Dismissal must be for justifiable reason, court rules – TheNigerialawyer

The National Industrial Court (NIC) sitting in Lagos has held
that an employer is not at liberty to dismiss an employee without
justifiable reason and observance of due process and fair
hearing.

Justice Nelson Ogbuanya held that the standard remains the same,
whether in statutory employment or master/servant employment
governed by common law.

His Lordship made the pronouncement while quashing the summary
dismissal of Mr. Valentine Nkomadu by Zenith Bank Plc.

Nkomadu was the erstwhile pioneer Branch Head of the bank’s
Moloney branch in Lagos.

Declaring the dismissal as wrongful, the judge noted that the
claimant’s summary dismissal without reason or due process emanated
from the often confused interchange of dismissal and
termination.

He said though both are legally recognised exit pathways for an
employee, they differ markedly in their operations and
implications.

Justice Ogbuanya held: “Termination is a contractual exit
available to both employer and employee, and may go with or without
reason, as it may not be for disciplinary purpose, but just for
mere compliance with extant contract of service to bring the
employment relationship to a lawful end.

“On the other hand, dismissal is solely a disciplinary measure
available for only the employer with consequential denial of
pecuniary entitlements of employee’s earned terminal benefits and
image battering; casting doubt on future employability.”

According to the judge, “for the simple reason that dismissal
has the adverse effect of taking away the employee’s earned
terminal benefits, the employer is not at liberty to dismiss an
employee without justifiable reason and observance of due process
and fair hearing.”

He held that in any kind of employment regime (be it statutory
or under common law), best practice is that dismissal must be for
justifiable reason and due observance of extant contract of service
and fair hearing.

“Accordingly, an employer who decides to dismiss the employee is
not only obliged to provide reason(s) for the dismissal but also
justify the reason(s) if challenged.

“Thus, the often adopted veiled reason of ‘services no longer
required’ or muted reason is not applicable to dismissal but
limited to only termination, subject to service of appropriate
notice period or salary in lieu of notice. I so hold”.

The defendant, in the suit numbered NICN/206/2015 – Valantine
Nkomadu vs Zenith Bank Plc, alleged that the claimant breached the
bank’s credit policy which culminated in his indefinite suspension
for 10 months without pay, and subsequent dismissal.

The bank’s case was that the claimant violated its credit policy
when he made some recommendations to the management for loan
approvals and disbursement and some violations on loans approved
based on the claimant’s recommendation.

Defence counsel Obiajulu Konwa argued that the claimant’s
dismissal was justified even though he was not given query or
subjected to any disciplinary hearing, but only was summarily
dismissed.

But, the claimant, through his counsel Casmir Anyanwu, submitted
that his dismissal was wrongful due to the bank’s failure to
observe due process.

He said he was not afforded any opportunity to defend him over
allegation bordering on misconduct.

In the May 9 judgment, Justice Ogbuanya upturned the claimant’s
dismissal as unjustified.

He held: “This act is not only in breach of the provision of the
extant contract of service between the parties but also constitutes
a flagrant breach of natural justice rule of fair hearing- audi
alteram patem.”

He ordered the defendant to pay the claimant N13, 552.990.45
being his 10 months withheld salaries.

The judge ordered the bank to compute and pay his terminal
benefits having served meritoriously for about 14 years, rising
from the position of Executive Assistant II, to Senior Manager and
pioneer Branch Head of the bank’s Moloney Branch, Lagos.

The court also awarded N2million in the claimant’s favour for
the wrongful dismissal.

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