By James Gawuga Nkrumah
Introduction
Ghana’s Labour Act, 2003 (Act 651) contains special provisions relating to temporary and casual workers. These provisions recognise the special nature and operations of some businesses. They, therefore, allow an employer to hire workers on such terms suitable for the business operation.[1] However, the provisions do not apply to piece workers, part-time workers, apprentices, and sharecroppers. Those provisions are also not applicable to wage earning fisher folks and persons who work for less than twenty-four hours on the average per week.[2]
This paper discusses, mainly, one category of workers: casual workers. Most employments or businesses use this phrase with the view of distinguishing these workers from another set of workers – permanent workers. It is not in all cases that the description is accurately done, hence, this piece is to shed light on the meaning and rights of casual workers within Ghana’s employment setting and labour laws.
Features of Casual Work
The nature work would require that workers are employed on “casual” basis. Such employments may not be for a long term. For instance, persons may be engaged to harvest ripe cocoa on a farm. Any person by entrance to the farm interested in the work could be called to enter the farmland to work. After paying the wages, the workers could be replaced with any person at the farm entrance the following morning. Works such as this are casual in nature. “Casual work” can therefore be considered as “work that is occasional, irregular, or for a short time – often associated with day labour.”[3]
Casual Work is Seasonal
Casual workers are periodically (not permanently) employed for seasonal works.[4] For instance, engaging people for fish mongering or fruit-picking when fishes or fruits are in season. As the employment is seasonal, it cannot at the same time be regular or continuous for a long time.
Section 78 of Act 651 defines casual worker as “a worker engaged on a work which is seasonal or intermittent andnot for a continuous period of more than six months andwhose remuneration is calculated on a daily basis”. From this definition, there are three (3) conjuncts. All these conjuncts must be present for a worker to be properly called a casual worker. They are that the work is seasonal or intermittent; the work does not last for more than six months; and the remuneration is calculated on daily basis.[5] Accordingly, calculating an employee’s remuneration on a daily basis alone is not sufficient determinant of the fact that the employee is a casual worker.[6]
Engagement may be Oral
Oftentimes, casual workers are engaged under oral contracts. Casual workers need not be given written contracts of employment.[7] As one judge puts it, their employment may be as simple as this: “Casual workers who are employed at the factory gate or at the docks may be told: ‘You, you, you, come in. The wage is ¢15,000 per day, payable at the end of each day’s work’”[8]. In the absence of any express agreement, be it oral or written, a contract of employment may be implied from the conduct of the parties.[9]
Engagement Beyond Six Months must be Written
Generally, casual workers are engaged orally. Where, however, a person’s (casual) employment would last beyond six months, the contract of employment must be in writing.[10] In Elijah Tettevi & 14 Ors v. Nestle Ghana Limited[11], the Court stated regarding the need to reduce the terms of a contract into writing where the employee works or is expected to work for six months or more as follows:
There is no doubt that the plaintiffs [described as casual workers] worked for the defendant for more than six months without a written contract. This was confirmed by defendant’s representative when he told the court in his testimony that the defendant engaged the plaintiffs for six months, terminated their employment after six months and re-engaged them. … In the instant case, since plaintiffs worked for that long period of years for the defendant, there was the need for the defendant to have reduced the contract between it and the plaintiffs into writing which it failed to do.
This means that any employment practice where persons designated as casual workers work for six months, and reengaged thereafter without written contracts is wrong. That is contrary to s.12 of Act 651. That section provides that a contract of employment for a continuous or an aggregate period of six months or more within a year must be in writing.
Termination without notice
Ordinarily, an employer or employee may terminate a contract of service subsisting between the parties by giving the required notice to that effect or making payment in lieu of the notice.[12] Failure to give the required notice or make such payment would make the termination wrongful.
Casual workers are, however, not required to give notice of termination of their employment.[13] Put differently, a casual worker may go home after work and not return the following day. He does not need to give any notice of his intentions of quitting the job. This is also an incidence of casual work. On some other day, when he is present at the factory gate, the employer may hire his services for that day. Accordingly, a casual worker may “go and come as he wished without notice to his employer.”[14] So, as he leaves the work place after any day, the employer must not expect that he returns to work the next day.
Similarly, the employer need not give a casual worker any notice of termination.[15] This is because such contracts are “determinable at will”. Either party may therefore terminate the employment at the close any business day.[16] All in all, there is no legitimate expectation of work the next day. The worker may appear at the gate the next morning, but the employer may select an entirely new set of people for work that day. For a “contract of casual employment is from day to day and terminates automatically at the close of each day’s work.”[17]
Judicial Test for Determining Casual Work
The jurisprudence of the courts indicates that the fact that a written contract describes an employee as a casual worker, or the employer calls the worker so, is not conclusive when a dispute arises as to the true status of that employee. In other words, an employer referring to a person as a “casual worker” or designating some works as “casual works” is not conclusive of that categorization.
The judicial test for determining whether a worker designated as a casual worker is truly so was laid down in the case of Roussy v. Canada (Minister of National Revenue – M.N.R.).[18] The central issue in that case was whether a particular work was not insurable because it was designated as casual. The Court held that to determine the issue of whether or not a particular employment was casual or otherwise, “all the circumstances surrounding the establishment, continuation and termination of the contractual relationship” must be considered. In that case, Justice Linden stated the jurisprudence as follows:
Hence, the duration of the time a person works is not conclusive in categorizing employment as casual ; the length of time may be a factor to be considered, but a more important aspect is whether the employment is “ephemeral” or “transitory” or, if you will, unpredictable and unreliable. It must be impossible to determine its regularity. In other words, if someone is spasmodically called upon once in a while to do a bit of work for an indeterminate time, that may be considered to be casual work. If, however, someone is hired to work specified hours for a definite period or on a particular project until it is completed, this is not casual, even if the period is a short one…
Accordingly, however short the duration of work may be, that will not qualify the work as casual, even if the employer designates the work as such provided that the work is regular and continuous. Impliedly, whether or not a worker is a casual worker does not depend on the employer’s designation.
In the Elijah Tettevi & 14 Ors v. Nestle Ghana Limited[19]the plaintiffs had been in the employment of the defendant for five to ten years. They were not given a written contract. They did not go for annual leave. The plaintiffs contended that having been in the employment of the defendant for that long time, they were automatically confirmed permanent employees. The defendant contended that the plaintiffs were individually employed as casual workers over the years when the need arose. They were assigned tasks to perform and they were paid on daily-rated basis. The plaintiffs were laid off due to restructuring of the defendant’s business and subsequently employed as temporary workers.
The court held that the plaintiffs were not casual workers but permanent workers. The court reasoned that:
The evidence on record shows that the plaintiffs were not doing occasional casual engagements as expected of casual workers. That is, they were not just doing assigned work on daily basis and paid off on completion of the assignment. They worked like permanent staff and paid their salaries at the end of the month. It has, therefore, been established that even though the plaintiffs were engaged as casuals, they worked continuously and regularly with the defendant performing the same work as permanent workers variously for periods ranging between five years and over ten years. They should have, therefore, been treated as permanent workers for those periods which the defendant failed to do, which act of the defendant I consider as callous, unjust and unconscionable.
In Benjamin Aryee & 691 Ors. v. Cocoa Marketing Company[20], the plaintiffs worked as cocoa carriers, tarpaulin handlers, cleaners and menders of cocoa bags. They alleged that though they worked continuously for over 4 years, the defendant had treated them as casual workers and paid them wages instead of salaries. They claimed that the Defendant denied them their economic rights under the 1992 Constitution and acted contrary to the terms of a Collective Bargaining Agreement (CBA) that the Industrial and Commercial Workers Union (ICU) negotiated on their behalf with the Defendant. Their employments were later terminated. They claimed that their employment with the Defendant had been terminated in a manner inconsistent with their status as junior staff or employees of the company. The Court held that “when a worker is initially employed as a casual worker and his services are used continuously for a period exceeding 6 months, such a worker is legally under the Labour Act a permanent worker, and thus entitled to all the incidence and protection provided for a permanent worker under the Labour Act.” The Court reasoned that:
At any event even if cocoa was a seasonal crop as suggested by the Defendant, the Plaintiffs were not harvesting cocoa on the farms so that their services would be intermittent and seasonal. The Plaintiffs were carriers, loaders etc. of dried cocoa beans transported to the Tema harbour for storage into warehouses and unto vessels for export when required.
The foregoing cases namely the Elijah Tettevi and Benjamin Aryee cases must be distinguished from other cases which dealt with this area of law. These other cases are the Dzaisu and Others v Ghana Breweries Ltd[21] and Agbesi and Others v. Ghana Ports & Habours Authority[22].
In the DzaisuCase, the plaintiffs were engaged on daily basis at the gate of the company’s premises as and when work was available; they were not members of the Industrial and Commercial Workers Union (ICU) of Ghana Breweries Ltd. and therefore they were not covered by the CBA in existence. Furthermore, article 3(e) of the CBA expressly stated that: “Apart from casual employees, no person shall be engaged for more than six months on temporary basis and after six (6) months such person shall be deemed to have become permanent.” The Court stated that said article 3(e) of the CBA conforms to the wording and legal position of section 75(1) of Act 651 on temporary workers. So the terms of the CBA expressly excluded the casual workers in Dzaisu case supra from the agreement. It was held that the plaintiffs were casual workers.
Graduation from Casual to Permanent Workers
There is no automatic statutory graduation right of a casual worker to a permanent worker. Ghana’s labour laws do not compel such conversion. This is particularly so when the designation is accurate. The effect is that “it is not obligatory for an employer to covert the status of a casual labourer to that of a permanent employee.”[23] The way out is for the conversion to be made contractual, that is, if the parties agree that after a period, for instance, the casual worker will be promoted to a permanent worker. A case in point is the Agbesi Case supra. In that case,the CBA expressly provided for conversion from a casual worker to a permanent worker after working satisfactorily and continuously for a period of 154 days. The Plaintiffs were in Court for the enforcement of that provision. The court held that the five plaintiffs were permanent workers. This is because they had worked for 154 days and the defendant did not adduce any evidence to show that they unsatisfactorily performed their duties.
More importantly, the tripartite conjuncts regarding the definition of a casual worker must be present to make that worker truly a casual worker. Otherwise, the employer’s designation will be inaccurate and it will open up itself to a suit, for breaching Act 651.
Entitlements of a Casual Worker
- Remuneration
A casual worker is entitled to remuneration. This would include wages and, if any, additional emoluments payable to the worker.[24] It is the duty of the employer to provide work for the casual worker. It is also within the mandate of an employer to arrange alternative work for the employee on any day that the casual worker reports to work or is engaged to work but is prevented by the weather from working. When the employer fails to provide work or arrange for an alternative employment for the worker, he cannot deny the casual worker his remuneration for the day. The position of the law is that “a casual worker shall be paid full minimum remuneration for each day on which the worker attends work, whether or not the weather prevents the worker from carrying on his or her normal work and whether it is possible or not, to arrange alternative work for the worker on such a day.”[25]
Act 651 provides the formula for determining the minimum remuneration payable to a casual worker. Provided the casual worker works on only week days, his minimum monthly remuneration will be equal to twenty-seven times his daily wage.[26] However, for each day that the worker is absent in the month, the worker is not entitled to the day’s payment or minimum remuneration.[27] If the casual worker works every day of the week, then his minimum monthly remuneration is determinable by multiplying three hundred and sixty-five days by his daily wage divided by twelve.[28]
In addition to the above, Act 651 compulsorily mandates an employer to fully remunerate the casual worker on public holidays. The payment for that day must be the same as if it were a normal working day.[29] If the casual worker works on that public holiday, he is entitled to full remuneration for that day as he is entitled to by reason of the day being a public holiday, and payment for the work done. If he works beyond the working hours, his overtime pay must be added.[30] On the other hand, if the worker works for some hours on a public holiday, then he is entitled to a full day’s payment by reason of the day being a public holiday plus remuneration for number of hours done.[31] The employer is required to make payment after the public holiday.[32]
It appears that unless the employer arranges his business in such a way that the employment of the casual worker is determined at the end of each day, the employer would be in breach of section 77(1), (2) and (3) of Act 651 if he refuses to make such payments.
- Access to General Medical Facility
A casual worker is entitled to necessary medical facilities, which an employer generally makes available to the workers.[33] This is a mandatory statutory right, created by Act 651. Though the provision is mandatory, for which reason, a denial of a casual worker may amount to discrimination on grounds of economic status[34], the phrasing of the provision leaves no doubt that a casual worker may not be entitled to all medical facilities provided by the employer. The casual worker is only entitled to the general and necessary facility, provided all and sundry at the workplace.
- Overtime Pay
A casual worker is entitled to overtime pay.[35] Overtime work refers to work done beyond the required working hours.[36] For a casual worker to be engaged for overtime work, the employer must have fixed rates for such a work.[37] That notwithstanding, like any other worker, a casual worker cannot be compelled to do an overtime work. There are exceptions, namely:
- where the overtime work needs to be done to keep the business viable;
- during emergencies where overtime work needs to be done to prevent threat to life or property.[38]
- Lodgement of Complaint
As stated earlier, a casual employee is entitled to be paid on public holidays whether or not the employee works on that day. Where an employer does not pay the casual worker as mandated under Act 651, the employee is at liberty to lodge a written complaint regarding the non-compliance with the provisions on the casual worker’s payments to the National Labour Commission. The Commission is required to determine the issue and the parties are to abide by the decision of the Commission.[39] The Commission may order the amount due and payable to the casual worker to be paid and the time within which such payment is to be made.[40]
Protection of Casual Workers
Like all other employees, the rights and entitlements of casual workers are statutorily protected. For instance, Act 651 enumerates the rights and entitlements of casual workers under s.74(2). These rights and entitlements (as earlier discussed) are actionable, in that, a breach of any of them may result in a court action.
This means that though a casual worker may be engaged orally (without any written contract), “s.74(2) of the Act offers a casual worker some protection in the form of conditions of employment, which every employer is obliged to comply with, and they are actionable.”[41] The policy rationale is to prevent the exploitation of casual workers due to the non-existence of a written contract.
Conclusion
This article clarifies, based on statutory provisions and case laws, which employee can properly be designated as a casual worker; what kinds of work he can do; what period of time he is expected to work; and the rights and entitlements available to him. What is more, a designation of an employer that a person is a casual worker does not necessarily make the worker so. The test is whether the employee performs a work that is of regular and continuous nature. If so, the employee cannot be regarded as a casual worker no matter the period of work. Casual work is a seasonal, or intermittent work, to be performed for less than six months; and the remuneration for which determinable on daily basis. Finally, all statutory rights or entitlements of a casual are actionable, if breached.
— THE END —
03/05/2023
[1] Section 73(1) of Act 651.
[2] Section 73(2) of Act 651.
[3] The Black’s Law Dictionary, 9th Edition, page 605; Elijah Tettevi & 14 Ors v. Nestle Ghana Limited, Suit No. BC 207/2007, Dated 7th October, 2016.
[4] Elijah Tettevi & 14 Ors v. Nestle Ghana Limited, Suit No. BC 207/2007, Dated 7th October, 2016, H.C.
[5] Benjamin Aryee & 691 Ors. v. Cocoa Marketing Company, Civil Appeal no. J4/11/2017, Dated 29th November, 2017, S.C.
[6] Benjamin Aryee & 691 Ors. v. Cocoa Marketing Company, Civil Appeal no. J4/11/2017, Dated 29th November, 2017, S.C.
[7] Section 74(1) of Act 651; Dzaisu v. Ghana Breweries Ltd. [2007-2008] SCGLR 539 at 549.
[8]Kobea v. Tema Oil Refinery; Akomea v. Tema Oil Refinery (Consolidated) [2003-2004] SCGLR 1039.
[9] Section 175 of Act 651
[10] Section 12(1) of Act 651.
[11] Suit No. BC 207/2007, Dated 7th October, 2016 PER Asuman-Adu J.
[12] S.17(1) of Act 651.
[13] S.17(2) of Act 651.
[14] Dzaisu v. Ghana Breweries Ltd. [2007-2008] SCGLR 539 at 553 per Sophia Adinyira JSC.
[15] Benjamin Aryee & 691 Ors. v. Cocoa Marketing Company, Civil Appeal no. J4/11/2017, Dated 29th November, 2017, S.C; Dzaisu v. Ghana Breweries Ltd. [2007-2008] SCGLR 539
[16] S.17(2) of Act 651.
[17] Benjamin Aryee & 691 Ors. v. Cocoa Marketing Company, Civil Appeal no. J4/11/2017, Dated 29th November, 2017, S.C
[18] [1992] F.C.J. No. 913; (1992) 148 N. R. 74.
[19] Suit No. BC 207/2007, Dated 7th October, 2016 PER Asuman-Adu J.
[20] Civil Appeal no. J4/11/2017, Dated 29th November, 2017, S.C.
[21] [2007-2008] SCGLR 539
[22] [2007-2008] SCGLR 469
[23] Dzaisu v. Ghana Breweries Ltd. [2007-2008] SCGLR 539 at 549.
[24] Section 74(2)(a) of Act 651 and Section 175 of Act 651.
[25] Sections 74(2)(d) and 76(4) of Act 651.
[26] Section 76(1)(a) of Act 651.
[27] Section 76(2) of Act 651.
[28] Section 76(1)(b) of Act 651.
[29] Section 77(1) of Act 651.
[30] Section 77(2) of Act 651.
[31] Section 77(3) of Act 651.
[32] Section 77(4) of Act 651.
[33] Section 74(2)(b) of Act 651.
[34] Article 17 of the 1992 Constitution.
[35] Sections 74(2)(c) and 76(5) of Act 651.
[36] Section 35(1) of Act 651.
[37] Section 35(2) of Act 651.
[38] Section 35(3) of Act 651.
[39] Section 77(5) of Act 651.
[40] Section 77(6) of Act 651.
[41] Dzaisu v. Ghana Breweries Ltd. [2007-2008] SCGLR 539
