By Elvis Evbaruovbokhanre Asia
Case: Ifeatu Anthony Emodi v. Diamond Bank Of Nigeria Plc[1]
Judge: Hon. Justice Sanusi Kado
Date: 13/8/2024
Main issues of law
- Right to fair hearing in disciplinary proceedings
- Application of unratified International Best Practices (IBP)
- Power of the NICN to inquire into the reason for termination
- Damages for wrongful termination
Summary of facts
The claimant, who was stationed at the Enugu branch, was invited via letter to the head office of the defendant in Lagos on March 19, 2014, for a meeting scheduled for March 21, 2014. At the defendant’s office on March 21, 2014, the claimant claimed he received an email inviting him to appear before a disciplinary panel. The email stated: “You are invited to meet with the Staff Disciplinary Panel (SDP) over an alleged case of sexual harassment brought against you.” He faced the panel, was suspended, and later discharged, though the letter of discharge did not state the reason.
Court’s Decision
The court held that the claimant was not given an adequate opportunity to defend the allegation against him because the notice was insufficient and the nature of the allegations was not clearly indicated in the invitation. The proceedings were accordingly set aside. The court converted the discharge to voluntary retirement and awarded two years’ salary in damages for wrongful termination.
Legal principles relied on
Right to fair hearing in disciplinary proceedings
- When allegations of not following procedures are made, the court is called upon to determine issues external to the truth of the case, focusing instead on a threshold matter. Allegations of breach of procedure must be resolved before addressing the substantive issues of the case. Breaches of the right to be heard, a fundamental right, are threshold issues as well.
- Employees must be given an opportunity to defend themselves when allegations of misconduct form the basis of their discharge, regardless of whether this right is provided in the contract of employment – Avre v. Nigeria Postal Service (2014) LPELR-22629 (CA).
- To be given time to defend an action is to be afforded sufficient time to gather necessary materials, arrange them, and plan how to present them before the panel. It should not involve springing accusations without proper notice, which serves to disorganize and disorient the accused.
- It is no longer acceptable to rely on technicalities such as failing to plead the exact rule breached in the Staff Handbook to decide a case. When the allegation involves the denial of fair hearing, an aspect of unfair labour practices enshrined in S. 254C-(1)(f) of the Constitution, it becomes an implied term of any contract of employment in Nigeria.
Application of unratified International Best Practices (IBP)
- The NIC is obliged to apply international best practices and international labour standards, which are contained in ILO treaties or conventions and other instruments. The NIC may apply these standards, whether ratified or not, as examples of international best practices in resolving issues brought before it. This practice is not limited to Nigeria but is common in labour courts worldwide
Power of the NICN to inquire into the reason for termination
- Under the present law, as introduced by the Third Alteration Act, the NIC has the duty to inquire into the circumstances of a discharge, as enshrined in Article 9 of ILO Convention C158.
Damages for wrongful termination
- By the authority of Sahara Energy Resources Ltd v. Oyebola and Sections 14 & 19(d) of the National Industrial Court Act, two years’ salary is the approved lump sum compensation for wrongful termination
Commentary
This decision serves as a reminder to employers that employees are entitled to adequate notice of disciplinary proceedings and must be afforded fair hearing. The decision is well-founded based on the facts of the case. However, the casual reference to the power of the National Industrial Court (NICN) to apply unratified IBP was unnecessary in this instance. The parties did not raise the issue, and there are sufficient legal principles for resolving matters of fair hearing in disciplinary proceedings, as the court referenced the decision of the Court of Appeal in Avre v. Nigeria Postal Service[2].
The attitude of some NICN judges in invoking unratified IBP, as if these were part of domestic law, does not seem to align with the constitutional provision allowing the NICN to consider IBP and International Labour Standards. For unratified IBP to apply, it must arise as an issue in the case and be established by the parties. The mere fact that some NICN judges frequently refer to Convention C158 and others is not enough to make them part of our domestic law without more, as these have not been raised and proven in the cases. It is hoped that this issue will be properly settled by appellate courts in the near future to avoid conflicting decisions on the application of IBP and the resulting uncertainty in many areas of labour law, as seen in some decisions of the court[3]. The Court of Appeal may consider referring a case to the Supreme Court on this issue since labour appeals terminate at the Court of Appeal. As Hon. Justice M.N. Esowe commendably admonished, the applicability of IBP should not be undertaken arbitrarily[4].
Finally, in its attempt to emphasize the importance of IBP and international labour standards, the court went too far in generalizing that all labour courts worldwide apply unratified IBP. Interestingly, the court only referred to Botswana. A global review of labour courts shows that each country adopts different approaches to IBP. While courts may draw inspiration from international law, it is inaccurate to claim that all labour courts apply IBP as law without ratification or, in many cases, domestication.
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’
Footnotes
[1] SUIT NO: NICN/EN/11/2018. Available online at https://nicnadr.gov.ng/judgement/judgement.php?id=9171
[2] (2014) LPELR-22629 (CA)
[3] See Attah v. First Bank of Nigeria Unreported (Suit No: NICN/ABJ/233/2019) delivered on 19 January 2022 and Abdulrazaq v. First Bank of Nigeria Unreported (Suit No: NICN/ABJ/232/2019) delivered on 19 January 2022, where the NICN refused to apply the ILO Convention No. 158 on Termination of Employment (1982) on the ground that the same is not applicable in Nigeria because it is yet to be ratified and domesticated by Nigeria
[4] In the case of Mr. Olawale Nathaniel Adewunmi V Atlas Copco Nigeria Limited, SUIT NO.: NICN/LA/182/2019. The full judgment is available at https://nicnadr.gov.ng/judgement/judgement.php?id=9100