IN THE NATIONAL INDUSTRIAL COURT OF
NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP HON. JUSTICE, A.N
UBAKA
DATED
22nd MAY, 2025 SUIT NO:
NICN/LA/98/2019
MR SUNDAY ELIAS EKEOMA CLAIMANT
AND
FLOUR MILLS OF NIG. PLC
DEFENDANT
REPRESENTATION
B. Akanni for the claimant
Babajimi Ayorinde with J.E Ighalo for the
Defendant.
JUDGMENT
The claimants claim as contained in the
general form of complaint dated 8th March 2024 against the Defendant
seeking the following reliefs:
i.
A declaration by the Honourable Court that the dismissal of the claimant
was wrongful, null and void.
ii.
Conversion of the purported act of dismissal to termination.
iii.
Payment by the defendant to the claimant of all his accrued gratuity which
as at 31st March 2011 is a sum of N2,373,842.52
Gratuity for year
2012 worked on the basis of 16.5% of the
previous year - 27,810.27
5% interest on - 1,390.31
Subtotal - 29,200.78
Grand Total 2,373,842.52
+
29,200.78
Payment of the sum of
2,403,043.30 as the accrued gratuity
for 19 years of service.
The claimant also filed his written statement on oath,
list of witnesses and
documents to be relied upon on trial dated and filed 8th March, 2019.
In reaction, the defendant entered formal appearance
and then filed a statement of defence, witnesses written statement on oath and
list of documents to be relied upon at trial dated 12th March, 2020 but
filed 19th March, 2020.
Pleadings were filed and exchanged.
The summary of the facts pleaded by the claimant is that he was employed by the defendant as a
diesel engine mechanic on probation on the 13th of April 1993 and
that on the 17th of August 1993, after his service were found to be
satisfactory by the defendant, his employment was confirmed through a letter of
confirmation reference No PMs 17/8/93/4092; that he worked diligently for the
defendant and his performance was evaluated from time to time by his superior
officers of the defendant and he was rewarded upon such evaluation; that in year
2010, he was again evaluated and his performance was classified as
'outstanding' by the defendant upon which, he was given a performance
evaluation report dated 4th July 2011 and was also rewarded in cash.
However, following his evaluation and reward, he observed that some of his
co-workers were not happy as he began to notice some expression of animosity
from some of them; that on the 4th of March 2012 barely seven (7)
months after his evaluation which was classified as outstanding by the
defendant, he was given a letter dated 7th
March 2012 purportedly dismissing him from the employment of the defendant.
That upon receiving the letter, he was shocked because prior to
this occasion he was not accused of any misconduct and had never in his 19
years of service to the defendant received any query for any act of misconduct;
that he tried to get explanation for this sudden dismissal but none of his
superior officers were willing to discuss the matter and he was eventually
shown the way out of the defendant's company. That he believed at the time that
the management would look into the matter dispassionately but after he waited
for one (1) year without any response from the defendant, he approached the
worker's union in the defendant with the hope that the union may help him out;
that he wrote a letter of appeal for mercy to the chairman of the workers union
on the 25th of February 2013 but he did not get any response from
the union. That when he did not get any response from the union, he again wrote
a letter of appeal to the group managing director of the defendant dated 10th
March 2015, and yet he did not get any response.
That when all his appeal to the management did not yield
any positive result, he contacted a solicitor, who on his behalf wrote a letter
dated 15th May, 2013 to the defendant but the solicitor did not get
a response to his letter; as the defendant has a practice of giving each staff
a statement of his /her accrued gratuity and he was given his own statement of
accrued gratuity as at 31st March, 2011
for 18years of service shortly before his outstanding performance report in
July 2011. That before his purported dismissal, he had used a major part of his
youthful and employable years of his life in the employment of the defendant
where he worked meritoriously for 19 years without blemish and now, he has been unable to secure another
employment in a similar organization despite his experience because every
would-be employer rejects his application due to the purported dismissal; that
the action of the defendant has caused him a lot of hardship as a family man
who could no longer meet up with his obligations to his immediate family. He prays the honourable court to order the defendant to pay him damages for
the inconvenience and hardship which he has suffered due to his purported
dismissal by the defendant for no just cause.
Under cross examination by
the defendant’s counsel, CW stated that he could recall that he drove his
personal car to the defendant’s office on 19th February, 2021 and
that nothing was found in the booth of his car; that the two bottles of already-used
engine oil found in his car were gotten from a gallon in the defendant’s office
and without the permission of the defendant; that he does not know that it was
the chain of event that led to his dismissal as he did not see it as stealing.
There was no Re-Examination by the
claimant’s counsel. The claimant thereafter closed his case.
The defendant’s case is that the cause of action in this suit arose sometime in
2012 and the Claimant instituted this suit in 2019. That the Claimant was employed by the Defendant by virtue
of an Offer of Appointment dated 10th May 1993 as
a Diesel Mechanic and was confirmed by a letter dated 17th
August 1993 and that throughout the duration
of the Claimant's employment with the Defendant, he was only promoted
once in 2010. That on 19th February, 2012 at about 5:55pm, during the routine check of cars exiting the Defendant's
premises, one of the Defendant's security personnel (Omoyele Olusoji Paul)
searched a car with registration No FU 775 EKY which was being driven by the
Claimant and found two (2) bottles filled with engine oil and upon being
questioned as to the ownership of the engine oil and why it was in the Claimant's
boot, the Claimant admitted that he took the engine oil from the Defendant's
Engine Room (also called power Plant) because he needed it to top up the engine
of his personal car in order to avoid overheating of the engine without
obtaining the permission of the Defendant to take the engine oil, which
was the property of the Defendant.
That the Claimant was subsequently taken to the
Defendant's Control Room, where he voluntarily wrote a statement and admitted
taking the engine oil from the Engine Room and acknowledging that his actions
amounted to stealing and therefore begged for forgiveness; that the Claimant
had been warned earlier that day by the Defendant's security personnel not to
park his car near the Engine Room but he disregarded this warning and parked
his car near the Engine Room in order to have easy access to the Defendant's
engine oil which was stored in the Engine Room. Consequent upon the Claimant's
admission of taking the Defendant's engine oil from the Engine Room, without
the permission of the Defendant, the Defendant terminated the Claimant's
employment by a letter dated 7th March, 2020. That he knows that the
termination of the Claimant's employment was lawful and that it is false to
assert that the Defendant never responded to any of the letters from the
Claimant's solicitor. He urged the honourable court to dismiss the Claimant's
Reliefs (i) to (iii) as set out in paragraph 17 of the Claimant's Statement of
Facts as they are vexatious, frivolous, unfounded and totally lacking in
substance.
Under cross examination by
the claimant’s counsel, DW stated that he joined the defendant in 1987 and
still with the defendant; that the document (exhibit SE11) written by the
security manager was written within the environment where the incident happened;
that the claimant stole the bottles of the engine oil as he has no written permission
to take them and that gratuity is a gratuitous scheme and not automatically
earned.
There was no re-examination by the
defendant’s counsel. The defendant thereafter closed its case.
Upon conclusion of trial, Written addresses were filed and exchanged by
counsel to both parties. The defendant’s final written address is dated and filed 14th
May, 2024 while the claimant’s final written address is dated and filed11th
June, 2024. The defendant’s Reply on point of law is dated and filed 25th
June, 2024.
Written
addresses were filed and exchanged. In his address defendant identified the
following issues for determination
1.
Was the
Claimant lawfully dismissed from the employment of the
Defendant.
2.
Did the
Claimant prove his entitlement to gratuity?
It is the defendant’s counsel submission on issue one (1)
that by virtue of the evidence led by the defendant, it is very clear that the Claimant's action of stealing two (2) bottles of engine
oil amounted to gross misconduct and undermined the relationship of trust and
confidence between the Claimant and the Defendant and that the Claimant's
dismissal from the employment of the Defendant was lawful as it was carried out
under the terms of his employment (Exhibit SE1) and having investigated the
mater, and gave the claimant a fair hearing by allowing him to make
representation through exhibit SE 10 during investigation. That the claimant is
therefore not entitled to have his dismissal converted to termination. He cited
the case of Avre v Nipost (2014) LPELR-22629 CA and urged the honourable court
to so hold.
On issue two (2); counsel submitted that that the Claimant did not prove his entitlement to
gratuity, as set out in his relief, in the sum of N2,403,043.30 ("Two
Million, Four Hundred and Three Thousand and Forty- Three Naira, Forty Kobo);
that the Claimant's right or entitlement to the payment of gratuity or terminal
benefits can only be tenable if the terms of his employment (Exhibits SE1, SE2 or SE3) provide for such benefits.
That exhibit SE5 (Gratuity Statement as of 31st
March, 2011) which the Claimant tendered and relied on is unsigned has no
probative value. He cited the case APC v.
Sheriff &Ors (2023) LPELR-59953 SC.
That assuming without conceding that the Claimant has proved
that his contract of employment included an entitlement to gratuity, the
entitlement will be lost where an employee is found to have engaged in gross
misconduct and is consequently dismissed.
Learned counsel
on behalf of the claimant formulated two (2) issues for the court’s
determination viz:
1.
Was the allegation of stealing
which culminated in the dismissal of the claimant proved beyond reasonable
doubt as provided by section 135 (1 (2) or (3) of the Evidence Act 2011?
2.
Is the claimant entitled to the
payment of his gratuity when same have accrued over the years and have been
acknowledged by the defendant as his entitlement?
On issue one (1); the claimant’s counsel submitted that the
procedure which was employed by the Defendant in dismissing the claimant did
not accord with the rules of justice because the allegation against the
claimant was not investigated, he was not given a hearing (let alone a fair
hearing), no panel sat to hear his defense. In short, the procedure which was
adopted to dismiss the claimant fell short of the rules of natural justice;
that the allegation was made by the defendant's security staff at the gate, no
investigation whatsoever was conducted to determine the truth or otherwise of
the allegation, no panel was set up to hear the claimant's side of the
allegation, the security personnel who made the accusation was not called to
give evidence, as it is the same security personnel who accused the claimant
that also recommended his dismissal, in short the same person acted as the
accuser, the prosecutor as well as the judge.
In
respect of the defendant’s argument on exhibit SE10; counsel submitted that
what is contained therein is not a report
of representation, it could at best be regarded as a statement made in the
"heat of fear" in apprehension of an unpleasant outcome. He urged the
honourable court to discountenance exhibit SE10 tendered by the defendant.
On issue two (2); the claimant’s counsel submitted that the
claimant is entitled to his gratuity which has accrued over the years; that even
if the contract of employment makes no provision for gratuity, the fact that
same has been calculated over the years and made known to the claimant has
nullified the non-provision in the contract. Moreover, there is nothing in the
offer of appointment letter dated 10th May 1993 i.e. Exhibit
SE2" which specifically prohibit payment of gratuity.
In respect of the unsigned document, exhibit SE 5;
counsel submitted that the defendant has forgotten that exhibit SE5 is an attachment
to Exhibit SE4 which does not need to have a separate signature as the
attachment was intended merely to make the claimant know his position with
respect to his accrued gratuity.
On Reply on point of law to the
claimant’s final written address, the defendant’s counsel submitted that
the circumstances of this case did not warrant the setting up of a panel or a
trial because the Claimant admitted his wrongdoing and in fact begged for
leniency. He urged the honourable court to disregard this argument because
there is a distinction between a finding on an allegation of crime and a
finding on the admission of the commission of an offence. He cited the case of Dongtoe v. Civil Service Commission, Plateau State & Ors (2022)
LPELR-56968 CA.
That the claimant’s argument in respect of exhibit SE5is
misleading as the honourable court would find that both documents bear
different dates; whereas Exhibit SE4 is dated 4th July 2011, Exhibit SE5 is an
earlier document, dated 31st March.
Having heard the
parties in this matter and considered all the processes filed, evidence led as
well as the submissions of the counsel to the parties, it is my view the issues
for determination are
1.
Whether the dismissal of the claimant is wrongful, null
and void.
2.
Whether the claimant is entitled to his reliefs
The case of the
claimant is that he was employed as Diesel mechanic and was confirmed on the 17th
August 1993. When Security check was carried
out on the car of the claimant on his way out of the defendant’s premises, two
bottles of diesel were seen in the boot wherein a report was made that the
diesel was found hidden in the claimant’s car boot, He made a statement at the
security post and the security assistant also made a report on the bottles of
diesel found to the security manager. Thereafter, the defendant sent a memo to
the corporate security manager. He was dismissed on the 7th of March
2012. The claimant was issued with
exhibit SE 9 and he later wrote exhibit S.E 6 which is a letter of Appeal to
the defendant, while the counsel wrote exhibit SE7 to the defendant to
reinstate the claimant. The law is
settled that the burden of establishing the terms of the contract of service is
on the claimant. The claimant has placed before the court offer of employment
(exhibit SE2), Performance report (exhibit SE4), Gratuity statement (exhibit SE5),
Letter from claimant’ counsel (exhibit SE7), Letter of dismissal (exhibit SE9). The defendant tendered security report Form (exhibit
MS10), Report from duty security manager (exhibit SE11), Intra- departmental
memo (exhibit SE 12), Inter office memo (exhibit SE 13).
The 1st issue is whether the
claimant has been able to prove the wrongful dismissal. By Keystone Bank Plc v Yiggon (2013) LPELR
-22131 (CA) the Court of
Appeal held
And in a case of wrongful
dismissal, all that the employer needs to show to succeed is that the reasons
for termination of appointment or dismissal are true where the employer has
given reason, but the employer is not obliged to give any reason, See Fakuade v
O.A.U (supra).
In this case, the defendant did not
give any reason for the dismissal of the claimant. The law guiding the court in
the consideration of an action for wrongful dismissal are well settled through
the numerous cases in which the law has been clearly stated. In the recent case
of Ahmed v ABU
(2016) LPELR 40261 (CA) the court of
appeal held thus
in a claim for wrongful
dismissal of an employee such as in the case in hand, the law is settled that
an employee or servant who complains that his employment has been wrongfully
terminated or abruptly brought to an end must found his claim on the contract
of service and show in what manner the wrong was done. he must plead and prove
the contract of service which is the bedrock of his case, it is not in principle,
for the employer who is a defendant to prove that the termination was not wrongful.
In the instant
case, the claimant pleaded that there is no case of misconduct levelled against
him or query issued to him. That there was no explanation or reason for dismissal.
The main complaint of the claimant is that the defendant issued a letter of
dismissal and is not justified without fair hearing. The evidence is that the
claimant being a diesel mechanic was in the power plant section and was
accosted during the routine check of cars exiting the defendant’s premises. The
claimant had in the boot of his personal car with registration No FU 775 EKY
two bottles filled with engine oil and same was discovered by the defendant’s security
personnel. The claimant admitted that he took the engine oil from the defendant’s
engine oil room as his car was overheating and needed engine oil to top up. Though
the defendant tendered exhibit SE10 which is security form ‘’B’’ and security
form ‘’C’’ case of theft, all these point to the claimant’s statement in the
security house when accosted, there is none to show that the claimant was
queried after the statement. The claimant when accosted made statement (security
form B) exhibit SE 10 and below is part of his statement
SECURITY
FORM ‘’B’’ (exhibit SE 10)
I Mr.
Ekeoma E.S a staff of flour mills
working in power plant, I was on duty today started 08.00 hrs. closed at 6.00hrs.
After closing from the engine room from the container to top up my motor
because of oil consumption, then the security men opened the boot and saw it,
then they got me arrested and bring me to security control room to explain
myself
He continued with his statement in SECURITY
FORM ‘’C’’
My
car with registration no FU 755EK, Opel wine colour, was parked at the car park;
after closing, I brought the car down to my department, power plant to wash. I
needed some oil to top my car because of the oil consumption and to avoid
overheating and engine knock.
So,
I took 2 bottles of engine oil before I was stopped at the gate while going out.
The claimant
referred to this act in paragraph 9 of the statement of fact as one without
misconduct when he averred
The claimant aver that he was taken aback because there
was no misconduct of any kind on his part neither was there a query issued to
him to explain any misconduct
The defendant in
its defence in paragraph 13 of the statement of defense stated that the
claimant voluntarily admitted taking the engine oil from the engine room and
that the claimant acknowledged his actions which amounts to stealing and
therefore begged for forgiveness. The
claimant later reiterated in paragraph 2 of the final written address that he was
accused of stealing two bottles of disused oil and that the allegation was made
by the defendant’s security staff at the gate with no investigation to determine
the truth or otherwise of the allegation.
At this stage, there is nothing to show that the defendant has accused
him of stealing as he only wrote a statement in the security house. One thing
is clear is that where dismissal for misconduct is bordering on crime, there is
need for employer to give employe fair hearing. In Azenabor v Bayero University, Kano (2009)
17 NWLR (PT 1169) 96 CA the court held thus
Where
the dismissal of an employee is based on the allegation of crime, the
allegation must first be proved before the dismissal can stand. This is to give
the employe adequate opportunity to explain himself before a tribunal vested
with criminal jurisdiction before his employer takes disciplinary action
against him. The focus is primarily on the right to fair hearing rather than on
a vindicative exposure of the erring employee to the primitive sledge of the
criminal law. however, it is not every case that an employee must be arraigned
before a court before disciplinary action can be taken against him. Once the
offence committed by the employee is within the domestic jurisdiction of the employer,
disciplinary action in such a case can be taken without recourse to criminal charge.
All the employer needs to do is to afford his employee an opportunity of being
heard before exercising his power of summary dismissal even where the
allegation for which his employee is being dismissed involves accusation of
crime.
The claimant by his
pleadings and deposition admitted that he took two bottles of diesel without
the claimant’s permission which he accepted in the statement written in the
security house. Gross Misconduct has been identified as a conduct that is of a
grave and weighty character to undermine the confidence which should exist
between an employee and the employer. So, to working against the deep interest
of the employer amounts to gross misconduct entitling an employer to summary
dismissal of the employee. See Emmanuel Nwobosi v African continental bank (1995)
7 SCNJ 92. See also Abomeli v N.C.R
(1995)1 NWLR (Pt 372) 451 CA held as follows
There
are various degrees of misconduct which give an employer liberty to dismiss an employee.
These include
A
dishonesty or fraud of employee in his employment, or
B
grave and weighty misconduct, or
C
a real but unreasonable dissatisfaction with the employees conduct, or
D
the employer produces sufficient evidence to establish a strong prima facie
case of infidelity
The claimant’s
main complaint is that the defendant did not bring up the issue of the 2
bottles of engine oil he took from the garage of the defendant without
permission as no query was issued to him. In a case of wrongful dismissal where the
complaint of the plaintiff is in effect that dismissal by the defendant is wrongful,
the claimant has a duty to prove same. There is no condition of service
tendered by the claimant but an allegation of stealing has been leveled against
him. The response of the defendant on the issue of stealing is that the
claimant acknowledged that his actions amounted to stealing and therefore
begged for forgiveness. That the claimant neither sought nor obtained the
permission of the defendant to take the engine oil property of the defendant.
This is a dishonest practice and portrays the claimant as an unreliable person
and this is a very strong reason for the defendant to dismiss the claimant. As
it is settled that the defendant can dismiss, that can be done after the
employee has been given fair hearing
The claimant
without being given fair hearing was dismissed consequent upon his action which
the defendant viewed as misconduct. Up to this period the defendant did not
communicate to the claimant his offence and the consequences. in the instant
case there is no doubt that the claimant without permission took two bottles of
engine oil from the defendant’s workshop and in turn wrote a report on what
transpired in the security house. The defendant rather than issue a query as it
is the fundamental principle that fair hearing be given to an employee before
any action can be taken, relied on the fact that he had admitted to stealing
without more. Here the employer has the
power to dismiss for misconduct of any kind that can justify dismissal. The
behavior of the claimant which is viewed as misconduct by his behavior has
brought no confidence to the employer. I have considered the argument of the
defendant that the claimant was dismissed lawfully referring to Eze v Spring
Bank Plc (supra) and the concern is whether the correct procedure was followed.
Below is the letter of dismissal to the claimant (exhibit SE9)
EKEOMA
SUNDAY ELIAS
DIESEL
MECHANIC
POWER
PLANT – MECHANICAL
Dear
sir,
DISMISSAL
We
regret to inform you that your services with the company will no longer be
required with immediate effect.
Yours
Faithfully
FLOUR
MULLS OF NIGERIA PLC
MARY
URIAH
HUMAN
RESOURCES DIRECTOR
Dismissal is one
of the ways an employer as punishment can dismiss an employee wherein the
conduct of the employee amounts to misconduct. While the employer has a right
to dismiss in a case of misconduct, that cannot be resorted to without fair hearing.
The claimant on receipt
of the letter of dismissal caused his solicitor to write which are exhibits SE7
and SE8. The defendant in taking such
drastic action did not query the claimant neither did he face a disciplinary
panel.
The present action
is for declaratory orders and for payment for terminal benefit. one of the
reliefs is to nullify the dismissal and convert to termination. See Maliki v Micahel Imodu Institute for
labour studies (2008) LPELR – 8467 (CA) Okereaffa & Anor v Agwu & Anor 2008
LPELR -4724 (CA).
The crux of the
issue at hand is whether having regard to the fact and circumstances of this
case, can it be said that the defendant gave the claimant opportunity by way of
query notwithstanding that by exhibit SE10, the claimant wrote a statement on
what transpired when his vehicle was searched by the security staff. In paragraph 15 of the statement of defense,
the defendant referred to the claimant’s act and the subsequent dismissal. The
memo of 21st February 2012 is from the Assistant security manager to
corporate security manager (exhibit SE12). In fact, this is a mere report from
the Assistant security manager who recommended summary dismissal for the
claimant as per the memo under recommendation
Recommendation
since
it is very glaring that Mr. Ekeoma Sunday T/ No 356 converted the company’s
property to his personal use which amount to stealing. I recommend summary
dismissal for him which will serve as deterrent to others.
The defendant’s
corporate security manager relying on the memo in exhibit SE12 wrote another
memo (exhibit SE13) to the Margin Imp / Admin Director but this time it was to
be termination but Bukola was instructed to prepare dismissal letter for the claimant,
so it is the recommendation of the assistant security manager of the defendant
that the defendant’s admin Director acted upon without going through the
process of fair hearing. The third paragraph of exhibit (SE13) is reproduced
below
This is a straight forward case and I therefore agree
with the recommendation of the duty Assistant security mangers recommendation
that the appointment of Mr Ekeoma Sunday T.N. 356 should be terminated to serve
as deterrent to others of his like.
In one vein, the
defendant refers to the punishment as dismissal and another time as termination,
so to start with if the recommendation is for termination why and when was it
changed to dismissal. In all of these the claimant was not part of how they
arrived at this decision because the defendant’s assumption is that once he has
admitted to taking 2 bottles of engine oil, he is guilty. How then is the claimant to ventilate
his own side having been denied same. The defendant set up a team and the
claimant was not given opportunity to state his own side. What the defendant
terms fair hearing by the statement written by the claimant cannot be taken as
fair hearing in all parameters of it. The defendant does not seem to understand
fully that the principles of fair hearing is to hear the other side by issuing
him a query and allowing him to answer.
The main grouse of the claimant is that
he was not given hearing, The supreme court in Obaro v Hassan (2013) LPELR-20089
SC held thus ‘’ indeed a hearing can be fair when both parties to the dispute
are given opportunity of a hearing, that is fair hearing does not necessarily
mean oral hearing.
There is no
evidence that the claimant was ever queried let alone face a disciplinary hearing. In paragraph 27 of the defendant’s final address,
it referred to Ekunola v C.B.N (supra) where the apex court held that an
employer can dismiss summarily but must follow the right procedure in
dismissing an employee. The defendant has not shown to the court the procedure
in the dismissal of the claimant. In
Afribank Nigeria Plc v Osisanya (1999) LPELR – 52 06 (CA), the Court of appeal
held that a contract of employment between a master and a servant may be
subject to statutory or common law rules, whether it has a statutory flavor or
not, before an employee is sacked, he must be given fair hearing as enshrined
in section 33 of the constitution of the Federal Republic of Nigeria. In the
case of Kande v Government of Federation of Malaya (1962) AC 332, the privy
council held
if
the right to be heard is to be real right, which is worth anything, it must
carry with it, a right in the accused man to know the case which is made
against him. He must know what evidence has been given and what statements have
been made affecting him and then must be given a fair opportunity to correct or
contradict them.
It is enough if it
is in writing, the case of Zideeh v RSCSC (2007) 3 NWLR (Pt 1022) 554, the
Supreme court held thus
It
is now firmly settled in statutory employment just as in private employment, an
employer can summarily dismiss the servant in all cases of gross misconduct
provided of course, the employee is given the opportunity of fair hearing.
Under cross
examination by the defendant’s counsel on whether the claimant agrees that it
was the chain of events that started on the date that led to his dismissal to
which the CW responded in the negative. The defendant did not query the
claimant on his conduct so he does not know the defendant’s reason for its action
from the period after the statement till when he was issued with a letter of
dismissal. The claimant was not given opportunity to defend himself. See Momoh v CBN (2007) 14 NWLR (Pt 1055) 508
CA at 527, Gukas v Jos International Breweries Ltd (1991) 6 NWLR (pt 199) My
humble opinion is that in view of the forgoing authority, there is no way the
dismissal of the claimant can be lawful without recourse to the principle that
a query has to issued and a response before reaching a just conclusion. The
supreme court has held that in cases of misconduct bothering on criminality,
all that is required of an employer before summarily dismissing an employee is
to give him fair hearing by confronting him with the accusation made against
him and requiring him put up a defence as this is all what natural justice and
fair hearing is all about. The defendant did not confront the claimant on the
allegation of stealing as their main argument is that since the claimant has
admitted to taking 2 bottles of engine oil from the defendant, there is no need
to issue him a query of to face a disciplinary panel.
The first relief
is for A declaration by the Honourable court
that the dismissal of the claimant was wrongful, null and void. The position of the law is that the employer has
a general power to dismiss for misconduct of any kind that can justify
dismissal and to terminate the employee’s employment or give him a month salary
in lieu of notice. for instance, dishonest practices, or criminal activities,
or acts and behavior that demonstrably portray an employee as an unreliable
person are strong reasons for an employer to dismiss an employee. In most cases,
the dismissal of an employee is usually attributable to acts of misconduct by
which the employee has allowed his behavior to make the employer suffer losses.
There are various degrees of misconduct which give an employer liberty to
dismiss an employee and, in this case, it is the unreasonable dissatisfaction
with the employee’s conduct. The claimant was found with 2 bottles of engine
oil without permission which amounts to misconduct. The defendant rather than give the claimant
opportunity to present his side of the story which is fair hearing based the
decision to dismiss him on the admission by the claimant by way of report in
the security gate. Since the claimant was not given opportunity by way of
query, but issued a letter of dismissal which is wrongful. under cross
examination DW to the question ‘’ how did you establish he stole the 2 bottles
of engine oil and he responded --- The company rule is that for you to take any
of the company’s properties you must have written permission from officer of
the defendant, 2nd question, did the defendant find him guilty of stealing
and DW answered ‘’ He contravened the policy of the company without permission.
The pertinent question here is where is the policy of the defendant referred to
during cross examination. There was no move to query the claimant having
flouted such policy in which case the defendant would have presented the
offence and also given him opportunity to respond to same by way of query. He
was left in the dark and up to when emails and memos were exchanged, he did not
know the reason for such an action as he was denied fair hearing and eventually
dismissed. In cases of misconduct
bothering on criminality all that is required of an employer before summarily
dismissing an employee is to give him fair hearing by confronting him with the
accusation made against him and requiring him to defend himself and to satisfy
the rule of natural justice and fair hearing, the person affected must be given
adequate notice of the allegation and afford him opportunity to defend himself.
See Arinze v FBN Ltd (2004) 12 NWLR (pt 888) 663 SC.
I hold the defendant liable of wrongful dismissal of the claimant but the
dismissal is not null and void as it is only employments under statute or which
have statutory flavor that a dismissal can be said to be unlawful, null and
void and when it is not protected by statue such a dismissal can only attract damages.
I hold that the dismissal is wrongful but not null and void. In a claim for wrongful dismissal, the measure
of damages is prima facie the amount that the plaintiff would have earned had
the employment continued according to contract. In Osisanya v Afribank Nig Plc (2007)
LPELR – 2809 (SC) (Pp 15-17) paras C the court held thus ‘’ in a claim for
wrongful dismissal, the measure of damages is prima facie the amount that the
plaintiff would have earned by the plaintiff over the period of notice, bearing
in mind that the duty of the plaintiff is to minimize the damage which he
sustains by the wrongful dismissal. Where the defendant has a right to
terminate the contract before the end of the term, damages should only be
awarded to the end of the earliest period at which the defendant could have so
terminated the contract. The claimant is entitled to the period of notice which
is not stated in the contract of employment but a reasonable notice will
suffice where there is none. The claimant is entitled to one month salary in
lieu.
The 2nd relief is for conversion of the purported act of
dismissal to termination. This employment has no statutory flavor but its only
master / servant relationship. The relief for the dismissal to be converted to
termination is refused and dismissed.
Relief 3 is for payment by the defendant to the claimant of all his accrued
gratuity which as at 31st March 2011
is a sum of N2,373,842.52
Gratuity for year 2012 worked on the basis of 16.5% of
the
previous year - 27,810.27
5% interest on - 1,390.31
Subtotal - 29,200.78
Grand Total 2,373,842.52
+
29,200.78
Payment of the sum of 2,403,043.30 as the accrued gratuity
for 19 years of service.
The claimant in paragraph 17 (iii) of the statement of fact averred that he
is entitled to the 2, 403,043 being gratuity for 19 years of service. The law
is that he who asserts must prove. The
claimant has relied on exhibit SE5 which is the gratuity statement as at 31st
March 2011. A look at the said exhibit is a mere piece of paper not dated nor
signed by anyone. The claimant seems to forget that an undated and unsigned
document is a useless piece of paper.
Now on proof of his entitlement to his gratuity, the claimant in the final
address submit that even if the contract of employment makes no provision for
gratuity, the fact that same has been calculated over the years and made known
to the claimant has nullified the non-provision in the contract, i. e. assuming
that there was no such provision in the contract of employment, moreover there
is nothing in the offer of appointment letter dated 10th May
1993 i.e. Exhibit SE2 which specifically
prohibit payment of gratuity. That exhibit SE4& SE5 are together and since exhibit
SE4 was signed, such signature covers exhibit SE5 since it is an attachment.
Exhibit SE4 is 2010 performance report and there is no mention of gratuity in
the letter exhibit SE4. How the claimant formulated the figure without reference
to the document that gives him such entitlement is not known to the court. The
relief fails and is dismissed.
The dismissal is therefore wrongful. I hold that the defendant has failed
in its justification of the dismissal of the claimant.
On the whole and for the avoidance of doubt, the court herby makes the following
declarations and order
1.
The dismissal the claimant is wrongful but not null
and void.
2.
The defendant is to pay one month’s salary in lieu
of notice.
3.
Cost of this suit is put at N200, 000.
4.
All sums are to be paid within 30 days of this judgment
failing which it will attract 15% interest until fully paid.
Judgment is entered accordingly.
HON. JUSTICE A.N. UBAKA
JUDGE