Rokel Commercial Bank v Bangura, Osei & 55 Others (CIV APP 9 of 2011) [2012] SLCA 9 (15 June 2012)

CIV. APP. 9/2011 IN THE COURT OF APPEAL FOR SIERRA LEONE BETWEEN: ROKEL COMMERCIAL BANK (SL) LTD - APPELLANTS AND MOHAMED ALEX BANGURA CLAUDIA OSEI & 55 OTHERS - RESPONDENTS

Coram

Hon. Mrs. S Bash-Taqi, J.S.C. (Presiding) Hon. Ms. Justice V. M. Solomon, J.A. Hon. Mr. Justice Abdulai Charm, J BARRISTERS Berthan Macaulay, Jm, Esq. for the Appellants J. B. Jenkins-Johnston, Esq. for the Respondents

JUDGMENT DELIVERED ON DAY OF JUNE 2012 S. BASH-TAQI, JSC- BACKGROITND FACTS Mohamed Alex Bangura, Claudia Osei and Fifty-Five (55) others (hereinafter called “the Respondents”) were employed by Barclays Bank o f Sierra Leone Limited. As employees o f the Bank, they were members o f the Clerical, Insurance, Banking, Accounting, Petroleum, Industrial and Commercial Employees Union (hereinafter referred to as “ 'The Union”). The relationship between the Appellants and the Union is governed by a Collective Agreement entered in the 1996 and is effective for two years. In May 1997, there was a military coup and the general security situation in the country deteriorated, as a result of which the Appellants, closed all

operations o f their establishment nationwide. The financial constraints faced by the Bank from its prolonged closure and lack o f income being generated, led the Appellants to decide to cease the operations o f Barclays Bank o f Sierra Leone Limited. A new Company, Rokel Commercial Bank (Sierra Leone) Limited (hereinafter called “The Appellants”), was incorporated to take over the total business operations o f Barclays Bank of Sierra Leone Limi ted, The services o f the employees o f Barclays o f Sierra Leone Limited including those o f the Respondents, were transferred to Rokel Commercial Bank (Sierra Leone) Limited, the Appellants. The Respondents continued to be employees o f the Appellants and their salaries were paid despite the financial constraints facing the latter during that period. When the economic situation did not improve resulting in loss o f business and revenue, the Appellants decided to scale down their workforce and on 301 ' 1 January 1998, they informed the Respondents’ Union that they intended to commence redundancy programme which would affect 109 of its Union members, including the Respondents. The Union Secretariat protested and there followed a series of correspondence between the parties on the issue. The Appellants eventually pursued the redundancy exercise. The Respondents were some o f the staff members alfected by that exercise, and they expressed their dissatisfaction through the Union Secretariat and their Solicitors over the manner in which the redundancy was conducted. They commenced these proceedings in the High Court on 31s t August 1998 seeking, inter alia, the following relief:

1. A Declaration that the recent redundancy exercise carried out by the

Defendants Bank earlier this year, wherein over one hundred (100) staff members were made redundant and lost their employment in consequences thereof, was NOT DONE STRICTLY IN ACCORDANCE with the principles laid down in the Collective Agreement between the Defendants and the Clerical, INSURANCE, Banking, Accounting, Petroleum, Industrial and Commercial employees Union (hereinafter called “CIBAP1CE ” ) o f which the Plaintiffs are members .

2. A Declaration that the Defendants by failing to conduct the redundancy exercise strictly in conformity with the laid down principles agreed between themselves and the C1BAPICE UNION unlawfully derogated from the rights o f the Plaintiffs embodied in the V " said Collective Agreement for their protection and to ensure fairplay in the event o f a redundancy situation arising.

3. Damages fo r breach o f Contact.

4. Such further or other relief as may be ju st and expedient. The Particulars o f their Claim appear at pages 2-4 o f the Records. On 28*'1 November 1998 by Order of Cowan, J (as he then was), the Writ of Summons was amended to reflect the names of all the Plaintiffs and their addresses, and on 1s t December 1999, by a further Order, the title o f the action was amended to reflect the change in the Bank’s name to Rokel Commercial Bank (Sierra Leone) Ltd. On 19t h June 2000, by a further order o f Cowan J, the Respondents amended their Statement o f Claim. The Amended Statement o f Claim is at pages 99-105. The relevant portions o f

the Particulars o f Claim are Paragraphs: 2, 3, 4 & 5 o f the Amended Statement o f Claim. These read: “2. By An Agreement made the Defendants o f the One Part, and THE UNION o f the Other Part, it was agreed that when a situation involving a redundancy occurs the procedure to be adopted shall be strictly in accordance with the following Principles: - (i) Two Months Notice in writing or payment o f TWO Months Salary in lieu o f Notice shall be given to all those Employees who are to be made redundant. Payment o f such notice shall include all other allowances which the Employee normally receives at the end o f each month, (ii) The Principle o f "LAST IN FIRST OUT applies except in such cases where the merit and ability o f a less Senior Employee is in the Bank’s opinion greater than that o f an Employee with a longer service. (iii) Within Twelve

(12) Months from the date o f discharge o f an Employee on the grounds o f redundancy the Bank undertakes to give preference to the persons concerned in the event o f a suitable vacancy on the staff. (iv) An Employee recalled and re-instated in his job shall be placed in his former grade for that job or the job grade f it has been up-graded or increased. “3. On 30th January, 1998 the Managing Director o f the Defendant Bank wrote to the General Secretary o f the Union informing him, inter alia, o f the Bank’s intention to commence a redundancy programme which would affect 109 o f Union Staff Members effective 31^ March 1998, which was duly done. The Plaintiffs aver

that upon receipt o f this information the matter was exhaustively discussed among themselves and with the Union and the Bank wherein the Union protested to the Bank about the proposed redundancy programme. The Plaintiffs will further aver that as a result o f the correspondence and a meeting with Officials o f the Bank six (6) persons were removed from the list o f those who were to be made redundant and retained in their jobs at the Bank. The Plaintiffs will strongly contend that in executing the redundancy programme the Bank did not act strictly in accordance with the “LAST IN FIRST OUT’ Principle as set out in the Collective Agreement as indeed it was not possible for some o f the pertinent records to be reached for perusal during the period when the Bank was still closed, The Plaintiffs will contend that in the result the whole redundancy exercise was arbitrary, and improperly done, with the result that some Senior Staff with merit awards were laid off while more Junior Staff were retained TO WIT-

1. Mohamed Alex Bangura;

2. Claudia A. R. Osei;

3. Kekuda Mansaray

4. Raph Harding;

5. Mohamed Tejan-Kamara. The Plaintiffs will contend particularly that the redundancy exercise was not done in good faith as it was used to get rid o f those staff who were very vocal on the issue o f workers’ welfare and entitlement To Wit: -

1. Mohamed Alex Bangura;

2. Claudia A.R. Osei;

3. Ahmed Tejan-Rhida; b £ >

4. Mohamed Tejan-Kamara;

5. Johnnie Browne. “6. The Plaintiffs will further contend that the redundancy exercise was also use as a smokescreen to evade the resolution o f other ancillary issues which had been brought to the notice o f the Bank prior to the redundancy exercise: - ........” “7. By reason o f the conduct o f the Defendants, the Plaintiffs have been unfairly deprived o f their means of livelihood, and all the Salary (with increments added) and allowances to which they would otherwise be entitled.” The Appellants filed a Statement o f Defence the relevant portions o f which are as follows: DEFENCE. 4.In answer to paragraph 4 o f the Amended Particulars o f Claim, the Defendants deny the Plaintiffs’ contention that they did not act in accordance with the principle o f “last in first out” as set out in Article 16 o f the Collective agreement which said article provides inter alia: ii. The principle o f “last in first out ” applies except in such cases where the merit and ability o f a less senior employee is in the Bank’ s opinion greater than that o f an employee with a longer service In further answer to the said paragraph 4, the defendants will aver that in carrying out the redundancy, it reviewed the records o f each

employee through committees which were established inter alia, for that purpose notwithstanding the closure o f the Bank. 5.1n further answer to paragraph 4 o f the Amended Particulars o f Claim, the Defendants deny the Plaintiff’ s contention with regard to the five persons named in the said paragraph 4 o f the Amended Particulars o f Claim.. 7 . The Defendants deny paragraph 6 o f the Amended Particulars o f Claim and will further aver that the “assertions referred to in the said paragraph 6 o f the Amended Particulars o f Claim were/are irrelevant as alleged by the Plaintiffs regarding the redundancy o f the Plaintiffs.

8. The Defendants deny paragraph 7 o f the Amended Particulars o f Claim. In further answer to paragraph 7 o f the Amended Particulars o f Claim, the Defendants will aver that the Plaintiffs were paid all their benefits upon being made redundant. ..............."(See pages 160 -161) A trial commenced before E. K. Cowan, J (as he then was) on 13t h June 2000, which was aborted; the matter was re-assigned to Raschid, J, who heard evidence up to the end o f the Respondents’ case; thereafter the Appellants’ Counsel made a submission o f ‘No Case’ which the Learned Judge overruled on 11t h November 2004. Shortly thereafter the presiding Judge died suddenly, and the trial was further aborted. It was consequently re-assigned to Roberts, JA, sitting in the High Court. Both Counsel opted for the trial to commence de novo and Roberts J.A proceeded to hear evidence from the Respondents’ and their witnesses. At the end o f the Respondents’ case Counsel for the Appellants proceeded to present the Appellants’ defence by calling two witnesses. In his final address at the

end of the trial, Counsel for the Appellants raised the issues he had argued in the ‘No Case’ submission before Raschid J. At the trial, only nine

(9) Plaintiffs out of the Fifty-seven members o f Staff testified on their own behalf. The Learned Judge after reviewing the evidence gave judgment in favour o f the Plaintiffs (now Respondents) on the 9th day o f March 2011, granting the declarations sought and awarded each Respondent Le 40,000,000.00 (Forty Million Leones). In his Judgment, the Trial Judge considered several issues, (i) whether the redundancy exercise conducted by the Appellants was done fairly and reasonably, and in particular whether the principle of ‘last in first out’ was strictly adhered to; (ii), whether the Appellants were in breach o f the contracts o f employment between them and the Respondents and if so (iii) whether the Respondents are entitled to damages as a result o f such breach; and, (iv) whether the Respondents who did not testify or present their individual cases at the trial were entitled to damages in ime with those Respondents who testified. It is acceptsace by all parties that the Collective Agreement governed the Respondents’ employment. There was no reference made to the individual contracts o f employment and it is perhaps not necessary to refer to those contracts at this time. The important issue raised in the appeal on which many other issues stand or fall is whether the Redundancy programme carried out by the Appellants was conducted in accordance with the Provisions o f Article 16 of the v Collective Agreement and/or whether the same was conducted fairly and ii reasonably having regard to the said provision. The Learned Trial Judge in his Judgment held in respect o f the first issue:

“ In the light o f the above I hold that the redundancy exercise carried out by the Defendants which resulted in the termination o f the employment o f the plaintijfs was done in breach o f Article 16.3 o f the Collective Agreement and the same was unfair and unreasonable ......” His reason for coining to thai conclusion is firstly, that the Union ought to have been given the opportunity to meet with Management to discuss, verify and reach an agreement with the Bank as required by Article 16)3); and secondly that the contents o f the Respondents’ Appraisal Reports and Performance forms were not consulted “as they could not have been accessed at the time the Bank took the decision to make the Respondents

redundant ’; (iii) that even if such a reviev^staff performance took place, it “should have been done in consultation with the Union to ensure fair place and reasonableness in the redundancy exercise." It is perhaps necessary at this stage to consider the all important Article 16 of the Collective Agreement. But before doing so it will be pertinent to consider Article 2 o f the said Agreement; it reads: “The terms o f this Agreement shall apply to all employees below supervisory level For the purpose o f this Article a Supervisor shall be an employee as Appointed Grade 3. ” From the above Article 2, the Respondents are employees o f the Appellants ranking below supervisory level. We consider the issues raised in grounds 1, 2, 3 to be connected, therefore we have decided to deal with them together.

Grounds 1, 2 ,3 w V Although the Respondents’ complaint in Paragraph 4 o f their Amended Statement o f Claim refers only to a breach o f Article 16(3), in our view since the whole redundancy programme is put in issue in this appeal, we are obliged to look at the whole o f Article 16 o f the Collective Agreement. Article 16 o f the Agreement reads as follows: “a. Redundancy is understood to mean the involuntary’ loss o f employment through no fault o f the Employee caused by an excess o f man power or the contraction o f available work through causes beyond the control o f the Bank. ........

2. When the Bank contemplates any redundancy as a result o f the above mentioned situations, the Bank shall give the earliest warnings in writing to the Union o f its intention. Such notice which shall not be less than eight weeks to the date o f the intended action shall contain the following information: A full list o f those employees who are to be affected by the Redundancy action, date o f engagement and type o f job performed.

3. The employer and the Union shall meet to discuss the redundancy plan with a view to reaching an agreement (emphasis added) The Bank and the Union agree that when a situation involving redundancy occur the procedure to be adopted shall be strictly in accordance with the following principles:

NOTICE TO EMPLOYEES \ ° i. Two months notice in writing or payment o f two month salaries in lieu o f notice shall be given to all those T r» l i* - * * - employees who are to be made redundant. Payment o f such notice shall include all other allowances which the employee normally receives at the end o f each month ii. The principle o f 'last in first out ’ applies except in such cases where the merit and ability o f a less senior employee is in the Banks ’ opinion greater than that o f an employee with a longer service.... .....................” The important question to consider now is, did the Appellants declare the Respondents redundant in accordance with Article 16(3)(ii) of the Collective Agreement? And in particular, was the redundancy exercise (< t f conducted unilaterally and/or arbitrarily without consultation with the Union or the Respondents as was held by the trial Judge? In his Judgment the Learned Judge had this to say: “ The evidence proffered in this matter was sufficient for the court to hold and so holds that the Redundancy exercise conducted by the Defendants resulting in the termination o f the employment o f the plaintiffs was not strictly in accordance with the Collective Agreement and was therefore in breach o f that Agreement. The Appellants’ case is that the redundancy exercise was conducted in accordance with Article 1 6 .1 shall now consider the evidence to determine whether this contention is tenable. It will be recalled that the Appellants wrote to the Union as early as 30! b January 1998 indicating their intention to

commence a redundancy programme in accordance with Article 16(i), There is also evidence that there were consultations by letters and at least a meeting with the Union before the programme was put in place. Indeed between 8th October 1997 and 1s t April 1998, there were over 10 letters between the Union and Management on the crisis facing the Bank, including the redundancy programme. On the 31s t March 1998, the Appellants informed the Respondents individually by letter dated that date: “.....It was necessary to restructure the operations o f the Bank due to the financial losses over the last 10 months. The Bank has continued to pay the salaries and allowances to all members o f staff up to 31st March 1998 but we are unable to continue to meet the high level o f costs given the turn down in the economy . It is essential that to protect future jobs the Banks must provide cost effective service to our customer. It is therefore with regret that you are to be declared redundant with effect from 31st March 1998 under Article 16 o f the Collective Agreement. Full details o f your final benefits are shown on the attached sheet..... ” There is no doubt that the Appellants were facing serious financial losses due to the prolonged closure o f their business nationwide and it was understandable that they would want to scale down their work force to protect future jobs. In my view therefore a situation for redundancy existed due to the involuntary loss o f employment through no fault o f the employer. t The Respondents themselves admitted that there was no work done during the period and the Bank’s premises remained closed to members o f the public for 10 months. The Union was aware o f this situation and was in constant communication with management throughout.