Wrongful Termination of Contracts of Employment in Nigeria: a Case for Reinstatement of Private Employees
CHAPTER ONE
Objective Of Study
In a contract of employment, where there is an offer and acceptance by both parties to the contract of services, there must be a consideration to furnished the contract, describing some rights, interest, profit or benefit occurring to one party or some fore-bearance detriment, loss or responsibility given, suffered or undertaking by the other.[1] The above explanation was illustrated in the case of Currie v. Misa[2] Therefore, consideration in the contract of employment is the salary and other fringe benefits which an employee earns on one part and services which an employer receives on the other part.
CHAPTER TWO
TERMINATION OF CONTRACT OF PUBLIC EMPLOYMENT
Introduction
Termination of contract of Public Employment means that the contract is lawfully brought to an end under the terms of the contract with proper notices and in compliance with the agreed procedures. Unless a statute provides otherwise, the question as to the duration of an employment or the length and nature of the notice required to determine if it will depend on the intentions of the parties.
Under Public Employment
The terms of contract, be it ordinary or public employment will normally dictate the time and mode of the dissolution and such employment can only be brought to an end at the expiration of such time unless it has been varied by subsequent agreement. Such variation may be by way of replacing the original contract with another contract which in all cases must always be mutual as stated in the case of Stange (SW) Ltd. V. Mann, Cowey v. Liberian Operations Ltd.[1]. It should be noted that a party can at any time terminate a contract of employment provided it is done in accordance with the terms of the contract. In contracts of employment especially, an employer is not under any obligation to give any reason for the termination.
Motive is indeed not relevant in such a situation but this is only general principle and the right to so terminate the agreement may be expressly excluded by the terms of the contract.
The labour Act in Section 9 (7)[2] provides for the various ways in which a contract of employment may be terminated and provides inter alia
“A contract may be terminated by:
- The expiration of the period for which it was made or
- By the death of the worker before the expiration of the period or
- By notice in accordance with Section 2 of this Act or in any other way in which a contract is legally terminated or held to be terminated”.
Different Methods of Termination of Contract of Employment
Generally, a contract of employment may be determined in three principal ways:
- By operation of the law.
- By the intention of the parties.
- By summary dismissal.
Termination By Operation of Law
Ordinarily, an employment will be determined either by affluxion of time/where a period is fixed or by notice/where it is of an unspecified duration). However, whatever the intention of the parties is, there are circumstances when an employment has to come to an end because the law regards such contract as determined as stated.
CHAPTER THREE
WRONGFUL TERMINATION OF CONTRACT OF PRIVATE EMPLOYMENT
Introduction
It is indisputable that a contract of employment no matter the duration, even if described as “permanent” or “for life” must eventfully come to an end. At common law, dismissal or termination refers to all cases where an employee is relieved of his duties by a positive, unilateral act of his employer. Therefore, wrongful termination of contract of employment arises when an employee under private employment receives less than the period of notice to which he is entitled or when he is summarily dismissed in circumstances which do not justify such drastic action.
Wrongful Termination of Contract of Private Employment
Wrongful termination of contract of a private employee is said to be wrongful when the terms of the contract is brought to an end without proper notices and a breach of compliance to the agreed procedures in the contract of services of employment.
A contract of employment can be brought to an end by notice. Once proper or reasonable notice is given, the employment comes to an end at the expiry of the notice. The Labour Act[1] in Section 11 (1) says that either party to a 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. But whereby the employer do otherwise, the employer has committed a breach of contract, this is because the employer has a no “just cause” for the action, and thus seeks the court to hold that such termination of his contract (employee) is wrongful and thereby invalid.
According to Akintunde Emiola’s Nigerian Labour Law (unless an employment is lawfully terminated on any of the grounds stipulated in Section 9 of the Act of termination for misconduct, the worker so dismissed will have a remedy for wrongful dismissal.”
CHAPTER FOUR
REINSTATEMENT
Introduction
This type of remedy is normally given by the courts in case of breach of contract of employment. An order for reinstatement means that the employer must take him back to his job, as he is in effect treated as not been dismissed.
The employee will be entitled to any benefit he might reasonably have expected to receive during the period of dismissal is well founded, the tribunal must ask the employee if he wishes to have an order for reinstatement and if suggestion is made, the tribunal must first consider the reinstatement upon the complainant as though he had never been dismissed as provided by the Labour Decree.
Reinstatement
It is a settled law that reinstatement of an employee whom had been wrongfully terminated from his services is a remedy available to only employment that is covered with a statutory flavour. In this case, the tribunal must exercise its discretion after considering the complaint wishes whether practicable or severe risk of industrial strike as stated in Coleman v. Magnet Joinery Limited.[1]
The ordinary and primary meaning of the term “reinstatement” is to re-establish or replace the employee to the exact position in which he was before his removal with all the attendant privileges restored according to the agreement of employment.
With no doubt in my mind, Nigerian Judges have made no effort to come within hailing distance of identifying which circumstances would make it possible to award reinstatement in private employment or for unconfirmed employees whose contract has statutory flavour.
CHAPTER FIVE
OBSERVATIONS, SUGGESTIONS AND CONCLUSION
Introduction
It has been observed that the foregoing chapters pointed out that wrongful termination of a contract of employment is an unjustifiable repudiation of the contract by the employer. It is worthy to note that the Act of one party to end up contractual relationship (unilateral) afford the other party entitlement of remedies. This is supported by various legal protection afforded by the Nigerian law and judicial practices to the employee’s against wrongful dismissal.
Thus, since volunteers of consent is required to constitute a contract of services between the parties the law is then in support of the party that is faithful to its bond under the contract and opposed the other that acts contrary to the contractual terms of the agreement in the contract of employment.
Observations, Suggestions and Conclusion
In a contract of services where there is a breach of contract of service based on wrongful dismissal from service, there are various remedies to it. However, a closer look at the various remedies provided by the law will reveal that much still has to be done to alleviate the fear of wrongful dismissal from service which is seriously biting hard in all sectors of human endeavour, particular because although the remedies such as reinstatement, injunction, damages etc are available to employee who has put more years than he had put in the employment pending the determination of his case.
In the light of the above and in relation to the various remedies afforded an employee who alleges wrongful dismissal from employment, it is pertinent to also highlight some suggestions for improved protection of the employee from wrongful dismissal from service.
As stated earlier, the law shelters the worker from wrongful dismissal only when the worker maintains loyalty to the contractual term of agreement with the employer. The workers must be aware of the terms in the agreement if he is to abide by them so that where the contract is not evidenced in writing, the employer should deliver the particular to the employee as soon as the commencement of the employment.
Thus, given the background of the Nigerian employees engaged in services not evidenced in writing, it is difficult with respect to agreeing with the requirements of the provision in Section 7 of the Labour Act[1] which states that:
“The employer in a case of a contract in writing is to deliver to the employee particulars of the contract within three months of the commencement of the employment with an employer”.
Those engaged in such contract in Nigeria are basically illiterates and to keep them in suspense for that length of period without informing them of the nature of the contract of their employment is abnormal and unethical. It is however, suggested that for the protection of the illiterate employees whose contract are not endorsed in writing, the particulars of such employment must be made known to those employees in the languages understood by them on the commencement of the employment.
Moreso, another area of concern is the issue of compensating the employee whose appointment is wrongfully terminated. Obviously, the basis of compensation is on the due notice having been properly given. Thus if an employee would have been entitled to one month notice and his appointment had been wrongfully terminated, he will be entitled to damages to the value of one month salary in the event of wrongful termination of employment.
The question then is, will such a person be able to sort out an alternative employment within the said one month given in Nigeria situation? In this regard, the law works injustice in relation to long time employment. For, it is absolutely difficult to agree to any submission that any amount of compensation paid to a long time employee whose appointment has been wrongfully terminated would be adequate to sustain him and his family for the period (which might even be longer than he already put in), he will have to sort an alternative employment in Nigeria today, something more compensatory than this can be done. Thus, the provision in the Labour Act regarding “Termination of contract by notice” in its Section 2 should be amended. For instance, sub-section 2 (d) of that section which provides “one month, where the contract has continued for five years or more”. In so doing, the desired protection of the employee would advice its noble objective given the fact that in Nigeria today, it is absolutely difficult to sort out an employment within six months.
Furthermore, there is need for parties to a contract of employment to comply strictly with the statutory or contractual agreement before terminating the misconduct on the part of an employee, the disciplinary action to be taken depends on the circumstances including the nature and period of the misconduct. It should not be left entirely to the discretion of the employer to determine what is misconduct in the instance. In this regard, it is difficult with respect to appreciate the decision of the court in the case of Oyedele v. LUTH.[2]
That “misconduct is what the employer considers to be misconduct”. Undoubtedly, this decision confers an employer a very wide and dictatorial power to treat and even dismiss his employee in the way and manner he feels right, thus leaving the employee completely unprotected. It is safe to suggest that where an employee is to be dismissed on grounds of misconduct, such misconduct must not be pre-employment misconduct. According to Okagbue J.C.A. in Gwagoh v. Bendel State Hospital Management Board.
A contract of service is not “uberri maefidel” (where the promisee is bound to communicate to the promisor every fact and circumstance which may influence him in deciding to enter into the contract or not) and accordingly, the fact that the servant did not disclose his criminal record does not ipso facto (by the mere fact) vitiate the contract of employment”. It should only be a misconduct that is in the employment after the employer had made available the disciplinary rule, the type of circumstances which can lead to a misconduct and the agreed procedure in determining whether an employee has or has not committed the particular misconduct alleged that should be considered in determining the fate of the employee. Therefore, the operative procedure should be first, an oral warning, or in the case of more serious misconduct, a written warning setting out the circumstances.
More so, no termination of employment for a breach of discipline expects in the case of gross misconduct, that having been expressly defined in the contract of agreement. Furthermore, an arrangement be set up to monitor at regular intervals, developments in employment relationship between the employer and employee especially as regards to termination of appointments.
It is absolutely necessary that increase efforts by both public and private employers should work towards expansion project, so as to create more job opportunities. This will encourage and determine employees who are wrongfully terminated and those rightly terminated from their employment to seek alternative employment.
There should be need to adhere strictly to the principles of fair hearing as provided for in Section 33 of the 1979 and Section 36 of the 1999 constitution of the Federal Republic of Nigeria. This is, in spite of the right of the employer to appoint and terminate at the same time, the employee should be given adequate time and facilities to present his case and should also be given opportunity adequately to be heard in defence of whatever allegation that is levelled against him.
More importantly, one will suggest that the court system in Nigeria be overhauled as to enable the removal of protracted delay in the administration of justice whenever a case is before the court in respect of wrongful dismissal of an employee’s appointment.
The situation in Nigeria today as regard employment is such that it is difficult to get an employment and more difficult for wrongfully dismissed employee to secure an alternative employment. There should be need to recognise that Nigerians in general and the welfare of person in particular depends upon each other. Thus there is need for both employees and employers to be interested on the welfare of one another for a collective sustenance of the Nation’s economy.
Conclusion
In conclusion of this project work, it is paramount to adhere to the principles governing employer and employee relationship, the remedies and suggestions stated above automatically serve as protections affordable to wrongfully terminated employees and in Nigeria where mobility of labour is difficult, if not impossible, wrongful dismissal cases should be given urgent attention, and in general, there is need for more judicial divisions to be created over the court proceedings as to enable speedy dispensation of justice. Since “justice delayed is justice denied”. By so doing justice will be expatiated and the oppressed parties to a contract of employment will be justified by the provision of the law governing such contract of employment.
It is pertinent to note that while most of the Nigeria labour legislation strives to alleviate the hardship of the average Nigerian worker, there are still need to modify and amend such laws to improve their lots with a view to achieving priority between the parties subject to the terms of employment and termination of it, such as adequate safety devices.
The employer should be provided an insurance against injury for a worker in the cause of his employment. In most cases, the damages awarded are not adequate to such an injured party. This is manifestation of Mobil Oil Nigeria Limited v. Akinfosile,[3] International Drilling Company (Nigeria) Limited v. Ajijala.[4] Where the court noted that where a contract of employment or service is terminable on notice, and the employee whose employment is terminated has not been served with the requisite notice, what the employee could have earned during the period of notice is the requisite damages that the employee is entitled to.
The court should on their own discretion award more damages taken into cognisance of circumstances of each case as was interpreted in Dr. Babatunde Owolabi Sangunuga v. Akinwu Motor and Anor.
Finally, it is very important to promulgate a legislation that will be generally acceptable in the light of the Nigerian – socio-economic realities and whose fashion must be drastically different from that of common law which has obviously outlined its utility.
REFERENCES
- Batt. F.R.: The Law of Master and Servant. 5th Edition. Pitman & sons (1967).
- Egerton, E. Uvieghara: Labour Law in Nigeria. Malthouse Press Limited (2001).
- Emeka Chianu: Employment of Law. Bemicov Pub. Akure, 2004.
- Emiola Akintunde: Nigerian Labour Law. Ibadan University Press, Oxford (1979).
- Freeland, M.R.: c. Cleredon Press, Oxford (1976).
- Sagay, I.E.: Nigerian Law of Contract, Ibadan, Spectrum, (1985).