LEGAL PRINCIPLE: LABOUR LAW — Contract of Service with Statutory Flavour — Absence from Work — Absence Due to Employer’s Actions — Effect on Entitlement to Salary
PRINCIPLE STATEMENT
Where an employee's absence from work is due to arrest and prosecution at the instance of the employer, and the employee was not interdicted, he is entitled to his remuneration as it accrued from month to month.
RATIO DECIDENDI (SOURCE)
Per Ogwuegbu, JSC, in Underwater Engineering Co. Ltd. v. Dubefon (1995) NLC-41992(SC) at p. 9; Paras. A–C.
"The respondent's absence from duty from 20th May to 12th October, 1982 was as a result of his arrest and prosecution at the instance of the appellants. It cannot be said that he voluntarily absented himself from work without excuse. He was not interdicted during the period. Even after his acquittal and discharge, the appellants said nothing to him about his employment until 12th October, 1982. He had every reason to believe that his employment was still subsisting at least up to that date. He was fully entitled to his remuneration as it accrued from month to month."
EXPLANATION / SCOPE
An employee absent due to employer-instigated prosecution is not voluntarily absent. The employer cannot deny salary for that period. The principle applies to contracts of service. The employee is entitled to salary as it accrues. The rule prevents employers from benefiting from their own wrongful acts. The employee must not be interdicted. The court will protect the employee’s rights.