What is Constructive Dismissal?

Simply put constructive dismissal is the changing of an employee's job role or working conditions without his/her consent or input, demoting him, rendering him redundant and unproductive, thereby psychologically rendering his activities or productiveness in the company useless, stunting his carrier growth with the sole intent of forcing a resignation.

The employer psychologically forces the employee’s resignation by creating a hostile working environment that demoralizes the employee and makes them not perform at their best.

Giving that the resignation was not truly voluntary being that it was psychologically obtained, makes it is in fact, a dismissal.
An example of constructive dismissal might be a situation where an employer forces a senior employee to take instructions from his juniors and/or promotes junior employee over and above senior when the senior is obviously more experienced, competent and possesses a track record of inputs (result delivery) or any such other related actions in an attempt to frustrate the employee to force the employee to resign his job.

A clear example is where an MD forces a branch manager to take instructions from the Head of Banking Operations, because he is having intimate relationship with the H.B.O.

Or where He requests the branch manager to seek approvals from a beautiful marketer that catches his fancy.

It is interesting for employers to note that despite that fact that the concept of constructive dismissal is not very popular in Nigeria giving the current high rate of unemployment and unfavorable labour practices; issues bordering on constructive dismissal are no longer alien to Nigerians, or novel to the Nigeria Laws.

The third alteration to the 1999 constitution which was enacted or came into force on the 11th day of March,2011, empowers the National Industrial Court of Nigeria (herein after “NICN”) to apply international best practices as it concerns Labour Laws enacted or enforceable in Nigeria in arriving at its decisions.

This is further elucidated upon by the provisions of section 19(d) of the NICN Act (2006) which provides that:

“The court may in all other cases and where appropriate make any order including; an award of compensation or damages in any circumstance contemplated by this Act or any other Act of the National Assembly dealing with any matter that the court has jurisdiction to hear”.[/i][i]

In Ukoji v. Standard Alliance Life Assurance Co. Ltd [2014] 47 NLLR (Pt. 154) 531 , the court held that to attempt to have the employee resign, rather than outright firing the employee means that the employer is trying to create a constructive discharge.

In this case, the employee resigned because her supervisors’ actions were such that she was unlikely to be granted a fair hearing by the disciplinary panel investigating her role in an alleged defamatory incident in the course of her employment.

In its judgment, the National Industrial Court found in favour of the employee. It held that even though the employee had resigned, she had not resigned voluntarily; she resigned simply because her employer’s behaviour was intolerable, heinous and made life difficult for her. As the resignation was not truly voluntary, it was in effect, a termination.

The National Industrial Court has also held that an employer that fails to fulfill a commitment to promote an employee can also lead to finding of constructive dismissal. See. Kurt Severinsen v. Emerging Markets Telecommunication Services Limited [2012] 27 NLLR (Pt. 78) 374
Furthermore, if an employee agrees to continue in the employment relationship and the employer fails to make good on its commitment, the employer would be deemed to have constructively terminated the contract of the employee.

The case is not different where an employee is compelled to resign, having requested that their employer honour's the promotion agreement reached but such employer fails, neglects or refuses to implement such agreement.

In conclusion, Nigerians should wake up from their deep slumber and take steps to ensure that employers of labour are held accountable for their actions and actions especially in circumstance wherein they are forced to resign their employment due to the constant sexual harassment of their immediate employer or senior management staff.

Another scenario is where an employer refuses to pay salaries and accruable benefits thereby forcing such employee to look for another job having worked so hard with little or nothing to show for it.