The Right Choice Between Voluntary Resignation and Termination of Employment | Kayode Omosehin, Esq.
One of the easiest ways out of any
confusion created by an irreconcilable difference in the course of an
employment relationship is a voluntary resignation by the affected worker.
Unfortunately, lack of knowledge of employee’s rights and employer’s powers has
resulted in several litigious employment disputes that could have been avoided
with minimal costs to both parties. It all depends on making the right decision
with less stress or none at all.
confusion created by an irreconcilable difference in the course of an
employment relationship is a voluntary resignation by the affected worker.
Unfortunately, lack of knowledge of employee’s rights and employer’s powers has
resulted in several litigious employment disputes that could have been avoided
with minimal costs to both parties. It all depends on making the right decision
with less stress or none at all.
Employer’s pressure, following a request or
advice to a worker to resign, is a prominent element in the facts of most
judicial decisions reviewed on the questions of voluntary resignation by an
employee. I have addressed below, in a question and answer manner, some of the
legal issues associated with a letter of termination and voluntary resignation,
whether or not the resignation is based on the employer’s advice to resign:
advice to a worker to resign, is a prominent element in the facts of most
judicial decisions reviewed on the questions of voluntary resignation by an
employee. I have addressed below, in a question and answer manner, some of the
legal issues associated with a letter of termination and voluntary resignation,
whether or not the resignation is based on the employer’s advice to resign:
1.
What is the difference between a termination
letter and an employer’s advice to resign?
What is the difference between a termination
letter and an employer’s advice to resign?
A termination letter of employment is
simply a document by which an employment relationship is determined. It is a
letter which disengages an employee from any further obligations except those
which he is required by agreement to fulfill before exiting the employment.
However, an employer’s advice to resign is merely a verbal or written request
by an employer urging an employee to voluntarily quit his job rather than a
termination of the employment by the employer. An employer’s advice to a worker
to resign is simply a management strategy to ensure that the company’s record
does not reflect that the worker’s employment was terminated by the company
(even though the worker was urged or pressured to resign).
simply a document by which an employment relationship is determined. It is a
letter which disengages an employee from any further obligations except those
which he is required by agreement to fulfill before exiting the employment.
However, an employer’s advice to resign is merely a verbal or written request
by an employer urging an employee to voluntarily quit his job rather than a
termination of the employment by the employer. An employer’s advice to a worker
to resign is simply a management strategy to ensure that the company’s record
does not reflect that the worker’s employment was terminated by the company
(even though the worker was urged or pressured to resign).
It is difficult to outline what will
amount to undue pressure from an employer to warrant the inference of a
wrongful termination of employment. It is advised that the facts of each
circumstance ought to be carefully reviewed by an employment lawyer in order to
advise on the best way out of any irreconcilable difference between an employer
and employee. Sometimes, an employer’s advice or request for a worker’s
resignation may be a kind gesture towards the employee whereas at other times,
it may be inappropriate and actionable! The National Industrial Court held that
an employer’s advice or request to an employee to resign has no legal effect
whatsoever and, as such, can be disregarded by a worker. In a case decided on
25th September 2014 by Honourable Justice O. A. Obaseki-Osaghale of the Calabar
Division of the Court, the claims of an aggrieved employee against his employer
were granted in large part when the court held that the claimant’s employment
had not been terminated by a memo issued by the company’s management advising
the claimant to resign.
amount to undue pressure from an employer to warrant the inference of a
wrongful termination of employment. It is advised that the facts of each
circumstance ought to be carefully reviewed by an employment lawyer in order to
advise on the best way out of any irreconcilable difference between an employer
and employee. Sometimes, an employer’s advice or request for a worker’s
resignation may be a kind gesture towards the employee whereas at other times,
it may be inappropriate and actionable! The National Industrial Court held that
an employer’s advice or request to an employee to resign has no legal effect
whatsoever and, as such, can be disregarded by a worker. In a case decided on
25th September 2014 by Honourable Justice O. A. Obaseki-Osaghale of the Calabar
Division of the Court, the claims of an aggrieved employee against his employer
were granted in large part when the court held that the claimant’s employment
had not been terminated by a memo issued by the company’s management advising
the claimant to resign.
2. Is
an employee bound to resign when the employer requests for his or her
resignation?
an employee bound to resign when the employer requests for his or her
resignation?
A worker is not bound to resign on the
advice or request of his or her employer. A worker is at liberty to refuse to
resign, even if he is threatened by his employer to do so, especially if there
are no justifiable reasons for which the employer can immediately (and
lawfully) terminate the employment. In other words, if a worker is not culpable
for any misconduct or poor/non-performance, he or she can disregard the
employer’s advice or request for resignation.
advice or request of his or her employer. A worker is at liberty to refuse to
resign, even if he is threatened by his employer to do so, especially if there
are no justifiable reasons for which the employer can immediately (and
lawfully) terminate the employment. In other words, if a worker is not culpable
for any misconduct or poor/non-performance, he or she can disregard the
employer’s advice or request for resignation.
It would appear to be a common
practice for a company to request a worker to resign in order to avoid being
fired! The question, however, is how far can the company go in legitimately
requesting or pressuring a worker to tender resignation without violating
international best labour practice? In my view, it is a wrong decision for an
employer to request or advice an employee in writing (including a report of
investigation) to tender resignation unless the employee is found wanting for
misconduct or poor/non-performance. This is because the court may presume that
a worker’s service has been wrongfully terminated if, after his refusal to
tender resignation on the written advice or request of the employer, a notice
of termination is issued to such a worker.
practice for a company to request a worker to resign in order to avoid being
fired! The question, however, is how far can the company go in legitimately
requesting or pressuring a worker to tender resignation without violating
international best labour practice? In my view, it is a wrong decision for an
employer to request or advice an employee in writing (including a report of
investigation) to tender resignation unless the employee is found wanting for
misconduct or poor/non-performance. This is because the court may presume that
a worker’s service has been wrongfully terminated if, after his refusal to
tender resignation on the written advice or request of the employer, a notice
of termination is issued to such a worker.
It is useful to mention that a worker
should regard an employer’s advice to resign as a good gesture or favour if,
after a considered review of the circumstances, there are, indeed, justifiable
grounds for immediately terminating the employment by the company.
should regard an employer’s advice to resign as a good gesture or favour if,
after a considered review of the circumstances, there are, indeed, justifiable
grounds for immediately terminating the employment by the company.
3. What
are the required contents of a letter of termination or resignation?
are the required contents of a letter of termination or resignation?
A letter of termination or resignation is
required to satisfy certain conditions. These conditions are not provided in
any law but are drawn from my review of some judicial decisions of superior
courts in Nigeria in which letters of termination and resignation were in
contention between employers and their respective employees.
required to satisfy certain conditions. These conditions are not provided in
any law but are drawn from my review of some judicial decisions of superior
courts in Nigeria in which letters of termination and resignation were in
contention between employers and their respective employees.
The following conditions are to be
satisfied:
satisfied:
i.
Date of the Letter: A letter of
termination or resignation must be dated. Without being dated, a document is
worthless as a letter of resignation or termination. The date is necessary to
compute the period of notice as agreed in the employment contract.
Date of the Letter: A letter of
termination or resignation must be dated. Without being dated, a document is
worthless as a letter of resignation or termination. The date is necessary to
compute the period of notice as agreed in the employment contract.
ii.
Addressed to a Specified Party: A letter of
termination must be addressed to an individual employee and not to a group of
employees; otherwise, this will give rise to a different legal implication. For
instance, where a letter of termination is addressed to a group of employees,
it may give rise to an inference that the employees have been disengaged in a
manner that will entitle them to redundancy benefits. A letter of resignation,
however, may not be invalidated merely because it is not addressed to a
specific authority in the company, it is sufficient if it is addressed to the
company or any official in the management.
Addressed to a Specified Party: A letter of
termination must be addressed to an individual employee and not to a group of
employees; otherwise, this will give rise to a different legal implication. For
instance, where a letter of termination is addressed to a group of employees,
it may give rise to an inference that the employees have been disengaged in a
manner that will entitle them to redundancy benefits. A letter of resignation,
however, may not be invalidated merely because it is not addressed to a
specific authority in the company, it is sufficient if it is addressed to the
company or any official in the management.
iii.
Clear Wording of the Termination Phrase: A letter of
termination must clearly state that the employee’s services are no longer
required by the employer or that his/her employment is terminated effective
from a specified date. Equally, a resignation letter must state clearly that
the employee wishes to bring the working relationship to an end by using any of
these or similar expressions; “I hereby resign from my employment as
director/manager/accountant/Head, Human Resources etc. of the
company” or “Please accept my resignation as
director/manager/accountant/Head, Human Resources etc. of the company”.
Clear Wording of the Termination Phrase: A letter of
termination must clearly state that the employee’s services are no longer
required by the employer or that his/her employment is terminated effective
from a specified date. Equally, a resignation letter must state clearly that
the employee wishes to bring the working relationship to an end by using any of
these or similar expressions; “I hereby resign from my employment as
director/manager/accountant/Head, Human Resources etc. of the
company” or “Please accept my resignation as
director/manager/accountant/Head, Human Resources etc. of the company”.
iv.
Reason for Termination: According to recent
judicial decisions, every letter of termination of employment must state a good
reason for terminating the service of a worker. Liability may arise to the
employer if the termination letter does not state any ground (and of course, a
good ground) for the termination.
Reason for Termination: According to recent
judicial decisions, every letter of termination of employment must state a good
reason for terminating the service of a worker. Liability may arise to the
employer if the termination letter does not state any ground (and of course, a
good ground) for the termination.
v.
Notice Period or Salary in lieu of
Notice: A
letter of termination or resignation must state whether a notice period is
given to the addressed party or that the party issuing the letter will pay/has
paid the salary payable in lieu of the notice period,
depending on the employment agreement. Where the party issuing the notice
intends to pay a salary in lieu of notice, the letter of
termination or resignation may state the amount payable or simply enclose a
banker’s cheque in the said sum. The payment should not be delayed. Where a
notice period is given, the employee is expected to resume work as usual unless
the employer prefers to pay the worker off and dispense with his or her service
for the notice period. It is, however, unclear and, therefore, arguable
whether, in the course of a notice period, a worker may decide to convert his
service for the reminder of the notice period to payment of salary in
lieu of notice. Where an employee accepts payment after termination of
employment, he cannot complain later of unlawful termination of employment.
Notice Period or Salary in lieu of
Notice: A
letter of termination or resignation must state whether a notice period is
given to the addressed party or that the party issuing the letter will pay/has
paid the salary payable in lieu of the notice period,
depending on the employment agreement. Where the party issuing the notice
intends to pay a salary in lieu of notice, the letter of
termination or resignation may state the amount payable or simply enclose a
banker’s cheque in the said sum. The payment should not be delayed. Where a
notice period is given, the employee is expected to resume work as usual unless
the employer prefers to pay the worker off and dispense with his or her service
for the notice period. It is, however, unclear and, therefore, arguable
whether, in the course of a notice period, a worker may decide to convert his
service for the reminder of the notice period to payment of salary in
lieu of notice. Where an employee accepts payment after termination of
employment, he cannot complain later of unlawful termination of employment.
vi.
Date of Disengagement: A letter of
termination or resignation must state when the worker will stop work or whether
he is required to leave the employment immediately. If the worker is required
to leave the employment immediately, his salary in lieu of
notice and other benefits, in appropriate circumstance, should be paid
immediately as well. Even though the Court of Appeal’s case of WAEC v.
Oshionebo [2006] 12 NWLR (pt. 994) 258 has been interpreted by the
National Industrial Court to imply that the tendering of resignation by an
employee carries with it the “right” to leave the service automatically without
any benefit, it is my view, however, that a thorough review of an employment
contract is sacrosanct in determining if the employee will be entitled to any
terminal benefits at the time of voluntary resignation. Please note that the
parties may enter into a new agreement on how to satisfy, at a future date, any
outstanding obligations under the employment contract which the parties cannot
fulfil at the time of resignation or termination of the employment.
Date of Disengagement: A letter of
termination or resignation must state when the worker will stop work or whether
he is required to leave the employment immediately. If the worker is required
to leave the employment immediately, his salary in lieu of
notice and other benefits, in appropriate circumstance, should be paid
immediately as well. Even though the Court of Appeal’s case of WAEC v.
Oshionebo [2006] 12 NWLR (pt. 994) 258 has been interpreted by the
National Industrial Court to imply that the tendering of resignation by an
employee carries with it the “right” to leave the service automatically without
any benefit, it is my view, however, that a thorough review of an employment
contract is sacrosanct in determining if the employee will be entitled to any
terminal benefits at the time of voluntary resignation. Please note that the
parties may enter into a new agreement on how to satisfy, at a future date, any
outstanding obligations under the employment contract which the parties cannot
fulfil at the time of resignation or termination of the employment.
vii.
Authorized Signature: Except where
delegation of authority is otherwise permitted, a letter of termination must be
signed by the authorized staff of the employer in accordance with the
employment contract. Please note that the authorized staff of the employer is
the official who signed the employment contract on behalf of the company or the
staff who has the power to terminate the employment. If there is any question
as to whether the staff who signs a letter of termination has a delegated
authority to do so, the answer will depend on the facts of each case, the
employment contract, internal structure of a company and the court’s evaluation
of evidence.
Authorized Signature: Except where
delegation of authority is otherwise permitted, a letter of termination must be
signed by the authorized staff of the employer in accordance with the
employment contract. Please note that the authorized staff of the employer is
the official who signed the employment contract on behalf of the company or the
staff who has the power to terminate the employment. If there is any question
as to whether the staff who signs a letter of termination has a delegated
authority to do so, the answer will depend on the facts of each case, the
employment contract, internal structure of a company and the court’s evaluation
of evidence.
viii. Evidence of
Delivery: A
letter of termination or resignation must be delivered to the addressed party
in the manner agreed in the employment contract or any other manner which may
justify reasonable notice. It is acceptable to forward a letter of resignation
or termination under the cover of an email to the official email of the
addressed party provided that nothing is done to prevent its receipt. In such
case, both the letter and the cover email must be tendered in any litigation
regarding the employment.
Delivery: A
letter of termination or resignation must be delivered to the addressed party
in the manner agreed in the employment contract or any other manner which may
justify reasonable notice. It is acceptable to forward a letter of resignation
or termination under the cover of an email to the official email of the
addressed party provided that nothing is done to prevent its receipt. In such
case, both the letter and the cover email must be tendered in any litigation
regarding the employment.
ix.
Evidence of Receipt: A letter of
termination or resignation must be received by the addressed party. The
addressed party has no right or discretion to reject the letter. A letter
of resignation or termination takes effect from the date on which the letter is
received by the addressed party. Proof of receipt is important in order to
answer any question on whether an employment relationship has been brought to
an end either by termination or resignation.
Evidence of Receipt: A letter of
termination or resignation must be received by the addressed party. The
addressed party has no right or discretion to reject the letter. A letter
of resignation or termination takes effect from the date on which the letter is
received by the addressed party. Proof of receipt is important in order to
answer any question on whether an employment relationship has been brought to
an end either by termination or resignation.
4. What
are the Remedies for terminating an employment by a defective or no letter of
termination
are the Remedies for terminating an employment by a defective or no letter of
termination
Whenever an employee’s engagement is
brought to an end by a defective letter of termination or resignation or no
letter at all, damages is the only available remedy to the aggrieved party. The
employee cannot be reinstated to the employment as the Court does not force a
willing servant on an unwilling master and vice versa. In the case referred to
under No. 1 above, the employer, by a memo dated 17th December
2009, advised the claimant to resign but he refused to resign and, instead,
brought an action against the company three (3) years after (on 18th December
2012). After holding that the claimant was right to have disregarded the
employer’s memo advising him to resign, the court held that the worker remained
in the company’s employment and therefore entitled to salaries for the period
from June 2009 till judgement date, 25th September 2014, and thereafter until
his employment was properly terminated by the employer!
brought to an end by a defective letter of termination or resignation or no
letter at all, damages is the only available remedy to the aggrieved party. The
employee cannot be reinstated to the employment as the Court does not force a
willing servant on an unwilling master and vice versa. In the case referred to
under No. 1 above, the employer, by a memo dated 17th December
2009, advised the claimant to resign but he refused to resign and, instead,
brought an action against the company three (3) years after (on 18th December
2012). After holding that the claimant was right to have disregarded the
employer’s memo advising him to resign, the court held that the worker remained
in the company’s employment and therefore entitled to salaries for the period
from June 2009 till judgement date, 25th September 2014, and thereafter until
his employment was properly terminated by the employer!
Associate at Udo Udoma & Belo-Osagie
Ed’s Note – This article was first published here
