By Folabi Kuti, SAN
In line with the general trend in recent years, case law during the period under review has been driven, largely, by the far-reaching adjudicatory work of the National Industrial Court of Nigeria (NICN), the specialist labour court on employment and workplace issues.
Pensions and related matters
The Court made important clarifications to possible gaps in the Pensions Reform Act (PRA), in Mrs. Rakiya Bakari Girei v Sigma Pensions Limited (Unreported Suit No. NICN/ABJ/379/2020, judgment delivered on 7th December, 2021; per Hon. Justice B.B Kanyip (Ph.D (PNICN). It reinforced the 25% withdrawal threshold allowed by the Pensions Reforms Act (PRA), as relating only to those who voluntarily retire (at/under 50 years), disengage, or are disengaged from employment. There is no such bar (in the legislation or the Constitution) restricting retirees who clock the retirement age of 60 years (or 35 years in service) from taking a 50% (or more) lump sum withdrawal from their Retirement Savings Accounts (RSA). The Court also found that where the claimant (in the instant case) had been disallowed from withdrawing 50% lump sum from her (RSA) – on grounds of being a female, no less, there was an infringement of constitutional provisions.
In Jorge Allende Traquini v ASC Nig. Limited (Unreported Suit No. NICN/LA/580/2017 judgment delivered on 10th March 2021; per Hon. Justice N.C.S Ogbuanya), the recondite issue was compliance with the Pensions Reforms Act’s requirement (for employees) to open an RSA. Here, parties were no longer in an employment relationship, and the employee, a foreigner, had relocated outside the country, post-employment. The Court, applying a purposive interpretation to the PRA, decided this rare instance when unremitted pension funds could be paid directly to the employee in retirement.
Deduction from an employee’s pensions account to pay checkoff dues was also held to be unlawful in Yusuf Abdullahi & Anor v Pensions Transitional Arrangement Directorate & 4 Ors (Unreported Suit No. NICN/ABJ/97/2019 judgment delivered on 30th September 2019; per Hon. Justice O.Y Anuwe). Relatedly, in Okunkpolor v Arik Air Nig Limited (Unreported Suit No. NICN/LA/45/2017, judgment delivered on 4th June 2021, per Hon. Justice Bassi), non-remittance of pensions and delay/non-payment of (a former employee’s) entitlements after they had exited the company was deprecated as reprehensible. Where this happens, the employer may be liable in damages in deserving circumstances. Regarding the unlawful practice of unremitted pensions deductions, the regulatory body, in at least four decisions handed down during the period under review, secured judgments that undoubtedly operate in rem to ensure employers, at the peril of penal sanctions, remit monthly pension contributions to employees’ retirement savings account, as and when due. These cases are: National Pension Commission v Daar Communications Plc (Unreported Suit No ABJ/395/2019, judgment delivered on 2nd November 2021, per Hon. Justice E.N Agbakoba), National Pension Commission v Ardent Energy Services (Unreported Suit No ABJ/386/2020, judgment delivered on 28th October 2021, per Hon. Justice E.N Agbakoba), National Pension Commission v NICON Insurance Plc (Unreported Suit No ABJ/63/2019, judgment delivered on 23rd November 2021, per Hon. Justice O.O Oyewumi), and National Pension Commission v Smart Products Nigeria Ltd (Unreported Suit No. NICN/LA/428/2014, judgment delivered on 11th February 2021, per Hon. Justice G. Nweneka).
Unfair Labour Practice and Best Global Practices
The National Industrial Court of Nigeria (NICN), based on the primacy of the facts presented before it, continues overall to draw from the immensely important influence of applicable international best practices in labour, employment, and industrial relations, as well as the appropriately pleaded interpretation of international labour standards. There is little doubt that this calling on best global practices, where necessary, has assisted immeasurably in filling the small gaps in the present world of work. Take, for instance, in the year under review, what constituted ‘unfair labour practice’ continued to envelop an ever-widening array of factual matrix and legal issues.
Referentially, in Amanze v Union Bank Plc (Unreported Suit No. NICN/LA/424/2018, judgment delivered on 29th June, 2021, per Hon. Justice (Dr) I.J Essien), the defendant bank, in response to the claimant’s wrongful termination claim, contended inter alia, that the claimant’s appointment was contingent upon meeting 100% of a set target. The claimant failed to meet this target, comprising principally of a minimum average monthly deposit from target customers. Noting the common law duty on the part of an employer to provide work – a duty which the employer cannot abdicate from – the Court declared the practice of setting deposit targets as a condition for an employee’s continuing employment, as wrongful, unlawful, and an unfair labour practice. With respect, the only critique to the otherwise profound holding of the Court here, is the potentially extensive (or, in rem) nature of the Order (‘outlawing’ the practice) made against other financial institutions who were not parties in the matter, and thus never had an opportunity of contributing to, for/against the arguments with respect thereto.
In similar vein, Chukwunonso v Ecobank Ltd (Unreported Suit No. NICN/EN/17/2019; judgment delivered 18TH November, 2021, per Hon. Justice O.O Arowosegbe) is a remarkable decision for reasons more than one. The Court here deprecated as an unfair labour practice, banks holding their staff that processed loan documents, without more, as responsible for debtors’ loan repayment defaults. The claimant in this case was 19 days shy of a 10-year-unbroken-service record, for entitlement to gratuity. The justice in the case therefore turned largely on availing him the equitable position of an inconsequential deviation from the standard rule that had been relied upon for his peremptory termination, a mere 19 days before the attainment of his 10 years’ unbroken service period.
Calling in aid applicable international best practices in labour, employment, and industrial relations, and the application or interpretation of international labour standards, the Court in Chukwuemeka v Dorben Microfinance Bank (Unreported Suit No ABJ/63/2019, judgment delivered on 23rd November 2021, per Hon.Justice O.O Oyewumi) held as unlawful the unilateral reduction of an employee’s salary without prior consultation with him. Drawing a fair balance, the Court nonetheless held that the reduction, on the extant factual pattern, would not excuse the repayment of the employee’s personal outstanding loan balance. Held: that his monthly salary was not tied to his personal loan. Similarly, in Bolarinwa v Heritage Bank (Unreported Suit No NICN/AK/23/2019, judgment delivered on 23rd February 2021, per Hon. Justice K.D Damulak) the action of the defendant in disengaging the claimant one year two months into the 7-year term of the staff mortgage loan, for services not required, and then unilaterally converting the loan to a commercial loan, was held to constitute an unfair labour practice which the Court held that the defendant could not do.
Ugwuazor & 4 Ors v Sterling Oil Exploration & 2 Ors (Unreported Suit No. NICN/AWK/24-28/2015; judgment delivered on December 9, 2021; per Hon.Justice Targema (Ph.D) not only held the termination (of the claimants) wrongful, but also deprecated the conditions of employment under which they were placed throughout their employment with the defendants, as ‘amounting to servitude and unfair labour practice’.
Still on application of public policy and international best practices, retroactive change of fundamental conditions and terms of employment contracts was frowned at, and deprecated as unfair on the employee-cum-victim; in Anyalor Maureen v Alex Ekwueme Federal University (Unreported Suit No ABK/01/2021, judgment delivered on 9th December 2021, per Hon.Justice O.O Arowosegbe) and Elekwa Elizabeth v Alex Ekwueme Federal University (Unreported Suit No ABK/02/2021, judgment delivered on 15th December 2021, per Hon. Justice O.O Arowosegbe).
Affirming a specie of pre-employment right, the Court in Ms. Obienu v AIDS Healthcare Foundation (Unreported Suit No ABJ/122/2020, judgment delivered on 29th September 2021, per Hon. Justice O.O Oyewumi) held as binding, a contract offering employment which the employee acted on by accepting, and further notifying her former employer of her resignation and exit. The defendant company was held liable in damages for a breach of contract in purportedly withdrawing the ‘offer’. A fortiori, a defendant company/’employer’ may nonetheless be able to successfully contend that there is/was no such employment where the purported employee fails to fulfill the preconditions (such as pre-employment medical report) for the said employment. Reliance is on the case citation of Godspower Josiah v Aiteo Energy Resources Limited (Unreported Suit No. NIC/PHC/144/2018, judgment delivered on November 22, 2021; per Hon. Justice F.I Kola-Olalere).
Wage and benefit disparity between local employees and foreign staff was held to be discriminatory and an unfair labour practice, on the factual pattern in Uzo Ejekwumadu v Blue Arrow TSW Limited (Unreported Suit No. NICN/LA/242/2016, Judgment delivered on March 18, 2021, per Hon. Justice O.A Obaseki-Osaghae) and Iseh Peter v Sterling Global Oil Exploration (Unreported Suit No. NICN/ YEN/ 42/ 2018; judgment delivered 30th September, 2021; per Hon. Justice Bashar A. Alkali).
Disciplinary matters, Exit/Cessation of employment and allied matters.
In Abdullahi v Intercontinental Bank Plc (Unreported Suit No ABJ/122/2011, judgment delivered on 31st March 2021, per Hon. Justice E.N Agbakoba), the Court held that it cannot by an injunction gag an employer from disciplining an employee where the need arises. Relatedly, Ogunleye v Stanbic IBTC Bank (Unreported Suit No ABJ/120/2018, judgment delivered on 25th November 2021, per Hon. Justice S. Kado) is a compelling authority that an employer has a right to take disciplinary action against its employee notwithstanding that the employee is standing trial for a criminal offence emanating from the same factual pattern. The claimant’s discharge and acquittal cannot prevent or render disciplinary action illegal or unlawful. In similar vein, the Court in Mr. Gerald Okpara v Borini Prono & Co (Nig.) Ltd (Unreported Suit No. NICN/ABJ/90/2017, judgment delivered on 7th October, 2021, per Hon. Justice S.O Adeniyi) restated the position that the prosecution of an employee before the law Court is not a sine qua non to the exercise of the power of summary dismissal by an employer for gross misconduct.
In exercising its disciplinary power, the employer must ensure that the process deployed is fair and accords with principles of natural justice. Warning meted out as punishment cannot ground termination for the same infraction, per Dr. Emudanohowo v Delta State University, Abraka (Unreported Suit No. NICN/AWK/33/2016; judgment delivered on October 7, 2021; per Hon.Justice Targema, Ph.D). The right to voluntarily disengage is absolute as seen in Dr. Emmanuel v Federal University of Agriculture, Makurdi (Unreported Suit No. MKD/02/2020, judgment delivered on 29TH November, 2021, per Hon. Justice (Dr) I.J Essien ), whilst indefinite suspension (not within the contemplation of contract of employment) can be construed as constructive dismissal Henry Eyo v NTA-Star TV Network Limited (Unreported Suit No ABJ/151/2019, judgment delivered on 22nd March 2021, per Hon.Justice O.O Oyewumi) . Similarly, suspension without pay is wrongful, unless exercised within ground(s) provided for in the terms and conditions of employment. Anthony Momoh v Cedarwood School Limited (Unreported Suit No. NICN/PHC/50/2019, judgment delivered on November 17, 2021; per Hon. Justice Kola Olalere).
A marked statement common to Omenogor v UBA Plc (Unreported Suit No. NICN/LA/142/2015, judgment delivered on 30th June 2021, per Hon Justice O.A Obaseki-Osaghae), Ogunlowo v Ventures and Trusts Limited (Unreported Suit No. NICN/LA/451/2016, judgment delivered May 19, 2021, per Hon Justice O.A Obaseki-Osaghae and Nwabugwu Benedeth v Uzondu Microfinance Bank Ltd. (Unreported Suit No. NICN/AWK/37/2018; judgment delivered on December 2, 2021; per Hon.Justice Targema, Ph.D) is that disciplinary process or termination/dismissal cannot commence after, or override an earlier act of resignation by the employee, even as Akpa v Sarplast West Africa Limited (Unreported Suit No ABJ/106/2020, judgment delivered on 11th October 2021, per Hon. Justice E.N Agbakoba) reaffirmed the position that loss or forfeiture of any (attendant) benefits such as long service awards etc. that the employee could ordinarily have been entitled to, attends upon such resignation.
With employments that are regulated by statute, the Court, construing applicable statutes, boldly held in Peter v Ambrose Alli University, Ekpoma & 6 Ors. (Unreported Suit No. NICN/BEN/26/2020; judgment delivered 25th March, 2021, per Hon. Justice A.A Adewemimo) that the Commissioner of Education in the state cannot unilaterally overrule the decision of the Governing Council of the University in relation to the employment and discipline of the state’s university staff. Ms. Fajemibola Aanu Mercy & 85 Ors v Vice Chancellor, Ekiti State University (Unreported Suit No. NICN/AK/06/2020, judgment delivered on 28th January 2021, per Hon Justice K.D Damulak), Dr. Ogunshe v University of Ibadan (Unreported Suit No. NICN/IB/85/2016, judgment delivered on June 24, 2021; per Hon. Justice J.D Peters); Dr. Ekpe v Registrar, University of Uyo (Unreported Suit No. NICN/UY/11/2016; judgment delivered 20th May 2021; per Hon. Justice M.A Namtari) and and Ogunjnmi v Board of Inland Revenue, Oyo State (Unreported Suit No. NICN/IB/19/2016, judgment delivered 28th September, 2021, per Hon.Justice J.D Peters)are some of the case citations (in the year under review) on nullification of disciplinary measures (including termination/dismissal) for non-compliance with the applicable Rules. The successful claimants in the cases under reference were all ordered re-instated to their posts/offices. In checkmating the abuse of executive powers, the Court in Rt. Hon. Jonas Okeke v Governor of Imo State (Unreported Suit No. NICN/OW/44/2020, judgment delivered on 24th June, 2021, per Hon. Justice I.S Galadima), noted that the applicants’ appointments, being offices statutorily created and entrenched within the Imo State House of Assembly Law, and having not exhausted their tenures in office, cannot be removed “at the pleasure of the Governor”.
Miscellany
Commendably, the decision in PENGASSAN v Chevron Nigeria Limited (Unreported Suit No. NICN/LA/411/2020, judgment delivered 26th February 2021, per Hon Justice E.A Oji PhD) poignantly sums up as: ‘…work on the constructive task of finding the intention of Parliament…not only from the language of the statute, but also from considerations of the social conditions which gave rise to it, and of the mischief which it was passed to remedy, and then supplementing the written words so as to give ‘force and life’ to the intention of the legislature…”. Lord Denning,Seaford Court Estates Ltd. v. Asher (1949) 2 K.B. 481. In a masterly analysis of relevant laws and prudential guidelines from case law, the Court was able to arrive at the conclusion that there is nothing in the relevant laws (Petroleum Act, etc.) that gives the Minister of Petroleum power to regulate private contracts of employment, or to introduce terms into the contracts of employment between parties. Further, that the Petroleum Act did not contemplate the type of regulation contained in the Guidelines for the Release of Staff in the Nigeria Oil and Gas Industry 2019, and thus cannot operate to obligate the oil and gas companies to obtain the written approval of the Minister of Petroleum Resources before embarking on any staff reduction and/or redundancy exercise.
The potential width of a reasonable restriction (on trade) imposed by a training bond, again came to the fore in Overland Airways Ltd v Engr. Shehu Sekula (Unreported Suit No. NICN/LA/599/2018, judgment delivered 12th April 2021, per Hon. Justice I.G Nweneka), and ATB Techsoft Solutions Limited v Eniola Grace Ake (Unreported Suit No. NICN/LA/100/2020, judgment delivered 16th March 2021, per Hon. Justice I.G Nweneka). In the former, the 1st defendant was held liable to a training bond by which he was sponsored for an aircraft type rating course by the claimant. He was ordered to pay for failing to give requisite notice of cessation of employment, and a refund of the course fee paid by the claimant for his type rating training. On the facts before the Court in the latter case, the Court held that there was nothing in the claimant’s evidence justifying the restriction to bind the defendant to the employer’s business for three years.
Akinola v Ocean Marine Solutions Ltd (Unreported Suit No. NICN/LA/410/2019, judgment delivered 25th October 2021, per Hon Justice I.G Nweneka) is a landmark judgment about workplace employment discrimination/harassment based on health disability (HIV/AIDS)[1]. Olalere v Olam Nigeria Limited (Unreported Suit No. KN/08/2009, judgment delivered on 25th March 2021, per Hon. Justice D.E Isele) examined, inter alia, when employee’s act can be held to constitute abandonment of duties. Uduak Akpan & 8 Ors v Caverton Helicopters (Unreported Suit No. NICN/YEN/38/2015, judgment delivered 28th May 2021, per Hon. Justice P.I Hamman) is apt citation (for the proposition) that disengaged employees would have to do more than merely allege that redundancy payments were not made, or procedure (for declaring redundancy) not followed where indeed the termination of employment, on proof of documentary details, is strictly in accordance with employment contract.
Amalgamated Union of Public Corporations, Civil Service and Recreational Services Employees of Public Corporations, Civil Service Technical and Recreational Services Employees (AUPCTRE) v Corporate Affairs Commission (CAC) (Unreported Suit No. NICN/ABJ/62/2021, judgment delivered 7th October 2021, per Hon.Justice B.B Kanyip (PNICN) is a firm pronouncement reiterating judicial disapproval of an employer’s interference in trade union activities in its workplace. This is in consonance with the express lettering of the Trade Unions Act on the right of employees to unionise without interference by the employer. Based on the primacy of facts in the instant case, the Court held, inter alia, that the ‘defendant cannot dissolve, regulate, supervise, inquire into, probe and interfere with the existence, running, finances and investment activities of the claimant union’. Still on not fettering the activities of the unions, the Court in NLC v Gov, Kaduna State (Unreported Suit No. NICN/KD/06/2021, judgment delivered on 6th October 2021, per Hon Justice S.O Adeniyi), had an opportunity to address the claimants’ grievance with respect to non-remittance of the checkoff dues deducted from members of the Nigeria Union of Local Government Employees working in all Local Governments in Kaduna State without appropriate remittance to its registered office as stipulated by the Trade Unions Act. The Court returned a favourable outcome on the claimants’ suit in this regard.
Compensatory damages
Stimulating new insights based on the primacy of the facts presented before it, the Court made a few inroads incrementally pushing the frontiers of compensable damages confirmed by the final court on labour and employment matters (in Sahara Energy Resources Ltd v Oyebola (unreported) CA/L/1091/2016 judgement delivered on 3rd December 2020) can be awarded in deserving cases – a radical departure from orthodoxy common law restrictive prescriptions on quantum of damages in successful employment claims.
In Ogunsakin v MTN Nigeria Communications Ltd (Unreported Suit No. NICN/ABJ/468/2016; judgment delivered 28th July, 2021, per Hon. Justice E.N Agbakoba), the termination of the claimant from his employment with the defendant was held wrongful as the disciplinary process leading to the termination failed to adhere to the common law rules of natural justice. A sum of N10,000,000.00 (Ten Million Naira) was awarded as general damages against the defendant. Much less straightforward it would appear, with respect, is what appears to be the double compensatory regime in the award of ‘three years salary each as compensation for wrongful dismissal/termination of the defendants’ employment’, and, ‘two year’s salary as compensation for unfair labour practice’ in Oyayero v British High Commission (Unreported Suit No. NICN/ABJ/144/2017; judgment delivered 28th July, 2021, per Hon. Justice E.N Agbakoba).
In Obakhume v Fidelity Securities Ltd (Unreported Suit No. NICN/BEN/34/2018; judgment delivered 15th March, 2021, per Hon. Justice A.A Adewemimo) from the aggregate of the compelling facts adduced in the case, the successful claimant was awarded N10,000,000.00 (Ten Million Naira) as general damages for the conversion of his employment in breach of the employment contract document. In Chinwo v Port Harcourt Electricity Distribution Company (Unreported Suit No. NICN/PHC/89/2020, judgment delivered June 29,2021, per Hon Justice N.C.S Ogbuanya) the sum of N2, 000,000. 00 (two million naira) was awarded as consequential relief/general damages in favour of the claimant against the defendants, for the ‘wrongful withholding of his accrued salary, allowance and pension fund contribution upon resignation of his employment, and (not paid) until he has filed suit in court challenging the conduct of the defendants, thereby exposing him to undue financial difficulties, which conduct constitute unfair labour/employment practice’.
In Dr. Oyeyemi v Covenant University (Unreported Suit No. NICN/LA/758/2016, judgment delivered on 28th September 2021, per Hon Justice O.A Obaseki-Osaghae) the defendant unilaterally reviewed the claimant’s employment contract to Senior Lecturer (Contract) which was unsolicited and would make the workplace intolerable to him. Coupled with the wrongful termination of his employment by the issuance of two letters of termination with immediate effect without any reason, the claimant was found to be entitled to an award of monetary equivalent of 24 months’ salary as general damages. Similarly, in Ngozi Iteogu v International Energy Insurance Plc (Unreported Suit No. NICN/LA/444/2016, judgment delivered on 12th February, 2021, per Hon. Justice O.A Obaseki-Osaghae) the Court held that the claimant was entitled to an award of general damages (sum equivalent of 24 months’ salary) for the stigma associated with the defendant’s unfounded and unjustified allegation of fraud against her.
For workplace physical/permanent injury/accident claims, the injured claimant in Davidson Iloh v Alo Aluminium Manufacturing Co. Ltd (Unreported Suit No. NICN/EN/61/2017, judgment delivered on March 16, 2021; per Hon Justice Arowosegbe ) succeeded in proving his claims, inter alia, that the defendant company failed in its duty of care to provide a safe workplace, for which (breach of duty on the part of the employer) the claimant employee consequently suffered permanent disability in his right hand that led to amputation of his little finger and right hand being dormant. The Court awarded the sum of N30,000,000.00 (Thirty Million Naira) to the claimant as compensation for ‘the permanent disability and disfigurement, loss of amenities of life, bodily pain and suffering which the claimant has suffered and may suffer in future, loss of earning and a future that is fraught with uncertainties as a result of the injury he sustained, while working for the defendant’.
In Mr Egejuru v Niger Construction Limited (Unreported Suit No. NICN/PHC/13/2019, judgment delivered on 18th October, 2021, per Hon. Justice P.I Hamman), the claimant, accountant with the defendant company, was shot by armed robbers while he was paying the workers at the site of the defendant’s company. The attack has since left him permanently partially incapacitated. On the facts before the Court, the Court found, inter alia, a deserving case for the award of N10, 000,000.00 (Ten Million Naira) as general damages in favour of the claimant ‘to take care of the pains, trauma and permanent partial incapacity of the claimant considering his earning power in the future’. The claimant in Ndifon v Bel Impex Limited (Unreported Suit No. NICN/LA/262 /2020; judgment delivered 28th October, 2021, per Hon. Justice R.H Gwandu) was not so lucky as he failed to prove to the Court ‘that his injuries resulted as a result of the defendants’ negligence or lack of proper working conditions’.
CONCLUSION
The labour court’s judicial strides in 2021, offer a renewed sense of optimism for a labour jurisprudence that is firmly minded to meet modern challenges. In the seemingly unattainable balancing act that often (perhaps unintentionally) pits best practices/international labour standards (perceived by some as biased in favour of employees), against commercial interests, the work of the Court is, indeed, an uphill task. It continues to steer the rudder towards a more equitable workplace for both employer and employee, progressively edifying substance over mere formalistic approaches that once dominated the world of work.
