Toluhi Idowu Augustine -VS- Flour Mills of Nigeria Plc

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE JOS JUDICIAL DIVISION

HOLDEN AT JOS

BEFORE HIS LORDSHIP HON. JUSTICE K.I AMADI

DATED: January 31, 2020

SUIT NO: NICN/JOS/23/2017

BETWEEN:

TOLUHI IDOWU AUGUSTINE ——– CLAIMANT

AND

FLOUR MILLS OF NIGERIA PLC ——- DEFENDANT

REPRESENTATION:

Dr. H.S Arzard, S.D Lafat with A.N Musa for the Claimant

S.D Dido for the Defendant

JUDGMENT

INTRODUCTION

The Claimant commenced this case by a complaint and Statement of Claim dated 20^thOctober 2017 and filed same date. The claimant claimed against the defendant as follows:

A Declaration that the Defendant’s practice of offering yearly temporary Appointment to its staff and especially to the Claimant tantamount to casualization of its employment and that same offends good labour practice in Nigeria.
A Declaration that the impromptu termination of the claimant’s Appointment by the Defendant on 31^st May, 2017 is unconscionable, inhuman and traumatic.
A Declaration that the same day notice and/or one day salary in lieu of Notice offered the Claimant by the Defendant to terminate his appointment is unlawful, illegal and thus null, void and of no effect whatsoever.
A Declaration that the Claimant is entitled to be paid his monthly salary as Sales Officer by the Defendant in the sum of ₦65, 000 per month from 1^st June, 2017 to 30^th September, 2017 totaling the sum of ₦260, 000 and also the sum of ₦65, 000 monthly from 1^st October, 2017 until the judgment of this Honourable Court and thereafter ₦65, 000 monthly until his employment is validly or lawfully terminated by the Defendant.
The sum of N20,000,000 (Twenty million naira) only being general damages for the emotional and psychological trauma suffered by the Claimant resulting from the conduct of the Defendant.
Cost of this Action.
Four days cost
And any such sum as may be allowed on taxation for cost.

The Defendant filed a Conditional Appearance and Statement of Defence dated 4^th December 2017 and filed 5^th December 2017.

TRIAL

Hearing commenced on 2^nd November 2017. At the trial, the Claimant testified for himself as CW1 and called no other witness. He tendered in evidence documents which were admitted and marked as Exhibits CA – CF thus:

Letter of Temporary Appointment CA (7/7/2014)
Medical Examination CB
Letter of Temporary Appointment 10/5/2017 CC
Letter Terminating Temporary Appointment 31/5/2017 CD
Letter of League for Human Rights 30/7/2017 CE
Letter to Human Resources Director 10/7/2017 CF

Under cross examination, theclaimant testified that the defendant has a sales office in Jos and it is located beside Skye Bank at Murtala Mohammed Way. That he worked for the defendant in North Central that is; Nasarawa, Nigerand Bauchi states as sales officer.

He further testified that he accepted his 1^st offer of employment via mail and also accepted all the conditions of appointment. That after about 3 years of working with the defendant he was given another offer of Temporary appointment. That before receiving the said letter of renewal of offer of temporary appointment, he was working with the defendant on the impression that his employment has been confirmed or will be confirmed.

Still under cross examination, witness stated that he accepted the renewal letter after one yearthat he was not confirmed(exhibit DA), based on the fact that he complained to the Human Resources officer and was told that they were in the process of confirming his appointment and that he should acknowledge receipt of the document which he did. That he worked on the same condition for another one year and that the renewal letter contained the same terms as the initial employment letter. Thereafter Claimant closed his case.

The Defendant did not call any evidence at the trial but tendered documents in evidence through the Claimant, which documents were admitted as exhibits DA – DC thus:

Letter dated 28/7/2015 DA
Email Letter dated 16/7/2014 DB
Handwritten Letter dated 21/7/2014 DC

At the conclusion of trial parties were ordered to file and exchange their final written addresses.

FACTS OF THE CASE

It is the case of the Claimant that he was employed by the Defendant as Sales Officer in 2014 vide a letter of appointment dated 7^th July, 2014 (exhibit CA). Although the letter of employment indicated that the employment was for a period of one year, the impression created by the Defendant was that after the one-year period his employment would be confirmed. This impression was further accentuated when after the one-year period, the Defendant asked him to continue in the said employment. Rather than confirm his appointment, the Defendantgave him temporary employment letters on the same terms with the excuse that it was working on confirming his employment.That by giving him yearly employment letters, the Defendant casualized his employment.

That on 10^th May, 2017, the Defendant again gave him a letter of temporary appointment for a period of one year. However, about three (3) weeks after this letter of employment that is; on 31^st May, 2017, the Defendant gave him a letter of termination of his appointment with immediate (same day) effect and stating that in lieu of notice, the Defendant would pay him one day salary. Thus, the Claimant was forced to leave the services of the Defendant impromptu. That the impromptu termination of his appointment not only shocked but also embarrassed and dehumanized him, causing him emotional and psychological trauma and resulting in his loss of earnings.

On the other hand, it is the case of the Defendant that the Defendant terminated the Claimant’s contract effectively on 31^st May 2017 by a letter dated same day (Exhibit CD) and the Claimant was paid his one-day salary in lieu of notice as stipulated in his last renewed Letter of employment.

ADDRESSES OF PARTIES

In his final written address, the learned counsel for the defendant raised two issues for determination as follows:

Whether the Claimant’s employment was lawfully terminated following the terms of the claimant’s employment letter?
Whether the Claimant has proved that his employment on a fixed term is illegal or against any written law in Nigeria.

In arguing issue one,counsel submitted that the Claimant’s employment was legally and lawfully terminated following the terms of his employment contract with the Defendant.

That Section 11(6) Labour Act Cap L1, LFN 2004 clearly protects the contract of parties as it relates to the notice to be given in case of termination of employment and undoubtedly states that terms of the parties to the contract will prevail over any statutorily provided period of notice. That the mentioned Section 11(6) Labour Act provides thus:

Nothing in this section shall prevent either party to a contract from waiving his right to notice on any occasion or from accepting a payment in lieu of notice.

That in the instant case, it was the term of the parties’ contract as contained in Exhibit CC that either party may terminate the contract by giving a day’s notice or payment in lieu where the contract is terminated in the first month of becoming effective. For ease of reference, the paragraph 5 of Exhibit CC(last letter of renewal) is reproduced below:

This contract may terminate at anytime during the first month by either party giving one day’s notice or by paying a sum in lieu thereof. After the first month, the period of notice shall be seven days;

That applying the above to the present case, the letter of temporary employment (Exhibit CC) has effective date of 1^st May 2017 and the appointment was terminated on 31^st May 2017 (same month) by Exhibit CD. That by mathematical calculation, the employment contract lasted less than a month which by the parties’ contract entitles the Claimant to only a day’s notice or payment in lieu of notice as was done by the Defendant. That based on the arguments canvassed above, the Defendant submits that the employment of the Claimant was rightfully and lawfully terminated by payment of one day salary in lieu of notice in accordance with the terms of the parties’ contract.

In arguing issue two,counsel submitted that the Claimant has made a case that his employment on temporary basis/fixed term is unlawful, unconscionable and offends good labour practice, but failed woefully to mention a single law which supports his contention or forbids fixed term employment. That temporary employment or employment for a fixed term as in the present case does not offend any law in Nigeria.

Counsel submitted that it is position of the Defendant that the argument of the Claimant that his employment on temporal basis/fixed term is unlawful has no basis in law. It is at best a display of sentiment and the Courts have in a plethora of cases stated that sentiment has no place in law. Counsel referred to the case ofOlu Ode Okpe v. Fan Milk Plc & Anor (2017) 2NWLR [pt. 1549]282 @ 310, where the Supreme Court perMuhammad JSC stated that “in the realm of law, sentiments or sympathy have no place. It is only law and law only that should take its course”

Counsel submitted that the Claimant has argued in his Final Written Address that the belief of the Claimant was that after the first employment the Defendant will convert the Claimant to a permanent staff. In fact, the Claimant testified that having been asked to continue his employment after the one-year period of temporary appointment, it is implied that the Defendant has now confirmed the employment of the Claimant.

Counsel argued that, the above Claimant’s position is unfounded both in his letter of employment and law which are documents that regulated his employment with the Defendant. That Exhibits CA, CCand DA which are Claimant’s letters of employment clearly do not make provision on confirmation; neither do they in any way convey intention to make the Claimant a permanent staff of the Company. That it is worthwhile to state that the fact that the employment of the Claimant is for a fixed period and is stated to be renewable confirmed that there was no agreement to confirm the Claimant

Counsel submitted furthermore that, by virtue of Section 132 (1) of the Evidence Act, oral evidence is not admissible in proof of, or to add to, or in contradiction of a written document. Consequently, where a document is tendered in Court, such document is at best proof of its contents and no oral evidence will be allowed to discredit or contradict it. Counsel referred to the cases of Omoniyi v. Alabi (2004) 6 NWLR (Pt. 870) 551;andOlujinle v. Adeagbo (1988)2 NWLR (pt. 75) 238.

Based on the above, counsel submitted that the evidence of the Claimant that his understanding is that his employment will be confirmed or has been confirmed should be disregarded.That, there is no extant law/ratified Convention in Nigeria which provides that a contract for a fixed tenure will be automatically converted to regular employment upon expiration.

In conclusion counsel submitted that the Claimant’s prayer that this court make a holding that his employment on temporary basis/fixed term as unlawful, unconscionable and against good labour practice should be discountenance.

In his ownfinal written address,counsel to the Claimant, raised four issues for determination as follows:

Whether the manner in which the Defendant terminated the appointment of the Claimant was lawful.
Whether from the manner of appointments and termination of the Claimant’s employment, the conduct of the Defendant towards the claimant cannot be said to be unconscionable, and traumatic.
Whether the Claimant is not entitled to be paid his monthly salaries until his employment abates or is validly and lawfully terminated.
Whether the Claimant is not entitled to general damages for the trauma he suffered as a result of the conduct of the Defendant.

In arguing all the four issues articulated above together.

Counsel submitted that the Honourable Court shall be called upon to determine whether the Defendant’s practice of keeping an employee on yearly temporary appointment for several years is a fair labour practice. Thatfrom the evidence adduced before the court when the Claimant was first employed by the Defendant, the impression by the Defendant was that after the initial period of one year his employment would be confirmed. That this prompted the Claimant to put in so much energy to bring increased sales to the Defendant’s products and expansion to its business activities.

Counsel argued that the practice of offering the Claimant only yearly employment is unfair labour practice which negates the spirit of the Labour Act 2004. That the Defendant capitalized on the high level of unemployment in the country to promote this unfair labourpractice. That this unfair labour practice is the reason why the Defendant incorporated in the Claimant’s letter of offer of temporary appointment, (Exhibits CA and CC) a clause that the appointment could be terminated by the giving of one day notice or one day salary in lieu of notice. Counsel submitted that nothing could be more ridiculous than this as same defies any faculty of reason. That this clause is both oppressive and obnoxious.

That although under the labour law in Nigeria an employer can terminate the employment of an employee at any time, the Labour Act in Section 11(2) prescribes the period of notice to be given to terminate various categories of employment as follows:

S.11(2): The notice to be given for the purposes of sub-section (1) of this section shall be –

(a) one day, where the contract has continued for a period of three months or less;

(b)One week, where the contract has continued for more than three months but less than two years.

(d) One month where the contract has continued for five years or more.

That by the provision of S.11(4) of the Labour Act, the periods of notice specified in subsection (2) of Section 11 excludes the day on which the notice is given.

That a careful examination of the letter of termination of the Claimant’s employment (Exhibit CD) would show that the notice of termination of the Claimant’s employment was written on 31^st May, 2017 and was effective same day. Counsel queried whether the same day notice given by the Defendant to terminate the Claimant’s employment can be said to be valid? Thatassuming without conceding that the one day salary in lieu of notice offered to the Claimant by the Defendant in Exhibit CD makes the notice to be not a same day notice but a one day notice, the said notice will still not be valid in the sense that by the provision of S.11(2)(a) of the Labour Act 2004, one day notice can only be issued where the contract has continued for a period of three months or less. That from Exhibits CA and CC it is clear that the Claimant’s employment began from 7^th July, 2014 and was continuous until same was terminated by Exhibit CD. Thus the Claimant has worked uninterruptedly for the Defendant for a period of about, three (3) years before the termination of his employment. Thus, the one-day notice given to him by the Defendant is invalid.

Counsel urged the Honourable Court to find and hold that the purported notice given the Claimant by the Defendant in exhibit CD to terminate his employment is invalid and that the termination of his employment was unlawful.

Under Cross Examination the Claimant reiterated that the Human Resource Manager of the Defendant confirmed to him that the Defendant was in the process of confirming his employment which made him i.e. the Claimant to accept the renewal of his temporary Appointment. Yet again the Defendant did not call a single witness to controvert this evidence.

Counsel submitted that the offer of yearly appointment by the Defendant to the Claimant was unfair labour practice, that the court has power to declare the same day notice of termination of that employment unconscionable.

In conclusion,counsel urged the Honourable Court to resolve all the issues raised in this suit in favour of the Claimant and to grant all the reliefs(s) sought.

The Claimant filed a replyin response to the points of law raised by the Defendant in its final written address since such a Reply can only be filed by the counsel to the defendant it is hereby struck out.

COURT’S DECISION.

I have read all the processes filed by the parties in this suit. I have also reviewed the evidence presented by them. I am of the view that the all theissues raised by both parties can be summarized into one issue; that is whether the claimant is entitled to his claims in this case.Consequently, I shall treat the claims seriatim as follows:

Claims a, b, and c are declaratory in nature against the practice of issuing temporary appointment letters to the claimant, his impromptu termination and same day and or one day notice of termination given to the claimant. They shall be treated together.

From the evidence before the court there is no dispute of thefact that theclaimant was first issued a letter of temporary appointment as sales officer for a fixed term of one year starting from 7/7/2014 to end on 6/7/2015(exhibit CA). Thereafter exhibit DA shows that the claimant was issued with another letter renewing his temporary appointment on 28/7/2015 with effect from 22/7/2015 to 30/11/2015. The claimant claimed that at the expiration of the term he was allowed to be working on the impression and or promise that his employment will be confirmed. Thereafter, by another letter dated 10/5/2017 (exhibit CC) the temporary appointment of the claimant was again renewed effective from 1/5/2017 to 30/11/2017. This letter (exhibit CC) made mention of the defendant’s letter of 1/9/2016, which letter was not tendered by either party to this suit. However,by a letter dated 31/5/2017(exhibit CD) the defendant terminated the appointment of the claimant.

From the foregoing, it is obvious that from the date of issue of exhibit CA on 7/7/2014 to the date of its expiry on 6/7/2015 is a term of 1year, but the next letter was issued to the claimant on the 22/7/2015 that is 16 days after the expiration of the term first created. From the date of issue of the next letter on 22/7/2015 to 30/11/2015(exhibit DA) is a term of about 4months. However, it took the defendant up to 16/9/2016(see the reference to the letter in exhibit CC) beforeissuing its next letter to the claimant which is a period of about 10months above the term created in exhibit DA, from that 16/9/2016 to 10/5/2017 is a term of about 7months, meaning that the claimant worked for a period of about 11months. Then on 10/5/2017 the defendant yet issued another letter of renewal of temporary employment creating another term from 1/5/2017 to 30/11/2017(exhibit CC), but by a letter dated 31/5/2017, the defendant terminated the appointment of the claimant.

The question here is what exactly is the nature of the employment created between the parties? It is clear that the first offer of employment was for a fixed term of one year which the claimant completed. He gave evidence that he was asked to continue work on the ground that his employment will be confirmed.There is evidence which was neither challenged nor controverted showing that he worked continuously, for the period from his appointment in exhibit CA till the termination of his appointment (exhibit CD). After exhibit CA,the claimant worked for about 12 months before exhibit DA which created another term of about 4months.

Despite the fact that the said exhibit DA created a term of about 4months the claimant actually worked for about one year before the next letter exhibit CC, I find and hold that the claimant’s employment was on fixed terms which varied from I year to 4months, to 7months and to 6months. However, the contents of the fixed terms were not adhered to strictly by the parties, therefore it becomes ridiculous to stick to the one-day notice of termination as provided in the letter of employment if the termination is within the first month of the appointment.In the first place, the claimant worked for three years uninterrupted, therefore the three years period he worked ought to be taken into contemplation in considering the length of notice to be given to him.Even if the one-day notice of termination is applicable, the commencement day should be the day next or following the date of issuance of the notice. And where the defendant chooses to pay a day salary in lieu of notice it ought to be paid contemporaneously with the letter of termination,in the case of Chukwumah v Shell Petroleum Development Company ( Nig) Ltd (1993) KLR, vol. 5, p 93 at 94 Ratio 2 the Supreme Court held that:- “A party seeking to put an end to a contract of service that provide a particular length of notice or payment in lieu, must pay to the other party the salary in lieu of notice at the time of termination of the contract. Offering to pay salary in lieu of notice in the Letter of Termination is not enough”.

Whichever way it is looked at the termination of the claimant’s employment is therefore wrongful.

In College of Education, Ekiadolor v. Osayande[2010] 6 NWLR (Pt. 1191) 423, the court held that where a contract of service is for a fixed term, the employee cannot be removed during the period of the term contracted, except for misconduct or where the employee dies; where the contract of an employment is determined before the expiration of the term agreed, the employer shall pay the employee the full salary he would have earned for the period of the fixed contracted term. This rule is reinforced by Shena security Co. Ltd v. Afropak (Nig.) Ltd [2008] 18 NWLR (Pt. 1118) 77 where it was held that where the term of service is pre-determined at the commencement of a contract, notice may or may not be in the contemplation of the parties. In such a situation, the employee cannot be removed during the period of the term contracted except for misconduct or where the employee dies. Where the employer determines the contract before the expiration of the term agreed, the employer shall be made to pay the full salary the employee would have earned for the unexpired period of his fixed contractual term. Since exhibit CC created a term from 1/5/2017 to 30/11/2017, that is for a period of 7months and his appointment was terminated within the same month, I hold that he is entitled to his salary for the entire 7 months period created by exhibit CC which is hereby granted.

It is very important to state that the claimant was employed as a sales officer and certainly outside the definition of a worker by section 91 of the Labour Act. The said provisions of section 11 of the Labour Act heavily relied upon by the claimant are therefore in applicable to the claimant as he was not employed in the category of workers covered by the Labour Act which are limited to workers engaged in manual and clerical work, see the case of Evans Brothers (Nig) Publishing Ltd v Falaiye (2003) 13 NWLR (Pt.838) 564.

Another disturbing fact is the issuing of numerous letters of temporary employment to the claimant which have the same content but creating various fixed terms which terms were no observed by the defendant. The claimant has submitted that it was intended to deny the claimant from being confirmed as a permanent staff of the defendant. While the defendant posited that there is nothing unlawful with that act. I have found that the claimant worked for the defendant from the period of appointment until termination spanning 3 years. Since the defendant did not stick to the period created in the various letters of employment as issued to the claimant, I hold that the act of issuing letters of temporary employment over a period of 3years denying the claimant an opportunity to be converted to permanent and confirmed staff is in itself an unfair labour practice to which the claimant is entitled to damages. In view of the provision of section 19(d) of the National Industrial Act 2006, I award N1,000,000 thereof.

In respect of claims d and e these claims primarily are asking for the salary of the claimant from the date of termination and general damages.Since this case is a pure case of master and servant relationship, reinstatement is not a remedy for wrongful termination of employment. I have already granted the claimant his salary for the unexpired term of his employment and damages for unfair labour practice consequently these claims are hereby refused.

In respect of claims f, g and h I hold that the claimant is entitled to the cost of this suit which I access as N100,000.

In all, I made the following orders:

1) The defendant shall pay the claimant the sum of N455,000 being his salary for the unexpired 7months term of his contract.

2) The defendant shall pay the claimant the sum of N1,000,000 being compensation/ damages for unfair labour practice.

3) The defendant shall pay the claimant the sum of N100,000 being the cost of this suit.

4) The defendant shall pay all monetary awards in this judgment on or before 30dayshence failing which they shall attract 10% interest per annum until they are fully liquidated.

Judgment is entered accordingly.

…………………………………………….

Hon. Justice K. I. Amadi, Ph.D.

Judge