Wanted: Law of employment in Nigeria (1)

ACCORDING to the learned authors of Black’s Law Dictionary, “Employment” is the act of employing, the state of being employed, or work for which one has been hired and is being paid by an employer. In simple terms, therefore, employment relates to a relationship of hiring one to render certain services in exchange for payment. There are several categories of this relationship, from master and servant, to statutory employment and casual employment. It has been pretty difficult in Nigeria to develop basic rules guiding this vital relationship between the employer and the employee, as our case law is replete with many judicial decisions on the point, without any convergence. Although there exists a Labour Act in Nigeria governing contracts of employment generally, it is only applicable to employments in federal establishments and institutions, as most states have refused to domicile same as part of their own legislations.

Under and by virtue of Section 91 of the Labour Act, a contract of employment is 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. What it then means is that an employment relationship is purely a matter of agreement and may be difficult to codify in any single legislation. For instance, private companies and even sole proprietors, small scale business owners, etc, cannot be regulated by any legislation by the government, which is not financing their businesses. Going by Section 7 of the Labour Act, however, there must be written particulars of all employments, specifying the name of the employer, the name and address of the worker and the date of his engagement, the nature of the employment, the duration of the employment, conditions of the employment and how it can be determined, the rate of wages, the terms and conditions of hour of work, or holidays and incapacity for work due to sickness or injury. The focus of this piece is, therefore, the security of employment and the protection of workers.

The prevailing economic conditions of any nation will invariably determine its employment variables, as it is the prosperity of the nation that trickles down to all other sectors. Without any doubt whatsoever, the unemployment situation in Nigeria has become truly alarming, especially for the young adults, leading to desperations on the part of job seekers and the crude exploitation by their employers. How then do we protect workers that we cannot find jobs for? How do we manage employers that we cannot assist with basic infrastructures that will promote industrial growth and corporate prosperity? Which one is the better option for the average job seeker, between unemployment and employment without job security and statutory protection? Should the policy of “half bread is better than none” be the lot of the average job seeker?

There are presently two basic types of employment in Nigeria, namely the ordinary employment based upon contract and the special employment based upon statute. The former is the one by which two parties enter into a contract of hire and service, based principally upon an agreement. This is the one that is most common with private and public companies, sole proprietors, business owners and the like. The conditions of such employment are almost always skewed in favour of the employer, who has the knife and yam. In this case, the worker is at the mercy of the employer, so to say, especially in terms of hiring and firing. How can somebody join you to grow your business, virtually from nothing and then after he has put in 20 or more years of service and the business has grown, then you suddenly turn around and disengage him without any compensation? It sounds outrightly callous, to exploit the energy, talents and skills of somebody to your own economic advantage and then suddenly throw him into the labour market.

The position of the courts in this regard has always been that since employment is more of a contract between two parties, if and when there is a breach of the said contract, the remedy is the same as other contracts, which is damages. The exception being that whereas in some other contracts you can ask for specific performance, it is difficult to ask an unwilling employer to keep a willing employee. In this regard, the Supreme Court has laid down the principles governing employment to mean that either party can terminate the contract, for good cause, for bad cause or for no cause at all. Thus, for several reasons ranging from re-organisation, to financial challenges, misconduct or even restructuring, the employer may ask the employee to go, at any given time, so long as due notice is given or salary in lieu thereof, is paid. Afortiori, the employee, for reasons of better job offers, educational pursuits, persecution or general job dissatisfaction, may choose to quit the employment, so long as due notice is also given, according to the terms of the contract. So, as you cannot force the employer to keep retaining the employee against his will, so also can you not force the employee to remain in service.

This principle works best in favour of the employer, being the one at an advantage to hire and fire, as most employees prefer to remain in employment, even under very harsh conditions, given the state of unemployment prevailing in the land. This is why it is called “master and servant relationship,” as the employee works at the pleasure of the employer. To determine this relationship is, therefore, a matter of naira and kobo, as to the quantum of wages that an employee should be entitled to, in the event of termination of his employment by the employer. It is gratifying to note, however, that the courts have been coming up with innovative solutions in aid of the seemingly helpless worker. Where the worker has contributed immensely to the growth and development of the organisation and has attained such managerial position as to be part of the directing mind of the organisation, then it cannot just be a case of hire and fire. In such a situation, the employer must be ready to part with a huge chunk of the profit of the organisation in favour of the sacked employee, as worthy compensation for his efforts. And in many new cases, the National Industrial Court has risen to the occasion to rescue workers from the rage of the employers.

The special employment is the one that is created or governed by law, especially in the public service, corporations established by law and such other organisations whose existence and management are codified in a statute. That is why it is referred to as employment with statutory flavor. In this case, the worker is not serving at the pleasure of anybody and cannot just be laid off without following due process. Common examples are the civil servants, workers of teaching hospitals and tertiary institutions, etc. Termination of employment in such circumstance will most likely be based upon some grievous act of misconduct that must be investigated and determined, with the active knowledge and participation of the worker. In this case, there is sufficient job security. But even at that, heads of these organisations are known to possess enormous powers to be able to manipulate the process against any employee they wish to victimise.

The third category of employment, which seem to be gaining grounds of late, is the casual employment. I’d previously considered it demeaning to describe anyone as a casual worker, but when I checked Black’s Law Dictionary well again, I tempered my outrage. According to the learned authors of this authoritative text, casual employment is work that is occasional, irregular, or for a limited, temporary purpose. It will be proper where in such employment, Section 7 of the Labour Act is brought to bear, with written documentation as to the nature, duration and other terms of the contract. I believe this is applicable to such auxiliary services like cleaning, security, etc. But what is commonly referred to as casual employment in Nigeria, especially with some of our foreign investors from the Middle East, is a situation whereby young Nigerians are gathered together every morning, in front of a factory or company, their names taken down and a tally issued to them as gate pass for access into the organisation to work for just one day. They are paid daily and there is no guaranty that by the next day, the job will still be available. This can go on for a whole year or even more. In this case, the employer is usually very brutal and callous, not willing to concede anything to the casual worker. I consider it some form of slave labour for an organisation to refuse to document its number of workers and regularise their conditions of service and wages, as is applicable in their own country of origin.

The worst aspect of this narrative is that in all categories of employment, the worker is no longer sure of his wages. So, the question is this? Why should services be rendered in default? Why can’t the employer pay first and then hold the employee to render service thereafter? Presently, there are situations where the employer is in default of salary for a whole year and the worker is still expected to report for duty and render service. It was once reported of a wealthy Nigerian who decided to set up a branch of his outfit in another African country. He set it up in such a big way and engaged citizens of that country as his workers, but he refused to pay them, banking on his experience in Nigeria, where he is used to owing months of arrears of salary for workers. The labour unions moved swiftly and got the government of that country to close down the business and thereafter auctioned his assets to pay his workers. This indeed is the reason for the title of this piece, which will be unfolded in greater detail in the concluding part next week.