Question: Examines the concept of Summary dismissal of and Employee with cases.
Introduction.
In the process of making a contract of employment there are terms that are put in
place and a breach of any of the terms may lead to repudiation of the contract,
these terms can be expressly stated or by implication, either party to a contract
of employment can terminate the contract after the other party has been duly
informed of the intention to do so, but there are instances where a party would
not be notified of the termination of contract this happens when a party is
summarily dismissed, it is only the employer in a contract of employment that can
validly dismiss a worker summarily.
Summary Dismissal.
The concept summary dismissal involves termination of a contract of
employment without giving the employee a adequate notice or payment of
wages. This often happens when an employee breaches the fundamental term of
a contract. Gross misconduct in the work place triggers summary dismissal an
employer may summarily dismiss a employee on the ground of grave misconduct,
however there is not statutory definition of what qualify as misconduct.
In the case of Ajayi v Texaco, the Supreme Court observes that there is no fixed
rule of law which defines the the degree of misconduct that would justify a
summary dismissal. It is enough that the character as to the conduct of the
employee is so grave and weighty which undermines the confidence of which
should exist between the confidence which should exist between him and the
employer.
Every case of summary dismissal turns on the point whether the Act complained
of is one which amount to a breach of a fundamental condition of a contract of
employment.
In the case of New Nigeria Bank Ltd v Onivuosa, Akpabio JCA stated that "there
is no definition of misconduct anywhere in the our law". Even under S. 256(1) of
the 1979 constitution (now S. 292(1)) of the 1999 constitution) where a judicial
officer could be removed from office before attaining retirement age on grounds
of misconduct, no definition of misconduct was provided and it would appear that
an act of misconduct is whatever the employer says is an act of misconduct.
Furthermore it a custom in Nigeria to list representative samples of such acts of
misconduct in the employees handbook or staff manual which also forms part of
the conditions of service. However other novel acts of misconduct maybe
committed by an employee which may well be brought within the definition of
acts of gross misconduct justifying summary dismissal.
Some Acts that can be regarded or considered as misconduct
Because the law is subject to interpretation, it is important to outline the most
egregious misconduct examples that lead to dismissal. While the list may not be
complete, it should cover the most common gross misconduct acts.
Theft and Fraud: This offense includes stealing anything that is office property,
merchandise or stock. It could also be stealing from customers or co-workers.
Intentionally violating nondisclosure agreements and releasing confidential
information for public use are also examples of theft and fraud.
Damage to Property: Accidents happen, but if an employee intentionally and
aggressively damages company property, the action is considered gross
misconduct. This also covers gross negligence to property.
Breach of Safety Protocol: Failure to follow protocol to ensure the health and
safety of all employees including the employee in breach of protocol. This might
include failure to lock up prescription medications or smoking near flammable
items.
Offensive Behavior: This includes behavior such as threats to self and others,
physical fights, bullying or harassing actions such as stalking.
Drug and Alcohol Use: Buying and selling drugs during work shifts and on
company property as well as being under the influence of drugs and alcohol
leading to serious impairment are reasons for potential dismissal.
Willful disobedience: A servant has the duty to obey lawful and reasonable
orders. The courts will however not jump into conclusion that a single act of
disobedience necessarily constitutes gross misconduct, each case will depend on
the particular circumstances surrounding it.
Infedelity: The making of secret profit or profiting from employer's business
through and act of Infedelity as in Maka v Stocco, in the case it was stated that
that a servant may be dismissed for any act of misconduct which is incompatible
with the faithful discharge of his duty.
Corruption and taking of bribe or kickbacks: In the case of Boston Deep Fishing
co v. Angel, the managing director of a company was held rightly dismissed for
taking secrets commission.
If an employee has violated the rules and is found to be in gross misconduct of
company or legal policies, the dismissal needs to be "fair," which means that the
employer has reasonable grounds, investigated the matter, and genuinely
believes there has been misconduct of this nature.
Conclusion.
Reference -
https://smallbusiness.chron.com/misconduct-workplace-16111.html
https://www.personio.com/hr-lexicon/summary-dismissal/
