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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD DATE: APRIL 15, 2015 SUIT NO. NICN/LA/308/2013 BETWEEN Samson Kehinde Akindoyin - Claimant AND Union Bank of Nigeria Plc - Defendant REPRESENTATION Prince S. K. Lawal, for the claimant. F. O. Ogungbemi, Opeyemi Usiola-Kuti, Mrs. O. M. Ale-Daniel, Miss Anyalewa Onoja, Mrs. Odunola Jegede, Mr. O. A. Omotoso, Mr. A. A. Onibokun and Mrs. Aduratola Adekoya, for the defendant. JUDGMENT The claimant took up a complaint against the defendant dated and filed on 10th June 2013. By the complaint and its accompanying statement of facts dated 5th June 2013, the claimant is praying for the following reliefs – 1. A declaration that the purported dismissal of the claimant by the defendant vide a letter of dismissal dated 19th April 2013 is unlawful and, therefore, null and void having not complied with his conditions of service as a senior staff in the employment of the defendant. 2. An order reinstating the claimant to his position as officer Grade 1 in the service of the defendant without any loss of salaries, perquisites and promotions. Accompanying the complaint and statement of facts are the list of witness, written statement on oath, list of documents and copies of the documents marked as Exhibits C1 – C8. In reaction, the defendant entered formal appearance and then filed its memorandum of appearance, statement of defence, list of witness(es), witness deposition oath, list of documents and a copy of the single document frontloaded and marked Exhibit D1. The claimant reacted by filing his reply to defence and additional list of exhibits, but with no accompanying exhibits. At the trial, the claimant testified on his own behalf as CW, while Mike Olurotimi Komolafe, a banker and Head, Teller Operation, Oba Adesida Branch, Akure testified for the defendant as DW. At the close of trial, parties were asked to file and serve their respective written addresses starting with the defendant. The defendant’s written address is dated and filed on 16th July 2014, while that of the claimant is dated 29th July 2014 but filed on 7th August 2014. The defendant’s reply on points of law is dated 18th September 2014 but filed on 19th September 2014. CLAIMANT’S CASE The case of the claimant is that he was employed by the defendant as a clerk in 1983 vide Exhibit C1 and he eventually rose to the position of Officer 1 vide Exhibit C2 with effect from 1st November 2006. For 30 years he served meritoriously, loyally and sincerely in various branches of the defendant bank with accolades and without any query or warning. On 28th January 2013, he was suspended by the defendant for what was described as “alleged involvement in fraudulent credit transfer valued at N350 Million” (Exhibit C4). That in all explanations both oral and written at the Inspectorate Department of the defendant bank and with the EFCC operatives he asserted his innocence and his utmost duty of care and that he had not committed any iota of infraction. To the claimant, his guilt has not been established as he has not been charged to any court or tribunal for the said “alleged involvement in fraudulent credit transfer valued at N350 Million” but he was unlawfully dismissed by the defendant vide a letter dated 19th April 2013 but with “effect from 22nd April 2013 for gross misconduct” (Exhibit C5). The claimant went on that his terms and conditions of service are amplified in the subsisting main collective agreement between the Nigerian Employers’ Association of Banks, Insurance & Allied Institutions (NEABIAI) and the Association of Senior Staff of Banks, Insurance & Financial Institutions (ASSBIFI) – Exhibit C6. That this collective agreement defines clearly six infractions which constitute “gross misconduct” which would attract dismissal from service and that he has not committed any of the infractions listed therein. The claimant also tendered the bank statement of account of God’s Will Great Commodity Nig Ltd as Exhibit C7 through which the said N350 Million credit was transferred. To the claimant, from the totality of the evidence before the Court he did not know and did not do or fail to do anything about the fraudulent transfer of the sum of N350 Million to the account of God’s Will Great Commodity Resources Nig Ltd as shown in Exhibit C7. That both the claimant and DW (Mike Komolafe), therefore, not being aware that credit transfer was fraudulently done did approve the respective withdrawals of N146 Million in cheques and N10 Million in cash out of the credit transfer. That both he and DW were alerted after the Internal Control Department of the defendant discovered the manipulation; and that while the claimant was unlawfully dismissed after 30 years of unblemished service, DW was warned and his promotion delayed for one year. DEFENDANT’S CASE The defendant’s case is that the claimant was its employee until 22nd April 2013 when he was summarily dismissed for negligence on account of his involvement in clearing nine cheques used in the fraudulent withdrawal of the total sum of N146,000,000.00. It is accordingly not liable to the claimant for any of the reliefs he seeks. The defendant then urged the Court to note that although the claimant filed a reply to its statement of defence, the claimant did not file any further witness statement on oath in respect of the facts pleaded therein. Accordingly, that all facts pleaded therein are in law deemed abandoned and so go to no issue. DEFENDANT’S SUBMISSIONS The defendant formulated three issues for the determination of the Court, namely – 1. Whether the claimant was negligent in his service to the defendant. 2. Whether the defendant can dismiss the claimant as it did. 3. Whether the claimant is entitled to the reliefs sought. Regarding issue 1, the defendant submitted that the claimant has not even established his case that his dismissal was in breach of the rules and conditions of service governing his relationship with the defendant and so wrongful. That although the claimant tendered and referred to Exhibit C6 as the rules and conditions of service governing his relationship with the defendant, he, however, clearly admitted under cross-examination that Exhibit C6 was not the collective agreement in force as at the time of his dismissal. That the only lucid deduction to be made from this is that Exhibit C6 has been done away with by parties and has been replaced by another, which the claimant did not supply to the Court. The defendant accordingly submitted and urged the Court to hold that Exhibit C6 is not the claimant’s contract of service, which is applicable and required in this instance by the Court in determining the rules and conditions of service governing his relationship with the defendant. The defendant continued that it is trite that where there is a document incorporating the terms and conditions of service, the Court cannot look outside of the terms of the document in determining the rights and obligations of the parties, referring to Ibama v. Shell Petroleum Development Company (Nig.) Limited [2005] 17 NWLR (Pt. 954) 364 at 379. That the onus is on the claimant, not the defendant, to establish his claims by placing the material evidence of the terms of his contract of service, allegedly breached, before the Court. That he who asserts must prove, citing Adeniji v. Onagoruwa [2000] 1 NWLR (Pt. 639) 1 at 29. To the defendant, till his case was closed, the claimant did not furnish the Court with the operative rules and conditions governing his relationship with the defendant, neither did he tender any other document regarding the terms of his contract of service. That this failure on the part of the claimant must be taken as fatal to his claims, referring to Afribank (Nig.) Plc v. Osisanya [2000] NWLR (Pt. 642) 598 at 616. In any event, that the evidence before the Court shows that the claimant was negligent in the performance of his duties as the defendant’s Head of Operations as the claimant would not have cleared the cheques in the first place if he had been diligent in the performance of his duties in monitoring the cash level of the account involved. That Exhibit C3 highlights fraud detection and prevention as one of the duties of the claimant as Head of Operations, a duty the claimant acknowledged even under cross-examination. To the defendant, the claimant’s admission as to his duty is tantamount to an admission of failure in discharging same since he could not prevent the fraudulent process of 9 cheques amounting to N146,000,000.00 and to even detect fraud. That the implication is that the fraud that started from the claimant’s desk would have gone undetected if the Internal Control Department of the defendant’s Lagos branch did not detect it 4 days later. That the fact that fraud was detected at all, and by sources far away from the claimant’s Akure branch, is a further indicator of the claimant’s dereliction of duty and takes the bottom off any excuse insinuated on his behalf that he could not have prevented or detected the fraud. That the claimant owes a duty of care to pervert and detect fraud, which duty he breached, the bank being lucky that the fraud was detected on time. That this breach of duty is an erosion of the trust and confidence reposed in him by the defendant, referring to Yusuf v. Union Bank [1996] 6 NWLR (Pt. 457) 632 at 648, and urging the Court to decide this issue in favour of the defendant. On issue 2 i.e. whether the defendant can dismiss the claimant as it did, the defendant submitted that as an employer it has the unfettered right to dismiss an employee for good or bad reason or for no reason at all, referring to Chukwumah v. Shell Petroleum [1993] 4 NWLR (Pt. 289) 512 at 560. That based on the arguments advanced in respect of issue 1, the defendant lawfully determined the claimant’s employment, referring to Chukwumah v. Shell Petroleum, NEPA v. Eboigbe [2009] 8 NWLR (Pt. 1142) 150 at 162 and Mobil Oil Ltd v. Assan [2003] 6 NWLR (Pt. 816) 319. The defendant referred the Court to section 11(5) of the Labour Act Cap. L1 LFN 2004 and then submitted that all the law requires for either party to terminate the contract is the presence of “such conduct by the other party as would have enabled him to so treat it”. Meanwhile, that the Court should note that the only complaint alleged by the claimant against the defendant is that he was dismissed contrary to the terms of Exhibit 6 in that he did not commit any of the infractions referred therein. To the defendant, there is, therefore, no issue or dispute between the parties as regards whether or not he was given the opportunity of defending himself against the allegation for which he was dismissed, referring to paragraphs 3(h) and (k) of the statement of facts, 4(h) and (k) of the claimant’s deposition, 11 and 12 of the statement of defence and 11 and 12 of DW’s deposition. That the Court is accordingly confined to the issue in contention and is only required to determine whether the claimant breached the terms of contract to warrant his dismissal, referring to Gbagarigha v. George [2006] 1 NWLR (Pt. 953) 163 at 182. That Exhibit C6 is not the contract of service of the claimant and so is not enforceable as held in Afribank (Nig.) Plc v. Osisanya [2000] NWLR (Pt. 642) 598 at 613. That even if the Court accepts Exhibit C6, there is nothing in it which impugns the defendant’s exercise of the defendant’s right to dismiss the claimant particularly as the claimant failed to perform the duties assigned to him. In any event that Exhibit C6 as a collective agreement is not enforceable except where same has been adopted as part of the terms of employment, referring to Afribank (Nig) Plc. Osisanya (supra). That there is no evidence before the Court to show that Exhibit C6 was adopted as forming part of the contract of service or even signed by the claimant. Without more, that the claimant cannot claim any benefit under Exhibit C6. The defendant then urged the Court to dismiss this suit in its entirety and award substantial cost in favour of the defendant. Regarding issue 3 i.e. whether the claimant is entitled to the reliefs sought, the defendant submitted that a claimant who is seeking a declaratory relief must succeed on the strength of his case and not on the admission or weakness of the defendant’s defence, referring to Bello v. Eweka [1981] 1 SC 101 and Adeniji v. Onagoruwa (supra) at 34 – 35. Referring to Mobil Oil Ltd v. Assan (supra) at 319, which held that an employee cannot be forced on an employer, Garuba v. KIC Ltd [2005] 5 NWLR (Pt. 917) 180, Afribank (Nig.) Ltd v. Osisanya (supra) at 615 and Eze v. Spring Bank Plc [2011] 18 NWLR (Pt. 1278) 113 at 131 – 132, the defendant submitted that the claimant is not entitled to an order of reinstatement or to salaries, perquisites or any entitlement as claimed. In conclusion, the defendant urged the Court to hold that the claimant is not entitled to the reliefs he seeks and that this action is baseless and a waste of the precious time of the Court; as such, the case should be dismissed with substantial cost against the claimant. CLAIMANT’S SUBMISSIONS In reaction, the claimant identified one issue for the determination of the Court i.e. whether the claimant committed any of the six infractions specified in Exhibit C6 to justify his dismissal for gross misconduct. That Exhibit C6 defines ‘gross misconduct’ to include – a) Proven cases of theft, fraud, dishonesty, defalcations, irregular practices in respect of cash, vouchers, records, returns, customer’s account or foreign exchange transactions. b) Willful disobedience of a lawful order or serious negligence. c) Drunkenness or taking drugs, other than for medical reasons, rendering the employee unfit to carry out his or her duties. d) Divulging confidential information in breach of “Declaration of Secrecy”. e) Conviction for a criminal offence. f) Prolonged and/or frequent absence from work without leave or reasonable cause. The claimant then referred to Jirgragh v. UBN [2001] 2 NWLR (Pt. 696) 11 at 27, which “held that to justify an instant dismissal of an employee must be something done by the said employee which implied by or expressly is a repudiation of the fundamental terms of the contract”. The claimant proceeded to submit that where the termination or dismissal of an employee is based on allegation of the commission of a criminal offence by the employee, the employee’s appointment cannot be terminated in any matter without first establishing the criminal culpability or otherwise of the employee, referring to Shuaibu v. UBN Plc [1995] 4 NWLR (Pt. 388) 178 and Sapara v. UCH Board of Management [1988] 4 NWLR (Pt. 86) 58. To the claimant, the fact that he was not officially queried or charged to Court for any criminal offence, the defendant cannot be said to have lawfully dismissed him from service. That this is a fortiori when DW himself admitted having solely approved the withdrawal of N10 Million cash because he did not know (just like the claimant did not know) that the N350 Million credit transfer was fraudulently manipulated. Furthermore, that where parties in a contract of employment have reduced their terms and conditions of service into agreement, the conditions must be observed, referring to NOM Ltd v. Daura [1996] 8 NWLR (Pt. 468) 601 at 607. In respect of Exhibit C6, which is the collective agreement agreed upon by both parties to this suit, the claimant submitted that the courts have always held that collective agreement will be binding on parties having been incorporated or embodied into the conditions of contract of service, referring to ACB Plc v. Nwodika [1996] 4 NWLR (Pt. 443) 470 at 487 and Chukwumah v. Shell Dev. Co. Ltd [1993] 4 NWLR (Pt. 259) 512 at 543. That the six conditions specified in the collective agreement (Exhibit C6) are clear and unambiguous and the claimant has not violated any of them to warrant his purported dismissal. In conclusion, the claimant urged the Court to grant the reliefs he seeks. DEFENDANT’S REPLY ON POINTS OF LAW On the claimant’s submission that he was not officially queried or charged to court for any criminal offence, the defendant submitted that the claimant got the law wrong. That the correct position of the law is that it is not necessary, or is it the requirement of law, for an employee who is accused of gross misconduct involving any element of criminality to be tried in a court of law or convicted therein before he is summarily dismissed by the his employer, referring to UBN v. Chinyere [2010] 10 NWLR (Pt. 1203) 453 at 474 and Olanrewaju v. Afribank (Nig.) Plc [2001] 13 NWLR (Pt. 731) 691. That it is not in every case where an employee is accused of misconduct based on criminality that he must be arraigned before a court on a criminal charge before disciplinary action can be taken against him. That once the offence committed by an officer is within the domestic jurisdiction of the employer/department, disciplinary action in such case can be taken without recourse to criminal charge in the court, citing Uzoho v. Task force, Hospitals Mgt. [2004] 5 NWLR (Pt. 867) 627. Moreover, that nowhere was it stated in Shuaibu v. UBN [1995] 4 NWLR (Pt. 388) 173 relied upon by the claimant that the culpability of the dismissed employee must be proven in a court of law before his employer can dismiss him. In any case, that the argument of the claimant in that regard is totally irrelevant in the face of clear, uncontroverted evidence of Exhibit C5, which states that the claimant was dismissed for gross misconduct. That nowhere in the said letter of dismissal was the commission of crime stated as the reason for the claimant’s dismissal. That the claimant’s dismissal was not for defrauding the bank but for negligence and dereliction of duty in failing to prevent and detect fraud. And since UBN v. Ogboh [1995] 2 NWLR (Pt. 380) 647 defined misconduct to mean an act that would undermine the interest of the employer, the claimant’s inability to prevent and detect the fraud that occurred under his watch undermined the interest of the defendant and so constitutes an act of misconduct for which the defendant could summarily dismiss him without recourse to a court. As to the argument of the claimant that courts have held collective agreements to be binding on parties having been incorporated or embodied into the conditions of service, the defendant submitted that the claimant failed to show that Exhibit C6 was adopted as part of the conditions of service or that he was entitled to claim or take benefit under it. That the law is that only a member of a union is entitled to claim or take benefit under a collective agreement; and the claimant did not plead or establish his membership of any trade union or his right to take benefit under the collective agreement, referring to UBN v. Chinyere (supra) at 472, Texaco Nig. Plc v. Kehinde [2002] 6 NWLR (Pt. 708) 224 and ACB Plc v. Nbisike [1995] 8 NWLR (Pt. 416) 725. For this reason, the defendant urged the Court to hold that the claimant cannot take the benefit of the collective agreement as he did not even show membership of the signatory union to the collective agreement. In conclusion, the defendant urged the Court to discountenance the claimant’s final written address and to hold that the claimant has failed to establish his case in its entirety and so is not entitled to any of the reliefs claimed. COURT’S DECISION I heard learned counsel and considered all the processes filed in this suit. The sole issue before the Court is whether the claimant has proved his case. By Ziideel v. RSCSC [2007] 3 NWLR (Pt. 1022) 554 SC, an employee who complains that his employment has been wrongfully terminated has the onus to – (a) place before the Court the terms of the contract of employment, and (b) prove in what manner the said terms were breached by the employer. The case went on that it is not the duty of the employer as a defendant to prove any of these facts. See also Morohunfolu v. Kwara Tech. [1990] 4 NWLR (Pt. 145) 506 SC, Ningi v. FBN Plc [1996] 3 NWLR (Pt. 435) 220 CA, Katto v, CBN [1999] 6 NWLR (Pt. 607) 390 SC, Adams v. LSDPC [2000] 5 NWLR (Pt. 656) 291 CA, Igbinovia v. UBTH [2000] 8 NWLR (Pt. 667) 53 CA, Taduggoronno v. Gotom [2002] 4 NWLR (Pt. 757) 453 CA, Okoebor v. Police Council [2003] 12 NWLR (Pt. 834) 444 SC, Ibama v. SPDC (Nig.) Ltd [2005] 17 NWLR (Pt. 954) 364 SC, Nigerian Gas Co. Ltd v. Dudusola [2005] 18 NWLR (Pt. 957) 292 CA, WAEC v. Oshionebo [2006] 12 NWLR (Pt. 1994) 258 CA and UBN v. Chinyere [2010] 10 NWLR (Pt. 1203) 453 CA. The recent Supreme Court decision in Bukar Modu Aji v. Chad Basin Development Authority & anor [2015] LPELR-24562(SC), the judgment of which was delivered on 27th March 2015, is even more reinforcing in holding (per Peter-Odili, JSC who delivered the lead judgment) that waving the flag of a breach of the constitutional right to fair hearing does not provide any saving grace once the conditions of service are not pleaded and brought before the Court by a claimant who is complaining of wrongful termination of or dismissal from employment. In other words, the claimant must first plead and prove his conditions of service before any talk of breach of fair hearing can even be entertained. The conditions of service is accordingly a sine qua non in any claim for wrongful dismissal or termination; for only the conditions of service can be used to determine the wrongfulness or otherwise of the dismissal or termination. Now, at the risk of repetition, the claimant seeks the following reliefs – 1. A declaration that the purported dismissal of the claimant by the defendant vide a letter of dismissal dated 19th April 2013 is unlawful and, therefore, null and void having not complied with his conditions of service as a senior staff in the employment of the defendant. 2. An order reinstating the claimant to his position as officer Grade 1 in the service of the defendant without any loss of salaries, perquisites and promotions. In relief 1, the case of the claimant is that his dismissal did not comply “with his conditions of service as a senior staff in the employment of the defendant”. Did the claimant place before the Court his conditions of service? This is the key question, which the defendant answered in the negative. What the claimant placed before the Court as the conditions of service that governs his employment is Exhibit C6, the main collective agreement between NEABIAI and ASSBIFI. Advancing the twin grounds of Exhibit C6 not being the collective agreement in force as at the time of the claimant’s dismissal and that the claimant cannot in any event even take the benefit of the collective agreement as he did not even show membership of the signatory union to the collective agreement, the defendant submitted that the claimant cannot rely on Exhibit C6 in proving his case. The law as to the applicability of a collective agreement to an employee, and indeed the extent to which an employee can rely on one, was succinctly addressed by this Court in Aghata N. Onuorah v. Access Bank Plc unreported Suit No. NICN/ABJ/30/2011 the judgment of which was delivered on December 15, 2014. Given the critical nature of the holding of the Court in that case, I crave the indulgence to quote extensively from it. In the words of this Court – Now, from these provisions the claimant contended that the defendant conceded or admitted that it paid the redundancy benefit in line with the collective agreement; as such the duty of the Court is to ascertain whether the redundancy benefits was actually in line with the agreement reached with ASSBIFI. From this too, that the only live issue regarding the claimant’s entitlement to this head of relief is for this Court to ascertain from the evidence before it that what the defendant paid as redundancy benefits is in line with the said collective agreement. On this score, the claimant went on to distinguish the cases of Gbadegesin v. Wema Bank Plc [2012] NLLR (Pt. 80) 274 NIC and Nestoil Plc v. NUPENG [2012] 29 NLLR (Pt. 82) 90 NIC cited by the defendant. To the claimant, though the defendant pleaded that she was not a financial member of ASSBIFI, it nevertheless conceded that it paid the claimant in line with the agreement which it reached with ASSBIFI. This to the claimant suffices to entitle her to payment for redundancy under the collective agreement and so it is for the Court to determine whether what the defendant claimed to have paid the claimant as the gratuity benefits was, in actual fact, in line with the said collective agreement. I think the claimant misunderstands the rule sought to be applied by the defendant here. The rule that a party seeking to rely on a collective agreement must show evidence of membership of the trade union that entered into the collective agreement is one analogous to the privity rule in the general law of contract. Membership of a trade union carries with it benefits and burdens. One such burden is the payment of check-off dues. It is in this sense that Habu v. NUT Taraba State [2005] 4 FWLR (Pt. 283) 646 held that the deduction from salaries and wages as check-off dues of a worker and the remittance of same to a trade union is an incidence of membership of the worker. A person who refuses to join a trade union and so does not pay check-off dues cannot in the end seek to rely on it for a benefit. As a senior staff, the law is (and the defendant cited a number of authorities in that regard) that the employee is not assumed to be a member of the trade union. He/she has to “opt in”, individually and in writing (unlike junior staff who are deemed members and so can only “opt out”; for here, deduction of check-off dues is not based on membership but on eligibility – see Udoh v. OHMB [1990] 4 NWLR (Pt. 142) 52). The claimant in the instant case is a senior staff. She must show membership of ASSBIFI in order to benefit from Exhibit E, the collective agreement. That the defendant made payments to her on the basis of Exhibit E does not mean that thereby she automatically became a member of ASSBIFI as to be entitled to have the benefits from Exhibit E enforced by this Court. She still has to show membership of ASSBIFI in order to be so entitled. In other words, payment under a collective agreement to one who is not a member of the trade union which signed the collective agreement does not and cannot thereby (and by that fact alone) legitimize the non-member as one who can benefit or enforce a benefit from the collective agreement. In fact, where the person in question does not show evidence of membership of the trade union in question, that the fact of unionism is pleaded and not denied is not sufficient to clothe the toga of membership of the trade union and hence entitlement to benefits from the collective agreement entered into by the trade union. In other words, a deemed admission or even a direct admission itself in pleadings does not and cannot confer membership of a trade union. This is because the party making or being deemed to make the admission is not competent to and so cannot bequeath membership of a trade union on an employee. The issue whether or not an employee is a member of a trade union is essentially one of law given the current state of our trade union law; and so it cannot simply, without more, be bestowed by a third party such as the defendant in this suit. The issue here is that for non-members of a trade union, the collective agreement in question is not enforceable against them. As such, a party or parties in a suit cannot by admission make enforceable that which is unenforceable ab initio. In the eyes of the law a non-member cannot enforce to his benefit a collective agreement entered into by a trade union that he is not a member of; neither can he have it enforced against him. Even an admission by a defendant as the claimant argues in the instant case cannot thereby give legitimacy to a non-member. Actual proof of membership is the key to recovery under a collective agreement. Proof of that membership of a trade union has to be by direct documentary evidence. It is in this sense that Habu v. NUT Taraba State must be understood when it held that the deduction of check-off dues from salaries and wages of a worker and the remittance of same to a trade union is an incidence of membership of the worker. Even at this, the worker must by direct documentary evidence prove that such deduction of check-off dues and remittance of same to the trade union was done if his fact of membership of the trade union is to be held as established by a Court of law. In the instant case, therefore, as the claimant did not prove her membership of ASSBIFI, she cannot rely on it to claim redundancy. Even the evidence of the claimant under cross-examination as to her membership of ASSBIFI is not sufficient to so prove her membership. In paragraph 37 of her sworn deposition, the claimant had stated that she is a beneficiary of the collective agreement. Under cross-examination, the claimant testified that she paid her membership dues. She went on that the bank paid check-off dues in bulk for all members of ASSBIFI; and that the bank deducted check-off dues at source, but the deduction at source was not reflected on employees’ pay-slips. However, the claimant continued that she does not know how much the bank was deducting as check-off dues. She acknowledged that she did not advise her employer that she is a member of ASSBIFI; and that it will surprise her to know that no check-off were deducted from her salary by her employer. I indicated that earlier that a senior staff must individually and in writing opt to join a trade union before a valid membership of the trade union can be said to have been established. See CAC v. AUPCTRE [2004] 1 NLLR (Pt. 1) 1 NIC. The claimant in the instant case, as senior staff, acknowledged that she did not advise her employer that she was a member of ASSBIFI. On what (legal) basis then did the defendant make the deduction of check-off dues that the claimant claims was made? I reiterate that the claimant failed to prove her membership of ASSBIFI in order to have Exhibit E enforced in her favour. Exhibit E, the collective agreement upon which the claimant accordingly claims redundancy payment, remains unenforceable as against her; and I so find and hold. The claim for redundancy, therefore, fails and is hereby dismissed. I looked through the claimant’s pleadings and I find no paragraph wherein the claimant pleaded that he is a member of a trade union, ASSBIFI in this instance or that he is a fee paying member of ASSBIFI in order to take the benefit or advantage of Exhibit C6. So when the claimant argued in his written address that the he did not commit any of the six infractions specified in Exhibit C6 to justify his dismissal for gross misconduct (in fact this was the lone issue framed by the claimant for the determination of the Court), the claimant actually had no basis for this argument since he has not shown to this Court the basis for claiming the benefit of Exhibit C6. The claimant could not even show to this Court that Exhibit C6 was incorporated into his employment contract. It is accordingly, my finding and holding that the claimant failed to place before this Court the terms and conditions of his employment; and so has not shown to the Court the way and manner the terms and conditions of his employment were breached by his employer. On this score, the claimant has failed to prove his case. His case lacks merit and so should be dismissed. The claimant had also argued that he was dismissed without him being charged to court and so his dismissal is thereby wrong and unlawful. This argument of course goes to no issue as it misrepresents the law. The law as stated in Arinze v. FBN Ltd [2004] 12 NWLR (Pt. 888) 663 SC is that in statutory as well as private employment, the employer can dismiss an employee where the accusation against such employee is of gross misconduct involving dishonesty bordering on criminality, and in such a case it is not necessary or required under section 36(1) of the 1999 Constitution that an employee must first be tried in a court of law. It is, therefore, erroneous to contend that once crime is detected, the employer cannot dismiss the employee unless he is tried and convicted first. See also Olarenwaju v. Afribank (Nig.) Plc [2001] 13 NWLR (Pt. 731) 691 SC, ATA Poly v. Maina [2005] 10 NWLR (Pt. 934) 487 CA and UBN v. Chinyere (supra). Aside from all of this, case law as shown by Ajayi v. Texaco Nig. Ltd [1987] 3 NWLR (Pt. 62) 577 SC is that there is no fixed rule defining the degree of misconduct that will justify a dismissal of an employee; it is enough if the conduct is grave and weighty as to undermine the confidence reposed in him by the employer. Furthermore, that where an employee is working against the deep interest of his employer, this amounts to gross misconduct entitling the employer to dismiss the employee irrespective of the conditions of service. I went through Exhibit D1, the question and answer session between the defendant and the claimant on the issues that led to his dismissal. To question (b) at page 4 of Exhibit D1, “What steps did you take before you confirmed the transaction”, the claimant answered: “Customer was called through the account officer Mr. Oyebade C. before confirmation after checking the balance on the account. Though the Statement of Account was not going, hence we are unable to view the statement”. At page 5 of Exhibit D1, to the question, “Did you check the account balance and statement of account of the customer before you confirmed the transaction”, the claimant answered: “We checked the Account balance but the statement was not going for printing that time”. At page 8, when the claimant was confronted with the fact that as at 9th January 2013 the claimant had stated that he confirmed the balance on the said account to be about N400 million but that the actual balance was N161.57 million, the claimant answered that this means that the balance sheet of 9th January 2013 was not properly done. All of these answers by the claimant show that all needed to be done before confirming the availability of funds for payment was not done by the claimant in the instant case; and this amounts to negligence of duty sufficient enough to undermine the confidence of the defendant in the claimant. UBN Ltd v. Ogboh [1995] 2 NWLR (Pt. 380) 647 SC defined gross misconduct as conduct of a grave and weighty character as to undermine the confidence which should exist between the employee and his employer. By Osagie v. NNB Plc [2005] 3 NWLR (Pt. 913) 513 CA, where an act amounts to gross misconduct, the employee is liable to summary dismissal whether or not it is covered by any of the provisions of a collective agreement. And by Nig. Arab Bank Ltd v. Shuaibu [1991] 4 NWLR (Pt. 186) 450 CA, an employee’s measuring up to standard is not confined to his efficiency at work; it includes a commitment to safeguard the interest of his employer, minimize financial losses and maintaining the reputation and goodwill of the establishment. I accordingly find no reason advanced by the claimant to disturb the fact of his dismissal by the defendant; and I so hold. I held earlier that the claimant cannot rely on Exhibit C6, the collective agreement; and I have also just held that there is no satisfactory reason before the Court to disturb the fact of the dismissal of the claimant. I only need to add here that even if the claimant’s argument that the defendant in dismissing him did not base the dismissal on any of the grounds of misconduct listed in Exhibit C6 were to hold, that argument will not sail. This is because by Osagie v. NNB Plc [2005] 3 NWLR (Pt. 913) 513 CA, where an act amounts to misconduct, the employee is liable to summary dismissal whether or not it is covered by any of the provisions of a collective agreement. It was further the argument of the claimant that it was both himself and DW (Mike Komolafe), not being aware that credit transfer was fraudulently done, did approve the respective withdrawals of N146 Million in cheques and N10 Million in cash out of the credit transfer. That it was both of them that were alerted after the Internal Control Department of the defendant discovered the manipulation. The claimant then asserted that while he was unlawfully dismissed after 30 years of unblemished service, DW (Mike Komolafe) was only warned and his promotion delayed for one year. The point to note here is that except for a claim for unfair labour practice where comparison may be essential (which is not the case of the claimant in the instant case), a claimant must build his case on his own right/entitlement, not on the right/entitlement of another. On the whole, I find no merit in the claimant’s case. The case is accordingly dismissed. Judgment is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip, PhD