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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA HOLDEN AT ABUJA Before His Lordship: - Hon. Justice P.O Lifu (JP) - Judge Monday 12th May, 2014 SUIT NO: NICN/ABJ/193/2013 Between: Rakiya Stephen Claimant AND Micro Products Ltd and Another Defendants REPRESENTATION Parties present; W.T. Orga Esq. for the claimant ; C.N. Edeh Miss for the defendants. JUDGMENT By a complaint filed on the 19th July 2013, the claimant claimed as follows: (1) A declaration that the verbal order by the Defendants, terminating the claimant’s appointment on the 5th day of February 2013 is unlawful and null and void. (2) An order that the defendants should pay the claimant one month salary N20,000:00 (Twenty thousand naira) in lieu of the termination of her appointment which was never paid. (3) An order that the defendant should pay the claimant the sum of N1,000,000.00K (One Million naira) being her gratuity for working with the 1st Defendant company for over four years and seven months. (4) An order that the Defendants should pay the claimant her leave allowance for the past five years: one hundred thousand naira (N100,000:00k) which is her basic salary for one month multiplied by five years. (5) An order that the defendants should pay the claimant the sum of one hundred thousand naira,( N100,000: 00k ) which is the sum total of her end of year bonus for a period of five years which is N20,000:00k (Twenty thousand naira) per year multiplied by five years. (6) An order that the defendant should pay the claimant, the sum of N9,800,00K (Nine thousand, eight hundred naira)being the total sum of her monthly contribution for the period of forty nine months to the defendant’s voluntary staff welfare scheme. (7) The sum of 2, 000,000.00k (two million naira) as general damages occasioned by the sudden job loss which has exposed her to psychological trauma and financial hardships. (8) The cost of this suit. (9) And such further orders which this honourable court may deem fit to make in the circumstance of this case. The claimant filed her frontloaded processes and called three witnesses during trial to proof her case. The 1st claimant witness Rakiya Shephen testified that she worked with the defendant for four years and six months before her appointment was terminated orally without any payment in lieu contrary to the terms as contained in her letter of appointment; Her reason for being away for two days was to take care of her husband who was operated upon in the hospital for appendix and her son was sent to do her duties during these two days of her absence. During the witness employment, she was contributing N200 monthly to the staff welfare scheme which has not been refunded to her. Under cross examination the witness, she testified further that she was never given any formal letter of salary increase from N10, 000 to N15,000 per month. She was never given leave allowance and end of year bag of rice as a bonus which was her entitlement. She further testified that her husband fell ill in February 2013 and later went back to the hospital for surgery which took them two days and during these days of her absence, she never wrote formally to inform her employer but sent her grown up son to stand in for her duties with the defendant. The N200 monthly contribution was for staff welfare such as bereavement and child birth and dedication and she never benefitted from the scheme because none of such things happened to her. The 2nd claimant witness, the son to the 1st claimant witness by name Isaac Ayuba adopted his witness statement on oath wherein he testified that the claimant who is his mother worked with the defendant for about five years diligently without leave and due to his father’s illness which resulted in surgery at Asokoro hospital in February 2013, the claimant left her job for two days to take care of the husband while he did the cover-up for his mother in the place of work for the two days and on the mothers resumption on 3rd of February, 2013 she was sacked by the defendant. Under cross examination, the witness confirms his mother’s hardwork, diligence and regularity at the place of work except on those two days in question. He stated that before his father took ill, he use to go with the mother to the place of work on some occassion and they use to come together by 3pm. The witness testified further that after cleaning the defendant premises in place of his mother with the assistance of a security man, he will fetch water and then leave for home. Mr. Ayuba Istifanus testified as the 3rd claimant witness. He is the husband of the claimant and the father to the 2nd claimants’ witness. He adopted his witness statement on oath and stated that he was operated upon for appendicitis on the 19th January, 2013 at Asokoro General Hospital. He tendered the medical report and the hospital bills which were admitted and marked as exhibits accordingly. Under cross examination, the witness, he could not remember whether or not the claimant was on duty on 27th December 2012. Even though they are Christian, they do not travel home during Christmas. He lost someone at home in 2012 but he did not travel home. Witness could not remember the visiting hours of Asokoro hospital but could remember he had a surgery there but could not also remember how much he paid but he remembered paying the hospital bill. He could not also remember when he gain himself and his senses back after the surgery. Witness confirmed his wife’s diligence regularity and hardwork in her place of work with the defendant as he was the one that advised the claimant to send their son to the defendant premises to do her duties during the two days of her absence. On the 26th of November. 2013, the defence opened by calling on John Arua Annaga as the 1st defence witness who is the general manager of the defendant. The witness after adopting his witness statement on oath testified further under cross examination that the defendant was incorporated in 1986 while he was employed in 2003 but did not know when the claimant was employed . The witness testified as his schedule of duties with the defendant and his responsibilities when a staff is absent from duty but asserted that the absence of the claimant from work was not converted to casual leave. Witness stated the working hours of the defendant to be between 8am to 6pm Monday to Friday but when confronted with the letter of appointment of the claimant, it was stated there to be 7am to 12pm daily. He testified further that the Admin head told him in a form of report that the claimant has gone to look after the health of the husband who was sick in the hospital but he could not confirm the truth or otherwise of that report because he did not have the contact address of the claimant . Witness testified that there is no evidence with him to show in court as to whether the leave allowance of the claimant was paid. He said further that he could not stay in dirty environment for two weeks and that the other staff did the cleaning of the defendants premises and there is no way they would have done perfectly the way the claimant would have done it since it was not their duty. On the whole the claimant tendered ten exhibits (RS 01, RS 02, RS 03, RS 04, RS 05, RS 06, RS 07, RS 08, RS 09, RS 010 A-C) while the defendant tendered two exhibits (MRL 011 and MPL 012). After the close of cases, the counsel adopted their written addresses on the 10th of February 2014. The defendant ‘s counsel in his final written address dated and filed on the 16th of December 2013 formulated four issues for determination namely: (1) Whether the claimant’s conduct of abandoning her job does not amount to termination of her contract (2) Whether the claimant is entitled to gratuity, leave allowance, end of year monthly contribution as per her claim. (3) Whether the claimant can benefit from her own wrong. (4) Whether the claimant has proved her case as required by law? On issue one counsel to the defendant Mr. K. J. Ikhine submitted that the claimant wrongfully terminated her employment with the defendant by abandoning her job for two weeks. The evidence elicited through cross examination, counsel submitted shows that she was with her husband at the hospital bed for two weeks day and night and not two days as stated by her counsel cited the case of Shell P.D.C. Nig Ltd Vs. Lawson –Jack 1998 4 NWLR (Pt 545) 294; Akomolafe Vs. Guardian press Ltd 1998 3 NWLR (Pt. 1181) 338 Ratio 2; UBN Plc Vs. Soares 2012 11 NWLR (Pt. 1312) 550 at 575 counsel urge the court to hold that the conduct of the claimant amount to cross misconduct occasion by willful disobedience. Counsel referred the court to exhibit MPL 012 item 5 which laid down the procedure to obtain sick leave by staff and since this was not followed the claimant was entitled to summary dismissal without notice; counsel supported this submission with the case of UBN Ltd Vs. Ogboh 1995 2 NWLR (Pt. 380) 647 SC. On issue two, counsel contended that since parties are bound by their contract, any attempt to claim gratuity, leave allowance end of year bonus, monthly contribution scheme sum is an attempt to re-write agreement or contract; counsel submitted further that the case of Alade Vs. Alic Nig Ltd 2010 19 NWLR (Pt 1226) 111 at 144 support the submission. He contended further that exhibit MPL 012 item 8 contemplates payment of terminal benefit after 5 years of service. He also submitted that claimant who is entitled to N4000 leave allowance has been paid without knowing it as her calculation of N20,000 multiplied by 5 years was erroneous. Counsel contended that end of year bonus was given by the defendant to the claimant as contemplated in exhibit RS 01. On monthly contribution, counsel submitted that this was not known to the defendant as such welfare do not exist in the defendant’s company. This, he said, was confirmed during cross examination when the claimant asserted that N200 monthly contribution was meant for bereaved staff, and sick colleagues in the work place or those who give birth to children. On issue three, counsel submitted that the claimant is not entitled to any damages as she cannot benefit from her own wrong. Rather, it is the claimant that is suppose to pay damages to the defendant for her misconduct. On issue four, Mr. Ikhine submitted that the claimant who asserts has not been able to prove her claims before the court. He contended that the terms of the contract has not been breached, and how it was breached are absent in this case. Counsel cited the case of Alade Vs. Alic Nig. Ltd 2010 19 NWLR (Pt. 1226) 111 at 131; Fmc Ido Ekiti Vs. Alabi 2012 2 NWLR (Pt. 1285) 411 at 439. Counsel urge the court not to believe the contradictory evidences of the claimant her husband and her son as the defendant also has no contractual relationship with the claimant son who allegedly went to perform his mother’s duties in the defendant premises. Counsel urges the court to dismiss the claimant’s case with cost. In his written address dated the 20th of January 2014 but filed on the 27th of January 2014, the claimant counsel W.T. Orga Esq. formulated 8 issues for determination namely: (1) Whether it is lawful and proper for the defendant to keep the claimant for four years and six months on probation or as a casual staff (2) Whether it is proper for the defendant to verbally terminate the claimants appointment without notice (3) Whether DWI is a credible witness in this case. (4) Whether any weight could be attached to exhibit MPL 012 (Memorandum). (5) Whether the claimant appointment was not confirmed by conduct (6) Whether the claimant absented herself from her duty post for more than two days (7) Whether the claimant is entitled to gratuity, end of year bonus and monthly contribution. (8) Whether the claimant has proved her case as required by Law; On issue one orga Esq. submitted that the defendant who refused to comply with section 7 (1) (2) of the labour Act should not be allowed to benefit from her wrong as the claimant should not be on probation for four years six months. Counsel cited the case of Unekwe Vs. Intercontinental Machant Bank Nigerian Ltd LEPR & 2007 VOL 1 Buhari Vs. Obasanjo 2005 All FWLR (pt258) 1604 CA. on issue 2 counsel referred the court to exhibit RS01, the offer of appointment which was never complied with by the defendant in bringing the employment to an end. Counsel call in aid section 11 of Labour Act on issue of notice and the cases of Ladipo Vs. Chevron Nigerian Ltd 2005 All FWLR Pt 260 133 CA; Obafemi Awolowo Teaching Hospital vs Adebayo 2009 9 NWLR (pt 693), 585 NEPA vs Enyong 2003 FWLR pt 452. On issue 3, counsel doubts the testimony of DWI who could not emphatically tell the court the year of incorporation of the defendant and he claimed also not to be in control of the staff as he did not know when the claimant was employed. DW1 , counsel contended did not know the working hours of the claimant as he eventually tried to mislead the court. As a responsible alter ego of the Defendant DW1 did nothing about the absence of the claimant in his employment. Counsel cited the cases of Digai Vs. Nanchang 2005 All FWLR pt 240; Urnne vs Agboro 2002 FWLR pt 110, 1930; Ayanwale vs Atanda (1988) 1 SC. Counsel urged the court to discountenance the testimony of the DWI as he knows nothing about the defendant. On issue 4, counsel submitted that exhibit MPL 012 which is a memorandum from the defendant has no evidential value as it contains three different working period apart from the fact that the document is older by 7years to DWI and older than claimant by 10 years. There was also no evidence during trail to show that the document (exhibit) was ever brought to the attention of the claimant and the said document did not comply with section 7 (2) (3) and (4) of the labour Act. Counsel submitted that the court should expunged this exhibit since it was made in anticipation or in contemplation of this suit. Counsel cited the cases of Onuh Vs. Idu 2002 All FWLR (pt 94), 66; Alibo Vs. Okosin 2003 All FWLR pt 139. Kuti vs Alashe 2005 ALL FWLR Pt. 248 Akinduro Vs. Ataya 2007 All FWLR pt 381 On issue five, Mr. Orga contended that the claimant from evidence was on salary of N20, 000 before she was orally asked to go. The conduct of the defendant shows clearly that the claimant was a confirmed staff he contended. Counsel cited the case of AG. Kaduna state vs. Alele 1986 4 NWLR pt 38 AC 66 and urge the court to hold that the claimant cannot work for more than four years as an unconfirmed staff. On issue six, counsel submitted that the illness and medical treatment of the claimant husband was never contradicted in his evidence by the defendant; the testimony of PW2 and 3 are unassailable and should be believe. Counsel also urged the court to hold that the claimant did not abandon her work or duty post. On issue seven, counsel contented that the claimant’s gratuity with the defendant should be calculated as stated in section 9 (1) of the pension reform Act as she should not be allowed to go empty handed after 4½ years of unblemished meritorious service to the defendant. Counsel referred the court to exhibit RS 01 where the issue of leave allowance is clearly stated he contended. On the end of year bonus, counsel referred to the evidence of PW1, and DW1 to show that there is consistency in the evidence and since the claimant has asserted and proved his case, he should be granted his prayers. Counsel called in aid the case of Kuti Vs. Alashe (Supra). On the monthly welfare scheme contribution, counsel urged the court to rely on the evidence of PW1 and if the defendant deny the claimant this claim, counsel left this issue to the natural law of retribution. On damages, he referred the court to the case of Alele William Vs. Sagay 1995 5 NWLR (Pt. 396) 441 at 454 Olagunju Vs. Raji 1986 5 NWLR Pt. 42. Counsel urge the court to award commensurate damages for wrongful termination of employment occasioned by the arbitrariness of the defendant. On issue eight, it is submitted that claimant having proved her case by placing the terms of the contract before the court and all the exhibits and oral testimonies, counsel urge the court to discountenance the excuses of the defendant and grant her the prayers as contained in the claim. On point of law, it is the reply of the defendant counsel Mr. Ikhine that the defendant never change the contract and as such all the submission of claimant counsel on that issue goes to no effect. On issue two Mr. Ikhine submitted that subsection 5 of labour Act section 11 gives a provision for termination of contract of employment without notice. On issue three canvassed by the claimant counsel, Mr. Ikhine posited that a general manager of the defendant is an employee and not a shareholder, a promoter or director. On issue four, counsel contended that exhibit MPL 012 is an admissible evidence by virtue of section 83 (1) (a) of the evidence Act as amended and should not be expunged. Counsel urged the court to dismiss the claimant case with cost; I have carefully gone through and considered the cases of the parties and their respective submissions. The facts of the case are very clear and simple. The claimant who was a low class employee of the defendant was orally dismissed from her employment as a result of her alleged absence from duties for two weeks. Within these two weeks, the claimant was said to have abandoned her duties. The claimant on the other hand contended that she was only absent for 2 days from duty and within these two days she mandated her son CW 2 to stand in and perform her cleaning duties. The claimant used these two days to attend to her husband at Asokoro hospital who had a surgery. Consequent upon her oral dismissal the claimant approached this court with sundry claims as earlier outlined in this judgment. It is trite law that civil cases are determine on the balance of probabilities. It is the primary duty of this court to place each of the parties’ case on an imaginary scale of justice to determine where the scale tilt more. It is also elementary that he who asserts must prove in other to discharge the burden of proof place on him/her. The lone question that calls for determination on this case is whether the claimant has sufficiently proved his case to entitle her to judgment on all the reliefs sought herein. On relief one bordering on wrongful termination of employment, under common law, the employer has the power to hire and fire with or without reason at all; that position have been statutorily altered by section 254 ( C) (1) (f) and (h) of the 1999 constitution as amended. In the first place exhibit RS 01 which is a letter of appointment of the claimant limited the period of probation to one month. The claimant worked for four years seven monthly before she was relieved of her appointment without confirmation. Under international best practices and unfair labour practice, where the workers continue to work after the probation period, the contract is deemed to have been concluded on the date on which the probation period began. In other words, the continuation of services after the expiry of the probation period without a new contract being drawn up is equivalent to the conclusion of a contract of indeterminate duration which takes effect on the date on which the probation period began. The convention No 158 of the International Labour Organization on termination of employment of 1982 of which Nigeria has ratified fortifies this position. Moreover, there is no evidence before the court to show that the claimant was granted fair hearing before her employment was terminated. The mere fact that she was a low class staff, a cleaner with the defendant does not mean that her rights are not guaranteed under section 36 of the 1999 constitution of Nigeria as amended. In fact it is an unfair labour practice which is also against international best practices for an employer to summarily dismissed a staff, orally for that matter without affording her the opportunity of fair hearing. Article 7 of termination of employment convention No 158 of 1982 has this to say. “the employment of a worker shall not be terminated for reasons related to the workers conduct or performance before he is provided an opportunity to defend himself against the allegation made, unless the employer cannot reasonably be expected to provide this opportunity”. Moreover, exhibit MPL 012 in item 3 says : “the company frowns at absenteeism. Any unauthorized absence from work will be taken as casual leave. In addition, this will attract disciplinary measures, which include forfeiture of equivalent number of days from annual leave entitlement” The claimant’s witness 2 testified to the effect that he went to the defendant’s premises and stood in for the claimant and he and the security man in the defendant premises did the cleaning for two days. The medical report from Asokoro General Hospital, exhibit RSO9 stated the period of hospitalization of claimant witness 3 to be five days. I do not believe the evidence of the defence that the claimant was absent from work for 2 weeks. Assuming the claimant was unduely absent from work, why was the period of absence not deducted from her annual leave in accordance with Exhibit MPL 012 paragraph 3? Moreover, in paragraph 8 (a) of exhibit MPL 012, it is stated as follows; “Dismissal: This is assumed to be on the basis of criminal conduct on the part of the staff; for this, a staff gets nothing and in addition may be prosecuted.” There is no evidence before the court to show that the claimant was paid any salary in lieu of notice or was given any benefit sequel to her disengagement. This goes to show that the oral sacking of the claimant by the defendant was a dismissal even though she was never alleged of any crime. Absence without good cause often have to be a habitual or repeated if they are to warrant dismissal. There should be a distinction between serious misconduct and less serious misconduct; it is on record that through the claimant’s employment, she has not received a query, reprimand or serious reprimand or warning of any type before her arbitrary disengagement. This is to say the least absurd and constitute unfair labour practice. See the case of Abomeli Vs. NRC 1995 I NWLR Pt. 372 (C A). The relationship of parties in this type of contract is governed by the terms as stipulated in the memorandum tendered and admitted in evidence as exhibit MPL 012 and the letter of employment tendered and marked as exhibit RS01. A thorough perusal of these exhibits has not revealed any content relating to contributory welfare scheme neither is there any evidence relating to whom and where or how it is managed. The claimant referred to a bag of rice as the end of year bonus while exhibit RS 01 says it is maximum of monthly basic pay. The claimant has not led any evidence to show any financial hardship or psychological trauma occasioned by loss of job neither has she shown to the court that she is entitled to any gratuity outside the content of her terms and conditions of her engagement and disengagement. In the light of all what I have said so far, the claims hereby succeed in part as follows; (1) The verbal order disengaging the claimant from her employment of the defendant which amounts to dismissal on the 5th of February 2013 is hereby declared unlawful, wrongful, null and void. (2) The said dismissal of the claimant is hereby converted to termination and as such the sum of N20, 000 shall be paid by the defendant to the claimant being the sum payable in lieu of the notice of termination of appointment. (3) The defendant is to pay the sum of N220, 000 to the claimant being the 10% annual basic Multiplied by 5 years of service. (4) It is also ordered that the defendant pay the sum of N100, 000:00 being the leave allowance at the rate of one monthly basis salary multiplied by 5 years of service. (5) Payment of the sum of N100, 000 being end of year bonus calculated at monthly basic pay multiplied by 5 years of service. Judgment is to be satisfied within 30 days. Judgment is hereby entered accordingly. There is no order as to cost. Hon. Justice P.O Lifu (JP.) Judge