The Supreme Court of Nigeria has over the years reiterated the common law principle that in private employment contracts, an employer has the right to hire and fire an employee and need not give any reason whatsoever to justify such termination. This has been established in a plethora of Supreme Court judgments. In FAKUADE V. O.A.U.T.H (1993) 5 NWLR (PT.291) 47, the Supreme Court held that:
"I think the trial court was right. But generally speaking, a master can terminate the contract of employment with his servant at any time and for any reason or for no reason at all, provided the terms of the contract of service between them are complied with. The motive which led an employer to lawfully terminate his servant's employment is not normally a relevant factor and the court will have no business with such motive but only to give effect to the contract of service between the parties see Taiwo v. Kingsway Stores Ltd. (1950) NLR 122; Nwangwu v. Nzekwu (1957) SCNLR 61; (1957) 2 FSC 36; Amodu v. Amode & Anor (1990) 5 NWLR (Pt.150) 356)."
Also, in BABATUNDE AJAYI v.TEXACO NIGERIA LIMITED & ORS (1987) All N.L.R. 471, the Supreme Court held inter alia that in an ordinary case of master and servant relationship, a master can terminate the contract with the servant at any time with or without reasons at all, provided the termination is in accordance with the terms of the contract. An employer always deserves the right to terminate the claimant's employment under the law once the conditions in the terms of employment are met.
In recent times, however, the National Industrial Court of Nigeria (NICN) seems to be departing from the old laid down position of the Supreme Court. The NICN in the case of EBERE ONYEKACHI ALOYSIUS V DIAMOND BANK PLC. (2015) 58 N.L.L.R 92 dismantled the earlier principle of law that an employer can terminate an employee for a bad reason or no reason at all. The National Industrial Court held in this case as follows:
"Flowing from the above, I find that it is now contrary to international labour standard and international best practice and, therefore, unfair for an employer to terminate the employment of its employee without any reason or justifiable reason that is connected with the performance of the employee's work. I further hold that the reason given by the Defendant for determining the Claimant's employment in the instant case, which is 'service was no longer required' is not a valid one connected with the capacity or conduct of the claimant's duties in the Defendant Bank. In addition, I hold that it is no longer conventional in this twenty-first-century labour law practice and industrial relations for an employer to terminate the employment of its employee without any reason even in private employment"
Considering the principle of judicial precedent wherein a court in Nigeria is bound by the decision of a higher court, this is quite a bold move by the NICN. In justifying its decision in EBERE ONYEKACHI ALOYSIUS V DIAMOND BANK PLC., the NICN stated further that:
"However, the Termination of Employment Convention, 1982 (No. 158) and the Recommendation No. 166 regulates termination of employment at the initiative of the employer. Article 4 of this Convention requires that the employment of an employee shall not be terminated unless there is a valid reason for such termination connected with his capacity or conduct or based on the operational requirements of the undertaking, establishment or service. The Committee of Experts has frequently recalled in its comments that; the need to base termination of employment on a valid reason is the cornerstone of the Convention's provisions. This is the global position on employment relationship now. It is the current International Labour Standard and International Best Practice. Although this convention is not ratified by Nigeria; but since March 4, 2011 when the Constitution of the Federal Republic of Nigeria, 1999 (Third Alteration) Act, 2010 came into effect, this Court has the power under the Constitution to apply International Best Practice and International Labour Standard to matters like this by virtue of section 254C (1) (f) and (h) of the constitution as amended, this Court can now move away from the harsh and rigid Common Law posture of allowing an employer to terminate its employee for bad or no reason at all"
It is trite that the National Industrial Court of Nigeria is vested with exclusive jurisdiction as it relates to labour and employment matters in Nigeria. it is equally settled that the NICN is endowed with generic powers to have recourse to international best practices when settling disputes arising from labour and employment matters in Nigeria. Section 254(C)(1)(f) and (H) of the Constitution (Third Alteration) Amendment Act, 2010 states thus:
"(I) Notwithstanding the provisions of sections 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters;
(f). Relating to or connected with unfair labour practice or international best practices in labour, employment and industrial relation matters
(h). Relating to, connected with or pertaining to the application or interpretation of international labour standards"
Also, Section 7(6) of the National Industrial Court Act, 2006 states thus:
"The court shall, in exercising its jurisdiction or any of the powers conferred upon it by this Act or any other enactment or law, have due regard to good or international best practice in labour or industrial relations and what amounts to good or international best practice in labour or industrial relations shall be a question of fact"
The cumulative effect of the provisions of Section 254(C)(1)(f) and (H) of the Constitution (Third Alteration) Amendment Act, 2010 and Section 7(6) of the National Industrial Court Act, 2006 is that the NICN is indeed within its powers as it regards to the use of the good or international best practice in labour and industrial provisions.
However, Section 12 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) stipulates that no treaty between the Federation and any other country shall have the force of law except to the extent to which any such treaty has been enacted into law by the National Assembly. Meanwhile, the Termination of Employment Convention, 1982 has not been ratified in Nigeria i.e. not yet enacted into law by the National Assembly, and therefore, the decision in EBERE ONYEKACHI ALOYSIUS V. DIAMOND BANK PLC cited above can also be argued to be in contravention of Section 254(C)(2) of the Constitution (Third Alteration) Amendment Act, 2010.
The court held in the case of GENERAL SANI ABACHA V CHIEF GANI FAWEHINMI (1996)9 NWLR (Pt 475)710 that an International Convention, Treaty or Protocol cannot be enforced in Nigeria unless the same has been ratified by Nigeria.
Conclusively, the tides as it relates to the principle that he who hires can fire seems to be changing rapidly and the NICN is at the forefront of the movement as the court is insistent on upholding the principles of good or international best practice in labour and industrial provisions. Therefore, the termination of employees' appointment without any reason or bad reason may now warrant the sanction of the court in Nigeria in line with recent decisions of the National Industrial Courts of Nigeria upholding the best international labour practices unless some of these recent decisions of the NICN are upturned on appeal by the higher court, specifically, the Court of Appeal, which is now the court of final arbiter in respect of labour and employment matters in Nigeria
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