When is termination/dismissal said to be
wrongful?
You may sue and demand to enforce your rights if your employment
contract is wrongfully terminated. Wrongful termination is when any
of the following occurs:
- Your former employer did not follow the terms of the contract
in terminating it or dismissing you. For instance, if the contract
specified that either party can only terminate by giving the other
30 days’ notice or one month’s salary in lieu of notice, it would
be wrongful to terminate the contract forthwith and not pay you
anything in lieu. Also, if your employment contract provides for a
disciplinary procedure to be followed before you can be dismissed
(say for gross misconduct) and the procedure was not followed or
your act/omission was wrongly categorized, your dismissal would be
wrongful.
- Your appointment was terminated ‘in accordance’ with the terms
of contract but the reason for the termination is unlawful or
unjustifiable. For instance, where termination is based on
discrimination or sexual harassment, it will qualify as wrongful
termination. It does not matter that your employer (like most
companies in Nigeria) does not have a policy against workplace
discrimination or sexual harassment. These are matters of law and
public policy that are implied into every employment contract.
- You actually did resign ‘voluntarily’ but under conditions that
left you with no other choice. For instance, your former employer
frustrated you and deliberately made it practically impossible for
you to continue with the job. The technical term for this is
“constructive dismissal”, and it also qualifies as wrongful
termination.
- Your position had been rendered redundant but your former
employer played smart and clothed it as simple termination (like
merely said your ‘services no longer required’) in order to save
itself the cost of paying you redundancy or other benefits.
While it is true that no employer should feel compelled to
retain an employee whose services are no longer required or who is
no longer fit to remain in the job, if your appointment must be
terminated, it should be with the dignity and respect deserving of
your person as an employee, and all your entitlements fully
paid.
When to sue
If you are aggrieved about the manner that your appointment has
been terminated, you need to move fast in getting a redress. Sue as
soon as it is reasonably clear to you that your grievance cannot be
amicably resolved. By law, you must sue within 6 years of the
termination otherwise your claim will become stale and
unenforceable. The courts are strict with this timeframe and would
hardly entertain any excuse for delay in suing; not even where the
delay was because you were trying to settle amicably with your
former employer.
If you were working in the civil or public service, the need to
act fast is even more urgent. This is because the timeframe allowed
to sue public officers/offices is just 3 months! Although, there
are legal arguments (and authorities) that this principle does not
apply to breaches of contract, or claims for work and labour done,
why delay and get your case entangled in any such legal
haggles!
Where to sue
The National Industrial Court is your go-to court for labour
disputes. The court only handles labour disputes hence the Judges
are more able to quickly settle the cases before them. Let me
quickly add that you should always first consider settling your
case amicably (out of court) before suing. At any rate, Alternative
Dispute Resolution (ADR) options are preferred to litigation in the
resolution of disputes such as employment disputes. ADR options
include arbitration, mediation, conciliation, etc. These options
better protect confidences, they are cheaper (well, arguably) and
faster too.
What facts to establish
It is not enough to say your employment is wrongly terminated.
You have to explain how you came about that conclusion. It is
helpful if you tell your story in a logical and compelling manner.
You will therefore want to capture the following facts:
- That you were employed by the defendant (your former employer)
– state date and the designation in which you were employed; - The terms and conditions of the appointment including duration
and termination – emphasize the procedure for termination;
- State who had the power, under your employment contract, to
terminate or dismiss you;
- State any special circumstances that are needed to prove your
case – for instance, if you are basing your claim for wrongful
termination on workplace sexual harassment, discrimination or
redundancy, state clearly the circumstances that led you to believe
the facts; - State the circumstances under which your appointment was in
fact terminated – for instance, that you had not been given any
notice (or payment in lieu), fair hearing etc - State the pain and trouble that you have suffered on account of
the wrongful termination – while this is not very necessary
sometimes such sentiments prove helpful to your cause.
- Itemize your demands in an orderly manner and with explanations
where necessary.
Help the court to help you; explain yourself!
What documents to rely on
More often than not, your employment ‘contract’ is not just the
‘Offer Letter’. Other terms of the contract are contained in
documents like the ‘Staff Handbook’, collective agreements (common
in unionized industries like Maritime or Aviation), etc. It’s
important to place before the court all documents necessary to
paint the full picture. These include the following:
- Letter of Offer/Contract of Employment
- Letters of promotion
- Letters of commendation or awards
- Employee Handbook/Expatriate Policy,
- The letter of termination or dismissal,
- relevant Collective Agreements,
- Circulars, internal memos, notices, and
- other workplace documents, like official e-mails, etc that are
necessary to establish your case.
These documents, together with your oral testimony (and that of
any other witness) are what the court will use in deciding your
fate.
What to ask for
This is the interesting part. Nearly all claims in court about
wrongful termination are about money! You are most likely simply
asking that you should be paid some money as terminal benefits. Two
quick clarifications:
- payment of terminal benefits is not automatic and the payment
(trust me) is not a windfall. What you will be paid will depend,
largely, on what was previously agreed upon between you and your
employer. Sometimes, Lawyers get overzealous and make bold baseless
assurances to clients on what they can obtain in court. But the
court is not Santa Claus and would not award you damages just for
asking. You will have to earn it. Admitted, sometimes you would
rather err on the side of caution and ask for more rather than
less, but why pad your claims and end up appearing like a gold
digger before the Judge? It is best to be clear-headed about your
claims and save everybody’s time.
In some cases, (like terminations based on workplace
discrimination, sexual harassment, redundancy, etc) the Judge would
likely award heavy penalty against your former employer as a
deterrent to other employers and as compensation deserving of the
manner of your termination. What is “heavy penalty” (Lawyers call
it “punitive damages”) will ultimately depend on the facts of each
case, but our Judges here are rather conservative on these things,
so don’t get your hopes too high.
- Suing for wrongful termination is not (and should not) always
be about money. There are cases (like a dismissal) in which it is
more important for the aggrieved employee to ‘clear his name’ and
set the records straight (or just to prove a point). Even where you
are really pressed for the money, you should not overlook this
aspect of your case. Interestingly, until you convince the Judge
that indeed your dismissal/termination was wrongful, you are likely
not getting paid any damages. Don’t allow money get in the
way.
How do you determine your rightful entitlements? Look at
your contract and see for yourself what it says you will be paid in
case you are asked to leave. For instance, are there provisions in
the contract that you will be paid a salary in lieu of notice? Also
check the Staff Handbook which may contain provisions on payment of
gratuity, redundancy, etc. In summary, your list of claims could
run like this:
- payment in lieu of notice
- outstanding salaries (if you were owed any prior to the
termination)
- gratuity
- redundancy (if your case is deserving of it)
- other accrued benefits (like leave allowances, etc) that are
outstanding.
It is important to be sure that you are entitled to these
benefits before you make your claim for them. Don’t get greedy and
start making up claims from the blues. Also ensure that what you
are claiming is actually outstanding. Do not embarrass your Lawyer
by making him/her claim for money that is already paid to you.
Finally, check to ensure that your pension, tax, NSITF, etc.
deductions are also fully remitted or paid. Your lawyer will help
you in computing the claims if your termination is based on special
circumstances and you would like punitive damages awarded in your
favour against your former employer.
What not to ask for
Keep your case tidy. Don’t spoil it with spurious demands. Some
demands are not to be made because they are simply not practicable.
Let’s briefly highlight some:
- Don’t ask for money for ‘injured feelings and loss of
reputation’. Don’t get your claim for wrongful termination mixed up
with claims about defamation. You can actually claim for both but
not in one breathe (and also not in the same court).
- Don’t ask to be reinstated – unless your employer is a
government agency, nobody has legal powers to foist you on your
unwilling employer. Termination of ordinary employment contracts is
never “null and void, unlawful or unconstitutional”. The
termination, at best, can only be wrongful but not invalid. Either
party is free to terminate at any time and for any or no reason.
All that is required is fairness – that the terms of the contract
are followed and within the bounds of the law.
- Don’t ask for pre-judgment interest on the monies that you are
claiming – unless it had already been agreed upon between you and
your former employer. Interest, if any, on any award that the court
will grant you, will start to run from the date of the judgment,
and not from the date that the money became due.
PS: The language of this article is
deliberately simple and devoid of legal niceties because it is
intended for non-lawyers. It is however, not intended to be a
substitute for legal advice. You will certainly need a Lawyer to,
among other things, plead your case in court. Finally, going to
court should be a last option. Employment disputes are best
resolved amicably; unless of course you are left with no other
option than to sue.
When is termination/dismissal said to be
wrongful?
You may sue and demand to enforce your rights if your employment
contract is wrongfully terminated. Wrongful termination is when any
of the following occurs:
- Your former employer did not follow the terms of the contract
in terminating it or dismissing you. For instance, if the contract
specified that either party can only terminate by giving the other
30 days’ notice or one month’s salary in lieu of notice, it would
be wrongful to terminate the contract forthwith and not pay you
anything in lieu. Also, if your employment contract provides for a
disciplinary procedure to be followed before you can be dismissed
(say for gross misconduct) and the procedure was not followed or
your act/omission was wrongly categorized, your dismissal would be
wrongful.
- Your appointment was terminated ‘in accordance’ with the terms
of contract but the reason for the termination is unlawful or
unjustifiable. For instance, where termination is based on
discrimination or sexual harassment, it will qualify as wrongful
termination. It does not matter that your employer (like most
companies in Nigeria) does not have a policy against workplace
discrimination or sexual harassment. These are matters of law and
public policy that are implied into every employment contract.
- You actually did resign ‘voluntarily’ but under conditions that
left you with no other choice. For instance, your former employer
frustrated you and deliberately made it practically impossible for
you to continue with the job. The technical term for this is
“constructive dismissal”, and it also qualifies as wrongful
termination.
- Your position had been rendered redundant but your former
employer played smart and clothed it as simple termination (like
merely said your ‘services no longer required’) in order to save
itself the cost of paying you redundancy or other benefits.
While it is true that no employer should feel compelled to
retain an employee whose services are no longer required or who is
no longer fit to remain in the job, if your appointment must be
terminated, it should be with the dignity and respect deserving of
your person as an employee, and all your entitlements fully
paid.
When to sue
If you are aggrieved about the manner that your appointment has
been terminated, you need to move fast in getting a redress. Sue as
soon as it is reasonably clear to you that your grievance cannot be
amicably resolved. By law, you must sue within 6 years of the
termination otherwise your claim will become stale and
unenforceable. The courts are strict with this timeframe and would
hardly entertain any excuse for delay in suing; not even where the
delay was because you were trying to settle amicably with your
former employer.
If you were working in the civil or public service, the need to
act fast is even more urgent. This is because the timeframe allowed
to sue public officers/offices is just 3 months! Although, there
are legal arguments (and authorities) that this principle does not
apply to breaches of contract, or claims for work and labour done,
why delay and get your case entangled in any such legal
haggles!
Where to sue
The National Industrial Court is your go-to court for labour
disputes. The court only handles labour disputes hence the Judges
are more able to quickly settle the cases before them. Let me
quickly add that you should always first consider settling your
case amicably (out of court) before suing. At any rate, Alternative
Dispute Resolution (ADR) options are preferred to litigation in the
resolution of disputes such as employment disputes. ADR options
include arbitration, mediation, conciliation, etc. These options
better protect confidences, they are cheaper (well, arguably) and
faster too.
What facts to establish
It is not enough to say your employment is wrongly terminated.
You have to explain how you came about that conclusion. It is
helpful if you tell your story in a logical and compelling manner.
You will therefore want to capture the following facts:
- That you were employed by the defendant (your former employer)
– state date and the designation in which you were employed; - The terms and conditions of the appointment including duration
and termination – emphasize the procedure for termination;
- State who had the power, under your employment contract, to
terminate or dismiss you;
- State any special circumstances that are needed to prove your
case – for instance, if you are basing your claim for wrongful
termination on workplace sexual harassment, discrimination or
redundancy, state clearly the circumstances that led you to believe
the facts; - State the circumstances under which your appointment was in
fact terminated – for instance, that you had not been given any
notice (or payment in lieu), fair hearing etc - State the pain and trouble that you have suffered on account of
the wrongful termination – while this is not very necessary
sometimes such sentiments prove helpful to your cause.
- Itemize your demands in an orderly manner and with explanations
where necessary.
Help the court to help you; explain yourself!
What documents to rely on
More often than not, your employment ‘contract’ is not just the
‘Offer Letter’. Other terms of the contract are contained in
documents like the ‘Staff Handbook’, collective agreements (common
in unionized industries like Maritime or Aviation), etc. It’s
important to place before the court all documents necessary to
paint the full picture. These include the following:
- Letter of Offer/Contract of Employment
- Letters of promotion
- Letters of commendation or awards
- Employee Handbook/Expatriate Policy,
- The letter of termination or dismissal,
- relevant Collective Agreements,
- Circulars, internal memos, notices, and
- other workplace documents, like official e-mails, etc that are
necessary to establish your case.
These documents, together with your oral testimony (and that of
any other witness) are what the court will use in deciding your
fate.
What to ask for
This is the interesting part. Nearly all claims in court about
wrongful termination are about money! You are most likely simply
asking that you should be paid some money as terminal benefits. Two
quick clarifications:
- payment of terminal benefits is not automatic and the payment
(trust me) is not a windfall. What you will be paid will depend,
largely, on what was previously agreed upon between you and your
employer. Sometimes, Lawyers get overzealous and make bold baseless
assurances to clients on what they can obtain in court. But the
court is not Santa Claus and would not award you damages just for
asking. You will have to earn it. Admitted, sometimes you would
rather err on the side of caution and ask for more rather than
less, but why pad your claims and end up appearing like a gold
digger before the Judge? It is best to be clear-headed about your
claims and save everybody’s time.
In some cases, (like terminations based on workplace
discrimination, sexual harassment, redundancy, etc) the Judge would
likely award heavy penalty against your former employer as a
deterrent to other employers and as compensation deserving of the
manner of your termination. What is “heavy penalty” (Lawyers call
it “punitive damages”) will ultimately depend on the facts of each
case, but our Judges here are rather conservative on these things,
so don’t get your hopes too high.
- Suing for wrongful termination is not (and should not) always
be about money. There are cases (like a dismissal) in which it is
more important for the aggrieved employee to ‘clear his name’ and
set the records straight (or just to prove a point). Even where you
are really pressed for the money, you should not overlook this
aspect of your case. Interestingly, until you convince the Judge
that indeed your dismissal/termination was wrongful, you are likely
not getting paid any damages. Don’t allow money get in the
way.
How do you determine your rightful entitlements? Look at
your contract and see for yourself what it says you will be paid in
case you are asked to leave. For instance, are there provisions in
the contract that you will be paid a salary in lieu of notice? Also
check the Staff Handbook which may contain provisions on payment of
gratuity, redundancy, etc. In summary, your list of claims could
run like this:
- payment in lieu of notice
- outstanding salaries (if you were owed any prior to the
termination)
- gratuity
- redundancy (if your case is deserving of it)
- other accrued benefits (like leave allowances, etc) that are
outstanding.
It is important to be sure that you are entitled to these
benefits before you make your claim for them. Don’t get greedy and
start making up claims from the blues. Also ensure that what you
are claiming is actually outstanding. Do not embarrass your Lawyer
by making him/her claim for money that is already paid to you.
Finally, check to ensure that your pension, tax, NSITF, etc.
deductions are also fully remitted or paid. Your lawyer will help
you in computing the claims if your termination is based on special
circumstances and you would like punitive damages awarded in your
favour against your former employer.
What not to ask for
Keep your case tidy. Don’t spoil it with spurious demands. Some
demands are not to be made because they are simply not practicable.
Let’s briefly highlight some:
- Don’t ask for money for ‘injured feelings and loss of
reputation’. Don’t get your claim for wrongful termination mixed up
with claims about defamation. You can actually claim for both but
not in one breathe (and also not in the same court).
- Don’t ask to be reinstated – unless your employer is a
government agency, nobody has legal powers to foist you on your
unwilling employer. Termination of ordinary employment contracts is
never “null and void, unlawful or unconstitutional”. The
termination, at best, can only be wrongful but not invalid. Either
party is free to terminate at any time and for any or no reason.
All that is required is fairness – that the terms of the contract
are followed and within the bounds of the law.
- Don’t ask for pre-judgment interest on the monies that you are
claiming – unless it had already been agreed upon between you and
your former employer. Interest, if any, on any award that the court
will grant you, will start to run from the date of the judgment,
and not from the date that the money became due.
PS: The language of this article is
deliberately simple and devoid of legal niceties because it is
intended for non-lawyers. It is however, not intended to be a
substitute for legal advice. You will certainly need a Lawyer to,
among other things, plead your case in court. Finally, going to
court should be a last option. Employment disputes are best
resolved amicably; unless of course you are left with no other
option than to sue.