Wrongful termination happens when an employee’s is discharged from employment for illegal reasons if company policy is violated when the employee fired.

            In many cases, unless there is a contract or bargaining agreement  employees are considered covered under employment at will which means your employer doesn’t need a reason to fire you. However an employee an employee can be wrongful terminated If discrimination is involved in the termination, if public policy is violated, or if company policy states guidelines for termination. Other reasons that could be construed as wrongful termination include retaliation i.e. being fired for being a whilstle blower or complaining, or for not being willing to commit an illegal act when asked to by an employer.

            Discriminatory reasons that can be considered wrongful termination include firing an employee because of race, nationality, religion, gender, or age.

            If you believe termination was wrongful or you have not been treated according to the law or company policy, you can get help. The US department of labour, for example, has information on each law hat regulates employment and advice on where and how to file a claim.

            In addition, local bar associations often have a referral service and may even have a lot line you can call to find an employment lawyer. Keep in mind that you will need to pay for an attorney’s service.

            When you are terminated you may not be eligible for unemployment compensation. If you are not sure whether you are eligible for unemployment, check with your state unemployment office to determine your eligibility for unemployment compensation. If your claim is denied you will be able to appeal and explain the circumstances of your termination.

Under the law of contract, the rule, generally, is that contracts of employment will not be specifically enforced. Special circumstances must be shown before the courts will exercise their equitable jurisdiction to specifically enforce the contract in favor of an employee wrongfully dismissed, and its exercise will be at the discretion of the courts. Several reasons have been adduced for this rule. In De Francesco v Barnum,1 Fry U declared2:

“For my own part, I should be vary unwilling to extend decisions the effect of which is to compel persons who are not desirous of maintaining continuous personal relations with one another to continue those personal relations. I have a strong impression and a strong feeling that it is not in the interest of mankind that the rule of specific performance should be extended to such cases. I think the courts are bound to be jealous, least, they

should turn contracts of service to contracts of slavery, and therefore, speaking for myself, I should lean against the extension of the doctrine of specific performance and injunction in such a manner.

Thus, where an employee’s appointment is wrongfully terminated, his remedy lies in an action for damages, because, the court cannot force an employer to keep an employee in his service if the employee’s services are no longer required. The normal measure of damages that the employee would be entitled to is what he would have earned over the period of notice required to lawfully terminate his employment. This is consistent with the contract between the parties that have stipulated the measure of damages.3

4.2       Damages

Where an employee is wrongfully removed, either by a summary dismissal that has not been justified or by giving of insufficient notice, the normal remedy to which he is entitled is damages. As we have seen, his reinstatement will not normally be ordered.

Put in another way, the remedy for breach of contract of personal service save in exceptional circumstances is damages. It is not open to the respondent to proceed on the basis that his contract of employment was still subsisting and claim for loss of salary and other perquisites of his employment for the period he did not work. This is in consequence of the general principle of law that the court will not grant specific performance of contract of service5,

As a general rule, the measure of damages is the amount the employee would have earned under the contract for the period until the employer could validly have terminated it, less the amount the employee could reasonably be expected to earn in other suitable employment. This is because the dismissed employee, like any innocent party following a breach of contract by the other party, must take reasonable steps to minimize his loss. This is in consonance with another rule of the common law that, where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed.

Thus, the Appeal Court, in the case of Osumah Edo Broadcasting Service6 stated:

“Where an employee’s appointment is wrongfully terminated, his remedy lies in an action for damages, because, the court cannot

force an employer to keep an employee in his service if the employee’s services are no longer required. The normal measure of damages the employee would be entitled is to be what he would have earned over the period of notice required to lawfully terminate his employment. This is consistent with the contract between the parties that have stipulated the measure of damages.”

Where employment is for a fixed period, and it is wrongfully terminated, the damages for the loss of earning are limited to the period that the courts deem reasonable to enable the plaintiff to secure alternative employment7a. And what period is reasonable depends on the fact and circumstance of each case7b. In Haider v Barini (Nig) Bank Ltd8, the plaintiff was an alien. His contract with the defendant bank was for a fixed period of three years, as from 24th October 1959. The plaintiff was wrongfully dismissed on 1st June 1960.

The trial court gave the plaintiff damages on the basis of three months’ notice. On appeal the plaintiff argued for an amount equivalent to his salary for the unexpired period of contract.

The Supreme Court held that a contract for a fixed period ceased to exist from the date of its wrongful termination; and that the plaintiff was only entitled to damages for breach of contract and not to his salary for the unexpired period. In awarding damages to the plaintiff, the court ohserved8b

“One has to bear in mind that he was an alien in Nigeria, brought here as an employee of the bank by leave of the Imrnigration Authorities, and that factor was overlooked by trial judge when assessing damages. It may be reasonable in the normal case to award damages on the basis of three months’ notice in the case of Nigerians dismissed by a bank; they can seek other employment, and they should; but an alien like the plaintiff is in a different position. There is no evidence on the possibility of his finding other employment…
In the light of the above consideration I am of the opinion that the damages should include salary to the end of January, 1961... plus salary for one month thereafter to allow the plaintiff time to arrange for appeal against the judgment and return to Beirut and settle down there plus salary for another three months in which to seek suitable employment-which means twelve months in all.”

The salary or wages for the unexpired period of employment are recoverable as damages. Akintan JCA explaiis the principle this way:8

“The position in law is that where a contract of employment is for a specific period and the employee was wrongfully dismissed or removed from office, then an award of damages in the full amount of salary, allowances and other entitlement which the employee would have earned, if the contract of service had run up full course, is the maximum amount may be reduced slightly in respect of being payable immediately instead of due dates.”

In the assessment of damages for losses, other than the loss of wages or salary, the measure of damages is, generally limited as in cases of damages for a loss of wages to the notice period9. There is no basis for an award of general damages n a breach of employment contract, or for injured or ruffled feelings as a result of the loss of job10 Also, the courts take into consideration the legal obligation to mitigate loss arising from a breach of contract. A wrongfully removed employee is expected to take reasonable steps to obtain another suitable employment and if he does, whatever he earns at that employment will be deducted from the damages otherwise recoverable. The onus is on the employer to prove that the employee has or ought reasonably to have obtained an alternative employment.

4.2       Declaration and Injunction.

            At common law, the remedy of damages was the only relief for breach of contract. And as we have seen, this remedy is hardly an adequate compensation to an employee wrongfully dismissed. Declaration and injunction are court orders by which a defendant is directed or compelled to perform the contract in accordance with its terms. Whenever the court grants specific performance in favour of an employee wrongfully dismissed, the effect is that the dismissal is invalid and employee reinstated or restored11 to his employment.

The Appeals Court in the case of National Electric Power Authority v Olagunju12 stated that a court of law could not make a declaration to order the reinstatement of a staff or an employee when it has not been established by evidence that such employment exists. The terms of the employment and the nature of the appointment are necessary proof to clothe the court with jurisdiction.

Additionally, in N.E.PA. v Olagunju (supra)13, the court held as follows, on what a plaintiff, seeking declaration that termination or dismissal is null and void, should prove:

“In an action by an employee which seeks a declaration that the termination of his employment or his dismissal is null and void, he must plead and prove not only the appointment but also the terms and conditions of appointment or contract of service constitute the foundation…”

Thus it is only when special circumstances exist, that a declaratory judgment would be given. An order of certiorari or even mandamus may also become available although its effect will be to specifically enforce the contract.

What Circumstances Amount To Special Circumstances?

1)        Statutory Status:

The Supreme Court has said that such special circumstances has been held to arise where the contract of employment has a legal or statutory flavor, thus putting it over and above the ordinary master and servant relationship.14 This is so where the procedure for the determination of the employment is regulated either directly by statute or by rules or regulations made by virtue or statutory power. ‘It is now well established’ said Uwaifo JCA,

“That an office or employment has a statutory flavor in the sense that its conditions of service are provided for by statute or regulations made there under. Any person in that office or employment enjoys a special status over and above the ordinary master and servant relationship15.

Also in Okarafor v Minister Of Internal Affairs16, It was held that
where the laid down procedure in the relevant laws and regulations are not followed, the plaintiff would be entitled to automatic reinstatement.

However, it is not enough merely that the employer is a statutory body. The fact that the employer is a statutory body does not mean that the condition of service of its employees must be of a special character ruling out the relationship of mere master and servant17 As Uwaifo JCA has said:

“It is unattainable to conclude that simply because the defendant is a statutory body the condition of service of its employment must be presumed to be of a special character making it necessary to rule out the relationship of mere master and servant between the defendant and its employee, it must be ascertained, that is to say, through evidence adduced, that there are rules and regulations which govern the employment to give it a statue of a particular tenure.”18

On the other hand, where a plaintiff claims a declaratory order that his employment subsists or that he was wrongfully declared redundant by his employer but fails to adduce evidence of the terms of his employment in proof of his assertion, he would not be entitled to the declaratory order sought.19

2. Termination for Misconduct:

Where an employer states that an employee was dismissed for misconduct, if challenged he must prove the misconduct, otherwise that may be a ground for decreeing specific performance against him.20a The Nigerian supreme court has held that where the employee is a civil servant with a permanent and pensionable appointment, the employer must not only prove the misconduct, but he also gave the employee a fair hearing.20b

In A. C. B. Ltd v Ewarami,21 the appellant/employers failed to discharge their averment that the respondent was dismissed from service for his refusal to go on transfer. The appellant alleged that the order to proceed on transfer was contained in a letter dated 3rd August 1973, addressed to the respondent. However, there was no proof from the appellants that the said letter was served on the respondent.

The plaintiff/respondent claimed not only that his dismissal was wrongful, but also declaration that he was still in the employment of the appellant. His prayers where granted by the trial court and affirmed by the Supreme Court.22

3.         Where the Contractual Provision is Exhaustive on Grounds for Termination:

In McClelland v Northern Ireland General Health Service23, the appellant held a permanent and pentionable employment. By the Clause 12 of the conditions of employment, the respondent board could dismiss an officer only for gross misconduct, inefficiency and unfitness to merit continued employment, and where dismissal was for misconduct, the board had to give at least one month’s notice. The board gave the appellant six months’ notice   , and terminated her appointment on the ground of redundancy. The English House of Lords held that the appellant’s employment had not been validly terminated. Since it was terminable only as provided for by Clause 12 of the conditions of employment, which was exhaustive in that respect. The House, therefore, granted the appellant a declaration that her employment still subsisted.24

4.         The Existence of Mutual Confidence:
The plank upon which the English Court of Appeal, in Hill v C. A. Parson & Co. Ltd,25 founded its jurisdiction to grant injunction restraining the employers from treating a wrongful dismissal as terminatory of the plaintiffs employment was the continued existence of mutual confidence between the parties. As once judge has remarked: “The defendant had been unwilling to dismiss the plaintiff and were induced to do so by organized industrial pressure. They were quite willing to re-employ him if they could legitimately and practically do so.”26

1  (1890) 45 Ch D 430 @ 435
2  Tony Nwazuoke, Introduction To Nigerian Labour Law, The Department Of Public Law And Jurisprudence Ogun State. 1st (ed) 2001 p 89
3 Osumah v Edo Broadcasting Service (2005) ALL FWLR (Pt 253) 773 at 778.
5 EE UViaghara, Labour  Law In Nigeria, malthouse, Lagos Nigeria 1st (ed) 2001 P. 94
6 (2005) ALL FWLR (Pt 253) p. 773 @ 778
7a Haider v Barini (Nig) Bank Ltd (1963) SCNL 242
7b Tony Nwazuoke, Introduction To Nigerian Labour Law, The Department of Public Law And Jurisprudence Ogun State. 1st (ed) 2001 p 91
8 Supra
8b Tony Nwazuoke, Introduction To Nigerian Labour Law, The Department Of Public Law And Jurisprudence Ogun State, 1st  (ed) 2001 p 92
8 David Osuagwu v A.G Anambra State (1993) 4 NWLR 13, 45
9 See for example, Bold v Brough Nicholso Ltd (1964) 1 WLR 2001, a case dealing with pension’s right under a  contributory pensions scheme. Damages for loss of pension rights were limited to the notice period necessary for the valid termination of employment; In Manubens v Leon (1919) k.B 208 where the plaintiff was awarded damages for loss of tips which under the contract he would have been entitled to over the period of notice had the contract not been terminated in breach.
10 Nigerian – Arab Bank Ltd v Shuaib (1991) 4 NWLR 450
11 According to Thomas Kobling and Tamara Lewis, Employment Law (Legal Action Group 2nd (ed) 1994 P 175 & 176: Reinstatement is where the court ordered that the worker returns to his/her old job, whereas re-engagement is where the worker returns to a similar job either with the employer or an associated employer
12  (2005) 3 NWLR (Pt 913) P  603 @ 612
13 (2005) 3 NWLR (Pt 913) P 603 @  612
14  Chukwuma v Shell Petroleum Company Of Nigerian Ltd (1993) 5 KLR 93, 111.
15 University of Nigeria Teaching Hospital Management Board v Nnoli (1992) 6 NWLR 725, 968
16   (2004) ALL FWLR PT 209 P. 1108 @ 1110
17  Per Kutigi, JSC in the leading judgment of the supreme court in Fakuade v OAUTH (1995) 5 NWLR 47, 57.
18  Udemah v Nigeria Local Corporation (1991) 3 NWLR 477 @ 487.
19  Yusuf v Dornier Aviation (Nig) Ltd (2004) 10 NWLR (PT 880) P. 1 @ 5.
20a Tony Nwazuoke, Introduction To Nigerian labour Law, The Department Of Public Law and Jurisprudence Ogun State. 1st (ed) 2001 P 103/
20b Ibid; Olatunbosun v N.I.S.E.R. Council (1988) N.S.C.C. 1025. per Oputa, J.S.C. at P. 1046
21 (1978) S.C. 99
22 Tony Nwazuoke, Introduction To Nigerian Labour Law, The Department of Public Law and Jurisprudence Ogun State. 1st (ed) 2001 P 104
23 (1957) 2 ALL E R. 129; Ibid
24 Tony Nwazuoke, Introduction To Nigerian Labour Law, The Department of Public Law And Jurisprudence Ogun State. 1st (ed) 2001 P104
25  Supra
26 Gunton v Richmond
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