Sacking Workers Without Reason

The Sacking of Private Sector Workers Without Reason: Errors of the National Industrial Court of Nigeria.

By Onyekachi Umah.

Daily Law Tips (Tip 565)

Private sector workers are employees that are not engaged by any government in Nigeria. They are persons who are not employed by local, state or federal government of Nigeria rather, they are employed by private persons, businesses, companies, organisations, and institutions not owned by the government. Private sector workers are not public servants “government pikin“. This publication focuses and applies to ONLY workers in the private sector (workers not employed by local, state or federal governments of Nigeria). It highlights the so-called innovation of the National Industrial Court of Nigeria (NICN) in the cases of Duru v Skye Bank Plc and Aloysius v Diamond Bank Plc. It frowns at the judicial rascality of the NICN in its unconstitutional adoption of international best practices and conventions that are not domesticated by the federal legislature of Nigeria. The words “fire” “sack”, “termination”, and “dismissal” as well as their verbs in this publication, mean and refer to the same thing.

Private sector workers are often employed with a simple employment contract (often written and sometimes, orally made). The relationship between a private sector worker and his private sector employer is a pure master-servant relationship. Workers and their tenure of employment are at all times at the mercy of their employers. The employers have ultimate powers to sack, terminate or dismiss their workers anytime, anywhere, but not anyhow. Workers must be sacked in line with the procedure for termination of employment contained in their employment agreements. Such agreements contain proper notices of termination to be given as well as payments to be made in place of such notices and salaries to be paid, all inline with the provisions of the Labour Act (a federal law regulating employers and employees in Nigeria).

The Labour Act provides the minimum notice of termination that an employer can give his worker and vice versa. For example, a worker for not more than a continuous period of 3 months needs only one day’s notice, a worker for a continuous period of 3 months but less than 2 years needs only one week’s notice, a worker for a continuous period of more than 2 years but less than 5 years needs only two weeks notice and a worker for a continuous period of 5 years or more needs one month notice. This is what the law says in Nigeria, so anything better than this that any worker in Nigeria enjoys an employer is bonus. However, if such a higher period of notice is written in an employment agreement then the employer is strictly bound by it. An employment agreement can only increase the minimum duration to notice of termination created by law but cannot decrease it.

A worker can be sacked by his/her employer at any time with or without any reason, so far as the termination is done in line with their agreed procedure and all outstanding salaries and benefits are paid to the sacked worker. It is so simple and often expressed that an employer can sack a worker for not liking the worker’s nose or hat. However, if an employer ever states or gives a reason for dismissing any worker, then the reason must be satisfactorily proven (it must be reason enough) by the employer; if not proven, the dismissal may be wrongful. Wrongful termination is when a worker is fired without observing his employment agreement, like failure to issue a notice of termination, failure to pay salary in lieu (in place) of notice of termination or failure to pay for outstanding salaries and benefits without any justifiable reason like gross misconduct, cheating and fraud involving the concerned worker.

By the way, no court in Nigeria can do anything about termination that follows agreed employment terms since a willing worker cannot be forced or dumped on an unwilling private sector employer. Hence, workers cannot be ordered to be reinstated in the private sector. The courts will only intervene in private sector termination or dismissal where such termination was done wrongfully.

Below are the words of the Supreme Court on this issue;

“…an employer is not bound to state the reasons why an employee’s appointment is terminated. See Taiwo v. Kingsway Store Ltd 19 NLR 122, (ii) Obe v. Nigersol Construction Co. Ltd (1972) 2 University of Ife Law Report (pt. 2).”

Per MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE ,J.S.C. ( Pp. 9-10, paras. G-A ). Quote from the case of INSTITUTE OF HEALTH ABU HOSPITAL MANAGEMENT BOARD v. ANYIP (2011) LPELR-1517(SC)

“Although it is trite that an employer is not obliged to give any reason for firing his servant, all the same, it is settled law that where he has proferred any reason at all, it is obliged to satisfactorily prove the same as the onus is on him in that regard, otherwise the termination/dismissal may constitute a wrongful dismissal without more.”

Per CHUKWUMA-ENEH ,J.S.C ( P. 21, paras. A-B ). Quote from the case of INSTITUTE OF HEALTH ABU HOSPITAL MANAGEMENT BOARD v. ANYIP (2011) LPELR-1517(SC)

“The court has no jurisdiction to impose a servant on an unwilling master, unless the appointment has a statutory flavour. In the case the onus will be on the employee who alleged that he was wrongly removed from the appointment to so show. See College of Medicine v. Adegbite (1973) 5 SC. See also Nigeria Airways Ltd. v. Yahaya Ahmadu (1991) 6 NWLR (Pt. 198) at 493. Afri-Bank Nigeria Plc. v. Christopher Obi Nwuaeze (1988) 6 NWLR Pt. 553 at 286.”Â

Per MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE ,J.S.C ( P. 10, paras. C-D). Quote from the case of INSTITUTE OF HEALTH ABU HOSPITAL MANAGEMENT BOARD v. ANYIP (2011) LPELR-1517(SC)

ADDENDUM

(This addendum is made following feedback from readers and the need to clear the air on the radical decisions of the National Industrial Court of Nigeria that “sacking” a worker must be with a reason.)

I love international conventions and protocols because they often speak of evidence-based innovations. However, Nigerians cannot benefit from an international convention that is not yet adopted and ratified in Nigeria and also domesticated by the National Assembly. The constitution of Nigeria prohibits international conventions from being automatically operational in Nigeria, even after Nigeria signs such conventions unless the National Assembly (the federal legislature) approved such conventions (ie, domestication). The Constitution of Nigeria is Supreme and any law, convention, practice, judgement or order that contradicts the Constitution of Nigeria is deemed null and avoid (dead on arrival).

Note that the Termination of Employment Convention, 1982 is not yet ratified by Nigeria. So, the convention is not operational in Nigeria. However, the convention has been ratified by even Niger and Cameroon. Only 36 countries of the world have ratified the said convention with the latest being Slovakia in2010. Even one of the rafting member counties (Brazil) has denounced the convention. Also, Termination of Employment Recommendation, 1982 (No. 166) which is a supplement to the Termination of Employment Convention, 1982, made on 22 June 1982 is not operational in Nigeria, since the said recommendation as well as the main convention are not ratified by Nigeria.

In the International Labour Organisation (ILO), Nigeria has ratified only 40 Conventions, out of which 26 are in force, 9 Conventions have been denounced; 5 instruments abrogated. This is the status of Nigeria.

The arguments of the National Industrial Court (NIC) as to its powers to apply international labour conventions and international best practices cannot be a ground for the NIC to apply a convention that the state of Nigeria has not ratified. I doubt if the Supreme Court can allow such judicial rascality. The NIC obviously has good intentions but must allow the Ministry of Foreign Affairs and the National Assembly to do the needful before relying on unknown laws. While one understands the need to protect workers, there is a higher need to respect the Rule of Law and the Separation of Powers, as well as to avoid indiscriminate importation of foreign laws and conventions.

I am mindful of the cases of Duru v Skye Bank Plc and Aloysius v Diamond Bank Plc, both decided by the NIC relying on international best practices and indirectly on the “unlawful” Termination of Employment Convention, 1982.

The argument that the NIC was not relying on the convention itself but rather on best practices is like hiding behind a finger. Where are the International best practices flowing from? What is the basis of international best practices? Can international best practices exist outside the convention? How international is a convention that has been ratified by only 36 countries since 1982? Can the duty of applying international conventions and international best practices be interpreted to mean practices in conventions not ratified by Nigeria? Could that be the intention of the draft man and lawmakers? What then is the importance of the constitutional requirement for international conventions to be ratified and domesticated in Nigeria before they can be operational and binding in Nigeria? Can the NIC wriggle out of this by virtue of Section 7 (6) of the NIC Act, 2006 and also section 254C (1) (f) (h) of the Constitution of the Federal Republic of Nigeria, 1999?

Time will tell as we wait on the Supreme Court of Nigeria! As for now, the NIC is an inferior court to the Court of Appeal and the Supreme Court. Hence, the decisions of the NIC cannot be outside the compass of the decisions of the Supreme Court in line with the principle of Stare Decisis (lower courts are bound by decisions of a higher court and not vice versa). So, the NIC decision is not the law rather the obvious harsh common law positions of the Supreme Court that an employer can hire and fire with or without reason is still the law!

When lower courts, seem to deviate from the decisions of the appellate courts, it is advisable to wait on the appellate courts to pronounce on the same. A court cannot change a statute no matter how highly placed, brilliant or innovative such court/judge may be. Courts don’t make legislation rather they interpret legislation and can declare any legislation in conflict with the constitution of Nigeria as null and void.

Section 11 of the Labour Act is clear and cannot be changed by a court or international conventions unless such international conventions are domesticated and expressly made to repeal the Labour Act or its parts. Until, then the law is the law, no matter how harsh it may sound or seem.

Imagine today’s decision of the Supreme Court over section 396(7) of the Administration of Criminal Justice Act, 2015 (ACJA) which was designed to make criminal trials fast and reliable. The said law allowed an elevated State or Federal High Court judge to shuttle from the Court of Appeal to High Court in order to complete pending criminal cases. This was innovative but clearly contrary to the constitution of Nigeria, which makes Judges of the Court of Appeal have no business in High Courts and vice versa. Since 2015, many practitioners and commentators have lauded the innovation of the ACJA. The High Courts and even the Court of Appeal have relied on that provision of the ACJA but the same was buried and lost today (8 May 2020) in the Supreme Court judgement in the case of Orji Uzo Kalu. The Supreme Court declared the provision of ACJA null and void for being contrary to the constitution of Nigeria.

Hence, one must be careful with seeming innovative judgments of courts of the first instance (Magistrates’ courts, High Courts and National Industrial Courts among others) because they are bound by the decision of appellate courts. True judicial Innovation is a Top-Down movement and can only be achieved boldly from the final and infallible court in Nigeria (Supreme Court of Nigeria).

References:

Sacking Workers Without Reason

1. Sections 9 and 10 of the Labour Act, 1971 and Section 7 (6) of the NIC Act, 2006 and also section 254C (1) (f) (h) of the Constitution of the Federal Republic of Nigeria, 1999.

2. The Supreme Court’s decision in the case of INSTITUTE OF HEALTH ABU HOSPITAL MANAGEMENT BOARD v. ANYIP (2011) LPELR-1517(SC)

3. The Supreme Court judgement (on the issue of compensation for wrongful termination or dismissal) in the case of OBANYE v. UNION BANK (2018) LPELR-44702(SC)

4. The Supreme Court’s judgement (on the issue of reliefs for wrongful termination of private sector worker) in the case of ATIVIE v. KABELMETAL (NIG) LTD (2008) LPELR-591(SC)

5. The Supreme Court’s judgement (on the issue that a worker can be dismissed for misconduct, fraud or indiscipline without notice or payment of wages and even without being charged to court or reported to law enforcement agency) in the case of EZE v. SPRING BANK PLC (2011) LPELR-2892(SC)

6. The Supreme Court’s judgment (on the issue that an employer in private sector must not give reason for sacking a worker) in the case of OLAREWAJU V. AFRIBANK PLC (2001) 13 NWLR (PT. 731) 691; OLANIYAN V. UNIVERSITY OF LAGOS (1985) 2 NWLR (PT. 9) 599; and GARBA V. UNIVERSITY OF MAIDUGURI (1986) 1 NWLR (PT. 18) 550.

7. The National Industrial Court’s decision (on the issue that workers cannot be sacked without a reason) in the case DURU v. SKYE BANK PLC (2015) 59 N.L.L.R (Pt. 207) 680) 59 N.L.L.R (Pt. 207) 680)

8. The National Industrial Court’s decision (on the issue that workers cannot be sacked without a reason) in the case of ALOYSIUS v DIAMOND BANK PLC (2015) 58 N.L.L.R (Pt.199) 92

9. Reference was made to the below international documents although they are not authorities and they are not binding in Nigeria; “Termination of Employment Convention, 1982” as well as its supplement “Termination of Employment Recommendation, 1982 (No. 166)”.

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