PASTOR (MRS) ABIMBOLA PATRICIA YAKUBU VFINANCIAL REPORTING COUNCIL OF NIGERIA & ORS 1 .

CASE NAME: PASTOR (MRS) ABIMBOLA PATRICIA YAKUBU V FINANCIAL REPORTING COUNCIL OF NIGERIA & ORS.

Citation: (NIC/LA/673/2013)

Court: National Industrial Court Of Nigeria

Judge: His Lordship Hon. Justice Oyewumi Oyebiola O.                                       

Date of Judgment: 2016-11-24  

Parties: Pastor (Mrs.) Abimbola Patricia Yakubu (Claimant) and Financial Reporting Council of Nigeria & Anor (Defendant)

Representation: R. U. Ezeani with him is Uduak Bhavnani (Mrs), Okechukwu Nwoko and Jude Mbonu for the claimant 

Tony Nwaneri with him is A.A Oloyede, Omotola Suavres for the defendant

CASE FACTS

The claimant stated that she was employed by the 1st defendant then known as the Nigerian Accounting Standard Board on the 28th of February, 2006 as Deputy Manager (Admin) on Grade Level 10, Step 2. Her employment was confirmed six months after and she was promoted to Level 12 Step 2 effective from 1st March, 2010. Again, her employment is not governed by the Conditions of Service of staff made by the Board of the 1st Defendant but as provided by the extant Act, i.e. the Financial Reporting Council of Nigeria, Act, 2011 within the Public Service of the Federal Government of Nigeria and Federal Government Public Service Rules. In 2010, she was redeployed to the Executive Office directly presided over by the 2nd Defendant wherein she reported and worked directly with him. While working with the 2nd defendant she was at various times subjected to incessant seductive compliments and gestures. On her continuous rebuff, he resorted to unnecessarily harassing her. She averred further that when she politely expressed her discomfort to him, she was then redeployed to the Library Unit which is one of the Units under his direct headship. This afforded him a better opportunity to further his pestering, promiscuous and seductive advances on her and she would reluctantly indulge to listen to his talks, in order not to incur his wrath. She continued that no sooner had he become the Acting Executive Secretary of the 1st Defendant in July, 2010 before he eventually became the substantive Executive Secretary that he instructed that the Claimant be redeployed from the Library Unit to the Executive Office as the Executive Office Manager. Despite her fears, she had to yield working with him knowing what the consequences would be, were she to object same. This close working relationship provided him the opportunity to intensify his sexual demands on her and at times, he deliberately caused her to close very late from the office, sometimes past 10.00pm, as against the normal closing time of 4.00pm, even when at most times there is nothing meaningful to warrant the late closure. The 2nd Defendant in a bid to achieve his desires of having sex with her caused the Claimant to travel round the country together with him, purportedly on official duties, to places like Calabar, Uyo, Enugu, Ibadan, Ijebu Ode, Abuja and Minna wherein all of the times after parties have retired to their hotel rooms, the 2nd Defendant would either call or invite her to come over to his room or that he shall be coming to the Claimant’s room. She went on that the 2nd defendant went to the despicable extent of proposing to marry her and promised to relocate her to United States of America (USA) if she agrees to divorce her husband, as according to the 2nd Defendant, he is very much ready to divorce his own wife. 

ISSUE(S) 

1. Whether or not the termination of claimant’s employment by the 1st defendant was unlawful?
2. Whether or not the claimant was sexually harassed by the 2nd defendant and thereby breached her fundamental right to human dignity.

ARGUEMENTS

Claimant’s Arguments:
The claimant’s counsel argued that the claimant’s dismissal was unlawful and contrary to the procedures governing her employment. She stated that she had served for over seven years, attained Grade Level 12 Step 2, consistently paid her pension contributions, and was entitled to full employment benefits in line with the Pension Act. 
While referring to the case of Ejieke Maduka V Microsoft Nigeria Ltd &Ors, She also alleged that the 2nd defendant had subjected her to persistent sexual harassment since 2006. She maintained that she reported the conduct only after being transferred to Kaduna, a move she believed was a retaliatory action. Her complaints were submitted internally before she sought external intervention.

The claimant further contended that the transfer was punitive and formed part of a broader pattern of victimization. She insisted that the disciplinary process that led to her termination breached the principles of fair hearing, making the dismissal unconstitutional, discriminatory, and procedurally defective.

Again, he posited that as these acts were carried out by the 2nd defendant in the course of his employment, the 1st defendant is vicariously liable to the Claimant. He continued by submitting that the acts of the 2nd defendant were unwelcomed sexual advances by words and text messages, that the resistance of these advances, made the claimant disadvantaged at work and the 2nd defendant created a hostile environment for her at work. He stated that sexual harassment is a crime and referred to  

Defendants’ Arguments:

The defendants counsel submitted that her employment was governed solely by her appointment letter and not by the Public Service Rules. Consequently, it was a simple master-servant relationship that could be terminated with notice or salary in lieu of notice. Counsel submitted that having said that the employment of the defendant is one of master and servant, it is a well- established point of law that a master can terminate the appointment of a servant for any reason or for no reason at all upon due notice or on payment of salary in lieu of notice. He cited the case of Nigeria Airways Ltd V. Ahmadu. They relied on internal committee findings which rejected the harassment allegations and upheld the propriety of the transfer. They added that the claimant had accepted her terminal benefits, thereby estopping her from challenging the termination. He stated that having established that claimant accepted the entitlement she is estopped from further claiming from the defendants. He cited the case of Nwakorwbi V. Udeorah. Again, with respect to the claim of the sum of N100,000,000.00   (One Hundred Million Naira), counsel posited that damages are not awarded for a mere claim of a breach of contract and the fact that the 1st Defendant acted within its right to terminate the employment of the Claimant makes it more imperative that this claim for damages is discountenanced by the Court. He cited the case of Ezenduka V. N.S. Eng. Co. Ltd.

The defendants denied the allegations of sexual harassment, describing them as fabricated and unsupported by evidence. He posited that to sustain a claim of sexual harassment claimant ought to have known that the only way of dealing with issues as weighty as this is to report to authorities for proper investigation, and probable prosecution if an indictment is obtained against the 2nd Defendant. He argued that criminal infractions are serious offences which by our laws must be proven beyond reasonable doubt for appropriate sanctions to be met out to the alleged offender. He cited the case of Uluebeka V, State.

They maintained that the claimant’s transfer to Kaduna complied with internal procedures and that she was paid all applicable allowances. They argued that she resumed duty late, disobeyed instructions, and failed to honour an invitation to clarify issues relating to her petition.

JUDGEMENT

The Court held that the claimant’s employment had statutory flavour, as it was governed by the Financial Reporting Council of Nigeria Act 2011 and supplemented by the Public Service Rules (PSR). Due to this status, her employment could only be terminated strictly in accordance with statutory procedures.
The Court found that the 1st Defendant failed to comply with mandatory disciplinary procedures particularly PSR 030307 which requires 

1. a written query stating specific allegations, 
2. access to relevant documents, and
3. an opportunity to call and cross-examine witnesses. 

The claimant was merely invited to a committee meeting without being informed of any alleged misconduct beforehand. Consequently, the Court held that the termination of the claimant’s employment was null, void, and of no effect, having been carried out in breach of statutory provisions and principles of fair hearing.

That the claimant is to be reinstated to her position in the 1st defendant office in Lagos, but not as the Personal Secretary of the 2nd defendant.

That the 1st defendant is to pay claimant’s salaries and allowances from September,   2013 till date less the October, salary which is the sum of N5,431,005.98 within 30days of this judgment failing which is to attract the interest of 15% per annum.

The court awarded the sum of N5,000,000.00 against the 2nd defendant for sexually harassing the claimant, discrimination against her, inhuman and executive recklessness of the 2nd defendant, thereby creating a hostile working environment for the claimant and for the violation of her human dignity.

Cost was also accessed at N250,000.00 against the 1st and 2nd defendants jointly and severally.

Legal Reasoning / Ratio Decidendi

The Court’s reasoning rested on few key legal principles:

(1) Relying on authorities such as Oloruntoba-Oju v Abdul-Raheem and ECWA v Dele, the Court reiterated that employment is said to have statutory flavour when its terms and conditions are governed by statute or subsidiary legislation. The FRCN Act expressly empowers the Board to adopt the PSR in regulating staff disciplinary matters. Since no separate staff regulations existed, the Board’s reliance on the PSR meant the claimant’s employment was statutorily protected.
The express action of the 1st defendant in relying on the PSR (Public Service Rules), is a clear indication that the 1st defendant’s staff employment is regulated by statutes. They applied it and subjected the claimant to its provisions.

(2) The Court emphasized that where a statute prescribes a procedure for termination, any deviation renders the action invalid. The provision of the Rule 030307 is a mandatory requirement as failure to comply with same is tantamount to not granting fair hearing to the claimant. The 1st defendant did not only fail to comply with the procedure specified by the PSR which they relied on for the discipline and removal of the claimant, they also breached her right to fair hearing by denying her the opportunity of confronting the 2nd defendant who accused her of incompetence and lackadaisical attitude to work in person before the investigating committee. Citing Aiyetan v NIFOR and Osuah v EBS, the Court reaffirmed that issuing an invitation to a meeting does not satisfy the requirement of giving a formal notice of allegations.

(3) The claimant was not given an opportunity to confront or cross-examine witnesses, including the colleague whose testimony was relied upon by the Board. This violated elementary rules of natural justice. The Court held that once an employer chooses to apply statutory disciplinary procedures, it must adhere strictly to them. Accordingly, the Court concluded that the defendants’ action in terminating the claimant’s employment was procedurally defective, unlawful, and contrary to principles of natural justice.

The court found that the testimonies of both DW1 and DW2 did not help the 2nd defendant’s case, given that they did not in any way controvert or challenge the allegation of sexual harassment leveled against the 2nd defendant. 2nd defendant admitted at the committee that he sent text messages to the claimant. He could not also deny visiting the claimant late in the night in her hotel room. It is in consequence that I find and hold that the 2nd defendant did not controvert or challenge the evidence of the claimant bordering on sexual harassment against him. 

CONCLUSION 

For years, the failure of lawmakers to act decisively on sexual harassment has allowed harmful workplace behaviours to persist. This legislative silence has, in turn, normalized a culture where victims feel pressured to keep quiet rather than report abuse. The case confirms that employees are entitled to legal remedies for sexual harassment in the workplace. However, such protections can only arise when victims take an action. It is also no longer enough for parent companies to claim they were not directly involved in the decision leading to the termination of employment. Employers subject to statute are bound by due process and cannot pick and choose when to apply the rules. By demanding procedural fairness and accountability, the court strengthens the mechanisms for addressing sexual harassment and supports movement towards a safer and more respectful workplace culture in Nigeria.