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BAD FAITH IS INCONSEQUENTIAL IN TERMINATION OF CONTRACT OF EMPLOYMENT

Dictum

Both in his pleadings and evidence the plaintiff concentrated so much on his allegations of bad faith, hatred, malice etc; but all these are of no consequence in determining whether or not his contract of employment was lawfully terminated by the defendant, considering that no reason was given for the termination.

– Ogundare, JSC. Chukwumah v. SPDC (1993)

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TWO INGREDIENTS TO ESTABLISH STATUTORY FLAVOUR CONTRACT

However, it should not be mistaken that once a company, corporation or government agency is set up by statute, all the employees thereof ipso facto became children of statute to the extent that their individual agreement of service with the employer automatically becomes contract with statutory flavour. Two of the vital ingredients that must coexist before a contract of employment may be said to import statutory flavour includes the following:- 1. The employer must be a body set up by statute. 2. The stabilizing statute must make express provision regulating the employment of the staff of the category of the employee concerned especially in matters of discipline. See in this regard Idoniboye-Obu v NNPC (2003) FWLR (Pt.146) 959 at 992; Salami v New Nigerian Newspaper Ltd (1999) 13 NWLR (Pt. 634) pg 315; CBN v Archibong (2001) FWLR (Pt.58) 1032 at 1056; Udemah v Nigerian Civil Corporation (1991) 13 NWLR (Pt.180) 477; Fakuade v O.A.U Complex Management Board (1993) 5 NWLR (Pt.291) 47.

— M.U. Peter-Odili, JSC. Kwara Judicial Commission v Tolani (2019) – SC.63/2010

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WHERE TERMINATION IS WRONGFUL; ONLY REMEDY AVAILABLE IS SALARY IN LIEU

While I have earlier reckoned that the termination of the Claimant’s employment was not in itself wrongful, I must add for the sake of the said relief 7 that even where a termination is wrongful in a master servant employment, the remedy available is to the extent of what the employee would have earned as salary in lieu of notice.

— Z.M. Bashir, J. Gbaraka v Zenith Securities & Anor. (2020) – NICN/PHC/45/2018

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SCOPE OF EMPLOYER’S DUTY TO EMPLOYEE INCLUDES TAKING REASONABLE CARE

The law is of common that the scope of an employer’s duty to its employee to take reasonable care for the safety of his workman and other employee in the course of their employment, this duty extends in particular to the safety of place of work, the plant and machinery and the method and conduct of work. Duty of care as an act or omission, has its origin on the concept of foreseeability as decided in the old case of Heaven v. Pencher (1983) 11 QBD 503 at 509 where Bret M.R. said “Whenever one person is by circumstance placed in such a position with regard to another, that everyone of ordinary sense who did think would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to the circumstances he would cause danger, injury to the person or property of the other, a duty arises to use ordinary care skill and avoid such danger.”

— O. Oyewumi, J. Aseidu v Japaul (2019) – NICN/AK/01/2016

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DUTY OF CLAIMANT TO PROVE CONTRACT OF EMPLOYMENT

It is the well settled position of law that a contract of employment is the bedrock upon which all employment relationships are formed and an aggrieved employee bears the evidential burden to place before the court his contract of employment and show in what way the terms and conditions were breached by the defendant. See F.M.C. Ido-Ekiti & Ors. v Alabi (2011) LPELR 4148 (CA).

— Adewemimo J. Afariogun v FUTA (2020) – NICN/AK/41/2017

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WRONGFUL TERMINATION OF EMPLOYMENT – WHAT WOULD HAVE EARNED IN THE PERIOD

In NITEL Plc. v. Akwa (2006) 2 NWLR (Pt.964)391 held that: “The law is settled, that where an employee’s appointment is terminated wrongfully or otherwise all he is entitled to is what he would have earned over the period of notice required to lawfully terminate this employment. The amount he is entitled to in his case is one month salary in lieu of notice and no more. See International Drilling Co. (Nig.) Ltd. v. Ajijala (1976) 2 SC 115; Akunforile v. Mobil (1969) NCLR 253; WNDC v. Abimbola (1966) 1 All NLR 159; Nigerian Produce Marketing Board v. Adewunmi (supra).” Per SANUSI, J.C.A (P. 42, paras. A-D).

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WORKER AND EMPLOYEE UNDER THE LABOUR ACT

As can be seen, the definition of worker under section 91(1) is restrictive given the persons exempted in terms of paragraphs (a) to (f) of the definition. The point is that section 91(1) defines a worker only for the purposes of the Labour Act; as such, not all employees are workers for purposes of the Labour Act. The category of persons under paragraphs (a) to (f) of the definition of a worker may thus be employees but not workers for purposes of the Labour Act. Section 91(1) of the Labour Act defines a worker by reference to an employer i.e. as one who entered into or works under a contract with an employer. So, who is an employer? The same section 91(1) defines an “employer” to mean “any person who has entered into a contract of employment to employ any other person as a worker either for himself or for the service of any other person, and includes the agent, manager or factor of the first-mentioned person and the personal representatives of a deceased employer”. The common denominator in the definition of a worker and an employer is the contract of employment. A “contract of employment” is thus defined by same section 91(1) to mean “any agreement, whether oral or written, express or implied, whereby one person agrees to employ another as a worker and that other personagrees to serve the employer as a worker”.

— B.B. Kanyip, J. Olatunji v UBER (2018) – NICN/LA/546/2017

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