By 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:
- 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.
- 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.
- 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.
- 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.
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.
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!
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.
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:
- That you were employed by the defendant (your former employer) – state date and the designation in which you were employed;
- The terms and conditions of the appointment including duration and termination – emphasize the procedure for termination;
- State who had the power, under your employment contract, to terminate or dismiss you;
- 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 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 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.
- Itemize your demands in an orderly manner and with explanations where necessary.
Help the court 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:
- Letter of Offer/Contract of Employment
- Letters of promotion
- Letters of commendation or awards
- Employee Handbook/Expatriate Policy,
- The letter of termination or dismissal,
- relevant Collective Agreements,
- Circulars, internal memos, notices, and
- 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.
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:
- 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.
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.
- 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.
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:
- payment in lieu of notice
- outstanding salaries (if you were owed any prior to the termination)
- redundancy (if your case is deserving of it)
- 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.
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:
- 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).
- 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.
- 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.
Barrister at law in Lagos