HOW SECURED IS YOUR GAINFUL EMPLOYMENT? HOW GAINFUL IS YOUR SECURED EMPLOYMENT? (II)
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Misbau, LLB, BL, LLM, teaches law at the Obafemi Awolowo University, Nigeria
To start with, a contract of employment is defined in law as any agreement, whether oral or written, express or implied whereby one person agrees to employ another as a worker and that other agrees to serve. A contract of employment is thus the pivotal bedrock or foundation upon which the employee must base his case in the event of any dismissal whether rightly or wrongly. As has been laid down by the Nigerian Courts in plethora of cases a contract of employment may take different forms ranging from the following three categories. It could be a contract under common law and in which case the contract is not in writing and may be terminated by either party on a week’s or one month’s notice or an equivalent payment in lieu. It could also be in writing whereby the court will confine itself to the terms of the written contract in the determination of the parties’ rights and liabilities. It could also be in writing but especially covered by statute or civil service rules and the Constitution such that an employee, in the event of any unlawful dismissal, will be entitled to a remedy of reinstatement amongst others.
Although all forms of employments can be said to be invariably gainful, one way or the other, but can we also say all employments are secured? In law, the basic principle in labour relation is that the person who hires also reserves the right to fire at will. This postulation is based on the reasoning that even if he is willing, an employee cannot be imposed on an unwilling employer. Conversely, an unwilling employee cannot be imposed on a willing employer. In fact, a master (employer), at common law, is at liberty to terminate the employment of his servant (employee) for good reason, bad reason or no reason at all! This is because the relationship of the employer/employee at common law, and up till today, is basically that of master/servant. What is important is that the employment relationship must be determined or terminated in accordance with the terms of the contract of employment especially as it relates to the requirement and length of notice or payment in lieu of such. Even the requirement of notice is, however, without prejudice to the common law right of an employer to summarily dismiss an employee for gross misconduct.
As we shall see presently the above fundamental postulation has a far reaching implication on the dichotomy between what is in Nigeria referred to as employments with statutory flavour and those without statutory flavour. An employment with statutory is a special kind of contract of employment. It is special in that the employment is a creation of and regulated by statute. Such employment are said to have a statutory flavour, a special type which entitles the employee to the remedy of reinstatement in the event of unlawful dismissal. The general principle here is that where the contract of service is created by a statute and the procedure for the removal of the employee is defined in the said statute, as they generally do, non-compliance with such statutory provision renders the termination of such contract unlawful and null and void. By implication therefore, the court will avail the employee the remedy of reinstatement to his post even if the employer is unwilling.
A contract of employment without statutory flavour on the other hand refers to all other forms of employments, particularly in the private sector, where the employer, as we earlier noted, can dismiss the employee with good reason, bad reason or no reason at all. Here, the traditional remedy for wrongful dismissal or termination of employment is award of damages and nothing more, and the appropriate measure of damages is the salary or benefits the employee would have earned within the contractual notice period. As a general rule, the courts do not grant remedy of specific performance for reinstatement in respect of breach of contract of service in an employment without statutory flavour. This is because the court will not impose a willing employee or an unwilling employer. The only instance where the court would therefore make an order for reinstatement is where the employment in question is spiced with statutory flavour. This, therefore, is the marked difference between an employment with statutory flavour and those without such a flavour. This also is where the former offers more security than the later which is also often said to be more gainful.
Put simpler, a civil servant may earn as little as not even enough to take him home let alone sustaining him, he is however certain that he holds a well secured job that cannot be taken away by any whimsical fiat of his employer. And that even if his job is taken away in such a manner, he his certain still that he can get an order of court reinstating him to his post in addition to payment of his salary arrears and other damages or benefits. On the other hand, a banker, in a private employment not spiced with statutory flavour, may actually earn as hefty salary as to be adequate for a decent and sustainable living, he may yet wake up the next morning to realise that his gainful employment has been taken away by a mass purge by his employer, for good reason, bad reason or no reason at all. The best he can get is never a reinstatement but mere damages that will not exceed the salary or benefits he would have earned within the contractual notice period.
In the final analysis, it suffices to say that I finally left my lawyer-colleague, our allegory of this piece, with the final decision to make his choice based on what he really wanted in career focus and/or development. But an underlying factor in my analysis to him was the security that one employment offers when compared to the other.
