Challenges of Contract Employees Before and During Covid-19 in Nigeria

It is not a news to eardrums that there is increase in contract employees just like any other employees or workers being engaged for one particular work or the other by employers. It is also be attributed to the growth in population and economic situation of the country. Now that we have an unexpected pandemic called Corona Virus known as Covid-19, there have been hardship, increasing employment, depression, exploitation and other challenges posting a threat to the lives of Nigerian workers including contract worker or employee in Nigeria.

We cannot jettison how people are engaged in Nigeria for employment with the roles of consulting firms acting as agents in providing jobs for Nigerians. Hence, this is time to talk about the challenges or plights of contract employee which is not new to people who are conversant to their environments. We have read and seen different kinds of exploitation of contract workers who are not privileged to have good negotiations with their employers and sometimes have to accepted jobs where their salaries are being cut monthly by one consulting firm or contractor who engaged them for particular duties for certain duration. Contract employee had been seen exploited in security jobs, cleaning jobs, aviation job, factory jobs hotel jobs and so on.

By virtue of Section 91(1)(b) of the Labour Act, 2014, worker means any person who has entered into or works under a contract with an employer, whether the contract is for manual labour or clerical work or is expressed or implied or oral or written, and whether it is contract of service or contractor personally to execute any work or labour.

From a legal perspective, there are two broad categories of employees in Nigeria: ‘Workers’ who are defined under the Labour Act as those who are generally employees who perform manual labour or clerical work and those that can be referred to as Non-workers who are employees who perform administrative, executive, technical or professional functions. The Labour Act, which prescribes the minimum terms and conditions of employment, is limited in its scope as it applies only to Workers. The terms and conditions of employment of non workers are primarily subject to the terms of their respective contracts of employment.

Simply, a contract employee is member of staff engaged on a specific duties by their employer on certain terms and conditions which can be written and covers nature of work, duties of the employer and staff; salaries to be paid; duration of work; notice to be given for termination of employment; some clauses; etc. See the following cases on the age-long debate on the reasonability or, otherwise of ‘non-compete clauses’ in employment contracts again came to the fore in at least two important decisions of the NICN in 2018. In Infinity Tyres Limited v Sanjay Kumar (Unreported suit No: NICN/LA/170/2014 judgment delivered on October 7, 2018; per Kanyip J.), the ‘non-compete clause’ restricting the 1st defendant from joining ‘any other company in Nigeria for one year’ upon cessation of work employment with the claimant company was noted to be reasonable with regard to the geographic coverage and the one-year timeline of restraint. However, it was considered too wide and consequently unreasonable and unenforceable when the economic activity sought to be restricted was extended to cover “any other company in Nigeria”.

In 7th Heaven Bistro Limited v Amit Desphande (Unreported suit No: NICN/LA/396/2015, judgment delivered on September 27, 2018; per Peters J.) a similar issue arose. Here the court declared as ‘inhuman and stifling’, and consequently found to constitute an unfair labour practice, the restrictive covenant that ‘for whatever reason even if his employment is terminated [the employee] shall not accept employment with any other employer in Nigeria … for a period of (3) years from the date of termination or resignation as the case may be’.

The problem arises where the members of staff are not allowed to look into contract of employment and make input that will be convenient for both parties. In many cases, contract employees are made to sign the contract of employment while some being engaged through consulting firms only fill forms with the firm with a guarantor and resume at work where he will be working on a particular date for resumption.

Same provision defined Contract of employment as an agreement, whether oral or written, express or implied, whereby one person agrees to employ another as a worker and that other person agrees to serve the employer as a worker.

Another issue is that the Labour Act recognises that an employment contract could be oral or written, express or implied. Section 7 of the Labour Act requires every employer to issue a written contract to the employee within three months of the commencement of the employment relationship. With respect to Non-Workers, there is no statutory requirement for their employment contracts to be in writing. It is, however, advisable that contracts be made in writing to specify duties, avoid dispute that can emanate from non clarity of the employment terms.

Parties are bound by the terms of their agreement or contract hence there is need for the contract of employment to be beneficial to both employer and employee. For example, the employee must know his salaries and which must be stated in the contract. At will employment agreement which makes employer to dismiss contract employee at will without notice should be jettisoned by Court on its enforceability. However, contract of employment is unenforceable if it does not allow the employee to receive benefits throughout the statutory notice period. See the case of Stevens v. Sifton Properties Limited, 2012 ONSC 5508.

Where there is a dispute the relief available to workers including contract employees in Nigeria is to enforce their rights in an employment relationship is by instituting an action in the National Industrial Court of Nigeria because this is court vested with original exclusive jurisdiction in respect of all labour and employment matters in Nigeria. During the Court proceeding parties can shift ground and want to settle out of Court for one reason or the other and if agreed on terms of settlement, it becomes a Consent Judgment. Also, there are situations where employers are able to settle claims at any time before or after they are initiated till the Court delivers its final judgment.

By the same provision, employer means any person who has entered into a contract of employment to employ any other person as a worker either for himself or for the service of any other person, and includes the agent manager of factor of that first-mentioned person and the personal representatives of deceased employer.

It is expected that all employers must conduct a medical examination of every employee before the employee commences work. The examination must be carried out by a registered medical practitioner, at the expense of the employer. Making a claim of an unlawful invasion of his right to privacy and dignity of his person, the claimant in Andrew E. Okoto v Guinness Nigeria PLC (Unreported suit No: NICN/LA/72/2017; judgment delivered on November 22, 2018, per Oji J.), alleged that his employer ‘coerced, arm-twisted and compelled him to release his private medical records’. The court, upon a careful analysis of the acute conflict of evidence before it, found the claim unmeritorious.

Employers are obligated to provide rest breaks of at least 1 hour for every 6 hours of work, and must ensure that in every 7 days of work employees will be given at least 1 day of rest which shall not be less than 24 consecutive hours. Generally, women are prohibited from ‘night work’, however the Labour Act allows for some exceptions. Further, Nigerian female employees who are pregnant are entitled to 12 weeks of maternity leave (6 weeks before the due date, and 6 weeks after), and where she has been in employment for at least 6 months she is entitled to at least 50% pay during her period of maternity leave.

All employers must give their employees at least 6 working days of holiday with full pay for a 12-month continuous service period. Further, employees are allowed to take up to 12 days as sick leave in any 1-year period, provided that the absence from work is certified by a registered medical practitioner.

Having laid a proper foundation there is now need to elucidate on challenges of contract employees before and during Covid-19? The challenges are:

First on the list is that, there is no employer benefits –
Contract employees do not receive employer-paid benefits. The benefits such as group health insurance, paid vacation, sick leave and pension. Contract employees must acquire their own insurance and retirement accounts when they chose not to become a permanent company employee. These expenses could reduce any pay advantage a contract position carries over a permanent employee position. On the other hand, it is sorrier case to say further that despite being exploited even at the point of being employed. For example, many Security contract employees are paid within #15,000k to #25,000k; for cleaning job, contract employees are paid within #10,000k to #20,000k; for factory job within #10,000k to #25,000k and so on depending on location of the work and financial capacity of the companies or factories. Though banks, oil and gas companies, etc pay their contract employees higher that those ones mentioned. However, through finding consulting firms have their own pay from the said money every month while some consulting firms will collect the whole first month salary. Having passed through these experience and sad conditions, they can be disengaged or dismissed by given one month notice or no notice at all. With advent of Covid-19, companies, banks, factories, hotels, etc have dismissed their some of their contract employees to cut expenses, while some give leave without payment. Some are given half salary or certain amount deducted from their salaries monthly, while some employers are not paying salaries using Covid-19 as excuse. Inflation has set in as many countries with high numbers of Covid-19 cases have experiencing recession. Covid-19 has brought more hardship, economy recession, unemployment, poverty, students not going to schools including higher institutions, foreigners including expatriates are moving to their countries, etc.

Furthermore, there is no job security in contract employment –
This is the greatest challenge of being a contract employee. This lack of job security involved with taking a position that will expire in a set amount of months or years. The fear is ability of the employee to renew the Contract of Employment when it expires. Most of these contract employees stand a risk of seeking another job which can either be beneficial to them or put them another employment not satisfactory to them. Those contract employees who had been dismissed owing to dreadful pandemic called Covid-19 are now exposed to idleness, criminality, depression, insult that may arise from not meeting bills and other expenses and other vulnerable situation.

Also, they face challenges of discrimination in employment – Section 42 of the Constitution of FRN, 1999 as amended prohibits discrimination against Nigerian citizens on the basis of their community, ethnic group, place of origin, sex, religion, political opinion or the circumstances of their birth. Some contract employees which sometimes the companies or factories, etc think they need their competence or services in a particular field but to one reason or the other possess some physical challenges or belonging to particular ethnic group or religion are also placed on contract. This may not be clear to all. This is common among growing companies and big companies which would rather use recommendations, or relationship in employing their members of staff. In Nigeria, employees get employed through different media such as altitude test and open interview, recommendation, through consulting firms which they believed they would have done the needful, long time relationship, calls from the said company’s profitable clients or employed to gain benefits the connection of the intending employees’ families. A lot of laws had been enacted to stop discrimination against Nigerian citizens who are seeking employment. Such laws are Lagos State Special People’s Law, 2011 in Lagos State while at Federal level, there is Discrimination against Persons with Disabilities (Prohibition) Act, 2018 and other relevant laws. National Industrial Court of Nigeria also held identical views in both Darlington Eriseye Lawson v Keystone Bank Limited (Unreported suit No. NICN/IB/48/2016; decision made on 2018-10-09, per Kola-Olalere J.) and Jacob Folarin v Union Assurance Co. Ltd (Unreported suit No. LA/08/2016; decision made on October 25, 2018, per Amadi J.). Here it found that the practice of an employer paying ex-gratia to some of its ex-employees whose employments were determined in the same or similar circumstances with that of the claimant (without making same payment to the claimant) was discriminatory and amounted to unfair labour practice.

In the same vein, they face exploitation, inhuman treatment and abuses which was triggered by corruption and selfish employers – It is not in all situations that it is an easy task to get employment as contract employees. Condition permit people settling for contract jobs at times. A situation where an OND Holder will be doing cleaning or security job or Masters Holder to be a driver of a company or industry and other unthinkable reasons owing to economic situation of Nigeria. A country where factories are dying and worship centres are increasing and we complain of unemployment. Where connection determines how far your company can grow and failing to perform governmental requirements. Even ghost workers that are still existing makes jobs unavailable in public services as required. The educated ones are no longer getting employment benefits as before. It has become do-a-job-that-you-see and not the one that fit your Certificate. Increase in demand for employment caused by increase in population and few employing employments. Where one contract employee wants to quit his job about thousands are already available to get same employment. The advantage that employers are capitalising on. This has led to exploitation, inhuman treatment which is against Section 34 of the Constitution of FRN 1999 and abuses of contract employees. Still on unfair labour practice, the purported disengagement of an employee not following laid down process, coupled with an unlawful denial of earned promotion was frowned at in Dr. Kayode Afolayan v UNILORIN (Unreported suit No: NICN/IL/16/2017; decision made on November 27, 2018, per Adewemimo J.) In Mrs. Gloria Chukwudi-Nneke v Registered Trustees of Dowen College, Lagos (Unreported suit No: NICN/LA/351/2014, judgment delivered on 2018-05-10, Peters J.) the defendant was asked to pay damages to the claimant ‘for the manner in which she was disengaged by the defendant more importantly given her status as a pregnant woman’

To sum it up, it is high time we grow Nigeria to be economically flourishing enough to reduce numbers of unemployment and contract employees. A lot of work has to be done in creating buoyant economy, social infrastructure, free education to tertiary level and other growth that can aid viable employment for Nigerians. Covid-19 should be lesson for all and not just the government on the need to plan for future and value lives. All I cry for is justice for all contract employees considering their situations during Covid-19.

• Prince Olumide Akindiya, Lawyer, Notary Public & Principal Counsel of Olumide Akindiya & Co. Based in Lagos. WhatsApp: +2348131509509.
  Email: olumideakindiya@yahoo.com.