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Nuggets On Labour Law – Retirement, Superannuation & Pensions



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  1. What are the regulatory framework for labour and
    employment matters in Nigeria?

The legislations applicable to employment and labour relations
in Nigeria include:

  1. The Constitution of the Federal Republic of Nigeria 1999(as
    amended);

  2. The Labour Act, Chapter L1, Laws of the Federation of Nigeria
    2004 (Labour Act)

  3. The federal laws enacted by the National Assembly;

  4. Decisions of the Nigerian courts- case law; and

  5. International conventions, treaties and protocols relating to
    labour, employment, workplace, industrial relations or matters
    connected therewith that have been ratified by Nigeria.

However, the Labour Act is the principal legislation governing
employment relations in Nigeria. Its application is limited to
employees engaged under a contract of manual labour or clerical
work in private and public sector. Employees exercising
administrative, executive, technical or professional functions are
governed by their respective contracts of employment.

  1. Who is an employee under the Labour Act?

There are two broad categories of an employee in Nigeria; the
workers and non-workers. The workers can be defined under the
labour act as those who are generally employees who perform manual
labour or clerical work.

On the other hand, non-workers are employees who perform
administrative, executive, technical or professional functions.

  1. Which court has jurisdiction over labour
    matters?

By virtue of Section 254C(1) of the 1999
Constitution
(Third Alteration) Amendment Act, 2010, the
National Industrial Court (“NIC”) has exclusive
jurisdiction in civil and criminal matters relating to or connected
with labour, employment, trade unions, industrial relations and
matters arising from workplace, the conditions of service,
including health, safety, welfare of labour, employee, worker and
matters incidental thereto or connected therewith.

The NIC also has jurisdiction to hear matter relating to or
connected with or arising from Factories Act, Trade Disputes Act,
Trade Unions Act, Labour Act, Employees Compensation Act or any
other Act or Law relating to labour, employment or industrial
relations.

  1. Is there a requirement that employment contracts be
    written?

By virtue of  Section 7 of the
Labour Act, a contract of employment is required
to be reduced into writing not later than three months after the
commencement of the employment.

It is pertinent to note that the contracts of employment of the
classes of employees not covered by the Labour Act need not be in
writing, as same may oral or implied.

However,  it is advisable that all contracts of employment
in respect of all classes of workers be in writing for the purposes
of clarity.

  1. Can an employee be terminated without
    reason-

Generally, an employer has the right to terminate the employment
of an employee provided the appropriate notice of termination is
given to the employee or the employee is paid a salary in lieu of
such notice.

However, in the case of ALOYSUS V. DIAMOND BANK 2015 58
NWLR (PT. 199) 92,
the Court held that an employer has a
duty to state the reason for the termination.

  1. What is the position of law with respect to Sexual
    Harassment in the workplace-

The Labour Act and other allied labour laws in Nigeria do not
make specific provisions for sexual harassment.

However, Section 262 of the
Administration of Justice Law, Lagos State,
2015
, criminalizes Sexual Harassment of
an employee in the workplace.

  1. Are employees protected against Discrimination based on
    HIV

Section 42 of the 1999 Constitution(as
amended)
  prohibits discrimination against a citizen
on the basis of their community, ethnic group, place of origin,
sex, religion, political opinion or the circumstances of their
birth.

Also, the HIV and AIDS(Anti-discrimination) Act,
2014
prohibits employers from discriminating directly
against employees on the basis of their HIV status or HIV related
illness.

In ONUHIKEMI V. SMRIDU NIGERIA LIMITED
NICN/LA/265/2015
, the Court relied on Section 42 of the
1999 Constitution to hold that the action of the employer in
sacking the employee due to HIV status was discriminatory.

  1. Can an employee be Suspended, disciplined or dismissed
    for whistle blowing-

There is no general legislation that governs whistle blowing ,
however, there are sector specific legislation on the subject.

Some of the protection afforded to employees under some sector
specific legislation is prohibition from dismissal, suspension or
termination of employment of a whistle blower.

In OLU IBIROGBA V. THE COUNCIL, THE FEDERAL POLYTECHNIC
YABA (2015) 63 NLLR ( PT. 223) 343
, the
claimant, the College Bursar, was suspended for whistle blowing on
the defendant, his employer. However, the Court ordered his
reinstatement on the ground of public interest.

  1. Is annual leave a statutory right for an
    employee?

The Section 18 of the Labour Act provides for mandatory annual
leave. Every employee shall be entitled to an annual holiday with
full pay for a minimum of six working days after 12 continuous
months of service.

In AKINFEMIWA AKINYINKA V. MORE TIME
CO2 GAS PLANT LIMITED NIC(2011) 4 LLER 2, the
Court held that denial of annual leave to an employee is unfair
labour practice.

  1. Can an employee be subjected to a retroactive
    policy?

In a notable decision by the National Industrial Court of
Nigeria, in the case of EKEOMA AJAH V FIDELITY BANK
PLC
NICN/LA/588/2017, the court
considered the propriety of an employer introducing and
retrospectively applying a retirement benefits policy to an
employee instead of the policy that was in place at the time of the
employee’s notification of retirement.

The Court held that although in certain circumstances an
employer is, as of right, entitled to vary any part of the contract
of service without seeking and obtaining the consent of its
employee, the Court will discountenance variations which have the
effect of taking away any accumulated benefit of an employee. The
Court further held that the retroactive application of a policy
variation will be ineffective against an employee where it divests
the employee of accrued benefits because “the Court does not
protect retroactive action capable of denying accrued
benefits.”

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.



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