➥ CASE SUMMARY OF:
Pastor (Mrs.) Abimbola Patricia Yakubu v. Financial Reporting Council of Nigeria & Anor. (2016) – NICN
by Branham Chima (SAL).
➥ COURT:
National Industrial Court of Nigeria – NIC/LA/673/2013
➥ JUDGEMENT DELIVERED ON:
2016-11-24
➥ AREA(S) OF LAW
Employment;
Termination of employment;
Sexual harassment.
➥ PRINCIPLES OF LAW
⦿ BECAUSE AN EMPLOYER IS A CREATION OF STATUTE DOES NOT MEAN EMPLOYEE IS A CREATION OF STATUTE
It is necessary to also state that the fact that an employer is a creation of statute or statutory body, does not without more, raise the legal status of its employees over and above the normal common law master and servant relationship. Also, the fact that a person is pensionable Federal public servant does not mean that his contract of employment is protected by statute. Whether a contract of employment is governed by statute or not depends on the interpretation of the contractual document or the applicable statute. The character of an appointment and the status of the employee is determined by the legal character of the contract. Contracts of employment are determinable by the agreement of the parties’ simplicita. See the cases of ALHASSAN V. ABU ZARIA [2011] 11NWLR (PT. 1259, 417 @ 464;NITEL V JATTAU [1996] 1 NWLR (PT. 425) 392 CA; INSTITUTE OF HEALTH AHMADU BELLO UNIVERSITY HOSPITAL MANANGEMENT BOARD V MRS JUMMAI R.I ANYIP [2015] 6 ACELR PAGE 27.IMOLOAME V. WAEC (1992) 9 NWLR(PT. 265) 303. — O. Oyebiola, J.
⦿ WHERE AN ENACTMENT GIVES POWER TO APPOINT, IT INCLUDES POWER TO REMOVE
The law is trite that where an enactment confers a power or impose a duty, the power may be exercised and the duty shall be performed from time to time as occasion demands. It is also a common position of the law that where an enactment confers power to appoint a person, that power includes the power to remove or suspend and power to make subsidiary legislation or regulation includes power exercisable in the like manner. See Sections 10, 11 and 12 of the Interpretation Act, CAP.123 LFN 2007. — O. Oyebiola, J.
⦿ WHAT IS SEXUAL HARASSMENT
It is obvious from these definitions that any act of unwelcome/unsolicited sexually coloured remarks, or invitation or request by words actions. Insinuations or comments on a person’s physique with sexual implications is sexual harassment. Where the woman has reasonable grounds to believe that her objection would be a disadvantage to her in connection with her employment, is also sexual harassment. — O. Oyebiola, J.
⦿ PARTY MUST TRAVERSE EACH ALLEGATIONS OF FACT
The law is that each party must traverse specifically each allegation of fact which he does not intend to admit. The party pleading must make it clear how much of his opponent’s case he disputes. The law is notorious that a traverse must not be evasive, but must answer the point of substance. The basic rule of pleading is that a traverse whether by denial or refusal to admit, must not be evasive but must answer the point of substance. The pleader must deal specifically with every allegation of fact made by his opponent: he must either admit it frankly or deny it boldly. Any half-admission or half-denial is evasive.” — O. Oyebiola, J.
⦿ AUDI ALTERAM PARTEM – WHERE OPPORTUNITY NOT USED
It is also the law that the fairness of a trial can be tested by the maxim audi alteram partem. Either party must be given an opportunity of being heard, but where a party refuses to take advantage of the opportunity to traverse specific allegations made against him, the averments will be deemed admitted and the defendant cannot complain of lack of fair hearing. — O. Oyebiola, J.
➥ LEAD JUDGEMENT DELIVERED BY:
Hon. Justice Oyewumi Oyebiola
➥ APPEARANCES
⦿ FOR THE APPELLANT
R.U. Ezeani.
⦿ FOR THE RESPONDENT
Tony Nwaneri.
➥ CASE FACT/HISTORY
It is claimant’s case as per her statement of facts, that she was employed by the 1st defendant then known as the Nigerian Accounting Standard Board on the 28th of February, 2006 as Deputy Manager (Admin) on Grade Level 10, Step 2. That her employment was confirmed six months after and she was promoted to Level 12 Step 2 effective from 1st March, 2010. That her employment is not governed by the Conditions of Service of staff made by the Board of the 1st Defendant but as provided by the extant Act, i.e. the Financial Reporting Council of Nigeria, Act, 2011within the Public Service of the Federal Government of Nigeria and Federal Government Public Service Rules. That in the year 2010, she was redeployed to the Executive Office directly presided over by the 2nd Defendant wherein she reported and worked directly with him. That while working with the 2nd defendant she was at various times subjected to incessant seductive, infidel and sensuous compliments and gestures. That on her continuous rebuff, he resorted to unnecessarily harassing her and would not mind scolding her over mundane issues, even at the time she was heavily pregnant of her third baby. She averred further that when she politely expressed her discomfort to him, she was then redeployed to the Library Unit which is one of the Units under his direct headship. That this afforded him a better opportunity to further his pestering, promiscuous and seductive advances on her, as he could not but come to the Library every day, not to read, but to indulge in endless gist with her, whom he would most times thereafter invite to his office for meaningless, promiscuous and obscene talk, which even though nauseating and irritating to her, she would reluctantly indulge to listen to, in order not to incur his wrath. She continued that no sooner had he become the Acting Executive Secretary of the 1stDefendant in July, 2010 before he eventually became the substantive Executive Secretary that he instructed that the Claimant be redeployed from the Library Unit to the Executive Office as the Executive Office Manager. She pleaded that despite her fears, she had to yield working with him knowing what the consequences would be, were she to object same. That this close working relationship provided him the opportunity to intensify his sexual demands on her and at times, he deliberately caused her to close very late from the office, sometimes past 10.00pm, as against the normal closing time of 4.00pm, even when at most times there is nothing meaningful to warrant the late closure. She pleaded that the 2nd Defendant in a bid to achieve his satanic plot and desires to having sex with her caused the Claimant to travel round the country together with him, purportedly on official duties, to places like Calabar, Uyo, Enugu, Ibadan, Ijebu Ode, Abuja and Minna wherein all of the times after parties have retired to their hotel rooms, the 2nd Defendant would either call or invite her to come over to his room or that he shall be coming to the Claimant’s room. She went on that the 2nd defendant went to the despicable extent of proposing to marry her and promised to relocate her to United States of America (USA) if she agrees to divorce her husband, as according to the 2nd Defendant, he is very much ready to divorce his own wife too, whom he claimed not to have any iota of love for, but just trapped in the marriage, the reason he says accounts for why he does not go back home early from work. Claimant continued that she brought her husband in the know of all the 2nd defendant advances towards her.
➥ ISSUE(S) & RESOLUTION(S)
[SUIT SUCCEEDED]
I. Whether or not the termination of claimant’s employment by the 1st defendant was unlawful?
RULING: IN CLAIMANT’S FAVOUR.
A. EMPLOYMENT BY 1ST DEFENDANT IS REGULATED BY STATUTE
“The express action of the 1st defendant in relying on the PSR (Public Service Rules), is a clear indication that the 1st defendant’s staff employment is regulated by statutes. They applied it and subjected the claimant to its provisions. They are not allowed at this stage to resile from it. It is also in consequence of this, that I find that the claimant’s employment is one with statutory flavour. I so find and hold.”
“The 1st defendant, being a creation of statute, the rights, fortunes and protection of its workers including the claimant is guaranteed under the Act and subsidiary legislation pursuant to same, which in this case is the PSR, thus the power to terminate the claimant or any staff of the 1st defendant go beyond the whims and caprices of the 1st or 2nd defendants, but strictly by the procedure laid down in the statute and PSR as stated supra.”
B. THE PROCEDURES SPECIFIED BY THE PUBLIC SERVICE RULES WERE NOT FOLLOWED
“The provision of the Rule 030307 is a mandatory requirement as failure to comply with same is tantamount to not granting fair hearing to the claimant. The 1st defendant did not only fail to comply with the procedure specified by the PSR which they relied on for the discipline and removal of the claimant, they also breached her right to fair hearing by denying her the opportunity of confronting the 2nd defendant who accused her of incompetence and lackadaisical attitude to work in person before the investigating committee, ditto the evidence of Mrs Juliana Shibigem. In other words, the 2nd defendant gave evidence to the committee behind her. The Finance and General Purpose Committee which investigated the issue ought to have observed the principles of natural justice by giving the claimant a fair hearing before proceeding to recommend disciplinary measures against her. It is quite interesting to note that the 2nd defendant admitted to sending love text messages to the claimant but according to him ”nothing was intended.”. Also of note is that the committee found his transfer to Kaduna to report to a grade level 8/10 officer administratively wrong and not supported by any PSR; also that the 2nd defendant should avoid visiting his female staff late at night and that the Board is to arrange leadership training for him to improve his interpersonal relationship. Yet the punishment meted out against the claimant vis a vis the recommendations and conclusions of the committee evince that the committee was bias against the claimant.”
“It is thus clear from all stated supra, that the procedure for terminating claimant’s employment from the 1st defendant fell short of the requirement of the PSR, the regulation under which she was tried and sacked. I find that the Committee was bias against the claimant, thereby breaching her fundamental right to fair hearing, it did not follow the laid down procedure and thus the termination of the claimant’s employment by the 1st defendant is unlawful, null, void and of no effect as it is contrary to the provisions of the PSR. Consequent upon which the Report of the Finance and General Purpose Committee and the Board’s ratification of same is set aside.”
C. CLAIMANT IS ENTITLED TO REINSTATEMENT
“It is claimant’s claim that she should be reinstated back to her employment and all entitlement and promotion be given to her. It is the law that in an employment with statutory flavour as in this case, where the Court finds that termination of an employee is unlawful, i.e. not in accordance with the procedure laid down in the statute, the Court may make an order for reinstatement of the employee. See P.T.I. V. NESIMONE (1995) 6 NWLR(PT. 402) 474 CA. Having found supra that claimant’s employment was unlawfully terminated by the 1st defendant by its letter dated 27th September, 2013, the right order to make in the circumstance in view of a special and higher legal status a statutory employee enjoys over and above the ordinary master and servant relationship, is an order for claimant’s reinstatement back to the 1st defendant. It is a firm position of the law as held in plethora of cases that whereas in this case, the relationship is that of statutory flavour, the Court may make orders compelling specific performance of the contract of service because in the eye of the law, the purported termination is invalid, null, void and of no effect and the claimant continues to have the right to be treated as an employee of the 1st defendant uptill date until his lawful retirement.”
.
.
II. Whether or not the claimant was sexually harassed by the 2nd defendant and thereby breached her fundamental right to human dignity and self worth/respect?
RULING: IN CLAIMANT’S FAVOUR.
A. CLAIMANT IS LIABLE FOR SEXUAL HARASSMENT
“The 2nd defendant in his defence to sending the claimant suggestive text messages in 2011 at the committee, stated that his phones have been stolen. Claimant according to DW2, read out some text messages sent to her by the 2nd defendant to the committee and he was asked to read to the hearing of the Committee, and he did, but did not call for the MTN call log as requested by the claimant. An indepth scrutiny of 2nd defendants admission is suggestive of the fact that 2nd defendant verbally harassed the claimant sexually because I do not see the reasons why a man, a boss so to say would visit his PA a female late at night in her hotel room. What would the discussion be about at night? His admission of making jokes with his PA, the claimant that he would marry her is way out of the employment relationship between a boss and a subordinate and to me all the attitude of 2nd defendant coupled with his unwelcome altercations is a clear case of sexual harassment. It is evident that the claimant’s failure to accede to his sexual overtures, resulted in the transfer of the claimant by the 2nd defendant to Kaduna, directing her to report to a junior staff and thus created a hostile environment at work place for her.”
B. THE 2ND DEFENDANT HAS NO DEFENCE TO THE SEXUAL HARASSMENT LEVELLED AGAINST HIM
“It is apparent that the testimonies of both DW1 and DW2 did not help the 2nd defendant’s case, given that they did not in any way controvert or challenge the allegation of sexual harassment leveled against the 2nd defendant. 2nd defendant admitted at the committee that he sent text messages to the claimant. He could not also deny visiting the claimant late in the night in her hotel room. It is in consequence that I find and hold that the 2nd defendant did not controvert or challenge the evidence of the claimant bordering on sexual harassment against him. It is obvious that the 2nd defendant, Mr. Obazee has no defence to the allegation of sexual harassment leveled against him by the claimant, hence he refused or chose not to specifically challenge it, but chose to rather file a joint statement of defence, thus hiding under the cloak of the 1st defendant, his employer. He did not also specifically deny the allegation of sexual harassment levied against him by the claimant, except the general traverse made in the joint Statement of defence filed by both the 1st and 2nd defendants.”
“It is from all stated above that I find that the 2nd defendant failure to testify in defence of the grievous allegation of series of sexual harassment against him is fatal to his case, it is the case of the claimant against his, claimant’s evidence on record as it relates to the allegation of sexual harassment against the 2nd defendant remained cogent, unchallenged and uncontroverted and is deemed admitted by Mr. Jim Obazee as the joint pleadings alone cannot speak, the averments in the joint amended statement of defence as it relate to the allegation of sexual harassment are deemed abandoned, while paragraphs 13 to 31 of the claimant’s amended statement of facts are deemed admitted by the 2nd defendant. The import of this is that the 2nd defendant did not put up any defence to the allegation of sexual harassment against him. It is in the light of this that I find and hold that the 2nd defendant, Mr. Jim Osanyande Obazee, sexually harassed the claimant by his unwelcome utterances /conduct of a sexual nature which detrimentally affected the work environment, it also gave the claimant reasonable grounds and fear for believing that an adverse reaction to his conduct would occasion a disadvantage to her in connection with her employment or work, and she suffered some tangible job detriment leading to the oppressive transfer of the claimant to Kaduna to take orders from her subordinate, thus adversely affected her dignity and self worth. It is indeed an abuse of power, an affront to the dignity of the claimant who was forced to endure it as enunciated by Dickson CJ in JANSEN’s case supra … The termination of the claimant’s employment, simply because she refused to succumb to sexual harassment from 2nd defendant constitute a violation of her human dignity and freedom from discrimination as protected by the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, ditto against the claimant’s fundamental human right under the 1999 Constitution as amended. I so find and hold.”
C. DAMAGES FOR DAMAGE TO DIGNITY
“It is in the light of all this that I exercise my discretion in awarding personal damages against the 2nd defendant in the sum of N5,000,000, though the damages done against the dignity of the claimant cannot be monetarily quantifiable/compensated. This is to be paid within 2 weeks of this judgment by the 2nd defendant, Mr. Jim Osayande Obazee to the claimant.”
.
.
.
✓ DECISION:
“On the whole I find and hold that claimant’s claims succeed and for the avoidance of doubt I declare and order as follows:
- That claimant’s employment is guaranteed by the Financial Reporting Council Act, 2011 and by the Public Service Rules, thus a statutory employment and not master/servant.
- That the termination of claimant’s employment was unlawful.
- That the Finance and General Purpose Committee’s Report of the 1st defendant and ratification of same by the Board are hereby set aside.
- That the termination of claimant’s employment vide a letter dated 27th September, 2013 without following due process is null, void and of no effect.
- That the claimant is to be reinstated to her position in the 1st defendant office in Lagos, but NOT as the Personal Secretary of the 2nd defendant.
- That the 1st defendant is to pay claimant’s salaries and allowances from September, 2013 till date less the October, salary which is the sum of N5,431,005.98 within 30days of this judgment failing which is to attract the interest of 15% per annum.
- I award the sum of N5,000,000.00 against the 2nd defendant for sexually harassing the claimant, discrimination against her, inhuman and executive recklessness of the 2nd defendant, thereby creating a hostile working environment for the claimant and for the violation of her human dignity and self worth/respect.
- Cost is accessed at N250,000.00 against the 1st and 2nd defendants jointly and severally.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ SHOULD NOT RECEIVE EVIDENCE FROM ONE SIDE BEHIND THE BACK OF ANOTHER
Lord Denning in KANDA V GOVERNMENT OF MALAYA [1962] AC 322, stated thus: “If the right to be heard is to be real right which is worth anything, it must carry with it a right of the accused man to know the case which is made against him. He must know what evidence has been given and what statement had been made affecting him, and then must be given an opportunity to correct or contradict them. This appears in all the cases from the celebrated judgments of Lord Loreburn, L.G in The Board of Education v Rice down to the decision of their Lordships’ Board in Ceylon University v Fernando. It follows therefore that the judge or whoever has to adjudicate must not hear evidence or receive representation from one side behind the back of the other. The Court will not inquire whether the evidence did work his prejudice. The risk of it is enough. No one who has lost a case will believe he has been fairly treated if the other side has had access to the judge without his knowing.”
➥ REFERENCED (OTHERS)
The Black’s Law Dictionary, 9th Edition at page 1499, where sexual harassment is defined as; “a type of employment discrimination consisting in verbal or physical abuse of a sexual nature”.