Justice Nelson Ogbuanya of the National Industrial Court sitting in Lagos has held that it is demeaning to describe a worker with the term “casual” in Nigeria.
He also held that it is illegal for a company to keep a worker in its employment for several years without a letter of appointment.
According to him, the lack of such contract of employment cannot deny such a worker his entitlements.
The judge delivered a judgment in a suit by Fatai Oyekunle against Abel Sell Ltd and Henry Boyo.
The claimant filed the suit on March 18, 2016 against his former employer and the Managing Director.
He sought to recover outstanding salaries owed him, his gratuity and a declaration that his dismissal on allegation of crime of stealing which was never proved against him in any court of competent jurisdiction was unlawful.
He sought for N43,900 being the salary due to him for the months of February and March 2015 which he worked for but was not paid.
The claimant sought N21,950 which is his one month salary as payment in lieu of notice.
He prayed for N10million being his final entitlement (gratuity) from the first and second defendants jointly and severally, as well as N500,000 as cost of the suit.
The claimant said he was employed by the defendants in 1992 as a factory worker and was later converted to a security man and deployed to the first defendant’s factory sites.
He said he was not found wanting in the course of duty and even received long service award sometime in June 2014.
However, sometime on December 12, 2014, some machines were declared missing, of which he was maliciously accused of masterminding, which led to his detention by the police.
He said the complaint was withdrawn when it was discovered that his boss’ son was responsible for the missing machines.
Oyekunle contended that the criminal allegation against him was a ploy to carry out a sinister plan to send him away from the company empty handed.
He said he was offered N250,000 as layoff money , which he rejected, adding that he was dismissed on March 5, 2015.
But the defendants told the court that the claimant was found to have conspired with other staff to remove machines and equipment without any prior written authority and kept the proceeds of the unlawful sale.
The defendants said they instructed their solicitors to withdraw the case from the police on humanitarian grounds when the company’s premises were incessantly besieged by family members of the indicted staff.
In his findings, Justice Ogbuanya held that in denying the claimant his entitlements, he was referred to as a casual worker, which he said was illegal.
The judge held: “The defendants had introduced another justification, to the effect that the claimant was a mere ‘casual worker’ and thus, not entitled to any terminal benefit and indeed challenged the claimant to produce any contract of employment evidencing entitlement to any such benefit/civil treatment at workplace, and even payment of salary in lieu of notice for wrongful termination.
“To the defendants, since the claimant was a casual staff, he was not entitled to letter of employment or contract of service.
“This aspect of lack of contract of employment and the claimant being a casual staff formed the crux of the defendants’ later defence to the monetary reliefs sought for by the claimant.
“Let me quickly again dispel this line of reasoning canvassed by the defendants and their counsel in a bid to scratch for justification for the denial of claimant’s perceived benefits.
“It is my considered view that the deliberate failure to give an employee a letter of employment which would spell out the clear terms of the employment and conditions of service, and turning around to be branding a Nigerian employee ‘casual worker’ cannot attract judicial endorsement, but would ordinarily be admonished with exemplary damages for conscious breach of the extant legal regime on the subject.
“To say the least, the term ‘casual worker’ is demeaning, otiose and no longer an acceptable terminology of description of any Nigerian worker no matter how lowly placed within the current Nigerian Labour & Employment legal regime. See: S.91 Labour Act; Shena Security Co. Ltd v. Afropak (Nig.) Ltd &Ors. (2008)LPELR-3052(SC).
“Having found and declared the claimant’s employment with the defendants as wrongfully determined, I find from the records that there was no evidence of any notice or payment of salary in lieu of notice, in respect of the periodic employment between the claimant and the 1st Defendant, spanning for about 22 years from 11 August 1992 when the claimant was employed as a factory worker and later converted to security man in 1994, and continued in service till 5th March 2015 when he was purportedly dismissed.
“I reject the defendants’ stance of branding the claimant as ‘casual worker’ (a term well frowned at in modern employment and labour practice) to the extent of even querying his employment status because of lack of written contract of employment, which was orchestrated by the Defendants.
“What the defendants forgot or did not draw their attention to is the fact that written employment letter is not a sine qua non for establishing employment relationship (see: S.91 Labour Act).
“The defendants also seem to have played ignorance of the legal requirement and obligation of every employer of labour in Nigeria to give an employee a Letter of Employment within three months of employment (See: S.7 Labour Act).
“Accordingly, the defendants who failed in this regard cannot, in my view, be allowed to benefit from their own wrong by denying the employment status of the claimant and benefits thereto”
Justice Ogbuanya ordered that the claimant is entitled to be paid N43, 900 being the two months outstanding salaries before his exit.
He added: “The claimant’s purported dismissal is not justified, and it is hereby declared that the first defendant wrongfully terminated the employment of the claimant.
“Relief (c)) succeeds to the extent that the claimant is entitled to payment of an amount equivalent to his one-month salary, which has been stated to be N21,950.
“Relief (d) succeeds to the extent that it is hereby ordered that the sum of N500, 000 is payable as a pay-off package to the claimant by the defendants
“The sum of money due and awarded in this judgment shall be paid by the defendants to the Claimant within one month of this Judgment.
“Otherwise, 10 per cent interest per annum shall accrue on the sum due until finally liquidated. Judgment is entered accordingly. I make no order as to cost.”
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