Nigeria: "Not Strong Enough For The Job"

Last Updated: 13 August 2018
Article by Perchstone & Graeys

It is not unknown that from time to time 'life happens'. When it does, it could place a person in situations that can be quite life changing, sometimes in a very significant way. One of such situations is unexpected disability or health challenges. Thus, should anyone who finds himself in such a situation be made a subject of discrimination, including in the work place? Where such is the case, what would be the reaction of the Court? Would this differ where this factor is one occasioned by birth? The court in Dorothy Adaeze Awogu V. TFG Real Estate Limited (Suit No. NICN/LA/262/2013) attempts to address these points.

FACTS

Sometime in August 2012, Dorothy received an offer of employment from TFG Real Estate Limited (TFG) as a property consultant; she accepted, with a start date of September 10, 2012. On assumption of duty, Dorothy was placed under a line supervisor. According to the her, she was informed by her line manager that the reason she was employed was because of her looks, consequently, she would be required to flirt with people to convert them to clients. This she immediately declined. For this reason, Dorothy was constantly threatened with dismissal, ill treatment and abuse from her line supervisor, particularly on grounds of her genotype/medical condition (Sickle Cell Anaemia (SS)), which required her to visit the hospital from time to time.

Sometime in March 2013, Dorothy fell ill at her workplace and was admitted in the hospital for a few days. She was discharged on March 8, 2013, with instructions by the doctor to rest for two days to enable her recover fully. Whilst on her sick bed, she received several text messages from her line supervisor threatening to have her dismissed because she was 'SS'. On March 11, 2013, at the close of work, Dorothy's supervisor instructed her to proceed to a room for an exit interview. When she asked for a reason for the interview, she was forcefully dragged to the interview room and held for hours before the exit interview was conducted, and her employment abruptly terminated. Aggrieved, she instituted an action against the company, claiming, amongst other things, a declaration that the termination of her appointment on ground of her genotype is discriminatory, illegal and constitutes unfair labour practice; that she was unlawfully dismissed; ten million Naira as damages; payment of her one-month salary.

FINDING/DECISION

1. Whether the termination was discriminatory, illegal, null and void, and amounts to unfair labour practice.

The Court held that Dorothy had made copious allegations that her line manager instigated her dismissal on grounds of her SS gene, relying on transcripts of text messages/chats between them. In view of the nature of the allegations, the Court noted it incumbent on the company to call the line manager to personally debunk the allegations; a failure to do being fatal to its case. The Court held that the actions of the company through the line manager were not only dehumanizing but against the grains of dignity of labour; and sufficient to ground actions in fundamental right infringement and in tort. Thus, the Court awarded the sum of N2, 500, 000.00 (two million, five hundred thousand Naira) as damages for physical harassment, discrimination at work based on circumstance of her birth and false imprisonment.

2. Whether the appointment was terminated or dismissed.

The Court held that though the letter ending Dorothy's employment was titled: "Termination of Employment", the first paragraph stated that: "Further to our discussion today, please accept this letter as formal, written notice of your dismissal from TFG Real Estate LTD, effective 13th March 2013". Therefore, the letter implied that Dorothy was dismissed and not terminated. The Court further held that since dismissal ordinarily connotes gross misconduct, an attempt by the company to link Dorothy's dismissal to poor performance was untenable in law.

3. Whether the employment was terminated with adequate notice.

The Court rejected the company's submission that since the letter issued to Dorothy dismissed her from its employment with immediate effect, the letter constituted sufficient notice. Relying on Olayinka Kusamotu v. Wemabod Estate Ltd [1976] LPELR-1720(SC); [1976] 9 - 10 SC (Reprint) 254, the Court held thus: "even where...the employer has power to terminate the contract in his absolute discretion, the law enjoins the employer to give reasonable notice to the employee". In like manner, in the instant case, Exhibit C1/D1 in giving the defendant absolute discretion to terminate during probation the claimant's appointment without notice, cannot take away the requirement enjoined by law that reasonable notice must at least be given the claimant. This being so Exhibit C1/D1 in providing that the defendant can terminate the claimant's appointment during probation without notice amounts to an unfair labour practice provision; and I so find and hold".

4. Whether Dorothy was entitled to one month's salary as damages for breach of contract of employment

On this issue, the Court held that the employment contract between the Dorothy and the company expressly stipulates that "the notice period required is one month's written notice from either party", which means that the salary in lieu must equally be one month's salary in lieu of notice. Accordingly, the Court held that Dorothy was entitled to the payment of one-month salary in lieu and ordered that same be paid to her by the company.

COMMENTS

It is imperative to note that Nigerian law frowns at any form of discrimination against its citizens. Section 42 of the 1999 Constitution (as amended) guarantees a right to freedom from discrimination, including by reason of the circumstances of his birth. Therefore, while it is not in dispute that Dorothy had to grapple with health challenges which revolved around the circumstances of her birth, which may (or may not) have affected the day to day business activities of the company, that circumstance ought not to have been made a subject of discrimination, victimization, and ultimately dismissal by the company.

International best practice requires that employees are afforded equal opportunities, equal access and given equal treatment. In Georgina Ahamefule v. Imperial Medical Centre & Dr Alex Molokwu, Union of Shipping, Clearing and Forwarding Agencies Workers of Nigeria v. Management of Transaltic Nigeria Limited, Suit No: ID/1627/2000, the plaintiff challenged the termination of her employment as an auxiliary nurse on the grounds of her HIV-positive status. The Court held the termination to be "illegal, unlawful, and based on malice and extreme bad faith". The Defendant was directed to pay N5, 000,000.00 (five million Naira) in general damages and N2, 000,000.00 (two million Naira) as compensation for conducting a HIV test on her.

Consequently, bearing in mind that the fundamental rights of Nigerian citizens are sacrosanct and guaranteed under the Nigerian Constitution, it is in the best interest of employers to ensure their policies and procedures cannot be read to be discriminatory, as this may expose it to an action similar to the one in question.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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