WHEN IS SUMMARY DISMISSAL APPROPRIATE IN NIGERIA LABOUR LAW?
Summary dismissal is a common law right of the employer to terminate the contract of service of an employee without option of issuance of a month notice or payment of a month salary in lieu of the notice.
OUR STORY
Quality, not quantity
We have made quality our habit. It’s not something that we just strive for – we live by this principle every day.
WHEN IS SUMMARY DISMISSAL APPROPRIATE IN NIGERIA LABOUR LAW?
Summary dismissal is a common law right of the employer to terminate the contract of service of an employee without option of issuance of a month notice or payment of a month salary in lieu of the notice.
Section 11 of the Labour Act 2004 provides thus:
‘‘Either party to a contract of employment may terminate the contract on the expiration of notice given by him to the other party of his intention to do so.
(1) The notice to be given for the purposes of subsection
(2) of this section shall be-
(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.
(3) Any notice for a period of one week or more shall be in writing.
(4) The periods of notice specified in subsection (2) of this section exclude the day on which notice is given.
(5) Nothing in this section affects any right of either party to a contract to treat the contract as terminable without notice by reason of such conduct by the other party as would have enabled him so to treat it before the making of this Act.
(6) Nothing in this section shall prevent either party to a contract from waiving his right to notice on any occasion, or from accepting a payment in lieu of notice.
(7) All wages payable in money shall be paid on or before the expiry of any period of notice.
(8) If an employer gives notice to terminate the contract of employment of a worker who has been continuously employed for three months or more, the employer shall not be liable under this section to make any payment in respect of a period during which the worker is absent from work with the leave of the employer granted at the request of the worker.
(9) In the calculation of .a payment in lieu of notice, only that part of the wages which a worker receives in money, exclusive of overtime and other allowances, shall be taken into account.’’
Invariably, the principle of summary dismissal when validly applied, does not infringe the provision of section 11 of the Labour Act 2004. It therefore goes beyond saying that summary dismissal is an exceptional circumstance where an Employer can validly determine or whistle-off the employment contract with an Employee based on the conduct of the employee that on the face of it amount to gross misconduct.
Contrary to other options available for determination of contract of service, the employer who utilised summary dismissal shall solely do so where there is an established gross misconduct from part of the Employee. Such misconduct must primarily offend the essential provision of the contract, and establishing that by doing so, the employee no longer treats the contract as subsisting.
An Employer is entitled to an option for the dismissal of its employee rather than of the termination of a contract of employment where the conduct is one that is so gross and weighty misconduct such that it treats the contract as not subsisting or made it impermissible for the contract to subsist.
The right to dismiss for incompetence exists and is predicated on the fact that by taking of the job, the employee has impliedly warranted that he has the necessary skill and competence needed to effectively perform the function. Failure of the employee to fulfill the warranty is therefore said to constitute an act of misconduct justifying dismissal.
Where the conduct of an employee amount to a crime, the employer is entitled to dismiss such an employee. A professional misconduct leading to striking off of the offender/employee name form the roll of members of his profession invariably will make it impossible for a servant to continue in the employment. Depending on the nature of the employee’s duty, where his conduct fall short to the above to extend of defacing the employer and its nature of business vis-à-vis its relationship with clients, it will be valid to dismiss such employee summarily.
NB: This article is not a legal advice, and under no circumstance should you take it as such. All information provided are for general purpose only. For information, please contact chamanlawfirm@gmail.com
WRITTEN BY CHAMAN LAW FIRM TEAM
EMAIL: chamanlawfirm@gmail.com
TEL: 08065553671, 08024230080