Labour L a w I TERMINATION OF A CONTRACT OF EMPLOYMENT. - PowerPoint Presentation

1. Labour Law I TERMINATION OF A CONTRACT OF EMPLOYMENT.

2. Termination of the contract of employment.Termination vs dismissal: Termination allows the parties to bring the COE to an end at any time with valid notices and the employee may still be entitled to certain benefitsDismissal is a disciplinary measure and the employee usually forfeits any benefits.

3. Termination of Contract of EmploymentContract of employment can be terminated in various ways including by:operation of law, intention of the parties; and By notice given by any of the parties.

4. Operation of Law1. Death: The death of the worker most definitely leads to the termination of the contract of employment from the moment of his death. Section 9(7)(b) Labour Act provides that a contract shall be terminated by the death of the worker before the expiry of the stipulated period of employment.This is because a contract of service is a personal contract.

5. 1. DeathThe contract is terminated from the time of death hence any right that accrues to the worker before this time is enforceable. The termination shall therefore be without prejudice to the rights of the personal representatives or dependants of the worker to make legal claims for his rights and benefits that accrued before his death (S. 9(8) Labour Act)

6. 2. Frustration of the Contract I.this occurs where a contract of employment becomes impossible to perform. Frustration of a contract refers to the premature determination of an agreement lawfully entered into between parties which, owing to the occurrence of an intervening event or change so fundamental during its operation, as to be regarded by law, both as striking at the root of the agreement and as entirely beyond what was contemplated by the parties when they entered into the agreement

7. Frustration of the Contract IIIt occurs where after the contract, events occur which make the performance of the contract impossible, illegal or radically different from what was in the contemplation of the parties. These events include:subsequent legal changes,destruction of the subject matter of the contract, outbreak of war and government requisition of the subject mater of contract

8. Frustration of the Contract IIIthe death of an enterprise or business where a company is dissolved, goes bankrupt, is liquidated or a partnership is dissolved. The sale of a business may also have the same effect. In Nokes v. Doncaster Amalgamated Collieries Ltd (1940) AC 1014, the taking over of a company was held to have determined a miner’s employment and thus he could no longer be liable for an offence which only a servant could commit.

9. Frustration of the Contract IVAny other supervening event that makes the contract impossible to perform will also frustrate the contract. For instance a contract of apprenticeship will be frustrated if the subject matter of the instruction is destroyed. innate inability, illness or injury if it is of such a nature or long period as to adversely affect the performance of the contract of employment. This can be any physical or mental incapacity. Such illness or injury of this nature is a however a question of fact and where it is of a temporary nature, it will not be sufficient to terminate the contract of employment.

10. Condor v. Barron Knights Ltd (1996) 1 WLR 87a member of a pop musical group collapsed due to the strenuous nature of their job. The terms of contract stipulated that he was to perform in the defendant’s band seven days a week as a drummer and also feature as a star performer. After a medical examination, it was certified that he could not work for 7 days a week but only 4. This was unsuitable for the defendant’s business and he dismissed the plaintiff on the ground of illness even though his contract contained a non-dismissal clause.In an action for damages for wrongful dismissal, the court held that the dismissal was lawful since the plaintiff's health made it impossible ‘in the business sense’ for him to perform his obligations.

11. Frustration of the Contract VUnder common law, an employer is at liberty to terminate the employment of a seriously sick or incapacitated worker. Under section 16 of the Labour Act, a worker is entitled to be paid wages for up to 12 working days in any one calendar year during absence of work caused by temporary illness certified by a registered medical practitioner. However, the worker must be ready to continue his work except for the incapacity produced by the illness and the employer is at liberty to request that the worker be examined by a qualified medical practitioner nominated by him.

12. Intention of the PartiesExpiration of time:an employment for a fixed period of time will be terminated automatically at the expiration of such period in the absence of any extension of the employment. See section 9(7)(a) Labour Act. An employment for a fixed period needs no formal notice of termination and the effluxion of time or performance/completion of the job automatically discharges the contract

13. Intention of the Parties IITerms of the Contract: parties to a contract of employment can include the mode or way by which the contract may be determined in so far as it was voluntarily made. This is usually spelled out expressly in the contract or as stipulated in the industry or trade. For instance the contract may be stipulated to come to an end once it has been performed or on some other mutual conditions agreed upon by the parties.Where the parties mutually agree to a new agreement, this terminates the previous contract of employment.

14. Strange (S.W) Ltd v. Mann (1965) 1 AUER 1069The respondent was employed as a manager by the plaintiff. His COE contained a clause which prevented him from carrying on business of a similar nature within 12 miles of the company for 3 years after cessation of his service. Due to a disagreement, the parties mutually agreed that the defendant should relinquish his position and be appointed as manager for the credit department. 27 days after his new appointment, he was dismissed without notice. The defendant took up a job with another company within the restricted area. The plaintiff sued in order to enforce the restrictive covenant.The court held that the new appointment replaced the original agreement which has ceased to subsist.

15. Intention of the Parties IIINotice Given by Any of the Parties:1.Resignation by the Worker:a contract may also be determined by the unilateral act of one of the parties. A worker has an absolute right to resign from his employment and this has been identified as the difference between a servant and a slave (per Lord Atkin in Nokes v. Doncaster Amalgamated Collieries Ltd (1940) AC 1014).

16. Resignation by the WorkerIn T.O.S Benson v. Onitiri (1960) 5 FSC 61, 82, the Supreme Court affirmed that a person has an ‘absolute right to resign’ and no discretion lies in the employer to refuse to accept the resignation.To do so would amount to forced/compulsory labour contrary to the freedom to contract and the fundamental right to dignity of human person under section 34(1)(c ) of the constitution. Even where it is a pensionable employment, once the worker has fulfilled all the necessary conditions to be entitled to retirement benefits, he can still voluntarily resign and be entitled to his retirement benefits.

17. Resignation by the WorkerOnce the resignation becomes effective, the employment has been terminated and no disciplinary action can be initiated against the worker. The contract of employment usually stipulates the required period of notice the worker may give to the employer upon his resignation or amount of payment in lieu of notice.

18. Termination by the Employer IAn employer can terminate the employment upon notice to the worker. However (a) such a dismissal must be for all or any of the reasons express or implied in the contract of employment; (b)proper notice must be given to the worker; and ( c) the proper method of dismissal or termination of employment must be followed. The employer has the right to terminate the contract of employment, however such a termination must be lawful.

19. Termination by the Employer IIArticle 4 of the ILO Termination of Employment Convention 1982 stipulates as follows:‘the employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on operational requirement of the undertaking, establishment or service’.Therefore it can be determined due to the inefficiency or lack of competence of the worker, acts of misconduct, or operational requirements like redundancy or economic hardship for the emplo

20. Termination by the Employer IIIThe exercise of the right of the employer to terminate the employment during a redundancy (excess manpower) is governed by section 20 of the Labour Act.Redundancy means ‘an involuntary and permanent loss of employment caused by an excess of manpower’ (s. 20(3) LA). The principle of ‘last in, first out’ is to be adopted in dismissing workers subject to all factors of relative merit including skill, ability and reliability.

21. Termination by the Employer IVThe employer shall also inform the trade union or worker’s representatives of the reasons of and the extent of the redundancy. He shall also use his best endeavours to negotiate redundancy payments to the discharged workers.

22. Notice of TerminationExcept a contract is determined by death or effluxion of time, some notice is required to terminate the employment whether on the part of the worker or that of the employer. Either party to a contract of employment may terminate the contract on the expiration of notice given by him to the other part of his intention to do so (s.11(1) LA). Notice here refers to a formal notification or information by the party seeking to terminate the contract to the other party that the contract is to be brought to an end at a specified date and sometimes (especially if it is given by the employer) the reason for the termination.

23. O.A. Martins v. Braithwaite (Insurance Brokers) & Co Ld (1972) CCHCJ/72the defendant company under the contract of employment had the right to terminate the plaintiff's appointment ‘at any time without notice’. The defendant in exercising this power terminated the plaintiff’s appointment without saying anything to the plaintiff.After two years, the plaintiff instituted this action for arrears of salary which fell due before this action was instituted (he rightly didn’t sue for wrongful dismissal). The court granted the claim of the plaintiff and held that the reservation of the right to terminate appointment at any time without notice does not mean that the worker is not to be told in clear words that his services are no longer required. The court therefore held that there had been no valid termination of the employment.

24. Notice of TerminationEven though notice of termination, resignation or retirement has been given, the worker remains in the service of the employer till the notice expires and can therefore be disciplined or summarily dismissed within this period. He is also entitled to all his benefits till the contract is actually terminated even though notice has been given

25. Amokeodo v. IGP (1999) 6 NWLR (pt 607) 467the plaintiff, a superintendent of police, was dismissed retroactively from Dec 10 1987 by a letter dated Feb 1 1989. This dismissal was held to be ineffective and the plaintiff ordered to be reinstalled to his post with effect from Dec 10 1987. The plaintiff gave a notice of his intention to retire in Nov 1989 but before the notice expired, he was dismissed from service under the Pubic Officers (Special Provisions) Act 1984.

26. Amokeodo v. IGP (1999) 6 NWLR (pt 607) 467On suing for this, the court held that he remained in the service until the expiration of his three months notice within which period he was subject to all the benefits and advantages an officer of his rank was entitled to as well as any disciplinary measures that his employers deems necessary to maintain generally on a serving officer. Therefore the dismissal of the appellant within the period of his retirement notice is the exercise of the employer’s right over its serving officers.

27. Notice of TerminationWhere a contract specifies the period of notice and form, these must be complied with for the notice to be valid. The notice must be specific and unequivocal. Note that time begins to run when the notice is served on the other party

28. Notice of TerminationIn Adeniran A. Adeyemo v. Oyo State Public Service Commission (1979) 1 FNR 28, the contract provided for notice of 1 month, the court held that the employer could not terminate the contract on the basis of a 30 days notice. Note that one month’s notice is different from 30 days notice in law. If a one month’s notice is served on a day other than the first day of the month it will be ineffective unless it extend to cover the end of the following month (see Oyekoya v. GB Ollivant (nig) Ltd (1969) 1 All NLR 80).

29. Notice of TerminationA Contract Of Employment terminates when notice is expired or where payment is made or accepted in lieu - Ben Chukwuma v Shell (1993) 4 NWLR (pt 289) 512Withdrawal of Notice is Permitted. See Brindle v HW Smith (1973) 3 All ER 130- notice does not become effective until the day of its expiration or when the employee stops coming to work. It could be withdrawn before it expires provided it has not been accepted by the other party.Notice is not required to be accepted by the other party in order to be valid - Resignation need not be formally accepted to be valid .See Yesufu v Gov of Edo State (2001) 26 WRN 121,133

30. Notice of TerminationIn the absence of any stipulation in the contract as to the length of the notice, section 11(2) LA provides for the following length of time: (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.

31. Notice of TerminationThe Act requires that any notice that is for a period of one week or more shall be in writing and the period of notice excludes the day on which the notice is given (section 11 (2) & (3) LA). The contract of employment can or usually also provides that payment can be made in lieu of notice (section 11(6) LA). Where this is done, the contract is terminated once the payment has been made. Once notice has been given, some have postulated that it may not be withdrawn without the consent of the other party. However note that as stated earlier, a notice of resignation or retirement need not be accepted by the employer otherwise to insist on this requirement would amount to forced labour

32. Notice of TerminationWhatever may be the mode of termination of employment, the proper procedure must be followed and must also be exercised by the proper person vested with this right/power by the contract or law. Where the length of notice for termination of a contract of service was not predetermined by the parties, the common law rule applies. That rule is that the court will presume that a contract of service is to terminate by reasonable notice given by either party.

33. Notice of TerminationWhat amounts to reasonable notice will depend on The intention of the parties as revealed by the terms of the contract;The nature of the contractThe status of the employee in the establishment.The court could also have recourse to the custom of the trade to determine what is reasonable notice.Thus, the higher the position held by the employee, the larger his salary, the longer will be the notice required to put his contract to an end (see in S.S.Co Ltd v. Afropak Nig Ltd (2008) 18 NWLR [1118] 77)

34. Valid TerminationTermination must be lawful:It must be for a reason stated in COEProper notice must be givenThe agreed procedure of termination must be employedThe power to terminate must be exercised appropriately. See Hart v Gov Rivers State (1976) 11 SC 211 – the governor assumed the power vested in the civil service commission and the SC declared the action of dismissal as invalid. Where no method is agreed, a reasonable method should be adoptedArticle 4, International Labour Organisation(ILO) TOE Convention 1982 -the employment of a worker shall not be terminated unless there is a valid reason connected with capacity, conduct or based on operational requirement of the service34

35. Termination of Employment by Summary DismissalDespite the requirement for a notice before termination of an employment, either of the parties still has the right to terminate the contract without notice by reason of such conduct by the other party that would enable him to treat the contract as repudiated (S. 11(5) LA). Dismissal refers to discharge from service or office.Summary dismissal refers to a termination of the contract of employment by the employer without notice and it usually takes immediate effect. Dismissal from employment carries a stigma with it in and the worker is deprived of his benefits unlike retirement.

36. Termination of Employment by Summary DismissalAn employer has a right to summarily dismiss a worker for gross misconduct which includes willful disobedience to lawful and reasonable orders, neglect and conduct incompatible with the master’s business or worker’s duties. This right is exercisable whether the contract is for a fixed term or not and is viewed to be implied in the contract of employment. It can also be viewed as a power to rescind the contract upon a serious fundamental breach by the worker which goes to the root of the contract.Such a worker therefore loses his entitlement to notice or payment in lieu of notice by his gross misconduct.

37. Termination of Employment by Summary DismissalA master has full powers to terminate the employment of his servant at any time, for any reason or indeed for no reason at all provided the termination follows the procedure spelt out in the contract of service; otherwise the master will be liable in damages for the breach of contract.

38. Termination of Employment by Summary DismissalGross misconduct is a conduct of a grave and weighty character as to undermine the confidence which should exist between the employee and his employer or working against the deep interest of the employer (see U.B.N Plc v. Soares (2012) 11 NWLR (pt 1312) 550) Misconduct is viewed seriously and punished harshly. Any act outside the scope of any employee’s duties in his employer’s establishment which is prejudicial to the latter’s interest is willful misconduct.

39. U.B.N Plc v. Soares (2012) 11 NWLR (pt 1312) 550The respondent led other staff of the appellant in a strike action contrary to his contract of employment. The respondent and others involved in the strike action where consequently dismissed. All other staff involved in the strike action later wrote letters of apology on the basis of which the appellant allowed them to resign their appointments thereby entitling them to gratuity and pension. The respondent failed to write an apology and rather sued for wrongful dismissal.

40. U.B.N Plc v. Soares (2012) 11 NWLR (pt 1312) 550The trial court found in favour of the respondent but this decision was upturned at the court of appeal. The court of appeal held that:Willful disobedience of a lawful and reasonable order of an employer by an employee is a definite act of misconduct, which at common law, attracts the penalty of summary dismissal, because such willful disobedience is a reflection of a total disregard of an essential condition of a contract of service, namely, that the servant must obey a proper, responsible and lawful order of the master, in default of which their contractual relationship cannot be expected to continue.

41. Termination of Employment by Summary DismissalHowever, the employer who acquiesces or has waived this right cannot seek to exercise same right later. Ademola CJN stated in Electricity Corporation of Nigeria v. George Micol (1969) NMLR 265, 269 that: ‘it is settled law that if a master did not complain and appeared to be satisfied with a servant’s conduct, that complaint cannot be a ground for dismissal on a subsequent occasion’. Before the employer’s act can amount to condonation, he must have known about the misconduct and done nothing about it.

42. Termination of Employment by Summary DismissalAn employer must give reasons for summarily dismissing a worker. In Nunnink v. Costain Blansevoort Dredging Ltd (1960) LLR 90, the court held that where an employer dismissed a worker for incompetence, the onus was on the employer to prove the incompetence of the worker.

43. Termination of Employment by Summary DismissalThe exercise of the power of summary dismissal is also subject to the principles of natural justice (audi alterem partem and nemo judat in causa sua).This is particularly so for where the employment is one with statutory flavour or the procedure for summary dismissal is stipulated in the contract of employment.It also applies where the employee is to be dismissed for gross misconduct bordering on criminalityThe employee must be tried by an independent tribunal and also given the opportunity to defend himself.

44. Termination of Employment by Summary DismissalThe worker must know the allegations against him and the supporting evidence and thereafter be allowed to defend himself. Even where a preliminary inquiry was made by a board, the report of such a board alone cannot be the basis of a summary dismissal in the absence of the worker having an opportunity to defend himself (see A.I Wilson v. AG of Bendel State & Ors (1985) 2 NWLR (pt 4) 572).

45. Termination of Employment by Summary DismissalNote that mere participation in the proceedings of an inquiry or giving evidence before it does not necessarily constitute fair hearing as required by section 36 of the constitution. Oputa JSC stated in Garba & Ors v. University of Maiduguri (1986) 1 NWLR (pt 18) 550 that ‘the courts have always drawn the vital difference and distinction between hearing a man as a witness in an administrative inquiry and hearing him in defence of his good name, his integrity or his conduct’. Where the worker is not given fair hearing, the court will set aside the dismissal.

46. Motive for Termination of EmploymentThe law does not consider the motive behind the termination of employment; it only considers whether the termination was wrongful or not (i.e whether due process was followed)In Nfor v. Ashaka Cement Co. Ltd (1994) 1 NWLR (pt319) 222, the plaintiff was paid 3 months salary in lieu of notice at the time of termination of her employment as stipulated under his coe. He sued for a declaration and damages. The court held that he was not entitled to the reliefs sought and stated that once a contract of employment is legally terminated, motive is irrelevant in common law contract of employment.

47. Suspension of Contract of EmploymentThis is the state of affairs where a contract of employment is still in force but there is neither work being done in pursuance of it nor remuneration being paid under the agreement. It is a temporary deprivation, cessation or stoppage of the privileges and rights of an employee.Suspension of the employee can take place as a disciplinary measure against an erring employeeIt can also occur in order for the employer to decide or investigate allegations of misconduct made against an employee.

48. Suspension of Contract of EmploymentSuspension is not the same as dismissal or termination of employment; it is only putting the contract of employment on holdSome employees may be put on full or half salaries during this period and some may not be paid at all.

49. Termination of Employment with Statutory FlavourWhere a worker is employed pursuant to a statute or regulation, then such an employment is deemed to have a statutory flavor. This type of employment is regulated by statutes and not just common law rules that govern the master/servant relationship. An employee with such an employment can only be disciplined and the appointment terminated according to the procedure provided in the statutes. Therefore, employment with statutory flavor enjoys a special status higher than the ordinary master/ servant relationship.

50. Termination of Employment with Statutory FlavourWhere the laid down procedure is not followed such act of discipline or determination is null and void and of no effect. Generally, employment in the private sector is that of a master and servant while in the public/civil service it is usually with statutory flavor.

51. Alhassan v. ABU Zaria (2011) 11 NWLR [pt 1259] 417, 454Where the conditions for the appointment or determination of a contract of service are governed by the provisions of a statute such that a valid determination or appointment is predicated on satisfying statutory provisions, such contract is said to enjoy statutory protection. The contract is not determinable by parties but only by statutory preconditions governing its determination

52. Alhassan v. ABU Zaria (2011) 11 NWLR [pt 1259] 417, 454However, the fact that an employer is a creation of statute or statutory body does not, without more, raise the legal status of its employees over and above the normal common law master and servant relationship. The facts that an employee is a Federal Public servant and the employer is created by statute do not on their own elevate the employee’s contract of employment to a contract with statutory flavor.

53. Alhassan v. ABU Zaria (2011) 11 NWLR [pt 1259] 417, 454Also, the fact that a person is pensionable federal public servant does not mean that his contract of employment is protected by statute. Whether a contract of employment is governed by statute or not depends on the interpretation of the contractual document or the applicable statute

54. Alhassan v. ABU Zaria (2011) 11 NWLR [pt 1259] 417, 454the appellant was a senior staff of the 1st respondent. He was initially employed as an administrative officer and subsequently posted to the security office and later as college secretary of the college of agriculture. While in the last position, in disobedience to the college’s instruction, he contested for chairmanship of SSANU and lost. He was therefore given a query and letter of last and strong warning. His appointment was eventually terminated and he was paid 3 month’s salary in lieu of notice.

55. Alhassan v. ABU Zaria (2011) 11 NWLR [pt 1259] 417He contested this termination at the court on the ground that his appointment was wrongful and sought order for reinstatement with payment of all his accrued salaries and emoluments in arrears. Though he lost at the trial court, on appeal, the court of appeal after considering certain provisions of the law and his contract of employment concluded that statutory provisions where incorporated in the appellant’s contract of employment.

56. The case showcases the following:Where the employee is still on probation, no procedure need to be followed provided there is satisfaction that there is good cause for the termination. However once the appointment is confirmed, the procedure for termination must be followed otherwise the termination shall be invalid.Where the officer is guilty of misconduct or a breach of regulation, then a lis inter partes arises and there arises also a need for a hearing before deciding his guilt. There is a case for an administrative body acting judicially. The principles of fair hearing binding on judicial bodies are therefore imported automatically.

57. The case showcases the following:In public employment, where the employee is qualified by appointment for a permanent and pensionable position and has actually satisfied the conditions, there should be, in the interest of justice, a presumption that the employment cannot be terminated by mere notice but should be terminated only for misconduct or other specified reason

58. The case showcases the following:In a contract with statutory flavour, unless the contract of employment is properly determined in the manner envisaged by the contract of employment, an order of specific performance or re-instatement will normally be made by the court.Once a finding is made by a trial court that an employment has statutory flavor, and the termination was wrongfully made and void, the only consequential order that can follow such finding is the re-instatemnt of the employee. The inference is that the employment is deemed to be continuous and it will be as if there had never been a termination. An order of reinstatement is therefore the only logical order to follow such findings.

59. The case showcases the following:An employer in this instance has no right to terminate the appointment at will because the employee does not hold his appointment at the pleasure of such employer. Unilateral termination of employment with statutory flavor does not terminate a contract of employment. However if the employee accepts the unilateral repudiation of the contract this can terminate the contract. But where he does not accept it whether expressly or by his conduct, there could be no valid repudiation. The repudiation by one party alone does not terminate such a contract, it takes two to end it.

60. The case showcases the following:Under the common law master/servant relationship, where an employee accepts salary in lieu of notice of termination of his employment, he may not be heard to complain later that his contract was not validly and properly determined because his conduct could render the determination mutual.However acceptance by an employee under statute of salary in lieu of notice does not amount to acceptance of the invalid and void retirement.Also application for and collection of salary in lieu of notice does not render valid the invalid and void act o f unlawful and wrongful retirement. As an act which is void ab initio, it cannot be validated by subsequent acts even if valid. Such retirement remains void notwithstanding the acceptance of the payment of salary in lieu of notice.

61. Gov. Ekiti State v. Akinyemi (2011)17 NWLR [pt 1276] 373 the appointment of the chairman and members of the Ekiti state local government service commission (the respondents) was terminated by the appellants before the expiration of the their tenure. They were appointed pursuant to the local government services commission law. Without regards to the procedure laid down under the law, they were dismissed by a radio announcement. The appellants argued that the respondents were appointed at the pleasure of the appellant. The trial court disagreed with this and held that the respondent's appointment had a statutory flavor and they were therefore entitled to hold office for 3 years and can only be terminated in accordance to the provision of the law.

62. Gov. Ekiti State v. Akinyemi (2011)17 NWLR [pt 1276] 373 Upon appeal, the court of appeal dismissed the appeal. The court held that the ratio decidendi of Olaniyan v. University of Lagos (1985) 2 NWLR [pt 9] 599 ( a locus classicus on this case) is that where there are clear statutory provisions governing the relationship of master and servant, the only way to terminate the contract of service of the servant is by complying with the procedure laid down in the statutory provision.

63. Gov. Ekiti State v. Akinyemi (2011)17 NWLR [pt 1276] 373 It further distinguished between a contract of employment in the private sector and that of the state or governmentIn the private sector, the power to employ originates from common law, while the power of the state or government to employ is regulated or founded on statute. The legal relationship of the rights and duties between the employer and employee are imposed by the public law and not by mere agreement of the parties. This relationship is therefore not like ordinary contract of service between a master and a servant. It goes beyond that. The employment, promotion, discipline or removal of a public employee is therefore regulated by statutes and no public office, organ or body or person exercises his personal powers.

64. Gov. Ekiti State v. Akinyemi (2011)17 NWLR [pt 1276] 373 Fair hearing in this instance means that the employee shouldknow the allegation against him and the evidence in support of this, be given the opportunity to defend himself, be present at the investigation by the committee at all times, be given the opportunity to listen to and cross-examine the witnesses testifying against him, present his own evidence or witnesses.

65. Wrongful Termination of Contract of EmploymentThis occurs when the contract is brought to an end in breach of terms of the agreement or some other unlawful means. Where a worker’s employment is terminated, he is generally entitled to damages. But where such wrongful termination amounts to a dismissal, he may also be entitled to a reinstatement which is basically returning him to his status quo ante especially where the employment enjoys statutory protection.

66. Wrongful Termination of Contract of EmploymentIn master/servant relationship, reinstatement is rarely granted since the court would not like to force an unwilling master to continue to work with a servant (UBN v. Chinyere (2010) 10 NWLR [pt 1203] 453, at 475). The onus of proving wrongful termination of employment however lies on the employee. He has to show the court the terms of his employment and the ways and manners these were breached.

67. Remedies for Wrongful Termination of Contract of EmploymentRemedies provided by the contract of employment:the contract of employment can specify the remedies accruing to each of the parties where there is a breach of contract. Such specified remedies would be enforced by the court. Parties are free to stipulate remedies so long as they are not illegal or contrary to public policy. The contract can also specify the form of remedy such as payment of money as compensation for breach. It can also stipulate the procedure for obtaining such remedies such as submitting the dispute to an arbitration. The court will enforce such a clause and will not assume jurisdiction unless the parties had earlier gone through arbitration.

68. B. Remedies provided by Common Law and Equitythese are remedies that would be available in any breach of contract except that the uniqueness of employment contracts are taken into consideration.

69. 1. Rescissiona contract may be avoided where either of the party has repudiated the contract or on the grounds of fraud. Mere repudiation of a contract will not put an end to the contract unless there other party accepts it. Once it is accepted, the contract is terminated and the other party can rescind the contract Dr. Adesegun Banjo v. Uni of Ibadan (1979) 2 OY SHC 248 where the plaintiff accepted the repudiation of the defendant, the court held that the contract had been terminated and there was no longer a foundation upon which the plaintiff could rest the continuance of the contract.Section 82(1)(d) LA also empowers the court to rescind a contract of employment ‘upon such terms as to apportionment of wages or other sum due …’ as it deems fit.

70. 2. Apportionment of Wageswhere a contract of employment is terminated by operation of law (such as liquidation of a company, frustration of the contract) the worker is still entitled to his wages according to the terms of the contract and where not specified, he is entitled to a reasonable remuneration on a quantum meruit basis. See section 81 (1) (a) LA.

71. 3. Declaration of Rightsan aggrieved party can apply to the court to make a declaration in respect of their rights under a contract of employment. A declaratory proceeding essentially determines the legal rights of the party seeking it. It is suitable where the aggrieved party is desirous of challenging the validity of the decisions or action of the other party with a view to declaring it null and voidIt is ideal where some condition precedent necessary for effective exercise of the power of dismissal or termination of employment are not complied with; therefore effective in curbing abuse of power.Also used where a person acting in dual capacity acted in one instead of the other.

72. George Hutchful v. Hamilton Biney & Anor (1971) 1 All NLR 168the 1st defendant was acting both as the chairman and governing director of the 2nd defendant company. The court held that the dismissal of the plaintiff was ultra vires even though the governing director had the powers to remove any director howsoever appointed, the letter of removal had been signed by the 1st defendant as the managing director which power the managing director does not possess.

73. 3. Declaration of RightsWhere termination of a worker’s employment is in breach of the right of fair hearing, or disregard for principles of natural justice, the court will declare such as invalid.Fair hearing is also mandated by section 262(2) of the Companies and Allied Matters Act in the removal of a director of a company. Note that being a declaratory judgment, it may not be easily enforceable as such especially in the Nigerian society where many do not have regard for the rule of law. It can however be enforced through an order of mandamus or committal to contempt. Usually, other remedies such as an injunction are sought together with a declaratory judgment in order to give it effect.

74. 4. Injunctionthis is an order of the court restraining a party from doing an act or compelling a party to do an act. The court is reluctant to compel performance of a contract of service either by a worker or employer unless there has been a breach of some law. Karibi Whyte in Olaniyan & Ors v. Uni of Lagos (1985) 2 NWLR (pt 9) 599, stated as follows: ‘it cannot now be disputed that there are contracts of service which are not of personal service and in respect of which sentimental reasons of personal relationship do not apply. For instance, the contract of service in the civil service and statutory corporations, though creating a relationship of master and servant, the personal relations in respect of domestic servants contemplated at common law does not exist’.

75. 4. InjunctionOther exceptions include as stated in Adebayo Ojo v. Lister Motors (Nig) Ltd (1980) OYSHC, 1: ‘In some cases, a servant who has been wrongfully dismissed may get an order of specific performance i.e an order reinstating him or an order restraining the master from dismissing the servant. Instances of such occasions are where the contract is for life, or where there is no power to terminate the contract by either side due to statutory or contractual terms excluding the power of termination’.

76. 4. InjunctionThe courts are however not so reluctant where the order is to restrain one of the parties from committing a breach of contract or the law. Lumley v. Wagner (1843) 60 All ER 368-an injunction was granted restraining an opera singer from singing in another theatre in breach of her COEUdeaja v. Rex Jim Lawson (1966-67) 10 ENLR 252 –injunction restraining the defendant from committing a breach of his contract of serviceWarner Brothers Pictures Inc v. Nelson (1937)1 KB 209 – defendant actress was restrained from acting in a film by another company in violation of her contract with the plaintiff.

77. InjunctionThe court is likely to grant an injunctive relief where: (i) the relationship between the employer and worker is impersonal and does not involve personal confidence, (ii) the nature of the employment or consequences and circumstances of a unilateral termination will be inequitable; and(iii) the purported termination is without regard to statutory procedure or in breach of rules of natural justice.

78. 5. Damagesrefers to monetary compensation for loss or injury suffered. Damages is a very common remedy where there has been a wrongful termination of a contract of employment.Note that damages are not expected to be a gold mine for the injured party but are rather intended to provide reasonable compensation for the loss or injury suffered. Damages may be assessed based on the amount the worker would have earned including any benefits or entitlements had the contract lasted its full term or during the period of notice(see I.H.A.B.U.H.M.B v. Anyip (2011) 12 NWLR (pt 1260) 1 at p.20). It can also take the age, opportunity of obtaining another job and other fringe benefits into consideration

79. UBN v. Chinyere (2010) 10 NWLR [1203] 453The Court of Appeal held that where the termination of a contract of service is wrongful, the measure of damages the plaintiff would be entitled to would be salaries for the length of time during which notice of the termination would have been given in accordance with the contract of employment. The plaintiff would also be paid other legitimate entitlements due to him at the time the employment was brought to an end.

80. 6. Specific Performancesuch an order is hardly made in labour matters since the court is reluctant to force an unwilling employer or worker to work together. An order of specific performance may be granted on the same conditions as they are granted under law of contract which are (i) the plaintiff must show that a contract exists and that the plaintiff performed his own part of the contract (ii)where the subject matter of the contract no longer exists (eg where the post has already been filled) the court is not likely to grant the order

81. 6. Specific Performance(iii) the court is inclined to grant it where the condition precedents have been fulfilled and the party seeking it has fulfilled or is ready to fulfill his part of the contract (iv) the order will be made only where it will not cause injustice to a third party (v) the court is likely to make the order where damages is an inadequate relief (vi) the court will not grant it where it will be difficult or impossible to enforce the order.

82. Specific performanceSpecific performance is an equitable remedy and it is granted at the discretion of the court where damages would not be sufficient.Essentially, it refers to the reinstatement of the employee in the employer’s serviceThe court hardly makes such an order in common law employment since it would amount to forcing two unwilling parties to work togetherSuch orders are however made with respect to employment with statutory flavour. See Olaniyan & Ors v. University of Lagos (1985) 2 NWLR (pt 9) 599; Okocha v. Civil Service Commission, Edo State (2004) 3 NWLR (pt 861) 494

83. 7. Prerogative RemediesThese are prohibition, certiorari and mandamus. Prohibition is an order of the court that restrains a party from taking a course of action which may adversely affect the vital interests of another. An order of certiorari requires the proceedings of a body to be brought before the High Court in order to determine whether they are lawful and if not they are quashed. An order of mandamus compels that a specific act must be done by the body or person who has a public duty to do it against whom a declaratory judgment might have been obtained.

84. C. Statutory RemediesThese are specific remedies provided by certain statutes. For instance right to pension under the Pensions Reforms Act, right of an employee to compensation under the Employees Compensation Act, right of a worker to be paid his wages during a lock out under the Trade Disputes act, right of a worker dismissed due to redundancy to be paid compensation under the Labour Act.