Employees' Rights

[Motolani Olayiwola]

Generally under the law, recruiters and employers must have a license or permit, except the employer does not employ more than 25 workers or the recruitment is carried out within 40 kilometers from the place of employment.
* No public officer is permitted to act as a recruiting agent.
* No recruiter is allowed to recruit any young unless so permitted by the Minister.
* No citizen is to be employed unless he has been medically examined by a registered medical practitioner at the expense of the employer.
* It is an offence to induce any worker to enter into any contract of employment by fraud, falsehood, coercion or intimidation.
* No citizen is allowed to leave Nigeria under a contract of employment outside the country except he has been medically examined and certified fit for the work
* A worker is entitled to be accompanied by his family members to his place of work,
* An employer is generally under a duty to provide work to a worker who shows up at his work place and is fit for the work.

PART 2
* There are different categories of employees – civil/public servants, private employees, contract staff, staff on probation, employee with statutory flavor.
* A civil servant is different from a public servant under constitutional definitions.
* Employments with statutory flavor are regulated by the law creating that body and both employer and employee cannot go beyond the stipulations in that law.
* Employees of government-funded limited liability companies are not public/civil servants.
* Private employments are regulated by the contract of service between the master and the servant.
* Contract staffs are employed for a specific period of time and purpose, and their rights are greatly limited by the contract of service.
* Please note what the contract of service contains.

PART 3
* An employer reserves the right not to confirm the appointment of a probationary staff after the probation period.
* After the probation period, the staff is entitled to be informed if his appointment is confirmed or not.
* Unless otherwise stated in the contract paper, an employee is entitled to presume that his appointment has been confirmed if he is allowed to continue working for the employer after the period stipulated for probation.
* Promotion, commendation or winning an award during the period of probation is not conclusive evidence that the appointment has been confirmed.
* Subject to the contract of employment, a probationary appointment may be terminated at any time, without any reason adduced by the employer.
* An employee on probation is entitled to the protection which the law or the contract agreement affords him.
* A probationary staff is entitled to be paid salary upon termination of employment.
* A probationary staff is not entitled to be reinstated even if the termination is unlawful.
* An employee who transferred his service from one organization to the other is not entitled to assume that his new appointment will be confirmed

PART 4
* All trade unions must be registered before they can function.
* The general purpose of trade union is to enhance the collective bargaining for employees or employers, as the case may be.
* All employees are entitled to join or refuse to join any trade union or take part in trade union activities at the designated hours and places.
* Employers are not entitled to victimize or prejudice any employee on account of trade union activities.
* Members of armed forces, para-military organizations, etc are not permitted to form or join trade unions.
* Workers have a right to picketing, and it will not give rise to civil or criminal liability.
* All workers have a right to strike, upon complying with the requisite procedures.
* Workers on essential services are not allowed to go on strike without first giving at least 15 days’ notice of intention.
* No law empowers an employer to dismiss his employees for striking, so long as that strike is not illegal, violent or prejudicial to the employer.
* The only punishment provided under the law for employees going on strike is no-work no-pay.
* Industrial arbitration is provided for under the law, where labor disputes could be referred to the Industrial Arbitration Panel.

PART 5
* The salary of all employees must be paid by legal tender, i.e., in Naira and kobo.
* No employer can dictate to you about how, where and when to spend your salary.
* Your employer is not permitted to pay you salary advance of more than one month.
* Only recognized deductions can be made from your salary.
* Your contract of employment must be prepared not later than three months after you started work, and must contain the required information.
* Your terms and conditions in any contract of employment must not derogate from your rights as an employee
* Employees on sick leave are entitled to pay, depending on the terms and conditions of employment.
* Long period of illness entitles the employer to terminate the contract on the ground of frustration, though the employee is entitled to payment proportionate to the number of days he worked for.
* Women, young persons and apprentices constitute a special class of vulnerable employees for which special provisions have been made under the law.

PART 6
* An employer owes his employee a duty of care to provide a safe working environment, safe working equipment and safe system of working.
* Any employer who breaches this duty is liable to the employee for any injury suffered as a result of the breach.
* The employer may, however, not be liable where the injury was as a result of the employee’s own negligence or disregard for instructions.
* An employer is vicariously liable for the wrongful acts of his employee.
* The wrongful act must have occurred in the normal course of the employment.
* The casual agent of another will be liable just like his employee.
* The employer will be liable for the wrongful act of the servant, even if he was sacked later.
* The victim is entitled to sue both master and employee jointly or separately for damages.
* Independent contractors may not be deemed to be servants unless the wrongful act was expressly ordered by the employer.
* There’s no vicarious liability in crime.

PART 7
* Please note that there is a new law which applies to all employees whether in public or private employment.
* The new law has now established an Employee Compensation Fund into which all employers must make monthly contributions.
* It is from this Fund that an injured employee or survivors of a deceased employee is paid.
* The Fund is managed by the Nigeria Social Insurance Trust Management Board.
* An injured employee must give notice of the injury to his employer within 14 days.
* Under the ECA, an employer is liable to pay compensation not only for physical injury or death, but also for mental stress or occupational disease suffered by the employee.
* In the case of disability, compensation is paid to the employee as provided for under the law.
* In the case of death, the dependents of the employee are entitled to the payment of the compensation.
* An employee cannot waive the payment of compensation to him, neither can he contribute towards the compensation.
* The NSITF is the body charged with the management of compensation fund for the affected employees.
* An employee is entitled to have his entitlement converted into credits for the purchase of a property for himself and his family for residential purposes.

PART 8
* The right of employers to suspend their staff with or without pay is recognized by law.
* Indefinite suspension without recall may be taken to mean termination of employment, albeit unlawful.
* Rules of natural justice dictate that any person who is to be affected by a disciplinary action is entitled to be afforded hearing and to put up a defense on the allegations against him.
* An employment may be terminated as prescribed by the contract agreement but in consonance with the law.
* Length of notice as prescribed in the Labor Act must be complied with.
* An employment must be terminated in accordance with the mode stipulated.
* A termination of any employment of more than three months must be in writing.
* The employer is not obliged to adduce reasons for terminating the employment, as he may do so for any reason or none at all
* But where the employer gives reasons for the termination, he is under obligation to prove those reasons.
* The motive behind termination is of no relevance.

PART 9
* Note the difference in a contract for service, contract for service and contract with statutory flavor. Each category is governed by specific rules.
* A private employee is not entitled to ask for reinstatement once the employment contract has been terminated. The best he can do is to ask the court to award him damages for unlawful termination.
* On the other hand, employees with statutory flavor or civil/public servants may be reinstated if they prove that their termination was unlawful.
* Note the various grounds for declaring redundancy such as for the purpose of reorganization, to reduce excess workforce, etc.
* The Labor Act prescribes last-in-first-out method for selecting staff for retrenchment, though, this is subject to factors like skill, ability and reliability of the staff.
* An employee whose company merges with another must give his consent to the transfer of his service. He is entitled to be discharged if he is not willing to work for the new employer.
* Any employee retrenched on the basis of redundancy is entitled to the prompt payment of his benefits.
* Redundancy payments for private employees may not include gratuity and pensions where it is not so specified while those in government employment may enjoy it.

PART 10
* Please note the grounds upon which an employee can be dismissed. But an employee accused of crime or gross misconduct is entitled to be given fair hearing and opportunity to defend himself.
* The burden of proving misconduct rest on the employer who alleges it.
* In private employment, a dismissed servant is not entitled to regard the contract of employment as still in existence.
* Even if the dismissal is wrongful, a private employee cannot ask for reinstatement, because the courts are not always willing to force a willing servant on an unwilling master.
* The only relief available to a wrongly dismissed private worker is to sue and claim damages for wrongful dismissal.
* Dismissal under the civil service must follow the laid down rules.
* There is a difference between notice of dismissal and notice of allegations.
* An employee is entitled to his terminal benefits notwithstanding that his claim for unlawful termination and dismissal is successful or not. This is the general rule and not the exception.

PART 11
* There are stipulated procedures for public employees to follow if they want to resign their appointments.
* A private employee too must follow the laid down procedure in his contract of employment before resigning.
* An employee has the right to resign at any time he chooses, subject of course to his contract of employment.
* No law empowers the employer to reject the employee’s letter of resignation and there is no legal requirement that the resignation must be accepted whether in writing or orally before it can be valid.
* Resignation takes effect from the date indicated thereon, whether accepted or rejected.
Note, however, that there are some instances when an employee’s resignation may be rejected.
* A forced or involuntary resignation may amount to constructive dismissal for which the employee is entitled to sue for unlawful dismissal.

PART 12
* Payment of salary in lieu of notice, from the employer to the employee or vice versa, includes the payment of the basic salary only. It does not include other allowances and bonuses enjoyed by the employee.
* Payment of salary in lieu of notice must be made before the expiration of the notice of termination.
Remedies available for unlawful termination of employment include claim for damages for unlawful termination and reinstatement in appropriate instances.
* An employee who accepts payment of his terminal benefits cannot turn round to claim damages for unlawful termination. He is deemed to have waived the right.
* An employee who feels his termination was wrongful is entitled to protest.
* Reinstatement will only be ordered on behalf of employment with statutory flavor or in favor of public/civil servants.
* An employee may sue for defamation where the employer sacks him and displays his photograph in newspapers in such a manner that untrue imputation is made against him.

PART 13
* Retirement could be on the basis of age, length of service, etc.
* Government employees who served 15 years minimum are entitled to pension and gratuity.
* Terminal benefits cannot be withheld, except as permitted by law. It must be paid whether the employee was of good conduct or otherwise. The only criterion is the required length of service.
* The survivors of a deceased employee are entitled to claim his terminal benefits.
* Letter of Administration may be required on behalf of a deceased employee.
* There is now a new Contributory Pension Scheme for workers in both the public and private sectors.

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