Future of Jobs: The Implication and Role on People – Temitope Fadare

Future of Jobs: The Implication and Role on People – Temitope Fadare



FUTURE OF JOBS: THE
IMPLICATION AND ROLE ON PEOPLE,  BUSINESSES, AND THE GOVERNMENT

Introduction

The fourth industrial age
which we are currently in, comes with new challenges and opportunities. There
are new developments in genetics, artificial intelligence, biotechnology etc.
It is expected that the coming changes will introduce many innovations but at
the same time may pose as obstacles that will require proactive adaptation for
people, employers, and the government.

The work environment is
changing at a fast pace. Automation and machines are replacing human tasks and
job roles thereby, altering the skills that organisations require in order to
thrive. Interestingly, the new rise in automation is setting new guidelines and
ensuring market dominance for companies that are quick to jump on these trends.
We have seen the rise of Fintech companies competing with traditional banks
with their savings platforms and interesting innovations.

It should be apparent that
the future of work is not so distant anymore. The anticipated changes are
currently happening with the various technology advancements that we experience
in various sectors daily. A 2017 study conducted by Mckinsey Global Institute[2] predicted that one-fifth of the
global work force will be affected by automation. The study stated that work
that is monotonous will be replaced by automation, while jobs that require
human interaction such as teaching, and healthcare are less prone to
automation.

This new industrial age
requires new skillsets that must be developed. People in the middle skillset
category that are not prepared for this change may lose their jobs and fall
into the low skillset group. Some occupations are currently undergoing a
fundamental change, and while some jobs are threatened by redundancy and others
grow rapidly, existing jobs are also going through a change in the skillsets
required to do them.

It is not all doom and
gloom. Studies have also shown that the inception of previous technological
advancements had led to better productivity, new jobs, and increased wealth.
This does not mean, however, that these transitions will be without risks and
its difficulties, but preparing and anticipating these shifts are important for
remaining relevant.

Some jobs did not exist
until the 2000s and occupations like digital marketing, cloud computing,
blockchain engineering were not available in the last industrial age. The World
Economic Forum in its Global Challenge Insight report (2016) opined that an
estimate of 65% of children entering primary school right now will be working
in completely new jobs and sectors that do not exist now.[3]

The same report also
predicted a positive outlook on employment across various industries with new
jobs springing up in a seemingly random fashion. However, there will be need for
more talents with high skills to deliver on the job. Unfortunately, businesses
are currently facing recruitment challenges because of the dearth of talents to
fit these emerging roles.

The main challenge is how
are people, business corporations and the government going to handle and react
to these developments. The following are a couple of recommended ways to be
prepared for the changes unfolding to avoid getting caught off-guard.

Implication on People

Everyone needs to understand
that the future of jobs is not a distant phenomenon, it is already here. As
indicated above, individuals with the most risk are those who have repetitive
jobs while people who are involved in social interaction may not necessarily be
affected by automation. To remain relevant, it is only required that workers
learn new skills by paying attention to rising trends and appropriately realign
their competencies. Middle skill workers that refuse to re-skill will find
themselves in low-level paying jobs.

Implication on
Businesses

The first thing businesses
need to do is to own the automation space. The competition for a market share
will only be enhanced by embracing automation and a deeper understanding of the
changing technology landscape, without leaving this exclusively to the Human
Resource or Information Technology departments.

The next problem that
organizations will face is the lack of available manpower that will be needed
to carry out the jobs effectively. Businesses will have to retrain their
employees to acquire more relevant skills. Conscious reskilling and upskilling
training will be needed for employees going forward.

Businesses will also be
faced with competition in acquiring the relevant skilled talents and even
tougher competition retaining them. But this can be avoided if organisations
institute an intellectually stimulating environment for their employees, while
creating a safe environment for them to express their views freely in the work
place. This will help them retain their top talents. Employees also need to have
a sense of dignity in themselves and their work because a lot of their identity
is tied to their work. It is far cheaper and more effective to train your
employees in-house than sourcing for the best talents in the labour market.

For Government

The primary role of the
Government in the future of jobs is centered around policymaking and
implementation. The government should be making fiscal and monetary policies
that will drive up aggregate demand of the workforce which has a direct impact
on jobs by increasing its numbers.

If technological shifts are
focused on only reorganization and the pursuit of higher revenue and not
achieving proper income and wealth distribution, it can be counterproductive.
The Government needs to ensure that automation does not make the poor poorer
and further deepening the wealth gap and economic inequality. Therefore, it is
advisable for the government to collaborate with their teaching institutions to
train individuals on a massive scale with the relevant skills and motivation to
compete effectively on the global market and to propel the growth of the local
economy.

 

Conclusion

When technological changes
occur but the required talents are inadequate, this leads to unemployment and
inequality. To prevent this, there is need to acquire the right mindset for
lifelong learning, re-skilling, and re-tooling for today’s workers. Businesses
need to be involved in training their employees with the skillsets needed to
handle these new jobs. Governments must ensure that the right policies are
formulated to provide better environment for businesses to thrive. Governments
also need to consider collaborating with industries and universities so that
they can produce a large pool of individuals possessing the right skillsets
relevant in today’s world.

Finally, teaching
institutions will need to rejig their curriculum. This is because most of their
teaching methods are outdated and out of step with present demands, and
graduates are ill-prepared for the available job roles. Universities need to
collaborate with industries and businesses to update their curriculum to
reflect the current realities and prepare adequately for the future.

For further information on
this article and area of law, please contact Temitope Fadare at:         
S. P.A. Ajibade & Co., Lagos by telephone (+234 1 472 9890), fax (+234 1
4605092)   mobile (+234 7055084677) or email (tfadare@spaajibade.com).

Source: www.spaajibade.com

Photo Credit – www.timesjobs.com 

 

 

Legal effects of Condonation in Employment Relations | Michael Dugeri

Legal effects of Condonation in Employment Relations | Michael Dugeri

Condonation means the
forgiveness, purposeful disregard, or tacit approval by a victim of another’s
illegal or objectionable act, especially by treating the other person as if nothing
happened.

In law, the term condonation is more commonly associated with
matrimonial proceedings, in which case it is understood as the voluntary
pardoning by an innocent spouse of an offense committed by his or her partner
conditioned upon the premise that it will not happen again. Condonation, which
is used as a defence in divorce actions based on fault grounds, is strongly
supported by public policy. The institution of marriage and its preservation
are considered essential for the stability of society, and therefore
condonation is encouraged to promote the notion that marriages should not be
dissolved easily. 

Employment relations have been likened to marriages, for a number of
reasons. It is often said that
successful
labour relations are more like ‘a marriage, not a boxing match’. It is expected
therefore that both parties will sometimes have to overlook certain infractions
from the other in the interest of the relationship. However, what happens if
the forgiving party later regrets the decision to forgive and decides to
enforce their rights against the forgiven party in respect of the forgiven
offence? Are they allowed to do so and within what timeframe? What in fact,
constitutes condonation in employment relations?   

The answers to these questions will usually depend on the
context. Hence, the answers will be provided by examining a few decided court
cases on the issue of condonation in employment relations. To begin with,
condonation may either be by the employer or employee; it may also be express
or implied. Where condonation is express, the offended party expressly waives
his right to sue or complain, by stating so in writing or where the timeframe
to react to the offence, as provided by law or contract, has elapsed.. In cases
like these, there is little difficulty in establishing condonation. The
situation is however nuanced in cases where condonation is implied. That is,
where the offended party seems to have forgiven or overlooked the
offence/breach but without actually doing so.

In anticipation of situations of
implied condonation, some employment contracts (like most other commercial
contracts) contain a “no waiver”
clause, which typically provide that delays do not adversely affect the rights
of a party to enforce the terms of the contract.However, is the offending party
allowed to simply move on with the relationship without knowing whether or not
his breach may be relied upon at some point in future to apply disciplinary
measures like suspension or even termination? On the other hand, when a party
to a contract waives
breach of that contract by the other party, it
voluntarily abandons its legal rights to enforce the contract, or to claim any remedy, in
relation to that breach.
waiver must be
clear, but may be oral or written.

Another major consideration in determining
condonation is if the offended party intends to seek remedy outside the
workplace, like suing to enforce its rights or demand damages. In such a case,
one needs be mindful of “
Limitation
Law”, that is, the law that a suit must be commenced within a specific period
of time from when the injury or omission, causing the damage or loss, arose or
occurred. Grievances need to be settled in time while the evidence in support
of the claim, or the defence to a claim, is/are still fresh. Not commencing
legal action within the statutorily specified period extinguishes the right to
seek remedy. Employment contracts are classed as simple contracts. Legal
actions based on simple contracts (like recovery of debts and arrears of
interest, tortuous malfeasance which includes damages for negligence or breach
of a duty of care, account stated, etc.) must be commenced within a period of
six (6) years of the occurrence of the injury, loss or damage.

However, if the available remedy is internal, like an
employer subjecting an erring employee to its disciplinary procedure,
condonation will be implied if remedy is not sought nor applied within the
period specified for it under the employment contract or the company handbook.
Where the contract or the company handbookare silent on the period of
disciplinary proceedings, a reasonable time will be applied in determining
whether or not the employer can be said to have condoned the infraction in
question.

A key principle in industrial relations law and practice is
that the disciplinary process must not run slowly and sluggishly, or be
unnecessarily prolonged; for otherwise, the employer stands the risk of being
subsequently barred from applying penalty. From this principle, two rules are
evident: firstly, the right to suspend an employee available to an employer is
not a right that is eternally available. And secondly, where there is an
infraction, an employer who allows the disciplinary process to run very slowly
and sluggishly stands the risk of being read to have condoned the said
infraction. As a result, courts customarily frown on a prolonged suspension,
and in some cases, quash the suspension.

In one of the decided cases,the Court expressed its
displeasure over a prolonged suspension, when the employee in question had been
suspended for a period of over 18 years. The suspension was held to be unfair
and unjust and accordingly quashed. In another case, the claimant was
erroneously suspended in 2005, recalled in 2009 and told that he will still be
investigated for what he was initially and erroneously suspended for. The Court
in this case also set aside the suspension and ordered that employee be paid
all his entitlements without any loss of benefit including arrears of his
salaries.

In yet another case, the employee sued to contend his
employer’s act of summary dismissal was irregular in the sense that the employerafter
the conclusion of the investigation did not suspend, terminate, sanction or
summarily dismiss him. Rather, the employer transferred him to a different
branch as its employee to continue on the job.The employer was held to have
condoned the infractions, which he later purported to act upon in dismissing
the employee. 

The court has also held that in a case where the staff handbook
provided that ‘disciplinary proceedings for any misconduct shall be dealt with
as soon as possible’, undue delay on the part of the employer must be read as a
waiver of the right of dismissal, and that any dismissal afterwards can only be
construed as a case of victimization.

The common principle in all these cases is that where an aggrieved
party is lax in seeking remedy (and the laxity is usually for a period exceeding
one year),condonation will be implied. This means the aggrieved party must be
decisive in considering legal action in deserving cases. This is especially for
the employer, who is often required to apply disciplinary measures. When the
disciplinary process is activated, it is essential to follow the process
through completely. Employers must have robust procedures and supporting
documentation in place to effectively discipline their employees, both to
ensure procedural fairness, and to protect their position, should the employee
take action against them.

In practice, the disciplinary process starts well-invitation
to the meeting is sent, the meeting is held, all the evidence and the employee’s
response is considered, the decision is made to apply the penalty, the employee
is advised that they are getting a punishment, but then the letter never gets
issued. Often these matters are not followed up because of the difficulty of
articulating the problems, creating performance improvement plans and setting
quantifiable outcomes. Subsequently, the whole grievous process achieved so far
will be wasted.

In
conclusion, it is important to note that disciplinary procedures in the workplace
will be to the benefit of both the employer and the employee. Employers often
find themselves making costly procedural mistakes when disciplining or
dismissing an employee for misconduct. They may have a fair reason for
dismissal, for example the employee has stolen company goods, deliberately
damaged the employer’s property or breached health and safety rules, but if the
employer has not followed a fair procedure, this can make the whole process
unfair.

Having a
clear, legally compliant and well-written procedure will guide an employer
through a good disciplinary procedure which will reduce the likelihood of
running into legal action and providing the affected employee with the much
needed feeling of fairness of the process.

Micheal Dugeri

Corporate Commercial Lawyer at Austen-Peters & Co.

Perspectives on Probation, Confirmation and Promotion in Employment Contract |  Kayode Omosehin, Esq.

Perspectives on Probation, Confirmation and Promotion in Employment Contract | Kayode Omosehin, Esq.

Probation
is simply an agreed trial period for a worker to prove his worth on a job to
his employer and assess the worth of the job to himself. Promotion is an
elevation of a worker in status within a company based on performance or other
considerations as may be agreed in an employment contract or determined by the
employer. Confirmation is the intermediate act of endorsement of a new worker’s
performance by a company sometimes between the periods of probation and
promotion; it is a testament that an employer is satisfied with the performance
of a new employee.


Probation
and promotion of a worker are, generally, matters which are based on each
worker’s contract. As such, an employment lawyer needs to review the employment
contract before an opinion can be formed on the ramifications of an employee’s
probation or promotion. Where the terms of employment are contained in various
documents, it is important to read all the various documents together to
decipher the intention of the parties regarding probation or promotion. From
experience, the offer letter of employment, the appointment letter (if it is
different from the offer letter), the terms and conditions of employment, staff
hand book, policy on review of rank/grade level, disciplinary procedures rules
as well as official circulars and notices circulated internally are all
relevant in determining the respective rights and powers of workers and
employers on probation and promotion.

The
rights of a worker under probation
A
person does not cease to be an employee of a company merely because he is on
probation. As such, in my view, a worker on probation is entitled to all
express benefits in an employment contract or those implied by the labour law.
Interestingly, however, Justice J. D. Peters of the National Industrial Court
held in Ogbonna v. Neptune Software Limited [2016] 64 N.L.L.R. (Pt. 228)
511 that an employer is not under any obligation to give notice of
termination of the service of an employee who is on probation until the
employment is confirmed. In other words, according to Honourable Justice J. D.
Peters, the employment relationship between a worker and a company in thatOgbonna case
was inchoate and that the need to give a notice for termination for one
calendar month stated in the claimant’s letter of employment would only arise
after the confirmation of his employment.

It
is difficult to agree with the reasoning of the judge in the foregoing case
given that an employment relationship is founded on contract following offer
and acceptance, with consideration taking the form of the employee’s resumption
and performance of a designated job. There are many judicial decisions of a
superior court to the effect that a contract of employment comes into existence
when a clear offer made by a company is unequivocally accepted by a job
applicant provided that there is no outstanding condition precedent to
assumption of work which must be fulfilled by the applicant. In fact, and law,
if such outstanding conditions are in the form of medical clearance, provision of
referees, verification of credentials etc. (as they usually are), the employer
can neither unilaterally revoke the offer after the applicant’s acceptance of
same before the deadline for fulfilling the other outstanding conditions, nor
prevent the applicant from fulfilling the rest of the conditions. So, upon
fulfilling the conditions for acceptance of an employment offer and resumption
of duty with a company, it will be inconsistent with judicial precedent to hold
that the employment contract between the worker and the company, in the
circumstances, is inchoate, as Justice J. D. Peters did in the Ogbonna’scase,
merely because the employment relationship commenced with probation. Employment
contracts are not sui generis as they are governed by common law rules
on general contract making which entail offer, acceptance and consideration,
including part-performance. See Federal Government of Nigeria v. Zebra
Energy (2002) 18 NWLR (Pt. 798) 162.

In
my view, a worker on probation is entitled to all the benefits stated in a
contract of employment which are enjoyable on probation and those implied by
law in deserving circumstances. A worker on probation is entitled to be paid
the agreed salaries for the probationary period. He is also entitled to pension
contribution from the employer. An employer of a worker on probation cannot
deny liability for remitting personal income tax of the employee on the ground
that the worker’s employment was probationary. If probation lasts longer than a
year, in my view, the worker is entitled to an annual leave. Both the employer
and employee are entitled to terminate the working relationship during
probation as agreed in the employment contract. It is necessary to repeat here,
only for emphasis, that in addition to the foregoing benefits, a worker on
probation is entitled to all other benefits or rights provided in his contract
of employment which are enjoyable during probation.

The
effect of confirmation of employment
Confirmation
is an attestation of an employer that a worker’s performance is satisfactory in
a period of probation for the purpose of extending the employment in accordance
with agreement. The length of probation before confirmation is a matter of
agreement. Most employment contracts provide for power of the employer to extend
a period of probation if the worker’s performance is unsatisfactory. Whenever
confirmation is due, it is advised to be in writing (in a letter or memo of
confirmation) with all necessary incidental terms clearly spelt out to avoid
the incidence of legal presumptions. Upon confirmation, a worker stands to
enjoy all the benefits which are attached to his employment.

Confirmation
of employment may be express such that an employer writes a letter or memo to
the employee or circulates same within the company to confirm a worker’s
employment at the end of probation. However, where probationary period has
ended but the employer neither expressly extends it nor terminates the
employment, the law presumes that the employment has been confirmed impliedly.
Under Nigerian employment law, at least from the various cases reviewed in the
course of this work, there is no implied extension of probation by the employer
and no such presumption is made in favour of an employer where such employer
fails to expressly extends a probationary period or terminates an
unsatisfactory service of a worker which extended after the expiration of an
agreed probation.

In
line with international best practice and labour standard, a Nigerian court
held in a case that the continuation of services after expiry of the probation
period without a new contract being drawn up means that the employment has been
impliedly confirmed and that a contract of indeterminate duration has taken
effect from the date when the offer for probationary service began. In the said
case, the claimant was engaged for a probationary period of two (2) years but
he was made to work for six (6) years without confirmation. The employment was
eventually terminated without notice or salary in lieu of notice. The
argument advanced by the employer was that the employment was never confirmed.
The court rejected the argument of the company and upheld the claims of the
employee in part. According to Honourable Justice P. O. Lifu (JP), such
termination amounted to unfair labour practice contrary to section254C (1) (f)
of the Constitution as same was incompatible with international best labour
practice.

There
is no specific legislation regulating confirmation of employment in Nigeria.
However, whenever there is any employment dispute regarding probationary
service, the employment contract is usually the proper guide to understanding
the rights of a worker under probation and after confirmation. The employer
must follow whatever procedure that is agreed in the employment contract. Where
confirmation of employment is subject to satisfactory performance by the
worker, a performance appraisal is essential, in my opinion, to evidence a
transparent process by which an employer arrives at a decision not to confirm
an employee’s service after probation.
Promotion
as a right or privilege

Promotion
of staff is a most controversial aspect of employment relationship largely
because of its perception or misconception as a right or privilege. Promotion
or lack of it can turn out to be ugly, leaving an unsavoury feeling in a work
environment, depending on the procedures adopted by a company to arrive at a
decision to promote or not to promote. Generally, under Nigerian employment
law, promotion is not a right but a privilege; it is usually expected to be
earned. Though the foregoing principle of law has its exceptions. In a case
decided by Honourable Justice Shogbola of the National Industrial Court on 9th
April 2014, the court found for a claimant who has been unlawfully terminated
from employment as a police officer but refused to grant the reliefs on
promotion on the ground that promotion of staff is not a right. Interestingly,
however, about a year after, Honourable Justice J. D. Peters of the same court,
in another case, held on 5th March 2015 that where promotion is based on agreed
conditions which the employee has fulfilled, it would be a breach of agreement
if the employer fails to approve his promotion.

What
is clear from a review of cases on promotion is that where a company’s staff
handbook or terms and conditions of employment provide for clear procedure for
promotion, failure of an employer to comply with the procedures may give rise
to liability for breach of contract in an action against the company by an
aggrieved staff. There is no laid down rule or guide for determining a right or
wrong promotion decision. Every employment contract will have its own
peculiarities on which, upon a proper review, an employment lawyer can provide
independent advice regarding the rights of either party. Perhaps I should add
that it is an onerous task for an aggrieved employee to successfully challenge
his employer’s decision on promotion, however unfavourable. There is a
presumption that every employee understands the terms of his or her engagement
at the time of accepting an offer of employment; and the onus to prove any
allegation of fraud or inducement rests on him. Malice and discrimination are
not enough in themselves to impute liability to a company unless there is a
clear evidence to support such allegations. Where a decision on promotion has
been wrongfully exercised, the court has power to entertain the complaints of
an aggrieved employee who has been affected by such decision.

How
to determine “satisfactory performance” of worker in matters of promotion

In
the discussion of promotion in employment law, the requirement of “satisfactory
performance” is the most subjective condition a worker is required to meet.
This is because the management of company determines what amounts to
satisfactory performance of a worker. Hence, the court usually adopts a strict
rule of interpretation of any promotion policy and will readily resolve any
ambiguity in the policy in favour of a worker. In a case decided against Zenith
Bank Plc, the employment contract stated that the claimant would be promoted
upon confirmation and subject to an above average performance rating (minimum
of B+). The claimant’s employment was confirmed at the end of probation
but he was not promoted despite his “A” performance rating. The court,
relying on the last performance appraisal, found for the claimant on the ground
that his performance was satisfactory to merit promotion. Consequently, the
court awarded damages in the sum of money representing the difference in
salaries of the claimant as the time of the suit and those which he would have
earned in (as well as bonuses and benefits accruable to) the higher office to
which he ought to have been promoted.

Review
of Promotion procedures
The
management of a company reserves the right to review the terms and conditions
of an employment contract, including those pertaining to promotion of staff.
However, when such review takes place, every affected staff ought to be
promptly informed about the details of the new promotion policy. It is
advisable to ensure that such management decision is not perverse as such that
will give the impression that an employee is obviously prejudiced or denied of
an entitlement which has become due. Where promotion is due to a worker, any
unilateral decision by a company to review a promotion policy to prejudice or
deny the worker may be deemed as a breach of agreement. Such affected worker
may be entitled to compensation in damages in any action challenging the
company’s decision during or after his resignation from the employment. It only
needs to be added that when a prejudicial decision is taken on promotion, a
right of action is deemed have accrued to an affected staff and he or she is
entitled to resign immediately and seek redress against the company.
Associate
at Udo Udoma & Belo-Osagie

What You Need To Know about Expatriate Employment In Nigeria | Busayo Adedeji

What You Need To Know about Expatriate Employment In Nigeria | Busayo Adedeji

  


With approximately 188 million
inhabitants, Nigeria is the most populous country in Africa and the seventh
most populous country in the world. The country has one of the largest
population of youth in the world. In 2014, Nigeria overtook South Africa
to become Africa’s largest economy and in 2015, Nigeria was said to be the
world’s 20th largest economy, worth more than $500 billion and $1 trillion in
terms of nominal GDP and purchasing power parity respectively.

With the stats detailed above, it
is no wonder the country has become a first port of call for Foreign Direct
Investors looking to invest in Africa. This article seeks to examine and point
out some salient facts every employer of Expatriate Employee must know while
operating in Nigeria. These industry practices and regulations apply to both
local and foreign companies.
Permits and Licences
Every company desirous of
employing Foreign Nationals (“FN”) in Nigeria must
have first obtained an Expatriate Quota (“EQ”) from the
Federal Ministry of Interior (“FMI”). The EQ is a
condition precedent that must be fulfilled by any company (local or foreign)
employing FNs in Nigeria. The document details out the positions in the company
approved by FMI to be filled by FNs. It is important to state that the position
to be occupied by every FN must correspond with his qualifications. A concise
illustration of this point is that, it is very likely that The Nigeria
Immigration Service (“NIS”) would reject an application
for the resident/work permit of a FN who is an accountant and who is expected
to occupy the position of “lead engineer” in a company.
It is also expedient to note
that, flowing from a recently issued directive, companies operating in specific
sectors are required to join certain professional bodies before employing FNs.
E.g., companies operating in the engineering sector are required to register
with Council for The Regulation of Engineering in Nigeria.
STR and CERPAC.
For any FN to enter into Nigeria
for employment related purposes, particularly on a long-term basis, the said FN
must have obtained a Subject to Regularization (“STR”) visa from his
country of residence abroad. Upon arrival in Nigeria the FN is expected to
apply for a Combined Expatriate Resident Permit and Aliens Card (“CERPAC”) within 90 days of arrival. The application for
STR visa and CERPAC is to be made by the employer on behalf of the FN. The
employer must also undertake to bear full immigration responsibility on behalf
of the FN.
Taxation of Expatriates
Pursuant to the Personal Income
Act, an employee is said to be resident in Nigeria if he is domiciled in
Nigeria for a period of 183 days or more in any 12-month period. Expatriates
who have obtained resident permit in Nigeria are liable to personal income tax.
In instances where the relevant
Inland Revenue Service (“IRS”) is of the view
that no or insufficient tax has been paid, the IRS has the power to assess
individual FNs on Deemed Income Assessment basis. When this happens, the onus
is on the employer to prove that the tax paid is sufficient by providing:
     Contract
of Employment of the Expatriate;
     Travel
passport of the Expatriate;
     Expatriate
Quota Position granted to the company; and
     Monthly
quota returns for the company.
Expatriate Pensions
Though section 2(1) of the
Pensions Reform Act 2014 provides that the act shall apply to every employment
in Nigeria, the Guidelines for Cross Border Arrangements under the Pension
Reform Act provides that “any foreign employee of a company registered in Nigeria
shall, at his/her discretion, join the contributory
pension scheme, without considering whether he/she has a pension arrangement in
his/her home country.” This means that the FN may maintain a
Pension Fund Administrator (“PFA”) in his home country or elect to join a
Nigerian PFA.
Change of Employment
The immigration regime in Nigeria
allows for change of employment of FNs already employed in Nigeria by a
previous company to another company. In instances of such, the consent of the
comptroller of immigration must be sought and obtained prior to changing such
employment. The previous employer is also required to issue a letter of no
objection to the employment of the FN by the new company.
End of Expatriate Employment
Upon completion or termination of
an FN employment in Nigeria, the employer is expected to formally inform the
Comptroller General of the NIS of this fact. The reason of the aforesaid stems
from the need for NIS to be able to ascertain at any given time the number of
 FN’s employed in the country, to keep records and also release the
employer from immigration responsibility as it concerns the exited FN.

Busayo Adedeji is an associate at
Bloomfield Law Practice. He has experience assisting clients on regulatory
compliance and general commercial law issues.

Calculating Compensation for Suspension of Employee| Kayode Omosehin, Esq.

Calculating Compensation for Suspension of Employee| Kayode Omosehin, Esq.



1.    
Suspension of employees in a nutshell
An employer’s power to
suspend a worker at any time, during probation or after confirmation, is
without a doubt, whether or not it is expressly stated in an employment
contract. No court of law will deny an employer of this inherent power, if
utilized properly. Suspension is a powerful tool to an end and not an end in
itself. Suspension puts an employment relationship in limbo as the worker lives
in anticipation of either being recalled or laid off. A worker cannot seek
another employment in the course of suspension until the suspension is
converted to termination of employment or dismissal. It is therefore important
for a company to investigate a suspended worker, make its findings and
communicate its decision to the worker. A suspended worker needs to know
whether his service is still required by his employer or has been (technically)
terminated!


A striking difference
between suspension and termination of service or dismissal is that suspension
is neither terminal nor requires any procedure like dismissal and termination
of employment which are both terminal and usually follow an agreed procedure to
end a working relationship. Suspension is a prelude to termination/dismissal
but not all suspensions result in dismissal or termination of employment.
Suspension does not bar the affected worker from his normal employment
benefits. Unless a company’s disciplinary procedures have been conducted and
the worker has been indicted to his/her knowledge, he stands entitled to his
wages and other relevant benefits.

Notwithstanding the
impression that Nigerian labour law leans more in favour of the workers, our
law recognizes the power of an employer to suspend workers pending
investigation of allegations. It is extremely difficult, except in few special
cases recognized by law, for a suspended employee to rush to court and succeed
on a claim based on his suspension. There are many clear judicial
pronouncements to the effect that a worker will be jumping the gun by rushing
to court based on suspension from employment without waiting for the conclusion
of any investigation by the employer. For instance, there are reported cases
against First City Monument Bank Plc and First Bank
Plc
, in which the courts denied the workers’ claims for compensation on the
ground that the workers were rightly suspended (and subsequently dismissed) for
gross misconduct. Also, the Court in Shell Petroleum Dev. Co. v. Lawson
Track 
(citation available) held that suspension of employee pending
investigation is an acceptable labour practice even if the employee is
suspended without fair hearing.

2. Suspension without
salary
As already pointed out,
suspension does not imply an end to an employment relationship unless it has
proceeded for such length of period that it evinces an intention to impliedly
terminate the service of a worker. So, naturally, unless otherwise stated in an
employment contract, the law implies that a suspended worker should be entitled
to all the benefits which he/she would have enjoyed if the service had not been
suspended. In other words, unless an employee is indicted under an agreed
disciplinary procedure which provides for loss of benefits, all employment
benefits ought to be paid as at when due during suspension or, cumulatively,
upon the end of suspension.
In all relevant employment
cases, there are always questions to be answered by an employer who suspends a
worker without pay if the contract of service does not provide for suspension
without salary. In most cases, the question is always resolved in favour of the
affected worker. Even in cases in which the employment contract provided for
power to suspend without pay, such as the one filed against Jemmtek
Resources Limited
, though this case has its own peculiar twists, the issue
was nevertheless resolved in favour of the suspended employee notwithstanding
the company’s allegation that the worker had taken up an employment in another
company during the period of his suspension. Also, the Court of Appeal held in Olafimihan
v. Nova Lay-Tech Nig. Ltd. 
(citation available) that suspension of a
worker without pay with a restriction on the worker from entering the premises
of the company was a clear intention of the company to dispense with the
services of the worker and, as such, the worker must be paid all his
entitlements.

The onus will always be on
the company to prove its power to suspend its workers without pay and that the
investigation was concluded (indicting the affected worker) to justify its
defence against any employment litigation. The issue of proof is a matter of
evidence at trial in which the letter of employment, terms and conditions of
service or employee’s handbook and disciplinary procedures must all be
presented to the court for scrutiny and must be unambiguous as to their
contents, as any ambiguity will be resolved in favour of the employee.

3. Indefinite suspension
of worker
Indefinite suspension of
an employee appears to be a common feature in some organizations, especially in
matters bordering on allegations of crime against a worker. Whilst suspension
is a veritable tool for effective investigation of any allegation, its length
and other ramifications can result in either gain or loss to the company unless
the management proceeds with proper guidance of employment law advice. There is
a mix of two complex propositions that usually confront a judge in any labour
case that is founded on an indefinite suspension of worker.

The first approach is to
treat the employment as having been constructively terminated by the employer.
This would be consistent with judicial precedent. Popular judicial decisions
are to the effect that an indefinite suspension is a constructive or implied
(though unlawful) dismissal. That is to say, where an employee is suspended
indefinitely without recall or eventual letter of termination, the employee’s
service is deemed to have been constructively or impliedly terminated, though
wrongfully. It is however not clear and, therefore, arguable on the facts of
each employment dispute what length of suspension will be regarded as
sufficient to evince an intention of the employer to dispense with the worker’s
service. This point is more appreciated if one considers the difficulty an
indefinitely suspended worker faces in determining when to initiate a
compensation claim against the employer during the period of suspension without
jumping the gun.

The other approach is to
treat the employment relationship as subsisting to ensure a greater
compensation for the employee. In this respect, the court deems the worker to
still be in the service of the employer in order to entitle him/her to the
salaries for the period of suspension. This option would meet the justice of
the case of an employee who has fought a long litigation battle to redress
his/her grievance, especially where the length of period between the suspension
and conclusion of litigation results in fairly huge compensation from the award
of all salaries in arrears to the worker. It appears that there is no express
provision of law for this approach except to subsume it in the provision of
section 254C(1)(h) of the Constitution which grants the National Industrial
Courts powers to apply and interpret international best labour practices in any
employment litigation brought before them. The courts have held that an indefinite
suspension of worker is inconsistent with international best labour practices.

It is instructive to note
that Justice F. I. Kola-Olalere of the National Industrial Court held in a case
decided on 16th October 2014 that an employee who was suspended without salary
for a long period (more than three (3) years in that particular case) would be
deemed to still be in the service of his employer till the date of judgement
and, therefore, entitled to his monthly salaries from the date of suspension
(13th June 2011) till the date of judgement (16th October 2014). In other
words, the Court held that the indefinite suspension of the worker for more
than three years without pay meant that the termination of his employment was
with effect from the date of judgement. The Court took the foregoing position
notwithstanding the provision of clause 15 of the staff handbook of the
defendant company which permitted the company to suspend workers with or
without pay. As already stated above, the decision may appear to be at variance
with popular judicial decisions of superior courts on the point but it is one
that is consistent with the spirit and letters of the provision of section
254C(1)(h) of the Constitution. In any event, it is my view that such option is
not available to a judge in an employment litigation in which the worker has
not specifically pleaded and prayed for a declaratory order that his employment
contract subsists in the face of an indefinite suspension.

4. Calculation of the
entitlement of a worker who has been indefinitely suspended
Lawyers and judges, of
course, do some mathematics in a labour case whenever it is necessary. Unless
the facts of a case involve complex accounting principles, employment lawyers
are at liberty to establish during trial, by simple mathematical calculation of
figures in frontloaded witness statement on oath, pay slips and other
admissible documents, the total amount payable to a successful employee in
labour litigation. In few special cases, the help of an accountant is useful as
an expert witness to guide the court and the parties and, when necessary, the
onus to call an accountant as an expert witness or obtain and tender an
accountant’s opinion, lies on the party who will suffer in the absence of such
accounting evidence.

Now, let us do some
mathematics on compensation, as the court does in most employment cases, in
which an indefinitely suspended worker is successful, to arrive at what the
worker would be entitled to as damages. Suffice to say that if the matter is
resolved in favour of the company, it will be accordingly dismissed (sometimes
with costs against the worker) for lacking in merit.

(a)  Claim for
salaries in arrears
In order to found a claim
for salaries in arrears, the worker must specifically seek a declaratory relief
that his employment still subsists with the employer. Notwithstanding the power
of the court under section 254C(1)(h) of the Constitution, a court will not
grant a relief that is not sought by the claimant. In addition, the worker must
plead and prove his/her monthly salary by credible evidence. Additionally,
there must be factual pleadings and proof of the last payment by the employer
and the number of months or years which are outstanding. All applicable
deductions based on any staff loan, law or any prior agreement must be
considered by a court in arriving at what is due to the worker.

For instance, in the
decision by Justice Kola-Olalere, mentioned above, the worker’s pay slip for
the month of March 2011 was tendered and admitted in evidence showing the
worker’s total earning was N280,511.20. His total deduction was N59,127.24,
while his net pay was stated as N221,383.96. The facts of the case showed that
the employee was suspended by a letter dated 13th June 2011 till the date of
judgement, 16th October 2014, which equals to forty (40) months and three (3)
days in all! Now to translate the foregoing to monetary figure, the Court
multiplied the worker’s net pay, N221,383.96, by 40 months to arrive at
N8,855,358.40. For the extra three (3) days in October, the net pay
(N221,383.96) was divided by 31 days in the month of October, the result of
which (approximately N7,141.42) was multiplied by 3 to arrive at N21,424.25 as
the salary for the three (3) days. Consequently, the worker was awarded
N8,876,782.65 (i.e. the result of N8,855,358.40 plus N21,424.25) as his salary
arrears for the period of suspension! That was a huge but avoidable consequence
to the company, a growing company as at 2014!

(b)  Pension
contributions
Pension contribution is
one of the applicable deductions an employer makes from the earnings of a
worker to be credited, in addition to its own statutory contribution, to the
pension fund account of its workers. In Essang v. Akwa Ibom State
Government & Ors
[1] (2015) 55 N.L.L.R. (Pt. 186) 93,
the National Industrial Court held that the Pension Reform Act 2004 (as amended
in 2014) does not regulate the employment relationship of an employer and
employee but only establishes the contributory pension scheme for employees in
public and private sectors. The jurisdiction of the National Industrial Court
on pension is limited to adjudging what is due and payable as pension
contributions in favour of a worker. An employee is entitled to judgement on
all outstanding contributions from the employer. However, even in the absence
of any express pronouncement in a judgement for a worker, the employer is at
liberty, without any additional liability, to remit the contributions to the
pension fund administrator of the worker in compliance with the law. Documents
showing the company’s remittal of the worker’s pension contributions are
admissible at trial to disprove a claim for pension benefit. A worker cannot
seek an order of the court to compel the employer to pay to him all his
outstanding pension contributions which are due from the employer, as this will
be contrary to the provisions of the Pension Reform Act.

(c)   Terminal
benefit, gratuity or severance package
Terminal benefit, gratuity
or severance package is a common feature contract of service in Nigeria. The
contract of employment must specifically provide for these benefits before a
claim can be founded on any of them. Any of these benefits is grantable if it
is provided in the employment contract and specifically prayed, pleaded and
proved in an employment litigation.

(d)  Annual
leave, maternity, transport, telephone and other allowances
The award of an allowance
will depend on the facts and evidence in each case. Annual leave is a right
guaranteed by law and, as such, will be due to worker in any employment.
However, leave allowance must be contained in an employment contract before it
can be claimed. In most employment contracts, leave allowance is payable to an
employee who has worked for a year as part of his/her annual package. Although
annual leave or maternity leave is a right derived from law, it is nonetheless
arguable whether an annual or maternity leave allowance is grantable to an
indefinitely suspended worker even if the contract provides for allowance but
without any express exclusion of staff on suspension. Transport or telephone
allowance appears to be payable to working staff as part of working expenses.
Transport or telephone allowance will not be appropriate in a judgement for an
indefinitely suspended worker unless otherwise proven by evidence. It is my
view that an employment contract must clearly provide for an allowance before a
claim can be founded on same.

(e)  Claim for
unlawful interference with the worker’s employment
Suspension is, no doubt,
an interference in a worker’s service, particularly if it denies him/her the
opportunity to make earnings, exercise his/her professionalism and grow in
his/her career. Whether suspension is a justifiable or unjustifiable
interference in a worker’s employment is a question of facts or mixed question
of facts and law. In my view, it is plausible for an employee to contend that
his/her suspension has negatively affected his/her chance of promotion and
career growth, particularly if his/her previous performance appraisals have
been favourable. Of course, I am aware of a decided case of an indefinitely
suspended worker whose claim for an alternative relief of N50,000,000 as
damages for unlawful interference with his employment was refused because the
court had awarded to him all his salaries in arrears. It is however not clear
whether the court would have granted a relief for exemplary damages to the
worker (if specifically prayed, as compared to seeking it as an alternative
relief) if same had been sought on the basis that his suspension interfered
with his employment and impaired his chance of promotion or career growth. In
my opinion, having strongly condemned the act of the employer in suspending the
worker indefinitely, the court, in that case, might have been inclined to grant
exemplary damages to punish the company on the ground of either being
sufficiently outrageous to merit punishment or being in flagrant disregard of
the parties’ contract and the law on best international labour practice.

(f)    Cost
of litigation
Cost of litigation is not
a straightforward relief that can be sought and granted, as a matter of course,
to a worker who is successful in an employment dispute. Generally, the
courts have held that it is unethical to attempt to pass on the burden of
counsel’s fees to the opposing party. However, there are provisions of the
National Industrial Act and the Rules of the Court that grant discretion to the
judge to award costs in employment litigation. Nevertheless, cost of action is
one which, if ever recoverable, lies in special damages which must be
specifically pleaded, strictly proven by cogent and compelling evidence and, of
course, prayed as a distinct relief. So, if supported by pleadings and
evidence, costs of litigation are grantable relief at the discretion of the
court.

(g)   Pre-judgement
and post-judgement interests
The National Industrial
Court appears not to have power to grant pre-judgement interest in accordance
with the provision of Order 47 Rule 7 of the 2017 Rules of the Court except
post-judgement interest. Order 47 Rule 7 of the 2017 Rules of the
Court permits the court to order interest a rate not less than 10% per annum
upon any judgement sum. What is clear is that 10% is the minimum rate a worker
can claim as interest on a judgement sum whilst the maximum is at the
discretion of the judge which, from experience, is usually not exceeding 20%
per annum.

5. Conclusion
From the above, it goes
without saying that suspension of a worker, however simplistic it appears given
that it has no procedure to follow, deserves to be taken seriously,
nevertheless, particularly if one considers the possible sum of the monetary
awards that are grantable against a company in favour of a worker under the
sub-headings above, namely: (a) arrears of salaries, (b) pension contributions,
(c) terminal, gratuity or severance package, (d) annual leave, maternity leave,
transportation, telephone and other allowances, (e) unlawful interference in the
worker’s employment, (f) cost of litigation, and (g) interest on judgement sum.

Therefore, suspension
should be followed by immediate investigation. Investigation should be thorough
and concluded timely, one way or the other. Report should always result from
all investigations, informing the affected worker as to whether he is indicted
or not indicted, and may contain recommendations for improvements to all the
parties concerned. After the report, the company should take a definite
position with regard to a suspended worker. All of these should be well
documented. None of these should be done by persons in the company who do not
have a thorough understanding of the company’s disciplinary procedures and the
guidance of legal advice.

 Associate at Udo Udoma & Belo-Osagie
[1] Delivered
Obaseki-Osaghae J. NIC, Calabar, 1st December 2014. 

Ed’s Note – This article was first published here

Photo Credit – www.federalcompensation.com 
Difference between Letter of Dismissal & Letter of Termination | Adedunmade Onibokun

Difference between Letter of Dismissal & Letter of Termination | Adedunmade Onibokun

It
is important to note that an employment relationship cannot be forced upon
either an unwilling employer or employee. Therefore, an employer has a right to
hire and fire, likewise an employee has the right to resign from an employment.

Many a times, the words “dismissal” and “termination”
are used interchangeably when referring to an employee whose employment has
seized.  This may be appropriate in general
discussions, however, under the law, a dismissal and a termination of
employment have completely different interpretations and consequences. A letter
of resignation represents an employee’s desire to quit a job; however, the
effects of a letter of dismissal from an employer are quite different from
those of a letter of termination.  
The Oxford Dictionary describes the word “dismiss”
to mean to send away from one’s presence or employment, it also describes it as
meaning to “reject”. Likewise, a letter of dismissal is a rejection of the
employee by the employer, such rejection which is usually for a reason.  
The first difference between a dismissal
and a termination is that a dismissal is usually punitive in nature while a
termination is simply bringing an employment contract to an end. This implies that
while an employer may well under the law terminate an employment, choosing to
rather dismiss an employee seeks to punish that employee for an act of
misconduct. This was illustrated in Eigbe V Nigeria Union Of Teachers
(2007)
LPELR-8310(CA)
where the court held that
“It is now well settled that in statutory
employment, as well as in private employment, the employer can dismiss an
employee where the accusations against such employee is of gross misconduct
involving dishonesty bordering on criminality, and in such a case, it is not
necessary, nor is it required under Section 36 (1) of the 1999 Constitution
that employee must be tried in a court of law.”
Another difference between a dismissal and
a termination is that, under a termination, the employee is liable to receive a
gratuity and other terminal benefits, however, an employee who has been
dismissed may not be liable to receive any such benefits. This is further
stated in Union Bank Of Nigeria Plc v. Soares
(2012)
LPELR-8018(CA)
, where the court held that –
“There is a clear distinction between termination of a
contract of employment and a dismissal. Termination gives the parties the right
to determine the contract at any time by giving the prescribed period of
notice. Dismissal on the other hand, is a disciplinary measure which carries no
benefits.”
A third difference between a dismissal and
a termination is that, an employee whose contract of employment is terminated
without notice will be liable to collect a salary in lieu of notice, while this
is not the case under a dismissal. This was aptly put by the Supreme Court in Ekunola
V. Cbn & Anor.
(2013)
LPELR-20391(SC)
where the court deliberated whether an employee dismissed on the ground of allegation of gross
misconduct is entitled to notice or salary in lieu of notice, it was held that  –
 “Where his dismissal is founded on the
allegation of gross misconduct the appellant is not entitled to any notice or
salary in lieu of notice …………. And it would be wrong in law to make any awards
to him in these regards.”
The above is a guide to help when
considering, the legal implications of a letter of dismissal and a letter of
termination.
Adedunmade Onibokun
@adedunmade

The Nigerian Worker And Occupational Hazards | Eberechi May Okoh

The Nigerian Worker And Occupational Hazards | Eberechi May Okoh

May 2017 –
Stacey who works in a salon in Port Harcourt was hit by a car while going
across the road to fetch water to wash a customer’s hair. The salon usually has
water facilities but is undergoing a renovation which causes interruptions to
their normal water supply. The accident resulted in a broken bone which has
placed her off work and off earnings. This represents the kind of situations
the Employees Compensation Act was enacted to deal with.

Employees
compensation in Nigeria is governed by the Employees Compensation Act Cap E7A,
LFN 2004 [ECA] and administered by the Nigeria Social Insurance Trust Fund
Management Board [Board]. In countries with a robust legislative framework,
occupational health and safety legislations set the tone for how employers should
make work places safe. With such legislation in place, the occasion for
employee compensation should be minimized. As at today, occupational health and
safety in the work place in Nigeria is regulated by the Factories Act Cap F1,
LFN 2004. This Act has long become moribund with several attempts by erstwhile
National Assemblies to repeal it and enact an Occupational Safety and Health
Act. As at the 9th of March 2017, the Senate read the current Occupational
Health and Safety Bill for the second time and referred it to the Senate
Committee on Labour and Productivity. It remains to be seen if the current
National Assembly will achieve success in repealing the Factories Act and
replacing it with a much-needed Occupational Health and Safety Act.
The crucialness
of occupational health and safety was buttressed at an event held in Abuja in
April to commemorate the 2017 World Day for Safety and Health at Work. Mr.
Dennis Zulu, the Country Director for the Nigerian International Labour
Organization (“ILO”) office represented by Mr. Aly Cisse, the office Chief
Technical Advisor stated that “ILO statistics show that a worker dies every 15
seconds while 153 workers have work-related accidents every 15 seconds
globally”. He further revealed that 6, 300 people die daily as a result of
occupational accidents or work related diseases[1].
The absence of an
occupational health and safety legislation that addresses present day
work-place realities sets the mode for increased cases of employee
compensation.
The ECA which
repealed the Workmen’s Compensation Act has the objective of providing an open
and fair system of guaranteed and adequate compensation for all employees or
their dependents for any death, injury, disease or disability arising out of or
in the course of employment. It provides for a minimum monthly contribution of
one per cent of the total monthly payroll by employers. It is noteworthy that
this contribution is not to be deducted from the remuneration of the employee
and thus constitutes an additional employment cost to employers.
In addition to
accidents occasioned in the workplace, the ECA covers injuries sustained
between the work place and the employee’s residence; the workplace and the
place where the employee usually takes meals; the work place and the place
where remuneration is usually received provided the employer has prior
notification of such place.  
 It also covers injuries sustained
where the employee is required to work both in and out of the workplace or
where the employee has the permission of the employer to work outside the
normal workplace. The Act lists several injuries and diseases and conditions
under which compensation will arise. The percentage of compensation and the
periods of payments are also provided for.
The ECA
anticipates coverage for all workers in Nigeria and defines an employee to
include persons employed under continuous, part-time, temporary, apprenticeship
or casual basis including domestic servants. The definition covers oral and
written contracts of employment. The Act specifically provides that in the case
of independent contractors and sub-contractors, the person or organization
engaging the service and the independent contractor shall be jointly liable for
assessments under the Act relating to that work.
The claims
procedure begins with an injured employee, or in the case of death the deceased
employee’s dependant, informing the employer of the injury or death and the
particulars of the injury within fourteen days of occurrence or receipt of
information of occurrence. The employer in turn has an obligation to make the
report to the Board within seven days of receiving the information. By the
provisions of the law, the application for compensation to the Board ought to
be made within one year after the date of the death, injury or disability.
Failure to make the application within the prescribed time may disentitle the beneficiary
to compensation unless the Board is satisfied that special circumstances
precluded the filing of an application within the first year. In practice,
employees sustaining work related injuries may be treated by their employers
who in turn make claims to the Board for reimbursements with documented
evidence of expenses and proper medical reports. In the case of death, the
Board makes payments directly to the deceased’s dependants.
As earlier
stated, the essence of the ECA is to provide an open and fair system of
guaranteed and adequate compensation for all employees or their dependants for
any death, injury, disease or disability arising out of or in the course of
employment. The question however is:  how do these benefits become
accessible to Stacey and the numerous undocumented workers who get injured
daily?
Clearly, the
current national economy and employment disequilibrium affords little incentive
for an employer of unskilled labour or casual workers to comply with the ECA.
This is further worsened by the fact that most casual workers are completely
undocumented. The employees on the receiving end will also rather keep a job
than worry about a lack of coverage in the event of a work-related injury or
disease. Accordingly, employees such as Stacey for whom remittances are not
made, will never get compensated. Unfortunately, many Nigerian citizens
employed on temporary or permanent basis whose employments are not divulged to
the Board could die while carrying out their works and such deaths will never
be compensated for.
  

 

Eberechi May Okoh
Senior Associate at Streamsowers & Kohn
Ed’s Note – This article was first
published here

A Brief Analysis Of Constructive Dismissal | Busayo Adedeji

A Brief Analysis Of Constructive Dismissal | Busayo Adedeji

Simply put constructive dismissal is the
changing of an employee’s job or working conditions with the aim of forcing
their resignation. It is resignation because of the employer creating a hostile
work environment. Since the resignation was not truly voluntary, it is in fact,
a termination. An example of constructive dismissal might be a situation where
an employer forces a senior officer to take instructions from his juniors
(where the senior officer is clearly more experienced and competent) or any
such other related actions in an attempt to frustrate the employee to the point
of resignation.

Employers might wish to know that the
concept of constructive dismissal, though not often heard of in Nigerian labour
and employment issues is no longer alien to this clime. This is especially as
the third alteration to the 1999 constitution empowers the National Industrial
Court of Nigeria (“NICN”) to apply international best practices in labour in
arriving at its decision. Also, noteworthy in this regard is the provision of
section 19(d) of the NICN Act (2006) which provides that:
“The court may in all other cases and where
appropriate make any other including; an award of compensation or damages in
any circumstance contemplated by this Act or any other Act of the National
Assembly dealing with any matter that the court has jurisdiction to hear”.
In Miss Ebere Ukoji v. Standard
Alliance Life Assurance Co. Ltd 
[2014] 47 NLLR (Pt. 154) 531 NIC
,
the court held that to attempt to have the employee resign, rather than
outright firing the employee means that the employer is trying to create a
constructive discharge.[ii]
Generally, an employee bringing a claim of
constructive dismissal must (1) show that his employer created a hostile work
environment in a bid to get him to resign; and (2) that the hostile work
environment led to his resignation.
[ii] The Changing Face of Nigerian Labour Law
Jurisprudence and What Employers Need to Know. By Hon. Justice Benedict Bakwaph
KANYIP, PhD
Regulatory Compliance & Commercial law
advisor

Ed’s note – This article was first published here 
Legal protection from workplace sexual harassment | Michael Dugeri

Legal protection from workplace sexual harassment | Michael Dugeri


There is legal protection from workplace
sexual harassment. Workplace sexual harassment is commonly defined as
unwelcome sexual advances, requests for sexual favours, and other verbal or
physical conduct of a sexual nature when:

·                 
Submission
to such conduct is made either explicitly or implicitly, a term or condition of
an individual’s employment, or
·                 
Submission
to or rejection of such conduct by an individual is used as a basis for
employment decisions affecting such individual, or
·                 
Such
conduct has the purpose or effect of unreasonably interfering with an
individual’s work performance or creating an intimidating, hostile, or
offensive working environment.
Workplace sexual harassment can include a
one-off incident or a series of incidents. Both male and female colleagues can
either be the victim or offender. It is particularly serious when behaviour of
this kind is initiated by any official who is in a position to influence the
career or employment conditions (including hiring, assignment, contract
renewal, performance evaluation, working conditions, or promotion) of the
victim. Sexual harassment may also occur outside the workplace and/or outside
working hours.
The Nigerian Labour Act and the many HR
policies that workers in Nigeria are commonly bound by are silent on the issue
of workplace sexual harassment. This has left many victims of this problem in
doubt as to their legal options. Workplace sexual harassment results in
violation of the fundamental rights of a worker which include dignity of the
human person and personal liberty guaranteed under the 1999 Constitution.
A person’s right to protection against
sexual harassment and the right to work with dignity are universally recognised
human rights by international conventions and instruments. Hence every person
has the right to practice any profession or to carry on any lawful occupation,
trade or business which includes a right to a safe environment free from sexual
harassment.
The National Industrial Court (NIC) amended
its civil procedure rules recently to provide the procedure for claims against
workplace sexual harassment. Order 14 of the National Industrial
Court of Nigeria (Civil Procedure) Rules, 2017
provides that an action
in which a worker alleges sexual harassment at the workplace should spell out
whether the sexual harassment is any of the following:
a.      Physical conduct of
a sexual nature: such as unwanted physical contact, ranging from touching to
sexual assault and rape, strip search by or in the presence of the opposite
sex, gesture that constitutes the alleged sexual harassment ; and/or
b.     A verbal form of
sexual harassment: such as unwelcome innuendoes, suggestions and hints, sexual
advances, comments with sexual overtones, sex related jokes or insults, or
unwelcome graphic comments about a person’s body, unwelcome and inappropriate
enquiries about a person’s sex life and unwelcome whistling at a person or
group of persons, any document, material or exhibit in further support of the
claim ; and/or
c.      A non-verbal form
of sexual harassment which includes unwelcome gestures, indecent exposures, and
unwelcome display of sexually explicit pictures and objects ; and/or
d.       Quid
pro quo harassment where an owner, employer, supervisor, member of management
or co-employee undertakes or attempts to influence or influences the process of
employment, promotion, training, discipline, dismissal, salary increments or
other benefits of an employee or job applicant in exchange for sexual favours.
To be clear, the said Order 14 of the NIC
Rules is not necessarily a codification of the law on workplace sexual
harassment; as this workplace vice has always been actionable before the
courts. However, the new NIC provision is helpful in at least three major ways.
Firstly, it defines what amounts to workplace sexual harassment. Secondly, it
explicitly makes it an actionable claim. Thirdly, it provides a guide on how to
prove it before the court.
For instance, it is common to assume that
only behaviour under paragraph (d) above amounts to workplace sexual
harassment, when in fact there is a lot more to it than that. From Order 14 of
the new NIC Rules therefore, we are now clear that any of the following
qualifies as workplace sexual harassment:
·                 
asking
for sex in exchange for a benefit or a favour
·                 
repeatedly
asking for dates, and not taking “no” for an answer
·                 
strip
search by or in the presence of the opposite sex
·                 
making
unnecessary physical contact, including unwanted touching
·                 
using
rude or insulting language or making comments towards women
·       
(or
men, depending on the circumstances)
·       
calling
people sex-specific derogatory names
·       
making
sex-related comments about a person’s physical characteristics or actions
·       
posting
or sharing pornography, sexual pictures or cartoons, sexually
·       
explicit
graffiti, or other sexual images (including online)
·       
making
sexual jokes
A worker who suffers from any of the above
can institute an action at the National Industrial Court for reliefs, which
include monetary compensation, damages and injunction. 
Protesting against sexual harassment is
extremely difficult because it most often results in a hostile work
environment, delay in promotion or even loss of job. The daily humiliation is
compounded by the forced repeated encounters with the offender who is often a
person in power in the office. Harm caused by sexual harassment is often
extreme, including humiliation, loss of dignity, psychological (and sometimes
physical) injury, damage to professional reputation and career. Inevitably, the
victims face a choice between their work and their self-esteem. Sometimes, they
face a choice between their jobs and their own safety. While these effects are
not seen instantly, they linger on in the mind of the victim long after the
abuse has taken place. Employees who become less confident overtime are
sometimes the victims of sexual harassment.
While the person who sexually harasses
someone else is liable for their behaviour, employers can also be held
vicariously liable for acts of sexual harassment by their employees or
agents. This would be more so where there is proof that the employer was aware
of the sexual harassment but failed to protect the victim or punish the
offender. In fact, employers that do not take steps to prevent sexual
harassment can face major costs in decreased productivity, low morale,
increased absenteeism, health care costs and potential legal expenses.
Some types of sexual harassment may also be
offences under criminal law and should be reported to the police. These include
behaviours like indecent exposure, stalking, sexual assault and obscene or
threatening communications. 
Companies that want to manage their risk
prudently must act before the problem occurs. Employers should adopt a clear
sexual harassment policy, by devoting a section in their employee policy
handbook to sexual harassment that outlines the following:
a.     define
sexual harassment;
b.     state
in clear terms that it will not be tolerated;
c.      set
out a clear procedure for filing sexual   harassment complaints;
d.         
state
that retaliation against anyone who
e.          
complains
about sexual harassment would not be tolerated; and
e.      continually
monitor the work place for signs of sexual harassment.
It is better to be safe than sorry. 
Michael Dugeri
Corporate Commercial Lawyer at
Austen-Peters & Co.

Ed’s Note – This article was first published here 
What to do when your employment is terminated unlawfully – Adedunmade Onibokun

What to do when your employment is terminated unlawfully – Adedunmade Onibokun


There are many instances
when employees have had their employments terminated unlawfully by their
employers.  Some of these employees never
see it coming and become infuriated at the company for a termination they deem
unlawful. Others are confused and wondering what to do next and how to secure
the next pay check in order to provide for their families and needs. Many however,
do not realise that their termination is unlawful and they have a right to sue
the employer for a breach of their contract of employment. 

Before we go further,
allow me explain that in law practice, the words “termination” and “dismissal”
in regard to employment contracts are not the same. 
Though, “Termination” or “Dismissal” of an
employee by the employer translates into bringing the employment to an end.
Under a termination of appointment, the employee is enabled to receive the
terminal benefits under the contract of employment. The right to terminate is
mutual in that either may exercise it. “Dismissal” on the other hand
is punitive and depending on the contract of employment very often entails a
loss of terminal benefits.
To
further explain, most contract agreements contain a clause stating that either
parties may terminate an employment if due notice is given or  payment of a month’s salary in lieu of notice.
If an employment comes to an end this way, it is a termination. However, to be
dismissed usually means that the employee was relieved due to actions bothering
on misconduct. 
So when can an employment be said to
have been terminated unlawfully? 
The
Supreme Court held in
Eze v. Spring Bank Plc
(2011) LPELR-2892
, that, to
determine whether the dismissal of an employee was correct or wrong, the terms
of employment of the aggrieved employee must be examined to see whether the
correct procedure was followed. Where there is departure from the prescribed
procedure or a violation of the elementary rules of natural justice, then the
dismissal is unlawful. 
For
instance, if the contract of employment provides that either party may
terminate the employment upon notice or payment of salary in lieu of notice,
any letter of termination served on the employee not in line with the above
provision will be unlawful.  Furthermore,
assuming an employee was dismissed for gross misconduct without giving the said
employee an opportunity to defend the allegations. Such an act will also amount
to an unlawful dismissal. 
If
a party believes they have been terminated or dismissed unlawfully, such party
can use the internal organs made available by the company to state a case or
redress the issue. However, if that does not yield a solution such aggrieved
employer may resort to the court and claim damages against the employer. It is
important to note that such a case must be brought before the court within 6
(six) years of the date the employee was let go. 
The
National Industrial Court is vested with the exclusive jurisdiction of
adjudicating over employment and labour matters by virtue of
Section 254C
of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act
2010. Therefore, all such matters are instituted
at the National Industrial Court.
The law is now settled that in an
award of damages for unlawful dismissal in ordinary master/servant relationship
the measure of damages is what the servant would have earned in lieu of notice
plus his accrued benefits up to the time of his termination. 
The courts usually shy
away from ordering a reinstatement of the employee. For it is a principle of
law that no employee can be forced on an unwilling employer. This is
illustrated in the court’s decision in U.B.N.
Ltd. v.Ogboh (1995) 2 NWLR (Pt.380)647
where it was held that the plaintiff in appropriate cases of such unlawful
dismissal or wrongful termination of employment is left to his remedy in
damages as no servant may generally be imposed by the court on an unwilling
master even where the master’s behaviour is wrongful
.
 
Adedunmade Onibokun, Esq. 
Adedunmade is the Principal
Partner of Adedunmade Onibokun & Co., a corporate commercial law firm
located in Lagos, Nigeria. He also publishes the Legalnaija blog, an
online platform dedicated to educating Nigerians on their legal rights and
obligations. He can be reached via
dunmadeo@yahoo.com