By Glory Abuh-Adejoh

The National Industrial Court has set aside the reinstatement of 300 staff of the defunct PHCN by the Electricity Management Service ( NEMSA).

The Industrial Arbitration Panel (IAP) had ordered the reinstatement of 300 defunct Power Holdings Company of Nigeria ( PHCN) staff that were reengaged and later disengaged by NEMSA.

Delivering judgment in a panel judgment presided by Justice Osatohanmwen Obaseki-Osaghae, the court stated that there were four issues that needed to be determined by the court:

“Whether the case of the appellant was competent before the court.

“Whether the reengagement of the staff of the defunct PHCN in the employment of the appellant was one clothed with statutory flavour.

“Whether the appellant’s staff can still be considered pensionable employees of the Federal Government having collected severance pay.

“Whether or not the appellants reengaged/disengaged over 300 staff of the defunct PHCN,” the judge said.

Concerning the first issue, the court held that the case was competent as time had not caught up with the case as submitted by the appellant NEMSA.

The appellant submitted that the cause of action had taken place over six years.

The court however held that NEMSA was established by the Act in 2015 and the disengaged staff were given offer letters in April 2016 and were disengaged in 2018 and 2019, therefore the cause of action arose when they were disengaged.

The respondent’s argument that the appellant did not give Notice of Appeal of the IAP’s award before instituting the suit the court made the suit incompetent.

The court however held that it was the Minister that referred the matter to the court for the issues to be resolved, and not the appellant.

The court in addition held that the employment of the disengaged staff were that had a statutory flavour.

On whether the appellant’s staff can still be considered pensionable employees of the Federal Government having collected severance pay.

The court said” we find and hold that the transferred staff did waive their right when they accepted their severance pay and a new contract.

“They are thus estopped from trying to take advantage of what they have already waived”.

The final issue regarding the number of staff that the appellant were directed to reengage, the court stated thus:

” It is the duty of the respondent who sought the prayer upon which award was based and who asserted that over 300 staff of defunct PHCN were ceded to the appellant at inception to prove same.

” In the absence of any evidence in proof of same the IAP ought not to make award No. 2 regarding over 300 staff, it is long settled principle of law that Courts should not decide a case on mere conjecture or speculation.

“Courts are concerned with facts and law. Therefore the Court can only decide a case on facts established before it.

However, the appellant on its own part relied on Exhibit B1 which is letter dated Jan. 17, 2014 addressed to the Head of the said company wherein an approval was granted to retain/reengage 153 staff of the defunct PHCN and according to which the list of staff to be retained.

“It is clear from the Exhibits in this case, particularly Exhibit B1 and C that though a total manning 375 positions were approved for the Nigeria Electricity Management Service Plc erroneously referred to as Electricity Management Services Limited.

“153 staff of the defunct PHCN were re-engaged to fill some of these positions in 2014. In view of the reliance of the appellant on Exhibit B1 which clearly together with the Annex II show that 153 staff of defunct PHCN were approved to be re-engaged.

” We find for a fact that 153 staff of the PHCN were actually taken into the fold of the Electricity Management Services Plc to man some of the 375 manning positions approved for 2014.

“There is no evidence on record to evince that over 300 staff of the defunct PHCN were re-engaged.

“The respondent herein at the IAP did not lead any evidence to prove that it was over 300 staff of the defunct PHCN that were transferred or reengaged by the Electricity Management Services Plc.

“Appellate Courts very rarely upset findings of fact by the trial Court, only when the findings are perverse or cannot be supported by evidence.

“Accordingly the decision of the IAP that over 300 disengaged staff of the defunct PHCN are to be reengaged by the appellant is without evidential basis.

” Consequently, and for all the reasons given above, the entire award of the IAP is hereby set aside,” the judge held

From facts, following the Federal Government Privatisation of the power sector, the PHCN was unbundled.

The respondent, National Union of Electricity Employees ( NUEE) negotiated terms and conditions of disengagement of workers with the FG.

Upon the establishment of the appellant, NEMSA some staff of defunct PHCN were paid their severance benefits and transferred to the appellant.

The appellant obtained the approval of the Minister of Power to engage on contract basis 153 transferred staff of the defunct PHCN.

Later in 2016 some of the staff were disengaged from the services of the appellant.

In August 2016 the appellant with the approval of the Minister retained on contract basis 45 technical staff of the defunct PHCN.

In respect of which contract documents containing the terms and conditions of employment were drawn up with effect from Jan. 1, 2016 for two years at first instance.

About 30 of these staff had their contracts renewed between January 2018 and December 2019.

Subsequently, the staff were disengaged from the services of the appellant in Dec. 2019 and their individual contracts were not renewed.

Consequent upon which the respondent issued 14 days ultimatum demanding the reinstatement of the 30 disengaged staff.

Following which series of meetings were held with the Minster of Power, Head of Service and the Representatives of the appellant and respondent a trade dispute was then declared.

The trade dispute was resolved by the declaration and award made by IAP.

The appellant had however rejected the award and prayed for it to be set aside.

The issue was therefore referred to the court by the Minister for determination. (NAN)

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