Safeguards against Breach of the Lawyer’s Duty of Confidentiality

By Michael Dugeri

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It is commonly understood by lawyers that they are under a duty to protect confidential information relating to their relationship with clients. The law imposes on lawyers a strict obligation to safeguard client’s confidential information.

Section 19 (1) of the Rules of Professional Conduct for Legal Practitioners 2007 (“the Rules”) is explicit that “all oral or written communications made by a client to his lawyer in the normal course of professional employment are privileged”. Sub-section (2) goes on to provide that a lawyer shall not knowingly:

  1. reveal a confidence or secret of his client;
  2. use a confidence or secret of his client to the disadvantage of the client; or
  3. Use a confidence or secret of his client for the advantage of himself or of a third person unless the client consents after full disclosure.

 It is to be noted that, like all rules of law, there are also exceptions to this rule. For instance, disclosure is permissible when required by law or a court order, or with the client’s consent. See section 19 (3) of the Rules.

The lawyer’s duty of confidentiality has broad application. It continues after the representation ends and applies to information received about prospective clients as well. The duty not only forbids revealing information, but also proscribes a lawyer’s use of confidential information about a client to the disadvantage of that client. With regard to former or prospective clients, a lawyer may not use confidential information to the disadvantage of a former or prospective client unless that information has become “generally known.”

Generally, both the duty of confidentiality and the lawyer-client privilege encourage clients to trust their lawyers. The lawyer-client privilege, especially, encourages clients to tell his or her lawyers everything, though the duty of confidentiality does this as well. With complete information, lawyers can provide the best and most appropriate advice.

Notwithstanding its importance, few lawyers and law firms have put in place safeguards against the breach of this fundamental duty. It is often taken for granted by most lawyers and law firms that this duty would enforce itself, which is hardly the case.

As a lawyer or law firm, it is necessary to do a self-appraisal of the systems you have in place for managing clients’ confidential information and consider how you might improve them to create greater confidence from your clients and insulate yourself against potential liability for breach of the duty of confidentiality.

The following are some pointers to remember about client confidentiality:

  1. Don’t discuss business outside the office.
  2. Never discuss one client’s business with another client.
  3. Beware of water cooler conversations. Can your chatter with the client at court premises be overheard by other clients or lawyers?
  4. Don’t talk to the press about your client’s business. Decline to answer if a reporter or blogger calls to ask if your firm is representing a particular person. Decisions about what to say to the press should be made by the client.
  5. Remember the law is a profession, not merely a business. Clients pay good money for help with their problems. They deserve respect for their privacy.
  6. Be especially cautious in office sharing arrangements. Beware “gossip” with employees of other firms. Keep case files segregated.
  7. Remember that your duty of confidentiality continues even after the case is closed. It also continues after you leave the law firm.
  8. Be wary when non-staff members want to use your office for ‘short meetings’ or ‘quick research’. Make sure no client files or documents are lying about carelessly or visible.
  9. Never release information to callers such as a client’s accountant or business associates or partners without authorization.
  10. Be careful when disposing of confidential papers, including rough drafts or duplicates. Use shredders or other secure disposal methods for sensitive materials.
  11. Never forget that the attorney-client relationship is built on mutual trust and confidence. Clients come to you expecting a form of sanctuary. You must honour that.
  12. Put in place secured means of storage of clients’ files and communication with clients.

The law office is an exciting place. The lawyers and support staff are privy to information others don’t have. You learn interesting things about prominent people. Resist the temptation to share this information with outsiders, including friends and family. The duties of client confidentiality are broad. It is not limited to merely what the clients tell you. It also precludes unauthorized discussions of case strategy or evidence.

Loose lips sink ships – and might well lead to ethical and malpractice problems. Every member of a law firm, from senior partner to the litigation clerk, is under a strict obligation to protect the privacy and secrets of clients. Rule 19 (4) provides that:

“A lawyer shall exercise reasonable care to prevent his employees, associates and others whose services are utilized by him from disclosing or using confidences or secrets of a client, but a lawyer may reveal the information allowed by sub-rule (3) through his employee.

A good idea is for firms to require all employees to sign confidentiality forms, which are placed in their personnel files. A blank copy of the form should be included in the office manual. It should be very clear to every member of staff that disclosure of a client confidence is a serious offence punishable with termination/dismissal. Breach of client’s confidentiality may prove very costly to the lawyer’s business and reputable, and leave him open to liability from the client and other third parties. It is better to be safe than sorry.

 

 

 

 

 

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Occupational Injury: The NIC Awards N10.3m Against Employer

The National Industrial Court, Lagos Division has ordered Lagos Travel Inn to pay N10.3m to one Mr. Emmanuel Abah, who sustained an ankle injury after being trapped by the hotel’s elevator sometime in 2013.

The court, in a judgment by Justice J.D. Peters, said the order must be complied with within 30 days of the judgment.

Abah had, in the suit filed through his lawyer, Mr. Daniel Onwe, in 2014, explained that he was trapped by the hotel’s faulty elevator in the course of his duty as a cleaner in the employment of the hotel.

He claimed that the management of the hotel had been aware of the faulty state of the elevator, which was noisy and had on several occasions trapped people, but refused to fix it.

He claimed that rather than fix the elevator, the management urged the employees to continue to use it so as not to attract the attention of visitors to the hotel.

He claimed that on November 13, 2013, while trying to take the elevator from the ground floor to clean the rooms upstairs, one of his legs was caught in the doors.

He said that as he stepped his left foot onto the floor of the elevator while lifting his cleaning materials, the elevator swiftly took off in the upward direction with the doors trapping his left leg, pulling and dangling him headlong.

He said his ankle bone was crushed in the process, which eventually caused him a permanent injury.

He claimed that after receiving treatment in a hospital with no improvement, he was advised to seek the intervention of a trado-medical bone centre at Otukpa in Benue State, where he incurred extra expenses of N286,000, and a medical balance of N40,000.

He claimed that upon being discharged from the trado-medical centre, he resumed work on July 1, 2014, and was reluctantly admitted and redeployed to the laundry section.

Abah said he subsequently applied to the hotel for a loan of N40,000 to enable him to defray the outstanding medical bill, but his application was ignored.

He said two weeks after his resumption he was eventually served with a letter terminating his appointment without any reason.

He contended in his suit that his sacking was unjustifiable and urged the court to order the hotel to pay him N30m as compensation for the injury he sustained in the course of duty and another N10m for unfair dismissal.

In his judgment, Justice Peters held that with the permanent damage done to the leg of the claimant, there was no market where he could purchase a new leg.

The court accordingly, awarded the sum of N10.3m against Lagos Travel Inn, as damages for the permanent injury suffered by Abah.

Source: Jimi Disu Blog

Confirmation of employment after probation can be implied by the conduct of the employer.

tumblr_onkbqiRgvE1vdur62o1_1280The Court of Appeal in the recent case of Reliance Telecommunications Limited v. Mr. Olaore Olufemi Adegboyega (reported at (2017) 8 CLRN) held that the employer is deemed to have waived its rights in insisting on issuance of a formal letter of confirmation to its employee if the said employee is allowed to continue in his employment beyond the stipulated probationary period and he is regarded and treated as an ‘several months after the end of the probationary period’. The employment is deemed confirmed by conduct.

This decision is important to check the habit of some employers who, out of negligence or malice, fail or refuse to confirm some deserving employees, only to later turn around and rely on the employee’s probationary status in claiming certain obligations from the employee or denying him some benefits.

Facts of the Case 

In 2004, the respondent entered into a contract of employment with the appellant. The terms of contract indicated that the respondent would be on probation for a period of three months and either party could immediately terminate the employment during the period of probation. Furthermore, the contract of employment stipulated that after three months, the employment of the respondent would be confirmed and that three months’ notice will be required to be given by each party in case of termination of the employment. After the expiration of the three months probationary period, the appellant failed to confirm the employment of the respondent but continued to retain his services, paying him his entitlements and making representations to third parties suggesting that the respondent was in its employment. The relationship between the parties continued until sometime in 2005 when the appellant terminated the employment of the respondent without giving him any notice. The respondent was aggrieved and filed a suit against the appellant at the High Court of Lagos State alleging wrongful dismissal and claiming damages. After the conclusion of trial, the judge gave judgment in favour of the respondent and held that the appellant was liable in damages to the respondent. The trial court however, failed to consider and make pronouncement on the counter-claim incorporated into the statement of defence of the appellant.

The appellant was dissatisfied with the judgment of the trial court and filed a notice of appeal at the Court of Appeal, Lagos Division urging the court to reverse the decision of the trial court. One of the issues formulated for determination was whether the trial court was right in holding that the respondent’s employment was deemed confirmed immediately after the probation period without meeting the other conditions precedent and in the absence of a formal confirmation letter.

Arguing the issue, learned counsel for the appellant submitted that it is trite that parties are bound by the terms of contract freely entered into. Reference was made to a term of the contract of employment stating that the offer of employment is subject to a satisfactory medical examination, satisfactory completion of a three months’ probation period to take effect from date of assumption of duty and that the offer is subject to other terms as set out in the letter of employment and conditions of service as may be determined by the board from time to time. Learned counsel posited that since the employment of the respondent was not confirmed by the appellant before the termination, a condition precedent was not fulfilled and as such the respondent was not entitled to the three months’ notice. Counsel urged the court to resolve the issue in favour of the appellant.

Responding to the argument of the appellant, learned counsel for the respondent relied on the decision in Kablemetal Nigeria Limited v. Gabriel Ativie to submit that in an action for wrongful termination of employment, the claimant is under obligation to plead and prove not only the appointment but also the terms and conditions for it to constitute the foundation of the action. Counsel submitted further that even though the contract of employment stipulated that the employment of the respondent must be confirmed after three months, the fact of non-confirmation was inconsequential and that the trial court was right in holding that the employment of the respondent was deemed confirmed since the appellant allowed the respondent to continue to work beyond the three months’ probationary period stipulated in the contract. Learned counsel relied on Obafemi Awolowo University v. Dr. A.K. Onabanjo and urged the court to discountenance the argument of the appellant and resolve the issue in favour of the respondent.

In resolving the issue, the court held thus:

The Appellant having allowed the Respondent to continue in his employment beyond the three months’ probationary period, paying him all his entitlements and further making representation via Exhibit C5 to third parties affirming that the Respondent is its employee several months after the end of the probationary period must be deemed to have waived its rights in insisting on issuance of a formal letter of confirmation to the Respondent. In such circumstances as obtained in the instant case Estoppel by conduct/representation can readily be invoked.

See: Military Government of Lagos State & Ors v. Adeyiga & Ors (2012) LEPLR 7836 (SC)

Issue is resolved in favour of the respondent.

M.T Odechima with V. I. Okafor for Appellant
TS. Adewuyi with T. O. Shittu Miss for Respondent

This summary is fully reported at (2017) 8 CLRN

Nigeria’s criminal justice system in need of overhaul, lawyers say

For an effective criminal justice system in the country, some eminent constitutional lawyers on Monday canvassed the revision and harmonisation of the various criminal laws.

The lawyers, who spoke with the News Agency of Nigeria (NAN) in Lagos, said a review of the criminal laws would give fillip to effective prosecution of cases and also add value to the nation’s administration of criminal justice system.

Mr Michael Dugeri, a human rights campaigner, urged that attention should be paid to issues bordering on speedy disposal of cases in a bid to decongest the nation’s prisons.

“There must be close attention to issues of decongesting the prisons which I think is fast becoming a national embarrassment.

“This should begin with a thorough reformation of the manner of administration of criminal justice in our courts.

“There are provisions under the Administration of Criminal Justice Act (ACJA) 2015 on speedy criminal trials; however, the impact of the provisions of that law is yet to be felt as our prisons are still overflowing with inmates.

“More work needs to be done in ensuring compliance with laws that encourage speedy trials; there should also be partnership with the various state governments on initiatives that are necessary to bring about these desired reforms,” he told NAN.

Also, a crusader for indigent prisoners, Mr Anthony Makolo, harped on an effective application of the Administration of Criminal Justice Act to promote speedy trials and rid the prisons of overcrowding filled with thousands of awaiting trials and underage.

He urged judicial officers to shun frivolous applications aimed at delaying trial of criminal cases and strictly comply with the provisions of the Act for speedy disposal of cases.

According to Makolo, judges must be inclined to giving meaning to criminal laws by granting favourable bail conditions to accused particularly where the law allows them to do so.

In the same vein, Mr Justine Eliagwu, called for a comprehensive review of the criminal laws.

According to him, the doctrine of plea bargain should be discarded from the criminal justice system to make accused persons to face trial.

“There is need to promote and enhance the laws as they relate to the criminal justice system in the country.

“For instance, the issue of plea bargain, in my view, should be discarded. From a lay man’s view point, it means to plead guilty to a lesser charge and one pertinent question here is why?

“This is simply because the sentence of a full trial is far more severe than the lesser one he opted for. This again, in my view, does not serve the purpose of justice.

“It is my submission that the doctrine be discarded as it encourages corruption; it is an escapist machinery to dodge the sledge hammer of the law put in place to punish such an offender.

“Hence, Section 179 of the Criminal Procedure Act lends its support,” he said.

On his part, another lawyer and social critic, Mr Aondonenge Akaa, also wants a total overhauling of the criminal justice system.

Akaa said: “A total overhaul of the criminal justice system is required for the anti-corruption drive of the present administration to succeed.“The doctrine of presumption of innocence should be made inapplicable in all corruption cases, especially high profile cases involving public funds.

“With the congestion of our regular courts and the strict constitutional rule of trial within a reasonable time coupled with the presumption of innocence principle, the ACJA is merely fanciful.’’

He said constitutional amendment would also ensure a more proactive legal framework in the country.

Source: The Guardian

Effective Contract Management

Contract management, sometimes referred to as contract administration, refers to the processes and procedures that companies may implement in order to manage the negotiation, execution, performance, modification and termination of contracts with various parties including customers, vendors, distributors, contractors and employees. While businesspeople often dismiss contract preparation as “lawyer’s work” that has little or nothing to do with the important aspects of the working relationship between the contractual parties, contracting is actually one of the crucial activities in determining the success of any business arrangement.

We assume that one of your roles as in-house counsel will be assisting your internal clients with contract preparations and it is absolutely essential that you work closely with your clients to establish well in advance your mutual expectations regarding the role that you will be expected to play in the negotiation, drafting, finalization and monitoring of a particular contract. In most cases, you should expect to be responsible for drafting the contract and all related documents as well as spotting and resolving specific legal issues. Managers inside your company will typically be responsible for identifying and resolving all of the business and risk management issues associated with the contract and the underlying relationship between the parties. However, in-house counsel do sometimes become heavily involved in negotiation of business issues and to have a great deal of input into the strategy goals and objectives of a particular contractual arrangement.

For each proposed contractual arrangement you should get in the habit of going through a checklist of the actions that you might be expect to take in order to assist the company. You’ll eventually develop your own checklist that you can refer to as time goes by; however, when you are first starting out we recommend that you consider each of the following “Top 10 Steps for Effective Contract Management”:

  1. Make sure that you begin with a thorough investigation of both the business and legal background for the contract and the proposed transaction and business relationship in which the contract is to be used. Appropriate representatives of the company should be interviewed to determine how the relationship has evolved and what, if any, commitments may have already been made by the parties. This is also the time to give special consideration to the actual and potential impact on the company’s existing obligations and business relationships.
  2. Working with the appropriate representatives of the company, you should identify the steps that need to be taken in order to comply with the requirements of any contract review and signature authority policies and procedures that have been established by the company. For example, does the contract need to be reviewed and approved by senior management and/or the board of directors and, if so, what needs to be done in order to expedite review and consideration.
  3. Once you have a good understanding the scope of the proposed business relationship you should identify the contracts and related documents required to document the relationship and complete any immediate transaction and then proceed with collecting and reviewing examples of the necessary contracts to expedite the drafting process and isolate specific questions that the company will need to answer in order for the contract to be complete and accurate.
  4. If warranted by the complexity of the proposed transaction, you should prepare a time and responsibility schedule for drafting, review, discussion, revision and completion of all required items and activities. For example, a time and responsibility schedule is often useful for a financing transaction that must pass through several stages over an extended period of time including preparation of a business plan, presentations to potential capital providers, preparation of financing documents and satisfaction of closing conditions.
  5. Taking into account discussions with company representatives regarding your role, you should participate in the negotiation of the essential terms of each contract and, if appropriate and useful, prepare a term sheet or letter of understanding to be sure that the parties are in agreement regarding the essential terms before time and effort is spent on contract preparation. If you are not to be directly involved in negotiations you should, at a minimum, provide company representatives with a list of questions that will need to be answered in order for the contracts to be completed so that the representatives can discuss them with their counterparts from the opposite party.
  6. Once background information has been collected and preliminary agreement has been reached on the essential terms, you should prepare the initial draft of each of the required contracts and related documents or, in cases where the opposite party is responsible for drafting, review the initial draft of such items prepared by the opposite party; discuss and negotiate necessary changes in the initial drafts and make sure that revised drafts are circulated for review and finalization. The timing of the drafting and revision process is crucial since delays can push the relationship off track and jeopardize realization of the business opportunities anticipated by both parties.
  7. Once the documentation is finalized you should prepare for the closing of the transaction, including pre-closing meetings and preparation of closing checklists and memoranda. If certificates and/or consents from outside parties are required in order for the contracts to be finalized and become effective they must be planned for well in advance and may themselves require time-consuming negotiations.
  8. Once all conditions to consummation of the proposed business relationship have been satisfied or waived, you should oversee completion of the closing of the transaction at which time all contracts and related documents are executed and exchanged and any required performance at the closing (e.g., cash payments) is completed.
  9. Once the closing is completed you should make sure that all of the closing documents are organized and that copies are delivered to all interested parties. This is also the time for you to make sure that the files relating to the transaction that have been opened during the process described above are organized so that they can be easily accessed in the future should questions arise.
  10. Working with company representatives, you should establish a plan for ongoing review of the performance of each of the parties under the terms of the contract, at least in those cases where the contract is long-term and calls for continuous performance over an extended period of time. As part of the plan you should calendar any dates identified in the contracts that may require follow up action, such as performance milestones and option elections.

We cannot overemphasize the importance of determining your role in the contracting process and the level of active involvement that you may have in negotiations relating to the contract. In-house counsel’s role can vary from active negotiator to behind-the-scenes scrivener. In all situations where you are empowered to take some actions without managers being present, you should make sure that procedures are in place to promptly communicate any new development to the appropriate businesspersons within the company. Absent this type of communication, and a clear delineation of responsibility between you and other company participants, you may find that responsible managers within the company are unhappy with the way the company is being represented. Moreover, lack of coordination increases the risk of embarrassing conflicts and misunderstanding that send the wrong message to the parties on the other side of the transaction.

Even if you are not expected to play a primary role in negotiating the terms of the contract, you should make every effort to encourage managers to notify you as soon as possible that the transaction is contemplated. While businesspersons do not always do the best job of informing their lawyers in advance, even in the best of circumstances, you should always attempt to sensitize managers and other involved parties within the company to the possibility that unforeseen legal issues may emerge from a particular business decision. With that knowledge and understanding, businesspersons can be trained to always discuss business points with the caveat that a final decision will ultimately depend on review by “legal”. This Top Ten helps in-house counsel define the important considerations in the contract management process, regardless of their role.

Culled from Association of Corporate Counsel

 

EFCC secures 137 convictions, recovers N419 billion, others in seven months

  • Commission invites senator over alleged bribery allegation against IGP
  • Group seeks sack of IGP over corruption charges

Acting Chairman of the Economic and Financial Crimes Commission (EFCC), Ibrahim Magu, yesterday disclosed that the commission recovered N419 billion and secured 137 convictions between January and August 2017.

Speaking at an interactive forum with journalists in Abuja, Magu said other cash haul within the period include £230,000.00, €610,000.00, $69.5million, 432,000.00 Dinars and 70,500 Saudi Riyad.

He appealed to the media not to relent in their support for the anti-corruption war, insisting that the corruption fight requires a concerted effort to succeed.

Magu also noted that it would be naive for anyone to expect that the fight against corruption will be smooth even as he called for unity among stakeholders to expose corrupt persons and all proceeds of corruption.

While expressing gratitude to the media for supporting the anti-graft crusade, Magu said: “The fight against corruption is getting tougher as corruption is continuously fighting back.

Magu also vowed to bring any EFCC operatives indicted for corruption to book and disclosed that nine cadet officers of the commission were recently discharged because they had issues with their certificates.

He promised to protect all whistle-blowers who provide information to the commission and maintained that it was declaring a total war against corruption.

Meanwhile, the Police Service Commission (PSC) has invited Chairman, Senate Committee on Navy, Isah Hamman Misau, to appear before its special panel investigating allegation of corruption in the Force on Wednesday, September 6, 2017.

A statement signed late Wednesday in Abuja by Head, Press and Public Relations, Ikechukwu Ani, said the Commission in a letter signed by the Chairman of the Special Panel, Justice O. Adekeye, a retired Justice of the Supreme Court, has invited Misau to appear before PSC panel.

“The Police Service Commission, the only organ saddled with the statutory responsibility of issuing letters of retirement to all police officers except the IGP has a vital role to play in determining the authenticity of this letter.”

“Senator Misau is invited to appear before the panel with the original copy of his letter of retirement for authentication,” the statement said.

In another development, the Progressive Mind for Development (PMDI), a civil society organisation, yesterday asked President Muhammadu Buhari to sack the Inspector-General of Police (IGP), Ibrahim Idris, over the recent corruption charges levelled against him by Misau.

The group said this would restore Nigerians’ hope in his anti-corruption war. President of the group, Abubakar Abdulsalam, in statement issued in Yola, Adamawa State, said that the anti-corruption war would be a shadow fight if the president fails to act decisively on the allegations against the IGP.

Source: The Guardian Nigeria

Perspectives on Probation, Confirmation and Promotion in Employment Contracts

By Kayode Omosehin 

Probation is simply an agreed trial period for a worker to prove his worth on a job to his employer and assess the worth of the job to himself. Promotion is an elevation of a worker in status within a company based on performance or other considerations as may be agreed in an employment contract or determined by the employer. Confirmation is the intermediate act of endorsement of a new worker’s performance by a company sometimes between the periods of probation and promotion; it is a testament that an employer is satisfied with the performance of a new employee.

Probation and promotion of a worker are, generally, matters which are based on each worker’s contract. As such, an employment lawyer needs to review the employment contract before an opinion can be formed on the ramifications of an employee’s probation or promotion. Where the terms of employment are contained in various documents, it is important to read all the various documents together to decipher the intention of the parties regarding probation or promotion. From experience, the offer letter of employment, the appointment letter (if it is different from the offer letter), the terms and conditions of employment, staff hand book, policy on review of rank/grade level, disciplinary procedures rules as well as official circulars and notices circulated internally are all relevant in determining the respective rights and powers of workers and employers on probation and promotion.

The rights of a worker under probation

A person does not cease to be an employee of a company merely because he is on probation. As such, in my view, a worker on probation is entitled to all express benefits in an employment contract or those implied by the labour law. Interestingly, however, Justice J. D. Peters of the National Industrial Court held in Ogbonna v. Neptune Software Limited [2016] 64 N.L.L.R. (Pt. 228) 511 that an employer is not under any obligation to give notice of termination of the service of an employee who is on probation until the employment is confirmed. In other words, according to Honourable Justice J. D. Peters, the employment relationship between a worker and a company in that Ogbonna case was inchoate and that the need to give a notice for termination for one calendar month stated in the claimant’s letter of employment would only arise after the confirmation of his employment.

It is difficult to agree with the reasoning of the judge in the foregoing case given that an employment relationship is founded on contract following offer and acceptance, with consideration taking the form of the employee’s resumption and performance of a designated job. There are many judicial decisions of a superior court to the effect that a contract of employment comes into existence when a clear offer made by a company is unequivocally accepted by a job applicant provided that there is no outstanding condition precedent to assumption of work which must be fulfilled by the applicant. In fact, and law, if such outstanding conditions are in the form of medical clearance, provision of referees, verification of credentials etc. (as they usually are), the employer can neither unilaterally revoke the offer after the applicant’s acceptance of same before the deadline for fulfilling the other outstanding conditions, nor prevent the applicant from fulfilling the rest of the conditions. So, upon fulfilling the conditions for acceptance of an employment offer and resumption of duty with a company, it will be inconsistent with judicial precedent to hold that the employment contract between the worker and the company, in the circumstances, is inchoate, as Justice J. D. Peters did in the Ogbonna’s case, merely because the employment relationship commenced with probation. Employment contracts are not sui generis as they are governed by common law rules on general contract making which entail offer, acceptance and consideration, including part-performance. See Federal Government of Nigeria v. Zebra Energy (2002) 18 NWLR (Pt. 798) 162.

In my view, a worker on probation is entitled to all the benefits stated in a contract of employment which are enjoyable on probation and those implied by law in deserving circumstances. A worker on probation is entitled to be paid the agreed salaries for the probationary period. He is also entitled to pension contribution from the employer. An employer of a worker on probation cannot deny liability for remitting personal income tax of the employee on the ground that the worker’s employment was probationary. If probation lasts longer than a year, in my view, the worker is entitled to an annual leave. Both the employer and employee are entitled to terminate the working relationship during probation as agreed in the employment contract. It is necessary to repeat here, only for emphasis, that in addition to the foregoing benefits, a worker on probation is entitled to all other benefits or rights provided in his contract of employment which are enjoyable during probation.

The effect of confirmation of employment

Confirmation is an attestation of an employer that a worker’s performance is satisfactory in a period of probation for the purpose of extending the employment in accordance with agreement. The length of probation before confirmation is a matter of agreement. Most employment contracts provide for power of the employer to extend a period of probation if the worker’s performance is unsatisfactory. Whenever confirmation is due, it is advised to be in writing (in a letter or memo of confirmation) with all necessary incidental terms clearly spelt out to avoid the incidence of legal presumptions. Upon confirmation, a worker stands to enjoy all the benefits which are attached to his employment.

Confirmation of employment may be express such that an employer writes a letter or memo to the employee or circulates same within the company to confirm a worker’s employment at the end of probation. However, where probationary period has ended but the employer neither expressly extends it nor terminates the employment, the law presumes that the employment has been confirmed impliedly. Under Nigerian employment law, at least from the various cases reviewed in the course of this work, there is no implied extension of probation by the employer and no such presumption is made in favour of an employer where such employer fails to expressly extends a probationary period or terminates an unsatisfactory service of a worker which extended after the expiration of an agreed probation.

In line with international best practice and labour standard, a Nigerian court held in a case that the continuation of services after expiry of the probation period without a new contract being drawn up means that the employment has been impliedly confirmed and that a contract of indeterminate duration has taken effect from the date when the offer for probationary service began. In the said case, the claimant was engaged for a probationary period of two (2) years but he was made to work for six (6) years without confirmation. The employment was eventually terminated without notice or salary in lieu of notice. The argument advanced by the employer was that the employment was never confirmed. The court rejected the argument of the company and upheld the claims of the employee in part. According to Honourable Justice P. O. Lifu (JP), such termination amounted to unfair labour practice contrary to section254C (1) (f) of the Constitution as same was incompatible with international best labour practice.

There is no specific legislation regulating confirmation of employment in Nigeria. However, whenever there is any employment dispute regarding probationary service, the employment contract is usually the proper guide to understanding the rights of a worker under probation and after confirmation. The employer must follow whatever procedure that is agreed in the employment contract. Where confirmation of employment is subject to satisfactory performance by the worker, a performance appraisal is essential, in my opinion, to evidence a transparent process by which an employer arrives at a decision not to confirm an employee’s service after probation.

Promotion as a right or privilege

Promotion of staff is a most controversial aspect of employment relationship largely because of its perception or misconception as a right or privilege. Promotion or lack of it can turn out to be ugly, leaving an unsavoury feeling in a work environment, depending on the procedures adopted by a company to arrive at a decision to promote or not to promote. Generally, under Nigerian employment law, promotion is not a right but a privilege; it is usually expected to be earned. Though the foregoing principle of law has its exceptions. In a case decided by Honourable Justice Shogbola of the National Industrial Court on 9th April 2014, the court found for a claimant who has been unlawfully terminated from employment as a police officer but refused to grant the reliefs on promotion on the ground that promotion of staff is not a right. Interestingly, however, about a year after, Honourable Justice J. D. Peters of the same court, in another case, held on 5th March 2015 that where promotion is based on agreed conditions which the employee has fulfilled, it would be a breach of agreement if the employer fails to approve his promotion.

What is clear from a review of cases on promotion is that where a company’s staff handbook or terms and conditions of employment provide for clear procedure for promotion, failure of an employer to comply with the procedures may give rise to liability for breach of contract in an action against the company by an aggrieved staff. There is no laid down rule or guide for determining a right or wrong promotion decision. Every employment contract will have its own peculiarities on which, upon a proper review, an employment lawyer can provide independent advice regarding the rights of either party. Perhaps I should add that it is an onerous task for an aggrieved employee to successfully challenge his employer’s decision on promotion, however unfavourable. There is a presumption that every employee understands the terms of his or her engagement at the time of accepting an offer of employment; and the onus to prove any allegation of fraud or inducement rests on him. Malice and discrimination are not enough in themselves to impute liability to a company unless there is a clear evidence to support such allegations. Where a decision on promotion has been wrongfully exercised, the court has power to entertain the complaints of an aggrieved employee who has been affected by such decision.

How to determine “satisfactory performance” of worker in matters of promotion

In the discussion of promotion in employment law, the requirement of “satisfactory performance” is the most subjective condition a worker is required to meet. This is because the management of company determines what amounts to satisfactory performance of a worker. Hence, the court usually adopts a strict rule of interpretation of any promotion policy and will readily resolve any ambiguity in the policy in favour of a worker. In a case decided against Zenith Bank Plc, the employment contract stated that the claimant would be promoted upon confirmation and subject to an above average performance rating (minimum of B+).

The claimant’s employment was confirmed at the end of probation but he was not promoted despite his “A” performance rating. The court, relying on the last performance appraisal, found for the claimant on the ground that his performance was satisfactory to merit promotion. Consequently, the court awarded damages in the sum of money representing the difference in salaries of the claimant as the time of the suit and those which he would have earned in (as well as bonuses and benefits accruable to) the higher office to which he ought to have been promoted.

Review of Promotion procedures

The management of a company reserves the right to review the terms and conditions of an employment contract, including those pertaining to promotion of staff. However, when such review takes place, every affected staff ought to be promptly informed about the details of the new promotion policy. It is advisable to ensure that such management decision is not perverse as such that will give the impression that an employee is obviously prejudiced or denied of an entitlement which has become due. Where promotion is due to a worker, any unilateral decision by a company to review a promotion policy to prejudice or deny the worker may be deemed as a breach of agreement. Such affected worker may be entitled to compensation in damages in any action challenging the company’s decision during or after his resignation from the employment. It only needs to be added that when a prejudicial decision is taken on promotion, a right of action is deemed have accrued to an affected staff and he or she is entitled to resign immediately and seek redress against the company.