Wrongful termination or dismissal as interpreted by judicial precedents
(focus on non-statutory employment)
The relationship between the employee and employer is governed by the employment contract. Some contract terms like the salary and resumption date, are negotiated and agreed to by both parties prior to commencement of the employment.
However, some terms are not known by the employee at this time, but may be referred to in the employment contract as Company Policy.
These include the procedure for management of disputes, termination of employment and dismissal by the employer.
The employee does not have an opportunity to negotiate these terms but by executing the contract of employment and taking up the employment, he is bound by the terms.
THE LABOUR ACT
Section 9(7) of the Labour Act provides for termination of employment by expiry of the period for which it is made, by death of the worker before the expiry of that period, or by notice in accordance with Section 11, or in any other way in which a contract is legally terminable or held to be terminated.
Section 11(1) provides that either party to the contract of employment may terminate the contract on the expiration of notice given by him to the other party of his intention to do so, and Section 11(2) provides for the notice period.
Section 11(6) recognizes that either party to a contract may waive his right to notice and accept payment in lieu.
Section 20 also provides for redundancy, which is defined as an involuntary and permanent loss of employment caused by an excess of manpower.
It may seem that all that is required is for either party to terminate the employment by using any of the standards above without more. Note however that the standards provided for in the Labour Act are applicable minimum standards.
The courts in interpreting the contract of employment may also take cognisance of international best practices as
provided for in international conventions.
ILO Convention on Termination of Employment N o 158 of 1982
This Convention which has not been ratified by Nigeria in accordance with Section 12 of the constitution of the Federal Republic of Nigeria (‘CFRN’), governs termination of employment at the initiative of the employer.
Article 16 makes the Convention binding on Members who have ratified the Convention. Non-ratification of the Convention by Nigeria prima facie makes the Convention non-binding in Nigeria.
However Sec 4(8) CFRN subjects the exercise of legislative powers by the National Assembly to the jurisdiction of legally established courts and judicial tribunals, and provides that the National Assembly shall not enact any
law, that ousts or purports to oust the jurisdiction of a legally established court of law or judicial tribunal.
The 3 rd Alteration to the CFRN which established the National Industrial Court, granted it exclusive Jurisdiction for all Labour and Employment Matters, including matters relating to or connected with unfair labour practice or international best practices or relating to, connected with or pertaining to the application or interpretation of
international labour standards [Sec 254(c)(1)(f)].
Section 7(6) of the National Industrial Act (‘NIA’) empowers the Court to have due regard to good or international best practice in labour or industrial relations and what amounts to good or international best practice in labour or industrial relations shall be a question of fact. Thus the Court may consider this convention.
Article 4 of the Convention provides that the employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the worker’s capacity or conduct or based on the operational requirement of the undertaking, establishment or service.
The employer bears the burden of proof. Even where the reasons are valid, Article 7 enshrines the principle of fair hearing by making it mandatory that the employee be given an opportunity to defend himself against the allegations made.
Article 8 entitles an employee who considers that his employment has been unjustifiably terminated to appeal to an impartial body, which appeal must be within a reasonable period of termination.
Article 11 provides that a worker whose employment is to be terminated shall be entitled to reasonable notice or compensation in lieu unless he is guilty of misconduct of such a nature that it would be unreasonable to require the employer to continue his employment during the notice period.
Suffice it to say that a reasonableness referred to would be the reasonable man’s test and where the matter becomes a subject of litigation, it would be as interpreted by the court.
The Court in PENGASSAN v. Schlumberger Anadrill Nigeria Ltd (2008) 11 Nigeria Labour Law Report Pt 29 Pg 164 held inter alia that it did not have any problem with the employer’s exercise of the right to hire and fire for any reason or no reason at all, but that the point must be made that it is no longer globally fashionable in industrial relations law and practice to terminate an employment relationship without adducing any valid reason for such a
It also held that where the employer states the reason, he must also prove same. In Oshajare Christopher Sunday v Ecobank Nigeria Limited NICN/LA/441/2018 the court in confirming that where termination/dismissal is on grounds of misconduct, and the employer gives reason for such termination, he is under a duty to justify the reasons given
for the termination; the court relied on Sunday Joseph v Kwara State Polytechnic  LPELR-21398 (CA) to state that under the common law principle of Master/Servant relationship, an employee can be dismissed for any act of misconduct, which must be established by evidence if the dismissal is challenged in court.
Where the courts find that termination/dismissal is wrongful, and the aggrieved party can prove the damages sought, they courts will usually order payment of adequate compensation.
Deborah D. CHUKWUEDO is a Partner in the law firm of Accendolaw, Lagos State.
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