Constructive Dismissal—bane of Ghanaian workers
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Until a month ago, Anita worked as an Accounts Officer in one of the leading banks in Ghana.

She worked for the company for three years, and she spent half of that period grappling with the hostility of her branch manager.

The hostility began about two years ago when an interview panel chose her to head the Accounts Department. Unknown to her, the branch manager preferred another person for that position, but that fellow failed to pass the interview.

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Since then, Anita had not known peace in the office. The branch manager fails to be impressed by her work, and often launches unprovoked attacks on her, amidst unwarranted accusations of poor performance.

When it became intolerable, Anita sought for a transfer from the branch, but the branch manager frustrated the attempt.

Anita got pregnant and took her maternity leave when she was due for delivery. When she returned after birth, the work environment was more hostile to her than before.

Her office and desk had been taken over by a colleague who acted in her absence, and the colleague was not ready to vacate. The branch manager entirely ignored her presence in the office.

After perching at other desks and the reception for a week, she could no longer take it, so she resigned, got her benefits and closed the chapter with that bank, and got another job.

Anita could have filed for a constructive dismissal to be compensated for the loss of her job, but she didn’t utilise that option either because she did not know about it or was not courageous to file for claims.

Like Anita, many Ghanaian workers have been forced out of their jobs due to intolerable, hostile and unconducive working environments.

Although Ghana’s Labour Act makes provision for constructive dismissal, not many victims file for claims.

Though the Labour Act 2003, (Act 651) does not expressly mention constructive dismissal, Section 63 (3) of the Act states that “a worker’s employment is deemed to be unfairly terminated if with or without notice to the employer, the worker terminates the contract of employment (a) because of ill-treatment of the worker by the employer, having regard to the circumstances of the case.”

In employment law, constructive dismissal, also called constructive discharge or constructive termination, occurs when a worker resigns as a result of the employer creating a hostile work environment. Since the resignation was not truly voluntary, it is, in effect, a termination. For example, when an employer places extraordinary and unreasonable work demands on an employee to obtain their resignation, this can constitute a constructive dismissal.

The exact legal consequences differ between different countries, but generally, a constructive dismissal leads to an end of the worker’s obligations and the worker acquiring the right to make claims against the employer.

The worker may resign over a single severe incident or a pattern of incidents, but usually, a party seeking relief must have resigned soon after one of the constructive acts.

Unfair Termination, which includes constructive dismissal continues to top the number of cases filed at the National Labour Commission (NLC).

Between 2005 and 2015, a total of 2,140 unfair termination cases representing 28.7 percent of the total 7,449 complaints were handled by the Commission in that period.

Be Proactive! NLC charges HR Managers
Dr Mrs. Bernice A. Welbeck, Director of Administration and Human Resource of the NLC

Dr Mrs Bernice Welbeck, Director of Administration and Human Resource of the NLC told ADR Daily in an interview that although the Commission recorded cases of constructive dismissal, it was an insignificant proportion of the cases under unfair termination recorded by the NLC.

She said the low number of cases could be attributable to workers’ ignorance about their rights to seek relief for constructive dismissal.

“If an employer’s attitude compels you to leave the job, you have a right to file a complaint and seek relief,” she said, and reminded complainants of the responsibility to provide evidence to prove the cause of termination of employment.

Asked how the situation could be improved for workers to know their rights in that regard, she said, “it is a matter of education.”

Labour analysts believe that if more victims of constructive dismissal in Ghana could file for claims, employers would be more careful in dealing with workers, and also be mindful of the need to promote a congenial working environment for all workers.

By Nii Adotey/adrdaily.com

VIANii Adotey
SOURCEADRDAILY
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ADR Daily is a specialized news portal with a focus on providing authentic news, information and research analysis on Appropriate Dispute Resolution (ADR), Human Resource Management (HRM) and Industrial Relations Management (IRM) in Ghana and beyond. This platform serves as an information resource base for the progress of the ADR, HRM and IRM industries, and seeks to promote professionalism in ADR practice by supporting a network of ADR professionals within and across nations and continents. ADR Daily keenly encourages the mass adoption of ADR mechanisms, particularly negotiation, mediation and arbitration for the resolution of disputes in all spheres, through the publication of industry news and information, as well as by deploying innovative awareness creation engagements.