SYLVESTER AZUKA EGWUATU
V.
DIAMOND BANK PLC
NATIONAL INDUSTRIAL COURT OF NIGERIA
LAGOS JUDICIAL DIVISION
NICN/LA/439/2013
HON. JUSTICE OYEWUMI OYEBIOLA .O
17th FEBRUARY, 2015
CONTRACT OF EMPLOYMENT - Constructive Dismissal - When an employer can be said to constructively dismiss an employee.
COURT - Whether can speculate.
DISMISSAL - Constructive Dismissal - When an employer can be said to constructively dismiss an employee.
DOCUMENT - Content of a document - Where clear - Principle of interpretation in respect of.
EVIDENCE - Facts pleaded - Where there are no evidence in proof of - Effect of.
EVIDENCE - Proof - Burden of proving an assertion - On whom lies.
LABOUR LAW PRACTICE - Constructive Dismissal - When an employer can be said to constructively dismiss an employee.
MASTER AND SERVANT - Constructive Dismissal - When an employer can be said to constructively dismiss an employee.
PRACTICE AND PROCEDURE - Content of a document - Where clear - Principle of interpretation in respect of.
PRACTICE AND PROCEDURE - Court - Whether can speculate.
PRACTICE AND PROCEDURE - Evidence - Burden of proving an assertion - On whom lies.
PRACTICE AND PROCEDURE - Evidence - Facts pleaded - Where there are no evidence in proof of - Effect of.
PRINCIPLES OF INTERPRETATION - Document - Where content of are clear - Principle of interpretation in respect of.
ISSUE:
Whether the claimant has substantiated his case to be entitled to reliefs sought.
FACTS:
The claimant was employed as a Banking Officer by the defendant's bank in October 2005. His appointment was confirmed after six months of working with the defendant. On April 29, 2008 he was promoted to Senior Banking Officer Grade with effect from May 1st, 2008. Claimant was a Business Development Manager of the defendant bank BBA2, Branch Lagos from October, 2008 to June 1st 2012. On or about the 1st of June, 2012, the management instructed him to tender his resignation letter on the understanding that his terminal benefits will be paid to him and this he wrote by hand on the same day. On the 9th of June, 2012 he received his letter of resignation from the defendant Bank.
Claimant stated further that his last basic salary was N109,856.78 (One Hundred and Nine Thousand, Eight Hundred and Fifty-Six Naira, Seventy Eight kobo) and the defendant credited the sum of N2, 577,826.59(Two million Five Hundred and Seventy Seven Thousand, Eight Hundred and Twenty and Six Naira, Fifty Nine Kobo) as his terminal benefits. That upon forced retirement from the defendant’s bank, the sum of N18,780,684.86 (Eighteen Million, Seven Hundred and Eighty Thousand, Six Hundred and Eighty Four Naira, Eighty six Kobo) was debited from his account by the defendant representing loans he officially gave to customers. Claimant averred that the loans were officially applied for by the customers and same were duly processed and approved by the bank. That he did not guarantee the said loans and some of the customers have repaid the loans.
Claimant averred that pursuant to his forced resignation by the defendant, the sum of N1,099,163.26 (One Million Ninety–Nine Thousand One Hundred and Sixty Three Naira Twenty Six kobo) was deducted from his salary as penalty for loans officially approved by the Management to the customers. He went on that he did not receive any money out of the sum of N2, 577,826.59(Two million Five Hundred and Seventy Seven Thousand, Eight Hundred and Twenty and Six Naira, Fifty Nine Kobo) as his terminal benefit. Claimant averred that he has paid the sum of N499,745.32 leaving a sum of N545,394.28 in respect of the HCM share staff loan compulsorily given to him for the purchase of shares while in the employment of the defendant. That his share certificates are still in the possession of the defendant and his gratuity has not been paid to him after working for seven years with the defendant.
The Claimant instructed his lawyer to make a formal demand to the defendant vide a letter dated 27th July, 2012 but same was not replied to by the defendant. A reminder was written by claimant’s solicitors vide a letter dated 10th September, 2012 but defendant refused to reply same. The Claimant’s salary account was further debited with the sum of N3,078,360 from June, 2012 to 31st of May, 2013 and the defendant has willfully refused to pay his outstanding salary, entitlements and refund monies deducted from his salary account.
It is premised on these facts that claimant on the 14th of August, 2013, filed a suit at the National Industrial Court against the defendant claiming the following reliefs among others;
a. The sum of N4,945,734.63 as payment for the claimant’s unpaid entitlement, other emoluments and money unlawfully deducted from the salary and other entitlements of the claimant whilst in the employment of the defendant.
b. A DECLARATION that the decision of the defendant to compel the claimant to pay for loans officially applied for, approved and disbursed to the customers of the defendant is illegal, unlawful, null and void and of no effect whatsoever.
c. AN ORDER directing the defendant to reverse all unlawful debit entries in the claimant’s salary account number 0003876847 with regards to the approved loans given to the companies and officially disbursed to them.
d. GENERAL DAMAGES
The sum of N20,000,000.00 (Twenty Million Naira) as General Damages for the claimant’s unpaid salary, entitlements and unlawful deductions from his salary and terminal benefits.
The defendant on the other hand traversed that the claimant as its Business Development Manager initiated several loans facilities which are yet to be repaid and most of these resulted into loss on the part of the defendant. That the claimant voluntarily resigned his appointment from the services of the defendant on the 1st of June, 2012 and on the 9th of June, 2012, the defendant informed the claimant of his benefits as well as his outstanding indebtedness to the defendant. Upon such information, the sum of N2, 577,826 was credited to the claimant’s account and the sum of N21, 253,547.94 which represents the claimant’s indebtedness, personal commercial loans, share loans and disciplinary loans were debited from his account.
Defendant stated that the claimant was the initiator of the loan facility granted to Filthon Unity International Limited; Hero Denis Investment Limited and Ahijo Global Link Nigeria as he processed and got approval for the said loan. That the claimant is in the know of the Policy of the defendant that an initiator of an overdraft must recover same within 30 days failing which will attract penalties against the initiator and the regional manager of the defendant. The claimant was unable to recover the said loan granted to the customers as stated in the policy. That only Hero Denis Investment Limited has fully repaid its debt and the sum of N9,222,262.02 initially debited from the claimant’s account was credited back to him on the 25th of June, 2012.
The defendant averred that the claimant bought 60,000 units of Diamond Bank shares on the 30th June, 2010 and 93,697 units of Diamond Bank shares on January 14, 2011 with a loan obtained from the bank and such loan has not been fully liquidated by the claimant. That the claimant is duly aware and as stated in its Long service Gratuity Award, 2008 that the defendant does not pay gratuity and in response to paragraph 26 of the claimant’s claim defendant stated that claimant’s account is charged with debit interest as a result of the outstanding indebtedness in the claimant’s account.
HELD: (Allowing Claimant’s Claim ):
Where the determination of an employee’s appointment is due to acts of the employer, such employment will be said to have been constructively determined by the employer. In the instant case, the claimant stated that he was instructed by the defendant’s bank management to resign on the 1st of June, 2012, Exhibit SA4. The letter is to the effect that the claimant voluntarily resigned his appointment from the defendant's bank. However, DW in his evidence under cross examination confirmed the position of the claimant to the effect that he was advised to resign. In his evidence DW stated that the defendant gave the claimant one month salary in lieu of notice because the defendant advised the claimant to resign, because of his poor performance. This position is also corroborated by exhibit PM1, that is the letter dated 9th June 2012 from the defendant to the claimant showing his terminal benefits, the sum of N109,856.78 was paid to the claimant as a month salary in lieu of notice. The import of this is that the defendant constructively dismissed the claimant from its employment. The court found on the preponderance of evidence that the claimant never resigned voluntarily as expressed in exhibit SA4, rather he was forced to resign as corroborated by DW in his evidence. Claimant is therefore entitled to damages. (Pp. 308-309, Paras. A-C).
To order for your copies of the Nigerian Labour Law Reports contact
Debbie -07038436051 or email @ debsplus@yahoo.com; debsplus6@gmail.com or info.rochebalawpublishers@gmail.com.
Debbie -07038436051 or email @ debsplus@yahoo.com; debsplus6@gmail.com or info.rochebalawpublishers@gmail.com.
No comments:
Post a Comment