IN THE NATIONAL INDUSTRIAL COURT HOLDEN AT LAGOS BEFORE THEIR LORDSHIPS Hon. Justice B.B. Kanyip - Presiding Hon. Justice V.N. Okobi - Judge Hon. Justice F.I. Kola-Olalere - Judge Hon. Justice O.A. Obaseki-Osaghae - Judge Hon. Justice J.T. Agbadu-Fishim - Judge Date: 28th January, 2009 Suit No. NIC/2/2008 BETWEEN Management of Dangote Industries Limited, Pasta Plant, Ebute Ikorodu, Lagos - Appellant/Cross-respondent AND National Union of Food, Beverages & Tobacco Employees (NUFBTE) - Respondent/Cross-Appellant REPRESENTATION Victor Sodipe, for the appellant. Sola Iji, for the respondent. JUDGMENT This matter was referred to this Court by the Hon. Minister of Labour and Productivity acting under section 13(1) of the Trade Disputes Act (TDA) Cap. 432 Laws of the Federation of Nigeria (LFN) 1990. The covering letter to the referral instrument is dated 16th January 2008 with Ref. No. ML.HE/891/CON./I/56. The referral instrument is, however, dated 14th January 2008. By the referral instrument, this court is to resolve the following issues in disputer- a. Wrongful termination of appointment of members of the union on account of union activities; and b. Unfair labour practice. The matter had initially been referred to the Industrial Arbitration Panel (IAP). The appellant, dissatisfied with the TAP award, entered an objection - hence the present referral of the matter to this court. Attached to the referral instrument is the IAP award together with the notice of objection of the award raised by the appellant. The respondent too was not entirely satisfied with the IAP award and so cross-appealed. From the record and award of the IAP, the respondent unionized workers in the appellant company (plant). Prior to the unionization, some officers of the respondent had discussed with some management officers of the appellant's plant of their intention to unionize the appellant's workers, which the latter agreed to in principle but advised the respondent's representative to take some further steps. Eventually the workers were unionized and the respondent fixed a date to formally introduce the new branch union and its officers in the appellant's plant to the management. A letter was written to that effect dated 12th of March 2004 by an officer of the respondent and addressed to the Personnel/ Administrative Manager of the appellant plant. In that letter which is Exhibit C at the IAP, the respondent indicated that the branch union would be inaugurated and that the elected officers for the branch union whose names and posts were also stated in the letter, would be introduced formally to the management on 18th March, 2004. However, on 17th of March, 2004, the appointment of all the elected officers of the branch union was terminated by the appellant who denied any knowledge of the existence of any union in the plant as at 17th March, 2004 when these officers' appointments were terminated. After several attempts to settle this matter amicably between the parties failed, a trade dispute was declared and referred to the IAP to handle. At the end of both parties' presentations before it, the Panel formulated the following issues for determination. 1. Was a branch of the union officially established in the company together with its elected branch officials as at 17th March, 2004? 2. Was the termination of the employments of the seven employees connected with issue one above? 3. Was the termination wrongful? The IAP made the following findings - 1. Management (i.e. the appellant) was aware of the formation of a branch union in the company as at 17th March, 2004. 2. The termination of the employment of the affected employees was connected with union activities. 3. The termination of the employment of the employees was wrongful. Based on these findings, the IAP made the following award on the matter- 1. The termination letters issued to the affected employees be withdrawn and letter of redundancy issued to comply with the purported reorganization exercise in the company. 2. That the affected staff be treated in line with the industry agreement on redundancy and on the provisions of the Labour Act Cap. 198 LFN 1990. This would include payment of salary and other allowances up to the date of the award. 3. Management to create enabling environment for already existing union to function. A statement to be issued by management to this effect in line with the Trade Unions Act (TUA) Cap. 437 LFN 1990. Dissatisfied with this award, the appellant entered an objection, which made the Minister of Labour to refer the matter to this court. This ground of objection to the IAP award are- 1. The affected persons (ex-employees) have since 2004 been terminated and their final entitlements fully paid. 2. The award amounts to forcing terminated employees on an unwilling employer. 3. The management (appellant) was not aware of any existing union in the plant as at 17th March, 2004 hence there was no union in their company. As indicated earlier, the respondent entered a cross-appeal. Both parties agreed to argue the appeal and cross-appeal on record. They submitted written addresses and adopted them. Arguing their appeal, the appellant pointed out that they were not aware of the existence of any union in their plant; neither did they receive Exhibit C. They contended that the termination were on the ground that the workers’ services were no longer required. The appellant then urged the court to set aside the IAP award. The appellant formulated the following issues for the determination of this court: 1. Whether there was a branch union in the plant known to the appellant before the termination of the employees on 17th March, 2004. 2. Whether the affected employees were properly terminated or so terminated for union activities. 3. Whether tile IAP was right in making the award on redundancy. On the 1st issue i.e. whether appellant was aware of the existence of a branch union before termination, the appellant submitted that the respondent did not prove the existence of the union in the company at the material time and that it is the respondent’s duty to prove that the appellant cited in support of this submission the case of Aondoakaa v. Ajo (1995) 5 NSWL (p 602) 206 at 222 C – D and section 135 of the Evidence Act. The appellant pointed out that apart from an officer of the respondent, one Comrade Awobifa, who discussed the respondent's intention to unionize workers in the appellant's plant with a management officer of the appellant, the appellant was not aware of the actual or eventual unionization of its workers neither was it aware of election of any of its workers into any union executive. The appellant pointed out that the management was not carried along in the unionization and the election. The appellant submitted that they did not receive Exhibit C because it was not acknowledged nor signed for by them. The appellant referred the court to page 32 of IAP award and pointed out that even the IAP acknowledged that the respondent did not prove that the appellant received Exhibit C. The appellant then submitted that the IAP was wrong to have concluded that the appellant was aware of the existence of the union in the plant before the termination. On issue two i.e. whether the ex-employees of the appellant were properly terminated for terminated for union activities, the appellant submitted that the officers in questions were properly terminated and that their terminations were not for union activities since the appellant was not aware of the existence of any union in their plant before the termination. The appellant pointed out that the letters of termination of appointment of the affected workers which were Exhibits M Yusuf IM at the IAP did not give reason for the termination. They submitted that the position of the law is that a company is entitled to terminate a worker at anytime without giving any reason. They cited the cases of John Holt Ventures Ltd v. Oputa  9 NWLR (Pt. 470) 101 at 117 – 118 and Nigeria Airways Ltd. V. Ahmadu  6 NWLR (Pt. 198) 492 at 494 and 495 to support their submission. The appellant further submitted that when a termination is made without reason, requisite notice or payment of salary in lieu of notice is required. They cited the case of Ajayi v. Texaco Nigeria Ltd  3 NWLR (Pt. 62) 579 is support of this principle. The appellant then submitted that the ex-employees were properly terminated. They submitted that it is the content of the letter of divination that determines the reasons for the termination they submitted that the court cannot export extraneous matters into it, referring the court to the case of UBN v. Nwankolo  6 NWLR (Pt. 400) 127 at 154 to buttress this principle. They submitted that the respondent failed to show by oral or documentary evidence that they had a branch in the appellant company before 17th March, 2004 to have suggested that the termination was as a result of union. On the 3rd issue i.e. whether the IAP was right in making the award on redundancy, the appellant wanted out that the workers terminated by them were not issued letters of redundancy. They reiterated that the letters of termination of appointment issued to their ex-employees must be interpreted as they are whether the contents are favourable or not, citing Egbade v. Oriareghan 1985] 2 NWLR (Pt. 10) 884. They pointed out that these letters mentioned termination and not redundancy. They pointed out that to re-instate the terminated workers would amount to taking sway the right of the appellant to terminate its workers. The appellant submitted that the IAP and that industrial agreement was not incorporated in their contract of employment. They finally submitted on this issue that the award of redundancy is unfounded, lacks merit and should be set aside. The appellant concluded their argument by submitting that the termination of appointment of their ex-employees was valid because those affected were paid their month’s salary in lieu of justice. The respondent, the National Union of Food, Beverages & Tobacco Employees (NUFBTE), reacted to the three issues postulated for determination by the Appellant. On whether or not the appellant knew that there was a union in their plant before 17th March, 2004, the respondent reasoned that since the appellant did .not deny that a member of the respondent discussed the unionization of appellant's workers With some management officers, the appellant was aware of the existence of the union at the material time. In addition, the respondent pointed out that it was part of the evidence for the appellant that they became aware of Exhibit C after the appointment of the workers concerned had been terminated. The respondent opined that if no union exist in the plant before the termination, that exhibit would not have been brought to the notice of the management by pasting same on their notice board, because no other person would have been interested in the union activities. The respondent pointed out that the appellant’s complaint was that they were not carried along in the subsequent unionization of the workers. The respondent submitted that membership of a trade union in a company is a question of fact, citing the case of Management of Joki (Nig.) Ltd v. Union of Shipping Clearing and Forwarding Agencies workers of Nigeria Suit No. NIC/7/86 decided on 27th February 1987. On ways of proving membership of a trade union in a company; they submitted that if workers want to join a trade union, the management should not serve as midwife, referring to National Union of Public Corporations Employees v. Kwara State Unity Board Suit No. NIC/1/90. They also submitted that once a union shows its intention to unionize eligible workers their employer is obliged to accord recognition to it and not pose obstacles in the way of such unionization. The respondent then submitted that from their arguments, they have shown the court that the appellant was aware of the existence of the union in the plant as at 17th March, 2004 and, therefore, the IAP was right in its findings on this issue. On the 2nd issue i.e. whether the workers in question were properly terminated or were terminated for union activities, the respondent pointed out that the following facts were on record: Exhibit C was delivered to the Personnel Manager of the appellant through the company’s security office. That after receiving the letter, the management officer called some of the workers whose names were in that exhibit as executives of the union and advised them to pull out of it because the owner of the company is not interested in union activities. Eventually, the employment of all the workers whose names were in Exhibit C were terminated a day before the date stated in the said Exhibit C for their formal inauguration in the company. The respondent contended that the termination of these workers on 17th March 2004 was deliberate and it was done for union activities. The respondent pointed out that at the trail, the appellant’s case was that the workers’ employments were termination as a result of reorganization in the company which started in November 2003 and ended in March 2004 that in one breath the appellant testified then that some workers’ employments were terminated in November 2003 and that about thirty-eight workers were involved in the March 2004 exercise. In another breath the appellant testified that the appellant had opportunity to put the names of others whose appointments were terminated along with those of the union executives but failed to do so. The respondent contended that prior to the writing of Exhibit C there was no threat of the workers’ jobs and there was no threat of reorganization in the company because the company was running four shifts and was operating in full capacity. The respondent then submitted that the appellant's claim of terminating the employment of the workers in question as a result of reorganization in the company was unfounded. The respondent continued that no letter of termination of appointment would ever indicate that the workers' employments were being terminated for union activities. But that from the circumstances surrounding the termination, this could be inferred, referring to section 9(6)(b) of the Labour Act Cap. 198 LFN 1990. The respondent reiterated that the findings of the IAP on this issue that the employment of the workers in question were terminated for union activities has settled the matter and therefore urged the court to hold that the contention of appellant on this issue was misconceived. On the 3rd issue i.e. whether the IAP was right to have made an award on redundancy, the respondent submitted that the award ran contrary to the findings of the IAP. They submitted that the IAP found that the termination was as a result of the workers’ union activities; therefore, they were wrongly terminated. The respondent argued that the appropriate order to make in accordance with the law is re-instatement, referring to section 9(6)(b)(ii) of the Labour Act and section 42(1(b) of the TDA. The respondent pointed out that in the memorandum, the appellant described the exercise as retrenchment, referring to page 2 paragraph 4 of the appellant’s memorandum of dispute at the IAP. The respondent argued that it was a redundancy exercise that the appellant put up. The respondent then submitted that parties are bound by their pleadings; therefore, the appellant is stopped from changing their case at trail. The respondent urged the court not to disturb the findings of facts of the IAP because the IAP had the opportunity of watching the demeanour of the witnesses. That the IAP, being a court of first instance, saw the witnesses, sifted their evidence and evaluated same, referring to Onu v. Idu (2006) 3 FWLR (Pt. 332) 5581 at 5644 GH. The respondents then urged the court to reject the appellant’s invitation to embark on a voyage of discovery over the settled finding of fact by IAP. The respondent contended that the appeal is vexations, unjustifiable and contradict the weight of evidence at IAP. That the appeal lacks merit and should be dismissed with substantial cost. The respondent (cross-appellant), being dissatisfied with the award of the IAP in part, filed a cross-appeal and claimed as follows- 1. An order setting aside paragraphs 1 and 2 of the final award of IAP made in suit No. IAP/HB/5740 between the present parties before this Court. 2. An order for re-instatement of the seven workers, whose employments were terminated on 17th March, 2004 3. An order for payment of salaries and other emoluments of the affected workers up till the date of the determination of this suit by this court. 4. Such further or other order(s) as the court may deem fit to make in the circumstance. The cross-appellant proffered two issues for determination on the cross-appeal, which are- 1. Whether the termination of the seven workers' employment on 17th March 2004 was connected with union activities. 2. Whether the IAP was right in making redundancy award. Arguing the 151 issue, the cross-appellant submitted that because one Mr. Awobifa, one of the cross-appellant's witnesses at the IAP, testified that he earlier discussed unionization of the workers in the appellant's company with a management staff of the cross-respondent company in person of Mr. Muktar and that Mr. Muktar admitted this in evidence, it means that the cross- respondent was aware of the existence of the union in the company before 17th March, 2004. They also pointed out that at the IAP it was in evidence that Mr. Muktar's attention was drawn to a copy of Exhibit C, which was pasted on the company's notice board after the seven workers' appointments were terminated. They then asked for the person who pasted the letter at that time if there was actually no union in the company before the incident happened. That the only conclusion is that a branch union was in the company before the workers were terminated. The cross-appellant pointed out further that one Mr. Ufoh, a witness of the cross-appellant, who was also one of those affected by the termination, testified at the IAP that after receiving Exhibit C, the Personnel Manager of the cross-respondent called him with 3 others whose names were on the exhibit as executives of the union and who were in the same shift and warned them against union activities and in fact advised them to stop it because that was the only way that the company will be happy with them. That after this unheeded warning; the workers' employments were terminated. The cross-appellant argued that all these facts were not controverted by the cross-respondent. They submitted that the cross-respondent had knowledge that a trade union was already formed in the company before 17/3/04. The cross-appellant pointed out that the cross-respondent's misgiving was that the branch union as an illegal one because it was not properly formed. That the cross-appellant only tried to gatecrash to unionize their worker which was unlawful. That the management was not carried along in the unionization after the initial contact. They conceded to the fact that the cross-respondent was at liberty to so complain against the procedure but submitted that membership of trade union in a company is a question of fact, referring to Management Joki v. Union of Shipping, Clearing and Forwarding Agencies Workers of Nigeria in resolving the issue. The cross-appellant pointed out that it was in evidence that the workers terminated were members and even executives of a branch union before the termination; therefore, no matter how plausible the complaint of the cross-respondent on the procedure of the unionization is, this court had earlier held in the case of NUPCE v. Kwara Stale Utility Board Suit No. NIC/1/90 that management should not act as midwife for the union. They submitted that after the initial information of intention to unionize the workers was passed to the management, the union is at liberty to form its branch union in the company with or without carrying the management along. They submitted that in such instance the company is obliged to grant the union recognition and not to pose obstacles on the union's way. The cross-appellant pointed out that it was in their evidence at the IAP that when Mr. Ufoh informed Mr. Awobifa on how the management intimidated the branch executive officers of the union, Mr. Awobifa tried to see Mr. Muktar on 16th March, 2004 but Mr. Muktar had instructed his secretary not to allow Mr. Awobifa into his office as a result of which Mr. Awobifa had to give a copy of exhibit C to the company's security. That Mr. Awobifa later called Mr. Muktar and bore his mind to him on the issue. He also reminded Mr. Muktar of the introduction of the, union and its executives to the management on 18th March, 2004. The party went further to state that Mr. Muktar assured him. (Awobifa) that there would be no problem. The cross-appellant then submitted that tile cross-respondent was aware of the branch union and its officers before 17th March, 2004 and that the termination on that day was specifically targeted at the union executives whose names appear on Exhibit C. They submitted that the termination was no doubt for union activities. The cross-appellant pointed out that Exhibit M. Yusuf 1M tendered at the IAP by the cross-respondent, are letters of termination of appointment of the seven union executives as contained in Exhibit C. They submitted that the termination was to victimize the union executives but not for any reorganization at all. On the second issue i.e. whether the IAP was right to have made award on redundancy, the cross- appellant submitted that the award was against the findings of fact and weight of evidence at the IAP. They submitted that the termination in question was not for redundancy but as a result of union activities of the workers whose employments were terminated. They submitted that redundancy means an involuntary loss of job as a result of excess manpower in the establishment, referring to section 20(2) of the Labour Act. They submitted that the reorganization reason given by the cross-respondent for these terminations was a convenient alibi to confuse the court or to misrepresent the facts before this court which the cross-respondent could not even sustain. That even if the cross-respondent had sustained it, the termination would still have been wrong because they did not follow the proper procedure for such termination as laid down in section 20 of the Labour Act. The cross-appellant pointed out that prior to the termination; the workers were not informed of the re-organization and the extent of the redundancy. That the principle of "last in first out" was not adopted neither did the cross- respondent negotiate redundancy payment with the workers. That all these steps are mandatory before any worker's employment is terminated for reorganization/redundancy under section 20 because the word "shall" is used. The cross-appellant submitted that even if the seven workers in question were declared redundant as a result of which their employments were terminated, such re-organization was done in breach of section 20; therefore, the exercise amounts to a nullity, referring to Hotel & Personnel Services Senior Staff Association v. Owena Hotels Ltd Akure  3 NLLR (Pt.. 7) 163. They urged the court to declare the termination a nullity, The cross- appellant submitted that whenever a redundancy exercise was declared a nullity, the appropriate order to make is re-instatement, citing Mix & Bake v. NUFBTE  NLLR (Pt. 2)25l. They also submitted that when a termination is found to be for union activities, the court ought to order re-instatement, referring to section 9( 6)(b )(ii) of the Labour Act and section 42(1 )(b) of the TDA, and NUFBTE v. Cocoa Industries Ltd, lkeja  3 NLLR (Pt. 8) 206. The cross-appellant then urged the court to order re-instatement of the affected workers with consequential order of payment of their salaries and emoluments up till judgment is delivered in accordance with the letter and spirit of section 9(6)(b)(i)(ii) of the Labour Act. In their brief of argument, the cross-respondent submitted that they had no knowledge of any union in their plant as at 17th March, 2004 and that there was no admissible evidence at the IAP to contradict that, hence, they did not terminate the workers’ employments for union activities. They submitted that they terminated the workers’ employments on 17th March, 2004 in exercise of their power as an employer who has the right to hire and fire, citing Ajayi v. Texaco Nigeria Limited  3 NWLR (Pt. 62) 581. They submitted that since the ex-workers have accepted their terminal benefits, the terminations have become mutual. Hence they can no longer complain about the benefits, referring to the case of John Holt Ventures Limited v. Oputa  9 NWLR (Pt. 470) 101. They submitted that the contract of employment between the parties is that of master and servant, that it has no statutory flavor. Therefore, the order of re-instatement of terminated workers cannot be made on it, referring to Chukwumah v. Shell Petroleum Development Company Nigeria Limited  4 NWLR (Pt. 89) 512 – 522 and 560. They submitted that the principle of confidential relationship between master and servant which cannot continue in the absence of mutuality was greatly emphasized in that case. The cross-respondent then submitted that because of the above stated reasons, the retired workers have no re-instatement remedy, because there was no collective agreement between them and the workers. In reply on points of law to the cross-respondent's argument, the cross-appellant pointed out that Mr. Muktar Yusuf's testimony at the IAP, that Mr. Awobifa came to introduce the union to the cross-respondent's plant and that he directed him to the corporate headquarters of the company is an admission against interest, referring to page 20 paragraph 6 of the IAP award and Owie v. Ighiwi  1 SC (Pt. 11) 16 at 21. Therefore, the cross-respondent is stopped from claiming lack of knowledge of the unionization at the material time. They pointed out that Exhibit C was addressed to the Personnel Manager of the cross-respondent company. Since Exhibit C was submitted at the security office of the cross-respondent in the course of business, it is presumed to have been delivered to the Personnel Manager, citing section 149(c) of the Evidence Act. They submitted that the contradictions proffered against their case by the cross-respondent are not material; therefore, the cases cited under this principle are not applicable, referring to Owie v. Jghiwi, supra, and Usiobaifo v. Usiobaifo  1 SC [Pt. 11) 60 at 72. The cross-appellant submitted that on the issue of whether or not tile ex-workers are entitled to any additional salaries and emoluments, having collected their terminal benefits, tile workers did not collect their terminal benefits wilfully as to estop them because they were forced to do so. The cross- appellant submitted that the act of intimidation, victimization, duress applied on the workers before collecting their terminal benefits, rendered the collection involuntary, referring to Shell Petroleum v. Mwanka  1 NLLR (Pt. 2) 401 at 422. They submitted that notwithstanding the collection of their terminal benefits the ex-workers are not precluded from complaining about their unlawful and wrongful termination under section 9(6) of the Labour Act and that such illegality cannot be made right by the workers' collection of their terminal benefits, referring to Milad, Benue State v. Ulegede  5 NLLR (Pt. 11) 1 at 21 - 22 SC. and NITEL Limited v. Ikaro  1 NWLR 350. The cross-appellant in conclusion, urged this court to dismiss the main appeal and give judgment in their favour in the cross-appeal. We have carefully considered all the facts of this dispute including the proceedings before, and the award of, the IAP, the parties' briefs of argument, the documents exhibited and the authorities cited. We must note at once that the submissions of the respondent/cross-appellant in both its reaction to the submissions of the appellant and the prosecution of the cross-appeal are essentially the same and so are largely repetitive. Since the issues in the appeal are essentially the same with those in the cross-appeal, the treatment of one is simply the treatment of the other. We shall, therefore, proceed on this premise. In this regard, therefore, the issues in dispute can be said to be whether the termination of the employment of seven employees said to be union officials was as a result of union activities; if, the answer is in the affirmative, whether they should have been reinstated instead of being awarded redundancy payments as the IAP did. To the appellant, however, the issue is simply whether its right to terminate can be qualified by the fact of union activities, that is if it can be said that, to its knowledge, a union did exist within its workforce at the time of the termination. In the determination of the matter at hand, the first issue to resolve is the question whether there exist a union, and hence union activity, within the appellant company. The IAP at pages 33 - 34 of its award made important findings in this regard, and we have no reason whatsoever to disturb the said findings. In the words of the IAP- From the facts above, the Tribunal is satisfied that the following had been proved: 1. Management was aware of-the formation of a branch union in the company. 2. The termination of the employment of the affected employees was in connection with union activities. 3. The termination of the employment of the employees was wrongful. From the totality of the submissions of counsel, we agree with the IAP on these findings and so will not disturb same. The argument of the appellant that a union needs to exist to its knowledge before termination can be said to be as a result of union activities is not tenable and is premised on wrong assumptions of the law. In the first place, recognition of trade unions by an employer is compulsory and automatic; and or workers' unions, of which the respondent/cross-appellant is one, compulsory recognition and deduction of check-off dues is the norm regarding workers who are eligible to be members of a union. In other words, eligibility is the yardstick. See sections 5, 16A and 24 of the TUA as amended, section 5 of the Labour Act and the case of Corporate Affairs Commission v. AUPCTRE  1 NLLR (Pt. 1) 1 at 29 - 32. Secondly, because recognition is compulsory and eligibility is the yardstick, once a trade union indicates its willingness to unionize workers who are eligible to be its members, an employer is obliged to accord recognition and not pose obstacles in the way of such unionization. An employer is not expected to throw spanner in the works when a branch union is to be established. The employer is expected to avail the workers the opportunity and all the assistance there is for the smooth take-off of the branch. See the cases of Mix & Bake Flour Mill Industries Limited v. National Union of Food, Beverages and Tobacco Employers (NUFBTE)  1 NLLR (Pt. 2) 247 at 277A and Trans International Bank Plc v. National Union of Banks Insurance & Financial Institutions Employees (NUBIFIE) Suit No. NlC/17/2000 at p. 6. From this statement of principles, once an employer is intimated of the intention to especially establish a branch workers' union (with competent jurisdictional scope) amongst its workforce, the termination of the employment of the workers in tile forefront of establishing the union can be held to be for union activities. We do not, therefore, agree with tile submission of the appellant that termination of the employment of workers can only be for union activities if the union actually exists to its knowledge. We are satisfied that the respondent\cross- appellant intimated the appellant of the formation of a branch union within its company and that the said branch union so exists. This issue settled, the next issue is to determine whether the IAP was then right in the remedies it award in the matter given the findings it made. The award of the IAP is as follows- Based on the position of the law on Remedies, the Tribunal Awards the following: 1. The termination letters issued to the affected employees be withdrawn and letter of redundancy issued to comply with the purported re-organization exercise in the Company. 2. That the affected staff be treated in line with the industry agreement on redundancy and the provisions of the Labour Act Cap. 198. This would include payment of salary and other allowances up to the date of this Award. 3. Management to create enabling environment for already existing union to function. A statement to be issued by Management to this effect in line with the Trade Unions Act. Given the findings of the IAP reproduced earlier, was the IAP right in making these awards? We must point out that the third award flows from the findings and so we have no problem with it. It follows that if the union exists within the appellant, the appellant must create the enabling environment for it to function. We, therefore, hereby affirm the IAP award that – Management [of the appellant must] create the enabling environment for [the] already existing [branch] union [of the respondent/cross-appellant] to function. A statement [is] to be issued by Management to this effect in line with the Trade Unions Act. What remains is whether the IAP was right in making the other two awards wherein the IAP ordered the payment of redundancy to the affected workers. The IAP, citing a number of authorities, reasoned that since the contracts of employment in the present matter were simply those of matter and servant, the prayer for reinstatement by the respondent/cross-appellant cannot be granted. The IAP proceeded on a premise that did not consider the application of section 9(6)(b)(ii) of the Labour Act and 42(1)(b) of the TDA. Although the appellant argued that the termination of the employment of the affected staff was as a result of re-organization, we agree with the funding of the IAP that the termination was for union activities. Redundancy was not prayed for by-the respondent/cross-appellant at the IAP; and so, the IAP should not have made that an issue. What then is the remedy for the termination of an employment where this is found to be for union activities? The provisions of sections 9(6)(b)(ii) of the Labour Act and 42(I)(b) of the TDA come in handy. Section 9(6)(b)(ii) of the Labour Act provides that no contract shall cause the dismissal of, or otherwise prejudice, a worker because of trade union activities outside working hours or, with the consent of the employer, within working hours. And by section 42(l)(b) of the TDA, notwithstanding anything contained in the TDA or in any other law, where any employer locks out his workers, the workers shall be entitled to wages and any other applicable remuneration for the period of lock-out and the period of the lock-out shall not prejudicially affect any rights of the workers being rights dependent on the continuity of period of employment. The combined effect of these provisions is that an employee is entitled to be reinstated where his or her employment has been terminated because of the union activities. See National Union of Food Beverages and Tobacco Employees v. Coca Industries Limited lkeja  3 NLLR (Pt. 8) 206 at 218D, where this court held inter alia that as a matter of principle there are two main instances where the courts generally order re-instatement. The first instance is where employment is statutory and the statutory process for disengagement was not followed; here re-instatement has always been ordered by the courts. The second is where a worker was disengaged for embarking on trade union activities. See also the cases of Mix and Bake v NUFBTE, supra, Chemical and Non-Metallic Products Senior Staff Association v. Benue Cement Co. Plc  2 NLLR (Pt. 6) 446 and Hotel & Personnel Service Senior Staff Association v. Owena Hotels Ltd Akure  3 NLLR (Pt. 7) 163. This court has; however, acknowledged that the remedy for reinstatement is not absolute. In the unreported case of Trans international Bank PIc v. National Union of Banks, insurance and Financial Institutions Employees (NUBIFIE) Suit No. NIC/17/2000 delivered on May 3, 2007, for instance, part of the issues for this court's determination was whether the court has power to order re-instatement or make consequential orders or remedies if an employer before it is adjudged to have breached the law. This court reiterated the fact that it recognized tile fact that time factor may affect the decision to re-instate, but that this is not an absolute proposition. The court found that the appellant in that case did not abide by the process in which termination may be effected as provided for by the conditions of service. The court found that the appellant, therefore, acted in contravention of section 9(6)(i) of the Labour Act. The court held that the termination was wrong and unlawful, hence null and void. It ordered re-instatement of the sacked officers without loss of benefits and salaries. The termination of the employment of the workers in the Trans International Bank Plc case was effected on 17th May, 1996 and that judgment was delivered in May 2007. If this court did not think that eleven years time lag between termination and judgment was too long to have adversely affected the order of reinstatement and payment of salaries and other benefits, we see no reason to depart from that them is to be deducted from what is due to them as salaries/emoluments since their wrongful termination on March 17, 2004. 3 The IAP erred in awarding' redundancy given that none of the parties canvassed for it, neither was there any established evidence on it before the IAP. Judgment is entered accordingly. ------------------------------------- Hon. Justice B.B. Kanyip Presiding Judge -------------------------------------- ------------------------------------- Hon. Justice V.N. Okobi Hon. Justice F.I Kola-Olalere Judge Judge ------------------------------------- ------------------------------------ Hon. Justice O.A. Obaseki-Osaghae Hon. Justice J.T. Agbadu-Fishim Judge Judge.