By Mofoluwawo Oluwapelumi
Mojolaoluwa
![image](/2020/10/lawreport.jpg")
When it comes to the determination of employment, the Common law
provision was that he who hired could fire at will, in a
master-servant relationship. Essentially, an employer could
terminate an employee’s employment at any time, for any or no
reason at all. On the 17th of December, 2020 however,
the National Industrial Court of Nigeria holden at Abuja delivered
a landmark judgment in Bello v Ecobank, which turned the tides and
completely changed the tenure of determining employments at will,
or servant holding an office at pleasure, or master-servant
relationship type of employments in Nigeria.
![image](/2020/10/NWLRland.jpg")
Facts of the case
Mr Bello (the Claimant) was employed by the now-defunct Oceanic
Bank International Plc in 2006. After Oceanic Bank merged into
Ecobank, he became an Ecobankemployee, carried out his duties
commendably and diligently and was praised on several occasions by
the defendant. In spite of this, he was not promoted to a position
commensurate with the work he did for the defendant. During his
employment, he was never involved in any disciplinary misconduct or
misappropriation of finance of any kind. At one time, he was
interviewed for the position of country Head, Segment, and
Analysis. However, on the resumption of duty as Head of Segment and
Analysis, his employer raised ethical issues regarding fraudulent
activities in generating reports. Consequently and to his shock, on
the 31st of January 2018, he received a letter
terminating his employment without giving reason for such
termination.
Although the defendant (Ecobank) insisted it had only exercised
its right to terminate the contract at will, Bello insisted that
the termination was done wrongfully in a bid to victimize him.
According to him, the issue of termination would not have arisen,
if after he resumed work at his new office as the Head of Segment
and Analysis, he did not raise certain issues of misconduct and
fraudulent activities of some individuals in his Department. It was
the act of raising issues of misconduct against some members of
staff that triggered the disciplinary action carried out against
him, whereby a query was issued to him, and he was suspended for
one month without salary. Thereafter his appointment with the
defendant was terminated without giving any reason. The Claimant
contended that the termination was not only wrongful but spiteful,
and geared towards destroying his career. He, therefore, asked for
a reinstatement order, compensation for wrongful determination as
well as damages.
The defendant in its defence insisted that the claimant who was
indeed employed in 2006 was never issued letters of commendations,
was promoted from officer grade to senior banking officer in the
course of his employment, and was not found to be involved in any
misrepresentation of finance while in the employment of the
defendant. That he was successful at a job placement he applied for
in the bank and was subsequently moved to the new role after he
handed over his former role to his successor. It also
contended that the contract of the claimant was determined in line
with the terms and conditions of the contract of employment.
According to the bank (defendant), the claimant exited the service
of the defendant under the rightsizing exercise carried out by the
bank in January 2018 and his benefits and entitlements totaling the
sum of N14,494,546.97 were duly paid to him. The termination of his
employment was neither arbitrary nor was it wrongful but in line
with his contract of employment with the defendant.
HE WHO HIRES CAN FIRE AT WILL WITHOUT GIVING
REASONS
Generally, the law on termination of employment is that motive
is irrelevant as long as the terms of the contract are complied
with. This means that an employer can fire their employee for any
or no reason so long the termination is done in line with their
contract of employment. Now this would affect contract-based
employments as well as master-servant relationship type of
employments. These two types often overlap as an employee employed
at will would usually have the terms of employment reduced into a
formal agreement and vice versa. When it comes to employments with
a statutory flavour, however, the termination must be done in line
with the provisions of the statute. Also, the court has no power to
force an employee on an unwilling employer or foist an unwilling
employee on an employer by an order of specific performance.
In this case however, the claimant raised the issue of
non-compliance with international best practices as enjoined by the
International Labour Organisations. He made reference to section
254C of the Constitution of the Federal Republic Of Nigeria,
1999, (as amended) and Article 4 of the Termination of employment
Convention of 1982 No. 158 and contended that the termination of
his contract of employment was done in breach of the international
best practices in labour and industrial relation.
FIRING FOR NO REASON: A NEW SHERRIF IS IN
TOWN
In arriving at a decision, the court delved into the provisions
of the Constitution, and the Termination of Employment Convention
of 1982 No. 158 and Recommendation 166 of ILO in order to establish
its jurisdictionon the issue of international best practices and
labour standards. Section 254C (1) and (2) of the Nigerian
Constitution, 1999 as well as Section 7(1) of the National
Industrial Court Act 2006 confers an expansive jurisdiction on the
National Industrial Court to adjudicate on any matter arising from
the workplace including the application of international treaties
and conventions already ratified by Nigeria, and international best
practices in labour or industrial relations. The court then
examined the provision of Article of 4 of Termination of Employment
Convention of 1982 No. 158 and Recommendation 166 of ILO, as cited
by the Claimant. According to the court, the two clearly make
provisions deprecating determination of contract of employment
without giving any valid justifiable reason. Article 4 of the
Termination of Employment Convention of 1982 No. 158 of the ILO,
provides:
“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.”
This saw the court deviate from the general common law right of
termination given to an employer to terminate their contract of
employment with employees with or without giving reasons so long
the terms and conditions of employment are complied with. The court
decided that this trite provision which allows employers of labour
terminate for a good, bad or no reason at all is no longer in tune
with modern day global law best practices. As such, any termination
carried out on this old position is wrongful and illegal. Although
the Defendant in this case claimed it had determined the Claimant’s
employment as part of rightsizing activities carried out in the
bank in 2018, the court held that this defence would not avail the
defendant as the same reason was not contained in the letter of
termination of employment. The court held as follows inter
alia:
The Termination of Employment Convention of 1982, No. 158
and Recommendation 166 of ILO, have set standard to guide employer
on termination and dismissal of employees from service. Therefore,
to terminate or dismiss employee without giving justifiable reason
will tantamount to unfair termination, more particularly when as in
this case the employee was not found wanting in carrying out his
duties. The requirement of valid justifiable reason for termination
is a procedural safeguard to guard against mischief.
A careful examination of the factual situation giving rise
to the claims of the claimant, the email messages
tendered and admitted in evidence, it will readily
show that the termination of claimant’s employment without valid
justifiable reasons is totally in disregard of the international
best practices as provided for in convention no. 158 of 1982 and
recommendation 166 of the ILO.
Now, even though an employer has the right to terminate
employment of employee, the employer must be satisfied that the
servant has done something which is incompatible with the faithful
discharge of his duty or has displayed conduct such that it would
be injurious to the employer’s business to retain him, the employer
may dismiss the servant: Maja v. Stocco (1968) 1 All NLR 141 at
151. The burden is on the employer to justify the termination or
dismissal: see Arthur Walters v. Frank Harrison (1922) All NLR
73.
From the foregoing, a number of issues have been brought to the
fore:
- Labour and employment matters decided prior to the amendment of
the 1999 Constitution of Nigeria must be distinguished in light of
new powers conferred on the National Industrial Court as seen in
this case, if they are to be relied upon at all. - The National Industrial Court of Nigerianow has proper
jurisdiction to adjudicate on matters bordering on international
best practices and enforcement of international labour law
convention, protocol and treaties, once they are ratified by the
country and even if they are not domesticated. - The new jurisdiction of the court as contained in section 254C
of the Constitution of the Federal Republic of Nigeria and section
7(1) of the National Industrial Court Act 2006, has occasioned a
paradigm shift from the old common law position of an employer’s
right to hire and fire at will without giving any reasons.
Employers must now give reasons for any termination. - This new position essentially guards against unfair
termination. It is a procedural safety measure to guard against
mischief and arbitrary determination of employment, especially in a
case such as this, where the employee has not been found wanting in
carrying out his duties. - With the provisions of section 254C of the Constitution as
amended, section 7(1) of the National Industrial Court Act 2005, as
well as Article 4 of the Termination of Employment Convention, of
1982, No. 158 and recommendation 166 of the ILO, the National
Industrial court can now order specific performance as
appropriate.
The Court therefore held that the termination of Mr Bello’s
employment is not in accordance with international best practices
and therefore wrongful in law. The court went on to order specific
performance by way of reinstatement of Mr Bello to the employment
of Ecobank. This is one case that will go a long way in curbing the
excesses of employers by way of preventing wrongful terminations,
and swinging the balance of proof towards employers who will now
have to justify any termination carried out both at the point of
termination and in evidence.
*BELLO V ECOBANK. SUIT NO.
NICN/ABJ/144/2018
Written by MofOluwawoOluwapelumi
Mojolaoluwa a legal practitioner based in Lagos,
Nigeria. She can be reached at
houseoflivingstones@gmail.com.
By Mofoluwawo Oluwapelumi
Mojolaoluwa
When it comes to the determination of employment, the Common law
provision was that he who hired could fire at will, in a
master-servant relationship. Essentially, an employer could
terminate an employee’s employment at any time, for any or no
reason at all. On the 17th of December, 2020 however,
the National Industrial Court of Nigeria holden at Abuja delivered
a landmark judgment in Bello v Ecobank, which turned the tides and
completely changed the tenure of determining employments at will,
or servant holding an office at pleasure, or master-servant
relationship type of employments in Nigeria.
Facts of the case
Mr Bello (the Claimant) was employed by the now-defunct Oceanic
Bank International Plc in 2006. After Oceanic Bank merged into
Ecobank, he became an Ecobankemployee, carried out his duties
commendably and diligently and was praised on several occasions by
the defendant. In spite of this, he was not promoted to a position
commensurate with the work he did for the defendant. During his
employment, he was never involved in any disciplinary misconduct or
misappropriation of finance of any kind. At one time, he was
interviewed for the position of country Head, Segment, and
Analysis. However, on the resumption of duty as Head of Segment and
Analysis, his employer raised ethical issues regarding fraudulent
activities in generating reports. Consequently and to his shock, on
the 31st of January 2018, he received a letter
terminating his employment without giving reason for such
termination.
Although the defendant (Ecobank) insisted it had only exercised
its right to terminate the contract at will, Bello insisted that
the termination was done wrongfully in a bid to victimize him.
According to him, the issue of termination would not have arisen,
if after he resumed work at his new office as the Head of Segment
and Analysis, he did not raise certain issues of misconduct and
fraudulent activities of some individuals in his Department. It was
the act of raising issues of misconduct against some members of
staff that triggered the disciplinary action carried out against
him, whereby a query was issued to him, and he was suspended for
one month without salary. Thereafter his appointment with the
defendant was terminated without giving any reason. The Claimant
contended that the termination was not only wrongful but spiteful,
and geared towards destroying his career. He, therefore, asked for
a reinstatement order, compensation for wrongful determination as
well as damages.
The defendant in its defence insisted that the claimant who was
indeed employed in 2006 was never issued letters of commendations,
was promoted from officer grade to senior banking officer in the
course of his employment, and was not found to be involved in any
misrepresentation of finance while in the employment of the
defendant. That he was successful at a job placement he applied for
in the bank and was subsequently moved to the new role after he
handed over his former role to his successor. It also
contended that the contract of the claimant was determined in line
with the terms and conditions of the contract of employment.
According to the bank (defendant), the claimant exited the service
of the defendant under the rightsizing exercise carried out by the
bank in January 2018 and his benefits and entitlements totaling the
sum of N14,494,546.97 were duly paid to him. The termination of his
employment was neither arbitrary nor was it wrongful but in line
with his contract of employment with the defendant.
HE WHO HIRES CAN FIRE AT WILL WITHOUT GIVING
REASONS
Generally, the law on termination of employment is that motive
is irrelevant as long as the terms of the contract are complied
with. This means that an employer can fire their employee for any
or no reason so long the termination is done in line with their
contract of employment. Now this would affect contract-based
employments as well as master-servant relationship type of
employments. These two types often overlap as an employee employed
at will would usually have the terms of employment reduced into a
formal agreement and vice versa. When it comes to employments with
a statutory flavour, however, the termination must be done in line
with the provisions of the statute. Also, the court has no power to
force an employee on an unwilling employer or foist an unwilling
employee on an employer by an order of specific performance.
In this case however, the claimant raised the issue of
non-compliance with international best practices as enjoined by the
International Labour Organisations. He made reference to section
254C of the Constitution of the Federal Republic Of Nigeria,
1999, (as amended) and Article 4 of the Termination of employment
Convention of 1982 No. 158 and contended that the termination of
his contract of employment was done in breach of the international
best practices in labour and industrial relation.
FIRING FOR NO REASON: A NEW SHERRIF IS IN
TOWN
In arriving at a decision, the court delved into the provisions
of the Constitution, and the Termination of Employment Convention
of 1982 No. 158 and Recommendation 166 of ILO in order to establish
its jurisdictionon the issue of international best practices and
labour standards. Section 254C (1) and (2) of the Nigerian
Constitution, 1999 as well as Section 7(1) of the National
Industrial Court Act 2006 confers an expansive jurisdiction on the
National Industrial Court to adjudicate on any matter arising from
the workplace including the application of international treaties
and conventions already ratified by Nigeria, and international best
practices in labour or industrial relations. The court then
examined the provision of Article of 4 of Termination of Employment
Convention of 1982 No. 158 and Recommendation 166 of ILO, as cited
by the Claimant. According to the court, the two clearly make
provisions deprecating determination of contract of employment
without giving any valid justifiable reason. Article 4 of the
Termination of Employment Convention of 1982 No. 158 of the ILO,
provides:
“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.”
This saw the court deviate from the general common law right of
termination given to an employer to terminate their contract of
employment with employees with or without giving reasons so long
the terms and conditions of employment are complied with. The court
decided that this trite provision which allows employers of labour
terminate for a good, bad or no reason at all is no longer in tune
with modern day global law best practices. As such, any termination
carried out on this old position is wrongful and illegal. Although
the Defendant in this case claimed it had determined the Claimant’s
employment as part of rightsizing activities carried out in the
bank in 2018, the court held that this defence would not avail the
defendant as the same reason was not contained in the letter of
termination of employment. The court held as follows inter
alia:
The Termination of Employment Convention of 1982, No. 158
and Recommendation 166 of ILO, have set standard to guide employer
on termination and dismissal of employees from service. Therefore,
to terminate or dismiss employee without giving justifiable reason
will tantamount to unfair termination, more particularly when as in
this case the employee was not found wanting in carrying out his
duties. The requirement of valid justifiable reason for termination
is a procedural safeguard to guard against mischief.
A careful examination of the factual situation giving rise
to the claims of the claimant, the email messages
tendered and admitted in evidence, it will readily
show that the termination of claimant’s employment without valid
justifiable reasons is totally in disregard of the international
best practices as provided for in convention no. 158 of 1982 and
recommendation 166 of the ILO.
Now, even though an employer has the right to terminate
employment of employee, the employer must be satisfied that the
servant has done something which is incompatible with the faithful
discharge of his duty or has displayed conduct such that it would
be injurious to the employer’s business to retain him, the employer
may dismiss the servant: Maja v. Stocco (1968) 1 All NLR 141 at
151. The burden is on the employer to justify the termination or
dismissal: see Arthur Walters v. Frank Harrison (1922) All NLR
73.
From the foregoing, a number of issues have been brought to the
fore:
- Labour and employment matters decided prior to the amendment of
the 1999 Constitution of Nigeria must be distinguished in light of
new powers conferred on the National Industrial Court as seen in
this case, if they are to be relied upon at all. - The National Industrial Court of Nigerianow has proper
jurisdiction to adjudicate on matters bordering on international
best practices and enforcement of international labour law
convention, protocol and treaties, once they are ratified by the
country and even if they are not domesticated. - The new jurisdiction of the court as contained in section 254C
of the Constitution of the Federal Republic of Nigeria and section
7(1) of the National Industrial Court Act 2006, has occasioned a
paradigm shift from the old common law position of an employer’s
right to hire and fire at will without giving any reasons.
Employers must now give reasons for any termination. - This new position essentially guards against unfair
termination. It is a procedural safety measure to guard against
mischief and arbitrary determination of employment, especially in a
case such as this, where the employee has not been found wanting in
carrying out his duties. - With the provisions of section 254C of the Constitution as
amended, section 7(1) of the National Industrial Court Act 2005, as
well as Article 4 of the Termination of Employment Convention, of
1982, No. 158 and recommendation 166 of the ILO, the National
Industrial court can now order specific performance as
appropriate.
The Court therefore held that the termination of Mr Bello’s
employment is not in accordance with international best practices
and therefore wrongful in law. The court went on to order specific
performance by way of reinstatement of Mr Bello to the employment
of Ecobank. This is one case that will go a long way in curbing the
excesses of employers by way of preventing wrongful terminations,
and swinging the balance of proof towards employers who will now
have to justify any termination carried out both at the point of
termination and in evidence.
*BELLO V ECOBANK. SUIT NO.
NICN/ABJ/144/2018
Written by MofOluwawoOluwapelumi
Mojolaoluwa a legal practitioner based in Lagos,
Nigeria. She can be reached at
houseoflivingstones@gmail.com.