The National Industrial Court on Friday affirmed the National Open University of Nigeria’s, NOUN, the decision to convert its staff member’s employment from permanent to contract staff, as lawful.
Dr Atuma Okpara, through his counsel, Seprobofa Oyegha, approached the court to seek redress when his employment as a tenured, permanent and pensionable appointment was converted to contract staff.
Delivering judgment, Justice Olufunke Anuwe, held that defence did not file its memorandum of appearance and other processes out of time as averred by the claimant’s counsel.
Mr Anuwe ruled that at the time of filing, the court’s COVID-19 measures on number of days’ processes needed to be quarantined was in effect.
The court in addition stated that the cause of dispute in the suit was the letter of appointment of the claimant that was converted to that of a contract staff.
The court in addition submitted that the claimant had averred that he was 48 years old when he was employed in 2010 and not 51-year-old.
The judge further said that defence had argued that the claimant’s appointment in 2013 was not in accordance with the provisions of Public Service Rule (PSR), as he was already above 50 years as the time of the employment.
Mr Oyegha however submitted that the said section of the PSR was not applicable to university lecturers and those that have more than 10 years in service.
The court however ruled that the claimant’s assertion that his 2010 employment was regularised and converted to permanent employment in 2013, was not in the continuity of the first appointment.
”I do not find anything that it was continuity of the first one, the first one was temporal, while the second is pensionable and not the same.
”The second appointment should have shown that it was the conversion of the first one and the claimant did not apply for conversion,” Mr Anuwe said.
The court said that furthermore, the claimant’s testimony helped the court to arrive at its decision as he said that he never applied for his employment to be converted.
The court said that the claimant admitted that he filled and signed a staff data form where he ticked a fresh appointment in the box.
” I find and hold that the claimant’s appointment in 2013 is a fresh one.
” The age of the claimant at the time of his employment in 2013 is his age
” He did not plead his age at the time of his second employment, he only stated that he was below 50 years when he was employed in 2010.
” He however turned 51 years in July, 2013, which means he was more than 50 years when he was employed in 2013″, the court ruled
The court further held that the PSR provision stipulates that a person less than 18 years and more than 50 years should not be employed.
That the PSR employment is with statute flavor and its provisions must be complied with when making any employment.
The court finally held that the claimant was more than 50 years when he was employed in 2013, was not eligible and was done in violation of PSR.
”The appointment is void and the court cannot concede to the claimant’s prayer to declare his conversion from a permanent to contract staff, as unlawful.
”When the defendant realised its mistake in the claimant’s employment, it was converted to a contract appointment.
”I cannot fault the action of the defendant”, the court held.
From the claimant’s statement of facts, he submitted that he was not over 51 years at the time of his employment and even if he was, converting and seeking to terminate his employment on basis of age, amounted to discrimination in employment and hence unlawful and unconstitutional
He also said that he was a staff and a lecturer at NOUN where he lectured in the Department of Business Administration, Faculty of Management Sciences.
He further averred that was initially employed as a part-time Instructional/Tutorial facilitator.
He added that on July 25, 2013 he was offered a temporary appointment on a continuity basis in view of having served in the Institution.
According to Oyegha, his client’s employment was confirmed and he was offered a letter of Regularisation of appointment.
He stated that he was later promoted to the rank of Lecturer 1 on CONUASS 4 STEP 1 with effect from Jan. 1, 2017 and elected as the Deputy Dean, Faculty of Management Science.
The counsel said that however on Dec. 11, 2019, his client received a letter from the university informing him that his appointment had been converted from permanent and pensionable to contract staff with effect from Aug.2, 2013.
He submitted that the reasons given were that he was over 51-year-old before joining the public service and it would be terminated on Aug. 1, 2020.
He, therefore, sought declarations and orders from the court
He sought a declaration from the court that he was duly employed as a permanent and pensionable academic staff of the university
He also sought an order setting aside the defendant’s letter of Dec. 11, 2019, purportedly converting the claimants’ tenured, permanent and pensionable employment to the status of mere contract staff, and declaring same as null, void and of no effect whatsoever.
An order restraining the defendants from further converting the claimant’s tenured appointment to mere contract status.
An order that the defendants jointly and severally pay the claimant the sum of N100 million as general damages.
An order awarding interest of 10 percent on the judgment sum from the date of judgment until final satisfaction of same.
The claimant had joined the vice-chancellor of the university as a second defendant in the suit.