Judgment: Industrial Court Declares Dismissal Wrongful, Orders Firm to Pay Salary In Lieu to Disengaged Staff

• 3144 Monday 9th April 2018

 

Judgment: Industrial Court Declares Dismissal Wrongful, Orders Firm to Pay Salary In Lieu to Disengaged Staff

 

His Lordship, Hon. Justice E. A. Oji of the National Industrial Court of Nigeria, Lagos Judicial Division Monday 9^th April in a judgment declared that the circumstances that led to the Claimants dismissal devoid of fair hearing, and therefore wrongful in a case of ISMAILA ALI-ALHASSAN HAMID V. SKYBLUE SERVICES NIGERIA LIMITED.

The case of the Claimant as revealed from his pleadings is that he was a porter and an employee with the Federal Airport Authority in 2002.  In 2004, the Management of Federal Airport Authority transferred the entire ex -employee of Federal Airport Authority to the Defendant.  He was absorbed by the management of the Defendant in 2004 as a porter.  He was not issued a letter of employment by the Defendant, despite several oral requests.  He continued to work as a casual employee from 2004 to 4^thMay2015 with the Defendant without being issued an employment letter. That during his employment in 2004 to 24^th November, 2010 the Defendant was not remitting his monthly contributory pension.  In November 2010 the Defendant commenced deduction and remission of his contributory pension but were not remitting the contributory pension regularly into his Retirement Saving Account till the 4^thof May, 2015 when he was wrongfully dismissed by the General Manager vide a dismissal letter dated the 4^th May, 2015.  He was not given an opportunity to defend the allegation made by the Defendant against him before he was issued a dismissal letter contrary to Article 7 of the International Labour Organisation Convention of 22^nd June 1982.

On 4^th August 2017, the claimant commenced this suit via the General Form of Complaint and statement of facts claimed the following reliefs among others against the defendant:

1. A Declaration that the Claimant had worked for the Defendant for thirteen years as a causal worker from 2004 without being issued a letter of employment is unfair and unlawful Labour Practice.
2. A Declaration that the summary dismissal of the Claimant via a letter dated the 4^thof May, 2015 is devoid of fair hearing.

• A Declaration that the Claimant purported summary dismissal is Null, Void and wrongful.

In the same vein, the case of the Defendant is that contrary to Claimant’s testimony that he was not issued an offer letter, that the Claimant was issued an offer letter dated 5^th December 2003 which he duly acknowledged; upon being inherited from the Federal Airport Authority of Nigeria (FAAN) in 2003. That contrary to Claimant’s claim, his full pension contribution for the period 2004 to 2010 has since been duly remitted to the pension account of the Claimant.

The Defendant states that the Claimant's full pension contribution was regularly remitted into his Retirement Saving Account. That the Claimant's full pension contribution for November 2010 was remitted on the 8^th of November 2010 and not on 24^th November 2010; full pension contribution for December 2010 was duly remitted on the 27^thof January 2011; full pension contribution for the period May 2011 - August 2013. 

 

Defendant states that the Claimant was dismissed by a letter dated 4th May 2015, and prior to his dismissal, the Claimant had on a number of occasions received several oral warnings.  That the General Manager of the Defendant Company saw the Claimant during the commission of the act of gross misconduct, for which the Claimant was dismissed.

 

Defendant argues further that, it's a settled common law principle, that an employer has the liberty or right to dismiss the employee thereof summarily, for gross misconduct. However, what constitutes a serious or gross misconduct of an employee is a question of fact and degree

 

Defendant also argues that the Claimant is not entitled to 30 months gross salary on the ground that an employer has a right to dismiss his employee summarily for gross misconduct. 

 

On whether or not the Claimant is entitled to award of general damages in the sum N2,000,000.00 (Two Million Naira) (Issue 4), Defendant contends that the Claimant from his Statement of Facts, Witness Statement on Oath and even during the course of Trial failed to establish reasonable grounds to warrant his entitlement to the said sum as damages. That generally, under an employer and employee relationship, the remedy of damages available to an employee is restricted to the contract of employment, which is usually payment in lieu of notice. However, the Claimant was dismissed for gross misconduct therefore he cannot be entitled to any payment whatsoever

Claimant contends that he was in employment for 12 years of dedicated and meritorious years of service with the Defendant during which he was denied all the privileges of promotion, leave bonus, transport allowance etc. and that he was not given any benefit either as a casual employee or as confirmed employee which procedures contravene best International Labour Practice.

After reviewing the argument of the parties, the Court Presided by Hon. Justice E. A. Oji (Ph.D) expressed thus;

“I have read and understood all the processes filed by the parties in this case.  I heard the evidence of the two witnesses called at the trial as well as watched their demeanor.  In addition, I evaluated all the exhibits tendered and admitted.  Having done all this, I set the following lone issue down for determination: Whether the Claimant is entitled to his claims?

 

From the above, I find that by virtue of the uncontroverted letter of employment, the consistent and unbroken nature of Claimant’s employment and the decision of this Court, as stated above, the Claimant, during the period of his employment with the defendant, was not a casual worker.

 

Defendant having not shown the nature and time of the opportunity to defend himself given to the Claimant, and having also not shown that it could not reasonably be expected to provide this opportunity, fell short of the minimum expectation on fair hearing.  I therefore find the circumstances of Claimants dismissal devoid of fair hearing, and therefore wrongful.

Having found that the dismissal is wrongful, I do not however find it to be null and void.  The remedy of the Claimant is only in damages, to the extent that he would have had, had the Defendant exercised his right of termination or dismissal under the contract, without more.  That would be the one month notice which the terms of contract provide; or the sum, in lieu of the notice.

 

In this case, the Claimant though dismissed for gross misconduct, but without being given an opportunity to defend himself, cannot assume that the employment continued. I find this Claimant entitled to the one month notice which his contract of employment prescribes; and having not been given such notice, that he is entitled to the equivalent salary, in lieu.  I so hold.  I make no findings of general damages, as same has not been proved.

 

Judgement is entered accordingly.

 

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