By: ‘Mayowa Arokodare
Section 7(6) of the National Industrial Court Act 2006 (the “NIC Act”) and Sections 254C (1)(f), (h) and (2) of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act 2010 (the “Third Alteration Act”) provide the National Industrial Court (the “NIC”) with legal basis to apply international best practice in labour and industrial relations; and conventions, treaties, recommendations and protocols that have been ratified by Nigeria. This amendment to the Constitution of the Federal Republic of Nigeria 1999 (“CFRN 1999”) has addressed the decision of the Supreme Court of Nigeria in The Registered Trustees of National Association of Community Health Practitioners of Nigeria & 2 Ors. v. Medical and Health Workers Union of Nigeria & Ors.  37 WRN 1 in which the apex court held that international conventions which have been ratified by Nigeria are not automatically applicable in Nigeria until they are domesticated by an Act of the National Assembly in accordance with Section 12(1) of the CFRN 1999.
Further, the President of the NIC, pursuant to powers conferred by Section 254F (1) of the CFRN 1999 (as amended by the Third Alteration Act) and Section 36 of the NIC Act, made the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 (the “Rules”). The Rules allow the NIC to apply conventions and protocols which have been ratified by Nigeria including international best practices in labour, all of which are rooted in the rules of equity. By Section 15 of the NIC Act, the NIC is enjoined to apply the rules of equity where same is at variance with the rules of common law with reference to the same subject matter.
In the recent past, the NIC has consistently applied relevant international labour standards to the effect that an employer ought not to terminate an employment relationship without adducing valid reasons for so doing. However, in Ifeadi v. Zenith Bank Plc. (Unreported Suit No. NICN/LA/184/2017, the judgment of which was delivered January 13, 2020), the NIC appeared to revert to the strict common law position that an employer could validly terminate an employment for reason (good or bad) or no reason at all.
The question which the writer seeks to illuminate in this piece is whether the decision of the NIC in Ifeadi v. Zenith Bank Plc. amounts to the application of the rules of common law in disregard of Section 15 of the NIC Act and whether, consequently, this jeopardizes the security of tenure afforded employees under the relevant international conventions and labour standards. In doing this, there is the need to first state what the common law position is in more detail.
What is the Strict Common Law Position?
At common law, the employer can terminate at will, with or without reason. This position was affirmed by the Supreme Court in Fakuade v. OAUTH Complex Management Board (1993) LPELR-1233(SC). Indeed, the reason or motive of the employer for the termination is irrelevant – it may be spiteful, punitive of petty (although, as held by the Supreme Court in Institute of Health ABU Hospital Management Board v. Anyip  LPELR-1517(SC), if the employer terminates an employment and gives a reason for such termination, the employee is entitled to challenge the reason).
This common law position (under which the employer need not provide a reason for termination) appears unfair as it permits the employer to act maliciously perhaps with the sole purpose of bringing the employee to disrepute and possibly limiting the near future employment and career prospects of the employee. This is because termination without reason suggests some wrongdoing on the part of the employee. Arguably, therefore, the uncertainty caused by this common law practice could potentially result in a brain drain from Nigeria.
It is in light of the harshness of the common law position that the NIC, in the exercise of the jurisdiction conferred on it by the CFRN 1999 (as amended by the Third Alteration Act), has favoured termination of employment with reason in line with international best practice in labour.
The International Labour Organisation’s Convention on Termination of Employment
The International Labour Organisation came up with the Termination of Employment Convention, 1982 (No. 158) (the “Convention”) and the Termination of Employment Recommendation, 1982 (No.166) (the “Recommendation”) both of which represent the minimum international labour standards designed to guard against unfair dismissal and guarantee employment security. Article 4 of the Convention prohibits the termination of the employment of an employee 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 (that is, the employer).
In 2016, the NIC in Duru v. Skye Bank Plc  59 N.N.L.R (Pt.207) 680 held that the law has now gone beyond termination without reason under the common law concept of hire and fire without reason as it is no longer fashionable. To support its decision, the Court referred to Article 4 of the Convention and the Recommendation. Although Nigeria was yet to ratify the Convention (as to make it automatically applicable in virtue of section 254C (2) of the Third Alteration Act), the NIC proceeded to apply same in furtherance of its powers to apply international best practice and international labour standards. As recently as 2019, the NIC reiterated its position on termination with reason in Bello Ibrahim v. Ecobank Plc (Unreported Suit No. NICN/ABJ/144/2018, the judgement of which was delivered on December 19, 2019). The consensus among industry practitioners is that the position of the NIC promotes fairness in industrial relations in accordance with global labour standards.
What Then Did the NIC Decide in Ifeadi v Zenith Bank Plc.?
However, on January 13, 2020, the NIC, in a surprising turn of events in Ifeadi v. Zenith Bank Plc., held it to be the law:
“…that an employer is not bound to give any reason for terminating the appointment of its employee but where the employer gives a reason, the law imposes on him a duty to establish the reason to the satisfaction of the court. See Olatubosin v. NISER Council (1988) 1 NSCC 1025… The Defendant in its letter dismissing the Claimant dated March 11, 2016 did not give any reason for her summary dismissal.” (Emphasis mine)
At a first glance, this decision is inconsistent with the previous decisions of the NIC in which the Court upheld international best practice on termination of employment with reason. At this point, it is worth stating that, by Section 7(6) of the NIC Act, what amounts to international best practice in labour or industrial relations is a question of fact. What this means is that where a convention has not been ratified by Nigeria (such as the Convention), a litigant seeking to rely on the convention as proof of international best practice on labour must plead same to justify reliance by the NIC on such convention.
Now, upon a careful review of the judgement of the NIC in Ifeadi v. Zenith Bank Plc., it does not appear that the claimant pleaded the Convention and the Recommendation as international best practice (by making a case in that regard in terms of her reliefs before the court). It is the view of the writer that this omission on the part of the claimant was fatal to her case. The claimant having failed to prove the rules of equity on the subject, the Court was left with no choice but to apply the strict common law position of employment at will.
The decision in Ifeadi v. Zenith Bank Plc might have been different if the claimant had pleaded the Convention and the Recommendation. The question as to whether the NIC will apply the Convention and the Recommendation in any given case by virtue of Section 15 of the NIC Act or not is dependent upon the approach adopted by the claimant in seeking to rely on relevant international labour standards. Where the claimant fails to plead and prove the international labour standards, the court will apply the common law position that the employer need not adduce reason for terminating the employment.
For this reason, it is suggested that employers should adduce valid reason(s) for termination in the letter of termination in line with the Convention and the Recommendation. Further, employers must be prepared to justify such reasons if challenged.
Mayowa Arokodare, ACITN is Senior Counsel at a leading commercial law firm in Lagos, Nigeria. He is a Finance, Corporate & Commercial Law specialist.