Kissi Agyebeng, a prominent private legal practitioner, says the government has not erred in its decision to ask the Auditor General, Daniel Yaw Domelevo, to take leave owed him, spanning 2017 through to 2020.
The government’s decision to ask Domelevo to take his accumulated leave of 167 working days has sparked controversy, particularly within the opposition National Democratic Congress.
The NDC believes the move is intended to silence the Auditor General, who is highly regarded as an anti-corruption campaigner.
Some civil society organisations have also lampooned the government for the directive.
But Agyebeng, who was speaking on Monday morning (6 July) on the Asaase Breakfast Show (ABS), said the decision to ask Domelevo to take his accumulated leave is not an imposition by the president or government, but a requirement of law.
Duties of public officers
Agyebeng argued that it would be illegal for the government even to agree to negotiate with an employee who does not want to take his or her leave, and explained that it is void.
“It is the law which requires that a person who is working must and should go on leave within a certain period. There are so many reasons why a person should go on leave.
“In the specific case of the Auditor General, as I painted earlier, it is a public office. You’re a public officer and your appointing authority is the president of the land and in the constitution, the implied authority reposed in the appointing authority in respect of certain matters.
“Who should call his attention to going on leave, but the president? It is not Parliament, it is not the judiciary, it is not a case before court.”
Agyebeng continued that under Ghana’s Labour Act, leave is not negotiable. “The employer and the employee cannot even agree that the employee should waive leave. It is void. So, for instance, if I am a public officer and I even suggest that for this period I won’t go on leave, the government cannot even by law accept that offer that you won’t go on leave.
“If the government accepts that offer, it becomes an agreement to forgo leave which is void under Section 31 of the Labour Act. So it is not an imposition by the president: it is a requirement of law which you cannot contract.”
Keep a roster
But a labour consultant, Austin Gamey, disagrees.
According to him, inasmuch as the Auditor General has yielded to the request and obliged, there is a need to find ways of resolving the matter.
“No one is expected to accumulate leave for even two days. We are not supposed to do that. The employer is not supposed to aid the worker to accumulate leave, neither should the worker.
“The law does not intend for the leave to be accumulated. So where is accumulation coming from in the first place?” he asked.
When asked the position of the law on such matters, Gamey said that the law does not give room for any individual to accumulate leave.
“It is the responsibility of the human resource management to put together a draft leave roster for everybody. Before the end of the year, it would have been confirmed and that becomes the master leave roster, which must be religiously followed.
Proceed on leave
“Should the exigencies of the role played by anybody prevent them from taking their leave, they have the rest of the year to go on leave.
“If you cannot take your leave as scheduled on the leave roster, it can be adjusted for you to proceed on leave before the end of the year under review. It cannot be carried into the next year as accumulated leave, and this is not open to interpretation,” Gamey said.
He further explained that the provisions of the constitution are not to be interpreted by individuals as suits them.
“Nobody interprets the law as they deem fit. Interpretation is done only by the Supreme Court. It is an applied law. It is for this reason that we established the National Labour Commission to help them navigate such choppy waters if it is a human resource issue,” he said.