Introduction
The relationship between an employer and an employee rightly described as a master-servant relationship can be said to create a superior/inferior relationship due to the asymmetric bargaining power between the employer and the employee. This asymmetry which tilts significantly in favour of the employer becomes more pronounced in a developing economy like Nigeria with high unemployment rate. This creates a situation where some employers may be inclined to impose unfair working conditions on the employees who most times feel hapless in the circumstance due to very limited competitive alternative employment. It was due to such practices that laws against unfair labour practices were introduced into international and national labour jurisprudence to create a safer and more equitable work environment. The concept was then introduced into Nigerian law by the Third Alteration Act of the Constitution of the Federal Republic of Nigeria, 1999 ("the Constitution").
This article seeks to review the concept of unfair labour practices under Nigerian law and examine through decided authorities how the courts have applied the concept to regulate the relationship between the employer and the employee and ensure a decent and safer workplace for all.
Meaning of Unfair Labour Practices
According to the National Industrial Court in a judgment delivered on 4th October 2024 in the case of Sulyman Kolawole Bello v. Vixen Enterprises Limited & Anor.,1 the goal of labour law is to ensure that no employer can be allowed to impose–and no worker can be allowed to accept–conditions of work which fall below what is understood to be a decent threshold in a given society at a given time. Thus labour law is not just a means of regulating the exchange between labour and capital as civil or commercial law does with respect to civil or commercial contracts; rather, it is a means (indeed the principal means) of operationalizing what the International Labour Organization (ILO) defines as'decent work',2 which, in addition to protecting the worker, calls for the respect of democracy in overall labour relations, including at the work-place. It is based on this principle of "decent work" that the concept of unfair labour practice is built. This concept was first introduced into the Nigeria labour law jurisprudence in 2010 by the Third Alteration Act of Section 254C(1)(f) of the Constitution which granted the National Industrial Court of Nigeria (NICN) jurisdiction over matters "relating to or connected with unfair labour practice or international best practices in labour, employment and industrial relation matters."
Neither the Constitution nor any extant statute in Nigeria has defined what is or what constitutes unfair labour practice. However, the NICN in Godwin Okosi Omoudu v. Professor Aize Obayan & Ors.,3 gave some insight into the factors that should be considered in trying to establish or define unfair labour practices when it held as follows:
When it comes to unfair labour practice simplicity (sic), as distinct from international best practices in labour, the only burden placed on the claimant is to prove unfair labour practice against himself: it seems not necessary, to prove what obtains in foreign jurisdictions, though doing so may make it more persuasive. Once the claimant establishes unfair labour practice on himself against the defendant, it becomes the duty of the Court to use its objective criterion of what is fair to arrive at a decision... where an employer acts outside of the pale of bona fide i.e. within the pale of mala fide, unfairness, vindictiveness and victimization, as is the case in the instant suit, then the equitable jurisdiction of the Court, which enjoins this Court to do away with the rigidity of common law in preference for the rules of equity [see section 15 of the National Industrial Court Act 2006], must necessarily be called to aid and assuage the hapless employee.' In specifically giving this Court jurisdiction over unfair labour practices, section 254C [1] of the 1999 Constitution enjoins this Court to take a closer look at the labour practices of employers [even if they are internal] in order to ascertain the fairness or otherwise of those practices. And once found to be unfair, the expectation of the law is that the labour practice in question must then be remedied as may be just under the law. In this wise, the recognition of exceptions to the rule of judicial non-interference when it comes to the issue of, say, promotion at workplace by other common law jurisdictions such as India commends itself to this Court over unfair labour practices. Like I noted earlier, the essence of this Court is not just "the enforcement of mere contractual rights but for preventing labour practices regarded as unfair [for which a vindictive suspension and a vindictive denial or refusal of promotion are but examples] and for restoring industrial peace" at the workplace. This Court when adjudicating must determine the 'rights' and 'wrong' of a claim made; and in doing so, the Court is undoubtedly free to apply the principles of justice, equity and good conscience.
Flowing from the above, whatever definition one may have for unfair labour practice, at the base of it is the concept of fairness, justice and equity. While there is no statutory definition of the concept of unfair labour practice in Nigeria; the term has been generally defined to mean practices that do not conform to best practice in labour circles as may be enjoined by local and international experiences. It consists of acts or omissions in employment relationships that are considered unjust, inequitable, oppressive and highly unconscionable, including grave breaches of employees' rights.4
It should however be noted, as was conceded by the then Deputy President of the Industrial Court of South Africa D B Ehlers, that "unfairness" has a very wide meaning, it is just about impracticable if not impossible to compile a list of the unfairnesses that are conceivable. The question whether an unfairness exists can only be decided by considering all the circumstances surrounding a particular alleged "unfair labour practice"' 5 Given that what constitutes unfair labour practice is not statutorily defined in Nigeria, what constitutes unfair labour practice is a question of facts. Accordingly, to determine whether a particular act or omission in the work place constitutes unfair labour practice regard must be had to the facts of a given case and the surrounding circumstances.6 Accordingly, in determining what constitutes unfair labour practice, the courts have been enjoined to consider not just the applicable legal principles but also other psychological, sociological, economic and political factors that can help to shed light on whether a particular act or omission constitutes unfair labour practice.7
Definition of Unfair Labour Practice in Other Jurisdictions
Notwithstanding the fluidity of the concept of unfair practice, some countries have made attempts to define unfair labour practice. For example, in South Africa section 186 (2) of the Labour Relations Act defines "unfair labour practice" as "any unfair act or omission that arises between an employer and an employee involving: (a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee; (b) unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee; (c) a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement; and (d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000 (Act No. 26 of 2000), on account of the employee having made a protected disclosure defined in that Act." Furthermore, section 4(8) of South Africa's National Minimum Wage Act (No.9) of 2018 states that "It is an unfair labour practice for an employer to unilaterally alter wages, hours of work or other conditions of employment in connection with the implementation of the national minimum wage...."
In India, sections 25T and 25U of the Industrial Disputes Act (IDA), 1947 criminalises unfair labour practice and prescribes a punishment of imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees or with both for anyone who commits unfair labour practices. The IDA goes ahead to list in its Fifth Schedule 24 major acts on the part of employers that constitute unfair labour practices, including: dismissing or interfering with the right of workers on account of trade union activities; establishing an employer sponsored trade union for workers; dismissing an employee by way of victimisation or in bad faith or based on false allegations or in utter disregard of the principles of natural justice in the conduct of domestic enquiry or with undue haste; transferring a workman mala fide from one place to another under the guise of following management policy; showing favouritism or partiality to one set of workers regardless of merit; employing workmen as casuals or temporaries and to continue them as such for years with the object of depriving them of the status and privileges of permanent employment and refusing to bargain collectively in good faith with recognized trade unions. The IDA also lists 8 unfair labour practices on the part of workers such as advising or actively supporting or instigating any strike deemed to be illegal under the Act; forcing workers to join or not to join any trade union; refusing as a recognized trade union to bargain collectively in good faith with the employer etc.
Unfair Labour Practice in Nigeria
Given the lack of a statutory definition of what constitutes unfair labour practice in Nigeria, unfair labour practice, viewed through the prism of the realists' School of Thought, is whatever the courts say it is. Based on a review of some of the judicial authorities in Nigeria, the following have been held to constitute unfair labour practices in Nigeria:
Denial of Leave
In the case of John Mowette v. O.K Isokariari & Sons Nigeria Limited8 the Claimant brought an action against the Defendant at the NICN, Port Harcourt Division, claiming among other things that it amounted to unfair labour practice for the Claimant to work with the Defendant from 1st December 2017 till December 2022 whilst being only permitted to go on leave for a cumulative period not exceeding 6 days. The trial judge, Hon. Justice M. A. Hamza in a considered decision agreed with the Claimant and held relying on the case of Johnson v. Law Union and Rock Insurance,9 that the failure of the Defendant to accord the Claimant with opportunity to enjoy his annual leave for over a period of five (5) years was an unfair Labour Practice.
Failure to pay an employee
Another issue which came up for determination in the case of John Mowette v. O.K Isokariari & Sons Nigeria Limited10 was whether it amounts to unfair labour practice for an employer to fail to pay an employee his earned salary. The court again agreed with the Claimant and held that it amounted to unfair labour practice to withhold the Claimant's earned salaries from August 2021 till December 2021 when the Claimant left the employment of the Defendant. The court in coming to its decision relied on the case of Onumajuru v. Ekocorp Plc & Anor.,11where it was held as follows:
By the provisions of section 15 of the Labour Act, wages shall become due and payable at the end of each period for which the contract is expressed to subsist, that is to say, daily, weekly or at such other period as may be agreed upon: Provided that, where the period is more than one month, the wages shall become due and payable at intervals not exceeding one month.
It is therefore a breach of contract of employment for the employer to have failed to pay the agreed salary, at the agreed interval of monthly.
Unfair Labour Practice is any of various acts by an employer or labour organization that violate a right or protection under applicable labour laws (Merriam webster Dictionary @ https://www.merriam-webster.com/legal/unfair%20labor%20practice accessed 10th August 2022.)
I find it an unfair labour practice, for an employer (the 1st Defendant) to fail to pay an employee (the Claimant) for a continuous period of five months, in which the employee worked. I so hold.
Unilateral reduction in salary
In the case of Mr Olusola Idowu Bellov. Pacific Diagnostics Limited,12 the Claimant complained among other things that another company by name Pyramid Health Care Ltd, which was not the employer of the Claimant but acted on behalf of the Defendant, by letter dated 28th May 2020 effected a 40% pay cut on the Claimant's May 2020 and June 2020 salaries. The Claimant did not agree with the purported pay cut and refused to sign or acknowledge the said letter. The Defendant admitted in its pleadings that the 40% pay cut was a unilateral decision of its executive team which the Claimant was not part of. The Claimant therefore contended that the 40% pay cut was not only a breach of contract but also a grave unfair labour practice. The NICN agreed with the Claimant and held that the deduction was not only an unfair labour practice but also a breach of Section 5(1) of the Labour Actwhich prohibits deductions from an employee's salary without his consent.
Failure to give reasons for termination of employment
In Sulyman Kolawole Bello v. Vixen Enterprises Limited & Anor.,13 the NICN held that the failure of the Defendants to give reasons for the termination of the Claimant's employment in the termination letter constitutes unfair labour practice, contrary to international best practices.
In addition to the aforementioned cases, the following acts have also been found to be unfair labour practices: the unfair summary dismissal/termination of an employee;14 the imposition of sanctions and penalties on an employee as a result of a disciplinary procedure that did not follow the company's rules, regulations and guidelines;15 failure to issue an employee a contract of employment;16 maintaining an employee on the same salary for years and handing an employee from one supervisor to the other without notice.17
It is important to note that the range of unfair labour practices are inexhaustive. As the jurisprudence develops, more unfair labour practices, whether by the employer or the employee, are likely to be classified as unfair labour practices. What should however, be noted is that where the parties agree on the procedure for the implementation and termination of their contract of employment such procedure would not be declared to be an unfair labour practice if it turns out to be unfair to one party or the other.18
Once the court finds that there has been an unfair labour practice, it should award compensation to the victim of such practice even where none is prescribed by law. This was the position of the court in Godwin Okosi Omoudu v. Professor Aize Obayan & Ors.,19 where it stated as follows:
The principle or rule of unfair labour practice, I think, with the current state of industrial relations law in Nigeria, has assumed the status of such notoriety that this Court, being a labour Court, can take judicial notice of it... being that it is a constitutional provision that confers on the Court the powers to look into issues of unfair labour practices and grant appropriate remedies even if not claimed by virtue of section 254D [2] of the 1999 Constitution [as altered] and sections 14 & 19 [d] of the National Industrial Court Act 2006, this Court is eminently empowered to grant damages as a relief for unfair labour practice of unfair dismissal.... In this instance, section 254C [1] [f] of the 1999 Constitution [as altered] creates an entirely new concept and right of "unfair labour practice", which is both at the same time foreign to the common law concept of master and servant relationship and the industrial relations jurisprudence hitherto existing in Nigeria. This new right, when infringed, it is naturally and logically expected that there must be a remedy; or else, the whole purpose of creating the right would have been defeated. If no specific remedy is directly created by the Constitution, the Court is bound to inquire into what obtains from the jurisdiction where this concept has been borrowed and introduced into Nigeria as guidance. The Court is therefore bound to give the provision a broad interpretation that construes it as both accommodative of granting a right and imposing a remedy for its breach.20
CONCLUSION
The goal of labour and indeed the laws on unfair labour practice is to create a decent, dignified and fair working environment for both the employer and the employee. Thus, once the court finds that certain working conditions are unfair, they would be struck down by the court under its equitable jurisdiction so as to ensure that the workplace is safe, mentally, physically, socially, economically and in all respects for all.
Footnotes
1. Per Honourable Justice E. A. Oji in Suit No: NICN/LA/305/2021 - Sulyman Kolawole Bello v. Vixen Enterprises Limited & Anor., available at https://www.nicnadr.gov.ng/judgement/judgement.php?id=9236# accessed on 17/12/24.
2. According to the ILO "Decent work sums up the aspirations of people in their working lives. It involves opportunities for work that is productive and delivers a fair income, security in the workplace and social protection for all, better prospects for personal development and social integration, freedom for people to express their concerns, organize and participate in the decisions that affect their lives and equality of opportunity and treatment for all women and men." See https://www.ilo.org/topics/decent-work accessed on 19/12/24.
3. Per Hon. Justice B.A. Adejumo, OFR in SUIT NO. NICN/AB/03/2012 - Godwin Okosi Omoudu V. Professor Aize Obayan & Ors. Available at https://nicn.gov.ng/view-judgment/694 accessed on 17/12/24.
4. See, Suit No: NICN/LA/110/2020 - Obembe Kikelomo v. First Royal Oil Nig. Limited, available at https://nicnadr.gov.ng/judgement/judgement.php?id=9222# accessed on 17/12/2024.
5. See, https://journals.co.za/doi/pdf/10.10520/AJA0259188X_1335 [accessed on 17/12/2024].
6. See, J. O. Amaje and S. I. Nwankwo, "Exploring Unfair Labour Practices in a Workplace", International Journal of Academic Health and Medical Research (IJAHMR) Vol. 5 Issue 10, October - 2021, pp. 82-89 at 82.
7. See, the opinion of B J Parsons the former president of the Industrial of South Africa who said "The concept of "unfair labour practice" is an innovation in our law and is defined in very wide terms in the Act... The general courts must apply legal principles in their hearings and findings, but in most cases, sociological, economic, political, psychological and other aspects are as important as the legal aspect." Available at https://journals.co.za/doi/pdf/10.10520/AJA0259188X_1335 [accessed on 17/12/24].
8. Suit No: NICN/PHC/164/2022 - John Mowette v. O.K Isokariari & Sons Nigeria Limited. Available at https://www.nicnadr.gov.ng/judgement/judgement.php?id=9072# accessed on 17/12/24.
9. Suit No. NICN/ABJ/45/2016 Johnson v. Law Union and Rock Insurance. Available at https://nicnadr.gov.ng/judgement/details.php?id=4612&party=Mr.%20John%20Tanimola%20Johnson%20-VS-%20Law%20Union%20and%20Rock%20Insurance%20Plc accessed on 19/12/2024.
10. Suit No: NICN/PHC/164/2022 - John Mowette v. O.K Isokariari & Sons Nigeria Limited. Available at https://www.nicnadr.gov.ng/judgement/judgement.php?id=9072# accessed on 17/12/24.
11. Suit No: NICN/LA/49/2020 Onumajuru v. Ekocorp Plc & Anor., available at https://www.nicnadr.gov.ng/judgement/details.php?id=7313 accessed on 19/12/24.
12. Suit No: NICN/LA/170/2021 - Mr Olusola Idowu Bellov. Pacific Diagnostics Limited., available at https://nicnadr.gov.ng/judgement/judgement.php?id=9210 accessed on 17/12/24.
13. Suit No: NICN/LA/305/2021 - Sulyman Kolawole Bello v. Vixen Enterprises Limited & Anor. Available at https://www.nicnadr.gov.ng/judgement/judgement.php?id=9236# accessed on 17/12/24.
14. See, Suit No. NICN/AB/03/2012 - Godwin Okosi Omoudu v. Professor Aize Obayan & Ors. Available at https://nicn.gov.ng/view-judgment/694 Accessed on 17/12/2024 accessed on 17/12/24.
15. See, Suit No: NICN/LA/580/2018 – Mrs. Olumagin v. TEPNG Available at https://www.nicnadr.gov.ng/judgement/details.php?id=7906 accessed on 19/12/24.
16. See, Suit No: NICN/LA/110/2020 - Obembe Kikelomov First Royal Oil Nig. Limited Available at https://nicnadr.gov.ng/judgement/judgement.php?id=9222 accessed on 19/12/24.
17. See, Odah Ezekiel& 3 Others v.Total E & P Nigeria Ltd& 5 OthersUnreported Judgment in Suit No.NICN/LA/663/2016 delivered by Hon. Justice E. A. Oji on 30thJanuary 2024.
18. See, Oak Pensions Ltd & Ors v. Olayinka (2017) LPELR-43207(CA) (pp 39 - 42 Paras G - B) where the Court of Appeal stated that: "Unfair labour practice or international best practices may arise in the course of employment or in a trade dispute or industrial relations, but cannot rightly and properly be imported into the terms and conditions of a contract of service freely entered into for a servant-master relationship. The rights, entitlements and obligations of the parties in such a relationship, are in law and equity, to be and are governed by the terms and conditions voluntarily agreed to by the parties and not by sentimental conjunctures of what is fair or unfair conduct in the relationship in complete disregard of the terms and conditions. The issue of unfair labour practice or international best practice would not arise in the exercise of a right vested in the parties by their own voluntary agreement on how to end or determine the relationship between them...."
19. Per Hon. Justice B.A. Adejumo, OFR in Suit No. NICN/AB/03/2012 - Godwin Okosi Omoudu v. Professor Aize Obayan & Ors., available at https://nicn.gov.ng/view-judgment/694 accessed on 19/12/24.
20. See also Suit No: NICN/PHC/164/2022 - John Mowette v. O.K Isokariari & Sons Nigeria Limited., available at https://www.nicnadr.gov.ng/judgement/judgement.php?id=9072# accessed on 17/12/24.
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