Written by Douglas Osikeimia.
The making and breaking of relationships are events that make up human interactions; as such when the employee in a contractual relationship desires to bring to an end the contractual relationship that exists between it and any of its employees, what is the proper procedure to take?
A dismissal is an official notice of discharge from employment or service. The Supreme Court explained that the ‘termination of appointment is intended always to put an end to any job or assignment one is holding. The issue of whether the person whose service is being terminated accepts it or not does not arise”
There are well recognized grounds on which an employer may dismiss an employee summarily, these include;
c)Disobedience of lawful order
Whether the conduct in question is serious enough to warrant summary dismissal is a question of facts in each case.
A contract of employment is what usually gives birth to an employee/employer relationship. An employer is at liberty to discipline and dismiss his employee as he sees fit, however the contract of employment which forged the contractual relationship, the rules and regulations governing staffs and the laws of Nigeria with respect to employee and employer relationship would most times be fallen back on when determining the appropriateness of the dismissal of an employee, as such employers have the burden on them to ensure that the procedure for dismissal is correct enough not to generate litigation and contests .
Note that a master can terminate the employment of his servant at any time and for any reason or for no reason at all, provided that the termination is in accordance with the terms of their contract. Where the employer gives reasons for the termination, the onus is on the employer to establish that cause of reason: Professor Dupe Olatunbosun v. Nigerian institute of social and economic research council (1988) 1 NSCC P.1025
NITEL Plc v. Akwa (2006) 2NWLR (PT.694)391 CA
The general rule which the courts or tribunal have over the years established in relation to dismissal or terminations of contract of employment are:
An employer is entitled to dismiss an employee for any reason or for no reason at all; the only issue involved being whether or not the employee is entitled to a certain period of notice or whether or not the employee’s conduct is such as to warrant instant (summary) dismissal without notice.
The Labour Act requires that within three months of the engagement of an employee, an employer must give to the employee a written contract of employment which contract must specify amongst other things: a description of the parties to the contract of employment , the nature of the service or services to be rendered under the contract of employment , the tenure of the contract including its probation period , the remuneration which must be paid in the legal tender of the country where the contract is entered into, the hours of work, mandatory holiday with paid leave, rules with regard to periods of incapacity to work due to sickness, or injury , maternity leave, the appropriate period of notice to be served before the contract can be terminated, possible grounds for dismissal of the employee without notice, etc.
If the contract of employment therefore states the period of notice the employee is entitled to, then at least that period must be given, if the contract is silent on the point, then a reasonable notice must be given and this would usually depend on the position held by the employee, the length of service and the circumstances of the case. Akumichiel v. Benue Cement Co. Lt d. (1997)1nwlr (pt. 484) 695 CA
Furthermore, the procedure for dismissal of any employee would depend on the type of employment he or she holds i.e. Statutory employment: this is an employment provided for in a statute , the employee here has legal status, unlike the employer and employee relationship, this employee if he or she must be dismissed must be dismissed according to the provisions contained in the statute and any dismissal contrary to the laid down procedure is a nullity.
Employer and employee relationship: this relationship arises from a contract between parties, although there can be an implied contractual relationship from the actions of parties, and therefore dismissal of an employee must or should be covered in the contract for employment, an employer here owes the employee no obligation to explain his dismissal, however dismissal must follow procedure in the contract of employment, a breach of which the employee may bring an action for damages for breach of contract.
In conclusion, the procedure for dismissal of an employee would depend largely on the flavor of the employment in each case, bringing into consideration the statute creating such employment if any or the contract of employment and the circumstances surrounding dismissal.
About the Author: Osikeimia Douglas is a legal Practitioner and is currently a partner at Steve Ibitola and Co located at 11 Ohaeto street Dline, she loves writing and reading. Email: Osikeimiadouglas@gmail.com