Update Note:
This article was originally published in 2024. Nigerian employment law continues to develop through legislation and decisions of the National Industrial Court and appellate courts. This article has therefore been reviewed and refined to provide a clearer explanation of wrongful termination, unlawful dismissal, employment with statutory flavour, constructive dismissal, and the remedies that may be available to an affected employee.
What Is Unlawful Termination of Employment in Nigeria?
In Nigeria, an employment relationship is governed by the applicable law, the terms of the employment contract, collective agreements where applicable, and, in some cases, regulations governing the particular employment.
An employer may have the right to terminate an employee’s employment. However, the manner in which the termination is carried out is important. A termination that does not comply with the applicable contract, statute, regulations, or legally required procedure may give rise to a claim for wrongful termination or, depending on the nature of the employment, a declaration that the termination or dismissal is unlawful and ineffective.
It is also important to distinguish between wrongful termination, unlawful dismissal, and constructive dismissal. The legal consequences and remedies available may differ significantly.
When Can a Termination Be Wrongful or Unlawful?
1. Failure to Give the Required Notice or Payment in Lieu of Notice
An employment contract may specify the notice that either party must give before terminating the employment. The applicable provisions of the Labour Act may also apply to employees who fall within its scope.
Where an employer terminates an employment relationship without giving the required notice, and without making the required payment in lieu of notice where applicable, the termination may amount to a breach of the employment contract or the applicable law.
However, in an ordinary private employment relationship, the fact that a termination was carried out wrongfully does not necessarily mean that the employment relationship continues. The usual question is whether the employer complied with the agreed terms governing termination and, where there has been a breach, what remedy the employee is entitled to receive.
2. Breach of the Employment Contract
The terms and conditions of an employment contract are important in determining whether a termination was properly carried out.
For example, a termination may be challenged where the employer fails to comply with an agreed disciplinary procedure, notice requirement, contractual condition, or other express term governing the employment relationship.
In an ordinary master-and-servant employment relationship, a breach of the contractual procedure will generally make the termination wrongful. The remedy available will depend on the facts of the case and the terms of the employment contract.
3. Failure to Follow the Procedure Required for Employment with Statutory Flavour
Some employments are described as having statutory flavour. This generally arises where the employment is protected by a statute or regulations made pursuant to a statute and the procedure for appointment, discipline, termination, or dismissal is specifically prescribed.
In such cases, the employer must comply strictly with the procedure prescribed by the relevant law or regulations.
Where an employee’s employment has statutory flavour and the employer fails to comply with the mandatory procedure governing termination or dismissal, the court may declare the action unlawful, null, and void, depending on the circumstances and the applicable law.
This is different from an ordinary private employment relationship governed primarily by contract. The nature of the employment must therefore be carefully examined before determining the appropriate remedy.
4. Discriminatory or Unfair Treatment
An employee who believes that a termination was connected with discriminatory treatment, victimisation, or another prohibited ground may have additional legal issues to consider.
The legal position will depend on the particular facts, the nature of the employer and employment relationship, applicable constitutional provisions, employment legislation, contractual terms, and other labour protections that may apply to the case.
For this reason, a termination should not be assessed solely by looking at the termination letter. The events leading to the termination and the manner in which the employer treated the employee may also be relevant.
5. Constructive Dismissal
Constructive dismissal may arise where an employee resigns because the employer’s conduct amounts to a serious or fundamental breach of the employment relationship.
The employee may, for example, allege that the employer’s conduct made continued employment impossible or unreasonable. Depending on the facts, allegations of persistent non-payment of salary, unilateral changes to fundamental employment terms, serious humiliation, victimisation, or other conduct going to the root of the employment relationship may become relevant.
Constructive dismissal is fact-sensitive. An employee who resigns is not automatically regarded as having been constructively dismissed merely because the working relationship was difficult or unpleasant. The conduct complained of and its legal effect must be carefully examined.
Wrongful Termination and Dismissal Are Not Always the Same
In everyday language, people often use the words termination and dismissal interchangeably. In employment law, however, the circumstances may be different.
Termination usually refers to bringing an employment relationship to an end in accordance with the applicable contract or law. Dismissal may arise in circumstances involving alleged misconduct or another ground relied upon by the employer.
Whether a particular termination or dismissal was lawful depends on several factors, including:
- the terms of the employment contract;
- the nature of the employment relationship;
- whether the employment has statutory flavour;
- the applicable disciplinary procedure;
- whether the required notice was given or payment in lieu was made where applicable;
- the reason and circumstances surrounding the disengagement; and
- the remedies sought by the employee.
What Can an Employee Do After a Wrongful or Unlawful Termination?
1. Review the Employment Contract and Relevant Documents
The first step is usually to review the employment contract, handbook, conditions of service, termination letter, disciplinary correspondence, and any other relevant documents.
The employee should identify the provisions governing notice, termination, dismissal, disciplinary procedures, salary, benefits, and dispute resolution.
2. Preserve Relevant Records
Employees should preserve relevant evidence, including:
- the employment contract;
- letters of appointment and promotion;
- termination or dismissal letters;
- emails and other workplace communications;
- salary records and payslips;
- documents relating to disciplinary proceedings; and
- any other records relevant to the dispute.
3. Seek Legal Advice and Explore Available Remedies
An employee who believes that their termination or dismissal was wrongful or unlawful may seek legal advice regarding the circumstances of the case and the remedies that may be available.
Depending on the nature of the employment and the facts of the case, possible claims may involve damages, unpaid salary or benefits that had already accrued, payment in lieu of notice, compensation, or other appropriate relief.
Where the employment has statutory flavour and a mandatory statutory procedure was not followed, a declaration that the termination or dismissal is invalid, together with reinstatement or other consequential relief, may be available in appropriate cases.
Employees who are considering legal action may need to bring their claims before the National Industrial Court of Nigeria, which has constitutional jurisdiction over many employment and labour matters.
To learn more about employment rights generally, you may also read our guide on understanding employment laws in Nigeria.
4. Consider Settlement or Alternative Resolution
Not every employment dispute has to proceed to a full trial. Depending on the circumstances, the parties may explore negotiation, mediation, or another lawful method of resolving the dispute.
A settlement may address issues such as outstanding benefits, compensation, notice pay, references, or other terms that the parties are able to agree upon.
How Employers Can Reduce Termination Disputes
Employers can reduce the risk of employment disputes by ensuring that termination and disciplinary decisions are handled carefully and consistently.
Employers should consider the following:
- Follow the employment contract: Comply with the agreed notice periods, termination provisions, and disciplinary procedures.
- Understand the nature of the employment: Determine whether the employment is governed purely by contract or is protected by statute or statutory regulations.
- Keep proper records: Maintain relevant documentation relating to performance, misconduct, disciplinary proceedings, and termination decisions.
- Apply procedures consistently: Inconsistent treatment of employees can increase the risk of disputes.
- Communicate clearly: Important employment decisions should be properly communicated and documented.
- Obtain legal advice where necessary: Complex disciplinary or termination decisions should be reviewed carefully before they are implemented.
What Employees Should Keep in Mind
- Know the terms of your employment: Read your employment contract and applicable workplace policies.
- Do not ignore important communications: Respond appropriately to disciplinary invitations, queries, and other employment correspondence.
- Keep your own records: Preserve documents and communications relevant to your employment.
- Seek advice before taking major steps: Resigning or commencing legal proceedings may have important legal consequences.
- Consider the facts carefully: Not every termination is unlawful, and the remedy available will depend on the particular employment relationship and circumstances.
If you are unsure whether your employment was terminated in accordance with the applicable law and your contract, it may also be helpful to understand the role of lawyers in Nigeria and how they can assist in resolving legal disputes.
Conclusion
Whether a termination of employment is wrongful or unlawful in Nigeria depends on the nature of the employment relationship and the circumstances in which the employment was brought to an end.
In an ordinary employment relationship governed primarily by contract, the central question will often be whether the employer complied with the terms governing termination. Where there is a breach, the termination may be wrongful and the employee may be entitled to appropriate damages or other accrued entitlements.
Where an employment has statutory flavour, the applicable statutory procedure becomes particularly important. Failure to comply with mandatory provisions may have more significant consequences, including a finding that the purported termination or dismissal is unlawful or ineffective.
For both employers and employees, understanding the employment contract, applicable laws, and the facts surrounding a termination is essential before concluding whether a dismissal or termination was lawful.
Legal Disclaimer
This article is provided for general informational purposes only and does not constitute legal advice. Employment disputes depend on their particular facts, the terms of the employment relationship, and the applicable law. For advice regarding a specific termination, dismissal, or employment dispute, please consult a qualified lawyer.
If you found this helpful, please share it on social media — it only takes a click.
Leave a Reply