1. Dismissal for Fraudulent or Criminal Misconduct

 

  1. When an employee is discovered to be engaged in fraudulent or criminal activity such as stealing money or property of the employer, this will clearly amount to an act of gross misconduct which is a ground for dismissal. The question which has stirred much controversy is whether or not an employee who has engaged in gross misconduct of a criminal nature must first be prosecuted and convicted by a competent court before he can be dismissed from the services of the employer.

 

  1. The case of Garba v University of Maiduguri (1986) is widely quoted as being the authority for the above proposition. Now did that case really lay down this widely but wrongly held proposition? In Garba’s case students were expelled for riot, arson and looting after a hearing by an investigating panel set up by the Vice Chancellor. The Supreme Court held that the allegations against the students were breaches of the criminal law which the university was not empowered to treat as an internal matter without subjecting the students to a criminal trial. It is important to note that this decision had no bearing on the contractual relationship of master and servant. In Arinze v First Bank (2004), Belgore JSC while referring to Garba’s case said,

“This latter case has had many irrelevant references as holding that once a crime is detected the employer cannot dismiss an employee unless he is tried and convicted first. This is unfortunately an erroneous interpretation of that judgment.”

 

  1. The proposition that employees cannot be dismissed for gross misconduct of a criminal nature without prosecution can work injustice against employers. This will mean that the employer cannot dismiss but must place the employee on suspension until the conclusion of the trial when the employee may be acquitted for technical reasons or the trial may be inconclusive. In fact such an outcome may attract a claim by the employee for malicious prosecution. See UAC v Sobodu (2007).

 

  1. In Yusuf v Union Bank (1996), the appellant was dismissed for fraudulent diversion of money from the account a customer and he challenged the dismissal in court. Wali JSC said,

“On the issue of fair hearing which the appellant belatedly introduced, it is my considered view that before an employer can dispense with the services of his employee under the common law all he needs to do is to afford the employee an opportunity of being heard before exercising his power of summary dismissal, even where the allegation for which the employee is being dismissed involves accusation of crime. ……. It is not necessary, nor is it a requirement under section 33 of the 1979 Constitution that before an employer summarily dismisses his employee from his services under the common law, the employee must be tried before a court of law where the accusation against the employee is for gross misconduct involving dishonesty bordering on criminality.”

 

  1. In Arinze v First Bank (2004), the appellant was dismissed for insubordination, absenteeism, fraudulent overtime claims and forgery and he brought an action for wrongful dismissal against the bank. The appellant’s counsel argued that where an employee denies accusations of serious misconduct of a criminal nature he must first be prosecuted to establish his guilt before he can be dismissed. The Supreme Court rejected the arguments of counsel and held that an employer can dismiss for gross misconduct of a criminal nature even without first prosecuting the employee. The essential point is that there must be fair hearing by giving the employee reasonable and adequate opportunity of being heard on the allegations against him. Onu JSC said,

“The Court of Appeal in rejecting this proposition of law cited the Supreme Court in the master and servant case of Yusuf v Union Bank of Nigeria for the view that the prosecution of an employee before the law court is not a sine qua non to the exercise of the power of summary dismissal by an employer for gross misconduct.”

See also, Imonikhe v Unity Bank (2011), First Bank v Akanji (2017).

 

  1. Therefore, the law is settled by the highest judicial authority, that in cases of gross misconduct of a criminal nature, the obligation on an employer is to give the employee fair hearing before dismissal and it is not the law that the employee must be prosecuted and convicted by a competent court before he can be dismissed.

 

 2. Measure of Damages for Wrongful Termination

  1. Wrongful termination of employment means termination of employment without giving the required period of notice of termination stipulated in the contract of employment. Once the required period of notice is given, the termination is lawful no matter the motives of the employer. The concept of unfair dismissal has not yet developed in Nigeria. The employer is not required to state any reason in the letter of termination. Therefore, the measure of damages for wrongful termination of employment is basically the remuneration of the employee for the period of notice required but which was not given by the employer. Many employees still challenge the wrongful termination of employment claiming huge sums of money without proper knowledge of the settled law on the subject and often come away disappointed.

 

  1. In Osisanya v Afribank (2007) the Supreme Court deliberated on the measure of damages for wrongful termination of employment and held per Ogbuagu JSC,

“In a master and servant relationship, the damages available to the employee, is the payment of his salary and other entitlements already lawfully accruable and payable for the period for which the employee should have been given notice of termination. The damages will be the amount he would have earned if his employment was properly and validly determined.” See also, Chukwuma v Shell Petroleum (1993), International Drilling Company Nig. Ltd v Ajijola (1976), Imoloaeme v WAEC (1992).

  1. In Idufueko v Pfizer Products (2014), the respondent wrote a letter terminating the appointment of the appellant who therefore commenced an action against them claiming the sum of N2,883,727 as general and special damages arising from the unlawful termination of his employment. The trial court held that the termination was wrongful and awarded the sum of N21,135.34k. The appellant was dissatisfied and appealed against the award of damages. The Supreme Court, per Galadima JSC said,

“The standard set by law for assessment of damages to a party whose employment has been unlawfully terminated has been established in a plethora of decisions of this court. The position of the law is that where the termination of a contract of service was found to have been wrongful, the measure of damages that the plaintiff could be entitled to would be the salaries for the length of time during which notice of the termination would have been given in accordance with the contract of employment. He would, in addition, be paid other legitimate entitlements due to him at the time his employment was terminated.” See also, Geidam v NEPA (2001), Shell PDC v Olanrewjau (2008).

  1. In Oforishe v Nigerian Gas (2017) the Supreme Court said on the measure of damages for wrongful termination of employment, per Galinje JSC,

“In the case of a breach of the terms of the employment, the employee’s remedy lies in damages calculated on the basis of what he would have earned for the period of notice agreed for ending the employment.”

  1. Wrongful dismissal, on the other hand, means dismissal for an act of fraud or gross misconduct and no period of notice is required, provided the employee was told the reason for dismissal and was given fair hearing before dismissal. The measure of damages for wrongful dismissal is not limited to the remuneration of the employee during contractual period for notice of termination. In Akisanya v Coca Cola (2017), the Supreme Court awarded the damages of N17m against the employer. Therefore, it is advisable for companies to seek legal advice before the dismissal of an employee.