How unfettered is right to hire and fire?

AS the world grapples with the covid-19 pandemic, it is very important to enlighten the public on some of the inevitable consequential issues in human relationships. Sacrosanct among these relationships is employer-employee relationship, which many have to contend with at all levels, following the gradual ease of lockdown post Covid-19 pandemic. In a developing country like Nigeria, one could contemplate a situation where, in a bid to cut expenses, a company resorts to terminating the contracts of employment between it and employees. In such instance, the company more often than not seeks asylum under the guise of employment relationship which basically is governed by agreements between parties.  In determining the modus operandi that applies termination of contract of employment, it is apposite to know its various classifications. Basically,there are three categories of contract of employment, viz: purely master and servant relationship, servants who hold their office at the pleasure of the employer and employment with statutory flavor. However, I would restrict this piece to discussing but servants who hold offices at the pleasure of their employer because this class of contract is terminated at the will of either party with no string attached.

A contract of employment with statutory flavor is one where the employer is created by statute or law and its conditions for appointment and termination of the contract are governed by enabling statute. Consequently, a valid appointment or termination of the contract must satisfy provisions in the enabling statute. On the other hand, contracts of master and servant without statutory flavour are classified as ordinary contract of service which basically are governed by an employee handbook where the conditions of service are spelt out. Under the master and servant contract of employment the employer can terminate the services of the employee with, or without reasons. Furthermore, the intention and motive for termination of employment is never considered by the court. The law is that, the reason(s) for exercising these rights are irrelevant. The termination of employment would be lawful if the terms of the contract of service between the employer and the employee are complied with.

In view of the above descriptions and powers, there are situations where the employee exercises their power arbitrarily, which definitely prejudice the right of the affected employee. While there may be less difficulty in the contract of employment with statutory flavour, there seems to be more riddles in the exercise of powers by employers in master and servant relationship. Or does it mean that since the employer is imbued with the right to hire and fire with no obligation to give reason; either good or bad, then the employees have no right whatsoever as regard the termination of appointment under master and servant relationship? Let’s take into consideration where the reason purportedly alleged or insinuated by the employer for the termination of the employee’s right is one which relate to criminal act? Will the employee in this situation fold his arms, allowed himself to be unjustly edged out, with a dent reputation? What redress, if any, is open to the aggrieved parties in situation like this? For the purpose of clarity, it is apposite to express this hypothetically.

Mr. Covid, a former employee of Pandemic Nigeria Limited (“the company”), alleged that his employment with the company was wrongfully terminated. He also alleged that the termination of his employment was based on the purported report by a Panel set up by the management of the company. He further stated that the Panel relied solely on the confessional statements of “some workers” in the company who were allegedly involved in the misconduct. The misconduct was based on allegation of extortion, fraudulent act and indulging in unauthorized activities in the name of the company. The company, being one that’s not created by any Statute exercised its right to hire and fire by relying solely on the findings of this panel. From the fact of the above case, it can be deduced that Mr. Covid was never summoned by the Panel for him to state his side of the case. It has been held in a plethora of cases that in any trial by a court of law or even panel of enquiry, particularly when the allegation involved is criminal related offence, there must be adherence to the principle of fair hearing as enshrined under section 36 of the 1999 Constitution. Any proceeding conducted in breach of a party’s fundamental right to fair hearing, no matter how well conducted, written and delivered with eloquence, is a nullity- Wagbatsoma v FRN(2018) 8 NWLR pt. 1621 199 SC. It is apt to state that, even if he had been summoned, his right to fair hearing is inalienable and must be strictly observed during the panel’s enquiry.

The position of the law used to be that, where an employee was accused of an act bordering on criminality, unless that employee was charged before a court of law and a conviction was obtained, dismissal would be unlawful- Garba v University of Maiduguri (1985) 2 NWLR 599 and Federal Civil Service v Laoye (1989) 2 NWLR pt. 106 652. This means that the company could not terminate the appointment of an employee without court judgment when the reason alleged is of criminal nature. In Sofekun v Akinyemi (1980) 2 NWLR 12 NSC page 175 where the appellant, a medical doctor, was alleged to have committed a number of acts of misconduct, including indecent assault, carrying out certain examinations in the absence of a third party and attempting to have a canal knowledge of a patient. The appellant was investigated by a disciplinary panel which found him culpable and summarily dismissed him from the hospital. The Supreme Court held that the jurisdiction and authority of the courts to try a person for any act of criminality cannot be usurped; once a person is accused of a criminal offence, he or she must be tried in a court of law where the compliant can be heard in public and a fair hearing is enshrined.

In what amounts to a reversal of the above position, in Eze v Spring Bank Plc.(2011) 8 NWLR pt. 1278, the court held that where an employee commits acts of gross misconduct against his employer which acts also disclose criminal offence under any law, the employer no longer has to wait for the outcome of the prosecution of the employee before taking a decision to such misconduct.

The above decision in Eze’s case was reaffirmed with emphasis on adherence to right to fair hearing. In Imomikhe v Unity Bank Plc. (2011) 12NWLR Part 1262 p. 624 to 649 the appellant was a clerk in the respondent bank. The appellant was accused of having fraudulent acts. The allegation against Imonikhe and his response to such allegations were referred to the bank’s disciplinary committee, which found his response to be unsatisfactory. He was found guilty and dismissed from his employment.  The Supreme Court held that discipline for gross misconduct by employees can be done by employers even when the misconduct touches on criminal, PROVIDED that the employer observes basic principles of fairness by hearing the other side (under the audialterempartem doctrine). The Supreme Court in the case placed emphasis on whether the accused employee was given an opportunity to defend himself or herself in the face of the allegation, and whether there was a likelihood of bias or prejudice from any member of panel constituted to decide the employee’s fate. The key takeaway to be noted here is that, where the allegation is one which has the input of crime and the employer either set up or do not set up panel to inquire into the allegation or even set the law in motion against the accused employee by reporting the matter to law enforcement agency, the right to hire and fire without owing anybody reason for doing so is lost, and as such, right to fair hearing must strictly be heard at every stage of the inquiry, investigation or trial.

In view of the above, the remedies that are open to these categories of employees differ. While the remedy open to an employment with statutory flavour are specific performance, injunction or reinstatement, however, the available to an employee in an ordinary servant and master relationship for wrongful termination of employment is a claim for damages. This is based on the notion that no servant can be imposed by the court on an unwilling master, even where the master’s behavior is wrong- Obanye V UBN Plc. (2018) 17 NWLR part 1648 @ p. 379.

 

  • Balogun, a legal practitioner, can be reached via rilwanbalogun60@yahoo.com

 

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