BACK

NICN - JUDGMENT

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

           HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE (PROF) ELIZABETH A. OJI

 

DATE: WEDNESDAY 8TH JULY 2026           

SUIT NO: NICN/LA/290/2022

BETWEEN

 

MR AKINDELE AKINYEMI                                                  CLAIMANT

AND

 

 

LIFEMATE NIGERIA LIMITED                                              DEFENDANT

Representation:

Bimbo Atilola with Micheal Obasikene, Z. Folami and Z. Amida for the Claimant

G.C. Ejikeme for the Defendant

JUDGMENT

Introduction and Claims”

1. On the 15th day of July 2022, the Claimant filed this suit via the General Form of Complaint, together with all frontloaded documents, seeking the following reliefs against the Defendant, to wit:

  1. A DECLARATION that the termination of the Claimant's employment by the Defendant is wrongful.
  2. A DECLARATION that the breakdown of the Claimant's gross salary was an unfair labour practice.
  3. A DECLARATION that the indiscriminate cut in the Claimant's salaries by the Defendant is wrongful and an unfair labour practice.
  4. A DECLARATION that the Defendant's Employee Handbook is riddled with provisions that border on unfair labour practices.
  5. AN ORDER OF THE COURT compelling the Defendant to immediately pay the Claimant the sum of ?207,240.00 representing the sums wrongfully deducted from the salaries of the Claimant for the months of November 2021, January and March 2022.
  6. DAMAGES against the Defendant in the sum of ?12,600,000.00 (Twelve Million, Six Hundred Thousand Naira Only) representing the Claimant's 3 years' salaries as damages for unfair labour practice meted on the Claimant.
  7. DAMAGES against the Defendant in the sum of ?12,600,000.00 (Twelve Million, Six Hundred Thousand Naira Only) representing the Claimant's 3 years' salaries being damages for unfair labour practice meted on the Claimant.
  8. ?10,000,000 as general damages against the Defendant.
  9. INTEREST OF 20% PER ANNUM ON THE SUMS STATED IN paragraphs (e) to (f) above until the judgment sum is fully paid.

2.  In response to the claims, the Defendant filed an Amended Statement of Defence dated the 22nd day of November 2022, with a list of the Defendant's witnesses and the Defendant's witness statement on oath deposed to by Mr. Raphael Onyedika Onwuakagba, as well as a list of documents and copies of documents to be relied on at trial.  The Claimant filed a reply dated the 14th day of March 2023 to the Defendant's Amended Statement of Defence.  Trial commenced in the suit on the 14th day of June 2023. The Claimant gave evidence for himself as CW, by adopting the witness statement on oath deposed to on the 15th day of July 2022 and the 15th day of March 2023. The Claimant was thereafter cross-examined on the 3rd day of October 2023. During the examination-in-chief, the Claimant tendered in evidence 14 documents, and 5 documents during cross examination.  The exhibits are as follows:

  1. Exhibit C1 — offer of employment dated 6/11/2021
  2. Exhibit C2 — photocopies of the Defendant's employee handbook
  3. Exhibit C3 — Claimant's statement of account
  4. Exhibit C4 — electronically generated WhatsApp message
  5. Exhibit C5 — letter of termination dated 13/4/2022
  6. Exhibit C6 — letter of Hybrid Solicitors dated 11/5/2022
  7. Exhibit C7 — letter from the Defendant's counsel dated 24/5/2022
  8. Exhibit C8 — photocopy of exit interview
  9. Exhibit C9 — Claimant's pension statement
  10. Exhibit C10 — Mrs. Mary Uzozie's complaint and statement of claim
  11. Exhibit C11 —HR Director (Mary Uzozie) message to the Management
  12. Exhibit C12 — Claimant's letter of employment in 2018
  13. Exhibit C13 — Claimant's resignation letter
  14. Exhibit C14 — electronic recording of Claimant's exit interview
  15. Exhibit C15 — the assessment form
  16. Exhibit C16 — letter of probation period
  17. Exhibit C17 — termination of employment within probationary period
  18. Exhibit C18 — pay slip
  19. Exhibit C19 – schedule of pension contributions to Stanbic IBTC

3.  The Defendant opened its case on the 30th day of November 2023, through its witness Mr. Raphael Onyedika Onwuakagba (DW), who adopted his statement on oath deposed to on the 22nd day of November 2022 and was thereafter cross-examined on the 8th day of February 2024. During the examination-in-chief, the witness tendered the following documents:

(a) Exhibit D1A — letter of termination dated 13/4/2022

(b) Exhibit D1B — letter of probation extension dated 4th March 2022

At the end of trial, the Court ordered the parties to file their respective final addresses. The Final Written Addresses were adopted on the 1st day of July 2026 and the Court thereafter adjourned the case for judgment.

THECASE OF THE CLAIMANT

4.  The Defendant is a furniture company owned and managed by Chinese nationals. The Claimant was employed by the Defendant as Promotion Manager from the 16th of November 2021 via a letter dated 6th November 2021.  The Claimant's salary breakdown is as follows: Basic — ?15,000; Housing — ?3,000; Transport — ?2,000; Position Allowance — ?330,000; Gross — ?350,000; Pension — ?14,800; Tax — ?6,500; Net — ?328,700. The breakdown is alleged to be a device to cheat the Claimant of statutory pension contributions under the Pension Reform Act 2014 (pension being based on basic, transport, and housing). The Claimant accepted the terms due to economic circumstances.  The Defendant company is characterised by a deep culture of staff slavery and unfair labour practices, and the list of unfair labour practices (a–l) includes: grave abuse of workers' rights; indiscriminate salary cuts and fines; unduly long working hours; poor wages; inaccurate pension remittances; weekend work without overtime pay; maternity leave paid on basic salary only; an unfair sick leave policy; sales department work from Monday to Saturday, 9 a.m. to 6 p.m., with a 15-minute lunch break; denial of annual leave (Clause 9.0 of the Employee Handbook — leave without pay, public holidays included); ridiculous fines and deductions under the Employee Handbook; and disrespect and abuse by Chinese bosses. Salaries are cut under the guise of fines and penalties, and any employee who challenges the practice is fired.   The Claimant was not paid his correct salaries for November 2021, January 2022, and March 2022. The pay cuts were as follows: November 2021 — paid ?153,700 (should be ?328,700); January 2022 — paid ?312,000; March 2022 — paid ?262,000. The total wrongfully deducted amounts to ?207,240 (?174,800 + ?16,532 + ?15,908).  The practice of indiscriminate fines is evidenced by WhatsApp messages showing interactions with a Chinese boss.  Nigerian colleagues were treated with total disrespect, as evidenced by the exit interview form. The Claimant and a colleague (Mr. Samuel Ogunmilua) questioned the pay cut practice and subsequently received a termination letter dated the 13th day of April 2022.  The Claimant's solicitors (Hybrid Solicitors) wrote to the Defendant on 11th May 2022, and the Defendant's lawyer responded on 24th May 2022.

THE CASE OF THE DEFENDANT

5.  It is the case of the Defendant that the Claimant's gross salary was ?350,000 and that there is nothing shocking about the salary breakdown, as the Claimant accepted and signed the handbook and that the salary breakdown figures were the same as claimed, except for the pension and tax figures given.  It is the case of the Defendant that the basic salary (?15,000), housing (?3,000), and transport (?2,000) components are as stated, but the Defendant denies that these constitute a cheating device; the monthly pension contributions were much more than the sum of those components, as shown in a table of pension deductions of ?33,300 monthly, with basic, transport, and housing totalling ?20,000 for December 2021 to May 2022.  It is the case of the Defendant that the Defendant is not characterised by staff slavery or unfair labour practices, has won accolades for staff welfare, and that there were no unfair labour practices as listed. The Defendant further contends that the Claimant's career was not distinguished, as seen in the appraisal forms and the probation extension letter.  The Defendant states that the Claimant did not work hard and that his salary was paid per contract. The Defendant is law-abiding, there were no indiscriminate salary cuts, and the Defendant always paid correct salaries in line with the contract and the handbook.  The Defendant states that the Claimant started work on the 16th day of November 2021 and was paid a half-month salary. Neither the Claimant nor Mr. Samuel Ogunmilua ever questioned the Defendant on its work practices. The Claimant was not sacked; rather, his appointment was terminated for lack of productivity during his probationary period. The Claimant was paid ?182,600 in lieu of notice, which was added to the March 2022 salary and paid in full.  It is the case of the Defendant that the workplace is not a slave camp, that over 2,000 Nigerians are employed happily.  That the photocopy of exit interview is a forged document as Claimant’s head of department is a Chinese man and his signature is in Chinese like all other Chinese personnel.  The Defendant states that there was no wrongful termination, no unfair labour practice, and the handbook is not riddled with unfair provisions. The Defendant further states that the Claimant lacked capacity as he failed to execute an advertising task in March 2022, causing heavy costs to the Defendant.  It is the case of the Defendant that the Defendant did not wrongfully deduct ?207,240 and is not liable to the Claimant for that or for ?12,600,000 (3 years' salaries), or to ?10,000,000 in general damages or 20% interest.

 

CLAIMANT'S REPLY TO AMENDED STATEMENT OF DEFENCE

6.  The Claimant replied that the pension deduction was ?14,800, as evidenced by the pension statement from his PFA, and that the tax deduction was ?6,500.  That he worked with the Defendant in 2018 under a different management, resigned, and was re-employed in 2021 due to his optimal performance in 2018. The Claimant resumed without an onboarding programme or job description, yet performed professionally and efficiently despite the challenges. The Claimant maintains that the averments in the Amended Statement of Defence are false, and that resignation out of frustration was the order of the day due to harsh work schedules, poor career advancement, salary reductions and deductions, disrespect, and violations of workers' rights. The Claimant reiterates that the agreed net salary of ?328,700 was not fully paid for November 2021, January 2022, and March 2022, and that the unilateral deductions were contrary to the terms of employment.  The Claimant was not given the required notice nor paid salary in lieu of notice. The Defendant could not have paid ?182,600 in lieu of notice in March 2022 when the termination was effective 14th April 2022. The Defendant did not pay the full net salary for March 2022, and the claim of adding ?182,600 as notice pay to the March 2022 salary is untenable. The Claimant maintains that the Defendant has no valid defence and that the Claimant is entitled to all the reliefs sought.

SUBMISSIONS ON BEHALF OF THE DEFENDANT

7.  The Defendant raised a sole issue for determination as follows:

  • Whether, from the totality of the facts, evidence, and law, the Claimant has made out a good case so as to be entitled to judgment."

The Defendant submits that the Claimant has not made out a good case, or any case at all, and analyses the Claimant's nine heads of claim seriatim:

8.  On the relief for (A) A declaration that the termination of the Claimant's employment is wrongful; the Defendant argued that Exhibit C1 (offer of employment) provides for a 3-month probationary period, during which either party may terminate with 2 weeks' notice or pay in lieu. The probation was extended due to low performance relying on exhibit C15 - assessment form; and exhibit C16 - probation extension letter. The Claimant's appointment was terminated within the extended probation period (Exhibit C17/D1A - termination letter dated 13th April 2022, effective 14th April 2022). The Claimant was offered and paid two weeks' salary in lieu of notice plus accrued salary. That CW admitted under cross-examination that; "after my termination I was paid my entitlements." The Defendant submits that what is admitted requires no further proof, relying on NNB Plc v Denclag Ltd (2005) 4 NWLR (pt. 916) p. 549 at 597.  The Defendant further argued that the termination was lawful per Exhibit C1 and Labour Act sections 11(1)(2)(3)(6),(7)(9), relying on Ben Chukwuma v Shell (1993) 4 NWLR pt. 287 page 512. The Defendant argues that the Claimant's previous employment in 2018 is of no moment, and issues relating to Mrs. Mary Uzozie (Exhibit C10) are irrelevant and constitute inadmissible documentary hearsay and ought to be expunged, relying on Nwaogu v Atuma (2013) 17 NWLR (pt. 1364) 117.

9.  On the relief for (b) a declaration that the breakdown of the claimant's gross salary was an unfair labour practice; the Defendant argued that the employment relationship was contractual and that the Claimant accepted the offer (signed Exhibit C1) and collected salaries for several months. The Claimant cannot complain after accepting and benefiting from the arrangement, as parties are bound by their contract and the court cannot rewrite it. The Defendant relied on BFI Group Corp v BPE (2012) 18 NWLR (pt. 1332) p. 209 SC; Golden Const. Co Ltd v Stateco Nig. Ltd (2014) 8 NWLR (pt. 1408) p. 171; and Section 128 of the Evidence Act 2011.

10.  On the relief for (c) a declaration that the indiscriminate cut in the claimant's salary is wrongful and an unfair labour practice; the Defendant argued that the Claimant adduced no evidence to prove this claim, that the deductions were in accordance with Exhibit C1 (pension scheme: employee 8%, employer 10%), and that the Employee Handbook (Exhibit C2) was incorporated into the contract per paragraph 5 of Exhibit C1. The Claimant also made no pecuniary claim under this head.  On relief (d) for “a declaration that the Defendant's Employee Handbook is riddled with provisions that border on unfair labour practice; the Defendant argued that the Claimant signed the handbook and never complained, and that the Claimant, no longer being in employment, lacks locus standi to challenge handbook provisions affecting other workers.  On relief (e) an order for payment of ?207,240 (sums deducted from November 2021, January and march 2022); the Defendant argued that the Claimant's employment commenced on 16th November 2021 and that the Claimant is not entitled to a full November salary. The Defendant further argued that there is no evidence of unwarranted deductions for January and March 2022, relying on Sections 131, 132, and 133 of the Evidence Act (he who asserts must prove).  On reliefs (f) & (g) damages of ?12,600,000 (3 years' salaries for unfair labour practice); the Defendant argued that special damages must be pleaded with particulars and proved specifically, relying on O.M.T Co Ltd v Imafidou (2012) 4 NWLR (pt. 1316) p. 46 CA; S.P.D.C Nig. Ltd v Tiebo VII (2005) 9 NWLR (pt. 1447) p. 421.  On relief (h) ?10,000,000 General Damages & (i) 20% Interest; the Defendant submits that these reliefs should fail, due to the failure of the main reliefs.

SUBMISSIONS ON BEHALF OF THE CLAIMANT

11.  The Claimant submits four issues for determination:

  1. Whether the termination of the Claimant’s employment was not wrongful.
  2. Whether the circumstances surrounding the termination of the Claimant’s employment do not amount to unfair labour practice.
  3. Whether the Claimant has proved his case to be entitled to the reliefs sought.
  4. Reply to specific issues of law raised in the Defendant’s final address. 

 

12.  On issue one - whether the termination of the Claimant’s employment was wrongful; the Claimant argues that the law is settled that where an employer gives a reason for termination, the burden shifts to the employer to justify that reason. See Angel Spinning & Dyeing Ltd v Ajah (2000) LPELR?10724 (CA).  In this case, the termination letter (Exhibit C5) expressly stated that the Claimant’s “performance was not satisfactory” despite an extended probation. The Defendant, however, issued no query, warning, or documented performance-improvement measure to the Claimant. Having volunteered a reason sounding in poor performance, the Defendant bore the onus to substantiate it with credible evidence, which it failed to do.  That the Claimant had previously worked for the Defendant in 2018 (under a different management) and was re?engaged in 2021. This history is more consistent with competence than incompetence and undermines the unproven performance allegation.

13.  On issue two - whether the circumstances surrounding the termination amount to unfair labour practice; the Claimant’s case is that the termination was precipitated by his protest against indiscriminate pay cuts and that the Employee Handbook (Exhibit C2) contains cruel, inhumane, and unconscionable provisions. He further contends that the Salary Breakdown (Exhibit C1) was structured to depress pensionable pay contrary to the Pension Reform Act 2014, which pegs pension contributions to basic, housing, and transport. On the correct figures, pension ought to have been 18% of N328,700, i.e., N59,166 monthly.  That, section 5 of the Labour Act prohibits deductions by way of fines except as permitted by law, and Section 21(b) criminalises contraventions. The unexplained downward adjustments and surcharges embodied in Exhibit C3 fall afoul of these provisions.  

14.  On issue three - whether the Claimant has proved entitlement to the reliefs sought; the Claimant submits that the Defendant’s position that notice pay was “for March 2022” conflicts with the effective termination date of 14 April 2022. That, to the extent the Defendant contends payment in lieu was made on the day the letter was delivered, that payment cannot lawfully be attributed to a preceding period inconsistent with the actual termination date.   On the unlawful deductions, Claimant argues that exhibit C3 evidences payments of N153,700 (Nov), N312,000 (Jan), and N262,000 (March) instead of the contractual N328,700 for each month. The Defendant has shown no contractual or statutory basis for these shortfalls. Given Sections 5 and 21(b) Labour Act, the deductions are unlawful and recoverable.  The Claimant further submits that he is entitled to general and punitive damages as sought in reliefs v, vi, and vii).  The Claimant argues that the current state of the law on the award of damages is that the quantum of damages follows the nature and gravity of the wrong. The combination of: (i) wrongful termination on unproven incompetence grounds injuring professional reputation; (ii) unlawful deductions; (iii) the retaliatory nexus with protest against pay cuts; and (iv) pension under?remittance, warrants an award beyond nominal damages.  The Claimant relies on the cases of Sahara Energy Resources Ltd v Olawumi Oyebiola (2020) LPELR?51806 (CA), and Mobil Producing Nigeria Unlimited & Anor v UDO (2018) LPELR – 8440.  

 

REPLY ON POINTS OF LAW

15.   On the wrongful termination and the “reason given” issue, the Defendant admits an employer need not give a reason, but having given “unsatisfactory performance,” it must prove it.  The Defendant argues that the stricter fair?hearing regime for dismissal is distinct from the evidentiary burden that arises once a reason is volunteered for termination.  That the legal requirement for termination during probation is not as rigid as for confirmed employment; relying on the case of Ogbaji v Arewa Textile Mills Plc (2000) 11 NWLR (pt.678)326.  On the issue of unfair labour practice; the Defendant replied that the reason for termination was clearly stated: failure to improve after extended probation. The Employee handbook, alleged unfair labour practices, and protest against deductions have nothing to do with the reason for termination. That the Claimant never protested against the Handbook or sued Defendant prior to termination and that the complaint is an afterthought. That the rules and regulations put in place by employer for effective management cannot amount to unfair labour practice, especially where employees accepted them before accepting employment.  On whether the Claimant proved his case to be entitled to the reliefs; the Defendant replied that the Claimant's employment terminated in accordance with his contract and law governing probation. That contrary to the Claimant’s assertion, the Claimant was not paid prorata salary but surcharged in accordance with signed contract (handbook incorporated by reference).  That the Claimant never complained or resigned and the payment in lieu of notice was given on the day the termination letter was handed over. The Defendant relied on the case of Ben Chukwuma v Shell Petroleum Co (1994) 4 NWLR (pt 289) p.512 at 571. 

COURT’S DECISION

16.  Having carefully considered the pleadings, evidence, exhibits, and the submissions of learned counsel on both sides, this Court distils the following issues for determination:

 

  1. Whether the termination of the Claimant's employment was wrongful.
  2. Whether the circumstances surrounding the termination of the Claimant's employment and the conditions of his service amount to unfair labour practice.
  3. Whether the Claimant is entitled to the reliefs sought.

17.  Issue One - Whether the Termination of the Claimant's Employment was Wrongful.  The Claimant was employed as Promotion Manager vide Exhibit C1, which stipulated a three-month probationary period, with provision for termination by either party on two weeks' notice or payment of salary in lieu thereof. The Defendant contends that the Claimant's performance was unsatisfactory, which necessitated the extension of his probationary period (Exhibits C15 and C16), and that the Claimant's appointment was subsequently terminated within the extended probation period for failure to improve (Exhibits C17 and D1A).  The Claimant argues that, having given a reason for the termination; namely unsatisfactory performance, the Defendant bears the burden of establishing that reason. The Claimant contends that he received no query, warning letter, or opportunity to address any allegation of poor performance prior to termination, and that his re-employment in 2021 after working with the Defendant in 2018 under different management is itself evidence of his competence.  

18.  This Court notes that the termination of an employee during or at the expiration of a probationary period is governed by a less exacting standard than that applicable to the termination of a confirmed employee; as also shown in the parties contract.  In addition, the Claimant’s grouse is that the Defendant gave as reason for his termination, incompetence, and since in his opinion, his performance was ‘stellar,’ then his termination is wrongful, as the reason given is not justifiable.  It is trite law that performance appraisal is an internal management function, and courts will not ordinarily substitute their judgment for that of the employer on matters of performance assessment.   Admittedly, this general principle is not absolute. Where there is evidence of mala fide, victimization, or abuse of the appraisal process, the National Industrial Court, in the exercise of its jurisdiction under Section 254C(1)(a), (b), (f), and (h) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Sections 7(6) and 14 of the National Industrial Court Act 2006, is empowered to intervene to remedy unfair labour practices.  See Shell Pet. Dev. Co. v. Nwaka [2001] 10 NWLR (PT. 720) 64 and Mrs. Abdulrahaman Yetunde Mariam v. University of Ilorin Teaching Hospital Management Board & Anor [2013] 35 NLLR (PT. 103) 40 NIC.  I have considered the evidence led by the Claimant in proof of the allegations of wrongfulness of his termination.  Exhibit C15 is a confirmation appraisal form and states the Defendant’s assessment of the Claimant’s work performance.  This led to his probationary period being extended via exhibit C16, and later to the termination of his employment via exhibit C5.   Exhibit C5 gave the Claimant two weeks salary in lieu of notice as provided in exhibit C1.  The difference in what the actual amount should be, is already part of the reliefs sought by the Claimant and will be determined alongside the alleged shortfalls or deductions in the Claimant’s salaries.  This is particularly so, since the Claimant during cross examination admitted that he was paid his entitlements, after his termination though not as required referring to the quantum.  In my opinion, best practice in labour jurisprudence is for Courts to be circumspect in dallying into internal administrative assessment of staff for promotion or confirmation.  Appraisal and promotion are management functions and employers and administrative bodies are presumed to have the expertise to assess performance, potential, and fit. See Nwoye v. FAAN (2019) 5 NWLR (Pt. 1665) 193 @ 218 paras B-C and Shell Pet. Dev. v. Nwawka (2001) 10 NWLR (Pt. 720) 64 @ 84 D-E.     I have not seen convincing reason to adjudge the reason given for the termination of claimant’s employment unjustified.  I therefore decline to make a finding of wrongful termination of Claimant’s employment.   

19.  Issue Two - whether the circumstances surrounding the termination and conditions of service amount to unfair labour practice.  I have already found that the Claimant’s termination was not wrongful; it therefore cannot amount to unfair labour practice.   However, the Claimant relies on a catalogue of alleged practices, as being unfair labour practices, including: indiscriminate salary deductions disguised as fines and penalties; unduly long working hours; denial of annual leave; inadequate pension remittances; unpaid overtime; and a general culture of disrespect and abuse by Chinese supervisors. The Claimant further contends that the salary structure in Exhibit C1, with a basic salary of only ?15,000 against a position allowance of ?330,000, was deliberately designed to minimise the Defendant's pension contribution obligations under the Pension Reform Act 2014.  This Court takes judicial notice of the provisions of the Pension Reform Act 2014, which prescribes that pension contributions shall be computed on the basis of an employee's monthly emolument, comprising basic salary, housing allowance, and transport allowance. Where an employer structures remuneration in a manner that artificially suppresses these components so as to reduce the pension contribution base, such a structure is inconsistent with the letter and spirit of the Pension Reform Act 2014. In the instant case, a basic salary of ?15,000, a housing allowance of ?3,000, and a transport allowance of ?2,000 would suggest a pension computation base of ?20,000 out of a gross salary of ?350,000 and on its face, a disproportionate and suspicious structure. Yet, exhibit C9, the Stanbic IBTC Pension Account of the Claimant shows payment of N33,200 contributory pension for the period of the Claimant’s employment with the Defendant.  This does not correspond to the percentages argued on by the Claimant.  It shows the pension contribution was not based on the N20,000,00 shown on exhibit C1.   The Claimant's submission on the reason for the remuneration package, is not convincing. While the salary breakdown is unconventional, the Claimant has failed to prove that the Defendant under-remitted his pension. The evidence shows the Defendant contributed substantially more than would be required if pension were calculated solely on the basic, housing, and transport components.  Very important is the fact that this remuneration package was clearly stated on exhibit C1, and the Claimant accepted it without question.  If the Defendant had not terminated the Claimant’s employment at the time it did, the Claimant would still not have complained.  The Claimant is complicit in the remuneration package presentation, and cannot begin now to cry wolf.  

20.  With respect to the salary deductions for November 2021, January 2022, and March 2022, Exhibit C3 (the Claimant's bank statement) shows that the Claimant received ?153,700 in November 2021, ?312,000 in January 2022, and ?262,000 in March 2022, whereas his agreed net salary per Exhibit C1 was ?328,700. The Defendant has not provided satisfactory justification for these shortfalls, beyond a general assertion that all salaries were paid in accordance with the contract. The Claimant has made allegations of unlawful deductions leading to the shortfall.  The Defendant’s reason is that the fines leading to the shortage is provided in the Handbook, which was signed by the Claimant, and forms part of his terms and conditions of employment.  Section 5 of the Labour Act prohibits an employer from making deductions from an employee's wages except in circumstances permitted by law. Section 5 of the Labour Act provides as follows:

5. Deductions (including deductions for overpayment of wages) 

(I) Except where it is expressly permitted by this Act or any other law, no employer shall make any deduction or make any agreement or contract with a worker for any deduction from the wages to be paid by the employer to the worker, or for any payment to the employer by the worker, for or in respect of any fines: Provided that, with the prior consent in writing of an authorized labour officer, a reasonable deduction may be made in respect of injury or loss caused to the employer by the willful misconduct or neglect of the worker. 

(2) An employer may with the consent of a worker make deductions from the wages of the worker and pay to the appropriate person any contributions to provident or pension funds or other schemes agreed to by the worker and approved by the State Authority.

Furthermore, Section 21(b) of the same Labour Act makes such deductions an offence. It provides that:

 

21. Offences 

(1) Any employer who- 

(b) makes any deduction from the wages of any worker or receives any payment from any worker contrary to this Part … shall be guilty of an offence and liable on conviction to a fine not exceeding N800 or, for a second or subsequent offence, to a fine not exceeding N1,500.

21.  The Defendant bears the burden of demonstrating a lawful basis for each deduction, which burden it has failed to discharge.   Regarding the Employee Handbook, Exhibit C2, this Court has perused the document and notes that several of its provisions; including provisions for fines, extended working hours, denial of leave, and deductions; raise legitimate concerns about their compatibility with applicable labour legislation. This Court has jurisdiction under Section 254C(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) to adjudicate complaints of unfair labour practices and to interpret the provisions of labour enactments. The fact that the Claimant signed the Handbook does not foreclose judicial scrutiny of its provisions; parties cannot by contract oust the mandatory provisions of labour legislation.   The following provisions of the Handbook violate the provisions of the Labour Act reproduced above:

2.2.3: All employee must sign in and out on the attendance presented for each month. Failure to do this at the appropriate time will attract a fine of N500.

2.2.5:  Any employee who leaves his/her duty post before the close of work will be fined N300.

2.2.7: All employees can only leave the factory with the permission of the manager, any breach of this will attract a fine of N500.

3.1: All the employees should consciously abide by the rules and regulations of the company, follow to the factory management, and obey the work arrangement, have a good relationship with fellow colleagues and posses a good working attitude. Anyone who disobeys the work arrangement, according to the seriousness of the case, will attract a fine of N500 while those who still have attitude problems and incorrigible ones, will be expelled.

3.3: Any employee who needs to ask for leave of absence needs to inform the person responsible for the workshop for permission. If you need to ask for leave of absence due to unexpected events, you need to call to inform the person in charge of the workshop in time and present a relevant evidence on arrival back to duty. For the absentee from work without reason will be deducted the salary for that day with another 500 Naira penalty.

3.5:  During working hours, it is prohibited for workers to make noise, chat, talk loudly in groups, listen to music using earphones, play games, send or receive text. Any violation will be warned and ordered to make corrections for the first time, and will attract a fine of N200 at the second time.

3.12:  All employee are to keep the production area and the surrounding clean and tidy. Any violation of this nature will attract a fine of N200. All employee are to keep the working place clean and clean up the working areas before going off work.

3.13: All employee should pay attention to product quality and work according to product quality standard requirements. Employees should focus on continuous improvement to operation level and pay attention to product quality. The employee who causes wasting of items or poor quality because of working negligence will be fine ranging from N500 – N20,000 Naira.

 

22.  The Defendant’s Handbook is replete with provisions for deductions for all forms of infractions.  The WhatsApp messages in evidence (Exhibit C4) lend credence to the Defendant’s implementation of the deduction of salaries for Employees perceived infractions of the contract; and that, at the whims and caprices of the Defendant.   In one of the conversations, Claimant’s superior asked: Have you asked for leave?  How many times did you go out without asking for leave? Fine 10000, teach me cash”.  This shows the arbitrariness of the fines.  In another chat, the Defendant asked, “Is there money to pay next week? Whereupon the Claimant replied; “Genuine fine could be paid.  But when you charge me for offence not committed, I don’t like it.  You know I have put in my very best so you won’t have complaints”.  These levying of fines, deductible from the employees’salaries is not supported by the Labour Act.  In exhibit C11, the Defendant’s former HR Director, advised the Defendant as follows:

Good morning Lee, we have observed that when employees do what is wrong, rather than address the matter, staff are fined heavily instead.  May I request that the company should stop putting fines on employees because it is unprofessional!

 

Rather, HR will handle such situations by issuing warnings, queries, termination or even dismissal depending on the level of the offence.  This is the best practice in corporate organisations.   This will also help all staff to behave better as the ambassador of the company

23.  There is no evidence before this Court that the Defendant obtained consent from any authorized labour officer for these fine provisions as required by law. This Court is satisfied that the stated provisions of the Defendants Employees’ Handbook’s provisions are contrary to the Labour Act, and are also capricious.   

24.  While there is no statutory definition of the concept of unfair labour practice in Nigeria; the term "unfair labour practice" however, has been generally defined to mean practices that do not conform to best practice in labour circles as may be enjoined by local and international experiences.  See Mix & Bake v NUFBTE (2004) 1 N.L.L.R (PT. 49) 69, Aluminium Manufacturing Co. Nig. Ltd v Volkswagen Nig. Ltd (2010) 21 N.L.L.R (PT. 60) 428, F.B.N Plc v Associated Motors (1998) 10 NWLR (PT. 570) 441, MPWUN v Alzico Ltd (2010) 18 NLLR (PT. 49) 69.   It consists of acts or omission in employment relationships that are considered unjust, inequitable, oppressive and highly unconscionable, including grave breaches of employees' rights.  In South Africa, Section 186(2) (b) of the Labour Relations Act 66 of 1995 (LRA) defines an unfair labour practice as “… the unfair suspension of an employee or any other unfair disciplinary action short of dismissal…”. Although the Labour Relations Act contains no definition of the word “unfair”, Dr John Grogan in his book entitled Employment Rights Second edition (Juta 2014) at page 114-115, adequately summed up the hallmarks of “Unfair Conduct” as follows (see Magate Phala , “Employees have a right not to be subjected to unfair labour practices”, https://www.labourguide.co.za/recent-articles/2375-employees-have-a-right-not-to-be-subjected-to-unfair-labour-practicesAccessed 5/3/2023:

  • where one person or group of people is favoured over another on the basis of irrelevant criteria,
  • where people are treated arbitrarily, i.e. not in accordance with established rules,
  • where people are treated irrationally, i.e. on the basis of unproven or untested views and suppositions or
  • where people are penalised or denied an advantage without being able to state their case.

25.  By virtue of the powers granted this Court by section 254C(1) (f), of the Constitution of the Federal Republic of Nigeria (3rd Alteration Act), this Court has and exercises jurisdiction to the exclusion of any other Court in civil causes and matters; (f)  relating to or connected with unfair labour practice or international best practices in labour, employment and industrial relation matters.  I hold that the fines imposed under clauses 2.2.3, 2.2.5, 2.2.7, 3.1, 3.3, 3.5, 3.12, and 3.13 of the Employee Handbook apart from being illegal also constitute unfair labour practices.    I note that the Claimant did not lead evidence that that the practices relating to break time, discriminatory health care provisions and denial of annual leave; applied to him.  As a result, I decline to make any findings with respect to those practices.

26.  Issue Three - whether the Claimant is entitled to the reliefs sought.

Relief (a) — Declaration of Wrongful Termination: As resolved under Issue One, the termination of the Claimant's employment was procedurally within the framework of the contract. Accordingly, this relief fails.

Relief (b) is declined as I found that the Claimant failed to prove the breakdown of the Claimant's gross salary in Exhibit C1 affected his pension entitlements under the Pension Reform Act 2014.

Relief (c) succeeds.  The Defendant failed to justify the various cuts in the Claimant’s salaries which led to his being paid less than his contractual salary.  It is hereby declared that the indiscriminate cuts in the Claimant's salaries for November 2021, January 2022, and March 2022 were wrongful and amount to unfair labour practice.

Relief (d) succeeds in part; only as it relates to the provisions providing for fines deductible from Claimant’s his salary.  Clauses 2.2.3, 2.2.5, 2.2.7, 3.1, 3.3, 3.5, 3.12, and 3.13 of the Employee Handbook constitute unfair labour practice.  

Relief (e) — Payment of ?207,240.00: The evidence in Exhibit C3 establishes that the Claimant was underpaid for the months of November 2021, January 2022, and March 2022. The Defendant has failed to provide a satisfactory legal basis for the shortfalls. This Court accordingly orders the Defendant to pay the Claimant the sum of ?207,240.00, representing the sums wrongfully deducted from the Claimant's salaries for the said months.

In reliefs (f) and (g), the Claimant claims three years' salaries (?350,000 × 36 months = ?12,600,000.00) as compensatory damages for unfair labour practice. It is observed that reliefs (f) and (g) are duplicative, both claiming the same sum on the same basis.  This is probably an error.  The law is clear that special damages must be specifically pleaded and strictly proved. See S.P.D.C Nig. Ltd v Tiebo VII (2005) 9 NWLR (pt. 1447) 421. This claim is not grantable.  The Claimant worked for approximately five months with the Defendants, and was terminated in accordance with his contract. 

Relief (h) — ?10,000,000.00 General Damages: General damages are awarded to compensate a party for loss that the law presumes to flow naturally from the wrong done. Having regard to the circumstances of this case and the nature of the unfair labour practices proved, this Court awards general damages in the sum of ?500,000.00 (Five Hundred Thousand Naira).

Relief (i) is for 20% post judgment interest.  Interest shall accrue at the rate of 10% per annum, if this judgment is not complied with, after 30 days from the date of this judgment until the judgment debt is fully liquidated.  The cost of this action is assessed at ?500,000.00 (Five Hundred Thousand Naira), to be paid by the Defendant to the Claimant.

Judgment is entered accordingly.

 

 

…………………………………….

Hon. Justice (Prof) Elizabeth A. Oji