BusinessDay 15 Feb 2018

Thursday 15 February 2018
C002D5556
BUSINESS DAY
27
BOOKREVIEW
Recent developments in Nigerian labour and employment law
The last decade has witnessed a lot
of changes and developments in
the Nigerian labour and employment
laws, and with implications
for human resources practice.
Among all the sources of the Nigerian labour
laws, caselaws and International Conventions
ratified by Nigeria are fast redefining
employment law and the law of labour
relations in Nigeria. Recent Developments
in Nigerian Labour and Employment Law
attempts a chronological presentation and
appraisal of some of these changes and
developments. Divided into 20 parts, the
work provides an insight into some of the
revolutionary changes and developments
in the Nigerian labour and employment law
in the last decade.
Part 1 and 2 deal with the changing face
of the law as it relates to termination of
employment. The law, from time immemorial,
has been that an employer needs
not give reason to terminate a contract of
employment, he only needs to comply with
the terms and conditions of the contract of
employment. The trite common law has
been that employers of labour are at liberty
to terminate for good reason, bad reason
or no reason at all, and the motive for the
termination is also irrelevant. This trite
common law rule is, however, fast changing
as the National Industrial Court of Nigeria
(NICN) is gradually moving away from this
position. The law, as it stands today, is that
employers must now give reason(s) for
termination otherwise such terminations
become wrongful and actionable. Consequently,
the common practice of simply
stating that “the services of the employee is
no longer required” without more is no longer
tenable in law. The argument has been
that international best practice dictates
that every employer must give reason(s)
for termination, and that globally it is no
longer fashionable to terminate employment
without adducing any valid reason.
This emerging and novel principle of law is
yet to be tested at the Court of Appeal, and it
will be interesting to know the attitude of the
appellate Court to this important development
in our employment law.
Part 3 deals with the National Industrial
Court of Nigeria’s jurisdiction over unfair
labour practice, and international best practices
in labour, employment and industrial
relations. The Constitution of the Federal
Republic of Nigeria (Third Alteration) Act,
2010 constitutes a watershed in the history
of the National Industrial Court of Nigeria
in that the regime ushered in a number of
radical innovations on the structure, power,
status and jurisdiction of the Court. One of
these innovative provisions is Section 254(c)
(1) (f) which confers on the Court, jurisdiction
over matters “relating to or connected
with unfair labour practice or international
best practices in labour, employment and
industrial relations”.
The expression “unfair labour practice”
has generally been defined to mean practices
that do not conform with best practice
in labour circles as may be enjoined by local
and international experience. See Mix &
Bake V NUFBTE (2004) 1 NLLR (Pt. 2) 247,
MPWUN V ALZICO Ltd (2010) 18 N.L.L.R
(Pt. 49) 69, Aluminium Manufacturing Co.
Nig Ltd V Volkswagen Nig Ltd (2010) 21
N.L.L.R (Pt. 60) 428. Examples of unfair
labour practices at workplace are legion
Bimbo Atilola, Author
and these include denial of employees the
right to join trade unions, gender and racial
discrimination, and discrimination on
account of marital status, pregnancy and
religious beliefs. Unfair labour practices
are actionable wrong at the NICN and for
which employees may be awarded damages
in proven and deserving cases. For instance,
in Akinfemiwa Akinyinka V More Time C02
Gas Plant Ltd, the National Industrial Court
held that denial of annual leave to an employee
is an unfair labour practice. Similarly,
in Maiya V Incorporated Trustees of Clinton
Health Access Initiative (2012) 27 NLLR (Pt.
72) 100, the NICN held that termination of
employment of a female staff on account
of pregnancy is an unfair labour practice.
Closely connected to this is the constitutional
mandate of the court to apply
international best practices in arriving at
its decisions, including its powers to invoke
and apply International Labour treaties to
which Nigeria is a signatory. Of particular
interest is the argument of the author that
Section 254 (c) (2) of the 1999 Constitution
has rendered impotent and inoperative,
as far as International Labour treaties are
concerned, the provisions of Section 12(1)
of the 1999 Constitution which provides that
a treaty provision may only be enforced in
Nigeria upon being domesticated by an Act
of the National Assembly. The said Section
254(C) (2) provides that “Notwithstanding
anything to the contrary in this Constitution,
the National Industrial Court shall have
the jurisdiction and power to deal with any
international convention, treaty or protocol
of which Nigeria has ratified relating to
labour, employment, workplace, industrial
relations or matters connected herewith”
(underlining mine).
The author argued that since the word
“notwithstanding” has been interpreted in
several cases to mean a term of exclusion,
then the expression “Notwithstanding
anything to the contrary in this Constitution”
is meant by the legislature to exclude
any ‘impinging or impeding’ effect of any
other provision of the Constitution so that
the said Section may fulfil itself. See Kotoye
V Saraki (1994) 7 NWLR (Pt. 357) 414, Olatunbosun
V NISER (1988) 3 NWLR (Pt. 80)
5, NDIC V Okem Ent. Ltd (2004) 10 NWLR
(Pt. 880) 107.
This argument seems to be correct as
the NICN took the same view in Aero Contractors
V NAAPE (2014) 42 NLLR (Pt. 13)
664. And if this interpretation is taken to
be correct, then judicial authorities such as
M.H.W.U.N V Minister of Labour & Productivity
(2005) 17 NWLR (Pt. 953) 120 will no
longer be a good law as far as application of
international labour treaties is concerned.
Part 4 attempts an overview of the operational
framework of the NICN Alternative
Dispute Resolution (ADR) Centre. The Centre
offers disputing parties access to ADR
mechanisms such as mediation and conciliation
in the settlement of their disputes.
The author noted that these ADR fora offer a
quicker, efficient and equitable resolution of
labour and employment disputes with little
or no damage to relationships.
Part 6 and 7 examine the validity and
enforceability of employment bonds, and
covenants in restraint of employment/
trade in Nigeria with generous references
to virtually all the decided Nigerian cases
on these subjects.
Part 8 and 9 are quite an interesting
reading. These Parts attempt a critical legal
analysis of the practice of Workforce and
Business Process Outsourcing including Job
Offshoring in Nigeria. The world of work has
seen tremendous changes in the last decade.
The increasing wave of globalisation and
trade liberalisation have led to the emergence
and increasing dominance of nonstandard
work arrangements. Outsourcing
is a global phenomenon and indeed one of
the most discussed business issues of our
time. The author answers the frequently
asked question as to whether labour outsourcing
is a lawful enterprise in Nigeria.
The author also attempts an overview of
the Federal Ministry of Labour Guidelines
on Contract Staffing and Outsourcing in the
Nigerian Oil and Gas Industry, Outsourcing
and Representational Rights, Outsourcing
and Corporate Risks, Business Process
Outsourcing and Pioneer Companies Tax
Reliefs, and Job Offshoring.
Part 10 deals with Expatriate Employment
and the regimes of the Immigration
Act, 2015, and Immigration Regulations
2017. This part provides a complete practice
guide on the new regulations on how to
obtain Business Permits, Residence Permits,
Transit Permit, Temporary Work Permit
(TWP), Visa on Arrival e.t.c.
Part 11 discusses some workplace issues
thrown up by the social media explosion
across the globe. Crucial issues discussed
under this Part include whether pre-hiring
checks of applicants’ social media conducts
by prospective employers is a legitimate
enquiry or an unlawful intrusion, disciplinary
actions on account of employee’s
social media conduct and comments, summary
dismissal on account of employee’s
social media behaviour, and a comparative
analysis of the law on social media use at
workplace in other jurisdictions.
Other topical and emerging issues in
the Nigerian labour and employment law
discussed in the work include sexual harassment
at the workplace and the recent decisions
of the NICN on same (Part 12), Post
Termination and Resignation Discovery of
Gross Misconduct Warranting Dismissal
(Pat 13), Forced Resignation and the Doctrine
of Constructive Dismissal (Part 14) ,
Lagos State Regulation of Smoking Law and
Implications for Workplace (Part 15), Legality
of Pre-Employment HIV/AIDS Test in Nigeria
(Part 16), Probation and the Principle
of Deemed Confirmation of Employment
(Part 17), Whistle-Blowing and Whistle-
Blowers Protection at the Workplace (Part
18), Prolonged and Indefinite Suspension
and the doctrine of constructive dismissal
(Part 19), and the Trial on Record at the
National Industrial Court (Part 20).
The book captures all the important
developments in the Nigerian labour and
employment law, laced with recent judicial
decisions on the subjects, and yet presented
in a simple language that makes the work
comprehensible to both lawyers and laymen.
The reviewer, Victoria Agomuo, is of Hybrid
Solicitors.
Author: Bimbo Atilola
Publisher: Hybrid Consult
ISBN 9789785549690
Price: N5, 000 .00
Year of Publication: 2017