By Elvis Evbaruovbokhanre Asia
Case: Ameenat Lawal v. Colenco Consulting Limited [1]
Judge: Justice E.D. Subilim
Date: 30/9/2024
Main Issues of Law
- Current Position of Law on Termination of Employment
- Proof of International Best Practices
- Right of Employee to Complain of Wrongful Termination After Acceptance of Terminal Benefits
- Damages for Wrongful Termination of Employment
Summary of Facts
The Claimant’s employment was terminated with payment of salary in lieu of notice, but no reasons were provided. Although the Claimant accepted the payment, they initiated legal action, arguing, among other things, that the termination was null and void for violating international best practices under the Termination of Employment Convention No. 158 of 1982 and the Termination of Employment Recommendation (No. 166).
Court’s Decision
The court held that the Defendant erred by terminating the Claimant’s employment without giving a valid reason. However, it clarified that acceptance of payment in lieu of notice rendered the termination wrongful but not null and void. The court awarded general damages of N3, 720, 000.00 (Three Million Seven Hundred and Twenty Thousand Naira) to the Claimant for wrongful termination.
Legal Principles Relied On
Current Position of Law Termination of Employment
It is no longer law that an employer can bring to an end any employment without giving any valid reason. While under common law, an employer has the unfettered right to bring to an end an employment contract/relationship without giving any reason whatsoever for doing so, there is now a change in paradigm under which this court has the power to apply international best practices like the Termination of Employment Convention No. 158 of 1982 and its Termination of Employment Recommendation (No. 166) to regulate termination of employment at the initiative of the employer. It has been held that irrespective of the employer’s right to hire and fire for any or no reason, the National Industrial Court of Nigeria currently recognizes that globally it is no longer fashionable in industrial relations law and practice to terminate an employment relationship without adducing any valid reason for such a termination.
Proof of International Best practices
The Termination of Employment Convention No. 158 of 1982 and its Termination of Employment Recommendation (No. 166) can be applied by this Court only as an international best practice. The rationale is that while ratified international instruments, conventions and treaties can be applied directly by this court in compliance with Section 254C (2) of the 1999 CFRN as altered, unratified international instruments, conventions and treaties such as the Termination of Employment Convention No. 158 of 1982 and its Termination of Employment Recommendation (No. 166) can at best only be applied as international best practices. And the application of international best practices is a question of fact as this court has held that if an employee desire to apply an international best practice such as Termination of Employment Convention No. 158 of 1982 and the Termination of Employment Recommendation (No. 166), then he must specifically plead and also prove it.
Right of Employee to Complain of Wrongful Termination after Acceptance of Terminal Benefits
Where an employee accepts salary in lieu of notice of termination of his appointment; he cannot be heard to complain later that his contract of employment was not validly determined.
Damages for Wrongful Termination of Employment
The National Industrial Court of Nigeria has moved away from merely awarding payment in lieu of notice as damages; the court is instead awarding substantial general damages to reflect the unlawfulness of a termination or dismissal.
Commentary
The decision aligns with the NICN’s current approach to employment termination, especially regarding the application of international best practices (IBP). The court correctly held that international standards, such as the Termination of Employment Convention No. 158 and Recommendation No. 166, must be pleaded and proved to be relied upon. This requirement is consistent with the Constitution and the National Industrial Court Act regarding the application of international norms.
However, there are inconsistencies in the court’s reasoning. If the new position of the law is that termination must be supported by valid reasons, why did the court insist on the further proof of convention No.158 and recommendation No. 166? It must be noted that, no NICN judgment has yet clarified how the convention and recommendation were proven as international best practices. It would have been more helpful if, beyond stating the requirement of proof, the court had provided guidance on how proof of international best practices (IBP) can be established, at least for other unratified conventions. The court’s implied suggestion that merely pleading ILO conventions suffice is problematic. It raises the question: Do international conventions and expert writings automatically attain the status of IBP without further evidence or analysis?
The court’s stance on the acceptance of terminal benefits also raises concerns. On the one hand, it ruled that an employee who accepts payment in lieu of notice cannot challenge the validity of the termination. On the other hand, it held that the termination was still wrongful and awarded damages. This reasoning creates uncertainty regarding the legal effect of waivers and is inconsistent with decisions of the Court of Appeal, which have consistently held that accepting terminal benefits precludes a claim for wrongful termination.[2]
Finally, though the court has been consistent in awarding general damages for wrongful termination of employment, it is important for a court to state the premise of the award. In the instant case, the court awarded N3, 720, 000.00 (Three Million Seven Hundred and Twenty Thousand Naira) against the Defendant for wrongful termination of employment without stating the premise and how it arrived at the award. This is expedient in view of the fact that the NICN is exercising a special jurisdiction in making these awards and not the general principles of award of damages in other cases. This would ensure consistency in labour law that is already a subject of uncertainties in many respects.
Elvis E. Asia is the Managing Partner of Law Future Partners and a PartneratBols Attorneys, Nigeria. He has an LLB, Ambrose Alli University; and LLM from the University of Lagos. He is a member of the Chartered Institute of Arbitrators, United Kingdom, Institute of Chartered Secretaries and Administrators of Nigeria and the Chartered Institute of Taxation of Nigeria. Elvis is the author of the book ‘Oil and Gas Insurance and Nigeria’s Local Content Policy’
Footnotes:
[1] SUIT NO: NICN /ABJ/365/2023. Available online at https://nicnadr.gov.ng/judgement/details.php?id=8906
[2] See EDUN v. NERDC & ANOR (2022) LPELR-58029(CA) and AKANDE v. IBB UNIVERSITY, LAPAI & ANOR (2020) LPELR-52552(CA)