Employee Rights in Nigeria
The Labor Act generally deals with the protection of wages, contracts of employment and terms and conditions of employment of workers. Under the Act, a worker is a person who has entered a contract of employment for manual labour or clerical work. Section 7 of the Act stipulates that every employer issues a written agreement to the employee within three months of the commencement of the employment relationship.
The Act explicitly states specific details the contract must contain, such as the name of the employer, employee’s name and address and the place and date of engagement, the nature of the employee’s engagement, the date when the contract expires (if the contract is for a fixed term), the period of notice to be given within which to terminate the contract, the rates of wages and method of calculation thereof and the manner and periodicity of payment of wages, terms and conditions relating to
- hours of work, or
- holidays and holiday pay, or
- incapacity for work due to sickness or injury, including any provisions for sick pay; and any special conditions of the contract.
It is rather interesting that the Act does not cover those persons exercising administrative, executive, technical, or professional functions; they are governed by the terms of their employment as decided in Evans Bros. (Nig.) Publishers Ltd v Falaiye.
Therefore, in determining the validity of a contract, the conditions for the validity of a contract will apply that is, offer acceptance, consideration, as decided thus in the locus classicus of Carlill v Carbolic. In the same vein, the vitiating elements of the contract apply that is duress, mistake, fraud, and misrepresentation.
Invariably, if any of the conditions for validity are absent or any of the vitiating elements are present, that contract would not be enforceable. It behoves employers to execute employment contracts in clear and reasonable terms; unless the employee is entitled to a remedy of rescission of the contract on these grounds in a competent court. One should bear in mind that an independent contractor who is engaged by an employer to carry out a specific type of work does not enjoy the rights of an employee since he is not under the employer and carries out his duties like a professional.
Minimum Conditions for Employees
Contrary to the common practice by employers in Nigeria, under the Labor Act, they are supposed to comply with minimum terms and conditions which employees are entitled to enjoy. These include the requirement to provide transportation or transportation allowance, provide paid sick leave of up to 12 days, annual leave of not less than six days, and maternity leave to female workers.
It is pertinent to highlight the national minimum wage. Contrary to common belief, it applies to both public servants and all workers underemployed service. Also, salaries should be paid within one month with no deductions except in cases specified. In practice, it is common to see particular employees excluded from minimum wage security- workers in the informal sector or workers in non-standard employment.
The recently adopted Transition from the Informal to Formal Economy Recommendation, 2015 (No. 204) by the International Labor Organization delineates useful guidelines for countries to extend minimum wage protections, in law and practice, to workers in the informal economy through formalization which the Nigerian government can replicate.
Despite the economic realities in the country, it is within the rights of employees to file an action against their employers on these grounds. The National Minimum Wage Act, 1981 further provides that an agreement for the payment of wages less than the national minimum wage is void and of no effect. The Act, however, creates certain exemptions such as establishment with less than 50 employees; that employs workers on a part-time basis (working for less than 40 hours); that pays workers on a commission basis, or that employs workers on a seasonal basis or seamen and crew members of an aircraft.
Employee Rights During COVID
Suffice to say that the status quo in the world has been upended, nonetheless, employees’ rights remain: Changes to employment agreements and benefits not covered by the Act, such as remuneration, job specifications, annual leave and other terms of employment, has to be consensual between the employer and the employee. Also, the employer bears the financial strain of whatever effect the new normal has.
While remote work is the order of things now, the employer ought to provide the necessary amenities to facilitate such. The decision of the California Supreme Court in Gattuso v Harte-Hanks Shoppers Inc.is of persuasive effect in this regard, where it held that the intentions of the provisions of the California Labor Code which requires an employer to indemnify its employees for all necessary expenditures or losses incurred as a direct result of the discharge of his duties, is to protect employees from suffering expenses indirect consequences of doing their jobs.
Although it is likely for workers to work overtime due to the new nature of work, the Labor Act is silent on the rate for overtime wages. It means this depends largely on the employee’s bargaining power with his employer. For employers who have reverted to the physical resumption of work activities, it is pertinent to allude to the fact that the Labor Act saddles them with the responsibility of catering for the health of their workers by formulating clear policies on COVID-19 and health and safety measures; and they would be liable if such exposes their employees to the risks of contracting this illness following work directives.
There is no employment insurance policy created specifically for the pandemic, but the provisions of already existent insurance policies can be explored by employees to cater to such unforeseeable circumstances as this. It is inadvertent that redundancy may arise: The Labor Act stipulates that before the employer can rely on this to terminate employment, he must prove that such occurrence was reasonably foreseeable at the time of entering the contract; such is beyond the control of the employer/employee and cannot be avoided; and due to the occurrence of such event, the employer/employee is unable to perform obligations arising under the contract.
Sexual Harassment at the Workplace
There is sadly no explicit provision in the Labor Act prohibiting sexual harassment. An aggrieved worker can rely on the provisions of section 34 of the Constitution of the Federal Republic of Nigeria on the right to dignity. Also, the National Industrial Court (NIC) includes in its Civil Procedure Rules 2017 under Order 14 Rule 1(a), (b), (c), and (d), four categories of acts that constitutes workplace sexual harassment. It delineates what constitutes sexual harassment and making it easier for aggrieved persons to seek a remedy.
The Criminal Law of Lagos State equally prohibits harassment that implicitly or explicitly affects a person’s employment or educational opportunity or unreasonably interferes with the person’s work or educational performance or creates an intimidating, hostile, or offensive learning or working environment. Such a person who sexually harasses another is guilty of a crime and is liable to imprisonment of three years in Lagos State. Further, employers owe a duty of care to investigate allegations of sexual harassment in workplaces else they will be vicariously liable, as held in Ejike Maduka v Microsoft and Ors. Undoubtedly, this legislation is a step in the right direction and worthy of emulation by other state legislatures.
The National Industrial Court of Nigeria (NICN) has exclusive jurisdiction over these disputes. The NICN Civil Procedure Rules 2017 provides for the practice and procedure of proceedings before the NICN. The judge of the NICN may refer any matter instituted at the NICN to Alternative Dispute Resolution (ADR) Center established within the NICN premises for settlement through conciliation or mediation, with a timeframe of 21 working days and maximum extension of 10 days. Peradventure, this dispute is not settled by ADR, the aggrieved parties appear before the NICN which has a fast-tracking system of resolving cases between eight months and two years. There is also provision for appeal of its decisions in the Court of Appeal as decided in Skye Bank Plc v Victor Anaemem Iwu.
Oludayo Olufowobi is a penultimate law student at the University of Lagos. He is currently the deputy editor-in-chief of the Unilag Law Review. He has interests in intersections between Law, Finance and Technology and is passionate about youth participation in the achievement of the Sustainable Development Goals. He can be reached at Oludayo.email@example.com