National Industrial Court of Nigeria in the Abuja Judicial Division, Mrs Folarin Oreka Maiya v. The Incorporated Trustees of Clinton Health Access Initiative Nigeria & Ors, 11 November 2011, Case No. NIC/ABJ/13/2011
Constitution of the Federal Republic of Nigeria
Article 12, paragraph 1
No treaty between the Federation and any other country shall have the force of law to the extent to which any such treaty has been enacted into law by the National Assembly.
Constitution of the Federal Republic of Nigeria (Third Alteration) Act 2010
254 C - (1) Notwithstanding the provisions of sections 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters-
(…)
(h) relating to, connected with or pertaining to the application or interpretation of international labour standards;
(2) Notwithstanding anything to the contrary in this Constitution, the National Industrial Court shall have the jurisdiction and power to deal with any matter connected with or pertaining to the application of any international convention, treaty or protocol of which Nigeria has ratified relating to labour, employment, workplace, industrial relations or matters connected therewith.
Nigeria
Protection against discrimination in employment and occupation
Reference to international law to strengthen a decision based on domestic law
Ratified treaty;1 International case law;2 Foreign case law3
Discrimination on the grounds of pregnancy/ Termination based on employee’s pregnancy/ Use of international law to strengthen a decision based on domestic law
The worker was a probationary employee of the Incorporated Trustees of Clinton Health Access Initiative Nigeria (“CHAIN”). The worker claimed she was dismissed after informing her supervisor that she was pregnant.
The worker brought a claim before the National Industrial Court of Nigeria against CHAIN (and related bodies corporate), seeking that the Court make a declaration that the termination of her employment breached her fundamental rights under the Constitution of the Federal Republic of Nigeria 19994 and the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act. The worker asked the Court to make an award of general and exemplary damages against CHAIN for breaching her rights.
The employee produced documentary evidence supporting her claim that she was terminated due to her pregnancy. CHAIN denied the allegation that it had dismissed the worker because she was pregnant but did not submit any evidence to the Court explaining an alternate basis for its decision to dismiss the worker.
The Court evaluated the evidence presented and stated that it accepted the fact that the worker was pregnant was the reason for her dismissal. The Court determined that, by dismissing the worker because she was pregnant, CHAIN had breached her rights to protection from discrimination and inhuman, malicious, oppressive and degrading treatment under the Constitution and African Charter on Human and Peoples Rights (Ratification and Enforcement) Act. The Court also stated:
“The duty of the Court to prevent a breach of the provisions of the fundamental rights sections of the 1999 Constitution is heightened by the Nigerian obligations to the comity of nations which also forbids such practices – see the African Charter supra and the ILO’s Convention No. 111 of 1958 on Discrimination. This obligation is reflected in section 254C – (1) (f) - (h) of the 1999 Constitution as altered.”5
Having strengthened its decision based on domestic law, by reference to ILO Convention No. 111, the Court held that the worker was entitled to general damages and also exemplary or aggravated damages, amounting to one year’s full gross pay.
1 ILO Discrimination (Employment and Occupation) Convention, 1958 (No.111).
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