Administrative Injustice: Unlawful Dismissals and the Right to Fair Hearings

Introduction

This is a brief essay on the issue of unlawful dismissals and some landmark judgements enforcing the rights of employees in Nigeria.

 

Many people lose their jobs for various reasons: redundancy, downsizing, restructuring etc and in these cases, certain welfare packages are given to employees to cushion the effect of sudden loss of income. There are also laws and regulations that guide such processes. However, others may lose their jobs due to gross misconduct and other misdemeanours. There are also rules and procedures for such. A very few lose their jobs due to political intrigues within the office – petty jealousy, being a perceived threat to another, perceived insubordination and other sundry and sometimes ridiculous reasons. It is these few that this report will deal with; those who lose their jobs as a result of either administrative or social injustice. What is the law and what can be done to redress such irregularity?

 

Background

All employees are governed by certain rules and regulations known generally as rules of engagement. Each organisation has different names for such guidelines. Some call them Terms and Conditions of Employment, Code of Conduct or Employee Relations Guide book. Whatever the organisation decides to call such rules; the main purpose is to protect the employees from any form of discrimination as well as to ensure that employees’ activities and actions are guided by set rules. These rules also set out the disciplinary process and the scope of disciplinary actions where required.

 

For the purposes of this essay, I would like to share a case study of a very interesting case where an employee in an international organisation was dismissed unlawfully and the salient facts that have come up. I will also be referring to judicial precedents and certain legal positions.

 

As a result of globalisation and the economic recession in recent years, governments, multinational corporations and other international organisations are infringing on workers’ rights in order to purportedly save cost. Arbitrary dismissals and termination of contracts are dished out without recourse to labour laws or due process as outlined in employment letters or employee handbooks. There is the need for unions or employees to come together to end these illegal practices and ensure the welfare and protection of all workers from any form of discrimination.

 

Case Study

This case is currently in court in Nigeria so I will refer to the employee as ‘Jane Doe’ (JD) and the employer as ‘Colonial Embassy.’ Jane Doe has worked with Colonial Embassy (CE) for 10 years where she started off as a Program Assistant and rose to the Program Manager position. She has performed her duties efficiently and diligently to the commendation of various Country Directors. However, in 2010, a new management was recruited from the head office in the originating country. With the recession, they were asked to cut down costs and cut staff. After identifying their loyalists, the new management set about cutting staff using an unusual method of pressurising managers to issue warnings on frivolous allegations – over socializing in the office, gossiping about colleagues, etc and using such warnings as basis for performance evaluation which would lead to dismissals. Managers who refused to comply were framed and dismissed arbitrarily. One of such victims was a pregnant Jane Doe. A new project was introduced with major funding and several managers indicated their interest to manage it. The region identified they wanted Jane Doe to lead on it. One of the expatriate managers felt he ought to manage the project. When a decision was made to make Jane Doe the Country Manager for the project, this expatriate who we will call ‘Mungo Park’ (MP) felt slighted and looked for ways to discredit JD so that he could be given the portfolio.

 

An opportunity came when JD fell pregnant and was very sick. She had a program to run but had to leave due to ill health. She handed over to MP as a senior manager. What happened next cannot be explained. MP went to the hotel where participants both local and international were accommodated and selected the white participants and took them in a bus to the venue of the program and insisted that the white participants be moved to another hotel. The black participants though irked, went in another bus to the venue. On arrival, MP told the black participants that he was now running the show and he had identified those he would like to work with. The outraged black participants staged a demonstration at the venue chanting ‘racism, apartheid and discrimination.’ JD intervened and calmed them down over the phone. The participants wrote protest letters to the Country Director (CD) and JD accusing the organisation of racism, apartheid and discrimination and asking that MP apologise to them in writing. They were threatening to boycott all activities henceforth.

 

The CD was outraged and issued a query to JD claiming reputational damage to the organisation. JD told him to re – direct the query to MP who was responsible for disrupting the program. The CD felt outraged that a ‘local’ staff would have the audacity to challenge him. He then instructed JD’s line manager to cite her for poor performance.

 

In the course of this, a meeting was set up to hear from JD and MP what happened that occasioned the reputational damage. MP claimed that the white participants had complained to him that they had issues with the hotel – toilets not flushing and commercial sex workers on the premises. So, he decided to move them to another hotel and take over overseeing their comfort. He said he left the locals there because they had not complained and were happy with the previous hotel!

 

JD replied that the hotel was selected by the facilities team with approval from MP  and if there were issues with the hotel, then, the management of the hotel should have been informed and if there had to be a change to the hotel, all the participants should have been moved not just the whites.

 

JD was given bedrest by the doctors for a month and while on the bedrest, she was invited to the office where she was given a first and final warning for causing reputational damage for the organisation. The CD felt that since she was the project manager, she should be held responsible even though she was not there at the time it happened and she was not the one that caused the crisis. When JD refused to sign the warning, she was simultaneously issued a letter of dismissal. The content of the letter of dismissal stated that she had spread malicious gossip on the person of MP and that the demonstration of participants was as a result of her poor performance and as such she was being dismissed.

 

Issues to be considered

  1. What constitutes spreading malicious gossip? Is it a sackable offence? How do you prove this?
  2. How can you hold a program manager responsible for the actions of a senior program manager? How do you punish someone who was not present for the actions of another who was present?
  3. Is it possible to issue a first and final warning and a letter of dismissal on the same day?
  4. There was no investigation. JD was not asked to participate in any disciplinary hearing. She was on medical sick leave but was called into the office and issued a sack letter with no right to appeal.

 

Legal action

JD hired a lawyer who went through her letters of employment, terms of engagement, Nigerian Labour Law and sent a letter to the Colonial Embassy stating viz –

 

The immediate withdrawal of both the query and the letter of dismissal. He said the dismissal did not follow due process and the grounds for dismissal were not known to Nigerian labour law. The letter of employment was very clear – where any of the organisation’s policy contravened Nigerian labour law or the Nigerian constitution, the Nigerian laws will supersede.

 

There was no response from CE. As a result, JD sued CE and MP for breach of contract and libel. In a letter of defence submitted by the defendants, CE and MP, they justified their actions claiming that JD participated in perpetuating malicious gossip about MP and due to her poor management style, she put participants in a substandard hotel that the toilets were not flushing and commercial sex workers were on the premises, as a result, this left them with no option but to dismiss her.

 

Disciplinary Process

The issue is – where an employee is deemed to have committed an offence, the proper procedure is that an investigation is carried out, a disciplinary panel is set up. Such a panel should be duly constituted by impartial arbiters and the employee given fair hearing and the right to put forward witnesses. In this case, it was not done.

 

Further, whatever the findings of the panel, the employee should be given a right to appeal. If it’s the first offence, then the employee is given a probationary period where her performance will be reviewed. In this case, it was not done.

 

After 10 years of meritorious blemish free employment, she was dismissed on a frivolous allegation. There was no disciplinary panel just a meeting at a local hotel to assess what led to the reputational damage. This was being called a panel. There was no written documentation to this effect.

 

Submission

This is clearly a case of administrative injustice and discrimination. She has been discriminated on the basis of her sex and gender (pregnant and female), race (black), employment status (locally engaged staff) as this would not have happened if she was an expat.

 

Judicial precedent

While we are awaiting the outcome of the above case, I would like to draw our attention to  the Supreme Court case of Shell Petroleum Development Company Ltd V. Chief Victor Sunday Olarewaju (2008) 18 NWLR (pt 118) 1 on proof required by an employee challenging his dismissal based on the report of his employers administrative panel.

 

From the above case, the Supreme Court categorically stated the following position of the law – from a legal standpoint, organisations desirous to terminate the services of its employees should do so without giving reasons. Where a reason is given, it must be justified. Whereas dismissal becomes an option to deal with certain circumstances, the facts of this case has amply demonstrated the constitutional requirements that must be satisfied for the courts to uphold the validity of such an action.Where an adminsitrative panel is set up within an organisation to investigate an allegation against an employee, care must be taken to ensure that the panel is duly constituted and that the employee is seen to be and is given fair hearing. Anything short of this, the court will frown upon. The Supreme Court gave judgement in favour of the employee.

 

Landmark ruling on unlawful dismissal

On 20 May 2011, a Federal High Court sitting in lagos, nullified the dismissal of the former Director – General of the Nigerian Stock Exchange (NSE), Professor Ndi Okereke – Onyuike and awarded her     N500 million naira in damages for exemplary and aggravated damages for recklessness. It held that Okereke – Onyuike’s right to fair hearing was breached, the letters removing her were reckless, hasty and done in bad faith. The Judge maintained that ‘ it was ridiculous for the NSE to remove her within 24 hours based on bad and unverified allegations’ and that the NSE did not comply with the condition precedent in removing the plaintiff.  This judgement has been hailed as a landmark judgement and should serve to encourage other employees who have been wrongly dismissed. It will also serve to put organisations in check once they know that employees could take legal action against them if they violate employment practices.

 

Summary

In summary, this essay is just an overview of the judicial precedents that are available in instances of wrongful dismissals and should serve as a guide. Points to note therefore is that – an employer can terminate or dismiss his employee at any time. However, where he gives a reason, he must be able to justify such. The termination must comply with laid down procedures and must follow due process.  Where a panel is set up, it must be duly consituted by impartial arbiters. The employee must be given fair hearing and allowed to bring in witnesses.

 

On a final note, if more people were aware of their rights, they would be able to fight for themselves. If employers were more informed on their obligatiions to employees and their responsibilities on duty of care, they would be more professional in the work place and desist from pettymindedness in order to avoid legal actions.

 

Role of trade unions

In the various scenerios sited above, the role of staff unions have been nonexistent. One would have expected the various staff unions to intervene to ensure due process is followed. But in most cases, such unions are toothless bulldogs. The executives are either ‘compromised’ by management or become targets of intimidation. With unemployment in Nigeria verging at 70% or thereabouts, many people are scared of losing their jobs. They compromise their integrity to protect their jobs. Workers should be encouraged to form unions that would ensure workers rights and justice for all in the work place.

 

Further, many of these organisations are seen as big and untouchable hence, the little man ‘employee’ is already intimidated. They feel they could never win. Then, when an employee loses his job suddenly, his means of livelihood has been cut off. He faces the challenge of trying to survive or spending huge sums on legal fees with the likelihood that the case would go on for years due to the judicial system. He then gives up and leaves everything to God and put it down as destiny. There should be an  avenue for such workers to seek redress and support in doing so.

 

Governments should enforce the respect for the rights of workers, organisations should respect such rights and workers should know what those rights are. This is a herclean task for such an emerging democracy in Nigeria where people have been used to colonial rule and the military. Happily people are becoming more  enlightended and more aware of their rights. We can see from the above examples that some people are trying to make a difference. They are fighting and winning! These are the people that should be encouraged so that they can stand up as a beacon and shining light for others. What then can we do to encourage them and to ensure good work place practices? Who will fight for the common man?

 

Report by Ramatu Umar Bako LLB, BL, PGDCONDEV, PMIN, NIPM

SOURCE: http://www.ventures-africa.com/2012/03/administrative-injustice-unlawful-dismissals-and-the-right-to-fair-hearings/

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ad ad is a Lawyer, Programmer, and Cyber-security Consultant and has a great passion for a technologically driven legal world.

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