Dr Festus Nii Boye Boye V. Ghana Ports & Harbours Authority

Suit No. INDL/53/13
Download Judgment: English
Country: Ghana
Region: Africa
Year: 2016
Court: In The Superior Court Of Judicature: In The High Court Of Justice, Industrial/Labour Division I
Health Topics: Chronic and noncommunicable diseases, Disabilities, Occupational health
Human Rights: Freedom from discrimination, Right to favorable working conditions
Tags: Diabetes, Differently abled, Disabled, Heart disease, Occupational health and safety

The Plaintiff, who is a doctor worked on locum basis for the Defendant, which is a corporate entity and provided medical services. The Defendant offered the post of Medical Officer to the plaintiff with the condition that he is deemed medically fit. Thereafter the Defendant withdrew the appointment offer and informed the Plaintiff that he was not medically fit. The Plaintiff alleged that the termination of his appointment is discriminatory and violated his fundamental rights.

The issues at hand were: whether  the termination of the Plaintiff’s employment  was in accordance with the terms of employment?; whether the act of the Defendant has infringed Plaintiff’s right to employment as guaranteed under the 1992 Constitution? and whether  the Defendant is entitled to a release  all details of the medical examination that the plaintiff underwent at the direction of Defendant?

The Court held the termination of offer of employment to the plaintiff was unlawful on grounds of breach of the employment contract and discrimination. The Court stated that the plaintiff had been providing medical services on locum basis for the past six years. Even if he was hypertensive and had diabetes, the Defendant could not prove that he had in any manner been inefficient in doing his duty or jeopardized someone’s safety. No evidence was adduced by the Defendant to show that the plaintiff was medically unfit to perform his duties and further the criteria of medical fitness was vague.

The Court further stated that since a large number of adult population suffered from hypertension and diabetes, it is necessary to protect them under the Constitution so that they are not discriminated against on the account of their medical conditions. The Court also held that since both hypertension and diabetes required daily management, lifestyle modifications and lifetime medications, failing which the diseases may lead to disabling the person, such persons suffering from hypertension and/or diabetes could be classified as disabled persons.

 

From DW1’s admission, Plaintiff was found to be medically fit, subject to his medical conditions being well controlled and would require regular follow ups. Plaintiff was never declared unfit. It was not shown by the evidence adduced during the trial that Plaintiff’s medical conditions were uncontrolled. It was therefore not established by Defendant following the medical examination that Plaintiff was not medically fit in spite of him being hypertensive and diabetic. The reason given by Defendant as grounds for the termination of Plaintiff’s appointment was utterly false. The termination was thus not in accordance with the employment contract. There is a clear breach of the contract which makes the termination of the employment contract unlawful.” (Page 9)

It is not in dispute that Plaintiff is Hypertensive and Diabetic. Diabetes is a group of metabolic diseases whereby a person has high blood sugar due to an inability to metabolize sufficient quantities of the hormone insulin. Hypertension also is a disorder of abnormally high blood pressure. Both conditions are long-term medical conditions which need medication and or lifestyle changes to manage without which the sufferer may be disabled in the performance of his or her day to day activities. Therefore persons living with hypertension and or diabetes can be classified as disabled persons to afford them the needed protection envisaged by Act 715.” (Page 13)

The uncontroverted evidence is that prior to Plaintiff applying for employment with Defendant, the subject matter of the instant suit, he worked at Defendant’s on part time basis, commonly called “locum” spanning over six years and during these years, the evidence does not suggest that his medical conditions hindered his ability to perform his duties. Plaintiff’s medical conditions cannot therefore, justify Defendant’s conduct of withdrawing the offer in the intendment of section 4(2) of Act 715.” (Page 14)

In assessing the level of compensation in discrimination cases, pecuniary loss arising directly from an act of discrimination, damages and injury to feelings must be taken into account.” (Page 20)

 

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