COURT RULES ON COMPANY’S LIABILITY FOR WORKPLACE VICTIMISATION OF WHISTLEBLOWER

Introduction

Most companies have learnt to incorporate whistleblowing policy as part of their company policies. By this policy, a company may encourage its employees to report incidences of fraud, bribery, corruption and other unethical business practices to the company. This is to safeguard the company from the adverse effects of such practices.

As part of the policy, whistleblowers as well as all those who volunteer useful information to the company are promised adequate protection. Their identities are expected to be held in strict confidence. Also, they ought to be protected from any form of retaliation and victimisation.

A company known as Notore Chemical Industries Ltd introduced a whistleblowing policy dated 27 September 2013 and promised members of staff adequate protection. In no distant time, the company’s drive to implement the whistleblowing policy was tested. But it failed, woefully. This was in the case of Mrs. Sharon Philip v. Notore Chemical Industries Ltd. – Suit No. NICN/YEN/56/2015. The case was decided on 29 July 2022 by Hon. Justice N.C.S. Ogbuanya of the National Industrial Court, Port Harcourt Division.

Mrs. Sharon Philip v. Notore Chemical Industries Ltd.

Notore Chemical’s whistleblowing policy encouraged members of staff to ‘Speak Out’. Based on the Policy, an anonymous whistleblower hinted of some corrupt practices going on in the company through the available hotlines. An Ethics Committee was set up by the company at its Head Office in Lagos. The Committee was to investigate unethical business practices amongst some senior staff of the company in the company’s branch office at Onne, Rivers State. As a result, some members of staff of the company, including Mrs. Sharon Philip, were invited by the Committee. Mrs. Philip’s testimony before the Committee led to the suspension of some of the senior staff, particularly, Mrs. Tola Mbachu and Mr. Apollo Goma, for about a year. Mrs. Tola Mabachu was Mrs. Philip’s immediate superior/boss in her office.

Expectedly, trouble began.

According to Mrs. Philip, upon returning from the suspension, Mrs. Mbachu and Mr. Goma defamed, victimized and oppressed her. The duo orchestrated issuance of a query to her on 25 February 2014, and unjustly subjected her to disciplinary hearing under false allegations. The allegations bordered on her alleged involvement in fraud which allegedly resulted in loss of some millions of Naira to the company. She was also accused of engaging in corrupt and unethical business practice with one of the company’s contractors, Praiselink Integrated Services Ltd. Mrs. Philip responded to the query by a response dated 3 March 2014. Nothing was found against her after the disciplinary hearing.

Still bent on receiving her pound of flesh, Mrs. Mbachu made a written report against Mrs. Philip stating that Mrs. Philip was no longer in the new structure of the Administration and General Services Department of the company where Mrs. Philip worked. This made her to start floating like a piece of paper on water. She was left without scheduled duty or reporting line. The incident was evidenced by a Minutes of the Admin Meeting on 27 January 2014. Ultimately, Mrs. Philip’s employment was terminated on 5 March 2015.

Aggrieved, Mrs. Philip (as Claimant) filed an action at the National Industrial Court against the company claiming millions of Naira as employments benefits and damages for unlawful termination. The company, as Defendant, denied the claims.

Court decides

Upon a fine combing of the facts and evidence presented by both sides, the Court found that the exit pathway in the case was termination, and was neither redundancy (as claimed by the company) nor dismissal (as claimed by Mrs. Philip).

The Court believed the Claimant’s story. It was of the position that the Claimant’s termination had everything to do with her testimony before the Ethics Committee. Ogbuanya, J. stated:

From the foregoing testimonies and evidence of the chronological happening of incidents on the issue of the Claimant’s victimization at workplace, I find that the chain of events and incidents culminating to the termination of the Claimant’s employment has an unbroken link with her testimony at the Ethical Committee hearing of the Defendant, which indicted the said Tola Mbachu, the Claimant’s immediate Supervisor…

Protection of Whistleblower

In view of the above finding, the Court was left to determine whether the company offered any protection to the Claimant as it promised in its Policy. Again, the learned trial Judge painstakingly considered the surrounding circumstances.

  • Tola Mbachu resumed from suspension and the Claimant remained under her supervision. Mrs. Mbachu would naturally be inclined to use her superior position to oppress and victimize Mrs. Philip in retaliation. Undoubtedly the evidence on record established this.
  • No reason was furnished by the company regarding the Claimant’s performance that could warrant her being ‘restructured’ out of her office. This was in view of the fact that she had good rating in performance evaluation at the last exercise of 04/07/13.
  • There was no memo to show that the restructuring exercise was an office-wide exercise. Rather, the evidence showed that the exercise was restricted to Mrs. Philip’s Department and targeted at her and one other staff (Omadachi, who was not in Court).

The Court reasoned that Mrs. Philip was not just an anonymous reporter, like the one who triggered the investigation and subsequent hearing. Rather, she was called to testify as a witness, which would necessitate higher standard of protection. Consequently, Ogbuanya, J. held thus:

I hold that despite the assurance of protection under the Defendant’s Whistle blowing policy in exh.C4, the Defendant failed to take measures to protect the Claimant from workplace victimization incidents, orchestrated by the said Tola Mbachu (who was the Claimant’s erstwhile supervisor), in retaliation of the Claimant’s testimony against her at the ethical committee hearing that led to her suspension from duty.

The learned trial Judge held that the company owed the Claimant a duty of care which it failed to observe. His Lordship’s statement of the law and principles in this regard is worth quoting in full:

The Defendant surely owed the Claimant a duty of care to protect her against the risk of retaliation, which eventually happened unrestrained, culminating in the Claimant’s loss of her job without substantiated reason. It must be noted that the emerging whistle-blowing policy as a mechanism for anti-corruption crusade in both public and private sector cannot thrive without adequate protective measures for those involved in its implementation, particularly those who come forward to testify. Whistle-blowing policy is rooted in and can best thrive on confidentiality and protection of implementers of the policy, of which the court should ensure that those who set up whistle-blowing policy are mindful of its ground rules, to avoid its high risk of retaliation.

His Lordship further held that this duty of care to protect the Claimant from risk of any harm against retaliation under the whistle-blowing policy of the Defendant is not only contractual, but also founded in the common law rule on tort of negligence. He relied on the case of Kabo Air Ltd v. Mohammed [2015] 5 NWLR (Pt. 1451) 38 CA.

Decision on the claims

The Court awarded N5 Million to the Claimant as general damages. Also, it granted claims relating to unpaid terminal benefits. But rejected Claimant’s claims for terminal benefits involving December 2028. This was on the ground that such claims extended beyond the termination of the employment in March 2015.

The Claimant’s claims based on alleged defamation (libel) was dismissed for having not satisfied the pleading requirements for reliefs bordering on defamation.

On the Claimant’s claims based on recovery of solicitor’s fees, the Court acknowledged that there has been an unresolved debate flowing from conflicting decisions on the subject. The Court preferred to be guided by the provisions of the Rules of Court which holds that costs follow events. Thus, the Court awarded N500,000 as cost, relying on Order 55 Rules 1, 4, 5 of the NICN (Civil Procedure) Rules 2017.

Conclusion

It is a notorious fact that in most companies or firms, gossiping holds sway. As seen in the case, this unchecked gossip syndrome (UGS) is, perhaps, one of the reasons Mrs. Philip could not be protected from Mrs. Mbachu and Mr. Goma who were indicted and punished based on the report by the whistleblower and subsequent witness testimony of Mrs. Philip. In the case, the company claimed that the identities of all the witnesses who testified before the Ethics Committee were closely guarded and were not revealed to anyone other than members of the Committee. By implication, the company appears to insinuate that members of the Committee were the culprits. Whatever the case, the Court held that the company did not prove how the identity of the witnesses, including Mrs. Philip, was ‘closely guarded’. It is believed that this case has sent the right signals.



Stephen Azubuike
Author: Stephen Azubuike
Stephen is a lawyer with expertise in Commercial Dispute Resolution and Technology Law practice. He is a Partner at Infusion Lawyers. He has successfully argued cases from the High Courts of various jurisdictions to the Appellate Courts on behalf of financial institutions, other corporate bodies and multinationals. He has advised a number of both established and startup tech companies. He tweets @siazubuike.

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09079024002 stephenlegalblog@gmail.com info@stephenlegal.ng

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