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IN THE NATIONAL INDUSTRIAL COURT HOLDEN AT LAGOS BEFORE THEIR LORDSHIPS Hon. Justice B. A. Adejumo - President Bon. Justice B. B. Kanyip - Judge Hon. Justice M.A. B. Atilola - Judge DATE: SEPTEMBER 18, 2007 SUIT NO. NIC/9/2004 BETWEEN Petroleum and Natural Gas Senior Staff Association of Nigeria ……. Appellant AND Schlumberger Anadrill Nigeria Limited ……………………………Respondent REPRESENTATION E.E. Inyang, for the appellant. U.H. Azikwe and with him are U. Opiegbe, F.E. Onyia and Miss Adeola Ibironke, 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 5th October, 2004 with Ref. No. H.E/856/CON.I/25 and a referral instrument simply dated August, 2004. By this letter and referral instrument, this court is asked - To inquire into the trade dispute existing between Schlumberger Anadrill Nigeria Limited and Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASSAN) over the following points: (a) Transfer of five members of staff from Schlumberger Anadrill (SANL) to Schlurnberger Nigeria Limited (SNL); (b) Redundancy decision affecting one Miss Uche Anyanwu; and (c) Proposed termination of Emeka Chiekezie. The matter had earlier been entertained by the Industrial Arbitration Panel (IAP), which award was objected to by the appellant - hence the present referral of the matter to this court. The appellant's objection to the IAP award is essentially on the ground that the IAP made its award on the basis of an erroneous view of the terms of the Collective Agreement existing between the parties and an imperfect appreciation of the facts in dispute. Both parties joined issues by exchanging their respective memoranda (both the appellant and the respondent also filed an addendum to their respective memorandum) with accompanying exhibits; and by agreement, filed written addresses (the appellant additionally filed an addendum to its written address), which they all adopted. The court then adjourned the matter for judgment. While the judgment of the court was still pending, the firm of Bamidele Aturu & Co. was briefed to take over the case from E. E. lnyang, the counsel who had all along prosecuted the appeal. The firm of Bamidele Aturu & Co. then filed a motion on notice dated 6th July, 2007 praying this court for an order postponing the delivery of judgment to enable them study the case to see if there are additional arguments they can put forward, Mr. E. E. Inyang having taken up employment with the respondent company. By an oral application on September 11, 2007, the firm of Bamidele Aturu & Co. formally withdrew the said motion of 6th July, 2007 contending that having gone through the processes and arguments canvassed by Mr. lnyang, they have no reason to doubt their cogency. The respondent did not object to the oral application of withdrawal of the motion of 6th July, 2007. In consequence, the court granted the application withdrawing the said motion of 6th July, 2007, thus paving the way for the matter to proceed to judgment... The appellant's case is predicated on two grounds of objection to the IAP award. These are – 1. That the members of the IAP erred in their interpretation of the terms of the Collective Agreement between the parties when it found that the phrase ' ... provided both parties agree' contained in clause V(D) of the agreement referred to the respondent and its employees involved and not the respondent and the appellant. That the error by the IAP resulted from the failure of the members of the IAP to take due notice that the said clause was contained in the Collective Agreement between the appellant and the respondent, instead of their finding that the clause was contained in the staff manual issued by the respondent to its employees. 2. That the IAP misdirected itself on the facts when it found that the dispute between the parties on the issue of transfer of staff who are members of the appellant related to the power of the respondent to transfer its staff. Given the relationship of these two issues, the appellant argued them together. To the appellant, it never at any time disputed the power of the respondent to transfer its employees within its organization. All that it insisted on was that the terms of the collective agreement be complied with in effecting the transfer in as much as such transfer impacts on the rights of staff concerned especially as regards the staff's income. That the actions of the respondent in attempting to effect the transfer without due regard to the terms of the collective agreement are designed to undermine the position of the umbrella union responsible for protecting the interests of employees of the respondent who are members of the appellant and in the process break the ranks of the union. Clause V(D) of the collective agreement provides that- When employees are transferred from one Company to another within the Schlumberger Group, they are placed on suspended employment with the Company from which they are transferred from the date on which they start working for the Company to which they are transferred without any prejudice to his/her salary and benefit levels, provided both parties agree. That in effecting the transfer, what the respondent has attempted to do is to transfer the said employees at a reduced salary, erroneously believing that the phrase, 'provided both parties agree' as used in clause V(D) refers to the respondent and the concerned staff and not the respondent and the appellant who are the parties to the collective agreement sought to be interpreted and applied to the matter at hand. That, given the doctrine of privity of contract, the phrase in question cannot envisage an agreement between the respondent and the staff to be transferred. On the issue of redundancy, the appellant contended that for some strange reasons, the respondent is equating refusal to accept transfer by staff with redundancy. And that unfortunately, the IAP accepted the submissions of the respondent on this issue without carefully looking at the relevant terms of the collective agreement on the matter of redundancy as regulated by clause XVI. That at best a refusal by the appellant to accept a transfer of her members in the circumstances of this matter cannot be regarded as a matter of redundancy but an issue to be discussed to ascertain the reasons that necessitated the refusal and not redundancy as portrayed by the IAP in its award. That redundancy arises from a downturn in the affairs of the respondent and not a failure to accept a transfer. In any event, that what was in contention was not the transfer per se but a reduction in the salary of the staff concerned. The appellant then went on to submit that in not following the provisions of clause XVI, and in disregarding the directive of the Ministry of Petroleum Resources vide letter Ref. No. Pl:5061/B/v.2/181 of 6th February, 1997, which is to the effect that the respondent cannot release any Nigerian from its employment without the approval of the Department of Petroleum Resources (DPR), due process was not followed in the redundancy and so should be set aside by the court. Having addressed the general issue of redundancy, the appellant went on to address the more specific issue of Miss Uche Anyanwu who was one of the seven employees offered transfer to SNL from the respondent. She was declared redundant because the appellant did not accept the transfer. To the appellant, the IAP did not make any findings on the matter of Miss Anyanwu, yet it went on to make an award thereon, which is to the effect that she had accepted to be made redundant prior to the date of the award. That Miss Anyanwu had not accepted to be made redundant at the time the award was made; instead she was browbeaten to accept severance benefits after the award was made, referring the court to Exhibit E attached to the respondent's memorandum. The appellant then submitted that the IAP had no grounds for making the award on this issue and so this court should set the award aside. Regarding the issue of the termination of Mr. Emeka Chiekezie, the appellant contended that the IAP erred in relying on the report of the investigative panel set up by the respondent to look into the case of fraud which allegedly led to the loss of 29 million Naira, given that this panel did not observe the principle of fair hearing in conducting its investigation. To the appellant, the panel did not request or take inputs from Mr. Chiekezie before arriving at its conclusions, which condemned Mr. Chiekezie. That the only report that the IAP ought to have relied on is that of the disciplinary committee, which report heard all sides and arrived at the right conclusions. That the IAP did not even consider the response of Mr. Chiekezie to the query issued to him before arriving at the conclusion it did, which fact can be said to have occasioned a miscarriage of justice. The appellant continued in argument that the disciplinary committee in its report did not indict Mr. Chiekezie either of involvement in the fraud or gross negligence as found by the IAP; and so it was wrong for his employment to be terminated. In any event, that the sum of 29 million Naira said to be lost had actually been recovered by the respondent. The appellant then urged the court to set aside the IAP award on this head. The appellant further submitted that throughout at the hearing of the matter at the IAP, there were only two arbitrators; yet the final award was signed by three arbitrators. For this reason, the appellant urged that the IAP award should be voided on the ground of irregularity. Furthermore, that the respondent acted on an unconfirmed IAP award (the appellant having validly entered its objection against the award) when it impressed on the concerned employees to sign and collect their benefits. This meant that the respondent took steps prejudicial to the outcome of this appeal; and so the IAP award should be set aside. The respondent divided its response into two Parts. Part A dealt with its response on the entire case, while Part B dealt with its response to the issues raised by the appellant. The respondent commenced its arguments by giving the background facts that led to the dispute at hand. For Part A of its arguments, the respondent raised two issues for the determination of this court, namely- 1. Whether this appeal is not rendered academic given that the employment of the affected employees on whose behalf this appeal has been purportedly brought has been lawfully determined by the respondent and the affected employees. 2. Whether in the entire circumstances of this case the award of the IAP was not correct. On the first issue, the respondent submitted that the locus of the appellant to espouse any matters affecting the interests including the conditions of service of its members subsists only to the extent that such persons are still employed by the respondent. That where the contract of any employee who is a member of the appellant has been determined, the appellant lacks the locus standi to challenge such termination or to continue to purport to act in the interest of such persons; moreso where such determination has been accepted by the affected workers. That it is not in doubt that as soon as the IAP delivered its award, three of the appellant's members (Miss Uche Anyanwu, Mrs.Grace Iroh and Mr. Odinakachukwu Ogaluzor) accepted the redundancy decision made by the respondent consequent upon which the respondent paid them their respective severance entitlements in full. The respondent continued that in obedience to the IAP award, it terminated the employment of Mr. Emeka Chiekezie and paid him his entitlements also. That having received their respective severance benefits and having released the respondent from all liabilities, these said employees have ceased to be in the employment of the respondent and so have ceased to be members of the appellant for which the appellant has no locus to prosecute this appeal. That this appeal is, therefore, merely academic. That the practical effect of the reliefs sought by the appellant is that the appellant is asking this court to treat the employment of the said former employees as subsisting when in fact and in law the said employment has been effectively determined. To the respondent, no court of law will grant specific performance of personal contracts, referring the court to Imoloame v. WAEC [1992J N WLR CPt. 265) 303 at 318E and Olaniyan v. University of Lagos [1985] NWLR (Pt. 9) 599 at 612C. According to the respondent, these authorities show that even if the termination was wrongful, all that the employee is entitled to is damages. The respondent then urged the court to dismiss the appeal as being a mere academic exercise, vexatious and an abuse of process. On the second issue, the respondent contended that the IAP was right in the award it granted. On the issue of transfer of staff, the respondent contended that the IAP based its decision on clause 30 of the collective agreement which provides that- The Association agrees that the Company reserves the right of managing the Company, its operation and the authority to execute the responsibilities and functions thereof, including the engagement, discipline, termination, dismissal, promotion and transfer of its employees, the determination of the times, methods and manner of working and these in accordance with the relevant sections of this agreement. That clause V(D) of the collective agreement collapses in the face of the provisions of clause 30; and so the decision of the IAP is correct. The respondent then went on to assert that each of the affiliate companies in the Schlumberger group enters into a collective agreement with its own PENGASSAN branch. That the transfer of staff between the affiliate companies are allowed under the collective agreement as an option to contend with redundancies arising from down-turn in the business of an affiliate company, which actually occurred in the business of the appellant in 2002 and the employees, listed in para. 8(a) of Exhibit C annexed to the respondent's memorandum, were duly notified. That the agreement between the parties referred to in clause V(D) of the collective agreement is an agreement between the respondent and the respective employees, and not any agreement between the appellant and the respondent. That in all transfers, the respondent is not required to seek and obtain the consent of the appellant before the transfers are effected. Neither is the respondent obliged, as a precondition, to give redundancy notification to the appellant before carrying out redundancy exercise. The respondent then urged the court to uphold the award of the IAP on this point. On the issue of redundancy, the respondent contended that at p. 6 of the IAP award, the IAP properly made a finding before accepting the acceptance of Miss Anyanwu of her redundancy terms. In support of its contention, the respondent quoted the relevant part' of the IAP award at p. 6 of the award as follows – It was argued at the hearing that had Miss Anyanwu accepted the transfer to SNL she would still have continued to be in employment but that she was attracted by the handsome severance benefit to decline the transfer and hence preferred the redundancy terms and left on her own. There is no point belabouring this issue. If this is what the respondent calls a finding, then we do not know what an argument or a submission is. The above quotation is not a finding. It cannot be a finding. It is a restatement of an argument or a submission. The respondent cannot say that it is a finding by the IAP. What the IAP did was merely to paraphrase a submission that was made in that regard. Without more, the IAP fell short of a finding. The respondent continued in its submissions by asserting that four elements can be deduced from the provisions on redundancy policy in the redundancy clause of the collective agreement, which are- (i) Where there is recession, there must be reduction in personnel in the relevant positions/jobs affected. (ii) Effort should be made to transfer the staff occupying redundant positions. (iii) Where transfer is not possible or refused, the staff will be made redundant. (iv) Meeting between the management of the respondent and the appellant before redundancy is effected. That the respondent applied all of these elements in the present dispute. That the argument of the appellant on the issue of redundancy is not only an afterthought but misconceived. That the issue raised by the appellant on the purported non-compliance with the directive No. PI :5061/B/v.2/181 of the Minister of Petroleum Resources is also an afterthought designed to confuse and did not form part of the appellant's case at the IAP or in the memorandum filed by the parties, which goes to no issue and is not supported by any evidence. The respondent's argument regarding the directive of the Minister of Petroleum Resources must, outright, be dismissed. In the first place, this court has held in several decisions that it is both a trial and an appellate court; and hence new issues/facts can be canvassed in matter before it even if those matters are matters of appeal from the decision of the IAP. See Corporate Affairs Commission v. AUPCTRE [20041 I NLLR (PT. I) 1 at 21 and Mix & Bake v. NUFBTE [2004] I NLLR (Pt.2) 247 at 279. There is, therefore, nothing wrong in the appellant raising this issue at this stage of the trial. Secondly, the appellant attached a copy of the directive as part or the processes in this matter. So, the respondent cannot claim that the issue raised by the appellant is not supported by evidence. On the termination of the employment of Mr. Chiekezie, the respondent contended that the law today is that a master has the power to terminate the employment of his servant for good or bad or even for no reasons at all. Indeed, that the respondent need not adduce any reasons for not terminating its relationship with Mr. Chiekezie. That, collective agreements are generally perceived as gentlemen's contract resting solely on good faith of industrial contractors or parties thereto. That at common at common law a collective agreement is not regarded as contractually binding. Once again we are constrained to point out here that the respondent appears to be oblivious of the law that regulates this court. This court is a court of justice where collective agreements are held to be of binding effect to the parties that sign them. It is for this reason that this court has over time been statutorily granted the jurisdiction to interpret collective agreements, among other documents. See sections 15 of the TDA and 7 of the National Industrial Court (NIC) Act No. 1 of 2006. Section 20 of the TDA was also an applicable provision (indeed it, was an applicable provision when the present cause of action arose) but has now been repealed by the NIC Act, 2006. This court cannot be given the statutory power to interpret collective agreements if the intention was that they were not binding on the parties. For the respondent to, therefore, contend that a collective agreement is a gentleman's agreement binding in honour only is most unfortunate and betrays a poor appreciation of the law applicable to and binding in this court. This common law rule as to the non-binding nature of collective agreements cannot override the clear statutory provisions of the TDA and the NIC Act which empower this court to interpret and enforce collective agreements. Collective agreements are, therefore, not only binding on the parties that sign them, but are enforceable as such in this court. In continuing its arguments, the respondent contended that Mr. Chiekezie was queried for gross negligence in his department in handling tax matters 'where a whooping sum of over [29 million Naira] was lost to withholding tax fraud perpetrated by his subordinate in the department'. That the gross negligence exhibited by Mr. Chiekezie in the tax department falls within the purview of clause XVlll(F) of the collective agreement as a serious misconduct which fact was established in the report of the Disciplinary Committee in the following words – However this irregularity could have been avoided if the [procedure] in the Tax Department was such as to result in a feedback from the bank receiving the cheques. The respondent then submitted that its management was convinced from the report and recommendation of the Disciplinary Committee that Mr. Chiekezie did not exhibit the skills, as a professional, which he claimed to possess as he did not introduce or suggest the introduction of processes and secured procedures that could have prevented the loss of 29 million Naira. That the final report of the Disciplinary Committee may have exonerated Mr. Chiekezie on the issue of fraud but not on the issue of gross negligence and absence of established or standard procedure and processes in the tax department. That the respondent simply exercised its right to terminate the employment of Mr. Chiekezie, having lost confidence and trust in him. In any event, that a court will not impose an employee on an unwilling employer, referring the court to Chukwumah v. Shell Petroleum [1993] 4 NWLR (Pt. 289) 512 at 560E - G and Araromi Rubber Estates Ltd v. Orogun [1999] 1 NWL.R (Pt. 586) 302 Ratio I. In Part B of the respondent's submissions, what the respondent did was to address sundry matters that the appellant had raised in its submissions. The first of such issues relates to the 'appellant's contention that the IAP erred when it held that the contentious clause V(D) was not contained in the collective agreement but in the staff manual issued by the respondent to its employees. Here, the respondent reiterated that the IAP was correct in its holding and urged the court not to disturb the IAP award in that regard. The contention of the respondent is hinged on clause 1(2) at p. 9 of Annexure PAD I which provides that 'this manual is a summary of the Personnel Policies and Conditions of Service and is applicable to personnel locally employed by ANADRILL (NIGERIA) LIMITED, (hereinafter 'called Anadrill)'. This document is among other documents that collectively form Appendix I attached to the appellant's memorandum. The pertinent issue is whether the document is actually a manual as clause 1(2) seems to suggest or it is part of the collective agreement binding on the parties. The answer to this can only be arrived at if all the documents in issue are considered as a whole and not in isolation. The appellant had rightly prefaced its memorandum and submissions with the explanation that the collective agreement between the parties had first been entered into in 1996 with amendments subsequently carried out by the parties. A look at all the documents which collectively form Appendix I attached to the appellant's memorandum will reveal that the document containing clause 1(2), which the respondent and the IAP referred to as a manual, is the same document containing clauses V(D), XVI and XVlIl(F) variously referred to in the submissions of both parties. Incidentally, other than at this stage, the respondent had referred to these clauses as clauses in the collective agreement. Was the IAP right in holding that clause V(D) is contained in a manual and not a collective agreement? We do not think so. Clause 1(2) may have referred to the document as a manual but its contents do not suggest it to be so. In the first place, section 47(1) of the TDA is categorical on the definition of a collective agreement as any agreement for the settlement of disputes and relating to terms of employment and physical conditions of work concluded between an employer and a workers' organization. The contents of this 'manual' fit this definition. Secondly, Clause 4 of the 1996 Article of Agreement (also part of Appendix I attached to the appellant's memorandum), dealing with grievance procedure, provides that – Subject to the legal rights of both parties hereof, the following procedures shall be adopted in the settlement of grievances, that is to say: A) i. An aggrieved employee shall first follow procedures as outlined under Section XVIJ of this agreement "Grievance Procedure" ( our emphasis) ii. In the event the aggrieved employee being unsatisfied with the decision of management he may refer the matter to PENGASSAN. B) i. Where breaches of Company discipline, misconduct or poor performance are involved, procedures outlined under Section XVIIl "Disciplinary Procedures" shall apply. ii. In the event the aggrieved employee being unsatisfied with the decision of management he may refer the matter to PENGASSAN. The question is, when Clause 4(A)(i) talks of 'section XVll of this agreement', which agreement is talked of if not the collective agreement signed by the parties? What clause 4 refers to as Sections XVll and XVlIl are actually the same with clauses XVII and XVlll variously referred to by the parties in this matter. For the IAP to, therefore refer to clause V(D) as being in a manual and not the collective agreement is not correct. The argument of the respondent in this respect, therefore, lacks merit. The second sundry issue raised by the respondent relates to the appellant's quarrel with the IAP for relying on the report of the Disciplinary Committee in determining the arbitration. In this regard, the respondent contended that the IAP has the right to rely on any of the facts and documents placed before it. We agree with the respondent that the IAP is entitled to consider all facts placed before it before arriving at any conclusion reached. The caveat here is that any conclusion so reached must be from the facts and supported as such. The last sundry issue raised by the respondent deals with the contention of the appellant that only two arbitrators heard the matter but three signed the award. To the respondent, this assertion is not supported by the records on the dispute and that there is no evidence of the facts alleged. We agree with the 'respondent that this is an unsubstantiated allegation by the appellant. This court was not even told by the appellant which two of the three arbitrators actually sat and heard the matter. So, we cannot rely on an unsubstantiated assertion as the appellant wants us to do in the present case. In conclusion, the respondent urged this court to dismiss the appellant's submissions as unsupportable and hold that this appeal is academic, incompetent and lacking in merit. Furthermore, that this court should then dismiss this appeal with substantial costs. The appellant responded to the submissions of the respondent by filing an addendum to the earlier address the appellant filed. In this response, the appellant detailed the sequence of events from the award of the IAP to the paying off of the affected staff by the respondent in order to show that the respondent was preemptive in its actions in laying off staff. The appellant then elaborated the argument it put forward earlier that once a valid objection to the IAP award, the IAP award is no longer binding and so cannot be applied by any of the parties, referring the court to sections 12(1), (2), (3) and (4),13(1) and (2) and l 7 (I), (2) and (3) or the TDA. That the combined effect of these sections particularly 12(4) is that confirmation of the award of the IAP by the Minister of Labour is a condition precedent for the award to be binding on the parties from the date of the award; and that by section 17 of the TDA, both parties must maintain the status quo until this court has made its award. To the appellant then, by its actions, the respondent deliberately presented this court with a fait accompli - hence the argument that this appeal is merely academic. In any event, that two staff Mr. Chiekezie and Mr. Nduka Uzoma did not collect any entitlement; and so the respondent cannot argue that this appeal is academic. The appellant then submitted that once a valid objection to an IAP award is filed, every subsequent action of the respondent is void for which this court should set aside. The appellant then went on to reiterate the arguments it earlier put forward regarding the issues of transfer, redundancy and termination of the employment of Mr. Chiekezie and then urged the court to grant its prayers. In carefully considering the processes and submissions of the parties in this matter, we have indicated our views on some of the issues raised by the parties in earlier parts of this judgment. In continuing our assessment of the submissions of the parties, we wish to state first that contrary to the submission of the respondent, this appeal is not academic. It is the respondent who acted in a predetermined manner geared towards making the appeal academic. So, the respondent cannot plead that as a defence at this point. We agree with the appellant that the respondent presented this court with e fait accompli. Sections 12(4) and 13(1) and (2) of the TDA are very clear as to when an IAP award can become binding. It is binding if any of these two conditions exist. The first is when there is no objection to the award; in which event, the Minister of Labour can then confirm the award. The second condition is when there is an objection to the award for which the Minister of Labour is mandated to then refer the matter to this court. If this happens, this court may, after hearing the parties on the matter and in its judgment, confirm the IAP award; in which event, the IAP award becomes binding as may be affirmed by the court- even here, and technically, it is the judgment of this court that actually binds the parties. So, when the appellant objected to the IAP award, there was no confirmation on the part - of the Minister of Labour to make it binding. At that stage, there was no IAP award for the respondent to obey and enforce as the respondent claimed in its submissions. Every action of the respondent predicated on this unconfirmed award of the IAP is, therefore, not only null and void but also questions the power and integrity of this court. Not only was the respondent preemptive in its actions, but it conducted itself as if it was a lord unto itself. The respondent may have rights in its relationship with members of the appellant. But when those rights are in issue before a law court, the respondent is expected to respect the court and await its decision. It cannot act as if it owns the adjudicative processes and so can act irrespective of the outcome of an adjudicative process, for this is what the respondent's actions in this matter depict. By a letter dated 17th August, 2004 with Ref. No. HE/856/CON.l/17 (attached as Appendix 14 to the appellant's memorandum), the Minister of Labour notified both parties of the IAP award. Of note is para. 3 of the letter, which states- I am to request the Association or its representative to lodge direct with the Honourable Minister of Labour and Productivity in writing within seven days from the date of this notice any objection, which it may have to the award. In the event of his not receiving any objection from the Association within the time and in the matter specified, the Honourable Minister of Labour and Productivity shall proceed to confirm the award, which shall be binding on the Association. The Minister simply acted as demanded by section 12 of the TDA. In like manner, the appellant by a letter dated August 24, 2004 (attached as Appendix 15 to the appellant's memorandum) i.e. within the seven day period allowed by the TDA, sent in its objection to the Minister of Labour, for which the Minister then referred the matter to this court (see Appendix 16 attached to the memorandum of the appellant). And what did the respondent do? To take just an example of the case of Miss Uche Anyanwu (the cases of Odinakachukwu Ogaluzor and Grace Iroh are the same), by a letter dated 20 August 2004 and titled redundancy (see Exhibit EI - E3 attached to the respondent's memorandum), the respondent wrote to her in the following, among other, words – We refer to our letter of December 2002 ... on the above subject copied to you. We regret to inform you that you shall be made redundant from 24th August 2004. Effective from this date, you will cease to be an employee of Schlumberger Anadrill Nigeria Limited. The letter then went on to detail how she has already been paid one month's salary in lieu of notice, how her other entitlements would be paid and how she is expected to sign the release certificate. The point is that within the allowable period of seven days to object to the IAP award, the respondent had made up its mind to enforce the IAP award whether or not it was confirmed. It was categorical in telling the affected staff that they will be redundant on 24th August 2004 even though that day falls within the seven day period allowed by section 12 of the TDA for tendering objections to IAP awards. Yet in its submissions at p. 4 of its written address, the respondent made it look as if the affected staff willingly accepted redundancy. Hear the respondent- It is not in doubt that as soon as the IAP delivered its award dated 17th August 2004 three (3) of the appellant's members namely, Mrs. Uche Anyanwu, Mrs. Grace Iroh and Mr. Odinakachukwu Ogaluzor accepted the redundancy decision made by the Respondent consequent upon which the Respondent paid them their respective severance entitlements in full…. All of this go to show that not only was the respondent preemptive, but it merely presented this court with a fait accompli. No court of law should permit this. It is the further argument of the respondent that this appeal is academic because the affected employees being no longer employees of the respondent, the appellant has no locus to argue this appeal on their behalf. Once again, the respondent has exhibited a poor appreciation of the law as applicable to industrial relations in this court. A dispute between an employer and workers connected with the employment and non-employment of any person is a dispute properly before this court and for which the appellant can prosecute on behalf of its members. There is this fallacy which has been variously argued before this court that once an employee's employment comes to an end especially when it is terminated by the employer, this court can no longer entertain any issue as to that employee's employment because there in no employee to activate the jurisdiction of this court. This fallacy has been peddled in a manner that seems to justify terminating the employment of workers so as to generate the fact of non-employment as a defence. Nothing can be further from the truth. Disputes relating to non-employment of a person are disputes properly within the jurisdiction of this court. The argument of the respondent in this regard is, therefore, not tenable. The respondent also argued that it has the right to terminate the employment of any of its employee for reason or for no reason at all. While we do not have any problem with this at all, the point must be made that globally it is no longer fashionable in industrial relations law and practice to terminate an employment relationship without adducing any valid reason for such a termination. The problem we, however, have here is when a reason is given for the termination whether the affected staff cannot contest the reason. It is our opinion that when an employer terminates an employment and gives a reason for such termination the employee has the right to contest the reason. The respondent contended that Mr. Chiekezie's employment was not terminated as a result of fraud but due to gross negligence in allowing a subordinate to defraud the company and by not designing procedures and processes that will prevent such fraud in the future. All of these are contestable issues, which the appellant denied on behalf of Mr. Chiekezie. In fact, the respondent had queried Mr. Chiekezie vide a letter dated August 9, 2002 (attached as Appendix 2 to the appellant's memorandum). The said letter reads as follows- The Schlumberger internal investigation report... indicates that the Tax Department was grossly negligent in handling withholding tax matters (due to the absence of adequate training and established processes & procedures) leading to the loss of Naira 29,357,824 property of Schlumberger. As you are aware, it is part of your responsibility as Tax Supervisor to propose/put in place standard processes and procedures (including discussions of such with your Manager) which ought to form part of the training of staff under your supervision. The investigation report exposed the absence of this. Being the person that was given the responsibility to train and supervise the employee most directly involved in this case, your action amounts to gross negligence, which violates your contract of employment with Schlumberger. The statement in your 2001 appraisal that "Uche can now handle WHT" is clear proof of your responsibility in this matter. The letter then went on to give three days within which Mr. Chiekezie is to state why disciplinary action should not be taken against him. Of course, the appellant immediately stepped into the matter challenging the respondent on the issue (see Appendix 3 attached to the appellant's memorandum). A number of conclusions can be drawn by just reading the 'query' given to Mr. Chiekezie. For one, by the letter, the respondent had already come to the conclusion as to the guilt of Mr. Chiekezie. What it presented to Mr. Chiekezie was a fait accompli with due process sacrificed - a case of giving a dog a bad name to hang it. Secondly, it is from the 'query' that we were able to be told the job profile of Mr. Chiekezie. No other evidence of this was led. The appellant consequently harped in its submissions that Mr. Chiekezie's portfolio was not 'Tax Supervisor', neither was it his duty to design standard processes and procedures for his department of which he was not even the head. Thirdly, by this 'query' Mr. Chiekezie is expected to guarantee the worth and productivity of a fellow worker that he may not have had a hand in employing. To allow this is to be manifestly unjust towards Mr. Chiekezie. Aside from this, as argued by the appellant, we did not discern that Mr. Chiekezie was accorded the due process that the grievance procedures of the collective agreement enjoins. We are, therefore, in agreement with the submissions of the appellant (see particularly the protest letter of the appellant to the respondent when Mr. Chiekezie was queried, attached as Appendix 3 to the appellant's memorandum) that Mr. Chiekezie was unfairly treated by the respondent in not following due process as enjoined by the collective agreement. Did the respondent follow due process in declaring redundancy and transferring members of the appellant association? The appellant conceded to the respondent the right to transfer staff but that this must not be to the detriment of the staff concerned except if prior to such transfers the matter is discussed and agreed upon by the appellant and the respondent. In like manner, the appellant contended that redundancy, to be valid, requires the respondent to first consult with the appellant. We are in agreement with the appellant on this score. It was the respondent itself that made the point that each of the affiliate companies in the Schlumberger Group enters into separate collective agreements with each branch of PENGASSAN. If this is the case, it only follows that when a transfer of staff is to be made from one affiliate to another, the appellant be consulted in order to safeguard the interests of members of the appellant. What the respondent, however, did was to carry on as if the appellant did not matter. The respondent's argument that it needed only to consult with the staff in issue, which argument was accepted by the IAP, is incorrect. As we pointed out much earlier, the contentious clause V(D) is a clause in the collective agreement and not a manual. The collective agreement is an agreement entered into between the appellant and the respondent although for the benefit of the respondent and the members of the appellant association. This being the case, consultations as to transfers ought to have been with the appellant. It is of added value if both the appellant and the affected employees were consulted at one and the same time. In any event, we agree with the appellant's submission that the directive of the Minister of Petroleum Resources that employees are not to be laid off without the consent of the Minister of Petroleum is valid and subsisting. The action of the respondent in terminating the employment of staff without recourse to the Minister of Petroleum means that due process was not followed. We cannot permit this subversion of the rule of law. For all the reasons adduced above we hereby hold and order as follows- 1. Mr. Emeka Chiekezie's employment was wrongly terminated as due process was not followed. He was wrongly punished for the wrongs of a fellow staff. The termination of his employment is, therefore, null and void. It is hereby ordered that he be immediately reinstated in his employment with no loss of salary and benefits, including, arrears. 2. Mrs. Uche Anyanwu, Mrs. Grace Iroh and Mr. Odinakachukwu Ogaluzor were cajoled by the respondent to accept redundancy under the pretext that the IAP award was being given effect to. Since there was no confirmed IAP award at the time the respondent got these employees to accept redundancy payments, the act of the respondent in that regard is also null and void. It is also hereby ordered that these staff be immediately reinstated. This reinstatement is to be treated as re- employment under clause V(F) of the collective agreement which provides that- Employees made redundant as a result of periodic downturns in the Company business activity, shall be re-employed if their initial position becomes available and/or be given the opportunity to apply for any other vacant position within the Company. If re-employed, the employee will have his previous seniority recognized for future disengagement only. In other words, all entitlements for future disengagement of such an employee shall be calculated with the old seniority date less actual amount paid out as entitlement, at the time of first disengagement (our emphasis). For the avoidance of doubt, the reinstatement ordered in this para. 2 should be in accordance with the emphasized (i.e. italicized) portion of clause V(F). These three employees may, however, and in writing (the choice being absolutely theirs), opt not to be re-employed by the respondent subject to the approval of the Minister of Petroleum Resources in accordance with Directive PI:5061/B/v.21l81 of 6th February 1997, which provides in para. (i) that 'all companies operating in the petroleum industry should apply for official approval of the Honourable Minister before releasing any Nigerian staff from their employment'. Where this happens, their terminal benefits are to be. re-calculated up to the date of the approval of the Minister of Petroleum Resources and paid to them less whatever sums they had earlier received. For the other employees who did not collect redundancy benefits, it is hereby ordered that they be reinstated immediately with no loss of salary and benefits including arrears. Judgment is entered accordingly. ………………………… Hon. Justice B.A. Adejumo President …………………………. …………………………… Hon Justice B.B. Kanyip Hon. Justice M.A.B Atilola Judge Judge