The relationship between the employer and the employee in Nigeria is largely regulated by the contract of employment between them. The employment laws in Nigeria that also govern employment relationships are not founded on the provisions of a single statute, rather, they are dispersed in different pieces of legislation, with the principal regulation being the Labour Act originally enacted in 1971; and greatly influenced by case law.
The fairly antiquated Nigerian Labour Act does not apply to all employees and offers limited protection to categories of employees termed as “workmen”. However, with the establishment of the National Industrial Court of Nigeria (NICN) by section 1 of the National Industrial Court Act 2006, and its further empowerment by the amendment to the 1999 Constitution of the Federal Republic of Nigeria, there have been significant changes in the resolution of employment disputes, and expansion of the prism of judicial interpretation of the outdated provisions of the Nigerian Labour Act.
Healthy industrial relations contribute largely to the economic stability and growth of any nation and in this regard, the NICN has been solely responsible for promoting and engendering the new wave of thinking that “workers” denote more than a factor in the chain of production. In many cases, the NICN has taken into consideration international labour practices as well as international best practices in reaching decisions case by case. The NICN has been quick to assert that employees have far reaching rights well beyond the Common Law master-servant relationship. Even hurt feelings and reputation of the employee are now factors which are not to be trifled with. To be sure, section 254C(1)(f) and (h) of the 1999 Constitution grants jurisdiction to the NICN over “international best practice in labour, employment and industrial relation matters” and “the application or interpretation of international standards”, while section 7(6) of the National Industrial Court Act 2006 enjoins the NICN when “exercising its jurisdiction or any of the powers conferred upon it by this Act or any other enactment or law, [to] have due regard to good or international best practices in labour or industrial relations”. Furthermore, section 254C(2) of the 1999 Constitution provides that notwithstanding anything to the contrary in the Constitution, the NICN shall have jurisdiction and power to deal with any matter connected with or pertaining to the application of any international convention, treaty or protocol relating to labour, employment, workplace, industrial relations or connected matters, which Nigeria has ratified.
With the significant shift in the strict application of common law principles as regards employee–employer relations, employees have progressively been offered a seat at the table regarding their welfare and the general terms of their employment, with progressive labour reforms going mainstream and operational for many large organisations.
There are other significant instances that detail the NICN’s continued contribution to the development of (a progressively evolving) labour law jurisprudence. These include improved protection of workers or job security, workers’ participation and the influence of labour on management’s decision making, the court’s reluctance to interfere with parties’ freedom of contract except (in accordance with the letters of the court’s enabling law) in deserving cases to protect a weaker party, increased engagement with the employees as a pivotal factor of production and so on. Finding a convenient balance between two competing interests, the NICN has showed reluctance to interfere unduly on the side of either party in the workplace. Put simply, the business of the court is to protect the interests of both the employee and the employer, and in doing so, strike a balance to ensure that neither suffers harsh or otherwise unfair treatment at the instance of the other.
In the face of the changing world of work, new relations beyond the traditional setting and narrow definition of an ‘employee’ and ‘employer’ have emerged. It is not in doubt that the global labour cycle is adapting, forced by the advent of technology, diversity in workforce (eg managing millennials) and the innovations it now requires. For example, with millennials largely making up the modern workforce, employers are now being forced to consider more flexible and sustainable working arrangements. Outsourcing arrangements/contract staffing remain a major concern with makeshift measures that allow employers to avoid certain obligations such as pensions, insurance, gratuity, etc. Technological innovations have introduced novel employment structures that are dynamic but vague, especially in relation to the classification of persons working under such arrangements.
Underscoring the importance of the new signposts raised by triangular work relationships such as outsourcing, the NICN has often identified the issues based on the primacy of facts presented to the court, and shown readiness and capacity to determine the nature of the relationship created and the consequent obligations on both sides. For example, when asked to declare as invalid and unlawful the triangular employment relationship, the NICN declined, having recourse instead to best global practices including those enshrined by the International Labour Organization and strongly recommended for business success.
In another notable decision on a related issue, the NICN was provided with an opportunity to determine the nature of the relationship between the technology-enabled ridesharing apps and drivers, that is, whether they could be classified as employees or independent contractors. A favourable outcome that they are direct employees of Uber, Taxify and others would entitle them to numerous employment benefits. However, this could not be determined by the court owing to insufficient facts and evidence to inform a substantive determination. The court, however, did make a glancing reference to the wide amplitude of section 91 of the Labour Act whose imprecise ambit, if a similar question is posed in the future, seem to favour the employee classification.
Artificial intelligence (AI) is impacting almost every sphere of human life, including the world of work. With the dawn of an increasingly AI-driven workplace, the traditional ‘9am to 5pm’ daily work timescale is gradually being eroded. New trends, enabled by smart technologies, are emerging, and the associated toll on the traditional work setting is occurring at an unimaginable pace. The laws are, however, not up to date in dealing with the resulting labour and employment related issues. The limits of no-compete clauses to protect commercially sensitive trade secrets of an employer; unique work arrangements; hours of work; redundancy; work ethic and culture; social media policy and so on, are some of the areas the advent of the disruptive elements of technology is impacting upon in the traditional workplace, even in the face of an absent regulatory regime to deal with these issues.
It is hoped that comprehensive laws to deal with the evolving work landscape would be in place in the near future. For the moment, the NICN, through its far-reaching endeavour at adjudication on labour, employment and workplace issues, calling on best global practices where necessary, continues to offer stimulating new insights, based on the primacy of the facts presented before it.