Gbenga was a cleaner at AC Ltd. On a Tuesday morning, while carrying out his duties, Gbenga was arrested by the police, alongside a security guard. Apparently, it was alleged that on a morning like this, Gbenga had stolen diesel from AC Ltd. Following an internal investigation, it was noted that Gbenga had carried out this act before, in cohorts with the security guard. The management decided to dismiss Gbenga based on the outcome of its internal investigations, despite the matter pending in court. Is this the right way to go?
The inherent powers of the employer to punish a fairly heard employee for infamous conduct in the workplace is hardly ever in contention. However, where the conduct of the employee not only constitutes a misconduct by the handbook/contract of employment but also a crime under penal laws (hybrid misconduct). Whilst the employer has a right to discipline an employee for an infraction, only courts have the power to convict for a crime. When such hybrid misconduct, therefore, is committed by the employee, questions concerning whether the employer can dismiss before conviction by a court must be addressed. In this article, we take a critical look at the ambit of powers of the employer to discipline an employee that commits a crime in the course of his employment, in the light of the constitutional rights of the employee.
A misconduct has been defined by the courts as an act of the employee which amounts to a dereliction of duty; gross misconduct is a conduct which is grave or weighty, as to undermine the confidence which should exist between the employee and the employer. Depending on the peculiar facts of each case, where the employee commits any act which breaches the contract of employment or undermines the interest of the employer, the employer has the power to subject the employee to disciplinary measures, including dismissal.
Where an employee is under criminal investigation or prosecution by law enforcement agencies and before an administrative tribunal of the employer, at the same time, there is the possible risk that an act of the employer may constitute a breach of the fundamental right to the presumption of innocence until the determination of the criminal charge. Can an employer still terminate the contract of employment in view of the facts, without recourse to the criminal proceeding?
In the old dispensation, there was a presumption of innocence in favour of such an employee, precluding the employer from taking any administrative action which may infringe on the employee’s constitutional right to be presumed innocent until proven guilty. In the case of Union Bank Of Nigeria Plc V. Haruna Ayuba Musa,1 the employee was alleged to have impersonated his elder brother and used the latter’s school certificate to secure employment with the Union Bank; and that he fraudulently obtained the birth certificate. The Court of Appeal, relying on the Savannah Bank of Nigeria Plc V Fakokun2, held that before Union Bank can validly terminate the employment of the respondent, ‘the employee must be tried before a Court of Law where the accusation against the employee is for gross misconduct involving dishonesty bordering on criminality.’
There has been a general departure from the old rule placing the employer at the mercy of the courts. In Zenabor V. Bayero University, Kano3 for example, it was held that it is not in every case that an employee must be arraigned before a court before disciplinary action can be taken against him. The court further held that once the offence committed by the employee is within the domestic jurisdiction of the employer, disciplinary action in such a case can be taken without recourse to a criminal charge. In other words, an employer has the power to discipline an employee for an infraction on its code of conduct irrespective of any other action that may be taken by the public prosecutorial agencies/authorities against the employee.
There is also a Supreme Court decision to the effect that where the employee admits guilt, the employer may proceed to discipline the employee without recourse to decisions of a criminal court. The pronouncement of the Court in the case of Dongtoe v. C.S.C. Plateau State (2001) 9 NWLR (Pt.717) 132 at 159 is in terms: “It seems to me preposterous to suggest that the administrative body should stay the exercise of its disciplinary jurisdiction over a person who had admitted the commission of the criminal offences. The inevitable inference is that criminal prosecution should be pursued thereafter before disciplinary proceedings should be taken. I do not think the provision of the law and effective administration contemplates or admits the exercise of such circuitous route to the discipline of admitted wrongdoings.”
The attitude of appellate courts to the issue of the power of the employer to dismiss the employee for (gross) misconduct has been followed by the National Industrial Court (NIC). A review of recent decisions of the NIC would reveal that clearly, the law backs the employer to relieve a criminal employee of his duty irrespective of the decision of the court, once it manifests that the conduct of the employee breaches the confidence of the employer in the employee. In Folami v Union Bank of Nigeria4, the claimant, an erstwhile staff of Union Bank, was dismissed on the ground of irregularly obtaining a mortgage in collusion with some staff of the defendant Union Bank. The court upheld that the employer’s decision to dismiss the claimant for gross misconduct involving dishonesty.
The NIC towed the same line in Stephen Izonebi v Federal Civil Service Commission & 2 Ors5 where the defendants were dismissed on an allegation of leaking a yet-to-be-delivered judgement of the Supreme Court. The court further held that the decision of the Federal Civil Service Commission to dismiss the claimant employee was not in breach of their right to fair hearing under section 36(1) of the 1999 Constitution. The NIC also upheld the dismissal of an employee under investigation for a criminal charge, under investigation for alleged involvement in fraudulent credit transfer valued at N350 million, in Samson Kehinde Akindoyin v Union Bank of Nigeria Plc6.
The recent position of the courts with regards to cases of a hybrid misconduct, as in the cases above, confirm the employer’s right to administratively ‘try’ an employee for an infraction and, thereafter, subject the employee to a disciplinary measure, such as dismissal where the employee is found culpable. However, it is noteworthy that the employer must not dismiss the employee without according the employee his or her right to be fairly heard before an impartial administrative panel before sanctioning the employee. The facts of each case and the policies of the organisation/terms of engagement would also be considered.
This article appeared first in Mondaq