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Summary Dismissal Based On An Allegation Of Misconduct Bordering On Crime

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Summary dismissal is the common law right of the employer to determine the contract of service of an employee without notice or payment in lieu of notice on account of gross misconduct on the part of the employee which strikes at the root of the contract. It is the firing of the employee by the employer. Employers of labour normally exercise this right when the employee commits serious misconduct.

A dismissed employee does not enjoy terminal benefits which an employee whose services are terminated enjoys, like gratuity and severance pay. Unlike summary dismissal, Termination is a less severe form of involuntary termination is often referred to as a layoff (redundancy or being made redundant in British English). A layoff is usually not strictly related to personal performance but due to economic cycles or the company’s need to restructure itself, or a change in function of the employer (for example, a certain type of product or service is no longer offered by the company and therefore jobs related to that product or service are no longer needed). One type of layoff is the aggressive layoff. Under such a situation the employee is laid off for a just cause but is never replaced and the job is eliminated. Often, layoffs occur as a result of “downsizing”, “reduction in force”, or “redundancy”. These are not technically classified as firings. A laid-off employees job is terminated and not re-filled, because the company wishes to reduce its size or operations, or otherwise lacks the economic stability to retain the position. In some cases, a laid-off employee may be offered re-hire by his/her respective company, though by this time, he/she has often found a new job.

Where an employee persists in refusing to obey his employers orders, the employer will be justified in dismissing him, as the employer is not bound to keep a burdensome employee. Also, it is not a requirement under the constitution that before an employer summarily dismisses his employee from his services, that the employee must be tried in a court based on allegation of crime. However, an employee ought to be tried before a court of law where the accusation against the employee is for gross misconduct amounting to a criminal offence. Under section 36 of the 1999 constitution of the Federal Republic of Nigeria provides that, in the determination of his civil rights and obligations including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality. Therefore, it is wrong for an employer who accuses an employee of criminal misconduct to constitute itself into a prosecutor and judge in its own case. The employer cannot constitute itself a court and try its employee for offences which are clearly offences against the State. It is a usurpation of the functions of the courts, if section 6 of the 1999 constitution of the Federal Republic of Nigeria must thrive.

Finally, an employer that summarily dismisses an employee for misconduct bordering on crime must bring the employee to be tried by the regular courts or tribunals set up in accordance with the law. The employee must be tried in a court of law where the complaints of his accusers can be ventilated in public and where he would be sure of getting fair hearing, to enable the employee not only to vindicate his name, but also enjoy the statutory protection offered by the constitution. Failure to bring an employee, who is accused of misconduct bordering on crime before the law courts in Nigeria, violates the provisions of the Nigerian constitution.

Source by Chidozie Ofoegbu

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