Dismissal (referred to informally as firing or sacking) is the
termination of employment by an employer against the will of the
employee. Though such a decision can be made by an employer for a
variety of reasons, ranging from an economic downturn like the
economic recession currently being experienced in Nigeria to
performance-related problems. On the part of the employee, being
fired has a strong stigma in many cultures and organizations.
To be dismissed, as opposed to quitting voluntarily (or being
laid off), is often perceived as being the employee’s fault or
under performance. Finding new employment may often be difficult
after being fired, particularly if there is a history of being
fired from previous jobs, if the reason for firing is for some
serious infraction, or the employee did not hold the job very long.
Job seekers will often not mention jobs that they were fired from
on their resumes; accordingly, unexplained gaps in employment are
often regarded as a red flag in a resume by most employers.
An employee whose employment is terminated in ad variance with
the terms of his/her employment is entitled to damages against
his/her employer. The supreme court Per
KARIBI-WHYTE, J.S.C . (Pp. 21-22, para. G
held in Imoloame v. W.A.E.C. (1992) NWLR (Pt.
265)303 thus”It is well settled that in cases of wrongful
dismissal “the measure of damages is prima facie the amount the
plaintiff would have earned had the employment continued according
to contract subject to a deduction in respect of any amount
accruing from any other employment which the plaintiff, in
minimizing damages, either had obtained or should reasonably have
obtained“
Often times due to the fear of being liable to an employee for
damages or other remedies either provided by the law or in the
terms of employment, some employers create an unbearable working
environment to force the employee to resign in order to exonerate
themselves against any liability by an employee. This action by the
employer creating a hostile working environment to force an
employee to resign out of his/her volition is called constructive
dismissal.
By way of definition, constructive dismissal simply means a
Situation where an employer creates such working conditions (or so
changes the terms of employment) that the affected employee has
little or no choice but to resign. In such cases, the employee
retains the right to seek legal compensation as having being
dismissed constructively.
Also, Constructive dismissal occurs where an employee terminates
his employment in response to his employer’s treatment of Him.
Although there has been no actual dismissal, the treatment is
sufficiently bad that the employee is entitled to regard himself
having been dismissed. Examples of constructive dismissal
include:
- reduction in pay or not being paid at all.
- being demoted without good reason.
- allegation of poor performance which are unfounded.
- disciplinary proceedings which are manifestly
unreasonable. - a complete change in the nature of your job.
- harassing or bullying.
- been forced to work in breach of health and safety law.
In order for an employee claiming constructive dismissal to
succeed he/she must prove as enumerated by Lord Denning
in Western Excavating v. Sharp [1978] 1 All ER
713.
- A repudiatory breach on the part of the employer. This may be
an actual or anticipatory breach, but must be sufficiently serious
to justify the employee resigning. - An election by the employee to accept the breach and treat the
contract as at an end. - The employee must resign in response to the breach
- The employee must not delay too long in accepting the breach,
as it is always open to an innocent party to waive the breach and
treat the contract as continuing (subject to any damages claim that
they may have)
A Court handling a matter of constructive dismissal will also
need to satisfy itself that the employee did not delay too long in
resigning. Western Excavating v. Sharp [1978] 1 All ER
713. The facts of the case are thus: An employee (Mr.
Sharp) worked for the company and one of his terms of contract was
that if he worked extra time he could have time off in lieu. He
then went on to take an afternoon off work to partake in a card
game which led to his dismissal. He appealed the dismissal and was
reinstated but with a 5 day pay suspension in its place. Without
these 5 days pay he was in financial difficulty and attempted to
get his employers to pay his accrued holiday pay in advance and
when they refused that he asked for a loan of £40. The welfare
officer explained they couldn’t loan that amount but suggested that
Mr. Sharp should see him again to discuss the details. Mr. Sharp
was not happy with this and so resigned. He then claimed for
constructive unfair dismissal at the tribunal.
When it reached the court of appeal however Lord Denning took a
different approach to the matter and the Court reversed the
decision of the tribunal and held that Mr. Sharp had not been
constructively dismissed at all. Lord Denning went on to state,
“If the employer is guilty of conduct which is a
significant breach going to the root of the contract of employment,
or which shows that the employer no longer intends to be bound by
one or more of the essential terms of the contract, then the
employee is entitled to treat himself as discharged from any
further performance. If he does so, then he terminates the contract
by reason of the employer’s conduct”
While this principle has been enshrined in the labour enactments
of other jurisdictions and thus has a statutory backing, the
principal enactment governing labour related matters in Nigeria i.e
labour Act (CAP L 1 LFN 2004) does not have any statutory backing
regarding constructive dismissal in the Nigerian labour law.
However all hopes are not lost with the creation of the National
Industrial Court under Section 254 A (1)
third Alteration of the 1999 Constitution of the Federal
Republic Of Nigeria (2011 as amended) Which creates the
national industrial Court and vest it with jurisdiction under
section 254 C (1) to entertain labour related matters.
Section 7 of the National Industrial Court Act 2006 provides
that Court shall have and exercise exclusive jurisdiction in civil
cases and matters-
(a) relating to….
(i) labour,
including trade unions and industrial relations; and
(ii) Environment and
conditions of work, health, safety and welfare of labour, and
matters incidental thereto….
Subsection 6 provides thus:
The Court shall, in exercising its jurisdiction or
any of the powers conferred upon it by this Act or any other
enactment or law, have due regard to good or international best
practice in labour or industrial relations and what amounts to good
or international best practice in labour or industrial relations
shall be a question of fact.
This provision is a great relief and of wide scope to enable the
court in the exercise of its duty to apply best international
labour practices in its administration of justice. The court in the
case of Miss Ebere Ukoji V Standard Alliance Life
Assurance Co. Ltd (Suit No: NICN/LA/48/2012) held
thus:
Globally, and in labour/employment law, constructive
dismissal, also referred to as constructive discharge, occurs when
an employee resigns because his/her employer’s behavior has become
intolerable or heinous or made life difficult that the employee has
no choice but to resign. Given that the resignation was not truly
voluntary, it is in effect a termination. In an alternative sense,
constructive dismissal or constructive discharge is a situation
where an employer creates such working conditions (or so changes
the terms of employment) that the affected employee has little or
no choice but to resign. Thus where an employer makes life
extremely difficult for an employee, to attempt to have the
employee resign, rather than outright firing the employee, the
employer is trying to create a constructive discharge. The exact
legal consequences differ from country to country, but generally a
constructive dismissal leads to the employee’s obligations ending
and the employee acquiring the right to seek legal compensation
against the employer. The employee may resign over a single serious
incident or over a pattern of incidents. Generally, the employee
must have resigned soon after the incident. The court held the
conduct of the respondent as amounting to a constructive
dismissal.
At times, an employer may behave badly but his conduct will not
amount to him making your position untenable. For instance,
non-payment of salaries maybe as a result of an ailing economy
which, will not suffice as a good ground at that time. Each case is
however decided based on the facts and circumstances surrounding
it.
Conclusively, the doctrine of constructive dismissal by virtue
of the powers conferred on the National Industrial Court Act can
effectively be applied under the Nigerian legal system, even though
not enshrined in any statute, as was done by the Court in Ebere’s
case (supra).This is a welcome development in the Nigerian Labour
Law jurisprudence.
BY A.I IORTYAVER, LLB (BSU) BL
EMAIL: iortyaveralfred@gmail.com,iortyaver@gadzama.com
MOBILE NO:+2348135621794
Dismissal (referred to informally as firing or sacking) is the
termination of employment by an employer against the will of the
employee. Though such a decision can be made by an employer for a
variety of reasons, ranging from an economic downturn like the
economic recession currently being experienced in Nigeria to
performance-related problems. On the part of the employee, being
fired has a strong stigma in many cultures and organizations.
To be dismissed, as opposed to quitting voluntarily (or being
laid off), is often perceived as being the employee’s fault or
under performance. Finding new employment may often be difficult
after being fired, particularly if there is a history of being
fired from previous jobs, if the reason for firing is for some
serious infraction, or the employee did not hold the job very long.
Job seekers will often not mention jobs that they were fired from
on their resumes; accordingly, unexplained gaps in employment are
often regarded as a red flag in a resume by most employers.
An employee whose employment is terminated in ad variance with
the terms of his/her employment is entitled to damages against
his/her employer. The supreme court Per
KARIBI-WHYTE, J.S.C . (Pp. 21-22, para. G
held in Imoloame v. W.A.E.C. (1992) NWLR (Pt.
265)303 thus”It is well settled that in cases of wrongful
dismissal “the measure of damages is prima facie the amount the
plaintiff would have earned had the employment continued according
to contract subject to a deduction in respect of any amount
accruing from any other employment which the plaintiff, in
minimizing damages, either had obtained or should reasonably have
obtained“
Often times due to the fear of being liable to an employee for
damages or other remedies either provided by the law or in the
terms of employment, some employers create an unbearable working
environment to force the employee to resign in order to exonerate
themselves against any liability by an employee. This action by the
employer creating a hostile working environment to force an
employee to resign out of his/her volition is called constructive
dismissal.
By way of definition, constructive dismissal simply means a
Situation where an employer creates such working conditions (or so
changes the terms of employment) that the affected employee has
little or no choice but to resign. In such cases, the employee
retains the right to seek legal compensation as having being
dismissed constructively.
Also, Constructive dismissal occurs where an employee terminates
his employment in response to his employer’s treatment of Him.
Although there has been no actual dismissal, the treatment is
sufficiently bad that the employee is entitled to regard himself
having been dismissed. Examples of constructive dismissal
include:
- reduction in pay or not being paid at all.
- being demoted without good reason.
- allegation of poor performance which are unfounded.
- disciplinary proceedings which are manifestly
unreasonable. - a complete change in the nature of your job.
- harassing or bullying.
- been forced to work in breach of health and safety law.
In order for an employee claiming constructive dismissal to
succeed he/she must prove as enumerated by Lord Denning
in Western Excavating v. Sharp [1978] 1 All ER
713.
- A repudiatory breach on the part of the employer. This may be
an actual or anticipatory breach, but must be sufficiently serious
to justify the employee resigning. - An election by the employee to accept the breach and treat the
contract as at an end. - The employee must resign in response to the breach
- The employee must not delay too long in accepting the breach,
as it is always open to an innocent party to waive the breach and
treat the contract as continuing (subject to any damages claim that
they may have)
A Court handling a matter of constructive dismissal will also
need to satisfy itself that the employee did not delay too long in
resigning. Western Excavating v. Sharp [1978] 1 All ER
713. The facts of the case are thus: An employee (Mr.
Sharp) worked for the company and one of his terms of contract was
that if he worked extra time he could have time off in lieu. He
then went on to take an afternoon off work to partake in a card
game which led to his dismissal. He appealed the dismissal and was
reinstated but with a 5 day pay suspension in its place. Without
these 5 days pay he was in financial difficulty and attempted to
get his employers to pay his accrued holiday pay in advance and
when they refused that he asked for a loan of £40. The welfare
officer explained they couldn’t loan that amount but suggested that
Mr. Sharp should see him again to discuss the details. Mr. Sharp
was not happy with this and so resigned. He then claimed for
constructive unfair dismissal at the tribunal.
When it reached the court of appeal however Lord Denning took a
different approach to the matter and the Court reversed the
decision of the tribunal and held that Mr. Sharp had not been
constructively dismissed at all. Lord Denning went on to state,
“If the employer is guilty of conduct which is a
significant breach going to the root of the contract of employment,
or which shows that the employer no longer intends to be bound by
one or more of the essential terms of the contract, then the
employee is entitled to treat himself as discharged from any
further performance. If he does so, then he terminates the contract
by reason of the employer’s conduct”
While this principle has been enshrined in the labour enactments
of other jurisdictions and thus has a statutory backing, the
principal enactment governing labour related matters in Nigeria i.e
labour Act (CAP L 1 LFN 2004) does not have any statutory backing
regarding constructive dismissal in the Nigerian labour law.
However all hopes are not lost with the creation of the National
Industrial Court under Section 254 A (1)
third Alteration of the 1999 Constitution of the Federal
Republic Of Nigeria (2011 as amended) Which creates the
national industrial Court and vest it with jurisdiction under
section 254 C (1) to entertain labour related matters.
Section 7 of the National Industrial Court Act 2006 provides
that Court shall have and exercise exclusive jurisdiction in civil
cases and matters-
(a) relating to….
(i) labour,
including trade unions and industrial relations; and
(ii) Environment and
conditions of work, health, safety and welfare of labour, and
matters incidental thereto….
Subsection 6 provides thus:
The Court shall, in exercising its jurisdiction or
any of the powers conferred upon it by this Act or any other
enactment or law, have due regard to good or international best
practice in labour or industrial relations and what amounts to good
or international best practice in labour or industrial relations
shall be a question of fact.
This provision is a great relief and of wide scope to enable the
court in the exercise of its duty to apply best international
labour practices in its administration of justice. The court in the
case of Miss Ebere Ukoji V Standard Alliance Life
Assurance Co. Ltd (Suit No: NICN/LA/48/2012) held
thus:
Globally, and in labour/employment law, constructive
dismissal, also referred to as constructive discharge, occurs when
an employee resigns because his/her employer’s behavior has become
intolerable or heinous or made life difficult that the employee has
no choice but to resign. Given that the resignation was not truly
voluntary, it is in effect a termination. In an alternative sense,
constructive dismissal or constructive discharge is a situation
where an employer creates such working conditions (or so changes
the terms of employment) that the affected employee has little or
no choice but to resign. Thus where an employer makes life
extremely difficult for an employee, to attempt to have the
employee resign, rather than outright firing the employee, the
employer is trying to create a constructive discharge. The exact
legal consequences differ from country to country, but generally a
constructive dismissal leads to the employee’s obligations ending
and the employee acquiring the right to seek legal compensation
against the employer. The employee may resign over a single serious
incident or over a pattern of incidents. Generally, the employee
must have resigned soon after the incident. The court held the
conduct of the respondent as amounting to a constructive
dismissal.
At times, an employer may behave badly but his conduct will not
amount to him making your position untenable. For instance,
non-payment of salaries maybe as a result of an ailing economy
which, will not suffice as a good ground at that time. Each case is
however decided based on the facts and circumstances surrounding
it.
Conclusively, the doctrine of constructive dismissal by virtue
of the powers conferred on the National Industrial Court Act can
effectively be applied under the Nigerian legal system, even though
not enshrined in any statute, as was done by the Court in Ebere’s
case (supra).This is a welcome development in the Nigerian Labour
Law jurisprudence.
BY A.I IORTYAVER, LLB (BSU) BL
EMAIL: iortyaveralfred@gmail.com,iortyaver@gadzama.com
MOBILE NO:+2348135621794
Read more https://nairalaw.com/constructive-dismissal-under-nigerian-labour-law/