Can an Employer Legally Dismiss an Employee Whom He Had Earlier Retired

CASE TITLE:                         UNITY BANK PLC v. BAKO N. CHORI (2021) LPELR-55720(CA)

JUDGMENT DATE:           30TH SEPTEMBER, 2021

JUSTICES:                            MOORE ASEIMO ABRAHAM ADUMEIN, JCA

UCHECHUKWU ONYEMENAM, JCA

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, JCA

PRACTICE AREA:               LABOUR LAW- DISMISSAL OF AN EMPLOYEE

FACTS:

The Respondent was an employee of the Appellant who rose to the position of a manager in one of the branches of the Appellant where he worked as a branch manager. The Appellant alleged that one of her customers applied for facility of N5 Million and the sum of N10 Million was processed for him on the purported advice of the Respondent as the branch manager with the understanding that he will give the Respondent N5 Million to use and to later settle the account together. The Respondent responded to the said allegation and nothing was heard about it again until after his purported retirement. The Respondent by the policy of the bank was retired on ground of age along with other staff. Pursuant to the said retirement, the entitlement of the Respondent was calculated and paid into his account but was withdrawn by the Appellant the same day on ground of error. The Appellant thereafter dismissed the Respondent on ground of misconduct.

The Respondent being aggrieved instituted an action at the National Industrial Court suing the Appellant for wrongful termination of his employment and sought a declaration that the purported dismissal of the Respondent was wrongful, null and void, and of no effect, among other reliefs. The Appellant on its part counter-claimed.

At the end of trial, the trial Court held that the purported retrospective dismissal of the Appellant was unlawful and therefore of no effect. It ordered that the Respondent who was validly retired from the Appellant’s service on 23rd July, 2012 cannot subsequently be dismissed on 1st August, 2012.

 The Appellant being dissatisfied with the decision of the Court, appealed to the Court of Appeal.

ISSUES FOR DETERMINATION:

The Court determined the appeal based on the following issues for determination:

1. Whether the Respondent proved that he was an employee of the Appellant and that he was duly retired on 23rd July, 2012 after putting 31 years in the service of the Appellant?
2. Whether the Respondent’s case was not for a wrongful dismissal and that he was not required to prove the conditions of his employment particularly when the Respondent sought for declarations that the purported dismissal was wrongful, null and void and of no effect and that he has validly retired from the service of the Appellant.
3. Whether the trial Court was not wrong when he admitted and relied on inadmissible documents to found for the Respondent
4. Whether failure of the trial judge in delivering judgment in the case about 180 days after adoption of addresses had not impaired a proper evaluation of evidence and law thereby occasioning injustice on the Appellant.
5. Whether the failure to communicate notice of judgment date to appellant when Respondent was communicated to, did not breach rules of fair hearing thereby rendering the judgment a nullity.

COUNSEL SUBMISSIONS:

Counsel for the Appellant contended that the Respondent failed to present his letter of employment even after admitting that he was issued with a letter of employment, to enable the learned trial Judge know if any condition of employment had been breached. He cited various cases for his position.

On the other hand, Counsel for the Respondent contended that the Appellant could not validly contest the employment of the Respondent as a dismissal or retirement presupposed that there existed an employment which could be validly ended either by termination or dismissal.

Counsel to the parties marshaled several arguments on the breach of condition of service. Having heard submissions from Counsel, the Court of Appeal stated that from the totality of the evidence on the records, the issue of breach of condition of service did not arise. The main issue according to the Court is whether the Respondent can validly be dismissed after having been retired by the Appellant.

DECISION/HELD:

The Court of Appeal dismissed the appeal.

RATIO:

1. LABOUR LAW – DISMISSAL OF AN EMPLOYEE: Whether an employer can legally dismiss an employee who he had earlier retired

“In this case, the Respondent had earlier been retired on 23rd July, 2012 before the purported dismissal on 1st August 2012. Since the two cannot exist side by side nor follow each other, the first in time which is the retirement prevails having ended the contract of employment already. An employer cannot legally dismiss an employee who she had earlier retired since after his retirement he ceases to be his employee.” Per ONYEMENAM, J.C.A.

2. LABOUR LAW – WRONGFUL DISMISSAL OF AN EMPLOYEE: Whether there is a distinction between wrongful dismissal and an invalid/null dismissal

“It is important to state herein that there is a distinction between mere wrongful dismissal and an invalid or null dismissal. See Kwara State Judicial Service Commission V. Tolani (2019) 7 NWLR (Pt.1671) 382; Onwusukwu V. Civil Service Commission (2020) 10 NWLR (Pt. 1731) 179.”Per ONYEMENAM, J.C.A.

3. LABOUR LAW – RETIREMENT: Distinction between retirement and dismissal of an employee

“It is important to note that both retirement and dismissal brings to an end the life of a contract of employment. Therefore, by implication, once either dismissal or retirement has taken place, the other cannot follow for the two serve the same purpose. I acknowledge however that, though the two serve the same purpose, that is, brings to an end the life of a contract of employment, there is a clear difference. Dismissal is punitive, and usually without any terminal benefits to the employee. The employee stands disgraced and held in ignominy. On the other hand, where an employee is retired, he receives his terminal benefits under the contract of employment. See EKEAGWU V. THE (NIG) ARMY & ANOR (2006) LPELR-7641(CA). Thus, whichever that comes first brings to an end the employment relationship and determines the nature of the employee’s exit.” Per ONYEMENAM, J.C.A.