Miss Linda Onumajuru -VS- EKOCORP Plc. & ORS- National Industrial Court of Nigeria

IN THE NATIONAL INDUSTRIAL COURT

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HER LORDSHIP HON. JUSTICE E. A. OJI, PhD

DATE: WEDNESDAY 28^TH SEPTEMBER 2022 SUIT NO: NICN/LA/49/2020

BETWEEN

MISS LINDA ONUMAJURU CLAIMANT

AND

1. EKOCORP PLC

2. DR. DAMILOLA S. OLALUSI DEFENDANTS

Representation:

Okechukwu Umemuo for the Claimant

Benjamin Umudjoro for the Defendant

JUDGMENT

Introduction and Claim:

1. By a General Form of Complaints dated 11^th day of February 2020, the Claimant commenced this action seeking the following reliefs against the Defendants:

a) A Declaration that the termination of the Claimant’s employment by the Defendants in the manner outlined in this suit is wrongful, arbitrary, violates her right to fair hearing and against international best practice.

b) A Declaration that the various actions of the Defendants as outlined in this suit constitute discrimination and victimization at the work place and unfair labour practice.

c) A Declaration that the discrimination and victimization of the Claimant base on her gender and health status is unlawful and unconstitutional.

d) A Declaration that the failure and refusal of the Defendants to pay the Claimant her salaries at the end of every month is unlawful.

e) A Declaration that the failure and refusal of the Defendants to pay the Claimant her terminal benefits contemporaneously with the purported termination of her employment is unlawful and against international best practice.

f) A Declaration that the failure of the 1^st Defendant to remit pension and tax deductions made from the Claimant’s salaries to the requisite bodies since 2015 till the termination of her appointment is illegal.

g) The sum of N540,000 being unpaid salaries for the month of May, June, July, August and October 2019.

h) The sum of N108,000.00 being one month’s salary in lieu of notice.

i) The sum of N54,000.00 being half-month’s salary for the period in January 2020 that the Claimant worked before the wrongful termination.

j) The sum of N64,000.00 being unpaid leave Allowances for December 2019.

k) The sum of N25,000,000.00 (Twenty-Five Million Naira) being general damages for wrongful termination of employment.

l) The sum of N50,000,000.00 (Fifty Million Naira) being general damages for Defendants’ various acts of victimization and discrimination.

n) Cost as may be assessed by the Court.

2. The Defendants responded by filing a joint Memorandum of Appearance and Statement of Defence dated 16^th of March, 2020 and filed the same day. The Claimant further filed a Reply to the Statement of Defence dated 2^nd July, 2020 and filed the same day. This was the state of pleadings on the basis of which trial was conducted. Trial commenced on the 18^th of March 2021. The Claimant gave evidence for herself by adopting her witness statement on oath dated 11^th February 2020 and her Additional Witness Statement dated 9^th of July, 2020. The Claimant was subsequently cross-examined. Claimant tendered the following documents as exhibits:

a) Letter of Employment ===== Exhibit C1

b) Query Letter =============Exhibit C2

c) Letter of Disengagement ===Exhibit C3

d) Medical Report ===========Exhibit C4

e) Letter of Apology =========Exhibit C5

f) Claimant’s Lawyer’s Letter==Exhibit C6

g) The Court took judicial notice of the existence of Conventions referred to by the Claimant.

3. On the 24^th of June 2021, The 1^st Defendant opened its case but not before informing the Court that Counsel was withdrawing from representing the 2^nd Defendant who has informed him that he was going to represent himself or send a Counsel to represent him. Counsel also informed the Court that in the circumstance, he will bring a new witness as substitute to the 2^nd Defendant and file a new witness statement on Oath for the new witness. On the said 24^th of June 2021, the 1^st Defendant, called two witnesses; namely:

i) Philomena Otu, who was the 2^nd Defendant’s Secretary as DW1

ii) Mr. Abidoye Simeon, the 1^st Defendant’ Auditor as DW 2

4. The witnesses were cross examined on the said date, the 24^th of June 2021 and discharged. On the 28^th of October, 2021, the 1^st Defendant’s Counsel moved his application dated 11^th day of October 2021 but filed on the 12^th day of October, 2021 to substitute Dr. Adegbite Ogunmokun for Dr. Olalusi as witness for the 1^st Defendant. Dr. Adegbite Ogunmokun gave evidence as DW3 and was also cross-examined. The 1^st Defendant tendered the following documents as exhibits:

a) Photocopy of Fidelity Bank Cheque for the sum of N573,131.61, - Exhibit D1

b) An Umudjoro & Co. Receipt for the sum of N1,000,000.00 - Exhibit D2

c) Employee Terminal Benefit Calculation form and Gratuity Calculation/Breakdown Details - Exhibit D3.

CASE OF THE CLAIMANT

5. The facts of this case as can be gleaned from the pleadings of the parties is that the Claimant who is a registered nurse and midwife and who was licensed by the Nursing and the Midwifery Council of Nigeria since 2013 was engaged by the 1^st Defendant as a Nursing Officer by virtue of a Letter of Employment dated 6^th of October 2015. Attached to the letter of employment is a document containing the Claimant’s conditions of Service. The 2^nd Defendant was an employee of the 1^st Defendant and superintended its Surulere Clinic where the Claimant also worked until her employment was terminated. The 2^nd Defendant was the Claimant’s superior and a ranking officer of the 1^st Defendant. According to the Claimant, on the 2^nd day of January while she was going about her normal duties, the 2^nd Defendant confronted her and harshly demanded to know why she could walk by and fail to greet him. This led the 2^nd Defendant to issue the Claimant with a query. According to the Claimant, she was baffled by the query as she did not come late and did not in any way misconduct herself and took it to be one of the 2^nd Defendant’s numerous antics to harass and embarrass her. However, on the 6^th day of January, 2020, the Claimant received a phone call summoning her to a meeting. In attendance at the meeting were the 1^st Defendant’s lawyer, internal auditor and chief accounts officer who berated her for being disrespectful to the 2^nd Defendant. Condemned and downcast, the Claimant agreed to apologise again to the Defendant. The apology was refused and the Claimant was terminated without paying her the terminal benefits as computed by the 1^st Defendant and several months’ arrears of salaries which were outstanding. The Claimant made several demands for the said terminal benefits and her arrears of salaries but the 1^st Defendant failed and refused to pay them until this suit was filed. She was however called on the 10^th of January 2020 and handed over a letter terminating her employment on the purported ground of reorganization in the hospital. The Claimant states that her termination was wrongful in that:

(i) She was not given fair hearing.

(ii)The 1^st Defendant disguised what was in effect a dismissal from employment as termination of employment for ‘services no longer required’.

(iii) All the Claimant’s colleagues knew she was dismissed from employment for not ‘greeting’ the 2^nd Defendant.

(iv) The termination was with immediate effect.

(v) No terminal benefits were paid.

(vi) The manner of the termination created the impression that the Claimant must have misconducted herself and has therefore adversely affected her chances of getting another job in the same industry, and

(vii) There was no reorganization at the 1^st Defendant and it did not declare any redundancy but yet it purportedly terminated the Claimant’s employment on grounds of reorganization.

6. Prior to the said termination, the Claimant continually received unwelcomed sexual overtures from the 2^nd Defendant in the form of lewd jokes and comments. However, after the Claimant became infected by the HIV virus in the course of her employment, the 2^nd Defendant became vindictive and showed outright and open disdain for the Claimant and discriminated against her by offensive comments, looks and by ridiculing her work and trying to force her out of the 1^st Defendant’s employment. The Claimant further testified that her termination is contrary to international best practices and several International Labour Organisation (ILO) conventions which Nigeria has ratified including Convention No. 158 of 1982. She states that the discrimination on the basis of her HIV status violated International Best Practices including Convention No. C111 of 1958. That the sexual harassment and ridiculing of her person on the basis of her gender violated Convention No. 190 of 2019 and the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW). She states her taxes and pensions deducted every month by the 1^st Defendant, were never remitted, and the 1^st Defendant also failed to remit its own contribution to the pension.

CASE OF THE 1^ST DEFENDANT

7. The case of the 1^st Defendant is that on 2^nd January 2020, the 2^nd Defendant and other personnel were in the hospital at about 12pm when the Claimant worked in and because she was late by several hours, she was confronted by the 2^nd Defendant asking her why she was walking in arrogantly without any feeling of remorse for being late to work by several hours. 2^nd Defendant and the other staff were shocked at the response of the Claimant, saying; she had not matched the 2^nd Defendant or anybody. The 2^nd Defendant issued the Claimant a query so that her conduct will not influence other staff who witnessed her behavior. That the 2^nd Defendant had not had previous altercation with the Claimant and had never refused to respond to her greetings, but had always maintained his dignified position as the superintended of the hospital. That the 2^nd Defendant before the incident of 2^nd January 2020, was not in the habit harassing and embarrassing the Claimant and indeed any of the staff of the hospital. The 2^nd Defendant sent the query issued to the Claimant through his secretary but to the greatest surprise of the secretary, the Claimant did not only refuse to acknowledge the receipt of the query, she tore it in the presence of the secretary and did not respond to the query as demanded in it. A report was made to the head office of the 1^st Defendant about the conduct of the Claimant and an investigating panel was set up to look into the whole episode. The panel was made up of the Company Secretary, the Chief Finance Officer and Chief Auditor of the 1^st Defendant. The 1^st Defendant states that the Claimant was given an opportunity to state her case and was not berated. The panel did not suggest to her that she was guilty of disrespecting the 2^nd Defendant or any other staff. That the panel did not ask or suggest in any way to the Claimant to apologize to the 2^nd Defendant let alone kneeling down for him. That the Claimant was not dismissed from her employment but was affected by on-going reorganization necessitated by the engagement of a new chief executive officer, procurement of new machineries or equipment and the company inability to pay salaries as at when due.

8. The Defendant further states that the Claimant’s termination, was not wrongful; that she was not terminated because of the query issued to her; and that notwithstanding, she was given fair hearing by being issued with a query and made to state her case before a panel. That the Claimant’s terminal benefit has been paid and she was not a specific target for delay in payment of salaries. That the Claimant could not have been object of ridicule because some months’ salaries were delayed, particularly when it involves all staff of the 1^st Defendant. That the 2^nd Defendant has not in any way sexually harassed the Claimant and that the 1^st Defendant has zero tolerance to matters of sexual harassment and it belies on the Claimant to inform the management of the hospital based at its Ikeja headquarters if such harassment existed. That the 2^nd Defendant is one of the few staff who was aware that the Claimant is HIV positive and it would be suicidal as a medical doctor to be sexually harassing the Claimant knowing that the Claimant was on the 4^th stage of HIV when it was discovered. That the 2^nd Defendant has no power to determine the employment of the Claimant and had no such intention and the HIV status of the Claimant was not an issue because, there were other staff of the 1^st Defendant that were also HIV positive but who are still in their employment. That the Claimant was not sexually harassed, as she could have used the channels available for such complaints to the management of the 1^st Defendant, if she had. That in the circumstance, there was no reason for favourable treatment or bad treatment as a result of the alleged sexual harassment.

9. The Defendant further states that contrary to the Claimant’s case, the Claimant was given all opportunity to state her case and grievances and she never mentioned the issue of sexual harassment before the panel. That while it is true that the Claimant tested HIV negative at the time of employment, it is possible that that virus was latent then, since it has 6 months’ incubation period. That it has no HIV clinic at their Surulere hospital; it is therefore not possible for the Claimant to be working mainly with HIV and Hepatitis patients as she claimed. That Claimant’s claim of being exposed to fluid and blood from a patient which spread over her face and eyes could not be true because, the ethics and rules of the profession, expects her to make a proper report to management of the hospital and it is incumbent on the hospital upon such report to provide her with post exposure “prophylasis” which means; preventive treatment for any exposure. That when it was discovered that the Claimant was HIV positive, the 2^nd Defendant’s attitude was that of sympathy and care for her and did not victimize or discriminate against her and there was no attempt to terminate her employment because of her status. That only very few persons were aware of the Claimant’s HIV status; one of such person being the Chief Medical Officer who transferred her to where her service was still relevant and where she could still pursue her career. The Defendant maintains that there was no attempt to force her out of her employment in any way until the re-organization. The Defendant states that they did not exhibit any unfair labour practice toward the Claimant. The Defendant states that all the Claimant’s entitlements have been computed and paid to her as follows:

PARTICULARS

a) The sum of N45,290.32 for the 13 days she worked in January 2020.

b) The sum of N27,000 representing one-month basic salary in lieu of notice.

c) The sum of N502,200 representing 5 months outstanding salary less tax of N1,358.71.

d) Total payment made to the Claimant is N573,131.61. The Defendants hereby plead the 1^st Defendant’s Employee Terminal Benefit Calculation form and Gratuity Calculation Breakdown. Same shall be relied upon during trial.

SUBMISSIONS ON BEHALF OF THE 1^ST DEFENDANT

10. The 1^st Defendant, in its final written address, set down the following five issues for determination; to wit:

a) Whether the Claimant’s contract of service as contained in Exhibits C1 was breached by the 1^st Defendant and if so, whether the letter of disengagement (Exhibit C3), was wrongful?

b) Whether there is evidence adduced in support of the claim for discrimination, victimization and deliberate refusal to pay salary of the Claimant by the 1^st Defendant on account of her HIV status and her gender?

c) Whether the Claimant has presently been paid all her entitled(Sic)?

d) Whether the Claimant is entitled to general damages for wrongful termination of her appointment, victimization and discrimination and unfair labour practice, in the total sum of N100 million or any amount of money at all?

e) Whether the Claimant on collecting her cheque while the matter was yet to be assigned to any Court, should not have withdrawn her case and that her failure to discontinue the action against the 1^st Defendant, entitled it, to its claim for the sum of N1(Sic) as cost of prosecuting the action?

11. Before arguing the issues it raised, the 1^st Defendant stated that a perusal of the Claimant’s reliefs, will reveal that 6 out of the 14 reliefs are declarative reliefs. That the first relief which is the head relief, upon which all other reliefs stand, is a declarative relief attacking the letter of disengagement issued to the Claimant. The Defendant submits that a Claimant who seeks declarative reliefs must stand and fail on the merit of his case; and cannot rely on the weakness of the Defendant’s case. On this, the Defendant relied on the case of Nkwocha vs. Ofurum (2002) 5 NWLR (Pt 761) 506 at 524-524.

12. On issue one; “Whether the Claimant’s contract of service as contained in Exhibits C1 was breached by the 1^st Defendant and if so, whether the letter of disengagement (Exhibit C3), was wrongful”, the Defendant submits that it complied with the Claimant’s contractual terms in the termination of her employment. On issue two "Whether there is evidence adduced in support of the claim for discrimination, victimization and deliberate refusal to pay salary of the Claimant by the 1^st Defendant on account of her HIV status and her gender”, the Defendant argues that there is no evidence of discrimination, victimization or deliberate refusal to pay salary of the Claimant. On issue three, “whether the Claimant has presently been paid all her entitled”, the Defendant submits that exhibits D1 and D3 are proof that she has. The Defendant argues that there was no protest from the Claimant at the time of collecting the cheque nor after collecting the cheque. On issue four, “whether the Claimant is entitled to general damages for wrongful termination of her appointment, victimization and discrimination and unfair labour practice, in the total sum of N100 Million or any sum at that”, the Defendant argues that a Claimant who seeks general damages from this Court must show the nature of damages he or she suffered to warrant the grant of such relief. The Defendant submits that evidence adduced throughout the trial does not reveal wrongful termination of appointment, discrimination or victimisation; consequently, the issue of damages does not arise. Furthermore, that the Claimant has not proved those damages. The Defendant arguesw that removing the Claimant from clinical functions due to her HIV status was not discriminatory. That once it became known that the Claimant was HIV positive, it was prudent on the management of the 1^st Defendant to remove her from clinical functions. It would have been the height of professional insensitivity and callousness to allow her to perform clinical functions that may cause her infecting patients and that the Nigeria Medical Association would have sanctioned the 1^st Defendant for such negligence if and when it became known. The 1^st Defendant also argues that it did not carry out unfair labour practice against the Claimant. On the issue of damages, the 1^st Defendant submits that the Claimant is not entitled to damages beyond the payment in lieu of notice which has been computed and paid to her. On issue five, “whether the Claimant on collecting her cheque while the matter was yet to be assigned, should not have withdrawn her case and that her failure to discontinue the action against the 1^st defendant, entitled it, to its claim for the sum of N1 as cost of prosecuting the action”. The Defendant argues between the date the Claimant was sacked and the day she picked her cheque was a duration 37 days; which period was used for her clearance from the Account Department and other Department to find out if she is indebted and to compute her final emolument. That at the time she was issued with the cheque, the Defendants had not filed their defence, thus there was enough time to file a notice of discontinuance. That having opted to pursue her claims though value has been given to her cheque, the 1^st Defendant can make a valid claim for Solicitor’s fees or the cost of the action.

SUBMISSIONS ON BEHALF OF THE CLAIMANT

13. The Claimant, in her final written address, set down the following seven issues for determination; to wit:

1. Whether the Disciplinary Committee set up by the 1^st Defendant did not violate the Claimant’s right to fair hearing in the way and manner it conducted its proceedings and arrived at its decision.

2. Whether the termination of the Claimant’s employment was not wrongful, arbitrary and violates international best practices.

3. Whether the failure to pay the Claimant her salaries at the end of every month and detaining the Claimant’s five (5) months arrears of salaries do not amount to unfair labour practice and breach of her contract of employment.

4. Whether the failure of the 1^st Defendant to pay the Claimant her terminal benefits and arrears of salaries contemporaneously with her termination is not unlawful and against international best practices.

5. Whether the failure of the 1^st Defendant to remit pension and tax deductions and to make pension contributions despite deductions made from the Claimant’s salaries is not unlawful and against international best practices.

6. Whether the various actions of the 1^st and 2^nd Defendants as outlined in this suit constitute sexual harassment, discrimination and victimization of the Claimant at the workplace and unfair labour practices.

7. Whether the Claimant is entitled to the reliefs sought in this suit.

14. On issue one, “Whether the Disciplinary Committee set up by the 1^st Defendant did not violate the Claimant’s right to fair hearing in the way and manner it conducted its proceedings and arrived at its decision”, the Claimant argues that the Claimant was invited through a phone call to the 1^st Defendant’s head office on 6^th January, 2020 and she dutifully proceeded to answer that summons. That she was not informed that she was appearing before any disciplinary panel. That at the panel, the Claimant was deprived of an opportunity to know what evidence was presented against her nor to confront or cross examine witnesses who testified against her. The Claimant argues that the correct position of the law is that the requirement for fair hearing will be satisfied if an employee is given adequate opportunity to respond to all the allegations made against him/her; referring to the Court of Appeal decision per Ndukwe-Anywanwu JCA in FUT YOLA V MAIWUYA (2010) LPELR-9001 (CA) at p18 para C where it was held as follows:

“In the dismissal or termination of the appointment of an employee on grounds of misconduct, all that the employer needs to establish to justify his action is to show that the allegation was disclosed to the employee; that he was given a fair hearing, that is to say that the rules of natural justice were not breached and the disciplinary panel followed laid down procedure, if any, or that the employee accepted that he committed the act after investigation. (University of Calabar v Essien) etc”

The Claimant submits that from the evidence before this Honourable Court, the Claimant was not given adequate opportunity before the Disciplinary Committee to respond to allegations made against her by the 2^nd Defendant and DW1 because she was not present during their testimony and did not have a benefit of what was said against her.

15. On issue two, “whether the termination of the Claimant’s employment was not wrongful, arbitrary and violates international best practices”, the Claimant submits that in terminating her employment, the 1^st Defendant had a duty to state a reason(s) connected with the performance of her role. The 1^st Defendant must also justify the reasons for the termination. That it is “contrary to international labour standards and international best practices and therefore unfair for an employer to terminate the employment of its employee without reason or justifiable reason that is connected with the performance of the employee’s work”. Refers to the case of Ebere Onyekachi Aloysius v. Diamond Bank Plc (2015) 58 N.L.L.R. 92 where this Court specifically stated that the National Industrial Court must now “move away from the harsh and rigid common law posture of allowing an employer to terminate an employee for any reason or no reason at all”. The Claimant argues that by virtue of sections 7(6), 13, 14 and 19 of the National Industrial Court Act, 2006 and section 254C of the 1999 Constitution of the Federal Republic of Nigeria (as amended), the National Industrial Court (NIC) is now empowered to apply international best practices, and in the Aloysius’ Case, the NIC applied the provision of Article 4 of the ILO Convention 158 on Termination of Employment.

16. On issue three, “Whether the failure to pay the Claimant her salaries at the end of every month and detaining the Claimant’s five months arrears of salaries do not amount to unfair labour practice and breach of the Claimant’s employment contract”, the Claimant submits that it is an unfair labour practice and a breach of her contract of employment to delay and detain her salaries beyond the period agreed under the contract of employment when the salary should be paid. That it was the filing and service of this suit that compelled the 1^st Defendant to pay the arrears of salaries. That it is very unfair for the Defendant to wait for the Claimant to apply her meager resources to first hire a lawyer and file an action in Court before her arrears of salaries will be paid for periods when she worked for an employer. The Claimant submits that the 1^st Defendant’s conduct is reprehensible and also a violation of the law as section 15 of the Labour Act requires that “wages shall become due and payable at the end of each period for which the contract is expressed to subsist, that is to say, daily, weekly or such other period as may be agreed upon: Provided that where the period more than one month, the wages shall become due and payable at intervals not exceeding one month.”

17. On issue four, “whether the failure of the 1^st Defendant to pay the Claimant her terminal benefits and arrears of salaries contemporaneously with her termination is not unlawful and against international best practices”, the Claimant submits that it is an unfair labour practice and against international best practices to deprive a terminated employee of his/her terminal benefits under whatever guise. That it is undisputed that the Claimant was not paid any gratuity, and that the payments made to the Claimant (including N27,000.00 as terminal benefits) were not paid contemporaneously with her termination but rather was paid after the commencement of this suit. On issue five, “whether the failure of the Defendants to remit pension and tax deductions and to make pension contributions despite deductions made from the Claimant’s salaries is not unlawful and against international best practices”, the Claimant submits that the 1^st Defendant having admitted that it deducted pension contributions from the Claimant’s salaries but that there was shortfall in remittances, needed to show evidence of such alleged remittances and contributions and to what extent it defaulted.

18. Issue six is “whether the various actions of the Defendants as outlined in this suit constitute sexual harassment, discrimination and victimization of the Claimant at the workplace and unfair labour practices”. The Claimant argues that her evidence in chief detailed the sexual harassment she suffered in the hands of the 2^nd Defendant and how his unwanted and unwelcomed sexual overtures soon degenerated into outright victimization upon her being diagnosed with the HIV virus. That despite her evidence, the 2^nd Defendant failed to give evidence in rebuttal of the very heavy allegations made against him, first of sexual harassment and second, of victimization and discrimination on the basis of the Claimant’s gender and health status. The Claimant argued that the 1^st Defendant condoned the 2^nd Defendant’s conduct and emboldened him to continue with the sexual harassment and victimization of the Claimant up to her wrongful termination from employment. That the failure of the employer to put a mechanism in place to prevent and punish sexual harassment is detrimental to its defence. On issue seven “whether the Claimant is entitled to the reliefs sought in this suit”, the Claimant submits that from the evidence led before the Court, she has demonstrated and proved her entitlement to the reliefs sought in this suit.

REPLY ON POINTS OF LAW

19. In their Reply on Points of Law, the 1^st Defendant disputed the Claimant’s Counsel’s summary of facts in her final written address. He noted that the 1^st Defendant in its pleadings and in the testimonies of its witnesses maintained that the Disciplinary Committee did not find the Claimant guilty and recommended that she should only be warned to behave better. That there is no evidence that the Claimant reported the sexual harassment to her immediate superior, or that she reported to the Accounts Department that her salaries were not being paid, or that her pension was not being remitted. In responding to the issues raised by the Claimant in her final address, the 1^st Defendant argued under issue one that the issue of the Disciplinary Committee, its deliberations and its report, has nothing to do with this case; and that the Court is bound by the content of Exhibit C3, which is the termination letter which did not state that the Claimant’s appointment was being terminated because of misconduct. On the 2^nd issue raised by Claimant’s Counsel, the Defendant submits that though the Defendant is not under obligation to justify the reason given in the letter of termination, it in fact did so by stating that as a result of insolvency there was the engagement of a new management and new equipment, so manpower movement and downsizing was necessary. On Claimant’s reference to delayed salary payment as unfair labour practice, and that the Claimant alone was targeted, the 1^st Defendant submits that having denied that fact, the burden was on the Claimant to prove that she was the only person not being paid. In response to the argument of the Claimant’s Counsel on his issue 4, the 1^st Defendant submits that an employee who was terminated on the 10^th of January and her cheque made ready by February 22^nd, it was not too long a time. On issue five, the 1^st Defendant contends that there is no evidence before the Court that the Claimant’s tax deductions and pension deductions were not remitted. On issue six, the 1^st Defendant contends that there is no evidence before the Court that the 1^st Defendant condoned the 2^nd Defendant’s sexual harassment of the Claimant, assuming there was sexual harassment.

COURT’S DECISION

20. I have considered the processes filed in this matter, the evidence led, the exhibits tendered and the arguments of Counsel. I adopt the following issues, which in my view incorporates the issues identified by the parties, for determination:

1. Whether the Claimant’s employment was terminated based on the incidence of 2^nd January 2020, on account of reorganization of the 1^st Defendant, and if her right to fair hearing was violated.

2. Whether the termination of the Claimant’s employment was wrongful, arbitrary and violates international best practices.

3. Whether the failure to pay the Claimant her salaries at the end of every month and detaining the Claimant’s five (5) months arrears of salaries amounts to unfair labour practice and breach of her contract of employment.

4. Whether the various actions of the 1^st and 2^nd Defendants as outlined in this suit constitute sexual harassment, discrimination and victimization of the Claimant at the workplace and unfair labour practices.

5. Whether the Claimant is entitled to the reliefs sought in this suit.

21. Issue one is " Whether the Claimant’s employment was terminated based on the incidence of 2^nd January 2020, on account of reorganization of the 1^st Defendant, and if her right to fair hearing was violated.” The Claimant in her evidence referred to a disciplinary panel set up by the 1^st Defendant to investigate the altercation between her and the 2^nd Defendant, which had led to the Claimant being issued a query by the 2^nd Defendant. She contends that she was not given a fair hearing by the panel, in that she was not allowed to say anything in her defence, but was berated for being disrespectful to the 2^nd Defendant and ordered to apologise to the 2^nd Defendant. She further contends that she was terminated on account of the incidence between her and the 2^nd Defendant. The 1^st Defendant however states that the Claimant was not recommended for termination by the panel, but that she was affected by an on-going reorganization necessitated by the engagement of a new chief executive officer, procurement of new machineries or equipment and the company’s inability to pay salaries as at when due. The Claimant states that a panel was purportedly set up, and she appeared before the internal auditor, chief finance officer and the company secretary. However, both parties gave varying accounts of what transpired at the investigative panel. However one point is consistent; and that is that there was a three man panel consisting of the internal auditor, chief finance officer and the company secretary; and that the Claimant was invited before the panel. The decision of the Court of Appeal, in Venn v. Access Bank Plc & Ors Suit No: CA/L/134/2012( 2015) All FWLR (Pt. 772) 1765 @ 1786, 1796 CA) is instructive on this. In following the position of the Supreme Court, the Court of Appeal held that:

I agree with the finding of the learned trial judge that the Appellant was duly confronted with the accusation made against him and given the opportunity to explain by telling his own side of the story but his explanation was not considered satisfactory by the Disciplinary Committee who recommended his dismissal to the 1^st Respondent, hence his complaint that he was given fair hearing cannot stand.

It is difficult to accept that it is a coincidence that the incident where the Claimant was accused to have disrespected the 2^nd Defendant occurred on the 2^nd of January 2020 and the Claimant was disengaged 8 days after, and 4 days after the panel sat. She was issued a query the same date the incidence occurred; was invited to the panel on the 6^th of January 2020, and issued a letter of disengagement on the 10^th of January 2020. The closeness of the events makes it reasonable to assume that the Claimant was terminated as a result of the incidence of 2^nd January 2020. This is more so when the Defendant failed to produce evidence to show the decision of the panel they set up. Though the Defendant tried to make a case that the Claimant was terminated due to ongoing reorganization, and her name happened to be amongst those penciled down for termination, it failed to tender any document showing the re-organisation or a list containing names penciled down for termination. On a balance of probability, I find that the Claimant was disengaged as a result of the incidence of 2^nd January 2020. I so hold.

22. Though I have found that the set of facts leading to the Claimant’s termination showed that she was terminated for her altercation with the 2^nd Defendant; her superior officer, it remains to decide whether the Claimant was not given fair hearing. I have considered the issue of lack of fair hearing raised by the Claimant, with respect to the procedure before the panel. The employment relationship between the parties was devoid of statutory flavour. It is the law that for employment without statutory flavour, the dictates of fair hearing is met upon opportunity given to the employee to state his case; even by the issuance of a query. In the case of FBN v. Akanji (2017) LPELR-43555(CA), the Court of Appeal held on the issue of fair hearing that:

In the circumstance therefore, the Appellant having served the Respondent a Query dated 11^th January, 1999, and the Respondent having voluntarily replied on the 11^th day of January, 1999 complied fully with the provisions in Clause 6 of the Employee Code of Conduct and Ethical Standard Guidelines. The Appellant in my view gave the Respondent in the instant appeal an opportunity to be heard. Upon being called upon to respond to allegations of gross, grave and grievous misconduct, the employer is entitled to dismiss if the reasons furnished by the employee in his response to the query are not concrete, cogent and convincing. In this case, I hold the view that the Respondent was given fair hearing and that the Appellant exercised its power to summarily dismiss the Respondent in line with Clause 4 of the Employee Code of Conduct and Ethical Standard Guide Lines.” Per ABUBAKAR, J.C.A. (Pp. 36-47, Paras. C-B)

See also the case of Monikhe v. Unity Bank PLC (2011) LPELR-1503(SC where the apex Court held that:

Accusing an employee of misconduct, etc by way of a query and allowing the employee to answer the query, and the employee answers it before a decision is taken satisfies the requirements of fair hearing or natural justice.”per RHODES-VIVOUR, JSC. (P. 31, Paras. F-G).

Exhibit C2 is the query given to the Claimant on the 2^nd of January 2020. It reads as follows:

“Explain in writing before close of work today why disciplinary action should not be taken against you for your gross misconduct and misbehavior in the outpatient department today. You literally walked into the medical superintendent even after coming late to work after 12 midday (sic). He called you to ask what could have been the reason for your misconduct and the only thing you could say is that “since you didn’t march him there is no offence taken”

23. There is no evidence that the Claimant responded to this query. Even though there is no documentary evidence of what transpired at the disciplinary panel, I do not find it probable that the three man panel as constituted in this case, sat, invited the Claimant and did not allow her to talk. Based on the nature of the employment (not being statutorily flavoured), and the cases cited above; I am of the opinion that the Claimant was given opportunity to state her case; first by the issuance of the query, and second, by the invitation to appear before the panel. See Venn v. Access Bank Plc & Ors Suit No: CA/L/134/2012( 2015) All FWLR (Pt. 772) 1765 @ 1786, 1796 CA). In the case of FBN v. Akanji (2017) LPELR-43555(CA), the Court of Appeal referred to several Supreme Court decisions on the issue of fair hearing and held that:

The position taken by the learned trial Judge and the eventual decision of the lower Court is contrary to the established principle of law set out in this Judgment. In exercising the powers of summary dismissal, it is sufficient if the employee is issued a query and allowed to willingly respond to same, by so doing the Constitutional right to fair hearing would have been observed.

24. Having agreed with the Claimant that the Defendant terminated her appointment because of the incidence of 2^nd January 2020, there is no need to continue to consider the effect of exhibit C3 purporting to disengage the Claimant on grounds of ongoing reorganisation. The Claimant could only have been disengaged based on either the incidence of 2^nd January, or the letter of 10^th January 2020. I therefore agree with Claimant’s evidence that:

The 1^st Defendant disguised what was in effect a dismissal from employment as termination of employment for ‘services no longer required’.

25. As a result of the finding above (paragraph 24) I can no longer delve into the legal implications of the letter of disengagement which gave other reasons for the Claimant’s disengagement. Therefore, the second issue “whether the termination of the Claimant’s employment was wrongful, arbitrary and violates international best practices” is resolved against the Claimant. This is because I have found under issue one that the Claimant was given opportunity to state her case, before her disengagement. First by the issue of a query, which she chose not to respond to; and second, by appearing before a panel set up by the 1^st Defendant, to state her case.

26. Issue three is “whether the failure to pay the Claimant her salaries at the end of every month and detaining the Claimant’s five (5) months arrears of salaries amounts to unfair labour practice and breach of her contract of employment”. Parties are in consensus that the Claimant was owed salaries at the point of her disengagement. Apart from the express provision in the contract of employment for the payment of salary (exhibit C1); it is an implied term into every contract of employment that the employee is entitled to his salary after he has performed his duties. By the provisions of section 15 of the Labour Act,

Wages shall become due and payable at the end of each period for which the contract is expressed to subsist, that is to say, daily, weekly or at such other period as may be agreed upon: Provided that, where the period is more than one month, the wages shall become due and payable at intervals not exceeding one month.

It is therefore a breach of contract of employment for the employer to have failed to pay the agreed salary, at the agreed interval of monthly. Unfair Labour Practice is any of various acts by an employer or labour organization that violate a right or protection under applicable labour laws (Merriamwebster Dictionary @ https://www.merriam-webster.com/legal/unfair%20labor%20practice accessed 10^th August 2022.) I find it an unfair labour practice, for an employer (the 1^st Defendant) to fail to pay an employee (the Claimant) for a continuous period of five months, in which the employee worked. I so hold.

28. Issue four is “Whether the various actions of the 1^st and 2^nd Defendants as outlined in this suit constitute sexual harassment, discrimination and victimization of the Claimant at the workplace and unfair labour practices”. I have considered the evidence of the Claimant with respect to sexual harassment alleged against the 2^nd Defendant. There is no evidence of the nature and incidences of the sexual harassment alleged by the Claimant. The Claimant did not lead evidence to show that she complained, reported or took any steps in reaction to the said sexual harassment. It is for the Claimant to establish a prima facie case of sexual harassment, and not to depend on the weakness or non-availability of the 2^nd Defendant, as proof of her allegation. The Claimant’s allegation of discrimination is on the ground of her gender and HIV status. The evidence before this Court does not show incidences of stigmatization of the Claimant on account of her HIV status. The Claimant did not lead any evidence to show she was deprived of any rights and privileges, or treated differently, on account of her gender or health status. If she was, there is no proof that she ever laid a complaint about it; so that we can begin to consider how the complaint was handled by the 1^st Defendant. I have considered the case of Ejieke Maduka v. Microsoft Nigeria Limited & ors [2014] 41 NLLR (Pt. 125) 67 NIC (also at https://compendium.itcilo.org/en/compendium-decisions/national-industrial-court-of-nigeria-ejieke-maduka-v-microsoft-19-december-2013-case-no-nicn-la-492-2012) referred to by the Claimant; and the case of Pastor (Mrs) Abimbola Patricia Yakubu v. Financial Reporting Council of Nigeria & anor Unreported Suit No. NICN/LA/673/2013, the judgment of which was delivered on 24th November 2016 where the Claimants were compensated for sexual harassment in the work places. The facts of those cases reveal the nature and incidences of the harassment, and the various steps taken to complain and report to co-workers, and to the authorities. In this case, such facts do not exist apart from the Claimant stating so ipse dixit, and after disengagement from employment. I find that the facts as stated in Claimant’s evidence do not establish sexual harassment, discrimination and victimization at the workplace and unfair labour practices. I so hold.

29. Issue five is “whether the Claimant is entitled to the reliefs sought in this suit”. I shall take the reliefs seriatim.

(i) The Claimant’s first relief is for “A Declaration that the termination of the Claimant’s employment by the Defendants in the manner outlined in this suit is wrongful, arbitrary, violates her right to fair hearing and against international best practice”. Based on my finding on issue one that the Claimant was given fair hearing; this relief fails.

(ii) The Claimant’s second relief for “A Declaration that the various actions of the Defendants as outlined in this suit constitute discrimination and victimization at the work place and unfair labour practice”, also fails, as a result of my finding in issue four that the Claimant failed to establish sexual harassment, discrimination and victimization at the workplace.

(iii) Relief three for “A Declaration that the discrimination and victimization of the Claimant base on her gender and health status is unlawful and unconstitutional” also fails in view of my finding under issue four.

(iv) Relief four is for “A Declaration that the failure and refusal of the Defendants to pay the Claimant her salaries at the end of every month is unlawful”. It is undisputed that the 1^st Defendant failed to pay the Claimant her salaries at the end of every month; leading to the Claimant being owed five months’ salary at the point of her disengagement. This is contrary to law and therefore unlawful.

(v) On relief five for “A Declaration that the failure and refusal of the Defendants to pay the Claimant her terminal benefits contemporaneously with the purported termination of her employment is unlawful and against international best practice”, I do not find any evidence that grants the Claimant any entitlement to terminal benefits. None is stated in exhibit C1 (the appointment letter), nor in exhibit C3 (the disengagement letter). The entitlement to terminal benefits is not proved as there is no document or evidence before this Court which grants it to the Claimant. This relief therefore fails. What the Defendant refers to as terminal benefits in exhibit D3, are actually Claimant’s due and owed salaries.

(vi) Relief six is for “A Declaration that the failure of the 1^st Defendant to remit pension and tax deductions made from the Claimant’s salaries to the requisite bodies since 2015 till the termination of her appointment is illegal. The case of the Claimant is that the 1^st Defendant made deductions of tax and pension without remittance. The Claimant presented nothing to show that there were deductions from her salary for tax and pension fund, nor evidence from the Tax Office to show that the deductions were not remitted. However, the 1^st Defendant’s witness (DW3) admitted during cross examination that tax and pension deductions were routinely made, and that there may have been shortfalls in the remittances, but that the Claimant was not singled out for the shortfall. The Claimant did not present any evidence from her Pension Fund Administrator to show that there is a short fall in the remittance of the amount she is entitled to. Furthermore, there is no evidence before the Court of the amount deducted and the months the deductions were made. In the circumstance, this relief cannot be granted as presently couched as there is no evidence to support it, especially with respect to the period; “since 2015”. It is however a legal duty on the 1^st Defendant to remit all deducted taxes and pensions, to the appropriate authorities, where not already done.

(vii) Claimant’s seventh relief for “the sum of N540,000 being unpaid salaries for the month of May, June, July, August and October 2019”, is overtaken as exhibit D3, shows that it has been paid.

(viii) Relief eight seeks for “the sum of N108,000.00 being one month’s salary in lieu of notice”. Exhibit C1 is the document that contains the terms and conditions of the Claimant’s employment. One of the clauses of the Conditions, has a heading “TERMINATION” The clause provides thus;

This appointment may be terminated by either party giving one-month notice or payment of one-month Basic Salary in-lieu of notice of termination.

Exhibit C1 states the Claimant’s basic salary as N240,000.00 per annum. Though the Claimant’s Counsel in exhibit C6 informed the 1^st Defendant that the Claimant’s salary had been increased following her promotion to N108,000.00 monthly salary, it did not state the basic salary. This relief cannot be granted as what is sought for is not the Claimant’s one month basic salary. It is in evidence (exhibit D1 and D3) that the 1^st Defendant has paid the Claimant what it computed as the Claimant’s one month basic salary in lieu of notice.

i) Relief nine is for “the sum of N54,000.00 being half-month’s salary for the period in January 2020 that the Claimant worked before the wrongful termination. Evidence shows that the Claimant was terminated on the 13^th of January 2020. The pro-rated salary for the period worked using Claimant’s N108,000.00 monthly salary is shown to have been paid. See exhibit D1 and D3.

j) The Claimant in her relief ten, seeks for “the sum of N64,000.00 being unpaid leave Allowances for December 2019. Exhibit C1 (the letter of employment) provides that the Claimant “is entitled to 21 days’ annual leave” and leave allowances to be paid at the approved rate. The Defendant made no response to this claim. I take it that the Defendant concedes to this relief. It is therefore granted. The 1^st Defendant is to pay to the Claimant, the sum of N64,000.00 being her leave allowance for December 2019.

k) The sum of N25,000,000.00 (Twenty-Five Million Naira) being general damages for wrongful termination of employment. I have already found that the Claimant’s disengagement was tantamount to a dismissal for an alleged misconduct, and that she was given fair hearing before the decision to determine her employment was made. This relief can therefore not be granted.

l) The sum of N50,000,000.00 (Fifty Million Naira) being general damages for Defendants’ various acts of victimization and discrimination. I have also found that the Claimant did not prove the ‘acts of victimization and discrimination. This relief therefore fails too.

m) The sum of N25,000,000.00 (Twenty-five Million Naira) being general damages for unfair labour practice (including refusal to pay salaries as and when due and failure to pay terminal benefits contemporaneously with termination as required by law. The Defendant conceded that it was owing the Claimant five months’ salary, and only paid after this suit was served on them. I found that it is unfair not to pay the Claimant her salary until she had to bear the cost of litigation. I am convinced that the Claimant deserves to be compensated for that breach, even though the salary has been paid. The Claimant has asked for N25,000,000.00 as general damages for unfair labour practice; including refusal to pay salaries as and when due. I have already found that the Claimant did not establish entitlement to the payment of terminal benefits.

The measure of general damages is awarded to assuage such a loss, which flows naturally from the Defendant's act. It needs not be specifically pleaded. It suffices if it is generally averred. They are presumed to be the direct and probable consequence of that complained of. See Elf Petroleum v. Umah & Ors (2018) LPELR-43600(SC). Unlike special damages, it is generally incapable of exact calculation. See Federal Mortgage Finance Ltd v. Hope Effiong Ekpo (2004) 2 NWLR (Pt. 865) 100 at 132, Dumez V. Ogboli (1972), 2 SC 196 and Waso v. Kalla (1978) 3 SC 21." Per OGUNBIYI, J.S.C. (Pp. 27-28, Paras. C-A). In the case of Ibrahim & Ors v. Obaje (2017) LPELR-43749(SC), the Supreme Court held that, "there is no yardstick for awarding general damages. In awarding general damages, the trial Judge should examine the circumstances of the case and grant an award guided by what a reasonable man would expect”. According to this Court in Babatunde Ajala v. Rite Pak Company Limited Suit No. NICN/LA/432/2013 judgment delivered on 28/1/2019 per BB Kanyip (PNICN):

SCC (Nig.) Ltd v. Elemadu [2005] 7 NWLR (Pt. 923) 84 to 85, relying on Chaplin v. Hicks [1911] 2 KB 786, held that the fact that damages are difficult to estimate and cannot be assessed with certainty or precision, does not relieve the wrong doer of the necessity of paying damages for its breach of duty of care and it is no ground for awarding nominal damages. The case, relying on Ehidiagbonya v. Dumez (Nig.) Ltd & anor [1986] 6 SC 149 at 164; [1986] 3 NWLR (Pt. 31) 753, went on to hold that in assessing general damages, the court has to consider what is fair and reasonable compensation for injuries sustained; and that previous awards made by judges in comparable cases can be relied on. In the area of damages for personal injury, Hamza v. Kure [2010] LPELR-1351(SC); [2010] 10 NWLR (Pt. 1203) 630 SC, and Edo State Agency for the Control of AIDS (EDOSACA) v. Osakue & ors [2018] LPELR-44157(CA), relying on Ighreriniovo v. SCC (Nig) Ltd & ors [2013] 10 NWLR (Pt. 1361) 138, held that general damages are awardable for pain and suffering, discomfort and permanent scarring, and that no principle can be laid down upon which damages for such pain and suffering can be awarded in terms of the quantum.

I award the sum of N2 Million as damages to the Claimant against the Defendants for the injury suffered by the Claimant by the 1^st Defendant’s failure to pay salaries; until the institution of this suit.

n) On the relief for “cost as may be assessed by the Court”, parties are to bear their individual costs for this action, since this suit did not succeed, fully.

Judgment is entered accordingly.

…………………………………….

Hon. Justice Elizabeth A. Oji PhD