Review of some 2021 significant decisions in labour & employment
In line with the general trend in recent years, case law during the period under review has been driven, largely, by the far-reaching adjudicatory work of the National Industrial Court of Nigeria (NICN), the specialist court on labour and employment matters.
Pensions and related matters
The Court made important clarifications to possible gaps in the Pensions Reform Act (PRA), in Girei v Sigma Pensions Limited (Unreported Suit No. NICN/ABJ/379/2020, judgment delivered on December 7, 2021; per Hon. Justice B. B Kanyip (Ph.D (PNICN). It reinforced the 25 per cent withdrawal threshold allowed by the Pensions Reforms Act (PRA), as relating only to those who voluntarily retire (at/under 50 years), disengage, or are disengaged from employment. There is no such bar (in the legislation or the Constitution) restricting retirees who clock the retirement age of 60 years from taking a 50 per cent (or more) lump sum withdrawal from their Retirement Savings Accounts (RSA).
In Traquini v ASC (unreported Suit No. NICN/LA/580/2017 judgment delivered on March 10, 2021; per Hon. Justice N.C.S Ogbuanya), the recondite issue was compliance with the Pensions Reforms Act’s requirement (for employees) to open a Retirement Savings Account. Here, parties were no longer in an employment relationship, and the employee, a foreigner, had relocated outside the country, post-employment. The Court, applying a purposive interpretation to the PRA, decided this rare instance when unremitted pension funds could be paid directly to the employee in retirement.
In Okunkpolor v Arik Air (unreported Suit No. NICN/LA/45/2017, judgment delivered on June 4, 2021, per Hon. Justice Bassi), non-remittance of pensions and delay/non-payment of (a former employee’s) entitlements after they had exited the company was deprecated as reprehensible. Where this happens, the employer may be liable in damages in deserving circumstances.
Unfair Labour Practice and Best Global Practices
The National Industrial Court of Nigeria (NICN), based on the primacy of the facts presented before it, continues overall to draw from the immensely important influence of applicable international best practices in labour, employment, and industrial relations, as well as the appropriately pleaded interpretation of international labour standards. There is little doubt that this calling on best global practices, where necessary, has assisted immeasurably in filling the small gaps in the present world of work. Take, for instance, in the year under review, what constituted ‘unfair labour practice’ continued to envelop an ever-widening array of factual matrix and legal issues.
Referentially, in Amanze v Union Bank Plc (unreported Suit No. NICN/LA/424/2018, judgment delivered on June 29, 2021, per Hon. Justice (Dr) I.J Essien), the defendant bank, in response to the claimant’s wrongful termination claim, contended inter alia, that the claimant’s appointment was contingent upon meeting 100 per cent of a set target. The claimant failed to meet this target, comprising principally of a minimum average monthly deposit from target customers. Noting the common law duty on the part of an employer to provide work – a duty which the employer cannot abdicate from – the Court declared the practice of setting deposit targets as a condition for an employee’s continuing employment, as wrongful, unlawful and an unfair labour practice. With respect, the only critique to the otherwise profound holding of the Court here, is the potentially extensive (or, in rem) nature of the order (‘outlawing’ the practice) made against other financial institutions who were not parties in the matter, and thus never had an opportunity of contributing to/against the arguments with respect thereto.
In similar vein, Chukwunonso v Ecobank Ltd (unreported Suit No. NICN/EN/17/2019; judgment delivered November 18, 2021, per Hon. Justice O.O Arowosegbe) is a remarkable decision for reasons more than one. The Court here deprecated as an unfair labour practice, banks holding their staff that processed loan documents, without more, as responsible for debtors’ loan repayment defaults. The claimant in this case was 19 days shy of a 10-year-unbroken-service record, for entitlement to gratuity. The justice in the case therefore turned largely on availing him the equitable position of an inconsequential deviation from the standard rule that had been relied upon for his peremptory termination, a mere 19 days before the attainment of his 10 years’ unbroken service period.
Affirming a specie of pre-employment right, the Court in Obienu v AIDS Healthcare Foundation (unreported Suit No ABJ/122/2020, judgment delivered on September 29, 2021, per Hon. Justice O.O Oyewumi) held as binding, a contract offering employment which the employee acted on by accepting, and further notifying her former employer of her resignation and exit. The defendant company was held liable in damages for a breach of contract in purportedly withdrawing the ‘offer’.
Wage and benefit disparity between local employees and foreign staff was held to be discriminatory and an unfair labour practice, on the factual pattern in Uzo Ejekwumadu v Blue Arrow TSW Limited (unreported Suit No. NICN/LA/242/2016, Judgment delivered on March 18, 2021, per Hon. Justice O.A Obaseki-Osaghae) and Iseh Peter v Sterling Global Oil Exploration (unreported Suit No. NICN/ YEN/42/ 2018; judgment delivered September 30, 2021; per Hon. Justice Bashar A. Alkali).
Disciplinary matters, Exit/Cessation of employment and allied matters
In Abdullahi v Intercontinental Bank Plc (unreported Suit No ABJ/122/2011, judgment delivered on March 31, 2021, per Hon. Justice E.N Agbakoba), the Court held that it cannot by an injunction gag an employer from disciplining an employee where the need arises. Relatedly, Ogunleye v Stanbic IBTC Bank (unreported Suit No ABJ/120/2018, judgment delivered on November 25, 2021, per Hon. Justice S. Kado) is a compelling authority that an employer has a right to take disciplinary action against its employee notwithstanding that the employee is standing trial for a criminal offence emanating from the same factual pattern. A marked statement common to Omenogor v UBA Plc (unreported Suit No. NICN/LA/142/2015, judgment delivered on June 30, 2021, per Hon Justice O.A Obaseki-Osaghae), Ogunlowo v Ventures and Trusts Limited (unreported Suit No. NICN/LA/451/2016, judgment delivered May 19, 2021, per Hon Justice O.A Obaseki-Osaghae and Nwabugwu v Uzondu Microfinance Bank Ltd. Unreported Suit No. NICN/AWK/37/2018; judgment delivered on December 2, 2021; per Hon. Justice Targema (Ph.D ) is that disciplinary process or termination/dismissal cannot commence after, or override an earlier act of resignation by the employee.
With statutory employments, the Court, construing applicable statutes, boldly held in Peter v Ambrose Alli University, Ekpoma. (Unreported Suit No. NICN/BEN/26/2020; judgment delivered March 25, 2021, per Hon. Justice A.A Adewemimo) that the Commissioner of Education in the state cannot unilaterally overrule the decision of the Governing Council of the University in relation to the employment and discipline of the state’s university staff. Fajemibola & 85 Ors v Ekiti State University (unreported Suit No. NICN/AK/06/2020, judgment delivered on January 28, 2021, per Hon Justice K.D Damulak), Dr Ogunshe v University of Ibadan (unreported Suit No. NICN/IB/85/2016, judgment delivered on June 24, 2021; per Hon. Justice J.D Peters) and Dr Ekpe v Registrar, University of Uyo (unreported Suit No. NICN/UY/11/2016; judgment delivered May 20, 2021; per Hon. Justice M.A Namtari) are some of the case citations (in the year under review) on nullification of disciplinary measures (including termination/dismissal) for non-compliance with the applicable Rules. In checkmating the abuse of executive powers, the Court in Okeke v Governor of Imo State (unreported Suit No. NICN/OW/44/2020, judgment delivered on June 24, 2021, per Hon. Justice I.S Galadima), noted that the applicants’ appointments, being offices statutorily created and entrenched within the Imo State House of Assembly Law, and having not exhausted their tenures in office, cannot be removed “at the pleasure of the Governor”.
Commendably, the decision in PENGASSAN v Chevron Nigeria Limited (unreported Suit No. NICN/LA/411/2020, judgment delivered February 26, 2021, per Hon Justice E. A Oji PhD) poignantly sums up to have supplemented the written words so as to give ‘force and life’ to the intention of the legislature…” per Lord Denning, Seaford Court Estates Ltd. v. Asher (1949) 2 K.B. 481.
In a masterly analysis of relevant laws and prudential guidelines from case law, the Court was able to arrive at the conclusion that there is nothing in the relevant laws (Petroleum Act etc.) that gives the Minister of Petroleum power to regulate private contracts of employment, or to introduce terms into the contracts of employment between parties. The potential width of a reasonable restriction (on trade) imposed by a training bond, again came to the fore in Overland v Sekula (unreported Suit No. NICN/LA/599/2018, judgment delivered April 12, 2021, per Hon. Justice I.G Nweneka) and ATB v Eniola Ake (unreported Suit No. NICN/LA/100/2020, judgment delivered March 16, 2021, per Hon. Justice I.G Nweneka). In the former, the 1st defendant was held liable to a training bond by which he was sponsored for an aircraft type-rating course by the claimant. He was ordered to pay for failing to give requisite notice of cessation of employment, and a refund of the course fee paid by the claimant for his type-rating training. On the facts before the Court in the latter case, the Court held that there was nothing in the claimant’s evidence justifying the restriction to bind the defendant to the employer’s business for three years.
Akinola v Ocean Marine (unreported Suit No. NICN/LA/410/2019, judgment delivered October 25, 2021, per Hon Justice I.G Nweneka) in a landmark judgment about workplace employment discrimination/harassment based on health disability (HIV/AIDS).
AUPCTRE v CAC (unreported Suit No. NICN/ABJ/62/2021, judgment delivered October 7, 2021, per Hon. Justice B.B Kanyip (PNICN) in a firm pronouncement reiterating judicial disapproval of an employer’s interference in trade union activities in its workplace. Olalere v Olam (unreported Suit No. KN/08/2009, judgment delivered on March 25, 2021, per Hon. Justice D.E Isele) examined, inter alia, when employee’s act can be held to constitute abandonment of duties.
Stimulating new insights based on the primacy of the facts presented before it, the Court made a few inroads incrementally pushing the frontiers of compensable damages confirmed by the final court on labour and employment matters can be awarded in deserving cases. In Dr. Oyeyemi v Covenant University (unreported Suit No. NICN/LA/758/2016, judgment delivered on September 28, 2021, per Hon Justice O.A Obaseki-Osaghae) the defendant unilaterally reviewed the claimant’s employment contract to Senior Lecturer (Contract), ostensibly, to make the workplace intolerable to him. Coupled with the wrongful termination of his employment, the claimant was found to be entitled to an award of monetary equivalent of 24 months’ salary as general damages.
Much less straightforward, with respect, is what appears to be the double compensatory regime in the award of ‘three years salary each as compensation for wrongful dismissal/termination of the defendants’ employment’, and, ‘two year’s salary as compensation for unfair labour practice’ in Oyayero v British High Commission (unreported Suit No. NICN/ABJ/144/2017; judgment delivered July 28, 2021, per Hon. Justice E.N Agbakoba).
For workplace physical/permanent injury/accident claims, the injured claimant in Davidson Iloh v Alo Aluminium Manufacturing Co. Ltd (unreported Suit No. NICN/EN/61/2017, judgment delivered on March 16, 2021; per Hon Justice Arowosegbe), the Court awarded the sum of N30 million to the claimant as compensation for ‘the permanent disability and disfigurement, loss of amenities of life, bodily pain and suffering, which the claimant has suffered and may suffer in future, loss of earning and a future that is fraught with uncertainties as a result of the injury he sustained, while working for the defendant’.
The labour court’s judicial strides in 2021, offer a renewed sense of optimism for a labour jurisprudence that is firmly minded to meet modern challenges. In the seemingly unattainable balancing act that often (perhaps unintentionally) pits best practices/international labour standards (perceived by some as biased in favour of employees), against commercial interests, the work of the Court is, indeed, an uphill task. It continues to steer the rudder towards a more equitable workplace for both employer and employee, progressively edifying substance over mere formalistic approaches that once dominated the world of work.
Kuti (SAN) is a partner in the law offices of Perchstone & Graeys LP.