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ISMAILA ALI-ALHASSAN HAMIDU -vs- SKYBLUE SERVICES NIGERIA

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

 

 

BEFORE HER LORDSHIP     HON. JUSTICE E. A. OJI, PhD

DATE: MONDAY APRIL 9TH 2018                            SUIT NO. NICN/LA/371/2017

 

BETWEEN:                                                             

ISMAILA ALI-ALHASSAN HAMIDU                                        –           CLAIMANT

AND

SKYBLUE SERVICES NIGERIA LIMITED                             –           DEFENDANT

 

 

Representation:

OmotolaRotimi, with BolanleOdunlami appears for the Claimant;

WA Esan appears for the Defendant.

 

JUDGMENT

 

On 4th August 2017, the claimant commenced this suit via the General Form of Complaint and statement of facts (accompanied by list of witnesses, witness statement on oath, list of documents and copies of the documents) and claimed the following reliefs against the defendant:

  1. A Declaration that the Claimant had worked for the Defendant for thirteen years as a causal worker from 2004 without being issued a letter of employment is unfair and unlawful Labour Practice.
  2. A Declaration that the summary dismissal of the Claimant via a letter dated the 4thof May, 2015 is devoid of fair hearing.

iii.                A Declaration that the Claimant purported summary dismissal is Null, Void and wrongful.

  1. A Declaration that the purported summary dismissal of the Claimant is contrary to the provision of Article 7 of the International Labour Organisation Convention of 22nd June 1982.
  2. A Declaration that the non-remission of the Claimant Contributory Pension from 2004 – 2010 is unjust and unfair labour practice.
  3. A Declaration that the irregular payment and remission of the Claimant Contributory Pension from the 24th November 2010 is unfair labour practice.

vii.              An Order compelling the Defendant to pay the entire accrued outstanding contributory pension into the Claimant Retirement Saving Account.

viii.            An Order compelling the Defendant to remit the Claimant employer and employee contributory pension into the Claimant Retirement Saving Account.

  1. An Order compelling the Defendant to pay the Claimant 30 months gross salary as damages for breach of the Claimant labour rights, exploitation and unfair labour practices.
  2. An Order of the Honourable Court directing the Defendant to pay the Claimant general damages in the sum of Two Million Naira for the wrongful termination of the Claimant employment
  3. The cost of this action.

In reaction, the defendant entered formal appearance vide the memorandum of appearance and then filed its statement of defence, list of witnesses, defendant’s witness statement on oath, list of documents and copies of the documents.

Claimant’s Case:

The Claimant opened his case on 24th October 2017 when the Claimant testified in chief for himself.  He adopted his written statement on oath dated 4th August 2017 as his evidence in chief.  The witness tendered 10 exhibits and 9 were admitted and marked as exhibits C1 to C9.  The case of the Claimant as revealed from his pleadings is that he was a porter and an employee with the Federal Airport Authority in 2002.  In 2004, the Management of Federal Airport Authority transferred the entire ex -employee of Federal Airport Authority to the Defendant.  He was absorbed by the management of the Defendant in 2004 as a porter.  He was not issued a letter of employment by the Defendant, despite several oral requests.  He continued to work as a casual employee from 2004 to 4thMay2015 with the Defendant without being issued an employment letter. That during his employment in 2004 to 24th November, 2010 the Defendant was not remitting his monthly contributory pension.  In November 2010 the Defendant commenced deduction and remission of his contributory pension but were not remitting the contributory pension regularly into his Retirement Saving Account till the 4thof May, 2015 when he was wrongfully dismissed by the General Manager of the Defendant Mr TosinShopitan vide a dismissal letter dated the 4th May, 2015.  He was not given an opportunity to defend the allegation made by the Defendant against him before he was issued a dismissal letter contrary to Article 7 of the International Labour Organisation Convention of 22nd June 1982.

Defendant’s Case:

The Defendant opened its case on 7thNovember 2017.  YetundeOkutade, Head, HR and Admin of the defendant testified on behalf of the defendant.  He adopted his written statement on oath dated 11th September 2017 as his evidence in chief.  Witness tendered 3 exhibits which were all admitted and marked as exhibit D1 – D3 (D3A – D3N consisting of 14 documents showing deposits of Claimants pension contribution).  The case of the Defendant is that contrary to Claimant’s testimony that he was not issued an offer letter,that the Claimant was issued an offer letter dated 5th December 2003 which he duly acknowledged; upon being inherited from the Federal Airport Authority of Nigeria (FAAN) in 2003. That contrary to Claimant’s claim, his full pension contribution for the period 2004 to 2010 has since been duly remitted to the pension account of the Claimant. The Defendant states that the Claimant’s full pension contribution was regularly remitted into his Retirement Saving Account. That the Claimant’s full pension contribution for November 2010 was remitted on the 8th of November 2010 and not on 24th November 2010; full pension contribution for December 2010 was duly remitted on the 27thof January 2011; full pension contribution for the period May 2011 – August 2013.  Defendant paid in other pension remittances as tabulated below:

S/N MONTH/YEAR DATE OF REMITTANCE OF PENSION
1 January 2014 7th March, 2014
2 February 2014 23rd April, 2014
3 March 2014 21st May, 2014
4 April 2014 3rd July, 2014
5 September 2014 31st January, 2016
6 October 2014 1st February, 2016
7 November 2014 14th April, 2016
8 December 2014 25th April, 2016
9 January 2015 25th April, 2016
10 February 2015 25th April, 2016
11 March 2015 25th April, 2016
12 April 2015 25th April, 2016
13 May 2015 25th April, 2016

 

That the Defendant could not have remitted Claimant’s pension for the months of June 2015 to 2016 due to the fact that the Claimant was dismissed from the employment of the Defendant in May 2015.

Defendant states that the Claimant was dismissed by a letter dated 4th May 2015, and prior to his dismissal, the Claimant had on a number of occasions received several oral warnings.  That the General Manager of the Defendant Company saw the Claimant during the commission of the act of gross misconduct, for which the Claimant was dismissed.

The Submissions of the Defendant:

At the close of trial, Defendant filed his Final Written Address on the 16th of November 2017, which Final Written Address was adopted on 18th January 2018.  In it, Learned Counsel for the Defendant identified four issues for determination as follows:

(i)                 Whether or not the claimant’s employment was lawfully terminated.

(ii)               Whether or not the Claimant’s full pension contribution for the period January 2004 to May 2015 has been fully paid.

(iii)             Whether or not the Claimant is entitled to the payment of 30 (thirty) months gross salary as damages.

(iv)             Whether or not the Claimant is entitled to award of general damages in the sum of N2, 000, 000.00 (To Million Naira) or indeed any form of damages whatsoever.

Counsel argued that the witness (Claimant) testimony is not credible.  He gave the following instances, among others:

  1. a)He said he was not given a letter of appointment, whereas he was given a letter as tendered by the Defendant;
  2. b)When he was asked whether somebody from his family had worked in the defendant company, and he said ‘nobody’, only to later accept that one of his brothers had worked with the defendant company and his father;
  3. c)His ability to read the oath and his statement that he could not read out from his witness statement on oath;

Counsel referred to the case of Mr.AbiodunOgunde v. AlhajaMemunatAbdulsalam(2017) LPELR – 41875 and the case of Falowo v. Banigbe&Ors(2007) LPELR-11850 (CA) where Adekeye JCA (As he then was) at page 33 held that:

Credibility of the oral testimony of witnesses is an important aspect of adjudication, if the credibility of a witness is destroyed, the evidence he has given loses cogency and probative value.

On issues 1 and 3, Counsel submits that in determining whether or not the dismissal of the claimant was unlawful, the court can only look at the contract of employment that exists between the claimant and the defendant, which he submits is regulated by exhibits D2 (the letter of employment) and C2 (the Defendant’s staff handbook) –Olaniyan v. University of Lagos (1985) LPELR-2565 (SC).  He submits that Clause 5 of exhibit D2 captioned ‘Probation and Termination’ provides for the terms of Claimant’s contract as follows:

You will be on probation for a period of six weeks. On confirmation of your employment, one month salary in lieu thereof will be required should either party decide to terminate the employment contract.

Termination of this contract is instant if you are caught engaging in any act of misdeeds.

In W.A.E.C. V. Oshionebo (2006) LPELR-7739 (CA) Aderemi J.C.A at Page 15- I 6, Paragraphs E-A on the fundamental principles that govern master and servant relationship held as follows:

“Before I go on to consider the arguments by the parties for and against allowing this appeal, I will like to state here the fundamental principles that govern master and servant relationship. It is now beyond any argument, indeed the law is on a firma terra that in a master and servant relationship, which is devoid of statutory flavour, as in the instant case going by the reliefs sought, and which is purely contractual, as in this case, the termination of the employment of an employee by the employer cannot be wrongful unless it is in breach of the terms and conditions of the contract of employment.”

In Nugunum&Ors. V. Cheveron Nigeria Ltd. (2014) LPELR-24088(CA) Abubakar JCA at page 27-28 paragraphs F-A on the basis of what an employee who complains of wrongful termination of employment should be, held as follows:

Again a servant who complains of wrongful termination of employment must found his claim on the contract of service, and show in what manner the terms were breached. The contract of service is the bedrock of any claim for wrongful termination. It is the duty of the Claimant not the employer to prove that termination was wrongful. See: Amodu v. Amode(1990) 5 NWLR (Pt. 150) 356, Kattov. CBN (1999) 6 NWLR (Pt. 607), Okomu Oil Palm Co. Ltd v.Iserhienrhien(200 I) 6 NWLR (Pt. 710) 660.

In the case of Idoniboye-Obu V. N.N.P.C. (2003) 2 N.W.L.R. (Part 805) 589 where the Supreme Court per Uwaifo J.S.C held as follows:

… Under the common law, an employer is entitled to bring the appointment of his employee to an end for any reason or no reason at all. So long as he acts within the terms of the employment, his motive for doing so is irrelevant.

In view of the above, Defendant submits they can summarily terminate the employment of the Claimant in line with Clause 5 of Exhibit D2.

In the case of Union Bank of Nigeria Plc V. Soares (2012) LPELR-80 18(CA), gross misconduct on the part of an employee was defined by his Lordship, Okoro J.C.A at Page 26 – 27, Paragraphs G – B as follows:

The conduct of an employee which constitutes gross misconduct, without much ado, attracts summarily dismissal. Gross misconduct has been identified as a conduct that is of a grave and weighty character as to undermine the confidence which should exist between an employee and the employer. Working against the deep interest of the employer amounts to gross misconduct entitling an employer to summarily dismiss an employee. See Olaniyan v. University of Lagos (1985) 2 NWLR (Pt.5) 17; Sule v. Nigerian Cotton Board(Supra).

In Cadbury Nigeria Plc. -V- Olubunmi O. Oni (2012) LPELR-19821 (CA), his Lordship, Saulawa J.C.A on the issue whether an employer is at liberty to dismiss an employee summarily for gross misconduct and on what constitute gross misconduct held at Page 25, Paragraphs D -F as follows:

“Indeed, it’s a settled common law principle, that an employer has the liberty or right to dismiss the employee thereof summarily, for gross misconduct. However, what constitutes a serious or gross misconduct of an employee is a question of fact and degree. The misconduct in every given circumstance must be such as to undermine the relationship of trust and confidence supposedly existing between the employer and the employee. See Nworosiv. ACB (1995) 6 NWLR (pt. 404) 658; 686 paragraph D; Yusufv. UnionBank(1996) 6 NWLR (pt. 457) 632; 648 paragraph B.”

According to the Claimant’s Letter of Dismissal – Exhibit C6, the General Manager of the Defendant Company caught the Claimant in the act of gross misconduct and was consequently dismissed in line with the policies of the Defendant. They state that the Claimant has not rebutted this.  Again, The Defendant’s Staff handbook – Exhibit C2 listed examples (although not exhaustive) of acts classified as gross misconduct and included ‘touting’ as an act of gross misconduct –  Clause 16.3 (at page 16 of Exhibit C2 )

 

The Defendant’s witness categorically stated during the course of Cross-Examination that the Claimant was caught in the act of gross misconduct by the General Manager of the Defendant Company. Furthermore when asked ‘Was the Claimant given an opportunity to state his side of the case?’ The Defendant’s witness in response stated ‘Yes, the same day he was caught in the act, that was on 1st May, 2015’.

Defendant also argues that the Claimant is not entitled to 30 months gross salary on the ground that an employer has a right to dismiss his employee summarily for gross misconduct.  He referred to the Supreme Court decision in the case of UBN Limited V. Ogboh (1995) LPELR-3387 (SC), where his Lordship, Iguh J.S.C held at Page 34, Paragraphs C -E as follows:

” … where an employee is guilty of gross misconduct, and this has been defined as conduct of a grave and weighty character as to undermine the confidence which should exist between the employee and his employers or working against the deep interest of the employer, he could be lawfully dismissed summarily without notice and without wages.”

Defendant argues that in view of the above decided cases, there is clearly no justification for the payment of 30 months’ salary particularly in view of the fact that the Claimant was dismissed in line with the Defendant’s Staff handbook – Exhibit C2 and Exhibit C6.

On the allegation of non-payment of claimant’s pension for specified months, Defendant submits that the full pensions for the periods had all been paid, with proof of payments.

On whether or not the Claimant is entitled to award of general damages in the sum N2,000,000.00 (Two Million Naira) (Issue 4), Defendant contends that the Claimant from his Statement of Facts, Witness Statement on Oath and even during the course of Trial failed to establish reasonable grounds to warrant his entitlement to the said sum as damages. That generally, under an employer and employee relationship, the remedy of damages available to an employee is restricted to the contract of employment, which is usually payment in lieu of notice. However, the Claimant was dismissed for gross misconduct therefore he cannot be entitled to any payment whatsoever. Relying on the Supreme Court case of Ekunolav.CBN &Anor.(2013) LPELR- 20391 (SC), per his Lordship, Chukwuma-Eneh J.S.C Defendant argues that where an employee’s dismissal is founded on the allegation of gross misconduct the appellant is not entitled to any notice or salary in lieu of notice nor to  the payment of damages.Defendant submits that the Claimant has failed in all respects to establish his claim for the reliefs sought as per his Complaint and Statement of Facts dated 4th August 2017.

 

The Submissions of the Claimant:

In response to the Defendant’s Final Written Address, Claimant filed his on 7th December 2017.  In it, he raised three issues for determination:

  1. Whether the Claimant was afforded fair hearing prior to his summary dismissal by the Defendant.
  2. Whether the Claimant is entitled to a declaratory relief for unfair and unlawful labour practice. If the answer is in the affirmative, whether the Claimant is entitled to 30 months gross salary as damages for breach of the Claimant labour right in the sum of (N503,070.00) Five Hundred and Three Thousand Seventy kobo .
  3. Whether the Defendant has complied with the remission of the Claimant’s Contributory Pension into his Retirement Saving Account as stipulated by the provision of the Pension Reform Act 2014.

Respecting Issue 1, Counsel argued that Exhibit C2 (Staff Handbook) governs the employment of the Claimant and the Defendant.  He referred to the case of Shell Petroleum Development Co V Chief Sunday Olarewaju (2008) LPELR -3046 (SC) where the Supreme Court per Talabi J.S.C (Pp 25 -26, Paras (C­A) held that:

“In case of this nature, the employee who was dismissed otherwise punished for gross misconduct need not prove that the proceeding of the domestic panel that investigated him were prejudicial to him, it is sufficient that it might. The risk of any prejudice is enough. This was the principle reiterated in Olatunbosun V N.I.S.E.R (Supra).  InGarav. University of Maiduguri (1986) 1NWLR 550 at 618, the S.C said of this principle thus the court will not inquire whether such evidence or representation did work to the prejudice of the person being investigated. It is sufficient that it might .The risk of it is enough .In B Surunder of Malasia (1962) AC 322 at 337 , the Privy Council spoke of the principle thus: It follows, of course, that the judge or whoever has to adjudicate must not hear evidence being(sic) the back of the other. The court will not inquire whether the evidence or representation did work to his prejudice sufficient that they might to do the court (sic) will not go into the likehood of prejudice. The risk of it is enough”

They argue that “Exhibit C2″ has established the procedure and guideline for dismissal ( page 15 (16.1) and that the Defendant has acted “contrary without adopting a reasonable approach for the alleged wrongful act of the Claimant and therefore deprived the Claimant fair hearing and remove any shadow of element of bias”.

Claimant submits that it has been held that in an action for wrongful dismissal/termination of appointment, the main issue calling for determination or in contention are: whether the dismissal is in accordance with the terms and conditions of the contract of employment between parties.

Claimant further argued that when an employee complains that his employment was wrongfully terminated, he has the onus (a) to place before the court the terms of the contract of employment and (b) to prove in what manner the said terms were breached by the employer. It is not the duty of the employer as a defence in an action brought by the employee to prove any of these facts Okomu Oil Pam Co V Iserhierhien (2001) 5 NSCQRB 802.

On whether the Claimant is entitled to a Declaratory Relief for Unfair and Unlawful Labour practice and to 30 months gross salary as damages, Claimant contend that during Cross Examination he did testify in Court that “There was no agreement or letter of appointment as a permanent staff when I joined the Defendant Company” and that all his years in the employment of the defendant was as a casual worker.Claimant argue that assuming without conceding that Claimant accepted and acknowledged “Exhibit D2” from the Defendant, it is a well-established fact that Claimant has not benefited from the terms and conditions of Exhibit D2. He argued that though Defendant informed the court that Claimant signed a duplicate copy of “Exhibit D2,” that Defendant refused to tender it in evidence rather what DWl tendered before the court is an unsigned copy of “Exhibit D2”.

Claimant contends that he was in employment for 12 years of dedicated and meritorious years of service with the Defendant during which he was denied all the privileges of promotion, leave bonus, transport allowance etc. and that he was not given any benefit either as a casual employee or as confirmed employee which procedures contravene best International Labour Practice.

Claimant further argues that a careful look at Exhibit D2 will reveal that Claimant did not append his signature on Exhibit D2 it was only signed by Defendant’s General Manager and Director. He argues that it is the law that unsigned and undated document has no evidential value .Global Soaps & Detergent Ltd V Nafdac (2011) ALLFWLR (Pt 599) 1025@ 1047 per NdukweAnyanwu J.C.A (Para B).Also My Lord any document which ought to be signed and is not signed render its authorship & authenticity doubtful – Nwanchov. Elem (2004) ALL FWLR PT 225) 107

On the credibility of Claimant as CW1, Claimant argues that it is not every inconsistency that is enough to destroy the credibility of a witness; that it is any evidence so materially at variance with the pleading in the sense that they both cannot be reconciled (or which has notable Internal/conflicts) that the court will justifiably reject – Makinde V Akinwale(2002) 2NWLR (PT 645) 435 at 450 Para E per Uwaifo JSC; and that evidence of a witness may be believed in part and rejected in part Esika v Medolu (1997) 1NWLR (Pt 485) 54 at 72, Para G-H per Edozie JCA ( as he then was)

On whether the Defendant has complied with the remission of the Claimant’s contributory pension into the Claimant’s Retirement Savings Account, Claimant submit that “Exhibit C5” show that Claimant’s contributory pension was not remitted regularly.

Defendant’s Reply:

The Defendant filed a Reply to Claimants submissions.  He argues that, with respect to the dismissal of the Claimant, the Claimant wrongly applied Clause 16.2 of Exhibit C2 which relates to misconduct and not gross misconduct.  He reiterated that the Defendant’s witness during the course of examination-in-chief and cross-examination stated that the Claimant was caught in the act of gross misconduct and that investigations were conducted, and that the Defendant’s witness when asked during the course of cross-examination if the Claimant was given an opportunity to state his side of the cases answered ‘yes’, which was not denied by the Claimant.  He relied on the decision of the Court of Appeal in the case of Audu -V-Petroleum Equalisation Fund (Management) Board &Anor. (20 I 0) LPELR-3824 (CA) where her Lordship, Odili J.C.A (ASTW) at Pages 23, Paragraph D held that:

Before an employer can dispense with the services of his employee, all he needs to do is to afford the employee an opportunity of being heard before exercising his power of summary dismissal even when the allegation for which the employee is being dismissed involves accusation of crime..

Defendant, with respect to if Claimant is entitled to 30 Months’ Salary as Damages,noted that Exhibit D2, which is a copy of the Original letter of offer of appointment dated 5th December, 2003 was duly acknowledged by the Claimant at the bottom page of Exhibit D2 and that Exhibit D2 was neither rebutted by the Claimant through any documentary evidence nor during the course of Cross-Examination of the Defendant’s witness, and argue that Submissions in the Claimant’s Final Written Address dated 7th December 2017 consist of claims that were not pleaded by the Claimant, and raise objections that should have been raised earlier on in the case – Niger Construction Limited -V- Okugbene (1987) 2 NSCC 1258.

Defendants submitted that the Claimant is not entitled to damages outside the provision of the contractual relationship between the Claimant and the Defendant, nor should he be paid further pensions, as that would amount to double payment.  The Defendant in concluding its arguments submits that the Claimant’s claim should fail for failing to prove same before this Court.

Court Decision:

The Claimants brought this action vide a General Form of Complaint on 4th August 2017, and sought the Reliefs already reproduced in this judgment.  The Defendant, in response, filed their statement of defence on the 11th of September 2017.  On the 11th of October 2017, the matter was called up for the 1st time and slated for hearing on the 24th of October.  On 24th October 2017, Claimant opened his case and testified as the only witness.  He adopted his witness statement on oath dated 4th August 2017.  He tendered 9 exhibits which were admitted and marked as exhibits C1 to C9.  The Claimant was thereafter cross-examined by the Defendant’s Counsel and subsequently discharged and the case of the Claimant was closed.

On the 7th of November 2017, Defendant opened their case wherein YetundeOkutade of the Human Resource of the Defendant testified in chief.  She adopted her written statement on oath dated 11th September 2017.  She tendered 3 documents which were marked as exhibits D1 to D3, with D3 comprising of D3a to D3n.  She was cross-examined by the Claimant’s Counsel and subsequently discharged.

I have read and understood all the processes filed by the parties in this case.  I heard the evidence of the two witnesses called at the trial as well as watched their demeanour.  In addition, I evaluated all the exhibits tendered and admitted.  Having done all this, I set the following lone issue down for determination:

Whether the Claimant is entitled to his claims?

Relief 1:  The first relief sought by the Claimant is a declaration that the Claimant had worked for the Defendant for thirteen years as a causal worker from 2004 without being issued a letter of employment is unfair and unlawful Labour Practice.

The Claimant in his testimony stated that he was absorbed by the Management of the Defendant in 2004.  This fact is admitted by the Defendant.  The issue in contention here is whether Claimant was a casual worker in these years of his employment with the Defendant.  Claimant in his testimony stated that he was not given a letter of appointment upon being absorbed by the Defendant.  Defendant however testified that Claimant was given a letter of appointment which he signed for.  This was tendered and admitted as Exhibit D2.  This fact was not controverted by evidence or during cross examination of DW1.  The said document was duly dated and signed by the issuing authorities with a signature at the bottom, which signature was not denied by the Claimant.  Claimant through his Counsel argued that assuming (but not conceding) Claimant accepted and acknowledged D2, that Claimant had not benefited from the terms and conditions of Exhibit D2.  The fact that,and how, the Claimant did not benefit from the contract of employment was not led in evidence.

A causal employment has been defined as ‘work that is occasional, irregular, or for a short time – often associated with day labour (Blacks Law Dictionary, 9th edition).  In the case of Ogunyale&Ors v. Globacom (2013) 30 NLLR (Pt. 85) 49, CoramJustices BB Kanyip, OS Obaseki-Osaghae and JT Agbadu-Fishim, of the National Industrial Court, Lagos Division defined a casual worker as ‘one who  is engaged seasonally or intermittently and not for a continuous period’.  That Court further held that casual worker will qualify as a permanent worker when:

A worker employed by an employer as a casual worker but has worked for upward of three to five years, and during this period, varying statutory deductions have been made from his salary, will qualify as a permanent employee more so as the Labour Act is silent on the issue of casual workers.  Such an employer(sic) shall be accorded all the workplace rights of a permanent employee as envisaged by labour laws.

From the above, I find that by virtue of the uncontroverted letter of employment, the consistent and unbroken nature of Claimant’s employment and the decision of this Court, as stated above, the Claimant, during the period of his employment with the defendant, was not a casual worker.

Relief 2, 3 and 4:       Reliefs 2, 3 and 4 are taken together as they are related and address the same issue of the dismissal of the Claimant.  The Reliefs seek:

  1. A Declaration that the summary dismissal of the Claimant via a letter dated the 4th of May, 2015 is devoid of fair hearing.
  2. A Declaration that the Claimant purported summary dismissal is Null, Void and wrongful.

iii.                A Declaration that the purported summary dismissal of the Claimant is contrary to the provision of Article 7 of the International Labour Organisation Convention of 22nd June 1982.

It must first be mentioned that it is obvious from the pleadings that the contract relationship between the parties is that of master and servant.  It is trite law that in a master and servant relationship, an employee who alleges wrongful dismissal must bring before the Honourable Court the procedure required for his dismissal which was violated. It is also trite law that the said employee has the burden to place before the Court his letter of employment stating the procedure that the employer must follow for his dismissal to be lawful – Simon Ansambe v.  Bank of the North Ltd. [2004] All FWLR (Part 221) Pg. 1427; Patrick Ziideh v.  Rivers State Civil Service Commission [2007] All FWLR (Part 354) Pg. 243 a. Where it is found that there is a departure or a breach of the prescribed procedure, then the dismissal will no doubt be wrongful. See Eze v. Spring Bank Plc2012 All FWLR Pt. 609 1076 at 1105.

The Claimant relied on Exhibit C2 (the Staff Handbook) as reflecting the terms of his employment, and referred to paragraph 16.2 (Principles) of the Staff Handbook (Exhibit C2) which provides that:

  1. No disciplinary action will be taken against an employee until the case has been fully investigated.
  2. No employee will be dismissed for a first breach of discipline except in the case of gross misconduct when the penalty will be dismissal without contractual notice.

Claimant however did not advert to 16.3 of the same Handbook which provides for Gross Misconduct.  The Defendant’s Staff handbook – Exhibit C2 listed examples of acts classified as gross misconduct to include:

“Touting: Engagement in activity injurious to Company’s material interest for personal financial gain

Gross insubordination or wilful refusal to comply with a company instruction or rule

Failure to comply with lawful and reasonable instructions

Any intentional act designed to affect adversely the company’s business interests

Thus, by paragraph 16.2 of exhibit C2, an employee can be dismissed for a first breach of discipline when the employee commits acts of gross misconduct.  Also, paragraph 11 of exhibit C2 provides that, ‘Skyblue Services is entitled to terminate your employment without notice in the event of gross misconduct.”Exhibit C6 is the letter of termination of the Claimant’s employment.  It clearly shows and explains the reason for the dismissal, and that the Claimant was caught in the act of gross misconduct for which he was dismissed.  It states:

You would recall that on Saturday, May 2, 2015, I drove past departure at 4.00pm and saw a tout holding our trolley and also dressed in a similar way to our Porters with the aim of carrying out porter service.  While you saw the individual, you refused to retrieve the trolley from him.  The implications of this act are:

  1.  You are encouraging an individual to deny us of our legitimate revenue.
  2. Allowing an imposter.
  3. In the event of defrauding a passenger, Skyblue Services would have been held responsible of the act committed by this individual.

You have been severally warned on allowing touts within this environment but have since turned deaf ears.  Our assumption therefore is that these touts are the means by which you defraud the company.

 

Applying the provisions of C2, the Staff Handbook, tendered and relied on by the Claimant, would show compliance with the terms of the Claimant’s terms of employment in dismissing him for gross misconduct, and would exonerate Defendant from wrongful dismissal.  However, Claimant contends that he was not given fair hearing in that he was not given opportunity to defend himself.  Defendant in his evidence stated that though there was no written query given to the claimant before his dismissal but that there was an investigation and claimant was given an opportunity to defend himself when he was caughton 1st May 2015.The nature of the opportunity given to the Defendant to defend himself was not stated by the defendant. There are higher demands of fair hearing but the least an employee should have is an opportunity to explain himself – see Momoh v. CBN (2007) 14 NWLR (Pt. 1055) 508(CA).  In Imonikhe v. Unity Bank (2011) LPELR-1503(SC) where the Supreme Court held that mere giving of a query can satisfy the requirement of fair hearing.

I find that from the terms of employment that the Defendant can dismiss the Claimant in circumstances as the one existing in this case.  However, the Courts have held that the employee need be given an opportunity to defend himself; even by mere explanation.  As stated in Yusuf v. UBN(1996) 6 NWLR (Pt. 457) 632 “Before an employer can dispense with the services of his employee under the common law, all he needs to do is to afford the employee an opportunity of being heard before exercising his power of summary dismissal, even where the allegation for which the employee is being dismissed involves accusation of crime”.  See also Audu -V-Petroleum Equalisation Fund (Management) Board &Anor(supra).

The extant legal regime on unfair dismissal is the International Labour Organisation standards on unfair dismissal encapsulated in ILO Convention 158 of 1982.   I hereby refer myself to this Convention.  That Convention at Article 7 provides that theemployment of a worker shall not be terminated for reasons related to the worker’s conduct or performance before he is provided an opportunity to defend himself against the allegations made, unless the employer cannot reasonably be expected to provide this opportunity.Defendant having not shown the nature and time of the opportunity to defend himself given to the Claimant, and having also not shown that it could not reasonably be expected to provide this opportunity, fell short of the minimum expectation on fair hearing.  I therefore find the circumstances of Claimants dismissal devoid of fair hearing, and therefore wrongful.

The procedure adopted by the Defendants was thereby wrongful.  The question however is, being wrongful, does it thereby render null and void, the dismissal, as requested by the Claimant.  According to this Court in the case of James AdekunleOwulade v. Nigeria Agip Oil Company Limited Suit No. NICN/LA/41/2012 per BB Kanyip,

To start with, whether it is termination or dismissal or, as (is presently the case) retirement, it is erroneous to think that any of this can be wrongful, unlawful and illegal, all at the same time.  BCC Plc v. Ager [2010] 9 NWLR (Pt. 1199) 292 SC held that there is a distinction between mere wrongful dismissal and an invalid or null dismissal. That where the Court makes a finding of wrongful dismissal, a payment in lieu of notice will apply; but where the finding is that the dismissal or termination was null and void then there is no dismissal or termination as what the employer did was a nullity before the law. The point is that a wrongful termination, dismissal or retirement would ordinarily stand subject to the payment of damages; but one that is unlawful and illegal will not stand and so reinstatement of the affected employee will have to be ordered.

The question to ask at this point is whether, in the contract of service between the parties, the defendant has the right to dismiss the claimant.  In Exhibit C2, the Claimant was informed, among other terms of the employment, he may be dismissed for gross misconduct. It is clear from this document that the defendant has the right in the contract of service to dismiss the claimant. In the absence of C2, the law is settled that the employer has the right to dismiss his employee – See NEPA vs. Enyong(2003) FWLR (Pt. 175) 452 at 469, where the Court of Appeal, per EKPE JCA, held that a master can terminate the contract of employment with his servant at any time and for any reason or for no reason at all. See also TEXACO Nig. Plc v. Kehinde (2002) FWLR (Pt. 94) 143 at 160.

Having found that the dismissal is wrongful, I do not however find it to be null and void.  The remedy of the Claimant is only in damages, to the extent that he would have had, had the Defendant exercised his right of termination or dismissal under the contract, without more.  That would be the one month notice which the terms of contract provide; or the sum, in lieu of the notice.

Reliefs 5 – 8seeks:

  1. A Declaration that the non-remission of the Claimant Contributory Pension from 2004 – 2010 is unjust and unfair labour practice.
  2. A Declaration that the irregular payment and remission of the Claimant Contributory Pension from the 24th November 2010 is unfair labour practice.
  3. An Order compelling the Defendant to pay the entire accrued outstanding contributory pension into the Claimant Retirement Saving Account.
  4. An Order compelling the Defendant to remit the Claimant employer and employee contributory pension into the Claimant Retirement Saving Account.

It is the law, that Claimant has to establish his claim to be entitled to judgment in his favour. – Chief (Mrs.) Eunice Akinyele v. AFRIBANK PLC &Anor(2005) 17 NWLR (Pt. 955) 504.  Claimant testified that during his employment from 2004 to 24th November 2010, the defendant was not remitting his monthly contributory pension, and that the first contributory pension was made by the defendant on the 24th of November 2010.  He also stated that they were not remitting his pension regularly.  He listed dates that his pension were not paid as:December 2010, May, June, July, August, September, October, November and December 2011; January 2012 – December 2012, January – August 2013, January – April, and September – December 2014, and January – April 2015.  I shall not include May 2015 because he was dismissed on 4th May 2015.

In rebutting the averments of the Claimant in respect of non-remittance of his pension for the period stated above, the Defendant tendered Exhibits D3a – D3n which are deposit tellers indicating the monies remitted to the Pension Fund Administrator for the same periods that Claimant is alleging non-remission of pension with printouts from the bank indicating the name of the Claimant on the list and how much was paid to him.  There is also statement showing payment for the period 2004 to 2010, and June 2011to December 2012.  These facts were not contradicted by Claimant.  These Tellers on their face and on the Bank Printouts show payments of pension remittances to the Claimant, including the periods which the Claimant seek relief for.  The Tellers however show that the payments were not made regularly and as when due.This was admitted by the Defendant.  These payments having been shown to have been made, this Court cannot order that further remittances be made on behalf of the Claimant.  Further, Claimant himself does not know how much is outstanding as evidenced in his testimony wherein he had said, “I do not know the actual amount I have received.  We were not told how much has been paid.  Sometimes we receive alert, sometimes we do not.  I do not know how much my claim is.  …I do not know how much is remaining…”.

In Ogbuka& ORS v. Awa &Anor: (2016) LPELR-40044(CA), the Court of Appeal held that the plaintiff cannot rely on the weakness of defendant’s case to prove his case.  I therefore find that Claimant has been unable to prove how much is his claim.  Based on the above, I find that Reliefs 5, 6, 7 and 8 as not proved.  Claimant is therefore not entitled to the Reliefs.

Relief 9 and 10:  Claimant further sought:

  1. An Order compelling the Defendant to pay the Claimant 30 months gross salary as damages for breach of the Claimant labour rights, exploitation and unfair labour practices.
  2. An Order of the Honourable Court directing the Defendant to pay the Claimant general damages in the sum of Two Million Naira for the wrongful termination of the Claimant employment

In a case of wrongful termination, the Courts have held that what would accrue to the Claimant is what he would have earned, had his dismissal not been wrongful.  In  Mr.Kunle Osisanya v. Afribank Nigeria Plc[2007] All FWLR (Part 360) 1480;  per George Adesola Oguntade. JSC held that:

 

In an ordinary relationship like in this one and following the common law principle, a termination of a contract of service, even if unlawful brings to an end the relationship of master and servant.  Chuma v. Shell Petroleum (1993) 4 NWLR (pg.289), 512.   The learned trial judge seems to appreciate this.  This is evident from the following passage of his judgment…

 

The court should not have proceeded to award the respondent his salary for over eight years.  The law is that a servant would only be paid for the period he served his master and if he is dismissed as in this case, although wrongfully all he gets as damages is the amount he would have earned if his appointment has been properly determined.– Texaco (Nog.) Plc v. Kehinde(2006) 6 NWLR (Pt. 708) 224 (CA).

 

In this case, the Claimant though dismissed for gross misconduct, but without being given an opportunity to defend himself, cannot assume that the employment continued.  What is then the damages the defendant is entitled to in this instance?  The Claimant has not established any basis for the award of general damages in the amount sought.  I find this Claimant entitled to the one month notice which his contract of employment prescribes; and having not been given such notice, that he is entitled to the equivalent salary, in lieu.  I so hold.  I make no findings of general damages, as same has not been proved.

 

I must add that (but that is not the basis for this decision) in the course of the testimony and cross-examination of the Claimant, He displayed such inconsistency in his testimony that it is difficult for the Court to decipher his case.  The finding of the lack of opportunity to defend himself in the events leading to the dismissal is not based on the Claimant making out the case that he was not heard, as he did not.  He had merely said he was not given fair hearing and had presumably shifted the burden of proving that he was heard to the Defendant; who did not establish such.  The Defendant merely said he gave Claimant opportunity to defend himself, without showing how and where.

On the whole, I hold that:

  1. Claimant was NOT a casual worker in the years he worked for Defendant;
  2. The summary dismissal of the Claimant via a letter dated the 4th of May, 2015 is devoid of fair hearing, and by that fact only, wrongful.

iii.                Claimant’s Contributory Pension was remitted and therefore make no order for further remittance of Claimant pension contribution.

  1. The Claimant is entitled to one month salary in lieu of the one month notice he is entitled to under the terms of his contract.
  2. I make no order for general damages.
  3. I make no order as to cost.

Judgement is entered accordingly.

 

 

…………………………………….

Hon. Justice Elizabeth A. Oji PhD

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