Date of Judgement: 28th September 2021
Suit No.: NICN/LA/758/2016
Claimant: Dr. Adekunle Oyeyemi
Defendant: Covenant University
Judge: Justice O. A. Obaseki-Osaghae
Judicial Division: Lagos
Counsel: Mrs. Funmi Falana, with a. Gbadamosi, F. Akinyemi for the Claimant. F. B. Agbanwu for the Defendant
Brief Summary of the case
The Claimant was employed from Canada as a full-time Director of the Covenant University’s Counseling Centre from 1stOctober 2007 to 15th November 2016, when his appointment was terminated. The Claimant, following the termination, sent an internal memo to the Defendant’s Board to state his position against the Board’s resolution on the issue of tenure of Principal Officers and Directors.
The Claimant afterwards got a reply letter form the Defendant that his tenure as the Director of the Centre had come to an end and he was being redeployed to the Department of Psychology as a Senior Lecturer and whilst the claimant was still processing the redeployment, he received a letter terminating his employment.
Hence, the Claimant sued for wrongful termination on the grounds that the termination of his employment was done contrary to the Defendant’s University law. Claimant sought for an order of reinstatement amongst other reliefs.
The Defendant, in its defence argued that the Claimant was invited to a roundtable discussion when his service was no longer required in its counseling centre because he was over 60 years of age. The Defendant then stated that, as a kind gesture, it decided to transfer the Claimant to become a Senior Lecturer on contract basis which the Claimant consented to.
The Learned Justice Ayodele Obaseki-Osaghae held that unilateral review of the claimant’s employment conversion to Senior Lecturer was designed to make the workplace intolerable and the words ‘with immediate effect’ included in the Letters of Termination of Employment of the Claimant has the effect of stigmatization. The Court then held that the termination of the claimant’s employment by the Defendant was wrongful and in breach of the contract of his employment and was not in accordance with international best practice.
Legal Issues and Lessons for Employees and Employers
Some of the Issues and lessons from the decision of the court in this case will be addressed below.
1. On the implication for termination of an employment contract without giving a reason
Before now, it was immaterial for the court to ascertain the reason for termination of an employee’s relationship provided it is in accordance with the terms of the contract. For example, in the case of BABATUNDE AJAYI v. TEXACO NIGERIA LIMITED & ORS (1987) All N.L.R. 471, the Supreme Court held inter alia that in an ordinary case of master and servant relationship, a master can terminate the contract with the servant at any time with or without reasons at all, provided the termination is in accordance with the terms of the contract. An employer always deserves the right to terminate the claimant’s employment under the law once the conditions in the terms of employment are met.
However, since the third alteration of the 1999 Constitution in 2010, the law has changed. The National Industrial Court is empowered by Section 250 (C)(1)(f)(h) of the 1999 Constitution (as amended) to rely on and apply International best practices and international Labour Standard in determining issues arising out of termination of employment in Nigeria.
One of the ways to determine international best practice is to consider the conventions of International Labour Organization (“ILO”). For instance, Article 4 of the Termination of Employment Convention 1982 provides that:
“the employment of a worker shall not be terminated 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, establishment of service”
In view of the above convention, the Nigerian courts, in plethora of cases, have held that an employer can no longer terminate the employee’s relationship without giving a valid reason.
In the Oyeyemi’s case, the claimant was disengaged by two letters. The The court in Oyeyemi’s case, while relying on the PETROLEUM AND NATURAL GAS SENIOR STAFF ASSOCIATION OF NIGERIA V SCHLUMBERGER ANADRILL NIG LTD [2008] 11 NLLR (PT 29) 164, stated that the reasons given by the defendant in the two termination letters, i.e ‘restructuring’ and ‘services no longer required’ are not within the definition of good cause in Section 20 (9) of the Covenant University law.
2. On the implications of employer’s unilateral change of the conditions of a worker’s employment
It is trite law that the terms of contract of employment must be respected by both parties and any amendment of the contractual terms must be a mutual exercise. However, when the employer’s conduct breaches the terms of contract or amounts to unilateral change to the contractual terms, this would give rise to claims for constructive dismissal.
The concept of Constructive dismissal was aptly illustrated in the case of Miss EBERE UKOJI V. STANDARD ALLIANCE LIFE ASSURANCE CO. LTD. (2014) 47 NLLR, (PT. 154), 531. thus:
“Globally, and in labour/employment law, constructive dismissal, also referred to as constructive discharge, occurs when an employee resigns because his/her employer’s behaviour has become intolerable or heinous or made life difficult that the employee has no choice but to resign. Given that the resignation was not truly voluntary, it is in effect a termination. In an alternative sense, constructive dismissal or constructive discharge is a situation where an employer creates such working conditions (or so changes the terms of employment) that the affected employee has little or no choice but to resign. Thus, where an employer makes life extremely difficult for an employee, to attempt to have the employee resign, rather than outright firing the employee, the employer is trying to create a constructive discharge. The exact legal consequences differ from country to country, but generally a constructive dismissal leads to the employee’s obligations ending and the employee acquiring the right to seek legal compensation against the employer.”
It therefore important for employer to seek and obtain the consent of employees before effecting a change to worker’s terms of employment.. In the Oyeyemi’s case, the court emphasized the mutuality of employment contract and the need for any consequential changes to be mutually agreed upon. In rejecting and invalidating the unilateral change of employment terms, the court held as follows:
‘There is no evidence that the claimant consented to a change to his position……… There is no doubt that by the actions of the defendant and its Registrar’s letter, the defendant had constructively dismissed the claimant’.
3. On the legal implications for non-payment of salary in lieu of notice contemporaneously with the service of termination letter (i.e. on the same date of termination without notice)
Termination of an employee’s employment contract without proper notice can expose an Employer to a claim for wrongful dismissal in the National Industrial Court. Although, an employer may terminate an employee’s employment without notice if the employer pays salary in lieu of notice, but such payment must be made on the same day the employee’s notice of termination was served on him. It is unlawful to disengage an employee without notice and salary in lieu of notice even if the employer promises to pay later. It is inexcusable that the employee has not done his or her hand over notes or filled exit form or complied with any other exit procedures of the company.
For instance, in the case of CHUKWUMAH V SHELL PETROLEUM DEVELOPMENT CO. LTD [1993] 4 NWLR (PT 289) 512, the appellant’s contract of employment provided for the giving of notice or the payment of salary in lieu of notice. The appellant was entitled to two (2) months’ notice or two months’ salary in lieu of notice. The letter of termination of the appellant’s employment did not provide for notice, but offered to later pay two (2) months’ salary in lieu thereof. The evidence before the court showed that the appellant was only paid his salary in lieu of notice three (3) months after his employment was terminated.
The Supreme Court found that where a contract of service gives a party a right of termination of the contract by either giving a particular length of notice or payment of salary in lieu of the length of notice and the latter course is chosen, the party seeking to put an end to the contract must pay to the other party the salary in lieu of notice at the time of termination of the contract. The failure to pay the salary in lieu of notice at the time of termination of employment rendered the termination of appellant’s employment wrongful.
In the Oyeyemi’s case, the National Industrial Court, relying on the decision in Chukwuma’s case, heldthat the defendant’s action was wrong in law and in breach of the contract of employment when it failed to pay the claimant’s salary in lieu of notice at the time of termination of his employment which was 14th or 15th November 2016. Rather, the termination letter tied his salary in lieu of notice to the exit procedures and other terminal benefits.
5. On the implication of an employee’s failure to plead particulars of special damages or leadevidence in a claim for damages for wrongful termination
The position of the law is settled that claims on reimbursements for expenses are claims for special damages which must be specifically pleaded and strictly proved by the claimant and to succeed in a claim for special damages the claimant must plead the special damages and give necessary particulars and adduce credible evidence in support. The Employee must satisfy the court as to how the sum claimed as special damages was quantified.
For instance, in the case of Luke Nwanewu Onyiorah v Benedict Onyiorah LER [2019] SC 254/2008, the Supreme Court held that on no account can a trial judge make his own assessment or speculate on special damages; and that an assessment would only be deemed correct and valid if it was arrived at, strictly, on the evidence accepted by the judge as establishing the amount to be awarded.
The National Industrial Court adopted the above position in the Oyeyemi’s case when it stated that the claimant’s claim for both air and sea passage was in the realm of special damages and must be specially pleaded, particularised and strictly proved. According to the presiding judge, the claimant failed to plead the specific items for reimbursement or give necessary particulars in his pleadings. The learned trial judge concluded that it is not the duty of the court to embark on a voyage of discovery caused by failure of a party or his counsel to give necessary particulars of a claim.
The foregoing, therefore, presupposes that where there is no factual pleading and or evidence to support a claim for special damages in an employee’s case, such damages goes to no issue and any award of special damages not specifically claimed in a pleading cannot be sustainable.
6. On Amount of damages for wrongful termination
This case represents one of the few exceptions to the law on award of damages for wrongful termination. The general position of the law is that general damages cannot be awarded in a wrongful termination case. However, where the employer’s conduct is perverse and highly condemnable, the court may award punitive damages.
It would appear that Court in the Oyeyemi‘s case awarded two (2) years salaries as punitive damages (though the Judge describes same as general damages) consequent upon the finding of facts that the employer’s conduct was an unfair labour practice.
According to the Judge:
“Having found that the defendant unilaterally reviewed the claimant’s employment contract to Senior Lecturer (Contract) which was unsolicited and would make the workplace intolerable to him; and the wrongful termination of his employment by the issuance of two letters of termination with immediate effect without any reason, there is no doubt that the claimant is entitled to an award of damages pursuant to the provisions of section 19 (d) of the National Industrial Court Act 2006. I hereby award the sum of N8, 271,240.00 (Eight Million, Two Hundred and Seventy One Thousand, Two Hundred and Forty Naira) being the equivalent of 24 months salary as general damages to the claimant. The defendant is to pay the claimant the sum of N1,750,137.42 (One Million, Seven Hundred and Fifty Thousand, One Hundred and Thirty Seven Naira, Forty Two Kobo) being terminal benefits stated in its letter dated 7th November 2016.“
The description of the monetary compensation as general damages will continue to make the applicability of general damages an endless argument. The Judge observed that the claimant did not make any specific claim as damages but still went ahead to award such huge sum representing two years’ salaries on the basis that Sections 13 and 19 of the National industrial Court Act entitle the claimant to damages, which the Judge, in exercising his judicial discretion, fixed at N8, 271,240.00!
It must be noted that in addition to the foregoing amounts, the Court further awarded the sum of N344,635 being one month’s salary in lieu of notice, a terminal benefit in the sum of N1,750,137.42 and N300,000 as cost of litigation, all in favour of the claimant and payable within 30 days of judgment. With this judgement, damages is, indeed, at the discretion of the court!
