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NATURE OF EMPLOYMENT BY STATUTE – WRONGFUL DISMISSAL – DAMAGES

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In this respect the observation of the Supreme Court per Belgore JSC (as he then was) in Union Bank of Nigeria Ltd v Ogboh (1995) 2 NWLR (Pt.380) 467 at 664 is apt. It merits my respective quotation in extenso. Said the learned justice of the Supreme Court:- “Except in employment governed by statute wherein the procedure for employment and discipline (including dismissal) of an employee are clearly spelt out, any other employment outside the statute is governed by the terms under which the parties agreed to be master and servant. Employment with statutory backing must be terminated in the way and manner prescribed by the statute and any other termination inconsistent with the relevant statute is null and void and of no effect examples are many especially with modern constitutional and statutory trends. (University of Lagos Act, 1962; Section 13 (2), 18 (e) and 61 under cases governed only by agreement of parties and not by statute, removal by way of termination of appointment or dismissal will be in the form agreed to; any other form connotes only wrongful termination or dismissal but not to declare such dismissal null and void. The only remedy is a claim for wrongful dismissal. This is based on the notion that no servant can be imposed by Court on an unwilling master even where the mater’s behaviour is wrong. For his wrongful act, he is only liable in damages and nothing more. Union Beverages Ltd v Owolabi (1988) 1 NWLR (Pt.68) 128.”

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CONCEPT OF EQUAL SALARY FOR EQUAL WORK

Para. 27: “In labour law, the concept of equal work for equal salary implies that two or several persons who carry out the same job occupy the same position in an organisation must earn the same remuneration and have the same prospects for promotion, except where the employer justifies a difference in treatment by objective factors not related to any form of discrimination. We hold that the objective of the principle of equal work for equal salary is to prohibit every form of discrimination between individuals who find themselves under the same condition.”

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

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ESTOPPED WHEN SALARY PAYMENT IS IN CONTINUANCE

Ondo State University v. Folayan (1994) 7 NWLR (Pt. 667) page 34 at page 61, the university had appointed Dr. Folayan for a probationary period of three years. Without extending the tenure of Dr. Folayan, they continued to use his services and pay him his salaries for three years. The Supreme Court held that the university was estopped from contending that the employment had come to an end at the end of the three years probationary period.

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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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CONTRACT OF SERVICE COMES TO AN END WHERE EMPLOYEE ACCEPTS REPUDIATION

The contract of service comes to an end after the unilateral repudiation only if the employee accepts the repudiation expressly or by implication. – See Gunton v. Richmond-upon-Thames London Borough Council (1981) AC. at p. 464 and Decro-Wall International S.A. v. Practitioners in Marketing Ltd. (1971) 1 WLR. at pp. 369-370 per Salmon L. J.

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

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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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STATUTORY FLAVOUR EMPLOYMENT

An employment with statutory flavour is one governed by statute wherein the procedures for employment and dismissal of an employee are clearly spelt out. In such a situation, the employment cannot be terminated other than in the way and manner prescribed by that statute and any other manner of termination inconsistent with the statute is null and void and of no effect. The contract is determinable not by the parties, but only by statutory preconditions governing its determination.

– Muhammad JCA. Osumah v. EBS (2004)

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