Termination of Employment Vrs Dismissal: brief perspective of the laws of Ghana

Most often we use the terms ‘’termination of employment’’ and ‘’dismissal’’ interchangeably. Both termination and dismissal are means of severing or terminating the employment relationship between an employer and employee. It must be noted that both concepts are different. The two concepts are borne out of the common law. The constitution of Ghana uses the term dismissal when referring to severing the employment relationship of public servants. It does not use the term ‘’termination’’. However, the Labour law of Ghana, Act 651 gives legal recognition to the concept of termination of employment. In section 15 of Act 651, it provides for the grounds of termination, whiles in sections 62 and 63, it differentiates between what constitutes a fair and unfair termination and goes ahead to provide remedy for unfair termination in section 64. However, the Act does not make clear distinction between the concepts of termination of employment and dismissal though in some cases both concepts are used disjunctively. For instance, in section 119 (b) it states that ‘’An employer shall not dismiss or terminate the employment of a worker or withhold any remuneration of a worker who has removed himself or herself from a work situation which the worker has reason to believe presents imminent and serious danger to his or her life, safety or health.’’ It must be pointed that the framers of the Labour law were not oblivious of the meaning of the two concepts. That is why in the new revised Labour law (yet to be passed) which is still in a draft stage, clearly provides for a clear provision for dismissal.

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What is termination?

Termination of employment or termination of a contract of employment is when a party to the employment contract ends the contract before the fulfilment of the terms and conditions stated therein. Termination of employment can be initiated by either the employer or employee or both. Article 3 of Termination of Employment Convention, 1982 of the International Labour Organization (ILO) clearly states that termination of employment is the initiative of the employer. Meanwhile, section 15 (b) of Act 651 stipulates that the employee can also cause the termination of the contract ?on grounds of ill-treatment or sexual harassment. This is a case of constructive discharge. Under a constructive discharge, an employee can file a legal suite at the law court to claim damages for unfair termination. An employee can resign for whatever reason to also terminate a contract of employment. Various reasons can account for the termination of a contract. The law permits for the contract of employment to be terminated for whatever reason provided each party provides the appropriate notice period or makes payment to the other party in-lieu of notice. Whatever the conditions is for the termination, it must be clearly stated in the contract or the condition of service. Various rulings of the court have also supported the position that, termination instigated by the employer should be fair.

Articles 4,5 and 6 of C-158 of Termination of Employment Convention, 1982 stipulates the grounds for termination of employment and the process.

?Types

1.????? Constructive dismissal, disguised dismissal, constructive discharge?or?constructive termination: This occurs when an employee resigns due to the employer creating a hostile work environment. The?burden of proof?lies with the employee, who must demonstrate that the working conditions were so intolerable that a reasonable person in their position would feel compelled to resign.

2.????? Discharge: This refers to?the fulfillment or completion of the contractual obligations by both parties, resulting in the termination of the contract.

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What is dismissal?

Dismissal is the act of severing the employment relationship after a disciplinary procedure or a fair internal trial process. Dismissal always comes after a disciplinary process. Section 98 of the newly drafted revised Labour law of Ghana states that dismissal should be given after a fair proceeding.

Dismissal can be differentiated from summary dismissal which is a right given to the employer to terminate the contract of employment immediately without notice nor a disciplinary process. In this event, the employee is not entitled to any benefits. Summary dismissal is as a result of a gross misbehavior by the employee. Regardless of the nature of dismissal, it must be well codified in the conditions of service, collective agreement or employee handbook.