By Timileyin Ilesanmi
Many employees assume that an employer cannot dismiss them without first issuing a warning letter. That assumption is not always correct. Whether an employer may dismiss without warning depends on the employment contract, the nature of the alleged misconduct, the applicable statute, and whether the employee was given an opportunity to respond.
Nigerian employment law distinguishes between ordinary termination and summary dismissal. An employer may terminate an ordinary contract in accordance with its terms, but dismissal for misconduct requires a more careful process, particularly where the contract, statute, or public-policy considerations prescribe a procedure.
When may an employer lawfully dismiss an employee without prior warning or notice? The answer depends first on whether the dismissal is an ordinary termination or a disciplinary dismissal for misconduct.
Ordinary termination is the employer’s decision to end the employment relationship in accordance with the contract. Summary dismissal, by contrast, is immediate termination without notice or payment in lieu of notice, usually because the employee has committed gross misconduct amounting to a fundamental breach of the employment contract.
Ordinary termination
At common law, an employer may terminate an ordinary employment contract for any reason, or even for no reason, provided the contractual notice period is observed. The Supreme Court reaffirmed this position in Ovivie v. Delta Steel Co. Ltd. (2023) 14 NWLR (Pt. 1904) 229, holding that an employer may terminate ordinary employment for any reason or no reason, so long as the terms of the contract are followed.
Where the contract requires one month’s notice, the employer may either give one month’s notice or pay one month’s salary in lieu of notice. The employee cannot insist on being told the reason for the termination if the contract does not require it. The employer’s obligation is procedural: comply with the agreed notice period and pay accrued entitlements.
For employees covered by the Labour Act, section 11 prescribes minimum notice periods based on length of service: one day for employment of three months or less; one week for more than three months but less than two years; two weeks for two years but less than five years; and one month for five years or more. Notice of one week or more must be in writing.
Dismissal for misconduct
The position changes where the employer alleges misconduct. Summary dismissal is available only where the employee’s conduct amounts to a repudiatory breach of the employment contract—conduct so serious that the employer cannot reasonably be expected to continue the relationship. Examples may include theft, fraud, violence, serious insubordination, falsification of records, or deliberate disclosure of confidential information.
Even then, the employer must follow the disciplinary procedure in the employment contract, staff handbook, or applicable statute. Where the contract prescribes a procedure for misconduct, failure to follow it may render the dismissal wrongful. Where a statute prescribes a procedure, non-compliance may render the dismissal a nullity.
The employee must also be given an opportunity to answer the allegation. In Baba v. Civil Aviation (1986) 5 NWLR (Pt. 42) 514, the courts recognised the importance of affording an employee the opportunity to respond to allegations before dismissal. A fair disciplinary process ordinarily requires a clear allegation, an opportunity to respond, an impartial consideration of the explanation, and a decision based on the evidence.
Fair hearing and public employees
The requirement of fair hearing is particularly strict in public-sector employment. An employee in the public service cannot be dismissed for misconduct without being informed of the allegation and given an opportunity to defend themselves. Where the employment is governed by public-service rules or a statute, the prescribed disciplinary procedure must be followed.
The courts have repeatedly held that dismissal in breach of the rules of natural justice may be null and void. The employee may be entitled to reinstatement, payment of arrears of salaries and allowances, or damages, depending on the nature of the employment and the relief sought.
Private-sector employees may have a narrower route to reinstatement, especially under ordinary contracts terminable by notice. However, where the dismissal breaches the contract, a disciplinary procedure, or an applicable statute, the employee may still recover damages or other contractual entitlements.
The Aloysius debate
There has been significant debate about whether an employer must give a reason for termination. In Aloysius v. Diamond Bank Plc [2015] 58 NLLR (Pt. 199) 92, the National Industrial Court held that terminating employment without a valid reason connected with the employee’s capacity, conduct, or the employer’s operational requirements was inconsistent with international labour standards.
That decision represented a shift towards greater employment security. However, in Ovivie v. Delta Steel Co. Ltd., the Supreme Court restated the traditional common-law position that an employer may terminate an ordinary employment contract for any reason or no reason, provided the contractual terms are followed. The practical position is therefore nuanced. An employer may have contractual freedom to terminate without reasons, but it cannot ignore contractual procedures, statutory protections, or fair-hearing requirements where dismissal is based on misconduct.
Remedies for the employee
An employee who is wrongfully dismissed may claim damages measured primarily by the notice period or the contractual entitlements that should have been paid. Where the contract provides for three months’ notice, damages may be limited to three months’ salary, unless the contract or law provides otherwise.
Where dismissal is unlawful because it breaches a statutory procedure or the rules of natural justice, the employee may seek a declaration that the dismissal is null and void, reinstatement, arrears of salaries and benefits, or damages. The remedy depends on the nature of the employment, the applicable rules, and whether reinstatement remains practicable.
Final note
Employees should read their employment contracts, staff handbooks, and disciplinary policies carefully. They should respond promptly and professionally to queries, attend disciplinary hearings, preserve relevant emails and messages, and avoid resigning in haste while a dispute is ongoing.
Employers should ensure that allegations are investigated, employees are heard, decisions are documented, and the contractually prescribed process is followed. A dismissal that is substantively justified may still be wrongful if the procedure is flawed.
An employer may dismiss without warning only where the employee’s conduct justifies summary dismissal and the required procedure has been followed. Otherwise, warning, notice, or payment in lieu remains the safer legal route.