Legal Remedies in Wrongful Dismissal

What remedies are available for Wrongful Dismissal or other Employment Law issues?

Wrongful dismissal is usually the claim of an employee at common law, where he contends that his contract has been wrongfully repudiated by the employer; or where he feels that his contract has not been brought to an end in accordance with the procedure laid down by the contract or in accordance with section 11 of the Labour Act 1971, Cap 198 LFN 2004.

An employee who is terminated in contravention of any of the grounds stipulated in Section 11 of the Labour Act or terminated for misconduct will have a remedy in damages for wrongful dismissal. In other words, the law recognises the right of an employee to sue for wrongful dismissal. The wrongful dismissed employee has a right to claim damages and other equitable remedies, injunctions, specific performance, reinstatement and re-engagement where he can prove wrongful dismissal.

Damages

An employee who has been able to establish that his employer has wrongfully dismissed him is entitled to claim damages under common law. The employee must also mitigate these damages as far as he reasonably can.

The general principle to be followed in awarding damages was first laid down by the Supreme Court in Western Nig, Development Corporation V Jimoh Abimbola (1966), where it was held thus:

"The measure of damages for wrongful dismissal is prima facie the amount the plaintiff would have earned had he continued with the employment, where the defendant has a right to terminate the contract before the end of the term, damages should only be awarded to the earliest period at which the defendant could so terminate the contract"

General damages would not be awarded for such claims are merely speculative or sentimental and there is no room for them unless they are specifically provided for by the terms of the contract.

But in the case of British Airways V Makanjuola (1993), it was illustrated that the court may be prepared to award substantial damages far award substantial damages far beyond the normal period of notice, if the circumstances are right as in the particular case itself where the termination "carries with it some stigma on the character of the dismissed employee."

From the foregoing, it can be gathered that for an employee to claim damages for wrongful dismissal he must prove that.

• Having been employed for a fixed-term, he was dismissed before the expiration of the term.
• Also where the contract stipulates a period of notice and the dismissal was without such notice.
• And lastly, that the dismissal was without just cause.

Equitable Remedies

Equitable Remedies are remedies if granted, usually will result in the reinstatement of the employee. These remedies are injunctions, declarations and specific performance. The use of equitable remedies have been rare in Nigeria, except in the cas of public officers whose employment is guided by a statutory instrument establishing the public institution as was  the case in Shitta-Bey V FPSC (1981) and Olaniyan & Ors Vs University of Lagos (1985).

An employer cannot be compelled to reinstate an employee if he is not willing to take it back. In other word the court cannot force an "unwilling employer to take on a willing employee". The remedy is only in damages once has been dismissed.