Dear Mirror Lawyer, My employer just told me not to come to work again while I am on maternity leave, without any notice, explanation, or remuneration.
I have worked there for five years. Is that allowed?
Nadia Ochire, North Legon, Accra
Dear Nadia, The law of Ghana provides certain rights and freedoms in the Constitution as well as statutes and other legislation.
I will explain below whether your employer's termination of your employment, without explanation or notice, is permissible under Ghanaian law.
An employer cannot lawfully terminate an employee during her maternity leave by instructing her not to return to work, especially without notice or explanation. In Ghana, the Labour Act, 2003 (ACT 651) contains provisions to protect employees from such harsh treatment.
Section 15 of the Act provides for grounds for termination of employment. It states that a contract of employment may be terminated, by mutual agreement between the employer and the worker, by the worker on grounds of ill-treatment or sexual harassment, by the employer on the death of the worker before the expiration of the period of employment, by the employer if the worker is found on medical examination to be unfit for employment, by the employer because of the inability of the worker to carry out his or her work due to sickness or accident; or the incompetence of the worker, or proven misconduct of the worker.
Therefore, for your employer to terminate your contract, you must have satisfied any of the above conditions. If any of the conditions provided under Section 15 are present, your employer is then supposed to give you notice of termination in accordance with Section 17 of the Act.
Section 17 provides that: A contract of employment may be terminated at anytime by either party giving to the other party, in the case of a contract of three years or more, one month's notice or one month's pay in place of notice, in the case of a contract of less than three years, two weeks' notice or two weeks' pay in place of notice; or in the case of contract from week to week, seven days' notice.
It also provides that a contract of employment determinable at will by either party may be terminated at the close of any day without notice.
A notice required to be given under this section shall be in writing.
Furthermore, Section 18 of the Act provides for remuneration on termination of employment. It spells out that when a contract of employment is terminated in the manner stated in Section 15, the employer shall pay to the worker any remuneration earned by the worker before the termination, any deferred pay due to the worker before the termination, any compensation due to the worker in respect of sickness or accident and in the case of foreign contract, the expenses and necessaries for the journey and repatriation expenses in respect of the worker and accompanying members of his or her family in addition to any or all of the payments specified in paragraphs (a), (b) and (c) of this subsection.
It also provides that notwithstanding Section 17(1), either party to a contract of employment may terminate the contract without notice if that party pays to the other party a sum equal to the amount of remuneration which would have accrued to the worker during the period of the notice.
Therefore, your employer cannot terminate your contract of employment if it’s not in accordance with any of the grounds provided in the Act, and if, upon investigation, you have satisfied any of the conditions, your employer is required to give you notice of termination in writing in accordance with the time frame provided, accompanied by any remuneration you’re entitled to.
Moreover, every mother has the right to maternity leave under Article 27(1) of the 1992 Constitution, which provides that mothers are entitled to a reasonable time before and after childbirth and shall be paid in addition.
Also, Section 57(8) of the Labour Act, 2003(ACT 651) provides that, “An employer shall not dismiss a woman worker because of her absence from work on maternity leave.” Section 63(e) goes ahead to state that, in the case of a woman worker, it is unfair to terminate their employment due to her pregnancy or her absence from work during maternity leave.
Therefore, an employer cannot terminate your employment contract solely because you were on maternity leave. Such an act is contrary to the constitutional rights of the worker as provided in Article 27(1) and also Sections 57(8) and 63(e) of the Labour Act. However, Section 64 of the Labour Act provides remedies for unfair termination.
It states that a worker who claims their employment has been unfairly terminated may file a complaint with the Labour Commission.
If upon investigation of the complaint the Commission finds that the termination of the employment is unfair, it may order the employer to re-instate the worker from the date of the termination of employment, order the employer to re-employ the worker, either in the work for which the worker was employed before the termination or in other reasonably suitable work on the same terms and conditions enjoyed by the worker before the termination, or order the employer to pay compensation to the worker.
In conclusion, the termination of your employment by your employer was unconstitutional, and it was contrary to your rights as a worker under the Labour Act, 2003; therefore, you’re entitled to the remedies of unfair termination provided under Section 64 of the Labour Act.
If you are not satisfied with the outcome at the Commission, you can sue your employer for unlawful termination of employment.
