Difference between Letter of Dismissal & Letter of Termination | Adedunmade Onibokun

Difference between Letter of Dismissal & Letter of Termination | Adedunmade Onibokun

It
is important to note that an employment relationship cannot be forced upon
either an unwilling employer or employee. Therefore, an employer has a right to
hire and fire, likewise an employee has the right to resign from an employment.

Many a times, the words “dismissal” and “termination”
are used interchangeably when referring to an employee whose employment has
seized.  This may be appropriate in general
discussions, however, under the law, a dismissal and a termination of
employment have completely different interpretations and consequences. A letter
of resignation represents an employee’s desire to quit a job; however, the
effects of a letter of dismissal from an employer are quite different from
those of a letter of termination.  
The Oxford Dictionary describes the word “dismiss”
to mean to send away from one’s presence or employment, it also describes it as
meaning to “reject”. Likewise, a letter of dismissal is a rejection of the
employee by the employer, such rejection which is usually for a reason.  
The first difference between a dismissal
and a termination is that a dismissal is usually punitive in nature while a
termination is simply bringing an employment contract to an end. This implies that
while an employer may well under the law terminate an employment, choosing to
rather dismiss an employee seeks to punish that employee for an act of
misconduct. This was illustrated in Eigbe V Nigeria Union Of Teachers
(2007)
LPELR-8310(CA)
where the court held that
“It is now well settled that in statutory
employment, as well as in private employment, the employer can dismiss an
employee where the accusations against such employee is of gross misconduct
involving dishonesty bordering on criminality, and in such a case, it is not
necessary, nor is it required under Section 36 (1) of the 1999 Constitution
that employee must be tried in a court of law.”
Another difference between a dismissal and
a termination is that, under a termination, the employee is liable to receive a
gratuity and other terminal benefits, however, an employee who has been
dismissed may not be liable to receive any such benefits. This is further
stated in Union Bank Of Nigeria Plc v. Soares
(2012)
LPELR-8018(CA)
, where the court held that –
“There is a clear distinction between termination of a
contract of employment and a dismissal. Termination gives the parties the right
to determine the contract at any time by giving the prescribed period of
notice. Dismissal on the other hand, is a disciplinary measure which carries no
benefits.”
A third difference between a dismissal and
a termination is that, an employee whose contract of employment is terminated
without notice will be liable to collect a salary in lieu of notice, while this
is not the case under a dismissal. This was aptly put by the Supreme Court in Ekunola
V. Cbn & Anor.
(2013)
LPELR-20391(SC)
where the court deliberated whether an employee dismissed on the ground of allegation of gross
misconduct is entitled to notice or salary in lieu of notice, it was held that  –
 “Where his dismissal is founded on the
allegation of gross misconduct the appellant is not entitled to any notice or
salary in lieu of notice …………. And it would be wrong in law to make any awards
to him in these regards.”
The above is a guide to help when
considering, the legal implications of a letter of dismissal and a letter of
termination.
Adedunmade Onibokun
@adedunmade

What to do when your employment is terminated unlawfully – Adedunmade Onibokun

What to do when your employment is terminated unlawfully – Adedunmade Onibokun


There are many instances
when employees have had their employments terminated unlawfully by their
employers.  Some of these employees never
see it coming and become infuriated at the company for a termination they deem
unlawful. Others are confused and wondering what to do next and how to secure
the next pay check in order to provide for their families and needs. Many however,
do not realise that their termination is unlawful and they have a right to sue
the employer for a breach of their contract of employment. 

Before we go further,
allow me explain that in law practice, the words “termination” and “dismissal”
in regard to employment contracts are not the same. 
Though, “Termination” or “Dismissal” of an
employee by the employer translates into bringing the employment to an end.
Under a termination of appointment, the employee is enabled to receive the
terminal benefits under the contract of employment. The right to terminate is
mutual in that either may exercise it. “Dismissal” on the other hand
is punitive and depending on the contract of employment very often entails a
loss of terminal benefits.
To
further explain, most contract agreements contain a clause stating that either
parties may terminate an employment if due notice is given or  payment of a month’s salary in lieu of notice.
If an employment comes to an end this way, it is a termination. However, to be
dismissed usually means that the employee was relieved due to actions bothering
on misconduct. 
So when can an employment be said to
have been terminated unlawfully? 
The
Supreme Court held in
Eze v. Spring Bank Plc
(2011) LPELR-2892
, that, to
determine whether the dismissal of an employee was correct or wrong, the terms
of employment of the aggrieved employee must be examined to see whether the
correct procedure was followed. Where there is departure from the prescribed
procedure or a violation of the elementary rules of natural justice, then the
dismissal is unlawful. 
For
instance, if the contract of employment provides that either party may
terminate the employment upon notice or payment of salary in lieu of notice,
any letter of termination served on the employee not in line with the above
provision will be unlawful.  Furthermore,
assuming an employee was dismissed for gross misconduct without giving the said
employee an opportunity to defend the allegations. Such an act will also amount
to an unlawful dismissal. 
If
a party believes they have been terminated or dismissed unlawfully, such party
can use the internal organs made available by the company to state a case or
redress the issue. However, if that does not yield a solution such aggrieved
employer may resort to the court and claim damages against the employer. It is
important to note that such a case must be brought before the court within 6
(six) years of the date the employee was let go. 
The
National Industrial Court is vested with the exclusive jurisdiction of
adjudicating over employment and labour matters by virtue of
Section 254C
of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act
2010. Therefore, all such matters are instituted
at the National Industrial Court.
The law is now settled that in an
award of damages for unlawful dismissal in ordinary master/servant relationship
the measure of damages is what the servant would have earned in lieu of notice
plus his accrued benefits up to the time of his termination. 
The courts usually shy
away from ordering a reinstatement of the employee. For it is a principle of
law that no employee can be forced on an unwilling employer. This is
illustrated in the court’s decision in U.B.N.
Ltd. v.Ogboh (1995) 2 NWLR (Pt.380)647
where it was held that the plaintiff in appropriate cases of such unlawful
dismissal or wrongful termination of employment is left to his remedy in
damages as no servant may generally be imposed by the court on an unwilling
master even where the master’s behaviour is wrongful
.
 
Adedunmade Onibokun, Esq. 
Adedunmade is the Principal
Partner of Adedunmade Onibokun & Co., a corporate commercial law firm
located in Lagos, Nigeria. He also publishes the Legalnaija blog, an
online platform dedicated to educating Nigerians on their legal rights and
obligations. He can be reached via
dunmadeo@yahoo.com