Employment stipulating the period of notice for termination of an employees employment, the court proceed to consider what period

of notice is reasonable. See Beredugo V College of Science and Technology, Port Harcourt (1991) 4 NWLR 651. What is a reasonable period of notice depends on the circumstance and the status of the employee. In Hill V C. A. parsons & co. Ltd (1971) 3 NLWR 995, it was held that one month notice was not reasonable for the determination of the employment of a professional engineer. It has been held that an airline pilot was entitled to three months notice. See Nicoll V Falcon Airways Ltd (1962) 1 Lioyds Rep 345. Six months has been considered adequate for a manager of 120 Cinemas. See Adams V Union Cinemas Ltd (1939) 3 AER 136. The labour Act has stipulated some minimum period of notice. Section of the Act provides as follows; 1) Either party to a contract of employment may terminate the contract on the expiration of the notice given by him to the other party of his intention to do so. 2) The notice to be given for the purpose of subsection (1) of this section shall be a) One day, where the contract has continued for a period of three months or less; b) One week, where the contract has continued for more than three months but less than two years; c) Two weeks, where the contract has continued for a period of two years but less than five years, and d) One month, where the contract has continued for five years or more .

Please note that any notice for a period of one week or more shall be in writhing. (see S. 11(3) Labour Act). Notwithstanding, that the required length of notice is given, it is essential in Law that the forem of notice must be complied with. Thus in Oyekoya v G.B. Ollivant (Nig) Ltd (1990) 1 All NLR 80 Supreme Court distinguished between 30 days and one month notice. In the latter form of notice it was held that a month notice must expire at the end of a current month. So that where a months notice is given and serves to be effective after the first day of the month, then the proper date of the expiration of the notice would be the end of the next month if the document is properly worded to of that of fetch. See also Adeyemo v Oyo State public Service commission (1979) 1 O.Y.S.H.C 83 where it was held that the defendants could not terminate the plaintiffs employment on a 10-days notice commencing from April 8. 197 when the contract provided for a notice of one month. A notice is not effective until received by the employee. And time begins to run on receipt of the notice of termination. In precious v Reedi (1924) 2 KB 149, the tenant received by post on September 5, 1923 a notice dated September 1, 1923, from the landlord purporting to give him one month notice to quit. It was held that the notice to quit was invalid inasmuch as it did not expire at the end of the monthly term. It should be noted that according to section 11(4) of the Labour Act, a period of notice exclude the day on which the notice is given. Termination of employment takes effect from the day notice expires and not the date it was given. See H.W Smith (cabi Ltd v Brindle (19 / 3) 1 AER 230.

However where payment is made in lieu of notice and the employment was asked to leave at the beginning of the period of notice, the contract ended then and not when notice expired, see Dixon V St (1931) 1 C 157. Please more that section 11(6) of the labour Act provides for the waiver of right to notice or payment in lieu of notice. Payment in lieu of notice excludes overtime and other allowances. See section 11(9). The validity of a lawful notice to terminate does not depend on acceptance or rejection of notice. Notice is a unilateral act requiring no acceptance and once given becomes irrevocable, provided it has reached the appropriate person or his agent. See Riordan v war office (1959) 2 AER 552.

TERMINATION OF EMPLOYMENT OF A PUBLIC SERVANT Generally speaking a contract of employment of whatever kind may be brought to an end by notice. But usually contract of employment of a public office sometimes contain additional procedure which are regarded as a condition precedent and must be complied with if the termination iis to recognized by the court as valid. Where for instance, the power to terminate is vested in a particular authority, but another person purported to exercise the same, the termination will be invalid. In Hart Military Governor of Rivers state (1976) S.C. 211, the military Governor purported to exercise the power within the competence of the Civil Service Commission. The supreme court held that such exercise of power by the military governor was null and void. Also in Roberts v Sule Katagun & Ors (1966) LLR 1, the police Service Commission forced an officer to go on retirement, purporting to exercise the power provided under section 9(1) of the pensions Act 1959. But under the section, the commission had no power to remove certain

officers. The Supreme Court held that the officers dismissal was unlawful because the Commission acted beyond its power. Where the contract of employment has statutory favour, the determination of such contracts must be noted that not all contracts of employment of public servant have statutory favour. See v University of Ilorin (1994) 3 NWLR (pt 330) 81; Fakuade v OAUTICMB (19093) 5 NWLR 47; In Federal Capital Development Authority v Sule (1994) 3 SCNJ 71, the supreme Court held that since the employment was tinged with a statutory favour and having held his termination null and valid, the justice of the case demand that declaration be granted to restore him to his post. In Orji v Zaria industries & Anor (1992) 1 SCNJ 29, the Supreme Court b held that mere participation of any government in a private does not ipso facto convert such a company into a statutory one which will make its officers qualify to be regarded as public officers.

TERMINATION OF A FIXED TERM CONTRACT A contract of employment which provide for working for a fixe period of time cannot be determined before the expiration of the fixed period. See Nigerian Port Authority v Ephraim Banjo (1972) 2 S.C 175.Section 9(7) of labour Act provide that a contract shall be terminated in in the expiry of the period for which it has made in other words, where a worker is engaged for say, three years, the contract will terminate at the end of the three years. Implicit in section 9(7) (a) is that no formal notice is required to terminate the contract. Only the passage of time or the completion of the work will discharge the contract. Although a fixed term contract cannot be terminated by notice, the

employee can however be rightfully dismissed for misconduct, willful

disobedience or lawful or reasonable order or for incompetence. In Garabedian v Asad (1961) All NER 477, the plaintiff who was wrongfully dismissed before the expiration of his fixed term contract of one year was held entitled to the salary for the unexpired period of his contract. The question however is; what is the position of a person whose contract of service provides that his employment is permanent and pensionable. Here the decision of a Court faced with such a situation will depend on the contraction of the terms of the contract and facts of the case. In Abukogbo v African Timber & plywood Ltd (1966) 2 All NER 87, the Court held that a provision for permanent and pensionable employment does not necessarily mean employment for life. In Melelland Ireland General Health Service Board (2857) 1 WLR 594, the house of Lord held by bare majority that where a contract of employment was based on an advertisement for permanent and pensionable employment, and the contract contained express provision for termination by the employers by notice in the event of gross misconduct, then I it was not terminable by notice by the employer, in any other event. In salt v Power Plan Co Ltd (1936) 3 AER 322, the contact otf employment was terminable within three years and then made permanent. The Court of Appeal implied an employment for the office of the employee. However, in the earlier case of Savage V British India Steam Navigation Company Ltd (1930) 46 TLR 294, right J was inclined towards a presumption that a provision for termination by the employer on reasonable notice could be implied into a contract of employment which could otherwise last till the retirement of the employee. Again in Ward v Barclary Perkins & Co Ltd (1939) 1 AER 287, it was held that the employers right to terminate a contract of employment on

ordinary notice such as would suffice for an ordinary employee was not excluded by the admission of the employee as a permanent Staff McClellands case may be distinguished from these two cases on the ground that express provision in the contract of employment for termination in certain events excluded a consideration in favour of termination in any other events.

TERMINATION BY AGREEMENT As in any other contract, the parties to a contract of employment may terminate the contract by a subsequent agreement. Thus if the employer and employee agree to complete new terms and conditions, the old contract is discharged and superseded by the new one: Strange V Mann (1965) 1 AER 1069. This suggest that subsequent agreement must be mutual. It is not enough to ask the worker just to ratify a unilateral decision by initialing the charge V NBC (1967) NER 103.

SUSPENSION FROM EMPLOYMENT Suspension from employment has been defined as that state of affairs which exist while there id a contract in force between the employer and employee, but while there is neither work being done in pursuance of it, nor remuneration being paid suspension of employees contract of service is usually geared toward enforcing discipline on the erring employee. Generally, at common Law, the employer does not have the power to suspend his employee for disciplinary reasons unless such power are expresses or can imply in the terms of the contract. In Nicol Electricity Corporation if Nigeria (1965) LLR 61, the power of suspension of contract of

service of the plaintiff was expressly reserved therein. The Court held that the defendants could on the term of the contract suspend the Plaintiff. Where the contract of employment gives the employment the power to dismiss or suspend the employee lon disciplinary grounds, then it is open to the employer to choose either of the two punishments, but not to apply the both. In Warbarton V Taff Value Railway Co (1902) 18TLR 420, the RULES OF A RAILWAY COMPANY: entitled it to punish its employee by immediate dismissal or suspension. The company suspended the plaintiff for two weeks before dismissing him. It was held that it was wrongful on the part of the company to do so. This decision, therefore, shows that where the terms of contract of employment reserve the right to suspend, which suspension may ultimately lead to dismissal, the terms must expressly say so. If the employee is eventfully dismissed after suspension, then the employer is under duty to pay him the remuneration he would he would have earned during the suspension. Nicol V ECN (1965) LLR 261: Nigerian Produce marketing Board V Adewunmi (1972) 11 SC 111. Again, in has been established that where the employer is entitled to suspend his employee. That includes a right to withhold wages and work: Wallwork V Fielding (1922) KB 66; Okunoren V U.A.C Ltd (1958) 20 HLR 25. See also section 17(1) (b) of the Labour Act. In bird British Calanese Ltd (1945) 1 KB 336, the employment was suspended for two days without pay under a well established practice known to him. Scott L.J commented: Under the suspense clause the right to wages ceased and the wages are not earned, and no deduction can be made wages which are not payable. The clause operates in accordance with its terms; the whole contract is suspended, in the sense that the operation of the mutual obligation of both

parties is suspended; the workman ceases to be under any present duty to work, and the employer ceases t be under any consequential duty to pay. Birds case indicates that a term permitting suspension may be implied from collective agreement, or from trade custom or from statute.

DISMISSAL FORM SERVICE We have already noted the distinction between dismissal and termination of appointment. In J.A Irem Obubra District Council & Anor (1960) 5 FSC 24, the Court observed carries infamy and deprives one of benefit which termination did not. Section 11(5) of the Labour Act recognizes the efficacy of dismissal by providing that either party to a contract can terminate the same without notice by reson of such conduct by the other party as would have enabled him to do before the making of the other Act. Although the Labour Act did not make use of the word dismissal, the provision is nonetheless one of without notice.

DISMISSAL FOR MISCONDUCT Acts constitute misconduct as to attract the sanction of dismissal are not cast in the same mould. The Court therefore reserves a wide discretion to decide on the acts amount to misconduct. Dismissal has been justified on the following grounds: a breach of the duty of fidelity: Stoco V Maja (1968) NKLR 372, or unauthorized borrowing: Sinclair V Neighbour (1966) 3 AER 988; or theft as in Abukugbo V African Timber & Plywood Ltd (1966) 2 ANLR 87, or negligence as in Usen V B.V.A Ltd (1965) ALL NLR 244.

What constituted misconduct is a question of act alone and not governed by any trigh standard. In Clouston & Co Ltd V Corry (1906) A.C 122, Lord James held that there is no fixed rule of lkaw defining the degree of misconduct which will justify dismissal. A single isolated act of sufficient gravity can justify dismissal. In Oyed TUTH (1990) NWLR 194, it was held that under law there is no definition of what is misconduct; it is what the employer consider to be a gross misconduct which entitles the employer to dismiss the employee. With the greatest respect, this decision cannot be supported. The worker is unprotected if the whole matter is left to subjective view of the employer. Misconduct outside working hours provided it affects the employment relationship has been held to justify dismissal. Such misconduct as drunkenness as in Clouston Co Ltd v Corry (1902) A.C. 122 or an employees private love life as in Moller v Monier Construction Company (Nig) Ltd (1961) 2 16. In that case the plaintiff, a mechanical engineer was employed by the defendants under a written contract for a fixed period of twenty months beginning from February 1960. The defendants provide the plaintiff with free accommodation in one of the companys flats. Under the contract of service, the company reserved the right to terminate the employees employment without notice or compensation if the employee commit any act which in the opinion of the company is likely to bring the latter into dispute with any other persons, bcompanies, authorities and before the public. The plaintiff regularly and openly brought women of certain class to his flat to pass the night with him. The paintiff and his women sometimes engage in conduct which bended to embarrass and annoy the other occupants of the building who were members of the companys staff. On the above fact it was held that the company was justified in dismissing the plaintiff form service.

DISMISSAL FOR DISOBEDIENCE

An employer can dismiss an employee on the ground of willful disobedience of lawful reasonable orders within the scope of his contract service, see Gregory V Ford (supra). In university of Calabar v Essien (1996) 10 227, the Supreme Court held as follows: THE WORD Insubordination connotes disobedience, and willful disobedience of lawful order or command of a superior officer has been judicially interpreted quite rightly to mean insubordination. Disobedience of an employees lawful order and/or insubordination by an employee is an act of misconduct which may justifiably attract the penalty of summary dismissal, termination or compulsory retirement of the employee concerned. Note that not all lawful of reasonable orders need to be obeyed if they are outside the scope of the contract service.

DISMISSAL FOR INCOMPETENCE

An employees incompetence usually manifests itself at the commencement of employment. The longer a person is in employment, the more difficult it is to establish incompetence. The right to dismiss for incompetence is as an extension from the right to dismiss misconduct, and this was establish in the celebrated case of Harmer v Cornelius (1858) 5 CB (NS) 236. In that case, the plaintiff replied enclosed a picture of his work. He was engage but was found to be so incompetence that he was dismissed within two days of starting work. The Court held the dismissal fir incompetence lawful. According to Willes J, the failure to afford a requisite skill which had been expressly or impliedly promised is a breach of a legal duty and

therefore misconduct. See also Ogunsanmi V C.F Furniture (W.A) Co. Ltd (1961) All NLR 862. Incompetence should not be confused with mistake. In Garabedla V Jamakasi (1961) 1All NLR 177, Savage J said: no matter how efficient a person may be, he is bound to make mistake at times. The fact that an employee has made a mistake is no ground for dismissing him. The right to dismiss is exercisable in all types of contract of service, whether for a fixed period or for an indefinite duration. The right to dismiss is, however subject to certain rules. First, when the employees misconduct is condoned expressly or impliedly, then the right to dismiss will be regarded as waived by the employer. In Electricity Corporation of Nigeria V George Nichol (1969) 1 HMLR 268, the Supreme Court held as follows: it is settled law that complaint about the misconduct of a servant which had been previously condoned cannot be a groung for dismissal on a subsequent occasion. Under the common law, in lawfully terminating a contract of service the employer is not bound to give reasons for his action. Even where the notice of termination contain allegation of incompetence, the employer is bound to prove his employees incompetence. In Ogunsanmi V C.F Furniture (W.A) Co. Ltd (1961) All NLR 862, the one months notice terminating the employees contract of service contained allegation of incompetence. The Court held as follows: where is a termination on notice, it is not necessary for the matter to prove his servant was incompetent even though the notice alleged incompetence as the ground for such dismissal; the obligation imposed upon the master is to establish that the contract of service was terminated (a) by notice in accordance with the express or implied

agreement between the parties; or (b) by notice under a custom; or (c) by reasonable notice. Although the employer is not bound o give any reasons for lawfully terminating the contract of a worker, he must give reasons for summarily dismissing the worker. Thus in Nnnink V Costain Blansvoort Dredling Ltd (1960) LLR 90, it was held that where a worker is dismissed summarily for incompetence, the onus is not the master to prove the incompetence. This also the wiew taken by the Court I Ogunsanmi V C.F Furniture (W.A) Co. Ltd (1961) 1 ALL NLR 862, In Agbo V CBN (1996) 10 NWLR 370, the Court of Appeal held that an employer who merely terminate am employee for misconduct does not need to prove anything even if the reason for the termination are stated in the letter. The obligation he has is to show that the contract of employment was terminated in accordance with the terms of contract. Where however, an employer pleads that the employee was removed for misconduct, then he must prove that the employee was given adequate opportunity to explain his action or defend the alleged misconduct. In University of Calabar V Essien (1996) 10 NWLR 227, the Supreme Court held as follows: Where an employer dismisses or terminates the appointment of an employee on the ground of misconduct, all that the employer needs to establish to justify his action is to show a) That the allegation was disclosed to the employee; b) That he was given fair hearing, that is to say, that the rules of natural justice were not breached; and c) That the disciplinary panel followed laid down procedure, if any;

FAIR HEARING AND CONTRACTS OF EMPLOYMENY

Section 22 of the 1979 constitution of Nigeria provide as follows: 1. In the determination of his civil rights and obligation, including any question or determination by or against any government or authority, a person shall be entitled to a fear hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality. 2. Without prejudice to the foregoing provisions of this section, a law shall not be invalidated by reason only that it confers on any government or antiansity power to determine questions arising in the administration of a law that affects or may affect the civil rights and obligations of any person if such law