By Elvis Evbaruovbokhanre Asia
Case: Congo Adezor V. Intels Nigeria Limited [1]
Judge: Justice Bashar A. Alkali
Date: 16/01/2025
Main Issues of Law:
- Jurisdiction of the National Industrial Court over defamation and other tortious actions
- Effect of pleadings on the construction of terms of employment
- Termination of employment based on an investigative panel report
- Measure of damages for wrongful termination of employment
Summary of Facts:
The Claimant instituted the action, claiming wrongful dismissal and defamation. The Claimant’s case was that he was dismissed for alleged gross misconduct without compliance with Article 15 of the Collective Agreement of Senior Staff Conditions of Service between Intels Nigeria Limited and the Senior Staff Association of Statutory Corporations and Government-Owned Companies (SSASCGAC) (Exhibit CW002), which mandates the setting up of a disciplinary committee to investigate allegations of gross misconduct.
The Defendant argued that the Claimant was subjected to a disciplinary process to investigate the gross misconduct. According to the Defendant, the Claimant was queried, investigated by a panel, and summarily dismissed for complicity and collusion with one Christopher Udotong in the unauthorized movement of the Defendant’s roofing sheets to an unknown destination. The Defendant also sought to deny the applicability of Exhibit CW002, asserting that it was not contemplated in the Claimant’s letter of employment.
Evidence presented before the court revealed that although the Claimant was invited to Port Harcourt and met with some staff of Prodeco Limited (a sister company) for an investigation, no disciplinary committee was constituted to investigate the Claimant for the alleged gross misconduct by the Defendant. The disciplinary committee commenced its proceedings on 9 August 2021, yet the Claimant was served with a query (Exhibit CW007) on 20 August 2021, answered it on 21 August 2021, and was dismissed on 23 August 2021.
Court’s Decision:
The court held that it lacked jurisdiction to determine the Claimant’s case relating to defamation.
Regarding wrongful dismissal, the court found that the Claimant was wrongfully dismissed because the Defendant failed to constitute a disciplinary committee in line with Clause 15 of Exhibit CW002. Paragraph C, Article 11 of Exhibit CW002 makes it mandatory to set up a disciplinary committee comprising management and association representatives in cases of gross misconduct. Although Exhibit CW002 was not expressly referenced in the Claimant’s letter of employment, both parties made reference to it in their pleadings, and the Defendant did not challenge its applicability, thereby binding them to it.
The court also ruled that the Claimant was due for retirement in January 2022. Consequently, it ordered the Defendant to pay the Claimant’s salaries up to that date.
Legal Principles Relied Upon:
- Jurisdiction of the National Industrial Court over Defamation and Other Tortious Actions:
Recent decisions of the Court of Appeal in Adeniyi Olushola & Anor v. Adolphus Yakubu (2021) LPELR-56015(CA), Adeniyi Olushola & Anor v. Billa Saliu (2021) LPELR-56027(CA), Adeniyi Olushola & Anor v. Giwa Friday (2021) LPELR-56019(CA), and UBA & Ors v. Oladejo (2021) LPELR-55320(CA) affirm that the jurisdiction of the National Industrial Court does not extend to criminal matters, tortious actions such as malicious prosecution, defamation, assault, detinue, or any other liabilities in tort.
- Effect of Pleadings on Construction of Terms of Employment:
Ordinarily, the terms and conditions governing employment are contained in the letter of employment. If freely and unconditionally accepted, this letter constitutes a binding and enforceable contract. Where parties reference additional documents in their pleadings and do not challenge their applicability, they are bound by such documents.
- Termination of Employment on Investigative Panel Report:
An employer cannot dismiss an employee solely based on an investigative panel report. A disciplinary panel must be constituted to determine the employee’s guilt or innocence.
- Measure of Damages for Wrongful Termination of Employment:
The normal measure of damages for wrongful termination is the amount the employee would have earned during the notice period required for lawful termination, less any amount the employee could reasonably have earned in alternative employment.
Commentary:
This decision serves as a timely reminder of the need for employers to strictly comply with procedures for termination of employment as stipulated in the terms of employment. Best practices dictate that after an investigative panel report, a query must be issued, followed by the constitution of a disciplinary committee to investigate allegations of gross misconduct.
Employers must exercise caution, especially when dealing with sister companies. Disciplinary proceedings conducted by a sister company may not legitimize termination carried out by the employer.
The decision also provides clarification on the measure of damages for wrongful termination in light of the court’s power to award compensatory damages. The court’s approach—that damages should reflect the amount the employee would have earned until lawful termination—raises potential challenges in cases where the employee has many years left before retirement. A flat-rate award, such as two years’ salary, often applied in similar cases, might be preferred.
Finally, the decision highlights the ongoing challenges in interpreting the expansive jurisdiction of the National Industrial Court concerning tortious claims arising from employment disputes. Despite conflicting decisions by the Court of Appeal and the NICN, recent judgments maintain that the NICN lacks jurisdiction over defamation and other tortious claims. This bifurcation forces aggrieved employees to pursue separate claims in different courts, undermining the holistic intent of the Constitution’s provisions for employment-related disputes.
Elvis E. Asia is the Managing Partner of Law Future Partners and a PartneratBols Attorneys, Nigeria. He has an LLB, Ambrose Alli University; and LLM from the University of Lagos. He is a member of the Chartered Institute of Arbitrators, United Kingdom, Institute of Chartered Secretaries and Administrators of Nigeria and the Chartered Institute of Taxation of Nigeria. Elvis is the author of the book ‘Oil and Gas Insurance and Nigeria’s Local Content Policy’
[1] SUIT NO: NICN/YEN/04/2022. Available online at https://nicnadr.gov.ng/judgement/judgement.php?id=9577