Case: Mr. Chikwudi Okpowhor v. Nigerian Institute of Medical Research[1]

Judge: Justice M. E. Esowe

Date: 03/10/2024-

Main Issues of Law

Confirmation of Employment of an Employee on Probation
Termination of Employment of an Employee on Probation
Conditions for Reinstatement
Summary of Facts

The Claimant was appointed on September 2, 2013, for a two-year probationary period, subject to confirmation. His appointment was terminated on May 23, 2016, with one month’s salary in lieu of notice, in line with the terms of employment for staff still under probation, which require either one month’s notice or salary in lieu. The Claimant initiated this action, claiming, among other things, that the termination was wrongful because it was carried out by the Director-General instead of the Council, as required by Public Service Rules. He further argued that his employment should have been deemed confirmed after two years.

The Defendant contended that the termination was valid since the Claimant was still under probation. It explained that although the termination letter did not specify the reason, the Claimant was aware that his performance was unsatisfactory, which justified the termination. The Defendant also argued that the Claimant could not rely on implied confirmation, given that his poor performance during the probationary period was documented.

Court’s Decision

The Court ruled that the Claimant was still on probation, as he had applied for confirmation, and the process was ongoing when his appointment was terminated. The Court held that the Defendant followed the appropriate termination procedures outlined in Chapter 7 of the Pubic Service Rules and the appointment letter.

Regarding performance, the Court found that the Defendant had sufficiently established its dissatisfaction with the Claimant’s performance, justifying the termination. The Court concluded that it would be inappropriate to compel the Defendant to retain the Claimant under such circumstances.

Legal Principles Relied On

Confirmation of Employment of an Employee on Probation

According to Rule 020303 of the Public Service Rules (2008), an officer on probation must pass the prescribed examination, if any, and complete the probation period to the satisfaction of the appointing authority. An employee who applies for confirmation acknowledges the possibility of either approval or denial of the application.
Termination of Employment of an Employee on Probation

The purpose of placing an employee on probation is to give the employer time to assess the employee’s suitability for permanent appointment. During this observation period, if the conditions for termination are satisfied, the employee cannot reasonably challenge the termination.

Conditions for Reinstatement

An employee may be reinstated if the Court finds that the employment has statutory flavor, meaning the employee does not serve at the pleasure of the employer, and the termination was unlawful. In such cases, the termination is considered null and void, entitling the employee to reinstatement. An order for reinstatement can only be made if the termination is deemed wrongful, unlawful, or void.

Commentary

This decision primarily revolves around whether the Claimant’s employment was confirmed. The Court’s view warrants further reflection, particularly considering established judicial precedents. The Court concluded that the Claimant, having applied for confirmation, could not reasonably assume that his appointment was confirmed merely because he had completed more than two years of service.

This interpretation seems to overlook a well-established legal principle: when an employer allows an employee to continue working beyond the probationary period without express confirmation, the employment is deemed implicitly confirmed[2]. Overwhelming judicial precedent, appellate and NICN, supports this view, especially given the Court’s increasing focus on ensuring fairness in labor relations. Allowing an employee to remain in service beyond the probation period without confirmation denies the employee the benefits of formal confirmation while enabling the employer to benefit from the employee’s labor. Under such circumstances, the employee is justified in expecting confirmation. This decision may inadvertently encourage employers to withhold the benefits of confirmation from employees on probation. There seems to be no legal principle that should exempt statutory employment, as was the case here.

Another noteworthy issue is the reference to part of the opinion expressed by Ogunwumiju JSC in Skye Bank PLC v. Adegun, as follows:

“…It should also be stated that an employer is not obliged to give any reason for firing an employee, but once the employer gives a reason for terminating or dismissing an employee, the burden lies with him (not on the employee) to justify the said reason. In Institute of Health ABU Hospital Management Board v. Mrs. Jummai R. I. Anyip (2011) LPELR-1517 (SC), this Court held: ‘Although it is trite that an employer is not obliged to give any reason for firing his servant, it is settled law that where a reason is provided, the employer is required to satisfactorily prove it. Failure to do so may render the termination or dismissal wrongful without more.’”

This reference highlights the ongoing confusion in Nigeria’s labor jurisprudence regarding whether employers are required to provide reasons for termination. In Adegun, Agim JSC, delivering the main judgment, concurred with the Court of Appeal’s decision to allow the Respondent’s appeal on damages without qualification. However, Justice Ogunwumiju, in what is stated to be addition of a few wors on quantum of damages but clearly a dissenting one in many respects, allowed the appeal in part and introduced a nuanced view, suggesting that evolving jurisprudence no longer supports termination without reason.

The quoted portion reflects Ogunwumiju JSC’s initial stance, but later in his judgment, he aligned with the emerging jurisprudence of the National Industrial Court of Nigeria (NICN), which promotes international best practices by requiring employers to provide reasons for termination. While the decision under review did not ultimately hinge on this quotation, the Court’s implied adoption of it may mislead the unwary and raises the question: which part of the Adegun case was the Court referencing or relying upon?

Although some commentators have praised Justice Ogunwumiju’s endorsement of the NICN’s approach, a thorough review of Adegun reveals that his was an unsolicited minority opinion, introducing further complexities and uncertainties into labor jurisprudence. It is important to note that Adegun was initiated in 2006, prior to the Third Alteration to the Constitution, and the issue of applying international best practices was not raised for determination. Indeed, the question of whether employers must provide reasons for termination was not a point of contention in the case. Therefore, the decision cannot serve as binding authority for either the traditional common law position that permits termination without reason or the NICN’s evolving stance requiring employers to justify terminations.

Most appellate decisions still align with the common law approach[3], though many of these cases predate the Third Alteration and have not yet addressed the NICN’s evolving jurisprudence in light of its new powers to promote fairness and apply international best practices. However in the light of the current trend at the NICN, employers should ensure reasons are given for termination.

Elvis E. Asia is the Managing Partner of Law Future Partners and a PartneratBols Attorneys, Nigeria. He has an LLB, Ambrose Alli University; and LLM from the University of Lagos. He is a member of the Chartered Institute of Arbitrators, United Kingdom, Institute of Chartered Secretaries and Administrators of Nigeria and the Chartered Institute of Taxation of Nigeria. Elvis is the author of the book ‘Oil and Gas Insurance and Nigeria’s Local Content Policy’

Footnotes

[1] SUIT NO. NICN/LA/514/2016. Available online at https://nicnadr.gov.ng/judgement/judgement.php?id=9338

[2] See The Council Federal Polytechnic Ede & 7 Ors. V. Olowookere [2012] LPELR-7935 (CA) and Obafemi Awolowo University v. Dr. A. K. Onabanjo (1991) 5 NWLR (Pt. 193) Pg. 549 @ 569 para G-H 35 & pg. 570 para D – E, TAYLEK DRUGS CO. LTD v. ONANKPA (2018) LPELR-45882(CA), AU V Onabanjo (1991) 5 NWLR (Pt. 193) 549; & Ude V Osuji (1988) 13 NWLR (Pt. 580) 1.

[3] See the rent decision of the Supreme Court in DANGOTE CEMENT PLC. v. AGER & ANOR (2024) LPELR-61800(SC)