INTRODUCTION TO CONSTRUCTIVE DISMISSAL OF EMPLOYEE

Constructive dismissal in Nigeria is one of the most misunderstood areas of employment/Labour law. Many workers assume that only the employer can “terminate” an employment contract. But the Nigerian labour law recognises situations where an employer’s conduct becomes so intolerable that the employee has no real option but to resign and the law treats that resignation as a dismissal by the employer.

This article explains what constructive dismissal means, when it applies, the legal tests used by the Nigerian courts, and what employees can do when faced with hostile working conditions.

What is Constructive Dismissal Employee in Nigeria?

Constructive dismissal occurs when an employee resigns because the employer creates a working environment that makes continuing the job impossible, unfair or unbearable. In legal terms, the resignation is considered a dismissal caused by the employer’s conduct, not the employee’s decision.

Although Nigerian law does not define “constructive dismissal” in a single statute, the National Industrial Court (NICN) and common law principles have developed a clear framework for identifying it.

The Legal Test for Constructive Dismissal

To win a claim for constructive dismissal in Nigeria, the employee must show:

• The employer committed a fundamental breach of contract, OR
• The employer fundamentally changed the employment relationship, AND
• The employee resigned because of that breach.

This test aligns with the position in the classic English case, Western Excavating (ECC) Ltd v. Sharp, which Nigerian courts have adopted. In that case, the Court held that constructive dismissal occurs where the employer’s behaviour is so unreasonable that the employee is “entitled to resign without notice because the employer made the job intolerable.”

Relevant National Industrial Court of Nigeria(NICN) Decisions On the Constructive Dismissal Of Employee

The NICN has relied on these principles enumerated below in several cases that led to the constructive dismissal of employee. In Chemical & Non-Metallic Senior Staff Assoc. v. Benue Cement Co. Plc, the employees of Benue Cement complained about harsh working conditions and unilateral changes to their employment terms. They argued that they were forced to leave because their working environment became unbearable. The National Industrial Court recognised that constructive dismissal is actionable in Nigeria, meaning an employee can sue even if they “resigned.” This case confirmed that Nigerian labour law protects workers from hostile or degrading working conditions imposed by employers.

Also, in the case of Ajayi Oluwatosin v. Zenith Bank Plc (NICN/LA/167/2014), the employee faced persistent unfair treatment and humiliation at work. The conditions became so bad that she resigned and sued the bank. The NICN held that resignation caused by a toxic environment amounts to constructive dismissal, especially where the employer’s conduct breaches trust and confidence. Employment relationships rely on mutual respect.

Once the employer destroys that trust, the employee may resign and claim constructive dismissal. Similarly, in the case of Patrick Abakporo v. First City Monument Bank Plc (NICN/LA/273/2014), the employee was subjected to unfair disciplinary actions and unreasonable pressures that made his continuation at work difficult.

The NICN held that where an employer indirectly forces an employee out through constant intimidation, impossible targets, or unfair sanctions, the resignation is treated as termination initiated by the employer. See also Ejike v. Anchor Insurance Ltd (NICN/CA/62/2014)

Hence, it should be noted that constructive dismissal is not always loud or direct. It can happen through subtle, systematic oppression. The Court has stressed that employees are not expected to “endure the impossible” before the law can protect them.

Based on case law and NICN principles, constructive dismissal may occur if an employer:

• Cuts salary unilaterally
• Demotes the employee without justification
• Assigns unrealistic targets designed to ensure failure
•  Engages in harassment, discrimination or humiliation.
• Fails to provide a safe and healthy working environment
• Suspends the employee indefinitely without reason
•  Constantly threatens termination

If these actions force the employee to resign, the law may view it as the employer engineering the termination. In constructive dismissal claim, the employees must prove same. However, employees must also know that the burden of proof is high

Constructive dismissal claims succeed when:

• The employee documents events,
• Resigns shortly after the breach, and
• Clearly links the resignation to the employer’s misconduct.

Workers who resign for unclear or personal reasons cannot later claim constructive dismissal.

What Remedies Are Available to Employees?

If constructive dismissal is established, an employee may be entitled to:

• Payment in lieu of notice
• Damages for wrongful termination
• Outstanding salary and entitlements
• Compensation ordered by the NICN
• In some rare cases, reinstatement (mostly where statutory flavour exists)

The employee’s entitlement depends on the type of employment and the degree of breach.

Final Thoughts on Constructive Dismissal of Employee in Nigeria

Constructive dismissal in Nigeria protects employees from being unfairly pushed out of their jobs through hostile conditions or indirect pressure. Nigerian courts, particularly the National Industrial Court have consistently upheld employees’ rights to a safe, fair and respectful workplace.

If an employee resigns because the employer made the job intolerable, the law may treat that resignation as a dismissal initiated by the employer.

Contributors

Lead Partner, EKO SOLICITORS & ADVOCATES