Change in orientation or behavioral pattern could take time to achieve in human beings, hence, with regard to workplace discipline, it has been advocated that for an offense of the first instance it is better to call the attention of the staff and counsel him or her. It should be noted that the offense leading to the counseling and advice given should be documented and signed by the staff.

ISSUANCE OF QUERY / WARNING

For a repeated offense and depending on the gravity even when it happens the first time, a query is advised to be issued an appropriate response time for a reply from the offending staff should be stated in the memo. A query may be issued by line manager, staff immediate supervisor. However, it is highly recommended that such role should be given to the Human Resources specialists because of the need for proper wordings of the memo.
One common error by the organization is the failure to respond to staff query once they are received, it should be noted that best practice demands that you should reply to what the staff has stated as his or her reasons for what he or she did. A reply should go to staff either absolving him or her or holding him responsible for the act.
A warning can be done verbally or in writing, whichever is adopted, there should be a documented proof in the employee file with name, date and time stated therein. It is sometimes required that a staff representative is called in as a witness of the measure taken.
If the staff is found culpable and could be tolerated a warning letter should be issued detailing the consequences that will follow a repetition of such activities in the future.

PENALIZATION

It has been established that it is within the discretion of the employer to impose an appropriate penalty for infringement or violation of the companys rules and regulation. Such penalties could range from deprivation of a worker wage by being suspended from work for a period of times and sometimes it could be outright termination or dismissal from employment of the organization.
This position was further supported by the Hon. Justice (Chief) P.A. Atilade, President of National Industrial Court, in his judgment, when he ruled that The deprivation of a worker wages by suspension does not offend sections of the Labour Act and, therefore, is not a criminal offence for which the employer is liable to punishment under section 20 of the Act.
As earlier pointed out, it should be noted that an employee could challenge the decision of an employer in the court of law; hence, we strongly recommend that fairness, equity, and justice should be the watchwords in imposing a penalty. Also, proper record keeping showing all the necessary measures taken by the employer at ensuring that the employee makes necessary adjustment must be kept.

CONCLUSION

Every organization requires order, appropriate behavior, workplace etiquette and high level of worker discipline to achieve the pursuit of its corporate vision and mission statement. One of the instruments available to the organization to achieve its objectives is staff discipline, written and designed to correct behavioral deficiencies and punishing a deliberate and intentional act of violation of laid down rules and regulations.
Staff discipline besides punishing erring employee also serves as a deterrent to other staff from committing the same offense and could help the erring staff follow the path of good behavior.
To achieve its objectives, staff or workplace discipline must not contrive national laws; and it must be seen to be just and equitable with the primary aim of effecting correction as against being punitive.
Thank you

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The commonly recognized considerations will include:

GARDEN LEAVE

This is a practice that is aimed at protecting the interest of the employer without causing the employee pay loss, non-payment of salary or yet ensures that restrictive covenant is complied with.
It provides that the employee whose employment has been terminated with notice period, or an employee that resigned his or her appointment or someone on suspension pending a disciplinary proceeding will not be allowed access to the workplace or have access to current privileged information yet will continue on the employer payroll on full salary or permitted to work from home and prevented from taking up a new appointment during such period.
This practice originated from the British Civil Service and has gain currency in some part of the world.

INVENTION ASSIGNMENT AGREEMENT

This is an agreement that cedes the right of ownership of inventions or discovery made by an employee during the period of his or her employment to the employer. This agreement portends that such inventions were consequent upon the employment relationship using the employer facilities, resources and time.
It should be noted, however, that such discoveries or inventions will exclude inventions made and listed before the employee joins the organization and things invented at his own time outside the workplace.
It is my opinion that before such agreement is signed it is of utmost importance that the employee seeks the services of a lawyer or professional HR practitioner for guidance and advice.

PAY-BACK CLAUSE AND EMPLOYEE REIMBURSEMENT AGREEMENT

The payback agreement requires an employee who joins a company for a limited time to refund the employer part or all of the cost invested in the training of such an employee when he or she leaves within a limited time of joining the organization.
On the other hand, an employee would also be reimbursed expense incurred in attending training authorized by the company for which he has not be paid if such agreement exists in the organization.
The case of Overland Airways Limited v Captain Raymond Jam.
In this case, the pilot was sponsored by the company to attend training upon the assumption of office with the provision that he will serve the company for a minimum of 4 years. After the training, however, he attempted to resign from the employment of the Overland Airways. The National Industrial Court in its judgment held that the restrictive agreement is enforceable and reasonable.

POST-CONTRACTUAL NON-COMPETITION AGREEMENT

This provision holds that for a non-competition agreement to be valid there must be clear provision for compensating the employee. In Germany, the Hamm Labour Court pronounced a 50% salary to an ex-employee during the period of restriction.
The Spanish law, Article 21.2 of the workers Statute provides for financial competition in drafting non-competition clauses. Belgium, Poland, Italy (article 2125 of the Italian Civil Code). The French employment clearly support this as can be seen in a July 10th July 2002 judgment by the French court of Cassation, which stated that non-compete clause can only be legitimate only if it makes provision for competition.
However, the Nigerian Labour Acts or the Employee Compensation Act 2010 is not clear on this as such responsibilities are left to the employer and the employee to negotiate and agreed on.

CONCLUSION

The requirements for the protection of employer trade secrets against a disgruntled employee or having such information in the hands of competitors has given serious legal backing for the inclusion of Non-competition Restrictive Agreement in an employment contract. However, it is the opinion of this writer that such agreements must be treated within the ambit of relevant laws and international best practices.
It has been recommended that to be enforceable restrictive covenants must satisfy the burden of enforceability as listed in the proceedings page of this article. Lastly, it would be totally unjustifiable to expect compliance with a non-competition clause when consideration is not given to proper documentation and reward to the ex-employee.
I have made these recommendations for enforcement and what the employee should also note before signing a non-compete agreement.

Go to:- RESTRICTIVE COVENANTS IN EMPLOYMENT CONTRACT: THE PRACTICE AND BENEFITS

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In as much as it is easier to regulate and manage the activities of a companys workforce, it is however somewhat difficult to managed post-employment activities except with a well drafted and signed restrictive covenant that conforms to the laws.
In simple language, a restrictive covenant protects the secrets of the business from unauthorized usage and unhealthy rivalry that can lead to business loses or damage to its reputation and interest.

IBM V. Papermaster (2008).

In a landmark case between International Business Machine (IBM) and Mark D. Papermaster, who resigned as a Vice President with IBM to take up an appointment with Apple Inc., in that case Judge Kenneth Karas of the Southern District of New York, granted IBM motion to stop Papermaster from picking up the job and working for Apple on the ground that It is likely that Mr. Papermaster inevitably will draw upon his experience and expertise that he gained from his many years at IBM. His Judgment reaffirmed the inevitability of the doctrine of Disclosure.

Papermaster appeal on November 20, 2009, to the Second Circuit and his prayers were denied by Judge Debra Ann Livingstone who upheld the judgment of Judge Kenneth Karas.
The reference case above point to the fact that noncompetition restrictive covenant can be executed by a court of competent jurisdiction if such agreement is well structured and agreed to by parties to the employment relationship.

Continue reading:- HR AND NON-COMPETE CLAUSES: THE BURDEN OF ENFORCEABILITY.

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THE STEP BY STEP GUIDELINE

STEP ONE EMPLOYEES HANDBOOK OR CONTRACT / LETTER OF EMPLOYMENT
Ensure that the employee is aware of the rules and regulations governing work processes and the organization in general. This should be contained in the employees handbook with a signature page showing that it has been read, understood and accepted by the employee. Where a handbook is not available the letter of employment should contain such details. This will help the employee understands what the organization considered as an acceptable workplace practice and what is not acceptable and the punishment for violation.

STEP TWO KEEP PROPER RECORD

The standard practice is to open a personal file for every employee and ensure that matters relating to the employee are documented including misdemeanors and act of indiscipline. It has been seen that the onus lies on the employer to justify the action taken against an employer in cases of litigation and one major defense has been the availability of record of action taken in time past to correct the employee.

STEP THREE TAKE MEASURE TO CORRECT BEHAVIORAL INADEQUACY

The primary objective of workplace discipline as earlier mentioned is to correct and not necessary to punish, hence, it is required that proper measure is put in place to ensure the disciplinary procedures conform to set a standard. This can be achieved through proper onboarding process, mentoring, and regular training using both internal and external resources.

STEP 4 ALIGN DISCIPLINE TO EXTENT LAW AND ACT OF MISCONDUCT.

Since the action of the organization can be challenged in the court of law as discriminatory, a violation of human right or grossly overbearing, it is important, then, that the companys penalty for misbehavior should align itself to the countrys law and accepted best practices. For instance, the case that was earlier cited fails to follow laid down process hence it was seen as a gross violation acceptable practice governing performance management and termination of employment.

STEP 5 ADOPT PROGRESSIVE DISCIPLINARY MEASURE

Except in exceptional cases of gross misconduct or when the act of indiscipline could cause serious damage and loss to the organization, it is the opinion of this writer that staff discipline should be progressive and aimed at behavioral modification and correction in staff attitude towards the organization.

Continue to: PROGRESSIVE EMPLOYEE DISCIPLINE

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ONBOARDING LEARNING METHOD

• Classroom teaching

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This is the most common means of instruction, it involves having a specific location and allocated time during which an instructor or a teacher takes the new employee through a predetermined and planned topic. This method promotes better interaction and enables the employee to ask questions and receive on the spot answers.

• Self-Directed Learning

Self-Directed Learning

This method of onboarding and instructional design allows for high-level flexibility and support a system whereby the employee can learn at his own pace. The learning details using this method are mostly in an audio-visual format such as in CD or other methods of recording that could easily be played and listen to. This method is good for a very busy workplace and where the newly employed is expected to be fully involved in workplace activities almost immediately.

• Online Training

With the use of modern technology, learning can be delivered from distance location using an offshore platform. This is an internet enabled an instructional system that gives the employee to be inducted and taught via the internet and other office networking system. It is very convenient and flexible to run.

• Blended Training

Blended Learning
The blended learning of instructional design is a combination of both the traditional and conventional learning method in which the new employee is instructed using the classroom method as well as a combination of self-learning and the internet enable style.

MENTORING

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Mentoring as an onboarding/employee integration method has been well attested to as having good success records by employers and organization development experts. This system placed the greater emphasis on using well experienced senior personnel with the organization as mentors for the mentees (new employees).
In the words of Michael Armstrong, Mentoring is the process of using specially selected and trained individuals to provide guidance, pragmatic advice and continuing support that will help the person or persons allocated to them to learn and develop.
He further stressed the benefits of mentoring when he went on to states Mentors prepare individuals to perform better in the future and groom them for higher and greater things, i.e. career development.

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The mentor by reason of experience and deep knowledge of their organization would dedicate time and resources to tutoring the new employee until such a time that they are fully settle-in and reasonably integrated. Interestingly, too, is the fact that the mentee sees the mentor as a father-figure to whom they could run to when faced with challenges with their job function.
As beautiful as mentoring as a system of onboarding appears it is important to be circumspect in the selection of a mentor and in selecting an appropriate guideline that defines dos and don’t and the boundary between the mentor and mentee.

Continue to:
CAUSES AND PREVENTION OF FAILURE IN ONBOARDING

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The essence of onboarding or induction exercise is to get the new employee fully integrated into the organization culturally; in which what makes the company tick and successful are taught to the new hire thereby stimulating his or her passion, interest and positive feelings in the organization.
It has been said that a new staff could be oriented but not integrated and this is a mark of an onboarding process goes wrong. A wrong process of integration could lead to frustration, inability to give one’s best to the organization and ultimately employee exit or high rate of turnover.

When the new hire is loaded with too many information on the first day at work
The standard time frame set for onboarding is usually first one week to six months, hence, the new hire should not be loaded with too many information on the first day at work. It should be a continuous process of learning and re-evaluate the extent of learning acquired.

1.Failure to balance the interest of the organization with that of the new employee

One reason for the failure of onboarding exercise is the inability of the organization to balance the needs and expectation of the organization with that of the employee. It is important to note that the employee also has interest and expectation that must be met; hence, attention should also be paid to his or her needs.

Lack or unclear definition of roles and ownership of responsibility in the onboarding process

The best onboarding process is that, which gives the employee ownership of the process. The employee must be seen to show great interest in the process, he or she must be willing to learning and acquire information or knowledge that will help him excel on the job rather when it is seen as a process that is forced down his or her throat. When a sense of ownership is absent in most cases the process might turn out to be a mere formality.

When an inductor who is unhappy with the organization transfer wrong emotion to the inductee
It can be very unfortunate when an inductor who is complete dissatisfied with the system is asked to train or onboard a new staff. It is the opinion of this writer that careful attention must be paid to the selection of instructor even within the organization. In order to prevent the transfer of toxic emotion to the new staff, in some cases, it is recommended that an external resource is brought in to facilitate the process. An example of such company in Nigeria is Darach Associate and Marketing Consulting Nigeria Limited (www.darachassociate.com)

An absence of proper follow-up or feedback mechanism.

The onboarding process must be followed through to ensure its success and assess its deliverables. It must be continuous until full integration is achieved. It process must be tested to ensure its suitability and appropriateness. If the adopted method is not achieving the desired aim then it should be changed or remodeled.

Failure to install measuring tools to gauge and determine the extent of integration achieved.
Until integration is achieved the system must continually be refined and adjusted to suit both the requirements of the organization and cover the skill gap that exit in the staff and the job demand. The system must be measured for success.

Conclusion

In summary for an onboarding program to achieve its objectives, it must be planned, it must communicate appropriately with relevant information about the organization, work processes and every detail that would help the new employee unnerved, ease the tension and possible fear. An onboarding process must be flexible and inspiring; it must essentially make the employee feel at home.

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Modern workplace requirements demand that we take cognizance of changes in the work requirement, customer demands, and technology. To achieve the success of full integration, we must necessarily adopt a combination of traditional learning and training method. Experts opinions, internal resourcing, and offshoring are sometimes in the best interest of the organization. Read my article on OUTSOURCING NOT CASUALIZATION A GLOBAL MANAGEMENT PRACTICE ITS LEGALITY AND THE NIGERIAN LAW

Onboarding, when properly carried out has been observed to stimulate the interest of the new hire in the organization, it helps him or her to quickly settle-in and be fully integrated into the organization. Mind you, a fully integrated staff is a good asset to the organization in terms of engagement and productivity.
Happy onboarding and integration
For deeper insight please read:

ONBOARDING: STRATEGIC EMPLOYEES INDUCTION AND INTEGRATION

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OBJECTIVES OF THIS ARTICLE

The key objectives of this article are to provide a guide on how to manage employees exit and guard against the unnecessary litigation and losses suffered by organizations due to unfair termination, wrongful dismissal, and loss of entitlement by employees.
Additionally, it is the intention of this writer to generate further discussions and cross-fertilized best practice ideas on her to support employees; post service and help them get on with their lives after the loss of a job or retirement.

BENEFITS OF A WELL STRUCTURED EMPLOYEE EXIT MANAGEMENT PROCESS

Whether the exit is initiated by the employee or at the instance of the employer it is important to make it as open (transparent) as possible and ensure that all loopholes are covered and procedures followed to the latter. Besides the fact that it puts the organization in good light and prevents losses of assets and minimizes the effect of turnover, the following benefits would accrue to the organization and the employees alike:
1. It will minimize disruption to workflow and processes in the organization due to sudden and unplanned exit of employee
2. It assists employee to have a smooth transition between active employment and post-employment years
3. It promotes the transfer of knowledge and experience from the exiting employee and the person that will take over his or her role
4. It ensures that misconceptions and negative perceptions held by an employee are corrected and misunderstanding addressed before the employees exit
5. It gives the organization feedback on its processes and procedures more so from the point of view of an insider.
6. It prevents vengeful act from a disgruntled employee and help mitigate any negative action that could damage the image of the organization
7. It shows present employee that your organization cares not just when they are in employment even after
8. It ensures that all matters between the employer and the employee are finalized such as outstanding salaries, accrued benefits, unpaid leave allowances etc.
9. Finally, in case of litigation, your organization will be able to come to justice with a clean hand.

WHAT ARE THE DIFFERENCES BETWEEN REGISTRATION, TERMINATION, DISMISSAL?

All the terminologies represent the process of separation from an employment relationship between an employer and employee, though they all stand for the same thing but are different in initiation, processes, and procedures. Basically, their voluntariness, involuntariness and who initiated the process will determine their differences.

TERMINATION

Under common law and by the provisions of the Nigerian Labour Acts, termination of a contract of employment is seen as the process by which an employer or employee may bring to an end an employment relationship subject to the term of the written or implied contract. It will also connote the cessation of employment when the tenure of a contract ends without a renewal by the employer or willingness of the employee to continue with such employment.
Where there is a contract of employment it is required that such agreed terms must be followed substantively and procedurally. In case, notices are required and in an instance where the termination is to take immediate effect payment in lieu of notice should be made by the employer or employee as the case may be.

DIFFERENT DIMENSIONS OF TERMINATION

TERMINATION AT WILL

Under common law, it is recognized that no authority or body can force an employer to employ a person, or compel an employee to work for an organization, hence, if any of the parties decides to opt out of the contract such a person is free. It is on this note that the concept of termination at will is premised which support the idea that an employer or employee can terminate an employment contract without giving any reason for so doing.
However, for termination at will to pass the test of fairness and nondiscrimination it should follow an acceptable procedure of issuance of notices or payment made in lieu of such notice both by the employer and the employee as the case may be.

LAY OFF

A layoff is when a sizeable number of companys employees are terminated due to factors that the employer viewed as hindering its capacity to keep such number at a material time. The layoff could be as a result of a shortfall in companys product and services, or other economic related issues. A layoff can be permanent and it may also be temporary in which case the terminated staff could be recalled when the situation becomes more favorable.

REDUNDANCY INDUCED TERMINATION

This is when employees are terminated for no cause of theirs but due to loss of companys capacity to keep them in employment. Redundancy is regulated by strict regulation and procedure in which priority is given to staff that has been long in employment compared with those that recently joined (First-in last-out). Also, severance pay for redundancy is expected to be negotiated and agreed to by all parties.

CAUSED TERMINATION

Any material breach of the terms and conditions of the contract either by the employer or the employee could be a good reason for termination and this will be termed as a caused termination since reasons could be adduced for the termination. For example, where the employer can no longer pay the salary of the worker the employee can terminate the contract. Also, in a situation, where the employee commits an offense that is termed gross-misconduct such as stealing, falsification of documents, poor performance or suffers from physical incapacitation to the extent that he or she could no longer work for the organization.

AUTOMATIC TERMINATION

This will occur due to loss of the employers business as a result of natural disaster or order of a properly constituted judicial body. Also, when the employee dies the contract would be said to have automatically terminated. However, this does not prevent the employer from paying benefits due to the next of kin or estate of the late staff.

WRONGFUL TERMINATION

Having given the various scenarios, it is important to start that when the appropriate procedure of notices or payment in lieu is not followed, or when, the reasons for termination violates established laws or the contract of employment such termination could be said to be wrongful.

WHAT IS RESIGNATION?

Resignation is an action that is initiated by an employee with the intention to separate from the employment of an employer and discontinue his or her contract of employment. It is largely a voluntary act that the employee considered to be in his or her best interest.
According to Philippines Labour Code, Article 299, Resignation is voluntary act of an employee who is in a position where he believes that personal reasons cannot be sacrificed in favor of the exigency of the service, and he has no other choice but to dissociate himself from employment
Like in termination, standard employment practices and the Nigerian Labour Acts also prescribe that adequate notice must be given to the employer by the employee when filing for resignation, when such is not done and there are noticeable infractions the employer could sue for damages suffered due to employees sudden exit from the employment contract without notification.

CAN AN EMPLOYER REFUSE TO ACCEPT A RESIGNATION?

It should be clear that the employee enjoys the right of resignation; it is a right that cannot be denied him based on the doctrine of mutuality of consent between the employer and employee. Having said that, it important to note that, the employer may accept or refuse to accept a resignation when it violates the terms and conditions of the employment contract. The employer is expected to write a request that such violation is corrected before the lapse of the notice period or the formal acceptance of the resignation. Even when the employee refused to adhere to such request, the employer cannot compel him or her to continue in the service at best the employer can sue for the breach of contract or out-rightly refused to pay such entitlement as may be due the employee until the right things are done.

PROCEDURE FOR RESIGNING FROM EMPLOYMENT

Since resignation is a voluntary act of separation from an employment by an employee it then implies that a valid resignation must be at the instance of the employee. It is mandatory that resignation clause is included in the offer of employment letter or contract of employment.
I will be giving some guideline here, but this must be done within the overall law of the land and individuals contract of employment.
• SUBMISSION OF LETTER OF INTENTION OR NOTIFICATION OF RESIGNATION
Usually, an employee would normally inform his or her line manager or supervisor of an intention to resign and once this is done the employee should be asked to commit such intention to writing and passed it on to the HR Department. It becomes the responsibility of HR to ensure that appropriate information such as notice period, the final date of exit and reasons for resignation should be stated.
• LETTER OF ACKNOWLEDGMENT
It is a standard practice that a letter acknowledging the receipt of the letter of intent to resign should be written by HR or designated officials. This letter is not necessarily an acceptance of resignation letter but a confirmation that the organization has gotten to the notice and is being considered.
• NOTIFICATIONS
Once resignation letter is checked for compliance, it becomes of utmost importance that appropriate notifications are sent to the departments with a checklist for anything outstanding and issues considered relevant to the duties of the “resignee”. Finance should do its checklist on loans, benefits, and other entitlement, ICT should check matters that have to do with safety and access to the companys electronics portals, the immediate supervisor and line manager should check for the outstanding job and handing over processes.
Although, it is subject to debate whether or not a notice be sent informing the entire staff through notice-board or InfoTech that an employee has tendered a notice to resign his or her appointment, however, I believe it is appropriate that such a notice be issued organizational wide or to the employee immediate department reasons for these are many and it would include issues such as the need for adequate preparation for workflow, liability to a staff member, or any other matter that a fellow employee would like to draw the attention of management to. Lastly, it will avail the employee of wishing the departing employee a farewell.
EXIT INTERVIEW
Valuable feedback about the organization and its work processes could be gotten from a “designee” using a well designed and structured questionnaire and through a face to face exit interview section. If properly done an exit interview would help close all loopholes that could result in litigation as all pending issues would have been brought to light and properly resolved.
It is said that a staff that is leaving has nothing to fear so they can tell you the truth about internal processes and at the same time make valuable suggestions on how to improve the organization processes and procedures.
RELEASE, QUITCLAIM, AND WAIVER
It is important that a quitclaim indicating that all claims, proof of final settlement against the company prior to the last day of work and after the clearance has been received by the employee and thereafter the company has been released of any other of such claim by the employee. This is an important clause that must be included either in a separate letter or the final acceptance of resignation letter.
ISSUANCE OF ACCEPTANCE OF RESIGNATION
At this point I believe that all loose ends would have been tidy-up, issues that bother on entitlements and benefit sorted out with finance and companys properties submission must have been carried out and all outstanding liabilities settled.
The acceptance of resignation should serve as the final formal severance letter between the employee and organization
EMPLOYEES DISMISSAL: METHODS AND PROCEDURES
Dismissal is a process of severing an employment relationship usually without notice and done at the instance of the employer. It is when an employer ends the employment of its employee for acts that are considered strong, valid and in the best interest of the organization.
Dismissal is quite a sensitive matter because of some emotions attached to it and the notion that in the employment relationship the worker is considered as a weaker party while the employer is considered as the stronger party.
In many instances of dismissal the employee loses some and in cases all benefits, therefore, it could result in litigation and prolong court cases, hence, the dismissal must be justifiable and meet the following conditions:
• Legal defensibility.
• Such action must be reasonable and consistent with companys policy
• It must not be discriminatory
• It must present an evidence of proper investigation
• It must be in writing with reason(s) for such action stated

REASONS WHY AN EMPLOYEE CAN BE DISMISSED

• Restriction by law. For example when an employee is convicted of a crime and jailed by the law court or where a driver has his license withdrawn by the issuing authority thereby making it impossible for him or her to continue driving.
• Summary Dismissal. There are certain acts that are considered gross misconducts and are viewed as detrimental to the continued existence of the organization. For example, theft, forgery, unauthorized disclosure of business or trade secret, disobedience or refusal to accept a reasonable order, violent acts towards other companys personnel, customer or property and so on.
• Long and Protracted Illness. Sometimes an employee could fall sick and the company has observed the necessary condition and given such support for recovery when the sickness continues such that the employee could not continue in his work then there could be a ground for dismissal due to inability to perform his or her job.
• Incapacity or inability of an employee to do his or her job properly based on an agreed performance standard.

TYPES OF EMPLOYEES DISMISSAL

• Fair Dismissal
Dismissal is said to be fair when the employer has sound and justifiable reasons and has acted within the ambit of the contract of employment before carrying out the dismissal. Largely, reasons for fair dismissal are traceable to improper conduct by an employee and outright breach of the employment conditions. A fair dismissal means that proper investigation would have been carried out and warning and other measures must have been taken without achieving the desired goals.
• Unfair Dismissal
When a dismissal is carried out in contravention of the employees right to fair hearing, the opportunity for correction and reasonable disciplinary measure such action of the employer could be termed unfair. Dismissal can be said to be unfair when an employee is sent packing for demanding for fair labor practice, flexible working hour, in belonging to a union and even when he or she commits an offense that is pardonable but instead got the boot.
• Constructive Dismissal
When an employee is forced to resign from his or her employment due to a deliberate and unfriendly act of frustration directed at him thereby making his continued employment unpalatable. For example, when his or her wages are cut without an agreement or his workload unreasonably increased or humiliated through demotion and other measures taken by the employer when such employee resigned he or she will be said to have been constructively dismissed.
• Wrongful Dismissal
This would occur where the employer has totally breached the contract of employment by not following the due procedure prior and in the process of the dismissal. This would include absent of investigation, no notice or opportunity for fair hearing and representation by the employee.

NIGERIAN LABOUR LAWS AND ITS PROVISIONS ON THE TERMINATION OF CONTRACT OF EMPLOYMENT

It is instructive to have a good understanding of the Labour Act, chapter 198, Laws of the Federation of Nigeria, 1990. This section provides the general guidelines on issues that bother on termination of employment.
The relevant sections are highlighted below:
1. (1) either party to a contract of employment may terminate the contract upon the expiration of notice given by him to the other party of his intention to do so.
(2) The notice to be given for the purposes 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.
(3) Any notice for a period of one week or more shall be in writing.
(4) The periods of notice specified in subsection (2) of this section exclude the day on which notice is given.
(5) Nothing in this section affects any right of either party to a contract to treat the contract as terminable without notice by reason of such conduct by the other party as would have enabled him so to treat it before the making of this Act.
(6) Nothing in this section shall prevent either party to a contract from waiving his right to notice on any occasion,
or from accepting a payment in lieu of notice.
(7) All wages payable in money shall be paid on or before the expiry of any period of notice.
(8) If an employer gives the notice to terminate the contract of employment of a worker who has been continuously
employed for three months or more, the employer shall not be liable under this section to make any payment in respect of a period during which the worker is absent from work with the leave of the employer granted at the request of the worker.
(9) In the calculation of .a payment in lieu of notice, only that part of the wages which a worker receives in money, exclusive of overtime and other allowances, shall be taken into account.

HOW TO HANDLE RESIGNATION, TERMINATION, AND DISMISSAL WITHOUT FALLING FOUL OF THE LAW

Many employers have suffered huge financial losses and goodwill from the general public due to improper handling of the exit processes in their organization. At the same time, some employee for failure to work within the policy of their organization and more importantly for lack of attention to their contract of employment have lost their jobs and benefits that should be due to them.
For both the employee and employer it is recommended that they both take note of the above prescriptions and ensure that things are done right.
Resignation
Since resignation is the instance of the employee it is pertinent that the companys handbook if available should be studied alongside the contract of employment. The contract of employment is binding on both parties to the employment relationship hence breaching it carries repercussions that are sometimes unpalatable and could result in a lawsuit.
The basic qualification for resignation is THE NOTICE PERIOD. The notices must be given as stated in the employment contract it can be done verbally, however, best practice procedure is to commit it to writing and have an evidence that a proper notice has been given. You may not state reasons for resigning and it could be as simple as saying for personal reasons.
When an employee takes a walk without properly resigning it can firstly affect the operations of the organization and if losses are suffered the organization could sue for damages. Also, without a proper checklist and clearance if there are infractions and commission of crimes immediately after the exit it could be traced to the staff. It is important that the appropriate notices are given and clearance obtained.
A proper notice will help the organization planned for replacement or work out a job-sharing arrangement with the existing staff in such a way that production or operations would not suffer.

TERMINATION

Based on the doctrine of mutuality of consent, both the employee and employer has right to terminate the contract of employment either during the probationary period or after probation. Like resignation, termination of the contract could be made legally defensible if it follows due process and complies with the contract that exists between the employer and the employee. It must satisfy the requirement for NOTICE PERIOD. And, depending on the country and its laws, termination could be done without or without reason. Whether it is done at will or caused termination, it must take into consideration the conditions and contract of employment.
As indicated in the preceding pages of this article, the appropriate checklist must be followed and it must ensure that all loopholes are covered and gray issues resolved before the final exit. If done well termination is a much softer ground to land since the law recognizes voluntariness of employment relationship and the doctrine of offer and acceptance.

DISMISSAL

It is important to states here that dismissal is a very tricky and sensitive approach to severing an employment relationship, hence, it is recommended that it should be used when you are sure that the reasons for it, is not just reasonable, grave and legally defensible but it must be matter that must seem to be right in the face of the law and the observing public such as labour union, right advocacy groups and your workforce in general.
Because dismissal is at the instance of the employer, having noted his power to hire and fire it is often seen as a one-sided disciplinary measure directed at the weaker party to the contract, the employee. For this reason, much scrutiny is pointed at employers and the search for error usually looked for hence it should be done diligently and judiciously.

SUMMARY

This article was intended to provide a guide for human resource management practitioners, employers of labours and employee alike, having observed and involved in resolving issues that bother on inappropriate resignation, unfair termination and wrongful dismissals it becomes pertinent that proper attention should be paid to best practices and due observation of labour laws and contract of employment details.
I have seen businesses that got embroiled in an industry crisis and suffered huge final losses due to failure to manage employee exit properly, I have had privilege of counseling employees who were dismissed from organizations with so much bitterness against the employers five years after their exit, and I have had opportunity to have worked with a boss that was violently attacked because of perceived biases in handling employees exit.
Severing employment relationships most times will go well if it was well planned and sometimes it comes with a lot of toxic emotions that would require the expertise of a trained person to handle. I believe this article has shed some light on this sensitive matter and should provoke further discussions.
Thank you for being part of a better workplace.

REFERENCES

Kayode Ibukunoluwa-Micah (2017) Letter of Reference and Character Attestation: The Duty of Employer over Ex-employee www.askkayodemicah.com.ng
Labour Act, Chapter 198, Laws of the Federation of Nigeria, 1990
Nonato Law Offices Cebu Business and Investment Consultants (2016) Dismissal of Employees in the Philippines
Philippines Labour Law, Article 299, Jake Del Puerto
Ranger Kidwell-Ross (2011) Employee Exit Procedures and Guidelines www.worldsweeper.com
Wikipedia, The Free Encyclopedia Employee Off boarding

ABOUT THE WRITER

Kayode is a Certified International Professional Trainer, a certified human resource management professional and faculty member of the International Purchasing and Supply Chain Management Institute, Delaware-USA, and the American Certification Institute. He is a Principal Consultant and CEO of Darach Associate and Marketing Consulting Nigeria Limited.
Kayode holds a Master degree in Managerial Psychology (MMP) and has over 19 years of work experience m he has consulted for leading organization such as Samsung Electronics West African, West African Tobacco Company, Deekay Group, Kaothon International, FMCG Nigeria Limited, Churchgate Group amongst others.
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The scope of this article shall be limited to maternity leave in contrast with paternity leave (where men to whom a child had been delivered are given time off to care for their wives and the newly born child as recently legislated in the Lagos State Civil Service and practiced in many countries of the world , sometimes called SHARED PARENTAL LEAVE).

What is maternity?

This is a statutory right enjoy by women to leave their work for a specified numbers of days or period of time with the sole aim of attending to their personal health arising out of pregnancy, (including adoption and surrogacy) of a yet to be born child and the care for their newly born child (children) having produced a medical certificate or report stating their period of confinement and expected date of delivery.

Maternity leave is made of two part prenatal (ante-natal) and postnatal leave. Prenatal Leave according to the Nigerian Labour Act is the six weeks period preceding child’s birth while the postal leave is another six weeks immediately after the child’s birth. By implication and statutorily too maternity leave in Nigeria is twelve weeks (three months) leave with pay or benefits.

Article 54 (1) subsection (a) states that a woman shall have the right to leave her work if she produces a medical certificate given by a medical practitioner stating that her confinement will probably take place within six weeks

Subsection (b) of the Act further states that shall not be permitted to work during the six weeks following her confinement.

BASIS FOR MATERNITY LEAVE

Reproduction and the sustainability of the human race are linked majorly to healthy sexual-cohabitation and maternal well-being. There are of course scientific breakthroughs that have further made conception and delivery easier than they were some years back. However, because of the delicate nature of the human biological and physiological make up it has become necessary to pay attention to pregnancy, child bearing and nurturing processes in every society.

Therefore, the fundamental reasons for granting maternity leave would include but not limited to the following:

• Ensure the sustainability of the human race through both natural and artificial contraceptive methods. Because human beings are not robots it then implies that human race can only regenerate itself through natural conception or artificial insemination or fusing of the mans sperm and the womans egg or ovary or other scientific methods, but it must involve the male and female reproductive system.
• To promotes the joy of parenthood. Most women would talk of the joy of being pregnant and knowing that there is a fetus that receives live in them. People are at liberty to conceive through the natural or artificial ways and are not to be denied the right of parenthood.
• To mitigate complications arising from being pregnant. Being pregnant sometimes comes with its attendants health concerns and challenges. This necessitated the need to set aside adequate time and precautions for such envisaged or un-envisaged pregnancy related illness. The International Labour Organization (ILO) stated clearly that On production of a medical certification, leave shall be provided before or after the maternity leave period in the case of illness, complications arising out of pregnancy or childbirth. The nature and the maximum duration of such leave may be specified in accordance with national law and practice. This provision implies that even after the maternity leave might have been exhausted if there is certified medical concern for the mother or childs health such period of absence from work for the purpose of recuperation must be extended.
• The need to sustain the human production system (Industry and human civilization). Without disregard for the enormous benefits of family planning and birth control and mechanism by different government to manage their population the fact still remains that the human civilization can and will only be maintain and sustained by paying attention to family health and procreation.

• To promote parents and child bonding at early infancy. Numerous research finding and study have shown that when parents mostly mother and infant stay close at early infancy the babies tend to grow healthy and become strong emotionally. Deepak Chopra, M.D. stated that close attachment between the infant and the mother prevent diseases, boost immunity, and enhance IQ in baby

To further support this an experiment by the Ohio State University, shows that rabbits that were engaged and cuddled by their mothers were better and well protected against artery €“clogging affect of high cholesterol diet
The researchers came up with the statements that The love and attention affected the rabbits hormone level and help them withstand heart diseases
In another research at the MCGill University in Montreal Canada, it was discovered that female rats that stayed attached and lick their pups, have pup that grew up to be less stressed and more adventurous and become well groomed.
The emphasis here in to promote bonding between parents and infant, even when the child and mother are separated at birth that union that comes after are healthy for the development of the child.
• The need to put the expectant mother in a stress-free condition prenatal and promote recuperation after childbirth (Postnatal). As a father I understand the burden of motherhood and I know quite well that it could be problematic when adequate time is not given for the expectant mother to rest and fully recovered before going back to work. This has informed government and employers of labour to pay adequate attention to such issues as maternity leave.

• To promote breast-feeding. Research and pediatric opinions have shown that breastfeeding is not only good for the child but its equally help the breastfeeding mother to stay healthy and well. Six months exclusive breast feeding is recommended. Researches has shown that babies that are properly breast fed develop better resistance to stomach viruses, respiratory illnesses, ear infections and lower risk of babies having asthma. Breast milk contains antibodies that help children fight bacteria and other child related diseases. One way of effectively supporting breastfeeding is to grant leave to the mother to attend to the care of their children while they still retain their means of livelihood. Though mothers must not necessarily be with their babies 24/7 with the advent of milk extraction devices such as breast pump however the observation of half an hour twice-a-day break time should be observed and granted to nursing mothers.

IS MATERNITY LEAVE STATUTORY?

Most nations of the world are members of the International Labour Organization, since members subscribe to the ILO convention it then means once decisions are taken by the organization all members who subscribed to it must effectively domesticate the convention decisions and ensure that they are implemented.

To the effect above, Article 183 titled: Maternity Protection Convention 2000 ( No. 183), concerns itself majorly with the revision of the maternity protection convention ( Revised) 1952 and enter into force on February 7th, 2000 adopted by signatories to the Geneva 88thILO session, June 15th, 2000).
Article 4 of the convention resolution states that a woman to whom this convention applies shall be entitled to a period of maternity leave of not less than 14 weeks Subsection (2) went further to state that The length of the period of the leave referred to above shall be specified by each member in a declaration accompanying its ratification of the convention.

On the issue of duration, subsection 3 states that Each member may subsequently deposit with the Director General of the International Labour office a further declaration extending the period of maternity leave This provision accounted for the variation in the period of maternity across national boundaries but specified a minimum of 14 weeks.

WHAT IS THE POSITION OF THE NIGERIAN LABOUR ACT ON MATERNITY LEAVE?

Nigeria is a signatory to the ILO convention on maternity protection, the Nigerian Labour Act states clearly in Article 54 section 1 subsection (a) that a woman shall have the right to leave her work if she produces a medical certificate given by a registered medical practitioner stating that her confinement will probably take place within six weeks

b) Shall not be permitted to work during the six weeks following her confinement

This implies that the Nigerian Labour Act recognizes a 12 weeks maternity leave period. However, this can be extended based on the advised of a registered medical practitioner on the ground of illness.
COMPARING LENGTH OF MATERNITY LEAVE AND PER CENTAGE OF WORKERS WAGES PAID AS MATERNITY LEAVE ALLOWANCE
S/N COUNTRIES LENGTH IF MATERNITY LEAVE EARNING PERIOD PERCENTAGE OF WORKERS WAGES PAGE AS ALLWANCE
1 Sweden 68 weeks
( At least 60 days for each parent with the rest being transferable) 80 % for 390 days while lump sum is paid for 90 days
2 Croatia 52 Weeks 100% for 26 weeks and lump sum paid for the remaining 26 weeks
3 Serbia 52 weeks 100%
4 United Kingdom 52 weeks 90%
5 Canada 50 weeks 0 %
5 Italy 20 weeks 80%
6 Russia 140 Days
( 70 days before the birth and 70 days after childbirth) 100%
7 Lesotho 12 weeks 0 %
8 United States of America 12 weeks 0 %
9 Swaziland 12 weeks 0%
10 Papau New Guinea 6 weeks 0 %
11 Tunisia 4 weeks 50% for women in agricultural employment, 67% for those covered by the Labour code and 100% for civil servants

ENTITLEMENTS AND BENEFITS DURING MATERNITY LEAVE

• Absence for the purpose of maternity for a period of twelve (12) or (16) weeks as the case may be
• Shall be paid a minimum of 50 per cent of her regular salary (Some organization pay full salary during maternity leave period).
• Upon resumption to work for the next three week she shall be entitled to half an hour twice a day for the care of her child. This implies that she shall be allowed to close an hour ahead of her regular closing time.
• If for reasons of illness arising from her pregnancy or childbirth she shall be given an extended period of time recommended by a registered medical practitioner.
• Cannot be dismissed or sack during the prescribed or recommended period of maternity. Any notice of dismissal expiring during her period of maternity is a nullity.
• Marriage is not a condition for the granting of maternity leave since the law does not differentiate between legitimate and illegitimate child, they are same in the face of the Nigerian Labour law. So the practice of demanding for marriage certificate or marriage documents before granting such approval is illegal.
• Six months of continuous employment will qualify an employee for maternity leave with paid benefits.
• Enjoy general pay rise decision taken in the organization during the period of maternity leave absence.
• The right to return to work after the expiration of the maternity leave
• In case of early arrival of baby, maternity leave start a day after the unexpected delivery.
• Leave commences automatically if the worker is off duty for pregnancy related illness for the six weeks before the due date.

APPROVED PROCESSES IN OBTAINING MATERNITY LEAVE

I have discovered in the course of my interaction with people that sought for my opinion in area of maternity leave dispute with their employers that most of the time they failed to follow the due process in applying and obtaining approval for maternity leave. Also, Human Resource Department does not provide the staff with adequate information on their maternity right and processes that it entails.

STEPS TO FOLLOW WHEN APPLYING FOR AND OBTAINING MATERNITY LEAVE

1. Notification. Childbirth does not happen by accident at least a careful mother to be would noticed that she is pregnant at least six months into the pregnancy to sufficiently prepare and approach his or her line manager to obtain information on basic requirement for applying for and obtaining maternity leave.

2. Certificate or letter from a certified medical practitioner. This is about the most important aspect of obtaining approval for maternity leave. In Nigeria it is better to approach the company retained hospital or approved healthcare provider who will conduct a scan and determine a probable time of delivery and specified the period of confinement pre and postnatal.

3. Written and signed certificate of expected delivery confinement dates should be issued and addressed to the organization. It is expected that the original copy is kept by HR in the staff personal file and copies with approval should be sent to the line manager and unit heads for record purposes.

4. HR Approval. HR is to issue a letter addressed to the staff stating the commencement of her prenatal leave and postnatal leave and the staff expected return date to work and the twice half-hourly off period to attend to child care and its duration.

5. Finance and payment of benefit. It is the responsibility of HR to notify the finance or account department on the due date for the staff and instruct that the computed maternity pay be made readily available to support the expected mother. Payment must be prompt since the objective of such pay is to support the mother in caring for herself and the new born.

7. Leave extension arising from pregnancy related complication will require another letter from the healthcare provider advising the organization on the nature of the illness and the need for a predetermined numbers of extended days, weeks or month as the case may be.

8. Maternity related issue should be properly documented from the side of the staff as well as the organization because if not properly done it could result into legal tussle and related losses both to the individual and the organization.

A case in hand was Houben V. Telular Corp; 7th Cir.), where a sales manager (Susan Cooper Houben) for a company secured a contract in Europe in which she would be paid a percentage of all sales. But announced to her employer that she was pregnant, her appointment was almost immediately terminated with no reason given and her commission for the contract deal with Motorola not paid. She sued under the Federal Pregnancy Discrimination Law and other states laws in the USA. A Jury awarded her $ 98,364. The employer lost the case and subsequent appeal.

Another celebrated case in Nigeria was the case of Okunbowa V. Group Consultants Nigeria Project Adviser (Nigeria) Limited. The plaintiff was refused her wages by the defendants who went on to terminate her appointment while she was away on maternity leave having previously served the defendants a medical certificate from a certified medical practitioner. The court held that she was wrongly terminated even when her contract of employment did not provide for maternity leave entitlement. The court, however, aver that she was entitled to such leave by virtue of the Labour code now section 54 (1) and (4) earlier cited in this article. She was awarded the case and the defendants were asked to pay her salaries for the whole period of her confinement as well as damages for wrongful termination of appointment.

It is necessary to take note that in the UK, under The Equality Act 2010, Chapter 8.4 that it is an act of unlawful discrimination to treat a woman unfavorably because of her pregnancy or a related illness, or because she is exercising, has exercised or is seeking or has sought to exercise her right to maternity leave

The implication her is that if you follow the appropriate due process and taken the right steps, maternity related discrimination cannot and would hardly be won in any court of law by an employer.

SOME QUESTIONS AND ANSWERS RELATING TO MATERNITY LEAVE

It is important to state here before attempting to answer the under-listed questions which came from individuals who sought for my personal opinion on issues relating to maternity leave. Most of these questions are from Nigerians readers and some from other readers abroad. My answers shall relate only to Nigeria and will not in any way exhaust the discussions or claim to provide total solutions to the problem.

Also, I want it to be noted that my answers will relate to the ILO convention and the Nigeria Labour Act and at the same times my personal experience as an HR practitioner.

Lastly, it must be pointed out that the law provides a general guideline for maternity and mother/child protection right, it is however, important to understand individual contract of employment or collective agreement requirements entered into by individuals and their organizations.

Question

I was entitled to a thirty day annual leave, but during the course of my leave I took in (became pregnant) and fell due for maternity leave eight months after. My organization said I can only take the maternity leave and not the annual leave combine, what is your opinion on this? Thank you.

Answer

Legally speaking, annual leave vacation or holiday is different from maternity leave, hence, it cannot be said to be same thing. Having said this, it is however, important to look at individuals contract of employment since we have some organizations that agreed with their staff ab-initio that maternity leave and annual leave shall be combined depending on which comes first. Addressing your question, you can carry your annual leave to the subsequent year and still get paid if you are entitled to a paid annual leave.

Question

What happens in a situation when you became pregnant with another child while on maternity leave?

Answer
I have seen cases like these; it is not uncommon to see nursing mother gets pregnant post delivery even as early as one month or some few weeks after delivery. The standard practice is to inform your organization by providing them with the appropriate notices, appropriate notice here will include certificate from a certified medical practitioner. The law permit that you are granted maternity leave when you are due for it.
Question

I recently attended an interview when I was about six months pregnant, I presumed to have done well at the interview but one of the panelists asked about my expected delivery date to which I responded to in the affirmative. I was excused for a moment but when I was re-invited I was told that I wasnt qualified for the position. When I asked for the reason for my disqualification I was told it was internal to the panel. Can I sue for discrimination?

Answer

Honestly, the decision to whether you did well or otherwise at an interview rest solely with the panel, this is not to question your assessment of your performances. In as much as you have not been offered an employment contract or a letter intention to employ you it will be difficult to prove that you are discriminated against.
Question

I was less than six months with an organization when I applied for maternity leave; I was permitted to go for the leave but denied maternity pay benefit. Is this right?

Answer

The Nigerian Labour Act does not preclude any woman from maternity leave irrespective of length of employment. However, Section 54 (1) and (c) provided that such a woman who is less than six months in employment may not be paid maternity leave entitlement. If she is absence from her work in pursuance of paragraph (a) or (b) of this subsection and had continuously employed by her then employer for a period of six months or more immediately prior to her absence, shall be paid not less than fifty percent of the wages she would have earned she had not been absent: Having said that, organizations , contracts of employment or collective agreement may grant some concession. Please check with your employer for more information
Question

I worked in a multinational organization; I noticed that the expatriates staffers are given paternity leave while we the local male staff are denied such opportunity. What is the position of the Nigerian Law on this?
Answer

Honestly, the Nigeria Labour law is silent on the issue of paternity or Shared Parental Leave but in recent times we have seen some states government take such initiative i.e. Lagos State Civil Service now enjoy some limited privileges of paternal leave. However, it must be understood that majority of expatriate staff most times are employed based on their homes countries laws and so if such leave exist in their countries of original and it is specified in their contract of employment even if it does not exist in their countries of deployment they will definitely enjoy the leave while the local staff will not. But if such leave is recognized by your National Law and some staff are given while others are not then it would be said to be discriminatory.
Question

I could not return back to work after my maternity leave due to health challenges which necessitated me staying back for another two and half week. I put a call through to HR and the HR Assistant advised that I should take adequate care of myself and upon resumption that I should come with a doctors report. When I resumed back to work, the Head of HR asked that I should be issued with a query for overstaying my maternity leave to which I responded based on the advised given by her assistant. In the final analysis, the over stayed period was deducted from my salary. Is this right?

Answer

My personal opinion has always been that policy related matters should be properly documented, if you have obtained a written approval from the HR Assistant your position would have been better. Also, such request for an extension should be at the behest of the doctor and not you just putting a call across. It will be better that you asked the doctor to issue you with a written request and if you cannot deliver the letter to you organization, you can have someone do that on your behalf or scan it across to them and get a confirmation. In your case I dont think you have a strong case since there are no indications that you obtained the necessarily approvals.
Question

Is it an acceptable practice to fuse the entire three month of maternity into one as against dividing it into pre and postnatal leave?

Answer

The standard procedure to divide maternity into two parts namely antenatal and postnatal, but I have had situations where some women think that the second half is usually not enough for them to care for their new born so they request to stay on until some few days to delivery date. However, from the perspective of HR this also has some legal implications; for example, I had a case of a woman that was taken from the workplace to the maternity ward and she delivered when she was been driven to the hospital. For example, if there was a medical challenge the organization might be held liable. However, it is possible to have such arrangement depending on your organization but it should be purely advised in writing by a certified medical practitioner.
Question

I was given an approval to proceed on maternity leave based on a medical advice, but after proceeding for the ante-natal leave I had a delayed delivery for another one month. Since this delay would denied me time to care for my new baby can I asked for an extended time beyond the approved time?

Answer

It is important to note that maternity leave is time-bound and there are provisions for extension majorly on the ground of illness and the need for recuperation. The best option is to inform your organization of your condition and you will be guided accordingly. In some instances you could be granted extension that is not paid for or based on mutual understanding deducted from your annual leave.
Question

Upon resumption from maternity leave, I was told to report to another department. I tried to find out from my Head of Department who simply weaved it aside as mere internal arrangement.

Answer

Honestly, it is the prerogative of your organization to deploy you or move to department where they believe you can function effectively, if it is in the best interest of the organization you can be redeployed but not demoted or made you to suffer salary lost upon resumption from leave. What about if upon resumption you were informed that you have been promoted I am sure that will not be an issue?
NOTE
• Whilst I have made every effort to be guided by the Labour Act and common HR practices in my responses to the above questions, this information should however not be taken as a substitute to specific legal advice, your contract of employment or other collective agreements entered into. This blogger or writer or www.askkayodemicah.com.ng cannot be held liable for any errors or omissions arising therefore.

Conclusion

Every organization operates within the ambit of the Law both International and States or local laws so also is maternity leave and other related matters govern by law. Because maternity matter is treated as a statutory matter then individual workers and HR practitioners should be conversant with the enabling laws and conventions.

It is also important to say that practices, collective agreement and contract of employment are necessary tools that gives meaning to the implementation of maternity leaves and it must be treated holistically and not in isolation of one another.

Women constitute a significant percentage of global workforce and the onerous responsibility of conception and nurturing are placed in their hands even more than their male counterpart as such greater attention should be paid to their welfare, health and economic well-being.

This attention is also needed in the preservation of the human population and the preservation of world civilization.

Global best practices condemn any attempt at discriminating against woman in the workplace and more especially any of such action that impinge on pregnancy right and the health of the child.
This article has painstakingly pay attention to maternity leave matters, explaining individuals right, processes and procedures that governs maternity and it has also attempted to answer some questions that the writer had received from readers in recent times.

I hope you find this article helpful or if you would like to share more insight on it kindly feel free to contact the writer.

Thank you

REFERENCES

1. Having a baby in Russia www.expatica.com/ru/out-and-about
2. Houben v. Telular Cor. United States Court of Appeals Seventh Circuit. Susan Cooper Houben, Plaintiff v. Telular Cor. Defendant. Nos.99-2734,99-2892. Decided : November 03, 2000

3. Maternity Protection Convention , 2000 No. 183, Geneva, 88th ILO Session, June 15th, 2000
4. Nigerian Labour Act, Chapter 198 Laws of the Federation of Nigeria 1990.

5. Laws of Trinidad and Tobago, Maternity Protection Act, Chapter 45:57

6. Maternity and Paternity t work Laws and Practice across the World By Laura Addati , Naomi Cassirer and Katherine Gilchrist, 2014

7. Statutory Maternity Pay and Leave: employer Guide www.gov.uk
8. Womens Rights to work in Nigeria: An Appraisal Asika Ige and Olukemi Adekile 2012

9. 10 Things to know about Breastfeeding Sara Lippmann. In American Baby Magazine

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When asked for the reasons given by HR Department for their refusal she claimed to have been informed that the bank does not have any obligation to issue such a letter since she is no longer in their employment and that the acknowledgment letter sent to her via her private mailbox should be taken as final correspondence with her from the bank.

With the above scenario, I was prompted, therefore, in this article to answer the question whether an employee has a legal right to demand a reference from a former employer. Also, the above situation has brought under scrutiny the relationship between the employers and their former employees vis-a -vis the place of the Nigerian labour law.

Traditionally the employers have been favoured and given the upper hand in employer/employees relationships by convention, practices and economic circumstances. With the high rate of unemployment in Nigeria, the employers are incredibly placed at an advantage and they often determine the direction of the contract and working relationships. It is a case of take-it-or-leave-it. With minimal regards for the law governing employment practices. The employers are often erroneously at liberty to impose conditions and certain restriction on the contract. For examples most bank staff are prohibited from joining the union (though unwritten), some bank doesnt pay their staff gratuity upon exit from service, they are asked to go at will by simply denying them access to the work system.

WHAT IS A LETTER OF REFERENCE?

A reference letter is an interpretation, evaluation or an assessment of a person or employee capabilities, qualities or characteristics based on records of employment and knowledge of such a person acquired in the course of employment with an organization.

In my definition, I have deliberately avoided the use of the word recommendation because it carries much deeper meaning and implications. The word recommendation is sometimes and in most cases interchange with reference, however, because of its legal implication which connotes that the referrer is attesting to the ability of a person to perform a particular task.

By implication, when you make a recommendation you are vouching for the ability of an individual to deliver result based on previous work performances.

WHAT IS THE POSITION OF THE NIGERIAN LABOUR LAW ON THE ISSUANCE OF REFERENCE LETTER

The duties of an employer and employee are taken care of under contract and statute. Also, there are certain common law duties, which the courts, over the years have recognized and upheld as attaching responsibilities to both the employer and employee. Having stated this, it important to state here that except the contract of employment specifically provides for such duty, generally speaking, the Nigerian Labour law and common law does not include the duty to provide a reference letter to an ex-employee as one of the duties of an employer.

EXPERT OPINIONS

O. Oguniyi in Nigerian Labour and Employment Law in Perspective 2004 states on page 85 that strictly speaking, there is no obligation on an employer to supply character references

Corroborating this, E.E. Uvieghara in Labour Law in Nigeria (2001) at page 35 states that: there is no legal duty on an employer to provide an employee with a testimonial of character or to answer question from interested parties concerning an employees character.

PERSPECTIVES FROM OTHER COUNTRIES

New Zealand

In her article titled Raising the Bar, Women in Law and Business Natalya King, states that Under the Employment Relations Act 2000, an employer must provide an employee with reasons for a dismissal if requested by the employee, so long as the request is made within 60 days of the date of dismissal. The statement must be provided within 14 days of receiving the request

She went further to states that, there is no requirement on an employer to provide a reference for an employee unless theyve agreed to, for example in the employment agreement or as part of a settlement (e.g. following a personal grievance for dismissal).

Some employers avoid giving references, and prefer to only provide a statement of employment (the basic facts), because they are worried about a claim of defamation (by the employee) if they say anything negative and a claim of negligence (by the new employer) if the employee doesnt live up to any positive comments made.

THE UNITED KINGDOM

In the U.K. there seems to be an implied term based on judicial pronouncements requesting an employer to give reference letter to an ex-employee within a reasonable time frame when certain key conditions are satisfied:

• I. Where there was a contract of employment or services
• II. Where the contract relates to an engagement of a class where it is normal practice to require a reference from a previous employer before employment is offered and
• III. Where the employee cannot be expected to enter into that class of employment except on a basis that the previous employer will, within a reasonable time, provide full and frank reference
Laying this precedent in the U.K. law was the case of Spring V. Guardian Assurance Plc (1994) 3 ALL ER 129. In this case, Spring a sales Director who Guardian Assurance dismissed following reorganization exercise in the company sought for employment with Scottish Amicable, another Insurance firm.

However, under the rule of the insurance company in the U.K. the regulatory (LAUTRO) body provides that an Insurance company could not appoint anyone to act as a company representative without obtaining a reference about the persons character and experience from a previous employer.

Based on the above, Spring approached Guardian Assurance Plc for a letter of reference. The company issued a letter in which it was written that Spring was a man of little or no integrity and could not be regarded as honest he consistently kept the best leads to himself with little regard for the sales team that he supposedly was to manage he left the company owing some £12,000.00 in funding which to date has not been repaid Spring was denied the job and two other subsequent opportunities to secure employment.

He consequently brought an action against Guardian Assurance Plc suing for malicious falsehood, breach of contract and negligence.

In its ruling, the House of Lords held by 4-1 that Guardian Insurance owed the plaintiff a duty of care in tort and it further held that “Where the relationship between the parties is that of employer and employee, the duty of care could be expressed as arising from an implied term of the contract of employment.”

The Court found that the reference was inaccurate and it was held that an employer who supplies an inaccurate reference can be liable in negligence to the person for whom it was supplied
EUROPE

While organizations are not under obligation to provide employment reference letters in Europe, it is, however important to states that German, Austria, Switzerland, and Bulgaria are the only countries in Europe with legal requirements for such claim. In these countries, employees can legally claim an employment reference. In Germany and Switzerland, it is called Arbeitszeugnis while it is called Dienstzeugnis in Austria.

DUTY OF CARE VIS A VIS EMPLOYMENT REFERENCE IN NIGERIA

The business Dictionary defines the duty of care as the responsibility or the legal obligation of a person or organization to avoid acts or omissions which can be reasonably foreseen to be likely to cause harm to others.

In communicating employment reference, it is important for HR practitioners to note that they have the dual responsibility of care to their former employee and as well to the organization requesting for such reference for decisional purposes. As such they have a moral obligation to offer an honest and unambiguous appraisal of the employees.

This becomes necessary in view of the numerous cases of dishonesty and integrity issues with employees and the need to protect nationals wealth from being plundered by the few dishonest ones in society.

This was further alluded to in an unreported case of Ayoola v. Olajire (1977) 3 CCHCCJ 375, Dosumu J. stated thus: It is so manifestly for the advantage of society that those who are about to employ a servant should be enabled to learn what his previous conduct has been that it may be deemed a moral duty of the former employer to answer enquiries to the best of his belief. Such privilege is only destroyed by proof of express malice.

Aligning to this thought is the opinion given by Eric CJ in the old case of Whiteley v. Adams ( 1863 ) 15 CBNS 392 at 418, where he stated that it is to the general interest of society that correct information should be obtained as to the character of persons in whom others have an interest. If every word which is uttered to discredit of another is to be the grounds for an action, cautious persons will take care that all their words are words of praise only, and will cease to obey the dictates of truth

The point here is that utmost care must be taken when issuing a letter of reference, if you decide to give it, truth and honest assessment must be a watchword.

Stephen Cross in Careless Words Cost Jobs ( Thomas, Labour and European Review, Issue 63, October 2001), note that as a result of decisions , in the case of Cox and those preceding it, employers Lawyers are advising their clients on how to limit the risk of liability for the provision of references. This would include refusing to give a reference altogether or limiting any reference to purely factual matters including dates of employment and job title, and not character attestation.

He further advised that disclaimer in reference should be considered while giving such letter of references.

My point here is that it is absolutely not illegal to give a truthful reference for an ex-employee, but you should be careful about dragging your organization into law cases and unnecessary litigation over an ex-employee that should not be your headache, after all, he or she is no longer in your employment. The best you can do it to issue basic information about the ex-staff.

WRITING A LEGALLY DEFENSIBLE REFERENCE LETTER

Some of the signposts of a badly managed HR functions are the frequencies of industrial crises, high rate of staff turnover and litigation resulting from decisions taken in the organization. HR in the 21st century properly define is a middle-of-the-road- bridge between employer and the employee.

A well-trained HR practitioner understands the need to protect all parties in the employment relationships in such a way that the corporate and employees objectives are realized in an atmosphere of peace, smooth operation, unhindered workflow, justice, and equity.

Speaking directly to best practices and procedural guideline in designing a legally defensible reference letter, HR must take care of the often neglected recruitment processes. This implies an appropriate job design process, job analysis, determination of role, job description and persons specification.

For you to justify your opinion of an individual, some basic evaluative criteria must be set and agreed to by both parties with a regular appraisal system. Record keeping is very important such that disciplinary actions, warning and performance reports are kept and duly documented for reference purposes.

I have previously worked for an organization in Port Harcourt, Rivers States in Nigeria, where I took a decision with the consent of the management, this resulted in the sack of a senior staff who subsequently took the organization to court for wrongful dismissal but because we had records of previous actions taken on the staff for similar offences the case was out rightly dismissed by the trial judge.

The absence of employees record and actions that were taken in contravention of the law/employment agreement are some of the reasons why organizations lose employment-related cases.

It is also important to states that referencing an ex-employee should be seen as a collaborative work between the staff immediate supervisor and the Human Resource Department. HR must design a form aimed at receiving input from the staff immediate supervisor with strict adherence to objectivity and truthfulness. I have seen organizations, where an ex-employee would by-pass HR and work straight to a more senior officer of the organization and sometimes the managing Director to obtain a letter of reference, this is an aberration with consequential risk and exposure to litigation and court cases.

THE HIDDEN TRUTH ABOUT EMPLOYEES REFERENCE

I will quote the statements of Daniel Schwartz of Shipman and Goodwin LLP, Here’s what happens in real life: For “good” employees, employers give recommendations. For “bad” employees, they say that they can just confirm dates of service and titles. There’s a wink and a nod, and everyone is supposed to understand the code.

I think this should also be taken as a lesson for workers and employees, if you want to be respected and honored even after exiting from an organization give your very best, it is all about good performance record, attitude, and contribution to the growth of the organization. I have worked with some individuals in the past for which if I am called upon today to give a reference I will do it without blinking an eye.

Having said this, I think it is also important to say that while it is good and natural to want to write something positive about your good ex-workers, and provide just basic information about the not-too-good you must also be aware that an employee who does not receive a positive reference can sue your organization for discrimination or claim retaliation.

So the rule of thumb is to have a well define policy on this. I have seen where it is contained in contract of employment upon exit, we only issue out basic employment information about our ex-employee except if a much detailed information is compelled by a competent court of law

PROCEDURE FOR WRITING AN EMPLOYMENT REFERENCE LETTER

• A formal request must be written by the person seeking the reference be it an employee or a private organization seeking the services of your former employee
• Direct your response to the person who requested the information
• Avoid using vague statement and try to be as factual as possible
• When writing to whom it may concern reference, state clearly in the body of the letter that the job applicant takes responsibility for disseminating the letter to the proper person
• Avoid giving your personal opinions or feelings. Avoid making subjective statement and if you do say that they are your personal opinion
• Ensure that you relate the letter to the job that is being applied for
• Document all the information that you made about an ex-employee
• Never forget to state in the letter, This information is confidential and should be treated as such, and it is provided at the request of ( Name of Applicant)
• Include a disclaimer.

CONCLUSION

From the foregoing, we have seen that it is not legally mandatory that an employer should issue employment reference to a former employee, however, based on practice and duty of care an organization is at liberty to do so. One option is to refuse, as a matter of policy, to give references for any employee – you are not under any obligation to do so unless the contract of employment openly states that you would. However, care must be taken if you have to give such a reference because of its legal implications.

As a precaution, care must be taken at ensuring that the information given is factual, based on documented employment history, legally defensible and within the limit of the contract of employment. At best you can issue reference based on basic employment history as against a full reference statement.

References

1. E.E. Uvieghara in Labour Law in Nigeria (2001)
2. O. Oguniyi in Nigerian Labour and Employment Law in Perspective 2004
3. Natlya King Raising the Bar, Women in Law and Business
4. Stephen Cross in Careless Words Cost Jobs (Thomas, Labour and European Review, Issue 63, October 2001),
5. Online Business Dictionary
6. Reed Smith LLP
7. Wikipedia

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The success of an organization and its capacity to remain competitive is largely based on its ability to deliver superior services, bring unique value to customers and ensure their retention especially from predatory competition and sometimes from “internal enemies”. To all intents and purposes, trade secrets, confidential information, sensitive data, customer/client list, marketing plans, upcoming business launch and special business programs are tools that require judicious protection.

While it is easier to safe guide these secrets from people that are external to the organization, how do you prevent your employees especially those whose services have been terminated or that left on the basis of resignation from selfishly disclosing such information to unauthorized persons, converting them for personal use or sharing such with a new employer/ competitors?

Does the law permit an employer to exercise control over a former employee? If it does what should be considered a reasonable restriction? What are the options available to employers in the protection of vital information that an employee is privileged to have by reason of their contract of employment?

WHAT IS A RESTRICTIVE COVENANT?

A restrictive covenant in relations to the employment agreement is a contractual clause which provides for a binding, mutually agreed restraint on the part of an employee from directly competing with his or her employer or be engaged by a company or organization that is in direct competition with his or her former employer.
Fundamentally speaking, restrictive covenants are time-bound, geographically limited, and reasonable and in most cases, they must satisfy the consideration criterion in which the value of what the employee is being asked to give up must be relatively equal to the benefits that he receives or, gain.

CATEGORIZATION OF RESTRICTIVE COVENANTS

There are three known restrictive covenants common to employment relationships and these includes:

A NON-COMPETE CLAUSE OR AGREEMENT. This is commonly found in a contract of employment in which an employee agrees not to compete with his employer while in the employment of the employer and after his exit for a reasonable length of time within a geographical define space.

A NON-DISCLOSURE UNDERSTANDING OR TREATY. This is a restriction placed on an employee from engaging in an unauthorized disclosure of business information, trade secrets to anyone outside the business.

A NON-SOLICITATION AGREEMENT. This agreement places a restriction on an employee in using company data such as client list, customers details and other privileged information outside the employer interest.

Continue reading:-
BENEFITS OF RESTRICTIVE CLAUSES IN EMPLOYMENT AGREEMENT

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