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PortHarcourt ---Presiding Judge, National Industrial Court of Nigeria, Portharcourt Judicial Division; His Lordship, Hon. Justice F. I. Kola-Olalere on Tuesday 9th October, 2018 in a judgment declared as discriminatory and unfair labour practice for the Keystone Bank Limited (defendant) to pay ex-gratia to some of its ex-employees whose employment were determined in the same or similar circumstances with that of the Darlington Eriseye Lawson (claimant) without paying same to the claimant, ordered payment of Eight Months’ Gross Salary as compensation for his constructive dismissal within 60 days of this judgment.
On May 11, 2016 the claimant filed this complaint against the defendant and sought among others; A Declaration that the defendant’s refusal to pay the claimant his end of service benefits in line with the Policy and as practiced by the defendant in her previous retrenchment exercise of employees; particularly that of July and November 2013 amongst others; is wrongful, oppressive, unfair and contrary to the defendant’s Policy (HCP Manual Revised 2013); which envisage fair treatment and equality to all employed staff.
Likewise A Declaration that the claimant is entitled to be paid his end of service benefits under the Gratuity Scheme having spent a minimum of 6 years in the services of the defendant in line with the defendant’s Policy Manual, to wit: gratuity payment of the sum of #12,450,000.00K (Twelve Million, Four Hundred and Fifty Thousand Naira) being the 100% of monthly total package (less bonus) multiplied by number of years spent in the services of the defendant (6 years).
The case of the claimant is that he was a Deputy General Manager of the defendant before his employment was terminated together with fourteen (14) of his other colleagues via involuntary/force resignation. That Bank PHB Plc. was fully operational before it was nationalized by the Nigerian Deposit Insurance Corporation (NDIC) and the Central Bank of Nigeria (CBN) in 2011 to become the Defendant. He continued his pleadings that it is a standard practice of the defendant Bank to ask employees to put in their letters of resignation (involuntary/force resignation) whenever they want to disengage staff on the basis of redundancy and the affected staff will be paid their entitlements in accordance with the Defendant’s HCM Policy Manual, to wit: the payment of the staff basic salary in lieu of notice, redundancy and gratuity payment. He went on that he was only paid his basic salary in lieu of notice by the defendant and was not paid his gratuity and for been rendered redundant.
The case of the defendant, on the other is that the claimant voluntarily resigned from his employment with the defendant. It avers further that the defendant took over the assets of Bank PHB and some of her liabilities or obligations; specifically it did not take over the employment agreement of the claimant and any other employee of Bank PHB. The defendant avers again that the Keystone Bank Limited Human Capital Policies and Procedure (HCP) Manual, Revised in 2013 was not mentioned in the claimant’s Letter of Employment dated August 5, 2011 as part of his contract, and that it cannot be regarded as a new agreement entered into between the claimant and the defendant. That the defendant only made some ex-gratia payments to its ex-staff after considering its relatively stronger financial position at the time but denies that any of the ex-staff referred to by the claimant were paid in accordance with the HCP Manual Revised in 2013.
Counsel to the defendant formulated among others for determination in his final written address: Whether the claimant has been able to prove that his employment in 2008 by Bank PHB was transferred to Keystone Bank Limited in August 2011? Whether the claimant who had been paid his benefits under his contract of Employment with the defendant Keystone Bank(dated 5th August 2011) in April, 2015 can in May, 2016 bring a suit claiming more benefits under the “Human Capital Policies and Procedures Manual” (hereafter called the HCPPM)?
Counsel argued that assuming that Keystone Bank Limited’s HCPP Manual Revised in 2013 is part of the claimant’s contract, there is no provision in the HCPP Manual Revised in 2013 of Keystone Bank Ltd. for payment of gratuity to any staff who has spent less than five (5) years in the Bank.
He went on that the claimant’s contract of Employment of 5-8-2011 and that the claimant’s letter of Resignation was dated 17-4-2015. The claimant; therefore, did not spend up to five (5) years in the defendant’s Bank. Also, counsel submitted that the defendant Bank was given Banking license by the Central Bank of Nigeria on 5-8-2011; thus, the claimant spent exactly 3 years 8 months and 12 days including the day he resigned with the defendant.
Therefore, the claimant is not entitled to any gratuity payment whether he was employed or his service was transferred from Bank PHB.
In the final written address of the claimant, Counsel submitted that the defendant was established without any assets of its own or its own employees but was simply created for the sole purposes of carrying on and continuing the banking business of Bank PHB Plc. and to assume all the recorded deposit liabilities and other liabilities of Bank PHB Plc. including the employment agreement between Bank PHB Plc. and its staff. To counsel, the claimant’s date of employment in September 2008 and the fact that his employment was transferred to the defendant is very probable since the claimant was only expected to prove his case on the basis of probability.
Furthermore, counsel argued that ex-employee of the defendant who received redundancy payment as terminal benefits from the defendant or ex-gratia payment as the defendant calls it; have the same employment terms with the defendant as that of the claimant’s employment terms with the defendant.
After reviewing the argument of both parties, the Court Presided by Hon. Justice F. I. kola-Olalere expressed thus;
“The Law is that the purchaser of a company buys its assets and liabilities.
“By these decisions, the defendant in the instant case is not allowed to take over assets and only some of the liabilities of Bank PHB, which it purchased as contended by its counsel.
“But that the defendant takes over all Bank PHB’s pending liabilities as well, particularly those that have to do with the employees of Bank PHB and this includes, all liabilities on the contract of employment of the claimant with Bank PHB. “Consequently, I find and hold that the defendant took over liabilities of the claimant’s contract of employment from Bank PHB.”
His Lordship further declared that the claimant’s date of employment with the defendant was with effect from September 18, 2008 and that the claimant was forced to resign from his employment by the defendant; therefore, amounts to constructive dismissal.
The Court ordered defendant among others to pay to the claimant, eight months’ gross salary as compensation for his constructive dismissal, which is the total sum of N14,907,296.1 within 60days from today after which, it shall begin to attract interest of 15% per annum until the judgment sum is finally liquidated.
This judgment also abides in the sister case with Suit No: NICN/IB/53/2016. (John Onyema -VS- Keystone Bank Limited)
For Full Judgment, Click Here To Read
