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IN THE NATIONAL INDUSTRIAL COURT HOLDEN AT LAGOS BEFORE THEIR LORDSHIPS Hon. Justice B. A. Adejumo President Hon. Justice B. B. Kanyip Judge Hon. Justice M. A. B. Atilola Judge DATE: MAY 3, 2007 SUIT NO. NIC/17/2000 BETWEEN Trans International Bank Plc - Appellant AND National Union of Banks, Insurance and Financial Institutions Employees (NUBIFIE) - Respondent REPRESENTATION Prof. G. A. Olawoyin, and with him are Mr. 1. O. Omisade, Mrs. O. O. Oguntoyinbo, Mr. Eloka Agajelu, Mrs. M. M. Atoki, Mrs. Adeola Edward-Ajayi, Miss Yemisi Aina, Niyi Olayode ancl Miss Salome, for the appellant Akinwumi Akindele, and with him is Mrs. Y. O. Akindele, for the respondent JUDGMENT This matter was referred to this court pursuant to section 13(1) of the Trade Disputes Act (TDA) Cap. 432 LFN 1990 by the Honourable Minister of Labour and Productivity vide a letter dated October 30, 2000 with Ref. No. ML.HE/793/CON/I/52 and a referral instrument simply elated October, 2000. By this letter and referral instrument, this court is asked to adjudicate on the following issues between the parties - i) Non-recognition of union ii) Obstruction of members' right and freedom to belong and participate in union activities. iii) Victimization of union officials by terminating their employment. The dispute in this matter centres on the complaint of the respondent that various attempts at having a branch union of the respondent's union in the appellant's company were rebuffed by the appellant. In fact that, eligible members of the respondent union in the fore front of forming the branch union within the structure of the appellant company had their services terminated by the appellant on the basis of the said union activities. The Industrial Arbitration Panel (IAP) heard the matter and made an award in terms that favour the respondent. The appellant objected to the award - hence the referral of the matter to this court. The hearing of this matter in this court was first presided over by the late Hon. Justice M. A. Borisade; and parties joined issues through the exchange of memoranda and accompanying exhibits. The matter then proceeded to trial where oral evidence was taken. Upon the demise of Hon. Justice Borisade, hearing of the matter proceeded de novo with the parties agreeing to argue the case on record only by filing written briefs and discountenancing oral evidence. In this regard, both parties filed written briefs of arguments. The appellant formulated three issues for the determination of this court. They are: a) Whether from the memorandum and evidence before the IAP, the respondent proved the establishment and or existence of NUBIFIE TIB branch at the appellant bank which the appellant could accord recognition. b) Whether it is the duty and responsibility of the appellant to establish and or recognise the branch of NUBIFIE in the appellant bank. c) Whether the court can grant an order of specific performance in a contract of personal service. On the first issue, the appellant argued that its employees had dissociated themselves from being members of the respondent union as can be seen from Annexure 1 to its memorandum. Citing section 40 of the 1999 Constitution, section 24(1) of the Trade Unions Act (TUA) Cap. 437 LFN 1990 and R. v. National Arbitration Tribunal [1943] 2 All ER 633, the appellant contended that while it is a constitutional right of an individual to belong to an association of his/her choice, it is not within the contemplation of the Constitution that people should be forced into being members of an association or a union. That going by section 24(1) of the TUA, the respondent has not established membership of the employees of the appellant of the respondent union. That the TIB branch of the union is yet to be established although the appellant keeps encouraging its establishment at the branch given the letters it wrote to the respondent that operations of the union will be accepted as soon as the TIB branch of the union is formed. The appellant further contended that recognition can only be based on evidence. That the non- existence of the union is underscored by the contents of Annexure 1 and 8 where several of the workers dissociated themselves from the union. On the second issue, the appellant contended that it is not its duty as an employer to organize the branch of NUBIFIE in its bank. That its role is simply to be notified of the existence of the union and the union will automatically be recognised where the appellant is satisfied that the union exists given that the appellant would thereafter be saddled with the duty of deducting check-off dues from the employees on behalf of the union. In consequence, that the allegation of victimization and obstruction of members from participating in union activities cannot be sustained when the union is yet to be established. The appellant then cited Article 2(a) and (c) of NUBIFIE's Procedural and Main Collective agreement where employees are subordinated to their work in priority to union activities, and can only embark on union activities upon prior permission of the appropriate authority. That Annexure 3 written by the respondent is a challenge to the appellant - hence the queries that were issued to the staff involved. On the third issue, the appellant argued that the IAP award, whereby some named members of staff whose services were terminated were directed to be reinstated amounted to ordering specific performance of contract of service. Relying on Olaniyan v. University of Lagos [1985] 2 NWLR (Pt. 9) 599 and Shitta Bey v. Federal Public service Commission [1981] 1 SC 40, the appellant contended that it is only in cases where the terms of employment are regulated by the provisions of statutes and such provisions were not complied with can reinstatement of an employee be ordered. That in sensitive cases, the Supreme Court had declined to order reinstatement, citing Glatt/bosun v. NISER Council [1988] 3 NWLR (Pt. 80) 25. That the appellant stayed within the terms of the contract of employment when it terminated the services of the affected employees, citing in the process a retinue of cases in support of its contention. The appellant then concluded by urging the court to set aside the award of the IAP and hold in its favour on all the grounds of this referral, In reaction, the respondent rejected all but the first of the issues formulated by the appellant for the determination of this court, arguing that the second issue is ill-conceived as it was not the contention of the parties that the appellant has a duty to establish or organize the branch of NUBIFIE in the appellant's bank or in any other place. The respondent then went on to formulate what it considers to be the real issues for the determination of this court, which are – i) Whether from the memorandum and evidence before the IAP, the respondent has proved the establishment and or existence of NUBIFIE TIB branch at the appellant bank which the appellant could accord recognition. ii) Whether from the attitude and disposition of the appellant as shown in the correspondence between the parties, the appellant is not obstructing the right and freedom of their workers (respondent's members) from belonging to the union and participating in union activities. iii) Whether the termination of the union officials (after their identification upon request of the appellant) is not victimization iv) Whether this court, being an Industrial Court, has the power to order reinstatement or make other consequential orders or remedies, if a party before it is adjudged to have breached the law or to be at fault Regarding the first issue, the respondent contended that from the preponderance of the evidence it placed before the court, there is no difficulty in holding that the respondent is already in existence in the appellant bank. To the respondent, the following facts support its claim- a) Between 1993 and 1996, the appellant was not forthcoming in allowing its workers to unionise. b) Exhibit A, a bundle of documents consisting of the record of the workers' resolutions and signatures, show that the appellant's workers massively joined the respondent union c) The Managing Director of the appellant via a letter (Exhibit J8A 02 tendered by the respondent) notified the respondent of the management's approval of union activities in its work place. d) The IAP particularly at p. 19 of its award found that the appellant insisted that the next step was for the domestic unit to formally introduce its existence to be accompanied by the representative of NUBIFIE, but thereafter developed cold feet by refusing to meet them. That this is tantamount to undue interference in the internal procedure and affairs of the union, which is contrary to good industrial relation practices as entrenched in the Tracie Unions (Amendment) Decree No.1 of 1999. The respondent then urged that all of these facts coupled with the accompanying memorandum and exhibits attached and submitted to the IAP point to the existence of NUBIFIE TIB Branch. That there was no compulsion whatsoever to have the workers join the respondent union given the contents of Exhibit A. That an appellate court will not interfere with the finding of facts by a lower court where such findings are justified by the evidence considered and accepted, citing John Andy Sons & Co. Ltd v. NRC [1997] 3 NWLR (Pt. 491) 1 at ] IE-F; Adebayo v. Brown [1990] 3 NWLR (Pt. 141) 661; 'and Durogo v. State [1992] 7 NWLR (Pt. 255) 525 at 535E-G. On the second issue as formulated by the respondent, the respondent contended that its members voluntarily applied to join the union, which the respondent accepted, and in accordance with the relevant procedure in the collective agreement informed the management of the appellant. That if this court finds that the union had been established at the appellant bank, then the allegation of victimization and obstruction is sustained. That the combined effect of Exhibit Al and all the management's letters postponing and requesting for meetings with the union, point to the firm existence of the union in the appellant bank. That the members of the union who were queried by the appellant for absenting from work had the requisite permission of their respective heads to be away from work. That on May 16, 1996, the appellant turned down the invitation to attend the inauguration ceremony of the union only for it to summarily terminate the services of the inaugurated pioneering officers on May 17, 1996. On the third issue framed by the respondent, the respondent contended that the termination of the appointments of the union officials is an act' of victimization, which is against the spirit of the International Labour Organisation (ILO) Convention 98. That the purpose of the appellant requesting for the names and identification of the union leaders at the domestic level was to have them sacked since their only offence was that they attended the inauguration ceremony of the domestic committee. That all the cases cited by the appellant at pp. 4 - 5 of its written brief are irrelevant as the contention of the respondent is not that the appellant cannot exercise its right of termination, but that this cannot be done for union activities. That even in the exercise of its right of termination, the provisions of the collective agreement, which clearly state that termination can only be effected if within a period of 12 months an employee is guilty on three occasions of committing any offence for which a warning letter has been issued, were not met. In any event, that termination may only be effected on the third occasion provided warnings in writing have been given to the employee in respect of two previous offences within the preceding 12 months. The respondent then referred the court to Article 4(ii) of the collective agreement. On the fourth issue as framed by the respondent, the respondent contended that this court can order reinstatement where it deems it fit. That the law is that where there are conditions of service, the employer is obligated to follow and adhere to same; otherwise an act outside the conditions of service would be illegal, unlawful and therefore void, citing Alhaji Baba v. Aviation Training Centre [1986] 5 NWLR (Pt. 42) 514 (where reinstatement was ordered); Oyedele v. LUTH [1990] 6 NWLR (Pt. 155) 196; and Essien v. University of Calabar [1990] 3 NWLR (Pt. 140) 609. The appellant then urged the court to order reinstatement of the affected staff. In the alternative and considering the time factor, which may make reinstatement unrealistic, the appellant prayed for 'damages to the tune of [2 million Naira] to be paid to each of the affected [staff] in addition to the payment of their salaries till the date of judgment from the date of the illegal termination'. Thereafter, the respondent urged the court to affirm the decision of the IAP and give judgment in its favour. The appellant reacted in writing to the written brief of arguments of the respondent on three issues. On the issue whether the appellant obstructed the workers from joining the respondent union, the appellant reiterated that there is nothing to show that permission was given to those who attended the union meeting during working hours nor does the collective agreement support the assertion that employees can absent themselves from their various duties without permission from their employer. On whether the termination of the union officials is victimization, the appellant answered that motive for termination is not relevant in law, citing Geidan v. NEPA (2001) 2 NWLR (Pt. 696) 45 at 55F-G. That the ILO Convention cited by the respondent is irrelevant to the issue at hand. On whether reinstatement can be ordered by this court, the appellant contended that all the cases cited by the respondent are irrelevant. That reinstatement is not desirable in a sensitive industry such as the appellant. That the available remedy is damages, which has duly been paid by the appellant as shown in Annexure 5. The appellant then urged the court to set aside the award of the IAP and enter judgment in its favour. We have carefully considered the memoranda, exhibits and written submissions of both parties. The issues framed by the respondent, more than those framed by the appellant, approximate with the issues referred to this court by the Hon. Minister of Labour. Cumulatively, they boil down to two key issues: that of non-recognition of the union (including the subtle discouragement of the union to effectively take-off) by the appellant, and the appellant's termination of the services of some members of staff who are officials of the respondent branch union within the set up of the appellant bank. Taking the issue of non-recognition, the appellant argued that it is not in law expected to set up the branch union itself. We agree with the respondent that no one asked the appellant to itself set up the branch union. All that it was asked is to recognise the setting up of the union, support its establishment and not do anything to discourage its effective take-off. The law regarding recognition of trade unions in Nigeria is pretty straightforward. Recognition is compulsory under sections 5(7) and 24 of the TUA 1990, as amended. In Corporate Affairs Commission (CAC) v. Amalgamated Union of Public Corporations, Civil Service Technical and Recreational Services Employees (A UPCTRE) [2004] 1 NLLR (Pt. 1) 1 at 29 - 32, we had the opportunity to espouse on the ambit of the recognition principle as it applies under Nigeria law and its relationship with the obligation of the employer to deduct check-off dues and pay over same to the appropriate union. It is unfortunate that none of the parties deemed it fit to refer to this case and the principles enunciated therein. Given the specialised nature of this court, we have always advised on the necessity of first consulting decisions of this court in order to determine applicable principles in matters coming before this court instead of the more usual practice of reliance on case law emanating from the regular courts that often have no bearing to the issues at hand, which was essentially the case in this matter. In CAC v. A UPCTRE at p. 29, after laying down the historical antecedents of section 24 of the TUA, we laid down the essential recognition principles in the following words - ... by section 5(7) of the TUA, notwithstanding anything contained in the TUA, all unions specified in the Third Schedule to the TUA, including the respondent union, have automatic registration with full powers and duties of trade unions accorded to them. This means that registration and recognition of these unions are automatic with the incidents of trade unions. We then proceeded to hold that recognition is meaningless unless related to or tied to the deduction of check-off dues. And in all of this, we then laid down what the obligation of the employer is, which is that the employer is obliged to accord recognition to the union the names of, for instance, all junior staff within its employment who are deemed to be members of the union. Additionally, the employer is obliged to deduct check-off dues in respect of the eligible staff and pay same to the registered office of the union in question. We elaborated these principles further in Mix and Bake Flour Mill Industries Ltd v. National Union of Food, Beverage and Tobacco Employees (NUFBTE) [2004] INLLR (Pt. 2) 247 at pp. 275 - 277 in the following words- By section 5(7) of the TUA, notwithstanding anything contained in the TUA (and this includes section 24(1) ... ), all unions specified in the Third Schedule to the TUA have automatic registration with full powers and duties, of trade unions accorded to them ... Since section 5(7) of the TUA overrides section 24(1) in relation to the unions listed in the Third Schedule, it means that the respondent union has automatic registration and recognition under the TUA with all the incidents of a trade union accorded it. ... Upon the registration and recognition of any of the trade unions specified in Part A of the Third Schedule to the TUA, section 5(3) of the Labour Act enjoins an employer to deduct check-off dues from the wages of all workers eligible to be members of the union and pay same to the union so recognised. The provision is reinforced by section 16A of the TUA as inserted by Decree 4 of 1996 and amended by Decrees 26 of 1996 and 1 of 1999. An these provisions were carefully considered by this court in the [CAC] case ... In that case, we made it clear that compulsory recognition and automatic deduction of check-off dues are norms in the current labour law regime in the country .... Given that registration is deemed, recognition automatic and deduction of check-off clues compulsory, being based on mere eligibility to be a member of the union in question, the only relevant question is whether the respondent union exhibited enough intention to be so recognised by the appellant company. From the documents available to us as exhibits, the respondent union has been able to show sufficient desire to have a branch union in the appellant company. Several letters to this effect were written to the company by both the respondent union and the Federal Ministry of Labour. Unfortunately, all were rebuffed by the appellant as no reply was given to any of them. All of this is true in the instant case before this court. An employer is, therefore, not expected to throw spanners in the works when a branch union is to be established. The employer is expected to avail the workers the opportunity and all the assistance there is for the smooth take-off of the branch union. All of this was lacking on the part of the appellant in this matter. We are in total agreement with the evidence presented by the respondent and the findings of the IAP in that regard showing that the appellant was not only evasive in recognizing the branch union but did everything possible to make sure that unionism was discouraged within its bank. The appellant sought to eat its cake and have it. The appellant, in defence of its actions, gave the impression that its workers were averse to unionism. In this regard, vide Annexure 1 to its memorandum, the appellant exhibited only six letters from six workers (R. O. Kinyomi, S. B. Ojo, K. D. Akinwale, A. A. Alalada, Kayode Ojo and Akanbi Abdulhakeem) saying that they are not aware of the existence of any union within the bank and that if any existed, they are opting out. But this defence can only relate to the six staff in question. In CAC v. AUPCTRE at p. 30, we explained that the law regarding recognition and deduction of check-off dues permits junior workers to opt out of a union. But this must be individually and voluntarily done in writing. So the argument of the appellant here can only relate to the six workers who wrote to dissociate themselves from the respondent union, and not to other staff who did not so dissociate themselves. For this latter category of staff, they are deemed to be members of the respondent union until they opt out in accordance with the established principles. . On the issue of the termination of the services of some of the staff by the appellant, the appellant's case is that it is entitled to terminate a worker's appointment with or without a reason and such worker cannot be reinstated. In Mix & Bake v. NUFBTE, supra at pp. 281 - 282, we stated that reinstatement can be ordered in two instances: where the employment has statutory flavour and the processes enjoined by the statute before termination can be done are not followed, and where termination is as a result of union activities, which sections 9(6) of the Labour Act and 42(1) (b) of the TDA all frown at. We reiterated this stance in NUFBTE v. Cocoa Industries Ltd, Ikeja [2005] 3 NLLR (Pt. 8) 206 at 218 and stressed that this court can 'order reinstatement if, to its satisfaction, a worker was laid off due to trade union activities'. Of course, we recognised the fact that time factor may affect the decision to reinstate, but this was not as an absolute proposition. It is, therefore, wrong for the appellant to argue that this court cannot order the reinstatement of the workers it sacked, if this is found to have been wrong. In its defence, the appellant cited its conditions of service as granting it the power to terminate with or without reason, and absolutely for that matter. Unfortunately, even at this, the termination that the appellant effected did not even accord with its conditions of service. Article 2.4.6 of the conditions of service annexed as Annexure 7 and 9 to, the appellant's memorandum dealing with the issue of termination provides that – (i) An employee's service may be terminated if, within a period of twelve (12) months, he had been guilty on three occasions of committing any act of misconduct for which a warning letter has been issued on each occasion. (ii) Termination may only be effected on the third occasion provided warnings in writing have been given to the Employee in respect 'of two previous cases of misconduct within the preceding twelve (12) months. And by Article 2.4.4 dealing with warning before a written warning is issued, the employee shall first be given a written query and an opportunity of stating his case in writing'. The same article then goes on to stipulate the offences that may attract a written query. The second offence in the list of offences is absenting himself at any time from the place proper and appointed for the performance of his work without leave or other legitimate cause. As far as the record in this case is concerned, the queries issued to the terminated workers were first queries. Warnings were not issued as the conditions of service dictate. In short, the appellant did not observe the rules it itself laid down for the termination of the service of an employee in its employment. The evidence before this court shows that on 15th May, 1996, the day the domestic unit of the union was being inaugurated, queries were issued by the appellant to absenting staff that were at the inauguration ceremony to explain their absence from their duty posts. On 1st May, 1996, the very following day, letters of termination were issued to all those queried the previous day without any recourse whatsoever to the provisions of the conditions of service. And the appellant wants this court to believe that there is no co-relationship between the activity of the previous day and the sack of today. Even if there is no relationship, the fact is that what the terminated workers are accused of doing i.e. being absent from their duty post, does not have termination as the punishment. The punishment the workers deserve is a written warning, certainly not termination of their services. Section 9(7)(c) of the Labour Act provides that a contract of employment shall be terminated by the relevant notice or 'in any other way in which a contract is legally terminable or held to be terminated'. The appellant did not abide by the process in which termination may be effected as provided by its conditions of service. We are convinced that the appellant caused the termination of, and hence prejudiced, workers in its employment by reason of the workers' trade union membership and activities, thus bringing this matter squarely under the ambit of section 9(6)(b)(i) of the Labour Act. The termination is, therefore, wrong, unlawful and hence null and void. For all the reasons adduced above, this appeal must fail and we so hold. The award of the IAP is hereby affirmed in its entirety. In particular the six Executive Members of the Domestic Unit of NUBIFIE, as ordered by the IAP at p. 28 of its. award, should be reinstated without loss of benefits and salaries. The alternative prayer of the respondent for damages, that each of the terminated workers should be awarded Two Million Naira, cannot be entertained as no case was made for it beyond merely praying for it. Judgment is entered accordingly. ……………………………….. Hon. Justice B.B. Kanyip Presiding Judge ……………………………. ………………………………. Hon. Justice M.B. Dadda Hon. Justice M.A.B. Atilola Judge Judge