ILO Standards and the Nigerian Law of Unfair Dismissal

Publication Date01 September 2009
Pages181-212
DOI10.3366/E0954889009000371
Date01 September 2009
AuthorJoseph E. O. Abugu
<p>The work force of any nation constitutes a significant part of its population whose contribution is central to national growth. An active work force is an index of a growing economy. Consequently while free enterprise is being encouraged, many nations take effective measures to protect employees in their jobs.</p> <p>The beginning of any employment relation is the embodiment of the terms and conditions of the relationship in a form communicable between the parties. Though a contract of employment may be entered into by implication, the Nigerian Labour Act<xref ref-type="fn" rid="fn1"><sup>1</sup></xref><fn id="fn1"><label>1</label><p>Cap. 21 1974; retained as Cap.198 Laws of the Federation 1990.</p></fn> requires that not less than three months after the beginning of a worker's period of employment, the employer shall give to the worker a written statement specifying the detailed terms and conditions of the employment.<xref ref-type="fn" rid="fn2"><sup>2</sup></xref><fn id="fn2"><label>2</label><p>Section 7[1], Labour Act.</p></fn> It may be expected, therefore, that parties are fairly aware of the terms upon which they contract. Such contracts ideally should be a protective mechanism, particularly for the employees. However, this is rather illusory as workers are hardly in a position to negotiate and accept the plenitude of terms which may attach to their situation. Often, letters of employment are as scanty as the employer desires.</p> <p>Generally, dismissal denotes any action on the part of an employer that brings an employment relationship to an end whether or not it is in accordance with the terms of the contract. However, it is suggested herein, that for a better understanding of terminologies, a clear distinction needs to be drawn between dismissal and termination. Often, dismissal is confused with ‘termination’. The latter simply refers to the cessation of a contract of employment, usually, in accordance with its terms. Dismissal on the other hand, is the assertion of a right of an employer to terminate a contract other than in accordance with the expressed terms. The distinction centres on whether an employment has been determined in accordance with its terms or not. This is a common feature of most disputes on termination; hence, it can be a veritable source of confusion whether to use the term, ‘termination’ or ‘dismissal’.</p> <p>In the past two decades, with a growing private sector, the relationship between employers and employees continues to be a turbulent one and a source of unending litigation in Nigeria.<xref ref-type="fn" rid="fn3"><sup>3</sup></xref><fn id="fn3"><label>3</label><p>Government, at federal and state levels, constitutes the biggest employer and have woven intricate rules of civil service regulations on tenure and pensions.</p></fn> This is exacerbated by the state of the economy, where paid employment now constitutes the source of livelihood of many families. It is natural, therefore, to see a growing local jurisprudence in this area of the law. However, the Nigerian law on the subject of dismissal is still a relic of the received English law as at 1900. There is a glaring gap in the absence of any statutory protection against unfair dismissal, this notwithstanding international conventions and recommendations of the ILO<xref ref-type="fn" rid="fn4"><sup>4</sup></xref><fn id="fn4"><label>4</label><p>The International Labour Organisation, an agency of the United Nations is dedicated towards prescription of labour standards and recommending actions for member states. It was established at the end of World War I, at the Peace Conference which first convened in Paris and later at Versailles. The ILO constitutes Part XIII of the Treaty signed on 28 June 1919.</p></fn> setting standards in labour matters.<xref ref-type="fn" rid="fn5"><sup>5</sup></xref><fn id="fn5"><label>5</label><p>See the Preamble to the Constitution of the ILO and the Declaration Concerning the Aims and Objectives of the Organisation adopted by the Conference in Philadelphia in 1944 and incorporated in the ILO Constitution in 1946.</p></fn> Particular notice is drawn to the Recommendation of the International Labour Organization (ILO) on ‘individual dismissal’ and Convention 158.</p> <p>This paper is an effort to present and explore deficiencies in the Nigerian law in comparison with ILO prescriptions on termination of employment and thereby indicate avenues of law reform in consonance with ILO Standards and developments in other jurisdictions.</p> THE FUNDAMENTALS ON TERMINATION

Dismissal usually connotes the exercise by an employer of a right to terminate a contract of employment on account of some misconduct on the part of the employee. To underscore the use of this term, it is sometimes aptly called ‘summary dismissal’. Thus an employee whose contract was terminated by notice in accordance with his contract of employment is ‘not dismissed’ nor is one who has merely resigned his appointment.6

See, contra, Osborn's Concise Law Dictionary, 8th edition. Sweet and Maxwell (2002), where the term, ‘dismissal’ was defined to included instances of resignation and termination by way of notice.

This is the common law context of the right of summary dismissal which inheres in an employer once there is an established conduct which fundamentally rocks the basis of an employment relationship. This common law formulation is part of the received English law in Nigeria. Categories of conduct which may entitle an employer to summary dismissal are fairly well established. They include cases of gross misconduct, even though its been quite herculean defining what amounts to gross misconduct;7

Maja v Stocco, [1966] NWLR 372; Oyedele v. University of Ife Teaching Hospital Management Board, [1990] 6 NWLR 194; British-American Insurance Company Nig. Ltd v. Omolaja, [1991] 2 NWLR 721.

incompetence of the employee in a professed skill;8

Harmer v. Cornelius (1858), 141 E.R 94.

wilful disobedience of lawful orders;9

Tuner v Mason (1845), 13 M&W 112; Palace Shipping Ltd v Caine (1907) 13 AC 386.

conduct incompatible with the good faith and fidelity obligation of the employee to his master's business such as taking bribes and secret commission;10

Boston Deep Sea Fishing and Ice Co. v. Ansell (1888) 38 Ch.D 339; Siinclar v Neigbor, [1967] 2QB 279, Hivac Ltd v Park Royal Scientific Instrument Ltd, [1946] Ch.D 169.

and illness of a protracted or permanent nature, often resulting in the frustration of the contract.11

Posssard v Spiers, (1876) 1 QBD PG 410; Condor v Barron Knights, [1966] 1 WLR 87.

The primary legal safeguard in the exercise of this right by the employer is that it must be justified under any of the established grounds. The reason for summary dismissal is therefore subject to judicial review and, in appropriate cases, the courts will insist on the observance of the rules of natural justice by the employer

Outside these situations where a summary dismissal is justifiable at common law, the boundaries of what constitutes unfair dismissal are blurred.12

‘Unfair dismissal’ may refer to conduct that is ‘socially unwarranted’ or ‘not for real and serious reasons’ or ‘not for objectively valid grounds’. See J. Stieber, ‘Protection against Unfair Dismissal: A Comparative Review’, 3 Comp. Lab. L. (1980) 229.

Basically, it is said that an employer can terminate for good cause, bad cause or no cause at all. The law would not foist a willing employee on an unwilling employer.13

Chukwumah v. Shell Petroleum Nig. Ltd., [1993] 4 NWLR (Pt 289) 512.

Whatever remedies that are available for wrongful termination is dependent on the contract of employment. The rights attached to different types of employment were explored by Uwaifo, JCA in University of Nigeria Teaching Hospital Management Board V Hope Chinyelu Nnoli14

[1994] 8 N.W.L.R (Pt 363) 376.

, where he stated

The nature of a contract of employment as between employer and employee has been known to belong to different categories. There is the office held at pleasure. This has lost meaning in present-day Nigeria, particularly since the 1963 Re-publican Constitution, reinforced by the 1979 Constitution. Office at pleasure is now namely a feature of servants of the Crown in England. The continued existence in office at pleasure by any servant, as it implies is at the pleasure of the employer. There is no remedy against removal from such office and no grievance can be entertained by the courts.

Here is another category, which is subject to statutory regulation or condition. An employee falling under this cannot be removed unless the conditions are strictly complied with coupled with the observance of the rules of natural justice and for cause shown. Non-compliance makes such removal null and void. In appropriate cases, re-instatement to the office or employment follows. There is a third category where the contracts if for a definite period and backed by the constitution, e.g. office of the Public Service Commission. The holder can only be removed for cause shown by the appropriate authority; otherwise, full compensation for the unexpired period is usually the remedy. Finally, there is the ordinary master and servant relationship. If there is a written contract, removal must be in accordance with the terms otherwise indemnity covering the period of notice to determine the contract serves as a remedy. If no written contract what amounts to reasonable notice or payment in lieu will suffice.15

Emphasis mine.

The emphasised portion of the above dicta confirms the pitiable state of insecurity of employment in ordinary employment relationships in Nigeria. Under the common law, where a contract of service gives a party a right of termination of the contract by either giving a particular length of notice or mere reasonable notice and the right is exercised without the requisite notice, the party seeking to put an end to the contract must pay to the other party the salary in lieu of notice. If the employer gives notice of the length which the contract requires or a minimum statutory notice which the law requires, then the contract is lawfully terminated16

Ikekhide v. Lagos University Teaching Hospital Management Board, CCHCJ/6/74 p. 715, Maiza v. Taylor Woodrow of Nig. Ltd, CCHCJ/12/72, p. 52, Olaniyonu v. British American Insurance Co. Ltd, [1974] 1 NMLR 64. The Court of Appeal took the reasoning in these cases a bit further when it held in Charles...

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