TERMINATION OF EMPLOYMENT WITHOUT REASON: DETERMINING THE LOCUS OF THE BURDEN OF PROOF

Abstract

The provisions Section 254C of the Third Alteration Act 2010 and section 7(6) of the National Industrial Court Act 2006 have given the National Industrial Court of Nigeria jurisdiction to abolish the common law rule by which an employer can terminate an employment for good or bad reasons or for no reason at all. Drawing from Article 4 of the ILO Convention No. 158 and Recommendation No. 166 of 1982, the current position of the law is that an employer must state a reason for terminating an employment otherwise the termination will be declared wrongful and unfair. However, what remains to be expatiated upon is the locus of the burden of proving whether there was reason for the termination of an employment. In this connection, it is apposite to juxtapose the general rule that a claimant/employee bears the burden of proof in termination of employment cases with the provisions of Article 9 of the ILO Convention No. 158 which expressly imposes the burden of proof in such cases on the employer to show that a reason was given for the termination of the employment. The purpose of this article is to appraise the provisions of Article 9 of the ILO Convention on the burden of proof in the light of the common law rule. The researchers find inter alia that the NICN, having relied on Article 4 of the ILO Convention to develop the practice of requiring employers to give reason for terminating an employment, can and should also give force to Article 9 of the said Convention. The researchers however find that the application of Article 9 of the ILO Convention is challenged by a number of factors, the chief of which is the common law attitude of the appellate courts. In its final analysis, the researchers called for more activism on the part of the NICN judges. There is the need to organize a workshop where the learned justices of the appeal courts will be acquainted with the recent trends in our labour jurisprudence and the need to uphold the application of the provisions of Article 9 of ILO Convention on burden of proof.