IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE YENAGOA JUDICIAL DIVISION
HOLDEN AT OWERRI
BEFORE HIS LORDSHIP, HON. JUSTICE S. H. DANJIDDA
DATE: 3RD MAY, 2019 SUIT NO: NICN/YEN/135/2016
BETWEEN:
MR. KPOOBARI NWIN-NWIN CLAIMANT
AND
FMC TECHNOLOGIES LTD, NIGERIA DEFENDANT
REPRESENTATION:
CHIMEZIE OTUONYE FOR THE CLAIMANT
INAM WILSON FOR THE DEFENDANT
JUDGEMENT
The Claimant commenced this suit by way of writ of summons instead of Complaint. The writ is dated 11/07/2016 and filed on the 15th of July 2016 at the Yenagoa Division of the National Industrial Court while on the 9th of January 2017, Defendant entered appearance by filing a Memorandum of Appearance along with the Statement of Defence on the same date.
The Claimant’s endorsed claims against the Defendant are:
“a. A declaration that the act of the Defendant in dismissing and terminating the employment of the claimant without any reason or due process of law and company procedure is unfair, unlawful and null and void.
b. A declaration that the claimant’s employment with the Defendant Company has not been terminated and therefore the act of ordering him out of the premises is illegal and unfair.
c. N100, 000.000.00 million as general damages for unlawful and unfair termination of employment.”
Claimant in a bid to prove his case testified as CW1 on the 21/5/2018 and tendered Exhibits C1 to C5 while Exhibits C6 to C11 were tendered through him under cross- examination. On the other hand, Defendant called DW1 as its witness who testified on 21/6/2018 and tendered Exhibits D1 to D6.
It is the Claimant’s case as per the statement of fact that he was employed by the Defendant sometime in November 2012 as a warehouse technician. That during the course of his employment with the Defendant he worked diligently, without loss or liability of any kind caused to the Defendant on his account. That the output and safety of the Defendant company was not compromised under his watch while stationed at different duty posts; considering that he had been stationed at the Onne Wharf Office before being transferred to the Aveon Offshore at Rumuolumeni, Port Harcourt.
The Claimant stated that he was on the 26th of April 2016 handed a letter of termination by agents of the Defendant. The Claimant said that the stated reason for the termination is his purported unsatisfactory or non-performance when no prior case of gross misconduct had been founded against him. The Claimant has therefore alleged that his employment was terminated without any reason, or due process of the law and the Defendant’s procedure and therefore unfair, unlawful and null and void hence his quest for redress before this Honourable Court.
Claimant’s Exhibits tendered in both examination in chief and under cross-examination are as follows :- Exhibit C1-Offer letter dated 6/11/2012, Exhibit C2-Confirmation of employment dated 9/04/2013, Exhibit C3-Status Change dated 8/07/2014, Exhibit C4-Status change dated 24/02/2015, Exhibit C5-solicitor’s letter dated 20/05/2016, Exhibit C6-FMC’s Employee Handbook released on 15 September 2014, Exhibit C7- email dated 29 March 2014, Exhibit C8 – email dated 27 August 2014, Exhibit C9-Various training certificates received by the Claimant for the period of 28 November, 2012-27 February, 2016, sponsored by the Defendant and JC international Limited training certificates of 10 June, 2015 and 17 June 2015, received by the Claimant. Exhibit C10-FMC Performance and development discussion instructions (PDD) dated March 23, 2015 and Exhibit C11- Claimant’s termination letter dated 26 April 2016.
The Defendant in its defence through its witness Temidola Ladeinde(DW1) said that though the Claimant was indeed employed by the Defendant in November 2012, but the Claimant’s performance was not satisfactory and left much to be desired by the Defendant.
Defendant stated that as a matter of policy, the Defendant’s Employee Handbook forms part of the Claimant’s contract of employment and that pursuant to Article 42 thereof, the Claimant was subjected to internal mode of assessment usually done on a yearly basis. That a review of the Claimant’s performances showed that he was consistently average in the skills required for his job description. That in order to remedy the situation, the Defendant sponsored the Claimant for various trainings that did nothing to influence the Claimants output during his employment. It is the Defendant’s case that the Claimant’s performance and output remained poor. In consequence of this fact, the Defendant averred that it was decided to disengage the Claimant, following duly laid down procedure in the Defendant’s Employee Handbook to that effect.
The Exhibits tendered by DW1 during Examination in Chief are as follows:- Exhibit D1 – FMC’s email dated 25 January, 2016, triggering the process of obtaining consent from the DPR to disengage the Claimant from its employment, Exhibit D2- FMC application letter to the DPR dated 27 January, 2016, for consent to release the Claimant from its employment, Exhibit D3 – DPR letter dated 16 February 2016 acknowledging receipt of FMC’s application letter dated 27 January 2016, Exhibit D4 – DPR consent letter for the release of the Claimant by FMC dated 18 April 2016, Exhibit D5 – email dated 27 February 2015 and Exhibit D6 – email correspondence from Temidola Ladeinde to Kpoobari Nwin-Nwin dated February 27, 2015.
Final addresses were ordered and the Defendant filed its own on the 14th of September 2018 and formulated two issues for determination, to wit:
“Whether the termination of the Claimant’s employment was valid and effective.
Whether the Claimant is entitled to all the monetary reliefs sought before this Honourable Court.”
On issue one, the Defendant Counsel submitted that the termination of the Claimant’s employment was done according to the terms of contract and according to law and hence, is above fault. That the Defendant paid to the claimant one month’s salary in lieu of notice and all his terminal benefits which were due and payable in accordance with the contract of employment. Counsel cited and relied on plethora of case law and argued that the Claimant’s employment with the Defendant was primarily governed by his offer letter dated 06/11/2012, his confirmation letter dated 09/04/2013 and the Employee Handbook released on 15/09/2014 and therefore, the Claimant’s case for wrongful or unlawful termination must be founded on the collective terms of these contractual documents. Counsel pointed to relevant portions or parts of the stated documents and further argued that contrary to what the Claimant wants this Court to believe, the Claimant was unable to fault or challenge the termination of his employment on the ground that same did not comply with the contract of employment rather, what the Claimant is alleging is that although due process was followed, that it is his opinion that his termination was tainted by bias and racism and hence done in bad faith.
The Defendant’s counsel further argued that the Claimant’s employment was terminated pursuant to Article 23 of the Employee Handbook. That the Claimant was terminated for poor performance, based on the Performance Assessment that were documented. Counsel concluded by urging the Honourable Court to hold that the Claimant’s assertion of wrongful termination by the Defendant is unfounded and to rather uphold the termination of the Claimant’s employment as validly done, effective and binding on the Claimant.
On the second issue, counsel though not conceding the point, argued that in the event that this Honourable Court should hold that the Claimant’s termination is wrongful, the Claimant shall not be entitled to general damages as claimed or otherwise because it is an established principle of law that general damages are presumed by law as flowing from the wrong complained of by the Claimant. Against that backdrop, counsel submitted that the premise of the claimant’s case being wrongful termination, the only remedy available to the Claimant by law would be compensation or separation benefit as provided in the contract. Counsel cited several cases to buttress the argument and finally urged this Honourable Court to find that the Claimant failed to show his entitlement to general damages.
Counsel therefore prayed this Court to dismiss the Claimant’s claim as being unfounded, frivolous and without merit.
On his part, the Claimant’s counsel filed a final written address on 09/09/2018 and submitted two issues for determination by the Honourable Court, as follows:
“Whether the termination of the employment of the Claimant was unlawful.
Whether the burden of proof in the circumstances of this case lies on the Claimant.”
Counsel argued both issues together concurrently. Counsel relied on the facts and evidence before the Court and submitted in argument that in a contract of employment, the element of unlawfulness arises where in carrying out the decision to terminate the employment, the employer or employee fails, neglects or refuses to adhere to the principles laid down by statute or terms of contract as contained in the employment letter. Counsel maintained that due process was not followed and the Defendant has not in any way proved that due process was followed. Counsel pointed to the fact that the Defendant did not show either by pleadings or documents that due process was followed. Counsel then further argued that whilst it is trite law that the burden of proof lies on the Claimant to establish his case, the evidential burden is known to shifts when a fact has been established by one party. That in the circumstances, the burden is on the Defendant to show by credible evidence that the termination of the Claimant’s employment was lawfully done. Counsel argued that the purported letter of termination is unlawful because it failed to disclose the reason for the termination.
DECISION OF THE COURT
After considering the pleadings of the parties, the facts and evidence adduced and the respective submissions of counsel and the issues proposed for determination therein, I wish to raise the issue for determination of this matter as follows:-
Whether the termination of the Claimant’s employment by the Defendant was wrongful?
In trying to determine this, I carefully look at the Claimant’s claim and I see that, it is for a declaration that the act of the Defendant in dismissing and terminating his employment without any reason or due process of the law and company procedure is unfair, unlawful and null and void. According to the claimant also, his employment with the Defendant has not been terminated and he asked for N100, 000,000 as general damages for unlawful and unfair termination of his employment.
Let me quickly say that Exhibit C11 which is the claimant’s termination letter contains a reason advanced by the Defendant for the termination of the Claimant’s employment. So Exhibit 11 goes contrary to the Claimant’s assertion for it contains reason for the termination of the Claimant’s employment. Exhibit 11 speaks for itself, it is a document which cannot be excluded, contradicted or added to by oral evidence or mere averment in pleadings. See section 128 of the Evidence Act, 2011.
So going by Exhibit 11, I find that the Defendant had proffered its reason for terminating the claimant contrary to the Claimant’s assertion. However it is a different thing altogether whether the reason was justified or not.
Even at that, once an employment is proved to be one not protected by statute the employer can terminate the employment without any reason but whenever a reason is stated, and then it has to be justified. It is settled that an employer is entitled to bring the appointment of his employee to an end for any reason or for no reason at all. So long as he acts within the terms of the employment. However where any reason is adduced, then it has to be justified. See Idoniboye – Obu V NNPC (supra). The Supreme Court in Institute of Health ABU Hospital Management Board v. Mrs Jummai R. I. Anyip [2011] LPELR-1517(SC) said that although an employer is not obliged to give any reason for firing his servant all the same it is settled law that where he has preferred any reason at all it is obliged to satisfactorily prove the same as the onus is on him in that regard, otherwise the termination or dismissal may constitute a wrongful dismissal without more.
From the Exhibits admitted and the facts presented, the employment of the claimant is a simple master and servant relationship governed by a written contract of employment. It is a contract of personal service and there is no evidence to show that it has any statutory flavor and it is trite that the Court cannot make a termination or dismissal null and void by reinstating a dismissed staff in a private contract of employment except of course the contract agreement between the parties expressly says so. It is also trite that one cannot force a willing servant on an unwilling employer. See Afribank V Osisanya (1999) LPELR – 5206(CA).
However, whether a contract has statutory favour or not, the contract has to still be determined in accordance with the manner provided by the written contract of the parties. See Okobi V Sterling Bank Plc (2013) 30 NLLR (Pt. 86) 246
The appellate courts followed by this court have consistently made it a point that an employee who complains that his employment has been brought to an end must found his claim on the contract of service and show in what manner the wrong was done. He must plead and prove the contract of service which is the bedrock of his case. See Idoniboye – Obu V NNPC (2003) LPELR – 1426(SC), Oloruntoba-Oju V. Abdul-Raheem (2009) NWLR (Pt 1157) 83, SC.
The Claimant stated in his averment that his employment was wrongfully and unlawfully terminated because there was no untoward act or misconduct found against him and he has been most hardworking, performing all task and duties assigned to him even at most serious cost and hardship to him and at expense of both his family and religious affairs as he goes to work even on public holidays and Sunday. Claimant said in his further evidence that his performance had never been below par or average at any time and that he had always performed creditably and without any complaint from anybody. He also stated that he was never given any query or warning before he was pushed out of his work place by the Defendant.
However, the Defendant in trying to justify its reasons for terminating the claimant stated under cross – examination as follows:-
“… It was in early 2014 that it was discovered that the Claimant was not performing up to expectation. The claimant was dismissed for non- performance. Some of the factors that were used to determine the Claimant’s non-performance were, 1. Poor communication to his line manager, 2. Delayed delivery of task and duties, 3. His inability to adequately use SAP which is a Software Application to record his duties and his unavailability at his duty post without notice…. ”
In another instance DW1 said further”… We don’t invite the employees to know why they are not performing. I am not aware whether the Claimant was given a query on the allegations made. We did not invite the claimant about his underperformance but it was the manager’s responsibility. I am not aware that there was any documented query from the Claimant’s manager but I know that there was an email from the manager to support the claimant and to readjust his work schedule…. ”
The Defendant also referred to the sworn statement of DW1 and submitted that the Claimant’s termination was in line with Article 23 of Exhibit C6 and Article 42 put in place an internal mode of performance assessment of employees known as (PDD).
It becomes necessary here to refer to Article 23 of Exhibit C6 and see whether the Defendant’s action of terminating the claimant on the grounds stated, more particularly non- performance can be justified.
According to Articles 23 and 24 of Exhibit C6, there is a procedure to be followed where the employee’s work is below standard. The procedure is in 4 stages. Employee’s immediate superior will first make a preliminary judgment on whether the problem is due to negligence or insufficient effort. If it is found that it was not as a result of negligence or insufficient effort, then training will be arranged by the Human Resources Department. Stage 3 is that the training timetable will set a reasonable period for improvement and this will be confirmed in writing to the employee. And if performance is judged unsatisfactory, then disciplinary procedure will follow under article 24.
If an employee is to be subjected to disciplinary procedure, there are also stages that one has go through and notes shall be kept at each of the disciplinary procedure and a copy of the notes will be given to all the parties involved. The penalties provided under Article 24 are verbal warning, written warning, final written warning and dismissal or suspension with or without pay.
I wish to find that from the fact and evidence adduced in the instance case, the procedure under article 23 and 24 has not been followed by the Defendant and the stages to be followed are absent in the way the Claimant’s employment was terminated. There is no evidence of any written warning or final written warning given to the claimant on his poor communication to his line manager, delayed delivery of task and duties, his inability to adequately use the Software Application to record his duties or his unavailability at his duty post without notice before he was terminated. There was no any evidence tendered before the court on whether there was any disciplinary action taken against the Claimant. The evidence of both CW1 and DW1 testify to the fact there no query letter that was given to the claimant. The claimant deserves to be contacted in writing about any of his unsatisfactory actions before he was terminated without any notice by the Defendant. I find that the termination of the claimant’s employment is in breach of the terms of employment i.e. Exhibit C6. Articles 23 and 24 of Exhibit C6 were in in particular not complied with by the Defendant.
Exhibit D4 which is a letter from the DPR requested the Defendant to pay the claimant his terminal benefits when relieving him of his job and copies of the release letter and the details of his benefits be forwarded to the DPR. However there is no evidence showing that the all that has been done.
This court is therefore obliged to confine itself to the terms of contract of service between the parties which provide for their rights and obligations. Here Exhibit C6 which is the Employee Handbook containing the conditions of service must be taken into consideration. See FAKUADE V. O.A.U.T.H.C (1993) NWLR (PT. 291) 47 SC.
Admittedly, on its own, the letter of termination, Exhibit C11, clearly put in evidence before this Honourable Court that the Claimant was terminated as a result of alleged substandard performance. The Defendants directed the attention of this court to Exhibit C6 and submitted that the decision to terminate the Claimant was lawfully carried out in line with the terms and conditions of service.
Since the contract of employment in the instant case is determinable by the agreement of the parties, then such termination has to necessarily comply with the terms and conditions of the contract of the parties.
It is well settled that where a contract of employment is terminable on notice, and the employee is not given the requisite notice, the employee will be entitled to damages. See OSISANYA V AFRIBANK NIGERIA PLC (2007) 6 NWLR (PT. 1031) 565. Here, the claimant’s appointment is deemed to have effectively ended on 27th April 2016 going by the wording of the termination letter dated 26th April 2016.
There is however no proof that the Claimant was paid a monthly salary in lieu of notice and any terminal benefits and other entitlements accruing as at that date.
Without prejudice to the Defendant’s unfettered right to terminate the Claimant’s/employee’s employment, it is nevertheless essential that the firing must be done in accordance with the terms and conditions of the employment and/or the law. See: ORGAN & ORS V. N.L.N.G. LTD & ANOR. (2013) 16 NWLR (PT. 1381) 506, GARUBA V. KWARA INV. CO. LTD. (2005) 5 NWLR (PT. 917) 160, OSISANYA V. AFRIBANK (NIG.) PLC (2007) 6 NWLR (PT. 1031) 565.
Failure to comply with the terms renders the termination wrongful but not null and void. The only remedy available to the Claimant in the case of wrongful termination of employment is a claim for damages. The rationale being that a servant, though wiling, cannot be foisted upon an unwilling master. See: U.B.N. LTD V. OGBOH (1995) 2 NWLR (PT. 380) 647 @ 664; IBAMA V. S.P.D.C (NIG.) LTD. (2005) 17 NWLR (PT. 954) 364; OLANREWAJU V. AFRIBANK NIG. PLC. (2001) 13 NWLR (Pt. 731) 691.
It is now trite law that the measure of damages for wrongful termination or dismissal is the amount the Claimant would have earned over the period of notice which includes benefits, allowances, pension and the equivalent salary for the period of notice, etc. See; DUDUSOLA V. NIGERIA GAS CO. LTD. (2013) 10 NWLR (Pt. 1363) 423; CHUKWUMAH V. SHELL PETROLEUM (1993) 4 NWLR (PT. 289) 512; FAKUADE V. O.A.U.T.H (1993) 5 NWLR (Pt. 291) 47 OSISANYA V. AFRIBANK (NIG.) PLC. (2007) 6 NWLR (Pt. 1031) 565.
It is evidently clear that the Claimant worked for the month of April 2016 and had therefore earned the salary he was paid for that month. He was entitled to one month’s salary in lieu of notice and any other entitlement legitimately due to him at the time of termination of his employment. See OBANYE v. UNION BANK (2018) LPELR-44702(SC).
It is therefore the opinion of this Honourable Court that the Claimant’s termination was wrongful, the length of notice having not being complied with, nor payment in lieu thereof offered by the defendant.
For the avoidance of doubt, it is hereby Ordered as follows:-
1. That the Defendant shall pay to the Claimant his consolidated monthly salary in lieu of notice. This is by virtue of Article 25 of the employee handbook. (Exhibit C6). And the Defendant shall also pay to the Claimant his terminal benefits and entitlements if any, in accordance with Exhibit C6 since the termination is declared wrongful.
2. This Honourable Court awards N 1,000,000.00 to be paid by the Defendant to the Claimant as general damages for wrongful termination of employment.
Judgment is entered accordingly.
……………………………………………………..
HON. JUSTICE S. H. DANJIDDA
JUDGE
