➥ CASE SUMMARY OF:
Abisola Akinsete v Westerngeco Seismic Nigeria Limited (2014) – NICN
by “PipAr” B.C. Chima
National Industrial Court of Nigeria – NICN/LA/516/2012
➥ JUDGEMENT DELIVERED ON:
November 27, 2014
➥ AREA(S) OF LAW
Work place harassment.
➥ NOTABLE DICTA
⦿ WHERE WITNESS DEPOSITION IS SIGNED IN A LAWYER’S OFFICE
Under cross-examination, DW3 admitted that he signed his deposition in the chambers of his counsel. However, there is no evidence before me that DW3 did not present himself before the Commissioner for Oaths to be sworn. The name and signature of the Commissioner for Oaths is on the deposition together with the date it was sworn. There is therefore a presumption of regularity in the statement on oath by virtue of Section 168 of the Evidence Act 2011. See Auta v Olaniyi  4 NWLR (Pt 863) 394. — O.A. Obaseki-Osaghea, J.
⦿ CIVIL SUIT IS DECIDED ON THE BALANCE OF PROBABILITIES
Now, civil suits are decided on the balance of probabilities, on the preponderance of evidence. The burden of proof is not static but shifts and the onus of adducing further evidence is on the person who will fail if such evidence is not adduced. See Osuji v Eke  16 NWLR (Pt 1166) 81. — O.A. Obaseki-Osaghea, J.
➥ LEAD JUDGEMENT DELIVERED BY:
Justice O.A. Obaseki-Osaghae
⦿ FOR THE APPELLANT
⦿ FOR THE RESPONDENT
➥ CASE HISTORY
The claimant filed this complaint against the defendant on October 10, 2012 seeking the following relief, inter alia: A declaration that the purported oral termination of 9th October, 2008 as executed by the agents of the defendant in its offices and on behalf of the defendant is contrary to the contract of employment dated 27th April, 2007.
The claimant’s case on the pleadings is that she was employed by the defendant as Marketing/Admin. Administrator by letter of offer of appointment dated 27th April, 2007 and she accepted the offer and assumed duty in the defendant’s Lagos offices. The claimant pleaded that immediately she assumed duty she brought to bear on her job her over 10 years of experience in a similar role with Chevron Nigeria Limited which resulted in a significant and tremendous improvement of the defendant’s business processes. That suddenly and without any prior incident, on 9th October, 2008, three expatriate employees of the defendant namely Miles Mayne, Mike Earney and Wesam Aboutawakia summoned her and surreptitiously and strangely made an oral declaration that her contract of employment has been terminated.
The case of the defendant on the pleadings is that the claimant was employed by letter of offer of employment dated 27th April 2007. The defendant pleaded that it already had robust and well-organised processes in place which were not improved in any way by the claimant’s employment. That only Mike Earney and Wesam Aboutorika had discussions with the claimant on 9th October 2008 in its offices with regard to an on going inquiry and that contrary to the claimant’s allegation, she was neither subjected to any form of racial abuse or exposed to any other kind of abusive language by it or any of its agents, servants or privies as that would be contrary to its policy.
➥ ISSUE(S) & RESOLUTION
I. Whether or not the claimant’s employment was orally terminated?
RULING: IN CLAIMANT’S FAVOUR.
A. “From the evidence reproduced, DW3 expects this court to believe that he as acting Country Manager had a meeting with the claimant in respect of an on going investigation that he knew nothing about and was not privy to, but was simply an observer at the meeting. He also expects this court to believe that he cannot recollect at whose request the claimant left the laptop and identity card. I find that DW3 is not a witness of truth. His evidence reproduced above is most improbable. I therefore reject his evidence that he knew nothing about the on going investigation and that the claimant was not harassed and exposed to abusive language and racial epithets; that the claimant’s appointment was not orally terminated. See Marcus Ukaegbu & Ors v Mark Nwololo  3 NWLR (Pt 1127) 194, Ayanwale v Atanda  1 NWLR (Pt 68) 22, Chinwedu v Mbamali  3-4 SC 31. The evidence of DW1 and DW2 that the claimant was not harassed, verbally abused and her appointment verbally terminated on October 9, 2008 is hearsay and so is hereby rejected as inadmissible as they were not present at the meeting. There is no evidence that the defendant gave the claimant back her identity card which would give her access to its premises to perform her duties.”
B. “The defendant’s conduct in presenting the claimant with both a dismissal and a redundancy document to choose from is a clear case of constructive dismissal. On the balance of probabilities and preponderance of evidence, the only proper conclusion to arrive at is that the claimant was harassed, verbally and racially abused, and orally terminated by the defendant and its agents on October 9, 2008 in breach of the contract of employment and I so hold.”
C. “Finally it sent a letter dated December 5, 2008 terminating her appointment and paying one month’s salary in lieu of notice in accordance with the employee manual. Certainly, these belated actions were an exercise in futility as the wrongful act of oral termination by the defendant and its agents brought the employment contract to an end on October 9, 2008. The claimant ceased to be an employee of the defendant from that date. This is evidenced by the fact that she had stopped work. I find that all the belated actions of the defendant are a pretext to justify the intimidation, harassment and oral termination of the claimant’s employment. I hold that the letter of termination dated December 5, 2008 is null and void.”
II. Whether on the pleadings and evidence, the claimant ought to be entitled damages?
RULING: IN CLAIMANT’S FAVOUR.
A. “On the issue of damages, there is no evidence in support of an award for special damages. This is a relief that must be strictly proved. It is therefore refused. There is no doubt that the claimant has been injured by the verbal and racial abuse and harassment she had to undergo at the hands of the defendant and its agents. Her integrity, pride, dignity and sense of self worth have been affected by the wrongful actions of the defendant. She is entitled to an award of general damages pursuant to the provisions of section 19 (d) of the National Industrial Court Act 2006. Consequently, I award the claimant the sum of N2,856,600.00 (Two Million, Eight Hundred and Fifty Six Thousand, Six Hundred Naira) being the equivalent of eighteen month’s base salary for violation of her right to dignity of person guaranteed under Section 34 (1) (a) of the 1999 Constitution and for harassment. I make no award for the wrongful termination because I find that the defendant paid the claimant one month’s salary in lieu of notice as part of its belated actions. The defendant is to pay the claimant her outstanding terminal benefits.”
III. Whether there has been an infringement of the claimant’s right to dignity?
RULING: IN CLAIMANT’S FAVOUR.
A. “At this juncture, I must state that there is no room for harassment and personal insult of any employee in the workplace. The claimant is a Black African woman. The defendant’s agents have insulted the claimant and used ethically derogatory words ‘fucking nigger’. Globally, this is a racial epithet that is offensive to the Black race in general. It is degrading treatment for a Black person to be called ‘a fucking nigger’. Both words are abusive and are uttered in total disrespect of the dignity of a person. These words fall squarely within the provisions of Section 34 (1) (a) of the 1999 Constitution. See Uzoukwu v Ezeonu II  6 NWLR (Pt 200) 708 at 778. These words have no place in any workplace especially in a company such as the defendant. It has been used in the defendant’s premises. I find this to be reprehensible and an abuse of power by the defendant’s agents. The claimant was a subordinate officer unable to defend herself against these hierarchical superiors. I find that these offensive words are an affront to the dignity (especially workplace dignity) of the claimant and I so hold.”
“For all the reasons given above, I make the following declarations and orders:
- The oral termination of the claimant’s employment on 9th October 2008 as executed by agents of the defendant in its offices and on behalf of the defendant is contrary to the contract of employment dated 27th April, 2007.
- The oral termination executed by the defendant through its agents is in breach of the contract of employment and is wrongful.
- The letter of termination dated 5th December 2008 is a pretext to justify the harassment and oral termination of 9th October 2008 and is therefore null and void.
- Harassing and pressurizing the claimant into taking a decision capable of being detrimental to her interest is an unfair labour practice.
- The defendant and its agents have breached the provisions of Section 34(1)(a) of the 1999 Constitution and infringed on the claimant’s right to dignity of her person.
- The defendant is to pay the claimant the sum of N2,856,600.00 (Two Million, Eight Hundred and Fifty Six Thousand, Six Hundred Naira) as damages for infringement to her right to dignity and harassment.
- The defendant is to pay the claimant her terminal benefits.
- All sums to be paid within 30 days from the date of this judgement.
- Costs of N50,000.00 is to be paid by the defendant to the claimant. Judgement is entered accordingly.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)