Jun 15, 2017

A Brief Analysis Of Constructive Dismissal | Busayo Adedeji

Simply put constructive dismissal is the changing of an employee's job or working conditions with the aim of forcing their resignation. It is resignation because of the employer creating a hostile work environment. Since the resignation was not truly voluntary, it is in fact, a termination. An example of constructive dismissal might be a situation where an employer forces a senior officer to take instructions from his juniors (where the senior officer is clearly more experienced and competent) or any such other related actions in an attempt to frustrate the employee to the point of resignation.

Employers might wish to know that the concept of constructive dismissal, though not often heard of in Nigerian labour and employment issues is no longer alien to this clime. This is especially as the third alteration to the 1999 constitution empowers the National Industrial Court of Nigeria (“NICN”) to apply international best practices in labour in arriving at its decision. Also, noteworthy in this regard is the provision of section 19(d) of the NICN Act (2006) which provides that:

“The court may in all other cases and where appropriate make any other including; an award of compensation or damages in any circumstance contemplated by this Act or any other Act of the National Assembly dealing with any matter that the court has jurisdiction to hear”.

In Miss Ebere Ukoji v. Standard Alliance Life Assurance Co. Ltd [2014] 47 NLLR (Pt. 154) 531 NIC, the court held that to attempt to have the employee resign, rather than outright firing the employee means that the employer is trying to create a constructive discharge.[ii]

Generally, an employee bringing a claim of constructive dismissal must (1) show that his employer created a hostile work environment in a bid to get him to resign; and (2) that the hostile work environment led to his resignation.

[ii] The Changing Face of Nigerian Labour Law Jurisprudence and What Employers Need to Know. By Hon. Justice Benedict Bakwaph KANYIP, PhD

Regulatory Compliance & Commercial law advisor

Ed's note - This article was first published here