Should Suspended Employees Still Get Paid? Exploring The Rights to Wages and Emoluments During Suspension

CASE TITLE: ECO BANK (NIG.) LTD v. IDEMUDIA (2023) LPELR-61505(CA)

JUDGMENT DATE: 29TH NOVEMBER, 2023

JUSTICES:JAMILU YAMMAMA TUKUR, JCA

JAMES GAMBO ABUNDAGA, JCA

DANLAMI ZAMA SENCHI, JCA

DIVISION: ​​​ABUJA

PRACTICE AREA: LABOUR LAW

FACTS:

This is an appeal against the judgment of the National Industrial Court, sitting in Abuja in Suit No. NICN/ABJ/113/2014 delivered on 25th May, 2017.

​The Respondent whilst in the employment of the Appellant was suspended and subsequently dismissed on the ground that he is a major shareholder of Halcelemates Nig. Ltd, a company that fraudulently posed as the bank’s approved recovery agent. Ademand letter was written on the company’s letterhead to a facility customer by the name of Priscilla Udehz and the company’s account at Diamond Bank subsequently received payment. The Respondent claimed innocence and denial of fair hearing in his suspension and subsequent dismissal. Feeling aggrieved, the Respondent approached the National Industrial Court for redress and sought among others a declaration that his dismissal by the Defendant vides the letter of dismissal dated February 4th, 2014 and signed by Nora Akinyemi is wrongful and unlawful, that the indefinite suspension without pay of the Claimant by the defendant from the 18th day of July 2013 to 4th February 2014, and subsequent dismissal, without first giving the Claimant fair hearing, is wrongful and against the rule of natural justice and fair hearing and damages.

The Appellant denied the Respondent’s claims. The Appellant’s defence is that the Respondent was dismissed after a committee set up to investigate him found him guilty of gross misconduct which undermined the policies of the Appellant. The Appellant therefore urged the Court to dismiss the claims as same are spurious and gold digging. Both sides called evidence and tendered Exhibits, and after the trial, the Court delivered its judgment, granting most of the reliefs sought by the Respondent.

Being dissatisfied with the decision of the trial Court, the Appellant appealed to the Court of Appeal.

ISSUES FOR DETERMINATION:

The Court determined the appeal based on the following issues for determination:

1. Whether the trial Court was correct when it held that “from the evidence before this Honourable Court, this Court is satisfied that the panel set up by the Defendant found nothing linking the Claimant to Mrs. Priscilla Udeh on the loan facility she got from the bank nor was it established at the panel that Mrs. Priscilla acted on misrepresentation by the Claimant and I so hold”, and therefore entered judgment in favour of the Respondent.
2. Whether the application for amendment filed on the 22nd of June, 2016 was indeed rightly refused by the trial Court.
3. Whether the trial Court was correct when it held that the suspension of the Respondent without pay, without first giving him a fair hearing is wrongful and against the rule of natural justice.
4. Whether the learned trial Court was justified to award damages in the sum of 5 Million Naira.

COUNSEL SUBMISSIONS

The appellant’s counsel argued that the trial Court’s conclusion regarding the suspension of the Respondent, pending investigation, was based on an incorrect interpretation equating suspension with a finding of guilt. He emphasized the importance of fair hearing in any process determining one’s rights or entitlements, citing cases such as Mbanefo v. Molokwu & Ors (2014) and Ogundoyin & Ors v. Adeyemi (2001) on this principle.

According to the counsel, suspension should be viewed as a timeframe given to the employer to conduct an inquiry into alleged misconduct, in line with the company’s policies and labor laws. He referred to Exhibit A7, the company’s policy, outlining disciplinary procedures for misconduct. Counsel argued that the suspension was merely a procedural step to enable the employer to investigate the alleged misconduct properly, citing INEC v. Okoronkwo (2009) to support the employer’s authority to suspend an employee.

However, he conceded that while the employer had the right to suspend pending investigation, it should not be without pay. 

Respondent’s counsel countered by stating that there was no provision in the company’s policy book authorizing suspension without pay. He argued that the Respondent was not given a fair hearing before suspension and subsequent dismissal, which they deemed a conclusion of guilt, violating Section 36(1) of the Nigerian Constitution. Counsel cited cases such as United Bank for Africa v. Oranuba (2014) and C.K. & W.M.L. v. Akingbade (2016) to support his argument on fair hearing.

Respondent’s counsel further contended that the Respondent was not adequately informed of the allegations levied nor given a chance to defend himself, as required by principles of fair hearing. Counsel referred to evidence indicating the Respondent’s lack of awareness before his detention, asserting that this lack of rebuttal from the Appellant demonstrated the absence of fair hearing. 

DECISION/HELD:

In the final analysis, the Court dismissed the appeal.

RATIO:

LABOUR LAW – SUSPENSION FROM EMPLOYMENT: Whether a suspended employee is entitled to his wages/emoluments during the period of suspension

“The Appellant in the entirety of their argument has tried to justify the suspension to the desirability to carry out unfettered investigation into an alleged misconduct of the magnitude of a crime. Counsel to me has missed the point in the complaint of the Respondent and the finding of the trial Court on it. Nowhere did the trial Court state that the Appellant was wrong in suspending the Respondent to pave way for unfettered investigation. What the trial Court faulted was the suspension of the Respondent without pay from the date the Appellant took the decision to suspend him.

The right of an employer to suspend an employee is not at large. It must be done within the ambit of the law. In the case of Ernest v. First Consultant Medical Centre Ltd (2023) LPELR-60228 (CA), the Court held:

“In Mobil Producing Nigeria Unlimited & Anor. vs. Udo (2008) LPELR-8440 (CA) it was held: ” … in the instant case there is no evidence before the trial Court that there were any laid down conditions between the parties stating clearly the right of the 1st Appellant to suspend the Respondent without pay. The 1st Appellant did not tender through D.W.2 any document embodying such conditions of service. What it amounts to is that the 1st Appellant did not possess the right under the said contract of employment to suspend the Respondent indefinitely without pay. Chitty on Contracts is very explicit on this saying that there is no implied contractual right on the part of the employer to suspend the employees without pay on disciplinary grounds. For there to be no pay, it must be expressly stated in the contract agreement of the parties. See Chitty on Contracts, 25th Edition Page 683 Paragraph 3456.” Per BAYERO, JCA (P. 21, paras. A-E).

See also the cases of Sagamu Microfinance Bank Plc v. Lawal (2022) LPELR-58767 (CA) Pp. 41-42, Paras D-A, Globe Motors Holdings (Nig.) Ltd v. Oyewole (2022) LPELR-56856 (CA) Pp. 19-22, Paras E-A. I have gone through the Appellant’s Ecobank Group Human Resources Policies. I have also read the Appellant’s Rules on Business Ethics. My search for justification of Appellant’s action in suspending the Respondent without pay took me to Exhibit A1, the offer of employment letter, dated November 18th, 2022. Nothing in all these documents can come to the Appellant’s rescue. In other words, there is nothing in all these that gives the Appellant the right to suspend the Respondent without pay. In fact, the Court in the case of UBA v. Oranuba (2014)2 NWLR (Pt 1390)1 at 22 did not spare the Appellant who suspended the Respondent its employee and placed him on half salary. The Court considered such an action punitive.

Section 36(5) of the Constitution of Nigeria, 1999 (as amended) presumes any person who is charged with a criminal offence innocent until proven guilty. This can only mean that an employee who is accused of committing a crime cannot be subjected to any disability in the course of his employment until he is proven guilty. So long as suspension is not termination, the employee’s employment remains alive even when placed on suspension to facilitate an unfettered investigation into the allegations against him. Thus, he cannot be denied his entitlement, even on half salary.” Per ABUNDAGA, J.C.A.