LEGAL PRINCIPLE: LABOUR LAW — Termination — Dismissal for Gross Misconduct Not Dependent on Prior Criminal Conviction
PRINCIPLE STATEMENT
It is not necessary that before an employer summarily dismisses an employee for gross misconduct involving dishonesty bordering on criminality, the employee must be tried before a court of law. To satisfy fair hearing, the employee must be given adequate notice of the allegation and an opportunity for representation. The complaint need not be drafted as a formal charge; it is sufficient if it conveys the nature of the accusation.
RATIO DECIDENDI (SOURCE)
Per Belgore, JSC, in Arinze v. FBN Ltd (2004) NLC-822000(SC) at pp. 6–7; Paras D–A.
"It is not necessary, nor is it a requirement under section 33 of the 1979 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 of gross misconduct involving dishonest bordering on criminality … to satisfy the rule of natural justice and fair hearing a person likely to be affected directly by disciplinary proceeding must be given adequate notice of the allegation against him to afford him opportunity for representation in his own defence. The complaint against him must not necessarily be drafted in the form of a formal charge. It is sufficient if the complaint as formulated conveys to him the nature of the accusation against him."
EXPLANATION / SCOPE
An employer may summarily dismiss an employee for gross misconduct even if the conduct is potentially criminal, without awaiting a criminal trial. The constitutional right to fair hearing in the employment context requires only: (a) adequate notice of the allegation, and (b) an opportunity for the employee to defend himself. The allegation need not be framed as a formal criminal charge; substantial communication of the accusation suffices. This serves balancing employer’s disciplinary rights with employee’s fair hearing rights. The court cannot require criminal conviction before employer can act on gross misconduct.