The National Industrial Court of Nigeria sitting in Yola, the Adamawa State capital, has held that the payment of salary in lieu of notice of disengagement is not required in a fixed tenure employment.
The presiding judge, Justice Nelson Ogbuanya, made this declaration while delivering judgment in a suit by Alhaji Sule Buba against his former employer, Adamawa State University Consultancy Services Ltd.
Buba, through his lawyer, Andrew Maigwi, prayed the court to declare that he is the firm’s employee from July 26, 2006 to May 17, 2013 and, therefore, entitled to his allowances and benefits accrued within the period.
He prayed for N1,996,181.95, being his unpaid salaries for 35 months; N245,000 being allowance for 28 days in office; N111,531.66 being leave grant for 2010, 2011 and 2012; N57,033.77 being one month salary in lieu of notice of disengagement and N390,360.60 being contract gratuity.
Buba also sought N3million as general damages for the hardship and trauma he went through due to non-payment of his entitlement; 20 per cent interest on the judgment debt, and cost of the litigation.
The claimant said he was employed on July 26, 2006 as an administrative officer for an initial two years, and that his appointment was extended for another two years from September 4, 2009 to September 5, 2011.
He said he later received a December 17, 2010 letter informing him about the company’s temporary closure, that he should stay at home pending when its financial situation improves, and that his outstanding salaries and allowances would be paid.
The claimant said he was not paid his salaries; rather he received a disengagement letter on May 17, 2013.
The defendant, through its General Manager, Dr Shehu Haruna, admitted that Buba was employed for a fixed tenure of two years which was renewed for another two years from July 2006 to September 2011.
The company confirmed owing outstanding salaries and allowances from July 2010 to October 2010 amounting to N228,135, at N57,033.77 per month, but denied Buba’s other claims.
In his verdict, Justice Ogbuanya held that an employment based on fixed tenure is akin to tenancy of fixed term and does not require notice for termination or salary in lieu of notice thereof, unless expressly provided for in the contract of employment.
He agreed with the defence counsel Dr J. S. Wafinzida that the claimant’s extended appointment was deemed terminated by effluxion of time by September 5, 2011, and held that there was no subsisting employment relationship after the expiry of the extension period.
On whether Buba was entitled to leave grant, contract gratuity and payment for first 28 days in office, Justice Ogbuanya held that there was no provision for them in the appointment letter. He, therefore, dismissed them.
The judge also held that Buba was not entitled to one-month notice of termination or salary in lieu because there was no provision for it in the contract of employment as such payment is not automatic in fixed tenure employment.
On damages, Justice Ogbuanya held: “Damages are awarded following a breach. And where no breach is found to occur, no issue of damages should arise.” He added that the claimant did not justify his claim for interest on the judgment sum.
The judge ordered the defendant to pay Buba the four months salaries which it admitted owing him.
Justice Ogbuanya held that there was no evidence that Buba was paid his salaries from July 2010 to September 2011, and that the employment letter did not state that no payment would be made during a period of financial difficulty.
His Lordship said the defendant was obligated to pay for the additionally owed periods falling within the fixed tenure, which is from November 2010 to September 2011, totalling 11 months.
“On the whole, and for clarity, the claimant’s suit succeeds in part as per the terms of the judgment to the effect that the defendant shall pay to the claimant N228,135.08 being the amount of outstanding salaries of July to October 2010.
“The defendant shall also additionally pay the claimant N627,371.47 covering the period of the months from November 2010 to September 2011 as the same monthly subsisting salary of N57,033.77 for 11 months
“All sums due and ordered to be paid shall be paid within two months of this judgment. Otherwise, any default shall attract 10 per cent interest rate per annum until finally liquidated. Judgment is entered accordingly. I make no order as to cost,” Justice Ogbuanya held.
