The relationship between the employee and employer is governed by the employment contract. Some terms of the contract like the salary and resumption date, may be expressly discussed, negotiated and agreed to by both the employer and employee prior to the commencement date of the contract, while some terms may not be known by the employee prior to the commencement date of the contract, and are implied by reference to a Company Policy or Staff Handbook, or based on the practice of the employer and are non-negotiable; thus the employee does not have an opportunity to negotiate these terms and is not even aware of them but is bound by them once he takes up the employment. Thus the employee is often not aware of, or able to negotiate these terms and may only become aware of some of these terms during the orientation stage, when he goes through the Staff Handbook or where a crisis/dispute arises. One of the terms the employee is not aware of at the time of entering into an employment contract is the procedure for termination of the employment contract or dismissal by the employer. However, by executing the contract of employment and taking up the employment, the employee is seen to have agreed to the procedure for termination as couched in the contract.
TERMINATON UNDER THE LABOUR ACT
Section 9(7) of the Labour Act provides for termination of employment (a) by expiry of the period for which it is made, (b) by death of the worker before the expiry of that period, or (c) by notice in accordance with Section 11 of the Act, or in any other way in which a contract is legally terminable or held to be terminated. Section 11(1) of the Act provides that either party to the contract of employment may terminate the contract on the expiration of notice given by him to the other party of his intention to do so, and Section 11(2) provides for the notice period as follows: (a) one day, where the contract has continued for a period of three months or less; (b) one week, where the contract has continued for more than three months but less than two years; (c) two weeks, where the contract has continued for a period of two years but less than five years; and (d) one month, where the contract has continued for five years or more. Section 11(6) provides that nothing in this section shall prevent either party to a contract from waiving his right to notice on any occasion, or from accepting a payment in lieu of notice. Section 20 also provides for redundancy, which is defined as an involuntary and permanent loss of employment caused by an excess of manpower.
It may seem that all that is required is for either party to terminate the employment by using any of the standards above without more. It is important to note that the standards provided for in the Labour Act are minimum standards that will apply in the absence of agreement of the parties in the contract of employment. Thus the contract of employment will take precedence over the standards provided in the Labour Act, however the courts in interpreting the contract of employment may take cognisance of the international best practices as provided for in international conventions.
Domestication of ILO Convention on Termination of Employment in Nigeria vis-à-vis the Constitution of the Federal Republic of Nigeria (‘CFRN’)
The ILO Convention is an international treaty. Section 4(1) of the (‘CFRN’) vests legislative powers of the Federal Republic of Nigeria (‘FRN’) in the National Assembly. Section 12(1) provides that no treaty between Nigeria and any other country shall have the force of law to the extent to which any such treaty has been enacted into law by the National Assembly. In the light of this, no treaty, of which conventions are included shall have the force of law except it has been enacted into law by the National Assembly.
The ILO Convention on Termination of Employment Convention No 158 of 1982, which has not been ratified by Nigeria, governs termination of employment at the initiative of the employer. Article 16 makes the Convention binding on Members whose ratifications have been registered with the Director-General of the ILO, and the Convention comes into force 12months after the date on which ratifications of two Members have been registered with the Director-General. The failure by Nigeria to ratify this Convention is prima facie evidence that the Convention is not applicable in Nigeria. However a closer look at some sections of the Constitution may cast some doubt on that absolute conclusion. Sec 4(8) CFRN provides that save as otherwise provided by the CFRN, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law and of judicial tribunals established by law, and accordingly, the National Assembly or a House of Assembly shall not enact any law, that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law. In tandem with this, the 3rd Alteration to the CFRN establishes the National Industrial Court and grants it exclusive Jurisdiction for all Labour and Employment Matters, including matters relating to or connected with unfair labour practice or international best practices (see Section 254(c)(1)(f) or relating to, connected with or pertaining to the application or interpretation of international labour standards. Section 7(6) of the National Industrial Act (‘NIA’) provides that the Court shall in exercising the jurisdiction conferred upon it by this Act or any enactment or law, have due regard to good or international best practice in labour or industrial relations and what amounts to good or international best practice in labour or industrial relations shall be question of fact. This provision confers jurisdiction on the National Industrial Court to apply the ILO Convention on termination of employment No 156 of 1982 even when same has not been ratified or domesticated as an act of the National Assembly in line with the provisions of Section 12 of the CFRN.
Termination of employment under the ILO Convention
Article 4 of the ILO’s Termination of Employment Convention 1982 (No 158) provides that the employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the worker’s capacity or conduct or based on the operational requirement of the undertaking, establishment or service. The Convention has given examples of what would not be a valid reason in Articles 5 and 6, to include amongst others, union membership, filing complaints against employer, absence during maternity leave or during brief illness, race, colour, sex, marital status, religion, political opinion etc. For a reason to be valid, it should relate to the capacity or conduct of the employee, or the operational requirements of the employment or service. Even where the reasons are valid, Article 7 enshrines the principle of fair hearing by making it mandatory that the employee be given an opportunity to defend himself against the allegations made. Article 8 entitles an employee who considers that his employment has been unjustifiably terminated to appeal to an impartial body, which appeal must be within a reasonable period of termination, as Article 8(3) deems a worker to have waived his right to appeal his termination if he does not exercise that right within a reasonable time after termination. The employer bears the burden of proving the valid reason for the termination. Article 11 provides that a worker whose employment is to be terminated shall be entitled to reasonable notice or compensation in lieu unless he is guilty of misconduct of such a nature that it would be unreasonable to require the employer to continue his employment during the notice period. Suffice it to say that a reasonable period as referred to in Articles 7, 8(3) and 11 would be subject to the reasonable man’s test and where the matter becomes a subject of litigation, it would be as interpreted by the court.
Article 10 provides that if the impartial bodies referred to in Article 8 find that the termination is unjustified, or where they are not empowered or do not find it practicable in accordance with the national law and practice to declare the termination invalid or to propose reinstatement of the worker, they shall be empowered to order payment of adequate compensation or such other relief as may be deemed appropriate.
In summary, an employment contract may be terminated in accordance with the agreement of the parties i.e. in accordance with the terms of the employment contract. In this case, either party may terminate the contract of employment by giving notice to the other in accordance with the terms of the contract of employment. An employment contract may also be terminated by frustration: there may be extraneous events, which event happened without the fault of any of the parties, was not foreseen or provided for by the parties at the time of contracting and which makes it impossible for the employee to carry out its obligations e.g. the current pandemic, government shutdowns, earthquakes, incapacity of the employee by illness or disability of the employee. Summary dismissal in employment contracts refers to the right of the employer to summarily terminate the employment contract for reason of misconduct of the employee, breach of any of the terms of the contract of employment or incompetence. Thus any dismissal that is not for these or similar reasons will be an unfair dismissal. The onus is on the employer to prove the reason for the summary dismissal.
The National Industrial Court in PENGASSAN v. Schlumberger Anadrill Nigeria Ltd held inter alia that it did not have any problem with the employer’s exercise of the right to hire and fire for any reason or no reason at all, but that the point must be made that it is no longer globally fashionable in industrial relations law and practice to terminate an employment relationship without adducing any valid reason for such a termination. It also held that where the employer states the reason, he must also prove same. In Oshajare Christopher Sunday v Ecobank Nigeria Limited the court in confirming that where termination/dismissal is on grounds of misconduct, and the employer gives reason for such termination, he is under a duty to justify the reasons given for the termination; the court relied on Sunday Joseph v Kwara State Polytechnic to state that under the common law principle of Master/Servant relationship, an employee can be dismissed for any act of misconduct, which must be established by evidence if the dismissal is challenged in court.
Deborah D. CHUKWUEDO, LL.B., B.L., MCIArb(UK)
