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National Industrial Court

Mrs. Elo Victor Ogbondah -VS- Total E & P Nigeria Limited

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT AKURE

BEFORE HIS LORDSHIP HONOURABLE JUSTICE K.D .DAMULAK

DATED THIS 17TH  DAY OF JANUARY 2020

                                                                                    SUIT NO: NICN/ABJ/18/2019

BETWEEN

MRS. ELO VICTOR OGBONDAH                         CLAIMANT

AND

TOTAL E& P NIGERIA                                                       DEFENDANT

 

REPRESENTATION:

Deji Morakinyo Esq. for the claimant

Adeyinka Aderemi Esq. for the defendant

 

                                                            JUDGMENT

  1. INTRODUCTION

By a General form of Complaint filed on the 29th January 2019, accompanied by all the processes required by the Rules of this Court, the claimant claims against the defendant the following reliefs;

  1. A Declaration that the purported termination of the employment of the claimant on the basis that the claimant failed or refused to give the defendant a 2-months prior notice of resumption from leave of absence was irregular, ultra vires, unconstitutional, null and void as same is alien and unknown to the defendant’s extant policy and procedures which became effective on 14th of January 2016.
  2. A Declaration that the defendant violated Article 9 of the “Collective Agreement” it entered into with the Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASSAN) to the effect that the defendant company shall formally discuss any disciplinary action to be taken against the claimant, as well as other PENGASSAN members which may result in suspension, termination and dismissal.
  3.  A Declaration that the claimant is entitled to the sum of N500,000,000.00k [Five Hundred Million Naira] being the sum computed and mutually agreed to by the claimant and the defendant respectively as representing the buy-out/monetization of the anticipated outstanding/remaining years of service of the claimant in the defendant’s employ.
  4. An Order of this Honorable Court directing the defendant to pay the claimant, the sum of N500,000,000.00k [Five Hundred Million Naira ] being the a sum computed and mutually agreed to by the claimant and the defendant respectively as representing the buy-out/monetization of the anticipated outstanding/remaining years of service of the claimant in the defendant’s employ.
  5. An Order of this Honorable Court awarding N800, 000,000.00 [Eight Hundred Million Naira] Only against the defendant company as general damages for unceremonious and untenable termination of the employment of the claimant, thereby aborting the claimant’s promising career in the lucrative Nigerian oil and gas industry, as well as exposing the claimant and her family to untold embarrassment and avoidable financial constraints.
  6. An Order of this Honorable Court awarding interest of 10% per annum on the total judgment sum from date judgment is delivered in this suit till the judgment is finally liquidated by the defendant.

The defendant filed a statement of defence accompanied by all the processes required by the Rules of this Court via a motion filed on 29/4/2019.

  1. FACTS OF THE CASE.

The claimant was employed by the defendant in 2008. She was terminated in 2014 but after negotiations, she was reabsorbed and posted to PENGASSAN office in Port-Harcourt on leave of absence with pay for 3 years from 18th September 2014 to 7th August 2017.

In July 2017 she was terminated for failure to give 2 months notice of her intention to resume work at her station. After negotiations to monetise her outstanding years of service at five hundred Million Naira, the defendant did not pay the requested monetisation and the Ministry of labour made the same recommendation but the defendant refused to pay. The defendant claims that it has already paid the claimant her terminal benefits, that is what led to this case.

  1. CASE OF THE CLAIMANT

The claimant testified as CW 1 on 24/6/2019 in line with the statement of facts as follows;

She joined the services of the defendant company in 2008 till the termination of her employment in 2017. The facts leading to the termination of her employment by the defendant started way back in 2014 when the defendant transferred her from Port-Harcourt office to Lagos office of the defendant Company. Her ensuing victimization by the management of the defendant company was occasioned by claimant’s activities as Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASSAN) unionist. The Nigerian National Petroleum Corporation (NNPC) intervened, in the course of mediating, the defendant offered that she should be transferred to PENGASSAN office in Port-Harcourt on a leave of absence with pay  for three (3)  years effective 18th September 2014 which was expected to lapse 7th August 2017.

The defendant forwarded a letter dated 8/8/2016 to the claimant informing her of her resumption date which was expected to lapse on the 7th August 2017. However, by a letter dated 19th July 2017, less than a month to the expiration of her leave of absence, the defendant terminated her employment on the excuse that she failed to comply with a purported condition/requirement of defendant’s policy by not giving a 2-months prior notice of her resumption whereas there is no definite provision  or article in the defendant’s policy requiring the giving of  two months’ notice of resumption of leave or stipulating or spelling out any punishment or penalty for not doing so.

That the defendant company violated Article 9 of the Collective Agreement entered into with PENGASSAN in that the defendant did not discuss the disciplinary action to be taken against her.  That in a bid to resolving the controversy surrounding her termination, the TOTAL Local branch of PENGASSAN requested the National body of PENGASSAN to wade in and broker amicable resolution, consequent upon which a round-table  held between PENGASSAN and management of the defendant company and a decision was reached that the defendant should monetize/buy-out her outstanding number of years. Her outstanding number of years in the employment of the defendant was calculated to be 17 years on the basis of which the defendant’s management requested the TOTAL Local branch of the PENGASSAN to calculate and compute what she would have earned were she to be in its employ for the said next 9 years. The sum of One Billion, One Hundred and Ninety Four Thousand, Forty-Four Naira and Two Hundred and Ninety Eight Kobo [N1,194,044.298] was proposed by  PENGASSAN as representing her anticipated outstanding number of years in the defendant’ employ. She further stated that the defendant company negotiated that the above sum be reviewed downwards, a request which TOTAL Local branch of the PENGASSAN acceded to and same was thus reduced to the sum of Five Hundred and Sixty Million, Five Hundred and Eighty One Thousand, Three Hundred and Ninety Naira, Thirty Seven Kobo (N560,581,390.37). That the above sum was scientifically computed and arrived at using indices and parameters such as claimant’s remaining number of years in the defendant’s employ, the claimant’s monthly salary and emoluments, claimant’s annual gross emoluments, benefits , health and welfare packages.

The defendant failed to pay her the said sum.

The matter was latter reported to the Ministry of Labour for governmental intervention for which she and the defendant had been attending meetings and making wide consultations with stake holders and receiving evaluations of evidence from parties, that the Ministry recommended that the defendant company should pay the sum of Five Hundred Million Naira [N500,000,000.00] as Claimant’s full entitlement and damages /buy-out of her anticipated/outstanding number of years.

That the idea of monetizing /buying -out the outstanding number of years of service of employees whose employment are terminated is a process in the defendant’s company, thus not novel. That a precedence was set years back when the defendant monetized /bought back the anticipated number of years remaining for a particular employee whose employment was irregularly terminated.

That however, all entreaties to the defendant and to its Paris, France Office  at some point on the need to pay her the said sum for wrongful termination of her employment and monetization of her anticipated number of years have fallen on deaf ears. She concluded that the action of the defendant is antithetical to good labor practice and the irregular termination of her employment has truncated her lucrative career in the Nigeria oil and gas industry.

 

Testifying further in reply to the statement of defence, claimant stated that the notice of her transfer from Port-Harcourt to Lagos was  received by her two(2) days after the expected commencement date. That based on this fundamental flaws, she wrote three (3) letters to the defendant informing it about these fundamental breaches. She continued that she never absented herself from work for any extended period for that matter.  The purported two (2) month is alien to the extant policy of the defendant which became operative on 14th January 2016. The 2012 Policy which contained the purported 2 months’ notice was reviewed and the defendant came up with the extant 2016 Policy, same which supplanted the obsolete 2012 policy. That the purported “Related Document” referred to by paragraph 3 of the defendant 2016 policy was the 2012 Absence Procedures and not 2012 Policy as suggested by the defendant.  She responded that the Total branch of PENGASSAN did not intervene out of its own volition but on the basis that the defendant beached the “Collective Agreement”. The defendant did not object or reject the decision/proposal to monetize her outstanding years of service. That at the said reconciliation meeting of the 1st March 2018, the defendant has unequivocally requested for the Federal Ministry of Labour and Employment’s guidance and direction on the figure demanded on her behalf by PENGASSAN. That the Federal Ministry of Labour and Employment had a follow up meeting  with both parties on 22nd March 2018 and informed parties that after due consultation with relevant stakeholders and through consideration of all the factors, the sum of N500,000,000.00 was recommended  by the ministry to be paid by the defendant. She also stated that her annual earning was accurately calculated based on her last Pay –slip. That  the crux of her suit is not whether any terminal benefits were paid but the unlawful termination of her employment. She also averred that the purported sum paid to her as terminal benefit was transferred to her account but she has made frantic efforts at returning same.

She tendered 15 documents which were all admitted and marked by the Court as Exhibits EV1 to EV15.

Under Cross-examination, the claimant stated that Exhibits EV3 and EV7 are part of her contract employment with the defendant and that she is claiming for the monetization of the years she should have spent with the defendant that is not confirmed in Exhibits EV3 and EV7. She stated that she was not the only one transferred in 2014. The Negotiation for the sum of N500,000,000.00 was between PENGASSAN and the defendant on her behalf. That the Ministry of Labour made a recommendation that N500,000,000.00 should be paid to her but the defendant  did not pay. The matter was referred to the Industrial Arbitration Panel (IAP) by the Minister of Labour. That she tried to make representation at the IAP but it was not accepted on her name that the name referred was PENGASSAN and Total E&P. The recommendation of the Minister was struck out. That when her employment was terminated, the defendant transferred some money to her account but it was not labeled terminal benefit, but the defendant sent her a letter that the payment was her terminal benefit. That her employment was terminated in July 2017, but she cannot confirm if the money was paid in July 2017, that her lawyer wrote a letter offering to refund the money to the defendant after the ADR failed in 2018. Her level as at the time of termination was Grade level 8.

  1. CASE OF THE DEFEDANT

One Sam Nkwo, a Deputy General Manager Employee Relations & Benefits in the defendant company, testified as DW1 on 25/6/2019. His testimony is as follows;

That it was well within their right to transfer staff from one of its offices to another therefore the transfer of the claimant to another office was not a breach of its policies. That her re-assignment and transfer was done for her career development and she was not the only one affected. That upon receiving a transfer notice from the defendant and after several queries were issued to her, she refused to re-deploy to Lagos from Port-Harcourt. She absented herself from work without requesting/obtaining official leave or approval to do so and she did not respond to the query issued to her during that period, it was upon this that her employment was terminated.

That there were series of conciliatory meetings  with the Ministry of Labour, Nigerian National Petroleum Corporation  on the claimant’s termination for her refusal to be transferred from Port-Harcourt office to Lagos Office, however upon series of pleadings and intervention, it  exercised its discretion upon  special disposition to re-engage her and this was conveyed vide  a letter dated 15th January 2015 and one of the conditions for re-engagement was that she will proceed immediately on leave of absence for three(3) years from 18th September 2014 to 7th August 2017 and this was to enable her give full attention to  PENGASSAN matters. The defendant agreed to the payment of her basic salary during the entire period of the leave of absence, but this was a special disposition and departure from its standard policy that provides that no salary is paid during the period of an employee’s leave of absence.

The defendant notified the claimant on her resumption date by the letter dated 8th August 2016. However, it terminated her employment upon the breach of Article 7.7.2 of its 2012 and 2016 Absence Policy by failing to give two months’ notice of resumption. That in the absence of a specific punishment or penalty stipulated in the Absence Policy, the defendant reserves the right to take whatever action it deems appropriate upon the breach of its policies which governs the claimant’s employment relationship.

That in accordance with Article 9 Clause 3 of the Collective Agreement, it has the right to terminate the employment of any staff who fails to comply with its code of conduct. That the proposal by PENGASSAN and Ministry of labour that the claimant’s outstanding number of years should be monetized/bought out for Five Hundred Million Naira on the basis that her employment was wrongfully terminated was out rightly objected and rejected by the defendant.

 

That the idea of monetizing or buying out anticipated years of an employee is not the usual practice of the defendant and completely strange to the claimant’s contract of employment. That the defendant position all through the period it was involved in conciliatory meetings was that the employment of the claimant was lawfully terminated and it expressly rejected PENGASSAN’s proposal and suggestion, maintaining that there was no basis, contractual or otherwise for the sum computed to be paid her.

That the defendant fulfilled its obligations regarding the claimant’s terminal entitlements which was paid immediately her employment was terminated and was accepted by her without any objection. That it has no obligation whatsoever to pay the sum calculated for the claimant’s anticipated years of service as claimed. That it is equally inconsequential whether the Minister of Labour and Employment made any recommendation whatsoever as the said recommendation was not binding on the defendant. The defendant maintained that contrary to the claimant’s assertion, the claimant’s employment was lawfully terminated and she is not entitled to any further sum of money asides what has been paid as her terminal benefits.

That it was premised on the defendant’s objection and rejection of both the calculation and recommendation, that the Minister referred the dispute to the Industrial Arbitral Panel (IAP). That the reference to the IAP itself by the Minister is a fact that the recommendation is not binding, that it was eventually jettisoned. That the claimant made her representations to the IAP, filed her application to be joined in the proceedings, but as a result of PENGASSAN’s position before the IAP that no trade dispute was declared against the defendant, the IAP struck out the reference at its second sitting on the 13th August, 2018. That the recommendation of the Minister of Labour became void upon the Minister’s reference of the dispute to the IAP.

That although the defendant received the letter from the claimant’s solicitor but responded to same that it was not liable to any further payment to the claimant aside the terminal benefit already paid.

That the claimant suppressed the fact that upon the said termination of her employment by the defendant, her terminal benefits were calculated and paid into her bank account immediately in July 2017, the total sum of N11,007,729.70 (Eleven Million, Seven Thousand, Seven Hundred and Twenty-Nine and Seventy kobo) was paid to the claimant as her entitlement and terminal benefits, hence her claim is frivolous and her entire suit should be dismissed.

DW1 tendered 48 documents which were admitted in evidence and marked as  Exhibits SN1-SN48.

 

Under cross-examination, DW1 stated that the employment of the claimant was terminated on the ground that she did not give two months prior notice of her resumption from leave of absence. The leave of absence procedure 2012 is not Leave of absence Policy 2012. He stated that the defendant has a leave of absence procedure 2012 which was made pursuant to the policy. That the leave of absence policy of 2012 was reviewed in 2016 and was given the same number. He stated also that the Absence Procedure of 2012 was incorporated into the 2016 Policy. That the reference to related documents in paragraph 3 of Exhibit EVO6 is a reference to 2012 Procedure. That Exhibit EVO 6 is the extant 2016 Policy. He stated further that the requirement of 2 Months’ notice of resumption from leave of absence is not in the 2016 Policy, that the 2016 Policy does not provide for any punishment for failure to give two (2) Months’ notice of resumption from leave of absence. That failure of give 2 months’ notice of resumption from leave of absence is not listed as an offence in Paragraph 7.6 of Exhibit EV015. That the recommendation of Five Hundred Million Naira (N500,000,000) on behalf of the claimant in Paragraph 13 of her statement of claim and witness statement on oath was made by Federal Ministry of Labour. That the defendant did not request for the Federal Ministry of Labour on what to pay to the claimant after the rejection of the proposed Five Hundred Million Nair (N500,000,000). He stated that he cannot confirm if the company had in the past monetized the outstanding years of service of any employee and it is not correct that the defendant held series of meetings because a procedence had earlier been established by the defendant on settlement for pre-mature termination. That the series of meetings the defendant attended was for the purpose of resolving the grievance of the claimant.

It is not correct to say that the only time leave of absence can lead to termination of employment is where the employee chooses to resign his employment in the course of leave of absence.

 

  1. FINAL WRITTEN ADDRESS OF DEFENDANT’S COUNSEL.

The defendant counsel filed his final written address on the 13th September, 2019 and formulated four (4) issues for the determination of the Court as follows:

  1. Whether the termination of the claimant’s employment with the defendant company was wrongful?
  2. Whether in the unlikely event that the Court finds that the termination of the claimant’s employment was wrongful, the claimant’s claim before the Court discloses a reasonable cause of action?

iii.               Whether the collection of terminal benefits by the claimant would be a bar to the subsequent challenge of an alleged wrongful termination?

  1. Whether the claimant is entitled to any of the reliefs sought in this suit?

On issue one, defendant’s counsel submitted that case law is trite as to the conditions that ought to be satisfied before the termination of employment can be wrongful, he cited the case of OKOMU OIL PALM OIL V. ISERHIENRHIEN [2001] 6 NWLR (PT.710) 66- AT P8-9. He maintained that the claimant’s employment with the defendant is not statutory and the Court will consider purely the terms of the contract of employment. UBN V. SOARES [2012] 11 NWLR (PT1312) 550 AT 568. He submitted that in the instant case, the claimant was employed by the defendant but however, she has failed to prove that there is breach of the terms of the contract of employment. He contended that there is an exit clause option granted to both parties to the effect that upon confirmation of the claimant’s employment either party upon termination may give one month notice or payment of one month’s basic salary in lieu. The claimant in her pleadings and evidence before this Court has not shown that this express provision has been breached. Counsel also placed reliance on Section 11 (1) (2)(d), (3),(6) and (9) of the Labour Act 2010.

 

It is the further submission of counsel that the Collective Agreement does not confer any individual right upon the clamant and same does not govern the Claimant’s leave of absence and subsequent termination of her employment. That an employee may terminate a contract of employment for any reason. OBAJE V. N.A.M.A. [2013] 11 NWLR (PT.1365) 286 AT 305, TEXACO (NIG.) PLC V. KEHINDE [2001] 6 NWLR (PT.708) 224 AT 239.

Counsel submitted that from paragraph 3 of the defendant’s 2016 Absence Policy, the 2012 Absence Procedure was incorporated as Related document, and provides that employees returning from leave of absence for union activities should give 3 months’ notice prior to resumption, both the 2012 and 2016 Absence Policies and Absence Procedure therefore co-exist to regulate the defendant’s relations with its employees, including the claimant at the said time. That by the claimant’s own admission under cross-examination, the absence policies formed part of her contract of employment. Also that in accordance with Article 9 Clause 3 of the collective agreement, the defendant reserves the right to terminate the employment of any staff who flagrantly fails to comply with regulations and the company considers him unsuitable to be in its employment. The Claimant admitted her knowledge of the policy in Paragraph 13 of her statement of facts but claimed that there is no specific and definite provision or article spelling out any punishment or penalty for not giving the purported 2 months’ notice of resumption of leave. That the defendant in terminating the employment gave reasons for the termination expressly stating that it was due to her refusal to give the required 2-months prior notice which amounted to willful disobedience to instructions and hence misconduct.

 

On issue two, Counsel argued that the defendant’s policy and procedures 2016 did not repeal or abrogate the 2012 Policy and Procedure, that both the 2012 and 2016 procedures are extant. That moreover the claimant did not place before the Court any document showing that the 2012 policy and procedure was no longer valid, therefore the onus lies on the claimant to prove the assertion that the extant policy and procedure is 2016 and not 2012. Reliance was placed on the cases of UKEZIRIGBO OKIRI V. IFEAGHA &ANOR [2001] F.W.L.R (PT.73) 140 AT 142, UZOKWE V. DANSY INDUSTRIES [2002[ 2 MJSC 37 AT 46. It is the further submission of counsel that the Court has no business or power to look outside the documents containing the terms of employment, that parties are bound by the contract lawfully entered and executed. In relation to this case, he stated that claimant did not show how the terms and condition of employment were breached. Counsel contended further that the purported buy-out /monetization of the anticipated outstanding remaining years of service of the claimant in the defendant’s employment is unknown to the defendant and its policy and procedure document. He continued that the claimant under cross-examination admitted that she did not directly negotiate the purported buy-out/monetization of the anticipated outstanding/remaining years of service of the claimant with the defendant, that PENGASSAN negotiated on her behalf, and the clamant failed to call any member of PENGASSAN present at the negotiation to testify for her, that the said piece of evidence is at best hearsay evidence which is not admissible. Counsel also contended further that Exhibit EVO1 is not admissible because the maker of the document was not called in evidence. And that the claimant has no reasonable cause of action on this issue.

 

On issue three, it is the submission of counsel that the claimant has no legal right to challenge the termination of her employment or to make any further claims on the defendant, she has impliedly accepted her termination, he placed reliance on the case of MOROHUNFOLA V. KWARA STATE COLLEGE OF TECHNOLOGY [1990] 4 NWLR (PT.145) 506. That the defendant upon the  termination of the claimant’s employment paid the total sum of Eleven Million, Seven Thousand, Seven Hundred and Twenty-Nine Naira. And Seventy Kobo (N11,007,729,70) as her full and final settlement  from the defendant consequent  upon  which both parties ended their contract.  Counsel continued that the claimant testified during cross-examination that she had written to the defendant in an attempt to refund the entitlement benefits paid to her, that however, there is no document, no bank draft, no email, no letter or any other document written or issued by the claimant immediately rejecting or stating her non-acceptance or refund of the terminal benefits, that even the purported letter written by the claimant’s solicitor in 2018 to refund the money was not placed before the Court by the claimant. He submitted further that by the admission of the receipt of the payment of the sum of Eleven Million, Seven Thousand, Seven Hundred and Twenty-Nine Naira and Seventy Kobo (N11, 007,729) as her terminal benefits, claimant  is stopped, by conduct, from contending that her termination was wrongful or that she was not properly terminated.  That the acceptance renders the determination to be mutual. ANTER V. UNICAL [2007] 3 NWLR (PT.700] 239 AT 257, MAGAMIJE V. OTTO [2016] 13 NWLR (PT.1529) 171.

On issue four, it is the submission of counsel that the claims for special and general damages must be pleaded and cogent evidence must be led to support them. GABRIEL ATIVE V. KABELMETAL NIG. LTD  (2008) 9 NSCR VOL.1 P. 42. He continued further that in the event of wrongful termination, claimant will only be entitled to salary in lieu of notice and other allowances payable and no more. That the claimant was paid one-month salary in lieu of notice as well as her terminal entitlements under the employment, resulting in no breach whatsoever by the defendant. Counsel also argued that the claim for the payment of 500,000,000.00 as buy out is not based on any evidence or agreement with the defendant.

Counsel stated that damages is not awarded in the air, that it must follow established right which the defendant must have breached. He continued that the defendant did not breach any known right of the claimant under the contract of employment. Moreso, the claimant’s claim for damages has not been proven. Counsel concluded that the Court should not look outside the terms stipulated or agreed upon in deciding the rights and obligations of parties.

 

  1. FINAL WRITTEN ADDRESS OF CLAIMANT’S COUNSEL

The Claimant’s counsel on the other hand filed his final written address on the 30th September 2019, and formulated four (4) issues for the determination of the Court as follows:

  1. Whether the purported termination of the claimant’s employment on the basis that the claimant failed or refused  to give a 2-months’ prior  notice of resumption from leave of absence was not irregular, wrongful, null and void as same is alien and unknown to the defendant’s extant and operative 2016 Policy and Procedure.
  2. Whether from the entirety of the case of the Claimant as constituted, same can be said to have disclosed no reasonable cause of action

iii.               Whether the defendant did not breach the explicit provision of Article 9 of the Collective Agreement executed between the Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASSAAN) , an association the claimant belonged to and  the defendant company to the effect that the defendant shall formally discuss any disciplinary action to be taken against the claimant which may result in suspension , termination and dismissal.

  1. Whether from the totality of evidence adduced at trial by the claimant, both oral and documentary, the claimant is not entitled to the payment of the sum of N500,000,000.00 [Five Hundred Million Naira] only being a sum computed and mutually agreed to by the claimant and the defendant respectively as representing  the years of service of the claimant in the defendant’s employ, as well as the sum of Eight Hundred Million Naira [N800,000,000.00] only against  the defendant company  as general damages  for the unceremonious and untenable termination of the employment of the claimant, thereby aborting the claimant’s promising career in the lucrative Nigerian Oil and gas industry , as well as exposing the claimant and her family to untold embarrassment and avoidable financial constraints.

On issue one, Counsel submitted firmly that the reason stated by the defendant as purportedly grounding the claimant’s termination is untenable in law. That there is no specific and definite provision stipulating any punishment for not giving the purported 2 months’ notice of resumption of leave of absence. He continued that Exhibit EV06 which regulates and guides leave of Absence does not suggest or indicate that any staff of the defendant company on leave of absence must furnish a 2 months prior notice of his or her intention to resume from his/her leave of absence. That in the same vein, the disciplinary policy tendered in Exhibit EVO 15 which guides and regulate the discipline of erring staff members of the defendant explicitly enumerates and spells out in an unmistaken fashion, the various offences and infractions that would warrant the defendant company to resort to disciplinary action against such erring employees and the respective punishments. Counsel argued further that nothing suggest that  failure to give 2 months’ notice before returning from leave of absence amounted to an infraction. He stated that the 2012 Procedure could not have been incorporated in the 2016 Policy. That Exhibit EVO 6 by implication supplanted the obsolete 2012 Procedure. The Claimant’s counsel also submitted that in considering the relationship between the employer and the employee, the Court is not expected to look elsewhere except the document comprising the contract of service. UBN LTD V. EDET [1993] 4 NWLR (PT.287) 88 AT 300 PARAS D-E; BFI GROUP CORP V. BPE [2012] 18 NWLR (PT,1332) 209 AT 238 -239. Counsel therefore urged the Court to consider the unchallenged, credible evidence led by the claimant and to resolve the issue in favour of the claimant by holding that the purported termination of the claimant’s employment on the basis that claimant failed or refused to give the defendant a 2 months prior notice of resumption from leave of absence was wrongful.

On issue two, counsel submitted that the defendant was misguided by submitting that the case of the claimant discloses no reasonable cause of action. He continued that having regard to the facts set out before the Court, the claimant has established that her contract of service has been breached to the effect that there is no specific provision spelling out any purported punishment for not giving the purported 2 months’ notice of resumption. That the case of the claimant discloses a reasonable cause of action. NICON INSURANCE CORPORATION V. OLOWOOFEYEKU [2005] 14 WRN -208.

Claimant’s counsel on issue three submitted that the defendant company flagrantly violated Article 9 of the Collective Agreement (Exhibit EV7) it entered into with PENGASSAN to the effect that the defendant shall formally discuss any disciplinary action to be taken against claimant, which may result in suspension, termination and dismissal, he relied on Article 9(3) of Exhibit EV7. That the defendant is estopped from refusing to be bound by the provision of Exhibit EV7, Counsel cited Section 169 of the Evidence Act and the cases of A.G RIVERS STATE V. A.G AKWA IBOM [2011] ALL FWLR (PT.579) 7023 AT 1054-1055 SC, CHUKWUMA V. IFELONYE [2009] ALL FWLR (PT.460) 629 AT 653, MABAMIJE V.OJO [2016] 13 NWLR (PART 1529) PARAS D-F, PAGE 191.

On issue four, Counsel submitted that consequent upon the series of meeting between the management of the defendant company on the one hand and PENGASSAN on the other hand on behalf of the claimant, a decision was reached by the two parties that the defendant company will monetise or buy-out the anticipated outstanding number of years of the claimant in the defendant company, that the anticipated outstanding number of years was calculated to be 17 years. It is the contention of counsel that the idea of buying out or monetizing the anticipated outstanding years of service of employee whose employments are terminated abruptly is a process in the defendant’s company  as disclosed in Exhibit EV1. Counsel submitted further  that the local branch of PENGASSAN submitted a proposal of the sum of One Billion, One Hundred and Ninety-Four Million, Forty-Four Thousand and Two Hundred and Ninety Eight Naira [N1,194,044,298] which was downward reviewed to the sum of Five Hundred and Sixty Million, Five Hundred and Eighty One Thousand, Three Hundred ad Ninety Naira, Thirty Seven Kobo [N560,581,390]. That after thorough consideration with stakeholders and receiving and evaluating evidence from parties, the Federal Ministry of Labour recommended the defendant to pay the sum of N500,000,000.00. Counsel noted that the defendant partook in the conciliatory meetings as shown in Exhibit EV9 and the claimant requested Federal Ministry of Labour for guidance on the sum demanded by PENGASSAN on behalf of the claimant (paragraph 9 of Exhibit EV9). Counsel therefore submitted that the defendant is estopped from contesting Exhibit EV9. That parties were ad idem on the buying out and monetizing of the anticipated outstanding number of years of the claimant’s employment. Counsel noted further that Exhibit EV9 speaks for itself, reliance was placed on Section 128 of the Evidence Act, AGBRAREH V MIMRA [2008] 2 NWLR (1071) 378 AT 410-411, PARA H-B. Counsel also observed that Exhibit EV9 is a prima facie and conclusive proof of the claimant’s claim for Five Hundred Million Naira [N500,000,000.00] recommended and mutually agreed upon by the claimant and the defendant hence the  claimant’s claim holds. He concluded by submitting that the Court should also grant the Claimant’s claim for damages and the issues be resolved in favour of the claimant.

  1. REPLY ON POINTS OF LAW BY DEFENDANT’S COUNSEL

The defendant filed a Reply on Point of law to the claimant’s written address on the 21st October 2019. He argued that a claim for declaratory relief must be on the strength of the claimant’s case and not the weakness of the defendant. Reliance was placed on the cases of GANKON V. UGOCHUKWU CHEMICAL INDUSTRIES [1993] 6 NWLR (PT.297) 55, ADELAJA V. FANOIKI [1990] 2 NWLR (PT 131) 137, AYANRU V. MANDILAS LTD [2007] 10 NWLR (PT.1043) 462.

On whether the claimant’s case disclose no reasonable cause of action,  Counsel argued that the claimant’s claim cannot succeed on the weight of the evidence as Exhibit EV1 does not prove that the total sum calculated as the outstanding years of service of an employee was paid out, that the claimant failed to lead evidence to support this assertion. Furthermore, on the argument of the claimant that the defendant breached the provisions contained in Article 9 of the collective agreement, Counsel responded that Article 9 contains no form or substance as to how the formal discussion is to be conducted to serve as conclusive evidence of a decision.  Counsel therefore submitted that the claimant has failed to prove any essential ingredient of estoppel, also that the defendant had at no time made any representation that it would pay any sum recommended by PENGASSAN to the claimant. That the recommendation made by Exhibit EV9 was rejected and therefore Exhibit EV9 itself is inadmissible. Counsel placed reliance on the case law authorities of GOODWILL TRUST INVESTMENT LIMITED V. WITT & BUSH LIMITED [2011]  8 NWLR 500. Section 112 and 113 Evidence Act 2011.

On whether the claimant is not entitled to the sums claimed, counsel responded that the claims are baseless, having not worked for the period she is claiming, he cited the cases of ARTA INDUSTRIES NIGERIA LTD V. N.B.C.I [1998] 4 NWLR (PT.546) AND AGU V. GENERAL OIL LTD [2015] LPELR-24613 SC. Counsel concluded by urging the Court to dismiss the suit of the claimant, that the claimant had already received terminal benefits in the total sum of N11,007,729.70 (Eleven Million,  Seven Thousand, Seven Hundred and Twenty Nine Naira and Seventy Kobo] sometimes in July 2017.

  1. ISSUES FOR DETERMINATION

The issues formulated for determination by both counsels has been reproduced in full above. Upon a thorough and careful evaluation of the processes filed before this Court by both parties, the testimonies of the witnesses and written submissions of both counsels, it is my humble view that the following three issues will best determine this suit:

  1. Whether the termination of the claimant’s employment with the defendant company was wrongful, null and void.
  2. Whether the claimant is entitled to the sum of N500,000,000.00 as monetization/buy out for her outstanding number of years of service.
  3. Whether the collection of terminal benefits by the claimant would be a bar to the subsequent challenge of an alleged wrongful termination?

 

  1. COURT’S DECISION

Before delving into the substance of the issues for determination, it is necessary to address some germane issues raised by counsels in their written addresses.  Firstly, it is the contention of the defence counsel in paragraph 3.3.7 of his written address that the claimant cannot rely on the letter of recommendation of the Honorable Minister of Labour and Employment Exhibit EVO 9 in view of the fact that it was not certified in accordance with Section 109(a) iii of the Evidence Act 2011 being a public document. Counsel submitted further in paragraph 3.3.9 of his written argument that the fact that he did not object to the tendering of the document goes to no issue. That objection can be raised at any time or even suo motu by the Court.

 

This document was pleaded, front loaded and tendered in evidence without objection. By the facts of this case, it is a relevant document. The defendant did not deny the document in any way. By section 12(2)(b) of the National Industrial Court Act 2006 and order 5 Rule 3 of the 2017 Rules of this Court, the court can depart from the provisions of the Evidence Act or the Rules in the interest of justice. This is one such situation where this court can depart, particularly that the defendant did not object to the admissibility of the document when it was being tendered. see ONYENWE &ANOR V. ANAEJIONU [2014]LPELR-22495 (CA); CHIEF BRUNO ETIM &ORS V. CHIEF OKAN UDA EKPE &ANOR [1983] 2 SC 12 AT PAGES 36-37; AMINU V. HASSAN (2014) 5 NWLR (PT.1400) 287; SHITTU V. FASHAWE (2005) 14 NWLR (PT.946) 671; AND  OMEGA BANK (NIG.) PLC V. OBC LTD (2005) 8 NWLR (PT.928) 547. The document accordingly remains admitted in evidence as marked.

 

  1. Whether the termination of the claimant’s employment with the defendant company was wrongful, null and void

It is the contention of the claimant’s counsel that the reason stated for the purported termination of claimant’s employment is not tenable and therefore lacks legal substratum, she accordingly prays for a declaration that the purported termination of the employment of the claimant was irregular, ultra vires, unconstitutional, null and void as same is alien and unknown to the defendant’s extant policy and procedures which became effective on 14th of January 2016.

It is also the contention of the claimant that her termination was wrongful because the defendant breached the explicit provision of Article 9 of the Collective Agreement executed between the defendant and Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASSAAN) because the defendant did not formally discuss any disciplinary action to be taken against the claimant which may result in suspension, termination and dismissal.

The defence counsel on the other hand argued that the Collective Agreement does not confer any individual right upon the claimant and same does not govern the Claimant’s leave of absence and subsequent termination of her employment. That Article 9 contains no form or substance as to how the formal discussion is to be conducted to serve as conclusive evidence of a decision. Also that in accordance with Article 9 Clause 3 of the collective agreement, the defendant reserves the right to terminate the employment of any staff who flagrantly fails to comply with regulations and the company considers him unsuitable to be in its employment.

 

The defence argues that the company’s procedure gives effect to policies and both rank pari passu. That the defendant’s policy and procedures 2016 did not repeal or abrogate the 2012 Policy and Procedure, that both the 2012 and 2016 policies are extant procedures. He submitted that it is within the discretion of an employer to impose any punishment as provided in its condition of service for act of misconduct by employee.

It is also the contention of the defence that being a private employment, in view of the payment of salary in lieu of notice and terminal benefits, the termination cannot be said to be wrongful but mutual.

 

The first point of call is to determine whether the collective agreement between the defendant and PENGASSAN applies to the claimant’s individual contract of employment. The position of the law is that a collective agreement will not be held to apply to an individual worker unless it is incorporated into his terms of employment.

Article 2 of the collective agreement, exhibit EV7, provides as follows;

The terms of this agreement shall apply to all the company’s senior staff who are financial members of the association and shall form part and parcel of their condition of service.

It is therefore clear that the collective agreement forms part and parcel of the claimant’s condition of service. The collective agreement therefore applies to the claimant as an individual employee and she is entitled to rely on and enforce same.

On the alleged breach of article 9 of the collective agreement, it is needful to reproduce the portion of article 9 relied upon by both counsel and they are Articles 9 and 9(3) and they provide as follows;

9.The association recognizes the right of the company to discipline staff for infringement of company regulations. However, the company shall formally discuss with the association any disciplinary action to be taken against the members which may result in suspension, termination or dismissal.

9(3) In addition, the company reserves the right to terminate the employment of any staff who flagrantly or repeatedly fails to comply with the company’s code of conduct or commits an offence of a magnitude that the company considers him unsuitable to be in it employment.

It is not denied, the fact that the termination of the claimant was not discussed with PENGASSAN, the termination was a response to a purported violation of the company’s policy. It is the view of this court that going by the reason given for the termination, which is alleged violation of company policy, whether the allegation is true or false, the action of the company is properly covered by article 9 (3) and it does not amount to a violation of article 9. In any event, article 9 which did not make such discussion a condition precedence for validity, did not state the consequence of failure to formally discuss with PENGASSAN. The consequence of nullity sought to be imposed by the claimant is not borne out of the said collective agreement.

The defendant counsel in his final written address placed heavy reliance on the Absences Procedure 2012 in terminating the claimants employment as forming part of the Absence Policy of 2016 relied upon by the claimant.  By exhibit EV4, the termination was punishment for failure to comply with the company policy on leave of absence. Paragraphs 2 and 3 of exhibit EV4, dated 19/7/2017 read as follows;

By the company policy on leave of absence which has been available on CMS for several years, you were required to give two months notice prior to your resumption date of August 7, 2017 stated in the letter. We did not receive this letter as expected, and indeed have not received it up till now.

Following your failure to comply with the policy on leave of absence, we hereby inform you that your employment with the defendant is hereby formally terminated with immediate effect.

The absence procedure of 2012 was not particularly tendered in evidence by the defendant. The claimant attached the said document to the 2016 absence policy, (exhibit EVO6).  By paragraph 3 of the 2016 policy, the 2012 absence procedure is stated to be part of the absence policy as a related document; that probably explains why it was simply attached to the 2016 policy as one document. Paragraph 7.7.2 of the 2012 absence procedure provides that the employee will inform the GM, HR in writing before the expiration of the leave of absence stating his desire to return to full employment.

 

I find it to be true that the requirement of two months notice to resume from leave of absence is part of the 2016 policy, exhibit EV06. This requirement to give two months notice of resumption from leave of absence was not complied with by the claimant.

 

Learned defendant’s counsel submitted that it is within the discretion of an employer to impose any punishment as provided in its condition of service for act of misconduct by employee.

I find that the termination of claimant’s employment was within the terms of employment by virtue of article 9(3) of the collective agreement. The termination was accordingly, not wrongful.

The claim for wrongful termination fails and is dismissed.

 

In the event that the court is wrong in finding that the termination was not wrongful, the court shall now proceed to consider the 2nd and 3rd issues.

 

2.Whether the claimant is entitled to the sum of N500,000,000.00 as monetization/buy out for her outstanding number of years of service.

The basis of the claim for N500,000,000.00 as monetization/buy out is not that it is the law nor is it the policy of the defendant but that the defendant had set a precedence for this. This is what the claimant said;

That the idea of monetizing /buying -out the outstanding number of years of service of employees whose employment are terminated is a process in the defendant’s company, thus not novel. That a precedent was set years back when the defendant monetized /bought back the anticipated number of years remaining for a particular employee whose employment was irregularly terminated.

The defendant on the other hand contends that  the idea of monetizing or buying out anticipated years of an employee is not the usual practice of the defendant and completely strange to the claimant’s contract of employment.

This contention of the claimant that the defendant had set a precedence for this is by implication an invocation of the doctrine of legitimate expectation. The claimant’s counsel did not specifically use this expression but he pleaded and relied on facts to this effect. I doubt if this point is worth the consideration of this court in the circumstance of this case, seeing that the defendant is not a public authority.

In the event it is applicable in a limited liability company as the defendant herein, the position of the law is that the fact that a public authority has been acting in a given way does not in itself amount to the law, such action on the part of the public authority does not serve as an estoppel so as to preclude it from acting otherwise for good reason and also such action on the part of the public authority is usually superseded or frustrated by the operation of statute and the operation of the policy is a matter of fact. See FEDERAL BOARD OF INLAND REVENUE v. HALLIBURTON (WA) LIMITED (2014) LPELR-24230(CA).

In this case, the singular event relied upon by the claimant cannot be said to constitute a precedence nor transform into a policy binding on the defendant and enforceable by the claimant. More so, in relation to the singular event relied upon as an example, by the evidence of the claimant; the defendant in that case accepted that the said Mr. Abayomi was wrongfully terminated, though that fact is not on exhibit EV1 tendered in support. There is no evidence in this case that the defendant ever accepted that it wrongfully terminated the employment of the claimant.

Exhibit EV1, the alleged evidence of the said monetization and buy-out,  (though it has nothing on it to show that it emanated from the defendant), does not say anything in relation to monetization of outstanding years of service or buy-out. The document, which is titled STATEMENT OF PERSONAL ENTITLEMENTS /INDEBTEDNESS, shows that the said Orenuga Abayomi was born on 13/5/1955, he was employed on 1/8/1979 and his date of cessation of employment is 31/7/2012 while mode of exit is simply stated as “early retirement”. The fact of the said monetization and buy-out is not on this document. This document fails to establish the averment of the claimant.

 

The claimant contends that Five Hundred Million Naira has been agreed upon and also recommended by the Ministry for Labour. This also implies that the defendant had in fact conceded that the termination was wrongful.

The defendant denies ever conceding that the termination was wrongful. It denies ever accepting or agreeing to the suggestion to monetize or buy out but that it was its rejection of the recommendation that led to the Minister for labour referring the matter to the Industrial Arbitration Panel (IAP) and that the matter was subsequently struck out.

The claimant admits that the matter was referred to the (IAP) and later struck out. In my view, this confirms the fact that the recommendation for monetization/buy out was rejected and I agree with the counsel for the defendant that the referral of the matter to the IAP means the negotiation had collapsed or failed. There is no evidence on the record that the defendant admitted in fact that the termination was wrongful (supposing that the termination was wrongful in law, which this court has found otherwise), nor that the monetization/buy- out was agreed upon by both parties. The fact that the issue was later referred to the IAP for arbitration is proof of disagreement and failure of negotiations.

The claimant accordingly fails to establish the fact that the said sum was agreed upon as monetization/buy-out.

The claim for the sun of N500,000,000.00 as monetization/buy -out fails and is dismissed.

 

3.Whether the collection of terminal benefits by the claimant would be a bar to the subsequent challenge of an alleged wrongful termination?

 

The defendant also raised an issue that the claimant did not properly respond to. The defendant avers and contends that upon termination, it paid the claimant her one month salary in lieu of notice and her terminal benefit in the sum of N11, 007,729.70 (exhibits SN23, SN31 and SN33). Defence counsel then submitted that the acceptance of the terminal benefits by the claimant renders the termination mutual and the claimant can no longer complain. It is also the contention of the defence that being a private employment, in view of the payment of salary in lieu of notice and terminal benefits admitted by the claimant, the termination cannot be said to be wrongful.

 

The claimant’s response in her reply is that the crux of her suit is not whether any terminal benefits were paid but the unlawful termination of her employment. That the purported sum paid to her as terminal benefit was transferred to her account but she has made frantic efforts at returning same. The evidence of such frantic effort is not before the court. Exhibit SN40 is dated 25/6/2018 and according to the claimant, that was after the ADR failed in 2018.

She also testified under cross examination as follows;

That when her employment was terminated, the defendant transferred some money to her account but it was not labeled terminal benefit, but the defendant sent her a letter that the payment was her terminal benefit. That her employment was terminated in July 2017, but she cannot confirm if the money was paid in July 2017, that her lawyer wrote a letter offering to refund the money to the defendant after the ADR failed in 2018.

The position of the law is settled that in a master/servant employment relationship, where the servant employment is terminated, even if wrongfully, once the employee accepts terminal benefits, he cannot sue for wrongful termination. This is probably why the claimant who was paid her terminal benefits in August, 2017 as per exhibits SN23, SN31 and SN33, offered to return same in June 2018 after the ADR failed in order to claim for wrongful termination against the defendant; unfortunately, this is too late because the position remains that she has accepted her terminal benefits. See

GERAWA OIL MILLS LTD V. ABDULKADIR MANZO BABURA (2018) LPELR-44720(CA) where the court held;
 

Furthermore, it is trite that where an employee receives his terminal benefits after his contract of employment has been brought to an end, he cannot be heard to complain later that his contract of employment was not properly determined. This is because the receipt of payment by the employee renders the termination mutual.

Similarly, in IMPERIAL MEDICAL CENTRE & ANOR v. MRS. GEORGINA AHAMEFULE (2017) LPELR-42886(CA), the court held;

In the case of Julius Berger v. Nwegwu (2005) 12 NWLR (995) 518 it was held that where a party received his terminal benefits after his employment was brought to an end, he cannot be heard to complain later that his contract of employment was not properly determined. The acceptance of payment renders the determination mutual and estoppel by conduct operated to disqualify the party from claiming or obtaining any benefits based on improper determination of his employment. See also Anter v. Unical (2007) 3 NWLR (700) 239 @ 257.
Since the Respondent admittedly, was paid and she received the payment of her three (3) months’ salaries and her other entitlements under the employments by the Appellants, she is in law not entitled to claim and obtain other benefits based on the termination of the employment, which by her acceptance of the payments, was mutual.

I accordingly find that by accepting her terminal benefits in August 2017, the termination became mutual and the claimant is estopped from claiming that her termination was wrongful. The claim fails and  is accordingly dismissed.

On her claim for N800, 000,000.00 (Eight Hundred Million Naira) Only against the defendant company as general damages , it is trite that general damages is awarded in view of the consequential wrong occasioned by the act complained of,  See UNITY BANK V. ONWUDIWE & ANOR (2015) LPELR-24907 (CA). Having held that by accepting her terminal benefits, the termination became mutual the claimant can no longer be entitled to damages for wrongful termination. Therefore, I find that the claimant’s claim for damages in the sum of N800, 000,000.00 (Eight Hundred Million Naira) fails and is dismissed.

 

10.COURT ORDER

On whole, and for the avoidance of doubt, I find that the claimant’s case fails in its entirety and consequently, same is hereby dismissed. I make no order as to cost.

This is the Judgment of the Court and it is entered accordingly.

 

 

 

            HON. JUSTICE K.D. DAMULAK

                                                JUDGE

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