employment law - Legalnaija

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

by Legalnaija | Oct 27, 2016 | Uncategorized

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

Compensation for injury in the Workplace

by Legalnaija | Oct 19, 2016 | Uncategorized

The Black’s Law
Dictionary, 9th Edition at page 320, defines compensation as:

“1. Remuneration and other benefits received
in return for services rendered…..

2.
Payment of damages or any other act
that a court orders to be done by a person who has caused injury to another.”

(Emphasis
mine)

It is common for workers
to suffer injury or incur liabilities during the course of employment. This is
more common with employees whose employment require them to work with delicate
and complex medium and heavy duty machinery, such as workers on an oil rig, a
manufacturing company, a laundry service or even a restaurant.

However, though the
Employees Compensation Act, 2010, provides that employers must pay compensation
when an employee suffers injury arising from the conditions of employment. It
is common to see these compensations delayed, frustrated and sometimes never
paid. Several employees who suffered injury during the course of their
employment have been forced to approach the Courts of law to mandate the
unwilling employers to pay up. However, giving the slow pace of the law courts,
which is a situation being speedily addressed by the National Industrial Court,
most victims still tend to feel abandoned, stressed, angry and sometimes
powerless in their situations.

The Employees Compensation
Act, 2010, repealed the Workman’s Compensation Act, 2004, and seeks to provide
an open and fair system of guaranteed and adequate compensation for all
employees both in the public and private sector. However, the Act does not
apply to members of the Armed Forces as stated in Section 3 of the Act.

The Act provides in
Section 7, that –

“(1).
Any employee, whether or not in a work place, who suffers any disabling injury
arising out of or in the course of employment shall be entitled to payment of
compensation in accordance with Part IV of the Act.

It must be noted that it is not compulsory for
the worker to be at the point of duty when the injury occurred, as the Act
provides other instances when the employee will be liable to compensation for
injury suffered. The Act further provides in Subsection (2) that –

“An
employee is entitled to payment of compensation with respect to any accident
sustained while on the way between the place of work and –

a)
The
employee’s principal or secondary residence,

b)
The
place where the employee usually takes his meals, or

c)
The
place where he usually receives remuneration provided that the employer has
prior notification of such place. “

If the injury is as severe
as to cause any disability to the employee from earning full remuneration at
the work place, Subsection (3) provides that the compensation shall be payable
pursuant to the Act from the first working day following the day of the injury,
except that only a health care benefit shall be payable on the day of the
injury. When the injury is caused by an accident which arose from the
employment, it would be presumed that the injury happened in the course of the employment.

In C & C Const. Co. Ltd. v. Okhai (2003) 18 NWLR (Pt.851)79, the
respondent while on duty which involved the servicing of the appellants’ crane
sustained grievous injuries arising out of the 2nd appellants failure as switch
operator to use due care thereby causing the crane to become agitated and resulting
in a drum of the crane to rollover violently over the respondent’s left foot,
crushing that leg below the knee. For this he was under great pain and suffering
for which he was hospitalized and this eventually led to the amputation of that
leg. The employee was awarded damages for loss of earning capacity, future loss
and damages for pain and suffering.

Usually, the employer is responsible for
ensuring that the workplace is not dangerous and that tools, machinery and
other equipment used by the employees are suitable for the task and safe. It is
also the duty of the employer to ensure that the methods used to undertake the
work, the system of supervision and general organization add up to a safe
system of work. It should however be noted that the employer’s duty is only to
take reasonable care and not protect the employee at all cost[i].

Adedunmade Onibokun Esq,

[i] Gwyneth
Pitt (2007). Employment Law. 6th ed. London : Sweet & Maxwell. 410.