THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
Before His Lordship:-
HON. JUSTICE E.D. E ISELE – JUDGE
DATE: 5th OCTOBER, 2018 – NICN/ABJ/246/2015
BETWEEN:
- YUNANA YAKUSAK
- CHUKS CHUKWU CHINAGOROM – CLAIMANTS
AND
- AS OPERATIONS WEST AFRICA LTD
- MARY ELLEN HAVLIK – DEFENDANTS
(HEAD AS OPERSTIONS
WEST AFRICA LTD)
REPRESENTATION : 2nd Claimant present.
Ndubisi Uzoanya for the Claimant.
- Tunde Olowu for the Defendants with S.Dundun
JUDGMENT
The Claimants commenced this suit via a writ of complaint filed on the 4th of August, 2015 seeking the following reliefs against the Defendants:
- A Declaration that the purported release of only the Claimants from the employment by the letters of release dated the 26th of May, 2015 is wrong, discriminatory and unfair.
- A Declaration that the Defendants are in breach of the Defendant’s disciplinary guidelines for the termination of the Claimant’s employment.
- A Declaration of this Honourable Court that the employment of the Claimants still subsists, the Defendants having breached the procedure for the termination of the Claimants’ employment.
- An Order of this Honourable Court directing the Defendants to immediately pay the Claimants their monthly salaries from the month of May, 2015 till their employment is properly terminated or till the day judgment is delivered in this suit.
- An Order of this Honourable Court directing the Defendants to immediately pay the Claimants their overtime bonuses for the month of April and May, 2015.
- Five Million naira (₦5,000,000) each as general damages.
- One Million naira (₦1,000,000) as cost of this suit.
The Claimants filed a joint Statement of facts along with witness statement on oaths and documents to be relied on.
THE CLAIMANTS’ CASE
The case of the Claimants as set out in their pleadings is that the 1st Claimant is a Head Driver of the 1st Defendant a fully owned subsidiary Company of Adam Smith International (ASI) whom the 1st Claimant worked from August, 2008 till the incorporation of the 1st Defendant by Adam Smith International to do business in Nigeria, wherein the 1st Claimant was absorbed by a letter of employment in Exhibit A – A2 dated the 31st day of January, 2014, the said letter of employment was pleaded.
The 2nd Claimant on the other hand was a Driver of the 1st Defendant and worked from February, 2012 till the incorporation of the 1st Defendant to do business in Nigeria wherein the 2nd Claimant was absorbed by Exhibit F – F2 a letter of employment dated the 31st day of January, 2014. The Claimant averred that the 2nd Defendant is the Head/General Manager of the 1st Defendant here in Abuja and she also signed their letters of employment. According to the Claimants, they had worked with the Defendants for a period of 3 months after their absorption and so were entitled to confirmation letters of their appointments in accordance with the terms of employment but that they were never given the said confirmation letters. But that they were to be given a copy of the 1st Defendant’s staff manual and the Standard Operating Procedures (SOPs) which regulates their employment with the Defendants which the 1st Defendant’s management failed to give them. According to the Claimants, the 1st Defendant’s management said that only necessary pages of the staff manual and the Standard Operating Procedures would be given to the Claimants and their colleagues.
The Claimants averred that they were consequently given copies of their job description in April, 2014 along with Disciplinary Guidelines, overtime rates, calculations and the Defendants Risk Management plan in Nigeria. According to the Claimants by their terms of employment, they are entitled to overtime bonus for overtime jobs done and this becomes due on the last day of each month and that their April, 2015 bonus was not paid up till the 26th of May, 2015. The Claimants maintained that their working conditions were poor and some of their benefits were deprived them and that in order to convey their poor working conditions, non-payment of their April bonus and other problems to the management of the 1st Defendant, the Claimants and their colleagues all over Nigeria decided to have a peaceful protest on the 26th of May, 2015 within the confines of their office by taking their letter admitted as Exhibit E2 and titled “Drivers Heart sore” to the Management of the Defendants.
The Claimants stated that on 26th May, 2015, they arrived work on time, did their usual morning routines of washing their cars ready for work, afterwards they all held their papers of protest to the management of the Defendants this was within the hours of 7:15 am to 7:45 am. And they made their problems known to the Defendants through their direct Supervisors in persons of the Security Manager and the Transport Manager Kabir Adamu and Jackson Okwunofor who also addressed them on behalf of the 1st Defendants management. According to the Claimants, the letters of protest were collected by the 1st Defendants representatives and they were asked to go back to work with the assurance that the letters will be looked into within 7 days. The 1st Claimant averred that as the Head of the Drivers in Abuja, he asked the drivers to resume work immediately which they all did.
The Claimants aver that they all did their duties on the 26th of May, 2015 on time and none of their duties for that said day was left undone. But that they were called after work on the 26th of May, 2015 by the 2nd Defendant and issued their letters of Release from the 1st Defendant’s employment dated the same 26th of May, 2015 and signed by one Linda Kalu. According to the Claimants, only the Claimants out of the twenty drivers in the Abuja branch of the 1st Defendant who protested on the said 26th of May, 2015 for their poor working conditions were released from their employment due to the Claimants participation in the said protest. The Claimants maintained that they have never been given any query or disciplined by the Defendants since their employment and are not in breach of any law by peacefully asking for a better working condition.
The Claimants stated that there are laid down disciplinary guidelines to be followed before the employment of any staff of the 1st Defendant can be terminated and that the Defendants failed, neglected and refused to follow the said disciplinary guidelines before the purported release of the Claimants’ employment which they are bound by.
The Claimants further stated that the Defendant gives a loan incentive to all the staff for an amount depending on your grade level which is usually paid every February of each year to be deducted from the Claimants’ salary each month within a space of ten months. And that the Claimants received the said loan incentive in the month of February, 2015 in the sum of Three Hundred Thousand naira (₦300,000) and Two Hundred and Eighty Thousand naira (₦280,000) for the 1st and 2nd Claimants respectively. According to the Claimants, the deductions are to be done in the sum of Thirty Thousand naira and Twenty – Eight Thousand naira for the 1st and 2nd Claimants respectively.
The Claimants maintained that their salary for May, 2015 and bonus for overtime work done in April and May, 2015 were also not paid them even after they had worked for it and they were released of their employments without payments of any sort. And they consulted their lawyers who wrote to the Defendants via a letter of July 7, 2015 to which the Defendants replied through their lawyers via a letter dated the 27th of July, 2015. The Claimants then stated that the Defendants’ actions has caused the Claimants and their families so much emotional trauma and pains and is discriminatory and a breach of their rights.
THE CASE OF THE DEFENDANTS
The Defendants’ case is that the Claimants are ex – employees of the 1st Defendant who by their respective letters of employment were appointed as drivers to the 1st Defendant on 1st February, 2014 and they were entitled to ₦1,080,000 (One Million, Eighty Thousand naira) and ₦960,000 (Nine Hundred and Sixty Thousand naira) as their respective annual salaries which amounted to a monthly salary of ₦90,000 for the 1st Claimant and ₦80,000 for the 2nd Claimant. The Defendants further averred that the Claimants’ contract of employment provided for them to work overtime and they were paid ₦300 per hour as allowances for the extra hours they worked with the 1st Defendant.
The Defendants maintain that the respective employments of the 1st and 2nd Claimants were governed by provisions of the Nigerian Labour Act. According to the Defendants, it catered to the Claimants and other drivers and fed them beverages and provisions during the day and that the Claimants were also entitled to stay overnight on the 1st Defendant’s official premises when their services are required and the remuneration for this was the sum of ₦1,500 per night while the sum for overtime was ₦300 per hour. The Defendants stated that sometime in February, 2015, the 1st Claimant by a letter dated 24th February, 2015 applied for a salary advance in the sum of ₦300,000 which he requested should be deducted from his salary and this application was granted. The Defendants also stated that the 2nd Claimant by a letter dated 24th February, 2015 applied for a salary advance in the sum of ₦280,000 which he also requested should be deducted from his salary and the application was granted.
The Defendant further maintained that contrary to the Claimants’ averments in paragraph 5 of their Statement of facts, the Claimants were not always diligent in the performance of their duties as the management of the 1st Defendant had to issue verbal queries and written warnings and that the Claimants also ignored several safety and operational standards when they were on duty and this led to the theft of personal effect of the 1st Defendant’s Project Consultants. That on some occasions the Claimants jeopardized the physical safety of some of the 1st Defendant’s Consultants as they were abandoned in volatile environments.
The Defendants averred that at no time whatever were the Claimants informed, verbally or in their contracts of employment, that the Claimants would be entitled to Confirmation letters at the end of their probationary period with the 1st Defendant. The Defendants maintain that although the terms of the Claimants’ contracts of employment stated that the Claimants were to undergo a 3 months’ probation, the Defendants were not bound by their agreement with the Claimants to issue them with Confirmation letters at the end of the probationary period as it was evident that they had successfully completed their probations. The Defendants stated that the Claimants never demanded for the staff manual and the Standard Operating Procedures and that they were given copies of the relevant portions of the SOP two months after their resumption with the 1st Defendant. The Defendants stated that the Claimants were aware that the 1st Defendant did not yet have a staff manual and that the SOP relates to several facets of its operations and so the Claimants were simply given a catalogue containing the SOP that related to their functions as drivers.
The Defendants averred that although it gave the Claimants their job descriptions and overtime rates calculations the Claimants were never given any disciplinary guidelines. And that although it pays overtime bonuses to its drivers, there is no agreement to the fact that this overtime payments became due on the last day of each month but rather that the bonuses were calculated and reviewed by the first week of the next month following when it is earned for appropriate accounting purposes and it is at the end of this verification process that the overtime allowances are paid. The Defendants maintain that they were not under any obligation to pay the Claimants their April overtime allowance in April, 2015.
The Defendants further maintained that the Claimants never worked under poor working conditions and were never deprived of their benefits and that the 1st Defendant was not under any obligation to increase the Claimants’ salaries and that the Claimants were already enjoying benefits which included health care, paid sick leave and paid vacation leave which was much higher than that provided under the Nigerian Labour Act. The Defendants also stated that the Claimants along with other drivers had been repeatedly told to clean their offices and lounge area where they worked as it was only logical that they keep the place clean. The Defendants maintained that the protest which was instigated by the Claimants in the Abuja office of the 1st Defendant was not peaceful and disrupted the economic activities of the 1st Defendant.
The Defendants further stated that the 1st Claimant in a brazen display of insubordination blatantly refused to drive the 2nd Defendant to her residence despite the fact that the she called him several times. The Defendants also averred that the Claimants did not carry out their regular routine of washing their cars and their protest did not hold within the hours of 7:15 am and 7:45 am on 26th May, 2015. But that the Claimants carried out their protests from about 7:30 am to 8:15 am and did not commence their duties until about 8:31 am on 26th May, 2015.
The Defendants further maintained that as at 25th May, 2015, the Claimants were aware that the 1st Defendant had several Consultants who were scheduled to arrive Abuja by various flights on 26th May, 2015 and the Claimants and the 1st Defendant’s other drivers were expected to pick up these Consultants from the Abuja airport. But that the Claimants refused to work on the 26th of May, 2015 as they insisted that their overtime bonuses must be paid. The Defendants also stated that the Claimants also attempted to encourage other drivers of the 1st Defendant in its Lagos, Cross River, Kano and Kaduna offices to participate in the purported protests and these other drivers refused.
The Defendants averred that the refusal of the Claimants to pick up the external Consultants from the airports left them stranded and that in a bid to amicably resolve the protests which had been staged by the Claimants, the 2nd Defendant approached them to discuss the situation but the 2nd Claimant walked up to her in a threatening manner and insisted that he would not return to work until his demands are met. The Defendants also stated that Mr Kabir Adamu is a Consultant that works with the 1st Defendant’s Security Officers. And that following the actions of the Claimants, the management of the 1st Defendant requested the 1st Defendant’s Security Consultant along with the 1st Defendant’s Transport Manager to approach the Claimants and the other drivers to determine the cause of their aggression and refusal to work. According to the Defendants, these Transport Manager and Security Consultant could not have assured the Claimants that the issues raised would be looked into within seven days as they lacked the capacity and mandate to give such assurances.
The Defendants averred that the Claimants presented a document titled “Drivers Heart sore” (Exhibit E2) and that they also threatened that they would not return to work until their demands as set out in the documents were immediately met by the 1st Defendant. The Defendants maintained that there is no provision under the law or their contracts that empowered them to form a Union to interrupt the 1st Defendant’s activities and that there is no drivers’ Union or Trade Union that represents the interests of the drivers within the 1st Defendant’s company. The Defendants maintained further that the only issues which the 1st Defendant had an obligation to fulfil was to pay the Claimant their overtime allowances and provide medical scheme and that they were already fulfilling these. According to the Defendants, the outcome of the investigation conducted by the two independent investigative Committee set up by the 1st Defendant revealed that the 1st and 2nd Claimants were the master minds behind the protest and they had also instigated the 1st Defendant’s drivers in the Abuja office to join them in protesting against the management of the 1st Defendant.
The Defendants maintained that the reason the Claimants were relieved of their employment was because rather than seeking to resolve whatever misconceptions they had with the 1st Defendant through legitimate channels, the Claimants planned, connived and instigated the illegal protest against the Defendants. The Defendants further stated that the Claimants had been queried on more than one occasion during their employment and they had also been given several warnings for their infractions. The Defendants maintained that there were no disciplinary guidelines that governed the relationship between the Claimant and the Defendant and that the only document that applied to the Claimants employment were the Standard Operating Procedures, their contracts of employment and the Nigerian Labour Act.
The Defendants also averred that the 1st Claimant was on a monthly salary of ₦90,000 and not ₦108,000 and that at the time his employment was terminated, he was entitled to his overtime allowance of ₦12,400 and his salary for May was computed at ₦90,000. The Defendants stated that at the time of the 1st Claimant’s dismissal, only the sum of ₦60,000 had been deducted from his salary and he still an outstanding of ₦240,000 to offset from the ₦300,000 loan and as a result the 1st Defendant deducted the ₦90,000 and ₦12,400 overtime from this sum and realised that the 1st Claimant was still indebted to it to the sum of ₦137,600, the 1st Defendant then further deducted the 1st Claimant’s taxes, housing allowances and pension contribution and the 1st Claimant was left owing the sum of ₦47,600.
The Defendants also averred that at the time the 2nd Claimant was dismissed, he was entitled to his overtime allowance of ₦27,950 and his salary for the month of May, 2015 was also computed at ₦80,000. The Defendants stated that at the point of the 2nd Claimant’s dismissal, only the sum of ₦56,000 had been deducted from the 2nd Claimant’s salary with an outstanding of ₦224,000. And as a result, his salary of ₦80,000 was deducted along with the ₦27,950 overtime bonus but the 2nd Claimant was still indebted to the sum of ₦116,050 and so a further deduction of the 2nd Claimant’s taxes, housing allowances and pension contributions left the 2nd Claimant’s owed sum at ₦36,050. The Defendants then maintained that the Claimants were dismissed in line with their respective contracts of employment and that they are not entitled to any payments.
It was on these bases that the Defendants made the following Counter claim against the Claimants/Defendants to Counter Claim:
- An Order of this Honourable Court directing the 1st and 2nd Claimants/Defendants to Counterclaim to immediately refund the 1st Defendant/Counter Claimant the sum of ₦47,600 and ₦36,050 respectively being the outstanding funds on the loans which were advanced to them when they were under the employment of the 1st Defendant/Counter Claimant.
- Special damages in the sum of ₦3,000,000 representing the 1st Defendant/Counter Claimant’s Solicitor’s fees for representation in this suit.
CLAIMANT’S REPLY AND DEFENCE TO THE DEFENDANTS’ JOINT STATEMENT OF DEFENCE AND COUNTER CLAIM
In the Claimants’ reply, they maintained that they were never issued any verbal queries or written warnings neither have any safety and operational standards have been ignored by the Claimants nor have they jeopardised the physical safety of any of the 1st Defendant’s Consultants in any way. The Claimants also stated on the issue of dropping car keys in most cases they had to plead with the Consultants to collect the car keys and that on the 1st Claimant’s trip to Kaduna, the Consultants he took to Kaduna bluntly refused to take the car keys and the 1st Defendant and Linda Kalu were aware.
The Claimants also maintained that the 1st Defendant always paid the overtime rates at the last day of every month until March, 2015. And that they have never been paid any vacation leave allowance of any sort, the insurance health care was paid out of the Claimants’ salaries, their work conditions were poor. The Claimants also stated that the protest was peaceful and did not last more than 30 minutes and no economic activity of any sort was disrupted.
The Claimants maintained that the 2nd Defendant was instructed that no driver should drive when it’s past 5 pm Nigerian time unless the driver is on duty for overtime job. According to the 1st Claimant, on the night of 25th May, 2015, at about 8:00 pm, the 2nd Defendant called him to take her home but he told her that he was not the overtime driver for the day and suggested to get the driver on overtime to take her home but the 2nd Defendant decided to drive herself home. The 2nd Claimant further averred that he picked up Joseph Cheng on the morning of the said day of protest. The Claimants further maintained that they did all their scheduled duties on the said 26th of May, 2015.
The Claimants averred that the 2nd Defendant refused to come and see them and that it was only Kabir Adamu, the 1st Defendant’s Chief Security Officer/Security Manager and Transport Manager Jackson Okwunofor that addressed them on behalf of the 1st Defendant’s management and that after the address, they went back to their duties immediately. The Claimants stated that the documents regarding the independent investigative committee are not known to them and that the Claimants never master minded the peaceful protest but that it was rather done based on the collective agreement of the 1st Defendant’s drivers. The Claimants further maintained that they were given disciplinary guidelines that governed their relationship with the Defendants as an appendix to their job description together with their overtime rating document and the Standard Operating Procedures. And that the salary advance was an entitlement of all the Defendant’s staff. The Claimants also averred that all the mails, minutes and correspondences attached to the Defendant’s Statement of Defence and Counterclaim are not to their knowledge as they are seeing same for the first time.
In their defence to the Counterclaim, the Claimants maintained that they do not owe the Defendants any money as particularised in their special damages rather it is the Defendants who were indebted to the Claimants for wrongful dismissal and also overtime bonuses for the month of May, 2015 calculated at the rate of ₦14,750 for the 1st Claimant and ₦26,900 for the 2nd Claimant. The Claimants further stated that the Claimants have no business with the Defendants’ Solicitor fees as they were not privy to such contracts.
DEFENDANTS’ REPLY TO CLAIMANTS’ DEFENCE TO THE DEFENDANTS’ COUNTERCLAIM
In the reply, the 1st Defendant/Counter Claimant maintained that it issued verbal warning and that it does not always pay the Claimants’ overtime rate at the end of each month. The Defendants also averred that the Claimants were entitled to leave allowance and health care insurance was provided and paid according to law. That the Claimants’ protest disrupted the economic activities of the 1st Defendant and the 1st Claimant was on overtime duty on 25th May, 2015 but refused to convey the 2nd Defendant to her residence.
The Defendants then reiterated their averments as set out in their Statement of Defence and Counterclaim.
At the close of hearing, the parties filed their final written addresses.
FINAL WRITTEN ADRESS OF PARTIES
In the Defendants final written address, three issues were raised for determination:
- Whether the Claimants have put forward any credible evidence before this Honourable Court to establish that they were wrongfully dismissed by the 1st Defendant?
- Whether the Claimants are entitled to any of the reliefs sought against the Defendants in this suit?
- Whether the Defendants are entitled to judgment on the Counterclaim sought against the Claimant?
In the arguments on issue one, Counsel submitted that under Nigerian Labour Law, an employee’s contract of employment is regulated by Common law, his contract of employment and/or the Nigerian Labour Act CAP L1, LFN 2004. Counsel set out Section 91 of the Labour Act and submitted that the categories of employees excluded from the definition of workers (and by extension, the application of the Labour Act) include persons performing administrative, executive, technical or professional functions. According to Counsel, the effect of the foregoing is that since the Claimants were not employed to carry out administrative, executive, technical or professional functions, they fall within the definition of workers and their contracts of employment are governed by the Labour Act.
Counsel stated that it is equally the law that parties are bound by their contracts and the Court is unlikely to interfere with the clearly outlined agreement of parties unless there is evidence of the presence of vitiating elements such as undue influence, misrepresentation or illegalities. Counsel then submitted that the 1st and 2nd Claimants’ letter of employment (Exhibits A – A2 and F – F2) remain the binding document which this Court ought to consider in determining the claims in this action. Counsel then set out paragraph 2 at pages 3 of the 1st and 2nd Claimants contract of employment and submitted that it is clear from the said paragraphs that either party could terminate the contract of employment by either giving the other party one month’s notice or paying one month’s salary in lieu of notice and that the parties also agreed that the 1st Defendant could dismiss the Claimants summarily on disciplinary grounds without notice or salary in lieu thereof.
Counsel further submitted that the Claimants failed to lead any evidence to show that the 2nd Claimant carried out his obligations before conducting the protest which led to the disruption of the 1st Defendant’s business. In addition, Counsel stated that Exhibit DD3 and DD4, the Committee memo from the strike shows that the Claimants were the master minds and instigators of the stop work protest against the management of the 1st Defendant and that the Claimants admitted during trial that their letters of employment does not authorise them to organise or participate in the protest. Counsel cited S. 123 of the Evidence Act, 2011 and the case of F.M.H V. CSA LTD (2009) 9 NWLR (PART 1145) at paragraph 214 para D – F in support of the principle that facts admitted by a party need no further proof. Counsel maintained that the actions of the Claimants were considered as gross misconduct by the Defendants and Exhibits C2 and H5 was explicit that their dismissal was as a result of their involvement and participation in the unauthorised stop work protest. According to Counsel, the dismissal of the Claimants by the 1st Defendant was completely justified on grounds of their acts of gross misconduct and insubordination.
On the second issue, Counsel stated that the Claimants are not entitled to the declaratory reliefs sought and their claims should be dismissed by this Honourable Court because the Courts of law have held in a plethora of authorities that a legal remedy is only available where a right has been breached. Counsel also maintained that the Claimants were not able to prove that they were wrongfully dismissed by the Defendants and as such the Court cannot declare that their dismissal is wrong, discriminatory or unfair. On the second relief sought which is a declaration that the Defendants breached the 1st Defendant’s disciplinary guidelines when they terminated the Claimants’ employment, Counsel submitted that when parties have joined issues regarding an averment, proof of these averments become necessary by reason of the disputed issues citing MOHAMMED V. STATE (2007) 11 NWLR (PT. 1045) 302 at 327 paragraph C – D. Counsel submitted further that it became necessary for the Claimants to prove that Exhibit B2 and B3 originated from the Defendant. Counsel stated that this exhibit has no author, did not contain the logo of the Defendant but rather made reference to “the employer”. According to Counsel, the 1st Defendant was a stranger to the so called “Disciplinary Guidelines” and it could have been made by anyone.
Counsel submitted that only Exhibits A – A1 and H – H2 from the terms of the parties’ contract in this case and that Exhibit B2 – B3 was simply a draft document and could not have applied to the Claimants. Counsel then urged the Court to discountenance Exhibit B2 – B3 and no probative value should be ascribed to it as it is foreign to the contract between the Claimants and the 1st Defendant. Reliance was placed on the case of UBN V AJABULE (2011) 18 NWLR (PT. 1278) 152 @ 185 paragraphs F – G. Counsel maintained that Exhibit B2 – B3 speaks for itself and ought to be interpreted accordingly. Counsel also stated that Exhibit B2 – B3 does not prejudice the Defendants as it allows “the employer” to dismiss an employee in rare cases without following procedure which it lays out and that this means that the Claimants could be dismissed summarily.
On the final declarative relief, Counsel maintained that the Defendants did not breach the procedure for terminating the Claimants’ employment as they had no disciplinary guideline at the time of the dismissal. Counsel submitted that the incidences of employment with statutory flavour do not apply to the Claimants’ employment and so even if the Claimants were wrongfully dismissed, this Court is not authorised by law to order their reinstatement.
On the monetary reliefs sought by the Claimants, Counsel maintained that the Claimants having been dismissed on grounds of gross misconduct and insubordination cannot be entitled to any salary. Counsel also stated that if the Claimants’ employment was wrongfully terminated, the Claimants cannot be paid monthly salaries from the time they were terminated until judgment is delivered as on the authority of NONGU V. LOCAL GOVERNMENT SERVICE COMMISSION & ANOR (2011) LPELR – 4851 but that all they would have been entitled to would be their one month salary in lieu of notice. Further on, Counsel submitted that having admitted that they (the Claimants) were owing the 1st Defendant, it is no longer necessary to prove the Claimants’ indebtedness because a simple computation of the money advanced to the Claimants and the time their employment was terminated would show the right figure of what the Claimants owe the 1st Defendant.
Counsel also stated that the Claimants are not entitled to general damages or any form of damages at all because the suit is premised on breach of contract and the position of the law is that general damages are not awarded in an action of this nature. Counsel also stated that regarding the cost of One Million naira, it is settled law that costs are not awarded arbitrarily as it is a form of special damages that must be specifically pleaded and proved. Counsel maintained that due to the fact that the Claimants failed to specifically plead and tender relevant documents that show the costs they incurred, their claim in this regard should fail.
On the third issue, Counsel submitted that there is merit in the Defendants’ Counterclaim and urged the Court to grant the reliefs as the Defendants have established the Counterclaim against the Claimants.
In the Claimants’ final written address, three issues were formulated for determination:
- Whether the Claimants have discharged the onus of proof that their dismissal/release from their employments by the Defendants was wrongful, discriminatory and unfair.
- Whether the Claimants are entitled to the reliefs sought against the Defendants in this suit.
- Whether in the circumstances and facts of this suit the Defendants are entitled to judgment on the Counterclaim sought against the Claimants.
In the arguments, Counsel for the Claimants submitted that the Claimants have adequately discharged the onus of proof that their dismissal/release from their employments on the 26th day of May, 2015 by the Defendants was wrongful, discriminatory and unfair. According to Counsel, from the totality of the facts what led to the dismissal of the Claimants was a peaceful protest by the Claimants and their colleagues on 26th May, 2015 to inform the management of the 1st Defendant of the need to improve their working conditions as spelt out in Exhibit C and C1. Counsel maintained that Exhibits A1 and A2 and F1 and F2 specifically provide that the employment of the Claimants shall be governed by the Nigerian Labour Law and as such the Nigeria Labour Law permits protest as a means of an employee putting further a demand for a better or improved working condition to an employer.
Counsel further submitted that the submissions of Counsel for the Defendants in paragraph 4.12, 4.14 of the Defendants’ final written address were strongly controverted in paragraphs 12, 13, 14 of the Claimants’ reply to the joint Statement of Defence and proved by evidence and as such the burden now shifted to the Defendants but no further evidence was called or adduced to debunk the Claimants’ evidence. Counsel maintained that from the totality of facts and evidence before the Court, the Claimants have shown that on the 26th of May, 2015 there was work as usual amidst the Claimants demand for a better working condition. Counsel also submitted that no contract of employment prohibits employees from association for the protection of their interest and any contract with such prohibition will be null and void as same will amount to breaching the fundamental right of such employees. According to Counsel, the Claimants in the instant case had no such prohibition in Exhibits A1 and A2 and F1 and F2.
Counsel submitted in paragraphs 4.43 that it was wrong for the Defendants to hold that the expression of the rights of the Claimants and their colleagues for a better working condition amounted to “gross misconduct below the standards expected of your role” to warrant a dismissal on disciplinary grounds. Counsel maintained that the act of demanding for their interests is a constitutional right of the Claimants citing Section 40 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Counsel also stated that picking only the Claimants for dismissal is discriminatory and unfair.
Counsel also maintained that the Defendants’ evidence that the protest was master minded by the Claimants amounts to hearsay evidence which is inadmissible in law because no other driver who participated in the protest was called as a witness to testify to that fact. Counsel further stated that the Defendants’ efforts to deny the Disciplinary guidelines are futile and urged the Court to discountenance same as the disciplinary processes and staff manual incorporated as part of the condition of service.
On the second issue, Counsel submitted that if the Court holds issue one in the affirmative in favour of the Claimant then the Court has the jurisdiction to grant reliefs 1, 2 and 3 sought by the Claimants therein. According to Counsel with respect to reliefs 3, that the Defendants who breached the procedure for dismissal indeed dismissed the Claimants wrongfully. Counsel also maintained that reliefs 4 and 5 sought by the Claimants in this suit are rights and entitlements of the Claimants because the Claimants are entitled to their salaries from May, 2015 till judgment as well as their April and May, 2015 overtime allowances. With respect to reliefs 6 and 7, Counsel submitted that the Court is empowered by the statute creating the Court (National Industrial Court Act, 2006) and the rules of the Court to grant damages and cost as sought by the Claimants in this suit.
On the third issue, Counsel stated that the Defendants are disentitled to the Counterclaim sought against the Claimant because the salary advance was given to the Claimants on the basis of the fact that they are staff of the Defendants with the means of offsetting the said salary advance but that the Defendant wrongfully took away the said jobs and still expect them to pay the said sum from no job. According to Counsel, computing the total May, 2015 overtime bonus of the Claimants and their salaries for June, 2015, the Claimants will have to their credit the sum of ₦104,750 and ₦106,900 for the 1st and 2nd Claimants respectively. Counsel stated that if the amounts counter claimed by the Defendants are deducted from the said sum, the Claimants would still have to their credit from the Defendants, the sum of ₦57,150 and ₦70,850 for the 1st and 2nd Claimants respectively. According to Counsel, upon proper calculations and deductions, the Defendants are still indebted to the Claimants and not entitled to the sum counter claimed from the Claimants.
In the reply on points of law filed by the Defendants, Counsel submitted that the documents tendered by both parties and admitted in evidence speak for themselves and that Counsel to the Claimants’ submission that Exhibits A1, A2 and F1 and F2 incorporated Exhibit B2 and B3 is erroneous as a review of the last paragraph in Exhibit A1 and A2 and F1 and F2 will reveal the following provision:
“Conditions of Service
Your employment shall be governed by the Nigerian Labour Law. You will be subject to the rules and conditions of work including disciplinary processes as set out by the Management of ASO Ltd in the Company’s staff manual and in other communications which are circulated by ASO Ltd’s Management from time to time”
Counsel then urged the Court to apply the decision of the Court in UBN LTD V. SAX (NIG) LTD (1994) LPELR – 3390 and give Exhibits A1 and A2 as well as F1 and F2 their ordinary meaning. Counsel also maintained that Exhibit DA – DA13 speaks for itself and the words of Counsel, no matter how persuasive, cannot take the place of adduced evidence because a review of Exhibit DA – DA13 alongside the weekday drivers’ morning pickup schedule (Exhibit E) shows that the 2nd Claimant was assigned to make a pickup at “Agadez Apartments” between 8:00 am and 8:30 am on 26th May, 2015 but that the vehicle with plate number YAB 703 JL which was assigned to the 1st Claimant for the week was parked between the hours of 12:01 to 8:33 am on 26th May, 2015 and was only moved at 8:37 am. According to Counsel, Exhibit E shows that the 2nd Claimant was assigned to drive the vehicle with plate number YAB 703 JL and not the vehicle with plate number ABC 325 AJ.
Counsel also submitted that the provisions of section 133 (1) and (2) of the Evidence Act, 2011 as cited by the Claimants in paragraph 4.29 of their written address does not apply in this instance as the onus to prove the performance of the task for 26th May, 2015 remained the responsibility of the Claimants.
Counsel further maintained that the Defendants did not have a duty to produce a vehicle signing book because Exhibit E and DA – DA13 already contain the information which the Claimants sought to establish through the purported vehicle signing book. Counsel maintained that Exhibit E clearly shows which vehicle each driver was assigned to drive, while Exhibit DA – DA13 shows the movement of each vehicle on 26th May, 2015.
Counsel also submitted that the Claimants failed to prove that the Defendants were discriminatory and engaged in unfair labour practices. According to Counsel, contrary to the submissions in paragraph 4.43 – 4.59 of the Claimants’ final written address, the dismissal of the Claimants was justified and founded in law as the Claimants were dismissed on grounds of insubordination. Counsel stated that Exhibit DD – DD2 presents clear evidence that the Claimants had received queries in the past and that Exhibit B – B3 tendered by the Claimants also show that the 1st Defendant can dismiss an employee for a first time offence on disciplinary reasons which supports the 1st Defendant’s actions in this case. Counsel then urged the Court to give Exhibit DD – DD2, DD3 – DD5 and B2 – B3 their ordinary meanings and that the Defendants did not breach the Constitution of the Federal republic of Nigeria 1999 (as amended) and the Nigerian Labour Act.
Counsel also submitted that the Claimants failed to show how they were wrongfully dismissed because the Claimants did not fulfil their primary duty to show that their dismissal was wrongful and so the Court cannot make declaratory reliefs without the necessary evidence. Counsel maintained that the Claimants have not shown that there is a nexus between the facts of this case and the judicial authorities cited. Counsel then urged the Court restrict itself to the evidence led by both parties to arrive at its decision.
Counsel stated that the Claimants have an obligation to repay the 1st Defendant the outstanding balance on the salary advances because the Claimants argument that in view of the fact that they were dismissed by the 1st Defendant, they cannot be expected to repay the debt owed is unacceptable as it is not based on any known principle of law.
COURT’S DECISION
Having gone this far in the judgment, I must state that the conduct of both Counsel in the pursuit of the cases of their clients has been very praise worthy. Regarding the facts of the case, there were no major disputes as to what went on between the parties leading the Defendants’ putting an end to the Claimants’ employment with them. So looking at the facts as given by either of the parties together with the evidences they have both laid out before the Court and the law, particularly the law as gleaned from judicial precedents as guide from similar cases to this one at hand, it is to such that the Court must now turn to for guidance with regards to the various heads of claim of the Claimants/Defendants to Counterclaim and the Counterclaim itself as they are linked to the issues formulated for determination by the parties.
In the first head of claim for declaration that the purported release of only the Claimants’ employment by Exhibits C2 (for the 1st Claimant) and H5(for the 2nd Claimant) both dated 25th May, 2015. Both letters are identically worded and it provides:
“RELEASE FROM AS OPERATIONS WEST AFRICA LTD (ASO),
This letter confirms your release from your appointment with AS Operations West Africa Ltd, effective immediately.
You are discharged due to your involvement and participation in the unauthorised stop work protest that occurred today. This action is totally unacceptable and ASO does not and will not tolerate any such action. Your actions were deemed to be highly unprofessional and amounted to gross misconduct below the standard expected of your role.
The letter follows previous warnings of your responsibility to conduct yourself in a manner which befits your laid out role.
We would like to draw your attention to your employment offer letter, which you signed in February, 2014, the paragraph on Termination of appointment which stated:
‘In the event that your appointment is terminated you will be given at least one months’ notice or paid one months’ gross salary subject to usual statutory deductions. Similarly in the event that you want to resign from your appointment, you will be required to give a similar notice or make similar payments in lieu thereof. These provisions shall however not apply where on disciplinary grounds you are summarily dismissed.”
You are kindly requested to hand over all ASO documents and properties in your possession.
This release letter, Record of Employment (ROE) and your pay slip advice will be prepared in duplicate and delivered to you. Upon receipt, please endorse one copy of each for return to this office.
We thank you for your services and wish you all the best in your future endeavours.
Yours faithfully. . .”
The letter was signed for the 1st Defendant. Now in their written addresses, Counsel had argued on the documents tendered before the Court that the documents would speak for themselves. I must therefore state straight away that Exhibit C2 and H5 are not letters of dismissal. I have just read out the contents and they both read more like letters of termination, which I find and do hold that they are, rather than letters of dismissal. A letter of dismissal by its very nature must be so headed so as to leave no one in doubt what it states or purports to be. Here the word “Release” from ASO Operations is used. According to the Oxford Advanced Learners Dictionary (New 9th Edition, 2015) the word Release in this context is defined as:
“Free somebody from duty, to free somebody from a duty, responsibility, and contract e.t.c.”
Whereas the same Dictionary defines the verb dismiss to mean:
“To officially remove somebody from their job, with synonyms being; fire, sack.”
The word Dismissal is defined as “the act of dismissing somebody from their job”.
And it is worth noting that the contextual examples given in the dictionary resonates with that here; of workers/an employee claiming to be unfairly dismissed.
I hold that though the Defendants have held out and treated this matter as one of dismissal, the two Exhibits are definitely speaking of release which is more at termination. More so, I find that the clause referred to from Exhibit A and F on termination of employment specifically at the last sentence which states: “These provisions shall however not apply where on disciplinary grounds you are summarily dismissed”.
This is not the case here because Exhibits C2 and H5 ought to have conveyed that meaning to the Claimants that they had been summarily dismissed which they clearly did not do. Though the word discharged was used in the second paragraph it cannot in the context of the provisions of Exhibits C2 and H5 and A and F be treated as a dismissal, as a dismissal letter cannot go as far as talking of preparing the Claimants payslip advice in duplicate for them to endorse and return to the 1st Defendant as expressed in the 7th paragraphs of Exhibits C2 and H5. As the same dictionary definition defines discharge to mean: “To give somebody official permission to leave a place or job, to make somebody leave a job”. Clearly the definitions itself are not categorical enough in my view as to be synonymous with dismissal, and I cannot treat the release as a dismissal as a result of the reasons given and I so hold.
I however find and do hold here that there is no evidence of discrimination against the Defendants as none of that (discrimination) was demonstrated or shown to exist from the pleadings of the Claimants and the evidence before the Court.
As to whether the Defendants are in breach of the 1st Defendants disciplinary guidelines in the termination of the Claimants’ employment in the second head of claim for a declaration to that effect, the Claimants maintained that having worked with the Defendants after their absorption for over a period of 3 months that they were entitled to confirmation letters of their appointments in accordance with their terms of employment but were never given until they requested for them and they were given only necessary parts as it affected their employment. The Claimants in the written address referred to Exhibit B2 and B3 the 1st Defendant’s disciplinary guidelines and urged the Court to discountenance the Defendants submission that Exhibits B2 and B3 were foreign to the contract between the Claimants and the 1st Defendants. The Claimants stated that the Court could not close its eyes to a document referred to as part of the conditions of service in the Claimants’ employment letters, that if the document in Exhibit B2 and B3 was irrelevant as reference would not have been made to it in Exhibits A1 and A2 and F1 and F2 and Exhibits DC – DC4 and DC – DC9 (a trail of email communications on travels) where several references were made in the said emails and the need to comply with the disciplinary process; that the Claimants through Counsel did not however specifically point out which sections or portions of these Exhibits that were being referred to. Though Counsel referred the 2nd Defendant to the last paragraph of Exhibit G2 in her cross examination which provides on Termination or discharge:
“An employee is discharged for grave misconduct, it is normally based on an accumulation of infractions, when all other remedial disciplinary measures have failed. The employee must have been informed of any previous infractions and have been given a final warning that further misconduct could result in termination of employee.
The employer must illustrate a perfect system of progressive discipline that it acted reasonably and brought the problems to the attention of the employee. In rare cases however, it is possible to discharge an employee for the 1st offence but the normal pattern is to progress through the levels of disciplinary actions.
It is important that all steps are well documented.”
Now, looking at the above provision it is difficult to state that the Defendants were in breach of those terms, because implicit in its provision is that an employee could be discharged for the first offence. So if no levels of disciplinary actions were followed by the Defendants, I hold that they still cannot be faulted for discharging the Claimants as it lay within their prerogative to do so. This being a master/servant relationship, I hold that the prerogative to hire and fire for reasons or no reasons at all lay with the Defendants and that is the law and in the application of it no aspect of the Nigerian Labour Laws are infringed whether out of statutory provisions or in common law. For judicial guidance on this from the Supreme Court in the case of JOSEPH IFETA V SHELL PETROLEUM DEVELOPMENT COMPANY (NIG) LTD (2006) 32 WRN 1. The Court on whether a Court will make a declaration that an employment subsists, in the leading judgment of Mohammed JSC held:
“The position of the law therefore is that where there is a contract of service, a declaration to the effect that the contract of service still subsists will rarely be made. See BANKOLE V. NBC (1968) 2 ALL NLR 371 and OLANIYAN V. UNIVERSITY OF LAGOS (1985) 2 NWLR (PT. 9) 599 at 612 where Oputa JSC had this to say on the subject of termination of master and servant relationship under a contract of service:
“The law regarding master and servant is not in doubt. There is also no doubt that the contract of master and servant is subject to both statutory and common law rules. By and large, the master can terminate the contract with his servant at any time and for any reason or for no reason at all. But if he does so in a manner unwarranted by the particular contract under review, he must pay damages for the breach”
By the authority of the above decision the claim in the 3rd head of claim that the Claimants’ employment is still subsisting must fail, and I do hold that it fails.
As affecting the 4th and 6th heads of claim for the Claimant’s salaries from May, 2015 till their employment is properly terminated and the claim of ₦5,000,000 (Five Million naira) general damages. In the case under referral, the Supreme Court held on the assessment of damages for wrongful dismissal that:
“In the present case, the damages as itemised in the appellant’s amended Statement of Claim in paragraph 36 earlier quoted in this judgment shows quite plainly that the items being claimed are based on the fact that the appellant would have remained in the service of the Respondent for about 14 years from 1991, the date of the termination of his appointment to 2005, the year he would have retired from the service. This position cannot be correct because that is not in accordance with the principle on which damages for wrongful termination of employment are assessed. In the case of THE NIGERIAN PRODUCE MARKETING BOARD V. ADEWUMI (1972) 11 S.C 111 at 117; (1972) NSCC 662 at 665, this Court per Fatayi – Williams JSC (as he then was) held:
“In a claim for wrongful dismissal, the measure of damages is prima facie the amount that the Plaintiff would have earned had the employment continued according to contract . . .”
By the authority of the apex Court I hold that heads 4 and 6 do not succeed. So, in the present case, what the Claimants can be entitled to is their salaries in lieu of notice having held that their letters of discharge by the 1st Defendant was actually a termination letter in terms and content.
Now the Defendants had also counter claimed for the sum of ₦47,600 and ₦36.050 from the 1st Claimant and 2nd Claimant respectively. They had averred that the 1st Claimant was on a monthly salary of ₦90,000 and at the time his employment was terminated, he was entitled to his overtime allowance of ₦12,400 and his salary for May, 2015 was computed at ₦90,000 and that by the time he was terminated only the sum of ₦60,000 had been deducted from his salary and he still had an outstanding of ₦240,000 to offset from the ₦300,000 loan, and as a result, the 1st Defendant deducted the ₦90,000 and ₦12,4000 from the sum realised and the Claimant was still indebted in the sum of ₦137,600 that the Defendant deducted the Claimants taxes, housing allowance and pension contribution and the 1st Claimant was left owing the sum of ₦47,600.
Regarding the 2nd Claimant, the Defendants had averred that when he was terminated he was entitled to his overtime allowance of ₦27,950 and his salary for the month of May, 2015 was computed at ₦80,000. That at the point of his termination only the sum of ₦56,000 had been deducted from the 2nd Claimant’s salary with an outstanding of ₦224,000 and as a result, his salary of ₦80,000 was deducted along with the ₦27,950 overtime bonus but he was still indebted to the Claimant in the sum of ₦116,050 and a further deduction of the Claimant’s taxes, housing allowance and pension contribution left that he was owing ₦36,150.
In response, the Claimants/Defendants to Counterclaim had in denying the Counterclaim maintained that computing the total of May, 2015 overtime bonus of the Claimants and their salaries for June, 2015, the Claimants will have to their credit the sum of ₦104,750 and ₦106,900 for the 1st and 2nd Claimants respectively. That if the amounts counterclaimed by the Defendants are deducted from the said sums the Claimants will have ₦57,150 and ₦70,850 for the 1st and 2nd Claimants respectively. That upon proper calculations and deductions, the Defendants are still indebted to the Claimants and not entitled to the sum counter claimed from the Claimant.
In determining this counterclaim, I find the Defendants/Counter Claimant have not stated the amount deducted as taxes in Exhibit DB and DB2 for the 1st and 2nd Claimants respectively where the monthly deductions shows deductions for pension scheme (compulsory), PAYE ,pay as you earn for taxes and housing. However, I do not see how these figures and DB and DB2 add up to what the Counter Claimant is claiming against the Claimants, apart from the denials of the Defendants to Counterclaim at the hearing of the matter both Counsel did not cross examine on the contents of Exhibit DB neither was it brought up in the written addresses. The Counter Claimant referred to Exhibit DE and DE1 in the written address which Exhibits were the applications for salary advances which facts are not in dispute that the Claimants were given salary advances. The Defendants to Counterclaim had set up the break-down of their overtime claims in the defence to counterclaim at paragraph 19 where they averred that they are entitled to their May, 2015 overtime bonuses which the Defendants failed/refused to collect Claimants’ month of May overtime computation sheet for payment before their release and they set forth in tabulation the breakdown for their May overtime bonuses and arrived at ₦14,750 for the 1st Claimant ₦26,900 for the 2nd Claimant.
I find that these averments were not challenged in cross examination of the witnesses by the Counter Claimant and in addition to my earlier finding that Exhibit DB to DB2 tendered by the Defendant was not addressed by the Counter Claimant. I hold that upon the balance of probability the contention of the Defendants to Counterclaim should be upheld and I so hold.
Counsel for the Claimants had contended in the conclusion of the written address at (8) “that assuming without conceding that the counterclaim succeeds upon proper calculations and deductions, the Defendants are indebted to the Claimants in the sum of Fifty Seven Thousand, One Hundred and Fifty naira (₦57,150) and Seventy Thousand, Eight Hundred and Fifty naira (₦70,850) for the 1st and 2nd Claimants respectively in the absence of their May overtime bonus and June salary in lieu of notice not included in the calculations and deductions made by the Defendants”
On the strength of the above contention/argument of the Claimants/Defendants to Counterclaim having held that in the circumstances of the case the Claimants’ loss of employment was in the nature of termination and having held earlier that they are entitled only to one month salary in lieu of notice, I hold that one months’ notice would properly be in the month of June, 2015 since they were both terminated on 26th of May, 2015 which the Defendants should pay to the Claimants the sum stated as their gross salaries in Exhibit A2 and F5 being ₦108,000 and ₦80,000 respectively within 21 days of this judgment.
By this, the claim for Solicitors’ fees fails having not been proved also the claim for overtime bonus which is not proved as well also fails. CW1 under cross examination had been asked:
Q: At the time you were dismissed how much were you being owed overtime? He answered
ANS: I have not done the calculation.
CW2 was asked similarly:
Q: How much was your overtime allowance?
ANS: It is not specific…
From the above answers, it is clear that the claim in the 5th head of claim for the Claimants does not succeed.
There are no awards as to costs; parties are to bear their own costs.
Judgment is entered accordingly.
_____________________________
HON. JUSTICE E. D. E. ISELE
JUDGE
