UNIVERSITY OF LAGOS

SCHOOL OF POST-GRADUATE STUDIES

FACULTY OF LAW

LL.M DEGREE PROGRAMME (2014/2015 ACADEMIC SESSION)

LAW OF LABOR RELATIONS (CIL 802)

1ST SEMESTER SEMINAR PAPER PRESENTATION BY GROUP 2

TOPIC: RIGHT TO WORK/RIGHT AT WORK

PRESENTED BY:

1. AMAECHI CHUKWUNONSO U. - 149061135 2. ORUNGBE SIMEON BAYO – 1390611923. UDIA OKON BASSEY – 1390610214. MOHAMMED A. ADAMU – 1490610315. MORENIKE E. MESEKO – 1490611276. OLALEKAN SANNI – 8806010977. ADIELE KELECHI U. – 1490611158. WOSU CHINYELU - 149061035

LECTURERS:

PROF. CHIOMA KANU AGOMOPROF. JOSEPH E.O. ABUGUDR. ADEJOKE OYEWUNMI

TABLE OF CONTENTS PAGES

Abstract2

1.0 The Concept of Rights 3

2.0 Right To Work 4

3.0 The Right To Work In Nigeria 12

4.0 International Instruments and Conventions On TheRight To Work 14 5.0 Rights At Work 15

6.0 Challenges To Realization of Employees’ Rights atWork 23

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In Nigeria

7.0 Recommendations 25

8.0 Conclusion 26

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ABSTRACT

Since the industrial revolution which ushered in newmanufacturing processes, mechanisation and transformation oflabour, the need to find a balance between the competinginterests of workers and their employers in the transformedwork environment has always been on the front burner. This hasresulted in the recognition of certain basic claims, demandsand reciprocal duties between employers and employees withinthe context of their labour relationships. Again, given thesocial significance of labour, the obligation of the State toensure that its citizens are productively engaged as a meansof securing adequate means of livelihood has often beenemphasized.

However, whether or not the reciprocal claims of an employerand his employees create enforceable rights and bindingobligations has remained a subject of debate. Similarly,whether the obligation of the State to provide for itscitizens opportunities for securing means of livelihoodconfers on the citizens a right to work which they can enforceagainst the State equally provokes robust debates. Naturallyflowing from the above are salient questions such as, Is therea right to work in the real sense of rights; What is theprecise nature and scope of the right to work; Are thererights at work as distinct from mere privileges, etc.

Against the background of the above, this Paper interrogatesthe concept of right to work within the context of Hohfeld’sdefinition of rights. The Paper also examines the right towork in Nigeria, and discusses the right to work as a humanright standard which States have an obligation to uphold. ThePaper also discusses the right to work in terms ofemployer/employee relationship, and in relation to theactivities of a trade union.

With the aid of International Conventions and locallegislations, this Paper x-rays the rights at work from theperspectives of both the employer and the employee, and

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examines to what extent these rights are in fact realisable inthe work place. The Paper also examines the challenges whichhamper the protection of the rights of the employee in Nigeriaas opposed to international best practices and modern trends,and suggests possible solutions.

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1.0 THE CONCEPT OF RIGHTS

It is the function of law to confer certain powers or allowcertain freedom to individuals in the form of legal rights. Inthis regard, the Black’s Law Dictionary gave severaldefinitions to the word, ‘Right’. However, for the purpose ofthis Paper, we would lean on its definition of ‘Right’ as‘something that is due to a person by just claim, legal guarantee or moralprinciples’ as well as ‘a power, privilege, or immunity secured to a personby law’. 1 Thus, the term ‘right’ presupposes a justiciable claim,on legal or moral grounds, to have or obtain something, or actin a certain way. In other words, rights are entitlements orassertions of interests that are backed by legal or moralprinciples, and legal rights are those interests which havebeen legally recognized and protected.

The word ‘Right’ in Hohfeld’s jurisprudential theory, impliesthe existence of a correlative duty on another to uphold theright or to refrain from disturbing same2. In other words,‘right’ involves a legal claim by one person on another whichimposes on that other a certain duty. By way of illustration,Hohfeld in his jural relations maintains that to say that Xhas a legal claim, i.e. a right, means that he is legallyprotected from interference by Y or against Y's withholding ofassistance with respect to X's project, Z. Conversely, Y, whois to abstain from interference, or is required to provideassistance in connection with X's project, Z, is under acorrelative duty to do so3. This implies that he who has theright must be able to pinpoint another person with a correlativeduty either in terms of shield or assistance. Thus, the holderof a right is normatively protected (with the backing of thestate, if necessary) against the interference oruncooperativeness of one or more other persons. Anyone againstwhom the right obtains is under a duty to comply with its terms

1 See Page 1347, Black’s Law Dictionary, 8th Edition by Bryan A. Garner2 See Nikolai Lazarev, Hohfeld’s Analysis of Rights: An Essential Approach to aConceptual and Practical Understanding of the Nature of Rights, (2005) 9, MurdochUniversity Electronic Journal of Law ([2005] MurUEJL 9) accessed athttp://www.austlii.edu.au/au/journals/MurUEJL/2005/9.html3 ibid

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whether the terms call for non-interference or for assistance4.In simple terms, there can be no right without a duty, andvice versa.5

In apparent concurrence with the above theory, Salmonddescribed a ‘right’ as ‘an interest recognized and protected by a rule ofright. It is any interest, respect for which is a duty, and the disregard of which is awrong’. He stated that rights which might have originated inmoral or natural rights should necessarily get legalprotection and recognition in order to be enforceable throughthe courts of law as legal rights.6

Also, in considering the word, ‘Right’, the Will theory7 ofright views it as an inherent attribute of human will. Fromthis theory, the subject matter of a right is derived from theexercise of a human will. Vinogradoff observed that when a manclaims something as his right, he claims it as his own or asdue to him. Therefore, a right supposes a potential exerciseof power in regard to things or persons. It enables thesubject endowed with it to bring, with the approval of the organized society, certain things within the sphere of actionof his own will.

On the other hand, ‘Work’ is defined by the Black’s LawDictionary as ‘the physical and mental exertion to attain an end especiallyas controlled by and for the benefit of an employer’: it simply means,‘labor’.8 ‘Work’ is also defined as ‘an activity  involving mentalor physical effort done in order to achieve a result’.9 As a verb, ‘to work’means to be engaged in physical or mental activity in orderto achieve a result.10 To work is to exert effort in order to

4 See Theories of Rights: Hohfeld And the Interest/Will Debate, accessed atwww.law.harvard.edu/faculty/cdonahue/courses/prop/mat/Hohfeld.pdf5 Per Holmes J. in American Bank & Trust C. V. Federal Reserve Bank of Atlanta, 256 U.S.350 (41 S.Ct. 499, 65 L.Ed. 983); also available atwww.law.cornell.edu/supremecourt/text/256/3506 Salmond on Jurisprudence, 215-217, 12th Edition.7 Austin, Holland, Pollock and Vinogradoff are the main exponents of the jurisprudential Will Theory of Right.8 Black’s Law Dictionary, 8th Edition by Bryan A. Garner, at Page 1635.9 See Oxford Advanced Learners Dictionary (Online Edition), accessed athttp://www.oxforddictionaries.com/definition/english/work10 ibid

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make something, to achieve something, to produce a desiredeffect11. When one thinks of work, one often thinks of a job.But work is far more than a job. Although work certainlyprovides for basic subsistence needs and decent livingconditions, this is not its only function. Work is, above all,an activity through which an individual fits into the world,creates new relations, uses his talents, learns and grows anddevelops his identity and a sense of belonging. Therefore,working is a meaningful way to prove one’s existence, andhopefully, that it is worth to be lived12. Thus, the notion of‘work’ has several definitions, but they all share the idea ofa purposeful activity. This notion generally refers to expendingenergy through a set of coordinated activities aimed atproducing something useful.13

It is in view of the above that this Paper seeks to examinethe right to work as a concept, and to decipher if it actuallyexists for the benefit of an employee and is guaranteed underthe Nigerian law as an inherent attribute of human will. ThisPaper also seeks to elucidate on the concept of the right atwork, its place with an employee under Nigerian law and towhat extent it enures to the benefit of an employee under theNigerian law.

2.0 RIGHT TO WORK

2.1 Meaning Of Right To Work

It is pertinent at this juncture to pose some questions asregards right to work. The questions are: Is there a right to work?If there is, what is right to work? Does such a right exist under the Nigerianlaw?

11 See Page 3 of the Conference Paper titled ‘The Meaning of Work in ModernTimes’ delivered by Estelle M. Morin, Ph. D., professor, HEC Montréal, andpsychologist at the 10th World Congress on Human Resources Management, Riode Janeiro, Brazil, August, 20th, 2004 accessed athttp://web.hec.ca/criteos/fichiers/upload/MOW_in_MTimes_EMM200804.pdf12 ibid13 Ibid at Page 5

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The question whether or not there exists a right to work,properly so called, has engaged the attention of manycommentators over time. Professor C. K. Agomo had queried theprecise nature and scope of this right when she enquired asfollows:

“….What exactly is meant by this concept of the right to work? Does itmean the right of the worker to work at his trade to the best of hisability without let or hindrance by others? Or does it mean the right ofthe worker to force himself upon an employer whether or not thatemployer wishes to engage the particular worker?”14

Under the common law, the cardinal rule governing master andservant species of employment is that a willing servant cannotbe foisted on an unwilling master.15 This would seem to suggestthat an employment relationship can only arise by contract,and not by compulsion. However, does the right to work not gobeyond creating employer-employee relationships?

On the other hand, the common law also recognises a man’sright to work at his trade or profession without beingunjustly excluded from it. 16 This introduces a sociologicaldimension to the discussion, as factors such as enablingenvironment, non-discrimination, and other variables must beaddressed in determining the precise nature and boundaries ofthe right to work. From a sociological perspective, does theState not have a responsibility to provide work for itscitizens, considering the fact that having a job is directlylinked to being able to secure a livelihood?

The right to work means the right to participate in theproducing and servicing of activities of human society and theright to participate in the benefits accrued through thesejoint activities to an extent that guarantees an adequate

14 C. K Agomo, The Right to Work and the Right to Strike in Nigeria, a Paper presentedat the 21st Annual Conference of Law Teachers, 1983, Page 4.15 See the cases of Osisanya V. Afribank, accessed at http://www.nigeria-law.org/Kunle%20Osisanya%20v%20Afribank%20Nigeria%20Plc.htm; Dr. Chukwumah v. Shell PetroleumDevelopment Co. of Nigeria Ltd (1993) 4 NWLR  (Pt289)512 at 560; (1993) 5 SCNJ 1,and Olanrewaju v. Afribank Nig. Plc. (2001) 13 WNLR  (Pt 731) 691 at 705, 716;    (2001) 7 SCNJ. 493.16 See Lord Denning, in Nagle V. Fielden (1966) 1 All E.R. 689.

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standard of living. It is thus promoted as a human right towhich every individual is entitled.

There are basically three situations in which the concept ofthe existence and potency of the right to work could behighlighted. These situations are:

(i) Right to Work in relation to the State; (ii) Right to Work in relation to an Employer; and (iii) Right to Work in relation to a Trade Union of

workers.

We shall briefly examine the right of work in each of theabove situations.

2.2 Right To Work In Relation To The State

This paper takes the position that the right to work goesbeyond creating jobs or employment; it extends to creating theenabling environment for citizens to secure suitable means oflivelihood, which includes adequate employment, self-employment and all other productive engagements. It is in thiscontext that most States recognise that their citizens have aright to work, and set for themselves the task or duty ofproviding the structures for the realisation of this right.17

Interestingly, most States that recognise this right to workmake them non- justiciable18. This means that citizens cannotenforce their so-called right to work against the State. Theargument most easily proffered to justify the non-justiciability of the right to work in most jurisdictions isthat it requires robust finance to guarantee such rights,which the State may not afford. It is this absence ofenforcement that has given fillip to the arguments anchored on Hohfeld’s conception of rights, which deny the existence ofa right to work.

17 See Section 17(3)(a) of the Constitution of the Federal Republic ofNigeria 1999 (as amended)18 For instance, Section 17(3)(a) of the 1999 Constitution of the FederalRepublic of Nigeria forms part of Chapter 2 of the Constitution, which bySection 6(6) (c) is not justiciable.

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It is well appreciated that it is the primary responsibilityof the State to provide conducive and convenient platform forits citizens to earn a living. Government is duty bound tocreate the conducive environment for employment opportunity aswell as for rights to means of livelihood.

In spite of the non-justiciability of this right to work insome States, nonetheless, the right to work has beenguaranteed by international standards which impose obligationson States regarding this right.

The first of the specific rights recognized in theInternational Covenant on Economic, Social and Cultural Rights(ICESCR)19 is the right to work. This right deals exclusivelywith access to work, and its main coverage is for personswithout access to work. A very relevant international Statutein this regard is the International Labour OrganisationEmployment Convention20.

2.2.1 Work As A Human Rights StandardUnlike most human perceptions regarding some needs for whichsome basic standards have been established to protect rightsrelating to them which are generally viewed as positive, forinstance, right to food, right to education, right to fairtrial and right to free speech, the perception regarding theright to work is seen to have some negative implicationsrelated to the strain of mental or physical effort, todistress and even some degree of suffering on the part of anemployee. For many people, work is taken as a duty21.  Thisattitude was aptly captured by James Willman when he bemoanedthis modern psychological trend thus:

“We moralize work and make it a problem, forgetting that the hands love towork and in the hands is the mind. That “work ethic” idea does more toimpede working… it makes it a duty instead of a pleasure. (…) I merely want

19 International Convenant on Economic, Social and Cultural Rights, adopted16 Dec. 1966, Article 6. 20 International Labour Organization Employment Policy Convention of 1964(No. 122) 21 Accessed at www1.umn.edu/humanrts/edumat/IHRIP/circle/

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to speak of working as a pleasure, as an instinctual gratification — not just“the right to work”, or work as an economic necessity or a social duty or amoral penance laid onto Adam after leaving the Paradise. The handsthemselves want to do things, and the mind loves to apply itself. Work isirreducible. We don’t work for food gathering or tribal power and conquest orto buy a new car and so on and so forth. Working is its own end and bringsits own joy; but one has to have a fantasy so that work can go on, and thefantasies we now have about it — economic and sociological — keep it fromgoing on, so we have a huge problem of productivity and quality in ourWestern work. We have got work where we don’t want it. We don’t want towork. It’s like not wanting to eat or to make love. It’s an instinctual laming.And this is psychology’s fault: it doesn’t attend to the work instinct.”22

Recognizing the need to encourage work, the right to work wascrystallized as basic human rights in the UniversalDeclaration of Human Rights (UDHR), 1948. The UniversalDeclaration of Human Rights (UDHR) states that:

“Everyone has the right to work, to free choice of employment, to justand favorable conditions of work and to protection againstunemployment.”23

This is equally affirmed by the International Covenant onEconomic, Social, and Cultural Rights (ICECSR) which defines“the right to work as including the right of everyone to the opportunity to gainhis living by work which he freely chooses or accepts.”24

This right therefore constitutes a fundamental right whichallows an individual to assure his own survival and that ofhis family and collective organization is necessary for thedefence of this right.

This rationalized its extension by Article 6 of the ICESCR toinclude "the right of everyone to the opportunity to earn hisliving by work." Thus, the crucial element in this human22 James Hillman (1989) A Blue Fire. Selected Writings. New York: Harper & Row, pp. 171-17223 Article 23.1 of the UN General Assembly Universal Declaration of HumanRights (1948)24 Article 6.1 of the ICECSR

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rights standard is the opportunity to earn a living by work. Whatdoes that mean? By Article 11 of the ICESCR25, there is a rightto an adequate standard of living that is unconditional, whichdoes not depend on work.  So work as a human rights standardis not to be seen as a means to have an adequate standard ofliving (as this is guaranteed by another human right), but toearn such a standard of living. 

The term "to earn" has certain moral overtones.  Work thus hasto do with one’s relation to and participation in one’ssociety’s or one’s family’s activities to secure its survivaland well-being by making an earning. It thus includes theacceptance and gratification one derives from having work todo in one’s community or society. Work as a human rightsstandard is, therefore, much more than just a tool to attainan adequate standard of living26 ; it allows persons to earntheir living.

From this insight, it could be seen clearly that work as ahuman right is quite different from mere wage labor eventhough it always means performing some activities that willsatisfy needs and create services for your one’s group andsociety for which it is, therefore, accepted and rewarded. Thehuman right to work recognizes work as something to which eachand every individual is entitled. The right to work thusensures that nobody is excluded from the economic sphere27. 

The type of work a person does depends on access to resources,education and training.  One can enjoy work as a wage-employedperson or as a self-employed person. The right to work meansthat State policies are deployed to ensure that access to workand resources is enabled in a way that allows for theparticipation of everyone who wants to work.  The right toearn one’s living, as discussed above, implies, at a minimum,that the benefits derived from these economic activitiesshould be enough to reach an adequate standard of living.  25 supra26 supra 27 Accessed at www1.umn.edu/humanrts/edumat/IHRIP/circle/, and EuropeanSocial Charter 1961

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The right to work is not satisfied by participation in justany type of economic activity.  In fact, it includes ‘theright of everyone to the opportunity to gain his living bywork which he freely chooses or accepts’. Thus, there is animportant element of choice and freedom in the economic ac-tivity to earn one’s living.  The right to work thereforemeans not only that work is distributed in a way that allowsfor the participation of everyone, but also that a person’spreference in how to earn his or her living is a human rightsguarantee as well.  In addition to the right to earn one’sliving, Article 6 of the ICESCR established a human right tofreely chosen or accepted work.  Here the term "accepted work"refers to wage employment whereas "chosen work" may be seen asself-employment.

2.2.2 International and Regional Standards On The Right To WorkThe Universal Declaration of Human Rights (UDHR)28 guaranteeseveryone "the right to work, to free choice of employment, tojust and favourable conditions of work and to protectionagainst unemployment."

Article 15 of the African Charter on Human and Peoples' Rightsprovides that ‘every individual shall have the right to workunder equitable and satisfactory conditions and shall receiveequal pay for equal work’

The ICESCR provides in Article 6 (1) for the ‘right to work,which includes the right of everyone to the opportunity togain their living by freely chosen or accepted work’. It alsosays, in Article 6 (2) that ‘the full realization of thisright shall include technical and vocational guidance andtraining programmes’. Under Article 1(2) of ILO Convention No.122 each member shall ensure that ‘there is work for all whoare available for and seeking work’.

2.2.3 State Obligations Arising From the Right To Work

28 Universal Declaration of Human Rights, Article 23 (1)13

It should be noted that from the above human rights standardsfor right to work, the generic State obligation under theright to work includes the State’s obligation to respect,protect and fulfil each person’s access to work to earn one’sliving and the obligation to guarantee that this work can befreely chosen or accepted. This means, for example, thatStates must not destroy a person’s opportunity to earn his orher living (obligation to respect); States must prevent thisopportunity from being destroyed by third parties (obligationto protect); and States must provide the opportunity to earnone’s living to each person who currently does not have thisopportunity (obligation to fulfil).  Moreover, people’spreferences as to the type of work they do must be satisfiedas far as possible.

The ICECSR in recognizing these obligations commits stateparties to take steps to achieve the full realization of thisright to work among which are by undertaking “technical andvocational guidance and training programs, policies andtechniques to achieve steady economic, social and culturaldevelopment and full and productive employment underconditions safeguarding fundamental political and economicfreedoms to the individual.”29

Some elements of the State’s obligations to fulfil the rightto work are as follows.

• Vocational guidance, training, employment servicesThe ICESCR30 includes some fulfilment-bound obligations such as"technical vocational guidance and training programs" and"policies and techniques to achieve economic, social andcultural development and full and productive employment." As aState obligation related to a human right, access tovocational guidance and training31 must be possible foreverybody, and hence either free of cost or at a cost that

29 Article 6.2 of the ICECSR30 supra31 See Section 18 (1) & (3) Constitution of the Federal Republic of Nigeria 1999 (as amended)

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does not limit the exercise of a person’s right to technicalguidance and training programs.

Non-DiscriminationAnother element of a State’s obligation is non-discrimination32.  People must not be denied access to work orto any policies or programs related to this right on the basisof gender, ethnic or national origin, religion, or social orother status.

• Full employmentEmployment should always be understood both in terms of wageemployment and self-employment. Even though Article 6 of theICESCR33 formulates that states only have "to take steps" to-wards full employment, Article 2 (1) qualifies that thesesteps have to be taken to the maximum of available resources,and hence as quickly as possible. In keeping with this demand,several interventions have been made by the Federal Governmentto address the issue of general unemployment in Nigeria suchas the National Poverty Eradication Programme (NAPEP)established in 2001, and more recently, the Subsidy Re-investment Programme (Sure-P), all targeted to alleviateunemployment and poverty

2.3 Right To Work In Relation To Employers And Employees:

This right could be further explained under the following sub-headings listed below:

i. The right to engage; ii.The right to provide work for the employed; and iii. The right to remain continuously employed including

the right to be reinstated in the event of unjustifiedtermination.

2.3.1 The Right To Engage

32 See Sections 15 (2) & 17 (3)(a) Constitution of the Federal Republic of Nigeria 1999 (as amended)33 supra

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An employer has the intrinsic right to decide, pick and choosewhom he wants to work for him. An employer may not employ aperson who is capricious, malicious and morally reprehensivein character.

2.3.2 The Right To Provide Work for the EmployedUnder common law, an employer does not owe an employee anyduty to provide work, provided he pays his employee’s salaryas agreed. The aforesaid proposition was well adumbrated inCollier V Sunday Referee Publishing Co34, where the Judge,Asquith J, stated that ‘’It is true that a contract of employment does notnecessarily, or perhaps, normally oblige the master to provide the servant withwork. Provided I pay my cook her wages regularly, she cannot complain if I chooseto take any or all of my meals out’. However, there are exceptions inrespect of this common law position with regard to the rightto provide work being implied into the terms of contract,especially where opportunity for actual work is the essence ofsuch contract, for example, contract of apprenticeship inwhich the employer is under an obligation to cause theapprentice to be trained or instructed in the trade or skillor employment in which he is apprenticed35 and the contract ofemployment involving artistes where the amount of the workdone or performed by the artistes will increase the publicityand exposure of the latter. In such relationship, the employeris duty bound to provide work to further the essence of thecontract.

Section 17 (1) of the Labour Act thus stipulates:

‘Except where a collective agreement provides otherwise, every employershall, unless a worker has broken his contract, provide work suitable to theworker's capacity on every day (except rest days and public holidays) onwhich the worker presents himself and is fit for work; and, if the employerfails to provide work as aforesaid, he shall pay to the worker in respect ofeach day on which he has so failed wages at the same rate as would bepayable if the worker had performed a day's work:

34 (1940) 2 K.B. 64735 See Langton V Amalgamated Union of Engineering Workers (1974) I ALL ER 980 at 987, and Sections 49 - 50, Labour Act 1974

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Provided (a) where, owing to a temporary emergency or other circumstancesbeyond the employer's control (the period of which shall not exceed one weekor such longer period as an authorized labour officer may allow in anyparticular case), the employer is unable to provide work, the worker shall beentitled to those wages only on the first day of the period in question; and (b)this subsection shall not apply where the worker is suspended from work as apunishment for a breach of discipline or any other offence’.

Can it then be said that Section 17 of the Labour Act hasaltered the common law position to the effect that there is noduty to provide work so far as the employer is willing to payagreed wages? Since Section17 fails to define what is“emergency or other circumstance beyond the employer’scontrol’, it has become a question of fact in each casewhether such emergency or force majeure circumstance occurred.The suggestion is that such emergency or force majeurecircumstance may include flooding, shortage of water,electricity power breakdown, severe damage to machinery,closure for repairs of the factory, and perhaps, shortage ofraw materials. However, it is notable that if any suchcircumstance occurs to frustrate the contract between anemployer and an employee, such circumstance would constitutefrustration which would cause the duty to pay wages to cease,thereby ending the relationship between the employer and theemployee.

2.3.2 The Right to Remain Continuously Employed The main thrust of this head is to find the best jobprotection for the employee from incessant and unjustdismissal. The two competing protections for an employeeagainst wrongful dismissal or termination by an employer aredamages and reinstatement.

Judicial authorities have drawn a distinction betweenemployment with statutory flavor and those without statutoryflavour. In the former, reinstatement is the chief remedy asheld in the case of Olaniyan V University of Lagos36, whilst inthe latter, damages is the principal remedy. The principleupon which this distinction is made is based on the maxim thata willing servant cannot be forced on an unwilling master. This principle was36 (1985) 2 NWLR 599

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vividly demonstrated in the case of Evans Brother NigeriaPublishers Ltd V A.S Falaiye37, where the Court of Appeal heldinter alia, that the Defendant/Appellant can terminate thePlaintiff/ Respondent’s employment provided the latter is paidwhat is stipulated in the company’s conditions of service.

The facts of the case were that the Respondent, then,Plaintiff was first employed by the Appellant Company as atrainee editor in 1981. He was with the Company until 1983when he resigned his appointment to pursue a post graduatecourse abroad. In 1985, the Respondent re-joined the Companyand his new appointment was communicated to him in a letterfrom the Company dated 13th November 1985. The Respondentaccepted the offered appointment and resumed duties with theCompany. In the process of time, the Respondent’s designationof Deputy General Manager (Publishing) was later changed toController of Publishing Services. However, the relationshipbetween the Respondent and his employers remained for allpurposes very cordial. This was the position until late 1995when the Plaintiff had to proceed on vocation. While onvacation, he was formally communicated of an extension of hisleave by the Company’s Managing Director, and he continued hisvacation as directed by the in-house memorandum. While stillon this leave, he received a letter from the Managing Directorterminating his appointment with effect from 18th March 1996.

The Respondent sued praying the High Court for declarationthat the reported termination of his appointment with theAppellant Company was unlawful, invalid, null and void and adeclaration that he is entitled to remain in the Appellant’semployment until he attains the age of 60 years; anddeclaration that he is still in the employment of theAppellant. As an alternative to an order for reinstatement, heclaimed the salaries and allowances payable to him for a totalperiod of 21 years remaining for him to attain the retiringage of 60 years. The learned trial judge granted thedeclaration sought, set aside the termination order andawarded a total sum of N5,320,557 representing the salaries

37 (2005) 4 NLLR (Pt. 9) 108. CA. 18

and other entitlements which the Respondent would have earnedhad he continued working in the Appellant Company until heattained the retiring age of 60 years.

The Appellant was aggrieved and appealed the judgment of theHigh Court at the Court of Appeal. The Court of Appeal setaside the judgment of the High Court and entered judgment infavour of the Appellant to the effect that apart from anemployee with statutory flavor, an employer has exclusiveright to terminate the employment of an employee either forgood or bad reason.

2.4 Right To Work In Relation To A Trade Union Of Workers

Under common law, an employee under employment has the rightto work without molestation for refusing to join or forresigning from a Trade Union of workers. This principle andprotective position of common law was settled by the cases ofRookes V Barnard (1964) AC 1129 and Edwards V SOGAT (1970) 3WLR 713. To drive home this legal right, the House of Lordsper Lord Denning in Edwards V SOGAT has this to say:

‘... I do not think this trade union or any other trade union can give itself byits rules an unfettered discretion to expel a man or to withdraw hismembership. The reason lies in the man’s right to work, this is now fullyrecognized by law. It’s a right which is of essential importance when a tradeunion operates a ‘closed shop’ or 100 percent membership for that meansthat no man can become employed or remain in employment with a firmunless he is a member of the union. If his union card is withdrawn, he has toleave the employment, he is deprived of his livelihood. The Courts of thisCountry will not allow so great a power to be exercised arbitrarily orcapriciously or with unfair discrimination neither in the making of rules norin the enforcement of them…’

The above legal principle thus entrenches an employee’s rightto work as well as his right of association. The principle hasalso been given statutorily recognition in Nigeria by theprovisions of the Labour Act where Section 9 (6) thereofprovides that no contract shall make it a condition of

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employment that a worker shall or shall not join a tradeunion, or shall or shall not relinquish membership of a tradeunion.

From the foregoing, it is refreshing to note, however, thatthe right to work has been recognised as part of humanrights38, and has become entrenched in many internationaltreaties and conventions, which impose erga omnes obligationsand which state parties may not invoke the provisions of theirlocal laws to evade. We shall now examine the position of thelaw with specific attention to the right to work in Nigeria,vis-à-vis the international conventions which guarantee theright to work.

3.0 THE RIGHT TO WORK IN NIGERIA

The starting point of any discussion as to the existence andscope of the right to work in Nigeria would be the provisions of the 1999 Constitution, whichprovides in Section 17(3)(a) as follows:

“The state shall direct its policy towards ensuring that all citizens,without any discrimination on any group whatsoever, have theopportunity of securing adequate means of livelihood as well asadequate opportunity to secure suitable employment”.

The key features of the obligation of the Nigerian State fromthe above provision can be summarized as follows:

1. Provision of opportunity of securing adequate means of livelihood; 2. Provision of adequate opportunity to secure suitable employment;3. Ensuring that the opportunities provided in 1 and 2 above are open to all

without discrimination.

Also, under the said Constitution39, the State shall within thecontext of the ideals and objectives for which provisions aremade in the Constitution ensure that ‘…reasonable national minimum

38 See Article 23 of the Universal Declaration of Human Rights (UDHR) U.N G.A Res. 217 A (III), U.N. Doc. A/810 at 71(1948)39 Constitution of the Federal Republic of Nigeria 1999, Section 16 (2)(d)

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living wage,….unemployment, sick benefit…are provided for all citizens. Asalready highlighted above, the Nigerian Constitution40 alsoprovides that ‘‘all citizens, without any discrimination on any groupwhatsoever, have the opportunity for securing adequate means of livelihood as wellas adequate opportunity to secure suitable employment’’

The above provisions come under Chapter II of theConstitution, which contains the fundamental objectives of theGovernment and directive principles of state policy. BySection 6(6)(c) of the Constitution, the provisions of ChapterII are non-justiciable, meaning that the obligation of theState to provide for its citizens adequate opportunity tosecure suitable employment cannot be enforced by the citizensin a court of law. Does this then mean that the right to workcannot be realised in Nigeria?

As mentioned earlier, the right to work has been recognised aspart of human rights41, and has been codified in manyinternational conventions which Nigeria has ratified42. Thesetreaties are therefore binding on Nigeria. Most importantly,Section 254C(2) of the Constitution of the Federal Republic ofNigeria (Third Alteration) Act 2010 has provided the legalbasis for application in Nigeria of International Conventionsin the following provision:-

“Notwithstanding anything to the contrary in this Constitution, theNational Industrial Court shall have the jurisdiction and power to dealwith any matter connected with or pertaining to the application of anyinternational convention, treaty or protocol of which Nigeria hasratified, relating to labour, employment, workplace, industrial relationsor matters connected therewith”

In view of the above provision, the provisions of Section 6(6)(c) of the Constitution of the Federal Republic of Nigeria1999 has been weakened by this constitutional provision byalteration, and consequently, it is posited that Nigerians cancertainly enforce international conventions which provide forright to work, and which Nigeria has ratified, particularly40 Constitution of the Federal Republic of Nigeria 1999, Section 17 (3)(a) 41 See the UDHR, supra note 38.42 See for example, the African Charter on Human and Peoples’ Rights, pmbl, OAU Doc. CAB/LEG/67/3 Rev 5, 21 I.L.M. 59 (1981)

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where it touches on equal access to employment and means oflivelihood. This amendment has taken care of the Supreme Courtdecision in The Registered Trustees of National Association ofCommunity Health Practitioners of Nigeria & 2 Ors. V Medicaland Health Workers Union of Nigeria & Ors. (2008) 37 WRN 1which held that ratified ILO Conventions are not applicable inNigeria until domesticated by an Act of the National Assemblyin accordance with Section 12(1) of the Constitution of theFederal Republic of Nigeria 1999 which prohibits any Treatybetween the Federation and any other Country from having theforce of law except to the extent to which any such treaty hasbeen enacted into law by the National Assembly.

The above constitutional provisions in Sections 16 (2)(d) and17 (3)(a) of the 1999 Constitution are in consonance with theexpress provisions of Articles 6 and 11 of the InternationalCovenant on Economic Social and Cultural Rights, as well asArticle 1 (2) of the International Labour OrganizationConvention No. 122. Thus, the provisions of Sections 16(2)(d)and 17(3)(a) of the Constitution of the Federal Republic ofNigeria 1999 though not enforceable against the Government ofNigeria as justiciable rights by virtue of Section 6 (6)(c) ofthe Constitution of the Federal Republic of Nigeria 1999,however, regarding the enforceability of the InternationalConventions, Section 7 (6) of the National Industrial CourtAct 2006 by which the Court is empowered in exercising itsjurisdiction or any of the powers conferred upon it by the Actor any other enactment or law, to have due regard to good orinternational best practice in labour or industrial relationsas a question of fact under our law, has enabled theseConventions to become enforceable by any person pleading andestablishing as a fact what is the best international practicein relation to the facts in issue regarding such Convention43.

Thus, it is submitted that it is only in respect of placingreliance on best international practice in respect of anyinternational convention and establishing it as a fact inissue in any matter before the National Industrial Court for43 See Oyo State Government V. Alhaji Bashir Apapa and Ors. (2008) 11 NLLR (Pt.30) 322.

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which the Court has jurisdiction that the internationalconvention in respect of right to work be enforceable againstthe State as a right even in respect of the provisions ofChapter II of 1999 Constitution.

Therefore, the position of the law in Nigeria today is thatthe right to work is guaranteed under best internationalpractice principles in respect of international conventionscovering the right to work.

4.0 INTERNATIONAL INSTRUMENTS AND CONVENTIONS ON THE RIGHT TO WORK

Having identified the operations of the right to work inNigeria, it would therefore be apposite at this juncture toencapsulate some International Conventions which makeprovisions for the recognition of the existence of the rightto work for which by the combined provisions of Section254C(2) of the Constitution of the Federal Republic of Nigeria(Third Alteration) Act 2010 and Section 7 (6) of the NationalIndustrial Court Act 2006, they may be upheld by the NationalIndustrial Courts in labor disputes before it as establishingand guaranteeing the enforceability of the right to workprovisions in them in Nigeria.

4.1 The Universal Declaration of Human Rights (UDHR)

The foremost international document which recognized theright to work as a human right is the Universal Declarationof Human Rights (UDHR) adopted by the United Nations GeneralAssembly on 10th December 1948.

Article 23(1) of the UDHR provides as follows:

“Everyone has the right to work, to free choice of employment, to justand favorable conditions of work and to protection againstunemployment.”

It has often been argued that being a General AssemblyResolution, the UDHR is not binding on member states of theU.N. As one commentator pointed out, the UDHR was adopted by a

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deliberative, not a legislative body; it is called a“declaration”, not a convention, covenant or other designationcommonly used for binding international agreements44. However,the UDHR has subsequently become part of customaryinternational law, and even jus cogens which States areobligated to respect and promote. According to ProfessorUmozurike, “This constant and widespread recognition of the principles of theUniversal Declaration clothes it, in my opinion, with the character of customarylaw… the Declaration has acquired a status inside and outside the United Nationswhich gives it high authority as the accepted formulation of the common standardof human rights”.45

4.2 The International Covenant on Economic Social andCultural Rights (ICESCR)

As earlier highlighted above, Article 6(1) of the ICESCRprovides for the right to work. According to the UN Committeeon Economic Social and Cultural Rights, the right to work inArticle 6 (1) of ICESCR encompasses the following elements:

Countries must have specialised services to assist andsupport individuals in order to enable them to identifyand access available employment.

The labour market must be open to everyone. Inparticular, there can be no discrimination in access toand maintenance of employment on the grounds enumeratedin article 2 of ICESCR, namely race, colour, sex,language, religion, political or other opinion, nationalor social origin, property, birth or other status, whichhas the intention or effect of impairing or nullifyingexercise of the right to work. Age should be consideredto be a status on which discrimination under article 2 ofICESCR is prohibited. Limiting the work entitlements ofnon-citizens would not constitute unlawful discriminationunder article 2 of ICESCR.

There should be physical accessibility to employment forpeople with disability.

44 See Louis Henkin, in International Enforcement of Human Rights (Bernhardt & Jolowicz (eds). Newyork, Springer- Verlag Berlin Heidelsberg 1993) P.545 U.O Umozurike, Introduction to International Law, (2nd Edition, Spectrum Law Publishing, 1999, p.149

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The right to work should be protected, by providing theworker with just and favourable conditions of work, inparticular to safe working conditions, the right to formtrade unions and the right freely to choose and acceptwork.46

The right also encompasses the right not to be unjustlydeprived of work, requiring security against unfair dismissal.

In spite of the above scope, the right to work in Article 6 ofICESCR does not equate to a guarantee of full employment sincethe Committee recognizes the existence of internationalfactors beyond the control of countries which may hinder thefull enjoyment of the right to work in many countries.

5.0 RIGHTS AT WORK

These are rights open to the employer and employee at the workplace.

The international Labour organization in 1998 adopted a newinstrument called the Declaration of Fundamental Principlesand Rights at work. This instrument codified the internationallabour organization’s understanding of the fundamental humanrights contained in the ILO constitution and standardsregarding rights at work as comprising the following:

i. Freedom of association and the right to bargaincollectively;

ii. Elimination of all forms of forced labour; iii. Effective abolition of child labour; and iv. Elimination of discrimination in respect of employment

and occupation.

There has been eight Conventions passed since 1932 which coverthe above Rights expressed as freedoms and rights. They are:46 See Right to work and rights at work, Public Sector Guidance Sheet,Published by the Australian Government, Attorney General’s Department,accessed athttp://www.ag.gov.au/RightsAndProtections/HumanRights/PublicSectorGuidanceSheets/Pages/default.aspx)

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1. Freedom of Association and Protection of the Right toOrganize Convention No. 87 of 1948 with entry into force on 4th

July 1950 which was ratified by Nigeria on 17th October 1960;2. Right to Organize and Collective Bargaining Convention No. 98of 1949 with entry into force on 18th July 1951 which wasratified by Nigeria on 17th October 1960;3. Forced Labour Convention No 29 of 1930 encompassingcompulsory labor. This has an entry into force date of 1st May1932 and was ratified by Nigeria on 17th October 1960;4. Abolition of Forced Labour Convention No 105 of 1957 withentry into force on 17th January 1959 and was ratified by Nigeriaon 17th October 1960;5. Minimum Age Convention for admission to employment No. 138 of1973 which is a fundamental Instrument adopted on 26th June 1973at the Geneva, 58th ILC session adoption date of 26th June1973, and which Nigeria ratified on 2nd October 2002;6. Worst Forms of Child Labour Convention No 182 of 1999(No. 182) which is a fundamental Instrument concerning theProhibition and Immediate Action for the Elimination of theWorst Forms of Child Labour adopted at the Geneva, 87th ILCsession of 17th June 1999 with an Entry into force date of 19th

November 2000. Nigeria ratified it 2nd October 2002;7. Equal Remuneration Convention No 100 of 1951 which is afundamental Instrument that was adopted on 29th June 1951 at theGeneva, 34th ILC session, having an Entry into force date of23rd May 1953, and ratified by Nigeria on 8th May 1974; and 8. Discrimination (Employment and Occupation) Convention No 111of 1958 which is a fundamental Instrument adopted on 25th June1958 at the Geneva, 42nd ILC session with an Entry into forcedate of 15th June 1960. This was ratified by Nigeria on 2nd

October 2002.

The declaration of fundamental principles and rights at workprovides that even if States have not been able to ratify theconventions which embody these principles and rights, they,however, have an obligation arising from the very fact ofmembership of the organization to respect, to promote andrealize, in good faith and in accordance with the ILO

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Constitution, the fundamental rights which are the subjects ofthe ILO conventions recognized as fundamental.

5.1 Employee’s Right At Work

We shall discuss briefly the rights accruing to an employee atwork vis-a-vis the ILO declaration of fundamental principlesand rights at work and the above Conventions made pursuant toit.

5.1.1 Employee’s Right of Freedom of Association and the Right to CollectiveBargaining

By Section 40 of the Constitution of the Federal Republic ofNigeria 1999 (as amended), the right to freedom of associationis guaranteed. The Section provides that ‘every person shall beentitled to assembly freely and associate with other persons, and in particularhe may form or belong to any political party, trade union or any associationfor the protection of his interest’.

It is important to note that Nigeria has ratified the AfricanChapter on Human and Peoples Rights47 and the above mentionedILO Conventions 87 and 98 relating to freedom of associationand the right to collective bargaining. The above clearlyshows that an employee has absolute right to form, join and orbelong to any trade union, labour union as he wishes, andwithout coercion. The employer does not have the legal rightto restrict, stop, dictate to or harass the employee forjoining any particular labour union or trade union. However,in the case of Osawe and Ors V The Registrar of Trade Union48,the Supreme Court held that the right of associationguaranteed in Section 40 of the 1999 Constitution as amendedis not an absolute right, but a qualified right which can bederogated from. The facts of the case are that the Registrarof Trade Union refused to register a trade union called “TheNigeria United Teachers Service Workers Union” on the groundof the existence of a trade union, the Non-Academic StaffUnion of Educational and Associated Institutions, withsufficient representative interest of the Applicants. TheAppellant appealed to the High Court and sought for an order

47 Article 10 thereof48 (1985) I NWLR (Pt 4) 755

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of the Court to compel registration of the Union by theRegistrar. The order was granted but on appeal, the decisionof the High count was set aside, where upon the Appellantappealed to the Supreme Court against the decision of theCourt of Appeal. In refusing the appeal, the Apex Court heldthat the right of association is not absolute, rather it isqualified.

In supporting the judgment of the Supreme Court in the aboveCase that the right of association is not absolute, Section 11of the Trade Union Act had restricted employees of someorganizations from forming or joining trade unions. Theseorganizations are the Nigeria Army, Navy, Air force, theNigerian Police Force, the Customs Preventive Services, theNigerian Security Printing and Minting Company Limited, theCentral Bank of Nigeria, NITEL Limited, and every federal orstate government establishment that is authorized to bear armsas well as any other establishment as the Minister of Labormay from time to time specify by Order.

5.1.2 Right Against Discrimination

The right tends to ensure the equal treatment of and equalopportunity for employees irrespective of sex, race, religionand nationality. Discrimination has a wide ranging effect onlabour relations at the work place. It runs from the method ofemployment adopted by an employer in selection of whom toemploy, to the terms on which he offers employment, andincludes but is not limited to access to promotion, transfer,training or other benefits, or dismissal. One clear exceptionof discrimination is where a question of national securityarises and whether discriminatory act is done under statutoryauthority.

5.1.3 Right to Payment for Work Done

As is generally accepted, the most significant considerationwhich an employer may give to an employee in return for workperformed or services rendered to the employer is theemployee’s monetary remuneration in terms of salary or wagesin legal tender. Section 1 of the Labour Act stipulates thatthe wage of a worker shall in all contracts be made payable in

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legal tender, and if the wages of a worker is made payable inany other manner, the contract shall be illegal null and void.

This right is contained in the contract of employment and canbe enforced by the employee

with little or no barrier. All the employee needs to prove isthat he performed his job for the period for which payment isclaimed.

5.1.4 Right to Leave

This right pertains mainly to women during pregnancy. TheLabour Act guarantees the right of pregnant women to be giventime of pre-natal and post-natal pregnancy. This is usuallyreferred to as maternity leave. This right to leave applies toboth legitimate and illegitimate pregnancy. Section 54 (5) ofthe Labour Act provides that in subsection (1) (d) of thissection, child includes both a legitimate and illegitimatechild. The only condition for grant of maternity leave is theproduction of a medical certificate given by a registeredmedical practitioner stating that the women is pregnant andspecifying the proposed time of delivery. Section 54 of theLabour Act also gives women an entitlement of six weeks restconfinement if a medical practitioner so states in a medicalcertificate.

Besides, Section 18 of the Labour Act provides for leave withpay for an employee in the form of annual holidays after 12months continuous service of the employee with his employer.

This right to leave is not, however, limited to a motheralone. By extension it covers the father as ‘parental leave’by providing paid or unpaid time off work to care for a childor make arrangements for the child’s welfare. The term‘parental leave’ includes maternity, paternity and adoptionleave, and although Section 54 of the Labour Act provides fora minimum of 12 weeks maternity leave with half pay forpregnant women workers, the Federal Government in 2009approved, via a Circular, 16 weeks maternity leave with fullpay for all female Federal Government employees irrespectiveof their marital status and the number of babies delivered.

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This is in line with UN Convention 183 (Maternity ProtectionConvention, 2000) which recommends a minimum of 16 weeksmaternity leave for women. This good example has been followedby Lagos State which made provisions under their Civil ServiceHuman Resources policy for adoption and paternity leave in theabsence of such provisions in the Labour Act.

5.1.5 Right to Protection from Liability

The liability inferred here is called vicarious liability.This principle shields the employee from liability and placessame on the employer for the employee’s negligence and forinjury caused to third parties in the course of hisemployment. In the case of Ifeanyichukwu (Osondu) Co. Ltd VSoleh Boneh,49 Ogundare JSC held that both master and servantare joint feasors and that it is not necessary to join theemployee to any action for vicarious liability. Rather, whatthe claimant needs to establish to succeed in such an actionare- the liability of the wrong doer, that the wrong doer is aservant of the master and that the wrong doer acted in thecourse of his employment with the master.

The facts of the aforesaid case are that the Plaintiffinstituted an action against the Defendant for damages itsuffered as a result of an accident involving two vehiclesbelonging to the Plaintiff and the Defendant respectively. Theaction was initially brought against the Defendant’s driver asthe 1st Defendant and the 2nd Defendant, jointly.

However, the 1st Defendant was subsequently struck off theproceedings when he could not be served with the writ ofsummons. The action thereafter proceeded against the 2nd

Defendant. The 2nd Defendant contended that there was no causeof action against it since their liability was only vicariousunless the 1st Defendant who was primarily liable was firstprosecuted. The trial judge agreed with this reasoning anddismissed the action. The plaintiff appealed to the Court ofAppeal and lost. The Plaintiff further appealed to the SupremeCourt and won. The Apex Court took time to explain the natureand scope of this liability thus:

49 (2000) 12 W.R.N.I30

“The general principle of law which has its roots in earliest years of thecommon law is that a master is liable for any wrong even if it is a criminaloffence or a tortuous act committed by his servant while acting in the courseof his employment.”

5.2 Other Rights At Work Of An Employee

These rights include but are not limited to the following:

5.2.1 The Right To Be Given Work To Do:

This right has been highlighted earlier50. However, a furtherlook would reveal that it is a fundamental right whichestablishes the interest of an employee in his self-esteemresulting from work rather than in his earning a living.

Thus, the common law rule in Collier vs. Sunday RefereePublishing Co. Ltd51 has been abandoned in recent times suchthat Lord Denning in Langston vs. Allen52 had the following tosay in making the decision of the House of Lords in that Case:

‘We have repeatedly said in this court that a man has a right to work whichthe courts will protect53. I would not wish to express any decided view, butsimply to state the argument which could be put forward for Mr. Langston. Inthese days an employer, when employing a skilled man, is bound to providehim with work. By which I mean that a man should be given the opportunityof doing his work when it is available and he is ready and willing to do it. Askilled man takes pride in his work. He does not do it merely to earn money.He does it so as to keep himself busy, and not idle, tax his skill, and to proveit; to have the satisfaction of a task well done. To my mind, therefore, it isarguable that in these days a man has by reason of an implication in thecontract, a right to work.’’

In Coleman v S. & W. Baldwin and Petersen v London Borough ofCamden54 it was said that it may be a breach of contract todeprive an employee of a substantial portion of his job. Thesedecisions seem to depend largely on the view that employees donot work for wages alone, but also for satisfaction derived

50 See Page 9 above51 (1940) All ER 23452 (1974) 1 All ER 98053 Nagle v Feilden and Hill v. C.A Pearson and Co. Ltd54 (1977) IRLR 342; (1981) 1 CR 674; 1981 IRLR 173 CA

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from a particular job and appear to be a radical departure fromthe principle expressed in the Sunday Referee Case (supra). Also,in Breach v Epsylon Industries55 the duty of the employer toprovide work for a skilled workman, in this case, an Engineer,was upheld.

It will be clearly seen therefore, that in so far as the rightto work is concerned, the common law position has changed agreat deal over the years56. However, it remains to be madeclear that this modification or development of the law does notgive the employee the right to pick and choose an aspect of thejob that he finds most satisfying57. The employee is still boundto do his job irrespective of whether or not he finds itsatisfying.

As highlighted above58, Section 17 (1) of the Labour Actamplifies this right in favor of an employee and places amandatory responsibility on the employer to provide workwhenever the employee is fit and ready to work.

Thus, the duty to provide work to the employee under thestatute is not absolute or unconditional but the duty to paywages on failure to provide work is obligatory. This duty toprovide work is based on the condition that the employee haspresented himself and is fit for work and has not broken hiscontract. The use of the word SHALL makes it obligatory on theemployer to provide work. At the same time, the sectionempowers the employer to pay wages should he fail to providework to the employee.

Furthermore, by virtue of this sub-section 1 (a) of S. 17, anemployer who suspends an employee with pay may not be in breachof the obligation to provide work. Although a suspension couldbe without pay where an employee has been found guilty of anoffence. The practical effect of these provisions is that an

55 (1976) KR 31656 Oladosu Ogunniyi ‘’Nigerian Labour and Employment Law in Perspective’’(2003) Folio Publishers Ltd, Ilesa.57 Peter Carnie & Sons Ltd vs. Paton (1979) I.R.L.R 26058 See Page 9 above

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employer discharges his statutory obligation to a worker by thepayment of the appropriate wages unless when he is onsuspension.

However, where owing to a temporary emergency or othercircumstances beyond the employer’s control, the period ofwhich does not exceed one week or such longer period as anauthorized labour officer may allow in any particular case, theemployer is unable to provide work, the worker is entitled towages on the first day of the emergency or other circumstance.It seems to follow that where an emergency or othercircumstance lasts for more than a week where no authorizationis obtained or where an authorized period has expired that theduty of the employer to provide work or pay the appropriatewages must be resumed. Thus, the employer can stop payment of wages by terminating the contract or if it isbrought to an end by frustration.59

For employees not under the purview of the Labour Act, itappears that an obligation to provide work may only be deduced from the terms of their contract ofemployment. In SPDCN v Nwaka60 where the issue was inter alia,whether a Nigerian employee of Shell could obtain declarationsagainst the employment of an expatriate into a position whichhe claimed to be qualified and also whether he could obtaindeclarations against rendering him redundant and his ultimatetermination, the Supreme Court held that if the contract ofemployment stipulates that an employee should be found a jobafter re-organisation, the Court will enforce such acontractual term but for the court to assume jurisdiction toreview the decision of the company to redeploy an employeewithin its organization in the absence of a contractual term toguide it, will not only be an unwarranted interference with thefreedom of contract and in the affairs of the company, but alsoan exercise for which the court is ill-suited.

59 Egerton E. Uvieghara ‘’Labour Law in Nigeria’’ (2001) Malthouse Pres Ltd.Lagos, P. 11260(2003) 6 Nigerian Weekly Law Reports (NWLR) Pt. 815, p.184

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An implication from the SPDCN v Nwaka case (supra) is thatalthough the employer has a duty to provide work suitable tothe worker’s capacity, the employer has a right to determinethe work suitable to the employee’s capacity by virtue of thecontract of employment and prevailing exigencies of theemployer’s policies.

5.2.2 The Right To an Indemnity: An employee is entitled to a right toindemnity in respect of expenses reasonably incurred whilstexecuting his duties.

5.2.3 The Right To Safety: The employee has a right to safety in thecourse of his employment which flows from the duty of care owedto him in that regard by the employer, whether actingpersonally or through his agents or servants. This duty extendparticularly to the safe conduct of work, and the employer isbarred from exposing the employee to unnecessary risk.61

5.2.4 The Right of Public Servant to a Fair Hearing: This right is limitedto an employee in the public sector. He is entitled to a rightto be heard in respect of any allegation of misconduct beforethe termination of his employment62.

5.2.5 The Right to Notice of Termination of Employment: An employee,except in case of summary dismissal, is entitled to notice oftermination in compliance with the contract of employment, andwhere no provision is made in respect of notice, reasonablenotice must be given63.

5.2.6 The Right Against Wrongful Suspension: An employee cannot besuspended from his employment unless the right to do so isexpressly provided in the contract of his employment64.

61 See the Supreme Court in Iyere V Bendel Feed and Floor Mill Limited (2008) 12 CLRN 1, and Latimer V A.E.C. Limited (1953) AC 643 62 UNTHMB V Nnoli (1994) 8 NWLR (Pt. 363) 376 SC; Kotoye V Cenral Bank of Nigeria (1989) 1 NWLR (Pt. 98) 419 63 See Longe V First Bank of Nigeria Plc (2010) 2 CLRN 21, Owolabi V Union Beverages Ltd (1988) 1 NWLR (Pt. 68) 12864 See Warburton V Taff Vale Railway Co. (1902) 18 TLR 420

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5.2.7 The Right to Contest the Reason for Termination: An employee has aright to be given the reason for the termination of his employment, and when thatis done, he equally has a right to contest the stated reason in Court65.

5.2.8 The Right of Public Servant to Reinstatement: A public servant whoenjoys a employment with statutory flavour has a right to bereinstated by an order of specific performance for wrongfultermination or dismissal.66

5.3 Employer’s Rights At Work

The employer’s rights at work place includes:

5.3.1 Right To Supervise Employee’s Work: It is the responsibility ofthe employer to accurately determine whether the employee isperforming his functions in line with laid down rules. Throughthe exercise of this right, the employer assesses the qualityand quantity of work performance by the employee, and ensuresthat the right thing is being done at the agreed time andaccording to the established standards;

5.3.2 Right To Discipline An Employee By Termination Or Suspension: Undercontract of employment, an employer can discipline his employeeeither by way of termination or suspension of his employmentespecially if the latter commits any misconduct or breachesthe terms and conditions of his employment. In Chukwumah VShell Petroleum Development Company of Nigeria Ltd,67 theAppellant’s employment with the Respondent was terminated dueto the fact that the Appellant breached Clause 6 of theRespondent’s terms of contract of service by engaging inprivate medical practice.

However, where the contract of employment has a legal orstatutory flavor, the employer cannot absolutely terminate the

65 See PENGASSEN V Schlumberger Anadrill Nigeria Limited (2008) 11 NLLR (Pt.29) 164. 66 Olaniyan V University of Lagos (1985) 2 NWLR 599 67 (1993) 4 NWLR (Pt. 289) 512

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employee’s employment without exhausting all the statutoryprocedures establishing the organization68, and where theemployer goes ahead and terminates, the action will beoverturned on appeal69.

5.3.3 Right to Dismiss for Gross Misconduct Bordering on Crime: An employercan dismiss for gross misconduct bordering on the commission of a crimewithout going through a trial70.

5.3.4 Right to Hire : An employer has a right to hire or engage theservices of an employee of his choice and in accordance with his laid down employmentcriteria.

5.3.5 Right to Indemnity: An employer has a right to Indemnity forthe consequences of an employee’s negligent conduct71.

5.3.6 Right to Dismiss Summarily Without Notice: An employer in theprivate sector or an employer in the public sector has a rightto dismiss an employee summarily without notice for misconductof any kind that can justify dismissal72. However, an employerpublic sector can only exercise this right where the employmentof the affected employee is not laced with statutory flavour73.What amounts to misconduct lies within the discretion of theemployer74.

5.3.7 Right to Reasonable Notice: Where no provision is made inrespect of notice of termination in the contract of employment,an employer has a right to receive reasonable notice from hisemployee before the latter terminates the contract75. We submitthat even suspension cannot be used to circumvent this right76.

68 Shitta Bey V Federal Civil Service Commission (1981) I SC. 40 69 See Olaniyan’s case, supra 70 Olanrewaju V Afrbank Plc (2001) 12 NWLR (731) 69171 Lister v Romford Ice and Cold Storage Co. Ltd (1957) AC 555 72 Abukugbo V African Timber & Plywood Ltd (1966) NMLR 31273 Fakuade V OAUTHCMB (1993) 5 NWLR 4774 Ajayi V Texaco (Nigeria ) Ltd (1987) 3 NWLR 57775 Payzu Ltd V Hannaford (1918) 2 KB 34876 See Longe’s case supra, and Professor C. K Agomo at Page 167, Nigerian Employment and Labour Relations Law and Practice 2011, Concept Publications

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5.4 Other Rights At Work Of An Employer

The other rights at work enjoyed by the Employer flows from theemployee’s implied duties to the employer. Such rights includethe right to obedience to all lawful and reasonable orders ofthe employer77, the right to confidentiality and good faithdealings by the employee in the course of his employment78, andthe right to the benefit of the skill and reasonable care ofthe employee in the execution of his duties79.

6.0 CHALLENGES TO REALIZATION OF EMPLOYEE’S RIGHT AT WORK IN NIGERIA

Section 17(3) of the 1999 Constitution provides for the socialfundamental objectives and directive principles of state policyand covers the following labour matters:

Opportunity for securing adequate means of livelihood;

Just and human conditions of work;

Health, safety and welfare of all persons in employment;

Equal pay for equal work without discrimination on anyground whatsoever; and

Prohibition of child and aged labour.

However, chiefly on account of the Federal Government’s lipservice and lack of political will to implement its strategies,policies and programmes, and to effectively enforce its lawspertaining to the right to work and rights at work, severalchallenges have continued to plague the realization of theidentified employee’s rights at work in Nigeria which needproactive, pragmatic and concerted solutions.

Some of these challenges are the following:

Limited 77 Pepper V Webb (1969) 1 WLR 51478 Robb V Green (1895) 2 QB 315; Sinclair V Neighbour ( 1967) 2 QB 27979 Usen V Bank of West Africa Ltd (1965) 1 All NLR 256, Lister v Romford Iceand Cold Storage Co. Ltd, supra

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6.1 Obsolete statutory provisions: The major labour lawlegislation, the Labour Act, was enacted in 1971. Someprovisions in the law are no more realistic and need to bereviewed.

6.2 Non-effectiveness of the Sector Regulator: The glaring non-effectiveness of the Labour Sector Regulator, which is theMinistry of Employment, Labour and Productivity, as exhibitedby the near absence of quality oversight operations of itsfield administrative officers, leaves much to be desired. Thisaccounts for the gory details of the labor abuses, mostly ofthe female workers, often experienced through press reports,and the apparently unchecked daily cases of varying displays ofchild labour, some of which are under coercive pressures orthreats, in the major streets of big cities in the Country.

6.3 Inadequate Penalties: Insufficient and ridiculous penaltiesfor breaches of the provisions of the Labour Laws by employersas contained in the laws beg for quick reforms. For instance,Section 64 of the Labour Act prescribes a penalty of a fine,upon conviction, not exceeding N100.00 for contravention of theprovisions of the Act (i.e. Sections 59 – 62) on child labour.

6.4 Non-Uniformity of Labour Law Applications: In theapplication of the provisions of Labour Laws to employees inthe public and private sectors, there is evidently gaping casesof non-uniformity. There is also the issue of over protectionof employees in the public service by the Civil Service Rules.This does not enshrine competitiveness and merits in the publicservice. Till date, some State Governments are yet to fullyadopt the Contributory Pension Scheme introduced over a decadeago by the Pension Reform Act.

6.5 Casualization of Workers: Casualization is a big challengefor unions in their bid to protect and advance workers’ rightsand foster decent work. Casual workers are subject to lowerpay, barred from their right to join a union, and deniedmedical and other benefits. Companies will often hire several

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part-time workers instead of one or two full-time workers toavoid their obligation to provide benefits, to divide theworkforce, and to dissuade unionizing efforts. The casualworkers perform the same tasks as permanent workers, butwithout any job security, are under never-ending probation, andfrequently laid off, particularly just before they would becomeentitled to permanent contracts. The casual workers are notunion members and they receive lower wages and fewer benefits. Closely related to casualization is outsourcing of labour,which is also constantly abused by employers of labour inNigeria.

6.6 Employee’s Defeatist Attitude: This attitude cripples theemployee who ought to freely exercise his rights and obtainjudicial remedies against oppressive work conditions or inhumantreatment from his employer. It is notorious that cases aboundwhere in the midst of glaring existence of employee’s rights atwork, avid labour or trade union support for legal action,availability of free legal aid or pro bono services, oftentimes, employees prefer not to ‘rock the boat’ by acquiescingto legal actions against their employers for known breaches oftheir rights at work. Except in extreme cases of unlawfultermination of employment when it becomes apparent that theemployee might have no benefits on account of the job loss,most employees in Nigeria prefer not to resort to the Courtsfor remedy. Attempts has been made to justify this defeatistattitude on the altar of the fear of the unknown by which theemployee would rather remain employed under unfavourableconditions that emasculate his rights at work, than put up afight for better work conditions through the legal process, anddearth of other better employment options or alternatives upona job loss. In some cases, a surrender to fate by resort todivine justice is made. Consequently, this attitude robsemployees in Nigeria of the ‘liver’ to fight for their rightsat work. They easily capitulate to their employmentcircumstances in deference to the perceived might of theemployer. They argue, after all, that ‘the bird at hand isworth more than the one in the bush’, or ‘the devil you know is

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better than the unknown saint’, and thus, continue to belabourunder unsavoury employment situations.

7.0 RECOMMENDATIONS

In view of these challenges, we proffer the followingrecommendations which in our opinion, would aid theactualization of the employee’s rights at work in Nigeria iffaithfully implemented:

7.1 Engagement of Legal Advice at Employment Entry Point: Sincethe power to dismiss is a power exercised by the employer alonewithout a corresponding power in the employee, we are of theopinion that a prospective employee would avert theunfavourable outcome of dismissal from employment oftenstipulated in an employer’s offer of employment by reference toother documents which would result from circumstances oftenexpressed therein. A sound legal advice would enable suchprospective employee to not only appreciate such legal right atwork amongst other rights, but also understand their legalimplications in the course of the employment before he puts pento paper in accepting such offer. In this case, incidents ofdismissal might be reduced by insertions of prompt resignationsfrom employment in the event of the occurrence of suchcircumstance that might necessitate dismissal from employment.

7.2 Review of the Labour Act and other Obsolete Labour-relatedLaws: Reviews of the Labour Act and other obsolete labour-related laws and regulations would enable the laws to beadvanced to strengthen previous weak or inadequate legalprovisions, recommend heavier penal sanctions where necessary,engender fairness in the uniformity of labour law applications,and position the laws to meet and conform to global labourrelations standards and international best labour practices tomeet daily challenges in the labour environment. Also, heinouslabour offences in the areas of child labour incidents,unhealthy and unsafe working conditions, and polluted workingenvironments should be legislated into strict liability

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offences with substantial exemplary legal sanctions to achievedeterrence against future occurrences or violations.

7.3 Sensitization and Massive Education: Mass sensitization byMinistries, Departments, Agencies of Government such as theFederal Ministry of Labour & Productivity, Federal Ministry ofWomen Affairs, the National Orientation Agency, the PublicComplaints Commission, and their counterparts at States levels,Trade Unions, and Non-Governmental Organizations with specialbias on labour relations, should be vigorously embarked upon atregular intervals in different fora other than on speciallabour day anniversaries, through the use of mass media,special entertainment programs and events, to enlighten andeducate workers as well as prospective employees about theirright to work and rights at work. The enlightenment would aidthe dissolution of the employer’s defeatist attitude, andembolden choices for legal actions as the case deserves. Also,such media should be employed to confront employers with thepositions of the various labour laws on intolerable workconditions and extant consequences and legal sanctionsimposable for non-compliance.

In addition, religious bodies and organizations such aschurches and mosques should be engaged to voluntarily donateand use their public platforms as part of their corporatesocial responsibilities for mass sensitization andenlightenment of the employed segments of their adherents ontheir right to work and rights at work. Such would enable suchinstitutions to drive home both the legal and moral principlesinherent in fair employment and labor practices in order toenable the society attain desirable conformity to laborstandards with human face.

7.4 Optimal Resort to The National Industrial Court: Theorganized structures of the National Industrial Court and itspower to waive the conventional rules of evidence when thejustice of the case so demands, have ensured that labour andrelated disputes are settled expeditiously. Resort should bemade, where necessary, to the court for enforcement of labour

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rights at work since by Section 243(2)(3) of the Constitution(as amended by the Third Alteration Act), the decision of theCourt is final and non-appealable except where an aggrievedlitigant alleges a breach of any of his constitutionallyguaranteed fundamental rights, either by his employer beforeinitiating an action in the court, or such breach by the courtitself, in the course of considering and adjudicating theemployee’s Suit. This provision not only ensures that labourdisputes are not only channelled to the proper court, butconducted in such a way as to avoid protracted litigations byvirtue of possible, and sometimes, frivolous appeals againstthe judgements of the court without certainty as to theduration of the cessation of the labour dispute.

7.5 Concerted Inter-Government Agency Co-Operation: Inter-Government Agency co-operation would conduce to stimulatingwell-informed concerted efforts and resources by the Agenciesto combat labour relations abuses such as child labour,unwholesome work hours and working conditions, deficiencies inemployee medical policies and covers, pensions contributionsand entitlement violations, and evasions of employeecompensations in the event of death or injury. This wouldreduce the infamous rivalry and bickering amongst GovernmentAgencies which hamper the vigilance, information exchange andpositive resource deployment to enable enforcement of labourand labour-related laws and regulations in the country.

7.6 Prompt Reportage, Investigation and Prosecution of LabourRelations Offences: Government institutions and Agencies suchas the Public Complaints Commission and the Office of thePublic Defender should be re-engineered to encourage promptreports and complaints on bad labour practices by affectedworkers in various industries, particularly, in themanufacturing sector. Early reportage of labour relationsabuses would aid prompt investigations of the complaints,reduce employee defeatist attitude, and bolster employeeconfidence in the justice system especially where successfulconvictions are attained on account of prompt legalprosecutions. In this wise, it is also advisable for the

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Offices of the Federal and various States Attorneys-General tobe legally empowered to involve and actively engage labourexpert private legal practitioners to join the rather lameefforts of the public prosecutors from the Federal and variousStates Ministries of Justice to swiftly prosecute labourrelations offences. This calls for an expeditious review of theextant processes for the application and grants of fiat by theFederal and various States Attorneys-General to enable andaccelerate swift prosecution and conviction of violations oflabour legislations and regulations.

8.0 CONCLUSION

Since the return of Nigeria to democratic governance in 1999,no area of Nigerian law has witnessed more rapid developmentthan labour and industrial relations. This is hardly surprisingconsidering the central role which labour plays in economicdevelopment. Labour is the most important factor of productionand is often times referred to as the coordinating factor ofproduction. More and more jobs are being created on a dailybasis and there is a corresponding upsurge in the issues oflabour and industrial relations. However there is still a lotof work to be done towards ensuring that the majority ofunemployed citizens of Nigeria are guaranteed their right towork and rights at work.

In evaluating the Topic, “Right to Work/Right at Work”, thisPaper has examined the concept of the right to work and hasestablished that such a right exists as an international,regional and human rights standard. It has discussed the rightto work under the provisions of the UDHR, the ICESCR, the ILOEmployment Convention, the African Charter on Human and PeoplesRights and a host of other Conventions in relation to the rightto work and the right of the employee at work. The Paper alsoidentified some of the challenges which make the achievement ofthe rights at work for the ordinary Nigerian employee to remainambitious, herculean, ambiguous and unsettled, and therefore,made few recommendations with a view of providing solutions tothose challenges. This demonstrates that there is still plenty

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of room for greater improvement and catch-up efforts in orderto improve the lot of the labor force in Nigeria.

Nonetheless, it is agreed that the International community hasmade enormous progress and positive achievements towardsensuring the highlighted rights contribute to the welfare ofhumanity. The areas of development recorded are seen to reflectthe existence of right to work and right at work for the workforce in Nigeria. Certainly these new areas of development havedefined and delineated new rights at work as well, all of whichcannot be covered in this Paper. Thus, it is obvious that someof the effects of these developments resulted from the gradualadoption of best global practices in labor issues and mattersin Nigeria, and it is the expectation that more achievementswould be made by the astute applications of the provisions ofSection 254C(2) of the Constitution of the Federal Republic ofNigeria (Third Alteration) Act 2010 and Section 7(6) of theNational Industrial Court Act 2006 by the National IndustrialCourt in consequence of global labour relations trends. Webelieve that with closer adherence to the provisions ofinternational conventions, especially, those ratified byNigeria, and more zest, gusto and consistency in the vibrantand dynamic judicial pronouncements of the National IndustrialCourt, the future looks bright and cheery for labour relationsin Nigeria.

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