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BEFORE HIS LORDSHIP: HON. JUSTICE F. I. KOLA-OLALERE - PRESIDING JUDGE DATE: MAY 3RD 2011 SUIT NO: NIC/50/2008 BETWEEN: MR. THOMAS OBILOR - CLAIMANT AND BRISTOW HELICOPTERS (NIGERIA) LTD - DEFENDANT REPRESENTATION: Erasmus Chukwuemeka Nwata for the claimant Fela Somoye, Akinloye Ajayi, O. Oniminde (Miss) for the defendant. JUDGMENT The claimant, Mr Thomas Obilor commenced this action by filing a complaint dated and filed on the 21st August, 2008. Also filed together with the complaint are: his statement of facts, list of witnesses, list and copies of documents his intends to rely on. Claimant’s claim against the defendant is for: 1. The sum of three million, five hundred and nineteen thousand, five hundred and sixty nine naira, twenty two kobo (N3,519,569.22) being the short fall and outstanding balance due to the Claimant as redundancy benefit from the Defendant. 2. AND/OR IN THE ALTERNATIVE, the Claimant claims any short fall in the redundancy benefit paid to him by the Defendant as may be calculated and ordered by the Honourable Court. In opposition to the claimant’s claim, the defendant filed its statement of defence dated and filed on 18th November, 2008; denying the claimant’s claim in it entirely and praying the court to dismiss same with substantial costs. The two parties gave oral evidence by calling a witness each. The testimonies of these witnesses are essentially in line with the statement of facts and statement of defence of the two parties respectfully. On 17th January, 2011 the claimant, Thomas Obilor (CWI), gave and concluded his evidence relying on the following documents which he already frontloaded with his statement of facts: 1. Letter of Employment dated 30th March, 1987 2. Letter of Confirmation of Appointment dated 29th July, 1987 3a-c. Letters of Promotion dated 6/3/89, 13/8/96, 25/4/02 and 4/6/07. 4. Notice of Redundancy dated 4th April, 2008. 5. Redundancy Benefits Agreement dated 3rd April, 2008 6. Payment Advice. 7. Claimant’s Solicitors letter to the Defendant dated 9/6/08 8. Receipt issued by EMS upon delivery of letter to Defendant. The defendant’s witness was Mr. Adeyemi Adegbayibi. This witness is the Head of Industrial Relation and Performance Management in the defendant company and relied on the following documents already frontloaded with its statement of defence: 1. Claimant’s Pay Slip of March, 2008 2. Defendant’s Harmonized Junior Staff Salary and Allowances Scale. 3. Redundancy Benefits Agreement dated 3rd April, 2008 5. Skye Bank cheque dated 7th April, 2008 The claimant is a former employee of the defendant. He was employed as a Carpenter on 1st April, 1987 through a letter of appointment. After a probationary period of three months his employment was confirmed and he became a full member of staff of the defendant. The claimant worked with the defendant for a period of twenty one (21) years. As at 4th June, 2007, the Claimant was promoted from Junior Staff Salary Group – Grade 6 Step 12 to Grade 7 Step 1. The claimant’s employment was rendered redundant on 7th April, 2008 by a notice of redundancy dated 4th April, 2008. The claimant was at the material time a member of the National Union of Air Transport Employees (herein referred to as NUATE). Before defendant made that declaration, its management and NUATE entered into a written Redundancy Benefits Agreement (herein referred to as RBA) dated 3rd April, 2008. The claimant received redundancy payment of N2,673.425.28 from the defendant. Both parties frontloaded a copy each of the payment advice showing a breakdown of the claimant’s redundancy and his terminal benefits indicating total payment of N3,699,724.02. In its written address dated 25th of February, and filed on 28th of February 2011, the defendant raised the following issues to be determined by this court: I. Whether the monthly entitlement paid to the claimant as basic salary, housing allowance and transport allowance at the time he was declared redundant by the defendant was N111, 393, 37? 2. Whether clause 2(d) of the Redundancy Benefits Agreement (RBA) allows for payment of the Claimant’s redundancy benefits beyond ten (10) completed years of service; to a maximum limit of 24 Months’ basic salary +housing allowance + transport allowance? On claimant’s Monthly Basic Salary; the defendant argued that between 1st April, and November, 2007 the defendant approved a Harmonized Junior Staff Salary and Allowances Scale which is the 2nd document of the defendant. This document reflects the current salary package of the claimant’s annual basic salary effective from 29th November, 2007 as N514,973.00. Hence, claimant’s monthly basic salary from that date is N514,973.00 divided by 12 which gives us N42,914.43; the same with that given by the claimant. On claimant’s Monthly Housing allowance, defendant submitted that claimant failed woefully to provide any concrete evidence in support of the fact that his monthly allowance at the material time was N37,225.17. The defendant position is that at the time the claimant was declared redundant, his monthly housing allowance was N30,656.10. In the defendant’s 2nd document the claimant’s annual housing allowance is stated as N367,873.00. In effect, N367,873.00 divided by 12 will give us N30,656.10 per month. Defendant submitted that the claimant’s monthly transport allowance at the time he was declared redundant was N30,656.10. Defendant maintained that it is not disputing claimant’s Monthly Transport Allowance because his annual allowance on this was N453,866.00. In effect, N453,866.00 divided by 12 will be equal to N37,822.21 per month. Defendant submitted that these facts establish the genuineness of Defendant’s 2nd document and urged the court to so hold. Defendant submitted that the claimant is wrong by alleging that his monthly housing allowance at the time he was discharged was N37,225.17 and urged the court to hold that the defendant’s calculation of his monthly housing allowance of N30,656.10 is more accurate and correct. Defendant further urged the court to hold that the total sum of the claimant’s monthly basic salary, transport allowance and housing allowance (that is, monthly emolument) is N111,393.00 and that the correct breakdown is as follows: Basic Salary ---------- N42,914.43 Transport allowance ------- N37,822.21 Housing allowance ------- N30,656.10 Total ---------- -------- 111,393.00 Arguing its 2nd issue: Whether clause 2(d) of the Redundancy Benefits Agreement (RBA) allows for payment of the claimant’s redundancy benefits beyond ten completed years of service; to a maximum limit of 24 Months basic salary + housing allowance + transport allowance? Defendant maintained that it is noteworthy that both parties acknowledged and admitted that they are bound by the terms of the Redundancy Benefits Agreement (RBA). The major dispute between the parties is the correct redundancy benefits that the claimant is entitled to under the RBA. Therefore, defendant submitted that in the absence of fraud or mistake, the court does not write or rewrite agreements for parties but will allow them to bind themselves as they deem appropriate; referring to the Court of Appeal decision in ISIYAKU V. ZWINGINA [2003]6 NWLR (Pt. 817) 560 C.A at 575 and THE MV CAROLINE MAERSIL V. NOKOY INVESTMENT LTD. [2000]7 NWLR (Pt. 666) 587 at 605. Continuing, defendant argued that clause 2 of the RBA sets out redundancy payments to be made to every discharged employee of the defendant. That DWI testified that he was privy to all the negotiations between NUATE and the Defendant, leading to the drafting and execution of the RBA and that his signature is on the RBA. DWI testified also that the intention of parties to the RBA was to limit redundancy payments of the claimant to ten completed years of service; up to a maximum of 24 Months’ Basic Salary, Housing Allowance and Transport Allowance, irrespective of the number of years any of the discharged employees had put in the service of the defendant. Consequently, the claimant’s redundancy benefits was paid in accordance with clause 2 (d) (iii) of the RBA, which is clearly stated in the payment advice issued to the claimant by the defendant. Defendant submitted that it has paid the full redundancy benefits to the claimant as required by the RBA. Defendant also submitted that the claimant, having served for twenty-one years with the defendant, falls into the category of discharged employees who are entitled to redundancy payment under clause 2(d) (iii) of the RBA. The defendant’s position is that the RBA makes no provision for payment of redundancy benefits to the claimant for more than ten completed years of service and that is why there is a maximum ceiling of ten years as contained in clause 2(d)(iii). Continuing, defendant maintained that it is trite law that the expression or inclusion of one thing implies the exclusion of the other. This principle of law is expressed in the latin maxim “expressio unis est exlusio alterius”. Therefore, where a document enumerates the things upon which to operate, everything else not enumerated must necessarily and by implication be excluded from its operation and effect. This principle of law, has been applied by the Supreme Court in A.G. Bendel V. Aideyan [1989] 4 NWLR (Pt 188) 646 @ 672. The defendant maintained that the RBA does not contemplate the payment of redundancy benefits beyond 24 Months’ B.S. + H.A. The effect of this is that a redundant employee who had served for ten year would be restricted to the maximum of 24 months redundancy pay rather than 25 months calculated on the basis of 2 ½ Months’ B.S. +H.A. + T. A. payment per each completed year of the 10years. On the other hand, if the claimant were to be paid 2 ½ Months’ B.S. + H.A. + T.A for each completed of the twenty-one years, the total months payable to him would be fifty-two and a half (52 ½ ) Months’ B.S +H. A + T.A contrary to the terms of the RBA. Defendant submitted that the wordings and provisions of the RBA are clear, precise and unambiguous and that no more is necessary than to expound these words in their natural and ordinary sense; referring to ONA V. ATENDA [2000] 5 NWLR (Pt. 656) 244 @ 286, 287 and NIKA FISHING CO. LIMITED V. LAVINA CORPORATION [2008]16 NWLR (pt. 1114). Defendant went further to say that assuming (but not conceding) that the wordings and provisions of the RBA are unclear and ambiguous, it submitted that the Court will fall back on the intention behind the words citing in support ADETOUN OLADEJI NIGERIA LIMITED V. N.B. PLC [2007] 5 NWLR (Pt. 1027). Defendant submitted that it is not the function of a court of law to make agreements for parties or to change their agreement as made citing: AFRICA REINSURANCE CORPORATION V. FANTAYE [1986]1 NWLR (Pt. 14)133. In addition, defendant submitted that the RBA does not contemplate the payment of redundancy benefits calculated beyond this period, that is why there is maximum ceiling as contained in the provisio to clause 2(d)( iii) of the RBA. That is why the total sum of the claimant’s Monthly Basic Salary + Housing Allowance +Transport Allowance is N111,393.00. If this amount is multiplied by 24 Months, it will be equal to N2,673,425.28 and that this was the exact amount paid to the claimant as redundancy benefits as stated in the Payment Advice. The defendant submitted that the redundancy benefits accruable to a discharged employee in Nigeria are always subject to negotiation referring to Section 20 of the Labour Act Cap. L I LFN 2004. The defendant urged the court to hold that the RBA is the evidence of negotiation and agreement between the defendant and the union of which the claimant is a member. Claimant raised these issues in his written address for court’s determination inother to establish his case: 1. What is the meaning, essence or purport of a Redundancy/Redundancy benefit? 2. How is a Collective Agreement Interpreted? 3. What interpretation is to be given to Clause 2 of the Redundancy Benefits Agreement dated 3rd April, 2008? 4. Did the Defendant comply with the terms of the said Redundancy Benefits Agreement? Submitting on issue one, claimant cited P. A. N LTD. V. OJE [1997]11 NWLR (Pt. 530) 625 at P.627 for definition of Redundancy by the Court of Appeal. Learned counsel for the claimant submitted that it is a settled point that the purpose of a redundancy benefit is to assist the employee pending the time he secures an alternative job as held by the Court of Appeal in P. A. N. LTD. V. OJE (Supra). Answering issue two as raised by him, learned counsel referred to section 37 (1) of the Trade Disputes Act, 1976 to define collective agreement as an “agreement in writing relating to terms of employment and physical conditions of work concluded between an employer, a group of employers or one or more organizations representative of employers on the one hand, and one or more organizations representatives of workers or the lawful appointed representatives of any body of workers, on the other hand”. Counsel submitted that it is a matter of settled law that in interpreting a document or judgment, the document or judgment must be read as a whole and interpreted in that light with effort being made to achieve harmony among the parts; referring to AKAIGHE V. IDAMA [1964] ALL NLR (Reprint) 317 at 322 and MBANI V. BOSI & ORS [2006] 141 LRCN 2317 at 2333. Learned counsel to the claimant submitted that the wordings and provisions of the Redundancy Benefit Agreement dated 3rd April, 2008 are unclear and ambiguous, hence the need for the court to interpret same bearing in mind the purpose of same, since it was made to compensate an employee being rendered redundancy based on the employee’s year of service. Claimant reproduced clause 2 (a) to (d) of the RBA and submitted that whereas the agreement sought to make a fruitless effort at placing a ceiling or limitation on Clause 2(d) (iii), no such limitation was placed or sought to be placed on clause 2 (a). He also submitted that clause 2(d) (iii) merely sought to present guide or categorization as the basis of calculating the redundancy benefit payable to an employee. He urged the court to look deeply at the intention of the parties to the collective agreement as it was incessantly stated that redundancy benefit will be based on the number of years of service. Continuing, claimant maintained that there is no doubt that the purpose of the agreement is to compensate an employee based on his years of service with the defendant. Arguing that it is a settled law that in the interpretation of a statute, where its interpretation will result in defeating its object, the court would not lend its weight to such an interpretation referring to ANSALDO NIG. LTD. V. NATIONAL PROVIDENT FUND MANAGEMENT BOARD [1991] 2 NWLR (Pt. 74) 392 at 405. Counsel urged the court to follow the afore stated practice in interpreting the collective agreement as is the practice in the United States of America, where if in the interpretation of a collective agreement, doubt is raised as to its coverage, such doubt is resolved in favour of a wide coverage citing UNITED STEEL WORKERS OF AMERICA V. WARRIOR & GULF NAV. CO. 363 U.S 574. Arguing issues three and four together which are ‘What Interpretation is to be given to clause 2 of the Redundancy Benefits Agreement dated 3rd April, 2008 and did the defendant comply with the terms of the said Redundancy Benefits Agreement? Learned counsel submitted that in interpretation the provisions of the Redundancy Benefit Agreement, the court should give a liberal interpretation to same as the underlying intention of parties to the agreement is to compensate affected workers on the basis of the number of years of service put in by each affected employee. He further submitted that the defendant failed to comply with the said terms of the collective agreement as it did not calculate the claimant’s benefit on the basis of the twenty one years of service put in by him. That from his testimony, his monthly take home was one hundred and seventeen thousand, nine hundred and sixty one naira, eighty one kobo only (N117,961.81k), made up of the sum of N42,914.43 as basic salary, N37,822.21 as transport allowance and N37,255.17 as housing allowance. Therefore defendant should have multiplied N294,904.50 by 21years which would have given them N6,192,994.5K. Claimant submitted that the Redundancy Benefit Agreement made no specific provisions for those who served for 11 years or more, like the claimant who served for 21 yrs. He urged the court to hold that that the provision, spirit and intention of clause 2(a) of the Redundancy Benefit Agreement is to compensate affected worker based on the number of years he served the defendant. Claimant’s counsel submitted that the defendant’s contention on the little disparity in the calculation of the claimant’s monthly basic salary and housing allowance are matters of little moment, as the main contention is that such accrued salaries/allowances ought to have been paid for each of the claimant’s completed year of service with the defendant. He implored the court to discountenance the defendant’s contention that out of about 120 employees declared redundant, only the claimant and two others are the ones complaining. The reason is that the claimant and the other two felt aggrieved as they were the oldest members of staff of the defendant, out of those rendered redundant, having served the defendant for very long period. I have carefully considered this matter as presented by both parties and their counsel. The claimant submitted that the defendant has obligation to bring an officer of his workers’ union (NUATE) as a witness to testify that the defendant has complied with the RBA. In our considered view the defendant does not have such obligation. It is not in all cases that burden of proof shifts to the defendant; even when it does it is not automatic, the burden of establishing his claim to the satisfaction of the court first lies on the claimant before the defendant is expected to proof its defence. Section 137 (2) of the Evidence Act and the Supreme Court’s pronouncement in EZEMBA V. IBINEME [2004] 14 NWLR (Pt. 894) 617 AT 688 are apposite on this principle. For ease of reference, we hereunder reproduce clause 2 of the Redundancy Benefits Agreement dated 3rd April, 2008 thus:- 2 The employees being declared redundant shall be paid redundancy benefits as follows:- a. Basic Salary and Allowances up to last day worked; b. 2 Months’ Basic Salary + Housing Allowance + Transport Allowance in lieu of notice; c. Payment in lieu of any accrued leave; d. Redundancy Benefit shall be calculated as follows:- i. 1 – 4 years 1½ Months’ Basic Salary + Housing Allowance + Transport Allowance shall be paid for every completed year of service to employees declared redundant in this category. ii. 5 – 8 years 2 Months’ Basic Salary + Housing Allowance + Transport Allowance shall be paid for every completed year of service to employees declared redundant in this category; iii. 8 – 10 years 2½ Months’ basic Salary + Housing Allowance + Transport Allowance shall be paid for every completed year of service to employees declared redundant in this category. The Redundancy Benefit in (d) above shall not exceed a maximum of 24 Months’ Basic Salary + Housing Allowance + Transport Allowance. As shown earlier in this judgment, the claimant served the defendant for 21years and he maintained that he is entitled to benefit for that 21years. To him, since there is no provision for his own category of staff in the RBA, his entitlement has been short paid and that court should follow the settled law principle in interpreting the RBA; because where interpretation of the RBA will result in defeating its object, the court would not lend its weight to such an interpretation. Continuing that the best thing to do is to pay the redundancy benefit under clause 2 (d) (iii) of the RBA to the claimant for 52½ months. His reason is that the effect of payment of redundancy benefits to workers is to cushion the effect of redundancy on him before he gets alternative employment. It is sad that the RBA did not make provision for workers who had worked for over 10years and particularly for 21years in the defendant company. That notwithstanding, counsel’s submission that the calculation used by the defendant is against the provisions, spirit and intent of the Redundancy Benefit Agreement; thereby urging the court to have recalls to section 7 (6) of the National Industrial Court Act, 2006 which enjoins this court to have due regard to international best practices where necessary in my considered view is not necessary since the content of the RBA is very clear. Furthermore, the claimant’s submission in respect of sections 7 (6), 13 and 15 of the National Industrial Court Act, 2006 are not relevant as the court cannot alter the RBA voluntarily entered by the parties. Section 20 (3) of the Labour Act defines redundancy as “an involuntary and permanent loss of employment caused by excess manpower”. As a result of this, the claimant was declared redundant; due to no fault of the defendant but because there were more employees than the available work required thereby making the defendant to operate at a loss. Section 54 (1) NIC Act 2006 defines “collective agreement” to “mean any agreement in writing regarding work condition and terms of employment concluded between; a, an organisation of employers or an organisation representing employers (or an association of such organisation), of the one part, and b, an organisation of employees or an organisation representing employees (or an association of such organisation) of the other part. Flowing from that the RBA between the parties can also be referred to as a collective agreement. Section 20 (1) (c) of the Labour Act allows employers (defendant in this instance) to use its best endeavour in instance of redundancy to negotiate redundancy payments to discharge worker in order to prevent further loss. It is my humble opinion that if the parties who prepared the RBA wanted workers declared redundant to be mandatorily paid according to the number of years they put in service, it would have been so stated expressly in the RBA. Since it is not so stated, it is not the duty of this court to insert such provision in the RBA. In Odgers on “Construction of Deeds and Statutes” 5th Edition, 1957 page 276 of chapter 14 as reproduced in Nigerian Union of Construction and Engineering Workers V. Construction and Civil Engineering Employers’ Association of Nigerian (NUCACEAN V. CCEEAN) [2007]8 NLLR1 @ 9, the author states that: The basic rule is that the court should not take upon itself to supply omission as this is to assume the function of Legislature or of the Parties as the case may be. This court agrees with the position of the Learned Author and holds that the court refuses to put into or infer from the RBA that the claimant is entitled to redundancy benefit for his 21years in service, since that is not contained in the RBA. This court also holds that all arguments of the claimant on UNITED STEEL WORKERS OF AMERICA V. WARRIOR & GULF NAV. CO. are irrelevant to this matter as the court cannot alter the Redundancy Benefits Agreement between the parties. In my considered view, the Redundancy Benefits Agreement of 3rd of April, 2008 was voluntarily entered into by both parties and by the proviso to cause 2 (d) of the RBA, none of the workers declared redundant by the defendant is entitled to redundancy benefits for more than 24 months. This court earlier held on similar issue in Nigeria Employers’ Association of Banks, Insurance and Allied Institutions V. National Union of Banks, Insurance and Financial Institutions Employers & anor (NEABIAI V. NUBIFIE) [2006] 6 NLLR 301 @ 322 that: The joint agreement dated 6th August, 1986 entered into by Appellants and the 2nd Respondents on issues in the dispute namely items 1-7, is binding on the parties. The court hereby confirms the said agreement. I have not been shown any concrete reason why I should depart from that decision. I therefore hold that the Redundancy Benefit Agreement before me is binding on both parties before the court. I also hold that the claimant’s redundancy benefit is covered by clause 2 (d) (iii) of the RBA. Having settled the applicable agreement between the parties, what then is the claimant entitled to as his redundancy benefits under the RBA? Clause 2 (d) (iii) of the RBA provides that: Employees declared redundant who had put in 8 – 10 years’ service are entitled to 2½ Months’ basic Salary + Housing Allowance + Transport Allowance for every completed year of service. The Redundancy Benefit in (d) above shall not exceed a maximum of 24 Months’ Basic Salary + Housing Allowance + Transport Allowance. I therefore hold that the claimant is only entitled to 24 months redundancy benefit as stated under clause 2 (d) (iii) of the RBA. It is in evidence for the defendant that for the employees declared redundant, their last month’s salaries from the defendant will be used to calculate their monthly basic salary (BS), transport allowance (TA), and housing allowance (HA). Defendant frontloaded claimant’s pay slip for the month of March, 2008 which was the last full month’s salary Thomas Obilor received from the defendant. In addition to this, the defendant frontloaded defendant’s Harmonised Junior Staff Salary and Allowances scale but this document is not legible at all. It is therefore of no assistance to this court in writing this judgment. The court will therefore depend on the content of March, 2008’s salary pay slip of Mr Thomas Obilor to calculate the claimant’s redundancy benefit. In March 2008 pay slip, claimant’s monthly basic salary is N42,914.43K, transport allowance is N37,822.21k while housing allowance is N31,050.00k. If the three allowances are added together we have N111,786.64k. If this figure is multiplied by 24, it will give us two million, six hundred and eighty two thousand eight hundred and seventy nine naira, four koko (N2,682,879.4k) as the redundancy benefits of the claimant. Furthermore, the two parties frontloaded payment advice in respect of what was paid to the claimant as his redundancy benefit. It is reflected in this document that the sum of N2,673,425.28k was paid to the claimant as his said benefit. If this is deducted from his accruable benefit as calculated above, it shows that the claimant was short paid. His balance being the sum of N9,454.2K. The court holds that the claimant was short paid the sum of nine thousand four hundred and fifty four naira, two kobo (N9,454.2k) as his redundancy benefit. The court hereby order that the defendant shall pay the said sum of N9,454.2K balance of the claimant’s redundancy benefit as agreed in the RBA. For avoidance of doubt, this court hereby holds and orders as follows: 1. That the claimant is only entitled to redundancy benefit as agreed to by his union and the defendant in the RBA on the 3rd of April, 2008; and that his redundancy benefit is covered by clause 2 (d) (iii) of the said Redundancy Benefit Agreement. 2. That the claimant is entitled to total sum of N2,682,879.4K as his redundancy benefit from evidence before the court but he was paid N2,673,425.28k. He was therefore short paid the sum of nine thousand four hundred and fifty four naira, twenty kobo (N9,454.2k). 3. The defendant is hereby ordered to pay the said sum of N9,454.2k to the claimant within 30 days from today; the 3rd of May, 2011. Judgment is entered accordingly. I make no order as to cost. Hon Justice F. I. Kola-Olalere Presiding Judge