Dr. Nortey Omaboe - Executive Chairman of GCNet

NLC throws out GCNet's review petition on staff redundancy package

Enoch Darfah Frimpong Sep - 28 - 2020 , 13:29 8 minutes read

The National Labour Commission (NLC) has thrown out the petition for review filed by GCNet in relation to the ruling in favour of the about 150 staff of GCNet over a redundancy dispute.

GCNet [Ghana Community Network Services Limited] through its labour consultant, Mr. Austin Gamey applied to the NLC for a review of the September 4, 2020 Arbitration Award to the effect that redundant staff are entitled to and must be paid what the company’s Human Resource (HR) Policy on redundancy clearly states.

Responding to GCNet in a letter dated Friday, September 25, 2020, the NLC noted ‘the Commission wants to advise that it has no power under the Law to review an Arbitration Award’.

The response by the NLC a copy of which has been seen by Graphic Online cites Section 158 (1) of the Labour Act 2003 (Act 651) which provides that ‘the decision of the Arbitrator or majority of the Arbitrators shall constitute the Award and shall be binding on all parties.’

The letter reminded the petitioner [GCNet] that section 58 of the ADR Act 2010 (Act 798) clearly spells out the grounds and procedure for setting aside an Arbitration Award.

In turning down the petition for review, the letter concluded, “the Commission is unable to accede to your request’.

The dismissal of the petition by the NLC follows what the affected staff claim were attempts by GCNet and its labour consultant, Mr. Austin Gamey “to turn the corner by the gross abuse of administrative process and absolute disregard for the Labour Act and Constitution.”

Below is a copy of what the NLC letter signed by its Executive Secretary, Mr Ofosu Asamoah stated.

RE: PETITION FOR REVIEW OF AWARD
“We refer to letter of 10th September, 2020 from Gamey and Gamey, Consultant for GCNET in respect of the above mentioned subject.
In response, the Commission writes to advise that it has no power under the Law to review an Arbitration Award. Section 158 (1) of the Labour Act, 2003 (Act 651) provides as follows:, “The decision of the Arbitrator or a majority of the Arbitrators shall constitute the Awards and shall be binding on all parties.”
Furthermore, under the ADR Act, 2010, (Act 798 provides the grounds and procedure for setting aside an Arbitration Award.
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In the light of the above, the Commission is unable to accede to your request.
Please be advised accordingly.

GCNet losses arbitration

Last week it came out that a three-member arbitration panel under the auspices of the National Labour Commission (NLC) had ruled in favour of about 150 staff of Ghana Community Network Services Limited (GCNet) over a redundancy dispute with GCNet.

Consequently, the arbitration panel had ruled that GCNet is under obligation to pay each of the staff a redundancy package in accordance with the company’s policy “without any adjustment or variation”

“The effective date for the redundancy is August 31, 2020 and this shall be the last day of employment of the affected staff with GCNet,” the panel held in a ruling dated September 4, 2020.

The arbitrators appointed by the NLC and the two parties were Mr Charles D. Antwi, Mrs Anita Wiafe Asinor and Mr Paul Osei Mensah.

Termination

GCNet was an information technology firm which used to facilitate trade services at the country’s ports and had a contract with the government until 2023.

In April this year, the government terminated the contract, leading to a shutdown of its operations in May, this year.

The government cancelled the contract to allow the full rollout of a new customs clearing system, Uni-Pass, which according to the Ghana Revenue Authority (GRA), would centralise the processing and handling of all import and export documentations, a system known as a single window clearing system.

As a result of the termination of the contract, GCNET decided to lay off some of its staff and accordingly notified Chief Labour Officer of its intended redundancy.

HR policy

Documents filed at the arbitration hearing showed that GCNet had an HR Manual that obliges it to use a certain formula to pay its staff during a redundancy exercise.

In view of the redundancy exercise, management of GCNet and the Staff Association signed a Memorandum of Understanding (MoU) to implement the redundancy in conformity with the HR Manual.

As a result of the MoU, management of GCNet issued termination letters to the affected staff with the redundancy set to take effect on August 31, this year, but payment to be done on or before June 30, this year.

Dispute

According to the ruling, two days before the deadline for the payment of the redundancy package, the management of GCNet wrote to the Staff Association that it could not pay the package and asked for a renegotiation of the redundancy pay as stipulated in the HR Manual.

This led to a dispute which ended up at the NLC, with the two parties agreeing to a voluntary arbitration.

Case of GCNet

It was the case of GCNet that the HR was a collective agreement, but the Staff Association was not a registered labour union and hence per the Labour Act, 2003, it could not enter into a collective agreement with the company.

In view of that, GCNet argued that the MOU it signed with the staff association was null and void and, therefore, not binding.

Also, GCNet contended that it did not have the funds to pay the redundancy package as contained in the HR Manual on the basis that the government of Ghana was yet to pay the compensation for abrogating the contract, while there was no guarantee that the government would even pay the compensation.

Case of the Staff

The staff association, on the other hand, presented a case that the HR policy or manual was the conditions of employment developed by GCNET for its entire staff, which it had been implementing since it commenced operations and, therefore, it was binding on the company.

Also, it argued that per Article 21(1) (e) and Article 24 (3) of the 1992 Constitution, freedom of association was guaranteed and there is no law that states that every association must be registered.

It further contended that the government of Ghana had agreed to pay GCNet compensation for abrogating the contract and, that compensation would include the redundancy package for staff.

Ruling

The arbitration panel agreed with the staff and held that GCNet must pay the redundancy package as contained in the HR Manual because the redundancy package was already predetermined.

It held that the MOU between the Staff Association and GCNet was for the implementation of the redundancy exercise and not a negotiation of the redundancy package because that was already contained in the HR Manual.

“In fact, we find that there has been no negotiation of redundancy pay during this redundancy exercise,” the panel held.

The panel also rejected the claim by GCNet that it had no capacity to pay the redundancy package.

“We find that GCNet is entitled to compensation is entitled to claim compensation from the government of Ghana and such claim will include redundancy payment that will be made to staff,” the panel added.

Learn to be patient - Austin Gamey to striking GCNet staff

Last week when the labour consultant, Mr Austin Gamey's attention was drawn to the fact that the GCNet staff were alleging that there were unseen hands impeding the payment of exit packages and that some some staff had alleged that he was the one who was advising the company not to pay the exit packages to them, this is what he said in a radio interview with Accra based Citi FM monitored by Graphic Online.

"Yes, as far as I know, the owners are not happy with the way the whole thing went about. Of course, you know that government abrogated their agreement not by the will of the workers, not by the will of the management. The management didn't lay them off, it was government that abrogated the agreement between them and GCNet and gave the contract to UNIPASS. As a result the place was closed down."
"When management was preparing, they were preparing to pay them, then because government is going to be the one to be paying back the money to the owners, and they realised that the computation was done the wrong way and the matter went on to arbitration and its being reviewed."
"Once we complete the review, it would be paid, I'm sure but they will have to learn to be patient, but I don't know how they will go about it. Its up to the owners to decide what to do. I really have no hands in it," Mr Gamey said in the Citi FM interview.

Mr Gamey appealed to the workers to be patient and assured them of their exit packages once GCNet has received a favourable review of the judgement by the National Labour Commission (NLC).

Writer's email: enoch.frimpong@graphic.com.gh

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