On Who determines amount of penalty to be paid by company in default of payment of pension fund as at when due - (Atere v. Steam Broadcasting Communications Limited [2015] 59 N.L.L.R (Part 206) 534 541

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On Who determines amount of penalty to be paid by company in default of payment of pension fund as at when due -

(Atere v. Steam Broadcasting Communications Limited   [2015]  59 N.L.L.R (Part 206)  534    

     Where a company remitting pension contribution of its employee, the amount of penalty to be paid by the defendant shall be  stipulated by the Commission. The said penalty shall not be less than two per cent of the total contribution that remains unpaid for each month or part of each month the default continued.  This is in line with section 11 (7) of the Pension Reform Act, 2004, which is to the effect that the penalty to be stipulated by the commission provided that the penalty shall not be less than 2 per cent. In the instant case, both parties are ad idem that on the 19^th of November, 2010 claimant was paid the sum of N256, 827.50 as shown by Exhibit SAM 4 as her Pension entitlement. However the point of divergence is, the exact amount to be paid as penalty. It is counsel’s submission that the defendant cannot on its own decide to be liable to penalty to the tune of two per cent that it should be stipulated by the commission. The defence having agreed with the submission of the claimant that the defence cannot decide its amount liable urged the court to strike out the claims of the claimant under this heading as same is not ripe for adjudication until the commission has so decided the amount to be stipulated as liability. The court found the argument of the defence counsel cogent going by the provision of Section 11 of the Pension Reforms Act.

      Section 11 (7) of the Pension Reform Act, 2004 provides that;

“Any employer who fails to remit the contributions within the time prescribed in paragraph (b) of subsection (5) of this section shall, in addition to making the remittance already due, be liable to a penalty to be stipulated by the commission provided that the penalty shall not be less than 2 per cent of the total contribution that remains unpaid for each month or part of each month the default continues and the amount of the penalty shall be recoverable as a debt owing to the employees retirement savings account as the case may be.” (Pp. 556-557, Paras. B-C)

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Ekhator v. Alliance Autos Nigeria Limited & Ors. [2015] 59 N.L.L.R (Part 205) 424

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On Importance of letter of employment and staff handbook in contract of employment -

{Ekhator v. Alliance Autos Nigeria Limited & Ors. [2015]  59 N.L.L.R (Part 205) 424 }

        The letter of employment and the staff handbook or conditions of service form the constituent of contract of employment. In the instant case, both documents were germane as they contain the contract terms and condition. (P. 442, Paras. G-H)

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On Whether the Governor of a State is a person contemplated under section 2(a) of the Public Officers’ (Protection)- (Abubakar & Anor. v. Executive Governor, Gombe State & Ors. [2015] 59 N.L.L.R Law (Part 205) 334 -

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On Whether the Governor of a State is a person  contemplated under section 2(a) of the Public Officers’ (Protection) Law - {Abubakar & Anor. v. Executive Governor, Gombe State & Ors. [2015]  59 N.L.L.R  Law (Part 205)  334}     

        The intention of the legislature is to provide protection for public officers, corporate and unincorporate bodies in the discharge of their public assignments. Used in the wide sense, the term any person will cover both natural human being and other bodies, corporate and unincorporate, thus the State Executive Governor is a person and therefore covered under the aforementioned law. In the instant case, the State Governor is a public officer and ‘any person’ within the meaning of section 2 (a) of the Public Officers’ (Protection) Law, Cap. 127 of the Laws of Gombe State, 1991. [Alhaji Aliyu Ibrahim v. Judicial Service Committee, Kaduna State & Others (1998) 14 NWLR (Pt. 584) 1 at page 49 referred to.] (P. 380, Paras. D-G)

On Validity of co-employer status between two employers and an employee (Ogbodu v. Global Fleet Oil & Gas Ltd. & Anor. [2015] 55 N.L.L.R (Part 187) 201) -

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 Ogbodu v. Global Fleet Oil & Gas Ltd. & Anor.  [2015]  55 N.L.L.R (Part 187)  201

1.    On Validity of co-employer status between two employers and an employee -

        Per B.B. Kanyip, J (Pages 321-322, Paras. E-F)

   “In appropriate cases, the courts have upheld the fact of co-employer status between two employers in relation to an employee as was the case in Onmalobi v. NNPC and Warri Refining and Pertrochemical Company (2004) 1 NLLR (Pt. 2) 301. So for the defendants to think that there can be no two employers in relation to one employee is to loose sight of current realities in the world of work. It is for this reason that the defendants argued that entitlement to a leave allowance is reserved by the 2nd defendant exclusively for its own employees that were recruited directly and separate from employees seconded to it by the 1st defendant. Exhibit C1 took time out to brag to the claimant about the three groupings in the conglomerate of the defendants and talks of the claimant as a member of the team. The claimant was invited to indicate which of the three companies she wants to work in. Exhibits C3(a) and C3(b) then finally posted the claimant to Legal Department of the 2^nd defendant as Head Legal Department with effect from 10^th September, 2009. How can the defendants, after all of this, argue that only the 1^st defendant is the employer of the claimant? It is my finding that a co-employer status exists here and both defendants are individually and jointly employer(s) of the claimant. In this sense, the argument of the defendants that leave allowance enjoyed in the 2^nd defendant is not accordable to the claimant because she was not directly recruited by the 2^nd defendant is nothing but rhetoric aimed at entrenching an unfair labour practice in the workplace.... It is accordingly my finding and holding that both defendants are co-employers of the claimant and the claimant is entitled to all benefits accruable to employees as may be given as such by the defendants. The argument of the defendants that the claimant cannot enjoy leave allowance from the 2^nd defendant smacks of unfair labour practice and so is rejected. Once the claimant can prove entitlement to it, she will be accorded the said leave allowance.”

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On Quantum of damages available for wrongful termination or dismissal -

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GEIDAM v. NEPA [2015] 60 N.L.L.R (Pt. 210)329 P. 361, Paras. E-H, P. 362 Paras. C-E)

On Quantum of damages available for wrongful termination or dismissal -

The measures of damages recoverable in situations of wrongful termination or dismissal of a servant are determined by what the employee would have earned over the period of notice required for the determination of the employment and not salaries he would have earned up to the time of employee’s retirement. The length of service, gratuity or retirement age, et cetera have no role to play in cases of wrongful dismissal of a servant. The method of assessing the damages recoverable by the plaintiff is the amount he would have earned over the period of notice which in the instant case was 3 months. [Onalaja v. African Petroleum Ltd. (1991) 7 NWLR (Pt. 206) 691; Nom Ltd v. Daura (supra); ACB Ltd v. Ufondu (supra); NPMBV v. Adewunmi (1972) 11 SC III; Onalaja v. African Petroleum (1991) 7 NWLR (Pt. 206) 691; Chukwumah v. Shell Petroleum Dev. Co. Ltd. (1993) 4 NWLR (Pt. 289) 512; International Drilling Co. Nig. Ltd. v. Ajijola (1976) 2 SC 115; Akinfosile v. Mobil (1969) NCLR. 253; WNDV v. Abimbola (1966) 1 NLR 159;  Mayne and McGregor on Damages, 12th Ed. Paragraph 608, Macfoy v. UAC  (1961) 3 All ER. 1169 referred to.] (P. 361, Paras. E-H, P. 362 Paras. C-E)

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           1.     Debbie Abu (Assistant Managing Editor/Business Development Manager) – 07038436051

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