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NATIONAL UNION OF FOOD, BEVERAGE AND TOBACCO EMPLOYEES AND COCOA INDUSTRIES LTD., IKEJA (NATIONAL INDUSTRIAL COURT) HON. JUSTICE B.A. ADEJUMO PRESIDENT PROF. B.B. KANYIP MEMBER MR. M.A.B. ATILOLA MEMBER SUIT NO: NIC/1/2001 DATE OF JUDGMENT JULY 2, 2004 INDUSTRIAL RELATIONS Industrial relations - Uncivilized industrial relation practice - Concept of -Whether known to Nigerian Labour Law. LABOUR LAW Employer - Responsibility to wade into dispute amongst workers of which is inimical to its operations. LABOUR LAW Industrial relations - Uncivilized industrial relations practice - Concept of - Whether known to Nigerian Labour Law. LABOURLAW Reinstatement - Attitude of court thereto - Instances when court will order. LABOUR LAW Reinstatement - Worker disengaged for trade union activities - Reinstatement of under section 42, Trade Disputes Act - Conditions precedent to invocation of. LABOUR LAW Reinstatement - Worker disengaged for trade union activities - Reinstatement of under section 9 (6) (b) (ii), Labour Act - Pre-conditions for application of. LABOUR LAW Termination of employment - Right of to terminate employment by giving requisite notice or payment in lieu of notice - Section 11, Labour Act. LABOUR LAW. Trade dispute - Wrongful termination handled by a union on behalf of its members – Whether constitutes a trade dispute. LABOUR LAW Trade dispute - Trade Disputes Act - Section 9(6) (b) (ii) thereof - Priority of over section 11, Labour Act. LABOUR LAW Trade union - Trade unionism or industrial relations - Practitioners of - Need to use polite and civilized language. TRADE DISPUTE Termination of employment – Wrongful termination handled by a union on behalf of its members - Whether constitutes a trade dispute. TRADE DISPUTE Trade Disputes Act - Section 9(6) (b) (ii) thereof- Priority of over section 11, Labour Act. TRADE UNION LAW Trade unionism or industrial relations - Practitioners of - Need to use polite and civilized language. ISSUES 1. Whether the termination of the employment of Messrs Ojo and Shittu was wrong for which the National Industrial Court should then order reinstatement instead of directing payment of terminal benefits. 2. Whether the actions of the Respondent can be said to amount to “uncivilized industrial relations practice”. FACTS Messrs E. Ojo and R. Shittu were employees of the Respondent Company. As employees of the company, they were also members/officers of the branch of the Appellant union in the Respondent Company. Subsequently, however, they ceased to be officers of the branch union when branch elections were held and new officers were elected to run the affairs of the branch union. Internal problems arose within the branch union, which was reported to the state secretariat of the Appellant union. The same problem was reported to the Respondent Company by the existing branch union officials, as attempts by Messrs Ojo and Shittu to destabilize the company and its operations by causing disaffection within the work force of the company. As a result, the company set up a committee to look into the matter. The result was that both Messrs Ojo and Shittu were found to be causing the said disaffection. Their appointments were subsequently terminated without a reason given for it. They refused to collect their terminal benefits, but they rather reported the matter to their union, the Appellant. Attempts by the Appellant and the Labour Ministry to settle the dispute failed. The Appellant then declared a trade dispute and the matter was referred to the Industrial Arbitration Panel. The IAP heard the matter and made its award whereby it refused to reinstate the two staff, and also did not find the Respondent liable for uncivilized industrial relations practice. The Appellant union was dissatisfied with the award and appealed to the National Industrial Court. HELD (Dismissing the appeal): 1. On whether case of wrongful termination handled by a union on behalf of its members constitutes a trade dispute - A case of wrongful termination handled by a union on behalf of its members who are aggrieved falls within the definition of a trade dispute under section 47 of the Trade Disputes Act, Cap.432, Laws of the Federation of Nigeria, 1990. Consequently, the National Industrial Court has jurisdiction to hear such matter. 2. On when courts can order reinstatement of worker - Although the National Industrial Court cannot force a willing employee on an unwilling employer by making order of reinstatement, but not in all cases. As a matter of principle, two instances exist where courts generally order reinstatement. The first instance is where the employment is statutory and the statutory process for disengagement was not followed. Here, reinstatement has always been ordered by the courts. The second is where a worker was disengaged for embarking on trade union activities. This result is the product of section 42 of the Trade Disputes Act, and section 9 (6) (b) (ii) of the Labour Act. The National Industrial Court can, therefore, order reinstatement if, to its satisfaction, a worker was laid off due to trade union activities. 3. On Condition precedent to invocation section 42 of the Trade Disputes Act to reinstate worker disengaged for trade union activities Where there is no strike or lock-out, the provision of section 42 of the Trade Disputes Act cannot be invoked to reinstate a worker who was disengaged for embarking on trade union activities. 4. On Pre-conditions for application of section 9 (6) (b) (ii) of the Labour Act to reinstate a worker disengaged for trade union activities - For section 9(6) (b) (ii) of the Labour Act to be applicable to reinstate a worker who was disengaged for embarking on trade union activities, the trade union activities for which the worker was penalized must be one outside working hours, or, with the consent of the employer, within working hours. In the instant case, none of the above pre-conditions was shown by the Appellant to exist for the court to apply section 9(6) (b) (ii). 5. On Validity of termination of employment contract by notice or payment in lieu of notice - Section 11 of the Labour Act is elaborate in allowing for the termination of employment by either party to an employment contract either by giving the requisite notice or payment in lieu of notice. Although section 9 (6) (b) (ii) of the Labour Act ou1d override section 11 if a case is made out for it. 6. On Responsibility of employer to wade into dispute amongst its workers which is inimical to its operations - A responsible employer will not sit by and watch its workers disputing amongst themselves in a manner inimical to the operations of the employer. Thus, a disagreement within a union that seeks to paralyze company work should not simply be treated as a union matter, for which the employer should sit by and wait for the union to take all its time before wading into the problem. 7. On whether the concept of “uncivilized industrial relations “practice is known to Nigeria Labour Law - Uncivilized industrial relations practice is a concept unknown to the labour laws of Nigeria. The fact that the management of a company is being uncivilized, or unethical, or highhanded cannot be the subject of a court action or litigation. 8. On Need for polite and civilized language in trade unionism or industrial relations- Trade unionism or industrial relations is not a license to act or write in impolite and uncivilized language.