By Benita Ayo

It is to be expected in every human relations for conflict to arise. By its nature, the relationship between an employer and the employee is contractual and thus, any breach of the terms of contract is treated as a fundamental breach to which the aggrieved party will be entitled to damages.

The relationship between the employer and the employee is often governed by the contract existing between them stating various terms relating to the relationship.

Termination versus Dismissal: Differences in Between

While termination is bringing to an end to something, dismissal is the act of ordering or allowing someone to leave.

In light of the above, the differences between these two is that in the first situation (Termination), a party is merely exercising his rights in an agreement regulating the relationship and the affected party has a say in how the right is exercised. It is bringing the contract of employment to an end after giving the required notice or payment in lieu of notice. Termination is a mutual decision. In this case, the employee is entitled to payment of benefits.

In the case of dismissal, the employer simply removes the employee without any notice given or payment in lieu of notice.

The court has made some distinction between these two in the case of SEVEN UP BOTTLING COMPANY PLC v. AUGUSTUS (2012) LPELR-20873 where it held thus “It is trite that “dismissal” of an employee by the employer translates into bringing the employment to an end while under “termination of appointment”, the employee is enabled to receive the terminal benefits under the contract of employment. The right to “terminate” or bring an employment to an end is mutual in that either party may exercise it. “Dismissal” on the other hand is punitive and depending on the contract of employment entails a loss of terminal benefits. It also carries an unflattering opprobrium to the employee.”

From the above authority, the differences between termination and dismissal are;

Termination is a right exercisable under a contract of employment and it is a mutual decision while dismissal is a punitive measure for the wrongful conduct of the employee.

Where a reason is given for bringing the relationship to an end, this will amount to dismissal but where a reason for bringing the relationship to end is not given then this will amount to termination.

An employee is not entitled to receive terminal benefits where he is dismissed but he is entitled to such benefits where the employment relationship is terminated.

Notice or payment in lieu of notice is given to the affected employee in the case of termination. This is not the situation with dismissal.

Elements of Termination and Dismissal

The element(s) of termination and dismissal include;

Termination

Explanation for disengagement is not required

A month notice or payment of one month salary in lieu of notice is required

The disengaged staff is entitled to terminal benefits

Dismissal

Reason for disengagement must be given

A month notice or payment of one month salary in lieu of notice is not require

In most cases, the dismissed staff is not entitled to terminal benefits

The dismissed staff must be confronted with the allegations against him, accorded fair hearing and be made to appear before a panel before sanction.

Damages Applicable to Wrongful Termination

The damages applicable to wrongful termination is that the Claimant becomes entitled to the salary and other entitlements already lawfully accruable. This covers the period within which the employer would have lawfully terminated the contract of employment.

In the case of OSISANYA v. AFRIBANK (NIG) PLC (2007) 6 NWLR (PT. 1031) @586 PARAS. D-E (SC), the Appellant was an employee of the Respondent. Two individuals alleged that the appellant had committed some dishonest acts in the course of his duties under the respondent. In consequence, the appellant was suspended from work.

However, those who wrote the petition later withdrew it. That appeared that the petition had been motivated by malice. The appellant’s expectation that he would be recalled from suspension following the withdrawal of the petition did not materialize.

Rather, the appellant by a letter dated 12/10/87 was summarily dismissed from the respondent’s employment.

Read more here https://www.businesspost.ng/2018/05/08/damages-recoverable-for-wrongful-dismissal/