Salary in lieu of notice: Mr. Tunde Alaye was an employee of Olaitan Yisa Consulting Ltd at the Itoko Branch of the Consulting Firm. He was so employed on 4-7-83. In September 1987, two individuals who were officers of the National Union of Political Consulting Institution Employees jointly sent a petition against the Mr. Tunde Alaye.
It was alleged that the he had committed some dishonest acts in the course of his duties under Olaitan Yisa Consulting Ltd. In consequence, the Consulting Ltd suspended him from work. Later, however, those who wrote the petition withdrew it. This would appear to convey that the petition had been motivated by malice.
Mr. Alaye’s expectation that he would be recalled from suspension following the withdrawal of the petition did not materialize. Rather, Mr. Alaye, by a letter dated 12-10-87, was summarily dismissed from Olaitan Yisa Consulting Ltd’s employment.
Points to Note:
1. In an “ordinary employment relationship” like in this one and following the common law principle, a termination of a contract of service, even if unlawful brings to an end the relationship of master and servant. This is because the court cannot impose an unwilling employee on an unwilling employer and vice versa.
2. However, where the contract of employment has “statutory flavour” i.e where the contract of employment was established by a statute and such statute prescribes the manner in which an employee may be relieved of his employment like the due observance of the principle of fair hearing (giving the employee an opportunity to defend himself), the termination of the contract of employment will be invalid if the procedure is not followed.
For the purpose of clarity, when an office or employment has a statutory flavour in the sense that its conditions of service are provided for and protected by statute or regulations, any person holding that office or in that employment enjoys a special status over and above the ordinary master and servant relationship (which is governed by Common Law).
In the matter of disciplining of such a person, the procedure laid down by the applicable statute or regulations must be fully complied with. If materially contravened, any decision affecting the right or tenure of office of that person may be declared null and void in appropriate proceedings.
So, if you’re working for the government, for example, your Director or even Commissioner cannot just wake up one day and say you should leave the government service.
3. An employee or an employer have a right to walk away from a contract of employment is the manner specified in their written contract. In most cases, it is by giving the requisite notice agreed upon.
However, where an employer lays of an employee without the necessary notice, he is expected to compensate the employee by paying the benefits the employee would have derived from his retention of his employment for the number of months the employer should have given him notice of termination.
In short, the law is that a servant would only be paid for the period he served his master and if he is dismissed as in this case, although wrongfully all he gets as damages is the amount he would have earned if his appointment has been properly determined.
Thus, where an employee is relieved of his employment without the requisite notice or his entitlement in lieu of the notice, he can sue for his entitlements but I’ll advise such employee gets a lawyers to write his employer first to demand such entitlement before resorting to litigation which may be quite expensive.
4. On the other hand, where an employee is summarily dismissed, he is not entitled to any notice and cannot claim any benefit from his employer. An employee may be summarily dismissed if he is guilty of gross misconduct such as fraud, sexual offences etc.
However, in a claim for wrongful dismissal, the measure of damages is prima facie the amount that the employee would have earned had the employment continued according to contract. It is the duty of such employee to minimize the damage he sustains by the wrongful dismissal i.e. he is required to minimize his damage by looking for another job.
5. An employer though not bound to give reasons for terminating the appointment of his employee: where the employer gives reason for the termination the onus lies on the employer to establish that cause of reason.
For example, if you’re working in a private establishment and your employer gives you sack letter because you refused to marry his daughter there is nothing you can do to it even if you know that his reason for termination your employment contract.
However, where he discloses the reason why he gave you sack letter, he has to prove that it is reasonable.
6. An employer has no right to stop an employee’s salary when the latter is on suspension.
With these Laws, what do you think is the hope of Mr. Tunde Alaye?
I’m of the view that Mr. Tunde Alaye can only claim the amount he would have gotten for the months he should have been given due notice of the termination of his employment.
MY LEGAL DIARY
Joseph Jagunmolu Ogunmodede
Joseph Jagunmolu Ogunmodede is the Founder/CEO of THE LEGAL DIARY.
He is a Double First Class lawyer from the prestigious University of Ibadan and the Nigerian Law School. Joseph is an Asaociate at Udo-Udoma and Belo-Osagie with interest in Corporate Law, Energy Law, Real Estate Law and Commercial Litigation.