IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP, HON.JUSTICE N.C.S OGBUANYA
SUIT NO: NICN/LA/579/2017
DATE: APRIL 30, 2019
BETWEEN:
- BAMIDELE SUNDAY – CLAIMANT
AND
MEGA VISION LTD. – DEFENDANT
REPRESENTATION:
Isreal Okpaku, Esq- for the Claimant;
Olufemi Awojide Esq., (with E.F Fagbenle, and Anike Ige) – for the Defendant
JUDGMENT
The Claimant, an Accountant with the Defendant Optician Company, commenced this Suit vide a General Form of Complaint accompanied with the frontloaded processes dated and issued on 24th November 2017, challenging his prolonged suspension/implied termination of his employment and recovery of his outstanding salary/entitlements as well as damages for breach of the contract.
The Claimant’s endorsed reliefs are for:
- The payment of his salary for the month of September 2016, which is N70,000
- The payment of two months’ salary in lieu of implied termination of his contract, which is N140,000.00
- The sum of N100,000.00 only for the breach of contract of employment
- The sum of N100,000.00 being the cost of this action
- The sum of N100, 000.00 as general damages.
On being served with the originating court processes, the Defendant responded with its Statement of Defence with other defence processes, all dated and filed on 22nd December 2017, denying the Claimant’s claims.
Trial commenced at the proceedings of 20th March 2018. The Claimant testified for himself as Claimant’s Witness (CW), adopted his two sets of Witness Statement on Oath, and tendered two sets of documents admitted in evidence and marked as “Exhibits CB1, CB2A and CB2B”. CW was cross-examined and he closed his case at the resumed proceedings of 30th May 2018.
Gleaning from the pleadings and testimony of the CW at the trial, the case of the Claimant is that he was employed as Accountant by the Defendant on and given schedule of duties, which particularly entails taking record of the payments and monitoring payment of bills issued out to patients and retainer-clients of the Defendant. That in the course of the employment, he was suspended for not carrying out his duties efficiently which he denied as untrue, but was later called back to resume duties on the condition that he would forfeit the September 2016 monthly salary, of which he rejected. That since then he was neither paid nor recalled to duty, a condition he viewed to mean an implied termination of his employment without given him the two months’ notice or salary in lieu as contained in his employment letter (exh. CB1). That he came to court to seek redress over the incident of his prolonged suspension or implied termination of contract and recover his unpaid salary.
At the resumed trial proceedings of 19th July 2018, the Defendant opened its case and called two witnesses; Dr. Uche Mbata, the Managing Director of the Defendant Company and Miss Favour Mgbeobu, the Office Secretary with the Defendant. They both testified as Defendants Witnesses (DW1 and DW2) respectively. DW1 and DW adopted their respective Witness Statements on Oath deposed to on 5th February 2018 at this Court’s Registry. DW1 tendered three documents admitted in evidence and marked as “Exhibits DB1, DB2and DB3.
From the testimonies of DW1 and DW2 as well as the pleadings of the Defendant, the case of the Defendant were same but differed from that of the Claimant only to the extent that the Defendant maintained that the Claimant did not carry out his duties efficiently in accordance with his schedule of duties which led to the Defendant’s loss of some amounts arising from clients’ bills and unreconciled accounts with the its major retainer client (Liberty Blue Health).
It is the Defendant’s contention that owing to such dereliction of duty, the Defendant exercised its disciplinary power over the Claimant being its employee, by giving him suspension. And that in the course of the suspension, the Claimant engaged in some unsolicited text messages which insulted the Defendant’s Managing Director (DW1) and also threatened her, but that was later reconciled when the Defendant recalled him on the condition that he would forfeit his September 2016 month’s salary. That the Claimant however, refused to accept and did not resume duties any more, a situation the Defendant considered as an implied termination of the employment.
Defendant denied the Claimant’s claims in its entirety and prayed the Court to dismiss same with substantial cost. Both DW1 and DW2 were cross-examined by the Claimant’s counsel and the Defendant closed its case. Both Counsel filed and exchanged their Final Written Addresses in support of their respective parties’ case.
COUNSEL’S SUBMISSIONS
Submissions by Defendant’ Counsel:
Learned Defendant’s counsel, Olufemi Awojide, Esq., in his Final Written Address dated 9th August 2018 and filed on 10th August 2018, raised 4 issues for determination: 1). Whether or not the Claimant was liable for negligent conduct or dereliction of duty in the discharge of his official assignments under his contract of employment with the Defendant? 2). Whether or not the Defendant as the employer of the Claimant was entitled to invoke its disciplinary powers against the Claimant? 3). Whether or not the punishment meted out to the Claimant is commensurate to his conduct? 4). Whether or not the Defendant terminated the employment of the Claimant?
Canvassing arguments on issue 1, counsel pointed the aspects of negligent to duty alleged against the Claimant as testified to by DW1 whom the Claimant reports to directly, particularly as he handled one of the client’s accounts (Liberty Blue Health) which led to unreconciled bill sum of N1, 886,964.00. That contrary to the instructions and schedule of duty of the Claimant, he neglected to provide regular updates to the Managing Director of the payments in respect of the bills issued to the said client resulting in some mix-ups and shortfalls in the account reconciliation, and he could not provide a quick answer to his boss when requested to provide an update to the said account. On that note, Counsel urged the court to hold that such negligent act by the Claimant amounts to dereliction of duty.
On issue 2, counsel submitted, relying on the authorities of Longe v. First Bank (2010)MJSC Vol. 2-3, P.128@164, para.E-F and University of Calabar v. Esiogu [19974NWLR (Pt.502)719 @723, that the Defendant merely exercised its disciplinary powers over its erring employee by directing that the Claimant should proceed on Suspension as punishment for the infraction at duty. And that Suspension is neither termination nor dismissal.
On issue 3, it is counsel’s contention that the punishment of forfeiture of one month salary (for September 2016), was adequate and borne out of the amount of loss sustained by the Claimant’s negligent discharge of his assigned duty. And that it is the duty of the Claimant to comply with official directive given to him.
On issue 4, counsel contended that it was not the Defendant that terminated the employment rather it was the Claimant who refused to comply with the condition attached to his recall directive to forfeit his September 2016 salary. Counsel argued that the two months’ notice required in the Employment Letter (exh CB1) ought to be complied with done by the Claimant who failed to do so in his implied termination of the contract. Counsel argued that salary in lieu of the two months’ notice would amount to N140, 000 (N70, 000) per month and by deduction of the one month salary (September 2016) the Claimant would be the one owing the Defendant the sum of N70, 000.
Counsel cited and relied on Mr. Ogheneovo Kingsley v. Daewoo Nigeria Limited & or (Unreported Suit No. NICN/LA/23/2011 per Justice A. Ibrahim), to the effect that Claimant who failed to accept the disciplinary measures taken against him and did not go back to work after recall leaves the court to conclude that he has terminated his employment.
Counsel finally urged the court to uphold his submissions and dismiss the suit.
Submissions by Claimant’s Counsel:
On the Claimant’s part, Learned Counsel, Isreal Okpako, Esq., in his Final Written Address dated and filed on 28th August 2018, raised 2 issues for determination: a). Whether or not the Defendant is justified in law, by suspending the Claimant indefinitely and its refusal to pay him his salary for the month of September 2016?, and b). Whether or not the Defendant has breached the terms of contract of employment it signed with the Claimant?
Canvassing arguments in support of the issues raised for determination, learned counsel on issue a, contended that although the relationship of the parties here is that of Master-Servant, with the Defendant as the Employer empowered to disciple or terminate the contract of employment, but in doing so it must follow strictly the terms of the contract. Counsel further contended that the contract of employment here (exh.CB1) did not provide for indefinite suspension without payment, even for the September 2016 he worked for. Counsel submitted, relying on Mobil Producing (Nig.) Unltd v. Udo (2008)36 W.R.N 116 @119, that there is no implied contractual right on the part of the employer to suspend an employer without pay unless expressly stated in the contract of employment. To counsel, since the exh.CB1 did not provide for ‘suspension without pay’, the Defendant lacks the power to exercise such disciplinary measure on the claimant. Counsel urged the court to so hold.
On issue b, Counsel argued that the Defendant breached the contract of employment with the Claimant by refusing to pay the September 2016 seized salary despite the Claimant’s Solicitors letter (exh.CB 2B) and also did not pay the stipulated 2 months’ salary in lieu of notice. Counsel relied on Oforishe v. Nigerian Gas Co. Ltd (2017)50 W.R.N 41 to maintain that the Claimant is entitled to payment of the outstanding one month salary and salary in lieu of notice of the termination of the employment.
On the whole, counsel urged the court to uphold the Claimant’s claims and grant his reliefs.
At the proceedings of 8th February 2019 both counsel adopted their respective Final Written Addresses and adumbrated on same, and the matter was reserved for Judgment.
COURT’S DECISION
I have reviewed the processes filed in the suit as well as submissions of both counsel filed and exchanged, and duly evaluated evidence tendered at the proceedings and observed the demeanor of witnesses who testified for their respective parties.
I will quickly observe that both counsel raised a total of 6 issues (2 by Claimant and 4 by Defendant) on this seemingly straight forward matter, bordering on validity of seizure of salary as a disciplinary measure and entitlement to salary in lieu of notice of an implied termination of employment.
It has been admonished time without number that undue proliferation of issues doesn’t add value to effective adjudication of dispute in civil trial, and should be discouraged by trial counsel, since a claim is circumscribed by the reliefs claimed. See: Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] 10 NWLR (Pt. 1095) 399; [2008] 5-6 SC (Pt. II) 47(2008) LPELR-591(SC). To that end, I have pruned down the issues and harmonized them into a sole issue, which would comprehensively address the Reliefs sought for by the Claimant and the Defendant’ contention in opposition.
Accordingly, in my view, the main issue for determination is: Whether from facts and evidence presented, the Claimant is entitled to the grant of his claims? I will proceed to resolve the dispute along line this main issue.
Relief (a) is for payment of the Claimant’s salary for the month of September 2016, which is N70, 000. I find as common ground between the parties that the salary for the month of September 2016 in the sum of N70,000, was seized by the Defendant and not paid to the Claimant, as a disciplinary measure following the suspension for dereliction of duties. However, the contentious aspect is that while the Claimant refused to forfeit his said salary in order to resume work from the suspension as directed by the Defendant in exercise of disciplinary powers over the Claimant, the Defendant insisted that in exercise of its disciplinary measures as an employer, it can seize the salary which the Claimant declined to forfeit for the punishment of suspension to be lifted and he returns back to work. I find also as a common ground that the said September salary has been earned but not yet paid before the Claimant was suspended.
From the records, the Defendant got dissatisfied with the standard of conduct of the Claimant in discharge of his duties took the decision and suspended the Claimant. While serving the suspension, the Defendant later made an offer to the Claimant to forfeit his said salary in order to cancel the suspension. I also find that the said September 2016 salary was not part of the disciplinary measure given at the point of the suspension but was made as an offer to cancel the suspension. The question is, can the Defendant lawfully seize earned salary or exercise disciplinary measure to seize earned salary after the Claimant has started serving suspension as punishment for his infractions at duty?
Although Suspension is disciplinary measure exercised by an employer under its overriding ambit of management control over its employees, yet labour & employment legal regime recognizes two classes of suspension-one pending investigation and the other as a punishment for a disclosed infraction of rules of engagement by an employee. Thus, as an employee under suspension is still invariably a staff of the employer, the suspended employee’s entitlement to remuneration is however dependent on whether the suspension is pending investigation or punishment for alleged infraction- breach of discipline or any other offence. If it is pending investigation, the employee is deemed to be relieved of working by the employer who did not provide him work and is entitled to full remuneration unless there is an express provision in the condition of service providing that the suspension would be without pay or with half pay. This is the intendment of S.17 (1) Labour Act Cap.L1 Laws of the Federation 2004. But if it is as a punishment, the condition of service still determines if salary can be withheld, although the employer can direct as part of its inherent disciplinary powers to withhold salary as punishment for infraction instead of outright dismissal of the employee for misconduct.
However, from the records of the instant case, I find that the withholding of salary was not as punishment but a mere offer to the Claimant who already started serving indefinite suspension as punishment. In the circumstance, Relief (a) succeeds and same is granted. Accordingly, the Defendant shall pay to the Claimant the sum ofN70,000.00(seventy thousand naira) being the September 2016 salary seized by the Defendant. I so hold.
Again, the jurisprudence of labour & employment adjudication frowns at prolonged suspension of employee (indefinite suspension) by employer whether for investigation or as a punishment, as it tends to keep an embattled employment in abeyance without meaningful and utilized relationship. In my view, such sour and frosty relationship ought to be severed or resolved to return to normalcy soonest. See: ACB v. Ufondu [1997]10 NWLR (Pt.523) CA169. The arising question is, was the relationship severed in accordance with the contract of the employment? I find that Pleadings and evidence presented point to the contrary. That brings the issue as to entitlement of the Claimant to two months’ salary in lieu of notice into fore for proper evaluation. Claimant’s counsel had canvassed the view that the procedure of how the Claimant’s employment could be terminated was not followed in bringing down the employment relationship by the Defendant. Defendant’s only answer was that the Defendant refused to accept the offer to forfeit his one month salary to be allowed to resume work again, and such refusal means implied termination of the employment by the Claimant.
I had earlier taken the view that the issue of forfeiture of salary in order to cancel the indefinite suspension was not the punishment the Claimant was serving for his infractions on duty. By that finding, it is not clear the basis of the Defendant contending that it was the Claimant that repudiated the employment contract. I therefore find no merit in that line of defence, and same is discountenanced. I so hold.
Assuming the offer was not made and rejected at that time, the indefinite suspension would have kept the employment alive up to its anniversary on February 2017, as it was a fixed employment renewable annually, and it commenced on March 2016. (See: exh.CB1). Even a perfunctory perusal of the exh.CB1 (Offer of Employment dated 22nd February 2016) would reveal an express provision for termination of the employment, which clearly states: “Your contract of employment would be renewed yearly and either party should give two months notice on resignation or termination of employment or payment in lieu of notice before the expiration of the contract”. I maintain the view that contract of employment is a sacrosanct document like any other contract which terms are to be observed and applied in resolution of dispute arising between the parties. In U.B.N Plc. v. Soares [2012] 11 NWLR (Pt. 1312) C.A. 550@ 571, Paras. B-C, it was held that: “Parties are bound by the terms of a contract of employment, particularly where the terms are clear and unambiguous”. Thus, where the terms are clear and unambiguous, it should be read in its ordinary meaning to echo the intention of the parties. No court would ordinarily lend its judicial arms to do otherwise. See: Ihunwo v. Ihunwo [2013] 8 NWLR (Pt. 1375) S.C.550 @ 583, Paras.E-G.
It is clear from the pleadings and evidence led as well as exhibits tendered by the parties that the employer/employee relationship between the Claimant and the Defendant was in writing. (See: exh. CB1– Re: Offer of Employment dated 22nd February 2016). I hold the view that what is started in writing ought to end in writing or in absence of ending in writing, be treated as an act of repudiation of the contract, which would amount to wrongful termination of an employment governed by common law master-servant relationship, as in the instant case, which invariably, is assuaged in damages. See: Ogumka v.CAC (2010) LPER-4891(CA).
This invariably leaves the court with the option to conclude that the employment was not properly terminated but was on abeyance of suspension punishment up to between the period of the indefinite suspension to the time the Claimant rejected the Defendant’s offer to forfeit his September 2016 salary in order to resume duties once again. I so hold.
I find no evidence on record that the Claimant resigned his said employment. Also, the Defendant did not formally terminate the contract but that when the Claimant rejected the offer to forfeit his one month salary following the Defendant’s recall for him to resume duty from the punishment of indefinite suspension, the Defendant ought to have formally put the contract to an end, otherwise the law would view the relationship to still be subsisting up to the end of the contract as if the Claimant was still serving the punishment of indefinite suspension. I so hold.
In the circumstance, Relief (b) succeeds. In line with the terms of the employment contract between the parties, the Claimant is entitled to be paid two months’ salaries in lieu of notice. Accordingly, the Defendant is to pay the Claimant the sum of N140,000.00 (one hundred and forty thousand naira) being the two months’ salaries in lieu of notice at N70,000 per month, for wrongful termination of the employment.
Reliefs (c) and (e) would be considered together. Relief (c) seeks for the sum of N100, 000.00 for the breach of contract of employment and Relief (e) for the sum of N100, 000.00 as general damages, the law is that General damages are awarded generally without further proof upon breach of a contract, inclusive of employment contract, as in the case at hand. However, the measure of damages for unlawful termination of employment has been pruned and generally limited, in absence of any special circumstance, to the amount of the period of notice that was breached during the termination. See: Ado v. Commissioner of Works, Benue State & ors [2007] 15NWLR (Pt.1058) CA 429, Obot v. CBN [1993]8NWLR (Pt.310) SC140, British Airways v. Makanjuola [1993] 8NWLR (Pt.311) CA276.
On that note, I find the act of the Defendant in not giving any notice at all to the Claimant in repudiating their employment contract constitutes a breach of the employment contract. In the circumstance, Reliefs (c) and (e) succeed to the extent that the measure of damages for wrongful termination of employment in the circumstance of this case is the two months’ salaries in lieu of notice, which is already granted in Relief (b). I so hold.
Relief (d) is for the sum of N100,000.00 being the cost of this action. Beyond putting this line in the relief part of the pleadings, nothing was presented to show the entitlement to cost which ought to be treated as special damages and expected to be properly pleaded and credible evidence led to establish at the trial. Having failed to take such desirable step in the proceedings, this relief fails, and is accordingly discountenanced and dismissed. I so hold.
For clarity and avoidance of doubt, and on the basis of the reasons advanced in the body of the Judgment, the terms of this Judgment are as follows:
- Relief (a) succeeds and same is granted. Accordingly, the Defendant shall pay to the Claimant the sum ofN70,000.00(seventy thousand naira) being the September 2016 salary seized by the Defendant.
- Reliefs (b) (c) and (e) succeed, to the extent that the Defendant is to pay the Claimant the sum of N140,000.00 (one hundred and forty thousand naira) being the two months’ salaries in lieu of notice at N70,000 per month, for wrongful termination of the employment.
- Relief (d) fails. Same is hereby discountenanced and dismissed.
- Monetary payment in this Judgment shall be paid by the Defendant to the Claimant within one (1) month of this Judgment. Otherwise, 10% interest per annum shall accrue on the sums due until finally liquidated.
Judgment is entered accordingly. I make no order as to cost.
———————————————–
HON. JUSTICE N.C.S OGBUANYA
JUDGE
30/4/19
