CORAM

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HON. JUSTICE O. A. OBASEKI-OSAGHAE

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PARTIES

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MR. TAOFEEK OLANREWAJU

CLAIMANT(S) 

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1.     HUAWEI TECHNOLOGIES NIGERIA LIMITED

2.     KENNEDIA CONSULTING LIMITED

3.     BAFA PROJECT HUB LIMITED

DEFENDANTS 

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AREA(S) OF LAW

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EMPLOYMENT LAW, LABOUR LAW, CO-EMPLOYMENT, TRIANGULAR EMPLOYMENT RELATIONSHIP, WRONGFUL TERMINATION, FAIR HEARING, INTERNATIONAL LABOUR STANDARDS, CONTRACT OF EMPLOYMENT, EVIDENCE, SPECIAL DAMAGES, COUNTERCLAIM, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

The Claimant, Mr. Taofeek Olanrewaju, was employed on 1st June 2018 as a Field Maintenance Engineer (FME) on a gross monthly salary of N210,000.00 under a co-employment arrangement in which Huawei Technologies Nigeria Limited was the User Enterprise and Qualiserve Technologies Limited and Interkel Limited served as Agents/Providers. His employment was subsequently transferred on 19th March 2019 to another co-employment arrangement consisting of Huawei Technologies Nigeria Limited as User Enterprise, with Kennedia Consulting Limited (2nd Defendant) and Bafa Project Hub Limited (3rd Defendant) as Agents/Providers. The Claimant’s salary under the 2019 arrangement was set at N200,000.00 per month.

Throughout his employment, the Claimant was interviewed by the 1st Defendant at its offices, trained on the 1st Defendant’s proprietary software application known as “Huawei Mateline,” supervised by the 1st Defendant’s State Delivery Manager and Regional Technical Officer, appraised and awarded bonuses solely by the 1st Defendant, while his transport allowance was paid by the 3rd Defendant. The 2nd Defendant paid his salary. The Claimant averred that his pension contributions and PAYE tax deductions were never remitted to the relevant statutory agencies, and that his medical coverage entitlement was never honoured.

On 6th April 2022, three terminal sites were escalated to the Claimant. He promptly attended to the two sites identified as TX issues and monitored the third site (NS5186) remotely through the passive team, which confirmed the issue was of a passive nature. A fire incident allegedly occurred at NS5186. On 13th April 2022, the State Delivery Manager of the 1st Defendant, Ideni Lucky, issued the Claimant a query directing him to explain within 24 hours why disciplinary action should not be taken against him for failing to escalate the fire incident. Within two minutes of the query, the General Manager of the Abuja Region of the 1st Defendant, Osakwe Anthony, directed the Claimant via email to ignore the query — a mail the State Delivery Manager was also copied on.

Despite this instruction, the 1st Defendant directed the 2nd Defendant to terminate the Claimant’s employment barely two days thereafter. Following intervention by the Claimant’s solicitors, the 2nd Defendant issued a backdated termination letter dated 15th April 2022, citing failure to report the fire incident at NS5186. A second termination letter was issued on the instructions of the 3rd Defendant stating simply that the Claimant’s services would no longer be required effective 28th April 2022. Both letters were signed by officials of the 2nd Defendant. The Claimant was not afforded any opportunity to respond to the allegation, having been directed by the General Manager to ignore the query on which the termination was ultimately premised.

The 1st and 3rd Defendants denied any employment relationship with the Claimant, claiming he was an outsourced worker of the 2nd Defendant operating under subcontract arrangements. The 2nd Defendant acknowledged the employment relationship but contended that termination was consistent with the contract. The 1st and 3rd Defendants also filed a counterclaim seeking N5,000,000.00 each as costs of litigation. The Court expunged Exhibits D3, D4, and D5 of the 2nd Defendant as inadmissible, having been made during the pendency of proceedings and not pleaded.

The Court found that a triangular co-employment relationship was established on the preponderance of evidence and that the termination of the Claimant’s employment was wrongful, unjustified, and contrary to international best practices and labour standards. The counterclaim was dismissed.

 

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HELD

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The Court allowed the Claimant’s case substantially and dismissed the counterclaim of the 1st and 3rd Defendants. The Court declared that a co-employment relationship existed between the Claimant and all three Defendants, with the 2nd Defendant as provider and the 1st and 3rd Defendants as user enterprise. The Court held that the termination of the Claimant’s employment was wrongful, unfair and against international best practices, having been effected without fair hearing and without a valid reason connected with the Claimant’s capacity or conduct. The Court found that the 1st Defendant breached the Claimant’s constitutional right to fair hearing under Section 36 of the 1999 Constitution. The 1st and 3rd Defendants were ordered jointly and severally to pay the Claimant N4,800,000.00 being the equivalent of twenty-four months’ salary as general damages. Costs of N350,000.00 were awarded against each Defendant. The claims for expectation income, accruable medical benefits, and solicitors’ fees were refused. The counterclaim for legal fees was equally refused. Exhibits D3, D4, and D5 were expunged from the records as inadmissible.

 

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ISSUES

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1. Whether the 1st, 2nd and 3rd Defendants were co-employers of the Claimant?

2. Whether the reason for the termination of the Claimant’s employment was proved?

3. Whether on the pleadings and evidence the Claimant was entitled to the reliefs sought?

4. Whether the 1st and 3rd Defendants proved the counterclaim?

5. Whether documents made by an interested party during the pendency of proceedings were admissible in evidence?

6. Whether the termination of the Claimant’s employment without fair hearing and a valid reason was wrongful and contrary to international best practices?

 

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RATIONES DECIDENDI

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BURDEN OF PROOF IN EMPLOYMENT DISPUTES – DUTY OF EMPLOYEE TO PLACE TERMS AND CONDITIONS OF EMPLOYMENT BEFORE THE COURT

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“It is the law that in the determination of the employment rights, it is the employee who complains that his/her employment contract has been breached that has the burden to place before the Court the terms and conditions of his/her employment that provides for his/her rights and obligations; and the manner such terms and conditions were breached.” – Per O. A. Obaseki-Osaghae J.

 

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BURDEN OF PROOF IN CIVIL SUITS – BALANCE OF PROBABILITIES AND SHIFTING OF ONUS

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“It is the law that whoever desires the Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove those facts exist, section 131 (1) & (2) of the Evidence Act 2011. Civil suits are decided on the balance of probabilities, on the preponderance of evidence. The burden of proof is not static but shifts from side to side. The onus of adducing further evidence is on the person who will fail if such evidence is not adduced.” – Per O. A. Obaseki-Osaghae J.

 

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DISGUISED EMPLOYMENT RELATIONSHIP – ILO PRINCIPLE OF PRIMACY OF FACTS IN DETERMINING CO-EMPLOYMENT

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“Employment relationships come in different forms. The International Labour Organisation (ILO) terms an employment relationship that is meant to either mask the identity of the employer (where the person designated as an employer is an intermediary with the intention of releasing the real employer from any involvement in the employment relationship, and above all from any responsibility to the workers); or mask the form in which the relationship is established (as where the nature of the employment relationship is intentionally misrepresented so as to deny certain rights and benefits to dependent workers), as a disguised or objectively ambiguous employment relationship.” – Per O. A. Obaseki-Osaghae J.

 

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TRIANGULAR EMPLOYMENT RELATIONSHIP – DETERMINATION ON PRIMACY OF FACTS AND CONTROL TEST

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“The determination of the existence of an employment relationship should be guided by the facts of what was actually agreed and performed by the parties, and not by the name they have given the contract. That is why the existence of an employment relationship depends on certain objective conditions being met (the form in which the worker and the employer have established their respective positions, rights and obligations, and the actual services to be provided), and not on how either or both of the parties, describe the relationship. This is known in law as the principle of the primacy of facts, which is explicitly enshrined in some national systems. This principle might also be applied by judges in the absence of an express rule.” – Per O. A. Obaseki-Osaghae J.

 

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CO-EMPLOYMENT ESTABLISHED – WHERE USER ENTERPRISE EXERCISES CONTROL OVER TRAINING, APPRAISAL, SUPERVISION AND DISCIPLINE

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“I find from the factual evidence of DW2 and DW3 that the 1st and 3rd Defendants know the Claimant because his job is integral to their core business of providing Network Services. The totality of the evidence adduced reveals that the 1st and 3rd Defendants employed the Claimant and trained him to perform a core job role in its Network maintenance business. The 1st Defendant exercised control over him in terms of pre-employment interview, training, appraisal; while both 1st and 3rd Defendants together exercised supervision, discipline, paid allowances and bonuses, and finally disengaged him. I find that there is established before the Court a triangular employment relationship between the Claimant and the Defendants. The 2nd Defendant is the ‘provider’ and the 1st and 3rd Defendants the ‘user enterprise’. I hold that the 1st, 2nd, and 3rd Defendants are co-employers of the Claimant.” – Per O. A. Obaseki-Osaghae J.

 

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WRONGFUL TERMINATION – BREACH OF FAIR HEARING WHERE EMPLOYEE DIRECTED TO IGNORE QUERY ON WHICH TERMINATION IS PREMISED

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“I find that the Claimant was not given a hearing on this allegation having been instructed by the General Manager to ignore the query; and yet this is the same reason given for the termination of his employment. DW2 denied that the 1st Defendant issued the query and stated under cross-examination that he had no idea why the Claimant’s employment was terminated. I find that the reason given by the 1st Defendant has not been proved. The 1st Defendant breached the Claimant’s right to a fair hearing guaranteed under section 36 of the 1999 Constitution; and I so hold.” – Per O. A. Obaseki-Osaghae J.

 

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TERMINATION WITHOUT VALID REASON – CONTRARY TO INTERNATIONAL BEST PRACTICES AND ILO CONVENTION NO. 158

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“It is contrary to international best practices for an employer to terminate the employment of its employee without any reason, or justifiable reason that is connected with the performance of the employee’s work. I hold that the termination of the Claimant’s employment by the Defendants is unjustified and wrongful.” – Per O. A. Obaseki-Osaghae J.

 

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INTERNATIONAL BEST PRACTICES IN TERMINATION – SUPREME COURT POSITION ON TERMINATION WITHOUT CAUSE

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“The point being made here is that it goes against international best practices and labour standards to terminate the employment of a high performing staff without justifiable reasons. Moreso, globally, the termination of employment without cause or reason is no longer considered fashionable or acceptable. The new labour jurisprudence with the 3rd Alteration to the 1999 Constitution and the provisions of the law in that regard, particularly Section 7(6) of the National Industrial Court Act mandates that every court in the land shall have recourse to good or international best practices in labour or industrial relations.” – Per O. A. Obaseki-Osaghae J.

 

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QUANTUM OF DAMAGES FOR WRONGFUL TERMINATION – AWARD OF TWO YEARS SALARY AS GENERAL DAMAGES IN LINE WITH INTERNATIONAL BEST PRACTICE

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“In British Airways v. Makanjuola (1993) 8 NWLR (Pt. 311) 274 at 288 the Court of Appeal affirmed the award of two years’ salary as damages to the aggrieved former employee. The Court of Appeal in Sahara Energy Resources Ltd v Oyebola supra affirmed the award of two years salary to the Claimant as being in line with international best practice. The Supreme Court in Skye Bank Plc v Mr Adedokun Adegun supra affirmed the award of two years salary as general damages. The Claimant’s gross monthly salary is N200,000.00 (Exhibit C2). I award the sum of N4,800,00 (Four Million Eight Hundred Thousand Naira) being the equivalent of 24 months salary as general damages to the Claimant.” – Per O. A. Obaseki-Osaghae J.

 

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SOLICITORS FEES AS CLAIM – UNETHICAL AND AGAINST PUBLIC POLICY TO PASS LEGAL FEES BURDEN TO OPPONENT

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“The decisions of the appellate courts is that it is unethical and an affront to public policy for a litigant to pass the burden of his legal fees to his opponent. Furthermore, a claim for Solicitors/Legal fees which does not form a part of the cause of action is not one that can be granted.” –Per O.A. Obaseki-Osaghae J.

 

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ADMISSIBILITY OF DOCUMENTS – DOCUMENTS MADE BY INTERESTED PARTY DURING PENDENCY OF PROCEEDINGS INADMISSIBLE

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“Exhibits D4, and D5 were not pleaded. They were made on 19th August 2022, and 16th September 2022 respectively during the pendency of this action. By the provisions of Section 83(3) of the Evidence Act 2011, documents made by an interested party when proceedings are pending or anticipated are inadmissible. Consequently, Exhibits D3, D4, and D5 are expunged from the records.” – Per O. A. Obaseki-Osaghae J.

 

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NICN’S DUTY TO APPLY INTERNATIONAL BEST PRACTICES – CONSTITUTIONAL AND STATUTORY MANDATE

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“This Court has a duty and an obligation to apply international best practices in the resolution of labour and employment disputes having been so empowered by Section 254C (1) (f) & (h) 1999 Constitution, and Section 7 (6) of the National Industrial Court Act 2006.” – Per O. A. Obaseki-Osaghae J.

 

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COUNTERCLAIM – COUNTER-CLAIMANT MUST PROVE CLAIM AND PARTY WHO LOSES NOT ENTITLED TO COSTS

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“The decisions of the appellate courts is that it is unethical and an affront to public policy for a litigant to pass the burden of his legal fees to his opponent. Furthermore, a claim for Solicitors/Legal fees which does not form a part of the cause of action is not one that can be granted. The Claimant’s claim for Solicitors fees, and the counter claim for legal fees are both refused. Furthermore, a party who looses in an action is not entitled to any costs.” – Per O. A. Obaseki-Osaghae J.

 

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CASES CITED

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STATUTES REFERRED TO

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Constitution of the Federal Republic of Nigeria 1999 (as amended) National Industrial Court Act2006 Evidence Act 2011 Labour Act Cap L1 LFN 2004 ILO Termination of Employment Convention 1982 (No. 158) ILO Private Employment Agencies Convention 1997 (No. 181)

 

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OTHER CITATIONS

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