CHAPTER ONE

INTRODUCTION
1.0 Background to the Study
One fundamental weakness of the common law is its failure to recognise that an
employee has a legitimate interest in job security.1 By entrenching the freedom of
contract with the spirit of free enterprise translated into the employer’s right to hire and
fire at will, the right of a workman to work is reduced to his right to be given notice of the
termination of the contract or to payment of the agreed wage or salary in lieu of notice,
without any other consideration.2
Generally under the common law, employers can terminate their employee’s employment
for good, bad or no reason at all notwithstanding that losing one’s job can be a
catastrophe of great proportion.3 This remains the position in spite of the fact that high
unemployment rates, threat of redundancy and general lack of job security place too much
control with already powerful employers.4 According to the common law doctrine of
freedom of contract, the sole purpose of contract law is to determine and enforce the
bargain made by the parties. This is based on the age honoured twin principles of freedom
1
C.K. Agomo ., “Natural Justice and Individual Employment in Nigeria” inI.O. Agbede , and E.O. Akanki (ed.)
Current Themes in Law (Faculty of Law, University of Lagos, 1997) p.101.
2
Ibid, see also C.K. Agomo, ‘Nigeria’, in R. Blanpain (ed.)International Encyclopedia of Laws, Labour Law and
Industrial Relations,(Kluwer Law International, Netherlands, 2013) p.70
3
P.L. Wallis, “The Protection of Job Security: The Case for Property Rights in One’s Job” (1992) Otago Law
Review Vol.7 No.4 p641. Employment shapes human life and experience. It defines individuals in relation to
others as economic, social and even political actors in shared communities. An often neglected aspect
employment – unemployment- shapes human life as well, Employment loss, for whatever reason, can have
devastating effects extending beyond the individual, to the family and to the community. Rising
unemployment rates have been linked to high crime rates, higher divorce rates, and loss of tax revenues to the
government. See I. Lynch-Fannon, “Employees as Corporate Stakeholders: Theory and Reality in a Trans-
Atlantic Context’’ (2004) 4 Journal of Corporate Law Studies 155.
4
According to a report by the Nigerian Bureau of Statistics (NBC), about 1,317,700 Nigerians lost their jobs in
the second quarter of 2015 and there is a total of 19.6 million people between the ages of 15 and 65 who are
either unemployed or underemployed in the same quarter compared to 17.7million in the first quarter of the
same year. The NBC put the working age population (which comprised Nigerians within ages 15-64) in the
second quarter of 2015 at 103.5million compared to 102.8million which was the figure in the first quarter of
the same year. The report further shows that in the same second quarter, the labour force comprising those
who are actively seeking employment rose to 74million. See E. Anaeto, “Unemployment Cases Worsen as 1.3
Million Lost Jobs in Q2’’. available at www.vanguardngr.com/2015/08/unemployment-cases-worsen-as-1-3-m-
lost-jobs-in-q2/. last visited 15/03/2016

1
 and sanctity of contract. In effect, the law delegates legislative power to the contracting
parties, and the terms of the contract become the law that controls the parties’ rights and
duties. If the express terms of the contract are ‘the law’ in a contract case, then contract
doctrines consist of legal procedures to implement for the parties the bargain that they
made for themselves.5 It should be noted that the problem associated with this freedom of
contract doctrine is that its assumption of equal bargaining power of both parties,
employer and the employee in an employment contract, is fictitious in view of the
realities of the labour market.6 To accept the assumption that an employee wields power,
which is equivalent to that of the employer at the time of negotiating for employment, is
to readily justify the power of the employer to terminate the employee’s employment at
will.

Labour legislation is, among other things, designed to regulate the bargaining power
between employers and employees. It prohibits employers and unions from engaging in
specified acts which constitute unfair labour practice and establishes obligations for both
parties to engage in collective bargaining. Labour law which governs master/servant
relationship is based on the need to protect the worker who is regarded – legally and
socially – as being in the weaker bargaining position7

This may have been informed by the gradual realization of the fact that loss of
employment can engender grave and, in certain circumstances, even tragic economic and
social difficulties for the worker and his dependants. This, with the extension of certain
basic ideas of fairness and justice to termination of the working relationship, has made it
possible to restrict the discretionary power of the employer over dismissal in a growing
number of countries.8 While the progress achieved in many countries along this line is
undeniable, it has to be said that in others very little headway is yet being made in this
field.9

5
C.D. Rohwer, “Terminable-At-Will Employment : New Theories for Job Security’’ (1983-84) 15 Pacific Law
Journal 759.
6
Even in a purely contractual relation, the freedom of contract theory is not an absolute theory. The law has
created certain exceptions such as mistake, misrepresentation, duress, including economic duress, and undue
influence. See A.A. Adeogun, “From Contract to Status in Quest for Security” An Inaugural Lecture delivered at
th
the University of Lagos on Wednesday 9 April, 1986, p.22.
7
F. Diego and A. Kuddo , “Key Characteristics of Employment Regulation in the Middle East and North Africa”
SP Discussion Paper No.1006, July 2010 pp21-22.
8
E. Yemin , “Job Security: Influence of ILO Standards and Recent Trends” (1976) 113 International Labour
Review p.17
9
Ibid

2
 Members of the Organisation for Economic Co-operation and Development (OECD) and
some other developed countries have lower level of employment protection than
developing countries. However, this is explained in part by the fact that the unemployed
in developing countries generally have less access to social security schemes.10 The
absence of these safety nets makes the impact of joblessness more devastating than it is in
the developed countries where various measures are in place to cushion the devastating
impact of unemployment.11In furtherance of its objectives, the ILO has been in the
vanguard of setting and prescribing international labour standards for member nations of
the United Nations.12 Specifically, on June 22, 1982 the ILO Conference approved a
Recommendation (No.166) and a Convention (No.158) on termination of employment.13
The latter clearly provides that an employer may only terminate the employee’s
employment based on valid reason, and the onus of proving valid or fairness of the reason
lies on such employer who must also give the employee an opportunity to respond to
allegations where dismissal is based on the employee’s conduct or performance.14
Following this development, a number of both developed and developing countries have
since moved away from the common law doctrine of termination-at-will. By way of
observation, two major methods have been adopted to achieve this feat. Countries such as
Ethiopia, Namibia, Uganda, Cameroon, Malawi and Zambia toed the line of ratifying and
incorporating into their legal systems Convention 158.15 On the other hand, other
countries such as the United Kingdom, South Africa, Ghana and Kenya, rather than adopt
the approach of direct ratification of the Convention, have nevertheless achieved the same
result by enacting unfair dismissal laws in terms similar to the provisions of the
Convention.
Nigeria is, however, yet to fully align itself with these developments.16 As an active
member of the ILO, it has ratified a number of the ILO Conventions, but is yet to ratify,

10
Such schemes include unemployment insurance schemes and benefits, labourprogrammes targeted at the
unemployed and other social safety nets for the poor and unemployed.
11
A.O. Oyewunmi , “Job Security and the Nigerian Labour Law: Imperatives for Law Reform” in Etebong (ed.)
Rocheba’sLabour Law Manual (Rocheba’s Law Publishers, Lagos, 2007) p.24.
12
J.E.O. Abugu , A Treatise on the Application of ILO Conventions in Nigeria(University of Lagos Press, Lagos,
2009)p.3
13
J.E.O. Abugu , “ILO Standards and the Nigerian Law of Unfair Dismissal” (2009) 17 African Journal of
International and Comparative Law p.188
14
See articles 7, 8 and 9 of the ILO Convention 158.
15 st
See International Labour Conference 91 Session, Report III (part2) List of Ratifications by Convention and
by Country. Available at http://www.ilo.org/public/engish/standards/relm/ilc91.last accessed 21/08/2013.
16
There is a noticeable gap created by the absence of unfair dismissal legislation in Nigeria which problem is
further exacerbated by the strict adherence of judges to the Common Law right of employers right to hire and

3
 much less domesticate Convention 158.17Furthermore, prior to 2010 when the Third
Alteration to the 1999 Constitution was made, the Constitution had practically nothing to
say in terms of job security. The closest provision to security of tenure was section 17(3)
of the 1999 Constitution which only guaranteed right to work but not directly related to
protection of the employee from unfair dismissal after being employed.18However, in
2010, the Constitution of the Federal Republic of Nigeria was amended via the Third
Alteration Act,19 which introduced the concept of unfair labour practice. Section
254(C)(1)(f) of the Third Alteration Act extends the jurisdiction of the National Industrial
Court of Nigeria (NIC) to matters relating to unfair labour practices, international best
practices in labour, employment and industrial relation matters. Also, section 254(C)(2)
of the Third Alteration Act empowers the NIC to apply international conventions and
protocols relating to labour matters irrespective of any contrary provision that may be
contained in the same Constitution.

It should be noted however that the right to fair labour practice is not expressly conferred
on Nigerian workers by the Third Alteration Act, 2010. Instead, section 254(C)(1) of this
Act which actually deals with the jurisdiction of the NIC merely mentions, among other
things, that the NIC has the jurisdiction on matters relating to unfair labour practice or
international best practice.20 This is unlike the position in South Africa where the right to
fair labour practice is expressly entrenched in the Bill of Rights, Chapter two of the South
African Constitution.21 It should be noted also that the Third Alteration Act fails to define
the scope of fair labour practice and it cannot be said there is any judicial pronouncement
bold enough to declare unfair dismissal as a species of unfair labour practice.
Unfortunately, there is no legislation in Nigeria that guarantees job security. The Labour
Act (LA) of 1974 merely provides for the need to give notices before termination with the
alternative of payment of salary in lieu of the notice where the employer fails to issue

fire at will. See P. Folarin, ‘Job Security in Nigeria and International Labour Organisation Standards’,
th
Unpublished M.Phil Seminar Paper presented on the 28 of March, 2013.
17 rd
For example, Nigeria ratified Occupational and Safety Convention, 1981 (N0.155) on 3 May, 1994; Freedom
of Association and Protection of the Right to Organise Convention, 1948 (No.87), and Right to Organise and
th
Collective Bargaining Convention, 1949 (No.98) on the same date- 17 October, 1961.
18
Note that section 17, being a section under Chapter Two of the 1999 Contitution is generally non-justiciable
by virtue of section 6(6)(c) of the same Constitution.
19
The Constitution of theFedderal Republic of Nigeria (Third Alteration) Act, 2010.
20
See specifically section 254(C)(1)(f) of the Third Alteration Act, 2010.
21
Article 23 of the South African Constitution provides that everyone has the right to fair fairlabour practice.
And this constitutional right includes right not to be unfairly dismissed. See the South African case of Fedlife
Assurance Ltd v. Wolfaardt (2001) 12 BLLR 130 CA

4
 notice to the employee before termination. Even at that, section 11(5) of the LA brings in
through the back door what it ejects through the front door in that it still retains the
application of common law doctrine in employment termination cases by stating that
provisions as to notice do not affect any rights of the other party to a contract to treat the
contract as terminable without notice by any reason by the other party as would have
enabled him so to treat before the making of the Act.22

The common law doctrine of termination at will thriving in the absence of any unfair
dismissal legislation clearly underlies the reasoning of the courts in cases of
employment termination. For instance, in the case of Osisanya v. AfribankNig.Plc23,
the Supreme Court with a tone of finality held that in a master and servant
relationship, dismissal of employee by the employer cannot be declared null and void
and of no effect whatsoever. Perhaps the most revealing of all cases on unfair
dismissal is the case of Abalogu v. The Shell Petroleum Development Company of
Nigeria24 decided by the Supreme Court where the trial court regretted its inability to
help the situation after commiserating with the employee for grossly unfair
circumstances surrounding the termination of his employment by his employer having
served the respondent company meritoriously for 24 years and was barely one year
away from retirement and associated benefits. He was terminated without reason or
notice. The rationale behind these decisions is not far-feteched. Under the common
law, a servant cannot sue for wages if he has not rendered services and dismissal
prevents him from rendering the services. This leaves the employee with a claim for

22
T. Fashoyin , “Economic Recession and Employment Security in Nigeria in the 1980s” (1990) 129
International Labour Review, p.649. It should be noted that even under s.11(2) of the LA where the employer is
reguired to give notice before termination the period of notice prescribed by the Act is not in the advancement
of the interest of the employee. For instance, the section prescribes a one day notice where the contract of
employment has continued for a period of three months; or one week notice where the contract has
continued for more than three months but less than two years; or two weeks notice where the contract has
continued for more than two years but less than 5years; or one month notice where the contract has
continued for five or more years.
23
(2011) 24 NLLR (Pt.67) 31 The hardship suffered by employees in the private sector is further illustrated in
the case of National Union of Hotels and Personal Service Workers v. Capital Hotels (Unreported Suit No.
NIC./3M/95). The facts of thecase were that a pregnant junior staff of the defendant company was physically
assaulted by the Chairman of the defendant company on the grounds that junior staff had the audacity to reply
him when he insulted her. As a result of the assault, she allegedly lost her pregnancy and a senior officer who
attempted to rescue her from the Chairman’s assault had his uniform torn and beaten up as well. The junior
workers of the defendant hotel then held a peaceful demonstration when all attempts to secure an apology
proved abortive. Following the peaceful demonstration, the defendant terminated the employment of 700 junior
workers and 55 senior staff. Although the court noted that the mass termination smacked of unfair labour
practice, the court held that motive of termination is irrelevant and thereby declined to grant reinstatement.
24
(2003) 13 NWLR (Pt.837) p. 308

5
 damages as his only remedy and any claim for damages is subject to a duty to
mitigate the loss and the only way to mitigate is to accept the termination and seek
other employment.25
An important development however is the recent Constitution of the Federal Republic of
Nigeria (Third Alteration) Act 2010 which empowers the National Industrial Court of
Nigeria (NICN) to exercise exclusive jurisdiction in matters relating to unfair labour
practices.26This provision also paves the way for an unhindered application of
international best practices in labour related matters irrespective of any other provisions
contained in the same Constitution. The question is whether these provisions coupled
with a similar provision in section 7(6) of the National Industrial Court Act 2006 are
sufficiently far-reaching to make the common law doctrine of termination-at-will a thing
of the past, or whether there is a need for a more proactive response to job security. This
latter option appears to better afford certainty, and is further justified in view of the fact
that other jurisdictions utilise both methods of entrenching fair labour practice as a
constitutional right while further reinforcing this safeguard through various legislations
specifically prohibiting unfair dismissals.

1.1 Statement of Problem

Despite the importance of job security to both employees and employers, neither the common
law nor statutory enactments in Nigeria appear to adequately address the problem of unfair
dismissal. The principles of common law, emphasizing equal bargaining power and the right
of the employer to hire and fire at will, have, particularly in the private sector, dominated the
subject of employment termination in Nigeria.27 Even in situations involving employment
with statutory flavour, which have been hailed as affording more security, in reality, they
emphasise procedural rather than substantive fairplay. Recent legislative developments
includingthe Third Alteration and the National Industrial Court Act have new provisions
which may be useful in addressing some of these issues, but to the extent that they stop short
of specifically referring to unfair dismissals and prescribing direct solutions, these provisions
need to be further investigated to ascertain their suitability and efficacy in addressing the
problem. On their part, ILO standards which have evolved to deal with these issues need to

25
A.A. Adeogun, supra note 6
26
See Section 254C(f) ,
27
The hardship and injustice resulting from adherence to this doctrine is not far-fetched considering cases
such as Chukwumah v. Shell (1993) NWLR (Pt.289)512; Abalogu v. Shell (2003) 13 NWLR 309; Osisanya v.
Afribank (2011)24 NLLR (pt.67)31; Spring Bank v. Julius Babatunde (2012)5 NWLR 23.

6
be reviewed side-by-side with the recent legislative and judicial developments in Nigeria, and
where Nigerian laws are yet to adequately address the problem, practices in other
jurisdictions may need to be interrogated with a view to drawing useful lessons to be
pragmatically applied consistently with local conditions and circumstances. To the extent that
these issues are yet to be exhaustively interrogated in the literature, there is a yawning gap
which is what this research aims to address.

1.2 Aim and Objectives

The general aim of this research is to evaluate the common law doctrine of termination at will

as well as extant statutes on employment law in Nigeria with a view to ascertaining how best

to address job security in Nigeria. Specifically, this paper’s objectives areto :

1. assess the extent to which the legal framework in Nigeria provides for job security,
especially in the private sector;
2. examine the operation of the common law doctrine of termination at will and its
suitability for enforcing job security in Nigeria;
3. analyse salient provisions of the Nigerian laws relevant to safeguarding job security
vis-a-vis international minimum standards;
4. subject the Nigerian model of job security to critical analysis using South Africa,
Kenya and Ghana as models with a view to demonstrating positive lessons for
Nigeria; and
5. develop a comprehensive legal framework for job security in Nigeria based on
lessons from the similar provisions in South Africa, Kenya and Ghana.

1.3 Operational Definition of Terms

In this research, the under listed terms mean as follows:

1.3.1 Contract: This is an agreement or commitment between two or more parties intended
to be enforceable by law.
1.3.2 Common Law :This is a part of the English Law derived from English customs and
practices otherwise from statutes and legislation.

7
1.3.3 International Best Practices: These are a set of guidelines, ethics or ideas that
represent the most efficient or prudent course of action. They include labour rules and
standards that govern how employees are treated in a work environment.
1.3.4 Job Security: This is a state where an employee’s reasonable and probable
expectations of continued employment are being met. It is the legitimate interest an
employee has in his job which affords him the opportunity to make projections about
economic future of his family based on job expectations. It is the assurance or
confidence an employee has that he is entitled to retain his job free of anxiety and fear
of unfair dismissal.
1.3.5 Status : This is the totality of rights, obligations, powers and liabilities conferred or
imposed upon an individual irrespective of his volition.
1.3.6 Termination: It is a process of bringing an employment relationship to an end. It
connotes cessation of a contract of employment in accordance with the terms of the
contract of employment.
1.3.7 Unfair Labour Practice: It means any labour practice or any change in labour practice
in which an employee or class of employees may be unjustly affected, or any practice
in which the business of any employer may be unjustly affected or disrupted.

1.4 Literature Review

Wallis,28 in support of the argument against job security or security of tenure, noted that
management needs absolute power to fire or lay off workers as a necessary incentive for the
owner’s capital to be put to productive use. The owner needs this absolute power as a land
owner needs security from non-owners. If the manager or owner cannot exclude the
unproductive and the excess worker, then there is no guarantee of maximum profit. In other
words, the lesser the tool, the greater the risks, and therefore the lesser the investment. The
security of capital investment and the flow of labour are essential to the survival of any
business. This argument takes as its premise the principle that owners can do as they wish
with their property without interference, unless a promise was made or a government
regulation interferes. Hence, if employees are concerned about job security they are free to
negotiate with the employer to include a provision in their employment contract.

28
D. Kornblau, “Common Law Remedies for Wrongfully Discharged Employees’’ (1987) 9 Industrial Relation
Law Journal p. 5

8
Wallis went further to argue that the use of such an absolute managerial discretion keeps the
worker on his or her guard.29 The greater the insecurity of tenure, the harder the employee
will work to maintain his or her job. Job security is seen as a disincentive to work. Such a
limitation on managerial discretion may make employers more cautious about hiring people
because once hired it may be hard to correct any mistakes if job security is protected. If the
company is highly productive because of a competent workforce then job security is
enhanced.Also, it is contended that the costs to the employee of being fired or being made
redundant are low.30

It is argued by Posner31 that an employee can leave his job whenever he wants to go to work
for someone else. This assumes a free employment market where the forces of supply and
demand will soak up the excess supply after a lay-off or redundancy. It is, therefore,
contended that lay-offs and redundancies do not in fact stigmatize the worker as is commonly
assumed that legal compensation only leads to expensive litigation.

In summary, the management argument relies on the basic principles of classical capitalism
dating back to the time of Adam Smith.32 The power of the employer or owner is justified by
the construction of property rights which emphasizes the employer’s property interest and
ignores the employee’s interest. The conceptualization of the employer as owner and the
employee as non-owner is an automatic justification for the power the owner has in a free
market society to fire or make redundant.33

The consequence, therefore, is that the loss of managerial control appears to be feared more
than the loss of a job, partly because jobs are not conceptualized as a property interest while
the control of the workplace (like land) is an aspect of ownership. Moreover, managers and
owners tend to have more political power and are better able to protect their managerial
control.34

29
Ibid
30
R. Posner “Hegel and Employment at Will: A Comment” (1989) 10 Cardoso Law Review p.1625
31
Ibid
32
A. Smith (1723-1790), the author of An Inquiry into the Nature and Causes of the Wealth of Nations (1776)
argued that in a free exchange both sides became better-off. That in a free market parties engaged in trade
activities derive benefits from them. See http://www.adamsmith.org/adam-smith. lasted visited on
13/05/2016
33
A. P. Morris, “Bad Data, Bad Economics, and Bad Policy: A Time to Fire Wrongful Discharge Law” (1996) 74
Texas Law Review p.1901
34
D. Kornblau, supra note 28

9
While Adeogun35 is of the view that the terms “termination” and “dismissal” are not words of
art and as such connote the same thing ,Abugu36 opines that there is a clear distinction
between the two terminologies. He explains that while “termination” refers to cessation of a
contract of employment in accordance with its terms “dismissal” on the other hand is the
assertion of a right of an employer to terminate a contract other than in accordance with the
expressed terms.

Agomo37 opines that the ‘employment at will’ doctrine is still the law in individual
employment with the caveat that it is no longer in tandem with global best practices. She
further notes that the NIC is beginning to do for the private sector what the Supreme Court
did in the 1980s for the public sector, which changed the face of individual employment in
Nigeria.

Uvieghara38 states that as far as the common law remedies of specific performance and
damages are concerned the NIC appears to be completely oblivious of them or ,at least, of the
principles that govern them. He, however, concludes that the NIC is not necessarily adverse
to making reinstatement orders provided there are no practical difficulties in the way of its
implementation.

To fully attain job security, Adeogun is of the view that the reality of the day is that in most
establishments of today the so-called employer who hires and fires is himself an employee of
another higher authority of the establishment thereby making the question of continuous
physical contacts between parties in contract of personal service irrelevant.39 He asserts that
this admits of no argument in the public sector; and even in the private sector, the division of
the corporate enterprise between management and shareholding ensures that the Managing
Director is not the employer and is himself an employee of the company.40

While the proposition is laudable it is not without some concerns as it may not be strong
enough a platform to accommodate the movement from contract to status in the private
sector. First, although the Managing Director of a company may be an employee of the
company, instances abound where the directors are mandated to take up shares in the

35
Adeogun A.A., supra note 6
36
Abugu, supra note 13.
37
Agomo C.K., Nigerian Employment and Labour Relations Law and Practice(Concept Publications Ltd., Lagos,
2011) 169
38
Uvieghara E.E., Labour Law in Nigeria (Malthouse Press Ltd, 2001) 427
39
Adeogun, supra note 6
40
Ibid

10
company and as such qualify as shareholders and employees of the company at the same
time. Second, the fact that the ‘so-called’ employer who hires and fires is himself an
employee or agent of another higher organ of the establishment seems not to hold sway. Does
the fact that the dismissing authority is an agent of a higher authority disqualify the
dismissing authority from hiring and firing? I will answer this in the negative on the ground
that what matters here is whether the dismissing agent has the authority or has not exceeded
the authority granted him to hire and fire. Third, it would seem that Adeogun is preoccupied
with what is obtainable in a well-structured managerial private sector. Private sector is not
limited to high level management companies only as it includes partnership firms and sole
proprietorship businesses where continuous daily physical contact between parties is
inevitable. Then does that mean the employees in such organizations should not be entitled to
job security and re-instatement orders where appropriate?

It is the crux of this research to examine the artificiality of the divide line in job tenure
security between employees in public and private sectors. In the latter, the possibility of
continuous daily physical contact between the parties should not constitute a bar to
reinstatement and re-engagement orders as such orders can be made in appropriates cases
subject to the will of the dismissed employee to be reinstated or re-engaged. What matters
most is that the enormous power to hire and fire at will be wrest from the tyrannous
employer. This can be achieved by the establishment and application of a legal frame work
which makes reinstatement or re-engagement mandatory in appropriate cases of wrongful
dismissal without the private/public dichotomy.

1.5 Brief History

The relationship between employer and employee is the modern day likeness of the ancient

feudal relationship of lord and serf.41That relationship arose out of status, which dictated the

rights and duties of the parties. A person’s status in life was generally fixed by birth. Status is

regarded as a relationship determined by factors over which the person has no control and can

41
C.D. Rohwer, “Terminable-At-Will Employment : New Theories for Job Security’’ (1983-84) 15 Pacific Law
Journal 759.

11
include elements such as kinship and age.42 This status relationship tended to be long term

and included such customary rights as that of the master to discipline his apprentice for

wrongdoing. Hence, many tribal societies distributed their resources by sharing, rather than

by bargaining, and a person’s obligation to share rested upon that person’s status.43 However,

as modern contract theory developed with the advent of industrial revolution, freedom of

contract gradually replaced status as the source for determining rights and duties in

employment relationships.44 In order to have a holistic picture of this subject matter, it is

important to trace the history and evolution of job security in the United Kingdom and the

United States of America.

1.5.1 The United Kingdom

The law regarding employment relationships of an indefinite duration has its origins in the

feudal doctrine of master and servant; a doctrine which viewed the master-servant

relationship as one primarily based on status rather than contract.45 Under this doctrine, the

mutual rights and obligations of the parties were determined, for the most part, by custom and

policy rather than by the will of the parties.46

The turbulent history of labourers from 1349 until at least 1562 can be seen as a record of

conflict between the aristocracy of England and the growing unrest among skilled labourers.

It was felt by the labourers that the fruits of their own work should belong solely to them and

not the landed Gentry that employed them – usually for a pittance.47 As a whole,the

development of statutes (Statutes of Labourers) is quite clearly an attempt to regulate and

42
Ibid
43
Ibid
44
According to Henry Maine in 1861, “The movement of the progressive societies has hitherto been a
movement from status to contract’’. H. Maine, Ancient Law1861, 170.
45
Glendon and Lev, “Changes in Bonding of the Employment Relationship: An Essay on the New Property’’
(1979) 20 Boston College Law Review 457.
46
J. DeGiuseppe, Jr., “The Effect of the Employment-At-Will Rule on Employee Right to Job Security and Fringe
Benefits’’ (1981-82) 10 Fordham Urban Law Journal, 1
47
R. Craig “The History of Employment Law in England and Northern Ireland’’ available at
www.cws.cenageco.uk/abbott8/students/ni_supp/.../hist_of_employ_law.pdf. last accessed 15/03/2016

12
control labourers. The Statute of Labourers was enacted by the English Parliament under the

reign of King Edward III in 1351 in response to labour shortage, and it was designed to

suppress the labour force by prohibiting increases in wages and prohibiting the movement of

workers from their home areas in search of improved terms and conditions of work.48

The Statute of Labourers produced negative job security in that it promoted employment

rigidity and stiffened labour mobility as labourers were compelled to stay employed with a

particular employer at a pre-determined and regulated wage. The Statute of Labourers was

enacted in response to the 1348-1350 outbreak of the Black Death or Bubonic Plaque in

England. During this outbreak, an estimated 30-40 per cent of the population died.49 A vain

attempt by the king to freeze wages paid to labourers at their pre-plaque levels, was indicative

of the labour shortage caused by the plaque. The Black Death caused labour to be in great

demand and the statute was enacted to restrict the freedom of the serfs. The Statute of

Labourers mandated able-bodied men and women to work, and imposed harsh penalties on

those who remained idled. The statute specially provided:

That every person, able in body and under the age

of 60 years, not having enough to live upon, being
required, shall be bound to serve him that doth
require him, or else be committed to gaol until he
shall find surety to serve, and that the old wages
shall be given and no more.50

Therefore, the employment-at-will rule is relatively new.51Even shortly before the industrial

revolution, the English common law courts presumed that the employment period was one

48
Ibid
49
Ibid
50
See the Statute of Labourers 1351
51
R. Weisenberger, “Remedies for Employer’s Wrongful Discharge of an Employee from an Employment of an
Indefinite Duration” (1988) 25 Indiana Law Review p.547. It should be noted that during the nineteenth
century, contractual concepts began to re-define the law of master and servant. The rule emerged under the
English Common law that a general hiring for an unspecified duration was to be a hiring for a one year period.
see Freerick, “Employment-At-Will’’ (1979) New York Law Journal 1

13
year unless the parties agreed to a different period.52 In the early nineteenth century, master

servant law governed English employment relationships.53 Master servant law held a master

responsible for the general well-being of his or her servant.54 An employment contract that

stated an annual salary was presumed to be for a year even if the contract did not expressly

state the duration of employment. English courts held employers liable for breaching

employment agreements when employers discharged employees without cause during the one

year employment period.55 Thus, the English one year rule protected workers from arbitrary

discharges.

Originally, the one year rule protected only seasonal farm workers from discharge.56 Later,

English courts extended the rule to protect factory workers as well. To defeat the one-year

rule and avoid liability for breach of the employment contract, the employer had to prove that

the contract clearly expressed an employment period shorter than one year. Because it was so

difficult to rebut the one-year presumption, English employers rarely could discharge

employees without breaching the employment contract.57

1.5.2 The United States of America

Some American jurisdictions initially adopted the English one year rule.58 However, by the

middle of the nineteenth century, the economic realities of the industrial revolution to the

emergence of new contract theories led American courts to abandon the one year rule.59 The

52
Feinman, “The Development of the Employment-at-Will” (1976) 20 American Journal of Legal History p.118
53
D. Hermann and Y. Sor, “Property Rights in One’s Job: The Case for Limiting Employment-at-Will” (1982) 24
Asiz Law Review p.763
54
K. McMahon, “The Employment At Will: Can Oral Assurances of Job Security Overcome The At-Will
Presumption?” (1997) 23 William Mitchell Law Review p.465
55
Ibid
56
R. Weisenberger, “Remedies for Employer’s Wrongful Discharge of an Employee from Employment of an
Indefinite Duration’’ (1988) 25 Indiana Law Review p.547
57
Ibid
58
David v. Gorton (1857) 16 N.Y. 225 where the court upheld the one year rule in the New York.
59
G. Murg and C. Scharman, “Employment-at-Will: Do The Expectations Overwhelm The Rule” (1982) 23
Boston College Law Review p.329

14
law gradually changed in the 19th century as employment relationships began to be governed

by contract law rather than by master-servant law.60 As the nation industrialized, the

employment relationship became less personal. Under the formalistic contract doctrines

developed by the courts during this period, employers no longer incurred obligations merely

from their status as employers. Instead, employers became bound only on those promises

which they clearly obligated themselves to perform. Hence, the industrial revolution

transformed the master servant relationship into one characterized by distilled contract

principles including independence, mutuality and freedom of contract.61

The consensus among legal scholars is that the impetus for termination-at-will presumption

was provided by a treatise writer in the early nineteenth century.62 Horace G. Wood in 1877,

a New York attorney and author of general legal treatises stated the American employment at

will doctrine in unequivocal terms Wood’s statement of the rule is:

With us the rule is inflexible, that a general or indefinite hiring is

prima facie a hiring at will, and if the servant seeks to make it out
a yearly hiring, the burden is upon him to establish it by proof. A
hiring at so much a day, week, month, or year, no time being
specified, is an indefinite hiring, and no presumption attaches that
it was for a day even, but only at the rate fixed for whatever time
the party may serve.63

60
Ibid. Although the English rule found some acceptance in the American jurisdiction, certain courts in this
country often looked to the circumstances surrounding the employment relationship while others applied the
traditional employment-at-will rule. By the latter part of the nineteenth century, employment-at-will rule
emerged as the predominant American rule in wrongful discharges cases as a direct result of the H.G. Wood’s
Treatise on master-servant relationship. Despite the apparent lack of authority and analysis, Wood’s rule was
incorporated into the American common law. Indeed, by the beginning of the twentieth century, Wood’s rule
had become the primary authority with respect to termination of employment relationship of an indefinite
duration. J. DeGiuseppe, Jr. “The Effect of the Employment-At-Will Rule on Employee Rights to Job Security
and Fringe Benefits’’ (1981-82) 10 Fordham Urban Law Journal p.1; Martins v. New York Life Insurance148 N.Y.
117, 42 N.E. 416, 1895.
61
See N. Valticos, “Conventions de l’Organisationinternationale du Travail à la croisée des anniversaires”, in
Revue générale de droit international public, 1996, p. 36.
62
G. Murg, supra note 59
63 nd
H. G. Wood, A Treatise on the Law of Master and Servant (2 . 1886)

15
By the latter part of the nineteenth century, employment-at-will rule emerged as the

predominant American rule in wrongful discharge cases as a direct result of the H.G. Wood’s

Treatise on master-servant relationship. Despite the apparent lack of authority and analysis,

Wood’s rule was incorporated into the American common law. Indeed, by the beginning of

the twentieth century, Wood’s rule had become the primary authority with respect to

termination of employment relationship of an indefinite duration.64

American courts universally accepted his rule. This assertion evidently was supported

tenuously by the law of the day, and later nurtured by economic character of the times.65 This

later became known as the Wood’s rule.66 In the late nineteenth century, American courts

instead adopted the rule that a hiring for an indefinite period is terminable at the will of either

the employer or the employee. The rule developed in the U.S. near the end of the nineteenth

century, and it is, at least in part, the product of laissez-faire economics and the nineteenth

century views of freedom of contract.67 The rule protected the emerging class of industrialists

by permitting labour costs to vary according to economic conditions, and it shifted the risk of

reduced demand for labour from the employer to the employee.

In the early twentieth century, the United States Supreme Court strengthened the at-will rule

in Adair v. United States68 by, among other things, reiterating an employer’s right to

discharge an employee for any reason. In that case, the employer, a railroad company,

discharged an employee simply because he was a member of a union. The court, in finding

that the defendant had a legal right to discharge the employee for any reason, stated:

64
J. DeGiuseppe, Jr. “The Effect of the Employment-At-Will Rule on Employee Right to Job Security and Fringe
Benefits’’ (1981-82) 10 Fordham Urban Law Journal 1 ; Martins v. New York Insurance Company148 N.Y. 117,
42 N.E. 416, 1895.
65
Note, “Implied Contract Right to Job Security” (1974) 26 Stanford Law Review p.335
66
Feinman, supra note 52
67
C.K. Agomo, supra note 1
68
(1908) 208 US 161

16
 In the absence of a valid contract between the parties controlling
their conduct towards each other and fixing a period of service, it
cannot be, we repeat, that an employer is under any obligation,
against his will, to retain an employee in his personal service any
more than an employee can be compelled, against his will, to
remain in the personal service of another.

In all such cases, the employer and the employee have equality of rights, and any legislation

that disturbs that equality is an arbitrary interference with the liberty of contract which no

government can legally justify in a free land.69 Moreover, in the case of Coppage v. Kansas70

the court held unconstitutional a state law that made an employer who discharged an

employee because of his association with a labour organization guilty of a midemeanour. It

rejected the argument that the law served the purpose of neutralizing the employer’s unequal

bargaining power. The court reasoned:

No doubt, wherever the right of private property exists, there must

and will be inequalities of fortune; and thus it naturally happens
that parties negotiating about a contract are not equally
unhampered by circumstances. This applies to all contracts, and
not merely to that between employer and employees… And since
it is self-evident that, unless all things are held in common, some
persons must have more property than others, it is from the nature
of things impossible to uphold freedom of contract and the right of
private property without at the same time recognizing as legitimate
those inequalities of fortune that are the necessary result of the
exercise of those rights.71

Eventually, however, the court abandoned this view conceding to the fact that legislative

branches have the power to limit an employer’s right to discharge an employee, but continued

to reject employees’ arguments that the common law also ought to limit the employer’s right

to discharge an employee.72 In NLRB v. Jones and Laughling Steel Corp.73 the court held

69
M. Freed and D. Polsby, “Just Cause for Termination Rules and Economic Efficiency” (1989) 38 Emory Law
Journal p.1097
70
(1915) 236 US P.1
71
Ibid
72
See R. Weisenberger, supra note 56

17
that the cases of Adair v. United State and Coppage v. Kansas were inapplicable to the

National Labour Relations Act. The Act does not interfere with the normal exercise of the

right of the employer to select its employees or to discharge them. But the employer may not,

under cover of that right, intimidate or coerce employees with respect to their self-

organization and representation.74

However at this stage, Wood’s rule applies only if the employer and employee do not agree

that the employment period will be for a definite period. If the parties specify a definite

period, each party is bound for that period and the employer has no right to discharge the

employee without good cause. Because the employer does not have the right to discharge the

employee without good cause, the employee has a legally protected interest in his job during

the specified period.75 If the employer wrongfully discharges the employee, the employee is

entitled to damages for breach.76

On the other hand, if the parties do not specify that the employment will be for a definite

duration, the employee has no legally protected interest in his job. The employer may

discharge the employee at any time for any or no reason, and the discharged employee

generally cannot succeed if he sues for wrongful discharge and the contract is too vague for

the courts to enforce.77

Unless the parties expressly agree that the employment will be for a definite period, the

courts presume that the parties intended employment for an indefinite period. In Buian v. J.L.

Jacobs and Co.,78 the court held that the employer’s written statement that the employee’s

assignment in Saudi Arabia will continue for a period of eighteen months was merely a

73
(1937) 301 U.S. p.1
74
Ibid
75
J. Rudy, “What They Don’t Know Won’t Hurt Them: Defending Employment-at-Will in Light of Findings That
Employees Believe They Possess Just Cause Protection”, (2002) 23 Berkeley Journal of Employment and Labour
Law.pp.307-310.
76
C. Estlund, “How Wrong Are Employees About Their Rights and Why Does It Matter?”, (2002) 77 New York
University Law Review pp.6 -15.
77
Pepsi-Cola Gen. Bottler v. Wood (1982) 440 N.E. 2d. In. Ct. App. p.696
78 th
(1970) 428 F.2d 7 Cir. p.531

18
statement of expectations and was not sufficient to create employment for a definite period.

Even where there is a promise of a permanent employment the courts generally construe it as

a promise of a steady employment.79

1.5.3 Wood’s Rule and Its Justification

H.G. Wood formulated the employment at will rule in his 1877 treatise on master-servant

relationships.80 Wood offered no analysis to justify the assertion of this rule.81 He cited only

four American cases as authority for his approach to general livings, none of which supported

him.82 In De Briar v. Minturn,83 the controversy concerned the right of a discharged bartender

to occupy a room in the tavern after he had been notified to leave by the end of the month.

Essentially an action for unlawful ejection, the case touched only tangentially on the

employment relationship. It held only that the innkeeper had the right to eject a person living

in his house after proper notification. Tatterson v. Suffolk84 contradicts Wood’s assertion. The

court found there was no error in allowing the jury to determine the nature of the contract

from written and oral communication, usages of the trade, the situation of the parties, the type

of employment, and all other circumstances. The third case cited by Wood, Franklin Mining

Co. v. Harris,85 found that indefinite duration by itself did not give the employer unfettered

discretion to dismiss its employee. A mining captain discharged at the end of eight months

was allowed to recover four additional months pay because it had been assumed that

79
Ibid
80
H.G. Wood, supra note 63
81
Ronald Weisenberger, supra note 56
82
See Wilder v. United States (1862) 5 Ct. 462; De Briar v. Minturn (1851) 1 Cal. 450; Tatterson v. Suffolk
Mfg.Co. (1870) 106 Mass. 56; Frankin Mining v. Harris (1871) 24 Mich. 115.
83
(1851) 1 Cal. 450
84
(1870) 106 Mass. 56
85
(1871) 24 Mich. 115

19
employment would be stable. The jury thought hiring for a year could reasonably be inferred

from the facts.

Finally, Wilder v. United States86 concerned a business contract between the army and private

entrepreneurs for the transportation of goods; it had nothing to do with general hirings as

such. A business man had an outdated contract with an army quartermaster to transport goods

across Minnesota and, at a time when the quartermaster could obtain no other transportation,

the company insisted on a new arrangement at a higher price. The Supreme Court upholding

the company’s right to collect additional price on grounds that the statute of limitations on the

claim had run. In view of the fact that at least two of the cases cited by Wood found job

security rights in the absence of explicit provisions on length of employment, one might

surmise that Wood did not intend to preclude introduction of proof on the duration issue. Yet

courts often failed to look beyond the word “inflexible” in the statement of the rule.87

Despite lack of authority and analysis, by the beginning of the 20th century Wood’s rule had

become the primary doctrine governing employment duration. Generally, those courts that

adopted the rule did so simply by citing Wood or cases citing him. Since the courts provided

so little analysis, a rationale for the doctrine can be inferred only from the economic and

social context in which it developed.

At that time the prevalent ideology was laissez faire and its corollary, freedom of contract.

The notion of inequality of bargaining power pervades discussions about regulation of the

employment relationship.88 It is an intuitive idea, but one that deserves a careful explication.

Two entirely different ideas seem to be embedded in the term “inequality of bargaining

power”. First, the term suggests that employees, because they have less money than

employers, are at a disadvantage in bargaining for terms and conditions of employment.

86
(1862) 5 Ct. 462
87
P. Shapiro and J. Tune, “Implied Contract Rights to Job Security” (1973-74) 26 Stanford Law Review. p.335
88
See M. Freed and D. Polsby, supra note 69

20
Second, the term implies that employers exercise monopoly power in the labour market.

Hence, inequality of bargaining power is consistent with the hypothesis that “at-will

employment is efficient.89

However, the philosophy of freedom of contract cannot provide an explanation of the

doctrine’s development because the commentators of that time were ordinarily not concerned

with the freedom of the employee to bargain for job security in the employment relation.90

1.6 Problems of the Inherited Termination-At-Will Rule in Nigeria

Before the end of the nineteenth century, Wood’s rule had become settled and incorporated

into the common law of the United States of America and the United Kingdom. Nigeria, as

part of her colonial heritage and souvenirs, inherited the Wood’s Rule as a part the English

common law gotten from the United Kingdom after her independence. This rule applies in

Nigeria, especially in the private sector, in contracts of employment with indefinite period.91

The doctrine of termination-at-will still holds sway in contracts of personal service in the

private sector inspite of the consequent hardship and injustice to the employees. The

employer has and exercises the right to dismiss or terminate an employee for good, bad or no

reason. The hardship suffered by employees is captured in the case of Spring Bank Plc v.

Julius Babatunde92. In that case, the respondent employee who had been in the employment

of the appellant for nine years was terminated by the appellant without any reason, notice or

payment in lieu of notice. The trial court held in favour of the respondent by awarding as

damages nine years basic salary of the respondent. However, the respondent’s joy of victory

89
Lary S. Larson, “Why We Should not Abandon the Presumption that Employment is Terminable at Will”
(1986-87) 23 Idaho Law Review pp.225-230
90
T & S.F. Ry. V. Brown (1909) 80 Kansas 102.
91
It should be noted that the same rule applied in the public sector prior to 1981 when it was held in the case
of Graham-Douglas v. A.G. Rivers State (1973) 1 NMLR. 77 that civil servants held their employment at the
pleasure of the state which could dismiss them at will.
92
(2012) 5 NWLR (Pt.1292) 83 C.A.

21
was aborted when the Court of Appeal reversed the trial court’s decision on the grounds that

an employee who has been unlawfully dismissed cannot claim his wages for services never

rendered. Hence, the Court of Appeal awarded one month salary in lieu of notice.

The position remains the same even where the dismissed employee has share holdings or

some form of interest in the employer’s business or company. In the case of Osisanya v.

Afribank Nig. Plc93, the appellant was employed in the respondent company at the Ilorin

Branch in 1983. Later in 1987 a petition was brought against him by some officers alleging

that he had committed some dishonest acts in the course of carrying out his duties. As a result

of the petition, he was suspended from work. The petition against him was later withdrawn

but he was not recalled from suspension and shortly later after the withdrawal of the petition

he was summarily dismissed. The Supreme Court, with a tone of finality, held that in a

master and servant relationship, a dismissal of the employee by the employer cannot be

declared null and void and of no effect whatsoever. The court further held that the question of

share ownership of an employee in a company for which he works generally has nothing to

do with the terms of the employee’s employment under the company. Share ownership is a

relationship governed by the Companies and Allied Matters Act.

Perhaps the most revealing of all cases on unfair dismissal is the case of Abalogu v. The Shell

Petroleum Development of Nigeria94 decided by the Supreme Court where the trial court

regretted its inability to help the situation after commiserating with the employee for the

grossly unfair circumstances surrounding the termination of his employment by his employer.

In that case, the appellant who was employed by the respondent company in 1971 was

terminated 24 years thereafter when he was barely less than two years from his retirement age

and the accompanying entitlements. While in the service of his employer, he enjoyed rapid

93
(2011) 24 NLLR (Pt.67) 31
94
(2003) 13 NWLR (Pt.837) 309

22
promotion because of his satisfactory performance. After spending 20 years in the

employment he was celebrated by his employer and issued ‘Certification of Long Service’

and a ‘Long Service Award’. By a letter dated 25th January, 1995, the respondent/employer

intimated the appellant/employee that he was due for retirement on the attainment of his 55th

birthday on the 3rd August, 1996. However, by another letter 31st January, 1995, (barely a

week after the initial letter of notification of his retirement) the respondent purportedly

terminated the appellant’s employment.

In his judgment, the trial judge stated:

I am in deep sympathy with the plaintiff whose appointment was

terminated by the defendant barely less than two years before
attaining retirement age after serving the defendant satisfactorily
and meritoriously for over twenty-three years, but ... the court is
impotent as far as reliefs claimed by him are concerned on the
facts of this case. From what I have said, I am of the clear and firm
view that the defendant lawfully and properly terminated the
appointment of the plaintiff and his claims must fail.95
The Court of Appeal and Supreme Court followed suit with the trial court. The Supreme

Court, dismissing the claim of the appellant, held that the fact that an employee had been

notified of his pending retirement does not, of its own, constitute a bar to subsequent

termination of his employment before retirement by the employer. In other words, mere

notification of retirement does not constitute an assurance or a guarantee that the employee

would remain in employment until he has attained retirement.

1.7 Research Methodology

This research is doctrinal and comparative in nature. The doctrinal method involves
critical review and examination of the primary and secondary sources of law on
termination of employment. Primary source includes legislation, conventions and case
law; while secondary source includes scholarly articles and journals, textbooks,
conference papers, monographs and Internet materials. These sources will be subjected to

95
(2003) 13 NWLR (Pt.837) 309 at 313

23
 content analysis. The comparative aspect examines legal principles and developments in
job security in three selected developing countries. It also examines the approach adopted
in these developing countries in relation to the adoption and application of relevant ILO
conventions on job security, with a view to drawing useful lessons to develop legal
framework for job security in Nigeria. The comparative approach serves the functional
purpose of broadening the horizon of law reformers in the world of work to better
respond to the gaps in job security law in Nigeria. These developing countries are South
Africa, Kenya and Ghana. These countries are selected because they are developing and
common law countries as Nigeria. These countries have long-standing and well
developed legal responses to job security.Precisely, research methodologies adopted are
historical legal research, comparative legal research and socio-legal research
methodologies.

1.7.1 Historical Legal Research Methodology

The historical legal research methodology attempts to find the origins and trace the

development of a particular principle or a branch of the law. It considers developed rules and

questions why they are now as they are.96 With regards to this research, a brief foray into the

historical antecedents culminating in the development and establishment of the Wood’s Rule,

National Industrial Court and the Industrial Arbitration Panel (I.A.P.) is essential for a broad

understanding of the subject matter. It is also expedient to discuss circumstances leading to

the adoption of the Termination of Employment Recommendation (No.119) of 1963 and the

Termination of Employment Convention (No.158) of 1982 supplemented by

Recommendation No.166 in the same year.

1.7.2 Comparative Legal Research Methodology

Comparative legal research examines an area or principle of law from the perspective of

several legal systems in order to compare and contrast the approach of the different legal

96
Amin, S.H., Research Methods in Law, (Glasgow: Royston Publishers, 1992), p.54.

24
systems to that particular area or principle of law.97 This research seeks to examine from

comparative perspective how selected countries have evolved legal principles for job security

in their respective jurisdictions and their attitude towards the adoption and application of

relevant job protection ILO Conventions. Kamba describes comparative law as ‘the study of,

and research in, law by the systematic comparison of two or more legal systems; or of parts,

branches or aspects of two or more legal systems’.98

This thesis examines how some selected developing countries have reacted to the impact of

the Wood’s Rule on job security in their countries. Essentially, the thesis examines how these

countries (i.e. South Africa, Kenya, and Ghana) have addressed the tension between

employer’s power to hire and fire employees at will and the right of employees to job

security in their respective jurisdictions. These countries have been selected for analysis

primarily because they all face, in varying degrees, similar challenges with regard to

facilitating access to work and retention of work.These countries share the same common law

background with and are all emerging economies as Nigeria.Furthermore, these four

countries are members of the International Labour Organisation (ILO) and are thus obligated

under the ILO Constitution and the ILO Convention on Termination of Employment to

protect employees in their respective jurisdictions from wrongful termination of employment.

1.7.3 Socio-Legal Research Methodology

Socio-legal research can be described as a research methodology that focuses on the actual

social effects of a particular legal rule or the possible social and financial impact of a

proposed law.99Adopting the phraseology of Roscoe Pound, socio-legal research highlights

97
Ibid at p.55
98
WJ Kamba, ‘Comparative Law: A Theoretical Framework’ (1974) 23 International and Comparative Law
Quarterly 485, 486.
99
Ibid at p.63.

25
the disparity between ‘law in the books’ and ‘law in action’.100McCrudden notes that socio-

legal research ‘examines the role of law, attempting to discover whether patterns can be

identified after collecting and organising facts based on observation’.101

This thesis adopts a socio-legal method in its analysis of laws and judicial decisions (by the

NIC, which is the court with exclusive jurisdiction on labour matters in Nigeria, and

decisions of other courts in Nigeria and other jurisdictions examined in this thesis) on job

security especially in chapter two which examines the theoretical foundations of job security.

In this regard, the research seeks to examine the contribution of the NIC to the alleviation of

job insecurity in Nigeria. A leave may be borrowed from the English Employment Tribunals,

especially the Employment Appeal Tribunal, which after the introduction of action for unfair

dismissal in 1972 now hear 27,000 cases in a year.102 The Tribunals now apply more of

labour statutes tailored along ILO Standards for employment protection as opposed to the

application of common law principles to labour matters where protection of labour is

minimal.

1.8 Research Questions

The study seeks to answer five basic questions, namely:

1. How, if at all, does the extant legal framework in Nigeria provide for job security?
2. To what extent is the common law doctrine of termination at will suitable for
attaining job security in Nigeria?
3. Does the legal regime for job security in Nigeria conform with international
standards?
4. What lessons can Nigeria draw from other developing countries on job security?
5. What regulatory framework will adequately attain job security in Nigeria?

100
C McCrudden, ‘Legal Research and the Social Sciences’ (2006) 122 Law Quarterly Review 632, 637;R
Pound, ‘Law in Books and Law in Action’ (1910) 44 American Law Review 12.
101
McCrudden (n 110) 637. It should be noted that while socio-legal research entails both theoretical and
empirical analyses of the law, this thesis does not engage in empirical legal research as it is outside the scope of
this research.
102
See G. Pitt, Employment Law, (London: Sweet and Maxwell, 2004)

26
1.9 Chapter Outlines

This thesis is divided into seven chapters.Chapter one introduces the subject matter of the

research and further traces the historical evolution of the concept of job security. Chapter two

discusses three major theories of law and economics in the context of job security.

Neoclassical economic theory known for its presumption of free labour market and parties’

equal bargaining power is analysed and criticised for its wide and erroneous presumptions,

and condemned as being unsuitable for master-servant relationship. Institutional economic

and Marxian theories which were developed to cushion the harshness and injustice

engendered by the application of the neoclassical economic theory are favourably considered

as model for job security.

Chapter three discusses provisions of the ILO Recommendations and Conventions on

Termination of Employment. The Convention disapproves of employer’s inordinate power to

hire and fire for good reason, bad reason or no reason which is the position under common

law. Under the Convention, an employer can only terminate the employment of an employee

for valid reasons. Valid reasons are reasons related to the employee’s competence, conduct,

and the operational requirement of the firm. Consequent upon the international standards

established by the ILO, chapter three discovers that though Nigeria is an active member of

the ILO, it has neither domesticated the Convention nor aligned itself to the international

standards on job security. Chapter four considers the prospects and challenges of expanding

the scope of fundamental rights as contained in the 1999 Constitution, especially rights to

dignity and property, to employee’s right to job security in view of what is obtainable in other

developing countries such as South Africa. Hence, part two answers the second research

question by suggesting that if an employee has a constitutionally guaranteed right to job

security then award of damages, usually one month salary in lieu of notice, is grossly

inadequate in cases of wrongful termination.

27
Chapter five conducts an elaborate comparative analysis of three developing African

countries, namely, South Africa, Ghana and Kenya. It is discovered that although these

countries also have not domesticated the Convention they have, nevertheless, achieved the

same result by enacting unfair dismissal legislations in terms similar to the provisions of the

Convention. Chapter six discusses the role of the National Industrial Court (NIC) in attaining

job security in Nigeria. The NIC is the court with exclusive jurisdiction over labour matters in

Nigeria. The effect of the Third Alteration to the 1999 Constitution is to establish the NIC as

a court with exclusive jurisdiction on labour matters; and it empowers the court to apply

labour related conventions, recommendations, protocols, and other international standards

whether or not they have been domesticated in Nigeria. Hence, the focus of this chapter is to

assess the court in view of this seemingly absolute power and determine whether the court

has been able to directly apply ILO conventions in cases bordering on wrongful termination

in Nigeria. Chapter seven is the concluding chapter. Building on the research discussions in

the six previous chapters, the concluding chapter summarises the research discoveries and

applies them to specifically answering the three research questions raised in the first chapter

of the thesis.

28