Review of some of the significant decisions in labour and employment 2020
Unarguably, the ex-cathedra decision of the Court of Appeal, Nigeria in Appeal No. CA/L/1091/2016 Sahara Energy Resources Limited v Mrs. Olawunmi Oyebola, delivered on December 3, 2020, represents perhaps the single most significant decision on the employment landscape in 2020. Here, the final court on labour and employment matters, in a significant shift from some of its previous disapproving decisions, affirmed the latitude, within set parameters, of the National Industrial Court of Nigeria (NICN) to depart from orthodoxy common law prescriptions, restricting the quantum of damages to remedy deserving wrongful termination cases. Instructive though, is the incremental approach with which the NICN, roundabout the same timeline of 2020, has also continued to apply its statutory powers to apply equity in many deserving cases. A good number of noteworthy cases will be recapped to bear this out.
In Captain Benedict Olusoji Akanni v. The Nigerian Army & 3 Ors, the NICN awarded N75 million for loss of expectation and psychological trauma, as a result of the arbitrary and illegal actions of the 1st defendant. Similarly, in Ugochukwu Edmund Okwu v Zenith Bank Plc, upon a finding that a suspension without pay for 77 months was inhumane and tantamount to unfair labour practice, the NICN, awarded the sum of N33, 194,245.70 in favour of the claimant. The rationale was hinged on arrears of salary from the date of suspension to the day the claimant retired. Still on NICN’s high watermark compensatory damages, in apparently deserving cases, Chukwudoro v Oiltest Well Services Limited (Unreported Suit No. NICN/EN/53/2013, judgment delivered September 28, 2020; per Hon-Justice O.O Arowosegbe) and Osazuwa v International Tobacco Company & Anor (Unreported Suit No. NICN/EN/25/2016, judgment delivered September 29, 2020; per Hon-Justice O.O Arowosegbe) are stand alone seminal judgments. The NICN, inter alia, greatly expounded the broad scope of discriminatory practices that will amount to unfair labour practices; deserving of ‘penalties that must have a dissuasive effect on potential perpetrators of discrimination’.
Unrelenting as the efforts of the labour court were within the 2020 timeline, it was also afforded the opportunity to deal decisively with what appears to be a disturbing trend in the pharmaceutical industry. This relates to a requirement that employees complete an exit clearance or ‘successful disengagement’ process as condition precedent to the release of their original educational certificates; collected by the employer at the start of employment. These employment disputes involving three pharmaceutical companies, across two divisions of the NICN, returned with similar holdings of unfair labour practice. The fact patterns are strikingly similar to many which are known anecdotally throughout the world of work.
Pharmacists are engaged as medical/sales representatives, and at the point of engagement, asked to submit the originals of their university certificates. The companies keep them, and these employees only become entitled to their return, upon ‘successful clearance’ when their contract of employment is ended; either through resignation or termination. The three cases where the court was opportune to deal with this unscrupulous practice was: Mr. Adebayo v Superior Pharmaceutical Ltd (Unreported Suit No. NICN/AK/62/2018, judgment delivered on February 17 2020; per Hon-Justice A.A Adewemimo); Pharm. Obateru Olufemi Abidemi v Fidson Healthcare Plc (Unreported Suit No. NICN/AK/06/2018, judgment delivered on February 17 2020; per Hon-Justice A.A Adewemimo); and Seagreen Pharmaceuticals Ltd v Adaji Gabriel (Unreported Suit No. NICN/KD/16/2017, judgment delivered on December 1, 2020; per Hon-Justice S.O Adeniyi).
In all three cases, the NICN deprecated the practice of holding over these certificates, ordering their immediate release, whilst also awarding damages against the affected companies. The court had cause in a separate case to pronounce again on some variant of this practice; albeit in a different hue and industry. This involved the procurement of an employee’s certificate (as a qualified Mining Engineer) to enable an employer ‘hold the same out’, in compliance with a statutory precondition, needed to evince that it (employer) can carry out mining activities. The claimant/employee in Engr Tarfa Dzarma Garba v Ashaka Cement Plc & Anor(Unreported Suit No. NICN/BAU/13/2017, judgment delivered February 28, 2020; per Hon-Justice K.I Amadi) was so held out as a Supervising Mining Engineer when in fact he did not so act/work.
Much less straightforward, with respect, is the ratio decidendi, to compensate this former employee, relying on section 19(d) of the National Industrial Court Act 2006, with the sum of N2, 000,000 ‘for the period he was held out to be the supervising mining engineer during which period he did not so act’. On the facts as accepted, it appeared that the moral compass pointed unswervingly to not rewarding either of the two wrongdoers.
In 2020, the NICN also had cause to construe statutory intent as applied to specific matters in controversy. In Abodunrin Etti v Lagos State Judicial Service Commission (Unreported Suit No. NICN/LA/674/2018, judgment delivered September 30, 2020; per Hon-Justice Mustapha Tijani) the claimant challenged the validity of his retirement as a Magistrate relying on the 35-year timeline threshold indicated in the Public Service Rules, as opposed to the 60-year retirement age stipulated in the Magistrates’ Court Law, Lagos. The Court’s judgment in this case is commendably authoritative for its thorough examination wherein it found the claimant’s case proved.
The Court also provided additional guidance regarding minimal thresholds for claims (and/or defence) of compensatory damages attending upon workplace injuries and accident. In Daniel v Seven-Up Bottling Co. Ltd (Unreported Suit No. NICN/KD/13/2019, judgment delivered October 13, 2020; per Hon-Justice O.O Adeniyi), the Court dismissed a claim for compensation or damages on the ground that the Claimant failed to ‘satisfactorily pinpoint any real or concrete injuries he suffered’. The claimant in Bamidele v Nigeria Electricity Liability Management Limited/GTE (Unreported Suit No. NICN/AK/14/2018, judgment delivered January 16, 2020; per Hon-Justice A.A Adewemimo) had gone to rectify an electrical fault on a pole, when a high-tension wire fell on his head, causing him severe burns. Not only did the defendants abandon the claimant to his travails, but there was also a finding of breach of duty of care. The claimant was awarded the sum of N20, 000,000 as general damages.
In Chigozie Esther v Covenant University & 2 Ors (Unreported Suit No. NICN/IB/52/2017, judgment delivered March 03, 2020; per Hon-Justice J.D Peters) the claims against the defendants were in ‘’Negligence for the failure of the defendants to keep the kitchen in safe condition to prevent it from being slippery …’. The claimant made a case for negligence leading to a workplace injury suffered, but neither pleaded nor proved the particulars of negligence as required. The case, understandably, was dismissed.
In Ukpong v CGCOC Group of Companies Ltd. (Unreported Suit No. NICN/CA/24/2019, judgment delivered January 24, 2020; per Hon-Justice M.N Esowe) the claimant’s left hand was severely damaged as a result of an industrial accident due to the defendant’s negligence. The Court awarded the sum of N5million as general damages for the loss of amenities of life. In Ojeikhoa v Nicon Luxury Services Ltd & Anor. (Unreported Suit No. NICN/ABJ/446/2016, judgment delivered June 30, 2020; per Hon-Justice R.B Haastrup) the Court rightly invoked the provisions of Section 19(d) of the National Industrial Court Act, 2006 in awarding the sum of N5 million as compensation. The claimant lost his foot in the course of employment with the 2nd defendant.
In Adetayo v Nigeria Breweries Plc (Unreported Suit No. NICN/LA/617/2017, judgment delivered December 14, 2020; per Hon-Justice Elizabeth A. Oji, PhD) the claim was for compensation for the physical impairment allegedly suffered by the claimant while in the employment of the defendant as a machine operator. The claim failed as the Court held that the claimant failed to place evidence establishing the exact nature of his job; predisposing him to the said physical impairment – Lumber Spondylosis R/O Back Strain.
The Companies and Allied Matters Act (CAMA) is a legislation that, by jurisdictional apportionment, gets squarely interpreted at the Federal High Court, even as there are vestiges of jurisdictional power suitable for the NICN in appropriate circumstances. The claimant in Onyejiaka v Mr Oluwakemi Balogun (Liquidator of Woolworths Retail Stores) (Unreported Suit No. NICN/LA/200/2014, judgment delivered June 3, 2020; per Hon-Justice O.A Obaseki-Osaghae), rode roughshod over these principles, and accordingly the suit was struck out for failure to obtain leave of the Federal High Court (in accordance with section 567) to bring an action against the Liquidator of a Company.
The claimant company in Dreamworld Leisures Limited v Jude Attoh (Unreported Suit No. NICN/LA/494/2019, judgment delivered July 22, 2020; per Hon-Justice Ikechi Gerald Nweneka) sought to, inter alia, restrain the defendant from parading himself as the Managing Director of the claimant company; having been suspended at a board of directors’ meeting. The Court upheld the defendants objection to the suit; being an action exclusively within the jurisdiction of the Federal High Court.
Contrariwise, the NICN in Sogo v HEBN Publishers Plc (Unreported Suit No. NICN/IB/41/2018, judgment delivered March 12, 2020; per Hon-Justice J.D Peters) agreed that the purported termination of the claimant’s employment as Managing Director (MD/CEO) of the defendant is inconsistent with Clauses 56 and 60 of the Memorandum and Articles of Association of the defendant, Section 262(1) & (2) of the Companies and Allied Matters Act, and therefore wrongful, unlawful, invalid, null and void and of no legal effect.
The Court in Omotosho & Ors v Mr Seyi Akinwunmi (Receiver/Manager, Evans Medical Plc) (Unreported Suit No. NICN/LA/526/2018, judgment delivered April 27, 2020; per Hon-Justice Ikechi Gerald Nweneka) rightly upheld the general intent of Section 390[b] of the CAMA, as the duty to ensure, as first-line charge, the payment of salaries and allowances of employees of companies under receivership.
The cases of Abe Adewunmi Babalola v. Equinox Int’l Resources Ltd (Unreported Suit No.NICN/166/2015; Judgment delivered on 17th June 2020; per Hon-Justice N.C.S Ogbuanya); and Akindele v Netconstruct Nigeria Limited (Unreported Suit No. NICN/LA/559/2017, judgment delivered September 08, 2020; per Hon-Justice N.C.S Ogbuanya) restated the principle that there is no fractional payment of salaries in periodic employment. The Court’s illuminating proposition, further applied in Akindele’s availed an employer a convenient balance of holding an employee to his bargain. The ‘four weeks’ notice period an exiting employee gave the employer, was held ineffectual and contrary to the ‘three months’ notice’ in the contract of parties. The employee was in the circumstance held to have resigned without notice, and liable to pay a sum equivalent to one-month salary to the employer.
In 2020, unmitigated global disruption brought dramatic changes to the world of work. These changes are yet unfolding. It is the morning of a new year. As the world continues to grapple with the incessant waves, disputes, inevitably from the impact of the global public health crisis on companies’ balance sheets, will abound. To fire, or to fire? That, with all the emphasis, is not the only question. The emerging workforce trends and workplace flexibility etc are some of the novel particularities that may form/shape the thrust of employment disputes or adjudicatory process in 2021. Time will tell.
Kuti is a Partner in the law offices of Perchstone & Graeys LP