The world over, when it comes to the rights available to an employee, especially where dismissal or termination of appointment is concerned, the International Labour Organisation Convention of 1982 is still the “metre rule.”

A Nigerian lawyer and labour activist, Femi Aborisade, in his book titled “Determination of Contract of Employment,” which was recently launched in Lagos, noted that for the dismissal of any worker to be adjudged fair and justified, it necessarily must abide by the dictate of the International Labour Organisation Termination of Employment Convention No. 158 of 1982 and Employment Recommendation No. 166 of 1982.

“These minimum standards mandate that there cannot be termination unless there is a valid reason. Certain reasons are automatically invalidated and examples of these include termination based on union membership and discrimination of any type.

“Under the Convention, there must always be an opportunity to be heard. The Recommendations include the requirement of warnings prior to termination for misconduct and prior appropriate training before there can be termination for unsatisfactory performance,” Aborisade said.

But the lawyer said judicial pronouncements on employer/employee disputes in Nigeria are often in conflict with the provisions of the ILO Convention, with the Nigerian courts consistently upholding that “the employer is entitled to hire and fire at will, for good or bad reason or no reason at all.”

To drive home his point, Aborisade found a ready example in the 2012 court judgment in the dispute between Samuel Isheno and Julius Berger Nigeria Plc, where the court unequivocally held, “An employer, who hires an employee under the common law, has the corresponding right to fire him at any time, even without assigning any reason for so doing.”

With the view to shielding workers from rights violation by the employer, the ILO Convention further provides that a reasonable period of notice, preferably in writing, must be given to an employee before the termination of his appointment can take place. A worker, who has been served with a notice of termination, especially on grounds of misconduct, also has a right to appeal the decision and he is entitled to fair hearing, while defending himself personally or through his lawyer.

“The right to fair hearing includes the right to be notified of the alleged misconduct, right to defend self in person, the union or by a legal practitioner, adequate time to prepare defence, the right to call witnesses and to cross examine adverse witnesses.

“Even in cases of serious willful misconduct on the part of the employee, summary dismissal is not allowed. What is provided for is summary suspension, followed by investigation coupled with procedural fairness. Even workers on probation cannot be deprived of justice and fairness. Where deficiencies in the work is noticeable, the law imposes an obligation on the employer to timeously inform the employee of same and provide chance for improvement,” Aborisade said.

The ILO Convention also provides that for all categories of workers, either in the public or private establishment, there is an entitlement to remedy in form of reinstatement, in the event that the employee has been wrongfully dismissed.

But a former Attorney General and Commissioner for Justice in Edo State and the reviewer of Aborisade’s book, Dr. Osagie Obayuwana, said it has become trite pronouncement in the Nigerian court of law that a wrongfully dismissed worker, even if he wishes to return to the employee, cannot be forced on the employer if the employer is unwilling.

Obayuwana recalled the Appeal Court decision of 2012 in the case of Union Bank Nigeria Plc and Chinyere where the court proclaimed that it was not its business “to force a willing employee on an unwilling employer.”

“In (Kunle) Osisanya v. Afribank Plc, Katsina Alu JSC at 235-336, relying on a long line of cases, affirmed that the court cannot impose a servant on an unwilling master. The sacked employee cannot seek a declaration that his employment is still subsisting. Possible reinstatement is ruled out!” Obayuwana noted.

But the disparities between the ILO Convention and the Nigerian workers practical experience is not limited to the aforesaid. The unduly long and slow judicial process in Nigeria has also opened a window of further abuse of the workers’ rights by the employer.

Aborisade, in his book, pointed out that no matter how long it takes, if the Nigerian court determines eventually that a worker was improperly disengaged, all that the court often recognises is the agreement of one to three months salary in lieu of notice in the terms of agreement and nothing more.

“In Union Bank v. Chinyere, the Court of Appeal, relying on the Supreme Court’s pronouncements, affirmed that where the accusation against the employee is for gross misconduct involving dishonesty bordering on criminality, the employer can summarily dismiss the employee even before the employee is tried before a court of law. Question: Where is the constitutionally protected presumption of innocence?” Obayuwana queried.

But that is not all, unduly long casualisation of workers as being practiced in many companies in Nigeria is also against the spirit of the ILO Convention on workers’ rights.

“Casualisation is to escape the payment of more benefits, just like termination of the workers’ services for being sick or getting pregnant. If government in a capitalist society is but a management committee of the society on behalf of the capitalist class, and the judiciary is but an arm of this same government, how can anyone be surprised by the obvious partisanship generally speaking of the court system against the interest of the working people. The numerous cases containing pronouncements from the highest courts of the land which defy logic, attests to this,” Obayuwana said.

But a judge of the Lagos State High Court, Justice A.M. Lawal, urged Aborisade and Obayuwana to put the blame on the lacuna in the existing laws.

Lawal, who noted that judges themselves are workers, said a judge only decides a case based on the existing laws.

“Nigerian lawyers and judges, first and foremost, are workers like every other worker, and therefore there is no cause to maltreat workers. It is whatever the lagislators put into the law that the judiciary interpretes,” Lawal said.

The juge also pointed out that the National Industrial Court was established to ensure that labour disputes are expditiously treated, adding that provision has also been made that the decision of the NIC in labour disputes is often final, with very unlikely opportunity to appeal.

The Chairman, Nigerian Bar Association, Ibadan branch, Kazeem Gbadamosi, said the solution to the problem is to sponsor a bill.

Gbadamosi advocated “engagement of law reforms at the federal and state levels.”

But, Aborisade, said there have also being some bright spots in the judiciary.

He said, “This trend is garnered from the decision of the National Industrial Court in the case of PENGASSAN v. Schlumberger suit number NIC/9/2004 of 18/9/2007, where his Lordship, the President of the National Industrial Court, Hon. Justice (Babatunde) Adejumo held as follows:

“…globally, it is no longer fashionable in industrial relations law and practice to terminate an employment relationship without adducing any reason for such termination. The employer may not be obliged under common law, however, when a reason is given, the employee has a right to contest the reason.”

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