The term “ unfair or wrongful termination of employment” connotes the bringing to an end, a contract of employment without recourse to the laid down law, or statutes[ for employment that are clothed with statutory flavour] or without due process of law as stipulated in the terms of engagement, or without outright compliance with the principles of fair hearing as entrenched in the labour laws in Nigeria. Therefore, termination of a contract of employment is said to be wrongful or unfair if there is no adherence to the terms creating the employment or to the laid down laws regulating the conduct of employment in Nigeria.
Where a contract is regulated by statutes, that is to say, that the institution or body, [ employer] in a broader sense, or the appointment itself is a creation of statutes, the law prescribes that the entire contract of employment be executed or carried out in accordance with the tenor of such a statute or law. In this wise, where the law prescribes a certain mode or course of action and in the event that such mode is not resorted to in carrying out or executing the terms of the contract, then it is safe to say that there was a breach of contract of employment.
Over the years, the attitude of employers in their quest to terminate a given contract of employment has either been not to comply with the rules of natural justice in the case of master/ servant relationship or non-adherence to the condition precedent to such a termination which often times have been greeted with a litany of industrial actions. This is not to say that ln contracts tainted with statutory colourations, an employee is precluded from seeking a redress where the employer has denied him/ her fair hearing especially if it touches on the rules of engagement.
The attitude of the Courts in relation to master/ servant relationship is that a master could validly terminate a contract of employment even without expressly offering any reason for it provided that there was full compliance with the principles of fair hearing as stipulated in section 36 (1) of the 1999 Constitution as amended or regard was had to the terms of the contract between the parties. this point was eloquently made in OBAJE V NIGERIAN AIRSPACE MANAGEMENT AGENCY, where Iyizoba JCA made these imperishable words:
“An Employer has the right to discipline its Staff/employee. an employer can also terminate the contract of employment with his employee at any time and for any reason or for no reason at all, provided the terms of the contract of service between them are complied with. see OLANIYAN & 2 ORS ORS V UNIVERSITY OF LAGOS & ANOR [1978] 2 NWLR [PT.9] 599 [9] “
See also Adedeji V Police Service Commission ( 1967) 1 ALL NLR 67, ( 1968) NMLR102. similarly, the motive is irrelevant on the part of an employer who wishes to disengage his employee. see UNION BANK V SALAUDEEN. However, in the event that an employer is intent on terminating a given contract of employment, he must afford the employee an ample opportunity to be heard. This encompasses the issuance of a query, a valid notice of termination, and the right to appear or make written submissions or reply on the alleged conduct, failure of which the court would not hesitate to reaffirm the employees right. in O.A MARTINS V BRAITHWAITE [ INSURANCE BROKERS] & CO. LTD., the defendant company had reserved to themselves the right to terminate the plaintiff’s appointment ” at any time without notice.” the defendant relying on this right, put an end to the Plaintiffs employment without breathing a word to him about it. the Court held thus:
” The reservation of the right to terminate…appointment any time without notice does not mean that he [the worker] is not to be told in clear words that his services are no longer required” see also HEAD OF THE FEDERAL MILITARY GOVERNMENT V PUBLIC SERVICE COMMISSION & ANOR.
It will therefore be seen from the foregoing that an employment may be determined on three principles: firstly, by operation of law; secondly, by the intention of the Parties; thirdly, by the unilateral act of one of the parties. This third mode of determining a contract may be by way of the resignation of appointment, by retirement or by breach. See Nigerian Law labour 4th edition by Akintunde Emiola.
It is imperative to point out that in any of the above modes of termination of a contract of employment, the overriding consideration is the conditions expressly agreed to by the parties or as incorporated in the contract by law or custom. See Emiola supra @ page 137.
It, therefore, seems that there are three conditions precedent which is required for an effective and valid determination of a contract of employment by the act of any of the parties unless the contrary is provided in the contract.
Firstly, the determination must be one or all of the reasons stipulated or implied in the contract. Secondly, proper notice must be given by the party intending to terminate the contract. And thirdly, the agreed or normal method has to be followed in terminating the contract.
It must be emphasized that misconduct, inefficiency and physical incapacity of a party to perform the terms of the contract are some of the reasons for which a contract of employment may be validly determined even where no specific provisions are made expressly to that effect in the contract.in such a given case, the only important condition is that in the process, the employer must comply with the rules of natural justice.
Where a contract of employment is sought to be determined as an outlet for misconduct or as a disciplinary measure, the proper procedure is the one contemplated in the contract. This procedure may take two forms: firstly, the power to terminate the contract must be exercised by the appropriate authority, person or organ in whom the power to do so is vested by the agreement or by written law. Where a wrong person purports to exercise the powers otherwise than those expressly vested, the effect of such exercise is a nullity. Head of Federal Military Government V Kubeinje (1974) 1 ALL N.L.R 269; Sule Katagun V M.E.K Roberts(1967)1 ALL NLR.127 (1967) NMLR 107. Secondly, the proper method must be followed where this is provided for in the agreement. United Calabar co. V E,D Lines Ltd., (1972) 1 ALL NLR(PT.2) 244,(1973) 1 NMLR. Where no method is agreed, then the law requires that a reasonable method should be adopted.
CONCLUSION:
Flowing from above, it could be seen that when a contract of employment is terminated without recourse to the terms of the contract, or a breach in any of the terms, or when a Statute or law establishing the appointment (employment) is flouted, it would be safe to say that the termination of the contract was unlawful or unfair.
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