Employment Law Snippets from the Court of Appeal’s Decision in ETC Agro Co. Nig. Ltd. v. Abiodun (2024) 11 NWLR (Pt. 1948) 121

In the recently reported case of ETC Agro Co. Nig. Ltd. v. Abiodun (supra), the Court of Appeal delivered an important decision as it relates to the statutory duty of employers to give employment letters to their workers. In this case, the Appellant orally employed the Respondent as a logistics and export documentation officer. Whilst in the employment of the Appellant, the Respondent’s employment letter was not given to him despite demands for it. The Respondent contended that the Appellant was in the habit of turning workers into casual staff and after some time, lay them off without any benefit. No sooner had the Respondent discovered the antics of the Appellant than he demanded for his letter of appointment and means of identification. But rather than being issued with these documents, he was sacked. The Respondent therefore commenced an action against the Appellant and sought damages for the wrongful termination of his employment.

At the trial court, the Appellant raised a preliminary issue on locus standi, on the ground that the Respondent did not possess any letter of employment connecting him with the Appellant. In its well-considered judgment delivered on the 4th day of October 2016, the National Industrial Court (Coram: O. A. Obaseki-Osaghae, J) held that the Respondent had locus standi to institute the action and gave judgment in favour of the Respondent.

The Appellant was dissatisfied with the decision of the trial Court and appealed to the Court of Appeal (COA) where it argued inter alia that the Respondent was not able to discharge the burden of proving the existence of an employer-employee relationship with the Appellant. The COA unanimously affirmed the decision of the trial Court and dismissed the appeal. The decision of the COA was based on the provisions of Section 7 (1) (a)-(e) of the Labour Act as follows:

"Not later than three months after the beginning of a worker’s period of employment with an employer, the employer shall give to the worker a written statement specifying -

a.????? the name of the employer or group of employers, and where appropriate, of the undertaking by which the worker is employed;

b.????? the name and address of the worker and the place and date of his engagement;

c.?????? the nature of employment;

d.????? If the contract is for a fixed term, the date when the contract expires;

e.?????? the appropriate period of notice to be given by the party wishing to terminate the contract, due regard being had to section 11 of this Act."

Some of the major snippets from the COA’s decision are highlighted below:

1.????? Every worker is entitled to be given an employment letter by the employer not later than three months after the beginning of employment. According to the COA, “The provision (section 7 of the Labour Act) used the word “worker”, and phrase, such as: “written statement specifying” and “the nature of the employment”; that is to say that no class of worker is excluded from the written statement.” (see pg. 140). The Court underscored that the provision applies to all workers irrespective of the type of employment.

2.????? The employment letter must disclose the nature of the employment. According to the COA, “the compulsory part also is that the statement must specify the nature of the employment whether it is contract of service or contract for service dealing with an independent contract.” (see pg.141). This point is important because there are many workers who may not know the nature of their employment - either they do not have an employment letter, or their employment letters are silent on the nature of their employment. In both cases, the worker deserves to be protected. In the case under review, the Court refused to accept the employer’s contention that the employee was employed as an independent contractor and not as an employee, as there was no written employment letter to support that claim.

3.????? It is an offense for an employer not to give an employment letter to its workers as required by law. The Court relying on its previous decision in Mobil Producing Nigeria Unlimited v. Udo (2008) 36 WRN 53 at 113-114, held that: “if an employer fails to comply with his obligation to give his employee a written statement of the specified terms of employment, i.e. where he contravenes section 7 of the Act, he shall be guilty of an offence.” (see pg. 141). The Court further held that “willful disobedience to the laws of this country on any issue should attract prosecution and consequential punishment.” (see pg. 145).

4.????? An employer who fails to give its employee a written statement of the specified terms of employment relieves the employee/claimant of the burden of establishing the existence of an employer-employee relationship. This decision is important because the general rule is that the burden of proof of establishing the terms of the contract of employment lies with the employee/claimant. But sometimes this general rule works hardship for employees who do not have a letter of employment. Although, in Mr Ebiwei Lawson Vs Darlon Oil & Gas (Nig) Limited (Suit No: NICN/YEN/16/2022, the judgment of which was delivered on Friday 8th March 2024), the NIC created an exception to the general rule by holding that the employee’s burden of proving an employer-employee relationship will be discharged if the employer admits the existence of the employment relationship, this exception merely leaves the worker at the mercy of the employer. For instance, in George Mangi v Chevron Nig. Ltd & Anor (Suit No: NICN/YEN/10/2018, the judgment of which was delivered on Friday 17th May 2024), the Claimant worked for the 1st Defendant but there was no letter of employment and the Defendants refused to admit that they had any employer-employee relationship with the Claimant. The NIC held that the failure of the Claimant to tender the letter of employment to prove that he was employed by the 1st Defendant was fatal to his case. Happily, this situation seems to have been addressed by the COA in ETC Agro Co. Nig. Ltd. v. Abiodun (supra) as the Court laid down another exception to the general law by holding that the purpose of section 7 of the Labour Act is “to avoid the evidential burden that would normally fall on the worker” and that an employer who fails to issue the employee with a letter of employment embodying the terms and conditions of his employment is “estopped from relying on the failure of the worker to tender in evidence the said terms and conditions of his employment.” (see pages 141-142). This commendable approach prevents defaulting employers from benefiting from their own wrong.

5.????? Finally, it is an ‘unfair labour practice’ for an employer to withhold the employee’s employment letter.? The COA agreed with the trial Court that it is an unfair labour practice for the Appellant/Employer to deliberately withhold the terms of the employment contract from the Respondent/Employee. (see pg. 144). The Court’s affirmation of the trial court’s decision on this point is in line with section 254C (1) (f) of the 1999 Constitution (as amended) as regards the NIC’s jurisdiction to curb unfair labour practices and promote international best labour practice.

Conclusion

The Court of Appeal, as the only court with exclusive jurisdiction to hear and determine all appeals arising from the decisions of the National Industrial Court, occupies a prominent position in the shaping of the Nigerian labour jurisprudence. The decision of the Court in ETC Agro Co. Nig. Ltd. v. Abiodun (supra) addresses the worrisome trend of some employers turning workers into casual staff by withholding their employment letters in order to easily lay them off without any benefit. The Court held that no employer has a right to employ a worker in whatever guise without terms of reference or to breach labour rights or choose part of the labour law to obey.

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