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Hon. Justice Dele Peters of the Ibadan Judicial Division of the National Industrial Court has declared Tochukwu’s suspension without pay by BNSL Limited as wrongful.
The Court ordered BNSL Limited to pay Tochukwu the sum of N5.4m as outstanding salaries from November 2018 to July 2019, when she resigned from the company, and the sum of N500,000.00 (Five Hundred Thousand Naira) as the cost of action.
From facts, the Claimant, Tochukwu, had instituted an action against BNSL Limited, seeking declarations that her suspension and subsequent termination of employment were not carried out in accordance with the law and due process as stipulated in the company’s Staff Handbook and employment letter.
Tochukwu averred that she was suspended for three months without pay and was subsequently prevented from returning to work, and that she was not allowed to respond to the allegations against her and that the Company withheld her salaries and other entitlements.
She further sought the sum of N200m as general damages for the economic, emotional, physical, and psychological hardship she claimed to have suffered as a result of BNSL Limited’s actions, together with an order restraining the Company from harassing, intimidating, or unlawfully arresting or threatening to arrest her.
In defence, BNSL Limited and others alleged that following Tochukwu's suspension, discrepancies were discovered, prompting the engagement of a forensic audit to review its operational processes.
BNSL Limited and others filed counterclaims seeking various sums for alleged financial losses, unauthorised payments to suppliers, excess payments, and salary in lieu of notice.
BNSL Limited and others posited that Tochukwu failed to establish her entitlement to the reliefs sought, contending that she did not lead evidence to show that she resumed work after the expiration of her suspension and the Staff Handbook could not be relied upon against BNSL Limited, as it is a separate corporate entity. Counsel urged the Court to dismiss her case and grant the counterclaims.
In opposition, Tochukwu’s Counsel, O. A. Okeke Esq., submitted that his client had established her employment relationship with BNSL Limited through her employment-related documents, and contended that BNSL Limited and others failed to prove their counterclaims and that the audit report could not establish the alleged financial misconduct in the absence of testimony from its maker.
Delivering judgment after evaluating the evidence and submissions of both parties, Justice Dele Peters noted that the Staff Handbook tendered by Tochukwu belonged to another Company, while the registered name was BNSL Limited, and there was no credible and admissible evidence establishing that both companies were the same entity.
The Court stated that Tochukwu had not been recalled after the expiration of the three-month suspension, and declared the indefinite suspension without pay as an unfair labour practice.
“The ILO Administrative Tribunal has criticised excessive long suspensions without pay, holding that suspension lasting many months is contrary to the inherently temporary nature and can cause severe hardship to the employee, and while ILO Convention 190 does not specifically regulate suspension without pay, its principles support due process, proportionality and fairness in disciplinary proceedings. Therefore, not withstanding the absence of any contract between the parties respecting the issue of suspension, I take cognisance of the fact that the Claimant has a family to maintain and hold that the suspension of the Claimant without pay since October 2018 till date is wrong.”- Justice Dele Peters
The Court found that BNSL Limited failed to adduce sufficiently cogent, credible, and admissible evidence in support of its claims for alleged financial losses, unauthorised payments, excess payments to a supplier, and salary in lieu of notice.
However, the Court dismissed Tochukwu’s claim for N200m in general damages, finding no evidence to attribute the losses complained of by Tochukwu, and also refused the prayer for an order restraining the Company from harassing, intimidating, or unlawfully arresting or threatening to arrest her.
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