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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: January 11, 2016 SUIT NO.NICN/LA/99/2012 BETWEEN TOLULOPE AJOKE OKUNUGA - CLAIMANT AND LEADWAY PENSURE PFA LIMITED - DEFENDANT REPRESENTATION Yomi Alagbada for claimant. Babatunde Esan for defendant. JUDGMENT The claimant filed this complaint against the defendant on the 4th March 2014 seeking the following reliefs: i. A declaration that the claimant’s employment with the defendant was not formally terminated by the defendant given the clear provision of the claimant’s terms of engagement and the provisions of the defendant’s employee hand book. ii. A declaration that the claimant is entitled to her full salaries from the 24th day of September, 2012 when she ought to have resumed back to work after her Masters Degree program abroad till 30th April, 2013 when the claimant was forced to join another organization. iii. An order directing the defendant to immediately pay to the claimant the sum of N2,205,000.00 (Two Million, Two Hundred and Five Thousand Naira) being the total sum due to the claimant as salary from 24th September, 2012 to 30th April, 2013 when the claimant was forced to take up another employment with another organization. iv. Interest on the sum of N2,205,000.00 (Two Million, Two Hundred and Five Thousand Naira) at the rate of 7% from September 2012 till judgment is delivered by this Court and at 21% from the date of delivery of judgment till the said sum is liquidated. v. General damages in the sum of N5,000,000.00 for losses incurred by the claimant as a result of the failure of the defendant to re-absorb her after her study leave abroad which trip was duly approved by the defendant. vi. Cost of this action against the defendant. Accompanying the complaint is the statement of facts, statement on oath and copies of documents to be relied upon. The defendant entered appearance, filed its statement of defence and counterclaim, witness statement on oath and copies of documents on the 11th April 2014. The defendant counter claimed as follows: a. A declaration that the defendant is entitled to the sum of Three Hundred & Fifteen Thousand Naira (N315,000.00) being one month salary entitled to the defendant from the claimant for termination of contract of employment without notice; b. An order directing the claimant to pay the above sum of Three Hundred & Fifteen Thousand Naira (N315,000.00) being one month salary entitled to the defendant from the claimant for termination of contract of employment without notice; c. An order for the payment of the defendant’s cost of defending this suit in the sum of One Million Naira (N 1,000,000.00). The claimant filed a reply and a defence to the counterclaim on the 17th July 2014. The claimant’s case on the pleadings is that she is an employee of the defendant by virtue of the offers of employment dated September 13, 2005 and December 28, 2005 respectively; that her employment with the defendant commenced on September 13, 2005 when the defendant was known as Leadway PFA Limited and on December 28, 2008 when the defendant became Pensure PFA. The claimant pleaded that her employment was confirmed in writing and the confirmation took effect from the March 16, 2006. She averred that she discharged her duties with utmost diligence and was assessed to have met the defendant’s expectation which led to the upward review of her salary sometime in 2008 and 2010. That she was on a net salary of 315,000.00 (Three Hundred and Fifteen Thousand Naira) as at 24th September 2012. The claimant pleaded that it is part of the defendant’s policy that employees who have worked for three years are entitled to go on study leave abroad for a period of one year if they so wish provided the defendant approves the study leave; and that upon getting the required approval such an employee would be reabsorbed subject to vacancy and management approval. That in line with the study leave policy of the defendant, she proceeded on a one year unpaid study leave abroad in September 2011 with the full approval and consent of the defendant. The claimant averred that she kept in touch with the defendant all through the period of her studies. That she sent an email on August 29, 2012 to Titilola Bashorun of her progress with her studies abroad and that she was nearing the completion and would be resuming back to work on 24th September, 2012. The claimant pleaded that she was shocked to receive a response from Titilola Bashorun that she could not be reabsorbed into the defendant due to on going restructuring in the IT department; that she could be recalled as soon as the restructuring had been completed. That restructuring has never been a reason or condition for reabsorption after an employee returns from study leave and that the failure of the defendant to reabsorb her on grounds of departmental restructuring was done in bad faith and in flagrant disregard to her terms of engagement. The claimant averred that her appointment was neither terminated by the defendant nor by her and that she did her best to impress it on the defendant to either reabsorb her back to her position upon her return from her trip abroad or to formerly terminate her appointment but the defendant kept silent on the issue and this left her stranded and without a means of livelihood for 6 Months before she took up a new employment. The claimant averred that the information regarding her new employment was promptly communicated to the defendant and it never raised any issue regarding any breach of any terms or conditions of her employment at the time¬-material to the commencement of the new employment. That the defendant could have exercised its right to terminate her employment lawfully but refused and rather kept her waiting by informing her that they were restructuring and may revert to her. She pleaded that the decision to take up her new employment was borne out of her desire to survive and take care of her immediate family as the defendant’s decision not to reabsorb her or terminate her appointment properly left her and her family members stranded and without any reasonable means of survival for 6 Months. The claimant pleaded that either of the parties can terminate the employment contract by giving a month’s notice or the payment of one month’s salary in lieu of notice which the defendant failed to do. That she took steps in letting the defendant know that its failure to re-absorb her into the system does not amount to the termination of her appointment and requested that she be formally disengaged and paid her entitlements as provided under the redundancy clause in the defendant’s handbook. That the defendant insisted that it was not under any obligation to formally terminate her appointment or pay her any benefits and she was forced to join another organization in May 2013 eight months after. She averred that the defendant refused to re-absorb her even though her employment was not formally terminated. That she went through a very traumatic and difficult time fending for herself and her young family throughout the period she was out of the defendant’s employment before she got her new employment. The claimant pleaded that she never acted fraudulently or perpetrated any falsehood in respect of this matter and that the defendant has treated her with disdain and subjected her to inhumane conditions by not declaring her redundant so that she could be entitled to some benefits or terminating her employment. That the defendant is not entitled to N315,000.00 (Three Hundred and Fifty Thousand Naira) as her employment is still subsisting having not been terminated by the defendant. The claimant testified in support of her case. Her evidence in chief was by witness statement on oath which she adopted. It was in the exact terms of the pleadings. Under cross-examination the claimant told the court that the defendant was still technically her employer as her employment has not been terminated. She said that she was aware that she could only be reabsorbed if there was a vacancy and there was management approval. She said she ought to have been informed that she would not be re-absorbed a month before she wrote asking for an extension. The claimant told the court that she did not offer any service to the defendant during the period she kept going to the Human Resources Department to ascertain the status of her employment. The claimant then closed her case. The case of the defendant on the pleadings is that the claimant was once its employee and in the course of her employment had proceeded on maternity leave with pay two different occasions, September-December 2006 and April-July 2009. The defendant averred that one year study leave applied for by the claimant was granted on the understanding that her re-absorption will be subject to vacancies and the Management’s discretion which she accepted. The defendant pleaded that the claimant only communicated with respect to her employment by email dated 27th August 2013 stating that she would soon complete her programme and seeking an extension to return on the 24th September 2013 as against 19th September 2013; that it did not approve the extension sought by the claimant. That the Head of its Human Resources Department Mrs. Titiola Bashorun responded by email dated 4th September 2013 and reminded the claimant of the agreed condition on which she may be re-absorbed which is subject to vacancies and Management approval. The defendant pleaded that it never contemplated terminating the appointment of the claimant and intended to honour the understanding reached with the claimant to reabsorb her when there was vacancy and subject to the discretion of its management. That the claimant was aware that there was no vacancy upon her return from the one year study leave and that her proposed date of return exceeded the one year study leave period which was approved. The defendant pleaded that whilst the employment of the claimant was not terminated, she returned her identity card in 2012, in line with Clause 2.4 of the staff handbook and she unilaterally proceeded to join another Organization without notice to it. That the claimant had an obligation to give one month notice or pay one month salary in lieu of notice upon her decision to terminate her contract of employment and move on to take up another employment in May 2013 which she failed to do. The defendant pleaded that the claimant was not made redundant and that it only acted in line with the agreement reached with the claimant with respect to her reabsorption after her study leave. The defendant averred that the claimant’s contention that she was not in employment is false and fraudulent since she had taken up employment with another organization in May 2013. The defendant called one witness Mrs Titi Bashorun (DW) Human Resources Manager in support of its case. Her evidence in chief was by witness statement on oath which she adopted. It was in terms of the pleadings. Under cross-examination, DW told the court that the claimant was given approval to proceed on study leave and that the period of study leave is part of the service. DW told the court that the claimant was not made redundant, neither was her appointment terminated. She said the claimant was still a staff of the defendant between September 4, 2012 and November 2013 and that if in employment she is entitled to be paid. DW told the court that the claimant was not paid between September 2012 and November 2013. She confirmed that the staff handbook forms part of the claimant’s contract of service. The defendant then closed its case. The parties were then directed to file their final addresses. The defendant’s final address is dated 24th July 2015 and filed the same day. The claimant’s final address is dated 15th September 2015 and filed the same day. The defendant’s reply is dated 22nd September 2015 and filed the same day. Both counsel adopted their written addresses. Learned counsel to the defendant submitted the following issues for determination: 1. Whether parties are bound by the contract of employment voluntarily entered into by them and if the answer is in the affirmative whether the Honourable Court can admit or consider extrinsic evidence to vary the contents of the written agreement(s). 2. Whether the claimant has an extant contract of employment with the defendant and if the answer is not in affirmative whether the claimant is entitled to her full salaries from 24th day of September 2012 when she alleged she ought to have resumed back to work till 30th April 2013 when she claimed to have been employed by another organization. 3. Whether the claimant has made a case for entitlements to benefits under the redundancy clause of defendant’s employee handbook. 4. Whether the Honourable Court can award general damages in the sum of N5,000,000.00 (Five Million Naira) or any sum against the defendant for the defendant’s failure to re-absorb the claimant into its employment and whether this Honourable Court can grant award of damages in a contract of employment. 5. Whether the claimant has proved her claims against the defendant or whether the defendant’s counterclaim should be granted. He submitted that parties are bound by the terms of contract voluntary entered into by them and where the document evidencing their contract is duly pleaded and admitted in evidence the document itself becomes the best evidence of the contents citing Union Bank of Nigeria Plc v Emmanuel Aderewaju Socires [2012] 11 NWLR (Pt. 3112) 550. It was his further submission that the court has a duty to limit itself to the contract of employment between the parties when interpreting the relationship between the Employer and the Employee citing Oceanic Bank International Limited v Mr. Efe Michael Udemebraye [2008] FWLR (Pt. 430) 769, UBN V Ozigi [1994] 3 NWLR (Pt. 333) 385. He submitted that the evidence shows that both parties were ad idem on the conditions pertaining to the grant of the study leave governed by the provisions of clause 3.9.9 of the defendant’s Employee handbook which is unambiguous; that unless there is vacancy in the rank of the defendant and subject to the discretion of the management of the defendant, the defendant is not under any obligation whatsoever to re¬absorb the claimant into its employment. Learned counsel submitted that the claimant in taking up employment with another had terminated her employment with the defendant citing Samuel Oyetoki V Nigeria Postal Service [2008] FWLR (PT. 504) 1572. That the evidence adduced shows that the claimant did not work for the defendant upon her return from her study leave and did not render any service to the defendant as would make her entitled to the receipt of salaries from the defendant citing Spring Bank Plc V Julius O. Babatunde [2012] FWLR (Pt. 609) 1191. He submitted that there is no basis for the claim of N2,205,000.00 (Two Million Two Hundred and Five Thousand Naira only) or redundancy benefits as redundancy clause is not applicable to the claimant who proceeded on a study leave. On the counterclaim, learned counsel submitted that having failed to give the defendant notice the claimant is liable on the counter claim in the sum of N315,000.00 (Three Hundred and Fifteen Thousand Naira) being one month salary in lieu of notice for termination of the contract of employment without notice. He then urged the court to dismiss the claimant’s suit with substantial costs. Learned counsel to the claimant submitted the following issues for determination: (i) Whether parties are bound by the contract of employment voluntarily entered into by them and if the answer is in the affirmative, whether this Honourable Court ought not to consider the content of the agreement together as a whole as against picking and choosing therefrom? (ii) Whether the claimant has an extant contract of employment with the defendant and if the answer is in the affirmative, whether the claimant is not entitled to her full salaries from September 24, 2012 till April 30, when she joined another organization? (iii) Whether in light of the improper termination of the claimant’s employment, the defendant is entitled to any counter-claim? He submitted that the principle of law is that contracts voluntarily entered into by parties are binding on them and a Court of law will not sanction an unwarranted departure from the terms of the contract unless they have been lawfully abrogated or discharged citing FGN v Zebra Energy Ltd [2002] 3 NWLR (Pt. 754) Page 471 at Page 491 Paras E-F. It was his submission that from the evidence adduced the defendant never terminated the appointment of the claimant which was still subsisting and it was under an obligation to re-absorb the claimant into its employment. Learned counsel submitted that where a contract of employment provides for a mode or procedure for the termination of the employment, the employment subsists until the mode or procedure is complied with citing Imo Effiong Mbosoh v Joint Admissions and Matriculations Board [2008] LPELR-4306 (CA). Learned counsel submitted that that wages or payment of salaries is a fundamental obligation of an employer to the employee as long as such an employee remained under its organization and the failure of the defendant to make such payment vests a cause of action in recovery of the unpaid salaries on the claimant citing Overland Airways v Capt. Afolayan unreported [NIC 2014]. He referred to Smith and Woods Employment Law 9th edition at page 141, Collier v Sunday Referee Publishing Co. Ltd [1940] 2 KB 647, [1940] ALL ER 234, Bernard Longe v First Bank of Nigeria Plc. [201]) 6 NWLR (Pt. 1189) 1 SC. He submitted that by the provision of clause 7.4 of the handbook the claimant is entitled to redundancy payments. He submitted that having established that the defendant breached the contract of employment, it is not entitled to the counter-claim and he urged the court to dismiss the counter claim. Replying on point of law, learned counsel to the defendant submitted that the claimant cannot rely on the provisions relating to redundancy or other general provisions of the handbook to oust the specific and special provision clause which governs the effect of an employee proceeding on a study leave. He further submitted that in the interpretation of an agreement or statute, where a special/specific provision is made to govern a particular subject matter, the subject matter is excluded from the provision of any general provision; that one of the cardinal rules of judicial interpretation is to exclude what is not stated as expressed by the Latin maxim unius exclusion alterius. He cited Amgboare v Sylva [2008] All FWLR (Pt. 419) 576 at 578, Best Nigeria Limited v Black Wood Hodge Nigeria Limited [2011] 1-2 SC (Pt. 1) 55 at 88, Attorney General Federation v Abubakar [2007] All FWLR (Pt. 375) P. 405 at 524). I have carefully considered the processes, the evidence adduced, submissions and authorities cited. The issue to be determined is whether on the pleadings and evidence, the claimant ought to be entitled to judgement. There is no dispute between the parties that the claimant is an employee of the defendant; that either party may terminate the contract by giving one month notice or payment of one month salary in lieu of notice; that in September 2011 she proceeded on a one year unpaid study leave abroad which she applied for and was approved by the defendant. There is also no dispute that the parties are aware that they are bound by the provisions of the handbook which forms part of the contract of employment. I will now reproduce the relevant provision for this judgement from the handbook: 3.9.9 Study leave without pay. Study leave without pay for one year may be granted an employee who has worked with the company for a period of at least three (3) years for a course related to his profession. Such leave shall be granted at the absolute discretion of management. The period of study leave shall count as part of the employees years of service with the company provided the employee agrees to return to the service of the company and does not leave within two years of such return to service. Re absorption on completion of the course or expiration of the period granted, whichever is earlier, shall depend on the circumstances of each case and shall be at management discretion. On completion of approved study leave, the employee will be reabsorbed at his/her previous grade subject to vacancies and to management approval. If the employee is not re-absorbed or does not return to the services of the company, his/her outstanding entitlements, if any, as at the date he/she left for the study leave will be paid to him/her. In the exercise of its interpretation jurisdiction, courts are enjoined to construe a document in its ordinary and grammatical meaning without any colouration. See Dalek Nig Ltd v OMPADEC [2007] 7 NWLR (Pt 1033) 402 at 441, Obi v INEC [2007] 11 NWLR (Pt 1046) 449. The question that arises is what is the meaning of the words used in the above clause? When taken holistically, the meaning of the entirety of this clause is that an employee who proceeds on unpaid study leave without entering into a bond with the defendant to return and be in its service for two years after his/her return is no longer regarded as an employee of the defendant; and I so hold. The words in the clause such as “agrees to return to the service, re-absorption, subject to vacancies, management discretion, management approval” have been carefully used and are pointers that the employment relationship has come to an end. The position is different in the case of an employee who agrees to enter into a bond with the defendant; the period of study leave will count as part of his/her years in service. Now, the letter approving the claimant’s study leave is not in evidence so there are no details of the approved study leave granted. There is also no evidence that she agreed to return to the service and entered into a bond with the defendant. I find that the claimant when proceeding on unpaid study leave knew that there was a likelihood that she would no longer have a job with the defendant on her return. In response to the claimant’s email informing the defendant about the completion of her study leave, the defendant conveyed its position to her in clear terms in Exhibit D2 before she returned from her unpaid study leave. Extracts from the email sent to her by DW are as follows: Dear Tolu, Please be informed that we have reviewed your file and study leave granted and wish to inform you that the IT department is currently being restructured and yet to be finalized. As you are aware also, our organisations’ policy on completion of approved study leave states that “the employee will be re-absorbed at his/her previous grade subject to vacancies and management approval”. In view of the above, we cannot guarantee a re-absorption at this point but if any vacancy should come up in the nearest future, you would be considered. Once again, congratulations and wish you all the best in all your endeavours. By this email, the claimant was informed and ought to have known that she was not going to be re-absorbed on her return. The email is written in line with clause 3.9.9. which she consented to. Therefore, the claimant’s contention that she has been rendered redundant by the defendant does not arise. The law is that parties are bound by the contract they enter into and the courts must always respect the sanctity of the agreement reached by the parties. See Best Nigeria Ltd v Black Wood Hodge Nigeria Ltd [2011] 1-2 SC (Pt 1) 55 at 88. I hold that the employment relationship between the parties came to an end as soon as the claimant proceeded on unpaid study leave for one year without any agreement to return to the service and without a bond. Furthermore, the provisions of clause 3.9.9 agreed to by the parties, together with their conduct make a formal termination of the contract of employment by either of the parties unnecessary and I so hold. The claimant is seeking a declaration that she is entitled to her salaries from September 2012 to 30th April 2013 when she took up another job. The defendant has also counterclaimed for one month’s salary in lieu of notice. The evidence before the court is that after the claimant returned, she did not perform any services for the defendant, neither did the defendant pay her any salary. By May 2013 the claimant had found herself another job. The evidence (exhibit D5) is that the claimant is not contesting the defendant’s decision not to re-absorb her after her study leave. There is therefore no basis for this claim by the claimant who rendered no service to the defendant; in like manner, the defendant who did not provide the claimant with work or pay her any salary is not entitled to one month’s salary in lieu of notice. The claimant is however entitled to her outstanding entitlements if any, at the date she proceeded on study leave in accordance with clause 3.9.9. For all the reasons given above, this action lacks merit and is hereby dismissed. The counterclaim also lacks merit and is dismissed. Each party is to bear its own costs. Judgement is entered accordingly. _____________________________ Hon Justice O.A.Obaseki-Osaghae