The regulation of the relationship between an employer and an employee is derived from 2 primary sources i.e. (i) statutes and (ii) the contract of employment. The contractual terms are either expressly stated in the contract of employment or they may be implied by statute, custom/practice, Staff Handbook and collective agreements.
In Nigeria, an employer or employee has the right to terminate the employment for any reason or no reason at all. As long as he acts within the terms of his employment, his motive for terminating the employment is not relevant. The rationale behind this is the common law principle that you cannot force an unwilling employee on an employer and vice versa thus the Nigerian Courts will not impose an employee on an employer and vice versa.
A notice of resignation/termination of appointment becomes effective the moment it is received by the person or authority to whom it is addressed. This is because, there is absolute power to resign/ terminate an employment and no discretion to refuse to accept notice and it is not necessary for a person to whom the notice of resignation/termination is addressed to reply that the resignation/termination is accepted.
An employer has the right to dismiss an employee without notice for gross misconduct however this right is not to be abused to the detriment of the employee. It cannot be exercised at the whims and caprices of the employer, it must be exercised in accordance with the terms of the contract of employment and conditions of service.
The Supreme Court held in the case of , (where an employee had filed an action for unlawful termination of his employment and thereafter his employer issued him with a dismissal letter in a bid to frustrate his claims for damages and terminal benefits) as follows:
Where allegations of misconduct have been levied against an employee, it is pertinent that the employee be given a fair opportunity to defend himself against the allegations prior to dismissal. In the case of , Abba Aji, JCA held as follows:
Claims for salaries, allowances, terminal benefits etc. must be specifically pleaded and strictly proved and evidence on how a claimant arrives at the sums claimed must be adduced before the Court. Bare assertions and testimony without more is not sufficient. The claim must be specifically proved by adducing concrete evidence in support of it.
It is now settled law that an employee handbook shall only govern the contract of employment if it is expressly incorporated into the employee’s contract of employment. The implication of this is that if the Handbook is not specifically incorporated into the contract of employment, it is a mere gentleman agreement and if there is a breach of same, it is not enforceable in court.
The general position of the law is that a Collective agreement cannot be enforced by an employee (even if same was made for his benefit) if he is not a direct party or signatory to the Collective Agreement. This position of the Law is based on the doctrine of privity of contract which stipulates that the proper parties to sue for enforcement or breach of a contract are parties or signatories thereto.
A claim for redundancy entitlement is a claim for special damages which must be specifically pleaded and strictly proved. Such a claim will not be granted unless redundancy provisions or terms are provided for in an employee’s contract of employment or conditions of service. The contract of employment will provide what redundancy means and where no definition is provided, resort will be made to the Labour Act for what constitutes redundancy.