His Lordship, Hon. Justice Nelson Ogbuanya of the National Industrial Court sitting in Lagos Judicial division has quashed the wrongful dismissal of Mr. Rabiu Olakunle from the services of Lagos Airport Hotel Ltd, converted same to termination, and ordered firm to compute and pay him all outstanding salaries from August 2009 to August 2011, terminal benefits with the sum of Five Hundred Thousand Naira cost of action within two months.
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The Court held that the evidential burden of proof in respect of the allegation of the criminal misconduct levelled against Rabiu lies on the firm who made the allegation and interdicted him, that there is a constitutional right of presumption of innocence until proved guilty by a court of competent jurisdiction.
The Claimant- Rabiu Olakunle, who served as Senior Plant Operator had submitted that he was summarily dismissed on allegation of complicity in misconduct, interdicted and charged to court, but the charge was later struck out and was discharged.
Further that while the charge was pending in court, and without inviting him to any disciplinary hearing, the firm dismissed him via a letter of summary dismissal for alleged gross misconduct, and further that when he was discharged and vindicated, he approached the firm to re-absorb him and to pay his outstanding salaries, allowances and emolument but all to no avail.
The Defendant- Lagos Airport Hotel Ltd denied the claims, insisted that Rabiu’ s dismissal was valid as it was for gross misconduct and he has forfeited all entitlements having been dismissed from the company, and urged the Court to dismiss the claims for being frivolous.
The Defendant’s counsel O.E Oku, Esq with C.Onyemaobi, had contended that there was no breach of fair hearing against the Claimant, as he was given an opportunity to defend himself of the allegation brought against him before the panel, and insisted that since the Claimant was dismissed for gross misconduct, it is a maximum punishment that would deny him entitlement to terminal benefits, no matter how long he has served.
In reply, Caimant’s counsel A.A Kembi Esq maintained that the Defendant could not validly base his dismissal on the same criminal allegation that has not been proved.
Delivering Judgment in the suit marked NICN/LA/429/2015, the Presiding Judge, Justice Ogbuanya held that criminal allegation can be dealt with in civil trial, provided the person alleging the crime satisfies the evidential burden of proof beyond a reasonable doubt.
“There is no evidence of any police report of the investigation or an extract of the ‘cautionary statement’ by the Claimant at the police station. There was no evidence of any investigation even from the management’s said panel that was said to have indicted the Claimant.
“In my considered view, the Defendant’s own casual basis for indicting the Claimant, to say the least, is arbitrary, whimsical, and falls far short of requisite expectation in establishing criminal allegation against an employee, which would be endorsed by a court of law, to ground a supreme punishment of summary dismissal and consequent loss of earned terminal benefits; a longing reward at glorious exist after long years of toiling in an organization.
“I hasten to add that such conduct constitutes specie of the emerging jurisprudence of unfair labour practice, of which this court frowns at and curtails whenever confronted with the rearing incident. I so hold.
“It was not the Claimant’s fault that he was discharged and therefore vindicated, and no effort was later made by the Defendant to have him re-arrested and diligently prosecuted, and perhaps, convicted. Without such effort, it is preposterous for learned counsel to insist on trial on merit before the Claimant can be vindicated. I so hold.
“Accordingly, having not justified the purported summary dismissal of the Claimant by the Defendant, the same is hereby so declared wrongful.”
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