Wale Igbintade
The National Industrial Court (NIC) in Ibadan, Oyo State, has dismissed a wrongful dismissal action brought against Lafarge Cement Nigeria Plc by a former employee, Sam Ndionyema.
Justice Opeoloye Ogunbowale, in her judgement held that the claimant’s employment was properly terminated and that he is not entitled to the damages as claimed.
The court aligned with the submissions of the lawyer to Lafarge Africa Plc, Professor Taiwo Osipitan (SAN), that for the claimant to be entitled to pre-judgment interest, he must first lead evidence before the court that there was an agreement, mercantile usage, or statute, which entitles him to claim the pre-judgment interest.
The claimant, Sam Ndionyema, had in a suit marked NICN/IB582017, sought a declaration that the termination of his employment without cause, reason, or justification and in absence of any wrongdoing is wrongful, oppressive, and against global best practice in labour and employment, and accordingly liable to be set aside.
Reviewing the facts of the case, Justice Ogunbowale stated that defendant’s predecessor, Lafarge Cement Wapco Nigeria Plc, employed the claimant on December 17, 2011, however, the retirement age of staff of Lafarge Cement Wapco Nigeria Plc was 55 years.
The claimant, who was 50 years old when he was employed by Lafarge Cement Wapco Nigeria Plc, was served with a letter reminding him that he was due to retire from Lafarge Cement Wapco Nigeria Plc on February 17, 2016, on the attainment of the age of 55 years.
Lafarge Cement Wapco Nigeria Plc subsequently merged with several companies to form the defendant (Lafarge Africa Plc) and new contracts of employment were issued to some staff of Lafarge Cement Wapco Nigeria Plc, who were to be employed by the defendant.
However, in view of his pending retirement, the claimant was not given any letter of employment, having been scheduled to retire, and there was no letter of protest by the claimant that he was not issued with a letter of employment.
On February 17, 2016, the claimant signed a Consultancy Agreement with the defendant for a definite period of 12 months. The said Consultancy Agreement made it clear that the claimant was not a staff of the defendant but an independent consultant.
It was agreed that either party could terminate the consultancy service agreement by giving three months’ notice or paying three months’ salary in lieu of notice.
However, on January 9, 2017, the defendant terminated the consultancy agreement by paying the claimant 3 months’ salary in lieu of notice, which the claimant accepted.
The claimant, who had delayed compliance with necessary formalities for payment of retirement benefits was also paid retirement benefits with respect to his retirement from Lafarge Cement.
After unconditionally accepting the three months’ salary in lieu of notice and retirement benefits, the claimant commenced this suit challenging the validity of his retirement and the validity of the consultancy agreement.
However, Justice Ogunbowale in her judgement held that: “I have looked closely at the evidence led by the claimant, and there is no evidence that he was forced to enter into the consultancy agreement as alleged by him. He even admitted under cross-examination that he did not sign exhibit P (Termination of the Consultancy Agreement) at gunpoint. There is a need for the court to reiterate that the Consultancy Agreement was a fallout of the claimant’s retirement from the defendant and the essence of the agreement is to ensure that claimant was in a position to still earn some income after his retirement.
“I find and hold that from the evidence before the court, the claimant was to retire from WAPCO upon clocking 55 years as stated on Exhibit J, and so he was properly retired. I also hold that he has not established before this court how the defendant breached his conditions of employment.
‘’The claimant’s claim for N24, 040,685.28 (Twenty Four Million, and Forty Thousand, Six Hundred and Eighty-Five Naira, Twenty Eight Kobo) being the total sum which he should have earned in the remaining months of his consultancy, is refused.
“Claim for N10, 000,000 ‘sweetener’ in lieu of profit share, is refused.
‘’Claim for N5,000,000 general damages for the hardship and trauma occasioned to the claimant by the defendant’s wrongful termination of his employment and denial of his benefits and entitlements, is also refused.”
However, the court held that since the award of post-judgment interest is at the discretion of the court, the claimant is entitled to 10 percent interest on the judgment sum of N8, 734,070.48 from the date of the judgment until the judgment sum is finally liquidated.
The court also awarded a cost of N200, 000 in favour of the claimant.
