1. Introduction
Confirmation of a probationary contract is a rather vexed topic amongst human resource practitioners (and some employment lawyers) in Nigeria. There is some degree of confusion around the power of employer to confirm, delay or refuse confirmation of probationary contract at will as well as to determine when employers choose to exercise such power. The problem becomes real when employers are contemplating the release of such employee from their service and what length of termination notice and other benefits are to be accorded such an employee.
Although the Nigerian courts have held in various cases that where an employee works beyond the probationary period and is not confirmed by the employer and the employer keeps him on the job without expressly extending the probationary contract, then, the employee’s service is deemed to be impliedly confirmed and such an employer is estopped from treating the employee as an unconfirmed staff.
However, what remains confusing to many human resource practitioners on the issue, from the various decided cases on implied confirmation, is how long must the employee work after probation in order to be deemed to have been impliedly confirmed? How long is too long to keep an employee after probation? Is the expiration of probation period sufficient to create implied confirmation? Must there be any other positive acts or conducts of the parties that must be reckoned with to arrive at the conclusion that the employment has been impliedly confirmed? Can probationary employment continue perpetually? What is the parties’ intention behind the employment on probation?
Some of the above questions were answered in the case of Mr. Lawal Gambo v. Federal Inland Revenue Service, which was delivered by Justice P. O. Lifu on 5th November 2014. In. the said case, the FIRS, by one (1) month’s notice, disengaged the claimant who had been placed on probation for 1 year and 5 months. The Court rejected the employer’s argument and held that the employment had been impliedly confirmed and therefore could not be disengaged by one (1) month’s notice. The following extract from the judgement of the Court is very apposite:
“There is no evidence before this court to show that the claimant’s employment as constituted by exhibit LG 10 was confirmed in any formal manner but he continued to work even beyond the period of confirmation when exhibit LG 03 terminating him was received. That means it took the defendant to terminate him 1 year and 5 months after the acceptance of the automatic offer of employment; to be more precise, the claimant was offered employment on 1st of June 2010. Through a letter dated 14th December 2010; he accepted the officer on 27th January 2011 and he was terminated on 14th of May 2012 through a letter dated 7th of Sept 2012.
The purpose of a probation period is normally to enable the parties to make an assessment of the advantages resulting from the conclusion of an employment contract. During this period the worker has to demonstrate his ability and competence. It is a period of insecurity which should not be unduly prolonged.
However, the continuation of services after the expiry of the probation period without a new contract being drawn up in a form of confirmation, is equivalent to the conclusion of a contract of indeterminate duration which takes effect on the date on which the probation period began, or where the worker as in this case continue to work after the probation period, the contract is deemed to have been concluded on the date on which the probation period began. This is in accordance with international best practices and fair labour practice principles as enshrine in section 254C (i)(f) of the 1999 Constitution of the Federal Republic of Nigeria as amended.
Based on the principle of labour law stated above, and by virtue of Exhibit LG 010, I hold that the employment of the claimant, apart from being one with statutory flavor is a permanent and pensionable one.
Consequently terminating the claimant giving him one month salary in lieu of notice as stated in Exhibit LG 03 is contrary to the spirit and intent of Exhibit LG 010 and therefore unlawful.”
2. The Popular Judicial Decisions on Implied Confirmation of Probationary Contract
In Nigeria, the courts frown against employers’ refusal to confirm probationary contracts and have consistently held such refusal as an unfair labour practice. In doing justice to an employee’s case, which borders on refusal to confirm employment service after agreed probationary period, the courts, in appropriate cases, invoke the doctrine of estoppel to bar the employer from denying that such employment has been impliedly confirmed.
For instance, in Obafemi Awolowo University V. Onabanjo [1991] 5 NWLR (pt.193) 549, in which an employee was retained on the job for four (4) months after probation, the court held as follows:
“The Appellant had delayed unnecessarily in making up their mind whether to terminate or confirm respondent probationary appointment. By keeping him for four months after the probationary period of three years had expired, they would be deemed by operation of the law to have confirmed his appointment, and the doctrine of ‘estoppel by conduct’ would operate to prevent the appellant from alleging and treating him as if he was still on probation. Delay defeats equity.”
Also, in Amanze v. Union Bank, delivered on 29th June 2021 by Hon. Justice I. J. Essien of the National Industrial Court, Lagos Division, the employee was employed on 9th of May 2014 on a 6-month probationary contract and disengaged on 14th July 2017, with two-week salary in lieu of notice, as unconfirmed employee. In holding that the Claimant’s service had been impliedly confirmed, Justice Essien held as follows:
“I must add that where the terms of an employment contract such as the one under consideration in this judgment stipulates for confirmation after a period of probation, unless there are reasons to extend the probation period which must be in writing and duly notified to the employee, the defendant is under a duty to confirm the employee after the period of probation. It would be a breach of contract by the defendant for failing to confirm the claimant in this action. The claimant was employed on the 9/5/2014. The confirmation of the claimant was due on the 8/11/2014. The defendant failed to confirm the claimant or terminate her appointment. The defendant continued to keep the claimant in his employment up to 13/7/2017 when they terminated the claimant vide exhibit D5. The claimant is deemed to have been confirmed by operation of the law.”
Previously, the same Justice Essien had also held in Noruwa v. Mainstreet Bank (delivered on 3rd December 2020 at the National Industrial Court, Lagos division) to the effect that the employer was wrong to delay confirmation from July 2009 till 19th January 2012, and my lord Justice Essien held thus:
“It is an unfair labour practice for an employer to refuse to confirm an employee in writing who has not been found wanting in the discharge of his duties to the employer after the period of probation, except where the work or conduct of the employee has been found to be unsatisfactory for which he should be informed accordingly, and he must be informed of the extension of the probationary period, the employer is under a duty to comply with the terms of the contract by confirming the employee.”
Also, in the case of The Council Federal Polytechnic Ede & 7 Ors. V. Olowookere [2012] LPELR-7935 (CA), while considering the effect of failure to confirm or terminate an employee’s appointment after probationary period, the Court of Appeal held as follows:
“The period between 10th April 2001 and 28th July 2004 was more than three years. In the eyes of the law having kept the respondent as an academic staff, using him as a lecturer and paying him salaries and other benefits for about 12 months after the period of probation had lapsed, the appellant had by their conduct confirmed the respondent appointment.”
In arriving at the conclusion that a probationary contract has been impliedly confirmed, the Court may sometimes look beyond the fact that the employee has been retained on the job beyond the agreed period of probation (which is sufficient in itself to prove implied confirmation) to some other ancillary matters such as the benefits, rights and privileges accorded to the employee in question as a supposed unconfirmed employee. If anything has been done or condoned by the employer which derogates from the notion of probation, the Court will likely hold that an employment has been impliedly confirmed. Then, again, every case will be decided on the primacy of facts.
The above point was demonstrated in Reliance Communications Ltd. v. Adegboyega (2017) 8 CLRN 30 CA, the Respondent was employed by an Employment Letter dated 6th February 2004 for a probationary contract of three (3) months. The contract provides that after probation, either party could terminate the contract by giving three (3) months’ notice. In a case brought by the employee (Respondent) to challenge the employer’s termination by one (1) month’s notice even though the Respondent had remained in the service of the company for over one (1) year, the Court of Appeal adopted the decision of the High Court of Lagos, which gave judgment for the Respondent.
The judgement of the trial judge, which the Court of Appeal adopted intoto, is as follows:
“From the evidence before the Court, I noticed that though the Claimant did serve a three month probationary period with the Defendants as contained in Exhibit C, there was nowhere in the evidence where the Claimant’s appointment was confirmed by the Defendant nor was there any provision for an extension of the probationary period from the initial three months.
It is my considered opinion that the Defendant by allowing the Claimant to continue working with the company for over a year after the expiration of his three months probationary period to the extent of issuing a letter to the United States Embassy, admitted as Exhibit C5 which confirms the Claimant as its employee who was about to proceed on its annual leave and admitting to the availability’ of funds for the sustenance and accommodation of the Claimant during his stay in USA shows that the Defendant impliedly confirmed the Claimant’s appointment. Likewise, the Defendant by allowing the Claimant to continue work and earn his salary, gave the impression that he has satisfactorily completed the probationary period and has subsequently been confirmed though without issuance of a confirmation letter, which could be traced to the negligence or omission of the Defendant. I also rely on the dicta of Sulu-Gambari, JCA (as he then was) and Akpabio J.C.A. (as he then was) in the case of Obafemi Awolowo University v. Dr. A. K. Onabanjo (1991) 5 NWLR (Pt. 193) Pg. 549 @ 569 para G-H 35 & pg. 570 para D – E.
Akpabio J.C.A. (as he then was) in the above case held thus “the Appellant had delayed unnecessarily in making up their minds whether to terminate or confirm respondents probationary period. By keeping him in his employment and continuing to pay him for four months after the probationary period of three years had expired, they would be deemed by operation of law to have confirmed his appointment, and the doctrine of “Estoppel by conduct” would operate to prevent the appellant from alleging and treating him as if he was still on probation. “Delay defeats equity”.
From the above decision of the Appeal Court, I am of the view that the Claimant’s appointment was confirmed by the Defendant immediately after the expiration of the three months’ probation”.
In affirming the above judgment, the Court of Appeal (Per Tukur JCA) held as follows:
“I agree with the reasoning of the learned trial Judge on the Exhibit C5 a letter issued to the United States Embassy which confirms the Respondent herein as its employee had in my view by itself committed the Appellant and impliedly confirmed the Respondents appointment and it will be inequitable to resile from such representation.
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.”
The Court of Appeal went further to hold that the Doctrine of estoppel by conduct had been explained by the Apex Court in the case of Lawal v. UBN Plc & Ors (1995) LPELR 1762 (SC) (per OGWUEGSU JSC) thus:
“the Doctrine of Estoppels is that where one party has by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly then once the other party has taken him at his words and acted on it the one who gave the promise or assurance cannot after words be allowed to revert to the previous relations as if no such promise or assurance had been made by him.”
The Court f Appeal concluded in Reliance Communications Ltd. v. Adegboyega that the Appellant having allowed the employment of the Respondent to continue in full view of the stipulation of the three (3) months’ probationary period must be taken by their conduct to have fully assured the Respondent that his appointment had been confirmed.
The decision in Suit No. NICN/ABJ/86/2019 between Ipinle Oluseun v. Hallmark Health Services Limiteddelivered on 26th November 2020 by Honourable Justice E. N. Agbakoba presents an interesting perspective on probation. The Claimant’s case is that he was employed on 25th August 2018 and he remained in the employ of the defendants until receipt of letter of termination dated 31st March 2019 which was two (2) weeks’ notice in accordance with the terms of the probationary contract.
The claimant testified that he served the Defendant for seven (7) months and by their contract he was to be eligible for Confirmation after six (6) months if the Defendant found his conduct and performance satisfactory. In the instant case, the 6-month period ended on the 2nd of March 2019 whilst the employee continued to work for the Defendant till 31st March 2019 when he was disengaged.
It is instructive to note that the employee was queried and subsequently disengaged after probation. The Court found and held that both the query and the termination letter came after the probation period and having allowed the Claimant to work beyond 2nd March 2019, the Claimant would therefore be deemed a confirmed employee and entitled to a full month’s salary in lieu of notice and not two (2) weeks as argued by the Defendants.
It would therefore appear from the number of decided cases, that the date of deemed confirmation is a day after the expiration of the probationary period. If the foregoing is correct, then it matters not that an employee is retained for a day or a year after the probation. The length of service of probation is immaterial and irrelevant in considering or deciding whether a probationary contract has been impliedly confirmed.
It is useful to bring the point to a close with the judicial pronouncement of Justice Essien in the above case of Amanze v. Union Bank, which is very instructive. My lord held as follows:
“I must also comment on the referee report exhibit D4a, which the defendant alleges was unfavourable for the claimant to be confirmed. I must state that a referee report is one document which is to enable an employer to make up his mind whether to confirm or terminate a probationary worker. That report must be received within the period of probation. Where the referee report is received after the period of probation the employee cannot rely on such a report to refuse to confirm the employee or use it as a basis to terminate the employment after the employment would have been deemed confirmed by operation of the law. The referee report exhibit D4a received on the 20/7/2017 after the claimant employment was deemed confirm on the 8/11/2014, is a document which this court will look at as one kept as a black mail weapon against the claimant. It is without any evidential value in this action.”
3. The Dissenting View on Implied Confirmation of Probationary Contract
The popular judicial decisions are to the effect that an employee who is allowed to work beyond the expiration date of probation is deemed to have been impliedly confirmed and the employer is estopped to deny that such an employee is a permanent staff member.
The foregoing remains the employment law in Nigeria till date notwithstanding few contrary judicial decisions, like the judgement of Justice J. D. Peters of the National Industrial Court in Ogbonna v. Neptune Software Limited [2016] 64 N.L.L.R. (Pt. 228) 511 in which the learned trial judge curiously held that a probationary contract is inchoate until confirmation and that (unless there is evidence of express confirmation) 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 the above case of Ogbonna v. Neptune Software Limited, the gravamen of the Claimant’s case is that he was employed by a letter dated 5/9/08 as Defendant’s Business Development Manager; that the letter contained his working conditions; that offer of employment was for a probationary period of six (6) months in the first instance at the end of which the Defendant may confirm same based on satisfactory performance; that his appointment is subject to termination by one calendar month notice in writing on either side; that his employment was terminated by a letter dated 7/5/09 without requisite one (1) month notice which he was entitled as an impliedly confirmed employee, amongst other claims.
Despite having retained the employee on the job for two (2) months after the end of probationary period, Justice J. D. Peters of the National Industrial Court nevertheless refused to recognize the Claimant as an impliedly confirmed worker. In holding that the Claimant was not a confirmed employee, Justice J. D. Peters held as follows:
“There is consensus among the parties that the document dated 5/9/08 and titled Offer of Employment regulates the master/servant relationship between the parties. That document was tendered by the Claimant and admitted as Exh. C1. The same document was tendered by the Defendant and admitted as Exh. D2. It would therefore mean that the resolution of this issue depends on the construction of that document. Being a documentary evidence therefore no oral or parole evidence will be required to vary or add to the content of same. See Rangaza v. Microfinance Company Limited (2013)LPELR-20303(CA) & Afemai Micrifinance Bank Limited v. SEACOS Nigeria Limited (2014) LPELR-CA/B/98/2012.
Within the context of that document, can it be said that the employment of the Claimant was properly terminated? The argument of the Claimant is that his appointment was not properly determined in that he was entitled to one calendar month notice in writing which was not given. That is the provision of Clause 12 of Exh. C1. It is however important that Exh. C1 be read holistically with attention paid to each of the Clauses especially as relates to issue of termination.
Now I read Clause 2 of that exhibit. It states as follows-
”Your employment will be for a probationary period of six (6) months in the first instance, at the end of which your appointment may be confirmed based on satisfactory performance”.
Clause 12 cannot be read in isolation of Clause 2. Indeed, Clause 12 can only be construed and understood within the context of Clause 2. The need to comply with one calendar month in writing will arise after fulfillment of conditions stated in Clause 2. Was the employment of the Claimant confirmed? I find no evidence tending towards that. That being the case, I find and hold the appointment of the Claimant to be one on probation.
In Simeon O. Ihezukwu v. University of Jos (1990) LPELR-1461(SC), (1990)7 S.C (Pt. 1) 18, the Supreme Court, per Wali, JSC, pointed out that the essence of probationary appointment is that the employer retains the right not to confirm the appointment until after a specified period; that where the contract of employment provides that the appointment is subject to a probationary period of a certain length of time, this does not give the employee a legal right to be employed for that length of time and the employer may lawfully dismiss him before the expiration of that period. A major rationale for putting an employee on probation is simply to give the employer an assurance that the employee is a fit and proper person to be placed on permanent appointment. An employment on probation is akin to a temporary employment; an employment under observation. An employer may decide whether or not to confirm such an appointment where the attached conditions are not met.
I may as well add that an employer is not under an obligation to give notice of termination to an employee who is on probation until the employment is confirmed. This is because the employment relationship between the parties is an inchoate one.”
4. Conclusion
The decision of Justice J. D. Peters in Ogbonna v. Neptune Software Limited is a far cry from the decisions in Oluseun v. Hallmark Health Services and a host of other cases discussed above and therefore cannot represent the law on the implication of employer’s failure to confirm an employee who has worked beyond probation.
To say that the above pronouncement of Justice Peters empowers employers to eat their cake and have it is to underrate the oppressive hardship and injustice that the above judicial decision can potentially create in the world of work.
The dichotomy in the law created by Justice Peters’ pronouncement therefore necessitates a harmonization of the judicial approach of the National Industrial Courts to the concept of deemed confirmation.
It is safe to argue that Justice Peter’s decision above runs counter to judicial precedent and therefore should not be relied upon in deciding the question of deemed confirmation and other ancillary issues arising from an employment dispute in which the employer has deliberately refused to issue a written confirmation but nevertheless retains the employee on the job.
The law is that an employee is deemed to be confirmed on the day probation ends, where the employer seeks to extend probation, our view is that it should be done before the expiration of probationary period.
