Termination of employment is the lawful ending of the contract of employment by either party. In Nigeria, employers may terminate the employment of an employee for various reasons, including misconduct. However, termination for misconduct, especially where summary dismissal is invoked, is laden with legal requirements, procedural safeguards, and judicial scrutiny.

Misconduct constitutes certain undesirable conduct by the employee that fundamentally breaches the contract or undermines the employer-employee relationship. The central problem lies not merely in identifying conduct that amounts to misconduct, but ensuring that employers comply with procedural fairness, contractual terms, and statutory obligations before effecting such termination. Failure to respect these legal requisites exposes employers to claims of wrongful or unlawful dismissal. This article explores the legal framework governing termination for misconduct in Nigeria, relevant statutory provisions, judicial authorities, and key legal requirements that must be satisfied before such termination can stand.

Legal and Statutory Framework

At common law, an employer generally possesses the power to terminate a contract of employment at any time, for good or bad reason, or even no reason at all, so long as the termination is in accordance with the terms of the contract. This traditional rule reflects the master-servant doctrine that the employer need only comply with contractual notice requirements.

However, this position has been tempered by statutory and judicial developments requiring employers to justify dismissals in certain circumstances and to afford procedural fairness. The Labour Act 2004 (as amended) and the National Industrial Court Act provide context and procedural back-up in statutory or regulated employment.

Section 11 of the Labour Act requires that either party may terminate a contract of employment by giving notice or paying salary in lieu of notice. Failure to do so, absent an exception like gross misconduct, may render the termination wrongful.

Although the Labour Act does not explicitly enumerate misconduct definitions, the draft Labour (National Employment Code of Conduct) Regulations 2006 (often referenced in practice) recognise serious misconduct to include wilful disobedience, theft or fraud, gross incompetence, neglect of duties, and unauthorised prolonged absence, among others.

Additionally, international best practice instruments such as the ILO Termination of Employment Convention, 1982 (C158) though not directly enforceable without domestication influence judicial reasoning on valid reasons for termination, requiring that termination be founded on conduct, capacity, or operational requirements of the employer.

Defining Misconduct in Employment Law

Misconduct refers to conduct by an employee that is inconsistent with the fulfilment of contractual duties, undermines the trust relationship, or breaches reasonable standards expected in the employment context. Common examples recognised in Nigerian jurisprudence and labour practice include:

• Incompetence and negligence;
• Dishonesty, fraud, or theft;
• Absence without leave;
• Drunkenness or substance abuse; and
• Insubordination or abusive language.

Where misconduct is grave and strikes at the heart of the employment relationship, it may justify summary dismissal which is immediate termination without notice. Yet even summary dismissal for misconduct is not exempt from due process requirements.

Termination for Misconduct: Judicial Authorities and Application

1. Ihezukwu v. University of Jos (1990) 4 NWLR (Pt.146) 598 (SC)

In Ihezukwu v University of Jos, the Supreme Court emphasised that termination of employment, even for misconduct, must adhere to procedural requirements if stipulated in the contract of employment. The case awarded damages for wrongful termination, confirming that an employer must offer fair procedures, particularly where contractual terms specify such safeguards.

2. UBN Ltd. v. Ogboh (1995) 2 NWLR (Pt.380) 647 (SC)

The Supreme Court in UBN v Ogboh recognised that gross misconduct may justify summary dismissal without notice as misconduct of a grievous character undermines confidence. However, the employer must show that the misconduct was substantial and justified dismissal without notice, placing an evidential burden on the employer.

3. University of Calabar v. Essien (1996) 10 NWLR (Pt.447) 225

In University of Calabar v Essien, the apex court underscored the audi alteram partem principle: where misconduct is alleged and may lead to loss of employment, the employee must be informed of the allegations and accorded a fair hearing before termination.

4. Olatunbosun v. NISER Council (1988) 3 NWLR (Pt.80) 25

In Olatunbosun v NISER Council, the Supreme Court confirmed that the right to fair hearing as a fundamental aspect of natural justice which arises in cases of dismissal for misconduct likely to deprive an employee of livelihood or pension.

5. Akumechiel v. Benue Cement Co. Ltd. (1997) 1 NWLR (Pt.454) 695 (JCA)

In Akumechiel v Benue Cement Co. Ltd., the Court of Appeal held that where an employee is removed for misconduct, the employer must afford the employee a chance to explain or defend against the allegations absence of such opportunity undermines the validity of the termination.

6. Yusuf v. Union Bank of Nigeria Ltd (1996) 6 NWLR (Pt.457) 632 SC

The Supreme Court in Yusuf v Union Bank held that where misconduct involves allegations akin to crime, an internal disciplinary process and fair hearing are essential even if the employer elects not to pursue criminal prosecution.

Key Legal Requirements for Termination for Misconduct

1. Valid and Justifiable Ground

The misconduct must be real, substantial, and fundamentally breach the contract or undermine trust. Employers may justify summary dismissal only where misconduct is so grave that it goes to the root of the employment relationship.

2. Fair Hearing and Due Process

Even where misconduct would justify summary dismissal, Nigerian law mandates an opportunity for the employee to be heard, to respond to allegations, and to challenge evidence before any final decision is taken. Procedural fairness draws support from common law rules of natural justice and is required especially where statutory or contractual provisions confer employment rights.

3. Compliance with Contractual and Statutory Obligations

Where an employment contract explicitly outlines disciplinary procedures, those procedures must be followed to avoid wrongful dismissal claims. Failure to comply with contractual or statutory notice requirements, unless summary dismissal is justified, may render the termination unlawful.

4. Burden of Proof

The employer bears the responsibility to prove that misconduct occurred and that due process including fair hearing was afforded before dismissal. If challenged in court, the employer must lead evidence to justify the misconduct and the procedural steps followed.

Consequences of Non-Compliance

When an employer fails to observe legal and procedural requirements in terminating for misconduct, courts may find the dismissal wrongful or unlawful, awarding damages for breach of contract. In certain statutory employments, reinstatement may be ordered where statutory protections apply.

Wrapping Up: Termination for Misconduct

Termination for misconduct in Nigeria is legally permissible but subject to substantive and procedural constraints. Employers must ensure that asserted misconduct is significant, that contractual and statutory procedures are honoured, and that employees are accorded fair hearing before termination. Judicial authorities consistently emphasize the role of natural justice and procedural fairness, particularly where misconduct leads to loss of employment and livelihood. Employers who neglect these legal requirements risk exposure to wrongful dismissal claims, liability for damages, and, in some cases, reinstatement orders by the courts.

Read Also: Constructive Dismassal of Employees

Contributors

Lead Partner, EKO SOLICITORS AND ADVOCATES