Miss Mary Etong -VS- Pepperoni Foods Limited

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE CALABAR JUDICIAL DIVISION

HOLDEN AT CALABAR

BEFORE HIS LORDSHIP: HON. JUSTICE M. N ESOWE

DATE: 29^TH OCTOBER, 2019 SUIT NO: NICN/CA/65/2015

BETWEEN

MISS MARY ETONG …………………. CLAIMANT

AND

PEPPERONI FOODS LIMITED ……. DEFENDANT

REPRESENTATION

D.A EDET Esq. for the Claimant

C.O BASSEY Esq. for the Defendant

JUDGMENT

INTRODUCTION

This suit was instituted by the Claimant vide a Complaint dated and filed 11^th December, 2015 seeking the following reliefs:

Outstanding arrears of salary at the rate of N50,000 per month from July 2015 to October, 2015 totaling N200,000.00 (Two Hundred Thousand Naira)

Terminal benefits

The sum of N10,000,000.00 (Ten Million Naira) being wrongful termination of employment

N1,000,000.00 (One Million Naira) being the cost of prosecuting this suit

SUMMARY OF FACTS

According to the Claimant, she was employed by the Defendant as Internal Auditor in Uyo on 18^th August, 2011. She was thereafter transferred to Calabar as Internal Auditor on 2^nd September, 2013. She was again transferred from Calabar to Uyo on 14^th May, 2015. On a letter dated 29^th June 2015, Claimant was suspended on the reason that she did not take proper inventory of resources under her watch and also on the outrageous use of gas and diesel which was far above normal. Claimant contends that her subsequent termination of appointment was not done in accordance with the terms guiding her employment. This has resulted in the nature of the reliefs sought.

On the part of the Defendant, she stated in her statement of defence dated and filed 27^th January, 2016 that the letter terminating the appointment of the Claimant stated the reasons to be alleged fraud in the Calabar outlet perpetrated by the management staff including the Claimant. They were all queried; Disciplinary Panel set up to which they were invited and on being found liable, they were punished by having their appointments terminated.

COMMENCEMENT OF HEARING

Hearing in this suit commenced on the 15^th of December, 2016 to which the Claimant herself testified as CW1. She adopted her witness statement on oath, tendered documents admitted as exhibits and she was cross examined subsequently. Thereafter, Claimant closed her case on 15^th May, 2018.

On the part of the Defendant, she opened her defence on the 11^th of June, 2018 by calling one Jenny Benedict who testified as DW1 on behalf of the Defendant. He adopted his Witness Statement on Oath. He was led in evidence in chief by Counsel to Defendant. He was cross examined by Counsel to Claimant. Defendant closed their defence on the 26^th of February, 2019.

Thereafter, the case was adjourned to enable parties file, exchange and adopt their final written addresses.

CLAIMANT’S FINAL WRITTEN ADDRESS

In Claimant’s final written address dated 23^rd April, 2019 and filed same day, Learned Counsel to Claimant formulated five (5) issues for determination:

Whether an employer can allege misconduct as a reason to terminate the employment of the employee without establishing the reason for the misconduct

Whether the termination of the Claimant’s employment by the Defendant was wrongful

Whether the Claimant is entitled to the reliefs sought in her statement of claims for wrongful termination

Whether the Court can depart from its rules and the Evidence Act in the interest of justice

Whether in the circumstances, the Claimant was right to hold that the termination was founded on an unproven allegations of theft and thus rendering the termination null and void

ARGUMENT

ON ISSUE 1: Whether an employer can allege misconduct as a reason to terminate the employment of the employee without establishing the reason for the misconduct

Learned Counsel to the Claimant submitted that throughout the pleadings of the Defendant, they incessantlyalleged that the Claimant perpetrated fraud against the company withoutplacing anything before the Court to prove the allegation as enshrined inthe Evidence Act, 2011. The Defendant has alleged a very serious criminaloffence against the Claimant but has blatantly failed to lead evidence to thateffect.

Learned Counsel submitted further that the right to dismiss or terminate the employment of a worker is believed to be implied in a contract of employment,however, where an employer gives reason for determining theappointment of the employee, he has a duty to proveand justify the reasonwhere the dismissal or termination is challenged. He relied on Johan NunninkV. Costain Blansevoort Dredging Ltd(1960) L. L. R. 90; Ogunsanni V. Furniture (W.A.) Company Ltd (1961) W. L. N.R. 327; OlatunbosunV. N.L.S.L.R.( 1983) 3 NWLR (Pt 80) 25 at 54.

ON ISSUE 2: Whether the termination of the Claimant’s employment by the Defendant was wrongful

Learned Counsel submitted that theexpress provisions touching on cessation of employment clause on page 8, lines 18-28 of EXHIBIT I and paragraph 5 of EXHIBIT A issued to the Claimant reads that either party reserves the right to terminate the appointment with one month notice or payment of one month salary in lieu of notice. Defendant did not adhere to the provisions of the Defendant Handbook in terminating the employment of the Claimant.

Learned Counsel submitted further that the law is now settled that where a person is accused of a criminal offence, he must first be tried in a Court of Law where allegations against him/her will be examined in public and where he will get fair hearing as set out in the constitution. Where the dismissal of a servant is based on criminal allegations, such allegation must be first proved before the dismissal can stand. He relied on Garba V. University of Maiduguri (1986) 1NWLR 550 @618; Olaniyan V. University of Lagos (1985) 2NWLR (pt9) 599.

ON ISSUE 3: Whether the Claimant is entitled to the reliefs sought in her statement of claims for wrongful termination

Learned Counsel to Claimant submitted that the Claimant has adduced sufficient evidence to establish that termination of her employment by the Defendantis wrongful, baseless and embarrassing. The Claimant tendered Exhibits A-l which established the facts that the Claimant was offered employment by Defendant and she accepted same and the appointment was terminated surreptitiously without due process under guise of fraud and based on a mysterious report from internal management panel of the Defendant and yet the Defendant has placed nothing before this Court to establish or reasonably connect the Claimant to the alleged fraud, if there was any in the first place. It is trite law that the Court should only rely on facts and avoid speculation. Learned Counsel referred Court toGeorge V. FRN (2011) ALL FWLR (Pt 554) at page 125.

Learned Counsel submitted further that the Claimant appointment was terminated without the requisite terminal benefits. The provisions of Exhibits 1 is clear on who is entitled to terminal benefits, under paragraph C of the cessation of employment clause on page 8, it states as follows:

a) A confirmed staff whose appointment is terminated or resigns his/her appointment shall be paid or be paid his/her terminal No terminal benefits shall be paid to any employeedismissed from the services.

He therefore urged the Court to grant all the reliefs sought by the Claimant.

ON ISSUE 4: Whether the Court can depart from its rules and the Evidence Act in the interest of justice

Learned Counsel submitted that in the course of these proceedings, the Defendant objected vehemently to CW1 tendering Exhibits B-l on the grounds that they are photocopies of computer generated documents. He submitted that this Court is not strictly bound to comply with the provisions of the Evidence Act and has been empowered by both its Rules and the National Industrial Court of Nigeria Act, 2006 to depart from the provision of the Evidence Act in the interest of Justice. He relied on Order 5 Rule 3 of the National Industrial Court Rules 2017 and Section 12 (2) (b) of the National Industrial Court Act 2006.

It is the submission of Learned Counsel that based on the above, it is clear that the basis for admissibility in this Court is relevance. If a document is relevant and material to the just and prompt determination of a matter, it should be admitted in evidence.

ON ISSUE 5: Whether in the circumstances, the Claimant was right to hold that the termination was founded on an unproven allegations of theft and thus rendering the termination null and void

Learned Counsel to Claimant submitted that Mr. James Akpomughe who is the Marketing Manager of the Defendant and also doubled as the Secretary of the three-man Panel constituted for the suspended staff of Calabar Outlet, deposed to an oath in a written statement that he is conversant with the facts of this case. However, he tactfully disappeared to give evidence in Court after realizing that the panel so-called was a kangaroo one.

It is the submission of Learned Counsel to the Claimant that the Panel constituted for the suspension of staff of the Defendant dated 27^thof July, 2015 sat in error as the three-man committee report which was signed by only the secretary terminating the appointment of the Claimant was null and void.

He therefore urged the Court to grant the reliefs sought by the Claimant.

DEFENDANT’S FINAL WRITTEN ADDRESS

On receipt of Claimant’s final written address, Learned Counsel to Defendant filed their final written address on 8^th May, 2019 formulating two (2) issues for determination:

Whether the failure of the Claimant to file a reply in rebuttal to the fresh and vital issues raised in the Defendant’s Statement of Defence amounted to admission of those issues

Whether prior to the termination of the Claimant’s employment, the Defendant complied with the procedures required for the proper dismissal of the Claimant.

ARGUMENT

ON ISSUE 1: Whether the failure of the Claimant to file a reply in rebuttal to the fresh and vital issues raised in the Defendant’s Statement of Defence amounted to admission of those issues

Learned Counsel to Defendant submitted that Defendant filed its statement of defence on 27-1-2016 and served same on the Claimant, raising fresh and vital issues therein which necessitated the Claimant’s response by way of a reply.The fresh and vital issues that were raised in the Defendants statement of defence were:

Paragraph 8: The Defendant states that the Claimant’s appointment was terminated properly and in full compliance with the law leading to the termination of appointment in the letter of 10^thday of Oct, 2015, prior warning explaining manifest incompetence on the Claimants part as an auditor…….

Paragraph 9: Furthermore are letters, warning letter and or query dated 17^th June, 2015, 24^th June, 2015, 20^thJune, 2015 and 10^th July, 2015 which speak for themselves suggestive of incompetence and fraud on the part of the Claimants…….”

Paragraph 11: Defendant states that at the end of the panel sitting in Port-Harcourt, the panel indicted the claimant and Mr. Amos………. recommending that their appointment…… beterminated in the face of fraud perpetrated by the manager and especially the Claimant…….

Paragraph 13:The Claimant failed woefully in her duty as an auditor to report siphoning of diesel in her report to the Defendant…

Paragraph 18: That evidence of compliant of incompetence andfraud perpetrated by Claimant abound which gave rise to various query and warming letter issued to the Claimant……….

Paragraph 19: The admission by the Claimants that she wentout of her scope of work of auditing and was involved in purchasing at Calabar outlet was a clear manifestation of fraud committed by Claimant…

Learned Counsel to the Defendant submitted that the above pleadings by the Defendant justifying the dismissal of the Claimant and thereby disentitling her from any terminal benefit and damages, were new issues which should have been denied or controverted by the Claimant by way of a reply filed by her. He relied on Oshodi V. Eyifunmi (2000) 80 LRCN P. 2886 Held 14 as follows:

A reply is necessary when due to the statement of defence theplaintiff intends to lead evidence in rebuttal

It is the submission of learned Counsel to Defendant that failure of the Claimant to file a reply to the Defendant’s pleadings is an admission of the facts pleaded by the Defendant.

ON ISSUE 2: Whether prior to the termination of the Claimant’s employment, the Defendant complied with the procedures required for the proper dismissal of the Claimant.

Learned Counsel to Claimant submitted that Claimant was employed by the Defendants as an auditor. However, rather than restrict herself to her job description, the Claimant veered off into unauthorized areas, abdicated her duty and began engaging in activities that were inimical to the interest of the Defendant.This gave rise to a query issued by the Defendant to the Claimant followed by her suspension. The suspension eventually begot a dismissal by virtue of the letter of termination of employment dated 11^th day of November, 2014.

Learned Counsel to Defendant submitted further that given that the relationship between the Defendant and the Claimant was that of a master and servant relationship, it is a legal platitude that the Defendant was entitled to terminate the employment of the Claimant even without furnishing any reason for so doing. However, where the Defendant furnished a reason for so doing, the onus is on him to justify that reason. He referred Court to Arinde V. First Bank (2004) 12 NWLR PT 888 P663 and the case of Chukwudinma V. Access Bank Plc (2015) 52 NLL (PT 176) at 519 NIC where it was held that:

In determining the rights and duty of parties to an employment contract, the court will consider the terms of contract of service between an employer and employee. These terms are binding on both parties.

On the right of an employee before his appointment is terminated, Learned Counsel referred Court to Olorutoba-Oju& 4Ors V. Abdul-Raheem & 3Ors (2009) 13 NWLR (Pt 1157) P.83where it was held @page103 as follows:

In order to justify the dismissal or termination of appointment of an employee, the employer must be in a position to prove to the Court satisfaction:

(a) That the allegation was disclosed to the employee

(b) That he was given a fair hearing

(c) That the employer believed that the employee committed
the offence after hearing witness

It is the submission of Learned Counsel that in the case herein, three criteria were in operation. Thus from pages 3 and V of the proceedings of the Port-Harcourt panel, it is obvious that the Defendant was confronted with the allegations that led to her suspension and eventual dismissal. She was confronted with the following issues:

The issue of excessive usage of gas
The issue of not taking proper inventory

iii. The issue of spoilt bags of chicken

The Claimant was given the opportunity of being fairly heard before the decision to terminate her employment was arrived at.

Learned Counsel concluded by positing that by virtue of Clause C of Exhibit C4 (Employee Handbook of the Defendant) Claimant is not entitled to any benefit having been dismissed.

He therefore urged the Court to so hold.

COURT

Having gone through the case of the Claimant, defence of the Defendant, evidence adduced in this case and the submissions of Counsel to the Claimant and Counsel to the Defendant, this Court has distilled a sole issue for determination, to wit:

Whether given the circumstances, the Claimant has proved her case to be entitled to the reliefs sought

Given the circumstances of this case, the Claimant who alleges that her employment was wrongfully terminated must lead evidence to prove:

(a) That he is an employee of the Defendant

(b) The terms and conditions of her employment

See the case of NIMASA V. Obey (2014) 2 WRN P. 83 @ 92 R. 9

In the case herein, there is no dispute that the Claimant was employed by the Defendant. As touching on terms and conditions of the employment, Claimant tendered her employment letter and the Handbook of the Defendant. With regards to the way and manner her appointment was terminated, Claimant pleaded in paragraph 8 of her Statement of Facts that …. letters of query, warning and suspension never stated any of the offence or fraud in the consequence matrix, and the alleged fraud was not investigated by an independent body, and the Claimant was not arrested by the police nor was she prosecuted by any criminal Court and found guilty before she was punished by terminating her appointment.

In a bid to drive home the message that Claimant was not prosecuted in a criminal Court of record and found guilty before her appointment was terminated, she relied on the decision of the Court in Garba V. University of Maiduguri (1986) 1NWLR 550 @618.

In paragraph 5 of the letter of employment tendered in evidence and marked Exhibit A, it states that either party can terminate the employment by giving one month notice or payment of one month salary in lieu of notice. I must pause here to say that throughout the proceedings in this case, the word ‘termination’ and ‘dismissal’ were used interchangeably. Be that as it may, the word termination, in law, connotes a different meaning from the word dismissal. A Claimant whose appointment is terminated is entitled to notice or salary in lieu of notice and other terminal benefit, if any. On the other hand, a Claimant who is dismissed from his employment is not entitled to notice or salary in lieu of notice nor is he entitled to any terminal benefit. However, given the extant legal regime where the employer is expected to contribute a percentage towards the pension of the employee and the employee also forfeits a part of his salary as contribution towards his pension, the question is whether it will be fair and just to deny the employee of his contribution towards his pension merely because he was dismissed. See generally the dictum of Mary Peter-Odili (JCA, as he then was) in Petroleum Training Institute V. Iyeke Mathew &Ors (2012) FWLR (Pt.623) 1949 where he stated thus:

I cannot see the justice in denying the employee his contribution funds under the gratuity scheme just because he has been dismissed.. The situation is so clear cut that even if the employee’s claim for wrongful dismissal, termination or retirement from service is successful or dismissed, his claim for benefits or entitlements which accrued before his dismissal, termination or retirement are always paid. This is because the entitlements accruing to the Respondents in this instance are personal to him and is akin to his savings.

(Underlining mine for emphasis)

Be that as it may, the position of Honourable Justice Mary Peter-Odili above is apt on circumstances where there is evidence of contribution both by the employer and the employee in line with the extant Pension Reform Act 2004. In the absence of such contributions, a Claimant or employee dismissed may end up going home with empty hands.

In the case herein, irrespective of the fact that the Defendant use the word termination and dismissal loosely, the document which brought an end to the relationship between the Claimant and the Defendant is Exhibit G which is a letter dated 10^th October, 2015 and titled TERMINATION LETTER. It is apposite to reproduce the words of the said letter to see if by the very words of the letter, the employment was brought to an end by termination or dismissal. The letter reads:

This is to bring to your notice that your appointment with Pepperoni Foods Limited has been terminated effective from the date of this letter.

Upon a careful consideration of the submission of the panel that investigated the alleged fraud in Calabar outlet which led to your suspension, management is officially severing your engagement with the company forthwith. You are urged to return the company’s I.D card and other items (if any) which belongs to the company that is in your possession.

We wish you success in your future undertakings.

The letter above was signed by one Eric Idogun.

With regards to the words of a document tendered in evidence before Court, the Supreme Court held in Ogundele V. Agiri (2010) 9 WRN 1 @ page 7, as follows:

Documents when tendered and admitted in Court are like words uttered and do speak for themselves. They are more reliable and authentic than words from the vocal cord of man as they are neither transient nor subject to distortion and misinterpretation but remain permanent and indelible through the ages.

Flowing from the above, this Court is of the view that Exhibit G speaks for itself and the content thereat cannot be varied by the loose use of the word termination and dismissal to connote what is stated in the content of Exhibit G. In this vein, this Court finds and I so hold that by virtue of Exhibit G, what took place and brought to an end the contractual relationship between the Claimant and the Defendant on 10^th October, 2015 was termination of employment, not dismissal as the Defendant would want the Court to believe. In this sense, the Claimant is entitled to one month notice or one month salary in lieu of notice, and I so hold.

With regards to Relief 1 of the Claimant, this Court observes that there is nowhere the Claimant pleaded that she was owed salaries in the Month of July to October, 2015. I must say that this is quite alien to what I have come to know as the practice with regards to pleadings before Court. Generally, the reliefs sought should flow from the pleadings and not the other way round. Reliefs sought should have a connect with the pleadings. In instances where the reliefs sought have a disconnect with the pleadings, there is no way the Court can grant such relief, and I so hold. What is more, in Olaniyu V. Elera (2007) 8NWLR (Pt.103) Page517 @537 – 533,it was held thus:

Parties are bound by their pleadings. Both the Plaintiff and the Defendant are bound by their pleadings. Where the Plaintiff fails to plead relevant facts that would present an opportunity for the Defendant to join issues with him, it is his own failing and is fatal to his case.

In the case herein, the Claimant, having failed to plead that she was owed salaries in the months of July – October, 2015 denied the Defendant the opportunity to join issue with her on this. Given the circumstances, Relief 1 is bound to fail, and I so hold

With regards to terminal benefit, the Claimant pointed this Honourable Court to page 8 paragraph C of the Handbook of the Defendant tendered and marked in evidence as Exhibit. The Court is minded to reproduce Paragraph A – C of the said page 8. It provides thus:

CESSATION OF EMPLOYMENT

Where the company terminates the employment contract of any confirmed employee, it shall give appropriate one month notice or one month salary in lieu of notice
Confirmed employee may withdraw his/her services from the company by writing to the HR department through his/her outlet manager giving one month notice or pay one month salary in lieu of notice
Confirmed staff whose appointment is terminated or resigns his/her appointment shall be paid his terminal benefit. No terminal benefit shall be paid to any employee dismissed from the services.

The foregoing does not reveal the criteria for choosing who qualifies for the retirement benefit none does it reveal the modality for calculating the terminal benefit. Whereas the Claimant was kind enough to point the Court to the provision above, Counsel to Claimant was economical in pointing the Court to Page 20 Paragraphs A – D which spells out the criteria and modality in calculating terminal benefit. The Court is therefore minded to produce the said Paragraph A – D of Page 20 verbatim. It provides thus:

SERVICE GRATUITY

Service Gratuity covers all employees who put in a minimum of 5years continuous service with the company
Those who abandon their employment or are dismissed will not benefit from the service gratuity
Those who resign their appointment to forestall dismissal will not benefit from service gratuity
Benefit shall be computed at five weeks basic salary for every completed year.

From a community reading of paragraph C of page 8 and paragraph A of page 20 of the Defendant’s Handbook, it is clear that not all confirmed employees are entitled to terminal benefit but only those who have put in a minimum of 5 years, and I so hold. The question therefore is whether the Claimant put in 5years before the termination of her appointment. By virtue of her employment letter which puts the effective date of her employment to be 18^th August, 2011, her 5^th year anniversary would be 18^th August, 2016. Her termination having taken effect on 10^th October, 2015, the Claimant cannot be said to be entitled to terminal benefit as she did not work up to 5 years to qualify for same, and I so hold.

On Relief 4 which is the sum of N10,000,000 (Ten Million Naira) for wrongful dismissal, this Court wishes to state that generally, in master-servant employment as in the case herein, when the Court finds the termination of the employment to be wrongful, damages will lie against the Defendant in favour of the Claimant especially given the fact that in master-servant relationship, what is done (termination of employment) cannot be undone but can be assuaged by damages.

The case of the Claimant on wrongful termination of appointment is that the procedure did not comply with what she termed as Matrix for the Peperoni Staff. I have gone through the so-called Matrix to discover that it is nothing but a tabulation of offences and punishment such offences attract. It makes no provision for procedure. If the Court were to proceed on determining how procedure was violated on the so-called Matrix, there is nothing the Court would have gotten from it as the so-called Matrix has nothing on procedure and it cannot give same. Procedure for discipline is set out in the Handbook. It is a good thing the said Handbook was tendered in evidence. The procedure for discipline and acts which amount to such discipline are covered in pages 17, 18 and 19 of the Defendant Handbook tendered in evidence. In complying with same, it is evident before me that the Claimant was given a query dated 17^th June, 2015 (Exhibit D5); a warning dated 24^th June, 2015 (Exhibit D); a two-week suspension dated 29^th June, 2015 (Exhibit E); extension of suspension dated 10^th July, 2015(Exhibit F); a hearing which took place on 27^th July, 2015 (Exhibit D1); and a termination which took place on 10^th October, 2015 (Exhibit G). Given all of this, what wonders what else the Claimant wanted.

From the facts and evidence adduced in this Court, this Court finds and I so hold that the Defendant complied with the provision of the Handbook in terminating the employment of the Claimant. On the position of the Claimant that she was not tried not found guilty of the allegation against her in a criminal Court before her termination, this Court wishes to state that that is stretching the law as stated in Garba V. University of Maiduguri (supra) beyond its boundary. The law as stated in Garba (supra) is on employment with statutory flavour. In master-servant employment, the settled law is that the employer has a right to investigate and discipline misconduct arising from the work place, which by misconduct, may contain criminal elements. See Samson Olarewaju V. Afribank (Nig) Plc (2001) 13NWLR (Pt.731) 691 where the Court held:

In a pure case of master and servant, a servant’s appointment can lawfully be terminated without first telling him what is alleged against him and hearing his defence or explanation. Similarly, a servant in this class of employment can lawfully be dismissed without observing the principles of natural justice. So, the question in a pure case of master and servant does not at all depend on whether the master has heard the servant in his own defence. It depends on whether the facts emerging at the trial prove breach of contract.

It is not necessary, nor is it a requirement under section 33 of the 1979 Constitution, that before an employer summarily dismisses his employee from his services under the common law, the employee must be tried before a court of law where the accusation against the employee is for gross misconduct involving dishonesty bordering on criminality. Where employee has been found guilty by a disciplinary committee to have committed a gross misconduct bordering on criminality, the master has a choice either to exercise his or its discretion in favour of prosecuting the erring servant or dismissing him summarily. In other words, prosecution before a court of law, in the circumstances, is not a sine qua non for summary dismissal.

(Underlining mine for emphasis)

From all that have been said above, the only wrong the Court finds in the way and manner the Claimant’s employment was terminated is the failure of the Defendant to give the Claimant one month notice or one month salary in lieu of notice.

Consequently, the Claim of the Claimant succeeds only to the extent that the Defendant shall pay her the sum of N50,000.00 (Fifty Thousand Naira) in lieu of notice of the termination of her appointment.

Judgment entered accordingly.

…………………………………..

HON. JUSTICE M.N ESOWE