THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT

 

BEFORE HIS LORDSHIP HON. JUSTICE M. A. HAMZA - - - - JUDGE

DATE: 16TH JULY, 2024                           

SUIT NO: NICN/PHC/164/2022

BETWEEN:

JOHN MOWETTE - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CLAIMANT

                                                                                                                                   

AND

 

O.K ISOKARIARI & SONS NIGERIA LIMITED - - - - - - DEFENDANT

 

Representation

Claimant in Court, Defendant absent

Isdore Uzuo for the Claimant

Callistus Uriem for the Defendant

 

JUDGMENT

Introduction and Reliefs

1.      The Claimant's filed this Complaint against the Defendant dated the 6th day of December, 2022 together with an accompanying processes seeking for the following reliefs:

1.   A Declaration that it amounts to unfair labour practice to withhold the Claimant’s earned salaries from August 2021 till December, 2021 when the Claimant left the employment of the Defendant due to frustration arising out of non-payment of salaries.

2.   A Declaration that the non-payment of the Claimant’s earned salaries amounted to constructive dismissal of the Claimant from the employment of the Defendant in the circumstances.

3.   An Order for payment to the Claimant by the Defendant the sum of N338,954.00 (Three Hundred and Thirty Eight Thousand, Nine Hundred and Fifty Four Naira) being the Claimant’s duly earned salaries for the months of September, October, November and December, 2021 and leave allowance for 2021.

4.   An Order for payment of the Claimant’s two (2) years’ salary by the Defendant as compensation to the Claimant for the constructive dismissal of the Claimant.

5.   A Declaration that it amounts to unfair labour practice for the Claimant to work in the Defendant from 1st December, 2017 till December, 2022 and was only permitted to go on leave for a cumulative period not exceeding 6 days.

6.  An Order for the payment to the Claimant by the Defendant the sum of 2,000,000.00 representing the damages and compensation for the unfair labour practices.

7.   A Declaration that the Claimant is entitled to the unremitted pension contribution from the Defendant stipulated under the Pension Reforms Act 2014.

8.   An Order compelling the Defendant to pay to a reputable Pension Company all unremitted Pension due to the Claimant from 1st December, 2017 till December, 2021.

9. Pre-judgment interest of 10% per month on Relief 3 from December 2021 till judgment is delivered in this matter.

10. Post judgment interest of 25% per annum on the sum awarded by the Court from the date of the delivery of the judgment till the sums are fully liquidated.

11. Cost of this action including Attorney fees as may be assessed by this Honourable Court.

 

CASE OF THE CLAIMANT

2.      The case of the Claimant on the pleadings is that he was employed by the Defendant on the 1st December, 2017 as the Defendant’s Human Resource Officer by an Offer Letter which contained the terms of employment. He averred that the employment contract expressly incorporated the terms and conditions contained in the Defendant’s Staff Handbook, as an instrument that would also govern the Claimant’s employment. He stated further that his appointment was confirmed by the Defendant dated the 1st day of June, 2018.

3.      The Claimant states that the salary for the position he occupied in the Defendant was 60,000.00 (Sixty Thousand Naira) per month. The said salary was increased to the sum of 80,000.00 per month with effect from the 16th day of January, 2020. He stated further that he worked with the Defendant credibly, working every Monday to Friday from 7: 30 a.m. to 5:pm with 1 hour break in between, including Saturdays from 7: 30 a.m to 12 noon and 11am to 3pm when there is environmental sanitation.

4.      The Claimant stated further that the Defendant with no explanation willfully and unjustly refused to pay his earned salaries from August 2021 till December 2021 when the Claimant resigned from the Defendant by a Letter of Resignation dated 1st December, 2021.  That his resignation was accepted by the Defendant through a Letter dated the 22nd day of December, 2021. The Claimant averred that Defendant unfairly and constructively dismissed the Claimant by the Defendant’s willful refusal to pay the Claimant is earned salaries from August, 2021 till December, 2021.

5.      The Claimant averred that it amounts to unfair labour practice to refuse to pay an employee is salaries without any explanation whatsoever and such conduct amounts to constructive dismissal. He stated further that while working for the Defendant from 1st December 2021, he was not permitted to go on annual leave which affected the physical and mental health of the Claimant. That throughout his time at the Defendant, his cumulative and total leave dates did not exceed six days.

6.      The Claimant stated that the Defendant is guilty of unfair labour practice for only permitting the Claimant to go on leave for a cumulative period not exceeding 6 days for the Five (5) years the Claimant worked with the Defendant. Defendant’s unwillingness and persistent refusal to grant the Claimant annual leave grossly affected and caused the Claimant both physical and mental health injury. That after he left the Defendant, he was paid his August 2021 salary. The Defendant has till date refused to pay the Claimant salaries for the month of September, October, November and December, 2021.

7.      The Claimant averred that the total sum due to him for the months of September, October, November and December 2021 is N316,800.00 (Three Hundred and Sixteen Thousand, Eight Hundred Naira only). The Claimant further stated that the leave allowance due to the Claimant for the year 2021 which has not been paid is N22,154.00 (Twenty Two Thousand, One Hundred and Five Hundred Naira only). This brings the amount due to the Claimant which has not been paid to N338,954.00 (Three Hundred and Thirty Eight Thousand, Nine Hundred and Fifty Four Naira only) several demands were made to the Defendant for the payment of unpaid salaries yet that Defendant has failed, refused or neglected to pay the Claimant his salaries for the months of September, October, November and December, 2021.

8.      The Claimant averred that after all his efforts to get the Defendant to pay his earned salaries failed, the Claimant caused a demand letter to be issued to the Defendant through his solicitors. Again, on the 14th June, 2022, the Claimant's solicitors wrote another letter to the Defendant notifying the Defendant of the Claimant’s intention to seek redress in Court, particularly at the National Industrial Court. But the Defendant ignored the demand letters and did not respond to any of them. The Defendant did not equally settle the Claimant's demand. The Claimant stated that the Defendant employed over 100 workers and the Claimant is therefore entitled to have the Defendant make Pension Contribution on his behalf from 1st December, 2017 to December, 2021 when he left the employment of the Defendant.

9.      The Claimant pleaded that the international best practice in awarding damages/compensation for wrongful termination or dismissal is two (2) years’ salary of the wronged employee. In part of the international best practice pleaded above, the Claimant shall want this Honourable Court to take judicial notice of the decisions of Apex Court on the issue as well as the decision of the Apex Court in labour matters. - SAHARA ENERGY RESOURCES LTD VS OYEBOLA (2020) LPELR -51806 (CA). Particulars of unfair Labour Practice committed by the Defendant against the Claimant.

10.    The Claimant stated that he is a victim of Defendant unfair Labour Practices. Some of which are:

 

a.   Failure to pay the Claimant's salary from August to December, 2021.

b.   Denying the Claimant's annual leave from December, 2017 to December, 2021.

c.   Failure to remit and pay all Pension Contribution for the Claimant from December, 2017 till December, 2021.

11.    The Claimant testified in support of his case. He adopted his Statement on Oath. It was the exact terms of the pleadings and he relied on his documents. In cross examination, he told the Court that in Exhibit CW1A there is nothing that talks about constructive dismissal. That was why he never contemplated constructive dismissal when writing his resignation better (Exhibit CW1F). The issue came up when filing this suit. It is the practice in the Defendant Company that any disengaged staff returns all the properties belonging to the company. As at the time he was working with the Defendant, there was no any memo directing him to return any belongings of the company. For one to proceed on annual leave, he or she must write. Some of his applications were granted but some were not granted. The issue of unfair labour practice came up when filing this suit. But that he made complaint over the denial of his annual leave. As at the time he was working no any deduction was made from his salary whatsoever.

 

CASE OF THE DEFENDANT

12.    The Defendant's case on the pleadings is that the Claimant is well aware that the Defendant, being a construction company suffered immensely as a result of the Covid-19 Safety Protocol. The operations of the Defendant were like every other construction companies, shut down by the government for the better parts of the year 2020 even up to the 1st quarter of 2021 and same affected the cash inflow of the Defendant. The Defendant averred that the resultant negative impact of the said Covid-19 Pandemic saw construction Companies like the Defendant downside and/or lay off its Staff.

13.    The Defendant stated that rather than downside and/or lay off its staff, it had a gentleman's agreement with all its staff, including the Claimant herein, in that, due to the paucity of inflow of cash occasioned the Covid-19 pandemic, staff who were willing to remain with the Defendant had to make some adjustments such that they may not be paid their emoluments as at when due while anyone that was opposed to the adjustment was at liberty to voluntarily resign. The Claimant freely agreed to carry on with his appointment. That the said adjustment was temporary, until such a time when regular business operations and cash inflow resumed and/or normalized.

14.    The Defendant further averred that at no time or at all did it unfairly or constructively dismissed the Claimant. The Claimant remained a staff of the Defendant up till when the Claimant voluntarily resigned, which said resignation was accepted by the Defendant.

15.    The Defendant also averred that it is not in any manner howsoever indebted to the Claimant, in that all monies (which include the Claimant’s salaries from September, 2021 to December, 2021 and leave allowances amounting to the sum of N338,954.00) standing in credit to the Claimant from the Defendant, had been paid to the Claimant by the Defendant. The Claimant, by his solicitor’s letter dated December 19, 2022 acknowledged and/or confirmed being paid the said sum by the Defendant.

16.    The Defendant stated as follows:

a)     As a general practice in the Defendant’s establishment, all its staff are entitled to annual leave of 18 (Eighteen) days a year. Same is clearly captured as part of the Terms and Conditions of the Claimant’s Offer of Appointment.

b)    As a general practice in the Defendant’s establishment, staff who wish to go on annual leave usually voluntarily applies for same, specifically stating the period they intend to commence their leave and the number of days they will be away for.

c)     The Defendant averred that it has no record of any application for leave from the Claimant, wherein same was refused and/or not permitted the Claimant.

d)    The Defendant further averred that as a general and/or conventional practice, leave allowance are usually paid to staff when they go on leave. The Defendant paid the Claimant leave allowances from time to time.

e)     That the Defendant does not in any manner howsoever carry any unfair labour practice.

17.    The Defendant averred that at no time or at all did it terminate the Claimant’s appointment. The Defendant reiterate that the claimant voluntarily resigned his appointment on December 1, 2023. That there is no live issues in this suit. That the Claimant is not entitled to any of the Claims contained in paragraph 23 (a-k) of the Claimant’s Statement of facts at all as same is purely a gold digging voyage.

18.    The Defendant’s witness testified in support of its case. He adopted his Statement on oath. It was in the exact terms of the pleadings and no document was used or referred to. During cross examination, he testified the Claimant as a former staff of the Defendant. That he joined the service of the Defendant on the 15th day of December, 2021. But he was not a staff during the Covid-19 Pandemic. As such he could not say whether the Defendant was shut down as at then. His deposition in paragraphs 3 – 15 were the information he received from the Company’s legal counsel. He is aware that company maintain a Pension Scheme for its Employees. The Defendant has over 50 years of experience with over 100 workers as contained on the Defendant’s website.

 

DEFENDANT’S FINAL ADDRESS

19.    The Defendant’s final address is dated the 6th day of May, 2024 and filed on the 8th day of May, 2024. The Claimant’s final address is dated the 27th day of May, 2024 and filed on the 28th day of May, 2024. Parties adopted their respective addresses.

20.    Learned Counsel to the Defendant submitted a sole issue for determination to wit:

                        Whether the Claimant’s claim is meritorious?

21.    The Learned Counsel submitted that an examination of the Claimant's claim as contain in his said Statement of Facts reveals that the Claimant has 4 (four) principal relieves and/or heads of claim which are Declaratory and 7 (seven) other relieves which are all ancillary to the said principal relieves. In other words, relieves "A", "B", "E" and "G" are the where the said relieves "A", "B", "E" and "G" fails, all other relieves ("C", "D", "F","H", "I", "J" and "K") must also fail. The principle traces its paternity to the Latin maxim: Accessorium segitur principal - accessory thing goes with the principal to which it is incidental to. See: OGOKE VS NDUKA (2020) 4 NWLR part 1715 page 509 at page 529 paragraphs A – B. Similarly, it is trite law that where a claim is essentially declaratory, the duty is on the Claimant to succeed on the strength of his own case and not on the weakness of the Defendant's case. He must establish his entitlement to the reliefs he seeks in relation to which the declaration can be made. See ENILOLOBO VS N.P.D.C LTD (2019) 18 NWLR part 1703 page 168 at page 195 paragraph D. In other words, the duty is on the Claimant to succeed on the strength of his own case as it relates to the said relieves "A", "B", "E" and "G".

22.    Therefore, he submitted that in respect to the said relief "A", the Claimant prayed this Honourable Court to declare that it amounted to unfair labour practice to withhold his earned salaries from August 2021 till December 2021. In establishing the said relief “A” the Claimant at paragraph 5 of the said Statement of Fact averred that the Defendant willfully and unjustly refused to pay him his salary for 14 of the said Statement of Facts, the Claimant averred that he was subsequently paid for the month of August 2021, leaving an outstanding of N338,954.00 (Three Thirty Eight Thousand, Nine Hundred and Fifty Four Naira). Curiously, the Claimant never stated and/or averred that the non-payment of salary for the said periods was peculiar to him; or that the Defendant demanded that he voluntarily resigned as a condition precedent for the payment; or even that in one breathe claim that is was constructively dismissed and in another breathe claim that he was been owed salaries for the months he claim he was dismissed and in another breathe stated that he was subsequently paid. He respectfully submitted that same amounts to speaking from different sides of his mouth. The Claimant cannot be allowed to approbate and reprobate.

23.    It is submitted that the nationwide shut down occasioned by the COVID-19 PANDEMIC is a notorious fact which this Honourable Court ought to take Judicial Notice of. We most humbly urge this Honourable Court to so do; to the effect that the government of the Federal Republic of Nigeria issued a nationwide lockdown to all sectors in the country save essential service providers. It is on record that the Defendant is a construction company which service did not fall into the classification of "essential service provider" permitted to operate during the said lockdown. However, the Claimant, at paragraph 3 of his Reply to the Defendant's Statement of Defence, denied the aforesaid notorious fact. It is our respectful submission that the said paragraph 3, just like all other material paragraphs in the Claimant's Statement of Facts was contrived to support his spurious claim.

24.    Furthermore, Counsel submitted that in respect to the said relief "B", the Claimant prayed this Honourable Court to declare that the non-payment of earned salaries amounted to constructive dismissal. In establishing the said relief "B", the Claimant at paragraphs 9 and 10 of the said Statement of Facts, averred that the Defendant earned salaries, constructively dismissed his appointment by way of wilful refusal to pay him his earned salaries. It is the law that the relationship between the Claimant and the Defendant is generally to be found in the letter of appointment (Exhibit CW1A). This Honourable Court cannot go outside the said Exhibit to determine the Claimant's case. See: ANAJA VS U.B.A. PLC (2011) 15 NWLR part 1270 page 377 at page 392 paragraph H.

25.    The Defendant contended that the said Exhibit CW1A being the Claimant's Letter of Appointment is silent on "constructive dismissal". In other words, there is no mention of the said phrase. Therefore, the Claimant cannot be heard to make such complaint before this Honourable Court. In the case of ANAJA V U.B.A. PLC (SUPRA) at pages 394 to 395 paragraphs H-B, the Court of Appeal held thus:

“For all intents and purposes therefore, there are no provisions made for summary dismissal, in the contractual documents that govern the relationship between the Appellant and the Respondent. Since the terms of the Appellant's employment did not make such provision, let alone procedure for it, the Appellant cannot be heard to complain about the breach of his contractual agreement, by the Respondent. To that extent, he was not able to discharge the burden on him, to satisfy the Court that his dismissal was wrong.”

Under cross examination, the Claimant admitted that the Defendant has an exit protocol for all its disengaged staff wherein, any disengaged staff is mandated to return all company items in his/her possession and also obtain the necessary clearance from his supervisor. There was never a time, prior to the voluntary resignation of the Claimant, wherein the Defendant requested the Claimant to return any of such company property in his possession to the company nor deny him access into the Defendant's facility.

At the risk of repetition, he submitted that in one breathe the Claimant contended that Claimant averred that he voluntarily resigned from the Defendant by no reason and cannot be allowed to speak from both sides of his mouth. The Claimant cannot be allowed to approbate and reprobate.

26.    Furthermore, he submitted that in respect to the said relief "E", the Claimant prayed the Honourable Court to declare that it amounted to unfair labour practice to work from December 2017 to December 2022 and only permitted to go on leave for 6 days. In establishing the said relief “E” the Claimant relied on his averments at paragraphs 11 and 12 of his Statement of Facts.

Therefore, contrary to the Claimant's said averments at paragraphs 11 and 12, Exhibit CW1A is clear and precise on the Claimant’s annual leave and the number of days he is entitled to, to wit, 18 (eighteen) days.

Under cross examination, the Claimant admitted that an application for leave precedes the grant or refusal of leave by the Defendant. Curiously, the Claimant never furnished this Honourable Court with any of such application and refusal and/or denial of leave by the Defendant. Put pointedly, there is no iota of evidence proffered by the Claimant to substantiate the fact that he ever applied for leave and same was refused him by the Defendant. What is uncontroverted however, is the fact that the Claimant went on leave and also received leave allowance.

27.    Furthermore, Counsel submitted that in respect to the said relief "G", the Claimant prayed this Honourable Court to declare that he is entitled to unremitted Pension Contribution from the Defendant. In establishing the said relief "G", the Claimant at paragraph 19 of the said Statement of Facts, averred that the Defendant has over 100 workers and therefore is entitled to make same. It is submitted moreso that the Claimant never proffered and/or tendered any document to substantiate his hypothetical assumption that the Defendant has over 100 workers. The Claimant in his usual manner, as can be gleaned from other material paragraphs of his Statement of Facts, contrived the said paragraph 19 to support his spurious claim.

28.    He humbly urge this Honourable Court to take judicial notice of the fact that under cross examination, the Claimant (CW1) admitted the following facts, to wit:

a.   That he is well knowledgeable with the provision of the Pension Reform Act.

b.   At all material times during his appointment with the Defendant, the Defendant never deducted any money from his salary.

c.   He never complained about the non-deduction of money from his monthly emolument for Pension and non-remittance of same to a Pension Fund Custodian.

The pertinent questions that comes to mind and flows from the hypothetical assumption of the Claimant in the said paragraph 19 and the testimony of CW1under cross examination are as follows:

a.   What is the actual number of employees of the Defendant?

b. Are all the "over 100 workers" referred to by the Claimant in the said paragraph 19, full time employees of the Defendant or do they comprise of itinerary workers who work on a daily rate pay basis?

c.   How come in all the 5 (Five) years of the Claimant's appointment with the Defendant, the Claimant never suggested a Pension Fund Custodian to the Defendant for his Pension, nor did the Claimant ever complain about the non-deduction of money from his monthly emolument for pension and non-remittance of same to a Pension Fund Custodian? Particularly as his (the Claimant) position in the Defendant's establishment is saddled with the responsibility to handle and/or make the necessary recommendations on matters relating to pension; and even being well affixed with the provisions of the Pension Reform Act.

29.    It is submitted that the only simple reason and/or logically answer to the above questions stated in paragraph 4.20 (a) – (c) above is that the Defendant do not qualify and/or fall within the purview contemplated in the Pension Reform Act. A fact which the Claimant is well aware of hence his non-complaint and non-recommendation to the Defendant on that regard.

He reiterated the position of the law that a Claimant succeeds for a declaratory relief on the strength of his own case. By law, a Claimant seeking for declaratory reliefs must prove his case on the strength of his evidence, not on the weakness of the defence of the Defendant. See: OKEREKE V. UMAHI & ORS. (2016) LPELR – 40035 (SC). A declaratory relief is never granted on the basis of admission the Defendant or default of pleading. See BULET INTERNATIONAL NIG. LTD VS DR. OMONIKE OLANIYI & ANOR (2017) Vol. 6-12 MJSC (Pt. III) 6.

30.    The Learned Counsel submitted that asides the ipse dixit of the Claimant at the said paragraph 19 of his Statement of Facts which is purely speculative, the Claimant has not furnished this Honourable Court with any evidence howsoever, that remotely states the precise number of employees of the Defendant. We respectfully submit that the Claimant has left this vital fact to conjecture and speculation; and this Honourable Courts do not decide cases on the basis of speculation or conjecture. See OBASI BROS VS M. B. A. S. LTD (2005) 9 NWLR page 117 at page 131 paragraph H. It is submission that once it is not known if the Defendant comes within the purview of the Pension Reform ACT, then this Honourable Court cannot consider and grant the Claimant's relieves therefrom.

Assuming without conceding that the Defendant purportedly breached the terms of its' Letter of Appointment with the Claimant, specifically as it relates and pertains to the salary of the Claimant, he submitted that the Defendant had long remedied that purported breach, by way paying the Claimant the entire sum of money that was owed. A fact which the Claimant admitted at paragraph 9 of his said Claimant's Reply to the Defendant's Statement of Defence. The net effect being that there is no live issue in this suit.

In the case of B.E.D.C. PLC VS ESEALUKA (2015) 2 NWLR Part 1444 page 411 at page 438 paragraph F - G, the Court of Appeal held thus:

“The principle of assessment of damages for breach of contract generally is restituo in integrum - that is the Plaintiff shall be restored as far as money can do it into the correct position he would have been had the breach not occurred. The Plaintiff is not entitled to claim all manner of damages. Oguntade, JSC in that case pronounced emphatically that the measure of damages where a master brings the contract of employment to an end without requisite notice stipulated in the parties’ contract is the salary the employee would have earned had the employment had been properly determined. NIGERIAN PRODUCE MARKETING BOARD VS ADEWUNMI (1972) NSCC PG. 622 AT 665, (1972) 11 SC 111 was relied upon for this position.” (Underlined emphasis mine)

31.    He submitted that the Claimant's claims in this suit are all afterthoughts. The Claimant having been paid all what he was owed by the Defendant. Counsel argued it is mindful of the fact that DW1 who testified on behalf of the Defendant was engaged as a staff of the Defendant after some of the activities that gave rise to this suit transpired. In response thereof, we humbly refer this Honourable Court to the case of IMPACT SOLUTIONS LTD VS INT'L BREWERIES PLC (2018) 16 NWLR part 1645 page 377 at page 401 paragraph A -F, wherein the Court of Appeal, per Ogbuinya JCA, while restating the position of the Apex Court in the case of ISHOLA VS SOCIETE GENERALE BANK LTD (1997) 2 NWLR (Pt. 488) 405 at 424, paras. E -G, thus:

“It cannot be over emphasized that a company being a legal person or juristic person can only act through its agents or give evidence to establish any transaction entered into by that company. Where the official giving the evidence is not the one who actually took part in the transaction on behalf of the company, such evidence is nonetheless relevant and admissible and will not be discountenanced or rejected as hearsay evidence.”

 

CLAIMANT’S FINAL ADDRESS

 

32.    The Claimant formulated four (4) issues for determination to wit:

a.      Whether the non-payment of Claimant’s earned salaries for the months of August, September, October and November 2021 by the Defendant amounted to constructive dismissal of the Claimant?

 

b.      Whether considering the provisions of the Pension Reform Act 2014, the Claimant is not entitled to unremitted pension contribution from the Defendant?

 

c.       Whether the Claimant has made out any case of unfair labour practice against the Defendant?

 

d.      Whether the payment of the Claimant’s salary only after the institution of this suit has not caused injury to the Claimant.

 

33.    On issue No. 1, the Learned Counsel submitted that the non-payment of the Claimant’s salary for a period of 4 months amounted to constructive dismissal of the Claimant. The question that readily comes to mind at this point is this: what is constructive dismissal or constructive discharge? The Cambridge Dictionary defines constructive dismissal as “actions taken by an employer that intentionally make working conditions for an employee difficult or unfair so that the employee feels forced to leave their job”. Similarly, constructive discharge was defined in Black’s Law Dictionary to mean “[a] termination of employment brought about by making the employee’s working conditions so intolerable that the employee feels compelled to leave.”

 

In the case of MISS EBEREUKOJI VS STANDARD ALLIANCE LIFE ASSURANCE CO. LTD, this Honourable Court citing the English case of WESTERN EXCAVATING (ECC) LTD VS SHARP had this to say about constructive dismissal:

“Constructive dismissal, also referred to as constructive discharge, occurs when an employee resigns because his/her employer's behavior has become so intolerable or heinous, or such behaviour has made life so 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.”

 

34.    He submitted also that from the above, it is clear that an employer who engages in a conduct that forces the employee to leave the employment is said have constructively dismissed the employee. Constructive dismissal from employment may occur in several instances such as (a) where an employer commits a fundamental breach of the terms and conditions of the contract of employment; (b) where an employer, by conduct, terminates the employee’s employment, or makes life difficult for the employee to continue in his employment; (c) where an employer unilaterally reduces the employee’s salaries and/or other allowances/bonuses without the employee’s consent; (d) where an employer creates a humiliating, embarrassing, or hostile work environment, or knowingly allows such an environment to continue, where another creates it, etc. hence, the failure of an employer to pay the employee for a period of 3 to 4 months amounts to a constructive dismissal. This is because payment of salary is a fundamental term in any employment relationship and where an employer decides not to pay the employee, the employer is guilty of a breach going to the root of the employment contract. In such an instance, the employee is said to have been constructively dismissed by the employer.

 

35.    It was argued that the evidence on record confirms that the Defendant failed to pay the Claimant’s salary in the months of August, September, October and November 2021 which led to the resignation of the Claimant in December 2021. Put differently, it is our respectful submission that the refusal by the Defendant to pay the Claimant’s earned salaries for 4 months without any justifiable explanation to the Claimant was an action carefully orchestrated by the Defendant to frustrate and make life so difficult for the Claimant which eventually led to the resignation of the Claimant. We therefore submit that the failure of the Defendant to pay the Claimant for a period of 4 months amounts to constructive dismissal of the Claimant.

 

36.    In the case of OVERLAND AIRWAYS LIMITED VS OLADEJI AFOLAYAN & ANOR this Honourable Court made the point that “any failure to pay that which is contractually owing, or any particular element of it, is likely viewed as a fundamental breach of contract entitling the employee to walk out and claim constructive dismissal”. The court then held that the failure of the Claimant to pay the 1st Defendant’s March 2011 salary amounted to a termination of the employment relationship. According to His Lordship, Honourable Justice, B. A. Adejumo:

                 

“I have shown with the aid of authorities that the Claimant breached a fundament term of the contract of employment when it failed to pay the salary of the 1st Defendant for the month of March 2011. This conduct was inconsistent with the assertion that the contract of employment subsisted. It was an unacceptable conduct which in the realm of employer/employee relationship effectively determined the contract of employment. I answer the second part of Issue 1 formulated by learned counsel for the Claimant in the negative. It is therefore my decision that the contract of employment between the Claimant and the 1st Defendant was determined when the Claimant without legal justification withheld the March 2011 salary of the 1st Defendant.”

 

37.    From the above judicial authority cited, it is clear that withholding of a month’s salary is grave enough to lead to the conclusion that the employer has unlawfully determined the employment relationship. In the instant case, the Defendant did not only withhold one month’s salary but failed to pay the Claimant for 4 months thereby entitling the Claimant to walk away and bring the instant claim. He therefore, respectively urged the court to hold that the Claimant was constructively dismissed from the Defendant’s employment. Even though, the Defendant sought to justify its action by stating that its operations were affected by Covid-19 pandemic and that it had an agreement not to pay its members of staff including the Claimant as and when due. In response to this false allegation, the Claimant testified as follows:

 

5. I know that the operations of the Defendant were not shut down by the government before, during or after the Covid-19 pandemic. During the Covid-19 pandemic, some of the Defendant’s staff worked from home while others worked from the office.

6. I am aware that there was never a time the Defendant had any meeting with me or any other person about any adjustment regarding not paying my salary as and when due. I also know that there was no such gentleman agreement whether oral or written whereby I or any staff of the Defendant agreed to work for the Defendant without being paid as and when due.

See paragraphs 5 & 6 of the Claimant’s further witness statement on oath filed on 22nd May, 2023.

 

38.    Notably, the above testimony of the Claimant was not challenged nor impugned under cross examination. He therefore urge the Court to hold that there was no justification on the part of the Defendant for failing to pay the Claimant for over 4 months. It was further submitted that the Defendant has not led any credible evidence to show that it had an agreement with its staff not to pay them as and when due. The Defendant did not call any of its staff who was present when such alleged agreement was reached. The Defendant did not equally show that other staff were equally affected. Indeed, the Defendant chose to call as a witness one Mr. John Gabriel Nkereuwem who was employed on 15 December 2021 after this action was filed.

 

39.    The said John Gabriel Nkereuwem confirmed on oath that he was not a staff of the Defendant when the alleged agreement was reached. Indeed, he confirmed on oath that all he said was what the Legal Officer in the Defendant told him. The cross examination of John Gabriel Nkereuwem on 24th April, 2024 confirms as follows:

 

“Ozuo: So what you stated in your deposition particularly from paragraphs 3 to 15 is what the company legal officer/adviser told you?

 

DW1: Yes, my lord”

 

From the above, it is a clear case of hearsay evidence. It is a different issue if he spoke from the records of the Defendant. In this case, John Gabriel Nkereuwem never said anywhere in his witness deposition that his testimony was as a result of the records of the Defendant made available to him which would have taken his evidence outside the realm of hearsay evidence. However, he confirmed before this Honourable Court that his testimony was what the legal officer in the Defendant told him. We respectfully urge Your Lordship to reject the evidence of the Defendant and hold that the Defendant has not shown any justification for withholding the Claimant’s salary for 4 months.

 

40.    Counsel posited that a successful plea of constructive dismissal amounts to, and has the same effect as, a wrongful or unfair termination, which in essence means that the wrongfully terminated employee will be compensated in appropriate damages. We refer your Lordship to the case of NIGERIA AIRWAYS LTD VS OKUTUBO. He noted that compensation and award of damages are to be done in accordance with international best practices where same is pleaded.In this case, the Claimant had pleaded that the international best practice in awarding damages for unfair termination of employment (which includes constructive dismissal) is the award of the employee’s two years’ salary. He referred the court to paragraph 20 of the Statement of Facts.

 

41.    It was also submitted that a proof of this international best practice in accordance with Order 14A Rule 1(2) of the Rules of this Honourable Court, the Claimant in paragraph 21 of its Statement of Fact invited the Court to take judicial notice of the case of SAHARA ENERGY RESOURCES LTD VS OYEBOLA where the Court of Appeal affirmed that the award of two years’ salary for unlawful dismissal is in line with international best practices. Without doubt, judicial notice is one of the two ways of proving custom under the Evidence Act and proof of international best practice is to be done in line with the provision relating to proof of custom under the Evidence Act. International best practice of awarding the employee’s two years’ salary for unfair dismissal or termination as recognised and affirmed in the case of SAHARA ENERGY RESOURCES LTD VS OYEBOLA is now an established practice of this Honourable Court. Recently, in the case of MR. REGINALD VS POWER HOLDING COMPANY OF NIGERIA PLC & ORS delivered on 10th January, 2023, this Honourable Court per The Honourable Justice F.I Kola-Olalere awarded two years’ salary as remedy for wrongful termination of employment. Indeed, on 24 February 2024, the Supreme Court of Nigeria affirmed that the award of two years’ salary is reasonable as damages is reasonable @ paragraph 42. It was further contended that the Claimant is entitled to unremitted pension contribution from the Defendant as provided for in the Pension Reform Act, 2014 (“the Act”). Notably, the Act governs and regulates the administration of the uniform contributory pension scheme for both public and private sectors in Nigeria. The mandatory pension contribution required in the Act applies to two categories of employees. These include all employees in the public sector and employees of private organizations in which there are 15 or more employees. See Section 3 of the Pension Reform Act 2014.

42.    In this case, the Claimant pleaded and testified that the Defendant has over 100 staff. We refer your Lordship to paragraph 19 of the Statement of Facts and paragraph 20 of the Claimant’s deposition on oath. The implication is that Section 4 of the Act which requires mandatory pension contribution by the employer is applicable. The evidence of the Claimant was further corroborated by the DW1 under cross examination. To be sure, at the cross examination of the DW1 on 23 April 2024, the following transpired:

“Ozuo: Are you aware that the Pension Reform Act mandates your company to contribute to the pension scheme?

 

DW1: Yes, I am aware.

 

Ozuo: it is correct that in your company website, it is stated that your company has over 50 years of experience and over 100 workers

 

DW1: Correct”.

43.    Counsel submitted that the above testimony coupled with the unchallenged and uncontradicted testimony of the Claimant leaves no one in doubt that the Defendant is required to make mandatory pension contribution for the Claimant. Under the Act, employer is required to contribute a minimum of 10% of the employee’s monthly emoluments. In this regard, the amount to be deducted from the employee salary is 8% of the employee’s emolument. We refer Your Lordship to section 4 (1) (a) and (b) of the Pension Reform Act, 2014.The Act also provides that an employer can take full responsibility of the pension contribution. In that case, the contribution shall not be less than 20% of the employee’s monthly emolument. We refer Your Lordship to section 4 (4) (a) and (b) of the Pension Reform Act 2014. Therefore, it is not mandatory for an employer to deduct any sum from the amount due to the employee before the employer could make the contribution under the Act. This is because an employer may elect to make the whole contribution as stipulated in Section 4(4)(2) of the Act. Indeed, failure to deduct any sum from the emolument of the Claimant is a strong indication of the employer’s election to contribute 20% of an employee’s monthly salary. In other words, the Pension Reform Act, 2014 allows an employer to contribute 20% of an employee’s salary where no deduction is made from the employee’s salary.

 

44.    On issue No.3 the Learned Counsel submitted that Honourable Court has had cause to define unfair labour practices as “practices that do not conform with best practice in labour circles as may be stipulated by domestic and international legislation and practices.” In other words, unfair labour practices in employment and labour matters are those conducts outlawed by the Constitution and various labour legislation both domestic and international. The question now is, has the Claimant made out any case of unfair labour practice against the Defendant?

 

45.    The Claimant pleaded that he is a victim of the Defendant’s unfair labour practices. In paragraph 11 & 12 of the Statement of Fact, the Claimant pleaded as follows:

11. The Claimant avers that while working for the Defendant from 1st December, 2017 to December 2021, he was not permitted to go on annual leave which affected the physical and mental health of the Claimant. The Claimant further avers that throughout his time at the Defendant, his cumulative and total leave dates did not exceed 6 days.

 

12. The Claimant avers that the Defendant is guilty of unfair labour practice for only permitting the Claimant to go on leave for a cumulative period not exceeding 6 days for the five years the Claimant worked with the Defendant. The Defendant’s unwillingness and persistent refusal to grant the Claimant annual leave grossly affected and caused the Claimant both physical and mental health injury.

 

46         The Claimant further gave uncontradicted evidence on the above fact. Without a doubt, the denial of leave is an unfair labour practice which affects the wellbeing of the victim. It causes both physical and mental injury to the victim and the perpetrator is usually made liable in damages. In the case of JOHNSON VS LAW UNION AND ROCK INSURANCE, this Honourable Court held that it amounts to unfair labour practice to deny an employee annual leave.

 

47         It was submitted that he evidence on record confirms that the Claimant is made to work from Monday to Saturday in the Defendant. For the avoidance of doubt, the Claimant testifies as follows in paragraph 8 of his witness deposition on oath “I worked with the Defendant creditably, working every Monday to Fridays from 7:30am to 5pm with 1hr break in-between, including Saturdays from 7:30am to 12Noon and 11am to 3pm when there is environmental sanitation.” For a person who works Mondays to Saturdays, the least that is expected from the Defendant is to ensure that the 18 days leave stipulated in the Claimant’s employment contract was respected. However, the evidence of the Claimant confirms that the Defendant did not honour their obligation to the Claimant with regard to the Claimant’s annual leave.

 

48         He further argued that the Defendant did not deny the fact that the Claimant was only permitted to go on leave for a cumulative period not exceeding 6 days for the five years the Claimant worked with the Defendant. The Defendant is only saying that “it has no record of any application for leave from the Claimant, wherein same was refused and/or not permitted by the Claimant”. We refer Your Lordship to paragraph 9(c) of the Statement of Defence. In its final written address, the Defendant argued that the Claimant has not brought to this Honourable Court any application for leave it made which was denied. Thus the position of the Defendant appears to suggest that facts can only be proved by documentary evidence. However, this is not the position of the law. The law is that facts may be proved by oral evidence or documentary evidence or both. He referred the Court to Section 125 of the Evidence Act, 2011 and the case of OMO VS JSC DELTA STATE. The Claimant gave uncontradicted evidence regarding the fact that his presence was always required in the Defendant and that he was not permitted to go on leave. One would not expect the Defendant to document their unfair labour practices such as denial of annual leave hence it will be unfair to expect the Claimant to produce documentary evidence regarding the Defendant’s denial of annual leave.

 

49         He contended that in paragraph 22 of the Statement of Facts, the Claimant pleaded that part of the unfair labour practice suffered by the Claimant in the hands of the Defendant include the failure of the Defendant to pay the Claimant’s salary from August to December 2021 and the failure of the Defendant to remit and pay all pension contribution for the Claimant from December 2017 till December 2021.To be sure, non-payment of an employee salary amounts to unfair labour practice. We refer Your Lordship to the case of ONUMAJURU VS EKOCORP PLC & ANOR where the court held as follows “I find it an unfair labour practice, for an employer (the 1st Defendant) to fail to pay an employee (the Claimant) for a continuous period of five months, in which the employee worked.” Similarly, the Defendant’s failure to contribute to the Claimant's pension scheme amounts to an unfair labour practice as it violates a right or protection granted by the Pension Reform Act 2014.

 

50         Notably, the fact that the Claimant was not paid salary for 4 months and the fact that the Defendant did not make a contribution as required by the Pension Reforms Act are not in dispute in this case. We therefore urge Your Lordship to hold that the Claimant has made out a case of unfair labour practice against the Defendant in this case. The law is settled that the appropriate remedy for unfair labour practice is award of damages against the guilty party. In the case of LOVELL OSAHONEHIGIE VS FIRST BANK OF NIGERIA LIMITED this Honourable Court made the point as follows “unfair labour practice attracts compensation for the victimized staff as a way to assuage the wrongful act.

 

51         On issue No.4, Leared counsel submitted that the Defendant in its Statement of Defence and Final Written Address made heavy weather of the fact that it paid the Claimant’s earned salaries. The Defendant argued that it was no longer indebted to the Claimant and having paid the said salary that there were no more live issues to be addressed by this Honourable Court. The Defendant’s argument lost sight of various pronouncements of this Honourable Court on this point. The law is that a party who waited and only to pay an employee’s salary after the employee has instituted an action for the said salary has caused injury to the employee for which the court will award damages. This Honourable Court punishes such reckless conduct on the part of an employer. In the case of Onumajuru v Ekocorp Plc & Anor, this Honourable Court made an award of damages against such conduct as follows:

 

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

 

52.       In the instant case, the Defendant refused to pay the Claimant even after several letters written by the Claimant. The Defendant only thought it wise to pay the Claimant after they were served with the originating processes in this case on 15th December, 2022. That is, the payment of the Claimant’s salary was made by the Defendant after exposing the Claimant to emotional injury and unbearable expenses. We therefore submit t`hat the payment of the Claimant’s salary only after the institution of this suit has caused injury to the Claimant for which the Claimant is entitled to damages.

 

53.       Before we conclude, we note that the grant of the reliefs 10 and 11 naturally follows from a favourable resolution of this matter in favour of the Claimant. For the avoidance of doubt, on relief 10, which is on the award of post-judgment interest, it is our respectful submission that the power of a court to award post-judgment interest is usually exercised when the court has pronounced its judgment in favour of any claim. This Honourable Court is, therefore, imbued with the jurisdiction to award a post-judgment interest in the instant case especially because this Court is empowered by the Rules of this Honourable Court to do so. We refer your Lordship to Ngeremv Crown Realties Plc and Order 47 rule 7 of the Rules of this Honourable Court which prescribes a minimum of 10% interest per annum on any judgment sum.

 

54.       On the issue of the cost of litigation, it was submitted that the Court has the ultimate discretion to award cost, but this discretion must be exercised judicially and judiciously. In the award of costs, the Court is expected to consider all the circumstances of the case. The ultimate aim is to restitute the successful party to the extent of the costs incurred in the litigation. This could either be for the prosecution of a claim or defending an action, whichever is the case.

 

REPLY ON POINTS OF LAW

 

55.       The Learned Counsel submitted that the Claimant’s issue 1, at paragraphs 13 – 30 of the said Final Address, the Claimant’s Counsel made eloquent submissions on the meaning of constructive dismissal and also referred this Honourable Court to several decided authorities. It should be noted that while the said decided cases cited by the Claimant remains good law; they however, do not apply to the instant case, as the facts and/or circumstances of those cases are completely different and distinct from that of the instant case. Particularly in view of the effect of the COVID 19 lockdown on the Defendant. Furthermore, at paragraph 18 of the said Final Address, the Claimant’s Counsel suggested that the Claimant’s resignation was predicated on the failure of the Defendant to pay the Claimant’s salary for the months of August, September, October and November without any justifiable explanation thereby resulting to constructive dismissal.

 

In response to the said argument of the Claimant’s Counsel at paragraph 18, he submitted that it is trite law that the dexterity and eloquence of counsel, no matter how persuasive, cannot take the place of evidence and the law. See: O.A.U. VS INAOLAJI BUILDERS LTD (2020) 4 NWLR part 1714 page 347 at page 371 paragraph F. Therefore, the said arguments and/or submissions of counsel, particularly as it pertains and/or relates to the failure of the Defendant to pay the Claimant’s salary for the months of August, September, October and November without any justifiable explanation thereby resulting to constructive dismissal, cannot by any stroke of imagination take the place of evidence. Put pointedly, there is simply no evidence that the reason for the Claimant’s resignation was as a result of the failure of the Defendant to pay the Claimant’s salary for the months of August, September, October and November 2021. See: ANAJA V U.B.A. PLC. (SUPRA).

 

56.    Furthermore, the Claimant’s counsel at paragraphs 21 – 23 of his Final Address, argued that the averments of the Claimant in his Reply to the Statement of Defence particularly as it relates to the COVID 19 Pandemic lockdown, were not challenged nor impugned under cross examination. In response thereof, we submit that it is a notorious fact that the then Rivers State Government issued out Executive Order RVSG 01 2020 to Executive Order RVSG 06 2020 pursuant to Sections 2, 4 and 8 of Quarantine Act, Cap. Q2 Laws of the Federation of Nigeria 2004 and Regulation 11 of the Quarantine (Corona Virus (Covid-19) and other Infectious Diseases) Regulations, 2020. The said Orders inter alia imposed the lockdown, prohibiting human and vehicular movement in the Port Harcourt metropolis and the entire Rivers State.

 

57.    It was further submitted that on the “Issue 2” argued by the Claimant’s counsel in his said Final Address, he had in one breathe, asked this Honourable Court to discountenance the evidence of the Defendant’s DW1 on the premise that same was predicated on hearsay (See paragraphs 24 and 25 therein). Curiously, in another breathe, the Claimant’s counsel had asked this Honourable Court to rely on the evidence of DW1 as corroborating the Claimant’s case (See paragraphs 32 and 33 therein). We respectfully submit that it is trite law that the Claimant cannot to speak from both sides of his mouth. Put pointedly, the Claimant cannot be allowed to approbate and reprobate.

 

58.    He submitted that it is trite law that the law does not allow this Honourable Court to make assumption or act on mere conjectures and/or speculations. See: SAKAMORI CONSTR. (NIG.) LTD. V L.S.W.C. (2022) 5 NWLR part 1823 page 339 at page paragraphs 404 D – G. The Claimant has simply not placed any evidence on record which this Honourable Court can rely on to ascertain the number of employees in the Defendant’s employ. The Claimant has rather invited this Honourable Court to speculate on the number.

 

59.    On the Claimant’s issues 3 and 4, it was submitted that at the risk of repetition that the dexterity and eloquence of counsel, no matter how persuasive, cannot take the place of evidence and the law. There is no evidence that the Claimant applied for leave and same was not granted him. Furthermore, the Claimant’s counsel relied heavily on the case of ONUMAJURU V EKOCORP. PLC & ANOR. (Supra) to argue unfair labour practices and urge this Honourable Court to so hold. We respectfully submit that the facts and/or circumstances in that case, together with all the other authorities cited and/or relied on by the Claimant in his Final Address, are completely different and distinct from the facts and circumstances of the instant case and therefore do not apply. The case of ONUMAJURU VS EKO CORP. PLC & ANOR was a case of victimization and termination of the Claimant’s employment on account of an altercation she had with one of her superiors. In the instant case, the Claimant voluntarily resigned his appointment plus it is not his case that his resignation was as a result of any altercation. More distinguishing is the fact that the operations and/or regular business of the Defendant in the instant case was shut down by the then Rivers State Government under the operation of Executive Order RVSG 01 2020 to Executive Order RVSG 06 2020 following the COVID 19 pandemic.

 

            COURT’S DECISION:

60.    I have carefully considered the process filed by the parties, the submissions by counsel and the authorities cited in final addresses. I have also evaluated the oral and documentary evidence of the witnesses. The law is settled that in the determination of employment rights, it is the employee who complains that his employment contract as been breached that has the burden to place before the Court the terms and conditions of his employment that provide for his rights and obligation. See OKOEBOR VS POLICE COUNCIL (2003)12 NWLR (Pt. 834) 444; OKOMU OIL PALM CO. VS ISERHIENRHIEN (2001)6 NWLR (Pt. 710) 660; IDONIBOYE OBE VS NNPC (2003) 2 NWLR (Pt. 805)589 at 630. In furtherance of this, the Claimant has placed before the Court is Offer of Employment (Exhibit (1), Staff Handbook, Letter of Promotion, Letter of Resignation etc.

61.    It is the law that whosoever desires the Court to give judgment as to                                                                                                                                                                                                                                                                                                                                                                          any legal right or liability dependent on the existence of facts which he asserts must prove that facts exists. See S. 131(1) & (2) of the Evidence Act, 2011; See CALABAR CO-OPERATIVE LTD VS EKPO (2008) 1-2 SC 229 at 255. Civil suits are decided on the balance of probabilities, on the preponderance of evidence. The burden of proof is not sterlic but shifts from side to side. The onus of adducing further evidence is not adduced. See DANJUMA VS S.C.C. NIG LTD (2017)6 NWLR (Pt. 1561)175 at 206; OSUJI VS EKEOCHA (2009) 16 NWLR (Pt. 1166) 81 at 116; FADLALLAH VS AREWA TEXTILE LTD (1997) 8 NWLR (Pt. 518)546 at 556.

62.    In determining the issues that arise for determination, the Court will adopt the 5 issues distilled by the parties severally as they are the thrust of action. Other axillary issues may be subsumed in the determination of these issues to wit:

i.)           Whether the nonpayment of Claimant’s earned salaries for the month of August, September, October and November 2021 by the Defendant amounted to constructive dismissal of the Claimant?

ii.)        Whether considering the provisions of the Pension Reform Act, 2014, the Claimant is not entitled to unremitted pension contribution from the Defendant?

iii.)      Whether the Claimant has made out any case of unfair labour practice against the Defendant?

iv.)       Whether the payment of the Claimant’s salary only after the institution of this suit has not caused injury to the Claimant?

v.)         Whether the Claimant’s claim is meritorious?

63.    On Issue No. 1, it is within the contemplation of the Claimant that he is entitled to a monthly salary of N80,000.00 effective from the 16th day of January, 2020 but to his surprise the Defendant without any explanation wilfully and unjustly refused to pay his earned salaries from the months of August, 2021 to December, 2021 when he resigned from the Defendant by a Letter of Resignation dated the 1st day of December, 2021. See Exhibit CW1B. The conduct of the Defendant according to the Claimant amounted to constructive dismissal.

64.    In the case of MISS EBERE UKOJA VS STANDARD ALLIANCE LIFE ASSURANCE CO. LTD (2014) 47 NWLR (P. 154)531. It was held that “Globally and in Labour/Employment Law, constructive dismissal, also referred to as constructive discharge, occurs when an employee resigned because his/her employer’s behavior has become intolerable or heinous or made life difficult that the employee has no choice but to resign. Given that the resignation was not 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 condition (or so changes 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 dismissal. 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.

65.    The question worthy of being asked at this juncture is whether refusal of the Defendant to pay the Claimant 5 months’ salary could be considered as one of such conditions that may lead to constructive dismissal? The right to receive salary or wages is determined by the letter of appointment. See JEREMIAH VS ZIREGBE & ANOR (1991) 7 NWLR (Pt. 347) 356. Thus, it is usually said that an employer owes the employee duty to pay wages or salary in accordance with the terms of the contract express or implied. In CHEMICAL AND NON-METALLIC PRODUCTS SENIOR STAFF ASSOCIATION VS VEMIE CEMENT COMPANY PLC (2006)5 NWLR (PT. 14) 1, the National Industrial Court said that the Law regards the issue of salary as sacred. Similarly, salaries and wages are usually payable in arrears at the end of the month after the worker must have discharged his or her obligation under the contract.

66.    Section 14 of the Labour Act provides that wages of workers shall become due and payable at the end of each period for which the contract is expressed to subsist i.e. Daily, Weekly or at such other period as may be agreed upon, provided that where the period is more than one month, wages shall become due and payable at intervals not exceeding one month. Conclusively therefore, 5 months without salary even though it applied to other staff as rightly argued by the Defendant was a clear breach of the contract agreement based on the above cites authorities.

67.    However, the Defendant on its parts attempted at justifying the circumstance which was attributed to the Nationwide shut down occasioned by the Covid-19 Pandemic. That it is on record the Defendant is a construction company which service did not fall into the classification of “essential service provider” permitted to operate during the lockdown. As such, cash inflow was seriously tempered with. It is imperative to state categorically clear that the outbreak of the Novel Coronavirus Disease (COVID-19) has brought about a global economic downtown and negative impact on global commercial activities with economics at the brink of a recession. Generally, labour relations are governed by the Labour Legislation in different countries and more specifically by contracts of employment, which spelt out the terms which have been agreed to by both employer and employees to govern their relations during the terms of employment.

 

68.    Notwithstanding, the above forgoing, the question is, can an employer suspend the payment of salaries (as done by the Defendant in this suit) or reduce salaries as a result of its inability to generate income due to the outbreak of the pandemic? By the Principles of the Law of Contract, parties to a contract are bound by its terms and cannot vary the terms and condition of the contract except with the consent of the other party. This extends to employer-employee relationship and the general principles relating to the construction, termination, amendment and enforcement of a contract will apply to an employment contract unless a specific labour legislation provides for derogation from the general principles. See AJAH VS FIDELITY BANK (unreported Suit No: NICN/LA/58I/2017) delivered on the 14th day of May, 2019.

69.    Exhibit CW1A is very clear and unambiguous. The contents therein are explicit as regards the conditions of service including payment of salaries. However, instances of Covid-19 was never contemplated. Therefore to address the situation, there should have been a documentary evidence to that effect, but there is none, except the oral submission by the Defendant. Variation and material changes to an employment contract must be communicated to employees well in advance of when the same would be made or implemented and this is to provide industrial harmony such that material changes are not unilaterally made by the employer and imposed on the employees if such an amendment is made effective. See JAHESU VS FEDERAL MINISTRY OF HEALTH (2016) 65 NWLR (Pt. 229)84. Although, the Claimant under cross examination admitted that they were invited for a meeting to that effect, it is my considered opinion that the resolution should have been documented where both parties consented as in Exhibit CW1A. It brought about a major change in the contract.

70.    Based on the above forgoing, could it be finally said that the conduct of the Defendant for refusing to pay the Claimant his earned salary for 4 months and the response made by the Claimant during cross-examination that the issue of constructive dismissal was never contemplated when put on his resignation. It could conceivably be correct that he had some new reasons in his mind that so moved him to take that decision. I seems to agree with the position of the Defendant in this circumstance, that constructive dismissal was never contemplated. But it was an afterthought.

71.    On Issue No. 2, the Claimant alleged that the Defendant had failed to remit and pay all pension contribution for the Claimant from the month of December 2017 till the month of December, 2021. The Defendant on his part claimed that at no time any deductions to that effect was made. This was further corroborated by the Claimant when testifying as CW1 that he is well knowledgeable with the provision of the Pension Reform Act; at all material times during his appointment with the Defendant, the Defendant never deducted any money from his salary. He never complained about the non-deduction of money from his monthly emolument for pension and non-remittance of same to a Pension Fund Custodians. According to the Claimant, the rationale behind the non-deduction and remittance was that the Claimant do not qualify and/or fall within the purview contemplated in the Pension Reform Act.  Although DW1 stated under cross examination that the Defendant engaged in the Pension Contribution and deduction and with 50 years’ experience with over 100 staff.

72.    The Court of Appeal in the case of NNPC VS KOMOLAFE (2021) LPELR – 55824 (CA) Per IGE, JCA held:

“The Respondent is entitled to his terminal benefits and monthly pension. See ABUBAKAR ABDULRAHMAN VS NNPC (2021) 12 NWLR (pt. 1791) 4105 Per Abba-Aji JSC who said “A terminal benefit is a lump sum of money awarded in contract at the expiration of employment. The Appellant in the instant case has earned it already despite the termination of his employment. It is accruable to an employee when his service and no longer required. A terminal benefit is readily and easily assessed as it is calculable from the agreement between parties on terms and conditions of employment, based on specific statute or common law rules. It has always been said that ‘rest is sweet after labour; a labourer is entitled to his wages and entitlements upon his retirement in accordance with the conditions of employment and the Court will not allow any unjust denial of the terminal benefits to a Retiree. The porous defence put up by the Appellant  to as earlier on highlighted are bare faced after thought and a malicious act on the part of the Appellant to deny the Respondent his entitlements particularly his pension and gratuity. Perhaps, unknown to the Appellant the constitution expressly and constitutionally prohibits any employer or authority from placing any obstacle or impediments. Section 173 of the Constitution provides as follows (1) Subjects to the provisions of this Constitution, the right of a person in Public Service of the Federation to receive pension and gratuity shall be regulated by law. (2) Any benefit to which a person is entitled in accordance with or under such law as is referred to sub-section 1 of this section, shall not be withheld or altered to his disadvantage except such extent as is permissible under any law, including the code of conduct (3) Pensions shall be reviewed every five (5) years or together with any Federal Civil Service salary review, whichever is earlier (4) Pension in respect of service in the public service of the Federation shall not be fooled.”

73.    The Defendant is duty bound to explain further, how the Claimant was disqualified by the Pension Reform Act from benefiting in the scheme. Was it the Defendant or the Claimant that was affected in the circumstance? Whereas, the mandatory pension contribution required in the Act applies to two (2) categories of employees. i.e. those in the public and private sectors as rightly posited by the Claimant. See Section 3 of the Pension Reform Act, 2014. Even DW1, has admitted during cross examination that he is aware that the Pension Reform Act mandates their company to contribute to the Pension Scheme, especially when the Defendant had the numerical strength of over 100 staff at a time. See Section 4 of the Pension Reform Act, 2014.

74. Thus, by virtue of Section (1) the categories of persons exempted from the Contributory Pension Scheme are (a) the categories of persons mentioned in Section 291 of the Constitution of the Federal Republic of Nigeria, 1999 including members of the Armed Forces, the Intelligence and Secret Services of the Federation (b) any employees who is entitled to retirement benefits under any pension scheme existing before the 25th day of June, 2004 being the commencement of the Pension Reform Act, 2004 but as at that date had 3 or less years to retire. (c) Any person who falls within the provision of subsection 1 of this section shall continue to derive benefit under existing pension scheme in accordance with the formula provided for in the Second Schedule to this Act or under the provisions of enabling Laws. (d) nothing in this Act shall preclude the right of any person mentioned in subsection 1 and 2 of this section to be paid his pension as and when due (e) where an officer exempted under Section 5(1)(b) of this section dies in service or in the course of duty, the Federal Government Pension Transitional Arrangements Directorate and the Federal Capital Territory Pension Transitional Arrangement Directorate shall cause to be paid, en bloc is next-of-kin or designated survivors a gratuity and pension to which the officer would have been entitled at the date of his death calculated in accordance with Section 46 of this Act.”

75. The Defendant having failed to elaborate on the exemption alleged for non-contribution to the pension scheme, whereas he is required to do so based on the statutory authorities cited above, I seems to agree with the Claimant that and the authorities cited in that wise that the Defendant has wilfully neglected to make contribution of any pension in favour of the Claimant. So I hold.

76.    On Issue No. 3, the Claimant alleged that the entire conducts of the Defendant as it affected is employment relationship amounted to unfair labour practice. See paragraphs 11 and 12 of the Statement of Facts.

11. The Claimant averred that while working for the Defendant from 1st December, 2017 to December 2021, he was not permitted to go on annual leave which affected the physical and mental health of the Claimant. The Claimant averred that throughout his time at the Defendant his cumulative and total leave dates did not exceed 6 days. That according to the Claimant affected and cause his both physical and mental health injury.

77.    Meanwhile the Law shall remain that the relationship between a master and his servant or employer and his employee is a contractual one and it is governed and regulated by the terms and conditions of the contract between them. See NEPA VS ADEAAJI (2002)17 NWLR (PT. 568)1; NURA VS CBN (2007) 14 NWLR (PT. 1055) 804; OSAKWE VS NIG PAPER MILL LTD (1998)1; The Law is also settled that the rights, obligations and liability of the parties to such a contract are to be determined on the basis of the time and condition to which they have freely and voluntarily agreed to govern and regulate the relationship between them. See S. S. CO. LTD VS AFROPEK NIG LTD (2008) 18 NWLR (PT. 1118) 77; AMODU VS AMODE (1991) 4 NWLR (Pt. 188)780; KALTO VS CBN (1999)6 NWLR (Pt. 607)390.

78.    Pursuant to aforementioned position of the law, unfair labour practice or International Best Practice may arise in the course of employment or in a Trade Dispute or Industrial Relations but cannot rightly and properly be implied into the terms and conditions of a contract of service freely entered into a servant-master relationship. The rights, entitlements and obligation of parties in such a relationship are in law and equity, to be and are governed by the terms and condition wholeheartedly agreed by the parties and not by sentimental conjunction of what is fair or unfair conduct in the relationship in complete disregard of the terms and conditions. The issue of unfair labour practice or international best practice would not arise in the exercise of a right vested in the parties by their own voluntary agreement on how to end or determine the relationship between them.

79.    The question that comes to mind is whether the denial of annual leave by the Defendant amounts to breach of the terms and condition of the employment contract between the two (2) of them as contained on exhibit CW1A? If so, whether such a contract could cause the Claimant both physical and mental injury? This Court had severally held that it amounts to unfair labour practice to deny an employee annual leave. See any other the case of JOHNSON VS LAW UNION AND ROCK INSURANCE as rightly cited by the Claimant (Supra). Although, the Defendant had attempted making a defence in this wise wherein he stated that the Claimant is entitled to 18 days annual leave. That as a general practice, a staff who wish to go on annual leave usually voluntarily applies for same, specifically stating the period they intend to commence and the number of days they will be away for. But there is no record to the effect that the Claimant had ever applied and was rejected.

80.    Similarly, that as a general and/or conventional practice, leave allowance are usually paid to staff when they go on leave. The question that call for determination here is does that mean that any staff who was not accorded with the opportunity to proceed on annual leave will not be compensated for that period? It was not shown by any record or even oral evidence that the Claimant was never compensated in lieu of the annual leave which he was brutally denied enjoying same. It could also be conceivably correct to say that this ill-practice gives the Defendant the maximum joy and luxury which is but unfair Labour Practice.  I so hold that failure of the Defendant to accord the Claimant with opportunity to enjoy his annual leave for over a period of five (5) years was an unfair Labour Practice.

81.    On the Issue No. 4, it surface saying that substantial part of it has been dealt with under Issue No. 1. It is however on record that the Defendant had persistently refused to pay the Claimant his earned salaries despite several demands to that effect, not until when this suit was filed, was a conduct capable of exposing the Claimant to emotional injury and unbearable expenses. Similarly, it was a case of breach of contractual agreement. So I hold.

82.    On Issue No. 5, the learned defence counsel posited that an examination of the Claimant's claim as contain in his Statement of Facts revealed that the Claimant has four (4) principal relieves which are declaratory and seven (7) others which are axillary. Thus, where the former fails, the latter equally fails. Contrary to that assertion, the Claimant was able to demonstrate by credible evidence establishing the claim by prepondence of evidence.

83.    The Claimant is entitled to an award of damages and compensation for the unfair labour practices by the Defendant. This is pursuant to the provisions of Section 19(d) of the National industrial Court Act, 2006. The next consideration is the quantum of damages to be awarded the Claimant. I relied on the case of BRITISH AIRWAYS VS MAKANJUOLA (1993) 8 NWLR (PT. 311) 274 at 288.

84.    On the whole, the Claimant's case succeeds to this extent.

85.    For all the reasons given above, I hereby declare and make the following Orders:

1.      I declare that it amounted to unfair labour practice to withhold the Claimant’s earned salaries from August 2021 till December 2021 when the Claimant left the employment of the Defendant.

2.      This relief shall fail as the Claimant presented a voluntary resignation letter on non-disclosed grounds.

3.      This relief shall fail, as it was overtaken by event i.e. the Defendant has paid the Claimant during the pendency of this suit.

4.      This relief shall also fail, relief 2 above having been also failed.

5.      I declare that it amounted to unfair labour practice for the Claimant to work in the Defendant from 1st December, 2017 till December, 2022 and was only permitted to go on leave for a cumulative period not exceeding 6 days.

6.      The Defendant is ordered to pay to the Claimant to the sum of N2,000,000.00 (Two Million Naira) representing the damages and compensation for the unfair labour practices.

7.      I declare that the Claimant is entitled to the unremitted Pension Contribution from the Defendant as stipulated under the Pension Reforms Act, 2014.

8.      The Defendant is ordered to pay to a reputable Pension Company all unremitted pension due to the Claimant from 1st December 2017 till December, 2021.

9.      Cost in the sum of 300,000.00 (Three Hundred Thousand Naira) awarded the Claimant.

86.    All sums are to be paid within 30 days. Thereafter, any sum outstanding will attract compound interest at the rate of 10% per annum.

         Judgment is entered accordingly.

 

 

   

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Hon. Justice M. A. Hamza

Judge