Termination of private employment in Nigeria is regulated by the terms of the employment contract and the guidelines of international labour standards. The Labour Act, Laws of the Federation of Nigeria (LFN) 2004, which implies certain conditions in the employment relationship does not apply to employees exercising administrative, executive, technical or professional functions. Termination of statutory employment such as those employed by government ministries, departments, and agencies (MDAs) falls under the purview of the relevant Public Service Rules. With respect to termination of private employment at the initiative of the employer, the relevant principles are as follows:
1. Termination must be for valid reason
Under Article 4 of the International Labour Organisation’s (ILO) Termination of Employment Convention 1982 (No. 158) (‘the Convention’), the employment of a worker can only be terminated for ‘valid reason’ connected with the capacity of the worker; the conduct of the worker; or based on the operational requirements of the employer. This removes the possibility for the employer to unilaterally end employment for no reason. This principle has been applied by the NICN in a plethora of cases including – Bello Ibrahim v Ecobank Plc (unreported suit No NICN/AB/144/2018); Aloysius v Diamond Bank Plc. (2015) 58 N.L.L.R (Pt 99) 92 at 132; and Duru v Skye Bank Plc (2015) 59 N.L.L.R (Pt.207) 680.
Termination on ground of capacity can take the form of lack of the skills or qualities necessary to perform tasks leading to unsatisfactory performance, or permanent incapacity to perform work as a result of illness or injury. Reasons connected with misconduct may include inadequate performance of duties such as neglect of duty, violation of work rules, disobedience of legitimate orders, etc.; or improper behaviour such as disorderly conduct, violence, assault, disruption of peace and order of the workplace, etc. On the other hand, termination of employment based on operational requirements generally includes reasons of an economic, technological, structural or similar nature which are not connected with the capacity or conduct of the employee.
By virtue of Article 5 of the Convention, the following reasons shall not constitute valid reasons for termination – (a) union membership or participation in union activities; (b) seeking office or acting in the capacity of worker’s representative; (c) filing a complaint or recourse to competent administrative authorities or participating in proceedings against an employer; (d) temporary absence from work because of illness or injury; (e) absence from work during maternity leave; (f) or race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
2. Procedure Prior to Termination
Article 11 of the Convention provides that the employee is entitled to a reasonable period of notice or compensation in lieu thereof, unless he is guilty of serious misconduct of such nature that it would be unreasonable to require the employer to continue his employment during the notice period. The purpose of this obligation is to prevent an employee from being taken by surprise by immediate termination of employment and to mitigate its detrimental consequences. Under Article 7 of the Convention, an employee shall be afforded an opportunity to defend himself against allegations related to his conduct or performance, unless the employer cannot reasonably be expected to provide this opportunity. Furthermore, Section 8 of the Termination of Employment Recommendation 1982 (No. 166) (‘the Recommendation’) provides that employment should not be terminated for unsatisfactory performance unless the employer has given the employee appropriate instructions and written warning and the employee continues to perform his duties unsatisfactorily after a reasonable period of time for improvement has elapsed.
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Note that the employer could be deemed to have waived his right to terminate the employment for misconduct if he has failed to do so within a reasonable time after knowledge of the misconduct, see Section 10 of the Recommendation. Finally, under Section 10 of the Recommendation, an employee should be entitled to be assisted by another person when defending himself against allegations regarding his conduct or performance liable to result in termination of his employment.
3. Severance Allowance and other Income Protection
An employee whose employment has been terminated shall be entitled to his severance allowance or other separation benefits. See Article 12 of the Convention.
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4. Certificate of Employment
By virtue of Section 17 of the Recommendation, an employee whose employment has been terminated should be entitled to receive, on request, a certificate from the employer specifying only the dates of his engagement and termination of his employment and the type of work on which he was employed. However, at the request of the employee, an evaluation of his performance or conduct may be provided. In Kelvin Nwaigwe v Fidelity Bank Plc (unreported Suit No. NICN/LA/85/2014) the court held that there is an implied duty in contracts of employment for employers to provide workplace references that are accurate and fair to their existing or former employees. Though this decision is anchored on the principle of implied duty, it is nevertheless in tandem with the applicable international labour standard.
5. Categories of Excluded Employees
The following categories of employees may be excluded from the application of the provisions of the Convention – (a) employees under a contract of employment for a specified period or task; (b) employees under probation of reasonable duration; (c) and Casual workers. Note that contracts for a specified period when renewed on one or more occasions are deemed to be contracts of employment of indeterminate duration.
The National Industrial Court of Nigeria (NICN) is the court with exclusive jurisdiction to hear and determine all labour and employment matters. A few comments have been made about the court’s judicial attitude of applying international labour standards in employment disputes as against common law percepts. I am of the opinion that this power is constitutional, as provided under Section 254 (c) (2) of the Third Alteration to the 1999 Constitution, and in the absence of a constitutional amendment the expectation that the recent judicial attitude of the NICN will be reverted should be tampered. Note that the international labour standards are only guidelines and their exact application and ramification will invariably be determined on a case-by-case basis. The issue of the seeming inconsistency of the NICN’s application of these standards becomes less grating, when viewed through the above lens. In this vein, it is pertinent that in-house counsel and human resources are conversant not only with the terms of employment contracts but also the principles contained in the applicable international labour standards.
Ozi’ Nwadike Esq., Principal Counsel, Pristine and Sage Attorneys, Lagos