A LOOK AT THE CONCEPT OF WRONGFUL TERMINATION OF EMPLOYMENT IN NIGERIA
Employment related issues have been around almost as long as the existence of humans. Before civilization, master- servant relationship has been in existence and this arrangement was taken up a notch at the advent of civilization with the introduction of laws governing employment; working hours, leave periods etc,.
For the purpose of this text, we shall focus on the termination of employment in Nigeria.
In a master-servant relationship just like in any other relationship, it is not strange to have misunderstandings and conflicts. Some of these conflicts may bring the master-servant relationship between parties to an end. Such termination will be said to be wrongful where it is done in contravention to the contract of employment. The contract of employment will usually prescribe a notice period or payment in lieu of notice.
The Court of Appeal in Galadima v. Governor of Yobe State & Ors categorized employment into; (a) master and servant (b) a servant holding an office at the pleasure of his employer, and (c) employment that is governed by statute. The court stated that the category of employment is important as it determines the remedy available when there is wrongful act against the servant or employee.
Every employment depending on its category is governed by either the statute, in the case of employment that is governed by statute or by the terms under which the parties agree to be master and servant. Hence, in the case of employment governed by statute, termination of employment, dismissal, suspension or any other form of punishment must be done in accordance with the applicable statute, without which any action taken will be null and void.
For employment governed by agreement of parties and not by Statute, termination of employment, dismissal, suspension or any other form of punishment should be in the form agreed to, as any other form will be deemed wrongful.
Unfortunately, the wrongful act of the employer in a master and servant relationship, and employment at the employer’s pleasure will not lead to the declaration of the dismissal or suspension or any other form of punishment as null and void. The only remedy is a claim for damages for the wrongful dismissal or punishment. This is based on the notion that the Court cannot impose a servant on an unwilling master even when the master’s behavior is wrong.
The position of the law as stated in a plethora of cases is that a contract of employment wrongly determined cannot be declared null and void but unlawful and remedy lies in damages only.
The apex court has also held in Olarewaju v . Afribank Nig Plc that in master and servant class of employment, the master is under no obligation to give reasons for terminating the appointment of his servant.
In an action for wrongful termination of employment, the employee must prove the following as a pre-condition to the success of his claim;7
(a) he is an employee of the defendant
(b) the terms and conditions of his employment, and
(c) the way and manner and by whom his appointment can lawfully be terminated.
The apex court in Shell Petroleum Development Company v. Olarewaju8 has outlined the principles governing the measure of award of damages for wrongful termination of employment thus:
“In cases of wrongful dismissal of an employee, the measure of damages is, prima facie, the amount the employee would have earned had the employment continued according to the contract of employment subject to deduction in respect of amount accruing from any other employment which the employee in minimizing damages either obtained or should reasonably have obtained…”
The court Appeal also held in UBN Plc v. Chinyere9 thus;
“Where the termination of a contract of service is wrongful, the measure of damages the plaintiff would be entitled to would be salaries for the length of time during which the notice of termination would have been given in accordance with the contract of employment. Also, the plaintiff would be paid other legitimate entitlement due to him at the time the employment was brought to an end.”
In conclusion, the current position of the law is that in cases of wrongful termination of employment, the employee is only entitled to damages and that an employer need not give reasons for terminating the employment of his employee.
One may validly argue that this current position of the law is somewhat unfair to employees, and it tilts more in favour of an employer.
This paper was authored by Tobi Balogun who carries on his legal practice at the Law Firm of Femi Atoyebi & Co