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: MONDAY 12TH OCTOBER 2026          SUIT NO: NICN/LA/234/2021

 

BETWEEN

MRS OLUSHOLA ODUSE                                 CLAIMANT

AND

BAYER NIGERIA LIMITED                               DEFENDANT

Representation:

Chief Paul Omoijiade with Stephannie Okonjo-Ojekere for the Claimant

U.S. Ogbuagu with Linda Osuagwu for the Defendant

 

JUDGMENT

Introduction and Claims

1.   The Claimant commenced this suit by a Complaint and Statement of Facts dated 12th of July 2021, together with the other frontloaded processes. He claims against the Defendant as follows:

a.        A Declaration that the purported termination of the Claimant`s contract of service by the defendant without reason is wrongful and not in accord with her Contract of Employment and violates ILO Convention 158 Article 4.

b.        An order for the payment of ?798,261.00 being the Claimant`s one month salary in lieu of notice.

c.         An order of this Honorable Court that the Defendant pay to the Claimant her severance benefits pursuant to the Claimant`s contract of employment.

d.        An order that the Defendant pay the sum of ?500,000,000.00 to the Claimant as compensation pursuant to Section19 of the National Industrial Court Act 2006 for the wrongful termination of the Claimant`s employment and unfair labour practices meted out on the Claimant, damages to her brand, reputation and goodwill built for over a period of 12 years.

e.        An Order that the Defendant pay to the Claimant the sum of ?500,000.00 (Five Hundred Thousand Naira) being the cost of litigating this matter.

2.   The Defendant’s substantive defence is contained in the Amended Statement of Defence and other related processes dated and filed on 8 July 2022.   In response to the Amended Statement of Defence, the Claimant had filed a Reply on 3 January 2023.  Trial commenced in the suit on 17th November 2022.  At trial the Claimant testified as sole witness and tendered documents admitted as Exhibits C1 to C8. The Claimant was cross-examined16th March 2023.  Exhibits C1 to C8 tendered by the CW are:

 

1.       Contract of employment dated 18th March, 2019 – Exhibit C1;

2.     Job description of the new role sought to be filled by the Defendant. – Exhibit;

3.      Letter of salary increment for the year 2020 and 2021– Exhibit C2A & 2B;

4.     Defendant`s Termination Notice dated 21st May, 2021– Exhibit C3;

5.     ILO Convention No. 158, 1982 Article 4. – Exhibit C4;

6.     Copy of the Advertisement – Exhibit C5;

7.     Defendant`s Human Resources letter– Exhibit ;

8.     Solicitor`s Letter– Exhibit C6;

9.     Defendant`s acknowledgement letter, – Exhibit C7;

10.  LinkedIn –Exhibit C8.

3.   Clement Owusu-Addo (Country Lead) gave evidence on behalf of the Defendant on 4th October 2023.  He adopted his witness statement on oath deposed to on 3rd October 2023.  He was cross-examined on the same day.  He tendered in evidence, four documents admitted and marked as exhibits D1 – D16:

1.       Contract of employment – Exhibit D1;

2.     New Nigeria Org. (Previous/New Structure) –Exhibit D2;

3.      Interview Sheet – Exhibit D4;

4.     Job Description – Head of Sales Pharmaceuticals – April, 2021 – Exhibit D5;

5.     Job Description – Key Account Mgr.- Pharmaceuticals – Exhibit D6.

6.     Email 2nd August, 2021 – Exhibit D7;

7.     Termination Letter – Exhibit D8;

8.     Email from Claimant – Exhibit D9;

9.     Bill – Lagoon Hospital – Exhibit D10;

10.  Emails from Clement Owusu 15th January, 2021 – Exhibit D11A-F;

11.    Email from Oduse 2nd August, 2021 – Exhibit D12;

12.  Email 20th April, 2012 – Exhibit D13;

13.   Advert – Head of Sales Pharmaceuticals –Exhibit D14;

14.  Payment Details – N675, 078.97 – Exhibit D15;

15.  Payment Details – N3, 134, 840.30 – Exhibit D16.

At the end of trial, the court directed the parties to file final written addresses. The Final Written Addresses were adopted on 30th September 2026, whereupon the matter proceeded to judgment.

 

THE CASE OF THE CLAIMANT

4.  The Claimant is Mrs. Olushola Oduse, a Nigerian pharmacist resident at No. 20, Ibrahim Onasokun Street, Ifako-Gbagada, Lagos State. The Defendant is Bayer Nigeria Limited, a private limited liability company registered in Nigeria and the Nigerian subsidiary of Bayer AG, Germany. The Claimant was employed by the Defendant as Key Account Manager, Pharmaceuticals by a contract of employment dated 18 March 2019.  The Claimant underwent an invasive surgery at Lagoon Hospital on 22 January 2021 and was granted ten weeks off work. She resumed on 9 April 2021. On 13 April 2021 she was informed that her services as Key Account Manager would no longer be required. Between 15 and 29 April 2021 the Defendant advertised for the role of Head of Sales, Pharmaceuticals, Nigeria. The Claimant applied and was interviewed, but was told she lacked the requisite skills and experience for the role, which was filled by one Mr. Azeez Balogun. By Notice of Termination dated 21 May 2021, received by the Claimant on 25 May 2021, the Defendant terminated her employment effective 31 May 2021 on the ground that the position of Key Account Manager was no longer required.  The Claimant seeks a declaration that the termination without a valid reason was wrongful and contrary to Article 4 of the ILO Termination of Employment Convention No. 158, 1982; payment in lieu of notice; severance benefits; N500,000,000 as compensation under Section 19 of the National Industrial Court Act 2006 for wrongful termination, unfair labour practice and damage to her brand, reputation and goodwill; and N500,000 as cost of suit.  Her central contention is that the reorganisation was a contrived ruse to remove her, that the two roles were in substance identical, that she was better qualified than Mr. Balogun, and that the payment did not coincide with the effective date of termination.

 

THE CASE OF THE DEFENDANT

5.  The Defendant, by its Amended Statement of Defence filed 8 July 2022, denies the claims and asserts that a genuine first-quarter 2021 reorganisation created a new leadership role of Head of Sales, Pharmaceuticals Nigeria, rendering the Key Account Manager position redundant. It denies any connection between the termination and the Claimant's surgery and pleads full payment of her entitlements, including payment in lieu of notice.  The Defendant averred that it conducted a review of its operations in the first quarter of 2021 and reorganised its structure, creating the new leadership role of Head of Sales, Pharmaceuticals Nigeria, which rendered the position of Key Account Manager redundant. It denied that the reorganisation was contrived to remove the Claimant, denied that the termination was connected to her surgery, and pleaded that it had paid the Claimant her entitlements including payment in lieu of notice.

 

CLAIMANT'S REPLY TO THE STATEMENT OF DEFENCE

6.  The Claimant joins issues with the Defendant and denies the central plank of its defence — that her employment ended because of a genuine re-organisation that made her role redundant.  On the alleged restructuring, the Claimant's core case is that it was a ruse. She states that the creation of the Head of Sales, Pharmaceuticals role was contrived specifically to displace and ease her out, not to reorganise the business. She points out the absurdity of the Defendant making its virtual presentation on the restructuring to her alone, when a genuine re-organisation affecting the whole organisation would have been communicated more widely.  On the interview and Mr. Azeez Balogun, the Claimant says the interview was a smokescreen because the Defendant had already decided to remove her. She asserts Balogun was not better qualified, drawing a direct comparison:

  • Experience: Balogun — 5 years; Claimant — 10 years across five multinationals.
  • Qualifications: Balogun — none beyond basic; Claimant — MBA in Human Resource Management and Strategy.
  • Leadership: Balogun — never a team lead, no management role, and was her subordinate at Novartis; Claimant — First Line Manager at Novartis and Sales Capability Manager at Swipha.

She adds that Balogun worked for only two multinationals and never held a managerial role in either, while she worked in five and held managerial roles. 

On the substance of the roles, the Claimant's position is that the duties of Head of Sales, Pharmaceuticals are the same as those of the Key Account Manager. She says she had in fact been performing the Head of Sales responsibilities for over two years in addition to her Key Account Manager duties, which shows the new title was cosmetic rather than substantive.  On the termination letters, the Claimant argues that the notice dated 31 May 2021 terminating her for "services no longer required" takes precedence over the earlier letter of 21 May 2021. On that footing, her termination had nothing to do with any re-organisation.  On the reason for the termination, she denies it was operational. Her case is that she was terminated for "services no longer required" — which, she says, means without reason — and that this offends Article 4 of ILO Convention 158. She further alleges the real motive was her surgical operation, combined with a strategy to remove her because her immediate boss felt threatened by her abilities, competence and confidence in managing the Nigeria operations.

 

SUBMISSIONS OF THE DEFENDANT

7.  The Defendant set down five issues for determination:

 

1. Whether the Claimant has proved that the termination of her contract of service was wrongful, inconsistent with her contract of employment and violates Article 4 of the ILO Convention 158.

 

2. Whether the Claimant has proved that she is entitled to the payment of N798,261.00 being the Claimant's one month salary in lieu of notice.

 

3. Whether the Claimant is entitled to an order for "…the payment of severance benefits pursuant to the Claimant's contract of employment."

 

4. Whether the Claimant is entitled to the payment of the sum of N500,000,000 as compensation pursuant to Section 19 of the NICN Act 2006 for the wrongful termination of her employment and unfair labour practice.

 

5. Whether the Claimant is entitled to the payment of the sum of N500,000 as the costs of this action.

 

8.  Issue One: Whether the Claimant has proved that the termination of her contract of service was wrongful, inconsistent with her contract of employment and violates Article 4 of the ILO Convention 158.  Learned Counsel to the Defendant submitted that the Claimant failed to prove this point. He acknowledged that the Claimant was an employee of the Defendant and that the terms of employment (Exhibit C2/D1) were before the court, so that the question was whether the Defendant complied with the applicable legal and contractual guidelines in terminating the contract. He relied on Organ & Ors v. NLNG & Anor (2013) LPELR-20942(SC) for the proposition that the right of an employer to hire and fire is not in doubt but that the employer must observe the conditions under which the employee was hired, and acknowledged the application of Article 4 of the ILO Termination of Employment Convention No. 158.  Counsel identified the Claimant's material allegations — that no reason was stated in the notice of termination; that the reorganisation was a ruse and unfair labour practice; that she was not given the required one month's notice; and that the termination may have been connected to her surgery — and submitted that each was inconsistent with the evidence.

 

9.  On whether a reason was stated, Counsel submitted that the notice of termination dated 21 May 2021 (Exhibit C5/D8) states in its first paragraph: “This is with reference to our previous discussion on the review by Pharmaceuticals of its operational necessities, and what this outcome means to you. The job position of Key Account Manager is no longer required which means that your job will get terminated as of 31 May 2021.” He submitted that the Claimant herself, at paragraph 12 of her Witness Statement, referred to being told on 13 April 2021 that her services as Key Account Manager would no longer be required, confirming a prior conversation more than a month before the notice. He relied on the Defendant's witness (DW) at paragraphs 8d and 8f of his Witness Statement of 3 October 2023 and on Exhibits D2 (the report titled “New Nigeria Organization”) and D3 (the email of 15 April 2021), submitting that the reason — operational necessities arising from the reorganisation — is a valid reason recognised under Article 4.  On whether the reorganisation was a ruse, Counsel submitted that the reorganisation was genuine, justifiable and verifiable. He relied on Esther Ogbodu v. Global Fleet Oil & Gas Ltd & Anor, Suit No. NICN/LA/12/2012 (delivered 5 December 2014), for the proposition that whilst an employer has the right to restructure, such restructuring must be justifiable and verifiable, requiring the employer to show the need for the reorganisation, its nature, its component parts and how it was carried out. He submitted that the justification appears in the Defendants evidence.  On verifiability, Counsel relied on Exhibit D3 (an email of 15 April 2021 sent at 1.44 pm by the Defendant's HR Department to three email addresses regarding the vacancy.  On compliance with the notice requirement, Counsel relied on Clause 14 of Exhibit D1, which provides that the contract shall be terminated by either party giving one month's notice in writing or a month's salary in lieu of notice. He conceded that Exhibit D8 was to take effect on 31 May 2021, a period of less than one month, but submitted that the notice stated the Claimant would receive a final settlement payment of N4,142,409.41, one component of which was an “in lieu of notice payment” of N918,261.03, and that the Claimant eventually received N3,809,919.27 after deduction of outstanding debts of N600,000. He relied on Exhibits D15 and D16 (telex advice showing transfers of N675,078.97 and N3,134,840.30). He submitted that the Claimant did not challenge the existence of the debts and taxes in any process, so that the point was deemed admitted; that the Claimant acknowledged receipt during cross-examination on 16 March 2023, stating:

 

Upon my termination, I received a payment from the Defendant. I cannot remember the amount. Yes I received N3,809,919.27 from the Defendant after my lawyer wrote the Defendant. I do not have the provision for benefits in exhibit C1. I did not return the N3.8 million plus paid to me. 

The Defendant argues that further acknowledgment appears at paragraph 14 of Exhibit C9 (the Claimant's solicitors' letter of 27 May 2021), which stated that “…payments of severance pay or one month notice in lieu of notice cannot confer legitimacy on wrongfully terminated employment.” He submitted that the Defendant complied with Clause 14 by making the payment in lieu, which the Claimant admitted receiving and did not return.  On whether the termination was connected to the surgery, Counsel submitted that there was no evidence suggesting the surgery was relevant to the termination decision. He relied on the uncontroverted evidence that the Claimant sent an email on 12 January 2021 (Exhibit D9) informing the Defendant of her medical condition and appealing for financial support because her HMO cover at AXA Mansard afforded only N400,000 out of an estimate of N950,000; on Exhibit D10 (the bill estimate dated 22 December 2020 from Lagoon Hospitals); on Exhibits D11A to D11F (email correspondence showing the Defendant's deliberations and approval of the request); and on Exhibit D12 (the Claimant's email of appreciation of 5 February 2021 acknowledging the “financial support”, “show of love”, “calls”, “text messages” and “concern for my wellbeing”). He submitted that there was no unfavourable comment on the Claimant's request in Exhibits D11A to D11F and no indication the procedure would make her unfit to work, so that on the balance of probabilities there was nothing connecting the reorganisation to the surgery.

 

10.  Issue Two: Whether the Claimant has proved that she is entitled to the payment of N798,261.00 being one month's salary in lieu of notice.  Learned Counsel to the Defendant submitted that the Claimant failed to prove entitlement to N798,261.00, noting that she failed to lead evidence such as payslips in support of the claimed sum, and relied on Odah Ezekiel & Ors v. Total E&P Nigeria Limited & 5 others, Suit No. NICN/LA/663/2016 (delivered 30 January 2024), for the proposition that the court cannot make an order for payment of an amount not proved. He submitted that the sum stated in Exhibit D8 as payment in lieu (N918,261.03) was more than N120,000 higher than the amount claimed (N798,261.00), so that the Defendant paid more than the Claimant now claims, and that the Claimant is not entitled to double receipt. He relied on K Line Inc. v. K.R. Int. (Nig.) Ltd (1993) 5 NWLR (Pt. 292) 159 for the proposition that a party is not entitled to double compensation on any specie of claim.

 

11.   Issue Three: Whether the Claimant is entitled to an order for the payment of severance benefits pursuant to the Claimant's contract of employment.  Learned Counsel to the Defendant submitted that the Claimant is not entitled to an order for severance benefits because a court cannot make an order in a vacuum. He relied on Mr. Suraju Rufai v. Bureau of Public Enterprises & Ors, Suit No. NICN/LA/18/2013 (delivered 4 June 2018), for the proposition that a claimant seeking outstanding entitlements must state with specificity the amounts claimed and the basis for the claim, and on Order 3 Rule 12 of the Rules of the court, which requires a claimant's claim to state the amount claimed or owed and when it became due. Counsel further submitted that Exhibit D1 does not contain any provision for the payment of severance or terminal benefits upon termination, relying on Wulangs v. C.B.N. (2021) 16 NWLR (Pt. 1802) 195 and Afribank (Nig.) Plc v. Osisanya (2000) 1 NWLR (Pt. 642) 598 for the proposition that in the face of a written contract the court will not look outside its terms. He submitted that in any event the Defendant had paid severance benefits, Exhibit D8, and setting out the breakdown of the final settlement of N4,142,409.41 (compensation for loss of office N2,020,174.27; payment in lieu of notice N918,261.03; leave allowance pay-out N635,449.63; unused leave days N259,186.58; prorated 13th month N309,337.9). He reiterated the Claimant's cross-examination admission of 16 March 2023 that she received N3,809,919.27 and did not return it. He submitted that any determination that the Claimant is entitled to a further payment would amount to speculation, relying on Ejezie v. Anuwu (2008) 12 NWLR (Pt. 1101) 446. 

 

12.   Issue Four: Whether the Claimant is entitled to the payment of N500,000,000 as compensation pursuant to Section 19 of the NICN Act 2006 for wrongful termination and unfair labour practice.  Learned Counsel to the Defendant submitted that the Claimant is not entitled to N500,000,000 or any sum as compensation. He submitted first that the claim was moot because the employment was not wrongfully terminated.  In the alternative, he submitted that the claim, though framed as general damages, was akin to a claim for special damages, quoting the Claimant's relief at paragraph 19d seeking compensation for wrongful termination, unfair labour practices and “damages to her brand, reputation, goodwill built for over a period of 12 years”, and submitting that the Claimant was required to lead evidence and prove how she arrived at N500,000,000, which she failed to do. Counsel further submitted that a claim for damage to brand, reputation and goodwill relates to defamation of character and does not fall within the jurisdiction of the court. He relied on Ecobank Nig. Ltd & Ors v. Idris [2021] LPELR-52806(CA). 

 

13.  Issue Five: Whether the Claimant is entitled to the payment of N500,000 as the costs of this action. 

Learned Counsel to the Defendant submitted that the Claimant is not entitled to N500,000 or any amount as costs. He submitted that costs of litigation are effectively a claim for special damages which must be specifically pleaded and proved, relying on Arisons Ltd v. Mil. Gov. Ogun State (2009) 6 KLR (Pt. 268) 1483 at 1501, and on Order 55 Rule 5 of the Rules of the court, which provides that the successful party is to be indemnified for expenses to which the party has been unnecessarily put. He submitted that it was not sufficient to pray simply for the “cost of litigating the suit”; the Claimant ought to have stated the specific items expended and, where any part was on quantum meruit, indicated the components, relying on Savannah Bank Plc v. Opanubi (2004) 7 KLR (Pt. 184-186) 2103 at 2121. He submitted that the amount claimed must be stipulated in the pleadings and evidence led in support, which the Claimant failed to do, and that she is therefore not entitled to the relief. In conclusion, Counsel urged the court to dismiss the suit with substantial costs.

 

SUBMISSIONS OF THE CLAIMANT

14.  The Claimant set out the following three issues for determination:

 

1. Whether the Defendant have been able to justify that the Claimant was not suitable for the position of Head of Pharmaceutical Nigeria?

 

2. Whether the termination of the Claimant accord with international best practice?

 

3. Whether the Claimant is entitled to her other reliefs in this suit?

   (i) One month in lieu of notice;

   (ii) Compensation /Damages of N500 million;

   (iii) Cost of Suit.

 

15.   Issue One: Whether the Defendant has been able to justify that the Claimant was not suitable for the position of Head of Sales, Pharmaceuticals Nigeria.  Learned Counsel to the Claimant submitted that the Defendant failed to justify that the Claimant was not suitable for her “NEW” role of Head of Sales, Pharmaceuticals. He anchored this on the Claimant's averment that the job descriptions of the new role were the Claimant's responsibilities since she joined Bayer in March 2019, as the Defendant's manager who was supposed to perform the role resided in Ghana and the responsibility fell on the Claimant, who managed the team in Nigeria, doubling up as Key Account Manager, Field Force Manager and Product Manager.  Counsel submitted that a comparison of the position purpose and the major tasks and responsibilities set out in Exhibit D6 (the Job Description for Key Account Manager, Pharmaceuticals for Olushola Oduse) and Exhibit D5 (the Job Description for Head of Sales, Pharmaceuticals Nigeria) shows no genuine distinction. Counsel relied upon the cross-examination of the Defendant's sole witness, submitting that the witness was asked whether the job of the Claimant was coordinated by the Board of the company and answered in the negative, whereupon the witness was asked to read paragraph 3 of Exhibit D1 (Contract of Employment) and read out: “Your position will be Key Account Manager – Pharmaceuticals. Your work assignment will be coordinated by the Board of Management of the Company.” On this basis Counsel submitted that the Key Account Manager was a leadership position as clearly shown in Exhibits D5 and D6, and that the Defendant's witness was not a witness of truth whose evidence ought to be discountenanced. On the job interview, Learned Counsel to the Claimant submitted that the interview for the position of Head of Sales was contrived by the Defendant to get rid of the Claimant, as the position was the same as that of the Key Account Manager. He submitted that the interview sheet (Exhibit D4) for the Claimant and five others could not assist the Defendant, contending that the Claimant was never rated under “efficiency”, that the parameters used for assessment were very subjective, and that the name of the interviewer and the date the interview was conducted were absent from the interview sheet. Counsel submitted that it was curious that Mr. Azeez Balogun, with less than seven years' experience, could supplant the Claimant with over 16 years' experience in the pharmaceutical industry, and that the empirical basis for finding the Claimant unsuitable was very vague, there being no statistical weight scale attached to variables such as “capable”, “developing” and “strong”.

 

16. On Issue Two; whether the termination of the Claimant accorded with her contract of employment and international best practice, Learned Counsel to the Claimant acknowledged the Defendant's reliance on Okomu Oil Palm Co. Ltd v. Iserhienrhien (2001) LPELR-2471(SC) and Tam-Gudi v. Nestoil Ltd & Ors (2021) LPELR-56624(CA) for the proposition that a claimant in an action for wrongful termination must prove the existence of the contract.  Counsel submitted that paragraph B of the Termination of Employment letter states “The job position of Key Account Manager is no longer required which means that your job will get terminated as of 31st May, 2021”, and that the Claimant, on the reverse of the letter, commented that the position of Key Account Manager was still subsisting. He submitted that paragraph 3 of the termination letter (Exhibit D8) indicated payment of one month in lieu of notice in the sum of N918,261.03.  On the timing of payment, Counsel submitted that the letter of termination indicated that the Claimant's employment was terminated on 31 May 2021 (Exhibit D8), while the value date of the severance pay was 22 June 2021 (Exhibit D16), and that the termination was therefore wrongful as payment was not made on the date of termination. He relied on Nsikak Tom v. Suntrust Bank Nigeria Ltd, Suit No. NICN/UY/50/2012 (judgment delivered 28 November 2022 for the proposition that termination is unlawful where salary in lieu of notice is not paid simultaneously with the date on the letter of termination. He further relied on N.E.P.A v. Isiercore (1997) 7 NWLR (Pt. 511) 135 CA, NNPC v. Idoniboye-Oba (1996) 1 NWLR (Pt. 427) 655 CA, and Chukwumah v. Shell Petroleum Development Co. Ltd (1993–1994) All NLR 131.  On the alleged shortfall, Counsel submitted that the total payment due to the Claimant as indicated in Exhibit D8 was N4,142,409.41, while Exhibits D15 and D16 indicated payments of N675,078.97 and N3,134,840.30, and that the sum of N675,078.97 was in fact the Claimant's May 2021 salary payment. He computed the shortfall as N4,142,409.41 less N3,134,840.30, arriving at N1,007,569.11. Counsel submitted that the Defendant's assertion (in paragraph 4.51 of its written address) that N3,809,919.27 was paid after deduction of N600,000 debt was not supported by evidence, that Exhibit D15 (the telex for N675,078.97) indicated May 2021 salary, that there was no counterclaim for N600,000 before the court, and that the debt claim was solicitor's evidence which cannot take the place of evidence. He prayed the court to order payment of the arrears of N1,007,569.11.  Counsel further submitted that what took place in the Defendant's company was not a reorganisation but a programmed agenda to get rid of the Claimant, who was better qualified to occupy the position of Head of Sales, Pharmaceuticals.

 

17.   Issue Three: Whether the Claimant is entitled to her other reliefs in this suit.  On the claim for one month's salary in lieu of notice, Learned Counsel to the Claimant submitted that the evidence before the court was that the Claimant worked for the Defendant in May 2021 and that the payment of N675,078.97 on 1 June 2021 (Exhibit D15) was tagged under payment details as “Bayer Nig. Ltd salary May, 2021” and could not take the place of one month in lieu of notice. He submitted that the letter of termination dated 21 May 2021 was received by the Claimant on 25 May 2021, showing she was in employment in May 2021, and was thus entitled to the net salary of N675,078.97 as payment for work done, so that no payment was in fact made in lieu of notice.   On the claim for N500,000,000.00 as compensation pursuant to Section 19 of the National Industrial Court Act 2006, Counsel responded to the Defendant's submission that the Claimant was not entitled because the termination was due to reorganisation and that she did not state how she arrived at the sum. On the Defendant's argument that the claim for N500 million was based on defamation of character over which the NICN has no jurisdiction — the Defendant having cited Ecobank Nig. Ltd & Ors v. Idris [2021] LPELR-52806(CA), Adeniyi Olushola & Anor v. Billa Saliu [2021] LPELR-56027(CA), Adeniyi Olushola & Anor v. Giwa Friday [2021] LPELR-56019(CA), UBA & Ors v. Oladejo [2021] LPELR-55320(CA), and Eric Ivivie Baror v. Polaris Bank Ltd, Suit No. NICN/ABJ/159/2018 (judgment delivered 24 November 2022 by Hon. Justice B.B. Kanyip); Counsel submitted that the Claimant's claim was not centred solely on defamation. He acknowledged that the Court of Appeal decisions had been relied upon by the NICN in Suit No. NICN/ABJ/159/2018 to hold that the NICN has no jurisdiction over defamation cases, but relied on the more recent decision in Engr. Chibuzor Albert & Agulana v. Dr. Fabian Okonkwo (judgment delivered 17 April 2014 by Hon. Justice O.O. Arowosegbe), submitting that pursuant to the expansive jurisdiction conferred under Section 254C(1)(a) of the 1999 Constitution (as amended), the NICN has jurisdiction over workplace defamation.   On the claim for the cost of the suit, Counsel submitted that a successful party is entitled to cost which should not be denied except for good reason, relying on Maya v. Oshunjokun (2001) 11 NWLR (Pt. 723) 62 at 85 and Order 55 of the National Industrial Court (Civil Procedure) Rules 2017. 

 

DEFENDANT’S REPLY ON POINTS OF LAW

18.  Learned Counsel to the Defendant, in reply on points of law, submitted that the Defendant was not legally required to justify that the Claimant was not suitable for the Head of Sales, Pharmaceuticals role, and that there is no legal rule permitting the court to determine whether an applicant was suitable for a job role. He submitted that suitability assessments involve subjective evaluations within the employer's discretion which cannot form the subject of judicial review or constitute unfair labour practice, and that this position is supported by international standards, relying on Article 1(2) of ILO Convention No. 111 (Discrimination in Employment and Occupation), ratified by Nigeria on 2 October 2002, which provides that “Any distinction, exclusion, or preference in respect of a particular job based on the inherent requirements of that job shall not be deemed to be discrimination.” He submitted that the Defendant's legal obligation where termination follows a reorganisation is to prove that the reorganisation was justifiable and verifiable, which it met, referring to paragraphs 4.10 to 4.20 of its Final Address.  Counsel further submitted that the Claimant's argument was liable to fail on other grounds. He submitted that although the Claimant contended the roles were comparable, she acknowledged on page 6 of her Final Written Address the broader scope and increased responsibilities of the Head of Sales, Pharmaceuticals as detailed in Exhibit D5, and that a party cannot approbate and reprobate, relying on Friday v. Gov., Ondo State (2022) 16 NWLR (Pt. 1857) 585(SC).   Further to the Claimant’s issue two, Learned Counsel to the Defendant submitted that the Claimant's allegation of a shortfall in payment was unfounded. He relied on Aliyu & Ors v. Yola & Ors (2022) LPELR-57123(CA) for the proposition that unchallenged averments must be acted upon as true.  He submitted that the Defendant presented Exhibit D16 showing the total severance payment of N4,142,409.41 (which included salary in lieu of notice) and that this less the N600,000 debt was paid, and that the Claimant did not specifically traverse this point, merely stating at paragraph 29 of her Reply that the payments “…cannot regularise the unlawful termination of her employment by the Defendant.”  Counsel submitted that the Claimant's position on contemporaneous payment of salary in lieu of notice was ill-informed. He submitted that the position in Chukwumah v. Shell B.P & Co Ltd [1993] 4 NWLR (Pt. 289) 512, that payment in lieu must be made contemporaneously with termination, does not represent the current state of the law, and relied on Ikemba v. Pyrammidt Company Nig. Ltd [2021] LPELR-56145(CA) at 26-27, quoting the Court of Appeal's reliance on Chukwumah v. Shell Petroleum (Nig) Ltd (1993) LPELR-864(SC) to the effect that the mode and time of payment of salary in lieu of notice depends on the circumstances of each case and that payment made thereafter may suffice.

COURT’S DECISION

19.  The sole issue adopted for determination in this suit, drawn from the convergent formulations of both sides and merging the parties' overlapping questions on the propriety of the termination and the consequential reliefs, is:

·        Whether the Claimant has proved that the termination of her contract of service by the Defendant was wrongful, inconsistent with her contract of employment and international best practice under Article 4 of the ILO Convention 158, so as to entitle her to the reliefs sought.

 

20.  The Claimant carried the burden of proving the wrongfulness she alleged. That principle, which both sides accepted through their reliance on Okomu Oil Palm Co. Ltd v. Iserhienrhien and Organ v. NLNG, is the analytical spine of this case. The employer's right to hire and fire is not in issue; what is in issue is whether, in exercising that right, the Defendant kept within the four corners of the bargain and within the standard of a valid reason imported by Article 4 of the ILO Convention, which this Court is empowered to apply and which forbids termination "unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking."  The first plank of the Claimant's case is that no reason was given for the termination, or that the reason given was a pretext. I found that this is contradicted by the record.   The Termination Notice, Exhibit C3 and D8, states in terms that "the review by Pharmaceuticals of its operational necessities" led to the position of Key Account Manager being "no longer required which means that your job will get terminated as of 31st May, 2021." A reason connected with the operational requirements of the undertaking is precisely the species of valid reason that Article 4 contemplates. The complaint that no reason was given therefore fails on the face of the very document the Claimant tendered.

 

21.  The reason having been stated, the real question is whether it was true. The Claimant says the reorganization was a ruse — a contrivance to remove her — and that the new role of Head of Sales, Pharmaceuticals Nigeria was in substance identical to her own. Here the law is settled and both parties invoked it: an employer is entitled to restructure, but the restructuring must be justifiable and verifiable, meaning the employer must show the need for it, its nature, its component parts, and how it was carried out, as the Court held in Esther Ogbodu v. Global Fleet Oil & Gas Ltd. I applied that standard to the evidence and found the reorganisation genuine and verifiable. Exhibit D2, the report titled "New Nigeria Organization" dated 25 March 2021, predates both the advertisement and the termination and documents the change from a structure in which the Commercial Lead directly oversaw about nine employees in Nigeria to one in which a Head of Sales would directly supervise the medical representatives, reducing the Commercial Lead's direct reports to three. The role was then advertised internally across Nigeria, Cote d'Ivoire and Ghana by the email of 15 April 2021 (Exhibit D3), advertised externally through The Workforce Group (Exhibit D13), and eight candidates were interviewed (Exhibit D4). An employer bent on removing a single employee does not ordinarily prepare a structural report, advertise the role internationally, engage an external recruitment consultant, and interview eight people. On a preponderance of evidence, the documentary trail is the antithesis of a ruse.

 

22.  The allegation that the two roles were identical does not survive comparison of the job descriptions. Exhibit D5, for the Head of Sales, frames the position around leading a team — it requires the holder to coach and develop individuals in the team and to evaluate the medical representatives' performance through periodic reviews. Exhibit D6, for the Key Account Manager, frames that role around planning and implementing sales to Bayer's distributors and supporting the Commercial Lead. One role leads and appraises a sales team; the other services distributor relationships and supports a superior. The Claimant led no document to contradict this distinction. Her answer rested on the assertion that she had in practice performed all these functions while doubling as Key Account Manager, Field Force Manager and Product Manager. That assertion, even taken at its highest, proves that she did varied work — not that the two documented positions were the same. And there is a further difficulty for the Claimant, as at paragraph 6.04 of her own Final Written Address acknowledged the broader scope and increased responsibilities of the Head of Sales role as detailed in Exhibit D5.   A party cannot in one breath say the roles are identical and in the next concede that one carries broader scope than the other.  I should add that the Claimant's attack on the interview and that Exhibit D4 omits her rating under "efficiency," omits the interviewer's name and the date, and rests on subjective parameters, seeks to make this Court take the position of the interview panel, and the decision of the panel to prefer Mr. Azeez Balogun, with fewer years, over the Claimant, with more, is a judgment of suitability that lies within the employer's discretion.   As the Defendant rightly submitted through ILO Convention No. 111 and the authorities on the province of employer discretion, this Court does not sit to re-mark an interview or to substitute its own assessment of who was the better candidate. The Court's concern is whether the exercise was a sham.

 

23.  The third plank is that the termination was connected to the Claimant's surgery. I found this decisively answered by the record. The correspondence shows that when the Claimant sought financial assistance for her surgery by her email of 12 January 2021 (Exhibit D9), the Defendant deliberated and approved the request (Exhibits D11A to D11F), and the Claimant herself, in Exhibit D12 of 5 February 2021, thanked the Defendant for its "financial support," "show of love," "calls," "text messages" and "concern for my wellbeing." There is no adverse comment anywhere in that correspondence, and nothing to suggest the surgery would render her unfit or that it entered into the decision to restructure. The Claimant's answer that "social text messages of appreciation cannot abridge her rights under the contract of employment" is legally unimpeachable but beside the point; the correspondence was tendered not to abridge her rights but to rebut the inference of animus, and it does so completely. The suggested causal link between surgery and termination is unproved. 

 

24.  The fourth and most substantial plank is the notice period. Clause 14 of the contract, common to Exhibits C1 and D1, provides that the contract "shall be terminated by either party giving one (1) month notice in writing or a month's salary in lieu of notice to the other party." The Termination Notice was dated 21 May 2021 and made the termination effective 31 May 2021 — ten days, not a month. Where the notice given is short, the question becomes whether the employer discharged the alternative obligation to pay in lieu.  On the evidence, it did not. Exhibit D8 set out a final settlement of N4,142,409.41, of which the payment in lieu of notice was N918,261.03. However, there is no indication of the payment of the May salary, which had been earned by the Claimant.  The Claimant was therefore entitled to both May salary and the salary in lieu.  Exhibit C3 shows that May salary was not factored in the computation.  Claimant’s argument that exhibit D15 represents May salary appears credible on the face of the document which describes the transaction type as“Bayer Nig. LTD salary May, 2021.” It cannot therefore take the place of one month in Lieu of Notice.  The letter of termination dated 21/05/2021 was received by the Claimant on 25/05/2021 and clearly show that the Claimant was in the Defendant’s employment in the month of May, 2021. The Claimant was thus entitled to the net salary of ?675,078.97 paid on 31/05/2021 as payment for work done. It is thus clear that no payment was made in lieu of Notice by the Defendant.  There is therefore breach of the Claimant’s contract, with respect to the notice period or salary in lieu of that notice, making the termination wrongful. 

24.  Taking the reliefs in turn; I hold as follows:

a.     I declare that the purported termination of the Claimant’s contract of service is wrongful for not complying with the requirement for one month notice or salary in lieu of notice.  The aspect of being wrongful for being without reason fails, as the Defendant gave a sustainable reason for the termination.

b.        The Defendant is ordered to pay to the Claimant the sum of ?798,261.00 being the Claimant`s one month salary in lieu of notice.

c.         The relief for An order of this Honorable Court that the Defendant pay to the Claimant her severance benefits pursuant to the Claimant`s contract of employment fails.  Evidence shows that the Defendant paid the Claimant her severance benefits, except that the salary in lieu of notice was not paid.

d.        The Defendant is ordered to pay to the Claimant the sum of ?2,000,000.00 as compensation pursuant to Section19 of the National Industrial Court Act 2006 for the wrongful termination of the Claimant`s employment and supported by IDSL v. Evbuomwan & Ors 2026 LPELR-83713 (SC) @15-16 paras C-G. 

e.        I make no order with respect to unfair labour practices meted out on the Claimant, damages to her brand, reputation and goodwill built for over a period of 12 years as this was not established by evidence.

f.          Cost of this action is set at ?500,000.00 (Five Hundred Thousand Naira) in favour of the Claimant. 

g.        The terms of this judgment is to be complied with no later than 30 days from today.  Failure, interest will accrue at the rate of 2-% per annum.

 

Judgment is entered accordingly.

 

…………………………………….

Hon. Justice Elizabeth A. Oji