Mrs. Eluemuno Olumagin -VS- Total E & P Nigeria Limited- National Industrial Court of Nigeria

IN THE NATIONAL INDUSTRIAL COURT

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

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

DATE: TUESDAY 16^TH MAY 2023 SUIT NO: NICN/LA/580/2018

BETWEEN

MRS. ELUEMUNO OLUMAGIN CLAIMANT

AND

TOTAL E & P NIGERIA LIMITED DEFENDANT

Representation:

Dr. Babatunde Ajibade SAN, Kolawole Mayomi, Emmanuel Bassey, and Miracle Eme

Adewale Atake, SAN, With Jacob Obi, Lawal Kazeem and Olasukanmi Otuyiga for the Defendant

JUDGMENT

Introduction and Claims:

1. The Claimant commenced this suit by a general form of complaint, statement of facts and other frontloaded processes, all dated 14^th November 2018. By an Order of Court made on 12^th January 2022, the Claimant amended her Complaint and claims against the Defendant, as seeks for the following reliefs:

i. A Declaration that there was no justification for the disciplinary action taken against the Claimant.

ii. A Declaration that the Defendant is in breach of the contractual obligations and responsibilities imposed on it by the various documents forming the contract of employment between it and the Claimant.

iii. A Declaration that the disciplinary procedure employed by the Defendant against the Claimant without following the company's rules, regulations and guidelines constitutes unfair labour practice, is unlawful, wrongful and was done in bad faith and contrary to Nigerian Labour Laws and principles of natural justice and fair hearing.

iv. A Declaration that the sanctions and penalties imposed on the Claimant i.e., the suspension without pay for 6 months and demotion as a result of the disciplinary procedure did not follow the company's rules, regulations and guidelines, constitutes unfair labour practice, is unlawful, wrongful, was done in bad faith and is contrary to Nigerian Labour Laws.

v. A Declaration that the actions the Defendant took against the Claimant amounted to a constructive dismissal of the Claimant from its employment and was a wrongful dismissal in the circumstances.

vi. An Order directing the Defendant to pay to the Claimant all her salaries and allowances as Deputy General Manager, Recruitment and Manpower Development (DGM RMPD) from the date of her purported suspension till the date of judgment in this suit.

vii. Interest at the rate of 21% per annum on the Claimant's salaries and allowances claimed in paragraph (vi) above from the dates on which these payments fell due till the date of judgment in this suit and thereafter at the rate of 10% until the date of payment.

viii. Damages in the sum of N100,000,000.00 (One Hundred Million Naira Only) as compensation for the emotional trauma and reputational damage suffered by the Claimant as a result of the Company's various breaches of the terms of her contract of employment

ix. The sum of N10,500,000 (Ten Million, Five Hundred Thousand Naira) being the legal cost of instituting this action and out of pocket expenses to be assessed at the close of hearing.

2. In response to the claims, the Defendant filed its statement of defence dated 21^st January 2019. The Claimant filed an amended Reply to the statement of defence on 15^th January 2020. Trial commenced on 29 July 2021, and was concluded on 3^rd November 2021. The Claimant testified for herself as sole witness at the proceeding of 29 July 2021 by adopting her Witness Statements on Oath (WSO) deposed to on 14^th November 2018 and her Further Statement on Oath deposed to on 4^th November 2020. The Claimant was cross-examined on the same date. Claimant’s counsel tendered 33 documents through the Claimant which were admitted as Exhibits C1 - C33. Claimant’s counsel also tendered 2 additional documents from the Bar and same were admitted as exhibits C34 and C35 at the proceeding of 1^st March 2022. The exhibits C1 – C35 are as described below:

S/N	Claimant’s Document	Exhibit No.
1.	The Claimant’s letter of employment dated 10^th June 2002.	C1
2.	The Defendant’s Code of Conduct.	C2
3.	The Defendant’s Discipline Policy.	C3
4.	The Defendant’s letter of 19^th July 2018.	C4
5.	The Defendant’s letter of 31^st July 2018.	C5
6.	The Defendant’s letter of 11^th September 2018.	C6
7.	The Interview Report Forms for Dr. Ayodeji Sasegbon.	C7
8.	The Defendant’s letter dated 13^th December 2004.	C8
9.	The Defendant’s letter dated 1^st December 2008.	C9
10.	The Defendant’s Internal Memo dated 29^th June 2017.	C10
11.	Email exchanges between the Claimant and various officials of the Defendant.	C11
12.	Email exchanges between the Claimant and the Defendant’s Investigation Officer and Adhoc Disciplinary Committee.	C12
13.	Defendant’s freeze order email of 18^th March 2015.	C13
14.	Email correspondence from Total HQ dated 12^th June 2017 between Monique Simon and Paul Odekina containing request for and grant of the required approval for the recruitment into 17 positions.	C14
15.	Minutes of HR MANCOM’s meeting of 28^th June 2017 conveying their directive to HR on how the vacancies should be filled.	C15.
16.	Email exchanges in respect of the 2017 recruitment in compliance with HR MANCOM’s directive.	C16
17.	Email exchanges between the GM HR DW and the EGM DW FOPS on the top 5 positions for recruitment in Deep water field operations.	C17
18.	Email exchanges between the GM HR DW, Egina Project Management and the DMD DW on the recruitment of 2 Subsea Engineers in the 2017 recruitment process.	C18.
19.	The Defendant’s Recruitment Policy.	C19
20.	Performance shares award letters of 26^th July 2012, 25^th July 2013, 28^th July 2016, 3^rd July and 9^th April 2018 issued by the Defendant.	C20
21.	The Claimant’s conflict of interest declarations.	C21.
22.	The Defendant’s Disciplinary Procedure for Managers.	C22
23.	The Defendant’s Recruitment Procedure.	C23.
24.	The Defendant’s Grievance Procedure for Managers.	C24.
25.	The Whistle Blower’s petition dated 7^th November 2017.	C25
26.	Email exchanges between the Defendant’s officials, Mr. Nicholas Terraz, Mr. Kingsley Ojoh and Mr. Dornu Kogam between 9^th December 2017 and 17^th December 2017.	C26.
27.	The Minutes of HR MANCOM meeting of 31^st August 2017 [incomplete copy].	C27
28.	Email exchanges between the Defendant’s officials - Dr. Yakubu Belgore, Mr. Bamidele Emmanuel and Mrs. Tonye Osifo dated 14^th July 2017.	C28
29.	The Structured Interview and Final Interview Reports of Dr. Sasegbon dated 6^th and 7^th September 2017.	C29
30.	The Defendant’s Whistle Blowing Policy (Anti-Corruption Compliance).	C30
31.	The Defendant’s Investigation Officer’s Report dated 28^th March 2018.	C31
32.	The Final Report of the Defendant’s Ad-hoc Disciplinary Committee.	C32
33.	The Defendant’s TAS Personnel Mobilization Form in relation to Dr. Ayodeji Sasegbon, approved on 27^th November 2015.	C33
34	Minutes of HR MANCOM meeting of 31^st August 2017 (Complete copy).	C34
35	The Defendant’s conflict of interest procedure.	C35

3. The Defendant opened its case on 3^rd November 2021, and concluded on the same date. The Defendant called two witnesses: (i) Mrs Chigor Wabali who is the Compliance Officer of the Defendant; and (ii) Mrs Gillian Laniyan who is the Manager, Diversity and Human Resources Methods of the Defendant. The two witnesses were cross-examined on the same date. The Defendant tendered 13 documents through DW1, which were admitted as exhibits D1 – D13, as follows:

S/N	Defendant’s Document	Exhibit No.
1	Letter of Offer of Employment to the Claimant dated 10^th June 2002.	D1
2.	Defendant’s Recruitment Procedure dated 11^th September 2012.	D2
3.	Defendant’s Anti-corruption for Human Resources Procedure containing Appendix 2 dated 22^nd January 2016.	D3
4.	Defendant’s Discipline Policy dated 19^th May 2014.	D4
5.	Defendant’s Disciplinary Procedure for Managers dated 17^th June 2014.	D5
6.	Defendant’s Code of Business Ethics updated June 2008.	D6
7.	Ayodeji Sasegbon’s technical test result score sheet of 1^st November 2014.	D7
8.	Email of Chigor Wabali inviting the Claimant to appear before Disciplinary Committee dated 21^st May 2018 and the Claimant’s reply emails.	D8
9.	Ad Hoc Disciplinary Committee April – May 2018 Report.	D9
10.	Defendant’s Letter to the Claimant dated 19^th July 2018.	D10
11.	Claimant’s Letter to the MD/CEO dated 31^st July 2018.	D11
12.	Defendant’s Letter to the Claimant dated 1^st August 2018.	D12
13	Defendant’s Letter to the Claimant 11^th September 2018.	D13

4. At the end of trial, parties were directed to file their final written addresses. The final written addresses were adopted on 30^th March, 2023, and the matter adjourned for judgment.

CASE OF THE CLAIMANT

5. The Claimant was an employee of the Defendant, serving in the role of Deputy General Manager, Recruitment and Manpower Development and was employed by the Defendant on 1^stJune 2002. The Claimant rose rapidly through the Defendant's ranks and was appointed Deputy General Manager, Recruitment and Manpower Development in June 2017. The Defendant is a multinational private limited company registered under the laws of Nigeria with its offices at Eko Tower, 141 SE, Adetokunbo Ademola Street, Victoria Island, Lagos. On 29^thJune 2017, the Claimant was promoted two levels from Career Manager, Geosciences Development (job level 13) to Deputy General Manager, Recruitment and Manpower Development (DGM RMPD) (job level 15), to succeed her former boss, Mrs. Evi lfekwe, who had also been promoted to General Manager Human Resources Joint Venture (GM HR JV), with both appointments to take effect from 3^rdJuly 2017. The appointment memo issued by the Defendant is dated 29^thJune 2017 and was published on its intranet site on that date. Following the promotion, the Claimant proceeded on her annual vacation, which was already due, before returning to take up the new role on 7^th August 2017. As the Claimant's leave coincided with the resumption of her predecessor, Mrs. Evi lfekwe in her new position as GM HR JV, her predecessor was unable to issue a formal handover to the Claimant at the time she left the position. Upon the Claimant's resumption after her leave, she was met with the task of transitioning to her new role and was completely reliant on her new immediate superior, Mr. Paul Odekina, the Executive General Manager, Human Resources (EGM HR) for information and direction on what was required of her in her new role. On assuming the new position of DGM RMPD on 7^thAugust 2017, the Claimant met the 28^1hJune 2017 directive of the Human Resource Management Committee (HR MANCOM), the Defendant's highest HR body made up of the Managing Director, both Deputy Managing Directors for the Deep Water and Port Harcourt Districts, the Executive Director Corporate Affairs & Services and the Executive General Manager Human Resources, directing that 17 vacant posts be filled. HR MANCOM at its meeting of 28^thJune 2017 had directed the HR Division to obtain identification and revalidation by Line Management of internal high performers from the pool of candidates that took part in the frozen 2014 recruitment exercise as well as from a few other special catchment groups, including the Egina Project Trainee group, for possible employment in 2017. Before the Claimant resumed office on 7^1hAugust 2017, her superiors; Mr. Paul Odekina, the EGM HR, Mrs. lfekwe, the GM HR JV and Mrs. Kofo Ati John, the General Manager, Human Resources, Deep Water (GM HR DW), as well as the Manager, Careers Support Metiers, who had acted in the Claimant's new role in her absence, had already commenced the implementation of this directive and had confirmed the 13 candidates identified and revalidated by their Line Managers as at that date, to be considered for employment. The Claimant followed through with this process resulting in the employment of 13 candidates made up of 11 who had participated in the frozen 2014 recruitment exercise and who were nominated by their Line Managers and 2 who were part of the Egina Project Trainee group, leaving 4 places unfilled as at the time the 2017 recruitment process was halted. The process employed in the recruitment of these candidates complied with the policies and guidelines established by the Defendant and set out by the HR MANCOM, as the Claimant understood them.

6. The Allegations of Improper Conduct - In February 2018, the recruitment process for the outstanding 4 positions was halted on the basis of a purported anonymous petition against the Human Resource Division's handling of the 2017 recruitment exercise. The investigation officer appointed by the Defendant claimed that the petitioner made the following allegations:

(i) That senior HR Management staff and some high-ranking individuals in the Company selected their own candidates, mainly contract staff and converted them to permanent staff.

(ii) That this amounts to unethical conduct bordering on nepotism and favouritism as there were candidates better qualified than the selected ones among the Company's contract staff to fill the available permanent positions.

7. The Defendant assigned an investigation officer from the compliance unit to verify the contents of the petition. The Defendant also set up an ad-hoc disciplinary committee, chaired by the Executive Director Corporate Affairs and Services (ED CAS), Mr. Abiodun Afolabi, who has direct supervision of the HR Division and was thus being made a judge in his own case, as he had supervised the process complained of. Over the period of investigation which spanned 7 months, the Claimant was severally contacted by the investigation officer and members of the committee to provide documentation on the new hires including their complete recruitment dossiers which contain all documents related to the tests and interviews they participated in and she provided everything that was requested of her. Further, by an email of 21^st May 2018 from Chigor Wabali, Compliance Officer Port Harcourt, the Claimant was invited for an interview with the disciplinary committee on 25^thMay 2018 following the conclusion of the investigation on fraudulent and unethical recruitment. The email did not disclose the specific reason(s) for the invitation in order for the Claimant to adequately prepare for it. At the sitting of the ad-hoc disciplinary committee she was asked to explain: “Whether she disclosed her relationship with one of the recruited staff, Dr. Ayodeji Sasegbon during the recruitment exercise”; and “Whether she did not mislead management by failing to advise that Dr. Ayodeji Sasegbon was rejected as a candidate in 2014, and more generally; that the 24-month validity period for the 2014 selection process as stipulated under the Defendant's recruitment policy had lapsed, and that the recruitment process was therefore wrongly restarted.

8. In response to these questions, the Claimant provided documents and copies of emails to the investigation officer and the ad-hoc committee at separate times establishing that she made full disclosure of her relationship with Dr. Sasegbon. Each Conflict of Interest (COI) declaration was duly received and acknowledged by her superiors and are available in the Defendant's records. In compliance with the mitigation recommended by her superiors with each declaration, she did not participate in any of the decision making concerning Dr. Sasegbon's recruitment. The Claimant had disclosed her relationship with Dr. Sasegbon via the Defendant's Conflict of Interest Declaration forms in 2016, 2017 and 2018. In addition, the Claimant asserted that the decision for Dr. Sasegbon to be included in the recruitment process was reached before her resumption. It was thereafter reviewed by her senior colleagues and bosses and approved by the HR MANCOM. The Claimant further avers that, as important as the Line Managers' recommendations were to the recruitment process, from needs identification to the assessment of competencies at shortlisting and as members of the interviewing panels, they were not contacted or interviewed by either the investigation officer or the ad-hoc disciplinary committee throughout the investigation process.

9. The Claimant’s Position - During the 2014 recruitment exercise, the Claimant was in France, and had been in France from September 2010 to September 2014 on an international assignment with the Defendant's headquarters. The records show Dr. Sasegbon participated in the 2014 recruitment exercise, and the structured interview panel made the following comments: "for candidate 6, the proposal to regret him was because we felt the role will not challenge him enough". Dr. Sasegbon was subsequently employed as a contract staff on 1^stDecember 2015. His personnel mobilization request form was endorsed and stated that "the candidate had been previously interviewed for permanent employment and is being hired on a contract basis. DMD approval received for mobilization". This form was signed off by the Defendant's Deputy Managing Director Deep Water (DMD DW); Mr. Ahmadu-Kida Musa; the General Manager Deep Water C&P (GM DW C&P); the GM DW Human Resources, and the Executive General Manager Deep Water Field Operations (EGM DW FOPS). At the time Dr. Sasegbon was employed as a contract staff, the Claimant was in her previous role of Career Manager Geosciences & Business Metiers and did not have any involvement in his recruitment. The recruitment of contract staff is not handled by the Defendant's central HR Division where the Claimant worked, but is the prerogative of the particular recruiting entity, in this case DW FOPS. Prior to the Claimant's resumption into her new role on 7^thAugust 2017 and in giving effect to the 28^thJune 2017 recruitment directive issued by HR MANCOM, the Defendant's Line Managers had put forward a total of 13 candidates including contract staff who had been identified as high performers, the bulk of which were from the 2014 recruitment exercise. These candidates had been confirmed by the Claimant's superiors; Mr. Paul Odekina, the EGM HR, Mrs. lfekwe, the GM HR JV and Mrs. Kofo Ati-John, the GM HR DW, as well as the Manager, Careers Support Metiers, who had acted in the Claimant's new role in her absence. Following these already completed stages of the 2017 recruitment, the Claimant upon resumption, was asked by the EGM HR to prepare a presentation for him on the remaining stages in the recruitment process to be delivered at the HR MANCOM meeting of 31^stAugust 2017. The information in the presentation was based on the work already carried out as described in paragraph 25 above and was collated in a meeting with the GM HR JV. The Claimant circulated the resulting recruitment status to her three superiors. With additional information from discussions that followed with the EGM HR, GM HR JV and GM HR DW, the presentation was updated accordingly and re-circulated to them via email. As with all presentations to HR MANCOM, the EGM HR reviewed the final slides with the ED CAS, Mr. Abiodun Afolabi and it showed the completed stages, and the next steps in the recruitment process for each of the candidates revalidated for 13 of the 17 approved positions as at that date (including Dr. Sasegbon, and Ms. Ayoyimika Lasaki) as well as the next steps for the 4 outstanding positions. Following further approval of this recruitment process at the HR MANCOM meeting of 31^stAugust 2017, the Claimant carried on with the implementation of the exercise exactly as was approved at the HR MANCOM meeting. The candidates who had already completed the recruitment process in 2014/2015 simply underwent a medical assessment and collected their offer letters. The other candidates (i.e. Dr. Sasegbon and the Egina project trainees) who were highly recommended by their entities but had not completed the recruitment process were required to undergo the usual rigorous structured interviews, final panel interviews and medicals before receiving an offer. From the documents provided by the GM HR DW for the DW FOPS positions, the Line Manager, EGM OW FOPS gave a positive recommendation of Dr. Sasegbon's competencies, performance and demonstrated potential on the job while working as a contract staff. Also, the position Dr. Sasegbon was being considered for in the 2017 recruitment process was that of Process Engineer Smart Room and not that of Junior Process Engineer, for which he was considered in the 2014 recruitment, and which the interview panel concluded would not be sufficiently challenging for him. In any event, as required by the Defendant's conflict of interest policy and given her declared conflict of interest, the Claimant did not sit on any of the interview panels involving Dr. Sasegbon and played no role in the decision making that resulted in his being offered permanent employment with the Defendant.

10. The Defendant's Decision - Based on the outcome of the purported investigation carried out by the investigation officer and the ad-hoc disciplinary committee, the ED Corporate Affairs & Services by a letter dated 19^1hJuly 2018, conveyed the Defendant's decision to the Claimant. It stated that the Claimant's oral and written explanations failed to satisfactorily explain the irregularities in the 2017/2018 recruitment process, and that her conduct in the process gave rise to unethical conduct, non-adherence to company policy and dereliction of duty which fell short of the standard expected of a DGM of Recruitment and Manpower Development in the Company. Based on these purported findings, the Defendant proceeded to impose the following grave sanctions on the Claimant: suspension without pay for a period of 6 months starting from 1^stAugust 2018, and demotion from the position of Deputy General Manager to Manager. The Defendant's letter of 19^thJuly 2018 did not disclose the specific irregularities in the recruitment process nor did it state the policy of the Defendant that the Claimant was accused of not adhering to nor did it provide any details of the unethical conduct and dereliction of duty alleged against her as a basis for the drastic and severe punishment meted out against her. The Claimant was also not provided with a copy of the ad-hoc disciplinary committee's findings.

11. The Claimant's Complaint - Throughout the investigation process right up until the time a decision was taken to impose disciplinary sanctions on the Claimant, the Claimant was never told what the specific allegation(s) against her were, as is required by the Defendant's Grievance Procedure for Managers. The Claimant was left to speculate and piece together what these allegations were, from the questions she was asked by the investigation officer and the ad-hoc disciplinary committee on various occasions. As a result, she was deprived of the opportunity to prepare an adequate defence in response, in breach of the principles of natural justice and fair hearing. The Defendant's Grievance Procedure for Managers provides the necessary steps to be taken before disciplinary measures can be taken against an officer of Manager status and these include: Issuing an official query to the officer concerned; Providing an opportunity for the officer to respond to the query within 48 hours; and a review of the response to the query and recommendation of appropriate action. None of these steps were followed in meting out punishment to the Claimant in flagrant breach of the Defendant's own policy. Also, paragraph 7.2 of the Defendant's Grievance Procedure for Managers provides as follows:

If a manager commits an offence of a serious nature, or if he or she flagrantly breaches company's rules and regulations which warrant more serious disciplinary action than a warning but does not warrant termination or dismissal, the Line Management may recommend that the manager be suspended from work without pay for a maximum period of three (3) weeks.

It is the case of the Claimant that contrary to these express provisions of the Defendant's own policies, disciplinary measures were taken against her without following due process. The Claimant, aggrieved by the decision of the ad-hoc disciplinary committee, by letter dated 31^stJuly 2018, appealed to the Defendant's Managing Director/Chief Executive for a review of the ad-hoc disciplinary committee's decision, which was tantamount to a constructive dismissal. The Defendant's Executive Director Corporate Affairs & Services who was also Chairman of the Ad hoc Disciplinary Committee responded to this request almost 6 weeks later by a letter dated 11^thSeptember 2018, indicating that it did not accept the Claimant's appeal and would not depart from the decision contained in its letter dated 19^thJuly 2018. The Claimant avers that apart from being wrongful, the disciplinary measures taken against her were prejudicial, vindictive and discriminatory and amounted to a witch hunt for the following reasons: The Defendant imposed arbitrary disciplinary measures without disclosing the specific offences for which the punishments apply; the disciplinary measures applied randomly to senior HR managers involved in the 2017 recruitment exercise, are arbitrary and discriminatory; ranging from a mere warning letter to some, suspension for between 1 - 3 months to others and a demotion and six months suspension without pay for the Claimant; there was no justification for this discrimination, given that the selection process from 2014 had been originated and the shortlisted candidates in 2017 confirmed by the other senior HR managers, in line with HR MANCOM directives before the Claimant assumed her new office in August 2017. It was the remaining stages of this selection process that the Claimant completed upon her resumption to her new office, with the approval of her supervisors and under the general direction provided by HR MANCOM. The ED, CAS, Mr. Abiodun Afolabi, who was also involved in this process and who has supervisory responsibility for the Defendant's HR Division and is by virtue of his position one of the persons indicted by the complaints alleged to have been made in the petition, was the same person who selected the members of the ad-hoc disciplinary committee, presided over its activities and signed the letter communicating its findings and the sanctions imposed upon the Claimant.

12. As a result of the Defendant's actions and given the Claimant's previous record and progress in the Company, the Claimant's continued employment with the Defendant was rendered untenable, as it had created a hostile work environment and impossible work conditions with the damning allegations of misconduct and the unjustifiable demotion to the rank of manager. The Claimant concluded that the Defendant's actions amounted to a constructive dismissal, and consequently handed in her resignation by a letter dated 26^thOctober 2018. Subsequent to her constructive dismissal by the Defendant, the Claimant was employed by Seplat Petroleum Development Company where she earned 65 million Naira per year as her gross earnings. This amount is far less than the sum of 94^1/2million Naira per year which the Claimant earned as her gross earnings whilst she was in the employment of the Defendant. As a result of the Defendant's actions, the Claimant has suffered significant emotional trauma and damage to her reputation with her colleagues and subordinates in the Defendant's Nigeria Office and Paris Head Office and in the professional HR community in the Oil & Gas Industry in Nigeria brought about by this unwarranted assault on her integrity.

CASE OF THE DEFENDANT

13. It is the Case of the Defendant that there was a whistle blower petition that was directed to the Defendant which indicted the Claimant as the Deputy General Manager, Recruitment and Manpower Development. The Defendant set investigation officers and a committee to investigate the matters. All the employees that were involved in the recruitment were interviewed, requested to submit documents in relation to the recruitment, and the Claimant was invited to appear before the Committee. The finding of the Defendant was that the Claimant as the Deputy General Manager, Recruitment and Manpower Development failed to comply with the Defendant’s Policies and Rules. The Defendant alleges that the Claimant failed to: complete and submit her declaration of conflicts of interest COI Declaration Specific to the 2017/2018 recruitment exercise; failed to activate candidates’ ant-corruption safeguards, utilised expired Aptitude Test results without derogation/approval, failed to advertise vacancies, unilaterally alternated the order of the recruitment procedure for the positions of Subsea Engineers; and scheduled Structured Interview and FPI for a candidate based on “regretted” status in the 2014 exercise. The Disciplinary Committee found the Claimant liable and recommended summary dismissal for the Claimant but the Defendant’s EH DC then recommended a derogation by the MD/CE for a suspension for 6 months without pay and demotion by one step in consideration of the Claimant’s long years of service to the Defendant. The Defendant states that all the processes of fact findings were carried out in accordance with the Defendant’s Rules and Policy. The ED CAS was not indicted in the Investigation Report, did not constitute the AH DC as alleged by the Claimant but was like the other members of the AH DC, appointed by the MD/CE. The Claimant did not object to the ED CAS being on the AH DC when she appeared before the AH DC.

14. The Defendant states that two other employees whose infractions were found to warrant termination were, like the Claimant, recommended for suspension for 9 months without pay and redeployment outside HR, while one of the two employees was additionally recommended for demotion. Another employee was similarly recommended for 6 months suspension without pay and redeployment outside HR rather than outright termination of their employment. Eventually, the Claimant was suspended without pay for 6 months and demoted by one step effective 1 August 2018 through the Defendant’s letter dated 19 July 2018. The Claimant appealed the disciplinary measures to the MD/CE by a letter dated 31 July 2018 which the MD/CE acknowledged on 1 August 2018 and formally responded on 11 September 2018 through the Executive Director, Corporate Affairs and Services (ED CAS), refusing the appeal. About 3 months into her 6 months suspension without pay, the Claimant resigned her employment with the Defendant on 26 October 2018 and immediately took up employment with Seplat Petroleum Development Company Limited. The Claimant then filed this suit on 14 November 2018, alleging constructive dismissal against the Defendant.

CLAIMANT’S REPLY TO THE STATEMENT OF DEFENCE

15. The Claimant replied that the purported anonymous whistle-blower's petition of 7^thDecember 2017 was never shown to her and was used as an excuse to prosecute a witch hunt against her. The Defendant did not give the Claimant a copy of the Investigating Officer's Report upon which the ad hoc disciplinary committee purportedly based its proceedings nor was she provided with details of the alleged factual findings. The Claimant replied further that the Investigation Officer was not receptive to the submission of further documentation to support the explanations which the Claimant gave during an oral interview on 27^thFebruary 2018. The Investigation Officer made random requests for documents he considered to be necessary, but rebuffed the Claimant's attempt to provide further documentation on the ground that the Claimant should not provide him with any documents he did not specifically ask for, "as that would send his investigation in several directions". The Claimant replied that the criteria adopted for filling the 17 vacancies identified in the 2017/2018 recruitment exercise was as directed by HR MANCOM, the Defendant’s highest decision-making organ on HR matters, at its meeting of 28^1hJune 2017. The Claimant further replied that the Defendant's imposition of disciplinary sanctions on the Claimant were higher than the measures stipulated in the Defendant's own Grievance Procedure, and the imposed sanctions in lieu of terminating her employment supports her contention that the steps taken amounted to a constructive dismissal. The Claimant replied that HR MANCOM's directive to the HR department on how to fill the 17 vacancies did not require the internal/external advert mode, but a simple validation of high performing TAS candidates by their line managers. The Claimant replied that she was not involved in any manner, in the meeting of HR MANCOM on the 28^th June 2017 which determined that successful candidates at the 2014 recruitment exercise should not be a guarantee to automatic employment; and HR should work with entities to ensure that "only high performers are finally recruited'. The Claimant replied that the decision to include Dr Ayodeji Sasegbon in the 2017/2018 recruitment process was reached before the Claimant resumed in her new role on 7^thAugust 2017 and originated from his entity's Executive General Manager, Mr. Nathanael Herbomez.

SUBMISSION ON BEHALF OF THE DEFNDANT

16. The Defendant, in its final written address, set down a lone issue for determination:

Whether on the state of the settled pleadings and the evidence adduced at trial, the Claimant has on the balance of probabilities, proved her case against the Defendant as to be entitled to the reliefs sought?

17. In arguing the lone issue, the Defendant argued that the Claimant had failed to prove with credible evidence that the Defendant’s action against her amounts to constructive dismissal. The Defendant submits that for a party to succeed in a case of constructive dismissal, the party must prove that (i) the employee resigned on the advice or request of the employer; or (ii) the employee was forced to resign due to an employer’s action or inaction. The Defendant argued that the action taken against the Claimant was in the interest of the Defendant and same cannot amount to constructive dismissal. The Defendant referred to the case of Ukoji v. Standard Alliance Life Assurance Co Ltd (2014) 47 NLLR (Pt. 154) 531 NIC. The Defendant submits that Claimant’s infractions warranted dismissal or termination of the Claimant’s employment, however, in consideration of the Claimant’s long years of service to the Defendant, the Defendant recommended a waiver of the termination sanction and the MD/CE’s derogation to impose the lesser sanction of 6 months suspension without pay and redeployment outside HR department. The Defendant further argued that Claimant in the instant case did not resign her employment with the Defendant “soon after the incident” of the imposition of the disciplinary measures of suspension for 6 months without pay and demotion under Exhibits C3 / D10 of 19 July 2018. Rather, she waited until 3 months after the act, halfway through serving the 6 months suspension and until she apparently secured a parallel and equally competitive employment with Seplat, before resigning her employment. The Defendant relied on the case of Western Excavating (ECC) Ltd v. Sharp [1978] 1 All ER 713 at 717, which was applied by Dr B.B. Kanyip, President of the National Industrial Court of Nigeria (PNIC) in Joseph Okafor v. Nigerian Aviation Handling Company Plc Unreported Suit No: NICN/LA/29/2016, when he held that:

The claimant himself made the point that the employee must resign in response to the breach; and must not delay too long in acting on the breach…to be able to succeed in a claim for constructive dismissal. The Claimant must show that he resigned soon after the incident(s) he is complaining about.

18. The Defendant draws the conclusion that the Claimant was not forced or coerced by the Defendant’s conduct to resign her employment. The Defendant argued that the Defendant did not take the disciplinary action against the Claimant for no just cause as claimed by the Claimant. The Defendant argued that the Claimant did not deny the fact that she failed to complete and submit her COI declaration specific to the 2017/2018 recruitment exercise as compulsorily stipulated under Exhibit D3 and as found by the AH DC at paragraph (h), page 13 and paragraph (e), page 19 of Exhibits C32/D9. The Defendant argued that the Claimant failed to raise question in line with exhibit D3 and having failed to do same, the Defendant found the Claimant’s action as being grossly negligent in the discharg of her duties and non-adherence to Company Policies & Procedures which she was meant to uphold.

19. On the non-issue of query as required by the Defendant’s Grievance Procedure for Managers, the Defendant argued that the nature of the allegation against the Defendant by one of the contract staff (whistle-blower petition) for the abuse of office by the Claimant, there was no obligation to issue the Claimant a query under exhibit C24 because it was not predicated on the Defendant’s Grievance Procedure for Managers (Exhibit C24). The Defendant submits that this Court is bound, in interpreting Exhibit C24, to confine itself to the four walls of the document and may not import additional words or clauses into it. The Defendant argues that it accorded the Claimant with fair hearing before imposing the sanction as the Claimant was interviewed, invited for questioning and was asked to submit documents relating to the allegation against her. The Defendant further submits that when disciplinary measures were eventually imposed on the Claimant on 19 July 2018 (Exhibits C4/D10) following the findings and recommendations of the AH DC in Exhibits C32/D9, the Claimant appealed the measures to the MD/CE by her letter of 31 July 2018 (Exhibits C5/D11) and did not make any allusion to being denied fair hearing in any form.

20. On the issue that the Executive Director, Corporate Affairs and Services (ED CAS) was made judge in his own case, the Defendant argued that although the participation of ED CAS in 2017/2018 recruitment exercise was a limited role and was also copied the whistle-blower petition, the ED CAS did not appoint the Investigation Officer as alleged by the Claimant; the ED CAS was not indicted in the Investigation Report (Exhibit C31); the ED CASE did not constitute the AH DC as alleged by the Claimant but was, like the other members of the AH DC, appointed by the MD/CE; and the Claimant did not object to the ED CAS being on the AH DC when she appeared before the AH DC. The Defendant also argued that the Claimant did not discredit all this fact in her evidence or during cross- examination.

21. On the issue that suspension without pay for 6 months was not in tandem with exhibit C22/D5, the Defendant argued that the Article only applies where there is a complaint to a Line Manager of a subordinate Manager’s commission of a serious offence or breach of company rules in furtherance of which the Line Manager instigates a regular disciplinary action that results in the suspension (and not termination or dismissal) of the defaulting Manager, in which case the Line Manager may recommend suspension without pay for up to 3 weeks. The Defendant argues that the nature of the whistle blower was not contemplated in the exhibit and that termination was recommended for Claimant under Exhibit C32/D9, but the panel recommended a waiver of the termination and the MD/CE’s derogation to impose the lesser sanction of 6 months suspension without pay and redeployment outside HR Claimant’s.

22. On the issue of monetary reliefs, the Defendant argued that the monetary relief is in the nature of special damages which must be specifically pleaded and strictly proved as was held in the case of Adekunle v. UBA Plc (2016) LPELR-41124 (CA). The Defendant argues that the Claimant having failed to specifically plead and adduce evidence to strictly prove her entitlement to salaries and allowances in this suit, must accordingly fail. The Defendant argued that the Claimant having failed to prove its substantive case, cannot be entitled to general damages by relying on the case of Royork (Nig) Ltd v. AG and Commissioner for Justice Sokoto (2021) LPELR-55023 (CA). On cost of this action, the Defendant argued that the position of the law is that a litigant cannot pass the burden of cost of litigation to the opponent. The Defendant relied on the case of DHL v. Eze-Uzoamaka (2020) LPELR-50459(CA) and urged the Court to dismiss the case of the Claimant.

SUBMISSIONS ON BEHALF OF THE CLAIMANT

23. The Claimant raised three issues for determination as follows:

(1) Whether the disciplinary actions taken against the Claimant by the Defendant, the procedures the Defendant employed in taking these actions, and the arbitrary sanctions the Defendant imposed on the Claimant as a result of the unjust and unfounded allegations leveled against her were in breach of the Defendant’s disciplinary procedures, guidelines and policies, denied the Claimant her constitutional right to a fair hearing, were a breach of the Claimant’s contract of employment and therefore amounted to unfair labour practices?

(2) Whether the unfair labour practices and arbitrary disciplinary sanctions imposed on the Claimant by the Defendant made the Claimant’s continued employment with the Defendant untenable, leading to her forced resignation and constructive dismissal from the Defendant’s employment, and whether the said dismissal was wrongful in the circumstances?

(3) Whether from the facts and evidence adduced in this case, the Claimant is entitled to the reliefs sought?

24. On issue one; the Claimant argued that the Defendant failed to follow procedure leading to imposition of arbitrary disciplinary action against the Claimant, that the Defendant failed to issue query as provided by Exhibit C22 and was not given adequate time to respond before taking disciplinary action on the Claimant. The Claimant submits that it is settled law that where an employer accuses an employee of misconduct, the employer must issue the employee with a query in respect of that misconduct, and the employee must have answered the query before the employer can take any action against the employee. The Claimant relied on the case of Sahara Energy Resources Ltd. v. Oyebola (2020) LPELR-51806(CA), where the Court of Appeal held among other things that failure of the Appellant to adhere strictly to its Disciplinary Procedure Code and Manual before dismissing the Respondent amounted to a denial of Respondent’s right to fair hearing and rendered the dismissal of the Respondent unlawful. The Claimant also argued that from the evidence elicited from the Defendant’s witness under cross- examination, it is without doubt that the Defendant failed to provide the Claimant with a copy of the whistle blower’s petition (Exhibit C25) and the investigation report (Exhibit C31) which was produced following the petition, both of which documents indicted the Claimant. The Claimant submits that this amounts to a violation of the Claimant’s constitutional right to a fair hearing.

25. The Claimant argued that Mr. Abiodun Afolabi, the Defendant’s ED-CAS, who had direct oversight over the impugned 2017/2018 recruitment exercise, was the Chairman of the AH-DC that imposed sanctions for the alleged wrongdoing in the 2017/2018 recruitment exercise. Learned Silk, on behalf of the Claimant submits that the Defendant denied the Claimant the right to principles of natural justice as is settled law that a man shall not be a judge in his own cause. The Claimant argued that the Defendant failed to adhere to its Disciplinary Procedure for Managers (Exhibit C22) before imposing arbitrary sanctions on the Claimant.

26. On the issue that Claimant failed to fill a conflict of interest declaration form prior to the 2017/2018 recruitment exercise, the Claimant’s Counsel argued that the Claimant had sufficiently filled the general conflict of interest forms for the year 2017 and 2018 (Exhibit C21) which provides that the Claimant should mitigate her conflict of interest by not being involved in any recruitment involving Mr. Ayodeji Sasegbon and that the 2017/2018 recruitment exercise which was a continuation of the frozen 2014 exercise, had commenced before the Claimant joined the recruitment exercise and that at the time the Claimant joined the 2017/2018 recruitment exercise 14 (6 females and 8 males) of the 17 candidates to be recruited for employment had already been identified (apparently from the Defendant’s 2014 recruitment list) and approved by her superiors at the HR MANCOM meeting of 28^th June 2017 which make it practically impossible for Clamant to have filled a conflict of interest declaration form before the commencement of the recruitment exercise as required by Exhibit D3. On the issue that the Claimant failed to advertise the vacancy for the position of two subsea engineers, the Claimant submits that there was no requirement to advertise the positions for the two subsea engineers because the Defendant had already identified and approved the two candidates that were to be employed as shown in the email dated 1^st August 2016 (page 2& 3 of Exhibit C18). On the question if the Claimant scheduled Mr. Ayodeji Sasegbon for structured and final panel interviews based on his regretted status in the 2014 recruitment, the Claimant submits that Mr. Sasegbon had already been taken by her superiors before she joined the recruitment process on 7^th August 2017 and that in line with the directive of HR MANCOM’s meeting of 28^th June 2017, the validation of Mr. Ayodeji Sasegbon for employment was made by his Line Manager, Mr. Nathaniel Herbomez by an email dated 1^st August 2017 (page 5 of Exhibit C17), and following the Claimant declaration of a conflict of interest with the candidate, it was required that Claimant should not participate in any recruitment exercise or decision making concerning Mr. Ayodeji Sasegbon.

27. On Issue two, the Claimant submits that the unfair labour practices perpetrated by the Defendant through its arbitrary disciplinary actions and its impugning of the Claimant’s character rendered the Claimant continued employment with the Defendant untenable, leading to her forced resignation which was tantamount to a constructive dismissal from the Defendant’s employment. The Claimant relied on the case of Miss Ebere Ukoji v. Standard Alliance Life Assurance Co. Ltd (2014) 47 NLLR, (Pt. 154) 531 NIC. On the Claimant not resigning “soon after” the imposition of the sanctions; the Claimant submits that the decision to impose sanctions on the Clamant was communicated to her on 19^th July 2018 (Exhibit C4), the Claimant appealed against the imposition of sanctions by a letter dated 31^st July 2018 (Exhibit C5) and the Defendant confirmed the sanctions imposed on the Claimant by a letter dated 11^th September 2018 (Exhibit C6), whilst the Claimant tendered her resignation letter on 26^th October 2018 which is a period of 6 weeks after the Defendant confirmed the sanctions that it imposed on the Claimant. The Claimant further submits that the period of 6 weeks is far less than the period of three months stipulated in the case of Joseph Okafor v. Nigerian Aviation Handling Company, unreported Suit No. NICN/LA/29/2016 (available at https://www.nicnadr.gov.ng/judgement/details.php?id=1721)

28. On Issue three, the Claimant argued that it is settled law that once a claim for wrongful dismissal or constructive dismissal is established, the Claimant automatically becomes entitled to consequential reliefs, even if such reliefs were not claimed. The Claimant relied on the case of Godwin Okosi Omoudu v. Professor Aize Obayan & 4 Ors, unreported Suit No. NICN/AB/03/2012 (judgment delivered on October 8, 2014, per Hon. Justice B. A. Adejumo and also sections 14 and 19(d) of the National Industrial Court Act, 2006. The Claimant submits that she is entitled to damages in the sum of N100,000,000.00 (One Hundred Million Naira Only) as compensation for the emotional trauma and reputational damage she suffered as a result of the Defendant’s various breaches of the terms of her contract of employment. On the issue that salaries and allowances are in the nature of special damages and must be proved specifically, the Claimant argued that she pleaded at paragraph 44 of her amended statement of facts that she earned over 94 million naira per annum and same under her re-examination by Counsel on 29^th July 2021. Therefore, it is incorrect to state that she did not plead or prove the claim for salaries and allowances. The Claimant submits that where the particulars of special damages are specifically within the knowledge or custody of the Defendant, a Claimant need not provide detailed or particulars of the heads of special damages claimed. The Claimant submits that a successful party in a civil claim is entitled as of right to costs, which follows the event, unless there are circumstances warranting the contrary.

THE DEFENDANT’S REPLY ON POINTS OF LAW

29. On the issue that the Claimant was not issued with a query before imposing sanctions, the Defendant replied that the Claimant misconstrued and wrongly applied Articles 1 and 6 of Exhibits C22/D5; and that a holistic reading of the document shows that it did not contemplate and does not cover investigations and disciplinary hearings necessitated by a whistle-blower petition to the Managing Director/Chief Executive (MD/CE). On the issue that the Executive Director, Corporate Affairs and Services (ED HR & CA or ED CAS) was made AH DC, the Defendant replied that although the ED CAS was “Informed” through majority of the activities in a recruitment process, he was only “responsible” for the approval of candidates for employment under the last phases; making and concluding offers of employment at the stage the candidates would have been deemed successful and recommended for employment. Otherwise, their files would not make it to the ED CAS’s table; thus, the ED CAS was not indicted by the investigation. On the issue that the Defendant imposed arbitrary sanctions on the Claimant, the Defendant replied that the breaches which the AH DC found against the Claimant in pages 12 - 13 and 18 – 20 of the AH DC Report (Exhibits C32 / D9) were breaches warranting more serious disciplinary measure than a warning and for which termination was the appropriate and recommended sanction, thus automatically excluding the applicability of Article 7.2 of exhibits C22/D5. Therefore the Defendant did not impose arbitrary sanctions on the Claimant rather reduced the Claimant’s punishment. On the issue if monetary damages need not be proved specifically when the Defendant is in custody of the claim, the Defendant replied that monetary claims do not exist in vacuum nor stand on their own; in all cases, an infringement of a right must be shown to exist before a Court can consider whether to grant monetary compensation. In conclusion, the Defendant urged the Court to hold that the Claimant failed to prove her claim of constructive dismissal, wrongful dismissal, breach of contract and unfair labour practice against the Defendant and as such, is not entitled to judgment.

DECISION

30. I have considered the processes filed in this matter, the evidence led, the exhibits admitted and the arguments of Counsel. The crux of the Claimant’s claim is that she was constructively dismissed from her employment with the Defendant essentially because, according to her:

(i) the Defendant, for no just cause, discriminatorily took disciplinary actions against her;

(ii) in doing so, the Defendant followed disciplinary procedure that did not comply with its rules, regulations and guidelines, fair hearing or the principles of natural justice; and

(iii) the disciplinary measures which the Defendant imposed on her being suspension without pay for 6 months and demotion by one step, were not in compliance with the Defendant’s rules, regulations and guidelines, constitutes unfair labour practice and was done in bad faith.

31. The Defendant disputes these grounds, and argues that the Claimant was unable to establish through cogent and credible evidence, her contention that the disciplinary measures taken against her by the Defendant and/or the procedure leading to same, constituted constructive dismissal. In order to determine the issues raised by both parties, I find the following issues, apt for determination:

1. DID THE DEFENDANT HAVE ANY BASIS TO JUSTIFY THE INVESTIGATION/DISCIPLINARY PROCEEDINGS AGAINST THE CLAIMANT?

2. DID THE DEFENDANT COMPLY WITH ITS DISCIPLINARY PROCEDURE AND PRINCIPLES OF FAIR HEARING?

3. HAS THE CLAIMANT MADE OUT A CASE OF CONSTRUCTIVE DISMISSAL AGAINST THE DEFENDANT?

4. IS THE CLAIMANT ENTITLED TO THE RELIEFS SHE SEEKS?

32. Issue One - DID THE DEFENDANT HAVE ANY BASIS TO JUSTIFY THE INVESTIGATION/DISCIPLINARY PROCEEDINGS AGAINST THE CLAIMANT? On this issue, the Defendant submitted that the measures it took against the Claimant, having been premised on damning findings of corruption and other serious violations of the Defendant’s policies and procedures in connection with the 2017/2018 recruitment campaign which was anchored and managed by the Claimant, were just. In the same vein, the Defendant submits that the measures were not discriminatory against the Claimant because similar disciplinary measures were equally imposed on other employees who were indicted by the AH DC, proportionally to the gravity of their culpability, as shown in Exhibits C32 /D9. The Defendant at paragraphs 33 to 75 of its final written address justified its decision to commence disciplinary actions against the Claimant on the grounds that:

(a) The Claimant failed to fill a conflict of interest declaration form prior to the 2017/2018 recruitment exercise as required by the Defendant’s Anti-Corruption Procedure for Human Resources (Exhibit D3).

(b) The Claimant failed to activate anti-corruption safe-guards for the candidates involved in the recruitment exercise.

(d) The Claimant failed to advertise vacancies for sub-sea engineers.

(e) The Claimant unilaterally alternated the order of the recruitment procedure for the positions of sub-sea engineers.

(f) The Claimant scheduled structured interview and final panel interview for a candidate based on “regretted” status in the 2014 exercise.

33. The Claimant responded to all these issues in her evidence. I have seen exhibit C21, where the Claimant sufficiently filled the general conflict of interest forms for the years 2017 and 2018 wherein she indicated her relationship with Mr. Sasegbon. She was advised on how to mitigate her conflict of interest by not being involved in any recruitment involving Mr. Ayodeji Sasegbon. The Claimant explained that she did not fill the specific conflict of interest form, since exhibit C21 was already in place, and the 2017/2018 recruitment exercise which was a continuation of the frozen 2014 exercise, had commenced before she joined the recruitment exercise. She stated that it was practically impossible for her to have filled a conflict of interest declaration form before the commencement of the recruitment exercise as required by Exhibit D3. She also gave evidence that by the time she joined the 2017/2018 recruitment exercise 14 (6 females and 8 males) of the 17 candidates to be recruited for employment had already been identified (apparently from the Defendant’s 2014 recruitment list) and approved by her superiors at the HR MANCOM meeting of 28^th June 2017. This is evident from pages 3 and 5 of Exhibit C15.

34. Despite the above evidence showing the Claimant’s steps in compliance with the Defendant’s Policies, it is the Defendant’s determination and judgment, and not the opinion of the Claimant that guides the Defendant’s decision to investigate. Therefore, when in exhibit C25, the Defendant received the Whistle Blowers Petition, appealing that the Defendant “set up a committee to investigate or invite compliance department to investigate thoroughly”, it was up to the Defendant to investigate or not to investigate. This petition specifically asked for the investigation of the Human Resources Staff. The investigation was therefore not out of place. Further, exhibit C31 shows a list of members of the HR Department who were investigated. This also proves that the Claimant was not singled out for investigation. I find that the Defendant had a basis for the investigation it carried out.

35. ISSUE TWO - DID THE DEFENDANT COMPLY WITH ITS DISCIPLINARY PROCEDURE AND PRINCIPLES OF FAIR HEARING? The Claimant submits on this issue that during the investigation process and the sitting of the ad-hoc disciplinary committee (AH-DC), which was set up by the Defendant to investigate the allegations leveled against the Claimant and others in the anonymous petition, the Defendant failed to follow its own disciplinary procedures and also failed to observe the principles of natural justice and fair hearing which it was bound to follow. The Claimant submits that the Defendant breached its own disciplinary policies and violated the Claimant’s constitutional right to a fair hearing in the way and manner it investigated and disciplined the Claimant over the allegations of misconduct leveled against her by reason of the following:

(a) The Defendant failed to issue the Claimant with a formal query and give the Claimant adequate and reasonable time to respond to the allegations against her.

(b) The Defendant failed to provide the Claimant with a copy of the whistle blower’s petition (Exhibit C25); the investigation report (Exhibit C31), which allegedly indicted her and other members of the HR department of the Defendant in the conduct of the 2017/2018 recruitment exercise and the final report of the AH-DC’s findings (Exhibit C32), which the Defendant relied upon to impose arbitrary disciplinary sanctions on the Claimant.

(c) The Defendant appointed Mr. Abiodun Afolabi, its ED-CAS, who had direct oversight over the impugned 2017/2018 recruitment exercise, as the Chairman of the AH-DC that imposed sanctions for the alleged wrongdoing in the 2017/2018 recruitment exercise, thereby making him a judge in his own cause.

(d) The Defendant imposed arbitrary sanctions on the Claimant.

36. The Defendant however submitted that in reaching the findings of the AH DC, further to which disciplinary measures were imposed on the Claimant in the Defendant’s letter of 19^th July 2018 (Exhibits C4/D10), the Defendant followed due process, complied with its rules and procedures and accorded the Claimant fair hearing in line with the principles of natural justice. The Defendant submits also that the ED CAS played a limited role in the recruitment process and was not indicted in the investigation report (Exhibit C7) and as such, validly played his role in the disciplinary process. The Defendant submits further that there was no obligation to issue the Claimant a query under Exhibit C24 and she was accorded fair hearing both at the investigation and the AH DC disciplinary hearing.

37. As stated by the Court of Appeal in UBA v. Oranuba (2014) 2 NWLR PT 1390 p. 1 @10 (Per Iyizoba, JCA):

The right to be heard is such an important radical and protective right that the Courts strain every nerve to protect it and even imply it where a statutory form of protection will be less effective if it did not carry with it the right to be heard.

It is the law that an employer is free to determine the employment of its employee but it must be done according to contract or according to law (where founded on a statute). Where an employer takes disciplinary action against an employee, such action cannot be justified in the absence of compliance with the Defendant’s own Policies. In the case of Pam v. Mohammed (2008) 16 NWLR (PT 1112) 1 SC. Per Tobi JSC stated that:

The true test of a fair hearing is the impression of a reasonable person who was present at the trial whether from his observation justice has been done. The fundamental basis underlying the principle of fair hearing is the doctrine of audi alteram partem which means to hear the other side.

38. The status of the Defendant as a multinational private limited company registered under the laws of Nigeria is not in dispute. It is also not in dispute that the Claimant was a high ranking staff of the Defendant; a management staff; a Deputy General Manager, Recruitment and Manpower Development in the Defendant. Both parties are presumed to know the disciplinary procedure for Managers. Exhibit C22/D5 is the Defendant’s Disciplinary Procedure for Managers. The purpose of Exhibit C22 is clearly stated in Article 1 which provides as follows:

This document prescribes the procedure to be followed for the investigation and discipline of members of the managerial cadre who are alleged to have contravened the Company’s rules, procedures and policies.

Article 6 of Exhibit C22 lays down in detail the twelve steps to be followed in the investigation and discipline of the Claimant by the Defendant. These steps are as follows:

1. Schedule initial meeting to discuss and resolve misconduct or infringement of Company rule(s);

2. Schedule follow up meeting to resolve issue;

3. Issue official query to the offender;

4. Respond to query (within 48 hrs);

5. Review response to query and recommend appropriate action;

6. Escalate issue to next level hierarchy where response is not satisfactory (within 2 days of receipt);

7. Review query and response;

8. Carry out appropriate actions: (a) resolve matter, (b) issue verbal warning, (c) issue a written warning, (d) if unresolved, invite HR to intervene in the matter;

9. Arrange further meetings with the employee;

10. Recommend appropriate actions/sanctions;

11. Validate Line Management recommendation or escalate to EGM HR;

12. Validate appropriate action: (a) suspension, (b) termination (c) dismissal.

Article 7.2 of exhibit C22/D5 provides that:

If a manager commits an offence of a serious nature, or if he or she flagrantly breaches company’s rules and regulations which warrants more serious disciplinary action than a warning but does not warrant termination or dismissal, the Line Manager may recommend that the manager be suspended from work without pay for a maximum period of three (3) weeks.

39. I have considered the steps taken by the Defendant, culminating in the suspension of the Claimant. The disciplinary proceeding in this case was the aftermath of a whistle blowing. It is apparent from the evidence before this Court that the steps provided by the Defendant’s disciplinary procedure for managers, was not complied with. The Defendant’s argument is that the Claimant wrongly applied Article 7.2 of exhibits C22/D5 to her case. They argue that that Article only applies where there is a complaint to a Line Manager of a subordinate Manager’s commission of a serious offence or breach of company rules; but that in this case there was a whistle-blower petition to the MD/CE alleging nepotism and other forms of corruption in the Defendant’s recruitment process.

40. I do not agree with the Defendant that the fact that there was a whistle-blower petition meant that the procedure it outlined in this own Policy, will be jettisoned. After the investigation conducted as a result of the petition and the submission of the Investigative Report (exhibit C31); the indictment of the Claimant immediately required that the Disciplinary Procedure for Managers be activated. Instead of the appropriate authority issuing the Claimant with the query as required by its policy, the Defendant engaged the Claimant in various communications, where, without informing the Claimant of allegations against her, it requested documents and information from her. See exhibit C12. A whistle-blower petition cannot mean that provisions of the Defendant’s Disciplinary Procedure, and demands for fair hearing, should not be complied with.

41. It is therefore established that the Defendant neither issued an official query nor gave the Claimant a reasonable period of time to respond to the query or opportunity to prepare a defence as set out in Exhibit C22 before concluding disciplinary proceedings against her. Exhibit C32 – the Ad Hoc Disciplinary Committee Report at page 1 of 23 stated the nature of interaction they had with the Claimant thus:

The Committee met and reviewed all the documents received and concluded that there were profound irregularities in the Egina Graduate Trainees Recruitment, the 2014 Recruitment Drive and the 2017 Recruitment Exercise. It therefore decided to invite certain person to obtain more information and establish the facts.

42. There was no query or formal indictment of the Claimant. DW1 sought to justify this fundamental departure from the Defendant’s laid down procedure and infraction of the Claimant’s right to fair hearing by stating that the Defendant could not issue the Claimant with a query because all the members of her hierarchy in the HR department of the Defendant who were supposed to issue her with a query were equally indicted by the whistle-blower’s petition which ignited the disciplinary process. However, DWI admitted that Mr. Abiodun Afolabi, the ED CAS, who was the officer that had supervisory control over the HR department, was not indicted by the whistle blower’s petition and the investigation report (Exhibit C31). Therefore, the ED CAS or any other senior official (senior to the Claimant) of the Defendant could have issued the Claimant with a query in compliance with Article 6 of Exhibit C22 before the commencement of disciplinary proceedings against her. There is no legitimate excuse for this failure. Where as in this case, the Defendant’s Policy provides for the issuance of a query to an employee accused of misconduct, the employer must issue the employee with a query in respect of that misconduct, and the employee must have answered the query before the employer can take any action against the employee. See, University of Calabar v. Essien (1996) 10 NWLR (pt. 447) 225 at 262 and Imonikhe v. Unity Bank Plc (2011) 12 NWLR (pt. 1262) 624 at 643.

43. I find that the Defendant’s failure to issue the Claimant with a query in line with its Disciplinary Procedure for Managers, before commencing disciplinary proceedings against her, amounted to a denial of the Claimant’s right to fair hearing and was a breach of the Claimant’s contract of employment. As a result, the whole of the disciplinary proceedings conducted by the Defendant and the sanctions imposed on the Claimant in violation of her contractual and constitutional right to fair hearing; cannot stand. Further, from evidence elicited from the Defendant’s witness under cross- examination, it is without doubt that the Defendant also failed to provide the Claimant with a copy of the whistle blower’s petition (Exhibit C25) and the investigation report (Exhibit C31) which was produced following the petition, both of which documents indicted the Claimant. Yet, the Defendant invited the Claimant to face a disciplinary panel which was constituted based on the allegations contained in both Exhibits C25 and C31 which the panel had access to. I find that this amounts to a violation of the Claimant’s constitutional right to a fair hearing, as the Claimant was not given a reasonable opportunity to know the case against her, and to present her case in defense.

44. I have considered the Defendant’s argument that its disciplinary action against the Claimant was not under article 7.2 of exhibit C22/D5; rather it was under Article 7.3 of Exhibits C22/D5 under which the AH DC recommended termination of the Claimant’s employment in its Report. Article 7.3 of exhibits C22/D5 states that:

In addition the Company reserves the right to terminate the employment of any manager who flagrantly or repeatedly fails to comply with the Company’s code of conduct or commits an offence of a magnitude which leads the Company to consider him or her unsuitable to remain in its employment.

The Defendant, in its report, did not identify any “flagrant or repeated failure to comply with the Company’s code of conduct…” Thus, it is further clear that the Defendant did not follow any of its Rules of Policies, in the disciplinary proceedings, against the Claimant.

45. It is further the Claimant’s submission that the appointment of Mr. Abiodun Afolabi, the ED CAS, who had direct oversight over the impugned 2017/2018 recruitment exercise, as the Chairman of the AH-DC that investigated and imposed sanctions for the allegations of wrongdoing concerning the 2017/2018 recruitment exercise, was also a breach of the principles of natural justice and fair hearing, as it made him a judge in his own cause. To the Defendant, however, the Claimant’s complaint regarding the involvement of the ED CAS in the investigation and the disciplinary hearing before the AH DC is unfounded as Mr Abiodun Afolabi was not indicted in the Investigation Report (Exhibit C31) where disciplinary action was recommended by the Investigation Officer. The Defendant argues that while it is true that as the Executive Director, Corporate Affairs and Services (ED CAS), Mr Abiodun Afolabi played a role in the 2017/2018 recruitment exercise, it was a very limited one described in Article 7.4.4(c) of the Recruitment Procedure (Exhibits C23/D2) as “Process candidates employment files”, just before the MD/CE signs the letters of employments for successful candidates under the said Article 7.4.4(d) of Exhibits C23 / D2. Even that limited role of the ED CAS processing the files of successful candidates, is required to be jointly performed, and was in fact jointly performed, with the Claimant as the DGM RMPD. The Defendant further notes that the ED CAS did not appoint the Investigation Officer as alleged by the Claimant; nor constitute the AH DC as alleged by the Claimant; and the Claimant did not object to the ED CAS being on the AH DC when she appeared before the AH DC.

46. While I agree that it is the law that a man shall not be a judge in his own cause, I do not see how the ED CAS, who headed the disciplinary panel, sat over his own cause. The Claimant has not shown that he was indicted by the investigation, or that he was directly involved in the recruitment exercise. The roles shown to be performed by the ED CAS did not make him a direct player in the recruitment process. From exhibit C23/D2, the role of the ED CAS is limited as described in Article 7.4.4(c) of the Recruitment Procedure (Exhibits C23/D2) to “process candidates employment files”, just before the MD/CE signs the letters of employments for successful candidates under the said Article 7.4.4(d) of Exhibits C23/D2. I find that the ED CAS did not seat over his own cause.

47. On whether the Defendant imposed arbitrary sanctions on the Claimant, the Claimant submits that the sanctions the Defendant imposed on her were arbitrary and were a violation of the Defendant’s Disciplinary Procedure for Managers (Exhibit C22). Articles 7.2, 7.3 and 7.4 of Exhibit C22/D5 provide the sanctions that can be properly imposed on a Manager if it was found that a Manager violated the Defendant’s rules and regulations. Articles 7.2 and 7.3 (which are the relevant provisions) provide as follows:

7.2 if a manager commits an offence of a serious nature, or if he or she flagrantly breaches company’s rules and regulations which warrants more serious disciplinary action than a warning but does not warrant termination or dismissal, the Line Management may recommend that the manager be suspended from work without pay for a maximum period of three (3) weeks.

Also, where the manager is considered to have committed any action which might make him or her liable to summary dismissal, or where his or her presence at work may jeopardize investigations, he or she may be put on suspension with full pay pending the completion of investigation.

Final action shall depend on the outcome of the investigation.

7.3 in addition the Company reserves the right to terminate the employment of any manager who flagrantly or repeatedly fails to comply with the Company’s code of conduct or commits an offence of a magnitude which leads the company to consider him or her unsuitable to remain in its employment.”

48. The AH-DC after its investigation found as follows against the Claimant at page 20 of Exhibit C32:

In view of these evidences, the Committee views her actions as an Abuse of Office, grossly negligent in the discharge of her duties and non-adherence to Company Policies and Procedures which she was meant to uphold. As such the Committee recommends Article 7.3 – Termination as contained in the ‘Disciplinary Procedure for Managers’.

However, given Elue’s long years in service to the Company, we seek the Managing Director’s derogation to waive Article 7 of the TEPNG Disciplinary Procedure for Manager and as such recommend a lesser sanction of nine (9) months suspension without pay and re-assignment outside HR.

49. From the clear wording of Article 7.3 of Exhibit 32, the condition precedent for the imposition of the sanction of “termination” is that the Defendant must find a manager who had committed infractions against the company’s rules and regulations “unsuitable to remain in its employment”. The finding of the AH-DC and its recommendation is clearly at variance. As I have already stated, the Defendant’s assertion that its recommendation is under paragraph 7.3 of exhibit C22/D5 cannot stand as the Committee did not consider the Claimant unsuitable to remain in the Defendant’s employment. The Committee therefore recommended that the sanction of “termination” was not the appropriate sanction to be imposed on the Claimant. At that point, the only sanction it could rightfully recommend was “suspension without pay for a maximum of three weeks”, and not more. The Policies and Rules of the Defendant did not give it the power to impose a sanction of “nine (9) (or even 6) months suspension without pay and re-assignment outside HR” on the Claimant when such sanction was not provided for in Exhibit C22 or in any of the Defendant’s disciplinary policies. In so doing, the Defendant acted arbitrarily, and outside the contract of employment between both parties.

50. I agree with the Claimant that the Defendant’s failure to issue the Claimant with a formal query or follow the detailed procedure contained in the Defendant’s Disciplinary Procedure for Managers, invalidates the entire disciplinary proceedings. It not only violates the parties’ agreement, but also the Constitutional requirement of fair hearing. I also agree that the imposition of arbitrary sanctions, not provided for in the Defendant’s disciplinary policies, on the Claimant; amounts to unfair labour practice. While there is no statutory definition of the concept of unfair labour practice in Nigeria; the term "unfair labour practice" however, has been generally defined to mean practices that do not conform to best practice in labour circles as may be enjoined by local and international experiences. See See Mix & Bake v NUFBTE (2004) 1 N.L.L.R (PT. 49) 69, Aluminium Manufacturing Co. Nig. Ltd v Volkswagen Nig. Ltd (2010) 21 N.L.L.R (PT. 60) 428, F.B.N Plc v Associated Motors (1998) 10 NWLR (PT. 570) 441, MPWUN v Alzico Ltd (2010) 18 NLLR (PT. 49) 69. See Bimbo Atilola, Labour & Employment Law in Nigeria – A Practitioner’s Guide, Vol. 1 (Lagos, Hybrid Consult, 2022) p. 15. It consists of acts or omission in employment relationships that are considered unjust, inequitable, oppressive and highly unconscionable, including grave breaches of employees' rights. In South Africa, Section 186(2) (b) of the Labour Relations Act 66 of 1995 (LRA) defines an unfair labour practice as “… the unfair suspension of an employee or any other unfair disciplinary action short of dismissal…”. Although the Labour Relations Act contains no definition of the word “unfair”, Dr John Grogan in his book entitled Employment Rights Second edition (Juta 2014) at page 114-115, adequately summed up the hallmarks of “Unfair Conduct” as follows (see Magate Phala , “Employees have a right not to be subjected to unfair labour practices”, https://www.labourguide.co.za/recent-articles/2375-employees-have-a-right-not-to-be-subjected-to-unfair-labour-practicesAccessed 5/3/2023:

· where one person or group of people is favoured over another on the basis of irrelevant criteria,

· where people are treated arbitrarily, i.e. not in accordance with established rules,

· where people are treated irrationally, i.e. on the basis of unproven or untested views and suppositions or

· where people are penalised or denied an advantage without being able to state their case.

Section 186(2)(b) of the LRA simply states that it is an unfair labour practice to suspend an employee based on unfair reasons. The Court, in the case of SAPO Ltd v Jansen van Vuuren NO & others [2008] 8 BLLR 798(LC) outlined what the employers should do in order for their actions not to be labeled as unfair labour practice thus:

A suspension must be based on substantive reasons and a fair procedure needs to be followed.

… It is therefore necessary that suspensions are based on substantive reasons and fair procedures are followed prior to suspending an employee.

By virtue of the powers granted this Court by section 254C(1) (f), of the Constitution of the Federal Republic of Nigeria (3^rd Alteration Act), this Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters; (f) relating to or connected with unfair labour practice or international best practices in labour, employment and industrial relation matters. It is on this basis that I am able to consider the meaning of unfair labour practice from the lenses of other jurisdictions, as evidence of best practices.

51. Issue three - HAS THE CLAIMANT MADE OUT A CASE OF CONSTRUCTIVE DISMISSAL AGAINST THE DEFENDANT? Majorly, the Claimant’s action is founded on the fact that her resignation was in fact a ‘constructive dismissal’ by the Defendant. To determine if Claimant’s resignation was in fact a ‘constructive dismissal’ by the Defendant, it was imperative to consider the disciplinary procedure, and determine if it was done according to law and according to contract. For, if it was done according to law and contract, then, the questions of its outcome leading the Claimant to resign cannot be construed as constructive dismissal. This is because, the Defendant is recognized to have the right and power to discipline its employee; but this right must be exercised within the confines of law and the contract binding the parties. The necessity of determining this issue is because I have already found that the Defendant breached its Policy on disciplinary procedure for managers.

52. It is the Claimant’s contention that the unfair labour practices perpetrated by the Defendant through its arbitrary disciplinary actions and its impugning of the Claimant’s character rendered her continued employment with the Defendant untenable, leading to her forced resignation which was tantamount to a constructive dismissal from the Defendant’s employment. The Defendant, on the other hand, argues that the Claimant’s resignation did not meet the requirements for constructive dismissal. Referring to Ukoji v. Standard Alliance Life Assurance Co Ltd (2014) 47 NLLR (Pt. 154) 531 NIC, the Defendant argues that there was no constructive dismissal of the Claimant by the Defendant as alleged, rather, the Claimant, by her own voluntary decision, left the Defendant’s employment because she found a competitive employment elsewhere, midway through serving her 6 months suspension. The Defendant argues that the Claimant did not immediately resign her employment with the Defendant following the imposition of the disciplinary measures on her on 19 July 2018 through Exhibits C3/Exhibit D10, or upon the measures taking effect on 1^st August 2018, or even after her appeal to the MD/CE of 31 July 2018 through Exhibit C5 was refused on 11^th September 2018 through Exhibits C6/D12. Rather the Claimant waited until about 3 months after the disciplinary measure took effect and after she had ostensibly secured a parallel and equally competitive employment with Seplat, to voluntarily resign her employment on 26 October 2018. The Defendant referred to the two cardinal preconditions which an employee who alleges constructive dismissal on account of the employer’s conduct must satisfy in order to sustain a constructive dismissal claim as stated by Lord Denning (MR) in Western Excavating (ECC) Ltd v. Sharp [1978] 1 All ER 713 at 717, paras. d-e; which are that the employee’s resignation must: (i) have been forced upon him/her by the conduct of the employer; and (ii) be immediately after the conduct complained of. To the Defendant, the Claimant did not resign immediately after the conduct complained of. The Claimant however submits that the Defendant is wrong in this argument because the decision to impose sanctions on the Clamant was communicated to her on 19^th July 2018 (Exhibit C4), the Claimant appealed against the imposition of sanctions by a letter dated 31^st July 2018 (Exhibit C5) and the Defendant confirmed the sanctions imposed on her by a letter dated 11^th September 2018 (Exhibit C6), whilst she tendered her resignation letter on 26^th October 2018 - a period of 6 weeks after the Defendant confirmed the sanctions that it imposed on her. The Claimant submits that the period of 6 weeks is far less than the period of three months stipulated in the case of Joseph Okafor v. Nigerian Aviation Handling Company, unreported Suit No. NICN/LA/29/2016 (available at https://www.nicnadr.gov.ng/judgement/details.php?id=1721), which the Defendant relied on. In that case, this Court had stated that if an employee waited for up to three months before tendering his resignation, he would be deemed to have condoned the acts which would have entitled him to the relief of constructive dismissal.

53. The Claimant also refutes Defendant’s argument that she waited till she was able to secure a competitive employment before resigning her employment with the Defendant; as she had led evidence to show that what she was paid in her subsequent employment, with a less prestigious company, was much less than what she earned whilst she was working with the Defendant; and that no reasonable person leaves a well-paying employment with premium career prospects for a lesser one, except the working conditions are not conducive.

54. Constructive dismissal or termination as indicated by case law is a situation where an employer creates such working conditions (or so changes the terms of employment) that the affected employee has little or no choice but to resign. In such cases, the employee retains the right to seek legal compensation as having been dismissed or terminated constructively. In the case of Western Excavating v. Sharp (1978) 1 All ER 713, Lord Denning listed what an employee must prove in a claim for constructive dismissal as follows:

1. A repudiatory breach on the part of the employer,

2. An election by the employee to accept the breach and treat the contract as at an end,

3. The employee must resign in response to the breach,

4. The employee must not delay too long in accepting the breach, as it is always open to an innocent party to waive the breach and treat the contract as continuing(subject to any damages claim that they may have)

This Court in the case of Miss Ebere Ukoji v. Standard Alliance Life Assurnace Co. Ltd. Suit [2014] 47 NLLR (Pt. 154) 531held that:

Globally, and in labour/employment law, constructive dismissal, also referred to as constructive discharge, occurs when an employee resigns because his/her employer’s behaviour has become intolerable or heinous or made life difficult that the employee has no choice but to resign. Given that the resignation was not truly voluntary, it is in effect a termination. In an alternative sense, constructive dismissal or constructive discharge is a situation where an employer creates such working conditions (or so changes the terms of employment) that the affected employee has little or no choice but to resign. Thus, where an employer makes life extremely difficult for an employee, to attempt to have the employee resign, rather than outright firing the employee, the employer is trying to create a constructive discharge. The exact legal consequences differ from country to country but generally a constructive dismissal leads to the employee’s obligations ending and the employee acquiring the right to seek legal compensation against the employer. The employee may resign over a single serious incident or over a pattern of incidents, Generally, the employee must have resigned soon after the incident.

55. In the following cases, the Courts held the following circumstances as justifying a holding for constructive dismissal:

a. unilaterally changing the employee’s duties, as in Coleman (DA) v. S&W Baldwin [1977] I.RL.R 342.

b. unilateral reduction of the employee’s payment, as in Industrial Rubber Products v. Gillon [1977] I.R.L.R 389

c. insisting upon the employee to work beyond the contractually obliged hours; see Derby City Council v Marshall [1979] I.C.R. 731

d. requiring the employee to work where they are not contractually required to work; O’Brien v Associated Fire Alarms [1968] 1 WL.R. 1916 and Courtaulds Northern Spinning v. Sibson [1988] I.C.R. 451.

e. Breach of the implied term of trust and confidence - Malik v Bank of Credit and Commerce International SA (In Liquidation) [1997] 3 All E.R. 1.

In view of the foregoing, I find as follows:

1. The Defendant committed a repudiatory breach when it adopted a wrong disciplinary procedure against the Claimant, contrary to its OWN POLICIES. This led to a wrongful act of suspension and reduction in the level of the Claimant.

2. By Claimant’s action, it is obvious that she was compelled to bring the employment relationship to an end, as a result of the arbitrary manner she was disciplined, and her rank reduced.

3. The Claimant resigned in response to the Defendant’s action. This is because, as stated by the Claimant, nobody will resign from a better employment, if not compelled to do so.

4. The Claimant did not delay beyond the period of three months stated in the case of Miss Ebere Ukoji v. Standard Alliance Life Assurnace Co. Ltd. Suit [2014] 47 NLLR (Pt. 154) 531, relied on by the Defendant. She resigned within 6 weeks after her appeal was refused. I am convinced that six weeks is not too long to be seen as a condonation.

5. The arbitrary demotion of the Claimant to the rank of manager and suspension without pay for six months; in my view, created such working conditions and changed the terms of her employment such that the Claimant had little or no choice but to resign. See, Miss Ebere Ukoji v. Standard Alliance Life Assurance Co. Ltd (supra). The Claimant was brought down to the level of her subordinates and made to report to her peers, whilst perpetually carrying the tag of a corrupt employee. This constituted such a significant and radical change in her working conditions and terms of employment that she had no choice but to resign. In the case of the Claimant, the process leading to that conclusion was flawed and a breach of her contract.

I hold therefore, in view of the above findings, that the Claimant’s resignation amounted to constructive dismissal. I hold that the dismissal was wrongful; as the proceedings leading to the Defendant’s disciplinary action, was wrongful.

56. Issue Four - IS THE CLAIMANT ENTITLED TO THE RELIEFS SHE SEEKS? To determine this issue, I shall take the reliefs sought by the Claimant seriatim:

Relief (i) is for “A Declaration that there was no justification for the disciplinary action taken against the Claimant”. Under issue one, I had found that the Defendant justified its decision to commence disciplinary actions against the Claimant, as shown in paragraph 32 – 34 of this judgment. However, though it is the law that an employer is free to determine the employment of its employee, but, it must be done according to contract or according to law (where founded on a statute). Where an employer takes disciplinary action against an employee, such action cannot be justified in the absence of compliance with the Defendant’s own Policies. I therefore hold that in view of the violation of its own internal Policies on disciplinary procedure for managers, the Defendants action can no longer be justified.

Relief (ii) is for “A Declaration that the Defendant is in breach of the contractual obligations and responsibilities imposed on it by the various documents forming the contract of employment between it and the Claimant”. From the findings under issue two; I hold and declare that the Defendant is in breach of the contractual obligations and responsibilities imposed on it by the various documents forming the contract of employment, between it and the Claimant; particularly exhibit C22/D5, on Disciplinary Procedure for Managers.

Relief (iii) is for “A Declaration that the disciplinary procedure employed by the Defendant against the Claimant without following the company's rules, regulations and guidelines constitutes unfair labour practice, is unlawful, wrongful and was done in bad faith and contrary to Nigerian Labour Laws and principles of natural justice and fair hearing”. From the findings in issue two set down for determination by the Court, it is established that the disciplinary procedure employed by the Defendant did not follow the Company’s Rules, Regulations and Guidelines. I have also found that it constitutes unfair labour practice, is wrongful and contrary to the principles of fair hearing. I find that the Claimant is entitled to this declaration; and I so hold.

Relief (iv) is for “A Declaration that the sanctions and penalties imposed on the Claimant i.e., the suspension without pay for 6 months and demotion as a result of the disciplinary procedure did not follow the company's rules, regulations and guidelines, constitutes unfair labour practice, is unlawful, wrongful, was done in bad faith and is contrary to Nigerian Labour Laws”. I have also found under issue two that the sanctions and penalties imposed on the Claimant did not follow the Company’s Rules and Guidelines. It constitutes unfair labour practice and is wrongful. The Claimant is entitled to this relief. I so hold.

Relief (v) is for “A Declaration that the actions the Defendant took against the Claimant amounted to a constructive dismissal of the Claimant from its employment and was a wrongful dismissal in the circumstances”. From the resolution of issue three, I hold that the actions the Defendant took against the Claimant amounted to constructive dismissal of the Claimant, from its employment, which was a wrongful dismissal in the circumstances.

Relief (vi) is for “An Order directing the Defendant to pay to the Claimant all her salaries and allowances as Deputy General Manager, Recruitment and Manpower Development (DGM RMPD) from the date of her purported suspension till the date of judgment in this suit”. I have found that the Claimant’s exit from the Defendant’s employment was by constructive dismissal and that it was wrongful. At paragraphs 96 to 105 of its final written address, the Defendant argued that the Claimant is not entitled to her monetary claim for her salaries and allowances from the date of her purported suspension till the date of judgment in this suit because they are in the nature of special damages and the Claimant did not specifically plead and prove what her salaries and allowances are. Contrary to this argument, I see that the Claimant pleaded at paragraph 44 of her amended statement of facts that she earned over 94 million naira per annum whilst she was in the employment of the Defendant, and gave evidence of this fact during her re-examination by Counsel on 29^th July 2021. The Claimant also gave evidence that she was employed by Seplat Petroleum Development Company where she earned 65 million Naira per year as her gross earnings. This amount is far less than the sum of 94^1/2million Naira per year which the Claimant earned as her gross earnings whilst she was in the employment of the Defendant. These figures were not contradicted or challenged by the Defendant. It is therefore incorrect to state that the Claimant did not plead or prove her claim for salaries and allowances.

I find that the Claimant is entitled to her salaries for the period of the purported suspension, till the date of judgment; her suspension and subsequent exit from employment having been found to be wrongful. However, having been gainfully employed, albeit on a lesser salary, the Claimant cannot be granted the full salary she earned at the Defendant; rather, she is entitled to the difference in the salary she earned, subsequent to the determination of her employment. It is a recognized principle of employment relations that an employee is bound to mitigate his own loss. The loss mitigated is intended to reduce the employer’s liability. See Oando Nigeria Plc v. Adijere West Africa Limited (2013) LPELR-20591(SC). In Benson v. Microcred Microfinance Bank Nigeria Ltd (2014) LPELR-23478(CA) the Court recognized this principle when it held as follows:

I must emphasise here and it is even trite law that a Plaintiff must always take all reasonable steps to mitigate the loss to him caused by a Defendant's wrong or breach. A Plaintiff cannot be allowed to claim or recover damages for any loss which he could have avoided but has failed through unreasonable action or inaction to avoid. In the instant case the claims he made, for example, on rentage of shop, salaries for four staff ought to have been mitigated by him but he failed to do so...He cannot therefore be allowed to wholly claim them. This issue therefore succeeds in part." Per ADEFOPE-OKOJIE,J.C.A. (Pp.38-39,paras.C-G)

I find that the Claimant is entitled to her relief (vi); less what she earns or earned at Seplat, or any other subsequent employment. The Defendant is Ordered to pay to the Claimant all her salaries and allowances as Deputy General Manager, Recruitment and Manpower Development (DGM RMPD) from the date of her purported suspension till the date of judgment in this suit; less what she earns or earned at Seplat; or any other subsequent place of employment.

Relief (vii) is for “Interest at the rate of 21% per annum on the Claimant's salaries and allowances claimed in paragraph (vi) above from the dates on which these payments fell due till the date of judgment in this suit and thereafter at the rate of 10% until the date of payment. This is a claim for pre judgment interest. The law is trite that before a party can claim pre-judgment interest, he has to plead not only his entitlement to the interest, but the basis of the entitlement either by statute or contract/agreement between the parties, or under mercantile custom or under principle of the equity. See Dantama v. Unity Bank Plc (2015) LPELR-24448(CA). The Claimant has not proved which statute, custom or principle of equity provides for the pre-judgment interest sought in this case. The Claimant has not proved how she became entitled to the percentage interest claimed. See also Mr. Kurt Severinsen v. Emerging Markets Telecommunication Services Limited [2012] 27 NLLR (Pt. 78) 374 NIC; Mr. Valentine Ikechukwu Chiazor v. Union Bank of Nigeria Plc Suit No. NICN/LA/122/2014 judgment delivered on 12^th July 2016. The relief for pre-judgment interest is declined.

Relief (viii) is for “Damages in the sum of N100,000,000.00 (One Hundred Million Naira Only) as compensation for the emotional trauma and reputational damage suffered by the Claimant as a result of the Company's various breaches of the terms of her contract of employment.” Having granted Claimant’s reliefs for her arrears of salaries, I decline to grant this relief for general damages. Further, the Claimant is already employed within the same industry which disproves reputational damage.

Relief (ix) is for “The sum of N10,500,000 (Ten Million, Five Hundred Thousand Naira) being the legal cost of instituting this action and out of pocket expenses to be assessed at the close of hearing,” fails for lack of proof.

This suit succeeds substantially. The Claimant is therefore entitled to cost of this action. This is set at N2,000,000.00. The terms of this judgment are to be complied with, not later than 30 days, failure at which interest will accrue at the rate of 10% per annum.

Judgment is entered accordingly.

…………………………………….

Hon. Justice Elizabeth A. Oji PhD