When is termination/dismissal said to be wrongful? You may sue and demand to enforce your rights if your employment contract is wrongfully terminated. Wrongful termination is when any of the following occurs:
- Your former employer did not follow the terms of the contract in terminating it or dismissing you. For instance, if the contract specified that either party can only terminate by giving the other 30 days’ notice or one month’s salary in lieu of notice, it would be wrongful to terminate the contract forthwith and not pay you anything in lieu. Also, if your employment contract provides for a disciplinary procedure to be followed before you can be dismissed (say for gross misconduct) and the procedure was not followed or your act/omission was wrongly categorized, your dismissal would be wrongful.
- Your appointment was terminated ‘in accordance’ with the terms of contract but the reason for the termination is unlawful or unjustifiable. For instance, where termination is based on discrimination or sexual harassment, it will qualify as wrongful termination. It does not matter that your employer (like most companies in Nigeria) does not have a policy against workplace discrimination or sexual harassment. These are matters of law and public policy that are implied into every employment contract.
- You actually did resign ‘voluntarily’ but under conditions that left you with no other choice. For instance, your former employer frustrated you and deliberately made it practically impossible for you to continue with the job. The technical term for this is “constructive dismissal”, and it also qualifies as wrongful termination.
- Your position had been rendered redundant but your former employer played smart and clothed it as simple termination (like merely said your ‘services no longer required’) in order to save itself the cost of paying you redundancy or other benefits.
- That you were employed by the defendant (your former employer) – state date and the designation in which you were employed;
- The terms and conditions of the appointment including duration and termination – emphasize the procedure for termination;
- State who had the power, under your employment contract, to terminate or dismiss you;
- State any special circumstances that are needed to prove your case – for instance, if you are basing your claim for wrongful termination on workplace sexual harassment, discrimination or redundancy, state clearly the circumstances that led you to believe the facts;
- State the circumstances under which your appointment was in fact terminated – for instance, that you had not been given any notice (or payment in lieu), fair hearing etc
- State the pain and trouble that you have suffered on account of the wrongful termination – while this is not very necessary sometimes such sentiments prove helpful to your cause.
- Itemize your demands in an orderly manner and with explanations where necessary.
- Letter of Offer/Contract of Employment
- Letters of promotion
- Letters of commendation or awards
- Employee Handbook/Expatriate Policy,
- The letter of termination or dismissal,
- relevant Collective Agreements,
- Circulars, internal memos, notices, and
- other workplace documents, like official e-mails, etc that are necessary to establish your case.
- payment of terminal benefits is not automatic and the payment (trust me) is not a windfall. What you will be paid will depend, largely, on what was previously agreed upon between you and your employer. Sometimes, Lawyers get overzealous and make bold baseless assurances to clients on what they can obtain in court. But the court is not Santa Claus and would not award you damages just for asking. You will have to earn it. Admitted, sometimes you would rather err on the side of caution and ask for more rather than less, but why pad your claims and end up appearing like a gold digger before the Judge? It is best to be clear-headed about your claims and save everybody’s time.
- Suing for wrongful termination is not (and should not) always be about money. There are cases (like a dismissal) in which it is more important for the aggrieved employee to ‘clear his name’ and set the records straight (or just to prove a point). Even where you are really pressed for the money, you should not overlook this aspect of your case. Interestingly, until you convince the Judge that indeed your dismissal/termination was wrongful, you are likely not getting paid any damages. Don’t allow money get in the way.
- payment in lieu of notice
- outstanding salaries (if you were owed any prior to the termination)
- gratuity
- redundancy (if your case is deserving of it)
- other accrued benefits (like leave allowances, etc) that are outstanding.
- Don’t ask for money for ‘injured feelings and loss of reputation’. Don’t get your claim for wrongful termination mixed up with claims about defamation. You can actually claim for both but not in one breathe (and also not in the same court).
- Don’t ask to be reinstated – unless your employer is a government agency, nobody has legal powers to foist you on your unwilling employer. Termination of ordinary employment contracts is never “null and void, unlawful or unconstitutional”. The termination, at best, can only be wrongful but not invalid. Either party is free to terminate at any time and for any or no reason. All that is required is fairness – that the terms of the contract are followed and within the bounds of the law.
- Don’t ask for pre-judgment interest on the monies that you are claiming – unless it had already been agreed upon between you and your former employer. Interest, if any, on any award that the court will grant you, will start to run from the date of the judgment, and not from the date that the money became due.
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