Hon. Justice Nelson Ogbuanya of the National Industrial Court, Lagos Judicial Division has declared the purported resignation notice of Aderonke Akindele as ineffectual, ordered Netconstruct Limited to pay her the sum of N763, 912.00 being the amount of the salaries owed after deduction of salary in lieu of notice of her ineffectual resignation, N1,192,986 accrued unpaid allowances, N751,058.50 Pension, N500,000.00 as general damages, and Three Hundred Thousand Naira as cost of action within 1 month.
In a suit marked NICN/LA/559/2017, the court held that Aderonke Akindele gave shorter than expected resignation notice and her conduct of not staying at work to serve out the stipulated notice period are improper, wrongful and renders the purported notice of resignation ineffectual.
From facts, the Claimant’s Aderonke Akindele had filed a complaint for recovery of her outstanding salaries, allowances and entitlements, submitted that she had to tender resignation after being ‘advised to resign’, and gave 4 weeks’ notice of resignation, and the said resignation was accepted.
However, the firm testified that Aderonke resigned her position voluntarily, and did not do a handover note despite handing over all documents and working tools in her possession, that by the Company’s Employee Handbook, the handover note is a condition precedent to receiving entitlements, and that was what delayed the payment of the outstanding salaries and entitled allowances.
Further, that having not worked up to one year, the Claimant is not entitled to some allowances payable annually, and that the only claim the company could admit is the arrears of salaries of November and December 2016, and not those of January and February 2017, as the Claimant immediately stopped working after tendering her resignation letter.
Learned counsel concluded and urged the court to dismiss the suit in its entirety that the Claimant has failed to lead credible evidence to establish her claims.
In opposition, the Claimant contended that the employee handbook was not given to her and she could not be bound by the provisions of a document not given to her, insisted that the resignation was accepted by the Defendant and no form of query was raised then, the Claimant should be paid all her benefits.
Delivering the Judgment, the presiding Judge, Justice Ogbuanya pointed that fractional/prorated payment of salaries is not allowed in periodic employment, as both counsel erroneously posited, and held that much as an employee handbook is a composite part of an employment contract documents, it is not every establishment that issues it, and where it is issued but there is no evidence that it was indeed given to an employee, the court will lean towards the side contending against its existence, under the simple evidential rule that ‘he who asserts should prove’.
On issue of the Claimant’s allegation that she was “advised to resign”, His Lordship stated ” I find that, contrary to what the learned Claimant’s counsel would want the court to endorse, there is no iota of duress or suggestion on the Defendant’s part that induced the Claimant to resign her employment with the Defendant or agree to shorter notice than the required notice period for resignation”.
“In the circumstance, I find that ‘four weeks’ notice’ period the Claimant gave to the Defendant for her resignation is contrary to the contract of the parties, as it falls short of the ‘three months’ notice’ stipulated in exh.CA1, which is the governing contract of the parties’ employment relationship, now in dispute.
“In consequence, I further hold that the Claimant is presumed to have resigned without notice, and in line with exh.CA1 is liable to pay to the Defendant the sum equivalent to ‘one month salary’ in lieu of her purported resignation notice which has become ineffectual. I so hold and order.”