An Overview Of The Suspension Of Employees

An Overview Of The Suspension Of Employees Under The Nigerian Legal System.

By F. C. Robinson.

ABSTRACT

One cannot talk about disciplinary measures meted out to employees within Nigeria’s labour and employment law without referring to suspension. Suspension is a temporary relief of the duties of an employee, for a period definite or indefinite, with the view of allowing the employer to carry out investigations on allegations of misconduct and other breaches made against an employee, which is usually contained in the letter of suspension. Suspension is one of the kinds of sanction so to say, meted out to employees in a contract of employment. Other sanctions include; summary dismissal and termination of the contract of employment either by notice or payment instead of notice. It must be understood and its legal implications made clear so employers and employees can be guided aright in the same vein. In light of the foregoing, this article therefore discussed the meaning of suspension in contrast to summary dismissal and termination of the contract of employment, and the legal effects and implications of suspension. This work answered some critical questions as regards suspension of an employee. Questions such as; Does suspension always precede termination or summary dismissal?  Must the employer give reasons for the suspension of an employee? Must an employee be given fair hearing before he/she Suspension? and Can the court order the reinstatement of a suspended employee? In conclusion this  essay advised employers to ensure that the procedures and terms of suspension of employees as stipulated in the conditions of service, staff rules and the terms of the contract be strictly followed when suspending a particular employee as refusal to follow such terms or procedures amounts to wrongful suspension and gives right to the employee to seek for redress and compensation(s) and also admonished parties to a contract of employment that disputes can be completely eradicated if stipulations concerning suspension are made and imputed into the contract of employment.

INTRODUCTION

Suspension of employees, its legal implications, and its effects is one of those areas of Nigeria’s labour and employment law that is misconstrued especially by employers. The above postulation is primarily due to an undue juxtaposition of the effects of suspension, the effects of summary dismissal,  and termination of the contract of employment. This essay would provide a lucid and clear solution to this conundrum.

This work would achieve the above by discussing the following;

• The definition of suspension of an employee.
• The legal effects and implications of suspension of an employee.
• The employer’s right of suspension.
• And lastly remedies if any, and the measure of such remedy available to an employee for wrongful Suspension.

Suspension.

Suspension of employees hereinafter  referred to as ”suspension”was defined as “the act of temporarily delaying, interrupting or terminating something. The temporary withdrawal of employment; as distinguished from permanent severance”. 

The Nigerian Supreme Court Judicially supported the above definition, when it gave an excellent and exquisite definition of suspension of an employee in University of Calabar v Esiaga where the court stated thus “the word suspension means a temporary privation or deprivation, stoppage or cessation of or from the right or privileges of a person. The word carries or conveys a temporary or transient disciplinary procedure which keeps away the victim or person disciplined from his regular occupation or calling either for a fixed or terminal period or indefinitely”.

From the above definition, it is quite lucid and understandable that suspension of an employee is simply a “ temporary” termination of a contract of employment. With an emphasis on the word temporary, this means that suspension does not imply a repudiation or termination of a contract of employment. Thus a suspended employee for all purposes and intents is still an employee of his employer until he is rightly dismissed or the contract terminated by any way stated in the conditions of service or staff rules. 

Employees are often suspended for the following reasons;

• General misconduct which may include in very serious cases criminal misconduct.
• Non-compliance with company rules or willful disobedience to reasonable and lawful orders of their employers.
• Damages to property of their employers company to a mention a few.

The Legal Effects or Implications of Suspension.

• Temporary Suspension of Contract of Employment: The first and most important effect of the suspension of an employee is the temporary suspension of the contract of employment and all the duties and rights in the contract, that’s the contract of employment entered between and by the parties to the contract of employment is put in abeyance pending the final decision of the employer whether to reinstate the employee to his former position, or whether to summarily dismiss him or to terminate the contract by any means stated in the contract of employment. The Supreme Court corroborating the above submission in Longe v FBN Plc held that Suspension is “ A state of affairs which exists while there’s a contract in force between the employer and the employee, but there’s neither work being done in pursuance of it nor remuneration paid. It is neither the termination of the contract nor the dismissal of the employee. It operates to suspend the contract rather than terminate it”. So from the above decision of the Supreme Court, it can be submitted that the basic effect of suspension of contract of employment is to put the contract in abeyance or on hold pending further actions by the employer.
• Abeyance of the Duty to Work by the Employee and the Duty to Pay by the Employer: It puts in abeyance the duty to work by the employee and also the duty to pay by the employer both terms which are considered the most sacrosanct and pivotal to every contract of employment but, it must be noted that the right to suspend of an employee doesn’t have the right of an employer not to pay his suspended employee  embed in it. For an employer not to pay his employee or pay the employee half of the agreed remuneration,it must be stated in the terms and conditions of employment or the letter of suspension, save this the employer is under a duty to pay his employee his remuneration, emoluments, and other allowances during the period of the continuance of the suspension. The Nigerian Court of Appeal in a very recent Judgement in the case of Globe Motors Holding Ltd v Akinyemi Adegoke Oyewole  following the precedent set by the supreme court in Longe v FBN Plc and also applied by the supreme court in the subsequent case of Bamisile v NJC& ORS held thus “since the suspension is not a termination of  the employment contract nor a dismissal of the employee, the implication is that the employee is still in continuous employment of the employer until he is recalled or formally terminated or dismissed. Pending his recall or dismissal, a suspended employee is entitled to his wages or salary during the period of suspension unless the terms of the contract of employment or the letter of the suspension itself are specific that the suspended employer will not be paid salary during the period of the suspension. The above decision makes lucid the premise stated above.

Employers’ Right of Suspension.

Questions often arise as to whether the employer has the right to suspend an employee and the answer to the above question is in the affirmative( Yes). The court in Miaphen v Unijos Consultancy Ltd held thus “…An employer has the right to suspend any of his or its staff if there exist reasonable grounds to do so. The court also expressed a similar view in Udemah v Nigerian Coal Corporation . In that case,  the court held that “ The right to suspend an employee is available to an employer to effect proper investigation of allegations and during the process of disciplinary action. The court in both of the cases cited  has put the above question to bed by giving definite and direct answers to the question.

Remedies and Measures of Remedies Available to an Employee for Wrongful Suspension.

Where an employer has a right to suspend an employee, the terms of such right must be followed in carrying out the suspension if not the suspension becomes wrongful. For instance, if the conditions of service or staff rules or a clause in the terms of the contract stipulates that before an employee can be suspended from his duty he must first be given  fair hearing, and an employer goes ahead without following the stipulations in the terms of the contract and suspends the employee then, the suspension is wrongful and it’s a trite or an established principle of law that where there is a wrong, there is a remedy. Hence when the employee has been wrongfully suspended there are remedies readily available to an employee and those remedies are;

Damages and Order of reinstatement in special circumstances( to be discussed subsequently in this essay).

• Damages: Damages are pecuniary compensation awarded to an innocent party in a successful suit for breach of contract or tort.
• The Measure of Damages: This is simply the amount of the pecuniary compensation that the court is to award to the innocent party. The main purpose of damages especially in contractual agreements is to put the innocent party in the position he ought to be if the breach hasn’t occurred. For instance, if an employee who earns a hundred thousand Naira monthly was wrongfully suspended for a period of 3 months, the measure of the damage would be the total amount he is to earn if he was not wrongfully suspended and that is three hundred thousand Naira. 

The court in Miaphen v Unijos Consultancy Ltdheld that “the respondent is entitled to damages if his suspension was wrongful and unwarranted”. From the above position, it is glaring that an employee who was wrongfully suspended has a remedy.

Does Suspension Always Precede Dismissal or Termination of a Contract of Employment?

 The answer to the above question is NO. Suspension does not all the time precede termination or dismissal notwithstanding that in certain circumstances and instances, the results of the investigation carried out lead to termination or dismissal but that does not guarantee that it precedes termination or dismissal all the time.

Must the Employer Give Reasons for the Suspension of an Employee?

It is our opinion that an employee must be given reasons for his suspension, especially where the suspension is indefinite and without pay or with half payment of wages, salary, or any other agreed remuneration.  The above position is hinged on the fact that an employee can never be suspended without legitimate reasons.  It is important to note that the reason(s) for the suspension is usually stated in the letter of suspension issued to the employee by his employer.

Must an Employee be Given Fair Hearing Before Suspension.

The answer to the above question is No. The reason being the urgency of the situation in most instances, In order to avoid further damage(s) from being done to the employer’s company. Also, the fact that the employee most  times needs o be suspended in other not to interfere with the investigation or probing of the alleged misconduct committed by the him/ her is another reason. The court buttressed the above submission in the widely celebrated case of  Longe v FBN Plc  The court stated thus “I want to ask myself whether he ought to have been heard before his suspension. The appellant was suspended and eventually removed because it became necessary to do so in the interest of the respondent’s business. It is a desperate situation that demands drastic action. It cannot wait for legal finesse such as fair hearing or natural justice. That can wait! The interest of the respondent’s business is of paramount consideration and the appellant will not be entitled to  fair hearing before a suspension”. We agree with the submission of the court above.

Can the Court Order the Reinstatement of a Wrongfully Suspended Employee?

The answer to the above question is yes. The Supreme court in Gov. Of Kwara State v Ojibara stated that “Reinstatement involves putting the specified person back in law and fact in the same position as he occupied in the undertaking before the employer terminated his employment”. The court can order the reinstatement of a wrongfully suspended employee but for this to be the case,it must be a contract of employment with statutory flavour save that the court cannot order the reinstatement of a suspended employee in an ordinary contract of employment without statutory flavour. The court in Odibo vs First Bank Plc  stated thus “In law, employment Founded on master-servant relationship for personal service without any statutory flavour does not enjoy the relief of reinstatement. The courts are thus very reluctant and lack the competence to force a willing servant upon an unwillingly master in a contract of employment of personal service”. The court also in the unreported case of ICPC & ORS v GWARZO & ANOR ordered the reinstatement of the respondent to his former position on the grounds that the actions of the Minister of Finance to suspend the respondent were against the Civil Service Rules which guided the contract of employment between the respondent and the ministry of Finance. The above contract was governed by statute. The above positions of the court has made it clear the position of the law on the reinstatement of a suspended employee.

Conclusion

Given the foregoing we advise employers to ensure that the procedures and terms of suspension of employees as stipulated in the conditions of service, staff rules and the terms of the contract are strictly followed when suspending a particular employee as refusal to follow such terms or procedures amounts to wrongful suspension and gives right to the employee to seek for redress and definitely compensation(s). Finally, disputes can be completely eradicated if stipulations concerning suspension are made and imputed into the contract of employment.

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