NO REINSTATEMENT OR GENERAL DAMAGES IN A MASTER AND SERVANT EMPLOYMENT

 

Employment relationships are undoubtedly one of the commonest relationships in any civilized society; second, perhaps, only to marriage relationships. When the going is good, employments provide opportunity for people to earn a decent living while applying their energy to some creative endeavours for the benefit of society.

However, as with every other relationship involving humans, things often go awry and a former employer and its former employee often wind up in a legal tussle to obtain redress for real and imagined injustice, unpaid entitlements, bruised ego, etc.

Many employees who sue their former employers for unlawful termination of employment see it as an opportunity to get their pound of flesh and claim all manner of reliefs against the former employer.

Thus, in actions for wrongful termination of employment, it is very common to see claims for a declaration that the termination is null and void, reinstatement and general damages. Most employees presume that if the Court finds that their employment was wrongfully terminated in the first place, the Court should necessarily make an order compelling their ex-employers to re-absorb or reinstate them in addition to compensating them for the wrongful termination. Logical as this may sound, it is not necessarily in sync with basic principles of labour practice. It is not in every case where it is found that an employment was wrongfully terminated that the court would make an order reinstating an employee or awarding general damages.

An employee can get an order of reinstatement and damages for wrongful termination only where his employment is one with statutory flavor, and not merely an ordinary master and servant employment.

What is an employment with statutory favour?

An employment is said to have statutory flavour when the appointment is protected by statute or laid
down regulations made to govern the procedure for employment and discipline of an employee. Any other employment outside that category is governed by the terms which the parties agreed to be master and servant. The essence of this definition was captured by the Supreme Court in the case of C.B. N V. Igwilo (2007) 14 NWLR (Pt.
1054) 393, per Sunday Akinola Akintan,
J.S.C as follows:
“Again, as I already stated above, the 1st appellant is a Federal institution created by statute. It follows therefore that it must carry out its activities in line with its governing laws. The laws regulating the appointment and discipline of its workers must be complied with strictly as their employments are with statutory flavour. Every action taken on behalf of the 1st appellant is therefore expected to be done in good faith, free of bias, or nepotism. Similarly, every provision of the Banks Staff Manual (Exhibit U) must be strictly complied with by the Bank when dealing with every member of its staff.

Thus, in the instant case, section 5 

of Chapter 5 of the said Staff Manual (Exhibit 
U) provides that the 1st appellant is 
required to suspend a staff member only 
where a prima facie case of a serious nature 
has been established against the staff 
member by a court or by an Investigation 
Committee. This provision was breached in 
the respondent’s case. The letter suspending 
him without pay dated 8th May 1992 was 
issued when it was not shown that a prima 
facie case of a serious nature was established 
against the respondent by a court or 
an Investigation Committee. It was after he 
had been suspended that the 1st appellant 
decided to refer the matter to the Investigation 
Committee. The said Investigation 
Committee’s first contact with the respondent 
was through a letter dated 22 May 
1992 in which the respondent was invited 
to send a written defence to the allegations 
made against him in the unsigned 

anonymous petition. The respondent sent 

his reply as requested. Another letter (Exhibit 
E2) was again written to him. He was 
in that letter dated 3rd June 1992 day as 

required in the letter. He was on that day cleared by the Committee of the allegations made in the said petition against him.It was after the above scenario that the 1st appellant now t u r n e d round to write its letter of termination of the respondent’s appointment, which was backdated to the date, that his suspension took effect and to which a cheque for one month’s salary said to be in lieu of notice was attached. It may also be mentioned that section 6 of Chapter 5 of the Staff Manual provides that the letter of suspension in cases of officers on Grade Level 12 and above must be issued and by the Governor and that such suspension should not last for more than one month. That provision was also breached in that the letter in question was signed by an officer on Grade Level 14 as the respondent and not by the Governor and the suspension lasted for eight months instead of the maximum of one month prescribed in the Staff Manual.

The effect of the breaches of the afore-mentioned provisions of the Staff Manual is that the suspension order imposed on the respondent was null and void and of no effect. Similarly, the decision to terminate the respondent’s appointment and treat his case as that of a new recruit
was made in bad faith and in utmost disregard of the evidence proved in the respondent’s
case. The respondent pleaded and led evidence to the effect that the 2nd appellant was the mastermind against the mischief against him. The man did not testify at the hearing. The serious allegation was therefore not controverted It must be made abundantly clear that the 1st appellant is
a Federal institution constituted and regulated by statute. Every member of staff is expected to carry out his function in accordance with the law that set up the Institution. In the result, I hold that there is no merit in the appeal. As I have stated above, the respondent’s
employment is one with statutory flavour. Where, therefore a case of wrongful termination of such appointment is made out, as in this case, the correct order to be made is one reinstating him. But the man is now dead. He died while this appeal was pending in this court and his widow was substituted to continue with the defence of the appeal. An order reinstating him to his post can therefore not be made. In that case, the order of reinstatement made by the lower court will have to be varied”.
 Examples of employment with statutory flavor can be found in employments by agencies and parastatals of government or employments in the civil service, where the terms of employment and conditions for disengagement are clearly spelt out in the enabling statute or in the relevant Civil Service Rules and Regulations. It must be noted however, that it is not every person employed by an agency of government or in the Civil service whose employment is invested with statutory flavor. The terms of the particular employment and the cadre of service are decisive in each case. Thus in a government agency like the Independent National Electoral Commission (INEC), the employment

of the Chairman may be one with statutory flavor whereas that of a cleaner may be an ordinary master and servant employment. See the case of AdebayoV. O.A.U T.H C.M.B (2000) 9 NWLR (Pt.

673) 588, where the Court made the position clear in the following words:
“The fact that an employer is a statutory body does not mean that the conditions of service of its employee must be of a special character thereby ruling out the relationship of mere master and servant”.

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