Letter To Tom De Man, Africa Director, Heineken
Dear Mr. Tom de Man,
I write this as a matter of record only.
This communication is further to my previous mails, the first being on the problems arising from the pension scheme since the acquisition of GBL and the second, being communication on what was happening to me and indeed all the direct reports to the former MD of GBL and other defined management personnel who formed part of the first tranche of redundant employees who exited GBL on June 30, 2005. I write this on behalf of all the team of managers who constitute that group and who may not be as privileged as I am either to have the ability to seek that rights under Ghanaian law be respected or even have access to you to send you communication on what is happening to them and their families following the acquisition. Finally, I write this on behalf of myself and my young family and my dear wife who is struggling to come to terms with the fact that I used to come home very late at night from the Golden Tulips of this world during Project Marina and this seems to be my reward. Finally, I have endeavoured to find the emails of as many of the former Board as I can who would receive copies of this mail.
Dear Sir, I do appreciate the fact that you hold a very important position in Heineken International and thus keep a very busy schedule. But I also do know that if you wanted to at the very least acknowledge my communication, you could have done so by now. None of my communication has been acknowledged. I therefore do not expect a response to this. Indeed, as indicated earlier, I am only writing out of a promise I made to my wife on Saturday August 27, 2005 at about 4.45 a.m., when we were on the way to the hospital with my 4 year old boy.
Mr. de Man, I am grieved that I have to once again draw your attention to apparent infringements of the rights of Ghanaian employees since the acquisition of GBL in the new management’s efforts to implement the intended merger of GBL and GGBL. As the former Company Secretary/Legal Adviser, I am privy to information to the fact that some personnel who attended interviews and scored high marks and therefore qualified to be retained (based on the declared policy of ‘best fit’) have not been offered jobs whilst those who did not do too well at the interviews have been given jobs. Further, I have evidence that some senior personnel involved in the selection process had openly declared to defined employees that they could go to court if they were dissatisfied with the jobs they had been offered. Needless to say, the statement to employees to the effect that they could either accept the positions offered or could resign flies in the face of the PTP and communication both from Heineken and GBL’s former Board and Management and even the present Management. More importantly, it flies in the face of Ghanaian legislation. Under the Labour Act, 2003 (Act 651), there are three discernible scenarios in the event of an acquisition:
- retain the jobs
- offer commensurate jobs or higher
- make ‘redundancy pay’.
Impliedly, under Ghanaian law, employees cannot be worse off in a new dispensation unless they elect so to be. Therefore for the new management to invite employees to either take jobs at lower grades or resign or worse, dare people to sue, is to say the least an invitation to assault on the corporate image and integrity of all the corporate entities involved in this matter. In moments like that, it is understanding and empathy that should be shown to employees. In effect, I am alerting you to the fact that the manner in which this exercise has been carried out has the potential to implode on the business.
I wish to point out that as the former Legal Adviser, I was not part of any of the actions undertaken by the new Management. Indeed, since the acquisition on December 10, 2004, the only major function I undertook was to conduct the AGM. I was never invited to nor participated in nor was my opinion sought in any Management issue concerning GBL since December 10, 2004. As a professional, I am fully cognisant of the company’s right to determine who remained in the business. That is why I have never contested the company’s right to declare my position redundant. Indeed, as a professional, I knew as far back as late 2003 when the deal was announced, that in diligently doing my job, I was in the process going to lose my position. Yet I took a conscious decision to do what is professionally expected of me to ensure the success of the acquisition. However, as you may recognise, every acquisition involves assets and liabilities. Employers/employees all have rights and duties. To the best of my abilities therefore, I fulfilled my duties both to GBL under Heineken’s control and under GGBL’s control. I fully recall that at the last Board meeting under Heineken’s control on December 10, 2004, most Board members expressed concerns about the treatment that will be meted out to GBL personnel, especially the senior management team. Assurances were given by the Board and personally by you, Mr. De Man, that the interests of all employees would be protected. Such aspirations informed the decision to allow Mr. Klompenburg and Mrs. Plantenga-Hogewoning to remain on the GBL Board to assure employees. All those assurances run very hollow now compared to what has happened to the senior management personnel of GBL and the fact that these very same people, including myself, are now being compelled to resort to legal means in order to receive what is lawfully ours.
So I take the opportunity to –restate the issues. Agreement was reached with defined managers on June 9, 2005 on exit terms. It was set down in writing and duly executed. Between June 9 and June 30, no communication is forthcoming form management on fine details of the package. Consequently more than three memoranda is forwarded by me to the MD and FD expressing my concerns at the apparent lack of communication on the details of the package and the implications for all. Fortunately, on June 27, 2005, we receive from HRD a detailed breakdown of entitlements based on the June 9, 2005 agreement. By 4. 30 pm on the final day of exit, still n o information is forthcoming. Following persistent calls on me from the other affected managers, I was compelled to see the MD and point out the intolerable unfairness that the situation had generated. Finally, after a heated meeting in the night of June 30, 2005 when the negotiator had disputed the interpretation of “full gratuity payments” despite the word of 10 managers and the witness to the said agreement, we were handed letters on plain sheets and not corporate letter heads purporting to detail terminal benefits. That night, every manager in that room realised that we had been pawns in a master game all along. The motives underlying the decision for the business to antagonise senior professionals who were exiting a company situate in the land of their birth, still defies my understanding. For a business that I have so diligently worked for and supported in a major acquisition project to report me to the Police like a common criminal, that I have stolen a car, when they are fully aware that that is not the case and that my amounts outstanding to be paid as terminal benefits far outweigh the value of the said car is definitive. As the Legal Adviser, we had all participated in marketing the acquisition as a merger and not a takeover in order to soften the ground for the new owners to take over. We are now confronted by a potential legal conundrum where there has been an acquisition but there has not been a merger as anticipated yet. But in the interim, GGBL has moved its personnel and workforce onto the Achimota site. As you are aware, 99.7% means that there is a .3% who still have an interest in the company. They can only be bought out pursuant to a resolution to that effect at an GM called for the purpose. But that’s where the catch is. The potential for Ofori II is real. All it takes is for a shareholder to demand that an independent valuation be done to ascertain their interests. How can that be done when assets have been fudged? We will probably replay all the Ofori scenario again if caution is not exercised.
I can discern that some of the actions undertaken by the new management may be premised on the presumption that it is doing all redundant managers or employees a favour by paying the agreed exit packages. That mindset would inevitably cost the business more in the long-run. Lawyers would smile all the way to the bank. What the new management is being called upon to do is to abide by its legal obligations under Ghanaian law. Management was fully cognisant of the Conditions of Service when it entered into negotiations with the defined group of managers leading to the June 9, 2005 agreement. Under Ghanaian law, where an entity has a legal duty but elects not to fulfil that duty, every Ghanaian citizen has a constitutionally guaranteed right to compel compliance with the obligations. That is what has compelled me to resort to legal means to recover what is lawfully due me as my terminal benefits. And that informs why almost all the managers who were parties to the June 9, 2005 agreement have either filed suits or petitions or are preparing to do so.
But must it come to that when I have sat through Management/Board meetings where assurances had been given that the interests of employees would be protected? The perception of the senior team involved in this matter is that Heineken, having successfully offloaded GBL to Diageo through GGBL is not interested anymore. That position is understandable. Indeed, that may be informing the very loud silence that is coming from Amsterdam on this matter. But for me personally, I feel abused. Used and discarded. But fortunately, I live in the land of my birth. I have lived in foreign lands before. When I travel, I know that I am a foreigner and I do behave as such. I can therefore not accept the fact that in the land of my birth, after having offered dedicated service to the company, someone can decide that your former lawyer and his senior management colleagues deserve to be treated in such a manner, including stooping so low as to issue written directives just a day after June 30, 2005, that defined management personnel should not be allowed to enter GBL premises any longer.
For the past two months, we have toiled to keep the family going. We would continue to do so until justice is done. As a lawyer, I will continue to do what is lawful to assure myself and my colleagues of justice. If Heineken makes a conscious decision that we are pariah at this time, so be it. But I want to assure you that I do not and indeed have encouraged all my colleagues not to hold it against Heineken or the former Board or management of GBL. We will continue to live in this land of our birth. We will continue to take care of our families as long as we have life. We will continue to strive for justice in this matter and justice, though it may tarry, would be done.
I have fulfilled my promise to my dear wife. I just had to let you know that since before June 30, 2005, I have communicated to you on these matters and till date, not even a single note of acknowledgement has been forthcoming. THIS IS FOR THE RECORD ONLY!
Thank you.
Yours sincerely,
JOE ABOAGYE DEBRAH Esq.
Accra.
I write this as a matter of record only.
This communication is further to my previous mails, the first being on the problems arising from the pension scheme since the acquisition of GBL and the second, being communication on what was happening to me and indeed all the direct reports to the former MD of GBL and other defined management personnel who formed part of the first tranche of redundant employees who exited GBL on June 30, 2005. I write this on behalf of all the team of managers who constitute that group and who may not be as privileged as I am either to have the ability to seek that rights under Ghanaian law be respected or even have access to you to send you communication on what is happening to them and their families following the acquisition. Finally, I write this on behalf of myself and my young family and my dear wife who is struggling to come to terms with the fact that I used to come home very late at night from the Golden Tulips of this world during Project Marina and this seems to be my reward. Finally, I have endeavoured to find the emails of as many of the former Board as I can who would receive copies of this mail.
Dear Sir, I do appreciate the fact that you hold a very important position in Heineken International and thus keep a very busy schedule. But I also do know that if you wanted to at the very least acknowledge my communication, you could have done so by now. None of my communication has been acknowledged. I therefore do not expect a response to this. Indeed, as indicated earlier, I am only writing out of a promise I made to my wife on Saturday August 27, 2005 at about 4.45 a.m., when we were on the way to the hospital with my 4 year old boy.
Mr. de Man, I am grieved that I have to once again draw your attention to apparent infringements of the rights of Ghanaian employees since the acquisition of GBL in the new management’s efforts to implement the intended merger of GBL and GGBL. As the former Company Secretary/Legal Adviser, I am privy to information to the fact that some personnel who attended interviews and scored high marks and therefore qualified to be retained (based on the declared policy of ‘best fit’) have not been offered jobs whilst those who did not do too well at the interviews have been given jobs. Further, I have evidence that some senior personnel involved in the selection process had openly declared to defined employees that they could go to court if they were dissatisfied with the jobs they had been offered. Needless to say, the statement to employees to the effect that they could either accept the positions offered or could resign flies in the face of the PTP and communication both from Heineken and GBL’s former Board and Management and even the present Management. More importantly, it flies in the face of Ghanaian legislation. Under the Labour Act, 2003 (Act 651), there are three discernible scenarios in the event of an acquisition:
- retain the jobs
- offer commensurate jobs or higher
- make ‘redundancy pay’.
Impliedly, under Ghanaian law, employees cannot be worse off in a new dispensation unless they elect so to be. Therefore for the new management to invite employees to either take jobs at lower grades or resign or worse, dare people to sue, is to say the least an invitation to assault on the corporate image and integrity of all the corporate entities involved in this matter. In moments like that, it is understanding and empathy that should be shown to employees. In effect, I am alerting you to the fact that the manner in which this exercise has been carried out has the potential to implode on the business.
I wish to point out that as the former Legal Adviser, I was not part of any of the actions undertaken by the new Management. Indeed, since the acquisition on December 10, 2004, the only major function I undertook was to conduct the AGM. I was never invited to nor participated in nor was my opinion sought in any Management issue concerning GBL since December 10, 2004. As a professional, I am fully cognisant of the company’s right to determine who remained in the business. That is why I have never contested the company’s right to declare my position redundant. Indeed, as a professional, I knew as far back as late 2003 when the deal was announced, that in diligently doing my job, I was in the process going to lose my position. Yet I took a conscious decision to do what is professionally expected of me to ensure the success of the acquisition. However, as you may recognise, every acquisition involves assets and liabilities. Employers/employees all have rights and duties. To the best of my abilities therefore, I fulfilled my duties both to GBL under Heineken’s control and under GGBL’s control. I fully recall that at the last Board meeting under Heineken’s control on December 10, 2004, most Board members expressed concerns about the treatment that will be meted out to GBL personnel, especially the senior management team. Assurances were given by the Board and personally by you, Mr. De Man, that the interests of all employees would be protected. Such aspirations informed the decision to allow Mr. Klompenburg and Mrs. Plantenga-Hogewoning to remain on the GBL Board to assure employees. All those assurances run very hollow now compared to what has happened to the senior management personnel of GBL and the fact that these very same people, including myself, are now being compelled to resort to legal means in order to receive what is lawfully ours.
So I take the opportunity to –restate the issues. Agreement was reached with defined managers on June 9, 2005 on exit terms. It was set down in writing and duly executed. Between June 9 and June 30, no communication is forthcoming form management on fine details of the package. Consequently more than three memoranda is forwarded by me to the MD and FD expressing my concerns at the apparent lack of communication on the details of the package and the implications for all. Fortunately, on June 27, 2005, we receive from HRD a detailed breakdown of entitlements based on the June 9, 2005 agreement. By 4. 30 pm on the final day of exit, still n o information is forthcoming. Following persistent calls on me from the other affected managers, I was compelled to see the MD and point out the intolerable unfairness that the situation had generated. Finally, after a heated meeting in the night of June 30, 2005 when the negotiator had disputed the interpretation of “full gratuity payments” despite the word of 10 managers and the witness to the said agreement, we were handed letters on plain sheets and not corporate letter heads purporting to detail terminal benefits. That night, every manager in that room realised that we had been pawns in a master game all along. The motives underlying the decision for the business to antagonise senior professionals who were exiting a company situate in the land of their birth, still defies my understanding. For a business that I have so diligently worked for and supported in a major acquisition project to report me to the Police like a common criminal, that I have stolen a car, when they are fully aware that that is not the case and that my amounts outstanding to be paid as terminal benefits far outweigh the value of the said car is definitive. As the Legal Adviser, we had all participated in marketing the acquisition as a merger and not a takeover in order to soften the ground for the new owners to take over. We are now confronted by a potential legal conundrum where there has been an acquisition but there has not been a merger as anticipated yet. But in the interim, GGBL has moved its personnel and workforce onto the Achimota site. As you are aware, 99.7% means that there is a .3% who still have an interest in the company. They can only be bought out pursuant to a resolution to that effect at an GM called for the purpose. But that’s where the catch is. The potential for Ofori II is real. All it takes is for a shareholder to demand that an independent valuation be done to ascertain their interests. How can that be done when assets have been fudged? We will probably replay all the Ofori scenario again if caution is not exercised.
I can discern that some of the actions undertaken by the new management may be premised on the presumption that it is doing all redundant managers or employees a favour by paying the agreed exit packages. That mindset would inevitably cost the business more in the long-run. Lawyers would smile all the way to the bank. What the new management is being called upon to do is to abide by its legal obligations under Ghanaian law. Management was fully cognisant of the Conditions of Service when it entered into negotiations with the defined group of managers leading to the June 9, 2005 agreement. Under Ghanaian law, where an entity has a legal duty but elects not to fulfil that duty, every Ghanaian citizen has a constitutionally guaranteed right to compel compliance with the obligations. That is what has compelled me to resort to legal means to recover what is lawfully due me as my terminal benefits. And that informs why almost all the managers who were parties to the June 9, 2005 agreement have either filed suits or petitions or are preparing to do so.
But must it come to that when I have sat through Management/Board meetings where assurances had been given that the interests of employees would be protected? The perception of the senior team involved in this matter is that Heineken, having successfully offloaded GBL to Diageo through GGBL is not interested anymore. That position is understandable. Indeed, that may be informing the very loud silence that is coming from Amsterdam on this matter. But for me personally, I feel abused. Used and discarded. But fortunately, I live in the land of my birth. I have lived in foreign lands before. When I travel, I know that I am a foreigner and I do behave as such. I can therefore not accept the fact that in the land of my birth, after having offered dedicated service to the company, someone can decide that your former lawyer and his senior management colleagues deserve to be treated in such a manner, including stooping so low as to issue written directives just a day after June 30, 2005, that defined management personnel should not be allowed to enter GBL premises any longer.
For the past two months, we have toiled to keep the family going. We would continue to do so until justice is done. As a lawyer, I will continue to do what is lawful to assure myself and my colleagues of justice. If Heineken makes a conscious decision that we are pariah at this time, so be it. But I want to assure you that I do not and indeed have encouraged all my colleagues not to hold it against Heineken or the former Board or management of GBL. We will continue to live in this land of our birth. We will continue to take care of our families as long as we have life. We will continue to strive for justice in this matter and justice, though it may tarry, would be done.
I have fulfilled my promise to my dear wife. I just had to let you know that since before June 30, 2005, I have communicated to you on these matters and till date, not even a single note of acknowledgement has been forthcoming. THIS IS FOR THE RECORD ONLY!
Thank you.
Yours sincerely,
JOE ABOAGYE DEBRAH Esq.
Accra.
posted by JOEDEE at 11:10 AM
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