Requirement of Fair Hearing Even Before a Quasi-Judicial Panel

The Respondent joined the employment of the 1st and 2nd Appellants in 2001, where she rose to the post of Region Human Resources Manager on annual salary of N17,368.468. She was summarily dismissed on an alleged gross misconduct, bordering on breach of the code of business conduct for submitting non-business related expenses for reimbursement and for disclosing official confidential information to an outsider, her husband. The Respondent made her representations before the audit-panel, after which the panel forwarded its findings to the Ethics and Compliance Committee (ECC) of the 1st and 2nd Appellants. The ECC relied on the audit report to recommend the Respondent’s dismissal, by which she was summarily dismissed. The Respondent subsequently made two appeals, with additional representation for review of the dismissal; however, the ECC after considering same found no basis to review the dismissal.

Unhappy, the Respondent filed an action at the trial Court where she successfully challenged her dismissal, on the ground that she had no knowledge of any specific allegation made against her, until she was summarily dismissed. Aggrieved by the judgement of the trial Court, the Appellants filed this appeal challenging the decision.

Issues for Determination The issues for determination were: (1) Whether the Court below was right to have refused to attach probative value to Document-15 – the audit report in respect of the transaction;

(2) Whether fair hearing covers the investigation of an Administrative Panel/Tribunal; and

(3) Whether the acceptance of payment of terminal benefits, did not preclude the Respondent from challenging the determination.

Arguments The Appellant contended even though Document-15 was not signed by its maker, it did not warrant the trial Court to reject it in evidence, as it was an internal memorandum bearing the names and designation of the two persons that authored it. On the second issue, it was argued that the fair hearing provision in Section 36(1) of the Constitution, does not cover investigation of Administrative Panel, adding that by the Respondent’s acceptance of payment of the terminal benefits, she was precluded from challenging her dismissal thereby.

For the Respondent however, it was contended that Document-15 was unsigned, had no probative value and was therefore, void. Also, that fair hearing was denied the Respondent by the Panel, as she was not confronted with specific allegations of gross misconduct, and the letter of invite to appear before the Audit Panel did not specify any allegation against her.

Court’s Judgement and Rationale On the first issue, the Court noted that where the rule of evidence requires a signature, or provides for certain consequences if a document is not signed, an electronic signature would satisfy that rule of law and avoid those consequences. SECTION 93(2) of the EVIDENCE ACT 2011. The Court added that a type-written document should bear manual signature or mark, and that an electronic document could bear electronic signature or mark signifying authorship of the document for its integrity and genuineness to be preserved. SECTION 258 (1) of the EVIDENCE ACT 2011.

In this case, Document-15 (the audit report) emanated from Anna Geraci and Paul Docekal, and was sent to the ECC on the investigation affecting the Respondent. The origin of the document was not in doubt since it had the names of the authors at the beginning showing that it was an internal correspondence. Since the primary purpose of a signature is to identify the origin of the document as coming from a particular source and thus genuine, the names of the makers of the Document-15 stating that the document emanated from them sufficed to make the document authentic. Therefore, being an internal correspondence from the staff of the 1st and 2nd Appellants, the trial Court should have attached weight to it.

On the second issue, it was held that fair hearing as one of the twin pillars of natural justice, is enshrined in Section 36(1) of the 1999 Constitution; thus, where fair hearing is not expressly provided for, it could be implied or applied as a pillar of natural justice. Thus, whether a contract of employment is statutory or based on master/ servant relationship, the observance of the rule of natural justice cannot be over-emphasised. The principle of fair hearing applies to both private and public bodies with attendant requirements. AIYETAN v THE NIGERIAN INSTITUTE FOR OIL PALM RESEARCH (N.I.F.O.R) (1981) 2 N.S.C.C 777 AT 782-783; Also in BABA v NIGERIAN CIVIL AVIATION TRAINING CENTRE, ZARIA & ORS (19191) 22 N.S.C.C (Pt.2) 145.

Relying on the above, the Court added that where a Panel is merely investigatory and does not determine the rights of an employee, its duty is to act in good faith, by fairly listening to both sides before deciding the matter in controversy between the parties. Accordingly, the Panel that uses the investigative report to discipline the employee, must confront the employee with the report in form of query for his representation before taking a decision. In this case, the invitation commencing the investigation of the Respondent was silent on what she was being investigated for. The particulars upon which the Respondent was subsequently dismissed, should have been communicated in advance for her to know what she was to meet at the Audit Panel and prepare for it.

The disciplinary body relied on the report to summarily dismiss the Respondent, showing that the Panel was obliged not to only state the specific allegations in the letter of invitation to the Respondent in advance before the meeting with the Panel, but the Panel should have afforded the Respondent adequate time to prepare her defence against the allegations. Their Lordships agreed that the Panel fell short of these requirements. Hence, the principle of fair hearing was breached when the Respondent received only 24 hour notice to respond to the invitation, without mention of the allegation. The Respondent was not presented with the whole case against her, as she was not confronted with some adverse information which was used by the Panel and accepted by the 1st and 2nd Appellant. Consequently, the breach of her right to fair hearing, resulted in the violation of one of the principles of natural justice. The Court noted that the trial Court believed the Respondent was denied fair hearing before the decision to summarily dismiss her; therefore, such finding of fact would not be disturbed on appeal, as the trial Court had the advantage of watching and hearing the witness while giving evidence in the witness box.

Deciding the third issue, the Court held that where a contract of employment is silent on termination, Sections 14, 16 and 19(d) of the National Industrial Court Act allows the Court to use its discretion to assess the quantum of damages for wrongful termination of the employment, and award reasonable and fair amount assessed to it by the employee for the wrongful termination. However, where the contract of employment makes provision for determination of employment, the measure of damages for wrongful dismissal is determined by the terms which are binding between the parties and cannot be altered, as the Courts cannot make contract for parties. INTERNATIONAL DRILLING CO. NIGERIA LTD. v MOSES AJIJALA (1976) N.S.C.C 88

Applying the provision above, the letter of dismissal provided that the Respondent violated the Code and that she would receive separate communication from the finance department on the settlement or reimbursement of any outstanding expenses, without mentioning the one month salary in lieu of notice. Relying on CHUKWUMAH v SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD. ( 1992) 4 NWLR (PT. 289) 512 AT 571 where it was held that the payment of salary in lieu of notice, is a condition of the contract of employment that must be paid at the time the letter of termination is delivered to the employee, the Court agreed that the collection of outstanding expenses could not bar the Respondent from instituting an action at the trial Court as she did. Salary in lieu of notice, which is a term of contract, is distinguishable from other terminal benefits due to an employee at the determination of the contract of employment. It is the collection of the latter by an employee before filing an action in Court, that would affect a term of the contract and bar the employee from filing an action to challenge the determination of the contract of employment.

By the terms of the contract, the Respondent was entitled to a month salary in lieu of notice, and there is no evidence before the Court that she was offered and/or collected it before instituting the action. It follows, that there is no basis to hold that the Respondent was barred from filing the action.

On this note, the Appellate Court found the appeal on liability unmeritorious, and same was dismissed. The Court, however, allowed the appeal on damages in part by reducing the sum of N17,368,468.00 awarded to the Respondent to N1,447,373.33 representing the Respondent’s one month emolument in lieu of notice.

Appeal Allowed in Part.

Representation: Mr. C.A. Candide-Johnson, SAN with I.A. Onyebuchi Esq. and Mr. A. Adewole for the Appellants.

Mr. I. Isiekwena with Mr. A. Adedoyin and Mr. O. Odum for the Respondent. Reported by Optimum Publishers Limited ( Publishers of the Nigerian Monthly Law Reports (NMLR))

“....WHERE A PANEL IS MERELY INVESTIGATORY AND DOES NOT DETERMINE THE RIGHTS OF AN EMPLOYEE, ITS DUTY IS TO ACT IN GOOD FAITH, BY FAIRLY LISTENING TO BOTH SIDES BEFORE DECIDING THE MATTER IN CONTROVERSY BETWEEN THE PARTIES”