DISMISSAL VERSUS TERMINATION IN LABOUR LAW
“Once miscondsuct is alleged, there must be … fair hearing.” Kayode Eso JSC.
Judges, especially but not exclusively those on the National Industrial Court bench, should keep in mind the distinction between dismissal and termination.
Dismissal, which is for wrongdoing, must be distinguished from termination.
A hearing need not precede termination. But merely terming what is in effect or substance a dismissal a termination in order to avoid certain legal consequences should not hoodwink the Nigerian courts, which should be so thoroughly learned and acutely astute on the subject to be able to discern which is which. Termination and dismissal are distinct notions in labour law.
Central Bank of Nigeria v Archibong ([2001] 10 NWLR (Part 721) 492) had to do with termination not dismissal, hence the failure of the respondent’s grouse about denial of fair hearing by the appellant before termination.
On the other hand, Baba v Nigerian Civil Aviation Training Centre, ([1991] 5 NWLR (Part 192) 388) concerned a dismissal, although the vocabulary of termination was erroneously employed all the way to the Supreme Court. Nnaemeka-Agu JSC’s question (“[D]id the respondents have good cause to terminate the appointment of the appellant?” is a linguistic fallacy.
Terminations do not require cause, good or bad; they need only follow the employment contract. Once cause is required or cited, the measure contemplated or implemented is a dismissal. In Olatunbosun v Nigerian Institute of Social and Economic Research Council ([1988] 3 NWLR (Part 80) 25, 48E-F), Oputa JSC pointed out an aspect of this distinction.
The alleged “termination” of the respondent’s employment in Psychiatric Hospitals Management Board v Edosa ([2001] 5 NWLR (Part 707) 612) was in effect a dismissal. The respondent was a catering officer in the appellant’s employ. Accused of stealing, she was suspended, then taken before a disciplinary committee. She testified first at the committee, and then 13 witnesses gave evidence against her.
She was not allowed to cross-examine any of them, and was not called at the close of the proceedings before the committee’s recommendations were made. Her appointment was purportedly “terminated.” Her lawsuit failed at the High Court, but the Court of Appeal allowed her appeal, held that her right to fair hearing had been violated, and reinstated her to her post with the appellant. The appellant’s appeal to the Supreme Court was futile, as the highest court affirmed the Court of Appeal’s decision.
The language of “termination” employed in Olaniyan v University of Lagos ([1985] 2 NWLR (Part 9) 599), both by the university and unfortunately by the courts, was juridically, linguistically and conceptually ill-advised. What happened in that case was dismissal, not termination. While the language applied was mistaken, the substance and facts of this important Supreme Court authority illustrate the distinction between dismissal and termination. When no misconduct is alleged, termination may be lawfully effected by merely complying with statutory or contractual procedure, but whenever misconduct is alleged, the party must be heard before being dismissed.
Removal for cause is “dismissal” properly so called, and must be preceded by a hearing. “Termination” is a contractual or statutory option usually reserved for both sides, and exercisable without reference to cause.
Any reference to cause (in terms of any conduct or wrongdoing by the party to be removed from service) would trigger the requirement of fair hearing and what follows should properly be termed a “dismissal.”
A hearing need not precede termination. But merely terming what is in effect or substance a dismissal a termination in order to avoid certain legal consequences should not hoodwink the Nigerian courts, which should be so thoroughly learned and acutely astute on the subject to be able to discern which is which. Termination and dismissal are distinct notions in labour law.
Central Bank of Nigeria v Archibong ([2001] 10 NWLR (Part 721) 492) had to do with termination not dismissal, hence the failure of the respondent’s grouse about denial of fair hearing by the appellant before termination.
On the other hand, Baba v Nigerian Civil Aviation Training Centre, ([1991] 5 NWLR (Part 192) 388) concerned a dismissal, although the vocabulary of termination was erroneously employed all the way to the Supreme Court. Nnaemeka-Agu JSC’s question (“[D]id the respondents have good cause to terminate the appointment of the appellant?” is a linguistic fallacy.
Terminations do not require cause, good or bad; they need only follow the employment contract. Once cause is required or cited, the measure contemplated or implemented is a dismissal. In Olatunbosun v Nigerian Institute of Social and Economic Research Council ([1988] 3 NWLR (Part 80) 25, 48E-F), Oputa JSC pointed out an aspect of this distinction.
The alleged “termination” of the respondent’s employment in Psychiatric Hospitals Management Board v Edosa ([2001] 5 NWLR (Part 707) 612) was in effect a dismissal. The respondent was a catering officer in the appellant’s employ. Accused of stealing, she was suspended, then taken before a disciplinary committee. She testified first at the committee, and then 13 witnesses gave evidence against her.
She was not allowed to cross-examine any of them, and was not called at the close of the proceedings before the committee’s recommendations were made. Her appointment was purportedly “terminated.” Her lawsuit failed at the High Court, but the Court of Appeal allowed her appeal, held that her right to fair hearing had been violated, and reinstated her to her post with the appellant. The appellant’s appeal to the Supreme Court was futile, as the highest court affirmed the Court of Appeal’s decision.
The language of “termination” employed in Olaniyan v University of Lagos ([1985] 2 NWLR (Part 9) 599), both by the university and unfortunately by the courts, was juridically, linguistically and conceptually ill-advised. What happened in that case was dismissal, not termination. While the language applied was mistaken, the substance and facts of this important Supreme Court authority illustrate the distinction between dismissal and termination. When no misconduct is alleged, termination may be lawfully effected by merely complying with statutory or contractual procedure, but whenever misconduct is alleged, the party must be heard before being dismissed.
Removal for cause is “dismissal” properly so called, and must be preceded by a hearing. “Termination” is a contractual or statutory option usually reserved for both sides, and exercisable without reference to cause.
Any reference to cause (in terms of any conduct or wrongdoing by the party to be removed from service) would trigger the requirement of fair hearing and what follows should properly be termed a “dismissal.”
