On the 21st day of October, 2020, the visitor of EBSU and Governor of Ebonyi State, His Excellency Engr. Dr. David Nweze Umahi FNSE, FNATE said in accordance with the powers vested in him, “he hereby declare the reopening of Ebonyi State University for immediate commencement of academic and non-academic activities”. In his declaration he said:
“in order to ensure that academic and non-academic union activities does not negatively affect the resumption of EBSU and commencement of academic/non-academic activities, all unions except the students’ union have been proscribed for the time being in Ebonyi State University. That any staff that failed to obey and abide by the above order stands dismissed”.
This article tends to x-ray the legal right of both parties – that of his Excellency – and the Academic Staff of EBSU in response to the above order. I will be looking into the following to define the legal right of both parties to wit:
Freedom to form or belong to trade union in Nigeria;
What is contract of employment and types of contract of employment;
The duty of an employee to obey lawful and reasonable order of his/her employer and the consequence of the willful refusal to obey such order by the employee;
Ways upon which contract of employment can be lawfully determined;
Remedies for wrongful termination of contract of employment; and
The legal effect of industrial action vis-a-vis strike to contract of employment;
In this discussion, I will confine myself to the 1999 Constitution of the Federal Republic of Nigeria (as amended), the Nigerian Labour Act Cap 198 LFN 1990, Trade Union Act 2015, Trade Dispute Act Cap 8 LFN 2004,Trade Disputes (Essential Service) Act, other international or domestic legislation and relevant judicial authorities both domestic and international.
Freedom to Form, Belong or Join Trade Union in Nigeria
The right of workers or employees to form or belong to trade union is one of the most important international and domestic labour standards. This means that as a general rule an employee, whether in private or public sectors has the right to form or join any association/union of his/her choice for the protection of his/her interest.
Membership of trade union is voluntary, that is to say, no law makes the membership of a trade union a compulsory one. According to Sidney and Beatrice Web, “union is a labour organization whose main goal is maintaining or improving the condition of their employment”. Trade union is a voluntary association of workers or employers for the protection of their rights.
By section 40 of the CFRN 1999 as amended “every person shall be entitle to assemble freely or associate with other persons and in particular he may form or belong to any political party, trade union or any other association for the protection of his interest”. The purport of the above constitutional provision is that right to join or belong to any trade union is a constitutional and fundamental right which is inalienable. According to section 1(3) of the CFRN 1999 as amended “ if any other law is incompatible with the provisions of this Constitution, the Constitution shall prevail and that other law shall be null and void to the extent of the incompatibility.
In tandem with the above provisions of the Constitution, section 9 (6) (a) (b) (i) (ii) (iii) of the Labour Act provides as follows:
No contract shall –
(a)make it a condition of employment that a worker shall or shall not join a trade union or shall or shall not relinquish membership of a trade union;
(b) cause the dismissal of or otherwise prejudice a worker:
(i)by reason of trade union membership;
(ii)because of trade union activities outside working hours or within working hour with the consent of the employer;
(iii)by reason of the fact that he has lost …
The purports of the above laws are that it is unlawful for an employer to proscribe the membership of their employee to any union or to make membership of a particular union a condition precedent for employment.
In the case of Bastorum v. Industrial Arbitration Tribunal, the arbitral tribunal in its award held that no senior staff should join the union of the junior staff. The decision was overruled by Odesanya. J. on the ground that it infringed the constitutional right of the plaintiff to form or belong to any trade union of his choice.
However, the right to form or belong to any trade union as every other right is not an absolute right. It can be limited by any reasonable laws made in a democratic society. See section 45 CFRN 1999 as amended. See also the case of Osawe v. Registrar of Trade Union (1985)1NWLR (pt.399)35.
Following from the above, freedom to join trade union can only be limited through a reasonable law made in a democratic society. The main issue for determination: is whether an executive order can amount to a reasonable law made in a democratic society? I answer in the negative, that an executive order cannot be a law let alone being reasonable. See section 318 of the CFRN 1999 as amended which states that ‘law’ means ‘a law enacted by the House of Assembly of a State’ while ‘Act or Act of the National Assembly’ means ‘any law made by the National Assembly…’
Following from the above legal argument, I therefore, humbly submit that His Excellency lacks the legal power and backings both as the Governor of Ebonyi State as well as the employer of the Academic Staff of EBSU to proscribe them from ASUU or to order them to relinquish their membership of the union. As otherwise, amount to infringement of their constitutional and other legal rights.
What is Contract of Employment?
A contract of employment is an agreement between an employer and employee and is the basis of the employment relationship. According to Wikipedia—’an employment contract or contract of employment is a kind of contract used in labour law to attribute right and responsibilities between parties to a bargain’.
The contract is between an employee and an employer; it has arisen out of the old master-servant relationship used before the 20th century. There is no statutory requirement to have a written contract of employment in its entirety but employers are required by law to provide a certain written particulars of the terms and conditions of the contract to employee.
Types of Contract of Employment
There are majorly three types of employment contract in Nigeria. In the case of Seveen-up Bottling company plc vs Engr. Adedayo Ajayi (2007) LPELR CA/B/336/2005, it was stated by the Court of Appeal that there are roughly three categories of contract of employment to wit:
those regarded as purely master and servant;
those where the servants hold office at the pleasure of the employer; and
those that the employment is regulated or governed by statute otherwise known as having a statutory flavour. See Seven-Up Bottling Company Plc v. Egnr. Adebayo Ajayi(2007)LPELR CA/B/336/2005.
Examples of master-servant employment contract are: pump attendant in a filling station, waiter in a restaurant, etc. Examples of contract of employment at the pleasure of the employer are: secretary to a state government, technical and special adviser to a Governor. While the Examples of employment with statutory flavour are: civil servants like teacher, lecturer, etc.
It is pertinent to note here that, the fact that a particular office is mentioned in a statute or constitution does not make it a contract of employment with a statutory flavour. For instance section 208 (2) (a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), provides for Secretary to the Government of the State, yet it is one of the contracts of employment at the pleasure of the employer which means that the Governor can decide, without any notice or following any procedure, to terminate the employment and the holder has no cause of action because of the fact that it is he who plays the pipe that calls the tune.
Mode of Determining a Contract of Employment
Once a contract of employment falls under the contract of employment mentioned above except the one at the pleasure of the employer, it can be determined by either of the parties (employer or employee). However, for the termination to be valid in law, it must be in line with the agreement of the parties. Every contract agreement ought to provide procedure for its termination, which can be by giving a specific length of notice or payment of money in lieu of notice. Once that procedure in the terms of the agreement is fulfilled, the employee cannot obtain any damages from the employer; because the law is that, he who hires can fire. See the case of Afinite v. UBA.
Where the employment contract did not provide for the procedure for termination, under the common law, the employer is required to give a reasonable notice. In Nigeria what amounts to reasonable notice has been codified in our law. Section 11 of the Labour Act provides that; one day notice should be given, if the contract has continued for a period of three months or less, one week where the contract had continued for more than three months but less than two years, two weeks where the contract had continued for period of two years but less than five years. One month where the contract has continued for five years or more. See Section 11 (2) (a.) (b.) (c.) and (d.) of the Labour Act.
It is pertinent to add that it is not in all circumstances that the terms of agreement on termination must be fulfilled, that is to say that, it is not in all cases that an employer will be saddled with the responsibility of giving notice or of paying money in lieu of notice before he can validly terminate the contract of employment. Where, for instance, the employee is guilty of misconduct or is absent from work, etc. the employer is empowered to summarily dismissed him/her. See section 11(5) Labour Act. According to Tony Nwazuoke, ‘Summary dismissal is the right of an employer to dismiss an employee who has committed a repudiatory breach of the employment contract’.
For misconduct and as to what amounts to misconduct, in the case of Clouston & Co. Ltd V. Corry (1960) AC 122 at 129, it was held that ‘there is no fixed rule of law defining the degree of misconduct which will justify dismissal.’ See also Emmanuel Nwobosi V. African Continental Bank Ltd. In Osianya v. Afribank Nig Plc. It was held that ‘Employee’s willful disobedience to lawful and reasonable orders of the employer amounts to misconduct.
In the case of contract of employment at the pleasure of the employer, no notice or payment of money in lieu of notice is required as stated above. It is always at the mercy of the employer. However, for an employer to terminate a contract of employment with a statutory flavour, he must have recourse to the laid down statutory procedure for its termination . It is also a trite principle of law that an employer who is terminating on ground of misconduct must not only follow the laid down procedure but must afford the employee a right to fair hearing. See Olatunbosub v. NISER Council.
At this point it will be right to aver that the contract between Academic Staff of Ebonyi State University and the Government of Ebonyi State is a contract of employment with statutory flavour. Section 6 part 3 of Ebonyi State University Law provides ‘if it appears to the council for any reason for believing that any person employed as a member of the academic or administration or professional staff of the university iother than the Vice-Chancellor should be removed from his office or engagement on the ground of misconduct or inability to perform his function of his office or employment, the council shall:
give Notice of that reason to the person in question;
afford him an opportunity of making representation in person on that matters to the council –
if he or any three members of the council so request within the period of one month beginning with the date of notice, make arrangement, the council may so remove him by an instrument in writing signed on the direction of the council.
From the above Ebonyi State University law cited, a staff can be removed on a ground of misconduct. And it has been held in the case of Osianya v. Afribank Nigeria Plc. (Supra), that employee’s willful refusal to obey lawful and reasonable order amounts to misconduct.
The core question begging for an answer is: whether His Excellency Engr. David Nweze Umahi as the Employer of the Academic Staff of EBSU can summarily dismiss the Academic Staff of EBSU for their failure to obey his order to go back to classroom. We humbly answer in the negative. Firstly, for refusal to obey an order to amount to misconduct the order must be lawful and reasonable. The lawfulness and the reasonableness of the order must co-exist. In other words, where an order is lawful but unreasonable, the employee is not bound to obey. See the case of Ottoman bank v. Chakarian.
I therefore, respectfully submit that His Excellency’s order is lawful but not reasonable in the sense that, you cannot order someone you are owing salary to go back to classroom without the salary being paid to him or ask him to back out of a union he has been a member for years, forfeit his entitlement without measures being put in place on how to reconcile those things. In view of the above, the Academic Staff of EBSU is not bound to obey and court will not interpret it to amount to misconduct. Assuming but not conceding that it amounts to misconduct, His Excellency cannot remove any of the Academic Staff without recourse to the above provisions of the Ebonyi State University Law, see Olaniyan v. University of Lagos (1985) 2 NWLR (pt.9) @ 559 as otherwise, will amount to wrongful dismissal.
What is Wrongful Dismissal and Remedies for Wrongful Dismissal?
Wrongful dismissal is when an employer dismissed an employee without recourse to the laid down procedure for termination. Wrongful dismissal can also occur where the contract of employment is brought to an end without complying with the term of the contract; either of the parties who determine the contract without recourse to the laid down procedure shall pay damages to the injured party.
At Common Law, the only remedy available for wrongful dismissal is damages. However, at present, court can order for reinstatement but not in all forms of contract of employment. The guiding principle in the award of damages for wrongful termination of a contract of employment is Restitutio integrum, that is, putting the innocent party to the position, he would have been if the contract was not wrongfully determined. In the case of contract of personal service, the court can only order for payment of money which is reasonable to the innocent party and nothing more. As to what amount to reasonable payment, the court always order that the innocent party should be paid an amount equivalent to the length of notice required for the determination of the contract of employment. See the case of Nigerian Produce Marketing Board v. Adewunmi (1972) NSCC 662 @ 665.
It is pertinent to note that motive does not make a dismissal wrongful, once the procedure for termination is complied with. In sogbetum v. Sterling Products Ltd ( 1973) NCLR 323, the plaintiff’s appointment was validly terminated by one month salary in lieu of notice, he challenged it on the ground that it was motivated by her refusal to surrender to sexual advances by her employer. The court held that, once termination is valid, the motive is irrelevant. It is also important to note that court cannot order for reinstatement in the contract of personal service because it lacks the requisite competence to enforce a willing employee on an unwilling employer because the mutual relationship will no longer be there. See Infeta V SPDC (2006) 6 CLRM 25.
However, when a contract of employment with a statutorily flavour is wrongfully terminated, the innocent party is not only entitled to damages but also entitled to reinstatement. See the case of Ebonyi State University and Ors v. Dr. (Mrs) Mary J. Eteng (2012) LCN/5365/CA and Haruna v. University of Agriculture, Markurdi (2010 )18 NWLR.
The term reinstatement has been defined by Karibi Whyte JSC in the case of Olaniyan v. University of Lagos (1988) 2NWLR (pt.9) 599 at 688 to mean ‘to replace the person to the exact position in which he was before his removal. That is to restore him to his status quo ante. It is therefore retroactive in effect, and involves a revocation of the act of dismissal and restoration of wages for the intervening period.’
It therefore means that not only that the person will be put back to his formal position before the purported dismissal but will also be paid all his entitlement during the period of the purported dismissal. The fact that the employee has secured another gainful employment or even replaced in the office is immaterial. See CBN and anr V Agnes Igwillo (supra).
I therefore humbly submit that His Excellency lacks the legal power both as the Governor of Ebonyi State and as the employer of the Academic Staff of the Ebonyi State University to proscribe them from ASUU or to order them to relinquish their membership of the Union as that will amount to infringement on their constitutional right, and so forth.
The Legal Effect of Industrial Action Vis-à-vis Strike in Contract of Employment
According to Tony Nwazuoke, the phrase ‘Industrial Action’ is a generic term used to represent the whole body of concerted measures which employee may take in order to exact pressure on the employer, so as to persuade or compel him to concede to their demands or claims.’
Just as stated in the above definition, industrial action is a generic concept that warehouses a lot of terms. Strike is one of the terms, warehoused in an industrial action. Strike is the weapon used by the employee to compel a recalcitrant employer to comply with the term of collective agreement with their union or representative. Although, Strike is the major and popular form of industrial action, there are other terms such as: Picketing, work-to-rule and bound of over time, etc.
In section 48 (1) of the Trade Dispute Act, strike means the cessation of work by a body of persons employed acting in combination, or a concerted refusal or a refusal under a common understanding of any number of persons employed to continue to work for an employer in consequence of a dispute done as a means of compelling an employer or any person or body of persons employed to accept or not to accept terms of employment and physical condition of work.
Before an employee can embark on a strike, there are laid down statutory procedures that must be followed before doing so. For instance:
An employer shall not declare or take part in a lock out and a worker shall not take part in a strike in connection with any trade dispute, where:
The procedure specified in section 4 or 6 of this Act has not been complied with in relation to the dispute; or
A conciliator has been appointed under section 8 of this act for the purpose of effecting a settlement of the dispute; or
The dispute has been…or
An award by an arbitration….or
The dispute has subsequently…
The National Industrial Court….
Any person who contravenes the sub-section 1 of this section shall be guilty of an offence and be liable on conviction:
In the case of an individual, to a fine of one hundred naira or imprisonment for a term of 6 months;
In the case of a body corporate, to a fine of one thousand naira.
The procedures as mentioned in section 18 are methods of settlement in contemplation of trade disputes. An employee (s) must comply with the above procedures before embarking on strikes as otherwise will amount to a crime, as stipulated in sub-section 2 of section 18.
Lock-out is to the Employer(s) as strike is to the Employee(s) . It is pertinent to state that strike has been declared in breach of the above section in Nigeria and will continue to be so, if nothing is done to remedy it, since the law cannot activate itself.
In section 41 of the Trade Disputes Act, 15 days notice must be given by workers in essential service before ceasing work. But the Act does not mention education as among essential service. However, under the Trade Disputes (Essential service) Act, Education is captioned, and the two weeks notice as given by ASUU EBSU Branch before embarking on strike is a breach of the above section because two weeks cannot amount to 15 days in computation of time.
It is also pertinent to add that workers or employees on strike are not entitled to payment. See section 43 of the Trade Disputes Act, therefore the act of paying a striking employee is an employer’s moral kindness and benevolence, and not an employee’s legal entitlement. On the question as to whether the court will enforce the above provision in an event of breach if approached, it is Important to note that judicial authorities are in support that it is unlawful to pay a striking employees. See the case of Abdulraheem v. Olufeagbu (2006) 17 NWLR (pt.1008) 280.
Can an Employer Stand on the Breach of the above Provision by an Employee to Summarily Dismiss with Respect to Contract Employment with a Statutory Flavour?:
We humbly answer in the negative, reason being that two wrongs cannot and will never make a right. The position of the law is that, notwithstanding that strike is a breach of fundamental duty of an employee to the employer. The employer cannot dismiss the employee, only because he embarked on a strike without recourse or compliance with the statutory provisions on a procedure to terminate that contract. We humbly take umbrage at this view in the case of Olufeagbu v. Abdulraheen(2009)18 NWLR((pt.11273) 384. The 1st – 44th appellants were at the material time before the suit, lecturers at the University of Ilorin. They were sacked for embarking on strike action as a member of ASUU. They were neither queried nor taken through the disciplinary procedure before the termination of their appointment. The Supreme Court held that: where an employment is with a flavour it can only be terminated in the manner prescribed by the statutes, a breach of which renders the act ultra vires, null, void and of no legal effect whatsoever and therefore entitled the employee for damages and reinstatement. See also the case of Olanniya v. university of Lagos (Supra).
Who Can Proscribe an Action of Union if their acts are Contemplated or Envisaged as a Disrupt to the Smooth Running of Essential Service?
To proscribe means to banish, prohibit or put an end to something. Under the Trade Disputes (Essential Service) Act Cap T8, the preamble states: an Act to empower the president to proscribe any trade union or association, the members of which are employed in any essential service, if such Union or Association has been engaged in industrial unrest or acts calculated to disrupt any essential service. To this end, the president of the Federal Republic of Nigeria can exercise the above power vested in him to proscribe ASUU generally and it will not amount to a breach of its members’ fundamental rights to Freedom of Association. Since the Right to freedom of association is not absolute right and can be derogated by law reasonably made in democratic society. However this can only be done, if the act of the association is calculated to disrupt the smooth running of essential service.
Section 1 of the Act centers on the power of the President to proscribe trade union or associations on certain cases. The section provides as follows:
If the president is satisfied that any trade union or association, any of the members of which are employed in any essential service –
is or has been engaged in act calculated to disrupt the economy or act calculated to obstruct or disrupt the smooth running of any essential service; or
has, where applicable willfully failed to comply with the procedure specified in the trade union Act in relation to the reporting and settlement of trade disputes;
He may by order published in the Federal Gazette proscribe the trade union or association. Under section 7 (1) (vi) of the Trade Disputes (Essential Service) Act, Essential Service is defined to include Educational services at primary, secondary or tertiary institution. In view of the above, it is only the president of the Federal Republic of Nigeria who has the power to proscribe ASUU, if their act is calculated to be a disrupt to a smooth running of essential service which education is one. However, the power vested ian the president by the Act is a discretionary one, which the president may or may not exercise, since it is discretionary. In a case where the president wishes to exercise its power, there are condition precedents which must exist before he can do so, which conditions are to wit:
the employees must be in essential service;
the act of the employees must be calculated to disrupt the smooth running of essential service;
the union or employees must have willfully failed to comply with the procedure prescribed in reporting and settlement of the disputes in the Trade Disputes Act.
It is only when the president is satisfied with the abovementioned condition precedents that he can decide whether to exercise its discretionary power or not.
To this end, we therefore humbly submit that a Governor of a State lacks the legal power to proscribe any association or union. Hence, the Ultimatum of His Excellency Engr. David Nweze Umahi to proscribe the Academic Staff of EBSU from ASUU is ultra vires, null and void and of no legal effect whatsoever, reason being the doctrine of nemo dat quod mon habet – no one gives what he does not have.
Therefore, having legally x-rayed the legal rights of both parties, either of them can always resort to the legal remedies available to him and not otherwise.
About the Author
Ezekiel N. Nworie, a 400 level student of Law at Ebonyi State University, Abakaliki, Nigeria. For your contributions WhatsApp +2348140403376 or email: [email protected]