Originally published on legalnaija.com

There are many instances when employees have had their employments terminated unlawfully by their employers.  Some of these employees never see it coming and become infuriated at the company for a termination they deem unlawful. Others are confused and wondering what to do next and how to secure the next pay check in order to provide for their families and needs. Many however, do not realise that their termination is unlawful and they have a right to sue the employer for a breach of their contract of employment.

Before we go further, allow me explain that in law practice, the words “termination” and “dismissal” in regard to employment contracts are not the same.

Though, “Termination” or “Dismissal” of an employee by the employer translates into bringing the employment to an end. Under a termination of appointment, the employee is enabled to receive the terminal benefits under the contract of employment. The right to terminate is mutual in that either may exercise it. “Dismissal” on the other hand is punitive and depending on the contract of employment very often entails a loss of terminal benefits.

To further explain, most contract agreements contain a clause stating that either parties may terminate an employment if due notice is given or  payment of a month’s salary in lieu of notice. If an employment comes to an end this way, it is a termination. However, to be dismissed usually means that the employee was relieved due to actions bothering on misconduct.

So when can an employment be said to have been terminated unlawfully? 

The Supreme Court held in Eze v. Spring Bank Plc (2011) LPELR-2892, that, to determine whether the dismissal of an employee was correct or wrong, the terms of employment of the aggrieved employee must be examined to see whether the correct procedure was followed. Where there is departure from the prescribed procedure or a violation of the elementary rules of natural justice, then the dismissal is unlawful.

For instance, if the contract of employment provides that either party may terminate the employment upon notice or payment of salary in lieu of notice, any letter of termination served on the employee not in line with the above provision will be unlawful.  Furthermore, assuming an employee was dismissed for gross misconduct without giving the said employee an opportunity to defend the allegations. Such an act will also amount to an unlawful dismissal.

If a party believes they have been terminated or dismissed unlawfully, such party can use the internal organs made available by the company to state a case or redress the issue. However, if that does not yield a solution such aggrieved employer may resort to the court and claim damages against the employer. It is important to note that such a case must be brought before the court within 6 (six) years of the date the employee was let go.

The National Industrial Court is vested with the exclusive jurisdiction of adjudicating over employment and labour matters by virtue of Section 254C of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act 2010. Therefore, all such matters are instituted at the National Industrial Court. The law is now settled that in an award of damages for unlawful dismissal in ordinary master/servant relationship the measure of damages is what the servant would have earned in lieu of notice plus his accrued benefits up to the time of his termination.

The courts usually shy away from ordering a reinstatement of the employee. For it is a principle of law that no employee can be forced on an unwilling employer. This is illustrated in the court’s decision in U.B.N. Ltd. v.Ogboh (1995) 2 NWLR (Pt.380)647 where it was held that the plaintiff in appropriate cases of such unlawful dismissal or wrongful termination of employment is left to his remedy in damages as no servant may generally be imposed by the court on an unwilling master even where the master’s behaviour is wrongful.

Adedunmade Onibokun, Esq.

Adedunmade is the Principal Partner of Adedunmade Onibokun & Co., a corporate commercial law firm located in Lagos, Nigeria. He also publishes the Legalnaija blog, an online platform dedicated to educating Nigerians on their legal rights and obligations. He can be reached via dunmadeo@yahoo.com