What amounts to wrongful termination of employment? And what remedies are available for employees?
So many companies, firms in Nigeria terminate employment of their workers for flimsy reasons and without any notice. Some employers do not give a reason at all, they may wake up on the wrong side of the bed and fire some employees.
When an individual sends out an application for a job, he /she is given an oral or written interview and then given a letter of offer or employment.That letter is a binding contract between the employee and the employer.
It states the duties of the employer to the employee. Most small companies do not offer employment letters. This should not be accepted, as such a letter will serve as security.
Where an employee accepts the letter, he/she has automatically agreed to the terms and conditions of the work.
Every prospective employee should take note of the provisions in the offer of employment letter. Look carefully at the starting salary, frequency of payment and method of payment. Would such payment be made by cheque or direct deposit?
Look out for performance bonuses and insurance coverage provided by the company such as dental, health or any other type of insurance.
Also look out for any probationary clause and working hours.
Where the employment is based on a contract, termination of the employment contract should be on the letter of offer.
The employer can only terminate the employment based on the terms of the contract. Whatever notice or payments stated in the contract must be adhered to.
In the same vein, if the offer letter or the contract of employment make provisions that the employer can kick the employee out at any time, without giving any reason, such an employee has little chances when seeking redress. The court ‘PARTIES ARE BOUND BY THEIR CONTRACT’
This is the reason why it is important to examine the offer. The court will look at the contract between the parties to determine whether the termination of contract was lawful.
Where a person’s appointment is terminated unlawfully or not in accordance with the agreement of the parties, the person may file an action in the National Industrial Court, seeking damages for the unlawful termination of his employment.
The court may order that damages be paid if it is discovered that the employer did not follow the contract they both signed. The damages are calculated by the amount that the employee would have been paid had he retained his job. Every bonus, salary and promotion bonus is put into consideration when awarding damages.
However, where a written contract of employment is absent, it is the position of the law that either of the parties should give at least a week’s or a month’s notice.
Note that, where an employee has not been confirmed by the employer with a letter or any means available or is on probation, he is entitled to notice but may not give reason for the termination.
In the case of an employment protected by statute or law, such termination can only be done by provisions of the law.
An example of this is the provision of the civil service that, all senior civil servants must be given a particular number of queries and then sent to the civil service disciplinary committee who will investigate and upon their findings, proceed to discharge them of their duties.
Also, when a disciplinary committee infringes on the right of fair hearing of the employee and the employee is dismissed, such dismissal will be null and void. The disciplinary committee must take all the rights of the employee into consideration and give the employee all the freedom to prove his innocence.
What remedies are available to a civil servant who has been dismissed without recourse to the provisions of the laid down statutes?
The employee may file an action in the national industrial court and the court will determine if due process was followed in the course of the dismissal.
Where it is discovered that it was not followed, the court may order a reinstatement of the employee who holds public office for a specific tenure which was not completed at the time of the summary dismissal.
The court may also order specific performance of reinstatement to return an employee whose employment is created by a statute such as a civil servant. Where this order of specific performance is made, damages cannot also be claimed concurrently.
This employment which is protected by law/statute must be called off according to the manner prescribed by the law/statute. Failure to follow the procedure given by this law/statute, will render such termination of no effect.
An employee can be fired for gross misconduct without any notice or wages and such termination will be lawful.
What amounts to gross misconduct?
Gross misconduct can include drunkenness or drug abuse, illegal use of alcohol and drugs while at the office, fighting or using abusive words, harassing others sexually, Stealing from colleagues or the office, discriminating against others, cooking the books or inputting false records, falsifying accounts, negligent acts, bribery and corruption, refusal to take orders from superiors, disobedient to superiors, using company properties for personal business.
Gross misconduct can lead to summarily dismissing the staff but this does not mean that the staff should not be given a fair hearing before such dismissal. Failure to do so will not be in conjunction with the principles of natural justice.
Note that, gross misconduct and crime are two different things, if an employee is facing criminal charges in court, he cannot be discharged for gross misconduct.
The reason for this is that, the terms are not interchangeable as the crime accused of does not affect the company personally.
For example, if an employee of a company fights at his home, not on office hours and is arrested, this act cannot be termed as gross misconduct.
An employer cannot institute disciplinary measure against his employee who is charged with a criminal offence. This infringes the employee’s right of being presumed innocent until proven guilty as guaranteed by the constitution.
From the Same Author: 6 Things You Should Consider Before Going to Court
My advise would be to properly examine an employment offer and check for clauses that would protect your stay in the company. Do not accept an offer just out of desperation, without even an offer letter, you are most likely to be treated badly where there are no express terms.