INTERNATIONAL LABOUR ORGANIZATION (ILO) AND TERMINATION OF EMPLOYMENT STANDARDS

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INTERNATIONAL LABOUR ORGANIZATION (ILO) AND TERMINATION OF EMPLOYMENT STANDARDS

ABSTRACT

The Nigerian labour practice, just like the Nigerian legal system, is governed by laws and rules that owe their origin from many sources. This is because of the nature of the legal system, which is influenced by the customary practices of the people, the colonial link and the creation of our legislation, upon independence. Another very important source of obligation, both for Nigeria, and its workforce, is international law. This is derived as a result of Nigeria’s membership to the International Labour Organisation (ILO) and the community of nations. Thus, international law standards also apply in Nigeria to affect the rights of workers and fair labour and industrial practice in Nigeria. The methodology adopted in this work is the doctrinal research method which is a legal research approach of analyzing texts and instruments on the subject matter. The purpose of this paper is to show that ILO Conventions and Standards are relevant for the promotion of rights of workers in Nigeria, and for the establishment of fair labour and industrial practices in Nigeria. The significance of this work is that it justifies, for the Nigerian legal system, the need to make these ILO Conventions and Recommendations, domestically enforceable. This paper has the potential to influence the application of ILO standards by both the executive and the judiciary, within the Nigerian legal system, with the effect that workers will enjoy better protection and rights.

CHAPTER ONE

1.0 INTRODUCTION

1.1 BACKGROUND OF THE STUDY

Several international norms have been addressed towards the better cooperation and coexistence of states and the protection of individuals. It is only in the enforcement of international law within the municipal courts of a country that the rights of individuals, as expressed in international law can be protected. The extant fundamental law that seeks to make international law enforceable in Nigeria is section 12 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). It provides by Kanyib B B (Judge of the NIC) (2009):

(1) No treaty between the Federation and any other country shall have the force of law except to the extent to which any such treaty has been enacted into law by the National Assembly.

(2) The National Assembly may make laws for the Federation or any part thereof with respect to matters not included in the he Exclusive Legislative List for the purpose of implementing a treaty.

(3) A bill for an Act of the National Assembly passed pursuant to the provisions of subsection (2) of this section shall not be presented to the President for assent, and shall not be enacted unless it is ratified by a majority of all the House of Assembly in the Federation. This provision limits the application of international law and standards, to only treaties that have been re-enacted by the legislation. This may constitute a clog in the relevance of ILC conventions to workers in Nigeria.

However, the work force of any nation constitutes a significant part of its population whose contribution is central to national growth. An active work force is an index of a growing economy. Consequently while free enterprise is being encouraged, many nations take effective measures to protect employees in their jobs. The beginning of any employment relation is the embodiment of the terms and conditions of the relationship in a form communicable between the parties. Though a contract of employment may be entered into by implication, the Nigerian Labour Act1 requires that not less than three months after the beginning of a worker’s period of employment, the employer shall give to the worker a written statement specifying the detailed terms and conditions of the employment (Section 7 of Labour Act). It may be expected, therefore, that parties are fairly aware of the terms upon which they contract. Such contracts ideally should be a protective mechanism, particularly for the employees. However, this is rather illusory as workers are hardly in a position to negotiate and accept the plenitude of terms which may attach to their situation. Often, letters of employment are as scanty as the employer desires. Generally, dismissal denotes any action on the part of an employer that brings an employment relationship to an end whether or not it is in accordance with the terms of the contract. However, it is suggested herein, that for a better understanding of terminologies, a clear distinction needs to be drawn between dismissal and termination. Often, dismissal is confused with ‘termination’. The latter simply refers to the cessation of a contract of employment, usually, 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. The distinction centres on whether an employment has been determined in accordance with its terms or not. This is a common feature of most disputes on termination; hence, it can be a veritable source of confusion whether to use the term, ‘termination’ or ‘dismissal’. In the past two decades, with a growing private sector, the relationship between employers and employees continues to be a turbulent one and a source of unending litigation in Nigeria. This is exacerbated by the state of the economy, where paid employment now constitutes the source of livelihood of many families. It is natural, therefore, to see a growing local jurisprudence in this area of the law.

In other hand, following the discussion in the Committee on Legal Issues and International Labour Standards, Termination of Employment Convention, 1982 (No. 158), and the Termination of Employment Recommendation, 1982 (No. 166) (hereinafter the Convention, the Recommendation or the instruments), as well as the funding of the Meeting (GB.306/10/2(Rev), the Governing Body approved, at its 306th Session (November 2009), the holding of a meeting of a tripartite group of experts (hereinafter “Meeting of Experts”) to examine the (GB.306/PFA/9 and GB.306/9/1(Rev) on the basis of a proposed composition of six Government, six Employer and six Worker experts. The Meeting was scheduled to be held from 18 to 21 April 2011. The purpose of the Meeting of Experts is to examine the Convention and Recommendation, to identify obstacles to ratification and implementation and other relevant current trends in law and practice. On the basis of the outcome of the Meeting, the Office will prepare proposals to the Governing Body for its consideration (B.309/21).

A rich body of information and analysis exists specifically relevant to deliberations of the Meeting of Experts on account of the fact that the Governing Body, its committees or working parties, have examined these instruments since 1984. In particular, the following documents are available for consideration by the Meeting of Experts:

– The General Survey prepared in 1995 by the Committee of Experts on the Application of Conventions and Recommendations (hereinafter “CEACR”) entitled “Protection against unjustified dismissal” (1995) (hereinafter “1995 General Survey”). The 1995 General Survey discussed national practice in the light of the requirements of the Convention and the guidance of the Recommendation in eight chapters (ILC ((1995).

– A short survey prepared by the Office for the tripartite Working Party on Policy regarding the Revision of Standards and published in March 2001 (hereinafter referred to as “2001 survey”). 2001 survey has two sections. The first outlines the main provisions of Convention No. 158, providing a brief overview of its legal context and tracing its origins. It contains also a detailed examination of the obstacles and difficulties encountered that might prevent or delay ratification of the Convention or that might point to the need for its revision. The examination was made on the (GB.280/LILS/WP/PRS/2/2).

However, the Nigerian law on the subject of dismissal is still a relic of the received English law as at 1900. There is a glaring gap in the absence of any statutory protection against unfair dismissal, this notwithstanding international conventions and recommendations of the (ILO, 1919) setting standards in labour matters (ILO Constitution, 1946). Particular notice is drawn to the Recommendation of the International Labour Organization (ILO) on ‘individual dismissal’ and Convention. This study is aim at exploring international labour organization (Ilo) and termination of employment standards.

1.2 STATEMENT OF THE PROBLEM

Nigeria, by the provision of her Constitution, practices dualism, in her application of international treaties. This requires that every treaty must first be re-enacted into local legislation before it can be applied within the Nigerian municipal legal system. The International Labour Organisation regulates the conduct of its members through conventions and recommendations. The question therefore is; what is the status of these conventions and recommendations when undomesticated, and of what use will it be to the workers, when they cannot benefit from them. This research work questions, and show the status of ILO conventions and their relevance in promoting the rights of Nigerian workers, and the application of fair labour and industrial practice in Nigeria. But depite of this,

Lack of political will to enforce economic, social and cultural rights as enshrined in ILO conventions is also a challenge. Other challenges may include: Lack of International exposure to scholars in international law, leading to a arrow appreciation of contemporary international law. Study of international law and international labour relations in our institutions are not encouraged.  Lack of proper documentation of applicable international laws – those signed and ratified and those domesticated. Lack of consistency in political ideology of the state. The greater Nigerian elite are not even aware of Nigeria’s international obligations. This is due to non-publication of ratified treaties. It is necessary that a country must give suitable publicity to the treaties it concludes in order that the public may be aware of the undertakings and engagements its government makes.

1.3 OBJECTIVE OF THE STUDY

1. To evaluate the relationship between international law and municipal law.

2. To examine the fundamentals in the termination of employment contracts.

3. To examine the International Labour Organization standards on the termination of employment contracts.

4. To compare the differences in the laws applicable to the private and public organization in Nigeria and United Kingdom as pertains to termination of employment contracts.

1.4 RESEARCH QUESTION

1. Is there any significant relationship between international law and municipal law?

2. What are the fundamentals in the termination of employment contracts?

3. What are standards placed by International Labour Organization on the termination of employment contracts?

4. What are the comparism between the application of laws to the private and public organizations in Nigeria and United Kingdom as pertains to termination of employment contracts?

1.5 RESEARCH HYPOTHESES

H0: There is no significant relationship between international law and municipal law.

H1: There is significant relationship between international law and municipal law.

H0: The application of laws to the private and public organizations in Nigeria and United Kingdom as pertains to termination of employment contracts cannot be compared.

H01: The application of laws to the private and public organizations in Nigeria and United Kingdom as pertains to termination of employment contracts can be compared.

1.6 SCOPE OF THE STUDY

The scope of this research was limited to international labour organization (ILO) and termination of employment standards.

1.7 LIMITATION OF THE STUDY

a) The Limitation of the study among other things include inability to access adequate data as regards to the topic under study and as a result of most of the teachers attitude in responding to the questionnaires.

b) Much time was spent on carrying out this research study from the printing and distribution of questionnaires to the target population, rather than whole population which was difficult to do;

c) Funding: carrying out this research involves a lot of money. This includes travelling from one school to the other gathering vital data for the study; money was expended on the printing of questionnaire, typesetting and binding of the research work into a booklet; indeed, generous incentives for both field officers and respondents in order to elicit their co-operation.

d) Respondents: The researcher was faced with the problem of some respondents not co-operating fully in the providing answers to the questionnaire, seeing the exercise as an unnecessary distraction from their businesses. There was also the problem of some respondents having misconception about the whole exercise, because they thought providing certain information about them on issues were going to implicate them.

e) Materials: The availability of some vital materials for the study was very difficulties. Vital documents like journals, literature and other relevant sources of secondary data collection were encountered with some degree of scarcity. Accessing the Internet for vital and relevant data was also not easy.

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