His Lordship, Hon. Justice B. B. Kanyip of the National Industrial Court of Nigeria, sitting in Lagos, on Wednesday 6th February 2019 in a judgment dismissed for lacking merit the suit filed by Lijoka Olaniyi Dennis & 1677 others against First Franchise Service Ltd and Heritage Bank Ltd on alleged insufficient payment of gratuity.
In a landmark Judgment, the court agreed that the claimants have not shown how they came by the sums they respectively claimed.
By an amended complaint and amended statement of facts filed on 26th April 2016, the claimants prayed against defendants among others ; A declaration that the payment of only one year basic salary, transport allowance, Housing allowance and lunch subsidy to the claimants across board as gratuity by Enterprise Bank Ltd conflict with the agreement reached by Mainstreet Bank, the NUBIFIE, ASSBIFI, NLC and the Federal Ministry of Labour (a.k.a. “the Ministerial Agreement”) on mode of computation of gratuity and the agreement between the claimants union and Enterprise Bank Ltd dated 21st May 2013 to pay gratuity to the claimants in line with the aforesaid “Ministerial agreement”.
A declaration that the claimants are entitled to be paid the amounts respectively listed against each of their names being and representing their gratuity benefit computed by using the right and lawful parameters in line with the usual customary practice and procedure of the banking industry, the Enterprise Bank Ltd’s usual practice/policy on payment of gratuity and the agreement reached by Mainstreet Bank, the NUBIFIE, ASSBIFI, NLC and the Federal Ministry of Labour, which govern payment of gratuity to the claimants to wit… [the names of the claimants and what each is claiming as due gratuity are then listed out].
The claimants were employed by First Franchise Service Ltd (1st defendant) at various times and deployed to work at Enterprise Bank Ltd as contract staff before it was dissolved by order of Court made on 26th August 2015.
The claimants counsel stated further that in September 2012 the management of Enterprise Bank decided to outsource the claimants’ employment without terminating the claimants’ employment and paying them their terminal benefits, the claimants protested through the domestic branch of their union via a peaceful picketing which resulted into an agreement between the claimants through their union and Enterprise Bank Ltd that Enterprise Bank Ltd shall suspend the transfer of the claimants to the outsourcing companies pending the outcome of negotiation between Mainstreet Bank, NUBIFIE, ASSBIFI, NLC, and the Federal Ministry of Labour on the issue of terminal benefit to be paid to the workers of Mainstreet Bank as a result of a similar re-organization of staff made by that bank.
That subsequent to the above-stated agreement, the claimants through the domestic branch of their union and Enterprise Bank Ltd entered into another agreement that Enterprise Bank Ltd shall pay gratuity to the claimants as their terminal benefits before their employment can be outsourced. That after the said agreement, Enterprise Bank Ltd credited their respective accounts with sums of money calculated as their one-year basic salary, transport allowance, housing allowance and lunch subsidy without due regard to the respective number of years each of them served.
That gratuity is calculated based on the number of years served, which Enterprise Bank Ltd failed to do. That the respective amounts paid to them by Enterprise Bank Ltd does not represent their due gratuity. The claimants then prayed the Court to make an order mandating the defendants to pay them the outstanding balance of their gratuity.
To the defendants, it is noteworthy that the claimants were neither considered to be permanent staff nor contract staff of EBL and were at all material times to this suit, staff of the 1st defendant. That EBL did not enter into any employer/employee relationship with the claimants either jointly and/or severally and none exists for all intents and purposes.
The defendants maintained that the bank i.e. EBL at the time, now the 2nd defendant having taken EBL’s place in this action is not bound by the terms of the agreement or any of the aforementioned agreements being Collective Bargaining Agreements and the claimants not being a party to the said agreements cannot seek to enforce same.
That there is no document before this Court that lists the names of any or all of the 1678 claimants in this suit as members of either or both of these unions.
It was also the position of the defendants that assuming but not conceding that the bank was bound by the said agreements, the bank has fully complied with the terms of the agreements as the claimants were paid their gratuity using the components stated in letter of agreement.
On privity of contract and the claimants’ membership of NUBIFI, the claimants submitted that this Court has in its previous decisions aptly held that non-signatories to collective agreements can seek its interpretation/enforcement once sufficient nexus is shown between such claimants and the collective agreement.
Furthermore, the claimants argued that they are due -paying members of NUBIFIE. To the defendants, the said fact was neither pleaded nor was any evidence adduced such as receipts evidencing payment of dues or deductions from the claimants’ salaries for payment of the union dues urged the court to dismissed the suit that the claimants’ claims are largely unsubstantiated, baseless, unmeritorious.
After careful evaluation of all the processes filed, and the submissions of the learned Counsel from both sides. The Court presided by Hon. Justice B. B. Kanyip expressed thus;
“I have no hesitation, therefore, in holding that the claimants can rely on the collective agreements they tender, the argument of the defendants to the contrary hereby rejected.
“It is thus in proof of the second requirement i.e. how they came about the quantum of the sums they claim, that the claimants computed what they think is respectively due to each of them as gratuity benefit by using the amounts each of them was paid as each claimant’s basic salary, transport allowance, housing allowance, and lunch subsidy.
“There is no proof before the Court what each claimant’s years of service are. There is also no proof of what each of the claimant’s basic salary, transport allowance, housing allowance, and lunch subsidy is since it is on these that the sums arrived at by the claimants can be said to have been proved to the satisfaction of this Court. This is the sense in which the defendants argued that the claimants have not shown how they came by the sums they respectively claim. On this score, I agree with the defendants and so hold that the claimants did not prove their case.”
On the whole, the court dismissed the case for lacking merit.