By Thankgod Nwedukwu, Esq.
*And In Line With International Best Practices
Summary dismissal is a common law right of the employer to terminate the contract of service of an employee without option of issuance of a month notice or payment of a month salary in lieu of the notice.
Unlike other options available for determination of contract of service, the employer who recon on summary dismissal shall solely do so where there is an established gross misconduct from part of the Employee. Such misconduct must primarily offend the essential provision of the contract, and establishing that by doing so, the employee no longer treats the contract as subsisting.
In determining any contract of service, it is pivotal to look through the employee’s handbook or staff Manual. The staff manual or employee handbook serves as recourse as to the contractual obligations and terms applicable in the contract, binding both the employer and the employee.
Sequel to the above, generally, contract creating employer and employee relationship is regulated by the Labour Act as it provides requirement for a valid determination of contract of employment to which either party is required to issue a month notice or payment of a month salary in lieu of notice, to the other party. In section 11 of the Labour Act 2004 provide thus:
‘‘Either party to a contract of employment may terminate the contract on the expiration of notice given by him to the other party of his intention to do so. (2) The notice to be given for the purposes of subsection (1) of this section shall be- (a) one day, where the contract has continued for a period of three months or less; (b) one week, where the contract has continued for more than three months but less than two years; (c) two weeks, where the contract has continued for a period of two years but less than five years; and (d) one month, where the contract has continued for five years or more. (3) Any notice for a period of one week or more shall be in writing. (4) The periods of notice specified in subsection (2) of this section exclude the day on which notice is given. (5) Nothing in this section affects any right of either party to a contract to treat the contract as terminable without notice by reason of such conduct by the other party as would have enabled him so to treat it before the making of this Act. (6) Nothing in this section shall prevent either party to a contract from waiving his right to notice on any occasion, or from accepting a payment in lieu of notice. (7) All wages payable in money shall be paid on or before the expiry of any period of notice. (8) If an employer gives notice to terminate the contract of employment of a worker who has been continuously employed for three months or more, the employer shall not be liable under this section to make any payment in respect of a period during which the worker is absent from work with the leave of the employer granted at the request of the worker. (9) In the calculation of .a payment in lieu of notice, only that part of the wages which a worker receives in money, exclusive of overtime and other allowances, shall be taken into account.’’
Suffice to say, the principle of summary dismissal when validly applied, does not infringe the provision of section 11 of the Labour Act 2004.
It therefore goes beyond saying that summary dismissal is an exceptional circumstance where an Employer can validly determine or whistle-off the employment contract with an Employee based on the conduct of the employee that on the face of it amount to gross misconduct.
SUMMARY DISMISSAL IN PRACTICE
In law, an Employer is entitled to an option for the dismissal of its employee rather than of the termination of a contract of employment where the conduct is one that’s so gross and weighty misconduct such that it treats the contract as not subsisting or made it impermissible for the contract to subsist.
Summary dismissal in nutshell, is dismissal without notice which is justifiable at common law by reference to the conduct or capabilities of the employee. There is no fixed rule of law defining the degree of misconduct which will justify dismissal. In Oyedele V. I.U.T.H (1990) 6 NLWR PT. 155 PER John Hezekiah Omololu-Thomas, JCA in para C-D page 199 held thus:
“Under our law there I no definition of what is misconduct anywhere, not even section 256 of the constitution of the Federal Republic of Nigeria 1997 where a judge could be removed from the office on ground of misconduct.
In the law of master and servant, a misconduct is what the employer considers to be a misconduct. In the instant case, since the employer of the appellant considered the two allegations made against him to amount to misconduct, they were right in returning him on that ground’’.
Sequel to the above, it’s advisable and as matter of customary practice to list representative samples of such acts of misconduct in the employees Handbook or staff Manual. If such conduct amounting to gross misconduct is one not listed in the
Employees Handbook or Staff Manual, it is advisable that the employer comply with certain standard in ascertaining what amount to misconduct.
From the above, the following conducts are uniformly quantified as misconduct that will give rise to summary dismissal in Law vis:
DISMISSAL FOR INCOMPETENCE
The right to dismiss for incompetence exists and is predicated on the fact that by taking of the job, the employee has impliedly warranted that he has the necessary skill and competence needed to effectively perform the function. Failure of the employee to fulfill the warranty is therefore said to constitute an act of misconduct justifying dismissal.
DISMISSAL FOR MISCONDUCT AMOUNTING TO CRIME
Where the conduct of an employee amount to a crime, the employer is entitled to dismiss such an employee. This is the decision of the Court in Yusuf v. Union Bank of Nigeria plc (1996) 6 NWLR (Pt 457) 632 SC. A crime is any proscribed activities that in law amount to an offence. Where employee misconduct is tainted with some criminal element, it is immaterial whether a criminal prosecution is been instituted against the employee and was convicted as held in Sokefun v. Akinyemi (1980) 5-7 S.C 1, rather what is required is a formal query letter issued by the employer for the employee to answer to the allegation of crime. A summary dismissal having observed the above position is valid and subsisting. In Baba V. NCATC (1991) 5 NWLR (PT. 192) 388; Where the court held that, where the employee/appellant were given the opportunity of defending himself against the allegation leveled against him and he utilize same. The employee cannot therefore be said to have been deprived of fair hearing and his dismissal then cannot be set aside simply because criminal prosecution was not initiated.
B.A Imonikhe V. Unity Bank Plc (2011) 12 NWLR (PT. 1262) @624 SC; where the Supreme Court per Coram Onnoghen, J.S.C held that the requirement for initiating criminal proceedings and convicting the accused before he can be summarily dismissed does not apply where the accused employee was issued a query letter and he responded to same.
DISMISSAL FOR UNLAWFUL DISOBEDIENCE OF LAWFUL ORDER
In this circumstance, the employee disobedience is unlawful to a lawful order from an appropriate authority. Suffice to say, the order must be within the employee duties, the issuer of such order must be an appropriate authority to issue an order to the employee. In Price v Mouat (1862) CB(NS)508, an employer seeking a pretext to dismiss his employee who was employed as a lace-buyer, a supervisor and executive position, ordered him to undertake the manual work of carding lace. The employee refused, regarding the order as incompatible with his employment. The employer dismissed him and relied upon the defence of willful disobedience to lawful orders. It was held that it was a proper direction to the jury to ask them whether the order were as a person in that position was bound to obey.
PROFESSIONAL MISCONDUCT AND INCAPACITY
A professional misconduct leading to striking off of the offender/employee name form the roll of members of his profession invariably will make it impossible for a servant to continue in the employment. A summary dismissal in this regard is valid and subsisting.
GROSS IMMORALITY AND PROFANITY
Depending on the nature of the employee’s duty, where his conduct fall short to the above to extend of defacing the employer and its nature of business vis-à-vis its relationship with clients, it will be valid to dismiss such employee summarily.
DISHONESTY AND IMPROPER CONDUCT
Where the employee acted a way such that it not only amounts to a wrongful act that is inconsistent with his duty towards his master or is also inconsistent with the continuance of confidence between, it then goes beyond saying that dismissing such employee summarily is valid and justifiable. Other conducts like habitual drunkenness, infirmity of the mind, gross neglect etc, may give rise to summary dismissal, this is the position of the court in Yusuf v. Union Bank of Nigeria Supra. Malicious mischief, habitual
tardiness in arriving at the assigned place of work, absenteeism and involvement in any act unbecoming of an employee or put the office to disrepute can give rise to summary Dismissal. In Oyedele V. University of Ife Teaching Hospital (1990) 6 NWLR (PT.155) @ 194 where the appellant was sincerely dismissed for alleged misconduct of computing a letter of termination into one of the final warning and unilaterally upgrading somebody from clerical assistant to clerical officer. The defendant/respondent set up a panel of enquiry who recommend downgrade but the Defendant/Respondent decided otherwise and retired the appellant with full benefits. The appellant challenged the retirement at the trial court and subsequently appealed to Court of Appeal, Coram JOHN HEZEKIAH OMOLOLU-THOMAS JCA page 199 F.G held thus:
“A court cannot compel an employer to continue keeping an employee if he does not want anymore, just as no employer can prevent an employee from resigning from his employment to seek greener pastures elsewhere. All the court can do is to enquire into procedure by means of which the servant was dismissed or retired….’’
PROCEDURAL REQUIREMENT WHILE ISSUING SUMMARY DISMISSAL
Identify the gross misconduct alleged of and seek legal advice;
Verify the position of the employees Handbook or Staff Manual;
Issuance of warning notice or letter to the effected employee if the misconduct is one that may be condone. Where this is applied, a track record of it and copy of correspondence issued should be maintained; and
Issuance of query letter to the effected employee and demand an answer within a specific interval. Where the employee answer to the query is not conclusive enough, a formal summary dismissal can be issued to the effected employee.
Summary dismissal is an emergence tools available to an employer in determining contract of employment with effected employee.
This is exercisable solely on ground of gross misconduct. What amount to gross misconduct is not definite but must be one capable of defacing the employer or bringing it to disrepute or capable of treating the contract as not subsisting.
It’s advisable that the necessary step is properly undertaken and observed while dismissing an employee summarily. This is because plethora of summary dismissal cases are being held by the court as wrongful dismissal. To this end, we advise that a certain representation of list amounting to misconduct as you may deem fit, be listed and properly entered in the employee handbook or staff manual.
By ThankGod Nwedukwu, Esq.
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