Download PDF
BETWEEN 1. Mr. Olabode Ogunyale 2. Mr. Thompson Olabode Raphael 3. Femi Ogboye 4. Tunde Ilesanmi 5. Amos Farotimi 6. Mufutau Olajide 7. Emman Hunde 8. Felix Alao 9. Kunle Kolawole 10. Donald Solanke 11. Philip Ikpeamanam 12. Felix Ajiduah 13. Adeleye Gbolahan 14. Mohammed Salisu 15. Joseph Ogunpekan 16. Rasheed Alaolu 17. Jide Abdulahi 18. Dada Banjo - Claimants 19. Musa Olumide 20. Isamaila Ashafa 21. Adulola Olukayode 22. Abiodun Fidipote 23. Tijani Tunbosun 24. Akin Akinyera 25. Nosiru Rasaki 26. Doyin Ajetunmobi 27. Akande Joshua 28. Gideon Akinde 29. Olukayode Hassan 30. Dele Olasebikan 31. Anthony Ugwu 32. Esan Gabriel 33. Kolawole Rotimi 34. Akinola Babatunde 35. Awe Emmanuel 36. Sunday Onyeje 37. Bola Akinbola 38. Ojomo .A. Stephen 39. Akolade Michael 40. Justus Adebayo 41. Adamson Ismaila 42. Sikiru Olaifa 43. Zecheus Ogunbanjo 44. Segun Kolawole 45. Sikiru Agoluaje 46. Yusuf Ayinla 47. Oluwadamilare Olaleye 48. Fidelix Akinmoladun 49. Adejuwon Adedire 50. Ayodele Yaya 51. Sebastian Ogaran - Claimants 52. Olufemi Gbotifayo 53. Isah Shaibu 54. Femi Michael 55. Akinlabi Philip 56. Taiwo Bello 57. Oginni Moses 58. Okanlawon Olayiwola 59. Segun Balogun 60. Kehinde Adeeko 61. Tajudeen Lapanpa 62. Ogundimu Michael O. 63. Ojo Samuel 64. Yinka Obasoro 65. Matthew Ngaobiwu AND Globacom Nigeria Ltd - Respondent REPRESENTATION Fred Agbaje, with him Kennedy Osunwa, Adeniyi Pokanu, Faith Lawani, Courage Okpeku, for the claimants. Akin Adesomoju, with him Ademola Owolabi, Dickson Ogunfuyi, Akin Akintola, Robert Hon, for the respondent. JUDGEMENT The claimants filed this complaint on the 25th April 2008 against the respondent claiming the following reliefs – i) A declaration that the claimants/applicants having been working for the respondent for the past five (5) years without employment/appointment letter is fraudulent and unlawful. ii) A declaration that the claimants/applicants having been working for the respondents for the past five (5) years without leave, Hospital, Transport and Housing allowance is unjust and lawful. iii) A declaration that the claimants/applicants having been working for the respondent for over (5) years deducting and with-holding various taxes from their salaries WHT on Rent, (NSITF) National Insurance Fund, PAYE Tax without remitting same to the appropriate Government Agencies and without confirming the claimants’ contract of employment is fraudulent and illegal. iv) A declaration that the claimants having been working for the defendant company without a fixed closing time since employment up to date is an abuse of a contract of employment with legal or statutory flavour and therefore illegal. v) A declaration that the 10% (Ten Percent) gross deduction from the claimants/applicants monthly income by the respondents in the past three (3) years till date is illegal, and unlawful. vi) A declaration that the claimants having been out-sourced to another company named Global Manpower Nig. Ltd without terminal benefits and other allowances is unjust and illegal. vii) An order of this Honourable Court directing the respondents to pay in full all the total money deducted from the claimants’ salaries from the 1st month of employment till date with interest at the current bank rate till judgement is delivered. viii) An order of this Honourable Court directing the respondents to pay the claimants all their terminal benefits and other allowances before out-sourcing them to Global Manpower Nig. Ltd. ix) An order of this Honourable Court re-instating all the claimants terminated on the grounds of respect for better condition of service. x) An order compelling the defendant to pay the claimants their various salaries from January 2008 till date. xi) An order of this Honourable Court directing the respondent’s company to confirm the claimants’ employment by entering into contract of employment governed by conditions of service thereof. xii) An order of this Honourable Court for payment of N200,000,000.00 (Two Hundred Million Naira) as damages, for violation and infraction of the claimants’ legal rights. Accompanying the complaint is the statement of facts, list of witnesses, copies of documents to be relied on. In reaction, the respondent entered a conditional appearance on 8th May 2008 and on the 12th June 2008, filed a notice of preliminary objection challenging the jurisdiction of the court to entertain this matter. In a considered ruling delivered on the 11th March 2009, the respondent’s preliminary objection was dismissed. The respondent then filed its statement of defence on the 10th June 2009, list of witnesses and copies of documents to be relied on at the trial. In response, the claimants filed a reply to the statement of defence on the 15th January 2010. The parties did not file any witness statement on oath. Parties joined issues and the matter went to trial. The claimants’ case on the pleadings is that they were employed as drivers by the respondent in year 2003 without the respondent issuing them with employment letters. They pleaded that they were issued with the respondent’s identification cards and placed on the respondent’s employee payroll from where various taxes PAYE tax, National Social Insurance Trust Fund (NSITF), Withholding tax and a 10% tax deduction were deducted from their monthly salaries from 2003 to April 2008 when this action commenced. The claimants pleaded that they resume work at 6am everyday without a fixed closing time and without being paid overtime or weekend allowance. The claimants pleaded that the respondent seldom grants them leave and when it does, they are not paid leave allowance, neither are they paid transport, hospital and adequate out of station allowances. They pleaded that most of the staff issued with the respondent’s identity card were issued with different company’s appointment letters ranging from Vxient, Umbrella, Intercontinental and Global Manpower. The claimants pleaded that on January 28, 2008, the respondent convened a meeting where it informed them that they had been outsourced to Global Manpower Ltd with effect from 1st January 2008 and demanded they submit its identity cards in order to receive the identity card of Global Manpower Ltd without payment of their terminal benefits and other allowances. They pleaded that the respondent’s identity cards were taken from them as a condition precedent for payment of their January 2008 salaries and the identity cards of the outsourced company given to them. They pleaded that those who refused to handover the respondents identity card were denied their January salary till date. They pleaded that the Human Resource Director of the respondent informed them that they would not be paid any compensation for the period they worked for the respondent as they have no employment letters to substantiate their claims. The claimants called two witnesses in proof of their case. The 5th claimant, Mr. Amos Olugbenga Farotimi, was the first claimant witness CW1. His testimony was in the terms of the claimants’ case on the pleadings. In addition, he said he was employed in year 2003, some in 2004. He stated that their salaries were paid through Equatorial Trust Bank Accounts which the respondent opened for them and issued pay slips to them from year 2003 to 2006 which was then stopped in 2007. He said in year 2003, they were paid N35,000 monthly and later N45,000 according to their seniority. He said when they were outsourced they demanded for their terminal benefits and deductions made from their salaries specifically NSITF contributions and tax clearance certificates but were chased out of the premises and the Police were used to harass them. He said they then consulted their lawyer who wrote the respondent demanding their terminal benefits. He stated that there was no letter to them informing them that they had been outsourced to Global Manpower, nor any letter of termination or dismissal. Under cross-examination, he said the respondent promised to give them employment letters. He stated that their pay slips showed deductions of tax, house rent and NSITF. He said the respondent did not give him a letter telling him he is no longer their staff. He stated that he did not apply to Global Manpower for employment and that he does not do any work for the respondent now. He said he filled the staff application/data form of the outsourced company and staff identification was issued to him. He said he was not paid any money when he left the respondent company. The second claimant witness (CW2) was the 1st claimant, Mr. Olabode Ogunyale. His testimony was also in terms of the case of the claimants on the pleadings. He also stated that the respondent forcefully retrieved the identity cards it issued them through its Administrative Manager Mrs. Jumoke Aduwo. He said they were not given any notice before being outsourced, nor a reason for being outsourced. He said they demanded for their terminal benefits, NSITF deductions, tax deduction and tax clearance certificates but were not given. He said himself and the other claimants do the same jobs. He said he resumes duty at 6am and closes late because he takes his boss to night clubs and sometimes travels outside Lagos. He said he has no fixed closing time like the other claimants. He said his monthly salary was N45,000.00 and that some claimants earn N35,000 depending on seniority. Thereafter he said they engaged counsel who wrote 3 letters of demand to the respondent but that the respondent did not reply and so they instructed their lawyer to file this complaint. Under cross examination, CW2 said he was employed as a driver and that the other claimants are also drivers. He said that their schedule of work is tied to the officers they drive. He admitted that some of the officers they drive work in shifts and some of the drivers also work in shifts. He said the respondent did not agree with them on the mode of termination of their employment. He said that they were all present at the meeting of January 28, 2008 where the respondent informed them that their jobs had been outsourced to Global Manpower. He said that they agreed to work with Global Manpower and immediately commenced work with it. He said they were issued with the new identity cards by Mr. Adewale Sangowawa, the Head of Human Resources in the respondent company. CW2 said the respondent did not agree to pay them any terminal benefits in the event they decide to leave its services. He said they instructed their lawyer to write the respondent demanding for their terminal benefits made up of gratuity, tax deductions not remitted to the revenue authority and compensation of the years they worked with the respondent. He said the deductions from their salary to NSITF have not been refunded to them. The claimants then closed their case. The case of the respondent on the pleadings is that the claimants were employed as casual workers and as a result they were not issued with employment letters. The respondent pleaded that some of its workers including the claimants were outsourced from recruiting agencies and as such might hold appointment letters from the recruiting agencies. The respondent pleaded that it issues identity cards to all persons working with it to enable them have access to its facilities and for security purposes and that the issuance of pay slips was to document and convey details of payments credited to the employees current account. It pleaded that the respondents were employed as drivers with an understanding that their schedule of work will be tied to the officers they are driving which they accepted. The respondent pleaded that the salaries paid to the drivers are consolidated and inclusive of overtime, transport, hospital allowances. It pleaded that it never agreed to pay these allowances to the claimants in addition to their consolidated salaries. The respondent pleaded that the drivers did not work without closing hours but worked in shifts save for those driving individuals. It denied that the claimants were closing late in the night. It pleaded that the drivers were paid per diem to cover transport and out of station allowance. It pleaded that in December 2007, as part of its business strategy it decided to outsource certain aspects of its operations to service providers including Global Manpower Ltd. The respondent pleaded that it held meetings with the claimants and other affected staff to explain and inform them about the new company policy and advised any of the drivers who desires to continue with the respondent to apply there. It pleaded that all the claimants accepted the policy on outsourcing, resigned, applied and accepted to join Global Manpower Ltd. The respondent pleaded that it never threatened any of the claimants but that its Human Resources Department directed all the drivers to surrender its identity cards with a view to the outsourced company issuing them with appointment letters and identity cards. It pleaded that all the claimants except the 29th & 34th claimants filled and submitted the staff application/Data Forms of Global Manpower Ltd and accepted to join the new company. The respondent pleaded that it never made the submission of identity cards a condition precedent for payment of salaries. It pleaded that there was no agreement or responsibility to pay terminal benefits to the claimants and that they are not entitled to it. The respondent pleaded that upon being outsourced it paid two weeks salary as payment in lieu of notice as a relief to each of the claimants. The respondent pleaded that it only deducted PAYE tax, withholding tax on rent for 2003 – 2005 NSITF and telephone excess credit. It pleaded that PAYE and Withholding tax for 2003 – 2005 have been remitted to Lagos State Government and the NSITF deductions for years 2002 – 2005 have been refunded to the claimants. The respondent pleaded that all requests for annual leave, sick leave and casual leave were orally made by the claimants and were verbally granted. It pleaded that it retrieved its telephone headsets and SIM cards it gave the claimants to enable them discharge their duties upon their leaving its employment and the keys to its vehicles. The respondent pleaded that the claimants were no longer in its employment since February 2008. The respondent called one witness, Mr. Dele Babatunde, who is the Head of its Administrative Department. His testimony was in terms of the respondent’s case on the pleadings. He stated in addition that the respondent facilitated the movement of the claimants to the outsourced company and ensured that they were placed on the same salary they earned in the respondent company. Under cross-examination, he said the claimants were staff of the respondent deployed to his Department and so were his staff before they were outsourced. He said the procedure for employing drivers in the respondent company before 2008 was through recommendation and their salaries and allowances are negotiated based on their experiences. He said the drivers were not given employment letters but were issued identification cards, SIM cards and given N3,000 free air time monthly, and where this figure is exceeded, it is deducted from the staff’s salary. He said he did not know if those given handsets were surcharged for them. The defence witness said the claimants’ salaries are paid into their accounts at Equatorial Trust Bank and that they do not have a choice of bank. He said at the time he joined the respondent there were no pay slips issued to the claimants to indicate their monthly salaries but the claimants were orally informed when monies are credited to their accounts. He said there were monthly deductions made from the claimants’ salaries which include PAYE, Withholding tax on rent and NSITF. He said that the claimants were not given houses. He said working time in the respondent company is between 8am and 5pm for status car users while those working in the pool could be from 6am to 2pm, 2pm to 10pm, and 10pm to 6am as defined by their shift. He said he approved leave for all those who applied for leave. The defence witness said there was no letter terminating the claimants’ employment before they were outsourced. He said they were verbally disengaged from the service of the defendant. He stated also that the claimants did not tender any resignation letter when they were outsourced and were not paid any terminal benefits apart from 2 weeks salary in lieu of notice and their January 2008 salary. The respondent then closed its defence. Learned counsel to the parties were then ordered to file their final written addresses. The respondent’s final written address is dated 24th May 2012 and filed on the 25th May 2012. The claimants’ final written address is dated 6th September 2012 and filed same day. The respondent filed a reply on points of law dated 11th October 2012 and filed same day. The respondent framed seven issues for determination of the court as follows – (i) Whether the claimants’ employment had been terminated and whether the termination is wrongful. (ii) Whether the claimant is entitled to terminal benefit when there is no such agreement between the parties for such. (iii) Whether the respondent is liable to pay any damages to the claimant. (iv) Whether the deductions made from the claimants’ salaries were validly made. (v) Whether the claimants’ employment not being in writing is unlawful. (vi) Whether the claimants are entitled to be paid any salaries from January 2008 to date. (vii) Considering the facts of this case, this action is liable to fail on the ground that the claimants cannot sue collectively for breach of contract of employment. Learned counsel submitted on issue 1, that the legal conclusion from the evidence of the claimants which is corroborated by the evidence of the respondent is that the parties treated and accepted the outsourcing of their services to another company as termination of their employment. He submitted that a termination of a contract of service even if unlawful brings to an end the employment relationship, citing Chukwumah v. Shell Petroleum [1993] 4 WLR (Pt. 289) 512, Bankole v. N.B.C. [1968] 2 ANLR 371 and Mobil Oil (Nig) Ltd v. Assan [2003] 6 NWLR (Pt. 816) (incomplete citation). He submitted further that the onus is on the employee to prove in what manner the terms and conditions of the contract of employment were breached, citing Afribank Nig. Plc v. Osisanya [2000] 1 NWLR (Pt. 642) (incomplete citation), Amodu v. Amode [1990] 5 NWLR (Pt. 150) 356, Iwuchukwu v. Nwizu [1994] 7 NWLR (Pt. 357) at 412 and Katto v. C.B.N. [1999] 6 NWLR (Pt. 607) 390 at 414. He submitted that the claimants have not stated which terms or conditions of the oral agreement between the parties were breached in the process of termination of their employment. On issue 2, learned counsel referred to the case of Julius B. Nig Plc v. Nwagwu [2007] WRN (Vol. 9) 102 at 128 for the definition of terminal benefits as “sums of money which a party entitled to it has earned. They are sums accruable to an employee when his services are no longer required. They are easily assessed from the agreement that governs the contract of employment, statute or common law rules”. He submitted that the claimants have not proved any agreement for payment of terminal benefits and the claim should be dismissed. He submitted on issue 3, that damages is payable only where the termination of employment is said to be wrongful, citing Bankole v. N.B.C. [1968] 3 All NLR 372, Osakwe v. Nigerian Paper Mill Ltd [1998] 7 SCNJ 22 and Katto v. C.B.N. (supra). Learned counsel argued that the claimants’ termination is not wrongful and by extension they are not entitled to damages. He argued further that assuming but not conceding the termination was wrongful, the only damages payable would be what the claimants would have been entitled to if the employment had been determined in accordance with the contract, in other words the length of notice required to terminate the employment contract. He cited N.P.M.B.V v. Adewunmi [1972] 11 SC 111, Onalaja v. African Petroleum [1991] 7 NWLR (Pt. 206) 691, Chukwumah v. SPDC Ltd [1993] 4 NWLR (Pt. 289) 512, International Drilling Co. Nig. Ltd v. Ajijola [1976] 2 SC 115, Akinfosile v. Mobil [1969] NLLR 253 and WNDV v. Abimbola [1966] 1 ANLR 159. It was his submission that the length of notice required to terminate this category of worker which the claimants belong to is two weeks notice and stated that two weeks salary in lieu of notice was paid to them and so they are not entitled to any damages. It was counsel’s contention that since the respondent made it possible for the claimants to be employed immediately by the outsourced company the law is that they cannot be paid any damages even if they refuse to work with the second company, citing Okongwu v. N.N.P.C. [1989] NWLR 115 (incomplete citation). On issue 4, learned counsel submitted that by law all the deductions PAYE, NSITF and Withholding tax on rent are all validly deducted in accordance with the law and remitted to Lagos State Government except NSITF which was refunded to the claimants after their employment was determined by the respondents. He submitted on issue 5 and 6 that the law is clear that a contract of employment could be oral or written, citing Shena Security Company Ltd v. Afropak (Nig) Ltd & 2 ors [2008] 4 – 5 SC (Pt. 11) 117; and that the claimants are not entitled to any salary after they have been disengaged. He then submitted that all the claims of the claimants be dismissed as the evidence adduced in support of their case is inadequate to find a verdict in their favour. The claimants raised five issues for determination as follows: 1. In the exercise of the defendant’s right under the contract of employment to outsource or transfer the claimants employment, whether the claimants were given a fair hearing in line with the requirement of section 36(1) and (2) of 1999 Constitution as encapsulated in section 10(1) and (2) of the Labour Act (Cap. L1) Laws of the Federation, 2004. 2. Whether the defendant’s unilateral refusal to give the claimants a letter of employment/written statement of conditions of employment after three (3) months of their employment running to more than 5 years does not run fowl of the law. 3. Whether the defendant’s purported disengagement of the claimants from their employment has ipso-facto determined the claimants’ contract of employment and if (yes) whether such disengagement does not amount to wrongful termination of claimants’ employment arising in damages. 4. Whether the defendant’s act of forcing a particular bank on claimants where the defendant has sufficient sole interest which the defendant used as a medium for several deductions (i.e. PAYE, NSITF – National Insurance Fund, WHT on Rent, Telephone handset) from the claimants’ monthly salaries without defendant’s provision of the intended purpose for such deductions to the claimants ipso-facto calls for defendant’s refund of all deductions made and balance payment of the claimants’ 2008 salaries. 5. Considering the totality of claimants’ pleadings, evidence led and exhibits in this case, are the claimants not so entitled for adequate compensation against the defendant’s breaches of their legal duty owed to claimants. Learned counsel to the claimants referred to section 10(1) and (2) of the Labour Act Cap. L1 LFN 2004 which provides the conditions for transfer to other employment and section 36(1) and (2) of the 1999 Constitution and submitted that the consent of the claimants to being outsourced must be freely obtained. He submitted that the respondent’s act of coercing the claimants to fill Global Manpower Nig. Ltd employment form as a condition precedent for payment of the claimants’ January 2008 salary while demanding for their terminal benefits is against the principle of fair hearing. He contended that the fact of the claimants’ demand for their terminal benefits is unchallenged, citing State v. Oladotun [2011] vol. 5, MJSC 133. He also cited Eze v. Spring Bank Plc [2012] vol. 20, WRN 1 – 180 and Russel v. Duke and Norfolk [1949] All ER 118 in support of his submission on fair hearing. On issue 2, he referred to section 7(1) and (2) of the Labour Act Cap. L1 LFN 2004 and submitted that from the evidence adduced, the claimants’ employment with the respondent qualifies as a contract of service and the respondent has breached the provisions of the law in not giving the claimants letters of employment or a written statement of the conditions of their employment since year 2003 when they were employed till the 25th April 2008 when this action was filed. He cited Adetola v. Godwin Worldwide Ltd [1982] OGSLR 60 – 61, A.G. Enugu State v. Avop PK [1995] 6 NWLR (Pt. 399) 90, and referred to Nigerian Labour Law (4th Edition) by Professor Akintunde Emiola, Nigerian Employment and Labour Relations Law & Practice by Professor Chioma Kanu Agomo. On issue 3, Learned counsel referred to section 11(1), (2), (3) and (4), section 9(7) and section 7(1), (2) and (5) of the Labour Act and submitted that the respondent has not complied with these provisions in that it did not give the claimants notice of termination of their contract of employment. He submitted that the claimants’ employment has not been determined as a result of the non-compliance with the period of notice stipulated in the Act, citing Re-African Association Ltd v. Allen [1910] 1 KB 396. He submitted that the provision for notice must be strictly adhered to otherwise the termination will be wrongful, citing Longe v. First Bank of Nig. Plc [2010] 2 CLRN 21 at 54. He prayed the court to award damages in favour of the claimants for wrongful termination, citing Eze v. Spring Bank Plc (supra), Osumah v. Edo Broadcasting Service & anor [2011] 23 NLLR (Pt. 65) 212, Management of Dangote Industrial Ltd v. NUFBTE [2009] 14 NLLR (Pt. 37) 25 and PENGASSAN v. Schlumberger Anadrill Nig. Ltd [2008] 11 NLLR (Pt. 29) 164. He submitted on issue 4, that the respondent owed a legal duty of care to the claimants to provide insurance cover policy, medical care, housing and transport, citing Iyere v. Bendel Feed and Flour Mill Ltd [2008] 12 CLRN 1. It was counsel’s submission on issue 5, that the defendant has breached several provisions of the Labour Act and simply enslaved the claimants under the guise of employment. He argued that the claimants’ case is one of such contemplated by section 19(d) of National Industrial Court Act 2006 where an award of compensation or damages is necessary. He cited Andrew Monye v. Eco Bank Nig. Plc unreported Suit No. NIC/EN/06/2009 delivered in October 6, 2011 and Industrial Cartons Ltd v. NUPAPPN [2006] 6 NLLR (Pt. 15) 258 and urged the court to award the payment of the claimants’ salaries from 2008 till judgement as compensation for wrongful termination of their employment; referring also to Mrs. Temitope Olufunke Akinwale v. UBA & 5 ors unreported Suit No. NIC/LA/210/2011. Replying on points of law, counsel to the respondent stated that the issue of fair hearing was never pleaded nor in evidence at the trial. He submitted that it is a long standing principle of law that issues are not formulated out of the blues nor framed in the abstract, citing Okonyia v. Ikengah [2001] 2 NWLR (Pt. 698) 336 at 356. He urged the court to discountenance the issue of fair hearing now being raised at final address stage. He submitted that the case of Russel v. Duke & Norfolic [1949] All ER 109 cited by the claimants’ counsel is not applicable. Counsel submitted that the provisions of section 7(1) and (2) of the Labour Act Cap. L1 LFN 2004 is not mandatory for oral contracts as insisting on such a requirement would unwittingly offend the position of the law that a contract of employment whether oral is nonetheless valid. He submitted that the case of A.G. Enugu State v. Avop Plc (supra) cited by the claimants’ counsel has no bearing on this case and that a contract for service or of service may still be oral or written. On section 19(d) of the NIC Act 2006, he submitted that it only empowers the court to award compensation where the termination is wrongful and that the termination of the claimants’ appointment is not in breach of any term of their employment and is, therefore, lawful. He cited Bankole v. NBC [1968] 2 All NLR 372 and Osakwe v. Nigerian Paper Mill Ltd [1998] 7 SCNJ 22. He submitted that the Labour Act states that an award for damages is only upon proof of wrongful dismissal. He then urged the court to dismiss the suit with substantial costs. Having carefully considered the processes filed, the evidence adduced, the written submissions and authorities cited by the parties, the crux of this case are the two contemporary labour issues of casualisation and outsourcing. Implicit in these two issues is the question of unfair labour practice. We will begin the judgement with the issue of casualisation. The claimants who are all drivers fall within the meaning of “worker” as defined by section 91 of the Labour Act Cap. LI LFN 2004 which means “any person who has entered into or works under a contract with an employer, whether the contract is for manual labour or clerical work or is expressed or implied or oral or written, and whether it is a contract of service or a contract personally to execute any work or labour....” The respondent does not dispute that the claimants are its workers but maintains that they were employed as casual workers and as such were not given employment letters when they were employed between year 2003, 2004 and 2005 till the end of January 2008, when they were disengaged. This shows that the claimants were engaged as casual workers for the permanent positions of drivers. This practice is now referred to as “casualisation”. It is pertinent to state that globally a casual worker is one who is engaged seasonally or intermittently and not for a continuous period. Section 7(1) (a) to (h) of the Labour Act CAP LI LFN 2004 provides as follows: 7(1). Not later than three months after the beginning of a worker’s period of employment with an employer, the employer shall give to the worker a written statement specifying – (a) the name of the employer or group of employers, and where appropriate, of the undertaking by which the worker is employed; (b) the name and address of the worker and the place and date of his engagement; (c) the nature of the employment; (d) if the contract is for a fixed term, the date when the contract expires; (e) the appropriate period of notice to be given by the party wishing to terminate the contract, due regard being had to section 11 of this Act; (f) the rates of wages and method of calculation thereof and the manner and periodicity of payment of wages; (g) any terms and conditions relating to – (i) hours of work; or (ii) holidays and holiday pay; or (iii) incapacity for work due to sickness or injury, including any provisions for sick pay; and (h) any special conditions of the contract. The above provision applies to the claimants who are workers as defined by section 91 of the Labour Act. Their rights to written particulars of the terms of their employment as provided by the law is mandatory. By its own admission, the respondent has breached the provisions of the law. It is trite law that admitted facts need no further proof. See section 123 of the Evidence Act 2011. The claimants have been in the employment of the respondent for a continuous period of three to five years. The Nigerian Labour Act does not mention the term ‘casual worker’ although it is a fact/reality of the workplace both locally and internationally. The point is that there is no legislation in place in Nigeria recognising, regulating or protecting casual workers. The evidence before the Court indicates that the claimants had worked continuously for the respondent for upward of three to five years. During this time, the respondent as employer made varying statutory deductions including PAYE, NSITF, etc. When all of this is added to the fact that the Labour Act is silent on the issue of casual workers, the claimants, in our opinion, qualify as permanent employees, not as casual workers as argued by the respondent, and so should be accorded all the workplace rights as envisaged by the labour laws; and we so hold. The claimants led evidence that they had no fixed hours of work, no closing time, no overtime, no transport or hospital allowances and neither did their pay slips indicate allowances. The evidence led by CW1 and CW2 is that they resume at 6am everyday including Saturdays and Sundays, close between 10pm and 12 midnight; sometimes work overnight without any allowances and their job schedule is tied to the officers they drive; with some of them working in shifts. This evidence is corroborated by the defence witness who also said that the respondent’s hours of work is between 8am and 5pm for Managers who are status car users. Section 13(2) of the Labour Act provides as follows – 13. Hours of work and overtime. (2) Hours which a worker is required to work in excess of the normal hours fixed under subsection (1) of this section shall constitute overtime. The respondent has denied ever agreeing to pay overtime, housing, transport or any other allowance in addition to their consolidated salaries. We find that there is no evidence of payment of allowances on the pay slips, so there was nothing to consolidate in the salaries paid to the claimants. The respondent in not paying overtime allowances to the claimants who work in excess of the normal hours fixed by it which on computation is nine hours (8am – 5pm) is in breach of section 13(2). The law is trite that there is no burden incumbent upon a party to prove facts which have been admitted by the adversary party. See Tijani Jolasun v. Napoleon Bamgboye [2010] 18 NWLR (Pt. 1225) 285 and Adeleke v. Aserifa [1990] 3 NWLR (Pt. 136) 94. There is, however, evidence before the court that the respondent paid the claimants out of station allowance for travels within Nigeria and outside Nigeria calculated per diem i.e. on a daily basis. The claimants have pleaded that they were not allowed to go on leave neither were they paid leave allowance. The evidence of the defence witness is that he approved leave requests for all those who applied for leave. There is no evidence of approved leave before the court to suggest that the claimants were permitted to go on leave and by the respondent’s own admission, it never paid any allowances to the claimants which by inference includes leave allowance. Section 18(1) (a) and 18(2) of the Labour Act provides – 18. Annual holidays with pay. (1) Every worker shall be entitled after twelve months’ continuous service to a holiday with full pay of – (a) at least six working days; (2) The holiday mentioned in subsection (1) of this section may be deferred by agreement between the employer and the worker: Provided that the holiday-earning period shall not thereby be increased beyond 24 months’ continuous service. We find that in not allowing the claimants go on leave there has been a breach of this provision by the respondent. The claimants in their oral evidence stated that deductions of PAYE tax, NSITF and Withholding tax from their salaries were never remitted to the Lagos State Internal Revenue Service (LIRS). We must at this juncture point out that the jurisdiction of this Court, being subject matter based, does not extend to the realm of taxation. The rules for determining PAYE and withholding tax (whether such deductions are valid or not) are not rules of employment law, but tax law. In consequence, we decline to entertain any submission regarding the claims for PAYE and withholding tax. The respondent led evidence that the deductions for NSITF have been refunded to the claimants on 19th May 2008 and their accounts credited. The statement of accounts of 37 claimants out of 65 claimants was produced in court by a legal officer of Equatorial Trust Bank. He said not all the statements could be produced because some of the accounts had been archived. All those produced showed that NSITF deductions as contained in the respondent’s Annexure AAC4 had been credited to the accounts of the claimants. On the balance of probabilities, we believe the respondent has credited all the accounts of the claimants with the NSITF deductions. The claimants led evidence that the respondent stopped issuing them with pay slips in year 2007. The defence witness corroborated this when in cross-examination he said there were no pay slips issued to the claimants to indicate their monthly salaries and the deductions made. This is not only a breach of section 7(1)(f) of the Labour Act but we find this to be exploitative and an unfair labour practice. This practice denies the worker knowledge of the components that make up his wages or salary. The claimants by this practice were left at the mercy of the respondent who made deductions from their salary, which were unknown. Also unfair labour practice is the respondent compelling the claimants to bank with Equatorial Trust Bank, a Bank that the respondent has an interest in, by paying the claimants’ salaries into accounts they were compelled to operate with the Bank since the claimants were not left with any option as to the choice of a Bank. Further unfair labour practice is the admission by the defence witness that there were no payslips issued to the claimants to indicate their monthly salaries but the claimants were orally informed when monies are credited to their accounts; and unfair too is the admission by the defence witness that there was no letter terminating the claimants’ employment before they were outsourced, the disengagement from service being verbal. The respondent pleaded that it gave telephone handsets and SIM cards to the claimants which remained its properties and it retrieved them from the claimants upon their leaving its employment. The claimants led evidence to show that the telephone handsets belonged to some of them as they paid for it. The evidence of this can be seen in the amounts deducted for telephone handsets in the payslips of Yusuf Ayinla, Akinlabi Phillip, Tijani Olatubosun, Awe Emmanuel, Isah Shuaibu who are the 46th, 55th, 23rd, 35th and 53rd claimants. The amounts deducted from these and other claimants’ salaries for telephone handsets is to be refunded to them. The second main issue is that of outsourcing which is a global trend and a tool used in the restructuring exercise of a company. The respondent pleaded that while reviewing its employment policies in line with global practice of outsourcing staff it decided as part of its business strategy to improve its efficiency and to fully face its core business and outsource certain aspects of its operations to service providers. It led evidence to show that it informed and explained its new policy of outsourcing some of the support functions to the claimants at a meeting including their jobs as drivers to Global Manpower which they agreed to. This was corroborated by CW1 and CW2 who said they immediately commenced work with Global Manpower. The claimants have pleaded that they are not opposed to the policy of outsourcing but demand for compensation and terminal benefits for the period they served the respondent. The law is that parties are bound by their pleadings. The question then is whether or not the claimants’ appointment with the respondent has been terminated on their being outsourced to Global Manpower or there has been a transfer of the claimants to Global Manpower for which the provisions of section 10 of the Labour Act will apply as canvassed by the claimants’ counsel. The evidence before the court is that they were verbally disengaged and paid two weeks’ salary in lieu of notice. Section 9(7)(c) of the Labour Act provides that a contract shall be terminated by notice in accordance with section 11 of the Act or in any other way a contract is legally terminable. We hold that claimants’ employment was terminated. The claimants apart from the 29th and 34th filled Global Manpower staff application/data forms and accepted to join the company on different dates; between the 7th February 2008 and 20th February 2008. We find that by this act, the claimants on their own free will and without any compulsion consented to becoming staff of Global Manpower. There is no evidence before the court that the respondent made submission of its identity cards a condition precedent to the payment of January 2008 salary at the time they were disengaged. We agree with the submissions of counsel to the respondent on the issue of fair hearing raised by counsel to the claimants, it is completely misplaced. There was no administrative panel of any sort set up wherein the claimants were denied fair hearing at the point of their disengagement. The claimants also alleged that the termination of their employment is wrongful. They were verbally employed and were all verbally disengaged and paid two weeks salary in lieu of notice. Section 11(1), (2)(c), (d) and 11(6) of the Labour Act provides: 11. (1) Either party to a contract of employment may terminate the contract on the expiration of notice given by him to the other party of his intention to do so. (2) The notice to be given for the purposes of subsection (1) of this section shall be – (c) two weeks, where the contract has continued for a period of two years but less than five years; and (d) one month, where the contract had continued for five years or more. (6) Nothing in this section shall prevent either party to a contract from waiving his right to notice on any occasion, or from accepting a payment in lieu of notice. The respondent has complied by the payment of 2 weeks salary in lieu of notice for the claimants employed in 2004 and 2005. For those employed in 2003 who have spent 5 years, payment in lieu of notice is one month’s salary and not two weeks. The respondent is to pay the claimants in this category the balance of two weeks salary. We hold that the termination of their employment is not wrongful. On the claimants’ demands for terminal benefit, there is no oral or written agreement before the court to show that the claimants who were in the respondent’s services between three to five years are entitled to terminal benefits. This claim is unsubstantiated and must fail. On the claim for an award of damages, there have been clear breaches/infractions of the Labour Act and workplace rights of the claimants. By its own admission, the respondent breached the provisions of section 7 of the Labour Act. Section 21(1)(c) of the Labour Act makes it an offence for an employer to contravene section 7 of the Act. However, this being a civil action, the provision of section 19(d) and (e) of the National Industrial Court Act 2006 will be applied. It empowers the court as follows – 19. The court may in all other cases and where necessary make any appropriate order, including – (d) an award of compensation or damages in any circumstances contemplated by this Act or any Act of the National Assembly dealing with any matter that the court has jurisdiction to hear; and (e) an order of compliance with any provision of any Act of the National Assembly dealing with any matter that the court has jurisdiction to hear. For all the reasons given above, we hold that the claimants’ case succeeds substantially but fails on the issue of wrongful termination and terminal benefits. We hereby declare and make the following orders – 1. The respondent’s failure to issue the claimants with written particulars of the terms of their contract of employment is contrary to the provisions of the Labour Act. It is illegal and is an offence under the Act. 2. It is unjust, exploitative and an unfair labour practice for the respondent to have stopped issuing payslips to the claimants. 3. The respondent’s failure to allow the claimants go on annual leave, pay leave allowance and overtime allowance is a breach of the provisions of the Labour Act; it is unjust, exploitative and an unfair labour practice. 4. The respondent is to refund the amounts it deducted from the claimants salaries for telephone handsets within 30 days of this judgement. 5. The respondent is to pay the balance of two weeks’ salary in lieu of notice to those claimants who were in its employment for five years within 30 days of the date of this judgement. 6. The respondent is to pay each of the claimants leave allowance for each year of service. This shall be gross pay of six working days for each year of service. 7. The respondent is to pay each of the claimants the equivalent of 12 months’ gross salary as damages for breach of their labour rights, exploitation and unfair labour practices. This shall be calculated on the basis of the last monthly salary they earned while in the services of the respondent and shall be paid within 30 days of this judgement. 8. The respondent is ordered to ensure that it complies with the provisions of the Labour Act and any other legislation enacted in respect of workers and employment. We award in favour of the claimants cost of N65,000.00 to be paid by the respondent. Judgement is entered accordingly. …………………………. Hon. Justice B. B. Kanyip Presiding Judge ........….……………………………. ………………………….……… Hon. Justice O.A. Obaseki-Osaghae Hon. Justice J.T. Agbadu-Fishim Judge Judge