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LIVING WAGE IN NIGERIA: A CASE STUDY

EZEAKU AMOBI P1

INTRODUCTION

1.1 Meaning of Living Wage

The implied obligations of the employee at common law are

accompanied by the reciprocal implied obligations owed by the

employer to the employee.

The first and most important of these is the employer’s

obligation to pay wages for the performance of work according

to the terms of the contract.

According to the Oxford Advanced Learner’s Dictionary2, the term living

wage is defined as “a wage that is high enough for somebody to

buy the things they need in order to live”.

1 EZEAKU AMOBI is a lawyer, writer, footballer whose major interest is in Sports and Industrial Law as well as the protection of the rights of sportsmen and women2 Oxford Advanced Learner’s Dictionary (New 8th Edition) p.872.

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The Osborn’s Concise Law Dictionary3, define wages as “money payable by

an employer to an employee in respect of services at set

intervals, for example weekly or monthly”.

An employer’s duty to pay agreed remuneration is a fundamental

obligation under the contract of employment. A failure to pay

remuneration is a breach of contract giving rise to action for

damages or debt and can amount to repudiation, justifying

constructive dismissal.

Remuneration comprises salaries, wages and allowances or

commissions, which form part of a contract of service. Wages

are primarily fixed between the employer and individual

workers. But where no rate is agreed, the rate is deemed to be

what is current in similar trade in the area.

In public policy, a living wage is the minimum hourly income,

necessary for a worker to meet basic needs (for an extended

period of time). These needs include; shelter (housing) and

3 Osborn’s Concise Law Dictionary (Sweet & Maxwell) 10th Edition, 2005.

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other incidentals such as clothing and nutrition. In developed

nations such as United Kingdom and Switzerland this standard

generally means that a person working fourty hours a week,

with no additional income, should be able to afford a

specified quality and quantity of housing, food, utilities,

transport, healthcare and recreation. In addition to this

definition, living wage activists further define “living wage”

as the wage equivalent to the poverty line for a family of

four.

Living wage has also been defined as a wage sufficient to

provide the necessities and comforts of pay which is essential

to an acceptable standard of living.4 There are no doubts that

the most important item in the contract of employment is the

remuneration attached to the job. Remuneration comprises

salaries, wages and allowances or commissions, which form part

4 www.merriam-webster.com/../livingwage retrieved on 15th day of May,2012.

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of the terms of a contract of service.5 Wages are primarily

fixed between the employer and individual workers. But where

no rate is agreed, the rate is deemed to be what is current in

similar trade in the area.

In the case of Peters of Oron v. Symmons,6 the plaintiff was a

carpenter who had been employed by the Nigerian Timber and

Construction Co. Ltd at a branch in Calabar the plaintiff’s

employment was terminated for want of further work but he was

thereafter referred to the manager of the Oron branch of the

company, one Mr. Symmons, the defendant, who entered into an

oral agreement with the plaintiff for a fresh employment but

without specifying the rate of wages. The question for the

court to decide was whether the agreement reached at Oron

implied employment at the rate of pay which the plaintiff had

been receiving at Calabar or whether implied employment at the5 Emiola A., Nigerian Labour Law (Ogbomosho: Emiola Publishers Ltd., 2000) p.71.

6 (1924) 5 N.L.R 79; Economic Export Ltd v. Jimoh Odutola (1958) WNLR 239; AdebayoBello v. Gem Fasteners Industries (Nig) Ltd. (1983) F.N.R. 195, C.A.

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lower rate then prevailing at Oron. The Court held that in the

absence of any specific stipulation by the parties as to the

rate of wages, the agreement must rest on the implied terms

that a wage corresponding to that prevailing in similar

employment at the time in the area was intended.

In U.A.C Ltd v. Johnson7, it was decided however that the onus is

always on him who seeks to take advantage of a trade custom to

prove its existence.

In Lees v. Whitcomb8, where a servant was to stay with the master

for two years to learn a trade but there was no term of the

contract binding the master to teach the servant the trade, it

was held that there was no contract.

7 (1935) 12 N.L.R. 38.8 (1828). 5 Bing. 34; 2 M & P 86.

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1.2 Origin of Living Wage

While there is no first pay stub for the first work-for-pay

exchange, the first salaried work would have required a human

society advanced enough to have a barter system to allow work

to be exchanged for good or other work. More significantly, it

presupposes the existence of organized employers- perhaps a

government or a religious body that would facilitate work-for-

hire exchanges on a regular enough basis to constitute

salaried work.

From this, most infer that the first salary or living wage

would have been paid in a village or city during the Neolithic

Revolution, sometime between 10,000 BC and 6000 BC. A

cuneiform inscribed clay tablet dated about BC 3100 provides a

record of the daily beer rations for workers in Mesopotamia.

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The beer is represented by an upright jar with a pointed base.

The symbol for the rations is a human head eating from a bowl.

Round and semicircular impressions represent the measurement.

By the time of the Hebrew9, salt from a person was synonymous

with drawing sustenance, taking pay, or being in that person’s

service. At that time, salt production was being controlled by

the monarch or ruling elite. Similarly, the Roman word salarium,

linked employment, salt and soldiers, but the exact link is

unclear. The least common theory is that the word soldier

itself comes from the Latin sal dare.10 Alternatively, the Roman

historian Pliny the Elder stated as an aside in his Natural

History’s discussion of sea water that “In Rome… the soldier’s

pay was originally salt and the word salary derives from it”11.

Others note that soldier more likely derives from the gold

solidus, with which soldiers were known to have been paid, and

9 Book of Ezra (550 to 450 BC). Ezra 4:14.10 Which means to give salt.11 Plinius Naturalis Historia XXXI.

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maintain instead that salarium was either an allowance for the

purchase of salt or the price of having soldiers conquer salt

supplies and guard the Salt Roads (via salarium) that led to

Rome. Regardless of the exact connection, the salarium paid to

Roman soldiers has defined a form of work-for-hire ever since,

in the Western world and gave rise to expressions as “being

worth one’s salt”12

1.3 Distinction between Living Wage and Minimum Wage

The living wage differs from the minimum wage in that the

latter is set by law and may fail to meet the requirements of

a living wage. It differs somewhat from basic needs in that

the basic needs model usually measures a minimum level of

consumption, without regard for the source of the income. A

related concept is that of a family wage- one sufficient to

not only live on oneself, but also to raise a family, though

these notions may be conflated. A wage is compensation,

12 Retrieved from en.wikipedia.org/wiki/salary on May 20, 2012.

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usually financial, received by workers in exchange for their

labour. Minimum wages are set both nationally and locally.

The minimum wage gives the employer a guideline as to the

legal minimum amount paid to employees. The minimum wage

served to keep 85% of workers and their families above the

poverty line for a family of four. Today that percentage has

dropped to 65%, in effect leaving 35% of wage earners living

at or below the poverty line. The current minimum wage amount

is roughly half of what the projected living wage is in any

given state. Living wage is defined as the estimated amount of

income necessary to live comfortably and put a family into the

bracket of middle class.

Minimum wage generally applies to unskilled or semi-skilled

labourers. Many U.S. cities have adopted popular but

controversial living wage ordinances which require certain

companies and industries who receive government contracts or

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tax incentives to pay wages that are more than the federal or

state mandated minimum wage.

According to Merriam Webster’s Online Dictionary, living wage is

defined as a wage sufficient to provide the necessities and

comforts essential to an acceptable standard of living. With

an ideal living wage, an individual working 40 hours a week

(2,080 hours per year) would be able to afford food, child

care, medical, housing, transportation and other expenses for

his family if he is the sole provider.

Minimum wage13 is defined as a wage fixed by legal authority or

by contract as the least that may be paid either to employed

persons or to a particular category of employed persons. In

the United States of America for instance, minimum wages are

set both nationally and statewide.14 Certain occupations such

13 Merriam Webster’s Online Dictionary.14 Effective July 24, 2009, the U.S. federal minimum wage was set at $7.25per hour with an amendment to the Fair Labour Standards Act (FLSA). AllU.S. states and territories except Alabama, Louisiana, Mississippi,Tennessee and South Carolina have minimum wage laws.

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as agricultural and service workers are usually exempt from

minimum wage requirements. Also, workers with disabilities can

be paid special minimum wages known as commensurate wage rates

which are less than the Fair Labour Standard Acts minimum

wage. These wages are based on the disabled worker’s

individual productivity in comparison to non-disabled

experienced workers in the geographic area from which the

labour force is drawn.

According to Fairchild15, living wage laws differ fundamentally

from minimum wage laws in that they cover only a small subset

of workers in a local jurisdiction whereas the latter cover

almost all workers.

According to Neumark and Adams16, living wage ordinances can

increase the wages of low-income workers and reduce urban

15 “Does the minimum wage help the poor?” Forum for Social Economics 34 (1-2); Fairchild D.; 2004.

16 “Do Living Wage Ordinances Reduce Urban Poverty?” National Bureau ofEconomic Research Working Paper No. 7606; Neumark D., and Adams, S.;2000.

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poverty. However, these ordinances also have strong negative

effects on the employment of low-wage workers.

According to Abbot and Fairchild17 minimum wages can increase

the standard of living for the poor, motivate people to work

harder, improve the economy by increasing the spending power

of lower income people, and decrease government spending on

social welfare programs like food stamps, medical insurance

and subsidized housing. However, they can also hinder firms

from being efficient during economic downturns, hurt small

businesses, and lead to inflation and entice poor teenagers to

enter the workforce at the expense of their education.

1.4 Protection of Wages

Section 1 (a) of the Labour Act18 provides that subject to this

section the wages of a worker shall in all contracts be made17 “Statutory Minimum Wage Controls: A Critical Review of their effects onLabour Markets, Employment, and Incomes.” ISR Publications. ManchesterUK, 2nd edition; Abbot, L.; 2000.

18 Cap 198 Laws of the Federation of Nigeria 1990.

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payable in legal tender and not otherwise. This provision is

to ensure that the wages of employees are protected. Indeed

Part 1 of the Nigerian Labour Act could be said to be

extensive on the protection of wages of employees.

One of the longest standing pieces of social legislation in

English law was the Truck Acts 1831-1940, designed and

basically put into place early in the nineteenth century to

protect the employee in his free enjoyment of his earnings.

They served two distinct purposes:

The original Act of 1831 gave a legal right to payment in

‘current coin of the realm’, designed to prevent abuse of

the then prevalent ‘Tommy shop’ whereby an employer might

pay at least part of the employee’s wages in tokens to be

spent at the employer’s own shop19.

19 Such a system was not necessarily vicious, since the employer might havethe benefit of discount buying, but obviously it was open to abuse.

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The later legislation (particularly the Truck Act 1896)

then placed restrictions on the making of deductions from

wages, principally in respect of the provisions of goods

and services by the employer, fines or bad workmanship;

these were of great complexity, but in essence they

usually provided that the deduction had to be authorized

in writing and be fair and reasonable in the

circumstances.

The principal limitation of the legislation was that it only

applied to manual workers20. Persons not covered were therefore

left to their contractual rights on both payment methods and

deductions21. It was recognized for years that the legislation

was in need of, at least, revision, and indeed the last major

case on it showed just how unpredictable and unreliable its

coverage was.20 This distinction caused great difficulties. See Brooker v. Charrington Fuel Oils

Ltd (1981) IRLR 147. 21 On deduction however there was at least the statutory right to have thedeductions notified.

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In Bristow v. City Petroleum Co. Ltd,22 the House of Lords finally held

that a deduction from a shop worker’s wages in respect of a

stock could be a fine within the section 1 of the Truck Act of

1896, thereby resolving a conflict of opinion between

different Divisional Courts on the issue. This finally

decision however, came too late to affect the decision to

repeal the legislation.

However, the government became interested in the area not

because of anything concerning deductions, but rather because

of the first of the above two defects, that of the right to

payment in cash.

22 [1988] ICR 165, [1987] IRLR 340.

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1.5 Employer’s/ Employee’s Rights and Duties

In all contracts of employment, there are special duties and

legal incidents as well as rights which mark them off from

other forms of relationship; these include the fundamental

duties of the master at common law. The legal responsibility

of a master arising from the master and servant relationship

takes two forms.23 First, there are the duties owed by the

master to the servant as an individual worker called personal

liability. Secondly, there are also liabilities to his other

servants and to a third party arising from his own default or

from the default of one of his servants known as vicarious

liability.

The employer is always held liable to his servant for his own

act; but he has also been frequently held liable to the

outside world for the acts of his servants. According to John

Munkman: “there are still some differences between personal

23 Emiola, op cit., p. 170.

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liability and vicarious and, for certain purposes, they must

be kept distinct.24

The paramount duty of an employer is to take reasonable care

for the safety of his worker apart from any other duty

arising.25

The Duty to Provide Work:

This duty is established by Section 17 of the Labour Act26. It

was generally the contention in the past that an employer was

not bound to provide work in so far as wages were paid27.

24 John Munkman, Employer’s Liability at Common Law, 5th Ed. (1962) p.125 The master’s main duty at common law is not however absolute. It is theduty to take reasonable care in all circumstances: Wilson & Clyde Coal Co. v.English (1937) 3 All E.R. 638.

26 Cap. L1 Laws of the Federation of Nigeria (LFN) 2004.27 Turner v. Sawdon (1901) 2KB 653.

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In Collier v. Sunday Referee Publishing Co. Ltd,28 the plaintiff was a chief

sub-editor with the defendant. He sought the right to work and

be paid for working. The court held that the employee had the

right to work. Asquith J discussed a former employee’s right

to earn a living:

It is true that a contract of employment does notnecessarily, or perhaps normally, obliges themaster to provide the servant with work. Provided Ipay my cook her wages regularly she cannot complainif I choose to take any or all of my meals out. Insome exceptional cases there is an obligation toprovide work. For instance, where the servant isremunerated by commission, or where (as is in thecase of an actor or singer) the servant bargains,among other things, for publicity, and the master,by withholding work, also withhold the stipulatedpublicity…

As illustrated in the courts pronouncement above in the case

of contracts with actors and others, contracts involving

payment of commissions, contracts with skilled employees where

they need to regularly work so as to maintain, improve or

sharpen their skills, a duty on the employers to provide work

28 [1940] KB 647.

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is recognized. A duty exists to offer work where remuneration

depends wholly or perhaps partially on commission payments.29

In special cases it may be considered to be understood that

part of the consideration is the opportunity to gain publicity

or experience.30

In Langston v. Allen31, an employee was suspended on full pay as a

result of a dispute over his non-membership of a trade union.

The Court of Appeal in England held that this suspension was a

breach of his contract of employment.

Duty to Treat the Employee with Respect:

In modern employment law there has been a restatement, perhaps

surprisingly, of implied duties of mutual respect between

employer and employee. In certain employments, particularly of

a domestic nature, this may require positive courtesy32 while

29 R v. Welch (1853) 2 E & E 357; also Devenald v. Rosser & Sons (1906) 2 KB 728;Turner v. Goldsmith (1891) QB 544.

30 Langston v. Allen (1974) 1 All ER 980.31 (1974) 1 All ER 980.32 Wilson v. Racher [1974] ICR 428.

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in others it may mean treating each other with such a degree

of consideration and tolerance as would allow the contract to

be executed. This is of course a vague concept which will vary

with the circumstances, and if there is a more concrete area

of dispute in any given case questions of want of ‘respect’

will be of secondary importance33. However, an obligation upon

the employer to treat the employee with respect and not to act

in a manner likely to destroy or seriously damage the

relationship of trust and confidence may be seen as a

corollary of the employee’s general duty not to impede the

employer’s business, as enunciated in Secretary of State for

Employment v. ASLEF (No.2)34.

The development of such a term is perhaps, not so surprising,

for the advent of the law on unfair dismissal has restricted

the employer’s prerogative to dismiss so that good personnel

33 As seen in Donovan v. Invicta Airways Ltd [1970] 1 Lloyds Rep 486, CA.34 (1972) 2 QB 455, (1972) 2 All ER 949, CA.

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management has become an essential, not an optional extra. The

overall requirement of fair dismissal procedures, for example,

has meant that more notice has to be taken of the employee’s

viewpoint, and the employer is expected not just to assist or

train the employee to meet any required standards of

competence or conduct. Moreover, in one important area of

unfair dismissal law, the concept of an implied duty of

respect has taken on specific and definite significance. This

is in the area of ‘constructive dismissal’. The essence of

this concept is that the employee can claim to be dismissed,

even though he walks out, if he can show that the employer’s

conduct was such that he was entitled to do so35.

Duty of Care:

This is a duty that might cover a variety of responsibilities

by the employer and the employee. It is required of an

employer to ensure, as far as is reasonably practicable, the

35 Bliss v. South East Thames Regional Health Authority (1987) ICR 700.

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health, safety and welfare at work of all his employees.

Similarly, there is an obligation on employees to inform the

employer, or any other person responsible for health and

safety, of any work situation which might present a serious

and imminent danger to health and safety.

There is an implied duty in every contract of employment that

an employer will take all reasonable steps to provide and

maintain a safe system of work so as not to expose the

employee to unnecessary risks of injury. In Wilson and Clyde Coal

Co Ltd v. English36, Lord Thankerson listed a number of duties of

the master (employer) towards the servant (employee):

if the master retains control, he has a duty to seethat his servants do not suffer through hispersonal negligence, such as (1) failure to provideproper and suitable plant, if he knows, or ought tohave known, of such failure; (2) failure to selectfit and competent servants; (3) failure to providea proper and safe system of working; and (4)failure to observe statutory regulations.

36 [1938] AC 57 HL.

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This duty extends o responsibility for actions taken by

employees and agents of the employer. The employer may be

liable even if, centrally, I had taken all precautions as were

reasonably practicable, but this has not been done by its

employees elsewhere.37 This general duty extends to persons not

in the direct employ of the employer38.

However, provided that the employer had taken all steps that

are reasonably practicable, they should not be held liable for

the acts of their careless or negligent employees or agents.

In R. v. Nelson Group Services (Maintenance) Ltd39 where gas fitters had

not completed their tasks correctly and thus had exposed

customers to danger to their health and safety. The Court of

Appeal allowed an appeal from the High Court on the grounds

that the judge’s direction had not allowed the employer’s

37 R. v. Gateway Foods Ltd [1997] IRLR 189 CA.38 R. v. Associated Octel Co. Ltd. [1997] IRLR 123 HL. 39 [1999] IRLR 646 CA.

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defence of reasonable practicability to be decided by the

jury.

In Dryden v Greater Glasgow Health Board40 the introduction of a no-

smoking policy by the employer, after consultation, had an

adverse effect upon a nurse used to smoking 30 cigarettes per

day. The court concluded that where a rule is introduced for a

legitimate purpose the fact that it has such an effect on an

employee does not enable that employee to resign and claim

constructive dismissal. There was no implied term in the

employee’s contract of employment which entitled them access

to facilities to enable them to continue smoking.

Again, an employer’s duty of care is owed to the individual

employee and not to some unidentified ordinary person.

The duties/rights of the employee are under listed and

highlighted:

Duty of Obedience:

40 (1992) IRLR 469.

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There is an implied duty to obey an employer’s instructions

and a failure of an employee to obey such a lawful or

reasonable instruction by an employer might lead to a

fundamental breach of the contract of employment as

highlighted in the case of Laws v. London Chronicle Ltd41. The implied

term to serve the employer faithfully according to the

contract of employment also applies to managers who supervise

others and exercise discretion in the carrying out of their

duties. If the employee exercises that discretion in order to

disrupt or make difficult the work of the employer, then there

may be a breach of this implied term.

In the recent case of Ticehurst v. British Telecom42, when a supervisor

as part of a dispute refused to sign a declaration that she

would work normally, this was seen as an intention not to

41 (1959) 2 All ER 285 CA42 (1992) IRLR 219 CA.

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perform the full range of duties and amounted to a breach of

the implied term to serve the employer faithfully.

It is possible however, for the failure to obey an unlawful

instruction to be a breach justifying summary dismissal for

gross misconduct such as when an employer reasonably, but

mistakenly believed that they were giving a lawful

instruction43. A belief by the employee that the employer has

breached an implied term is not a justification for failing to

obey other lawful and legitimate instructions44.

Questions of obedience are naturally bound up with the law on

dismissal, and at common law principally with the employer’s

right to dismiss summarily. In general, refusal to obey a

proper order would usually justify summary dismissal and

although such matters tend to change over time with different

social attitudes this is still the basic position with regard

to the common law action for wrongful dismissal.

The Duty of Care:

An employee owes to his employer an implied duty of care in

carrying out his job. The basic authority for this is usually

43 Farrant v. The Woodroffe School (1998) IRLR 176.44 Macari v. Celtic and Athletic Football Club Ltd. (1999) IRLR 787.

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said to be Harmer v. Cornelius45. This duty of care applies

generally46 and could cover for example, care in using the

employer’s equipment. However, its principal legal

significance arises where an employee in the course of his

employment injures a third party or his goods. In these

circumstances the employer may be sued for damages by the

third party as being vicariously liable for the tort of the

employee.

Good Faith:

An act which is inconsistent with the terms of the contract,

express or implied, and which is injurious to the employer and

his interest will amount to a breach of the duty of faithful

service. In Lacy v. Osbaldiston47, a manager whose act was injurious

to the interest of the theatre he was employed to manage was

held to have been rightly dismissed at common law. In

particular, an employee must not place himself in a position

in which his own interests conflict with his duty to his

45 (1858) 5 CBNS 236. Even though that case actually concerned arepresentation that the employee possessed the necessary skill for thejob, for in subsequent cases skill and care have been treated as roughlyequivalent.

46 Janata Bank v. Ahmed (1981) ICR 791.47 (1837) 8 C & P 80.

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employer48. in the case of Boston Deep Sea Fishing & Ice Co. v. Ansell49, the

defendant had been employed as managing director of the

plaintiff company and he had contracted with a firm of

shipbuilders for the supply of certain vessels and had taken

from them a commission in respect of the transaction, of which

his employers knew nothing. He also possessed shares in an

ice-making and fish-carrying company which paid bonuses to

those of its shareholders who, being owners of fishing

vessels, used the company’s ice or its services as carrier. He

was held to the strictest accountability but apart from that,

there was clearly a breach of his duty to serve faithfully,

since the temptation to use the company’s ice to its services

as a carrier conflicted or might conflict with his duty to

consider his employer’s interests in preference to his own. It

was held that he was properly dismissed, and he had to account

to his employer for the profit he made. It is true that this

case concerned a managing director and directors may be under

a special fiduciary duty50, but the general principle may apply

to any employee who misuses his employer’s property in a way

48 Pearce v. Foster (1886) 17 QBD.49 (1888) 39 Ch D 339, CA.50 As evidenced in the case of Cook v. Deeks (1916) AC 554, HL.

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which shows breach of fidelity51, or improperly exploits his

position of employment in order to make a secret profit or

gain52.

During the course of his employment the employee is under an

implied duty not to misuse confidential information belonging

to his employer and this is a duty which may continue to

operate after the termination of his employment. However, it

was pointed out by the Court of Appeal in what is increasingly

being viewed as the leading modern case on the subject, Facenda

Chicken Ltd v. Fowler53, that there is a difference in the content and

extent of the duty- in the case of an existing employee the

obligation of confidentiality is wider54 than in the case of an

ex-employee whose obligation to the ex-employer are restricted

to the kind of trade secrets or confidential customer

51 An example is by borrowing from the till when not allowed to do so.Sinclair v. Neighbour (1967) 2 QB 279.

52 Reading v. A-G [1951] 1 All ER 988, CA.53 [1986] ICR 297, [1986] IRLR 69, CA.54 This is so because it covers matters such as the employee’s ownparticular skills and knowledge acquired during the employment.

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connections that could be the subject of a valid restraint of

trade course.

It is also important to state that there are two aspects of

the duty of fidelity owed by employees to their employer. The

first is the implied duty not to compete with the employer and

the second is not to disclose certain confidential

information. A further issue concerns the use of restrictive

covenants in contracts of employment when used by employer to

restrict the ability of employees to work for competing

businesses and use the knowledge and skills gained whilst in

the employment.

CHAPTER TWO

THE RIGHT TO WORK AND THE NIGERIAN LABOUR LAWS.

2.1 Relationship of Employer and Employee

The relationship of employer and employee55 is according to the

common law, a voluntary relationship into which the parties

55 Master and servant are old-fashioned.

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may enter on terms laid down by themselves within limitations

imposed only by the general law of contract. A man agrees

expressly or by implication to be a servant or an apprentice

and there is no other way in which the relationship can

arise56.

The faintest doubt cast upon the voluntary character of the

relationship would be sufficient to secure the active aid of

the courts. Lord Atkin in the case of Nokes v. Doncaster

Amalgamated Collieries Ltd 57 stated:

I confess it appears to me astonishing that apartfrom overriding questions of public welfare, powershould be given to a court or to anyone else totransfer a man without his knowledge and possiblyagainst his will, from the service of one person tothe service of another. I had fancied thatingrained in the personal status of a citizen underour laws was the right to choose for himself whomhe would serve and that the right of choiceconstituted the main difference between a servantand a serf.

Although the relation is firmly based in contract, suggestions

have been made that it might be possible and even desirable to

56 John C. Wood, Cooper’s Outline of Industrial Law (6th edition) p. 3.57 (1940) A.C. 1014 at p. 1026.

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introduce elements of the concepts of status into the legal

nature of the employer-employee relationship58. One of the

chief effects would be to enable the law to continue the

worker’s right to work even in face of opposition from the

employer. This type of approach can be seen in the very

special statutory dock labour scheme59, but it is, as yet,

completely alien to the present legal concept of employment.

Again, the relationship of the employer and employee are

subject to tests. Many of the cases are susceptible to

solution by use of the control test.

In Jones v. Scullard60, the defendant owned horses, harness and a

brougham which he kept at certain livery stables. Whenever the

defendant wished to use the carriage, the owner of the stables

supplied one of his men to drive. The same man had in fact

been supplied for six weeks and had been provided (by the

58 Wedderburn, the Worker and the Law, 2nd edition 1971, p. 81. 59 See Vine v. National Dock Labour Board (1957) A.C. 488.60 (1898) 2 Q.B. 565.

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defendant) with a livery. On the occasion in question he drove

negligently so as to injure the plaintiff. The driver was held

to be a servant of the defendant.

In Quarnam v. Burnett61, the defendant owned a carriage for which,

when they wished to drive, they hired both horses and a driver

from a job master. For three year, the same driver had been

supplied (he was indeed the only one available) and the hirers

had supplied him with a livery which he kept at their

residence. He was, in fact, returning the hat to the horse

when the horse started and caused injury to the plaintiff and

his carriage. The driver was held not to be a servant of the

defendant62.

Whenever, therefore, it is necessary to discover whether or

not one man is the servant of another one, inquiry must be

61 (1840) 6 M & W. 499.62 The facts in the two cases are alike to cause difficulty and the difficulty is perhaps increased when it is common that in Jones’s case the driver was held to be a servant of the defendant while in Quarnam’s case he was held not.

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directed towards finding who has the power to control. It may

be material to know how and by whom a person is paid. Also, by

whom or in what circumstances he may be dismissed. But these

things, though helpful are not conclusive. For a man may be

the servant of another though he receives no payment as often

happens in family enterprise63, and someone other than his

legal master may have power to dismiss him, while the number

of places in which a man may work will, in many cases, furnish

little aid in tracing the master.

Industrial injuries insurance is based upon a similar concept

in that insurable employment is defined as employment under a

contract of service or apprenticeship64.

An alternative way of looking at the problem might be

described as the integration test. In Stevenson, Jordan & Harrison Ltd

v. MacDonald & Evans, in his judgement, Lord Denning L.J. found

63 R. v. Foulkes (1975) L.R. 2. CC. R. 150.64 Whittaker v. Minister of Pensions and National Insurance. (1967) 1 Q.B. 156 at p. 167.

35

that employment as part of a business was a feature which ran

through contracts of service while under a contract of

services the work “although done for the business, is not

integrated into it, but is only an accessory to it”65. The test

was discussed in Ready Mixed Concrete (South East) Ltd v. Minister of Pensions

and National Insurance66.

In Bank V oor Handel en Scheepvart N.V. v. Slatford67, Lord Denning L.J.

said “in this connection I would observe that the test of

being a servant does not rest nowadays on submission to

orders. It depends on whether the person is part and parcel of

the organization”.

Mackenna J raised the query about the exact meaning of “part

and parcel of the organization”. He plainly did not regard it

as a useful or clear test. This view we align to and feel it’s

a better one.65 Stevenson, Jordan and Harrison Ltd v. MacDonald and Evans (1952) T.L.R. 101 Per Lord Denning L.J. at p. 111.66 (1968) 2 Q.B. 497, (1968) 1 All E.R. 433.67 (1953) 1 Q.B. 248 at p. 295.

36

2.2 JOB SECURITY

Our Labour Law cannot be said to guarantee job security

in all confidence. A careful consideration of the law reveals

that the only real remedy available to an employee who sued

for wrongful dismissal and whose contract is not regulated by

statute is a claim for damages68. Strictly, he cannot ask for

orders restraining his employers from terminating his

appointment as the court will not in principle grant an order

compelling the performance of a contract for personal service.

He cannot also ask for reinstatement as this is a remedy which

is only available to those whose contracts are protected by

statute. He cannot also sue for constructive dismissal or

unfair dismissal as this concept is still unknown to the

Nigerian Labour Law since Nigeria has not yet adopted the

68 Katto v. Central Bank of Nigeria (1999) 6 NWLR 607.

37

position in International Labour Organization69 which has made

this remedy possible.

Section 17 of the Labour Act70 which was derived from the ILO

Convention on the right to work does not provide the means for

enforcing this right nor is a penalty for its breach provided.

Section 17 (1) of the Labour Act provides:

Except where a collective agreement providesotherwise every employer shall, unless a worker hasbroken his contract, provide work suitable to theworker’s capacity on everyday (except rest days andpublic holidays) on which the worker presentshimself and is fit for work: and, if the employerfails to provide work as aforesaid, he shall pay tothe worker in respect of each day on which he hasso failed wages at the same rate as would bepayable if the worker had performed a day’s work.

An important complement to the duty of the employer to provide

work is the right of the employee to sue for constructive

dismissal where no actual dismissal takes place especially

where the employer fails to provide work or to provide the

69 Currently, the International Labour Organization has 184 member countries.70 Cap L1 Laws of the Federation of Nigeria, 2004.

38

type of work which is suited to the skill of the employee

concerned71. The right to sue for unfair dismissal in certain

circumstances is a most crucial right and is now available to

the employee’s in countries which have adopted the

International Labour Organization Convention on this issue.

This right is justified on the recognition of the fact that

although a dismissal may not necessarily be wrongful having

regards to the principles of common law, it may have all the

ingredients of unfairness such that the unfairly treated

employee should be able to sue72. This right is in most

countries which have adopted the ILO Convention made statutory

and enforceable at Employment or Labour Tribunal having powers

analogous to those of the High Court73.

71 Oladosu O., Nigerian Labour and Employment Law in Perspective (Ikeja: Folio Publishers. 2004) p. 459. 72 Ibid.73 It is worthy to state that the National Industrial Courts in Nigeria canas well adjudicate on such matter.

39

The case of Fakaude v. OAUTH74 establishes that an employee under

an ordinary contract of service is in a disadvantageous

position compared with his counterpart in the public service

whose employment is statutorily protected. Whilst, therefore

employees protected by statute enjoy the right to sue for

reinstatement where the provision of the statute for their

termination was not complied with, the employee under an

ordinary contract of service cannot ask for reinstatement and

his only tangible remedy is in damages.

However, the fact that public service rules are adopted or

that the institution itself is wholly owned or controlled by

the government is not sufficient to make the appointment one

which is protected by statute. In Fakaude v. OAUTH supra, Hon.

Justice Karibi-Whyte JSC (as he then was) stated: “The fact

that the respondent is the creation of a statute does not

elevate all its employees to that status or that the status of

74 (1993) 5 NWLR, 291 at 47.

40

a master and servant is no longer existent or that their

employment or determination of their appointment must

necessarily have a statutory flavor. The special statutory

flavor merely reinforces the security of tenure provided the

servant”.

Unfortunately, that security of tenure guaranteed to those

whose appointments are governed by statute is not available to

a person who is under an ordinary contract of employer and

employee and who has no right to sue for unfair dismissal or

constructive dismissal.

The right to sue for unfair dismissal is made statutory by

those countries which have given recognition to the existence

of such right. This right was provided for in the Industrial

Relations Act 1971 in Britain and is now contained in the

Employment Protection Act 1978 as amended by the Employment

Rights Act 1996 of England. This right is based on the

41

International Labour Organization Recommendation 119 now

embodied in the ILO Convention 158. This Convention provides

that “the employment of a worker shall not be terminated

unless there is a valid reason for such termination connected

with the capacity or conduct of the worker or based on the

operational requirements of the undertaking, establishment or

service”.

It should be noted that the Convention75 provides that union

membership shall not be a valid reason for the termination of

employment. This provision is reflected in Section 9 (6) of the Labour

Act76 which provides that no contract shall (a) make it a

condition of employment that a worker shall or shall not join

a trade union or shall or shall not relinquish membership of a

trade union, or (b) cause the dismissal of or otherwise

prejudice a worker.

75 International Labour Organization Convention 158. Article 2.76 Cap L1 L.F.N 2004.

42

However, Section 11 of the same Act creates room for the

circumvention of the above subsection (a)77 by notice for some

other reasons unconnected with union membership even though

the real reason for the termination is union membership. We

hope that for clarity and precision, our Labour Laws should be

elaborate on job security both where the employment is

protected statutorily and otherwise.

2.3 HEALTH AND SAFETY AT WORK.

It is customary to locate industrial or agricultural

establishments in towns and cities within reach of medical

teams. But with the present drive to open up the rural areas

for industrial and agricultural development, it becomes

imperative that due attention be given to the enforcement of

the statutory protection of workers in such undertaking78.

77 Section 9 (6) Labour Act, Cap F1 Law of the Federation of Nigeria, 2004.78 Emiola Akintunde, Nigerian Labour Law. (Ogbomosho: Emiola Publishers Ltd., 2000) p. 86.

43

Sections 65 and 66 of the Labour Act79 make general provisions for

securing and maintaining the health of workers in rural

industries. Section 65 for example empowers the minister to make

orders declaring as “labour health area” any undertaking which

is located in isolated or remote areas where health conditions

and facilities, water supplies and communications are either

non-existent or inadequate. Where an area is so declared, the

employer must provide such facilities and make such

arrangements as may be specified by the regulations made under

Section 66.

Among the matter with respect to which the minister may make

regulations are the provisions of housing, accommodation,

sanitary convenience for the workers and the members or

classes of persons who may reside in a house. The minister is

given power to impose sanctions for breach of his orders.

There are few reported cases relating to breach of labour

79 Cap L1 LFN 2004.

44

health regulations. One case decided under the repealed Labour

Act is Tsayo Mines Ltd v. Commissioner of Labour80. In that case, the

company began the building of a camp labour health area in

which to house their workers employed on a mining lease. Some

of the miners moved with their families into the house

apparently to protect their employer’s property from theft at

night. This was not because they had to live in the mining

area- for their homes were near enough to enable them to

return there after work. The company was charged with breach

of Regulations 10 (c) and 14(1) of the Labour Health Areas Regulations. Regulation

10 (c) provided for the segregation of the sexes and Regulation 14

(1) for the maintenance of a register of workers accommodated in

the camp. A Jos magistrate found the company guilty of the

offence but the High Court reversed that decision. The

appellate court took the view that, having regard to the

proximity of the worker’s homes, the employers where under a

80 (1959) NRNLR 22.

45

duty to provide a labour health area. It stressed, however

that the camp was a labour health area within Regulation 3

because it was being used as housing accommodation for the

workers.

It must be emphasized that the two main legislations aimed at

ensuring the health, safety and welfare of a workman and

providing compensation in cases of injury in the course of

employment are Factories Act and the Employee’s Compensation

Act. Although there is no Consolidating Health and Safety at Work Act in

Nigeria81 the two principal protective statutes in Nigeria, the

Factories Act and the Employee’s Compensation Act came into

force on the 11th June 1989 and 17th of December 2010

respectively which replaced the Workmen’s Compensation Act

that became moribund. It is a great improvement of Workmen’s

Compensation Act. Also, unlike in England whose various

statutes designed to provide for the safety and security of

81 Such as the Health and Safety at Work Act of U.K. 1974.

46

the workmen can be regarded as a practical demonstration of

the concern of the state safety of its working class, there is

no equivalent consolidating safety legislation for different

categories of workers in Nigeria82. Nonetheless, measures for

protecting workers could be found in the provisions of some

subsidiary legislation such as the Lagos Local Government Byelaws83

(which offer limited protection to those within Lagos State

engaged in the building industry).

It is worthy to note that some of the duties imposed on the

employer by statute may be non-delegable and the fact that the

employer has delegated such duties does not exculpate him from

subsequent liability for injury. In Wilson & Clyde Coal Co. v. English84,

an employee was injures when walking along an underground

haulage road at the end of the day’s shift and was struck by

82 Oladosu Ogunniyi, Nigerian Labour and Employment Law in Perspective (Ikeja: Folio Publishers Ltd., 2004) p. 118.83 See Lagos L.G. by laws Part II Cap. 93 (subsidiary legislation) vol. iv of the Laws of Nigeria 1958. 84 (1938) AC 57; (1937) 3 All ER 628.

47

moving haulage plant. The employee claimed that the employer

was negligent in allowing the plant to be in motion at a time

when workers where coming to the surface after the day’s

shift. The employers argued that they were entitled to

delegate this duty to their manager and that since they had

done so, they were not liable. The House of Lords disagreed

and held that the employers were under a personal, non-

delegable duty to take care for the safety of their workmen

and, in particular, in respect of the place of work, plant,

system of work and fellow employees. And to that effect, the

employer is obligated to his worker under the common law duty

of care as enunciated in the above named case.

2.4 SEX DISCRIMINATION

Sex discrimination has long been endemic in employment, yet

discrimination legislation is of relatively recent origin85. To

85 Steven D. Anderman, Labour Law: Management Decisions and Workers’ Rights. (London: Butterworths & Co. Publishers., 1992) p. 183.

48

suppose that legislation by itself can end discrimination at

work is a triumph of hope over experience. The reality is that

there are limits to the extent to which legislation as such

can alter the structural features of working life. The real

potential of labour law is more limited, that is to eliminate

the more blatant acts of discrimination at work. Any more

radical change is dependent upon a basic change in social

attitudes towards women’s roles in the home and in the labour

market. Nevertheless, it is possible for legislators to make a

more or less robust view of the use of legislation to produce

social change.

In engaging in this study, we observed that most of the

jurisdictions do not make pronouncements on discrimination.

However, United Kingdom seems to be more realistic about

legislation against discrimination in employment. In Shields v.

Coomes (Holdings) Ltd86, the Court of Appeal stated that ‘the Equal

86 [1978] ICR 1159; [1978] IRLR 263, CA.

49

Pay Act and the Sex Discrimination Act formed two

complementary parts of a single comprehensive code directed

against sex discrimination’.

Under the Sex Discrimination Act of UK, discrimination may take either

a direct or indirect form. Direct discrimination consists of

treating another individual less favourably on grounds of sex,

and the main issue presented is whether the less favourable

treatment has been caused by reasons of sex as opposed to some

other, sex neutral business reasons. Indirect discrimination

is a more complex prohibition consisting of treatment in the

form of a requirement or condition which appears to be applied

neutrally to both sexes but in fact has the result that a

considerably smaller proportion of persons can comply with it.

In such a case the central issue is whether the employer can

justify such discrimination.

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There is still subtle discrimination against women although

many who do so will not readily admit it or may have been

doing so unconsciously. There is a need for legislation

against sex discrimination similar to the U.K. Sex Discrimination Act,

1975. With many Nigerian women holding their own offices in

all spheres of human endeavour and with the growing level of

education among women there is a need to bring forth a law

which will reduce the level of discrimination in employment

and pay and stem the tide of prejudice normally held against

women in the society.

As a matter of fact the International Labour Organization

regards the elimination of discrimination in respect of

employment and occupation as a fundamental principle which all

member states are obliged to respect.

Section 42 of the 1999 Constitution of the Federal Republic of Nigeria even

provides extensively as follows:

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(1) A citizen of Nigeria of a particular community,ethnic group, place of origin, sex, religion orpolitical opinion shall not by reason only that heis such a person:-(a) Be subjected either expressly by, or in

the practical application of, any law in forcein Nigeria or any executive or administrativeaction of government, to disabilities orrestrictions to which citizens of Nigeria ofother communities, ethnic groups, places oforigin, sex, religion or political opinions aremade subject; or

(b) Be accorded either expressly by, or in thepractical application of, any law in force inNigeria or any such executive or administrativeaction, any privilege or advantage that isaccorded to citizens of Nigeria of othercommunities, ethnic groups, and place ofOrigin, sex, religion or political opinions.

(2) No citizen of Nigeria shall be subjected to anydisability or deprivation merely by reason of hisbirth.

(3) Nothing in subsection (1) of this section shallinvalidate any law by reason only that the lawimposes restrictions with respect to theappointment of any person to any office under theState or as a member of the armed forces of theFederation or member of the Nigerian Police Force

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or to an office in the service of a bodycorporate, established directly by any law inforce in Nigeria.

Although Nigeria has ratified the ILO Equal Remuneration Convention,

1951 and the Discrimination (Employment and Occupation) Convention 1958,

one can state without equivocation that the state of

protection against discrimination in Nigeria is weak.

2.5 THE NEED FOR A VIRILE TRADE UNION.

By Section 1(1) of the Trade Unions Act87, a ‘trade union’ means any

combination of workers or employers, whether temporary or

permanent, the purpose of which is to regulate the terms and

conditions of employment of workers, whether the combination

in question would or would not, apart from this Act, be an

unlawful combination by reason of any of its purposes ‘being

in restraint of trade’ and whether its purpose do or do not

include the provision of benefits for its members.

87 Cap. T14 L.F.N. 2004.

53

Every trade union no doubt has several purposes. But there is

a principal purpose which is the regulation of the terms and

conditions of workers. This principal purpose is the essence

of trade unionism88. The law is not against a trade union

having other lawful purposes, but it is certainly against a

trade union not having the principal purpose89.

A trade union exists to protect the right of each one of its

members to earn his living and to take advantage of all that

goes with it. It is the very purpose of its being. If the

union should assume to make a rule which destroys that right

or puts it in jeopardy… then the union exceeds its powers90.

The import of this is that a closed shop where it exists

should not be used as a sword to deprive a person his means of

livelihood, but as a shield to protect his right to earn a

88 G.O.S. Amadi, A Legal Guide to Trade Unions (Nsukka: Afro-Orbis Publications Ltd., 1999) p. 11.89 See Re Union of Ifelodu Timber Dealers and Allied Workmen (1964) 2 All NLR 63. 90 See Edwards v. Society of Graphical and Allied Trades (1971) Ch. 354.

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living91. In other words, a union should use a closed shop to

protect its members only when its powers to do so are not

“exercised arbitrarily or capriciously or with unfair

discrimination”92. For instance, a closed shop based on unfair

discrimination as in Nagle v. Fielden93, where a woman was denied a

race horse trainer’s licence simply because she was a woman,

was deprecated by the court.

The attitude of the courts with regard to the status of a

trade union can be seen from the decisions of the English

Court of Appeal94 and that of Nigeria95. In Union Bank of Nigeria &

Ors v. E.E. Edet96, Uwaifo JCA (as he then was) stated:

It is a collective agreement between employersand employees in their capacities as bodies ofcertain institutions. Such collectiveagreements are not intended or capable to giveindividual employees a right to litigate over

91 Amadi. Op cit. p. 17.92 Ibid.93 [1966] 2 QB 633; [1966] 1 All E.R. 689.94 Holland v. London Society of Compositors (1924) 40 TLR 440. 95 Union Bank of Nigeria & Ors v. E.E. Edet (1993) 4 NWLR (pt 287) 288. 96 (1993) 4 NWLR (pt 287) 288.

55

alleged breach of their terms as may not beconceived by them to have affected theirinterest nor are they meant to supplant or evensupplement their contract of service… noindividual employee can claim to be a party tothat agreement. In other words, no privity ofcontract arises between an individual employeeand his employer by virtue o that agreement.

It is humbly submitted in this work that by virtue of the

powers of persuasion possessed by trade unions, the state of

worker’s rights97 should be of paramount importance and be

fought for. It is also noted that the right of every Nigerian

to form and belong to a trade union is taken for granted and

the proliferation of unions in the country is evidence of the

extent to which this right is exercised. Apart from the

provisions of the Constitution98 which expressly guarantees to

the citizens the right to ‘association with other persons, and

in particular to form or to belong to trade unions’, Section 12(2)

of the Trade Unions Act99 makes it a criminal offence for anyone to

97 Especially, the right to work and the right to earn living wages.98 Section 40 of the 1999 Constitution of Nigeria.99 Cap. T14 Laws of the Federation of Nigeria, 2004.

56

refuse “a person who is otherwise eligible for membership of a

union” on any discriminatory grounds. In Bashorun v. Industrial

Arbitration Tribunal100, the High Court of Lagos decided that an

award of the tribunal that a certain category of staff of the

Central Bank of Nigeria “may not join a trade union of any of

the junior staff or participate… in the activities of such a

union” was a violation of Section 26101 of the Nigerian Constitution, 1963.

2.6 RIGHT TO WORK AS ENSHRINED IN OUR LAWS.

There is generally no compulsion on the part of the employer

to provide work so long as the wages are paid. But Section 17 (1)

of the Labour Act102 provides that:

100 (1971) LD/105/71 decided on 22nd March, 1971.101 Now Section 40 of the 1999 Constitution of Nigeria.102 Cap. L1 L.F.N. 2004.

57

Except where a collective agreement providesotherwise, every employer shall unless a workerhas broken his contract, provide work suitableto the worker’s capacity on every day (exceptrest days and public holidays) on which theworker presents himself and is fit for work;and if the employer fails to provide work asaforesaid he shall pay to the worker in respectof each day on which he has so failed wages atthe same rate as would be payable if the workerhad performed a day’s work.

Asquith J. in Collier v. Sunday Referee Publishing Co. Ltd103, observed

“provided I pay my cook her wages regularly, she cannot

complain if I choose to take any or all my meals out”.

However, two circumstances exist in which a duty to provide

work would lead to the loss of “fringe benefits” such as

publicity, a court may hold that the master is under an

obligation to provide job if that can be gathered from the

terms of the contract. This factor was taken into serious

consideration in the case of Clayton (Herbert) & Jack Waller Ltd v.

103 (1940) 2 K.B. 647; (1940) 4 All E.R. 234. This pronouncement of Justice Asquith can no longer stand and it is subject to considerable qualifications in modern times.

58

Oliver104 where an American actor was held entitled not only to

the amount of remuneration due on the contract but also for

damages for loss of the publicity that normally went with the

leading part. Even in the case of Yetton v. Eastwood Froy Ltd105, where

the plaintiff, who was appointed joint managing director and

was later offered the post of assistant managing director, was

held entitled to damages for defendant’s failure to provide

the work contracted for.

Secondly, if the worker’s wages depend on the provision of

work, for instance, payment on commission or by “piece”, the

court may again find that the failure to provide adequate or

any work constitutes a breach of contract entitling the worker

to repudiate the contract and to damages106. Again under Section

20 of the Labour Act107, an employee put on “lay-off” or “short time”

104 (1930) A.C. 209; (1930) All E.R. Rep 414.105 (1966) 3 All E.R. 353; (1967) 1 W.L.R. 104.106See R. v. Welch (1853) 2 E & E 357; See also Turner v. Goldsmith (1891) 1 QB 544.107Cap. L1 L.F.N. 2004. Similar to Section 6 (2) of the U.K Redundancy Payment Act 1965. See Obaleye v. Dunlop Nigeria Industries Ltd (1975) 5 ECSLR 445.

59

working for a certain period of time is entitled to redundancy

payment.

In special cases, it may be considered to be understood that

the part of the consideration is the opportunity to gain

publicity or experience as was the case in Langston v. Allen108. In

that case, an employee was suspended on full pay as a result

of a dispute over his non-membership of a trade union. The

Court of Appeal in England held that this suspension was a

breach of his contract of employment. Lord Denning M.R. said:

We have repeatedly said in this court that aman has a right to work which the courts willprotect; See Nagle v. Fielden and Hill v. C.A. Pearson andCo. Ltd. I would not wish to express any decidedview, but simply to state the argument whichcould be put forward for Mr. Langston. In thesedays, an employer, when employing a skilledman, is bound to provide him with work. Bywhich I mean that a man should be given theopportunity of doing his work when it isavailable and he is ready and willing to do it.A skilled man takes pride in his work. He doesnot do it merely to earn money. He does it so

108 (1974) 1 All ER. 980.

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as to keep himself busy and not idle, tax hiswill, and to prove it. To have the satisfactionthis comes from a task well done. To my mind,therefore, it is arguable that in these days aman has by reason of an implication in thecontract, a right to work.

In Coleman S & W. Baldwin and Pedersen v. London Borough of Camdem109, it

was stated that it may be a breach of contract to deprive an

employee of a substantial portion of his job. These decisions

seem to depend largely on the view that employees do not work

for wages alone but also for satisfaction derived from a

particular job and appear to be a radical departure from the

common law principle expressed in Sunday Referee’s case supra.

Although Section 17 of the Labour Act imposes the duty to provide

work, no machineries for enforcing this duty appears to be

evident as is the case in countries with advanced labour

relations practice where failure to provide such work110 can

lead to an action for constructive dismissal even though no

109 (1977) IRLR 342.110 To provide even suitable work, having regard to the employee’s skill andtraining.

61

actual dismissal has taken place. This is an area of the law

where action for unfair dismissal as opposed to wrongful

dismissal would seem appropriate in the circumstance,

unfortunately our law still does not provide a remedy for

unfair dismissal111.

In view of the clear provisions of Section 17 (1) of the Labour Act112

and recent foreign case, we hope that Nigerian Courts shallalign to the argument in favour of enforcing this duty in caseof its breach by providing reliefs to the affected employee.As part of the development of our labour laws, we also hopethat the courts would be willing to uphold the duty to providework especially as it concerns skilled workmen, contractsinvolving payment of commission etc113.

111 Oladosu O., Nigerian Labour and Employment Law in Perspective (Ikeja: Folio Publishers Ltd., 2004) p. 75. 112 Cap. L1 Laws of the Federation of Nigeria, 2004.113 See Herbert Clayton and Jack Waller Ltd v. Oliver (1930) AC 209.