Review Of Some Significant Labour, Employment Cases In 2018

By Folabi Kuti

A far-reaching list of noteworthy cases touching on labour,
employment and workplace issues, all profoundly interesting and
offering stimulating new insights, were decided in the year under
review.

Mr. Raphael Obasogie v Addax Petroleum Development (Nig)
& Anor (Unreported suit No: NICN/LA/257/2013 judgment delivered
on December 4., 2018; per Peters J. ) presented an
opportunity to make a firm pronouncement on a familiar issue; the
employment status of a worker who appears ‘protected’ by a
statutory provision mandating employers in the oil and gas sector
to ‘apply for official approval of the Honourable Minister of
Petroleum Resources’ before disengaging any Nigerian staff
from employment. The National Industrial Court of Nigeria (NICN)
held that the statutory provision under reference did not elevate
the employment status of such a Nigerian staff into one of
statutory flavour. This, whilst noting that failure of the
defendant company to so comply before disengaging its Nigerian
staff only amounts to a crime within the meaning of Section 60B
(1), Petroleum (Drilling and Production) (Amendment) Regulations
1988.

The age-long debate about the reasonability (or, otherwise) of
‘non-compete clauses’ to protect commercially sensitive trade
secrets of an employer again came to the fore in at least two
important decisions of the NICN in the year under review. In
Infinity Tyres Limited v Mr. Sanjay
Kumar(Unreported suit No: NICN/LA/170/2014
judgment delivered on October 7, 2018; per Kanyip
J.), the
‘non-compete clause’ restricting the 1^st defendant from
joining ‘any other company in Nigeria for one year’ upon
cessation of work employment with the claimant company was noted to
be reasonable with regard to the geographic coverage and the
one-year timeline of restraint. However, it was considered too wide
and consequently unreasonable and unenforceable when the economic
activity sought to be restricted was extended to cover “any
other company in Nigeria”. In 7th Heaven Bistro
Limited v Mr. Amit Desphande
(Unreported suit No:
NICN/LA/396/2015, judgment delivered on September 27, 2018; per
Peters J.) a similar issue arose. Here the court
declared as ‘inhuman and stifling’, and consequently found to
constitute an unfair labour practice, the restrictive covenant that
‘for whatever reason even if his employment is terminated [the
employee] shall not accept employment with any other employer in
Nigeria … for a period of (3) years from the date of termination or
resignation as the case may be’.

Two cases saw a common enquiry; Raphael Adula Odama v
Federal Judicial Service Commission & 3 Ors.
(Unreported suit NICN/ABJ/136/2017; judgment
delivered on 2018-02-05, per Kanyip
J) and Iretiolu
Wemimo Dada v Ondo State Judicial Service Commission &
Anor (Unreported suit No. NICN/AK/33/2017,
judgment delivered 4^th October 2018, per Oyewumi
J.) even though with seeming divergent opinions. The
NICN, inter alia, considered the vexed question whether a
dismissed employee whose dismissal is upheld as valid on account of
either irregular or void employment status is liable to refund all
salaries and remunerations received whilst the purported employment
lasted arose.

In Odama’s the court rightly noted that the salaries
for which a refund was sought is a specie of special damages which
must be specially proven by particulars of same being given. Beyond
a bare reference to the period, the very particulars or quantum of
salaries received was not given or stated in Dada’s even
as the court, in holding the appointment of Dada as Chief
Magistrate void, granted the counterclaim asking for a refund of
all salaries received within the stated period.

Also, in the year under review, adjudicatory processes involving
the enforcement of the principal legislation dealing with
arbitration, (in relation to aspects of employment contracts) came
to focus in 3 NICN decisions. The pattern of facts in
Giuseppe Francesco E. Ravelli v Digitsteel Integrated
Services Limited (Unreported suit No:
NICN/LA/559/2016, ruling delivered on February 16, 2018; per Kanyip
J.), Chandra Prakash & 11
Ors vs Orleans Invest Holdings Limited & 4
Ors.(Unreported suit No: NICN/LA/521/2017,
ruling delivered on March 5, 2018; per Bassi J.) and
Mr. Michael Ajilore v KLM Royal Dutch Airlines
(Unreported suit No: NICN/LA/617/2017,
ruling delivered on May 31, 2018; per Bassi J) are
somewhat similar, and the verdict rendered in the preliminary
objection raised in all three cases, decidedly parallel. In
Ajilore’s, the applicant was an employee of the
respondent. He executed a training bond whilst in the employment of
the respondent. Upon resignation of employment after taking
benefits of the bond, a dispute arose as to the interpretation of
rights and obligations arising from the bond executed. The bond had
provided for an arbitration clause for the resolution of possible
disputes arising from its interpretation.

When both parties could not agree on a sole arbitrator, the
applicant applied to the court for the appointment of an
arbitrator. An objection was however successfully made to the
jurisdiction of the NICN to adjudicate on the legislation under
focus; essentially that the NICN is not within the intent of the
lawmaker when the Arbitration and Conciliation Act says ‘court’
shall be the ‘High Court’ or ‘Federal High Court’. One emerging
significant point from these decisions is the interrogation of the
propriety (or, otherwise) of the insertion of arbitration clauses
in employment contracts. To be sure, the NICN encourages resolution
of employment related disputes through its court-assisted ADR
mechanisms.

Making a claim of an unlawful invasion of his right to privacy
and dignity of his person contrary to constitutional safeguards,
the claimant in Andrew Esiri Okoto v Guinness Nigeria
Plc(Unreported suit No:
NICN/LA/72/2017; judgment delivered on November 22,
2018, per Oji J.), alleged
that his employer ‘coerced, arm-twisted and compelled him to
release his private medical records…’. The court, upon a
careful analysis of the acute conflict of evidence before it, found
the claim unmeritorious.

The facts pattern in Udenigwe Udogu v Provost, Institute
of Ecumenical Education & Anor
(Unreported suit NICN/EN/40/2015;
judgment delivered November 21, 2018, Essien J.)
amongst other things, highlights the possible legal liability that
could attend upon a former employer giving a false, malicious and
misleading work reference to the prospective employer of a former
employee. Here, the claimant, a former lecturer in the defendant
educational institution, was adjudged entitled to general damages
assessed at eight million Naira, against the defendant, for what he
would have earned if the false and ill-motivated work reference the
defendant provided had not truncated his new employment.

The NICN also held identical views in both Darlington
Eriseye Lawson v Keystone Bank Limited
(Unreported suit No. NICN/IB/48/2016;
decision made on 2018-10-09, per Kola-Olalere J.) and
Jacob Folarin v Union Assurance Co. Ltd
(Unreported suit No. LA/08/2016; decision made on
October 25, 2018, per Amadi J.).  Here it found
that the practice of an employer paying ex-gratia to some
of its ex-employees whose employments were determined in the same
or similar circumstances with that of the claimant (without making
same payment to the claimant) was discriminatory and amounted to
unfair labour practice.

Still on unfair labour practice, the purported disengagement of
an employee not following laid down process, coupled with an
unlawful denial of earned promotion was frowned at in Dr.
Kayode Afolayan v UNILORIN (Unreported suit
No: NICN/IL/16/2017; decision made on November 27, 2018, per
Adewemimo J.) In Mrs. Gloria Chukwudi-Nneke v
Registered Trustees of Dowen College, Lagos
(Unreported suit No: NICN/LA/351/2014, judgment
delivered on 2018-05-10, Peters J.) the defendant was
asked to pay damages to the claimant ‘for the manner
in which she was disengaged by the defendant more importantly given
her status as a pregnant woman’.

On the quality of evidence required to establish that
redundancy, if declared, does not follow the due process of law,
the NICN, in Daniel Onoja v CCECC Nig.
Ltd(Unreported suit No: NICN/ABJ/284/2015,
judgment delivered on 2018-12-06; per Anuwe J.)
 held that there was no evidence of the specific facts
establishing the allegation or claim of the wrongfulness of the
redundancy alleged. In Hamzat Abiodun Wasiu & 8 Ors v
Altech West Africa Nig. Ltd
(Unreported suit No: NICN/LA/263/2012
; judgment delivered on 2018-02-16, Essien J.
), the court held that there was nothing
before it to suggest that the services of the claimant were
disengaged on the basis of redundancy, and consequently he could
not take benefit of the accrued terminal benefit together with
compensatory benefits indicated in the Employee Handbook. Still on
redundancy, a point of note was further made in HPSSSA v
Tourist Company of Nigeria Plc
(Unreported suit No: NICN/ABJ/50/2014,
judgment delivered on 2018-07-16, per Kanyip J.) that
an employee cannot claim for redundancy (on the one hand), and
retirement benefits (on the other hand).

Olusanya Adeosun v Stag Engineering Nig. Ltd
(Unreported Suit No: NICN/LA/617/2015, judgment
delivered on October 30, 2018; per Kanyip J.
  and Mr Bala M. Yesufu
v Nigeria Breweries Plc (Unreported suit No:
NICN/LA/172/2015, judgment delivered on 23 November, 2018; per.
Ogbuanya J.) bring to sharp focus the need for clarity and
precision in HR recruitment and disengagement documentation.
Evidently the issues for determination did not lend themselves to
an easy answer from the evidence. The court, in determining what
ought to be the required notice period to be given by the claimant
when opting for early retirement, specifically directed that the
defendant company should ‘take immediate steps to include and
incorporate in the Defendant’s HR Policy and Employee Handbook the
entitlement conditions and packages for Early Retirement as well as
the Exit Notice Period’ .

With workplace injuries and accident, Mr Saheed Saula v
Atiku Security Company Limited (Unreported Suit No.
NICN/LA/258/2013, judgment delivered on October 30, 2018; per
Kanyip J.)  and Ofou Meshack v Nigerian
Breweries Limited(Unreported suit No:
NICN/LA/549/2014, judgment delivered on 2018-09-04; per
Obaseki-Osaghae J.) re-affirm the position that the
injured employee must lead credible evidence to establish that the
accident for which he makes a claim for compensatory damages
occurred as a result of the negligent act of the employer.

Consistent with the thrust of arguments on a finding of a
wrongful dismissal, the NICN in ASP Oloke Richard v Police
Service Commission (Unreported suit No:
NICN/LA/434/2013, judgment delivered on May 31^st, 2018;
per Adejumo J. President, NICN) declared that the
purported dismissal of the claimant’s appointment as a police
officer in the service of the defendants was illegal, ineffectual
and unconstitutional having been done in the breach of the
claimant’s rights to fair hearing and Rules and Regulations
governing his contract of service. Owing to the nature of the
employment status in Mr. Bamikole Jeremiah Lekan v Union
Bank Nigeria Plc (Unreported suit No:
NICN/LA/158/2016, judgment delivered on October 25, 2018; per Amadi
J.) the purported dismissal was converted to
early retirement.

It seems fairly clear that the NICN will not allow a former
employee, except where the contextual facts avail, to seek to avoid
fulfilling contractual obligations; for example, repayment of
loans, on the excuse that the loss of employment has made it
impossible to repay the loans advanced in the course of the
employment relationship. It was the case of a Housing Loan in
Mrs Kikelomo Kola-Fasanu V Prestige Assurance Plc
(Unreported suit No: NICN/LA/25/2016,
judgement delivered April 25, 2018; per Kanyip J.)
and Ms. Kate Iyamah v First Bank of Nigeria Plc
(Unreported Suit No: NICN/LA/367/2012; decision made on
November 24, 2018; Obaseki-Osaghae J.); and a car
loan in Mr Adebayo Gbolahan Adepoju v. Coscharis
Group (Unreported Suit No. NICN/LA/409/014,
judgment delivered on 16th February 2018, per Kanyip J.) .
The court in Kola-Fasanu made a beautiful distinction
characterizing the contract of employment and the personal loans
between the parties as two distinct subject-matters that are not
mutually dependent before the right to determine a contractual
relationship can be exercised.

Restating the position under the new dispensation, the court in
Bessie Udhedhe Ozughalu v Bureau Veritas Nigeria
Limited (Unreported
suit: NICN LA/626/2014, decision made on 2018-03-20 , per Kanyip
J.) and Enyinnaya Amugo & 93
Ors(Unreported suit: NICN
LA/258/2016, decision made on 2018-0-13 , per Kanyip
J.) ruled that proof of membership of a trade union
is key to recoverability under a collective agreement, whether
specifically incorporated into the contract of employment of
employee to make binding.

Artificial intelligence is here, and the technology-enabled
ridesharing app brings a cab to one’s doorstep within a few minutes
of requesting for same. The drivers, mainly owners of the cab, are,
literally, up in arms against the compan(ies) in many parts of the
world where Uber, Taxify and those other ridesharing business
services operate. They are asking that the court interpret whether
the drivers are independent contractors or direct employees of
Uber, Taxify etc. A favourable outcome that they are direct
employees of Uber, Taxify et al would entitle them to numerous
employment benefits. The UK Court of Appeal in UBER B.V v
Aslam ; noting “the practical reality of the
relationships” as favouring ‘worker’ only recently
(judgment delivered on December 19, 2018)
 affirmed the U.K. employment tribunal’s decision that
the company’s drivers are definitely
employees^[1] and not independent
contractors. In Nigeria, a class action was filed on behalf of UBER
drivers seeking similar interpretation. Citing lack of proper
particulars, the court dismissed the case(Unreported
suit No:
NICN/LA/546/2017 Oladapo
Olatunji & Anor v Uber Technologies System Nig. Ltd; judgment
delivered on December 4, 2018, per Kanyip J.) as
being ‘speculative, 
academic and hypothetical’. The court, however, did
make a glancing reference to the  wide amplitude of Section 91
of the Labour Act[1] CAP L1, LFN 2004 whose
ingenuity/imprecise ambit, if a similar question is posed in the
future, seem to favour the employee classification.

[1] CAP L1, LFN 2004

Kuti is a Partner in the law offices of Perchstone & Graeys
Lagos.

Maintenance Policy will Drive SMEs- FG

The Honourable Minister of Power Works and Housing, Mr.
Babatunde Raji Fashola, SAN has made public the approval of a
National Public Buildings Maintenance Policy for the country, by
the Federal Government of Nigeria. This was made known at a Press
Briefing held in the Ministry’s office Headquarters in Abuja.

Mr. Fashola said the approval of the Maintenance Policy marks an
end to the era of agonizing on maintenance in the country. He
highlighted the fact that no other governments before now deemed it
fit to approve such a policy but the President Muhammadu Buhari-led
Administration has acted in the right direction.

He said “if there is anything I have participated in as the
Federal Minister over the past three years that I’m particularly
proud of, it is this Maintenance Policy”. Maintenance, he
emphasized is not a cultural issue but an economic issue, an issue
viable for economic prosperity.

The Minister disclosed that the Memorandum presented to the
Federal Executive Council (FEC) revealed that only about 23% of
employment in the built industry, involves design, governance and
construction, while maintenance carries the lion share.

This policy, in the big picture, would culminate into
incremental employment opportunities within the country and
eventual output in the Gross Domestic Product (GDP), hence growth
for Nigeria’s Small and Medium Enterprise (SMEs) and the economy as
a whole, he explained.

Fashola called on all relevant stakeholders including the office
of the Head of Civil Service of the Federation, the National
Assembly, Bureau for Public Procurement, National Orientation
Agency and other stakeholders to come together in a common purpose
to achieve the desired goal.

Speaking earlier, the Head of Civil Service of the Federation,
Mrs Winifred Oyo-Ita, who was represented by the Director, General
Services Office (GSO/ OHCSF) Mrs. Toyin Alade, expressed delight
that the Policy will open a new vista in the overall maintenance of
public assets and facilities in the country.

The Chairman, House Committee on Housing, Hon. Mahmud Mohammed
expressed happiness over the approved Policy, stressing that this
would reduce wastage and increase labour and productivity.

Also, Deputy Chairman, House Committee on Works, Hon. Dr.
Abubakar Kannike opined that if maintenance was being
institutionalized, the government will in turn save cost. He
admonished Nigerians to adopt in the maintenance culture over their
private properties as well.

Mrs Adenike Adekanbi, the Consultant charged with drafting of
the Memorandum, reiterated that as it were, the future of public
infrastructure depended wholly on the survival of the Policy
recently approved by the government.

While presenting an overview of the Policy Framework, she
revealed that a pilot study conducted using different public
infrastructure to generate data from site analysis and condition
assessments to determine the current status of the buildings,
revealed the enormous untapped employment potentials available.

Mrs. Adekanbi said if such analysis were conducted on all public
buildings, there was bound to be a proliferation of employments for
artisans, welders, plumbers, electricians and so on.

The Consultant added that the policy trust asserts all public
buildings to be maintained in a manner to preserve their values and
ensure that they serve the purpose for which they were built.

Mrs. Renate M. Michael
PIO(Press &PR)
For: Director Information