Study leave among others such as annual, maternity, parental and sick leave are the types of leave known in the labour law as time-off rights. Some of these time-off rights come with statutory pay. An employee can, for instance, have what is normally called paid time-off rights such as maternity leave and annual leave. 

Economic rights under Article 24 of the 1992 constitution of the Republic of Ghana, guarantees every worker the right to rest, leisure, reasonable limitation of working-hours and paid public holidays. This provision does not specifically mention a worker’s right to leave but the provision can however be interpreted to include leave nevertheless. 

The Labour ACT 2003 (Act 651), as amended, is an Act of the Ghanaian parliament that deals specifically with the rights and obligations of workers in Ghana. The Act 651, Part IV, provides the general conditions of employment which includes leave entitlement. There is the mention of annual, maternity and parental, and sick leave, except study or career leave. I wish to state at this stage that the right to study leave is not unfettered. 

A worker who is refused an application for study leave by his or her employer must not claim a breach of his or her statutory right to study leave. A worker might be able to lay claim to such a breach if the contract of employment included such a term. The granting of study leave is mostly at the discretion of the employer. A worker may be able to negotiate with his or her employer for study leave or career break. There is some justification why an employer would refuse a worker a study leave time off. For example, a request for study leave may be refused where a number of other workers have already applied to take the same time off or where the time requested is during the peak business period when the worker’s services are required. 

The caution however is that employers must exercise the same prerogative on other workers who seek similar leave in order to avoid discrimination, unless it is a case of positive discrimination. In turning down a worker’s application, an organization must always have regard to the implied duty of trust and confidence that exist between it and the worker to avoid being liable for constructive dismissal. This means leave should be refused in good faith and on reasonable grounds, not on arbitrary basis. In mitigating a potential liability for breach, a worker could be permitted to take the leave at a latter period. Workers can also request time off for study or training where they can reasonably demonstrate that it is likely to lead to an improvement in their effectiveness at work. 

Study leave can be economically threatening, especially in cases where the company bears the cost of the worker’s further studies. There have been cases where workers have refused to return to work for the company that funded the further studies. Some companies have resulted to suing the errant worker for refusing to return. In recent times, there have been calls by civil society groups urging government to scrap the study leave with pay policy for teachers. According to the statement, the initiative drained the state purse of GHC 50 million annually as at the end of the year 2012. 

It is highly recommended that companies replace the policy with another one to refund the cost of further studies when the worker returns to the company.       

Following the ongoing case of Mcbean v Public/Police Service Commission, although the issue in dispute is whether or not the dismissal of Mcbean was wrongful; it is a likely in a claim by a dismissed worker who persists to take study leave even in the face of the employing authority’s refusal to grant leave. The assistant commissioner of police admitted, during cross examination, that according to police records, the dismissed worker of the police service who was denied study leave was treated different from other workers who had been granted study leave with pay abroad. The justification for the difference in treatment remains to be known at the end of the trial. 

The opinion of the writer is that, subject to any adverse findings yet to be known in the trial, if the plaintiff was of the same working status as the late former police commissioner, who was granted study leave time off with pay, then the plaintiff is justified in claiming constructively unfair dismissal when he was denied reinstatement after insisting on taking a study leave denied earlier by the police authorities. 

 

Nana Owusu Agyemang, Law Student