MR. JAMES O. AVRE v. NIGERIA POSTAL SERVICE
(2014) LCN/7039(CA)
RATIO
LABOUR LAW: DISMISSAL OF A SERVANT/AN EMPLOYEE
The law is that ordinarily a master is entitled to dismiss his servant for good or bad reasons or for no reason at all; that where parties have reduced the terms and conditions of service into agreement, the conditions must be observed; that where a contract of employment had been properly terminated, intention or motive for doing so becomes totally irrelevant; and that where an Employer pleads that an Employee was removed or dismissed for a specific misconduct, the dismissal cannot be justified in the absence of adequate opportunity offered to him to explain, justify or else defend the alleged misconduct. See the following authorities – Nigerian Oil Mills Ltd. V. Daura (2000) 1 NWLR (Pt. 639) 78, Arinze V. First Bank (2000) 1 NWLR (Pt. 639) 78; Uzoho V. Task Force on Hospital Management (2004) 5 NWLR (Pt. 867) 627 and Yusuf V. Union Bank (1996) 6 NWLR (Pt. 457) 632, where the Supreme Court held –
“… Before an employee can dispense with the services of his employee under the common law, all he needs to do is to afford the employee an opportunity of being heard before exercising his power of summary dismissal, even where the allegation for which the employee is being dismissed involves accusation of time. In the case at hand, the Respondent had done that. See Exhibit B wherein the Respondent called upon the Appellant to give comprehensive explanation of the three accusations of misconduct and impropriety leveled against him. These were replied by the Appellant in Exhibit C most unsatisfactorily… It is not necessary, nor is it a requirement under S.33 of the 1979 Constitution [S.36 of 1999 Constitution] that before an Employer summarily dismisses his Employee from his services under the common law, the employee must be tried before a Court of law where the accusation against the Employee is for gross misconduct involving dishonesty bordering on criminality… To satisfy the rule of natural justice and fair hearing, a person likely to be affected directly by disciplinary proceedings must be given adequate notice of the allegation against him to enable him make representation in his own defence. The complaint against him must not necessarily be drafted in the form of a formal charge. It is sufficient it the complaint as formulated conveys to him the nature of the accusation against him”. (As per Wali, JSC)
In effect, before an Employer can dispense with the services of his Employee, all he has to do is to afford the Employee an opportunity of being heard before exercising his power of summary dismissal, even where the allegation against the Employee involves accusation of crime. See Arinze V. First Bank (supra), where this Court per Olagunju, JCA states the position quite clearly as follows – “It seems to me from the perspective of the decisions on the powers of an Employer to dismiss summarily his Employee for gross misconduct that the propelling keystone is the preservation of the constitutional right of fair hearing. Whether the Employee was first prosecuted for the criminal offence arising from his acts of misconduct pales into insignificance once the Court is satisfied that the Employee was given a fair hearing in the sense of being confronted with the allegation against him and afforded the chance to make representation in his own defence”. In this case, the Appellant was issued with a query – Exhibits J and P, to which he responded to in Exhibit K and it would appear that the Respondent did not find his explanation to same satisfactory and it exercised its power to dismiss him from its service “for absence from duty without permission or leave”. I have earlier determined that his absence from duty till January 2003, was not sanctioned by the Respondent, and the Appellant was then asked to – “explain why disciplinary action should not be taken against [him] including dismissal” because “reports reaching fits] office say he abandoned his duty post without permission and all efforts to trace [him] proved abortive”. Per Amina Adamu Augie, J.C.A
