QUIET REVOLUTION IN LABOUR/EMPLOYMENT LAW IN NIGERIA: STAYING INFORMED

INTRODUCTION

The current legal regime on Labour/Employment in Nigeria, has left behind the strict observance of common law principles and has embraced progressive International Labour standards.  In addition to the court’s application of provisions of Statutes and common law principles, the courts now draw inspiration from the international community, thereby carving a new order as far as employer/employee relationship is concerned.
This discussion adopts the coinage ‘Labour/Employment Law’ since it is no longer safe to reduce the entire quirks and intricacies of employer/employee relationship to solely what the employer intends the terms of engagement to mean. The current legal regime now subsumes the peculiarities of each relationship (Employment Law) to the larger tenets of the law on the subject matter (Labour Law). The reasoning here is  that while Labour Law directs the course Employment Law takes; the case by case development of the latter contributes and improves the entire body of law of the former. It is important that these developments are brought to the knowledge of employers and employees alike, legislators, lawyers and persons doing or seeking to do business in Nigeria.

THE QUIET REVOLUTION

The defined periods in Nigeria’s Labour/Employment law history are the periods before and after the National Industrial Court of Nigeria (NICN) in its enlarged jurisdiction as demonstrated in decided cases. The NICN draws its legitimacy from the Constitution of the Federal Republic of Nigeria 1999 (as amended). Section 7(6) of its enabling legislation, grants it wide powers to apply international best practices in determining the scope and nuances of labour relations. The NICN has been vested with the powers of a High Court, powers to depart from the Evidence Act in the interest of justice, powers to apply the rules of equity and allow it to prevail over the rules of common law where there is conflict.

This revolution is in response to a dire need to overhaul a dawdling system of laws to meet up with existing needs in a fast-paced commercial system, with the frontiers of trade and employment expanding beyond the basic master-servant platform to include complexities of outsourcing, casual employment, co-employment, virtual work spaces, conflict of laws, among others. The peculiarity of this revolution saw the NICN having the exclusive jurisdiction to adjudicate on Labour/Employment Law matters in a progressive manner without any hindrance having been so empowered by the Constitution.

The various statutes on Labour/Employment Law in Nigeria (some principally on the subject matter, others with sections that touch on it) include:

This revolution is in response to a dire need to overhaul a dawdling system of laws to meet up with existing needs in a fast-paced commercial system, with the frontiers of trade and employment expanding beyond the basic master-servant platform to include complexities of outsourcing, casual employment, co-employment, virtual work spaces, conflict of laws, among others. The peculiarity of this revolution saw the NICN having the exclusive jurisdiction to adjudicate on Labour/Employment Law matters in a progressive manner without any hindrance having been so empowered by the Constitution.

The various statutes on Labour/Employment Law in Nigeria (some principally on the subject matter, others with sections that touch on it) include:

  1. The Labour Act 2004
  2. The Factories Act, 2004
  3. The Pensions Act, 2004
  4. The Trade Disputes Act, 2004
  5. The Trade Union Amended Act, 2005
  6. National Health Insurance Scheme Act 2005
  7. National Industrial Court Act 2006
  8. The Employees Compensation Act, 2010
  9. Constitution of the Federal Republic of Nigeria 1999 (as amended) Third Alteration Act, 2010
  10. The National Minimum Wage Act, 2011
  11. The Pension Reform Act, 2014.
  12. National Industrial Court of Nigeria Civil Procedure Rules 2017

In addition to  the above list, the following are some of the international conventions and best practices that have been instrumental to the advancement of Labour/Employment Law:   

  • Convention 111 that deals with discrimination in employment and occupation;
  • Recommendation 166 on termination of employment;
  • Convention 155 on Occupation Safety and Health and
  • Convention 158 that stipulates guidelines on termination of employment.

These conventions, treaties and protocols  have redefined the form of redress that an employee or employer whose rights has been breached can seek.

STAYING INFORMED

The enlarged jurisdiction of the NICN has led to the emergence of decisions which have developed Labour/Employment Law in Nigeria. An awareness, in the very least, of developments of the law from these decisions is imperative since the standards for employer/employee relationships in Nigeria now hang on them. Some of these decisions are captured below.

1. Application of international labour standards: Any international labour convention may be adopted by the NICN, even without domestication by the National Assembly, so long as same is pleaded as a treaty which Nigeria has ratified. Internal best practices can be established by leading evidence or by urging the Court to take judicial notice of the same. Relying on international labour standards, (conventions and best practices) the NICN in Ejieke Maduka v. Microsoft Nigeria Limited & ors (2014) held that sexual harassment amounts to a breach of an employee’s fundamental right to dignity of person. This gives wider latitude to courts to explore in achieving justice.

2. Hire or fire for any or no reason: The NICN has decided that contrary to common law principles in termination and dismissal, an employer must provide reasons for the termination or dismissal of an employee. It was also the decision of the court in PENGASSAN v. Schlumberger Anadrill Nigeria Limited that in every case of dismissal, all earned benefits, up to the time of dismissal, must be paid to the employee. Furthermore, if an employer terminates or dismisses an employee for reasons not stated, the court can, in an action in that regard, award steep damages against the employer. In British Airways v. Makanjuola, the Court awarded two years’ gross salary as damages.

3. Sexual harassment: Sexual harassment in the work place will be a cause of huge liability as an employee who suffers same can now claim for breach of fundamental rights. What constitutes sexual harassment includes quid pro quo, physical, verbal and, non-verbal form of sexual harassment.

4. Vindictive suspension, termination or dismissal: Any suspension, dismissal, termination or refusal to promote which is undertaken vindictively by the employer, will be struck down by the NICN. Termination of job on the basis of pregnancy also got an award of one year’s gross full pay totalling above 5 million naira in the case of Folarin Oreka Maiya v. The Incorporated Trustees of Clinton Health Access initiative, Nigeria & 2 ors (2012)

5. Resignation with immediate effect: The NICN has resolved in Beloved Patrick Anokwuru v. Omatek Ventures Plc & anor (2011)that resignation with immediate effect by an employee carries with it three legal effects: the right to leave service automatically; the employee’s forfeiture of any benefit; and the employee paying any indebtedness to his employer. The justification for this is that an employee who resigns with immediate effect is not allowed to also benefit from such immediate separation by claiming benefits from the employer.

6.  Voluntary retirement: Voluntary retirement can only emanate from the employee. When an employer compels or induces an employee to “retire voluntarily”, it may either amount to compulsory retirement or constructive dismissal, depending on the facts of the case. 

The NICN (as seen in the case of Miss Ebere Ukoji v. Standard Alliance Life Assurance Co. Ltd [2012] ) now construes constructive dismissal in a variety of cases, where the employee is coerced, lured or otherwise influenced to hand in his resignation.

7. Damages for expected promotion: The NICN now awards damages for “expectation interest”. This arises in instances where it forms part of the employment contract, that the employee will be considered for promotion if he meets certain criteria. In Patrick Obiora Modilim v. United Bank for Africa Plc, the letter of employment stipulated that the employee would be considered for promotion, if he met certain criteria. The employer was held liable and damages awarded against it, for failing to demonstrate that it had considered the employee for promotion, after he had met the criteria stipulated in the contract of employment.

8. Work/Employment reference:By a recent decision of the NICN there is now an implied duty in the contract of employment for employee to provide work reference to any departing employee (seeKelvin Nwaigwe v. Fidelity Bank Plc [2016]). A work/employment reference must be true, accurate, fair and not misleading. Anything short of this could result in the employer being liable either in contract or in tort.

9. The new 2017 Rules: The National Industrial Court of Nigeria Civil Procedure Rules 2017 provides extensively for procedure of approaching the National industrial Court for redress. It will be of great benefit for the Employers to appreciate some provisions of the Rule that touches particular instances in labour law. Particular example is Rule 14 which gives a detailed description of what could constitute sexual harassment in the work place.

10. Appeal against NICN decision:By virtue of section 243(2) of the 1999 Constitution (as amended), appeals from the decision of the NICN have in the past been construed to be restricted to questions on fundamental rights as contained in Chapter of the Constitution. This led the Court of Appeal to state the case to the Supreme Court to decide on the issue.
The Supreme Court has now decided, in Skye Bank Plc v Ananem unreported Suit No. SC/885/14 the judgment of which was delivered today, 30 June 2017 that the Court of Appeal has the jurisdiction to hear all appeals from the NICN. On the strength this decision the position of the law now is that every decision of the NICN can be appealed against.

CONCLUSION
 In view of the foregoing Labour/Employment Law developments, it is important that employers, employees and other stakeholders involved in employment relations understand the changing trends and set up parameters and creative legal solutions that protect the interest of all parties involved. The nuances of equity that the courts apply in interpreting termination of employment and other aspects of industrial relations have to be considered by employees while developing employment contracts and policies. While there remains much to be desired of the Labour/Employment Law regime of Nigeria, much that was desired has come to play. It then behoves us, investors and local business owners, employers and employees, lawyers and clients to be abreast of these extant developments and seek to uphold and protect them. Employee contracts, employee handbooks, outsourcing agreements, workplace ethics and standards should therefore reflect the current position of Labour/Employment Law.

NEWS UPDATE

NNPC/FIRST JV secures $700m for new oil fields

The Nigerian National Petroleum Corporation has announced that its plan to grow the country’s crude oil reserves to 40 billion barrels by the year 2020 received a boost with the execution of a tripartite agreement in Abuja on Thursday 29th of June 2017.
According to the corporation, the agreement, which is between the NNPC/FIRST Exploration and Production Joint Venture and Schlumberger, is meant for the development of the Anyalu and Madu fields in the Niger Delta under Oil Mining Licences 83 and 85, offshore Nigeria.

http://punchng.com/nnpcfirst-jv-secures-700m-for-new-oil-fields/

 

Unilever Nigeria Applies to Raise N58.9bn Via Rights Issue

Unilever Nigeria Plc has formally applied to the Nigerian Stock Exchange (NSE) to raise about N58.851billion fresh capital through Rights Issue. In the application made through its stockbrokers, Stanbic IBTC Stockbrokers Limited, Unilever will be issuing 1,961,709,167 ordinary shares of 50 kobo each at N30.00 per share to shareholders on the basis of 14 new shares for every ordinary shares held.
The funds would be used to finance short term bank borrowings and enhance its operations among other reasons. Unilever Nigeria had increased its revenue by 17.8 per cent from N59 billion recorded in 2015 to N69 billion while Profit After Tax (PAT) jumped by 157 per cent from N1.19 billion in 2015 to N3.07 billion in 2016.

http://www.thisdaylive.com/index.php/
2017/06/30/unilever-nigeria-applies-to-raise-n58-9bn-via-rights-issue/

 

LEGAL HUMOUR