Duty of an Employee Claiming Wrongful Termination of Employment to State the Specific Provisions of the Public Service Rules that Applies to His Case

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CASE TITLE:  MR. CASMIR ONUCHUKWU v. NIGERIAN MIDSTREAM AND DOWNSTREAM REGULATORY AUTHORITY (2022) LPELR-58172(CA)

JUDGMENT DATE:  5TH JULY, 2022

JUSTICES:  STEPHEN JONAH ADAH, JCA

BIOBELE ABRAHAM GEORGEWILL, JCA

BATURE ISAH GAFAI, JCA

COURT DIVISION:  ABUJA

PRACTICE AREA:  LABOUR LAW- WRONGFUL TERMINATION OF EMPLOYMENT

FACTS:

The Appellant was employed by the Respondent (Nigerian Midstream and Downstream Regulatory Authority) on a temporary contract basis on the 5th of April, 2011 for a period of six months. The employment was thereafter renewed for a further period of six months.

After the expiration of the second tenure of his employment in March 2012, the Appellant’s employment was neither confirmed nor renewed. He was however disengaged much later notwithstanding the Respondent’s impression to the Appellant that his employment had been confirmed.

Disgruntled, the Appellant approached the National Industrial Court via a suit seeking several declaratory Reliefs and mandatory orders which altogether were for declarations that the act of the Respondent was, in the circumstances, unlawful, ultra vires, deserving the mandatory orders of the trial Court reinstating him into the Respondent’s employment; paying to him accrued salaries, entitlements and allowances from the 25th of September, 2017 when his employment was terminated as well as damages and cost.

In its considered judgment, the National Industrial Court awarded the Appellant a one-month salary in lieu of notice.

Dissatisfied, the Appellant appealed to the Court of Appeal.

The Appellant’s grievance is the National Industrial Court’s finding that the Public Service Rules do not apply to his employment by the Respondent and that the Court was wrong when it resorted to the provisions of the Labour Act in determining his case instead of Rule 160103  of the Public Service Rules.

ISSUES:

The appeal was determined upon consideration of the issues thus:

1. Whether or not the lower Court was wrong to find that the Public Service Rules is inapplicable to the Appellant’s employment and that the said employment was not one with statutory flavour?

2. Whether or not the lower Court was correct to have found that the Appellant’s employment could be terminated for any reason or no reason once reasonable notice or payment in lieu of notice is given?

3. Whether or not the lower Court was correct to have refused the Appellant’s reliefs (c), (e), (h) and (i) as contained on the complaint and statement of facts?

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DECISION/HELD

In the final analysis, the appeal was dismissed.

RATIO

LABOUR LAW- WRONGFUL TERMINATION OF EMPLOYMENT: Duty of an employee claiming wrongful termination of employment to state the specific provisions of the Public Service Rules that applies to his case; effect of failure

“If, as the Appellant has argued strenuously, that his case falls squarely within the ambit of the Public Service Rules, (which argument the lower Court rejected), the Appellant ought to have gone further beyond the provisions of Rules 160103 more, particularly in its second limb which directs that “in the absence of internal Rules and Regulations on any matter, the relevant provisions of the Public Service Rules shall apply” to show which particular relevant provisions of the rules apply to his facts and to the evidence placed before the lower Court.

The Appellant did not state the specific provisions of the Public Service Rules which apply to the class of employment he founds on i.e., temporary employment because as explained earlier, the Rules, whether by design or omission, did not make specific provisions governing or regulating temporary appointment in the Public Service although, as I stated earlier, it is listed in Regulation 02021 as an appointment by recruitment. It must not be forgotten that the Appellant’s core argument under this Issue is that his appointment is one governed by the Public Service Rules.

Which particular Regulations in the rules is the Appellant suggesting? Even if the Appellant’s argument that the Public Service Rules apply to his case is valid, it is necessary to refer to the specific Regulation(s) in it by which the Court can assess the evidence. The Appellant neither stated at the trial nor hinted at those Regulations if any; except his staunch reliance on Regulation 160103 (supra) which clearly contains omnibus, general provisions that do not in any way capture or envisage the Appellant’s main complaint in the suit before the lower Court. Relying on those provisions and submitting on same by calling in aid the decisions in the judicial authorities referred thereunder as done by the Appellant’s learned counsel is, with respect, merely scratching the surface.

Unlike the Appellant, the Plaintiffs in the cases leading to the appeals in the decisions he referred did not merely rely on the provisions of Regulation 160103 (supra) as is done herein; but utilized those Regulations only as a gate pass or key into the main specific provisions of the Rules which regulate their complaints, e.g., unlawful dismissal from office, unlawful termination of employment or such specific complaints that were rooted in particular Regulations. See PHCN vs Offoelo (2012) LPELR – 1917 (SC).

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Just as it is the settled practice in disciplinary proceedings under the Public Service Rules that an allegation or Query against a staff employee shall specifically refer to and state the particular Rule or Regulation alleged to have been contravened, it follows also, more so in law, that a Plaintiff shall specify and state the particular Regulation(s) under which he bases his claim under the Rules and to further link same with the facts of his claims as a matter of proof.

He and he alone carry on his head the burden of proof by the dictates of the provisions of Sections 131 and 134 of the Evidence Act 2011 which placed the burden of proof on him albeit on a balance of probabilities. See HRH Alhaji Ado Bayero & 1 Or. vs. Alhaji Amiau Babba Dan Agundi & 9 Ors (2021) 16 NWLR (Pt. 1802) 547 at 369 paras. A – C; 377 paras A – E; NUP vs. INEC (2021) 17 NWLR (Pt. 1805) 305 at 354 paras. A – B.

In the absence of an indication by the Appellant at the trial and as argued under this issue of the provision or Regulations in the Public Service Rules which the Respondent is accused of breaching and how the Appellant’s facts fit into those provisions, it is difficult, as the lower Court rightly found, to apply those rules on the Appellant’s case to entitle him to a declaration that his employment is one with statutory flavour.

In effect, the Appellant has failed to disclose or hint any particular provisions of the Public Service Rules that accorded or can be construed to have accorded him the status of permanent staff in the Respondent, his claims which proceeded under the false notion that he is one must accordingly fail including more particularly the claim of statutory flavour on his employment which he himself has maintained is only temporary employment without showing any plausible evidence of its metamorphosis into permanent employment.” Per GAFAI, J.C.A.

SOURCE: LAW PAVILLION

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