EMPLOYMENT TERMINATION: HOW FAR CAN THE COURT HELP THE EMPLOYEE? (II)
By HR DESK
with
Moruf Kolawole Nasir
(Experienced HR professional)
The case you read in the last edition of HR Desk, no doubt was amazing, the good news is that you are not alone in your wonderment; a couple of HR Professionals also share your sentiment and differ on the court judgment, even though there is little or nothing they can do about it other than proceeding to a higher court, that is if there are loopholes to leverage on.
As promised in our last edition of HR Desk, below are the views of HR practitioners on the case, for us to also learn from. I will wrap it up with my position and advice on the case and on employment termination generally.
For the sake of those who did not read the case in the last edition, below is the case followed by the numerous comments:
THE CASE:
LABOUR LAW: A CASE OF DISMISSAL FROM EMPLOYMENT WITHOUT GIVING ANY REASON (FROM NECA).
The appellant (Mr. S. Anaja) was the sub Manager of operations in the foreign exchange department of the respondent (United Bank of Africa Plc). Upon some discrepancies in the management of some accounts under the appellant, he was queried and he appeared before the senior Staff Disciplinary Committee. After the proceedings, he was summarily dismissed and he consequently filed an action challenging his dismissal as null and void and an infringement on his fundamental rights. 1. On how the relationship between an employer and employee is construed: The relationship between an employer and his employee is generally to be found in the service agreement or letter of employment. 2. On the nature and enforceability of collective agreements: Exhibit M is the main collective agreement made between the Nigeria Employers Association of Banks, Insurance Companies and Allied Institutions and the Association of Senior Staff of Banks, Insurance and Financial Institutions. This document did not regulate the relationship between relationship between the appellant and the respondent and none of them can sue on it here. Therefore, the call by the appellant for this court to look at the document and make pronouncements on it concerning summary dismissal has no legal basis. It was held by the court, that collective agreements on their own do not give an individual employee the right to bring an action in respect of any breach of its terms, unless they are accepted to form part of the terms of employment. This is good law because the agreement is not made between the employer and his employee and the law is that, in contract, a non party cannot enforce it, even if it was made for his benefit. 3. On the power of an employer to hire and fire The law regarding the relationship between master and servant is settled. The master has full power to terminate the employment of his servant at any time, for any reason or indeed, for no reason at all. Provided that the termination of such an employment should follow the procedure spelt out in contract of service, otherwise the matter will be liable in damages for breach of the contractual agreement. In the judgment, Justice Yahaya, JCA affirmed that ‘‘an officer’s appointment can lawfully be terminated without first telling him what is alleged against him and hearing his defense or explanations. Similarly, an officer in this class can lawfully be dismissed without observing the principles of natural justice. It is not controverted that the employment of the appellant was not governed by statute and did not have any statutory flavour. It was therefore a master and servant relationship. Exhibit G, the letter of summary dismissal of the appellant did not give any reasons for the summary dismissal let alone make any criminal allegation. The respondent was well within its right as a master to so end the relationship without giving any of reason at all. The appeal was dismissed.
COMMENTS:
Uwa Agbogun (HR/Admin Manager at DCC Estates Ltd).
The lawyer of the dismissed staff should have advised him before going ahead to file the appeal on his behalf.
Celestina Okere (ACIPM) : @ Uwa, the lawyer, may want to try their luck, do not be surprised if they (lawyer and appellant) will take the matter to the Supreme Court.
Samuel Omoikhunu (Consultant at Total Projects & Resource Management Limited)
Hmmmnn, Celestine, what a loose justice! The best, most hardworking and dedicated staff could be fired for no reason or for saying good morning. If CA fails, other agreements failed to protect an itinerant worker – wrongly tagged stakeholders, so what is the remedy. I support going to Supreme Court, a remedy might be borne from opening up a loose end. Maybe a discovery.
Celestina Okere (ACIPM)I feel you Samuel because apart from seeing it from the perspective of an HR person, we should also look at it from the other side because we are first employees before being HR. Nevertheless, until a higher court says otherwise, the case has become a reference point in Nigerian Labour Law!
Olawale Odunlami (Recruitment Officer at Integrated Corporate Services Limited)
Quite enlightening, I hope the case would be pushed further. There’s really a hole, a gap in the process. You can’t JUST sack your staff. Thanks for sharing.
Ramsey Prince Osere (Head of Training and Development at Alpha Mead Facilities and Management Services Ltd)
@All, Court of Appeal is in order as the case was a purely ” master servant service contract – an employer have the right to terminate a contract of employment whether good, bad and whatsoever reason(s) adduced as well as guided by the terms of the contract. The only relief an employee can get in this kind service is mere compensation as stated in the contract. An employee can only be reinstated if the contract is bonded by a statute (statutory flavour). For example an employee of the University of Lagos can be reinstated if evidenced that he has been dismissed arbitrarily
Elisha Ndubueze Nwaogwugwu (Head of Training at Workmanship & Tech. Training Center under Rivers State Sustainable Dev. Agency RSSDA)
To uphold an error is a bad precedent. The labour law did not make provision for dismissal of an employee. Issues concerning dismissal are found in the staff hand book and employer contract. Dismissal is usually hinged on terminal offences like stealing, damage, fighting, disobedience, absenteeism, dereliction of duty, abandonment of duty, sleeping on duty etc. When a staff is dismissed from services he loses every entitlement including gratuity and any payment in lieu of notice. The labour law makes provision for termination of appointment by the master or employer when the services of the employee is not required. You don’t have to give a reason for your action but you are obligated to pay the staff payment in lieu of notice or service him one month paid notice. More importantly the staff is entitled to all his benefits – accrued leave, leave pay, gratuity, pension, salary up to day etc. Any court who upholds a case of dismissal from service claiming that the employer is right is not informed about labour issues and labour law as it applies in Nigeria. The court should have probed into the reason for the dismissal, examined the offence to determine if it is a valid ground for dismissal. May be the banker did not present his matter well. If he was well advised he should concerned himself with the issue of wrongful dismissal and prayed for termination or reinstatement instead to enable him receive his terminal pay. Maybe all the facts are not too clear to us here.
Tunde Adebayo (Human Resources)
I hope summary dismissal is not used loosely here to indicate termination of appointment. In the case of summary dismissal, the employer should be ready to proffer reasons when challenged, especially in court. I suspect the legal case was not properly presented or the claim was not wrongful dismissal, as would be expected. I suspect this matter is still very open. While an employer can terminate employee’s appointment without necessarily adducing a reason, summary dismissal almost always have a “good reason” bothering gross misconduct (as defined in the terms and conditions of service) to sail through.
Bolorunduro Mowaiye (ACIPM)
I agree with Tunde, however the reason given by employer for summary dismissal might not be good reason but enough reason to defend their action in line with the organization Terms and Conditions of Service.
Adedapo Adedoyin (Experienced HR Professional and Management Consultant . ACIPMN)
The labour law supercedes any contractual agreement. The grounds for dismissal must be formally established and stated in the dismissal letter, with reference to any agreement stating that it cannot be challenged
Foluso Ayodeji WILSON. (JP)(HR/Admin. Manager at Popham Walter Odusote Limited, Lagos).
Professionally and by legal implication hire and fire is of the employer. We should also remember that a worker also have the right to withdrawal his/her service from an employer with or without reason. Lots of employees drop resignation letters without following due process as in their contract and nobody is making noise. All we hear is illegal or wrongful termination without due process. The employee in question could have a base for appeal if reasons have been given or can be deduced from his termination letter to arrive at wrongful dismissal. We can all remember the case of Mr. Longe the former MD of First Bank Plc. At the Supreme Court the decision of the lower court was put aside and Longe was reinstated as the MD and all arrears of salary paid to him. First bank later followed due process and disengaged him. Once due process is followed there will be no case. Lesson learnt – Termination should follow due process and done seamlessly.
Galbina Igbedion (Experienced Admin/HR Executive)
Thank you Celestina for sharing. I agree with Tunde on this. An employer is obligated by the law to give reason when summarily dismissing an employee. i think the appellant Mr. S. Anaja should be filing an action against his employers based on the Summary dismissal without cause. This can then be taken further when his employers appear before the court. Also cases like these are better taken to the Nigeria Industrial Court where Judges are abreast with Labour Laws.
Celestina Okere (ACIPM) @ Mr. Foluso Ayodeji, thank you sir for your contribution. it is indeed educating, i remember the case of the former FBN MD vividly. @ Messrs. Elisha Ndubueze and Tunde Adebayo, that was a very good submission. i am glad we are learining! @ Mr. Olawale Odunlami, if a good lawyer that is knowledgeable in labour law looks into the case, he may pick the gaps and be able to present the case better. @ Mr. Olawale Ajayi – lol! of course employers will love this case. @ Adedapo Adedoyin – Dismissal letter does not need to state or include an agreement that the employee will not challenge his manner of disengagement, the decision to challenge it or not is left to the person. Thank you all because I am learning new thoughts
Oluwafemi Biobaku (Human Resource Business Professional)
@Celestine, I completely disagree with your comment – “This is good law because the agreement is not made between the employer and his employee and the law is that, in contract, a non party cannot enforce it, even if it was made for his benefit.” My understanding of Collective Agreements according to National Industrial Court of Nigeria is Law are binding on Employees and Employers according to the agreed conditions of employment and service between both bodies Employer Associations and Employee Associations. What we all should take note in the dismissal of the appeal is that – “This document did not regulate the relationship between the appellant and the respondent and none of them can sue on it here. Therefore, the call by the appellant for this court to look at the document and make pronouncements on it concerning summary dismissal has no legal basis.” @Samuel Omoikhunu, I feel you and I support your suggestion. Collective Agreements is subject to periodic review and so, taking the case further to Supreme court might lead to close of a loose end. (A properly agreed conditions of employment where modes of separation can be detailed – Dismissal, Resignation etc)
Thank you @ Oluwafemi for your contribution, yes we all agreed that it is a good law because collective Agreement does not form part of the contract of employment and since it is a non party, it cannot enforce it. My advice to her was based on the fact that the issue may not be on “collective agreement” remember problems that may arise from either termination or dismissal of an employee may be based on different issues and not only collective agreement. This particular judgment was delivered based on the issue being contested (….collective agreement..), and another lawyer who brings a case of wrongful dismissal based on the stipulations of a particular company’s staff handbook can make a good case out of this because the “contentious issue” there may not be on CA, e.g it may be on the applicable punishment for the said offense. That was what i meant but all the same, I learnt from your submission and i am very grateful. Thank you once again!
MY POSITION/ADVICE
From the foregoing, two things could be observed from the case: either some of the facts of the case were not mentioned here, or the term dismissal was used wrongly to mean termination.
HR professionals are very careful with summary dismissal so we rarely employ it; this is because the dismissed staff forfeits ALL entitlements, so for an employee to be summarily dismissed, a strong misconduct must have committed. Whereas, for termination of employment any ‘flimsy’ reason may be adduced.
This said, I will refer us to my earlier publication on employment relationship where this was thoroughly addressed. In employment relationship either party has the right to end the relationship whenever the need arises; When that happens to employee, little or nothing could be done within Nigeria context, except where there is a clear case of victimization and there is a very strong structure in the company. But if the decision, is the company’s, then hope for any redress is almost impossible (within Nigerian context) because, the company will always justify their action, same way employee need not give any reason for resignation, all he needs do is to follow the due process of resignation (which many still violate).
Always remember “In learning you will teach, and in teaching you will learn”.
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