Judge: it’s demeaning to describe workers as ‘casual’

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He said the complaint was withdrawn when it was discovered that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.”