The power to dismiss and the right to be heard under the common law of Ghana: a need for satutory intervention

Abstract

In Ghana workers whose contracts of employment are not underpinned by public law considerations can be dismissed without the opportunity to be heard, unless such right is contained in the contract of employment. The availability of this right in a contract of employment depends on the bargaining power between workers and employers. The paper, however, demonstrates that inequality of bargaining power does not enable workers to successfully negotiate for the right to be heard before dismissal. Based on the examination of selected Supreme Court cases, the paper demonstrates that, contracts of employment which are not underpinned by public law considerations are, with respect to dismissal, regulated by principles of the common law, which do not recognise and protect the right of a worker to be heard before his dismissal. The paper further claims that Ghanaian courts in the execution of their interpretative duties in the context of dismissals do not generally imply the right to be heard. The result, it would seem, is that some workers are without rights to procedural fairness from employers in the exercise of the power to dismiss. Given that employment is a critical source of income and livelihood, the paper argues that there is the need to secure the right to be heard in an employment contractual relationship – a virtue, it is contended will discount arbitrary disruption of workers’ employment.

Key Words: labour law, job security, the right to be heard, power to dismiss