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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP: HON. JUSTICE O.A. OBASEKI-OSAGHAE DATE: October 12, 2015 SUIT NO. NICN/LA/176/2014 BETWEEN CHUKWUDI OKWUME - CLAIMANT AND AIRTEL NETWORKS LIMITED - DEFENDANT REPRESENTATION Olufemi Hassan for claimant. C. N. Nga, with R. A. Danladi for defendant JUDGMENT The claimant filed this action against the defendant on the 14th April 2014. By an amended complaint filed on the 21st November 2014, the claimant is seeking the following reliefs: (i) A declaration that the termination of the claimant’s employment with the defendant without recourse to the claimant’s Standard Employment Contract with the defendant in terminating the said employment is wrongful. (ii) A declaration that the claimant’s termination of employment with the defendant is unfair, unjust and in breach of the defendant’s Standard Operating Procedure which deal with the defendant’s disciplinary Policy and Procedure. (iii) An order of this Honourable Court against the defendant to pay to the claimant the sum of N89,544,747.36 (Eighty Nine Million, Five Hundred and Forty Four Thousand, Seven Hundred and Forty Seven Naira, Thirty Six Kobo) being the amount that would have accrued to the claimant if his employment with the defendant was not wrongfully terminated. (iv) N50,000,000.00 (Fifty Million Naira) for general damages for the pains the defendant caused the claimant. (v) The sum of N5,000,000.00 (Five Million Naira) being the cost of this suit/action. Accompanying the amended complaint is the amended statement of facts, witness statement on oath and copies of documents to be relied upon. The defendant filed an amended statement of defence and witness statement on oath on the 2nd December 2014. The parties joined issues and the matter went to trial. The claimant’s case on the pleadings is that he is a former employee of the defendant and until his employment was terminated was Assistant Manager Protocol. The claimant pleaded that on the 15th December, 2003 the defendant offered him employment in the Human Resources and Administrative Department which he accepted and his appointment was confirmed after the probationary period by a letter dated 19th July, 2004. The claimant pleaded that after working for ten (10) years meritoriously for the defendant he was served the letter of termination of employment from the defendant on the 11th December, 2013 without any allegations of misconduct or query. The claimant averred that he was not given fair hearing as no panel was constituted to investigate any alleged misconduct, if any, against him neither was the claimant given any query which he refused to reply or answer to. Furthermore, the claimant avers that he was never issued any query nor afforded the opportunity to defend himself in accordance with Clause 17 of the claimant’s Standard Employment Contract (EWN) and most especially the defendant’s Standard Operating Procedure relating to Disciplinary Policy and Procedure. The claimant pleaded that his Standard Employment Contract (EWN) and the defendant’s Standard Operating Procedure relating to disciplinary policy and procedure was not followed in terminating his employment. He averred that by his employment contract, he is supposed to retire from the defendant at the age of 55 years but his employment was hurriedly and wrongfully terminated before he attained the age of 55 years. The claimant pleaded that his employment could only be terminated where his performance falls short of expectation or for gross misconduct or any act or conduct considered to be inconsistent with the ethics, wellbeing and integrity of the company; and he was never found wanting or queried for any of these acts. The claimant averred that he would have been entitled to his salaries and other benefits for the next seventeen years if the defendant had not wrongfully terminated his employment. That after his employment was terminated, his Solicitors wrote the defendant about the wrongful termination but the defendant did not respond to his Solicitors letter. He pleaded that his contract of employment was for a fixed term commencing from 22nd December, 2003 when he was 27 years and terminating upon attainment of 55years in year 2030. That the defendant’s rules and regulations was made an integral part of his contract of employment. The claimant pleaded that he never demanded or authorized the defendant to credit his account with his bankers and as such could not be deemed to have adopted his termination or terminal benefits. The claimant gave evidence in support of his case. His evidence in chief was by witness statement on oath which he adopted. It was in the exact terms of the pleadings. Under cross-examination he told the court that he was given a letter of employment and an employment contract which is the primary document regulating his employment with the defendant. The claimant said his employment was not terminated in accordance with the disciplinary procedures and policies and that he was not given a hearing. He told the court that the defendant is required in exhibit C4 to give reasons for terminating his appointment and the defendant did not do this. He said that he is expected to retire at 55 years of age and that the defendant terminated his appointment in line with the standard contract of employment. He admitted he was paid one month’s salary in lieu of notice. The claimant then closed his case. The case of the defendant on the pleadings is that the claimant was offered employment in the Human Resources & Admin Department of the defendant by letter dated 15 December 2003. That upon being assigned the position of an Admin Assistant - Protocol the claimant executed a Standard Employment Contract (EWN) which is the main contract governing the employment of the claimant with the defendant at the material time. The defendant pleaded that in line with its desire to provide a safe working environment for its employees, it formulated disciplinary rules to govern its employees. That the guidelines and procedure regulating the disciplinary rules are encapsulated in the Standard Operating Procedure made available to each employee. The defendant pleaded that on 11 December 2013, it terminated the claimant’s employment by a letter. That the claimant’s employment was not terminated based on any violation or alleged misconduct which will warrant observing the guidelines in the disciplinary policy and procedure but in accordance with the terms of the standard employment contract. The defendant pleaded that it has the right to terminate the claimant’s employment any time after confirmation of appointment without advancing reasons if his performance falls short of expectation by giving him one month's notice or one month's salary in lieu of notice. That in accordance with the standard employment contract, the defendant informed the claimant by letter dated 7 January 2014 of the break-down of his terminal benefits. The defendant averred that it remitted its share of the claimant’s Pension Contributions into his Retirement Savings Account with his Pension Fund Managers (Stanbic IBTC Pension Managers), and also paid his end of service entitlements through his Standard Chartered Bank (Lisa) Account. The defendant pleaded that it is not under any obligation to allow the claimant to be in its employment for up to 55 years and that the claimant’s employment is not for a fixed term. The defendant averred that it complied with the condition stipulated under the contract by paying one month's salary in lieu of notice to the claimant and that it is ludicrous for the claimant to have computed in monetary terms his envisaged entitlement in the sum of N89,544,747.36 being his salaries and other benefits for the next 17 years if the defendant had not terminated his employment. That the claimant is not entitled to any of the reliefs nor the sum of N89,544,747.36. The defendant called one witness in support of its case, Ibiyomi Olalekan Ogunbiyi (DW) Head Rewards and Performance Management of the defendant. His evidence in chief was by witness statement on oath which he adopted. It was in the exact terms of the pleadings. Under cross-examination DW told the court that he did not know if the claimant received a notice of shortfall in performance. He told the court that the rating A4 means poor performance and there are interventions such as training, coaching, redeployment and exit. DW told the court that he was not in a position to tell whether the claimant had been giving a rating of A4. DW agreed that the claimant was terminated on the first paragraph of clause 17 in exhibit C4. He told the court that the claimant’s account was not credited with any sum of money. The defendant then closed its case. The parties were then ordered to file their final addresses. The defendant’s final address is dated 10th March 2015 and filed the same day. The claimant’s final address is dated 3rd June 2014 and filed on the 4th June 2015. The defendant’s reply on point of law is dated 5th June 2015 but filed on 8th June 2015. Learned counsel to the defendant submitted two issues for determination as follows: 1. Whether the defendant complied with the provisions of the employment contract when it terminated the claimant’s employment? 2. Whether the claimant has been able to establish that the defendant wrongfully terminated his employment when the defendant complied with the specific terms in the employment contract on payment of salary in lieu of notice in cases of termination? He submitted that the claimant’s employment is purely a master and servant relationship citing Atanda V Saffeiddine Transport Ltd [2007] LPELR 8303, Olarewaju V Afribank Nigeria Plc [2001] LPELR 2573 and Daodu V Uba Plc [2004] 9 NWLR (Part 291) 47. He further submitted that an employer is not bound to give any reason for terminating the appointment of a servant which is in tandem with the employment contract as the defendant did not adduce any reason for the termination of the claimant’s employment. He cited Ihezukwu V University Of Jos [1990] LPELR 1461 @ Page 21, Ativie V Kabelmetal Nig. Limited [2008] 10 NWLR (Part 1094) 399. He submitted that the evidence adduced shows that the defendant complied with the terms of the employment contract. It was the submission of counsel that the onus is on the claimant to prove that the termination of his employment was unlawful and to discharge this onus, he referred to the Supreme Court decision in Oloruntoba-Oju V Abdul-Raheem [2009] 13 NWLR (Part 1157) 83 at 136 paras F – H. Counsel argued that the evidence shows that the claimant’s termination was lawful. That having been paid his salary and entitlements, the claimant’s has no claim against the defendant. He argued that the relief for payment of the sum of N89,544,747.36 being the accrued amount the claimant would have earned if his employment had not been terminated is contrary to the position of the law that an employee is only entitled to the amount he/she would have earned within the period of notice required with other benefits and nothing more. He then urged the court to dismiss the case with substantial costs. Learned counsel to the claimant submitted the following issues for determination: 1. Whether the defendant complied with claimant’s contract of employment exhibits C4 and C5 in terminating the claimant’s employment wrongfully. 2. Whether the defendant breached the claimant’s term of contract of employment exhibit C4 in terminating the claimant’s employment with the defendant. He submitted that parties are bound by the contract of employment citing U.B.N v Soares [2012] 11 NWLR (Pt. 1312) 550 at 571, F.M.C., Ido-Ekiti v Olajide [2011] 11 NWLR (Pt. 1258) 256 at 282, Anaja v. U.B.A Plc [2011] 15 NWLR (Pt. 1270) 377at 392. He submitted that under the contract of employment, the defendant’s right and power to terminate the claimant’s employment is subject to stating if the claimant’s performance fell short of expectations. He submitted that the claimant has shown that the defendant has breached the contract of employment exhibit C4 by not giving a reason. He cited U.B.N v. Chinyere supra, Ogan v N.L.N.G. Ltd [2013] 16 NWLR (Pt. 1381) S.C 506. He submitted that the claimant is entitled to the reliefs sought in his amended statement of claimant having adduced enough evidence that the defendant breached the terms of his contract of employment in terminating his employment. He submitted that damages for the claimant ought to be assessed from the damage foreseeable from the defendant’s breach and that the claimant is entitled to his salary till he is 55years. He referred to Hadley v Baxendale [1843-60] All ER 461 at 465 U.B.N v Sparkling breweries Ltd [1992] 5 NWLR (Pt. 505) 344, Mobil Oil Nigeria Ltd v Abraham Akinfosile [1969] NMLR Vol. 1, 217. Replying on point of law counsel to the defendant submitted that damages available to the employee is the payment of his salary and other entitlements already lawfully accruable and payable for the period for which the employee should have been given notice of termination citing Osisanya V Afribank Nigeria Plc [2007] LPELR 2809. I have carefully considered the processes filed, the evidence led, the written submissions and authorities cited. The issue for determination is whether on the pleadings and evidence canvassed in the suit, the claimant is entitled to the reliefs he is seeking. The burden of proof of establishing the terms of the contract of service is on the claimant. In furtherance of this, the claimant has placed before the court his letter of appointment, confirmation of employment and the Standard Employment Contract (EWN) which provides for the rights and obligations of himself and the defendant. See Fakuade v. O.A.U.T.H. [1993] 5 NWLR (Pt. 291) 47, Idoniboye-Obe v. NNPC [2003] 2 NWLR (Pt. 805) 589 at 630, Section 131(1) and (2) of the Evidence Act 2011. The claimant has told the court that exhibit C4 the Standard Employment Contract (EWN) is the primary document regulating his employment. The claimant’s complaint and grouse is that the defendant breached the employment contract and its disciplinary procedure in the manner it terminated his employment by not stating a reason. At this juncture, it is necessary to reproduce the letter of termination: Dear Chukwudi, TERMINATION OF EMPLOYMENT This serves as formal notification on this 11th December 2013, that your employment with Airtel Networks Limited, Assistant Manager Protocol, is hereby terminated effective 11th December 2013, in line with your contractual terms of employment. Your last day of work will therefore be 11th December 2013. Kindly liaise with Human Resources for details of your terminal benefits and please return your identity card and all other company property in your possession before your exit from the company. We wish you all the best in your future endeavours. Yours Faithfully Jubril Saba Director:HR & Admin An employer is not bound to give a reason for terminating the appointment of its employee but where the employer gives a reason the law imposes on him a duty to establish the reason to the satisfaction of the court. See Olatunbosin v NISER Council [1988] 1 NSCC 1025; [1988] 3 NWLR (Pt 80) 25. Clause 17 of the employment contract makes the following provision for termination of employment: The company may terminate your employment any time after confirmation of appointment without advancing reasons if your performance falls short of expectation, by giving you one month’s notice or one month’s salary in lieu of notice. The company may terminate your employment summarily without notice for gross misconduct or any act or conduct considered to be inconsistent with the ethics, well-being and integrity of the company. The letter of termination did not given a reason for the termination of the claimant’s employment. However, the defendant has in Paragraphs 11 & 12 of the statement of facts pleaded that it terminated the claimant’s appointment in line with the first paragraph of clause 17 above. The parties have joined issues on the purport of the first paragraph of clause 17. The law is settled that parties are bound by their pleadings and facts admitted need no further proof. See Section 123 of the Evidence Act 2011. In the exercise of its interpretation jurisdiction, courts are enjoined to construe a document in its ordinary and grammatical meaning without any colouration. See Ogundele v Agiri [2009] 18 NWLR (Pt 1173) 219, Amizu v Dr Nzeribe [1989] 4 NWLR (Pt 118) 755. The question that arises is what is the meaning of the words used in the first paragraph of clause 17? The ordinary meaning is that no reason is given because the employee’s performance has fallen short of the defendant’s expectation. The fact that the defendant terminates an employee’s employment because of poor performance is in itself a reason that the employer must establish to the satisfaction of the court; and I so hold. The defendant in Paragraphs 11 and 12 of the statement of facts has pleaded as follows: 11. Consequently, pursuant to the first paragraph of clause 17 of the Standard Employment Contract, the defendant has the right to terminate the claimant’s employment anytime after confirmation of appointment without advancing reasons if his performance falls short of expectation, by giving him one month’s notice or one month’s salary in lieu of notice. 12. In line with the first paragraph of clause 17 of the Standard Employment Contract, the defendant then informed the claimant via a letter dated 7 January 2014 of the break-down of the claimant’s entitlements which includes his End of Service Entitlements and other benefits. I find that the reason the defendant terminated the claimant’s employment was as a result of shortfall in performance. The law is settled that he who asserts must prove. This reason should be established to the satisfaction of the court particularly in this instance where the claimant was in the defendant’s employment for ten years. The next question is whether this reason has been established? It is pertinent at this stage to reproduce the evidence of DW under cross-examination: To the best of my knowledge, I do not know if the claimant has received any notice of shortfall in performance. I am familiar with the word A4. A4 means poor performance in the rating grade of staff. We rate employees once in a year…I am not in a position to tell you whether the claimant has been given A4. I agree that the claimant was terminated on the first paragraph of clause 17. The defendant has not adduced any evidence of the claimant’s shortfall in performance. The defendant has therefore not established the reason it terminated the claimant’s employment. However, the claimant has admitted that he was paid his one month salary in lieu of notice in accordance with the employment contract. There is no evidence adduced by the claimant that he was being disciplined which would require the defendant to adhere to its disciplinary procedure as contained in exhibit C5 the Standard Operating Procedure. The defendant has pleaded that the claimant’s employment was not terminated as a result of misconduct. Consequently relief (ii) in the amended complaint is refused. The claimant has asked for the sum of N89,544,747.36 being his salaries and benefits for the next 17 years. There is no basis for this claim as his contract is not for a fixed term. Furthermore, the claimant cannot treat the contract of employment as subsisting and sue for salaries and allowances up till his retirement from service. The claimant has asked for general damages for the pains caused him by the defendant. The claimant was in the service of the defendant for ten years. The termination of his employment took effect from the day the letter was written on the 11th December 2013. The reason of shortfall in performance given by the defendant has not been established by it. This reason is therefore unfounded and has the effect of stigmatizing the claimant which could affect his chances for future employment. It is my considered view that this entitles the claimant to an award of general damages. Consequently, by the provisions of Section 19 (d) of the National Industrial Court Act 2006 which empowers the court to make an award of compensation or damages in any circumstances contemplated under the Act; I award the claimant general damages in the sum of N1,417,182.39 (One Million Four Hundred and Seventeen Thousand, One Hundred and Eighty Two Naira, Thirty Nine Kobo) being the claimant’s total earnings for three months. For all the reasons stated above I hereby declare and make the following orders: 1. The termination of the claimant’s employment is unfair as the defendant did not establish that his performance fell short of expectation. 2. The defendant is to pay the sum of N1,417,182.39 as general damages. 3. Cost of N50,000 is awarded in favour of the claimant. 4. The sums are to be paid within 30 days. Judgement is entered accordingly. _____________________________ Hon Justice O.A.Obaseki-Osaghae