LawCare Nigeria

Nigeria Legal Information & Law Reports

National Industrial Court

SUNDAY IDADA OSAYANDE VS OANDO GROUP PLC & ORS

admin 0

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDEN AT AKURE

BEFORE HIS LORDSHIP HON. JUSTICE A. A. ADEWEMIMO

DATED:  21ST JANUARY, 2019                 

SUIT NO:  NICN/BEN/18/2015

BETWEEN

SUNDAY IDADA OSAYANDE

CLAIMANT

AND

  1. OANDO GROUP PLC
  2. OANDO ENERGY SERVICES

DEFENDANTS

 

REPRESENTATION:

  1. J. SEMUDARA APPEARS FOR THE CLAIMANT

BRIGHT OGBENA FOR THE 1ST AND 2ND DEFENDANTS.

 

JUDGMENT

The Claimant by a complaint before this Court on the 9th of April, 2015, claims against the defendants as follow:

  1. A DECLARATION that the defendants are in breach of the terms and conditions of the claimant’s employment.

  1. A DECLARATION that the termination of claimant’s employment was wrongful not being in accordance with the terms of his letter of permanent employment and the Oando Staff Handbook.

  1. The sum of N26,128,959.00 (Twenty Six Million, One Hundred and Twenty Eight Thousand, Nine Hundred and Fifty Nine Naira) being three years annual basic salaries the claimant would have earned until his retirement in 2012.

  1. The sum of N87,096,530.00 being loss of earnings for 10 years.
  2. N100, 000,000.00 being general damages for the devastation and hardship he has been made to pass through since 2009.

This suit was initiated by the claimant vide a complaint and Statement of Facts filed on the 9th of April, 2015 and was at different times formerly before two of my learned brothers. The case was later reassigned to this court on the 9th of October, 2017 for trial de novo. The claimant filed all his originating processes i.e the complaint, statement of facts, deposition on oath of the claimant, list of witness and documents to be relied upon. A consequential Reply to the Defendant’s Further Amended Statement of Defence was also filed in this suit.

The defendants filed a memorandum of conditional appearance, a statement of defence and the accompanying processes on the 28th May, 2015. The defendants by a motion on notice filed on the 31st of January, 2017 applied for leave to amend their statement of Defence before my learned brother, this was heard and granted by the court on the 2nd of March, 2017. The Defendants later filed another motion for leave to further amend their Amended statement of defence, which was granted by the court on the 22nd of January, 2018, consequent upon which the Defendants filed their Further Amended Statement of Defence

It is the claimant’s case that he was offered a permanent and pensionable appointment as a Management Cadre staff in the drilling unit of the 2nd Defendant, a subsidiary of the 1st Defendant vide a letter of Offer of Permanent Appointment dated 23rd October, 2008 i.e Exhibit S1 and was confirmed by a letter dated 22nd April, 2009 i.e Exhibit S2, claimant however alledged that Exhibit S2 was withheld until 12th August, 2009, when the Human Resources Manager of the 2nd Defendant served him with both Exhibit S2 and a letter terminating his appointment i.e. Exhibit S3. He referred to Exhibit S1 and the terms and conditions of service in the Oando Handbook i.e Exhibit S4 as the contract guiding his employment with the Defendants, with Exhibit S1 the prevailing contract of employment, and stated that contrary to the terms and conditions of Exhibit S1, he was not given any notice of intention to terminate his employment, 3 months’ notice to terminate his appointment or 3 months basic salary in lieu of notice.

He stated that throughout the duration of his service with the 2nd defendant, he was never in breach of any rule, regulation or involved in any misconduct detrimental to the well-being of the company and he was not given fair hearing/ the opportunity to defend himself against whatever cause, if there be any that warranted the termination of his permanent employment.

On receipt of the letter of termination, claimant wrote a letter to the Human Resources Manager of the 2nd Defendant drawing his attention to Sections 52.0 and 7.0 of Exhibit S4, and inviting him to take another look at the termination of his employment, this the defendants failed to respond to, but instead paid a sum of N1,045,158.36 into the claimant’s UBA Account through another company. The payment according to him indicated that it was his off shore salary.

He further averred that since the total sum paid into his account was equivalent to his two months’ basic salary, he assumed he was being paid for the months of August and September 2009. as it was not up to his three months basic salary in line with section 52.0 of Oando Staff Handbook. The claimant later instructed his counsel to write the defendant requesting for his reinstatement and the payment of his entitlements or in the alternative payment of his retirement benefits, pension and other accruable benefits in accordance with Section 19.0 of Exhibit S4. He stated that the wrongful termination of his employment has adversely affected his career negatively.

Wherefore the claimant claims against the defendants as aforestated.

The 1st and 2nd defendants vide their Further Amended 1st and 2nd Defendants’ Statement of Defence denied each and every allegation of Facts as contained in the Statement of facts unless otherwise expressly admitted as though such allegation were specifically set out and traversed seriatim. The defendants admitted that the claimant was a staff of the 2nd Defendant and that his employment was terminated in due adherence to his contract of employment and laid down procedure. The Defendants stated that the claimant’s appointment was terminated on the ground that his services was no longer required. Further to this, the claimant was paid three months basic salary in lieu of notice less tax deductions, The Defendants pleaded that the court lacks jurisdiction to entertain this suit as this suit does not disclose any reasonable cause of action. He also stated that the suit is frivolous, vexatious and lacking in merit.

The trial in this case commenced on the 15th of February, 2018 with the claimant testifying for himself as CW1.  He adopted his sworn affidavit on oath, further witness statement on oath and tendered several documents which were admitted and marked Exhibits S1 – S13, he was duly cross-examined. The claimant thereafter closed his case.

The defendants opened their defence on the 11th of April, 2018 with one Mr Femi Olanisebe, an Assistant Rig Manager, testifying as DW1 and Ms. Abisola Apara testifying as DW2.  They adopted their written statements on oath and were cross examined.  They tendered four documents marked Exhibits O1(a). O1(b), O2 and O3 and closed their case. The court thereafter adjourned for adoption of final written addresses.

 The parties through their counsel adopted their final written address on the 24th of October, 2018.

In the defendants’ final written address dated 7th May, 2018, the counsel formulated five issues for determination to wit:

  1. Whether the 2nd Defendant complied with the terms and conditions of the Claimant’s employment in the termination of his employment.

 

  1. Whether the defendants herein, validly terminated the employment of the claimant with respect of the payment of his entitlement(s).

 

  1. Whether in the circumstance of this matter the claimant successfully rejected the termination of his employment as alleged in his pleading.

 

  1. Whether having regard to the facts and circumstances of this case, the 2nd defendant could validly terminate the employment of the claimant.

 

  1. Whether having regards to the facts and circumstances of this case, the claimant is entitled to an award by this Honourable Court for salaries he ought to have earned until his retirement.

On issue one, the counsel submitted that the position of the claimant is both erroneous and grossly misconceived and an effort deliberately fashioned to misdirect the court.  He stated that the Claimant averred in paragraph 15 of his statement of fact that he was neither given notice of intention to terminate, neither was he given three months’ notice to terminate nor was he paid his three months basic salary in lieu of notice.  He pointed out that the contract of employment between the claimant and the 2nd defendant are contained in two documents, that is:

  1.  The claimant’s letter of offer of Permanent Appointment dated October, 2008(Exhibit S1) and;

  1. Oando Staff Handbook (Exhibit S4).

Counsel further submitted that the above documents were pleaded by the claimant, admitted and marked as Exhibits.  He went further to say that Exhibit S1 is not a stand-alone document, the penultimate paragraph in the Employment Contract Particulars in Exhibit S1 subjected it to Exhibit S4, by stating clearly that:

“The other terms and conditions of your employment, in addition to those outlined in this contract, will be determined by the company’s personnel policies and endorsed by you upon resumption of duty.”

Learned counsel submitted that it is Exhibit S4 that contains the Company’s Personnel Policies. Page 6, Section 1 of Exhibit 4: Introduction and Background introduces the Handbook as one which “sets out and clarifies Oando Plc’s policies, rules, regulations and benefits…..”.  He stated further that Section 53.0 of Exhibit S4 also reinforces the fact that Exhibit S1 is not a stand-alone document in the determination of the intention of the parties thereto.  Counsel argued that where a provision is clear on the face of it, it is not to be interpreted to imply extraneous provisions beyond what is clearly stated.  He cited the Supreme Court cases of AGBAREH  V. MIMRA (2008)   2 MJSC134 at 160 B-D;UBN LIMITED & ANOR V. NWAOKOLO (1995) 6 NWLR (400) 127; CBN V. ARCHIBONG, (2001) 10 NWLR (PT. 721) Pg. 492 at 507.

Counsel argued that the claimant, under cross examination could not prove to the court where in Exhibits S1 & S4 a provision for 6 months prior notice of termination is captured.  He submitted that none of the parties contemplated the issuance of six months’ notice especially when Exhibit S4, had made a provision for the payment of 3 months’ basic salary in lieu of notice for the termination of a staff in the claimant’s cadre.  The only interpretation of the above arguments which the defendants concluded as tenable is that, Exhibit S4 is superior to Exhibit S1.

Counsel maintained that the 2nd defendant complied with the terms and conditions of employment by paying the claimant three months’ basic salary in lieu of notice in line with Exhibit S4.

On issue two, counsel submitted that the employment of the claimant is that of master and servant, regulated by the terms of employment as agreed by the parties.  He argued that a preponderance of judicial authorities agree that once an employment is not regulated by statute, the entitlement of a terminated employee lies in the agreement between the parties. He cited the case of EVANS BROS (NIG.) PUBLISHERS V. FALAIYE (2005) 4 NLLR (part 9)108 at 132 FG. He cited Section 53 of Exhibit S4 and submitted further that in determining the claimant’s entitlement upon termination as a Management Staff, Section 52.0 of Exhibit S4 provides that, he shall be entitled to three months’ basic salary in lieu of notice, where his employment was terminated without notice

Counsel referred to Exhibit S1 and S11 (a-d) that stated the basic salary of the claimant as N428,703.00K and the contention of the defendants that the  claimant’s exit salary was N435,482.65, this he submitted was admitted by the claimant in paragraph 14 of his consequential reply dated 13th March, 2017 and filed on 15th March, 2017.  Counsel argued that the law is settled that facts admitted need no further proof.  He cited Section 123 of the Evidence Act 2011 and the case of TIJANI JOLASUN V. BAMGBOYE (18 NWLR (PT. 1225) 285. Counsel noted that claimant failed to plead his last two pay slips for the months of June and July 2009 which preceded his termination which would have shown without doubt his last basic salary.  Learned counsel cited Section 167(d)of the Evidence Act, and submitted that the court is empowered to presume that evidence of the pay slips of the two months which was not produced by the claimant, if produced, would be unfavourable to the claimant.  Counsel cited Court of Appeal case of ANIKE V. S.P.D.C.N. LT (2012) 29 NLLR (PT. 81) 350 CA at 372 EF.

Learned counsel for the Defendants submitted further that the evidence before this court i.e Exhibits O1A, O1B, O2 and O3 showed that Offshore Personnel Service Limited, is an Independent Contractor engaged by the 2nd Defendant to manage its personnel services and payroll, and in line with its duties collated the PAYE taxes deducted from the claimant’s basic salary for three months which amounted to N261,289.59 and paid same along with others to the Edo State Internal Revenue Service.  He submitted that claimant’s evidence is contradictory citing paragraph 24 of his deposition on oath which stated that the sum of N1,045,158.36 paid into his account on the 5th day of October, 2009 was his offshore salary and in another breath paragraphs 27 and 29 of same which stated it was his two months’ salary. He pointed out that the claimant, by his contract of employment and by his own admission under cross examination, is not entitled to any offshore salary because throughout the duration of his employment he was paid monthly salary, and never worked offshore, therefore he was not entitled to offshore salary.

As to whether the sum paid to the claimant was his two months’ salary, it is clear he submitted, that a multiplication of his basic salary of N435,482.65 by two would result in a figure far less than the amount paid.  It clearly stands to reason, that the amount paid to him was not his two month’s salary but his three months’ basic salary.

Counsel argued that the claimant could not identify and state the specific days which he worked for the defendants which entitles him to any allowance outside his monthly salaries, let alone adduce any proof that such work was performed.  He therefore urged the court to hold that the claimant’s appointment was validly terminated.

On issue three, the counsel pointed out that the claimant claimed to have received Exhibit S3 on 12th of August, 2009 and under cross examination, the claimant stated that he wrote Exhibit S5 in the evening of that same day, contrary to the date stated on the letter itself which is the 13th of August, 2009. The claimant further claimed to have delivered the letter by hand to the Human Resources Manager of the 2nd defendant on 13th August, 2009 without any acknowledgement of receipt. Likewise Exhibit S7 dated 23rd November, 2009 was neither written nor delivered on the date the claimant purported to have despatched it.  Counsel argued that the content of Exhibit S5 showed that the same could not have been written and or delivered on the date indicated on the Exhibit. He therefore concluded that there was no letter for the defendants to acknowledge or reply, thus the issue of rejecting the termination did not arise.

Counsel submitted that the law is settled that in a master-servant relationship, the court cannot impose a servant on an unwilling master.  An employee whose terms of employment is without statutory flavour cannot reject the termination of his employment. When the employer terminates the employment of the employee, all that is required for the termination to be valid is for the employer to pay the employee all his entitlements in line with the terms of employment.  Once this is done, the employee cannot be heard to complain that his appointment was not validly terminated.  Counsel cited the case of JULIUS BERGER NIG. PLC V. GODFREY NWAGWU (2006)NLLR (PT. 15) 169 CA at page 192 H. He therefore urged the court to hold that the relationship between the defendant and the claimant is that of master and servant, which can be mutually terminated by either party.

On issue four, the counsel submitted that the position of the law grants the employer, just like the employee in a master/servant relationship, the right to terminate the employment of his employee for good or bad reason.  The only remedy open to an employee whose employment is wrongfully terminated is damages.  He cited the case of EVANS BROTHER (NIG.) LTD V. FALAIYE (SUPRA) at 134; LAYADE V. PANALPINA WORLD TRANSPORT NIG. LTD (1996) 6 NWLR (PT. 456) 544.

The counsel submitted that paragraph 39 of Exhibit S4 provides that employees of the defendants are mandatorily required to retire upon attaining the age of 55 years or 30 years of service, whichever comes first, and that it cannot be construed to mean that the employee is bound to remain in the employment until he attains 55 years of age or 30 years of service.  Exhibits S1 and S4 gave each party right to terminate the employment by giving notice or payment in lieu of notice.  Thus, granting the right to terminate the employment relationship even before the claimant reaches 55 years of age or 30 years of service.  In the instant case, the defendant paid the claimant salaries in lieu of notice as confirmed by Exhibit S6.  The Defendants’ counsel pointed out that the claimant was not dismissed but rather had his appointment terminated.  He reiterated that the distinction between termination of employment and dismissal has been made in a plethora of cases under the laws.  He cited the cases of UNION BANK OF NIGERIA PLC V. SOARES (2012) 29 NLLR 331, at  357 BC; ADEKO V. IJEBU-ODE DISTRICT COUNCIL (1962) 1 SCNLR 349.

On issue five, the Counsel submitted that the 2nd defendant has the right to terminate the contract at any time provided the laid down requirements are complied with. Consequently, in the absence of any agreement for the payment of salaries beyond the date of termination, no salary can be claimed.  He cited AGBO V. CENTRAL BANK OF NIGERIA (1996) 10 NWLR (PT. 478) 370AT 380, and submitted that the defendants do not owe the claimant any obligation and therefore the claim for payment of salaries until retirement is not tenable.

Finally, counsel submitted that based on the provision of Section 52.0 of Exhibit S4, the only entitlement due to an employee in the claimant’s cadre whose employment was terminated was three months’ salary in lieu of notice.  Therefore, no claims for futuristic salaries like payment for years the claimant would have worked up until retirement, had his employment not been terminated or claims for loss of earning for 10 years were provided for in the terms of employment and so any claims for such should fail.

Counsel therefore urged the court to dismiss this suit in its entirety with substantial cost for being vexatious and lacking in merit.

The claimant’s counsel filed his final written address on the 30th May, 2018 and formulated five (5) issues for determination to wit:

  1. Whether the defendants complied with the provision on notice before termination as agreed by the parties.

 

  1. Whether by the letter of appointment and Oando Staff Handbook the contract between the claimant and the defendants is such that the defendants could unilaterally determine the employment of the claimant without due regard to agreement between the parties.

 

iii.     Whether in view of Exhibits S5 and S7 the sum of N1,045,158.36 paid by the defendants to the claimant’s account was not claimant’s salaries for August and September with some other unpaid allowances and whether Exhibit S3 has not been overtaken by Exhibits S5 and S7 in view of defendants’ tacit agreement.

 

  1. Whether the termination of claimant’s appointment was done in line with International Best Practices (IBS) and International Labour Standard (ILS), having regards to the fact that the defendants are multinational companies and whether this Honourable court can apply same in arriving at its decision in this case.

 

  1. Whether in view of the decision of NIC in the case of ALOYSIUS vs. Diamond Bank which compelled employers to follow ILS and IBP in terminating employees’ appointment, and Exhibit S12 before this Honourable court, the claimant is not entitled to the reliefs contained in paragraphs c, d, & e of his claim above.

On issues one and two, counsel submitted that the defendants did not comply with the provision on notice before termination as agreed between the claimant and the defendants on the ground that Exhibit S1 which contains the terms and conditions of Claimant employment is very clear on the requirement for notice as it read thus: “The first six months of employment will be considered probationary during which either party will be required to give (2) two weeks written notice of intention to terminate the employment contract.  On confirmation, three months written notice will apply unless mutually agreed to the contrary.”

Learned counsel submitted further that Exhibit S1 did not state that Exhibit S4 shall contain other terms and conditions of claimant’s individual employment but says “other terms and conditions of your employment will be determined by the company’s personnel policies and endorsed by you upon resumption of duty”.  For the avoidance of doubt, the company’s personnel policies to be endorsed by the claimant upon resumption of duty as per Exhibit S1 is not Exhibit S4.  He argued that Section 53.0 of Exhibit S4 distinguished clearly between the company policies governing terms of employment and Exhibit S4 that says:

“The terms of employment governing each employee of Oando Plc shall be as stated in each individual’s contract of employment, Confidentiality Agreements, others contractual agreements and as specified in prevailing company HR policies governing terms of employment and this handbook.”

The above provision of Exhibit S4 shows that the company policies governing terms of employment referred to in Exhibit S1 is not referring to Exhibit S4. The counsel conceded that Exhibit S1, a four page document, may possibly not contain all issues and topics a multinational company like Defendants has to deal with in their relationship with employees and outside world and it would be absurd to think that an important document such as Exhibit S1 would need another document before its provisions can be understood. Learned counsel for the claimant submitted that the claimant’s employment was guided by, Exhibit S1, Exhibit S4, confidentiality agreement and prevailing company H.R policies governing terms of employment

Counsel urged the court to reject the argument of the defendants’ counsel that the defendants complied with the provision of notice before termination as agreed by the parties and  by the combined provisions of Sections 7.0, 9.0 – 11.0 of Exhibit S4 which gave room for conflict resolution and laid down procedure for termination, the employment contract between the claimant and defendants is not such that the defendants can unilaterally determine without due regards to the provisions of the claimant’s terms and conditions of employment.

On issue three, he submitted that the defendants’ failure to respond to Exhibit S5 which came after Exhibit S3 and their further action in line with the content of Exhibit S5 amounts to acquiescence. He cited the case of Adedeji V. Oloso (2007) 5 NWLR Part 1026 page 133. He stated from the evidence before this Court, that the claimant received Exhibit S2 and S3 on 12th August, 2009 as reflected on the date of receipt of both letters.  Counsel submitted that the action of the defendants can only be logically interpreted as having tacitly waived Exhibit S3 and same having been overtaken by Exhibits S5 and S7.

He reiterated that it is trite law that in pleadings, facts not expressly denied are deemed admitted and facts admitted need no further proof.  He cited Iyere V. B F F M Ltd (2008) 18 NWLR Pt 1119 300 SC and Ajibade V. State (2013) 6 NWLR Part 1349 Page 25 @ 31 ratio 7.

Counsel in reaction to whether the sum paid to the claimant’s account vide Exhibit S6 was payment in lieu of notice argued that there is no evidence before the court to prove this assertion.  The defendants pleaded and relied on a purported exit payment slip marked as Annexure ‘B’ in their further amended statement of defence but decided to abandon same by refusing to tender the document in evidence.  It is trite that the defendants by so doing have not only abandoned that piece of evidence but also the entire paragraph in their pleading where the document was pleaded.  He cited the case of Oba R.A.A. Oyediran of Igbo Land v. H. H. Oba Alebiosu & Ors (1999) 6 NWLR (Pt) 249 p 550 ratio 4.

Counsel noted, that paragraphs 27 and 28 of the defendants’ statement of defence have been abandoned by the defendants.  He referred to the defendants’ denial of receipt of letter of 23/11/2009 (Exhibit S7) has been abandoned as well as the averment that claimant was paid three months’ salary in lieu of notice in the sum of N1,045,158.36 after the deduction of pay as you earn (PAYE) tax of N261,289.59, as the document to back up this allegation has been abandoned by the defendants.  He cited the case of Bank of the North V. Babatunde (2012) FWLR part 119 page 1452 at page 1467 paragraph A-B.

The counsel for the claimant submitted that by the letter of appointment and the nature of claimant’s job with the defendants, excess day’s work is inevitable and to ask for another proof apart from the one before the court is like asking a defendant under summary judgment procedure to provide rock proof or iron cast defence.  He cited the case of Global Bank Ltd Vs S.A Ins. (2010) NWLR Pt 1210 Page 1 @ 4.

He submitted further that the only reason the defendants abandoned Annexure B of their pleading was because the document showed that the salaries paid to the claimant was for the months of August and September. He reiterated that it is trite that despite the fact that this document was not tendered in evidence, this Court has the right/power to look at his record as the said document forms part of the record of court in this suit.  Counsel cited the case of Agbareh V. Mimra (2008) 2 NWLR Pt. 1071, Page 378 @ 385 ratio 2

He pointed out that the provision of Section 53.0 of Exhibit S4 which provided for other documents governing the defendants’ staff employment i.e. confidentiality agreements, HR Policies governing terms of employment apart from Exhibits S1 &S4 make the position more believable especially as the claimant testified to the fact that he saw a code in the computer assigned to him in his office, with which staff can access their benefits.

Counsel submitted that the failure of the defendants to acknowledge receipt of Exhibits S7&S5 until 2012 was reminiscent of their action of unjustifiable and unwarranted termination of claimant’s employment, and no staff of the defendants was ready to commit himself at the period for this inexplicable and unwarranted termination.  He therefore urged the court to hold that the payment made to the claimant vide Exhibit S6 was a response to Exhibit S5 and the defendants by their silence which is construed to mean acceptance, has tacitly withdrawn Exhibit S3.

In response to issues four and five, counsel submitted that there was no reason adduced for terminating the employment of the claimant in Exhibit S3, save on the ground of “service no longer required” which is contrary to the terms and conditions governing claimant’s employment and international best practices.

He cited the case of Petroleum and National Gas Senior Staff Association of Nigeria (PENGASSAN) v. SCHLUMBERGER ANADRILL NIGERIA LIMITED (2008) NLLR Pt. 29 where the National Industrial Court held that irrespective of the employer’s right to hire and fire for any or no reason, it is no longer globally fashionable in industrial relations law and practice to terminate an employment relation without adducing any valid reason for such a termination.

Finally, the counsel urged the court to hold that the claimant’s claims succeed and grant the reliefs’ a-e above.

The counsel for the Defendant filed a reply on point of law on the 6th of July, 2018 wherein he formulated three issues for determination to wit:

  1. Whether the defendants complied with the provision on notice before termination as agreed by the parties and whether the defendants terminated the appointment of the claimant having regard to the terms of employment.

 

  1. Whether the sum of N1,045,158.36 paid to the claimant satisfied the requirement of three months’ salary in lieu of notice as required by the contract between the parties.

 

  1. Whether the decision of the court in ALOYSIUS V. DIAMOND BANK (2015) 58 NLLR Pt. 199, 92 is applicable to this case in view of the prevailing peculiarities.

 

On issue one, counsel pointed out that the terms of employment are not confined to Exhibit S1 but extend to Exhibit S4.  He cited ODIASE V AUCHI POLYTECHNIC, AUCHI (1998) 4 NWLR Pt. 546 pg. 477; Hillas & Co. v. Arcos Ltd (1932) ALLER REP 494 at 449. he urged the court to discountenance the claimant’s contention and hold that the defendants complied with the provision on notice before the termination of the claimant’s appointment.

On issue two, he submitted that the requirement of the contract of employment between the parties in this suit is that three months’ salary in lieu of notice shall be paid to the Claimant upon the termination of his appointment. Exhibit S3 also stated that the claimant’s three months’ salary in lieu of notice would be paid to him.  Therefore, he urged the court to hold that the sum paid to the claimant satisfied the requirement of three months’ salary in lieu of notice, less PAYE Tax. As stipulated in Exhibit S4.

On issue three, counsel noted that the (Third Alteration Act) 2010 of the 1999 Constitution which empowers this court to apply International Best Practices and International Labour Standards in all its decisions was not in force at the time the cause of action arose and consequently the decision of Aloysius v. Diamond Bank(Supra) and Pengassan v. Schlumberger (Supra) are not applicable to this case.

On the claim in relief ‘e’ the counsel opined that the Courts have severally held that in a master/servant relationship, a claim for general damages cannot avail a plaintiff even where the dismissal is held to be wrongful.  He cited UTC V. NWOKORUKU (1993) 3 NWLR (pt. 281) 295; PIONEER MILLING CO. LTD V. NANSING (2006) 5 NLLR (pt. 11) 91 CA at 102 H – 103 A.  He submitted that the claimant is therefore not entitled to general damages.

Finally, Counsel urged the court to find in favour of the defendants and dismiss this suit.

I have gone through the processes filed, the Exhibits tendered in this suit, listened to the witnesses called by both parties and watched their demeanour, and I have come up with two issues that will best determine this suit to wit;

 

  1. Whether or not the claimants employment was wrongfully terminated;

 

  1. Whether or not the Claimant is entitled to his claims.

On issue one, it is the contention of the Claimant that the defendants did not comply with the requirement of notice before terminating the claimant’s appointment as agreed by the parties. He cited Exhibit S1 (offer letter dated October 23, 2008) which contains the terms and conditions of Claimant‘s employment and is very clear on the requirement of notice, which was not followed in this case. He also contends that the sum paid by the defendants into his account is his two months basic salary/off shore salary and as such the defendants have not properly terminated his employment. The summary of the Claimant’s contentions are as follows:

–         That he was not given notice of termination

–         That he has a permanent employment with the defendants

–         That his three months’ salary in lieu of notice was not paid

–         That his termination amounts to unfair labour practice

The defendants on the other contends that that Exhibit S1 is not a stand-alone document as the penultimate paragraph in the Employment Contract Particulars in Exhibit S1 subjects it to Exhibit S4 and the 2nd defendant complied with the terms and conditions of the claimant’s employment in the termination of his employment by paying three months’ basic salary (N1,045,158.36) in lieu of notice in line with the provision of Exhibit S4 as opposed to the two months’ salary which the Claimant alleged he was paid. The summary of the defendants’ contentions are as follows;

–         That the claimants employment was terminated in accordance with the terms of service governing his employment and it was not wrongful

–         That the Claimant was paid his three months’ salary in lieu of notice

Exhibit S1 provides as follows;

 

“The first six months of employment will be considered probationary during which either party will be required to give (2) two weeks written notice of intention to terminate the employment contract.  On confirmation, three months written notice will apply unless mutually agreed to the contrary.”

Exhibit S1, further states that:

“The other terms and conditions of your employment, in addition to those outlined in this contract, will be determined by the company’s personnel policies and endorsed by you upon resumption of duty.”

Exhibit S4 paragraph 53.0 provides as follows

“The terms of employment governing each employee of Oando Plc shall be as stated in each individual’s contract of employment, Confidentially Agreements, other Contractual Agreements and as specified in prevailing company HR Policies governing terms of employment and this handbook”

Paragraph 52.0 Exhibit S4 provides as follows:

“Where the company terminates the employment contract of an employee, the company shall make payment in lieu of notice as follows:

 

Junior Staff                       1 month’s basic salary

Senior Staff                       1 month’s basic salary

Management                     3 month’s basic salary

Contract staff                    2 week’s gross salary”

Exhibit S3 provides as follows:

“You are hereby notified that effective August 7, 2009 your services are no longer required in the company, and in line with the terms of our offer of employment and section 52.0 of our staff hand book, you will be paid three (3) months basic salary in-lieu of notice..”

A combined reading of all the above cited clauses can be interpreted to mean that, the terms of employment are included in Exhibit S1 but not limited to it as the other terms are embedded in Exhibit S4.

Exhibit S1 lays down the conditions under which the claimant’s appointment can be terminated as a management staff and confirmed employee, a three month notice is required except the parties mutually agree otherwise.

However, Exhibit S4 provided for payment in lieu of the notice, that is, the employer can pay a stipulated amount which would equally mean the employment has been terminated.

The defendants chose the option in Exhibit S4 which provides for payment in lieu of notice instead of the three months’ notice in Exhibit S1. I therefore find that the Defendants were at liberty to terminate the Claimant’s appointment by paying three (3) months basic salary in lieu of notice in accordance with Exhibits S1 and S4. I so hold.

The Claimant in paragraph 24 admitted that the Defendants paid N1,045,158. 36 into his UBA account in another company’s name and he reasoned it was his offshore salary for two months, having written the 2nd Defendant to protest the perceived unjust termination of his appointment. The Defendants however stated that the payment was for his three months basic salary in lieu of notice and that the Claimant is not entitled to any offshore salary.

It is the position of the law that where an employee’s appointment is terminated, and the mode for termination of the employment is stipulated as in Exhibit S4 hereof, i.e three months basic salary in lieu of notice, the payment in lieu should be made alongside the service of the letter of termination of appointment. Where the employer fails to do this he is liable for breach of the terms of employment see New Nigeria Bank Plc v. Solomon Owie [2010] LPELR 4591 (CA).

 

Thus, the fact that the defendants did not pay the Claimant the salaries in lieu of notice contemporaneously with Exhibit S3 implies that they are already in breach of Exhibit S4. The defendants contended however that the salary in lieu of notice was paid see Exhibit S6 (1-5), in October 2009 about two months after the Claimant’s appointment was terminated and this was accepted by the Claimant. This position was however disputed by the Claimant.

It is settled law that in a master/servant relationship, where the servant alleges that his employment was wrongfully terminated; he has the burden to: (i) place the contract of employment before the court (ii) he has the duty to show how the contract of employment was breached. This the Claimant did by placing Exhibit S1 and S4 before the court, Exhibit S6 (claimant’s statement of account) and his pay slips for February, March, April & May 2009 marked as Exhibits S11a-d. He also vehemently disagreed with the Defendants that the payment made by an agent of the defendants was for his 3 months basic salary in lieu of notice as specified by Exhibit S4. It was now left for the defendants to refute this, in their defence, the Defendants argued that the amount paid was his three months basic salary less tax deduction and brought in Exhibit O1A, O1B, O2 & O3 as evidence that they paid a tax of N261,289.59k on the three months basic salary.

It is the position of the law that where a contract of employment stipulates that either party can terminate an employment by notice or salary in lieu, the onus is on the employer to prove that the specified notice or payment in lieu was given. See Layade v. Panalpina World Transport Nig. Ltd. [1996] 6 NWLR Pt. 456, 544 SC. The payment of the salary in lieu of notice is disputed in this suit, hence the 2nd Defendants needed to proof the payment of same.

 

I have studied all the Exhibits tendered by the defendants in proof of their assertion that they have paid the salaries in lieu of notice, and I find that in their paragraph 27 & 28 of their further amended statement of defence they referred to the exit payment of the Claimant which disclosed the monthly basic salary of the Claimant and the tax deducted which culminated in the total amount due to the Claimant that was eventually paid, however, this very important document was not tendered during the trial of this case. If indeed as argued by learned counsel for the Defendants in his Reply on point of law, that the document was not withheld but they have already put in sufficient material to prove their case and as there is no similar document showing the computation of the claimant’s exit benefit, then what was the harm in tendering this document, as having pleaded it as the claimant’s exit benefit, this would have gone a long way to prove how the entitlement was computed. This document is relevant and material to their case, but the Defendants for reasons best known to them abandoned their pleading and refused to tender the document in this regard.

The Defendants cited Exhibits 11a-d, which are the payslips of the claimant from Feb- May 2019 tendered by the claimant, these Exhibits captured the basic salary of the claimant as N428,703.00K (Four hundred and twenty-eight thousand, seven hundred and three naira). And stated that this contradicts the claimant’s admission that his basic salary is N435,482.65K in his consequential reply dated 13/03/2017, the law is that documents are the best proof of its content, the averment in the claimant’s reply cannot contradict Exhibits 11 a-d, especially as this admission was not supported by the evidence adduced at the trial, see INTERNATIONAL MESSENGERS (NIGERIA) LTD V. PEGOFOR INDUSTRIS LTD 2005 15 NWLR PT 947,1. The Defendants disputed this and stated that the basic salary of the claimant was N435,482.65K (Four hundred and thirty-five thousand, four hundred and eighty-two naira, sixty-five kobo) but failed to proffer any documentary evidence in support of this assertion, by tendering their own copies of the claimant’s payslips. Exhibits S11 a-d was therefore not disputed, nor the claimant’s evidence that he had not enjoyed any increment in his salary from the time he was appointed till the appointment was terminated. This leads me to believe that the basic salary of the claimant while in the Defendants employment is N428, 703.00K (Four hundred and twenty-eight thousand, seven hundred and three naira), See Exhibit S11(a-d) . I so hold.  Exhibit O1a tendered by the defendants is a tax receipt from the Edo State Government for the month of December 2009, there is nothing on the face of Exhibit O1a that discloses that the tax receipt is for deductions covering September – December 2009, as what was written on this Exhibit is “PAYE tax deduction for December 2009” while Exhibit O1b is a tax revenue voucher of the Edo State Government and a public document that is uncertified and unsigned, and thereby lacks any evidential value. Exhibits O2& O3 on the other hand is a schedule of deducted tax listing the Claimant and some others on the letter head of Offshore Personnel Services Ltd, of which no nexus was established between it and Exhibit O1a. These Exhibits had no acknowledgment or endorsement from the relevant tax authorities as proof of the remittance of same. It is curious that the defendants did not deem it fit to apply for a copy of the tax clearance certificate of the Claimant for the tax remitted in his name, as this would have settled this issue once and for all, but chose to rely on Exhibits O2 and O3 (documents produced by OPSL an agent of the 2nd Defendant), when there is a superior evidence that can be garnered from the relevant tax authority available on application, if indeed the tax was remitted vide Exhibit O1a.  This could have laid the matter to rest, in the absence of a concise and direct evidence disclosing how the Defendants arrived at the amount that was remitted as the Claimant’s tax to the Edo State Government, I find that the Defendants have not discharged the onus of proof of payment of three months basic salary in lieu of notice allegedly paid by them to the Claimant.

It is in view of the facts adduced above, that has led this court to the inexorable conclusion that, what was paid to the claimant falls short of the 3 months requisite basic salary in lieu of notice especially in the light of the Claimant’s evidence that he is being owed some allowances by the defendants and what was paid to him was his offshore salary.

The position of the law is that an employer has a right to hire and fire and can determine any employee’s contract of service for good, bad or no reasons at all. Where it does so in breach of the terms of the contract, it can only be liable to pay damages as provided in the contract of employment, and where the wrong is as to length of notice to be given, the measure of damages is payment in lieu of notice at the rate of the employee’s salary for the appropriate period. See Omojolomoju v. Group Securicor Nigeria Ltd [2013] LPELR-21477 (CA); Osisanya v. Afribank [2007] 1-2 SC 317; Iyere v. Bendel Feed & Flour Mill Ltd. [2008] 7-12 SC 151; Ativie v. Kabelmetal Nig. Ltd. [2008] 5-6 SC (Pt.11) 67.

 

On the issue of unfair labour practices, I would like to emphasize that what amounts to unfair labour practices has to be so ridiculous and proven before this court. I do not think that the termination of Claimant in this case amounts to unfair labour practices because his employment was terminated on the basis that his services was no longer required, subject to his contract of employment. The law does not expect an employer to keep an employee when the basic services he is rendering to them are no longer required as it would be absurd to continue to pay an employee when he is of no value to the company anymore.

I find however that the defendant was in breach of the contract of employment as the 3 months basic salary in lieu of notice due to the Claimant was not paid contemporaneously, and the actual computation of the payment remained unproven by the evidence available in this case, even though the defendants had the right to terminate the Claimants employment but in accordance with the terms and conditions of service. I therefore hold that the termination of the claimant’s appointment is wrongful.

On issue two, whether or not the Claimant is entitled to the claims as captured in the complaint and statement of facts, the claims are restated as follows:

  1. DECLARATION that the defendants are in breach of the terms and conditions of the claimant’s employment.

  1. A DECLARATION that the termination of claimant’s employment was wrongful not being in accordance with the terms of his letter of permanent employment and the Oando Staff Handbook.

  1. The sum of N26,128,959.00 (Twenty Six Million, One Hundred and Twenty Eight Thousand, Nine Hundred and Fifty Nine Naira) being three years annual basic salaries the claimant would have earned until his retirement in 2012.

  1. The sum of N87,096,530.00 being loss of earnings for 10 years
  2. N100,000,000.00 being general damages for the devastation and hardship he has been made to pass through since 2009.

On the 1st and 2nd claim, having held that the defendants did not terminate the claimants’ employment in accordance with the terms and conditions of service of employment, the reliefs succeed.

On the 3rd and 4th relief, in termination of appointment in an ordinary Master/Servant employment, where the terms provides for salary in lieu of notice in case of termination, what is accruable to the employee are his legitimate entitlements or accrued rights at the time the employment was brought to an end. The employee is not entitled to salaries for work not done especially after the termination. See Afribank (Nig.) Plc. v. Osisanya [2000] 1 NWLR (Pt.642)592 CA. The claimant cannot therefore claim salaries for work not done, as his employment is deemed terminated whether rightly or wrongly , See also Ezeuduka V.ANMMCO &Ors 2016 N.L.L.R Part 225,Pg 123 NIC @142.

In view of the holding above, what then is the remedy available to the claimant, having held that his employment was wrongfully terminated? i.e in breach of the terms and contract of employment. It is not in dispute that the relationship between the parties in this case is that of Master/Servant and the position of law is settled that in such an employment, the damages available to an employee is the salary he would have earned over the period of notice stipulated in the contract of employment, I find therefore that what the Claimant is entitled to is three months basic salary in lieu of notice as stipulated in Exhibit S4. I so hold.

The monthly salary of the claimant is N428,703.00K (Four hundred and twenty-eight thousand, seven hundred and three naira) based on Exhibit S11 a-d. As a result, the sum due to the claimant will be calculated as follows:

i.e      N428,703.00 X 3 months N1,286,109.00k (One Million, Two Hundred and Eighty Six Thousand, One Hundred and Nine Naira).

The claimant is therefore awarded a sum of N1,286,109.00k (One Million, Two Hundred and Eighty Six Thousand, One Hundred and Nine Naira) as damages for wrongful termination of his employment by the Defendants. I so hold.

On the 5th relief, it is the position of the law that the only measure of damages available to an employee in employment cases are the accrued rights and salaries under the contract of employment See Ezeuduka V .ANMMCO &Ors 2016 N.L.L.R Part 225,Pg 123 NIC @142. Having been awarded damages for wrongful termination above, I find that the Claimant in this case is not entitled to any general damages, I so hold.

Finally, I find and hold that the Claimant’s case succeeds in part and for the avoidance of doubt I hereby order and declare as follows;

  1. The defendants are in breach of the terms and conditions of the claimant’s employment.

  1. The termination of claimant’s employment was wrongful not being in accordance with the contract of employment.

  1. The Claimant is entitled to the sum of One Million, Two Hundred and Eighty Six Thousand, One Hundred and Nine Naira (N1,286,109.00k) being his three months basic salary in lieu of notice.

  1. The claim for damages is refused.

  1. The monetary sum awarded in this Judgment is to be paid within 30 days from the date of this Judgment failure upon which it will attract an interest of 10% until same is finally liquidated

A cost of N100,000.00K (One hundred thousand naira) is awarded against the Defendants.

Judgment is accordingly entered.

Hon.Justice A.A. Adewemimo

Judge.

admin

Website:

Related Story