Review of some significant decisions on labour and employment laws in 2019
In the period under review, the underlying jurisprudence of the employment court (the National Industrial Court of Nigeria- NICN) on workplace issues, has been restless. Where some principles have been clarified and strengthened, a few other areas clamour for unanimity on the mind of the labour court.
The case against high-compensatory regime of damages for a wrongfully terminated worker in the labour court (at the NICN) which some recent decisions of the Court of Appeal appear have championed may not, in all cases, hold to deny a successful litigant of appropriate award of damages with the lucid clarification in Edet v Fidelity Bank Plc(Unreported Suit No. NICN/LA/276/2014, judgment delivered on 17th December, 2019; per Hon. Justice B. B Kanyip, Ph.D (President). Here the NICN, still placing reliance on a more recent decision of the Court of Appeal, recognised the distinction between the somewhat limited scope of award of damages for a wrong arising from the termination of employment and an award of (general) damages for alleged unproven malpractice, holding that in deserving cases, both can be awarded.
In a landmark decision around unfair labour practice, the NICN in Ajah v Fidelity Bank (Unreported Suit No. NICN/LA/588/2017, judgment delivered on 14th May 2019; per Ogbuanya J.) resolved, in the main, a recondite legal issue on the effect of a new policy on a party who had attained the exit point in an organization. The question was whether an employee after attaining 14 years and 11 months in service; and serving notice indicating her option to retire and take benefit of a certain policy extant at the time of serving the notice, should to her detriment, be subject to the employer’s sudden policy making those entitlements only due upon completion of 15 years in service.
The Court examined the details of this case thoroughly and thoughtfully, calling in aid availing equities in: (i) pronouncing against the employee being subjected to a retroactive policy; (ii) holding the employer estopped from avoiding contractual obligations; and that in any event (iii) the principle of arithmetical approximation would nonetheless avail the claimant in deeming her to have served the 15 years on the date the new policy was issued.
Ajukwu v Blueche (Unreported Suit No. NICN/LA/510/2017, judgment delivered on 4th February 2019; per Oji (Ph.D), J.), Adegoke v Ecobank Nig. Ltd (Unreported Suit No. NICN/LA/407/2016, judgment delivered on 4th April 2019; per Peters J.), Toluwase v MID Atlantic Sea Foods Company Limited (Unreported Suit No. NICN/LA/283/2014, judgment delivered on 11th June, 2019; per Amadi J.), Oyama Friday v P.W Nig. Ltd (Unreported Suit No. NICN/ABJ/235/2014, judgment delivered on 8th October 2019; per Anuwe J) , Oluwatoyin v IBDC Plc (Unreported Suit No. NICN/AB/08/2015, judgment delivered on 19th March 2019; per Peters J.) and Friday Godwin v Anthony Rocks Limited (Unreported Suit No. NICN/AK/46/2014, judgment delivered on 4th April 2019; per Oyewumi J.) all considered workplace injuries and accident in ascertaining the ambit of the duty of care owed to sustain a claim for damages in negligence.
Some of these cases brought to the fore the seeming uncertainty around compensable damages. Toluwase was awarded the sum of ₦3 million as compensation for the eye injury he sustained in the course of his employment with the defendants. For workplace injury causing total loss of vision in his right eye, Friday was awarded the sum of ₦5 million. Oluwatoyin succeeded in establishing negligence on the part of his employer for injury (electric shock) sustained in the course of work which, in turn, led to the amputation of his arms.
Much less straightforward, with respect, is the rationale for the denial of an appreciable amount of the sum which he claimed; on the premise that the court was yet to be confronted with such a situation and consequent award of such a sum as that claimed. With respect, the resignation of the court in this regard suggests the fettering of judicial discretion. Litigants and counsel are entitled to the expectation that a case can be decided on its peculiar fact pattern which may be completely unique. The facts of Oluwatoyin’s case evoke deep emotion and, oddly enough, said facts were perhaps given their most compelling expression by the court which nevertheless significantly whittled down his claim for a compensatory sum of N850 million.
In describing the near-vegetative condition of the claimant on account of his workplace injury, the court summed it up pitiably thus: ’I watched the Claimant while testifying in chief. He has no hands and no arms. He joined the services of the Defendants as a complete human being but got disengaged as an incomplete being. For all intents and practical purposes, the Claimant will forever be dependent on somebody virtually 24 hours a day and seven days a week. He needs a person to bath, feed, dress him. He needs an assistance to use the toilet. He needs an assistance to even scratch his body in event of an insect bite. Should he find himself in a place of public disturbance or riot, the Claimant is right on his own and all alone to fend for his dear life. The appearance of the Claimant at trial was one of a sorry state. One cannot but think aloud as to how much could be awarded in damages to be able to put the Claimant back in his position before the accident leading to the amputation of his both arms’. The claimant was nonetheless awarded the sum of N150 million for the permanent injury he suffered as a result of the negligence of the defendants, against the sum of N850 million sought.
Friday Godwin, in turn, was awarded the sum of N10 million of the N100 million sought as general damages for permanent injury sustained from an industrial crusher while in the employ of the 1st defendant. The court recorded his plight thus: ‘I observed that the claimant throughout the trial had his right hand static, he could not move it, which might be due to the wasting of the right shoulder and upper limb, inability to flex and extend the right shoulder and elbow ….I equally observed that his right ear lobe was chopped off. It is better imagined than to experience the pain and trauma he must be going through as a result of the injury he sustained, which permanently led to the loss of his right ear lobe/external ear and paralysis of his entire right hand from his shoulder down to his fingertips as stated supra. The import of which is that he can no longer use his right hand. His injuries are such that cannot be quantified in monetary term. The paralysis of his right hand has taken life and means of his livelihood from him.’
Drawing a balance between its normative role and evolving dynamics in the world of work, the NICN, in Samson Systems & Investment Ltd v Nabih Chamchoum (Unreported Suit No. NICN/LA/87/2015, judgment delivered on 13th March 2019; per Obaseki-Osaghae J). held a business covenant which restricted the defendant from visiting Nigeria for a minimum of five years for employment or business after his resignation from the claimant, as unreasonable in terms of time and width. Perhaps underscoring the importance of submitting proper issues for adjudication, an almost identical restraint of trade fact scenario emerged in Captain Chergui v Dana Airlines Ltd (Unreported Suit No. NICN/LA/129/2015, judgment delivered on 25th February 2019; per Obaseki-Osaghae J.), where the court held the claimant strictly bound to the terms of his contract with the defendant.
It is also instructive to look at the paradigm shift from, I daresay, a customarily settled position of law. This shift is as represented by the radically altering decision in Bello Ibrahim v Ecobank Plc (Unreported Suit No. NICN/LA/87/2015, judgment delivered on 17th December 2019; per Sanusi Kado J ). In a very influential passage, perhaps in anticipation of the critique to follow, the Court ‘demystified’, as it were, the common law rule that reinstatement cannot avail as a possible remedy in the breach of master and servant contractual relationship. The holding of the court unswervingly points in one direction – a probable reversal of the decision if submitted to the higher court for review.
The unfettered right of an employee to resign even in the face of express stipulations to the contrary in the employer’s handbook was reiterated in Adigwe v FBN Mortgages Limited Unreported Suit No. NICN/LA/526/2016, judgment delivered on 9th July 2019; per Kanyip J. (as he then was, now President, NICN). Relying on citation of cases expounding on the principle, the court cast its decision in the light of international best labour practices and the applicable International Labour Organisation Convention; lest such a practice be deemed to amount to forced labour. Curiously, Fajuyitan v Guinea Insurance Plc (Unreported Suit No. NICN/LA/209/2012, judgment delivered on 21st March 2019; per Obaseki-Osaghae J.) reached a divergent position about an employee tendering a letter of resignation when facing disciplinary hearing and the Employee Handbook stipulating otherwise.
Consistent with the thrust of the court’s previous decisions in matters with similar fact patterns, ASP Kiriben v Nigeria Police Force (Unreported Suit No. NICN/LA/209/2012, judgment delivered on 3rd December, 2019; per Hon. Justice B. B Kanyip (Ph.D) (President, NICN) hinted at how gratuity is ascertained with exactitude and particularised in a claim. Adefowope v MTN (Unreported Suit No.
NICN/LA/526/2016, judgment delivered on 15th May 2019; per Kanyip J. (as he then was, now President, NICN) and Kayode Tijani v FRA Williams (Jr) (Unreported Suit No. NICN/LA/130/2015, judgment delivered on 9th July 2019; per Kanyip J. (as he then was, now President, NICN) gave imprimatur that payment in lieu of notice period must be made contemporaneously with the termination, otherwise termination, in the circumstance, would be wrongful.
Okonyia v UBA (Unreported Suit No. NICN/AWK/09/2014, judgment delivered on 9th July, 2019; per Targema (Ph.D.) J. , inter alia, emphasized the distinction between termination/dismissal that is wrongful and termination/dismissal that is unlawful/illegal and ensuing court orders attending upon each incident. Jonathan Pigden v Tolu Ogunkoya (Unreported Suit No. NICN/LA/303/2018, judgment delivered on 20th March, 2019; per Oji (Ph.D.) J.affirmed that remuneration alone may not suffice as establishing a contract of employment as to confer jurisdiction on disputes arising from a contract of employment/service which the NICN has jurisdiction over.
In the realm of trade unionism and trade disputes, Joachim v Union Registrars (Unreported Suit No. NICN/LA/139/2014, judgment delivered on 17th December, 2019; per Hon. Justice B. B Kanyip (Ph.D) (President, NICN) fortifies the protection of employees from persecution or termination of employment on account of trade union activities.
Kuti is a partner in the law offices of Perchstone & Graeys.
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