- Do employers have the right to terminate the employment of their employees due to “Frustration?
- Can employers terminate the employment of women on maternity?
- What remedies are available to employees for unjust termination of appointment?
- What is the legal procedure for dismissal or termination of employment in Nigeria?
Do employers have the right to terminate the employment of their employees due to “FRUSTRATION?”
The legal doctrine of frustration makes provision for the discharge of a contract where, subsequent to its formation, a change of circumstances occurs without default of either party as to make it legally, physically, or commercially impossible to fulfil the contract.
The Supreme Court of Nigeria has over the years, reiterated the common law principle that in private employment contracts, an employer has the right to hire and fire an employee, and need not give any reason whatsoever to justify such termination. However, in recent times, the National Industrial Court has changed this trajectory, upholding the principles of international labour standards and international best practices. An employer must now give a justifiable reason that is connected with the performance of the employee’s work before termination of employment. EBERE ONYEKACHI ALOYSIUS V DIAMOND BANK PLC.
Where the termination is for business-related reasons, such termination may be treated as redundancy. The Labour Act defines the term “redundancy” as “an involuntary and permanent loss of employment caused by an excess of manpower”. This is much likened to the situation the country encountered during the period of COVID-19. Typically, in the event of a redundancy, a Worker is entitled to the following payments at the termination of his/her employment:
- Agreed redundancy or severance payment.
- Salary in lieu of contractual notice (if the company elects not to give the contractual notice).
- Accrued salary up until the effective termination date.
- Monetary value of any accrued but unutilized annual leave entitlement as at the effective termination date.
- Any accrued but unpaid incentives awards or bonuses (if applicable).
- Any other payments due to any of the employees, under any of the company’s employment and operational policies such as redundancy or gratuity payments; and
- Reimbursement of any out-of-pocket expense incurred by any employee in connection with the performance of any of his/her duties prior to the effective termination date.
However, there is no corresponding statutory obligation for Non-Workers in relation to the computation of redundancy payments, and whether they would be entitled to receive any redundancy payments is subject to the terms of their respective contracts of employment. Non-Workers are, however, entitled to the payments listed in the 1st and 7th bullet points above.
This, therefore, means that an employer may at any time during redundancy, terminate the employment of an employee, provided the process is done according to law or subject to the employment contract.
Can employers terminate the employment of women on maternity?
A pregnant female employee, upon presentation of a Medical Certificate indicating her Expected date of Delivery (EDD), is entitled to maternity leave of at least six weeks before the EDD and six weeks after the delivery of the child. She is also entitled to 50% of the wages she would have earned, if she had not been absent from the employment by reason of her carrying and delivering a child, provided she has been in employment for a period of six months or more.
Section 54(4) provides that where, however, for medical reasons, she exceeds the period allowed, her employment cannot be terminated during that period and/or for that reason, if she produces a medical certificate from a registered medical practitioner informing the employer of her medical condition. While she nurses her child in employment, she is entitled to half an hour, twice daily for the care of her child.
What remedies are available to employees for unjust termination of appointment?
If an employer terminates an employee’s contract of employment without following the procedure laid out in the contract, the employee could institute an action for wrongful termination at the National Industrial Court (NICN). If the employee is successful, the (NICN) has been known to award significant damages to such an employee, and in some cases has ordered the employer to reinstate the appointment of the affected employee.
What is the legal procedure for dismissal or termination of employment in Nigeria?
If the dismissal is not for cause, it would be termed a termination and an employer is required to comply with the terms of the contract including the notice requirements under the contract.
Where the dismissal is for a cause such as misconduct, then prior to dismissing the employee, the employer must have offered the employee an opportunity to defend himself/herself. If a disciplinary tribunal is constituted, the tribunal must be independent and impartial, and must comply with the rules of natural justice and the principles of fair hearing.
Where the allegations are of a criminal nature, the same burden of proof applies as in criminal cases (i.e., the allegation must be proved beyond a reasonable doubt).