How to prove that the termination of your employment was wrongful |Michael Dugeri
When is termination/dismissal said to be wrongful?
You may sue and demand to enforce your rights if your employment
contract is wrongfully terminated. Wrongful termination is when any of the
following occurs:
contract is wrongfully terminated. Wrongful termination is when any of the
following occurs:
i. Your former
employer did not follow the terms of the contract in terminating it or
dismissing you. For instance, if the contract specified that either party can
only terminate by giving the other 30 days’ notice or one month’s salary in
lieu of notice, it would be wrongful to terminate the contract forthwith and
not pay you anything in lieu. Also, if your employment contract provides for a
disciplinary procedure to be followed before you can be dismissed (say for
gross misconduct) and the procedure was not followed or your act/omission was
wrongly categorized, your dismissal would be wrongful.
ii.
Your appointment
was terminated ‘in accordance’ with the terms of contract but the reason for
the termination is unlawful or unjustifiable. For instance, where termination
is based on discrimination or sexual harassment, it will qualify as wrongful
termination. It does not matter that your employer (like most companies in
Nigeria) does not have a policy against workplace discrimination or sexual
harassment. These are matters of law and public policy that are implied into
every employment contract.
iii.
You actually did
resign ‘voluntarily’ but under conditions that left you with no other choice.
For instance, your former employer frustrated you and deliberately made it
practically impossible for you to continue with the job. The technical term for
this is “constructive dismissal”, and it also qualifies as wrongful
termination.
You actually did
resign ‘voluntarily’ but under conditions that left you with no other choice.
For instance, your former employer frustrated you and deliberately made it
practically impossible for you to continue with the job. The technical term for
this is “constructive dismissal”, and it also qualifies as wrongful
termination.
iv.
Your position
had been rendered redundant but your former employer played smart and clothed
it as simple termination (like merely said your ‘services no longer required’)
in order to save itself the cost of paying you redundancy or other
benefits.
Your position
had been rendered redundant but your former employer played smart and clothed
it as simple termination (like merely said your ‘services no longer required’)
in order to save itself the cost of paying you redundancy or other
benefits.
While it is true that no employer should feel compelled to retain an
employee whose services are no longer required or who is no longer fit to remain
in the job, if your appointment must be terminated, it should be with the
dignity and respect deserving of your person as an employee, and all your
entitlements fully paid.
employee whose services are no longer required or who is no longer fit to remain
in the job, if your appointment must be terminated, it should be with the
dignity and respect deserving of your person as an employee, and all your
entitlements fully paid.
When to sue
If you are aggrieved about the manner that your appointment has been
terminated, you need to move fast in getting a redress. Sue as soon as it is
reasonably clear to you that your grievance cannot be amicably resolved. By
law, you must sue within 6 years of the termination otherwise your claim will
become stale and unenforceable. The courts are strict with this timeframe and
would hardly entertain any excuse for delay in suing; not even where the delay
was because you were trying to settle amicably with your former employer.
terminated, you need to move fast in getting a redress. Sue as soon as it is
reasonably clear to you that your grievance cannot be amicably resolved. By
law, you must sue within 6 years of the termination otherwise your claim will
become stale and unenforceable. The courts are strict with this timeframe and
would hardly entertain any excuse for delay in suing; not even where the delay
was because you were trying to settle amicably with your former employer.
If you were working in the civil or public service, the need to act fast
is even more urgent. This is because the timeframe allowed to sue public
officers/offices is just 3 months! Although, there are legal arguments (and
authorities) that this principle does not apply to breaches of contract, or
claims for work and labour done, why delay and get your case entangled in any such
legal haggles!
is even more urgent. This is because the timeframe allowed to sue public
officers/offices is just 3 months! Although, there are legal arguments (and
authorities) that this principle does not apply to breaches of contract, or
claims for work and labour done, why delay and get your case entangled in any such
legal haggles!
Where to sue
The National Industrial Court is your go-to court for labour disputes. The
court only handles labour disputes hence the Judges are more able to quickly
settle the cases before them. Let me quickly add that you should always first
consider settling your case amicably (out of court) before suing. At any rate, Alternative
Dispute Resolution (ADR) options are preferred to litigation in the resolution
of disputes such as employment disputes. ADR options include arbitration,
mediation, conciliation, etc. These options better protect confidences, they
are cheaper (well, arguably) and faster too.
court only handles labour disputes hence the Judges are more able to quickly
settle the cases before them. Let me quickly add that you should always first
consider settling your case amicably (out of court) before suing. At any rate, Alternative
Dispute Resolution (ADR) options are preferred to litigation in the resolution
of disputes such as employment disputes. ADR options include arbitration,
mediation, conciliation, etc. These options better protect confidences, they
are cheaper (well, arguably) and faster too.
What facts to establish
It is not enough
to say your employment is wrongly terminated. You have to explain how you came
about that conclusion. It is helpful if you tell your story in a logical and
compelling manner. You will therefore want to capture the following facts:
to say your employment is wrongly terminated. You have to explain how you came
about that conclusion. It is helpful if you tell your story in a logical and
compelling manner. You will therefore want to capture the following facts:
i.
That you were employed
by the defendant (your former employer) – state date and the designation in
which you were employed;
That you were employed
by the defendant (your former employer) – state date and the designation in
which you were employed;
ii.
The terms and
conditions of the appointment including duration and termination – emphasize
the procedure for termination;
The terms and
conditions of the appointment including duration and termination – emphasize
the procedure for termination;
iii.
State who had
the power, under your employment contract, to terminate or dismiss you;
State who had
the power, under your employment contract, to terminate or dismiss you;
iv.
State any
special circumstances that are needed to prove your case – for instance, if you
are basing your claim for wrongful termination on workplace sexual harassment,
discrimination or redundancy, state clearly the circumstances that led you to
believe the facts;
State any
special circumstances that are needed to prove your case – for instance, if you
are basing your claim for wrongful termination on workplace sexual harassment,
discrimination or redundancy, state clearly the circumstances that led you to
believe the facts;
v.
State the circumstances
under which your appointment was in fact terminated – for instance, that you
had not been given any notice (or payment in lieu), fair hearing etc
State the circumstances
under which your appointment was in fact terminated – for instance, that you
had not been given any notice (or payment in lieu), fair hearing etc
vi.
State the pain
and trouble that you have suffered on account of the wrongful termination – while
this is not very necessary sometimes such sentiments prove helpful to your
cause.
State the pain
and trouble that you have suffered on account of the wrongful termination – while
this is not very necessary sometimes such sentiments prove helpful to your
cause.
vii.
Itemize your
demands in an orderly manner and with explanations where necessary.
Itemize your
demands in an orderly manner and with explanations where necessary.
Help the court
to help you; explain yourself!
to help you; explain yourself!
What documents to rely on
More often than
not, your employment ‘contract’ is not just the ‘Offer Letter’. Other terms of
the contract are contained in documents like the ‘Staff Handbook’, collective
agreements (common in unionized industries like Maritime or Aviation), etc. It’s
important to place before the court all documents necessary to paint the full
picture. These include the following:
not, your employment ‘contract’ is not just the ‘Offer Letter’. Other terms of
the contract are contained in documents like the ‘Staff Handbook’, collective
agreements (common in unionized industries like Maritime or Aviation), etc. It’s
important to place before the court all documents necessary to paint the full
picture. These include the following:
i.
Letter of Offer/Contract
of Employment
Letter of Offer/Contract
of Employment
ii.
Letters of
promotion
Letters of
promotion
iii.
Letters of
commendation or awards
Letters of
commendation or awards
iv.
Employee
Handbook/Expatriate Policy,
Employee
Handbook/Expatriate Policy,
v.
The letter of termination
or dismissal,
The letter of termination
or dismissal,
vi.
relevant
Collective Agreements,
relevant
Collective Agreements,
vii.
Circulars, internal
memos, notices, and
Circulars, internal
memos, notices, and
viii.
other workplace
documents, like official e-mails, etc that are necessary to establish your case.
other workplace
documents, like official e-mails, etc that are necessary to establish your case.
These documents, together with your oral testimony (and that of any
other witness) are what the court will use in deciding your fate.
other witness) are what the court will use in deciding your fate.
What to ask for
This is the interesting part. Nearly all claims in court about wrongful
termination are about money! You are most likely simply asking that you should
be paid some money as terminal benefits. Two quick clarifications:
termination are about money! You are most likely simply asking that you should
be paid some money as terminal benefits. Two quick clarifications:
a. payment of terminal benefits is not automatic and
the payment (trust me) is not a windfall. What you will be paid will depend,
largely, on what was previously agreed upon between you and your employer.
Sometimes, Lawyers get overzealous and make bold baseless assurances to clients
on what they can obtain in court. But the court is not Santa Claus and would
not award you damages just for asking. You will have to earn it. Admitted,
sometimes you would rather err on the side of caution and ask for more rather
than less, but why pad your claims and end up appearing like a gold digger
before the Judge? It is best to be clear-headed about your claims and save
everybody’s time.
the payment (trust me) is not a windfall. What you will be paid will depend,
largely, on what was previously agreed upon between you and your employer.
Sometimes, Lawyers get overzealous and make bold baseless assurances to clients
on what they can obtain in court. But the court is not Santa Claus and would
not award you damages just for asking. You will have to earn it. Admitted,
sometimes you would rather err on the side of caution and ask for more rather
than less, but why pad your claims and end up appearing like a gold digger
before the Judge? It is best to be clear-headed about your claims and save
everybody’s time.
In some cases, (like terminations based on workplace
discrimination, sexual harassment, redundancy, etc) the Judge would likely award
heavy penalty against your former employer as a deterrent to other employers
and as compensation deserving of the manner of your termination. What is “heavy
penalty” (Lawyers call it “punitive damages”) will ultimately depend on the
facts of each case, but our Judges here are rather conservative on these
things, so don’t get your hopes too high.
discrimination, sexual harassment, redundancy, etc) the Judge would likely award
heavy penalty against your former employer as a deterrent to other employers
and as compensation deserving of the manner of your termination. What is “heavy
penalty” (Lawyers call it “punitive damages”) will ultimately depend on the
facts of each case, but our Judges here are rather conservative on these
things, so don’t get your hopes too high.
b. Suing for wrongful termination is not (and should
not) always be about money. There are cases (like a dismissal) in which it is
more important for the aggrieved employee to ‘clear his name’ and set the
records straight (or just to prove a point). Even where you are really pressed
for the money, you should not overlook this aspect of your case. Interestingly,
until you convince the Judge that indeed your dismissal/termination was
wrongful, you are likely not getting paid any damages. Don’t allow money get in
the way.
not) always be about money. There are cases (like a dismissal) in which it is
more important for the aggrieved employee to ‘clear his name’ and set the
records straight (or just to prove a point). Even where you are really pressed
for the money, you should not overlook this aspect of your case. Interestingly,
until you convince the Judge that indeed your dismissal/termination was
wrongful, you are likely not getting paid any damages. Don’t allow money get in
the way.
How do you determine your rightful entitlements? Look at your contract and see for yourself
what it says you will be paid in case you are asked to leave. For instance, are
there provisions in the contract that you will be paid a salary in lieu of
notice? Also check the Staff Handbook which may contain provisions on payment
of gratuity, redundancy, etc. In summary, your list of claims could run like
this:
what it says you will be paid in case you are asked to leave. For instance, are
there provisions in the contract that you will be paid a salary in lieu of
notice? Also check the Staff Handbook which may contain provisions on payment
of gratuity, redundancy, etc. In summary, your list of claims could run like
this:
i.
payment in lieu
of notice
payment in lieu
of notice
ii.
outstanding
salaries (if you were owed any prior to the termination)
outstanding
salaries (if you were owed any prior to the termination)
iii.
gratuity
gratuity
iv.
redundancy (if
your case is deserving of it)
redundancy (if
your case is deserving of it)
v.
other accrued
benefits (like leave allowances, etc) that are outstanding.
other accrued
benefits (like leave allowances, etc) that are outstanding.
It is important to be sure that you are entitled to these benefits
before you make your claim for them. Don’t get greedy and start making up
claims from the blues. Also ensure that what you are claiming is actually
outstanding. Do not embarrass your Lawyer by making him/her claim for money
that is already paid to you. Finally, check to ensure that your pension, tax,
NSITF, etc. deductions are also fully remitted or paid. Your lawyer will help
you in computing the claims if your termination is based on special
circumstances and you would like punitive damages awarded in your favour
against your former employer.
before you make your claim for them. Don’t get greedy and start making up
claims from the blues. Also ensure that what you are claiming is actually
outstanding. Do not embarrass your Lawyer by making him/her claim for money
that is already paid to you. Finally, check to ensure that your pension, tax,
NSITF, etc. deductions are also fully remitted or paid. Your lawyer will help
you in computing the claims if your termination is based on special
circumstances and you would like punitive damages awarded in your favour
against your former employer.
What not to ask for
Keep your case tidy. Don’t spoil it with spurious demands. Some demands
are not to be made because they are simply not practicable. Let’s briefly
highlight some:
are not to be made because they are simply not practicable. Let’s briefly
highlight some:
i.
Don’t ask for
money for ‘injured feelings and loss of reputation’. Don’t get your claim for
wrongful termination mixed up with claims about defamation. You can actually claim
for both but not in one breathe (and also not in the same court).
ii.
Don’t ask to be
reinstated – unless your employer is a government agency, nobody has legal
powers to foist you on your unwilling employer. Termination of ordinary
employment contracts is never “null and void, unlawful or unconstitutional”.
The termination, at best, can only be wrongful but not invalid. Either party is
free to terminate at any time and for any or no reason. All that is required is
fairness – that the terms of the contract are followed and within the bounds of
the law.
iii.
Don’t ask for
pre-judgment interest on the monies that you are claiming – unless it had
already been agreed upon between you and your former employer. Interest, if
any, on any award that the court will grant you, will start to run from the
date of the judgment, and not from the date that the money became due.
Don’t ask for
pre-judgment interest on the monies that you are claiming – unless it had
already been agreed upon between you and your former employer. Interest, if
any, on any award that the court will grant you, will start to run from the
date of the judgment, and not from the date that the money became due.
PS: The
language of this article is deliberately simple and devoid of legal niceties
because it is intended for non-lawyers. It is however, not intended to be a
substitute for legal advice. You will certainly need a Lawyer to, among other
things, plead your case in court. Finally, going to court should be a last
option. Employment disputes are best resolved amicably; unless of course you
are left with no other option than to sue.
language of this article is deliberately simple and devoid of legal niceties
because it is intended for non-lawyers. It is however, not intended to be a
substitute for legal advice. You will certainly need a Lawyer to, among other
things, plead your case in court. Finally, going to court should be a last
option. Employment disputes are best resolved amicably; unless of course you
are left with no other option than to sue.
Michael Dugeri
Corporate Commercial Lawyer at
Austen-Peters & Co.
Austen-Peters & Co.
Photo Credit – www.miza.org.za