In employer and employee relationships just like in any relationship, disputes are bound to arise and where the dispute are not properly managed it may lead to the termination of employment by either the employer or the employee. The law is well settled that if, where there is an ordinary contractual relationship of master and servant, the master terminates the contract the servant cannot obtain an order of certiorari or reinstatement. If the master rightfully ends the contract, there can be no complaint: if the master wrongfully ends the contract then the servant can pursue a claim for damages.” Employment with Statutory Flavour , however, stands on a different footing from an ordinary master and servant relationship. This work is particularly concerned and focused with the position of the law with respect to the termination of contract of employment with statutory flavour .
Generally, Determination of contract of employment can be in four ways vis-à-vis:
1. By Dismissal
2. By agreement.
3. Operation of the law
4. By Termination which can be in three forms:
a. Termination of master and servant. Contract of employment
b. Termination of employment at will
c. Termination of employment with. statutory Flavour.
An employment is said to have a statutory flavour when the appointment and termination 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 governed by the terms under which the parties agreed to be employer and employee. In the event of termination strict adherence must be according to the statute creating the employment for statutory provisions and it cannot be waived as was held in Menakaya v. Menakaya (2001) 16 NWLR pt 738 pg 203. Also, where the conditions are derived from Statutory provisions it invests the employee with a legal status than the ordinary one of master and servant. See, Balogun v. University Of Abuja (2002) 13 NWLR (PT 783) 42 at 53.
For an employee to effectively claim that his or her employment is coated with statutory flavour and be terminated according to its provisions, the employment must:
1. Have statutory reinforcement or at any rate, be regarded as mandatory.
2. Be directly applicable to the employee or persons of his cadre
3. Be seen to be intended for the. protection of that employment : and
4. Have been breached in the course of determining the employment, before they can be relied on to challenge the validity of that determination. See idoniboyeobuv.N.N.P.C(2003)2NWLR (PT. 805) 589 at 624 paras C-E.
An employment which is protected by statute must be terminated in the way and manner prescribed by the relevant statute and any other manner of termination inconsistent with the statute will be null and void and of no effect. Where an appointment is not governed by any statutory provision, it does not enjoy statutory provision and cannot be said to have statutory flavour notwithstanding the fact that the organization or institution is a creation of statute or is a statutory corporation.
It is pertinent to note that, the fact that an organization is a statutory body does not mean that the conditions of service of its employees are protected by statute. The employment must be provided for in a statute as well as the conditions and service agreement. See, Nigerian Gas Company Ltd v. Dudusola (2005) 18 NWLR pt 957 at pg 320.
One would ask, what are the remedies available for an employee who is working under an employment with statutory flavour, when terminated unlawfully?
The traditional common law rule which has been adopted and applied in many decisions of the courts in Nigeria is that the courts will not grant specific performance or reinstatement in respect of breach of contract of employment rather it will grant damages, as the court cannot foist a willing employee on an unwilling employer and vice versa. See Patrick Ziideeh v. River State Civil Service Comm. (2007) 3 NWLR (pt. 1022) 554.
Thus, as a general rule, specific performance or reinstatement is not ordinarily the remedy for breach of contract of service. However, special circumstances will be required before such a declaration is made and its making will usually be in the discretion of the court. Such special circumstances have been held to arise where the contract of employment has a legal or statutory flavour, thus putting it over and above the ordinary master and servant relationship.
Where an employment protected by statute is terminated unlawfully, the remedy is to declare such termination null and void and to reinstate the employee to his former position. See. Olaniyan v. University of Lagos (1985) 2 NWLR (PT. 9) 599 (SC), iderima. v. R.S.C.S.C (2005) 16 NWLR (PT.951) 378 (SC).
About the author :
Ikedinobi Uche Emmanuel is a 300 level law student of Nnamdi Azikiwe University. He is a legal researcher and author.
For knowledge and Justice