JULIUS NWOKO -VS- TRANSCORP HOTELS PLC

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE KANO JUDICIAL DIVISION

HOLDEN AT KANO

Before His Lordship:-

HON. JUSTICE E.D. E ISELE – JUDGE

DATE: 21^st OCTOBER, 2019 – SUIT NO: NICN/ABJ/6/2016

BETWEEN

JULIUS NWOKO ……………………………………………CLAIMANT

AND

TRANSCORP HOTELS PLC ……………………………..DEFENDANT

REPRESENTATION: parties absent.

O.S. Obieke for the Claimant, holding the brief of Uche Ibe for the Claimant.

A.I Lawrence holding the brief of Sunday Edward for the Defendant.

JUDGMENT

The Claimant commenced this action by the writ of complaint filed on the 14^th of January 2016 and he claims as following against the Defendant

A Declaration that the purported termination of the Claimant’s contract of employment by the Defendant on the 11^th day of November 2015 is irregular, unlawful, in human, and a gross violation of the provisions of the junior team member conditions of service of the Defendant’s company and Rules of Natural Justice.
An Order of the Honourable court setting aside the purported termination of the contract of Employment of the claimant by the Defendant.
An Order of this Honourable court directing the Defendant to properly retire the Claimant in the event that the Defendant is no longer in need of the Claimant’s services.
An Order of this Honourable court directing the Defendant to pay the Claimant a sum of N10,000,000.00 (Ten Million Naira) being general damages for the untold hardship suffered by the claimant damage done to his reputation and emotional trauma caused by the wrongful termination of his contract of employment.
An Order of this Honourable court directing the Defendant to pay the claimant a total sum N7,389,846.00 (Seven Million, Three Hundred and Eighty Nine Thousand, Eight Hundred and Forty Six Naira) being the total amount due to the claimant as damages for wrongful termination of appointment and retirement benefits, in the event that the claimant’s services are no longer required.

The following was included as: particulars of special damages by the claimant.

One month basic salary in lieu of notice of termination of appointment = N49,738.00
Gratuity: 15 weeks of Gross salary for every completed year of service for 14 years =N272,017.50 x 14 years =N3.808,245.00
Movement: 4 times annual transcorp allowance =N477,600.00
One year housing allowance: N12,850.00 x 12 =N154,200.00
Payment in lieu of 6 months retirement notice N1,498,42;428.00
12 days November 2018 salary and entitlements =N69,015.00
Pension: N1,332,620.00

Grand total =N7,389,846.00 (Seven Million, Three Hundred and Eighty Nine Thousand, Eight Hundred and Forty Six Naira).

CASE OF THE CLAIMANT

It is the case of the claimant that he was employ provisionally on the 6^th of July 2001 by the Defendant by exhibit A that his employment was confirmed by the Defendant on the 19^th of December 2003 while a formal letter of Employment in exhibits A4 and A1 respectively. He avers that he was promoted by exhibit A5 on 20^th December 2004 and was a recipient of the General Manger’s Golden Handshake for meritorious service award.

He also averred that in the course of his work on the 22^nd day of October, 2015 he received an order through the purchasing manager to process the purchase of 1,2000 pieces of cotton wool. And while processing the order he considered it too high and after checking with the purchasing manager, he used his discretion to reduce the quantity to 500 (five hundred) pieces and obtained approval for same without passing the order to the supplier with the lowest bid. That this exercise of discretion attracted the wrath of management who issued him a query on the ground that he ought to have cross-checked with him before taking further action on the purchase of the cotton wool. That he duly replied the query and apologised for any (sill) oversight. He maintained that the said query was the only one he received in the course of his 14 years of meritorious service to the Defendant.

He maintained also that on the 12^th of November, 2015 the Director of Human Resources invited him to the General Manager’s Boardroom where in the presence of the General Manager and Director of Finance he informed him orally that his appointment had been terminated or in the alternative, that he should resign his appointment immediately, that he had worked for the Defendant for 14 y]ears and due for retirement in 2016 and that his retirement benefit owed by the Defendant amounts to N7,340,108.00 (Seven Million Three Hundred and Forty Thousand One Hundred and Eight Naira).

THE CASE OF THE DEFENDANT

The Defendant maintained that the claimant was a junior purchasing officer with the Defendant. The Defendant maintain that by exhibit A, dated 6^th July, 2001, the claimant was selected as a Hotel trainee and after accepting the conditions in the said letter he was offered employment as a Hotel Trainee by the Defendant by exhibit A1 dated 9^th July, 2001. And that the claimant’s employment was made subject to the terms and conditions in the said letter in exhibitA1. As well as the Defendant’s Junior Staff conditions of service, 2014.

It is also the case of the Defendant that the 0claimant disengaged from the employment of its hotel and was paid h8is disengagement benefits (including gratuity) through his Banks UBA PLC in the total sum of N3,253,504.36 (Three Million, Two Hundred and Fifty Three Thousand, Five Hundred and Four Naira, Thirty Six Kobo).

That the claimant was re engaged after being paid his disengagement benefits and was re engaged as a fresh staff of its hotel.

The Defendant also maintained that the claimant was queried by exhibit DC3 dated 5^th November 2015 for tampering with quantities of cotton wool amongst other things, and that he responded to the query and took full responsibility for the said action in exhibit “C” the reply to the query. The Defendant maintained further that the claimant had been queued on another occasion in the course of his employment being on the 18^th of January 2008 in exhibit DC2. That the Defendant by its letter to the claimant dated 18^th December, 2015, terminated 18^th December 2015 in exhibit DA, which the claimant avoid to collect the original of the letter and refused to show up his necessary clearance from the relevant departments of the Defendant’s hotel.

The Defendant maintains that subsequently the claimant’s lawyer and their lawyers exchanged letters in exhibit ‘DC’. Where upon the Defendant maintained that the claimant had been earlier disengaged from the employment of its hotel and had been paid his disengagement benefits including gratuity.

The Defendant also went forward to maintain that as far back as 26^th February, 2013 the management of its hotel and the two unions in the Hotel, the Hotel and Personal Services Senior Staff Association (HAPSSSA) and the National Union of Hotel and Personal Services Workers (NUHPSW) to which the claimant belonged had agreed to terminate and did terminate the existing Gratuity scheme and exclusively operate approved contributory pension scheme for the staff of the Defendant’s Hotel. Hotel in live with the Pension Reform Act, 2004. And that the claimants other entitlements such as unpaid salaries and services charge (if any) and basic salary in lieu of notice are to be paid whenever the claimant shows up in its hotel for clearance.

The Defendant insist that it terminated the claimant’s employment lawfully and that by June, 2016, the claimant would have only put in 3¹/₂ years in service having regard to his disengagement from service on 31^st December 2012, and it placed reliance on exhibit DBI dated 5^th June, 2013.

THE WRITTEN ADDRESS OF THE PARTIES

The Defendant’s final written address a sole issue was formulated for determination being:

“Whether the claimant has proved his case, having regard to the evidence before the court”

The claimant on the other hand formulated two issues for determination these being;

Whether the termination of the claimant’s employment by the Defendant is lawful?
What remedy is the claimant entitled to if the termination of employment is unlawful? In determination these issues and for the purpose of arriving at the justice in this case. I shall deal with issues one and two formulated by the claimant and thereafter proper an answer to the issue formulate by the Defendant for determination.

In his issue one the claimant had maintained that his main contention and claims centred on the wrongful termination of his employment with the Defendant. He stated that the binding agreement between the parties is the junior team member conditions of service of the Defendant and he insisted that parties are bound by the terms of their contract and the terms should be read as they are without embellishment that once parties enter into a contract, on no account should terms extraneous to the contract or on which there was no agreement be read into the contract, that in this case, the terms of agreement in exhibit B-B 40 stated that the claimant was entitled to one month salary in lieu of notice which the defendant has not paid him. Citing in support the case of UTUKUMAH V. SHELL (1993) 4 NWLR (pt 289) p.512. That where such a stipulation as provided for is not met the termination of the employment of the claimant would be unlawful.

The claimant also maintained that the Defendant had failed to disprove the claimants claim for continuous service for 14 years as it could not adduce any evidence to the contrary that the Defendant’s position the re engagement of the claimant was contrary to the provisions of S.10 of the Labour Act cap LI LFN 2004 on transfer to other employment. That this court should go on to hold that the transfer of the employee was unlawful.

In response the Defendant in the reply on points of law had submitted that section 10 of the Labour Act is not applicable to the claimant’s case because there is no evidence before the court that the claimant’s employment contract was transferred to another employer. That the issue of transfer of employment was not pleased by the claimant and it went to no issue relying on case of OBINECHE V. AKUSOBI (2010) 12 NWLR (pt 1208) 383 at 403 para S.C.E.

In determining this issue whether the termination of the claimant’s employment is lawful. the claimant at paragraph 9 of his witness statement on oath had stated that on 12^th November, 2015 the director of human resources invited him to the General Manager’s Boardroom where, in the presence of the General Manager and Director of Finance he had been informed orally that his appointment had been terminated or in the alternative he should resign his appointment immediately. The Defendant on its part stressed that the claimant’s employment was terminated through exhibit DA which reads:

“We regret to inform you that your services with the Transcorp Hilton Hotel Abuja are no longer required effective today, 18^th of December, 2015.

By copy of this letter, and upon successful clearance from respective departments concerned, the Director of Finance is to pay your one month basic salary in lieu of notice please hand over al hotel properties in your possession to the security after clearance….”

Now, the evidence of the claimant had been that after the said meeting where he was invited to the General Manager’s Boardroom and informed orally that his appointment had been terminated and he was asked to leave the Defendant’s premises and prevented from going back there, the Defendant on the other hand had prepared exhibit DA (cessation of employment on 18^th December 2018) which the evidence established shows that the claimant has not collected till date.

Have already read out the contents of exhibit DA, and (do not see how it has breached any terms in the conditions of service in exhibit B-B 40 regarding payment in lieu which the Defendant has undertaken to pay the claimant as soon as he literally shows upon clearance. I find it sad that this letter had been written four years ago and a matter which ought to have been closed immediately or days after it was written has been allowed to drag on for this long.

With regard to the provision of S.10 of the Labour Act, I find and do hold that there was no transfer of since as emigrated under the said provision. I hold that at all times, and in agreement with the Defendant that, the Defendant whether Transcorp Hilton or Nicon Hilton had always been the same Defendant and the claimant willing by continued to be employed with the Defendant. The issue whether the termination of the claimant was unlawful is therefore determined against him.

As to what he would get if his entitlement is unlawful. I hold straight away that what he gets is the stated amount in lieu of notice offered by the Defendant. The court having not found that the Defendant acted unlawfully. In the case of GABRIEL ATIVIE V. KABEL METAL NIGERIA LTD (2008) 10 NWLR (pt.1095) 399, (2008) 8 MJSC 82 the Supreme Court held that it had been settled in a long line of authorities that in cases of ordinary contract of employment where the terms provide for a specific period of notice before termination or salary in lieu thereof, the only remedy available to an employee who is wrongfully terminated is the award of salary for the period of the notice and other legitimate entitlements due to him at the time the employment was brought to an end. That such an employee entitled to a decree of reinstatement. See KATO V. CBN (1999) 6 NWLR (pt 607) 890.

In the present case, the termination of the employment of the claimant having been found lawful. I hold as a consequence that the sole issue formulated for determination by the Defendant, whether the claimant had proved his case must be answered in the negative. I therefore hold that the claimant has 1^st proved his case.

He is however entitled to his one month salary in lieu of notice, payable to him immediately upon delivery of this Judgment.

Judgment is entered accordingly.

There are no awards as to costs.

_____________________________

HON. JUSTICE E. D. E. ISELE

JUDGE