The Unfair Labour Practice of Constructive Dismissal by Employers: Employees’ Right to Remedy

There is no gainsaying that some work environment in Nigeria are toxic and hostile thereby breeding discomfort and unease for employees to effectively carry out their work and accordingly earn a successful career. Such work hostilities comes in the form of intimidation, unfair treatments, harassment, work bullying and intolerable actions by the Employer. Worse situations arises where the hostility is exhibited by executive or senior officers of the organization towards subordinates either to arm-twist such subordinates to agreeing to an unfavorable term, circumstance, advances or to force the employee to resign.

An employee facing such hostility may eventually resign while some might for the uncertainty of what comes after resignation, choose to endure in anguish. Such hostilities meted out to an employee can be broadly regarded as unfair labour practice and where it culminates in resignation or circumstances that is set out to force the employee to resign, such resignation has been regarded as constructive dismissal which is in itself an unfair labour practice.

Constructive dismissal is also known as ‘constructive discharge’, ‘disguised dismissal’ or ‘quiet firing’ while the 10th Edition of Black’s Law Dictionary at page 495 defined Constructive Discharge as “a termination of employment brought about by making the employee’s working condition so intolerable that the employee feels compelled to leave”.

The various practices that can lead to constructive dismissal are inexhaustive but include intimidation, sexual/violent harassment, public ridicule or demeaning an employee in presence of others, failure to provide adequate support for an employee to do their job, unreasonable work demands, unilaterally changing terms of employment contract, discrimination, bullying, threats and ridiculous grounds for suspension, indefinite suspension, unjustifiable pay-cut, or no payment of salaries, unjust transfer or relocation, demotion for unjustifiable reasons, subjecting an employee to constant criticism and exposing employee to danger. An employee may resign over a serious single incident or continuous series of events leading up to the “last straw”.

Bearing the foregoing in mind, while employers are to be conscious of the fact that their untold act of unfair labour practice towards employees can bear liabilities, employee should also know that the Nigeria labour regime adequately caters to situation of unfair labour practices and upon approaching the appropriate court, an aggrieved employee can be accorded a befitting remedy depending on the circumstance of how the case is presented before the court.

NIGERIAN CASES ON CONSTRUCTIVE DISMISSAL

The National Industrial Court of Nigeria (NICN) is the Court that resolves matters of labour and employment relation by virtue of section 254A-F of the Constitution of the Federal Republic Nigeria 1999 (as amended) and by so doing, the NICN is the court that has the capacity to, and has in several cases addressed labour matters bordering on unfair labour practices particularly constructive dismissal.

The said NICN, by virtue of section 254C(1)(f), (g) & (h) and subsection (2) of the 1999 Constitution as well as Section 7(6) of the National industrial Court Act, 2006, is empowered to apply international best practices in labour or industrial relations and also interpret and apply international labour standards, Conventions, treaties and protocols ratified by Nigeria without the requirement of domestication by Section 12 of the Constitution.

In the light of the foregoing power of the court to resolve matters of unfair labour practices, in the case of Mr Patrick Obiora Modillim V. United Bank for Africa Plc (unreported, judgment delivered on June 19, 2014 by Hon. Justice B. B. Kanyip in Suit No. NICN/LA/353/2012), the NICN held that facts of non-voluntariness in the claimant’s resignation from the defendant’s employment shows that the claimant had made out a case for constructive dismissal against the defendant. The NICN relied on the provisions of Section 7(6) of the NICN Act and Section 254C(1)(f), (h) and (2) of the Constitution to hold that the NICN is generally permitted to apply international best practices in labour relations, when adjudicating employment disputes brought before it.

The highlight of fact of the foregoing case is that Mr Patrick was employed by UBA PLC as Deputy General Manager via a letter of employment dated 23rd November, 2007 with effect from 3rd December, 2007 while UBA PLC undertook to confirm his appointment as a General Manager after a period of six months subject only to the condition that the he would meet certain set targets contained in a Performance Contract duly executed by the parties. Mr. Patrick’s employment was indeed confirmed with effect from 5th of August, 2008 but UBA PLC continued to pay him salary of Deputy General Manager for 20 months instead of that of General Manager and also failed to accord him all the perquisites of office he was entitled to. Upon his incessant demand for what he is entitled to, the then Executive Director, Resources of UBA and in the presence of one other person, forced Mr. Patrick to resign his employment and he accordingly did resign on the 31st of March 2010 while UBA accepted his resignation via a letter dated 30th March 2010 (predating the resignation).

UBA on their part denied to the effect that the letter of commitment was not a contract of employment between the parties and that it never promised or undertook to confirm the claimant’s employment as a General Manager.

In resolving the matter, although the court found that the Mr. Patrick’s confirmation was not coterminous with his promotion as General Manager, however, UBA’s failure to review his level to General Manager upon confirmation was a breach of his contract of employment contained in the offer letter and letter of commitment both dated 23rd November 2007. The court accordingly found UBA liable for breach of its commitment and accordingly awarded the sum of N75,535,128.00 to Mr. Patrick. More importantly is that the court also found that Mr. Patrick was constructively dismissed and awarded the sum of N1, 120,221.60 as damages for the wrongful termination of the claimant’s contract of employment in owing to his constructive dismissal.

In Issey Celestina Akintola-Ojo V. United Bank for Africa NICN/LA/497/2012 Judgment delivered February 1, 2016, the highlight of fact is that claimant averred that she was the business Manager of the Defendant but was later forced to resign without any reason or query. She averred that her salaries had been withheld, while she was denied access to her personal account with the bank. She added that due to the undue harassment, victimization and threat from her regional head and the deputy MD (Southern Region), she tendered a resignation. The court in finding a case of constructive dismissal held that the conduct of the defendant amounts to the repudiation of the claimant’s contract and that the defendant wrongfully terminated her contract. The court awarded N1,739,639.87 to the claimant being her salary in lieu of notice of the wrong termination and also awarded the sum of N7,880,979.36 as damages for harassment and humiliation in the work place.

Also in Mrs Ameachi Lauretta Onyekachi v. Stanqueen Investment Ltd. (unreported, judgment in Suit No. NICN/LA271/2014, delivered on December 4, 2015 by Hon Justice B.B. Kanyip), the claimant was advised by her employer to resign her employment because she sought maternity leave on account of her pregnancy, at her refusal, she was issued a letter of redundancy and subsequently terminated. Her action in the NICN for constructive dismissal succeeded.

In Etuechere Martins V. National Film and Video Censors Board & 6 Ors, NICN/ABJ/246/2019 (unreported, judgment delivered on 3RD OF DECEMBER, 2020 by Hon Justice O.O. Oyewumi), the claimant was demoted from the position of Deputy Director Grade level 16 to that of Assistant Director Grade Level 15 on the ground of disciplinary action and was also transferred to Maiduguri, Borno State to a position alien of the Board’s Organogram.

The Court in finding a case of constructive dismissal posited that an employee must be given a job equivalent to his ability and skill, and must also have job satisfaction in order for him to put in his optimal best for the development of the establishment or company. The Court held that the demotion was ultravires the powers and subsequently declared same null and void. It was further held that the Claimant’s transfer to Borno was borne out of his unlawful demotion and was done in bad faith thereby rendering it illegal.

The Court added that by transferring the claimant to take up a position different from what he was initially employed to do is akin in labour law to what is called forced labour which is against Article 12(i), ILO Convention on Forced or Compulsory Labour 1930 (No.29).

Last but not by any means the least, in the case of Mrs Vivien Folayemi Asana V First Bank of Nigeria Ltd NICN/LA/184/2016, the Court awarded N2,000,000 (Two Million Naira) as damages for constructive dismissal, which was deducted from the claimant’s outstanding staff loan.

REMARK

What the foregoing clearly brings to light is that employers must desist from engaging in unfair labour practices and make genuine effort at being professional in handling employee matters while they seek advice on applicable international best practices to the diverse employee matters they may encounter. The fostering of a good and harmonious work environment is necessary for both the effectiveness of the employees and the success of the organization wherein they are engaged.

Ganiyu Ajibola Bello Esq., is a Legal Practitioner and Senior Partner at Law Corridor, Abuja.

ajbola@lawcorridor.com

lawcorridor@gmail.com


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