Covid-19: The Consequence of The Supervening Events and Measures on Employment Relationship Under the Nigerian Law

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INTRODUCTION

The outbreak  of the global pandemic, COVID-19, has left the world in disarray as several countries remain shuttered to curb the spread and battle the ravaging SARS-CoV-2, the virus that causes COVID-19. Not a few countries across the world imposed total lockdown on major cities and over a third of the world population.[1] The world is witnessing the suspension of economic activities in peacetime in an unprecedented turn over several decades. Schools, factories, commercial entities and government departments were shut down for weeks. Movement of persons, goods and services, the very activities that sustain national and the global economy have been curtailed in no small measure.[2] The human and economic impact of the pandemic continues to rise with no end in sight. The disruption to businesses and supply chain has slowed down the economy at both the macro and micro levels in a significant quantum. It is natural that businesses would react to the downturn and economies would predictably contrast.[3]

The aim of this paper is to provide expositions on some of the legal issues, within the spectrum of labour and employment law, which may arise from the reactions/adjustments by businesses and corporate entities to the prevailing economic conditions.  We aim to achieve the above objective by analysis of probable issues and likely legal consequences based on deduction from settled principles of law.[4] We will consider whether the concept of force majeure or frustration is applicable to employment contract and, by extension, whether the pandemic and the counter-measures constitute supervening events by which an employer may be excused from strict compliance with the terms of a contract of employment.  We will, on a final note, highlight the obligations of an employer with regards to health and safety measures in furtherance of the Government’s guidelines on social distancing.

The Counter-Measures

The Federal Government of Nigeria, in a bid to slow the spread of the COVID-19 imposed total lockdown on two states, Lagos and Ogun State, as well as the Federal Capital Territory, Abuja (the “FCT”). The measures were effective from the 29th day of March, 2020.[5] The implication of the government policies or measures is that employees in the affected states and the FCT were either unable to render services under their contract of employment or had to work remotely (outside their usual place of work or business environments). First, our assumption is that the pandemic, the disruption of business and services as well as the prevailing economic conditions are material to qualify as an event of force majeure or supervening events as the case may be.[6]  Given this fact, we foresee that certain legal questions are likely to arise as consequences of the disruption of business activities and change in economic conditions.

The first of such question is whether an employer can rely on the pandemic as a supervening event either in form of force majeure or frustration? A corollary question is whether a claim of supervening event which is predicated on the pandemic may be relied upon by an employer to vary all kinds of obligations under a contract of employments?  It is equally relevant to examine the steps an employer must take in order to vary or derogate from the terms of the contract of employment.

The common law doctrine of frustration is applicable to contract of employment just as other contracts to the extent that an employer may be excused from future obligations including statutory duties where the cessation of a contractual relationship is determined by event of frustration rather than dismissal.[7] The express mention of the employer is deliberate to show that the party who is likely to rely on changes in economic circumstance is an employer having regard to the fact that contracts of employment are transactional vertical in nature and most importantly, the fact that the impact of an unforeseen economic change is more likely to affect the employer; employees in such economic conditions would rather opt for ways to preserve their employments pending when normalcy returns or economic indices is upward trending.[8] Moreso, an employer’s several obligations are continuous in nature in so far as the employee remains in the employment. Our conclusion on the first set of question is that the nature of an employment relationship is not hostile to variation of terms of employment by the employer or determination of the relationship based on material change in economic conditions, unforeseen event or change in government policies/law.[9]

The likely Changes in Employment Relationship

What then are the likely variation and issues that may arise in practice either based on the total lockdown or the subsequent ease of the restrictions?[10] The most notable trend around the world is the directive or arrangement on possibility of provisions of services outside the confines of the workplace. Does such a directive amount to variation of the terms of the contract of employment? Another notable issue which emanate from the desire of employers to aggregate the period of the total lockdown as a leave period. A third notable issue is the desire to reduce the salaries/wages and/or cancellation of benefits and privileges which form part of the remuneration in the contract of employment. Our task under this section is to consider whether any of the changes may be regarded as unilateral variation of the contract of employment such that an employee may be entitle to remedy in law?

We need to reiterate that a contract of employment remains the foundation of the relationship between employers and employees. The parties, as a general rule, are bound by the terms of the contract of employment.[11] It is however highly unlikely that a directive that an employee should work from a place other than the agreed place of work would amount to a departure from the terms of employment between the parties in the circumstance of the pandemic even where the agreement between the parties does not envisage such arrangement. Our reasoning is deduced from the definition of a “workplace” which includes any premises or place where a person performs work or needs to be or is required to be in the course of the employment.[12] Besides this definition, it is doubtful, in practice, that such directive would give rise to any reasonable cause of action.[13] It follows that an employer, in this circumstance, has the obligation to pay the agreed wages/salary to the employee save where there is an advanced notification to the contrary. This proposition is not farfetched and it is consistent with the general principle of law that a party cannot unilaterally vary a part-performed contract. The general principle translates, in the employment law, to the rule that an employer cannot alter the terms of a contract of employment subsequent to performance of service or as it relates to earned benefits.[14]

The fact that the obligations of an employer to pay agreed salary or benefit to an employee cannot be altered merely on the ground that there is a change in the nature of work may equally be inferred from the provisions of sections 15 and 17 of the Labour Act.[15] It is always a duty of the employer, by the combined provisions of the sections, to provide work and pay agreed wages as at when due subject to any temporary emergency.[16]

Permissible Unilateral Variation 

We do not, by the above proposition, suggest that an employer cannot vary its obligations or lawfully impose a salary reduction contrary to the terms of employment between the parties. The above position represents the general principle of law. We must note that the provision of Labour Act cited above recognize that an emergency is a good ground for variation of obligation to pay agreed salary as at when due. Besides the provisions of the Labour Act, an employer, in practice, can unilaterally vary the terms of employment where there is a flexibility clause in the agreement between the parties which permit variation without recourse to the employee. An employer would equally have a right to vary the terms of employment without recourse of the employee where the variation is permitted by law, allowed under a collective agreement, arbitration award or necessitated by change in businesses. This position is not inimical, by any string, to the general principle of law against unilateral alteration or review of contractual terms.[17] First, a review of statutory provisions and international instruments on employment and labour matters suggest that a unilateral variation of terms of contract of employment relating to wages, working hours and conditions as well as benefits by an employer is permissible.[18] The second argument and a practical justification for the above proposition is that the nature of a contract of employment, being vertical transactional, does not provide much room for negotiation of variation to the terms of contract. This is because an employer in a capitalist oriented world has unfettered freedom to adjust to change in economic conditions or unfavourable government policies.[19] Third, it is equally impracticable to compel an employer to negotiate with employees at any time a variation is proposed to the terms of employment except in a unionized environment. It may therefore not be possible for an employer to seek for a mutual agreement prior to the application of necessary changes or variation to a contract of employment particularly in the face of massive economic pressure or drastic change in business conditions such as the lockdown or slowdown that is occasioned by the pandemic.[20]

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The overriding deduction from the above arguments is that an employer is permitted to unilaterally vary the terms of employment relating to wages, benefit and nature of work in given circumstance notwithstanding the general rule against unilateral variation of contract.[21] The obligation on an employer, from all indications, circumstances and events, is to give adequate notice of a proposed variation to the employee.[22]  An employee may consent to variation of contract in writing or otherwise by continuing with the employment. Any such variation binds the employee and where the variation is in writing, the employee would not be allowed to rely on the initial agreement between the parties.[23]

Conversely, where an employee insist on specific performance of the employer’s obligations in accordance with the terms of the extant contract of employment prior to the supervening event and the notice of proposed alteration. The consequence is that the parties on the future terms of engagement. The employer, in the circumstance, has unfettered power to terminate the relationship between the parties without any reason but subject to the terms of the contract between the parties and the statutory requirement of notice or payment in lieu.[24] There is generally no reasonable cause of action that may arise from the employer’s act of termination other than claims on obligations that are due for performance prior to the effective date of cessation of the employer/employee relationship save in a situation where the employee is able to proof that the termination is discriminatory.[25]

An employer may, however, not be allowed to unilaterally vary a contract of employment where the variation would change the nature of employment between the parties.[26] The right of the employee does not however lie in a relief for the reversal of the variation but in constructive dismissal where he can show that the variation is a primary causation of his resignation from the employment.[27]

Frustration and Force Majeure: Statutory Employment

The proposition and principles of law enunciated in the preceding paragraphs largely apply to a master/servant relationship. The common law principle of frustration and contractual doctrine of force majeure seem to be incompatible with employment with statutory flavour having regard to the facts that the condition of service in such employment are governed by provisions of statute and subsidiary legislation or rules. Variation of terms of employment with statutory flavour of any form or cessation of the relationship between the parties must be done strictly in accordance with the enabling statutory provisions or rules.[28]

Termination of Employment Relationship

  1. A) Termination: Redundancy

The employer reserves the right to terminate employment relationship with any employee at any material time subject to the compliance with the contract of employment between the parties. The employer need not adduce any reason for the termination but the termination may be based on redundancy by reason of the change in the economic conditions as a result of the pandemic or the lockdown subject to a proof of such redundancy.[29] The employee, in whichever procedure adopted by the employer is entitled to the length of notice, earned remuneration and the benefits stipulated in the contract of employment between the parties.[30]

  1. B) Termination: Furlough

Furlough, a temporary suspension of employment relationship between the parties, is not generally known to Nigerian Law. Any form of temporary layoff or cession of employment is deemed as termination of employment in law. Parties to a contract of employment just like other contract, however, have the freedom to express the terms of their agreement or renegotiate the terms of the contract of employment to accommodate reduced hours or partial suspension of employment relationship.

It is ultimately a decision for the employer which employees are furloughed but such decision must be taken without discrimination. The employer, in effect, is entitled to identify the employees based on business needs and with utmost objective.

Effective Health Measures and policies at the work place for the safety of employees

The Labour Act and the Factories Act mandate employers and factory owners to ensure the health and safety of their employees. An employer is under obligation to provide a safe system of work and health, safety and welfare of employees within the workplace.[31] These obligations, in the circumstance of the pandemic, extend to compliance with the government guidelines and social distancing measures. These obligations would equally extend to keeping any employee with symptoms of Covid-19 out of the workplace and prompt report of suspected cases to relevant governments’ agencies.[32] Conversely, an employer does not have a right to subject any employee to compulsory test or premise any decision on such directive. The employer may in such circumstance risk a claim for breach of right to privacy or discrimination.[33]

An employee may refuse to resume work in the event of the failure of his employer to comply with health and safety measures and where the precautionary procedures are inadequate. Such an employee is entitled to remuneration and has a cause of action in the event that his employment is terminated on that cause.[34]

Right of Action

Although the pandemic and measures imposed by governments in response to it are unprecedented, it is not a basis for an employer to arbitrarily abandon his obligation. The pandemic, howsoever it may be adjudge, cannot give rise to a defence that would be strong enough to override settled principle of law on breach of contract, employer’s duty of care and established measure of damages. The pandemic, either viewed as a force majeure event or event of frustration, will not be a reasonable defence in an action for remedies against wrongful termination of employment. Similarly, an employer remains liable for negligence and discriminatory actions arising from any measures taken as a result of the pandemic.

 

Conclusion

An employer, with respect to employee who are “worker” under Labour Act, may be excused from performance of its obligations on the ground of emergency (covid-19 crisis) notwithstanding the absence of a flexibility clause in the contrary of employment.[35] It is equally immaterial that the relevant contract of employment does not expressly contain a force majeure clause. An employer, with regard to employees who are not within the scope of the Labour Act, may only be able to vary the employment relationship on the ground of the supervening events or change in economic conditions by given adequate notice of such variation. The best approach is for both parties to reach a mutual understanding or agreement based on the prevailing conditions.

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Written by Olalekan Yussuf; * Ahmed Kosoko;** Jessica Odera Muodozie***

Foot Notes

[1] Andrea Remuzzi, Giuseppe Remuzzi ‘Covid-19 and Italy: What Next?’ (2020) 395 Lancet 1225-1228 <https://www.thelancet.com/pdfs/journals/lancet/PIIS0140-6736(20)30627-9.pdf> accessed 23 May, 2020.

[2] The Economist, No More Pencils, No more Books: Closing Schools for Covid-19 does lifelong harm and widens inequality (The Economist, 30 April, 2020) <https://www.economist.com/international/2020/04/30/closing-schools-for-covid-19-does-lifelong-harm-and-widens-inequality> accessed on {10 May, 2020}.

[3] Chukwuma Charles Soludo, ‘Covid-19: Can Africa Afford Lockdown?’ (Premium Times, 24 April, 2020), <https://opinion.premiumtimesng.com/2020/04/24/covid-19-can-africa-afford-lockdowns-by-chukwuma-charles-soludo/> accessed on 06 May, 2020.

[4] It is not our claim that the positions expressed in the paper are settled principle of law. Such a claim would not only be preposterous in view of the facts that the pandemic is unprecedented in recent time, the claim would be baseless on all fronts.

[5] The Full Address by President Muhammed Buhari on 29 March, 2020 (Premium Time, 29 March, 2020) <https://www.premmiumtimesng.com/coronavirus/384753-what-buhari-said-about-covid-19-movement-restriction-in-lagos-ogun-abuja-full-text.html>. The total lockdown in the affected part of the countries last until 03 May, 2020. It is relevant to add that various measures were imposed in other states of the Federation from total lockdown to restriction on movement and commercial activities. See also The Full Address by President Muhammed Buhari on 29 March, 2020 (Premium Time, 29 March, 2020); The Full Address by President Muhammed Buhari on 29 March, 2020 <https://www.premmiumtimesng.com/coronavirus/384753-what-buhari-said-about-covid-19-movement-restriction-in-lagos-ogun-abuja-full-text.html> accessed on 28th May, 2020.

[6] A party to a contract, as a general rule of law, will not be held liable for failure to perform a contractual obligation where the default is due to occurrence of any unforeseen events which is beyond the control of the defaulting party at the material time. The party is permitted to rely and or cite the unforeseen event as a force majeure event or event of frustration. Whether an event constitutes event of frustration or force majeure event depends on the nature and provisions of the contractual agreement between the parties. See; Cricklewood Property & Investment Trust Ltd v. Leightons Investment [1945] 1 All ER 252; Attorney General of Cross River State v. Attorney General of the Federation [2012] LPELR- 9335 (SC); Global Spinning Mills Nig. Plc. v Reliance Textile Industries Ltd. [2017] LPELP 41433 (CA). See also Peter J. Mazzacano, ‘Force Majeure, Impossibility, Frustration & the Like: Excuses for Non-Performance; the Historical Origins and Development of an Autonomous Commercial Norm in the CISG’ (2011) 2 Nordic Journal of Commercial Law, 1 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1982895> accessed 15 June, 2020. It is worthy of note that the Pandemic has been held a force majeure event by a French Court. See Baker Mckenzie, ‘France: First Decision to Declare Covid-19 Outbreak as a Force Majeure Event’ (Maker Mckenzie 31 March, 2020) <https://www.bakermckenzie.com/en/insight/publications/2020/03/france-decision-declare-covid19-force-majeure> accessed on 10th May, 2020.

[7] Cliona Kelly, ‘Frustrating the Rights Out of You: The Doctrine of Frustration and Employment Contracts’ (2004) 4 U. C. Dublin L. Rev. 1.< https://www.researchgate.net/publication/273972890_Frustrating_the_rights_out_of_you_-_the_Doctrine_of_Frustration_and_Employment_Contracts > accessed on 15th  June, 2020.

[8] Denise M. Rousseau, ‘New hire perceptions of their own and their employer’s obligations: A study of psychological contracts’ (1990) 11 Journal of Organizational Behavior, 389-400. <https://doi.org/10.1002/job.4030110506 > accessed on 15th June, 2020.

[9] An employee would generally be unable to enforce a strict compliance with contract of employment where the provision of jobs or conditions under which he is expected to render his services have been impaired or impracticable by reason of change in law or government policy. It is a general principle of law that the law would not compel the performance of impossibility. See Ferguson v Wilson [1866] 2 Ch. App. 77; International Textiles Industries (Nigeria) Ltd v Aderemi [1999] 8 NWLR (Pt. 614] 268, [1999] LPELR- 1527 (SC) Justice Uwaifo JSC 38 – 39 [E] – [B].

[10] President Muhammadu Buhari, in the Presidential Addressed of 30 April, 2020, lifted the total lockdown imposed on Lagos State, Abuja and Ogun State and subsequently announced various measures on social distancing to reduce the spread of the virus. The President equally deferred to governments of various state for further and detailed measures that are compatible with the peculiarities of the respective states. See the Presidential address of 30 April, 2020 (Business Day, 30 April, 2020)  <https://businessday.ng/lead-story/article/lockdown-full-speech-by-president-muhammadu-buhari/> accessed on {28 May, 2020}, the full address of the Governor of Lagos State (Premium Times, 01 May, 2020)<https://www.premiumtimesng.com/coronavirus/393354-covid-19-sanwo-olu-gives-conditions-for-full-reopening-of-lagos-econmy.html> accessed on 28 May, 2020.

[11] Daniels v S.P.D.C Nig Ltd [1962] 1 SCNLRC 19; Olaniyan & Anor v Unilag & Anor [1985] 2 NWLR (Pt. 9) 599, 699 [f] – [g]; Imoloame v WAEC [1992] 9 NWLR (pt. 265) 303 at 317; C.B.N v Igwilo [2007] 4 – 5 SC 154.

[12] See Employee Compensation Act, 2010, s 73.

[13] This conclusion is based on deduction from the decided cases on the meaning of cause of action. It is settled law that a claimant must present an enforceable relief in order to invoke the jurisdiction of the court. See Thomas & Ors v Olufosoye [1986] 1 NWLR (pt. 18] 669 at 682; Egbe v Adefarasin [1987] 1 NWLR [pt. 47] 1; Yusuf v C.C.B Ltd [1994] 7 NWLR (pt. 359) 676; Society BIC S.A & Ors v Charzin Ind. Ltd. (2014) 4 NWLR (pt. 1398) 497. There seems not to be any enforceable right by an employee as a result of the directive to an employee to work remotely.

[14] Unity Bank v Olubiyi [2015] NWLR [pt. 7452] 203, 242; NPA v Aminu Ibrahim & Co & Anor [2018] LPELR-44464, Sanusi [36] – [38]. Failure to pay salary/benefit in this circumstance may well give right to right of action for recovery of arrears of salaries or earned benefit. See Mr. Abel Enokela v Mrs. Abolaji Osime & Anor Suit No NICN/AB/287/2012, Justice Shogbola, 16 – 17.

[15] Labour Act, CAP L1, Laws of the Federation of Nigeria, 2004, ss 15, 17.

[16] Although the Labour Act is a statute of limited application as it applies only to a worker as defined in Section 91 of the Act, the provisions of section 15 and 17 of the Act codify the general norms which are consistent with international best practices.

[17] The decision of the Court of Appeal in Unity Bank v Olatunji [2014] LPELR- 24027 appears to suggest that all variation of contract must be by mutual agreement and must be consequential on offer, acceptance and consideration. This particular authority, in our humble opinion, is not a size fit all. The decision in the case and other similarly authorities apply to a contract where both parties have equal bargaining power and element of consideration is constant. An employer in practice may not give any consideration or provide any incentive in order to vary terms of employment. It is therefore doubtful that the authority would be applied to a contract of employment (of service) with equal force particular in the case of variation that it based on the change in economic realities. An employee generally cannot be imposed on an unwilling employer. See Ridge v Baldwin ([1963] 2 All E.R 66, 71 Olaniyan v University of Lagos [1985] 2 NWLR [Pt. 9] 599; Ativie v. Kabelmetal (Nig.) Ltd (2008) 10 NWLR [Pt. 1098] 399, Justice Taba JSC 415 [C] – [G].

[18] Labour Act [n 15] s 7; International Labour Organization (ILO), Convention concerning the Protection of Wages, 1 July 1949, CO95, Art. 14.

[19] It is more or less for this reason that Governments in advanced capitalist countries implement externalities (in form of safety nets or social programme) to absolve the employers free enterprising decisions rather than direct interference in commercial decisions to address the impact of the Pandemic on employments. In the United Kingdom, for example, not less than four (4) legislations have been passed by the Parliament to address issues relating the safety, economy, businesses and employments. See Coronavirus Act, 2020, s 75, The Health Protection (Coronavirus, Restrictions) (England) Regulation 2020, See Astra Emir, ‘Covid-19 and Employment Law in the UK’ (UOPblog, 21 April, 2020) <https://blog.oup.com/2020/04/covid-19-and-employment-law-in-the-uk/ > accessed on {17th May, 2020}. This is a sharp contrast to the approach adopted by the Central Bank of Nigeria which restricted banks and other financial institution from retrenching employees in reaction to the economic change. See KPMG, ‘Government and Institution Measures in Response to Covid-19 (KPMG Nigeria 14 May, 2020) <https://www.google.com/url?sa=t&rct=j&url=https://assets.kpmg/content/dam/kpmg/xx/pdf/2020/04/government-and-institution-measure-in-response-to-covid-19-africa.pdf&ved=2ahUKEwjA79GF-YPqAhXi60AKHSbTCYkQFjADegAIBxACusg=AOvVaw1ICkri-_isJGPjG_BW3ykKF&cshid=1592228626350 > accessed on {15th June, 2020}; Abiola, Odutola ‘CBN, Bankers’ Committee Orders Banks not to lay-off any staff” (Nairametrics, 03 May, 2020) < https://nairametrics.com/2020/05/03/breaking-cbn-bankers-committee-order-banks-not-to-lay-off-any-staff/#:~:text=The%20Central%20Bank%20of%Nigeria,time%20or%20part-time).&text=CBN%20solicits%20the%20support%20of,the%20COVID-19%20pandemic.” > accessed on {15th June, 2020}. Cf. Ifeanyi Uddin, ‘How Not To Prevent Businesses From Furloughing Staff’ (Premium Times, 11 May, 2020)< https://opinion.premiumtimesng.com/2020/05/11/how-not-to-prevent-businessess-from-furloughing-staff-by-uddin-ifeanyi/ > accessed on {15th June, 2020}

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[20] Such a unilateral variation may however, in a clear case of arbitrariness and injustice, give rise to enforceable action and remedies by way of compensation. The National Industrial Court, for example, is empowered to award compensation or damages in disputes within the jurisdiction of the court. See National Industrial Court Act, 2006, s 19 (d).

[21] It is relevant to note that with regard to wages/salary, the general principle at common law is “no work, no pay”. An Employer, by this doctrine without more, may vary the obligation to pay wages or salary to the degree of productivity. This principle was firmly put in the Indian authority of Ramchandian v Indian Bank [1979] 1 LLN 179 thus “[T]he principle to be followed is ‘no work no pay’ and in order to earn his wages an employee will have to work.” This principle is however not without exception and may not be applicable where failure to work is beyond the control of the employee such as the lockdown. Employers therefore would be expected to weigh the circumstance for instance variation of his obligations on wages in the circumstance. A reduction in wages is arguable than total refusal to pay. Cf. Olatunbosun v Niser Council [1983] 3 NWLR [Pt. 80] 23; Spring Bank v Babatunde [2013] 1 ACELR 173, Justice Iyizoba 185 [27] – [30].

[22] Labour Act [n 15] s14; Protection of Wages Convention [n 15], Art 19.

[23] Ajayi v. Texaco Nigeria Ltd [1987] 3 NWLR [Pt.62]577. It is however unclear whether an employee has a cause or right of action to demand for a review of the varied terms where the conditions upon which is the variation is predicated have changed. The equity and fairness however demands that the variation should be reversed at the turn of events which warrant the variation.

[24] Iyase v UBTHMB [2000] 2 NWLR [Pt. 643] 45 Justice Ibiyeye JCA 60 [A].

[25] The employer in the circumstance has repudiated the obligations that are not yet ripe including future payment of the agreed salaries. There however two foreseeable steps or cause of action which the employee may pursue. First, he may terminate the relationship by notice of resignation then commence an action for constructive dismissal. We shall return to the possibility of this approach. The second principle is the so called ‘anticipatory breach’. The employee may simply file an action on the ground that the notice of the variation will constitute a breach of the agreement between the parties where he (employee) does not agree to the variation. It is doubtful that this cause would avail the employee in any material sense. The Supreme Court has held that employment related matter particularly issue of termination of employment does not fall within the concept of anticipatory breach. See Ajayi v. Texaco Nigeria Ltd [n 22] where Obaseki JSC quoted the dictum of Lord Blackburn in Mersey Steel and Iron Co. v Naylor Benzon and Co. [1888] 9 App cases 434.

[26] This position is inferred from the decision of the English Employment Appeal Tribunal in the case of Hart v St Mary’s School (Colchester) Ltd EKAT/0305/14/DM hptt//employmentcasesupdate.co.uk accessed 12 May, 2020. Cf. Wandsworth London Borough Council v D’Silva [1998] IRLR 193, Lord Woolf MR [31];

[27] The preceding position is based on the settled principle of law that no employee can be forced on an unwilling employer. See Texaco Nigeria Plc v Alfred G. Adegbile Kehinde [2001]6 NWLR [Pt.708] 224 Onnoghen JSC (as he then was) 228 – 229. The concluding position is based on the decision in Hart case [n 25]. Cf. Wright v North Ayrshire Council [2014] IRLR 4, Langstaff J [20]. It is important to note that aside the facts that the cited cases are not conclusive authorities of on constructive dismissal as it appears that the law is not settled, even in England, on what amount to constructive dismissal, the authorities are only of persuasive importance in Nigerian Courts. The position of the law on constructive dismissal is even more incoherent in Nigeria. See Ukoji v. Standard Alliance Life Assurance Co. Ltd. (2014) 47 NLLR (Pt. 154) 531; Cf. Modilim v United Bank for Africa Suit no NICN/LA/353/2012; Iziogba Bennet Abiodun v Ecobank SUIT NO: NICN/LA/387/2017.

[28]  This position was aptly put by the Court of Appeal in the case of New Nigeria Newspaper Limited v Atoyebi [2013] NGSC 2 Justice Orji-Abadua J.C.A held that: [T]he principle of law that where the terms and conditions of a contract of employment or service are specifically provided for by statute or regulations made thereunder, it is said to be a contract protected by statute and any person in that employment enjoys a special legal status over and above the ordinary, common law master and servant relationship. In matters of termination or discipline under such a contract, the procedure laid down in the applicable statute or regulations made thereunder must be religiously followed as any breach would render the exercise null and void”.

[29] Labour Act [n 15] s 20; International Labour Organization (ILO), Convention concerning Termination of Employment at the initiative of the Employer, 22 June 1982 C158, Art. 13; Institute of Health Ahmadu Bello University Hospital Board v Anyip [2015] 6 ACELR, Justice Chukwuma-Eneh JSC 41 [25] – [31].

[30] Peugeot Automobile Nigeria Limited V Oje [1997] 11 NWLR [Pt.530] 625. An employer who relies on redundancy in determination of employment relationship does not only has the burden of proving the particulars of the redundancy proffers, he equally risks the requirement of satisfying the principle of ‘First in Last Out’ (FILO). See Guinness (Nigeria) Ltd. v Agoma [1992] 7 NWLR [Pt.256] 728, 741.

[31] Labour Act [n 15] s 67, part II &III Factories Act, Cap. F1, LFN, 2004. See Occupational Safety & Health Convention, 1981 (No 155), Art. 16 (3). See IITA v Amrani (1994) 3 NWLR (Pt. 332)296 where the court held that the standard of the masters duty towards his servant is to see that reasonable care is taken. The scope of the duty extends to the provisions of safe fellow servants, safe equipment, safe place of work and safe access to it and a safe system of work. See also Latimer v AEC Ltd [1953] AC 643

[32] See the Presidential Task Force on Covid-19 Guidelines, (Nairametrics, 05 May, 2020)<www.nariametric.com/2020/05/01/fg-issues-guidelines-on-implementation-of-gradual-easing-of-lockdown-nationwide/> Accessed on{20th May, 2020}

[33] See 1999 Constitution of the Federal Republic of Nigeria (as amended) ss. 37, 42.

[34] International Labour Convention concerning Occupational Safety and Health of Employees, 3 June 1981 C155, Arts. 13, 19 (f).

[35] Labour Act [n 15] s 17.

* Partner, Habeeb Oredola (Barristers & Solicitors)

** A legal practitioner

*** Associate, Habeeb Oredola (Barristers & Solicitors)

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