiff herein. It is against this judgment that the appellant/respondent filed a notice of appeal dated 18' April,

ROUNDS OF APPEAL. 3) The appellant/defendant has filed notice of appeal dated 18 April, 2012 which main grounds are as stated in paragraph 3 thereof to wit: 3. a) That the learned trial judge failed to properly evaluate the evidence led relating to the questions of termination when he 7 totally failed to take into account or address the legal concept of “abandonment of employment” raised by the defendant and the arguments of counsel in his address to the court on the provisions of the Collective Agreement of 1* November 2006 and published in the Sierra Leone Gazette of 3rd June, 2009. b) That the learned trial judge contradicted himself in that after finding the plaintiff did not contact the defendant for about 18(eighteen) months and even then only did so with a

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falsified and “self serving” sick report then proceeded to hold the defendant did not serve the plaintiff a notice of termination cven though the plaintiff had abaudoned her employment was plainly not in contact or communication with the defendant and that in such a case the onus was on the plaintiff to provide a reason for her absence as she later belatedly tried to do. : ©) That the learned trial judge erred in law after having rightly held that the “Defendant had done all that was expected of it” proceeded to make an award of Le30,000,000/00 to plaintiff based on “humanitarian grounds” even after noting that ‘the plaintiff should not bear the brunt of her mother’s mistakes and over reaction” thus tacitly finding that the fault was not that of the defendant but that of the mother of the plaintiff who removed her from the hospital where she was receiving professional medical care. d) Further to C above that the learned trial judge did not have any jurisdiction to arbitrarily make an award of Le 30, 000, 000/00 as humanitarian award to the plaintiff when she did ; not have a valid claim in law and without any basis in fact or any evidence to suggest such a quant.m even more so after 7 he himself the learned trial judge had rightly noted it was a “case of think of a figure and cannot in any way be : substantiated” when the very same act had been attempted by counsel for the plaintiff. . The appellant/defendant prayed that the judgment of 16% April, 2012 be set aside; judgment be entered in its favour and that the respondent/plaintiff bears the costs in this court and the court below.

4) I shall now consider the grounds of appeal as filed by the appellant. 1 shall consider the first and second grounds which are interrelated and relates to the legal concept of ‘abandonment of employment’. Certain matters not in dispute are that the appellant/defendant employed the respondent/plaintiff who was sent to Bo. She fell ill in Bo and was brought to the Cupid Nursing Home for medical treatment. ‘The appellant/defendant was responsible for all her medical bills. She was seen by Dr. Kelvin Nichols whose medical report is on page 106 of the

‘ bu 7 a i records. The respondent/ plaintiff was moved from the Cupid Nursing home by her mother and without knowledge and consent of the attending physician. © “Sh made no communications withi'her employers the appellant/respondent till about 18 months after her illness, by the letter of her solicitor of 15% May 2008 in page 27 of the records. The question of abandonment of the employment of the respondent/plaintiff was raised in the appellant’s/plaintiff’s defence at paragraph 6 - see page 10 of the records. PW1 in her evidence and under cross-examination did attest to these facts. She stated under cross-examination at page 170 of the records thus: “I am aware that the defendants took her there and that they were responsible for all her medical bills. 1 admit that after silence of 18 months I took the matter to a lawyer and the matter camie to court.” . This witness testified to facts which could not be recollected by the a. respondent/ plaintiff (PW2). ‘The latter’s evidence was of a very little 5 evidential value. She seemed not to recall any of the events/facts put to her, She stated that she just signed her statement and did not know what she was signing. ‘The respondent/plaintiff took up employment with appellant/defendant subject to terms and conditions of the policy HRO23 as seen in the letters of 25% May and 25% July 2006 on pages 92 and 93 of the records. There is no evidence that the respondent/plaintiff neither applied for sick leave nor did she proffer any medical report to her employers the appellant. The appellant has relied ‘on the Collective Agreement Government Notice No. 140, published on Wednesday 34 June, 2009 (hereinafter called “Agreement”). A question which I pose is whether she is covered by that agreement? The respondent/plaintiff will be covered by this agreement if she is below supervisory level. She was employed as desk receptionist a fortiori is

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