ILO Standards and the Nigerian Law of Unfair Dismissal

Dismissal usually connotes the exercise by an employer of a right to terminate a contract of employment on account of some misconduct on the part of the employee. To underscore the use of this term, it is sometimes aptly called ‘summary dismissal’. Thus an employee whose contract was terminated by notice in accordance with his contract of employment is ‘not dismissed’ nor is one who has merely resigned his appointment.⁶6

See, contra, Osborn's Concise Law Dictionary, 8th edition. Sweet and Maxwell (2002), where the term, ‘dismissal’ was defined to included instances of resignation and termination by way of notice.

Outside these situations where a summary dismissal is justifiable at common law, the boundaries of what constitutes unfair dismissal are blurred.¹²12

‘Unfair dismissal’ may refer to conduct that is ‘socially unwarranted’ or ‘not for real and serious reasons’ or ‘not for objectively valid grounds’. See J. Stieber, ‘Protection against Unfair Dismissal: A Comparative Review’, 3 Comp. Lab. L. (1980) 229.

The nature of a contract of employment as between employer and employee has been known to belong to different categories. There is the office held at pleasure. This has lost meaning in present-day Nigeria, particularly since the 1963 Re-publican Constitution, reinforced by the 1979 Constitution. Office at pleasure is now namely a feature of servants of the Crown in England. The continued existence in office at pleasure by any servant, as it implies is at the pleasure of the employer. There is no remedy against removal from such office and no grievance can be entertained by the courts.

Here is another category, which is subject to statutory regulation or condition. An employee falling under this cannot be removed unless the conditions are strictly complied with coupled with the observance of the rules of natural justice and for cause shown. Non-compliance makes such removal null and void. In appropriate cases, re-instatement to the office or employment follows. There is a third category where the contracts if for a definite period and backed by the constitution, e.g. office of the Public Service Commission. The holder can only be removed for cause shown by the appropriate authority; otherwise, full compensation for the unexpired period is usually the remedy. Finally, there is the ordinary master and servant relationship. If there is a written contract, removal must be in accordance with the terms otherwise indemnity covering the period of notice to determine the contract serves as a remedy. If no written contract what amounts to reasonable notice or payment in lieu will suffice.¹⁵15

Emphasis mine.

The emphasised portion of the above dicta confirms the pitiable state of insecurity of employment in ordinary employment relationships in Nigeria. Under the common law, where a contract of service gives a party a right of termination of the contract by either giving a particular length of notice or mere reasonable notice and the right is exercised without the requisite notice, the party seeking to put an end to the contract must pay to the other party the salary in lieu of notice. If the employer gives notice of the length which the contract requires or a minimum statutory notice which the law requires, then the contract is lawfully terminated¹⁶16

Ikekhide v. Lagos University Teaching Hospital Management Board, CCHCJ/6/74 p. 715, Maiza v. Taylor Woodrow of Nig. Ltd, CCHCJ/12/72, p. 52, Olaniyonu v. British American Insurance Co. Ltd, [1974] 1 NMLR 64. The Court of Appeal took the reasoning in these cases a bit further when it held in Charles...