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JUDGMENT 1. Introduction & Claims On 22/12/14, the Claimant approached this Court via her General Form of Complaint & Statement of Facts and sought the following reliefs from the Court - 1. A declaration that Claimant was validly employed by the Defendant vide an employment agreement and an offer letter dated 30th June 2009 and that she is still in the service of the Defendant company having not been terminated. 2. A declaration that Claimant was validly placed on total emolument of =N=2,160,000 (Two Million, One Hundred and Sixty Thousand Naira) per annum, or =N=180,000 (One Hundred and Eighty Thousand Naira) per month. 3. A declaration that Claimant is entitled to continue receiving her full salaries and entitlements as an employed staff of the Defendant company until her employment is validly terminated by the Defendant. 4. A declaration that the Defendant was wrong in making short payment of Claimant’s monthly salaries contrary to the agreement contained in the employment agreement given to claimant by the Defendant company. 5. An order of this honourable Court compelling the Defendant to pay Claimant all her outstanding short paid and unpaid salaries from July 2009 till date. 6. An order of this Honourable Court compelling the Defendant to immediately pay to Claimant all her outstanding unpaid salaries as well as those short paid from July 2009 till the commencement of this action amounting to the sum of =N=4,884,785.40 (Four Million, Eight Hundred and Eighty Four Thousand, Seven Hundred and Eighty Five Naira, Forty Kobo). 7. An order of this Honourable Court compelling the Defendant company to recall Claimant to work and to continue paying the salaries of the Claimant until the final determination of this suit and the valid termination of the Claimant’s employment. 8. An order of this Honourable court awarding general damages to Claimant as may be determined by this Honourable Court for claimant’s ill-health occasioned by the hazardous gas exposure in the defendant company’s work environment without protection. 9. An order awarding =N=800,000.00 (Eight Hundred Thousand) to Claimant as cost of this section. The Claimant filed along with his General Form of Complaint his statement of facts, list of witness, witness deposition, list and copies of documents to be relied on at trial. The processes filed by the Defendant in reaction included all requisite frontloaded documents. 2. Case of the Claimant The Claimant opened her case on 26/1/16 when she testified as CW1, adopted her witness statement on oath dated 22/12/14 as her evidence in chief and tendered 4 documents as exhibits. The documents were admitted in evidence and marked as Exh. C1-Exh. C4.Two additional documents were tendered through this witness while being cross examined. The documents were admitted and marked as Exh. C5 & Exh. C6. The case of the Claimant as revealed from her pleadings, in brief, is that she was validly employed by the Defendant vide employment letter and agreement and that she is still validly in the service of the Defendant up till date her employment not having been terminated and that she is still entitled to receive her salaries up till date and continuing until her employment is terminated. It is also case of the Claimant that her employment with the Defendant was based on the wage package of Two Million, One Hundred and Sixty Thousand Naira (=N=2,160,000.00) per annum or One Hundred and Eighty Thousand Naira (=N=180,000.00) per month as provided in the employment agreement and the addendum and that the Defendant had short paid her salaries to the tune of Four Million, Eight Hundred and Eighty Four Thousand, Seven Hundred and Eighty Five Naira Forty Kobo (=N=4, 884,785.40) and that the Defendant is liable to pay her all the short paid and outstanding salaries yet not paid till date until her employment is terminated as provided in the employment agreement. Under cross examination, Claimant testified that she holds an Ordinary National Diploma in Hotel and Catering Management; that at the time of her employment she was given a sign on form and Exhibit C4; that she is familiar with Exhibit C4; that Staff were required to clock in and clock out starting from 2011; that at the time she was appointed there was no clock in and clock out; that Exhibit C5 comprises a brief history of her working time from 2011; that she worked for more than 60 hours per week; that she did work as a Secretary and later converted to a Cook; that she was never invited for the calculation of her salaries; that she complained several times to her Head of department respecting the deduction of her salaries; that the Defendant had a Human resources Manager; that Defendant has Human Resources Manager; that she noticed reduction on her salary in 2009; that there was no HR then; that the Defendant started having HR in 2011; that the procedure was to report to HOD who would then forward same to HR; that aside the I.D she did not receive any other Card; that she has a Tax Card and that she once gave a medical certificate to the Defendant. In re-examination the witness stated that she was not the person who calculated the no. of hours stated on Exhibit C5. 3. Case of the Defendant The Defendant opened its defence on 6/2/17 when it called one Francisca Iruolagbe as its DW1. The witness adopted her witness statement on oath made on 5/5/16 as her evidence in chief and tendered 17 documents as exhibits. The documents were admitted in evidence and marked as Exh. D1-Exh. D17. On its part the Defendant company duly represented by Francisca Iruolagba as its Administrator denied not owing the Claimant either salaries or allowances; that the Claimant agreed to the deductions made from her salary; that it paid taxes to the Lagos State Government and that the suit of the Claimant is frivolous, vexatious and urged the court to dismiss the claims of the Claimant as complained in the Claimant’s statement of facts with substantial cost. Under cross examination, DW1 stated that she is the Company Secretary and Legal Adviser of Defendant presently; that she was employed 22/2/10; that the Defendant is dependable in honouring agreement it entered into; that the Claimant started work with Defendant based on the agreement and the addendum to it; that there was a written agreement between Claimant and Defendant for the reduction of his salary; that the said agreement could not be found due to change in Management but the statement and comment respecting the reduction is contained in the payroll for September 2009; that till this day the Claimant has always collected the reduced salary until when she filed this case; that the Claimant was paid =N=150,000 in 2008; that the agreement to reduce salary took effect from 15/9/09; that the =N=150,000 was due to prorating the salary vis a vis the reduction; that salaries are calculated based on assignments and deductions of taxes thereafter; that this is also stated in the agreement that salaries are based on assignment and attendance; that the Defendant pays tax to Lagos State Government for all its employees; that Defendant follows the PAYE in deducting taxes for employees calculated on granulated scale; that the Defendant stopped deductions for pension in March 2010; that the Claimant's appointment has not be terminated by Defendant; that the Claimant applied for 6 months medical leave and alter that Claimant wrote a petition to the Lagos State Government and that she is not in a position to answer whether or not the Defendant is ready to recall the Claimant. Under re-examination, the witness testified that the Director of the company is responsible for employment of staff and that only Directors can determine on whether or not to take back Defendant. 4. Submissions on Behalf of the Defendant The final written of the Defendant was dated and filed on 9/6/17. In it learned Counsel set down the following issues for determination - 1. Whether the Claimant is entitled to her claim. 2. Whether the Claimant has suffered any damage. On issue 1, learned Counsel submitted that it is on record that the Defendant never sacked or terminated the employment of the Claimant but that the Claimant on her volition decided not to work for the Defendant and absconded from work; that the Defendant cannot force the Claimant to work for it citing Kwara State Polytechnic, Ilorin v. Shittu (2013)17 WRN 78; that Exh. 4 contained the detail condition of employment of the Claimant; that the policy of the Defendant is that workers remuneration is calculated based on assignment carried out by the workers and the period of time and days during which the staff assigned is expected at work to render services and that the Claimant is not entitled to what she did not work for. Counsel added that from the evidence of DW1 the deduction made from the salary of the Claimant was for tax for which Tax card was issued to the Claimant; that the Claimant has always been paid =N=120,000.00 as salary monthly since September 2009 and never made any claim until 2014. Counsel prayed the Court to hold that the Claimant has not proved her entitlement to the reliefs sought. On issue 2, learned Counsel submitted that the Claimant has not suffered any damage to be entitled to her claim; that the Claimant has been engaged in other activities since she left the Defendant's employment and that the purpose of an award of damages is to compensate the plaintiff for damage, loss or injury suffered citing Anambra Envi. Sani v. Ekwenem (2009)45 WRN SC 1. Counsel added that from the evidence of DW1 it was clear that all gas cylinders are placed outside the kitchen and connected to the cooker from outside and that there cannot be any hazard of industrial gas used in the kitchen as claimed. Counsel urged the Court to so hold and dismiss the case of the Claimant in its entirety. 5. Submissions on Behalf of the Claimant In his final written address filed on 31/8/17, learned Counsel to the Claimant set down the following issues for determination - 1. Whether claimant was validly employed by the defendant and whether her employment has been terminated. 2. Whether there was an agreement by claimant for the reduction of her salaries from =N=180,000. 00 down to =N=120,000. 00 Per month. 3. Whether claimant is not entitled to her claims. On issue 1, learned Counsel submitted that the Claimant was duly employed by the Defendant via Exh. C1; that by Exh. C3 an addendum to the contract of employment respecting termination, either party may terminate the agreement by giving two weeks' notice to the other of intention to terminate the agreement. Learned Counsel further submitted that the Defendant is yet to terminate the agreement since it merely told the Claimant to go home and wait until she would be rescheduled for work and notified before she could return to work and the Claimant has since remained at home. Counsel referred to the evidence under cross examination of DW1 who admitted that Claimant's appointment has not been terminated and that it was for the Defendant to decide on when to recall her. Counsel urged the Court to resolve this issue in favor of the Claimant. On whether there was an agreement by Claimant for the reduction of her salaries from =N=180,000. 00 down to =N=120,000. 00 per month, learned Counsel submitted that such agreement could not be found anywhere; that since the employment agreement and the addendum to it were expresses in a form that is sufficiently certain for the Court to enforce any alteration to the agreement must also be in a form that is certain for the Court to able to enforce citing Adesye Olanlege v. Afro Continental (Nig.) Limited (1996)7 NWLR (Pt. 458) 29. Learned Counsel submitted that on the issue of salaries alone Claimant's short paid salaries of July 2009 to December 2013 comes to =N=3,948,302.42 and her full salaries for another 4 years from 2014 to 2017 when this case may end after Tax is =N=8,515,253.68 both totaling =N=12,464,056.34. Counsel prayed the Court to so hold. On issue 3, learned Counsel submitted that the Claimant has successfully established her legal right and proved her case against the Defendant; that where there is proven a legal right, there should be a remedy. Counsel thus prayed the Court to resolve this issue in favor of the Claimant and enter Judgment as per the reliefs sought. 6. Decision I have carefully read and understood all the processes filed by learned Counsel on either side. I heard the oral testimonies of the witnesses called at trial both in chief as well under cross examination. I painstakingly evaluated all the exhibits tendered and admitted in this case and also listened attentively to the oral submissions of learned Counsel for the parties. Having done all this, I set down a lone issue for determination as follows - Whether the Claimant has proved her case to be entitled to the reliefs sought or any relief at all. Our system of adjudication places the burden of proof on he who makes assertion. By proof the Claimant is expected to convince the Court by adducing cogent, credible and admissible evidence in support of each head of the reliefs sought. The evidence may be documentary or oral or even both. The only exception being where there is a clear and unambiguous admission of material facts in which case the imperative of proof is dispensed with. The major crux of the case of the Claimant is that as an employee of the Defendant the Defendant unilaterally reduced her salary by making some deductions from same. It is not in contest that the Claimant was an employee of the Defendant. Exh. C1 dated 30/6/09 confirms the fact of employment of the Claimant by the Defendant. Exh. C3 on the other hand is the Employment Agreement between the parties. In that exhibit, the remuneration of the Claimant was stated to be =N=2,160,000.00 per annum. There being no controversies respecting these facts, I declare that the Claimant was validly employed by the Defendant vide an employment agreement and an offer letter dated 30/6/09 and that the Claimant was validly placed on total emolument of =N=2,160,000 (Two Million, One Hundred and Sixty Thousand Naira) per annum, or =N=180,000 (One Hundred and Eighty Thousand Naira) per month. I further find and hold that the Claimant is entitled to continue to receive her full salaries and entitlements as an employed staff of the Defendant while in the employment of the Defendant. The fourth relief sought is for a declaration that the Defendant was wrong in making short payment of Claimant’s monthly salaries contrary to the agreement contained in the employment agreement given to claimant by the Defendant company. The Defendant did not deny the fact that it reduced the salary of the Claimant or that it short paid the Claimant her salary. The defence put forward as contained in paragraphs 13, 14 & 16 of its lone witness statement on oath is that sometimes in September 2009 the Claimant agreed with the Defendant to a reduction in her salary from =N=180,000.00 per month to =N=120,000.00 per month because at that period rather than lay off staff the Defendant decided to restructure based on business outlook for the future; that the reduction was reflected in the payroll sheet for the month of September, 2009; that since then the Claimant has been receiving her salary based on this amount and never complained about the deductions either in writing or orally. It is imperative here to note that there is no denial on the part of the Defendant the fact that the Claimant was in its employment; there was no denying the fact the month salary of the Claimant was =N=180,000.00 and there is also no denying the fact that the Defendant reduced the salary of the Claimant from =N=180,000.00 to =N=120,000.00. In her evidence in chief, the DW1 had stated that '' ... sometime in September, 2009, the Claimant agreed with the Defendant to a reduction in her salary ...''. In support of its position, the Defendant tendered 17 exhibits. None of the exhibits is evidence of any agreement between the Claimant and the Defendant on reduction of salary. The law is trite that the content of a document can only be varied or altered by another document. See Ijewere v. Eribo (2014) LPELR-23263(CA). It is not for a Court to make agreement for the parties. See Union Bank v. Innoson (Nig.) Limited (2017) LPELR (CA). Rather the duty of the Court is to give meaning to a validly made agreement between the parties. Adebusola Adedayo Omole v. Mainstreet Bank Microfinance Bank Limited Suit No: NICN/LA/341/2012, a Judgment of this Court delivered on 3/4/14 is on all fur in respect of reduction of salary. Some of my holdings in that case are relevant to the present case. In that case the Court had stated and I here restate that it is important for it to be said here and now that at the global level a unilateral reduction in the wages and salaries of workers is not acceptable. We must bear in mind that no nation can be an island to herself and any nation that seeks to do so will be doing so at its own peril. Thus, the need to ensure that the Nigerian labour jurisprudence is in tandem with what is obtainable at the international scene found reflection in the National Industrial Court Act, 2006. Thus the Act in section 7(6) provides as follows: 'The Court (that is National Industrial Court of Nigeria) shall, exercising its jurisdiction or any of the powers conferred upon it by this Act or any other law, have due regard to good or international best practice in labour or industrial relations and what amounts to good or international best practice in labour or industrial relations shall be a question of fact'. More importantly, by section 254C1(h) Constitution of the Federal Republic of Nigeria, 1999 (Third Alteration) Act 2010 the Court is endowed with power to have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters 'relating to or connected with or pertaining to the application or interpretation of international labour standards'. One method of gauging or determining international labour standards is an examination of Conventions of the International Labour Organisation. Indeed the International Labour Organisation has for a long time frown at any act of unilateral deduction of workers' wages. Thus, the Protection of Wages Convention, 1949 No. 95 specifically provides in Article 8 that - 'Deduction from wages shall be permitted only under conditions and to the extent prescribed by national laws or regulations or fixed by collective agreement or arbitration award. Workers shall be informed, in the manner deemed most appropriate by the competent authority, of the conditions under which and the extent to which such deductions may be made'. The above Article of the Protection of Wages Convention, 1949 (No. 95) has since been incorporated into domestic legislation. In this wise, Section 5(1), Labour Act Cap. L1, Laws of the Federation of Nigeria, 2004 unequivocally provides that: 'Except where it is expressly permitted by this Act or any other law, no employer shall make any deduction or make any agreement or contract with a worker for any deduction from the wages to be paid by the employer to the worker, or to any payment to the employer by the worker, for or in respect of any fines: Provided that, with the prior consent in writing of an authorised labour officer, a reasonable deduction may be made in respect of injury or loss caused to the employer by the willful misconduct or neglect of the worker' The word used by both the Labour Act and the Protection of Wages Convention (No. 95) is 'Deduction' and not 'Reduction'. However, The New International WEDSTER'S COMPREHENSIVE DICTIONARY of the English Language, Deluxe Encyclopedic Edition, 2000 Edition page 334, defined the word 'Deduct' as 'To subtract', 'take away' while the word 'deduction' was explained as 'subtraction'. The Oxford Advanced Learner's Dictionary International Student's Edition on the other hand defined the word 'Deduct' on page 381 to mean 'to take away money, etc from a total amount'. The same Dictionary explained the word 'Deduction' to mean 'the process of taking an amount of, especially money away from a total'. Within the context of the ILO Convention No. 95 and the necessary intendment of the Legislature in enacting the Labour Act in general and the provisions of section 5(1) thereof, it is doubtful if it can be reasonably contended that the word 'Deduction' used therein convey a meaning different from the word 'Reduce'. Part of the testimonies of the sole witness of the Defendant in chief is that the reduction in the Claimant's salary was reflected in the payroll sheet for the month of September, 2009; that since then the Claimant has been receiving her salary and never complained either in writing or orally and that the Claimant admitted to agreement to reduce her salary. I must note that I find no evidence of any agreement by the Claimant to the reduction of her salary. Secondly, I find it difficult to comprehend the point being stressed respecting the Claimant not complaining about the reduction of her salary. In any event, I have the testimony of the Claimant in chief to the effect that she complained many times and pleaded with the Defendant to pay the balances due to her and the Defendant only kept on making fraudulent deductions from her salary and emolument without explaining reasons for so doing. It is difficult to see the logic in that argument bearing in mind the centrality of wages to the life of a worker both for his sustenance and the sustenance of his family - nuclear and extended. In this country today with dwindling economy and high rate of unemployment, some employers have more or less turned to a thin god with workers left with leave it or take it situation. The effect of such is that workers end up being at the mercy of their employers. It is equally pertinent to point out that the ILO has an Expert Group Committee made up of internationally renowned experts on labour from among the member countries who analyse the annual reports of members and pursuant to surveys and other reports, make further recommendations on the proper implementation of the specific Conventions. Indeed, in the General Survey of the Committee of Experts, the need to provide special protection for workers' claim was a very widely accepted principle at the international level, taking into account the central importance of wages for the maintenance of the workers, see ILO: Minimum Wages, General Survey of the Committee of Experts on the Application of Conventions and Recommendations, Report lll(4B), International Labour Conference, 79th session, Geneva, 1992. See also Kenyan Industrial Court, Case No. 79/2002 of 6th December 2004, Use of International Law by Domestic and International Courts, Compendium of Court Decisions, International Training Centre, International Labour Organisation, 2013 at page 167. I grant this head of relief and declare that the Defendant was wrong in making short payment of Claimant’s monthly salaries contrary to the agreement contained in the employment agreement given to Claimant by the Defendant. The Claimant sought an order of this honourable Court compelling the Defendant to pay Claimant all her outstanding short paid and unpaid salaries from July 2009 till date. In paragraph 13 of her evidence in chief, DW1 testified that sometime in September 2009 the Defendant reduced the salary of the Claimant from =N=180,000.00 to =N=120,000.00. This is an admission for which proof is dispensed with. See Section 131(1) & (2), Evidence Act, 2011. That meant a short fall of =N=60,000.00 per month from September 2009. I have in evidence the fact that the Claimant applied for leave of absence without pay from the Defendant to enable her take care of her health. See Exh. D14 dated 21/2/14 to commence from March 2014. The Defendant is here ordered to pay to the Claimant the shortfall of =N=60,000.00 monthly deducted from her salary from September 2009 to February 2014 in the total sum of =N=3,180,000.00. The Claimant also sought an order of this Honourable Court compelling the Defendant to immediately pay to Claimant all her outstanding unpaid salaries as well as those short paid from July 2009 till the commencement of this action amounting to the sum of =N=4,884,785.40 (Four Million, Eight Hundred and Eighty Four Thousand, Seven Hundred and Eighty Five Naira, Forty Kobo). This Court has found and held that the Claimant was entitled to a refund of =N=60,000.00 monthly deducted from the salary of the Claimant from September 2009 to February 2014. The Court has also ordered the Defendant to make payment to the Claimant as appropriate. The claim for unpaid salary as sought by the Claimant is not supported by the available evidence. I perused the 24 paragraphs statement on oath of the Claimant which was adopted as evidence in chief. I find no single averment respecting the months for which salary was not paid by the Defendant to the Claimant. There is no iota of averment in the pleadings in support of this claim. That being the case, the claim for payment of unpaid salary is refused and dismissed for lack of proof. The Claimant sought an order of this Honourable Court compelling the Defendant company to recall Claimant to work and to continue paying the salaries of the Claimant until the final determination of this suit and the valid termination of the Claimant’s employment. The Claimant has been out of work with the Defendant as far back as 2014. The Defendant did not deny the fact that it had not recall the Claimant to resume work. The excuse of the Defendant for so doing was however contained in paragraph 20 of witness deposition of DW1 that - '' ... in view of the pending proceedings at the mediation centre, which was instituted by the Claimant, the Defendant was cautious by not pre-scheduling the Claimant for work''. What the Defendant has done in the circumstances of this case amounts to constructive termination of the employment of the Claimant. There is indeed no evidence before me to attest to the fact that the Defendant attended the mediation session to which it was invited by The Citizens' Mediation Centre. The law is trite that the Court has no power to foist on an unwilling employer a willing employee. For, to do so amounts to restricting the power and right of an employer to dispense with the services of an unwanted employee. No doubt the fact that employment relationship is a voluntary one with either party having the freedom of entry and of exit. I refuse this head of claim there being no sufficient evidence in support of same. The Claimant also sought an order of this Court awarding general damages to Claimant as may be determined by this Honourable Court for claimant’s ill-health occasioned by the hazardous gas exposure in the defendant company’s work environment without protection. In proof of this head of relief, the Claimant tendered Exh. C6. That was a medical certificate issued by Centre Medical De I'Entente dated 4/1/14. It was the position of the Claimant that her '' ... ill-health occasioned by the hazardous gas exposure in the defendant company’s work environment without protection''. However, the content of the medical certificate was to the effect that the Claimant had some form of malaria which affected her liver. The medical certificate made no allusion or reference to the Claimant being exposed to any hazardous gas as alleged by the Claimant. I find no nexus between the health challenges of the Claimant and the alleged exposure to gas while in the employment of the Defendant. There is thus no basis to grant this relief. I refuse and dismiss same accordingly for lack of proof by cogent, credible and admissible evidence. Finally, for the avoidance of doubt and for all the reasons as stated in this Judgment, the case of the Claimant succeeds in part as follows - 1. I declare that the Claimant was validly employed by the Defendant vide an employment agreement and an offer letter dated 30/6/09. 2. I declare that the Claimant was validly placed on total emolument of =N=2,160,000 (Two Million, One Hundred and Sixty Thousand Naira) per annum, or =N=180,000 (One Hundred and Eighty Thousand Naira) per month. 3. I find and hold that the Claimant is entitled to continue to receive her full salaries and entitlements as an employed staff of the Defendant while in the employment of the Defendant. 4. I declare that the Defendant was wrong in making short payment of Claimant’s monthly salaries contrary to the agreement contained in the employment agreement given to Claimant by the Defendant. 5. The Defendant is here ordered to pay to the Claimant the shortfall of =N=60,000.00 monthly deducted from her salary from September 2009 to February 2014 in the total sum of =N=3,180,000.00. This sum is to be paid with 15% interest per annum from February, 2014 till final liquidation. 6. The Defendant is ordered to pay to the Claimant the sum of =N=100,000.00 as cost of this action. All the terms of this Judgment shall be complied with within 30 days from today. Judgment is entered accordingly. ____________________ Hon. Justice J. D. Peters Presiding Judge