To be candid, employees in a private establishment in Nigeria are working at the mercy of their employers. The employer s adopt the Yoruba adage that says, ‘ila kii ga ju onire lo’ meaning that no matter how tall Okro plant is , the farmer bends it with ease to pluck its fruits’ . This brings us to the legal perspective of an employer vis-à-vis employee relationship in a private employment.
TYPE OF EMPLOYMENT
There are two types of employment:
1. Employment without Statutory flavour
2. Employment with statutory flavour
EMPLOYMENT WITHOUT STATUTORY FLAVOUR
This difference is clearly explained in the case of C.B.N V. Igwillo (2007) All FWLR part 397 Sc page 1385 at pg 1401 parac as follows;
‘An employment is said to have statutory flavor when the appointment is protected by statute or laid down regulations made to govern the procedure for employment and discipline of an employee. Any other employment outside that category is govern by the terms under which the parties agreed to be master and servant ’
The import of the decision of the Supreme Court above is that an employer in a private employment is the MASTER while an employee is the SERVANT. So, the relationship between the employer and employee in a private employment is regulating largely by their terms of contract.
These terms of employments are contained in the policy of the company. Even though the terms the rein are solely drafted by the employer without the employee’s input, yet once he accept s and signs the offer , then it becomes binding on him .
WHAT IF THE TERMS ARE ONE SIDED AND HARSH ON THE EMPLOYEE?
No matter how harsh a law is, it will remain a good law until it is repealed. It is not the function of the court to rewrite an agreement for parties but rather to give effect to the letter and spirit of the agreement. If an employee agrees with his employer that he will be working for 22 hours in a day, so be it.
CAN A DEDICATED EMPLOYEE’S EMPLOYMENT BE WRONGFULLY TERMINATED WITHOUT ANY REASON? OR CAN COURT ORDER REINSTATEMENT IN AN EMPLOYMENT WITH PRIVATE ESTABLISHMENT?
A friend of mine working for a private firm called me some months ago and he was very sad when he narrated his ordeal. According to him, he has been working for a company for some years and he was very dedicated. He said that he had the feeling that his employer wanted to wrongfully dismiss him. He asked me what his rights were because he had done a lot for the company. I told him that I do not know but what I do know is that his employer has the right to dismiss him for no reason at all. He asked me if I was kidding then I told him that if I was kidding then I learnt it from the Supreme court case of Ativie V. KNL (2008) vol 8 MJSC 82 page 99 para G-A where the court held as follows:
“The law is settled that the court will not compel an unwilling employer to retain any worker. Similarly, an employer is not bound to give any reason for terminating the appointment of a servant where such employment is not one with statutory flavour ’
DIFFERENCE BETWEEN WRONGFUL DISMISSAL AND UNLAWFUL DISMISSAL?
The dismissal of an employee in a private establishment can only be, at worst , wrongful, which can lead to award of damages against the employer, however, the dismissal can never be unlawful which can lead to reinstatement.
Reasons why employers in private companies prefer to dismiss their employee without giving reason.
It is safer for an employer to terminate the employment of an employee by simply stating that his service is no more required than stating the reason if it borders on allegation of fraud or any criminal matter. This is because if an employee is alleged for any criminal related matter he must be given fair hearing to explain his own side in line with provision of the constitution. This is to avoid future litigation as to whether the dismissal is wrongful or otherwise.
However, where the employment policy of a company provides ways and procedure of terminating the employment of an employee then that must be followed.
The only remedies available to an employee of a private company that is wrongly terminated are damages, his benefits in the company and areas of salary if there is any.
EMPLOYMENT WITH STATUTORY FLAVOUR
Most of the civil service employment is with statutory flavour, which means that the appointment is protected by statute or laid down regulations made to govern the procedure for employment and discipline of an employee.
Where a civil servants appointment are unlawfully terminated without following the laid down procedure, the court will order reinstatement of such an employee in addition to award of damages against his employer.
WHEN CAN A DISMISSED CIVIL SERVANT SEEK REDRESS IN COURT?
Seeking redress by a civil servant against unlawful dismissal has time limitation. Once it is a day longer than 3 months after the termination of his appointment then the action is statute barred. This means that his case could not be entertained in court and it is bound to be dismissed if filed in court. This is the provision of section 2 a of public officers’ protection Act :
Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the following provisions shall have effect ‑
LIMITATION OF TIME
(a) the action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within THREE MONTHS next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof:
In conclusion, it is clear from the above that law protects the employment of a civil servant while the relationships between employers/ employees in a private company are regulated by their agreement.
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