Termination Of Employment Without Cause Or Reason In Nigeria

By Festus Ogun and Benedict Olutan

INTRODUCTION

Disengaging an employee means bringing the services of such employee to an end. Before an employer disengages his employee, it is expected and required by law to give adequate notice to the employee and the termination of employment must be in accordance with the terms stipulated in the contract of employment. However, the pertinent question is: Should such a notice contain or disclose reason(s) for terminating an employment? In this article, we shall bring to light the current position of law as to whether or not an employer can disengage the services of his employee without (valid) reason.

DISENGAGEMENT WITHOUT REASON

Under the Nigerian Labour and Employment jurisprudence, an employer is mandatorily required to give adequate notice to an employee whose employment is to be terminated by the employer. Worryingly, the law seems to be silent as to whether an employee whose services is to be terminated should give reason or cause for the termination in the Notice of Termination.

THE POSITION UNDER COMMON LAW

Under common law, either the employer or the employee may terminate a contract of employment, subject to the terms of contract. As such, an employer is not under any obligation whatsoever to give reason or reason(s) for “firing” an employee. This is predicated on the premise that you cannot foist a willing Servant on an unwilling Master. The employer must, however, terminate the employer’s employment within the terms of the contract between them. Where the employer fires an employee without a reason in compliance with the terms and conditions of their contract of employment, such termination is valid in the eyes of the law. See CGC NIGERIA LIMITED VS. COMRADE ABDULFATAI BAKARE AND ANOR (2018) LPELR-46810(CA)

The Supreme Court in OBANYE VS. UNION BANK OF NIGERIA PLC (2018) LPELR-44702(SC), in line with the common law principle, held that “a private limited liability Company or any employer of labour like the Respondent in the instant case does not have any obligation to retain the services of any unwanted employee and may terminate the appointment of the employee without any reason”. In fact, the Apex Court further held that a termination of employment by the employer cannot be wrongful unless it is in breach of the terms and conditions of the contract or the provisions of the law as to adequate notice. Simply, the employer is not obligated to give a reason or have a reason at all in disengaging an employee.

Interestingly, while an employer is not obliged to give any reason for firing his employee, the Supreme Court stipulated that where an employer elects to proffer a reason, it is obliged to satisfactorily prove same as the onus is on him in that regard, otherwise the termination may be wrongful. See: INSTITUTE OF HEALTH, AHMADU BELLO UNIVERSITY HOSPITAL V MRS JUMMAI R.I. ANYIP (2011) 44 WRN at 15-16

THE NEW POSITION

The Third Alteration to the Constitution of the Federal Republic of Nigeria (“CFRN”) in 2010, which vests in the National Industrial Court the power to exercise exclusive civil jurisdiction on matters relating to or connected with unfair labour practice or international best practices in labour, employment and industrial related matters seems to create a new dimension to the issue whether an employer can terminate employment without cause.

For the avoidance of doubts, Section 254C (2) of the 1999 Constitution provides as follows:

“Notwithstanding anything to the contrary in this Constitution, the National Industrial Court shall have the jurisdiction and power to deal with any matter connected with or pertaining to the application of any international convention, treaty or protocol of which Nigeria has ratified relating to labour, employment, workplace, industrial relations or matters connected therewith”

The above provision presupposes that the National Industrial Court may now apply the provisions of international convention, treaty or protocol ratified by Nigeria, otherwise known as “international best practices”, in determining whether an employer can terminate employment without reason. It must be noted, however, that while the National Industrial Court is vested with the power to interpret and apply international practices related to or connected with labour and employment matters, Section 12 of the Constitution mandates that “no treaty between the Federation and other country shall have the force of law except such treaty has been enacted into law by the National Assembly”.

Can the National Industrial Court invoke international best practices that Nigeria ratified by has not been enacted into law by the National Assembly? In a sharp answer to this poser, the Court of Appeal in the case of Barr. Ray Nnaji v. Nigerian Football Association (2010) LPELR-4629 (CA) held as follows:

“I must state here that the CAF Statute 2000-2004 is a Foreign Statute which has the same status as International Treaties. It is pertinent to note that they do not become binding on citizens of this Country until enacted into law by the National Assembly, it has no force of law as to make any of their provisions justiciable in our courts.”

In similar cases of Abacha v. Fawehinmi (2000) 6 NWLR PT. 660 Pg 228 at 228 and RTNA & Ors v. MHWUN (2008) 1 FWLR PT. 410, the Supreme Court was of the firm view that despite the fact that the convention had been signed/ratified by the Federal Government, the absence of enactment by the National Assembly meant it has no force of law and cannot possibly apply in Nigeria. One interesting point to note, however, is that all the above cited decisions were made before the Third Alteration in 2010 and Section 254(C)(2) of the Constitution did not come up for determination.

Upon the enactment of the Third Alteration to the Constitution in 2010, the attitude of the National Industrial Court (“the Court”) to the question in issue is one and the same: That it amounts to an unfair labour practice for an employer to determine an employment without advancing or providing valid reason. In all the cases reviewed thus far, the Court relied on international labour instruments and departed from the common law position.

Thus, in ALOYSIUS V. DIAMOND BANK PLC [2015] 58 NLLR (PT. 199) 92, 134 the National Industrial Court, per Justice Kola-Olalere, in applying Article 4 of Employment Convention, 1982 (No. 158) and Recommendation No. 166 of the International Labour Organization in holding that an employer is required to give a “valid reason” for terminating the employment of its employee decided as follows:

“…by the provisions of section 254C(1)(f) and (h) of the 1999 Constitution as amended, this Court can now move away from the harsh and rigid Common Law posture of allowing an employer to terminate its employee for bad or no reason at all…It is now contrary to international labour standard and international best practice and therefore, unfair 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. I further hold that the reason given by the defendant for determining the claimant‟s employment in the instant case, which is that his „service was no longer required‟ is not a valid one connected with the capacity or conduct of the claimant‟s duties in the defendant bank. In addition, I hold that it is no longer conventional in this twenty 1st century labour law practice and in industrial relations for an employer to terminate the employment of its employee without any reason even in private employment…”

No doubt, the Convention C158 – Termination of Employment Convention, 1982 (No. 158) and Recommendation 166 of International Labour Organization (ILO) are the current global parameters for determining international best practices in labour and employment matters. Notwithstanding their non-ratification or non-enactment by the National Assembly, the National Industrial Court has consistently relied on Section 254C(1)(f)(h) of the 1999 Constitution in invoking the  provisions of ILO and Employment Convention in determining labour and employment matters.

Thus, in AFOLAYAN ADERONKE V. SKYE BANK PLC. (UNREPORTED SUIT NO. NICN/IB/08/2015), Hon. Justice F.I. Kola-Olalere of the National Industrial Court held that:

“The requirement in Clause 17.5(iii)(iv) of Document D.3 for the exoneration of the claimant before she can claim her arrears of salaries and allowances also conforms with the Termination of Employment Convention, 1982 (No. 158) and Recommendation No. 166; to the effect that employers should at least give valid reasons for determination of the employments of their employees. Even though the Convention is not yet ratified by Nigeria, this is the current International Labour Standard and International Best Practice that this Court is enjoined to observe in cases like this one.”

The foregoing authorities represent the current position of law in Nigeria that it is now contrary to international labour standard and international best practice and, therefore, unfair for an employer to terminate the employment of its employee, without any reason or justifiable reason connected with the performance of the employee’s work.

CONCLUSION

In the final analysis, employers are enjoined to be wary of the current position of the Court which now seem to protect the employee from termination without valid reason and this should be reflected in their HR policies. That being said, it is submitted that the decisions of the National Industrial Court may not be an end to this controversy. The fact that the Convention C158 – Termination of Employment Convention, 1982 (No. 158) and Recommendation 166 of International Labour Organization (ILO) relied upon in those cases have not been ratified in Nigeria may validate the common law position. One awaits the pronouncement of the Court of Appeal on this issue so as for employers and employees alike to be certain on what exactly the position of law is.

Festus Ogun and Benedict Olutan are legal counsel at Festus Ogun Legal (FOLEGAL). Contact: info@folegal.net +2349066324982