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COURT WILL NOT IMPOSE EMPLOYEE ON EMPLOYER

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Ordinarily and consistent with the common law principle, the Court will not impose an employee on an employer.

– Karibe-Whyte, JSC. Chukwumah v. SPDC (1993)

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employment

EMPLOYMENT: THERE WILL BE AN ACTION FOR REINSTATEMENT WHERE THERE IS UNILATERAL REPUDIATION

In Vitarelli v. Seaton 359 US. 335, the Supreme Court of the United States of America granted a declaration in the case of a civil servant even in a case involving State Security, because the proper procedure was not adopted. An analysis of the decided cases leads to the conclusions that an action for reinstatement is only possible where there is a unilateral repudiation of the contract of service by the Master (the Employer) which has not been accepted by the (employee) Servant. See Denmark Productions Ltd. v. Bascobol Productions Ltd. (1961) 3 All E.R. 583. In that situation the contract is still in existence having not been discharged by the acceptance of the repudiation. It is therefore not the same as where the contract has been discharged and the dismissed employee is entitled only to damages.

— A.G. Karibe-Whyte, JSC. Olaniyan & Ors. v. University of Lagos (1985) – SC.53/1985

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EQUAL SALARY FOR EQUAL WORK CANNOT BE APPLIED WHERE PAYMENT SOURCES ARE DIFFERENT

Para. 30: “Indeed, the principle of equality of salary, which implies the elimination of salary discrimination based on whatever criteria that may relate to the person of the salaried worker, does not apply to the diversity of the sources of remuneration. Here, the salaries proposed by the Defendants are to be paid, not from the funds of the Commonwealth, but from the budget of the Defendants themselves. This was what was established as a principle, by Court of Justice of the European Union, in the 17th September 2002 Judgment on Lawrence and Regent Office Care Ltd. & Others (Report 1-07325-C.C.E.E.) when it stated that “the principle of equal work, equal salary, does not apply when the observed disparities in remuneration cannot be attributed to a single source’.”

— Essien v. The Gambia (2007) – ECW/CCJ/JUD/05/07

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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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SPECIFIC PERFORMANCE CANNOT BE AWARDED FOR WRONGFUL DISMISSAL

The common law principle is that no specific performance could be awarded for wrongful dismissal: accordingly, where a contract is purported to have been determined, even if wrongfully, it ceases to exist.

– Karibe-Whyte, JSC. Chukwumah v. SPDC (1993)

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AN EMPLOYEE IS ENTITLED TO KNOW THE REASON FOR HIS DISMISSAL

The ILO Termination of Employment Convention 1982 (No 158) is yet to be ratified by Nigeria. It is however evidence of international labour standards, and international best practice in termination of employment which this Court is obligated to apply; and its recommendations that an employee is entitled to be informed of the reason for the termination of his employment. Section 7 (6) of the National Industrial Court Act 2006 empowers the Court to have due regard to good or international best practices in labour or industrial relations, and what amounts to good or international best practices in labour is a question of fact. Section 254C of the 1999 Constitution (as amended) has empowered this Court to determine whether the Claimant was terminated for a valid reason or for no reason. It is not globally acceptable in industrial relations and practice to terminate the employee’s employment without adducing any reason for doing so, see Petroleum and Natural Gas Senior Staff Association of Nigeria v Schlumberger Anadrill Nig Ltd [2008] 11 NLLR (Pt 29) 164, Aloysius v Diamond Bank Plc [2015] 58 NLLR 52, Uzo Ejekwumadu v Blue Arrow TSW Ltd (unreported) Suit No: NICN/LA/242/2016 judgement delivered March 18, 2021. It is contrary to international labour standards and international best practices for an employer to terminate the employment of its employee without any reason or justifiable reason that is connected with the performance of the employee’s work. This is also contrary to the International Labour Organisation (ILO) decent work agenda with the four strategic objectives of the promotion of rights at work, employment, social protection, and social dialogue.

— O.A. Obaseki-Osaghae, J. Ejiro Peter Amratefa v. Access Bank (NICN/ABJ/106/2022, November 2, 2023)

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THE EMPLOYEE HAS BURDEN TO PLACE TERMS AND CONDITIONS THAT WAS BREACHED BY EMPLOYER

The law is settled that in the determination of employment rights, it is the employee who complains that his employment contract has been breached that has the burden to place before the Court the terms and conditions of his employment that provide for his rights and obligations, see Okoebor v Police Council [2003] 12 NWLR (Pt 834) 444, Okomu Oil Palm Co v Iserhienrhien [2001] 6 NWLR (Pt. 710) 660 at 673, Idoniboye-Obe v. NNPC [2003] 2 NWLR (Pt. 805) 589 at 630. In furtherance of this the Claimant has placed before the Court his offer of employment (exhibit C1), staff handbook (exhibit C2), letter of promotion (exhibit C3), suspension letter (exhibit C7) letter of invitation to disciplinary committee (exhibit C8), letter of termination (exhibit C9), statement of account (exhibit C10), CBN operational guidelines for delisting (exhibit C11), and other service documents.

— O.A. Obaseki-Osaghae, J. Ejiro Peter Amratefa v. Access Bank (NICN/ABJ/106/2022, November 2, 2023)

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