AN OVERVIEW OF TERMINATION OF EMPLOYMENT IN NIGERIA.

AN ARTICLE BY OLUDAYO AYENI ESQ, LLM

1.0 Introduction
The employment relationship is the legal link between employers and
employees. It exists when a person performs work or services under
certain conditions in return for remuneration.1
It is through the employment relationship, however defined, that
reciprocal rights and obligations are created between the employee and
the employer. It has been, and continues to be, the main vehicle through
which workers gain access to the rights and benefits associated with
employment in the areas of labour law and social security. The existence
of an employment relationship is the condition that determines the
application of the labour and social security law provisions addressed to
employees. It is the key point of reference for determining the nature and
extent of employers' rights and obligations towards their workers.
An employment relationship is created when employer and employee
agree on the work to be performed, that work is performed under the
supervision and control of the employer, and the employee is paid for the
work. Minimum terms and conditions of employment are defined in
legislation and collective agreements, both employer and employee have
rights and responsibilities during the employment relationship and when
it is terminated.
Quintessentially, the contract of employment is an offshoot of our general
law of contract where the essential ingredients of the contract must be
found present before its enforceability. These ingredients include; offer
and acceptance, which allows both parties the freedom to offer and
accept unconditionally the terms of employment.
There is also consideration which is the salary or wages payable amongst
other fringe benefits which an employee earns on one hand and the
services which employer receives on the other hand. There is also the
intention to enter legal relation and the capacity of both parties.
The statutory definition of employment in Nigeria is provided for in
Section 91 of the Labour Act which defines the concept as;
"any agreement, whether oral or written, express or implied
whereby one person agrees to employ another as a worker and that
other person agrees to serve the employer as a worker".
The act further defines an employer to mean2;

1
http://ilo.org
2
See also: Nigerian Ports Plc V. Osinuga (2001) FWLR (PT 55) 514 C.A.
 "any person who has entered into a contract of employment to
employ any other person as a worker either for himself or for the
service of any other person and includes the agent, manager or
factory of the first mentioned person and the personnel
representative of a deceased employer".
Lastly the act ascribes the following definition to a worker;
"any person who has entered into or work under a contract with an
employer, whether is for manual labour or clerical work or is
expressed or implied or oral or written and whether it is a contract
or service or a contract personally to execute any work or labour..."
.3
According to the International Labour Organisation, its mandate is to
give the widest possible meaning to the definition of worker. On many
occasions, it has been emphasized that, if the subject matter of a given
instrument is not limited only to employed workers, or the instrument
does not provide for any specific exclusion in respect of one or more
categories of workers, then "worker" is understood to cover all workers.4
The Black’s law dictionary defines employment to mean:
“Verbal or scripted, implied or expressed, contract detailing terms
or conditions based on which a worker agrees to perform specific
duties as guided and commanded by the employer, for an accorded
salary or wage. Whether it is mentioned or not in this contract, the
employer and employee can only make lawful, reasonable demands
towards each other and they should have mutual confidence and
trust. Every employee is obliged to perform assigned tasks and
follow the employer”5
The Black’s provides a more concise definition of the concept of
employment when it defines it to mean:
“The relationship between master and servant, the act of
employing, the quality, state or condition of being employed; the
condition of having a paying job, work for which one has been
hired and is being paid by an employer.”6
In Nigeria, a plethora of cases have taken the liberty to define the
meaning of employment and thus in the case of Nigeria Airways V.
Gbajumo7 the Court of Appeal, Lagos Division, while dismissing the

3
Labour Act cap L1, LFN, 2010
4
See the examples in the ILO Memorandum addressed to the German Ministry of Labour and
Social Affairs concerning C96,
reproduced in OB, Vol. XLIX, No. 3, 1966, pp. 389-390.
5
Black’s Law Dictionary 2nd Edition
6
Black’s Law Dictionary 10th Edition
7
(1992) 5 NWLR Pt 2164 at 735
appeal held that the relationship of master and servant is characterised
by:
a) A contract of service made under seal, oral or inferred from
the conduct of the parties.

b) Payment of wages and salaries.

Thus, it is safe to conclude that the basic distinctive features of an

employment contract is inferable from the fact that where one party
employs the other, appoints him/her to various positions in its
establishment, pays him/her salary and allowances, these acts constitute
sufficient facts from which a contract of employment can be inferred.

There are a variety of employment contract and thus in the case of

Fakunle V. U.I.T.H.B.M8, the Court of Appeal identified the following
four categories of contract of employment namely:

1. Contract under common law. In the absence of a written

agreement, an employment is terminable by each party on
upon given statutory required notices or an equivalent
payment in lieu thereof;

2. Where the contract is in writing, the court is bound to

interpret the contract and confine itself to the terms of the
written contract;

3. Written contract covered by statue9;

4. Public servants covered by the civil service rules and the

constitution.10

However, with regard to several other decided Nigerian cases, there

appear to be three broad categories of contract of employment:

1. Ordinary contract of employment determinable by Notice

2. Contract of employment for a fixed term

3. Contract of employment created and protected by statue.

An ordinary contract of employment determinable by notice is the most

prevalent type of contract of employment. The contract would usually

8
(1991) 4 NWLR, Pt 183, pg 43 at 46
9
see Olaniyan v. University of Lagos (1985) 2 NWLR Pt 9, pg 5, UNTHMB v. Nnoli [1992] 8
NWLR (Pt 363) 576,
10
See Shitta-Bey v. Federal Public Service Commission (1981) 1.S.C pg 40
provide that either party may terminate it by giving a specified period of
notice or payment of salary in lieu of notice. The employer would, in most
cases, exercise the option of giving salary in lieu of notice where the
termination is at his own instance.

Contracts of employment for a fixed term are expressly or impliedly

meant to be for a fixed period. In this case, the appropriate measure of
damages is the amount the employee would have earned over the period
the employment ought to have lasted.

Contracts of employment created and protected by statue are special

kinds of employment contracts. They are special in that the employment
is a creation of and regulated by statute. Such employments are said to
have statutory flavour, a special type which entitles the employee to the
remedy of reinstatement in the event of unlawful dismissal.

1.1 Termination of employment and dismissal.

Either an employer or its employee may terminate a contract of

employment, subject to the terms of the written contract, where the
tenure of such a contract expires without a new contract of employment
entered, either by conduct or in writing. Another instance where a
contract of employment could be terminated constructively is where
either party to the contract dies.

Dismissal on the other hand, can be said to right of an employer to

terminate a contract of employment as a punitive measure against the
employee on grounds of negligence and gross misconduct among other
reasons.

There are various modes of termination of employment ranging from

termination by notice, frustration, and dismissal. The Labour Act, by
virtue of section 9(7) contemplates that a contract of employment can be
terminated by:

(a) Expiry of the period for which it was made

(b) The death of the worker before the expiry of that period
(c) Notice in accordance to section 11 or in any other way in which a
contract is legally terminable or held to be terminated.

It should be stated that these modes are the same as termination by

performance, by frustration and by notice. Section 7 paragraph (E) of the
Labour Act states that the employer shall specify the appropriate period
of notice to be given by the party wishing to terminate the contract.
These modes of termination of contract will be discussed briefly below:
1.1.1 Termination by notice:

A contract of employment may be terminated by notice by either party in

accordance with the terms of contract. The notice provision must strictly
be adhered to or the termination will be wrongful. Section 11 of the
Labour Act provides for termination of contract by notice.

1.1.2 Termination by performance:

A contract is lawfully terminated by full performance. If the obligation

under the contract is expressed to be time-bound, the expiry of the term
fixed terminates it. It should be noted that even where the contract is not
of a fixed duration, the parties can terminate it by mutual agreement
which may correspond with the terms of the contract or may serve as a
variation of same.

1.1.3 Termination by frustration:

The personal nature of employment contracts means that they are

particularly susceptible to termination by frustration. Frustration
circumstances are those occurrences beyond the control of either party.
Those circumstances that make further performance either impossible or
fundamentally different from what the parties had assumed under the
contract. They include outbreak of war, subsequent change in law etc.

1.2 Dismissal

Dismissal on the other hand as earlier stated, suggests that a punitive

measure or punishment has been taken against an employee thereby
reliving such employee of his/her duties without notice as required under
termination.

It is however pertinent to note the difference between termination of a

contract of employment and a dismissal is; Termination gives the parties
the right to determine the contract at any time by giving the prescribed
period of notice or payment in lieu, Dismissal on the other hand, is a
disciplinary measure, which carries no benefits and can only be exercised
by the employer.

Also, unlike termination, in cases of dismissal, the employer is required

to give reasons for the action. In the case of George Abomeli v.
Nigerian Railway Corporation11, where the court held that:
‘’while it is settled that an employer is not bound to give any
reason for lawfully terminating a contract of service, he must give
reasons for summarily dismissing the employee.”
11
(1995) 1NWLR (Pt 372) at pg 451
This is a different form of termination of employment that is based on the
misconduct of the employee. The word dismissal cannot be used when for
example the contract is for a fixed term and the term expires, except
where the said contract provides for dismissal on certain grounds during
the term so created.

These grounds would include cases of stealing, fraud, bribery,

corruption, falsification of records, gross insubordination, working under
influence of illegal drugs, conversion of company property to private use
etc.

The Supreme Court has also confirmed the existence of a general power
to dismiss for misconduct of any kind that can justify a dismissal. 12 It
should be noted that where the misconduct is committed outside working
hours, it will justify dismissal only where it can be shown to be harmful to
the employer’s business integrity, or refer adversely on the capacity of
the employee to perform his duty.

Dismissals are very much a last resort for an employer to take. In the
event of an employer deciding that dismissal is the only option, it must be
conducted fairly and without prejudice. Before a situation reaches
dismissal, employers will need to have followed their disciplinary policies
and demonstrated that they have reasonably tried all other methods to
solve the problem before resorting to dismissal. A brief overview about
the various types of dismissal will suffice at this stage.

1.2.1 Fair dismissal

Fair dismissal is when an employer has sound and justifiable reasons for
carrying out a dismissal. Redundancy will also fall under this category,
although of course the reasons why an employee is selected for
redundancy must be fair.

Reasons for a fair dismissal can relate to an employee’s conduct,

capability or qualifications. Conduct and capability are often the most
common reasons for fair dismissal.

In this situation, an employer would have acted fairly and justifiably, so

there would be very little room to protest the decision made.

1.2.3 Voluntary redundancy

This is when an employee envisages that the employer is going to be

making redundancies, and volunteers to put himself forward for it, which
12
Arinze v. FBN Ltd. (2004) LPELR-551(SC)
would count as fair dismissal of the employee volunteering and therefore
wouldn’t be able to challenge this if he changes, he’s mind. The case of
Pengassan v. Schlumberger Anadrill13 is instructive on what
constitutes redundancy.

1.2.4 Unfair dismissal

This are situations where an employee has not been informed of any
reason for their dismissal, or the employer has not followed their own
policy regarding dismissals or discipline. As mentioned, dismissal is a last
resort and there needs to be a lengthy process that proves the problem
hasn’t been resolved by other means before dismissal is considered.

An employer is entitled to opt for the dismissal of its employee’s contract,

instead of the termination of a contract of employment, where the
conduct of its employee “...... is of some grave and weighty character that
it undermines the relationship of confidence which must exist between a
master and a servant”.

Examples of conduct which could be considered to be of a grave and

weighty nature will include cases of stealing, fraud, bribery, corruption,
falsification of records, gross insubordination, dereliction of duty,
sleeping at work, verbal or physical violence, fighting, assault and
battery, working under the influence of illegal drugs, conflict of interest,
competition with the employer’s business, conversion of company’s
property for private use without the employer’s permission or consent,
assault and battery, etc. This is a departure from the old standard which
prevented the employer from automatically dismissing his employee
without notice where such employee has committed an offence that have
a criminal element(s) which criminal offence requires the proof in a court
of law, of proof beyond all reasonable doubt.

While the criminal prosecution or otherwise of an employee in a court of

law is no longer a sine qua non, i.e. a prerequisite, for summary
dismissal, many employers these days, depending on the circumstance
and the facts, elect to serve a notice of termination or pay salary in lieu
of notice in order not to provide any explanation or reasons for
terminating the contract of employment. If the misconduct or series of
misconducts are however grave, prior legal advice is recommended to be
obtained before the letter of dismissal is issued and delivered to the
employee. In some instances, where the employee’s misconduct is grave
and weighty, a dismissal will be preferred to a termination as such will
serve as a deterrent to other employees.

1.2.5 Fair Hearing

13
2008 11 NLLR (Pt. 29) 164
What determines the wrongfulness or otherwise of the termination or
dismissal of any employment contract in Nigeria is not whether there was
fair hearing at the time the case of the termination or dismissal occurred
but whether the terms and conditions of the written contract of
employment was/were adhered to by the parties in effecting the
termination or dismissal of the contract of employment. Where there is
no written contract of employment, the court will, subject to the general
practice of trade or industry relevant to the employment, apply such
reasonable trade or industry terms and conditions. This is the reason why
many employers prepare a standardised and all-encompassing contract
of employment with an accompanying staff handbook for all their
employees.

2.0 Unlawful and Wrongful Termination of Employment.

Many individuals who have had to relinquish their jobs based on

termination usually feel their termination was "wrongful," especially if it
was done without cause, the legal definition of wrongful termination is
quite specific. To be wrongfully terminated is to be fired for an illegal
reason, which may involve violation of federal anti-discrimination laws or
a contractual breach. For instance, an employee cannot be fired based on
her race, gender, ethnic background, religion, or disability. 14 It is also
illegal to fire an employee because they lodged a legal complaint against
the employer, or because the employee brought the employer’s
wrongdoing to light as a whistle blower. Such adverse actions are
considered "retaliation" and are unlawful.15

2.1 At-Will Employment

Employment is considered "at-will" and therefore not guaranteed it

means the employer is free to terminate the employment at any time, for
any reason or for no particular reason at all. The exception, though, is
when an employee is fired for illegal reasons (such as discrimination or
retaliation) or in violation of an employment contract. If one is able to
prove that the termination was prompted by racial intolerance or a
culture of sexism, for instance, then one might have a claim for wrongful
termination

2.1.1 Retaliation

An employer may not fire (otherwise punish) an employee for engaging in

certain protected activities, such as informing one's employer about
sexual harassment or seeking to form a labour union. To do so is referred
14
Section 42 of the 1999 Constitution of the Federal Republic of Nigeria
15
https://employment.findlaw.com.
to as retaliation, an action that can get an employer sued for wrongful
termination. Other protected activities include taking medical leave,
sitting on a jury, serving in the military, taking time off to vote, or
participating in an official investigation into the employer's practices.

Any employment in the private sector may be brought to an immediate

end by the payment of wages or salary in lieu of the requisite notice, but
only where this is expressly stipulated in the contract. Dismissal can
only be carried by an employer who no longer needs the services of the
servant or employee. It will become wrongful dismissal if the employee
has a valid ground at common law that his contract was wrongfully
repudiated by the employer or that the employer has not followed the
laid down procedure for termination or dismissal.

The common law rule here is that ‘’he who hires can fire’’. In Maiduguri
Flour Mills v Abba,16 it was held that at common law a master may
terminate a contract of employment with or without notice and without
ascribing any reason for the termination. See also the case of Imoloame
v. WAEC17 and Olaniyan v. University of Lagos.18 According to these
authorities even if a termination was wrongful, all that an employee is
entitled to is damages.19

The power to fire is subject to the contractual terms such as

‘requirements of notice and right to be heard’. In Olanifimihan v. Nova
Lay-Tech Ltd,20 the court held that any other employment outside the
statute is governed by the Terms under which the parties agreed to be
bound as master and servant.

The pivot of maintaining equilibrium between both the employer and the
employee when terminating the relationship is the terms of the
agreement. It has been held that the courts may not look outside the
terms of the agreement when deciding on matters that are central to the
terms of the agreement or contract of employment especially master and
servant relationship. It must be noted that employment can be
terminated at any time including during probation.

Another fundamental issue or question is whether an employment for a

fixed period or term can be lawfully terminated before the expiration of

16
1996 9 NWLR (Pt 473) 506
17
1992 NWLR (Pt. 265) 303 at 318E
18
1985 NWLR (Pt. 9) 599 at 612C
19
See also; Obanye v. Union Bank (2018) LPELR-44702 (SC)
20
1998 4 NWLR (Pt 547) 608
the contract. In Swiss Nigeria Wood Industries Ltd v Bogo,21 the
respondent was engaged for a fixed period of two years, but had his
contract terminated after 6 months. The Supreme Court held that the
company is liable to pay the respondent the full salary he would have
earned for the unexpired period of 14 months. The position of the law on
this issue has not changed as evident in the recent Court of Appeal
judgment in the case of; Snow Eniola Ogunjimi v. The Incorporated
Trustees TY Danjuma Foundation & Anor.22

In the absence of notice, section 11(2) of the Act provides that the notice
to be given shall be:

(a) One day, where the contract has continued for a period of
three months or more or less

(b) One week, where the contract has continued for more than
three months but less than two weeks

(c) Two weeks, where the contract has continued for a period of
two years, but less than five years

(d) One month, where the contract has continued for five years
or more.

2.2 Remedies for unlawful and wrongful termination.

There are remedies available to an employee aggrieved about the mode

and way his employment has been terminated, these remedies would be
discussed under two headings for comprehension namely: private and
public sector.

The bedrock of a private sector employment is the contract of

employment between the parties, the parties as well as the court are
bound by the terms of the contract as agreed between the parties. In the
same vein the court is not to look outside the contract of service. The
court must not take any extraneous factors into account.

This was reiterated by Uwaifo JCA (as he then was) in the case of Shell
Petroleum Dev. Co., (Nig.) Ltd. V. Lawson Jack where he held thus:

‘’if there is any written contract, the court must confine itself to it
to interpret and understand the circumstances that regulate the

21
1970 NCLR 423
22
(2018) LPELR-45274(CA)
 right and obligations of the parties. That is to say the contract as a
whole including any other document incorporated into it be
reference or any other method that govern the relationship of the
parties to the contract.” 23

Flowing from this, sanctity of contract is another principle that a servant

who complains that his employment has been brought to an end must
found his claim on the contract of service and show in what manner the
wrong was done. He must plead and approve that the contract of service
is the bedrock of his case see.24

In the contract of personal service, the employer has the power to

terminate or dismiss the employee for good, bad or no reason at all. So
long as he acts within the terms of the contract of employment, his
motive for doing so is irrelevant. In the case of Ansambe v. Bank of
The North Ltd 25, the court held:

‘’…..but for the fact that exhibit 1, the condition of service, theft is
listed as one of the offences which punishment is summary
dismissal. I refer to Article 22 (2) of Exh. 3 thereof….According to
the terms of the condition of service which applied to both
whenever there is incident of theft against any of the
employees…….the offender is liable to a summary dismissal for an
act of gross misconduct. Both the Respondent and the Appellants
are bound by their condition of service and the court should not go
out of the terms of the contract of service.’’ 26

In the case of Vine V. National Dock Labour 27, Jenkins J. was emphatic
on the available remedy for an aggrieved employee:

‘’in the ordinary case of master and servant however, the

repudiation or wrongful dismissal puts an end to the contract and a
claim of damages arises. It is necessarily a claim for damages and
nothing more’’

Before now, the above principle was also applied in a plethora of cases in
Nigeria. For instance, in the case of Idoniboye – Obu v. NNPC 28,
Uwaifo JSC stated thus:
23
1998 4 NWLR Pt. (454) at 249
24
Amodu v. Amodu 1990 5 NWLR (Pt. 150) 35, see also: Katto V. CBN (1996) 6 NWLR (Pt. 607)
390, Idoniboye – Obu v. NNPC
(2003) 2 NWLR (Pt 805) 589
25
2005 8 NWLR (Pt 928) 650
26
See also Ajayi v. Texaco (1987) 3 NWLR 577, Commissioner for Works Benue State v. Devcom
Ltd (1988) 3 NWLR (PT 83)
407.
27
1956 3 All ER 939
28
2003 2 NWLR Pt (805) 589
 ‘’it is all well settled that in this type of employment, that is in the
case of ordinary servant and master where there is repudiation or
breach of contract, the remedies of the parties is in damages’’

The measurement of damages recoverable by the employee is not at

large. It is limited to the period of notice necessary to terminate the
contract of service together with other accrued entitlements of the
servant. The employee cannot claim damages for his feelings, distress,
social discredit or stigma, loss of reputation or stigma associated with
the manner of dismissal but he can claim for salaries, leave allowances
etc, earned by the employee but not paid by the employer at the time of
termination.

3.0 International Labour Organisation and Termination.

The international labour organisation was created in 1919, as part of the

Treaty of Versailles that ended World War I, to reflect the belief that
universal and lasting peace can be accomplished only if it is based on
social justice.

The ILO is the only tripartite U.N. agency, since 1919 the ILO brings
together governments, employers and workers of 187 member states, to
set labour standards, develop policies and devise programmes promoting
decent work for all women and men.

The soon to be century year old institution has made laudable

recommendations for the adoption of member states with respect to
termination of employment. The ILO does not subscribe to the long
standing common law position that an employee is only entitled to
damages limited to the period of notice necessary to terminate the
contract of service together with other accrued entitlements of the
servant and that the employee cannot claim damages for his feelings,
distress, social discredit, loss of reputation or stigma associated with the
manner of dismissal.

The ILO’s position on termination of employment have caused a

substantial part of its member states to move away from the common law
position of termination at will to one prohibiting unfair dismissal or
insisting on termination with justification as stated in the ILO convention.
The member states have in response either taken steps to ratify the ILO
convention on this issue or bring their national laws in tandem and
conformity with the said convention.

The ILO had, since 1963 realised that the English common law
perspective of the rights of labour and employers of labour does not suit
current trends and awareness in the workplace. In its efforts to set global
standards and direct labour developments amongst member countries,
the first step taken by the ILO was its formulation of a set of
recommendations, aptly called ILO Recommendation on Termination of
Employment or Recommendation 111. Recommendation 111 provides
that:

‘Termination of employment should not take place unless there is a

“valid reason for such termination” connected with the capacity or
conduct of the worker or based on the operational requirements of
the undertaking, establishment or service.’

This simple but forceful statement grants working people a guarantee of

elemental fairness at the workplace. The employer may terminate
employment, but not arbitrarily or capriciously. 29 In order to obviate the
possibility of a narrow interpretation being given to the phrase ‘valid
reasons for such termination’, Article 3 lists several grounds member
nations should not accept as a valid basis for termination. 30 Among
these were dismissal based on union activity or filing complaints against
the employers with governmental bodies, or grounds of a worker’s race,
colour, sex, national origin, or religion.

The Recommendation further states that a worker who feels that his
employment has been unjustifiably terminated should be entitled to
appeal the termination to ‘a body established under a collective
agreement or to a neutral body such as a court, an arbitrator, an
arbitration committee or a similar body.’ If the termination is found to be
unjustified, the tribunal should be entitled to order that the worker be
reinstated or be paid ‘adequate compensation’ or other appropriate
relief.

Developments in different national laws and changes in national

practices over the next twenty years post ratification, prompted the
International Labour Organisation to re-examine the 1963
Recommendation. It was felt that the advancement of workers’ rights in
countries throughout the world made it an appropriate time to consider a
Convention on the subject. On June 22, 1982, the Sixty-eighth
Conference approved both a Recommendation (No. 166) and Convention
(No. 158) on termination of employment. The latter had its genesis in the
former.

29
It was adopted by the International Labour Organization on June 26, 1963, by a vote of 196 to
74 and 10 abstentions. It has
currently been superseded by Recommendation No. 166 of 1982.
30
See J. R. Bellace, ‘A Right of Fair Dismissal: Enforcing A Statutory Guarantee’, at 213
The Convention (No. 158) supports the notion that discharged workers
should have a right to defend themselves before punishment is imposed.
Article 7 states that a dismissal based on the employee’s conduct or
performance should not take effect until the employee has had an
opportunity to respond to the allegations, ‘unless the employer cannot
reasonably be expected to provide this opportunity’. This can be seen as
merely good personnel management practice. Yet, at present, there is no
right to a pre-discharge disciplinary interview in Nigeria. This convention
has not been adopted in Nigeria either by law, custom or executive
action.31

The laudable provisions of the ILO that should be adopted by Nigeria

with respect to termination of employment are succinctly reflected in
Articles 4, 5, 6, 7, and 8.

Article 4 provides that:

“The employment of a worker shall not be terminated unless there

is a valid reason for such termination connected with the
capacity or conduct of the worker or based on the operational
requirements of the undertaking, establishment or service.”

Article 5 provides that:

“The following, inter alia, shall not constitute valid reasons for
termination:

(a) union membership or participation in union activities outside

working hours or, with the consent of the employer, within
working hours;

(b) seeking office as, or acting or having acted in the capacity of, a
workers' representative;

(c) the filing of a complaint or the participation in proceedings

against an employerinvolving alleged violation of laws or
regulations or recourse to competent administrative authorities;

(d) race, colour, sex, marital status, family responsibilities,

pregnancy, religion, political opinion, national extraction or social
origin;

31
Even though Article 1 of the Recommendation provides that effect may be given to the
Recommendation through national laws or regulations, collective agreements, works rules,
arbitration awards, or court decisions or in such other manner consistent with national practice
as may be appropriate under national conditions.
 (e) absence from work during maternity leave.”

Article 6 provides that:

“1. Temporary absence from work because of illness or injury shall

not constitute a valid reason for termination.

2. The definition of what constitutes temporary absence from work,

the extent to which medical certification shall be required and
possible limitations to the application of paragraph 1 of this Article
shall be determined in accordance with the methods of
implementation referred to in Article 1 of this Convention.”

Article 7 provides that:

“The employment of a worker shall not be terminated for reasons

related to the worker's conduct or performance before he is
provided an opportunity to defend himself against the allegations
made, unless the employer cannot reasonably be expected to
provide this opportunity.”

Article 8 provides that:

“1. A worker who considers that his employment has been

unjustifiably terminated shall be entitled to appeal against that
termination to an impartial body, such as a court, labour tribunal,
arbitration committee or arbitrator.

2. Where termination has been authorised by a competent

authority the application of paragraph 1 of this Article may be
varied according to national law and practice.

3. A worker may be deemed to have waived his right to appeal

against the termination of his employment if he has not exercised
that right within a reasonable period of time after termination.”

By Article 9, the worker may not bear the burden of proof that his
termination was not justified. The ratifying nation may either place the
burden on the employer to come forward with a valid reason for the
discharge or require that the impartial body reach a conclusion based on
the evidence, thereby placing the burden of proof on neither party. Far
from being a matter of mere procedure, this requirement amounts to an
important substantive protection in itself: employees are no longer
placed in the difficult position of proving that the employer’s reason for
discharge was invalid, a task usually requiring employees to prove that
their work record was spotless. Article 9 thus creates further support for
the fundamental guarantee. Employers should have a valid reason for
dismissal; therefore, it is not unduly onerous to require employers to
specify that reason.

In contrast, the onus of proof in Nigeria lies on the employee who

complains that his employment has been wrongfully terminated. He has
the onus to (a) place before the court the terms of the contract of
employment and (b) to prove in what manner the said terms were
breached by the employer. It is not in principle for the employer who is a
defendant to an action brought by the employee to prove any of those.

The provisions of the Convention represent some advancement in the

rights protected in the Recommendation of 1963. It is, therefore,
deplorable that Nigerian law has not even attained the level of protection
envisaged under the Recommendation. As we have seen, the common law
courts are vested with jurisdiction to entertain employment cases as part
of the unlimited jurisdiction of the courts. There is no statute establishing
an arbitral tribunal for labour or employment matters. In the same vein,
the relief of reinstatement is not available to employees in the private
sector. Even in the public sector, its availability cannot always be
guaranteed.

In its avowed object of being a responsible member of the international

community, Nigeria subscribes to the membership of the United Nations,
its organizations and several regional organizations. With reference to
the ILO, the country has been a member since 1960. It has ratified thirty-
eight ILO conventions, out of which thirty-four are currently in force. The
Nigerian approach to the enforcement of treaties and other international
instruments is dualist. Treaties, though ratified by Nigeria, are not
enforceable directly as part of the domestic law until they are passed into
law by an Act of the National Assembly.

By section 12 of the 1999 Constitution, ‘no treaty between the Federation

and any other country shall have the force of law except to the extent to
which any such treaty has been enacted into law by the National
Assembly’32. The Constitution gives the Federal Government exclusive
competence in treaty making. Though it is generally presumed in
international relations that nation states will observe provisions of
international treaties and agreements voluntarily entered into, much
more is required before such treaties can attain the force of law in
Nigeria.

ILO Conventions and Recommendations constitute a major source of

international labour law for member countries. Whilst Conventions are
designed to create legal obligations for the States which ratify them,
32
Abacha v Fawehinmi [2000] 6 NWLR (Pt. 660) 228 at 288.
Recommendations have no mandatory force but are essentially guides to
national action. The obligations of member states to give effect to the
provisions of Conventions and Recommendations of the General
conference of the ILO are explicit. By Article 19 (5), (6) and (7) of the ILO
Constitution, each of the Members undertakes that, it will, within the
period of one year at most from the closing of the session of the
Conference, or if it is impossible owing to exceptional circumstances to
do so within the period of one year, then at the earliest practicable
moment and in no case later than 18 months from the closing of the
session of the Conference, bring the Convention before the authority or
authorities within whose competence the matter lies, for the enactment
of legislation or other action. Member nations are thus obligated to ratify
or otherwise domesticate provisions of Conventions into domestic law for
effective enforcement.

However, it is clear from the above that non-ratification or domestication

does not entitle a member state of the ILO to completely ignore
developments of standards in a particular subject. Article 9 of the ILO
Constitution states further that provision of Conventions may be applied
by laws or regulations, collective agreements, work rules, arbitration
awards, court decision or a combination of these methods.

In Nigeria, National Industrial Court (“NIC”) Act and Third Alteration to

the 1999 Constitution would appear to have created a leeway in the
application of the ILO Convention in labour matters. By the provisions of
the NIC Act which provides that:

“The court shall in exercising its jurisdiction or any of the powers

conferred upon it by this Act or any other enactment or law, have
due regard to good or international best practices in labour or
industrial relations and what amounts to good or international best
practice in labour or industrial relations shall be a question of
fact”.33
The National Industrial Court (NIC) is permitted to be part of the global
world of industrial relations law and practice where the experience of
other jurisdiction can be brought to bear in the adjudication of labour
disputes. The question however is whether this enables the Court to
consider those practices in other jurisdictions which are borne out of
international conventions and treaties they have domesticated but which
have no force of law in Nigeria. It is our opinion that if the provisions of
section 7(6) is given its full weight, the Court ought to be able to adopt
such practices even where they have not been domesticated in Nigeria.

This may however raise the issue of the constitutionality of section 7(6)
of the NIC Act as the 1999 Constitution has clearly provided for the only
33
Section 7 (6) National Industrial Court Act
condition upon which international conventions and treaties can attain
the force of law in Nigeria. This question is yet to be answered by the
courts in Nigeria but if section 7(6) is to be given its full weight, the NIC
ought to be able to adopt such practices. This position is further
substantiated by the clear provisions of the constitution34, which confers
on the NIC jurisdiction over international best practices in labour,
employment and industrial relation matters.

4.0 Conclusion

The paper has elucidated on the concept of termination of employment

within the gamut of the Nigerian Laws on the subject and it has revealed
that our laws on this subject need to be brought up to the acceptable
international standards as recommended by the ILO.

As things stand the Nigerian laws seem to continue with the age-old
common-law position which is to the effect that an employer can hire and
fire for good, bad or no reason at all. At least with dismissal the reasons
are readily available.

In the case of wrongful termination of employment, it usually a question

of fact to be determined by the courts where the courts will be inclined to
give effect to the terms of a contract of employment between the parties
no matter how unfair it maybe. The unfairness in the terms of
employment contracts is predicated on the fact the employer in most
cases have an enormous bargaining power than the employee at the
inception of making such contracts. Where there is no contract, the
courts will be ready to apply the provisions of the labour act which has
been long overdue for improvement for instance see the provisions on the
prohibition of night and underground work by women35 as against the
provisions of the constitution36 on discrimination.

On the other hand, it is worthy of note to identify the development in the

jurisdiction of the NIC as regards the consideration and application of
international best practises in labour matters. It is hoped that in no
distant future the international laws on labour matters will form part of
the National laws of Nigeria.

34
Section 254c (1) (f) of the 1999 constitution of the Federal Republic of Nigeria as amended
35
Sections 55 and 56 of the Labour Act
36
Section 42 (1) of the 1999 constitution of the Federal Republic of Nigeria as amended