Referencias
Trade Dispute Act, 1976
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Labour Act [LA] of 1974 as amended, Chapter 198 Laws of the Federation of Nigeria 1990
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Arbitration and Conciliation Act,2023
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National Industrial Court Act, 2006
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Ámbito de aplicación
Tamaño de las empresas excluidas (≤): ninguna
The Labour Act does not exclude any size of enterprise.
Categorías de trabajadores excluidas: miembros de la familia del empleador, personal de vuelo, funcionarios publicos, policía, ejército, directores/ gerentes, gente de mar, otros
The LA only applies to a 'worker', which is defined as any person who has entered into a contract (of service) with an employer, whether the contract is for manual or clerical work, or is express or implied, or oral or written (Section 91(1) LA). The LA definition also excludes:
▻ any person not employed for the purposes of the employer's business;
▻ persons exercising administrative, executive, technical or professional functions;
▻ members of the employer's family (excluded from Part I of the LA under Section 22 of the LA);
▻ representatives, agents and commercial travellers, to the extent their work is carried out outside the employer's permanent workplace;
▻ any person to whom articles or materials are given out to be made up, cleaned, washed, altered, ornamented, finished, repaired or adapted for sale in his own home or on other premises not under the control or management of the person who gave out the articles or the material; or
▻ any person employed in a vessel or aircraft to which the laws regulating merchant shipping or civil aviation apply.
In addition, members of the armed forces and police are excluded from the LA (sec. 89(2)).
Contratos colectivos :
Collective agreements regulating redundancy exist in some economic sectors.
CDD regulados: No
▻ Employment contracts are governed by the contract law (common law). That means that, according to the principle of freedom of contract, the conditions and terms of the contract depend on the will of the parties.
▻ The LA only provides that the date of expiry of the fixed-term contract must be specified, and other things in the written contract of employment, which shall be given to the employee no later than three months after the beginning of employment (sec. 7(1)d) LA).
▻ In addition, the common law position that contracts for a fixed term or fixed amount of work expire according to their terms is codified in Section 9(7)(a) of the LA. There are no further statutory regulations of fixed-term contracts.
Razones de utilización legítima de CDD: sin restricción
Not specified in the LA.
Número máximo de CDD consecutivos: sin restricción
No statutory regulations providing for limitations on the number of renewals.
Duración máxima acumulativa de CDD consecutivos: sin limitación
No statutory regulations providing for a maximum duration of successive FTCs.
Duración maxima del periodo de prueba (en meses):
sin restricción▻ There is no maximum statutory probationary period. However, the LA requires the employer to give his/her employees a written statement specifying the term of employment within 3 months from the beginning of a worker's period of employment (Section 7(1) LA).
▻ Note that since the LA does not exclude probationary employees from its ambit, the statutory notice periods (see below) also apply to probationary employees.
Obligación de motivar el despido: No
No statutory obligation to inform the worker of the grounds of termination.
Motivos autorizados (despido justificado):
Motivos prohibidos: embarazo, licencia de maternidad, afiliación sindical y actividades sindicales
→ Section 9 (6) b) LA prohibits the dismissal of a worker
"(i) by reason of trade union membership, or
(ii) because of trade union activities outside working hours or, with the consent of the employer, within working hours, or
(iii) by reason of the fact that he has lost or been deprived of membership of a trade union or has refused or been unable to become, or for any other reason is not, a member of a trade union."
→ Section 54(4) LA prohibits the employer from giving a notice of dismissal to a woman during her maternity leave (6 weeks before the delivery of the child and 6 weeks after). This prohibition also applies to a woman who is absent from her work for a longer period as a result of illness certified by a registered medical practitioner to arise out of her pregnancy or confinement and to render her unfit for work.
Trabajadores que gozan de una protección particular (fuero): mujeres embarazadas o con licencia de maternidad
→ Section 54(4) LA prohibits the employer from giving a notice of dismissal to a woman during her maternity leave (6 weeks before the delivery of the child and 6 weeks after). This prohibition also applies to a woman who is absent from her work for a longer period as a result of illness certified by a registered medical practitioner to arise out of her pregnancy or confinement and to render her unfit for work.
Forma de la notificación del despido al trabajador: escrita
→ Section 11 (1) LA: Either party to a contract of employment may terminate the contract on the expiration of notice given by him to the other party of his intention to do so.
→ Section 11(3) LA: Any notice for a period of one week or more shall be in writing.
Plazo de preaviso:
→ Section 11(2) LA sets out statutory minimum notice periods as follows:
▻ for less than three months of service, one day;
▻ for three months to two years of service, one week;
▻ for two to five years of service, two weeks; and
▻ for more than five years of service, one month.
The above periods are statutory minimums, which can be improved upon by collective agreements or employment contracts.
Indemnización sustitutiva de preaviso: Si
→ Section 11(6) LA provides for payment in lieu of notice.
→ Section 11(9) further provides that: “In the calculation of a payment in lieu of notice, only that part of the wages which a worker receives in money, exclusive of overtime and other allowances, shall be taken into account.”
Notificación a la administración: No
Not specified in the LA.
Notificación a los representantes de los trabajadores: Si
Section 20 (1)(a) LA indicates that: In the event of redundancy, the employer shall inform the trade union or workers' representative concerned of the reasons for and the extent of the anticipated redundancy.
Aprobación de la administración publica o de organismos judiciales: No
Not specified in the LA.
Acuerdo de los representantes de los trabajadores: No
Not specified in the LA.
Definición de despido colectivo (número de empleados afectados)
No statutory definition of collective dismissal (no number specified)
Section 20(3) LA only defines redundancy as "involuntary and permanent loss of employment caused by an excess of manpower".
Section 20(3) LA indicates that: In this section, "redundancy" means an involuntary and permanent loss of employment caused by
an excess of manpower.
Notificación a la administración No
No mandatory consultations with the trade union or workers' representatives in the event of redundancy. The employer is only required to inform them of the reasons for and the extent of the anticipated redundancy (Section 20(1)(a) LA).
Notificación a los sindicatos (representantes de los trabajadores) No
Not specified in the LA.
Notificación a los representantes de los trabajadores: Yes
Section 20(1)(a) LA: In the event of redundancy, the employer shall inform the trade union or workers' representative concerned of the reasons for and the extent of the anticipated redundancy.
Acuerdo de los sindicatos (representantes de los trabajadores) No
Not specified in the LA.
Acuerdo de los representantes de los trabajadores No
Not specified in the LA.
Reglas de prioridad para los despidos colectivos (consideraciones sociales, edad, años de servicio) Yes
Section 20(1)(b) LA: the principle of "last in, first out" shall be adopted in the discharge of the particular category of workers affected, subject to all factors of relative merit, including skill, ability and reliability.
Obligación del empleador de considerar solucionés alternativas al despido (transferencia, formación...) No
Not specified in the LA.
Reglas de prioridad para la re-contratación No
Not specified in the LA.
Severance pay:
No statutory severance pay.
tenure ≥ 6 meses: 0 mes(es).
tenure ≥ 9 meses: 0 mes(es).
tenure ≥ 1 año: 0 mes(es).
tenure ≥ 2 años: 0 mes(es).
tenure ≥ 4 años: 0 mes(es).
tenure ≥ 5 años: 0 mes(es).
tenure ≥ 10 años: 0 mes(es).
tenure ≥ 20 años: 0 mes(es).
Redundancy payment:
No statutory redundancy pay.
→ Section 20 LA provides that in the event of redundancy:
"(1)(c) the employer shall use his best endeavours to negotiate redundancy payments to any discharged workers who are not protected by regulations made under subsection (2) of this section;
(2) The Minister may make regulations providing, generally or in particular cases, for the compulsory payment of redundancy allowances on the termination of a worker's employment because of his redundancy".
It is unclear whether such regulations have been adopted so far.
- As a result, besides the duties imposed by Section 20 (1), where there is no collective bargaining agreement reached between any employees’ union and the employer, the courts often resort to the common law principles on redundancy.
- If there exists a collective bargaining agreement, or the company’s redundancy policy is engrafted in the employees’ individual contracts, there would be contractual expectations, and the employer will be duty-bound to meet those expectations. In practice, a worker is typically entitled to the following payments at the termination of employment in the event of a redundancy:
(a) agreed redundancy or severance payment
(b) salary in lieu of contractual notice (if applicable)
(c) accrued salary up until the effective termination date
(d) monetary value of any accrued but unutilized annual leave entitlement as at the effective termination date
(e) any accrued but unpaid incentives, awards or bonuses
Source: Nigeria: Employment and Labour Law, ICGL Online
tenure ≥ 6 meses: 0 mes(es).
tenure ≥ 9 meses: 0 mes(es).
tenure ≥ 1 año: 0 mes(es).
tenure ≥ 2 años: 0 mes(es).
tenure ≥ 4 años: 0 mes(es).
tenure ≥ 5 años: 0 mes(es).
tenure ≥ 10 años: 0 mes(es).
tenure ≥ 20 años: 0 mes(es).
There is no general statutory severance pay or redundancy pay, although there is a provision for the Minister of Labour to enact regulations providing for severance pay to redundant workers (pursuant to sec. 20(2) of the LA). It is unclear whether such regulations have been adopted by the Minister.
Severance pay is often regulated by the contract of employment and sectoral (branch) collective agreements. Severance pay is usually calculated depending on the length of service and the worker's last salary.
mineros: Si
→ Sections 82(b) & 84(1) of the LA establish the power of courts to order compensation for any wrong or damage sustained through the contravention of the Act or a contract of employment.
▻ Remedies for unlawful termination (breach of contract) or wrongful dismissal without notice are limited to damages for the equivalent amount the employee would have been entitled to, had the contract not been unlawfully terminated. Therefore, in the event of unlawful termination, the employee is entitled to compensation equivalent to what the employee would have earned during the notice period.
▻ In the event of wrongful dismissal without notice (for gross misconduct), the damages awarded correspond to the amount the worker would have earned if he or she had continued working under the employment contract until this contract was lawfully terminated.
Nigerian law excludes damages for injured feelings (following the English case of Addis v. Gramophone Co. [1908] AC 488).
▻ Therefore, in practice, compensation is limited to pay in lieu of notice. No additional damages.
Not specified in the LA.
Compensación por despido injustificado - límites legales (techo calculado en meses o método de calculo): Not specified in the LA.
directores/ gerentes: Si
Reinstatement is only available in limited circumstances (in particular, when the termination was based on the employee's trade union activities).
▷ See: Chioma Kanu Agomo, 'Part I. Individual Employment Relations' (August 2010), pp. 39-72, in Prof. Dr R. Blanpain, Prof. Dr M. Colucci (Eds.), International Encyclopaedia for Labour Law and Industrial Relations (Kluwer Law International BV, The Netherlands), pp. 62-63, paras. 158-159:
" The regular courts have consistently declined employee's request for reinstatement as appropriate remedy for wrongful termination (see Chukwuma v. Shell Petroleum Development Company of Nigeria Ltd (1993) 4 NWLR 512; Sule v. Nigerian Cotton Board (1985) 2 NWLR 17; New Nigeria Bank Ltd v. Oniovosa (1995) 7 NWLR 691)"
▻ This principle applies to the private sector, reinstatement is an available remedy for wrongful termination in the public sector.
▻ The National Industrial Court has recognized that reinstatement can be ordered in two cases: the first one being when the termination is the result of the trade union activities of the employees prohibited under sec. 9(2) LA, the second one being (in line with the ordinary courts' rulings) when an office or employment has a 'statutory flavour', which means that its conditions of service are provided for and protected by statute or regulations and any person holding that office or in that employment enjoys a special status. If the procedure laid down by the applicable statute for dismissing such a person is not complied with, then the dismissal will be null and void, and the person will be reinstated.
policía: No
▷ National Industrial Court Act 2006 (NICA)
Section 20 of NICA indicates: In any proceedings in the Court, the Court may promote reconciliation among the parties thereto and encourage and facilitate the amicable settlement thereof.
▷ Trade Dispute Act
Trade Dispute Act requires parties to exhaust voluntary negotiation and mediation efforts before a dispute is reported to the Minister for possible conciliation.
→ Section 4 of the Trade Dispute Act provides that:
(1) If there exists agreed means for settlement of the dispute apart from this Act, whether by virtue of the provisions of any agreement between organisations representing the interests of employers and organisation of workers or any other agreement, the parties to the dispute shall first attempt to settle it by that means.
(2) If the attempt to settle the dispute as provided in subsection (1) of this section fails, or if no such agreed means of settlement as are mentioned in that subsection exists, the parties shall within seven days of the failure (or, if no such means exists, within seven days of the date on which the dispute arises or is first apprehended) meet together by themselves or their representatives, under the presidency of a mediator mutually agreed upon and appointed by or on behalf of the parties, with a view to the amicable settlement of the dispute.
→ Section 6 of the Trade Dispute Act provides for the reporting of the a dispute if not amicably settled indicating that:
(1) If within seven days of the date on which a mediator is appointed in accordance with section 4 (2) of this Act the dispute is not settled, the dispute shall be reported to the Minister by or on behalf of either of the parties within three days of the end of the seven days.
→ Section 8 of the Trade Dispute Act stipulates that:
(1) The Minister may for the purposes of section 7 of this Act appoint a fit person to act as conciliator for the purpose of effecting a settlement of the dispute.
(2) The person appointed as conciliator under this section shall inquire into the causes and circumstances of the dispute and by negotiation with the parties endeavour to bring about a settlement.
Labour Act (LA)
→ Section 80 (1) LA: A magistrate's court (or, in a State where a magistrate's court has no civil jurisdiction, a district court) shall have jurisdiction to hear complaints under section 81 of this Act.
(2) Without prejudice to the jurisdiction to hear complaints conferred by subsection (1) of this section, the Chief Judge of a State, with the concurrence of the State Authority, may by order confer jurisdiction to hear such complaints on area courts or customary courts in the State or part of the State.
▷ National Industrial Court Act 2006 (NICA)
→ Section 7 (1) of the NICA provides that: The [National Industrial] Court shall have and exercise exclusive jurisdiction in civil causes and matters-
(a) relating to-
(i) labour, including trade unions and industrial relations; and
(i1) environment and conditions of work, health, safety and welfare of labour, and matters incidental thereto; and
(b) relating to the grant of any order to restrain any person or body from taking part in any strike, lock-out, or any industrial action, or any conduct in contemplation or in furtherance of a strike, lock-out or any industrial action;
(c) relating to the determination of any question as to the interpretation of-
(i) any collective agreement,
(il) any award made by an arbitral tribunal in respect of a labour dispute or an organisational dispute,
(iii) the terms of settlement of any labour dispute, organisational dispute, as may be recorded in any memorandum of settlement,
(iv) any trade union constitution, and
(v) any award or judgment of the Court.
Note: Until the adoption of the National Industrial Court Act (2006), individual employment claims (including wrongful terminations) were only handled by ordinary (magistrate’s) courts. However, the 2006 Act now confers jurisdiction to the National Industrial Court over individual employment disputes under Section 7.
Arbitraje: Si
Arbitration is available for labour disputes in Nigeria.
▷ Trade Disputes Act
→ Under Section 9 of the Trade Disputes Act, disputes can be referred to the Industrial Arbitration Panel (IAP) for arbitration after failed conciliation by the Minister of Labour and Employment.
The IAP's award is binding but can be appealed to the National Industrial Court of Nigeria (NICN).
→ Under Section 48 of the Trade Dispute Act, a "trade dispute" means "any dispute between employers and workers or between workers and workers, which is connected with the employment or non-employment, or the terms of employment and physical conditions of work of any person".
▻ Note: Only trade disputes can be referred to the Industrial Arbitration Panel. This institution does not generally deal with individual or rights disputes unless these disputes are part of a trade dispute.
▷ Parties may also opt for voluntary arbitration under collective agreements or the Arbitration and Conciliation Act, though statutory processes take precedence for disputes of a commercial nature.
Duración del procedimiento:
Not specified in the LA.
Not specified in the LA.