WD
IN THE
NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE
LAGOS JUDICIAL DIVISION
HOLDEN AT
LAGOS
BEFORE
HIS LORDSHIP HON.JUSTICE A.N UBAKA
DATED 29TH SEPTEMBER, 2023 SUIT NO: NICN/LA/152/2020
MR. OSEKHOMO GODWIN - CLAIMANT
AND
ORIFLAME COSMETICS NIGERIA LIMITED - DEFENDANT
REPRESENTATION:
Kayode
Omosehin with P.S Edime for the claimant
M.O.
Emmanuel with George Ayanjompe the Defendant.
JUDGMENT
The
Claimant by a General form of Complaint dated 17th June, 2020 but
filed on the 24th of June, 2020 claims against the Defendant as
follows:
1.
A DECLARATION that the Claimant was constructively
dismissed by the
Defendant without justifiable ground when the Defendant's officers forced the Claimant to resign on 24th January
2020 and that the Claimant's purported
resignation of 24th January 2020 was involuntary and unlawful;
2.
DECLARATION that the decision of the Defendant in
singling out the Claimant for dismissal
without fair hearing amount to discrimination and unfair
labour practice and therefore unlawful.
3.
AWARD OF DAMAGES in the sum of N2,000, 000.00(Two
Million Naira) against the Defendant payable
within 7 days as damages for unlawful dismissal and unfair labour practice;
4.
AN AWARD of Nl,000,000 (One Million Naira) as cost
of filing the action
as a result of the Defendant's deliberate
refusal to settle the dispute amicably thus forcing the Claimant to resort
to Litigation.
Accompanying
the complaint is the claimant’s written statement on oath, list of
witnesses and documents to be relied upon on trial dated 17th June,
2020 but filed 24th June, 2020.
In reaction,
the defendant entered formal appearance and then filed a statement of defence, witness
written statement on oath (20th July, 2022) and list of documents to
be relied upon at trial dated 14th July, 2020 but filed on 16th
July, 2020.
The summary of the facts pleaded by the claimant is that he was employed by the Defendant on 1st July, 2018 as a
Warehouse Officer and that following
his devotion and outstanding performance as confirmed by his record, the Defendant gave him several salary increments; that the entire
premises of the Defendant including the warehouse where he was stationed was covered by
CCTV cameras; that though the Defendant imposed
resignation on him on the 24th of January 2020, it was tantamount to dismissal as he was forced to sign a document the content of which he was
not given opportunity to read or seek legal advice about. That his performance in the Defendant's
employment was commendable and his conduct
was unblemished as confirmed by his rapid increase in salary and that he has
never been queried nor charged with any misconduct having discharged his duties to the
Defendant diligently without any question.
That on 24th January 2020, the trio of the
Operations Manager (Mr. Abiri Oluwaseyi), the Supervisor (Mr. Oyetoro Oyeleye) and a Security Officer (Mr. Peter Oko) of the
Defendant called him into the Defendant's conference room where they presented
two letters to him the contents of which he was not given the chance to read or
seek legal advice about; that the Defendant's officers explained to him that one of the letters
was to dismiss him with immediate effect and without any benefit of one (1)
month's salary in lieu of notice; while the
other letter was purportedly for his resignation, which would entitle him to
payment of one (1) month's salary in
lieu of notice; that he protested against the decision to terminate his employment
without any reason having insisted that failure to sign the resignation letter
would lead to his dismissal. That the
Defendant's officers took away the letter which he signed without providing him
with a photocopy thereof. The entire session between him and the Defendant's
officers was captured by the Defendant's CCTV camera.
That the Defendant engaged in discriminatory and unfair labour
practice against him by failing to provide his monthly
salary pay slips, by making wrongful deductions from his salaries and singling him out for dismissal without
fair hearing over a conduct of all 19 staff members including
the company's drivers and forklift operators; that the Defendant’s conduct violates the International
Labour Convention on
Termination of Employment Convention, 1982 (No. 158); that the Defendant failed and refused to
provide his monthly Pay Slips showing the breakdown of
his salaries and the monthly deductions from his salaries despite demand, prevented him from ascertaining the exact amount he was earning as salaries and
the amount due as pension contributions as well as the deductions being made by the Defendant from his
salaries; that the Defendant introduced a mortgage scheme
to the workers and addressed the warehouse
workers on it and that by virtue of the
scheme, the Defendant was making monthly deductions from his salaries and that he has not derived
any benefit from the mortgage scheme. That the Defendant promotes the culture
of fear and intimidation in the company
amongst warehouse staff which prevented him from insisting on
his rights.
That the Defendant's officers mentioned
(while asking me to resign) that he must exit the company
for participating in a social hangout of about 19 staff members at the Warehouse on Christmas Eve 24th December 2019 ("Staff Hangout") being the last
working day of the year; that the staff hangout of 24th
December 2019 happened after work hours as the day was a half-working day. The
Staff Hangout took place at the Warehouse which is at the back of the
Defendant's premises but within the coverage of the Defendant's CCTV camera wherein Staff members had
few drinks at the Hangout to mark the end of the year 2019 but that he did not
drink and that the Hangout was never a misconduct
and did not impact on his performance or image of the Defendant. That the Defendant engaged in discriminatory
practice in when it singled him out for
termination together with his closest friends and colleagues, Aziba Cosmas and Oniyelu Temitope Amos
without fair hearing.
That on 13th March 2020, he
instructed his Solicitors, Koriat & Co
to write and a letter of demand,
which was written on his behalf to the Defendant to demand amicable settlement of the dispute and
that by the said demand letter, he informed the Defendant the matter would be
deemed amicably resolved if the Defendant provided an opportunity to voluntarily resign, a good reference
letter and compensation for loss of employment. That two emails of 24th March 2020 and 27th May 2020, his
Solicitors wrote to forward the
acknowledgment copy of the demand letter of 13th March 2020 to the
directors of the Defendant urging them to respond to his demands but the Defendant and its directors willfully ignored his request for
amicable resolution of the dispute, hence the present suit.
Under cross examination by the defendant’s counsel, CW stated that
he did not resign to avoid dismissal; that he did not drink as he left
immediately after closing; that he was not given the defendant’s staff handbook;
that he does not have any document showing that he queried the defendant on the
deductions of his salary.
There was no Re-Examination by the claimant’s counsel. The claimant thereafter closed his case.
The defendant opened its defence by calling its sole
witness, Mr. Oluwaseyi Ologun, a
Warehouse/Logistics Officer of the defendant wherein he adopted his witness statement
on oath as evidence in this case. The defendant’s witness statement on oath is
that he relates closely with the Claimant and
his former supervisor, Mr. Oyeleye Oyetoro,
who used to work at the Defendant's warehouse; that he is aware that his former
colleague, Oyeleye Oyetoro has initially deposed to a witness statement on oath
in support of the Defendant's case in this lawsuit but he has since resigned
from the employment of the Defendant and that due
to his resignation, it
is extremely difficult, if not impossible, to
secure his attendance in the Honourable Court to testify
in support of the case of the Defendant.
That the Defendant
places great premium on a high ethical and disciplined culture, which is modeled and practiced at every level of
authority; in every sphere of its operations and in every country where it
operates. that the Defendant promotes and seeks to achieve in every sphere of
its operations and in every jurisdiction
where it operates: attractive benefits and
compensation plan for all its employees,
keeping with industry standards in the sectors where it
operates.
That he is aware
that the Defendant's policy on attractive
benefits and progressive compensation plan for its
employees which was fully extended to the
Claimant and the Claimant's activities and
responsibilities in the course of his
employment with the Defendant were duly
accounted for
and rewarded either through official recognition
and commendation or through increments of the Claimant's annual salary and
payment of bonuses; that the Defendant
installed Closed Circuit Television (CCTV) in certain areas within its premises
in order to protect its personnel, equipment and assets from any likely security
breaches; that this lawsuit was not brought in good faith, as the Claimant has
only maliciously sued the Defendant for the purposes of
gold-digging and intimidation.
That he is aware
that the Claimant was employed by the Defendant on 17 September 2014 as a
Warehouse Officer after he successfully completed the Defendant's recruitment
process and by
virtue of the Claimant's employment contract, he subscribed to the Defendant's
Code of Conduct, Rules and Regulations, Staff Handbook and
covenanted to use his best endeavors to promote, protect, develop and extend
the business of the Defendant; that the Claimant was neither dismissed from
employment nor forced to append his signature to any document, as the
Claimant voluntarily resigned from the Defendant's employment
after he had admitted to the misconduct of drinking alcohol during
office hours and being found in a state of drunkenness during office
hours; that
on 24 December 2019, Mr. Oyetoro caused a formal complaint to be made to the
Board of Directors against the Claimant when he found the Claimant in a drunken
state while
on duty and after the Claimant had been given the opportunity to respond to the
allegation, the Board of Directors made a decision to present the Claimant with
two options, namely: either to voluntarily resign from his
employment or in the event of his refusal to resign, he
would be dismissed for being drunk during office hours.
That when the Claimant was confronted with
the allegation of his drunkenness on duty, he did
not deny this allegation,
as he was not able to provide
any satisfactory explanation as to why he decided to engage in drinking alcohol with some
of his colleagues within the office premises during official
hours and that the Defendant therefore scheduled a meeting with the Claimant on 24
January 2020 where he was presented with the option to either voluntarily
resign from his employment or stand the risk of being dismissed
for engaging in the consumption of alcohol during official hours and being
drunk during official hours.
That upon
being
presented with the two options stated above,
the Claimant voluntarily chose the option of
resigning from his employment with immediate effect and is therefore estopped from complaining about his termination
when he has agreed that the Defendant reserves the right to
terminate his appointment
without pay if he is guilty of any fraud or dishonesty or
act in
any manner which
in the opinion of the Defendant or its Board brings or likely to bring
the Defendant or its other employees into disrepute
or is materially adverse to the interests of the Defendant; that he knows as a fact that consuming alcohol on duty is
an act, which in the opinion of the Defendant's Board of Directors, is capable
of bringing the Defendant or its employees into disrepute and capable of
setting a bad example for other employees of the Defendant. That he is also
aware that the upward review of the Claimant's salary and payment of bonuses
were done as a matter of general practice, as the Defendant regularly reviews
its employees' remuneration packages in line with international best practices
and also in order to encourage them to be more productive and motivated to
achieve the Defendant's set targets.
That according to the report made by Oyeleye
Oyetoro to the Board which he verily believes to be true, on 24 December 2019,
the Claimant, with two (2) of his friends,
hosted a social gathering at the Warehouse
of the Defendant, within the office premises. The said social gathering was not
authorized by the Defendant and it was done during official
hours when the Claimant and his friends were expected to be at work. The
Defendant
had already organized an end of the year party for all its
staff on 6 and 7 December 2019 where all the members of its
staff were lodged at a resort for two days and had fun; that at the social
gathering which was held between the hours of 10:00am and 11:00am, the Claimant and his
friends consumed alcoholic drinks and littered the floor with cans of beers
with the brand names: "Trophy larger beer", and "Goldberg larger
beer".
That Mr.
Oyetoro stated that he took the picture with
his phone camera and sent it to his official email and from there he escalated
it to his superior in the office and he also retrieved a copy of the email
which he printed from his HP Computer Laptop and the office printer which he
has been using for work-related functions for the past two years and which have
never developed any fault or malfunctioned; that Mr. Oyetoro confronted the
Claimant in his state of drunkenness, but he was not able to provide a
reasonable explanation, as he was rude and arrogant to his
supervisor and he also stated that he had a right to consume alcohol; that
the Claimant's contract of employment provides for a mechanism through which
the Claimant could formally complain about any decision that was taken against
him by the Defendant, but the Claimant failed to employ this complaint
procedure.
That he is aware that none of the
Defendant's representatives mounted any form of pressure on the Claimant to
append his signature on any document or to take any particular course of
action, as the Claimant is a fully grown man who knows his rights under the law
and is literate; that he is aware that there is no CCTV recording
of the Defendant's representatives mounting pressure on the Claimant to take
any course of action or append his signature on a letter of resignation; that
the Defendant has, at all times material to
the facts of the lawsuit,
dealt fairly with
the Claimant
including prompt
payment of the Claimant's
salaries
and other entitlements
and periodic increment in his
salary to motivate the Claimant to work and also the claimant having admitted
the Defendant's
fair
dealings
in
paragraph 5 of his Statement of Facts
where
the
Claimant
averred that "the Defendant gave him several
salary increments." is
therefore, estopped from denying the
Defendant's compliance with international
best practices
because:
1.
The Claimant
is aware of his salary and when his salary was increased,
the Defendant's letter
conveying the reviewed salary was communicated to the Claimant.
2.
At no
time
prior
to the filing
of this
lawsuit did the Claimant demand to know
from the Defendant the breakdown of his gross salary.
3.
The
Claimant has not substantiated any claim on the
Defendant's alleged failure to comply with international best practice.
4.
The Claimant
has
not provided any fact to substantiate the alleged deduction
of his
monthly salary
on any
mortgage
scheme as this was not part
of
the Claimant's terms
of employment and he has never
demanded from the Defendant at any time prior to the institution of this suit
any reason for any alleged deduction on mortgage scheme.
5.
There
is
no culture
of fear
and
intimidation
in
the Defendant as this baseless allegation
cannot
be substantiated.
6.
Supervisor
met only
the Claimant
and two (2) of his friends consuming alcohol sometime
between 10am to 11 am on 24 December 2019 and when he confronted them for drinking
during
office
hours, the Claimant was rude to him and stated that he and
his
friends had the right to consume alcohol and celebrate.
7.
The three (3)
employees (including the Claimant herein)
who were found consuming alcohol
on 24 December 2019 all chose
the
option
to voluntarily
resign from
their
employment so there was no form of discrimination against the Claimant,
as the Defendant cannot discipline other employees
who were not found consuming alcohol or in a state of drunkenness
during official hours.
8.
The
Claimant's
allegation
that he was not given his monthly pay slips is an afterthought and an attempt by the Claimant to clutch onto
straws since
he is
aware
that
his
claim before
this
Honourable Court is specious.
That although when
the Defendant received the Claimant's Counsel's letter,
it considered it as
a ploy to intimidate
and
blackmail
it
to provide
a good recommendation letter
for
the Claimant
who admitted to consuming alcohol during office hours, the Defendant
was nevertheless
unable to instruct its solicitors to respond to the letter due
to the disruption in its activities by the COVID-19 Pandemic and also that the Defendant considered
the Claimant's Counsel's letter as
extortionary as the claimant was demanding a ransome of N1,000,000.00 (One Million
Naira)
against
a threat of a possible of lawsuit notwithstanding
that it was the Claimant
who willfully breached his contract of employment with
the Defendant by engaging in consumption
of alcoholic drinks while at work.
Under
cross examination by the claimant’s counsel, DW said that the board of
Directors were aware of the meeting of the claimant on 24th January,
2020; that it is not true that Mr. Oyetoro Oyeleye was disengaged because of
the meeting; that the warehouse’s CCTV was not functioning at that time.
There was no re-examination by the defendant’s
counsel. The defendant thereafter its case.
The parties were directed to file their final written addresses. The defendant’s final written address is dated 2nd
June, 2023 but filed 6th June, 2023 while the claimant’s final
written address is dated and filed 4th July, 2023. The defendant’s
reply on point of law is dated 12th July, 2023 but filed 14th
July, 2023.
1.
When a witness makes material inconsistent statements,
their
evidence will be discarded as unreliable testimony. Can this
Honourable Court rely on the testimony of the Claimant in view of
his monumental inconsistent statements?
2.
Assuming
without conceding that the Claimant is a truthful and reliable witness, has he been able to establish his entitlements to any of the claims he is
making?
3.
Is the
Defendant justified in terminating the Claimant's employment when the Claimant was drunk at work?
It is the defendant’s
counsel submission on issue one (1) that the
consequence of impeachment of the credibility of the Claimant is that his evidence loses probative value and the
facts lay unproven; that the material
contradictions in his statement that he left for home immediately after working
hours and did not participate in the hangout against
his statement; that the hangout was not a misconduct and that it did not
impact his performance have destroyed whatever
is left of his integrity; that the claimant
wants the honourable court to believe that he did not participate in the hangout, but he was able to mention
the names of those who participated at the
hangout; alleged that the Defendant singled him out for punishment out of the
19 members of staff that participated at the hangout.
He later confirmed his lack of integrity when he changed his testimony
to say that he did not consume alcohol but the other participants at the
hangout had few drinks; that one wonders which version of his
testimony the Claimant wants the honourable court to believe. He cited the case
of Doripolo v State (2012) LPELR-15415 (CA) and urged the honourable court to discountenance
the claimant’s testimony as an untruthful witness and consequently dismiss his
claim in view of Sections 131 and 132 of Evidence Act, 2011.
On issue two (2); the defendant’s counsel
contended that a case of
wrongful dismissal does not entitle the employee to damages at large except in very
exceptional cases, which the Claimant has
failed to demonstrate here; that where the Claimant succeeds in a case of
wrongful dismissal the honourable court would compensate him with payment of salary in lieu of notice, as the only right vested in the
parties would be to terminate with payment in lieu of notice;
that in the very
unlikely event that the honourable court agrees with the Claimant that there
could be a finding of wrongful termination,
the Defendant has already regularized its position
having paid the Claimant his one-month salary
in lieu of notice as the Claimant is not
entitled to (a gold-digging claim of N2,000,000.00
(Two million naira).
Continuing,
counsel submitted that the law is steel-solid that where
an
employer presents an employee who misconducted himself in the service of
his employer with the choice to resign honourably rather than being sacked and
the employee voluntarily elects to resign his employment, presenting the
employee with such options would not amount to coercion if the employee
willfully and voluntarily took the option of resignation. He cited the case of
Union Bank of Nigeria v Nwachukwu (2000) LPELR-12976 (CA) and urged
the honourable court to so hold.
On issue three (3); counsel
submitted that by the totality of
the Defendant's uncontroverted evidence especially Exhibits OG7 and OG10, it is within the
Defendant's right to terminate the Claimant's employment when the Claimant is
found wanting in his official duties or when he
misconducts himself; that the
Defendant has been magnanimous in going the extra mile of advising the Claimant to
resign when he was drunk at work with the consequence of paying him one month
salary in lieu of notice when the Defendant could have dismissed him from work
without pay.
Learned counsel on
behalf of the claimant framed a sole issue for the court’s determination viz:
Whether from the totality of facts, pleadings, and evidence
adduced, the Claimant is entitled to the reliefs sought.
It is the claimant’s counsel contention on the sole
issue and in relation with the claimant’s resignation of 24th
January, 2020 that the Defendant's action of presenting an already prepared resignation letter to the Claimant on 24th
January 2020 in the presence of its security officer
over an unsubstantiated allegation of drunkenness and forcing or coercing the Claimant to
insert his name, date and signature
in dotted lines provided
in the resignation letter is unlawful and constructive dismissal of the Claimant. He cited the case of Onuminva v. Access Bank PIc [20141 LPELR-22461 (CA) and urged
the honourable court to so hold.
Continuing, counsel submitted that the presence of a security officer (Mr. Peter Oko) was
arranged by the Defendant to intimidate the Claimant into resignation or to
escort him out of the premises if he refused to resign; that the Claimant has led credible evidence to prove his forced resignation which
amounts to constructive dismissal and that the Claimant was constructively dismissed in the present suit. He cited the case of Western Excavating v. Sharp (1978) 1 All ER 713.
That the claimant's acceptance to sign the
already prepared
resignation letter under a tense atmosphere (in the absence of disciplinary
process for misconduct) was to treat the employment contract as
repudiated as a result of the Defendant's breach of fair hearing over the
allegation of drunkenness, which
amounts to constructive dismissal.
On the defendant’s lack of evidence of drunkenness against the
claimant; the claimant’s counsel submitted that since the
ground for coercing the Claimant to sign a prepared resignation was the allegation of drunkenness, the Defendant must prove the misconduct of
drunkenness before the honourable court; that as the honourable court's record shows, there is no CCTV
recording of the Claimant's participation in
the hangout despite the claimant’s notice to produce same. There is no photograph nor video record showing the Claimant in a drunken state, no proof of issuance of a query or formal
complaint against the Claimant or any admission of misconduct. There is no record of any disciplinary process or proceedings against the Claimant.
That the photograph presented in evidence
by the Defendant and
admitted by court as Exhibit OG9), Mr. Oyeleye Oyetoro, purportedly took at the hangout of 24th
December 2019 is lacking
in any probative value as the
said photographs do not show the date they
were taken nor any connection to the Claimant as a participant of the
alleged hangout or in any drunken state as alleged by the Defendant;
that assuming without conceding that the Defendant's allegation of the
Claimant's drunkenness was true, Mr. Oyeleye
Oyetoro,
who purportedly took the photographs (Exhibit OG9) ought to have
captured the Claimant in a drunken state unless he (the maker of the
photographs) was himself drunk when he took the picture. That the testimony of
DW is speculative, contradictory and inconsistent. He cited the case of Osifo v. STATE (2021) LPELR-54136(CA) and urged the honourable court to
discountenance Exhibit OG9 and hold that the allegation of drunkenness against
the Claimant was not proved.
On the unlawful deductions of the claimant’s salary; the
claimant’s counsel submitted that apart from being an admission of
the Defendant's unilateral
deductions of the Claimant's salaries, Exhibit
OG6 is suspicious having been hurriedly concocted by the Defendant to defend
itself against the claim of unfair labour practice relating to unilateral
deductions of the Claimant's salaries; that the Defendant made the unilateral deductions
without the Claimant's consent and shrouded
the amounts of deductions in secrecy by refusing to provide pays lips or any
proof of the deductions until this case was filed. He cited the case of Omole v
Mainstreet Bank Microfinance Bank Ltd. (2015) 53 N.L.L.R. (Pt. 180) 491
at 521 and urged the honourable court to so
hold.
On breach
of fair hearing; counsel submitted that it is trite law that an employer who dismisses
or disengages an employee for misconduct must prove that the employee was given adequate opportunity to defend the misconduct; that the
defendant in the instant suit
did not issue a query or
hold any disciplinary proceedings
over the allegation against the Claimant before forcing him to sign a prepared
resignation letter. Also, both parties agree to the fact that the
meeting of 24th January 2020 was held solely to present the Claimant with two options:
either to insert his name, signature and date on a resignation letter (prepared
and presented by the Defendant) or be dismissed from the Defendant's service. That the Claimant was not allowed to
defend himself before the
Defendant presented him with a prepared letter of resignation to sign failing
which he would have been dismissed. He cited the case of Awulu v Polaris Bank Ltd (2022) LPELR-58783(CA) and urged the
honourable court to so hold.
On the claim for damages and cost of action; counsel submitted
that the award of damages and cost of action is at the discretion of the honourable court
and the honourable court, being a court of law and equity, is enjoined to ensure adequate
compensation for a claimant who has been unjustly treated by the defendant.
On the Reply on point of law; the defendant’s counsel submitted
that in the circumstance of the Claimant's admission
that the hangout took place and that he participated, the Defendant only
requires minimum corroborating evidence to charge the Claimant with liability. He
cited the case of Cappa & D' Alberto Ltd v. Akintilo (2003) LPELR-829(SC). That the Defendant has discharged this burden of minimal
proof when it put in Exhibit OG9 which
shows the picture of the brand of alcohol consumed at the hangout; that it
should also be pointed out that this is a civil proceeding and the standard of
proof is
not beyond reasonable doubt but on the balance of probability. He urged the honourable to dismiss the Claimant's lawsuit in its entirety as there is no legal basis to sustain the Claimant's arguments in his Final Address.
I have carefully considered all the processes filed,
the evidence led, the written submissions, arguments and authorities canvassed
by counsel in the final written addresses in this matter. The issue for determination is
Whether the claimant
is entitled to the reliefs claimed
Before delving into the main case, it is necessary to
first look into the preliminary point raised by the defendant that this lawsuit
discloses no reasonable cause of action. The claimant did not respond to same
as he did not file a reply to the statement of defence. It is settled law that
in determining whether there is a reasonable cause of action or not, reference
must be made to the statement of claim. A reasonable cause of action means a
cause of action with some reasonable prospects of success when the allegations
in the statement of claim discloses cause of action or some questions deserving
of consideration and determination by the judge, such an action shall be held
to disclose reasonable cause of action. The claimant has alleged that he was
constructively dismissed in his statement of facts. it is not whether the case
will succeed or not but that from the averments the claimant has alleged that a
right has been violated and it is that right that provides the right to sue
which is the wrongful act of the party sued see Emechebe v Ceto International Nig
Ltd (2017) LPELR – 45365. I hold that there is a reasonable cause of
action.
The case of the claimant is that he was employed as a
warehouse officer on the 1st of July 2018 by the defendant and was
dismissed on the 24th of January 2020 wherein he was presented with
two letters, one letter for resignation and the other dismissal. He then signed
the one for resignation as an option given to him by the defendant as that
would entitle him to one month salary in lieu of notice, this again signalled
the end of his working relationship with the defendant wit. Now the
argument of the claimant is that having to force him to resign is constructive
dismissal without justifiable ground as there was no fair hearing and prayed
for award of damages.
The law is trite that the party who asserts has the
onus or duty to prove his assertion or claim by adducing credible evidence. See
Section 131 of the Evidence Act 2011, to the effect that the burden of proof in
civil matters lies on the party who would fail if no evidence at all was
adduced on either side. The claimant resigned his employment by exhibit OG8.
The claimant’s argument is that two letters were handed over to him one for
dismissal and the other for resignation and that where he refused to sign the
resignation letter, then he will be dismissed. In paragraph 9 of the statement of facts the
claimant averred that one of the letters is to dismiss the claimant with
immediate effect and no benefit of one month salary in lieu of notice and the
other letter was for resignation which would entitle him to one month salary in
lieu. He chose the latter and only signed in the portion provided for signature
and date. It is trite law that a master can terminate the employment of his
servant at any time of and for any reason or for no reason at all provided the
termination is in accordance with the terms of the contract. See GGC (Nig) Ltd
v Bakare & Anor (2018) LPELR-46810 (CA). In this case, the claimant’s
employment was not terminated but he resigned.
I must comment at this stage that the claimant did not tender the letter
of employment for determination of the terms of contract and the defendant has
not raised objection to same, so it is not fatal to the claimant’s case. See
NIIA v Ayanfulu (2006) LPELR -5960 held thus
But where in the instant appeal, the
appellant admitted the existence of the contract and the condition of service
was put in evidence, the rigid rule set down in Morohunfola ‘case will not be
adhered to. The parties appear to be ad idem in the instant appeal that there
was in existence contract of service. The only area of dispute relates to the
manner of removal of the respondent, in that case it may no longer be necessary
to tender the letter of appointment
The claimant having pleaded existence of contract of
employment which the defendant admitted brings the issue of the binding contract
between the parties as exhibit (OG1) tendered by the claimant while the
defendant tendered same as exhibit (OG7). Having dealt with the issue of letter
of employment, the claimant equally averred that the letter of resignation which
was imposed on him was taken away by the defendant and same tendered as exhibit
OG 8. Below is the resignation letter exhibit (OG8)
24/01/2020
I Esekhomo Godwin Chikose hereby
resign my appointment today 24th January, 2020 from Oriflame Cosmetics
Nigeria Ltd. Today will be my last day and I hereby submit all the company’s
possession in my care as stated below
1.
Phone
2.
Sim Card
3.
ID Card.
Name
signature and date
The argument of the claimant in all of this is that he
did not resign voluntarily. The claimant continued in his argument that the forceful
resignation was not based on any misconduct as the staff hangout which happened
after work hours as the day was a half working day took place at the back of
the defendant’s premises. In all they were 19 staff but that he was singled out
with his close friends with no query. While the claimant here is not only
claiming for unlawful dismissal, he opined that is a in itself constructive dismissal
as the defendant wrote the resignation letter not based on any wrongdoing
by him but made him sign the letter bringing the employment to an end. In the instant case the defendant enumerated
what led to the resignation of the claimant. The defendant’s first assertion is that the
claimant voluntarily resigned from the defendant’s employment after he had
admitted to the misconduct of drinking alcohol during office hours and later
was found in a state of drunkenness during office hours; that after the
warehouse manager Mr oyetoro oyeleye found the claimant drunk he lodged a
complaint to the board of directors and the claimant was given the opportunity
to respond to the allegation, the board of directors made a decision to present
the claimant with two options namely to either resign voluntarily and if he
refuses to be dismissed for being drunk during office hours. And that when the
claimant was confronted with these allegations, he did not deny neither did he
give satisfactory explanation on such behaviour during official hours.
Turning to the sole allegation of being drunk during
office hours, not being given an opportunity to respond to the allegation,
forced resignation, can the
defendant in its testimony be held to have established this allegation? I
recall the defendant’s pleading that its relationship with the claimant was
regulated by the claimant’s employment contract. The employment contract exhibit OG1 tendered
as exhibit OG8 provides under clause 2–
TERM OF APPOINTMENT
2.1 The appointment shall commence on
the commencement date and shall continue, subject to the regulating terms of
this agreement, until terminated by either party giving the other not less than
one-month prior notice in writing.
This means there is provision for either party to give
one month notice. What then is the evidence of the defendant as regards the averment
that the claimant voluntarily resigned his appointment and he equally agreed
that he was drunk during office hours. The law is that he who asserts must
prove. The defendant in all the allegations did not present any evidence to
buttress what it has asserted. The defendant contradicted itself when in stated
in paragraph 10 of the statement of defence that it did not force the
claimant to resign but that the directors decided to allow the claimant to
tender his resignation letter in paragraph 13 of the statement of fact. Below
are the two contradictory statements from the defendant’s statement of defence
10) The defendant denies paragraph 4
of the statement of facts and states that the claimant was neither dismissed
from employment nor forced to append his signature to any document, as the
claimant voluntarily resigned from the defendant’s employment after he had
admitted to the misconduct of drinking alcohol during office hours and being
found in a state of drunkenness during office hours.
13)
Further to the above, the defendant therefore scheduled a meeting with
the claimant on 24 January 2020 where he was presented with the option to
either voluntarily resign from his employment or stand the risk of being
dismissed for engaging in the consumption of alcohol during official hours and
being drunk during official hours.
The defendant in paragraph 13 above imposed it on the
claimant to tender his resignation letter which is contrary to the use of the
word voluntary. Since he was given the told to resign, that signifies force.
It seems that the defendant is not aware of the law as regards resignation. START.
The claimant resigned without notice and no demand made
from him to pay salary in lieu of notice as no notice was given. It is accordingly not unexpected that the
defendant would demand for payment in lieu but curiously, he was paid one month
in lieu and refers to same as soft landing. I wonder how
exhibit OG 9 can qualify as evidence in the face of such serious allegation of
drunkenness during office hours. How can the defendant pick up empty cans of
drink and present same to this court as that consumed by the claimant. There is nothing to show that the claimant
was equally involved in the organisation of any party. It is the position of
the law that documentary evidence being permanent in form is more reliable than
oral evidence and is used as hanger to test the credibility of oral evidence. See
Cameroun Airlines v Otutuizu (2011) ALL FWLR (Pt 570) 1260 at 1277, Civil Design
Construction (Nig) Ltd v SCOA (Nig) Ltd (2007) ALL FWLR (Pt 363). It is the defendant
that has asserted and it has to prove. DW was categorical that the claimant
resigned voluntarily and even had to make a choice of either resigning
voluntarily or being dismissed. Such evidence is not before this court as DW
was evasive in response to the questions.
Under cross examination DW stated thus
Que: can you confirm the date and time
the picture was taken
Ans:
I cannot confirm same
Que:
Read paragraph 25 of your statement and this means prior to this you
have reviewed the recordings of the CCTV
Ans:
We had but it was malfunctioning then
Que:
has the claimant been guilty of any misconduct in the course of his
employment
Ans:
I don’t have record as I was not his manager.
Now going by the shattered and thoroughly discredited
evidence of DW, I find that he merely
deposed to the witness statement on oath without evidence as he was exposed
under cross examination as not a witness of truth and the law is settled that
notwithstanding the difficulty of discerning absolute truth by mechanism of
judicial discernment hinged upon evidence before the court, the process of
litigation is aimed at finding out the truth according to law and is a party
is seeking the consideration of the court, must endeavour to be consistent
in both facts he pleads and the evidence he leads in proof of those facts. A party cannot set out pleadings without
evidence in proof of same as same will be inconsistent with the case he has
pleaded. The defendant did not tender any document save for four empty cans of
beer (OG 9) and wants the court to believe that the claimant consumed the drinks.
The above resignation letter is in total a forced
resignation on the claimant. The defendant in its pleading in paragraph 11 of
the statement of defence and paragraph 2.2 of the reply on point of law agreed
that the claimant was made to resign. In paragraph 2.2 the defendant argued
that the officers calmly advised the claimant to resign to give him a soft landing as against the picture the
claimant created while in paragraph 13 of his pleading that the defendant
therefore scheduled a meeting with the claimant on the 24th of
January 2020 where he was presented with the option to either voluntarily
resign from his employment or stand the risk of being dismissed for engaging in
the consumption of alcohol during official hours and being drunk. This in
itself corroborates the claimant’s claim that he was forced to resign as the
resignation was with immediate effect and he did not pay to the defendant for
the notice period as provided in his letter of employment (exhibit AO1). See
INEC & Ors v Orji & Ors (2009) LPELR -4320 (CA) the court held that
resignation from employment is by giving of the required length of notice or
payment in lieu of notice. It does pleasantly appear to me that the defendant
and I dare say his counsel is ignorant of what a constructive dismissal is and
the effect. however, there is no denial by the defendant that the claimant was forced
to resign. having agreed to same, the position of the law is that facts
admitted need no further proof.
The oral testimony of the Claimant is that he was
given two letters and not allowed to read and the defendant went further to explain
the consequences of not signing the typed letters. After signing, the letter
was not given to the claimant. If the claimant wrote the resignation letter,
the defendant will acknowledge same on a copy as resignation becomes effective
on the day it is received by the employer. In this case, the letter was not addressed
to anybody and does not bear the address of the claimant. The letter was typed
and he only inserted his name and signature.
The fact remains that DW was involved in the process
of resignation of the claimant and being evasive when questions were put across
to him makes his evidence not a credible one. A look at the defendant’s final
written address captures the truth that on the claimant’s forced resignation in
paragraph 35
Therefore, the defendant has been
magnanimous in going the extra mile of advising the claimant to resign when he
was drunk at work with the consequence of paying him one month salary in lieu
of notice when the defendant could have dismissed him from work.
DW is not a witness of truth as he was very evasive at
answering questions put across during cross examination. No witness
who has given on oath to material of inconsistent evidence is entitled to the
honour of credibility. Such a witness does not deserve to be treated as a
truthful witness. In the face of the contradictory evidence given by the DW, I
believe the testimony of the claimant that he was given a typed letter of
resignation by the defendant and only appended his signature. The evidence of CW
is more believable than DW who was evasive throughout. In this case, the claimant
has discharged by credible evidence the evidential burden of proving the
circumstance under which he resigned. Having not led credible evidence in that
regard the defence of the defendant has collapsed thereby entitling the clamant
to the declaration that the resignation was involuntary.
What is more, the defendant argued extensively
that the claimant was confronted with the allegation of drunkenness, meeting on
24th January 2020 where he voluntarily elected to choose the option
of resigning, consumption of alcohol and the response of the claimant that he
had a right to consume alcohol are not backed by evidence. In fact, the defendant’s response in
paragraph 21 of the statement of defense leaves much to be desired as it
averred that the claimant failed to employ the complaint procedure, The
claimant was never queried so could not have initiated a complaint procedure as
he was only given a letter which turned out to be resignation letter and was
forced to sign same.
The second argument of the claimant is that his
resignation was forceful, involuntary and tantamount to constructive dismissal
of the claimant by the defendant. This court in Ebere Ukoji v Standard Alliance
Life Assurance Co Ltd (2014) 47 NLLR (part 154) 531 NIC held that in a
situation where the employer becomes intolerable and makes life difficult
thereby making the employee with no choice but to resign or openly asking
employee to resign, such is referred to as constructive dismissal or
discharge. I held earlier that the
claimant was forced to resign and was paid one month salary in lieu of notice
having not given notice contrary to the provisions under the term of
appointment which provides thus
The appointment shall commence on the
commencement date and shall continue, subject to the remaining terms of the
agreement until terminated by either party giving the other not less than 1-month
prior notice in writing
The claimant wrote a letter of resignation and no
notice but was compensated with
one month salary. To the court, there are various acts of the defendant which
if examined shows the claimant was dismissed constructively. He was forced to resign by the defendant as
such the resignation is involuntary.
The earlier letter of resignation produced shows an urgency
in the claimant’s assertion that he was compelled to resign. This is a clear
indication that he was forced to resign on the 2nd of July 2014 and
must leave the premises that day unfailingly.
I am satisfied and convinced that the reason for the
claimant’s resignation stems from the allegation of drunkenness during official
period which has remained unproven and I so hold. In Patrick Obiora Modilim v
UBA unreported suit no NICN/ LA/353 /2012 the judgement of which was delivered
on 19th June 2014 this court held that attempt to have employee resign, rather
than outright firing the employee means that the employer is trying to create a
constructive discharge and for which a case of constructive dismissal is made.
Based on this finding that the claimant was forced to
resign he is therefore entitled to damages. Where the employer in terminating
or dispensing with the services of an employee does so without due regard of
the terms and conditions of contract of employment between the parties that
courts without hesitation usually declared wrongful and appropriate measure of damages
awarded to the plaintiff. See Patrick Zideeh v R.S.C (2007) 3 NWLR (PT 1022)554
@ 577). The offer letter referred to in exhibit OG1 clause 7 under salary
referred to an offer letter which is not before the court. The defendant’s letter exhibit OG2 tendered by the claimant
is on salary increment to N1,020,480 which means the claimant is aware of his
salary and contrary to the claimant’s averment in his statement of facts in
paragraphs 13. 15 (i) (ii). In paragraph 15 (iii)the claimant averred that
with the mortgage scheme introduced to the workers the defendant was making
monthly deductions from his salaries. This means the claimant was well aware of
his salary otherwise how did he know of the deduction of pension contributions
and mortgage scheme from his salaries. I find and hold that the resignation is
tantamount to constructive dismissal. Accordingly, the claimant is entitled to
damages of six months’ salary.
On the whole, I declare and order as follows in this
judgment
1.
It is declared that the resignation letter dated
the 24th of January 2020 was forced on the claimant to resign by the
officers of the defendant which is involuntary but not unlawful.
2.
The defendant is ordered to pay the claimant
general damages in the equivalent of 6 months’ salary for the forced
resignation.
3.
Cost of N100, 000 is awarded against the defendant.
4.
All sums are to be paid within 30 days from now
failing which it will attract interest of 10% per annum until all sums are
fully liquidated.
Judgment is entered accordingly.
HON.
JUSTICE A.N. UBAKA
JUDGE