On June 29, 2020, the President of Ghana wrote to the Auditor-General (A-G) to take his accumulated leave of 123 days starting July 1, 2020.
The Auditor-General replied the President on July 3, 2020 stated, inter-alia, there was nothing in the Labour Act, 2003 (Act 651) that suggests there is accumulated leave.
According to the Auditor-General, his understanding of the law is that, a worker forfeits his annual leave if he does not take it within the subsisting year. He further stated that, the President should reconsider his directive for the sake of the constitutional order for probity, transparency and accountability.
Flowing from this, the President, replied to the Auditor-General and stated among other things that, the Presidency has accepted the A-G’s offer of taking his 2020 leave. The Presidency, however, added that the existing 123 days had been reviewed upwards to 167 days.
From the above facts stated, there are two critical issues to deal with and resolved. These are:
1. Whether or not A-G as a Government worker can accumulate his leave within the meaning of the law?
2. Whether or not the Auditor-General can elect not to take his on leave as stipulated by law?
On the first issue, it appears from the reading of the Labour Act that there can be an accumulated leave. However, the accumulated leave can only be possible when the worker is on leave and the employer interrupts that leave. The remaining days are not forfeited but shall be taken at any time thereafter.
Section 25 of the Labour Act stipulates:
“Leave to be uninterrupted
(1) A worker is entitled to enjoy an unbroken period of leave but an employer, in cases of urgent necessity, may in accordance with this section, require a worker to interrupt leave and return to work.
(2) Where a worker is required by the employer to interrupt leave in the circumstances specified in subsection (1) the worker shall not forfeit the right to the remainder of the leave but shall take the leave anytime thereafter.
(3) Where a worker takes annual leave at the end of a calendar year, the leave may continue except as provided in subsection (1) without interruption, into the following year”.
Reading the above provision, the key phrases are; ‘Shall not forfeit the right of the remainder” In the case of Ohenebah Bediako Essuman v The Church of Pentecost (Civil Appeal No. J4/21/2016), the Supreme Court stated:
“Interpretation must always have in mind the age-old ratio in construction of documents and deeds which was re-echoed in the case of Osei v Ghanaian Australian Gold Field Ltd. [2003-2004] SCGLR 69. The law governing rules of construction of documents and deeds are that interpretation must be nearly as close to the mind and intention of the maker. Any construction of a document or deed which will render the meaning absurd, incongruous, unreasonable or unintelligible, or that will create hardship or inconvenience and will not be nearly as close to the mind and intention of the maker should be rejected in the modern day. Judges must examine the document as a whole in order to ascertain the purpose and the mischief the parties sought to cure.”
The research by News Cencord Team, did not find any case law relating to this in Ghana. However, the Team has resorted to other jurisdictions for the required aid in interpreting the said provision. In the case of Ludick v Rural Maintenance (Pty) Ltd (2014) 2 BLLR 178 (LC) in which the court held the following:
- Any leave which is not taken by an employee within the 6 months preceding the annual leave cycle will be forfeited.
- The above mentioned only applies to statutory leave (ie the 21 consecutive leave days prescribed by the BCEA). Any other leave granted to an employee does not fall subject to this determination.
- In the event that an employer refuses an employee’s annual leave within the 18-month leave cycle, the employee is entitled to approach the Labour Department to enforce his right to annual leave.
If an employee accordingly fails to take and/or apply for annual leave within 6 months after the completion of the leave cycle, they will forfeit the leave.
We agree with the authority above that any worker who does not take his leave in an annual year, forfeit same. Our opinion sits on section 25(2) of the Labour Act shown above. The said provision appears to suggest that the only time that one can accumulate his/her leave is when that person has not completed his leave but has been called by his employer, for reasons such as an emergency situation. In that case, the remaining leave days could be taken at any time thereafter which includes in the prospective year.
On the issue two, whether or not the Auditor-General can elect not to go on leave, the law states in section 20 of the Labour Law thus:
(1) In an undertaking every worker is entitled to not less than fifteen working days leave with full pay in a calendar year of continuous service”
Section 31 reads:
“Agreement to forgo leave to be void; An agreement to relinquish the entitlement to annual leave or to forgo the leave is void.
Reading these provisions together, they appear to suggest that, the worker is entitled to his leave and that entitlement cannot be negotiated in lieu of anything, not even for cash.
Therefore a worker cannot suggest that because he wants to work, he forfeits his leave even when the employer tells him to go on leave. Leave is not negotiable according to the law.
Flowing from the analysis supra, the President is wrong in accumulating A-G’s leave not taken up by the Auditor-General since that is forfeited. However, the Auditor-General cannot elect not to go on leave when the employer has ordered him to do so.
By this, the Auditor-General has 44 days leave which he must take up and rest. There is a policy reason for that and, in our view, the policy reason is constitutional in nature. The Policy is for probity, transparency and accountability. The Policy is equally for good health and better productivity. The Auditor-General is not a law unto himself. He is subject to the laws of the Land. He cannot approbate and reprobate. He must remain on leave for the rest of his 44 days. The rest of the issue sitting on 167 days and the rest of it, can be contested in Court. Our humble opinion.