The Labour Act (Cap L1 LFN 2004) defines a contract of employment as any agreement whether oral or writing, express or implied whereby one person agrees to employ another as a worker and that other person agrees to serve the employer as a worker.

A contract of employment is generally governed by the common law rule of contract. Thus, all the essential elements of an ordinary contract are also required in a contract of employment. The terms of a contract of employment are that; it is a free agreement between the employer and the employee.

There must be an offer (employment letter), acceptance (acknowledgment of the employment letter), consideration (the employer must undertake to pay wages), capacity for instance (Sec 59(1) (a) of the Labour Act provides that an infant under the age of twelve years cannot be employed other than by a member of her family even so, he may only be employed on light agricultural or domestic work) and an intention to create a legal relation.

Either party to a contact of employment has a right to bring the employment to an end by giving notice of his intention to the other party. Like under the common law, either an employer or its employee may terminate a contract of employment, subject to the terms of the written contract, where the tenure of such a contract expires without a new contract of employment being entered into, either by conduct or in writing. Another instance where a contract of employment could be terminated constructively is where either party to the contract dies.

The most common method of terminating a contract of employment is by the delivery of a written notice of termination of the contract on the opposite party. Where a notice of termination is served, the contract automatically terminates at the expiration of the period of the notice of termination. Either party could equally elect to pay compensation in lieu of the notice.

However, with the increase in electronic communication, and a decrease in use of papers, employers are questioning how they can legally communicate important employment notices such as notice of termination to an employee. Thus the question being discussed here is whether notice of termination of employment through text message amounts to notice in writing as required under the Labour Act? If so, what other medium could be used to communicate notice of termination of employment?

TEXTING NOTICE OF TERMINATION OF EMPLOYMENT

Adel Company (fictious) terminated the employment of some of its staff for embarking on a strike action.  The employment of the staff were regulated by a service agreement which provided that either party can terminate the employment by giving not less than one month notice in wring to the other party.

The staff embarked on a strike action which was against the service agreement and thereby caused the company to suffer loss. The company sent written notice of termination of employment to the staff but they refused to accept it.

The company further sent text messages notifying the employees of their termination and that all benefits and entitlements would be paid at the expiration of the notice.

The staff instituted an action against the company for wrongful termination of employment stating that no letter of termination was giving to that effect.

PROPER NOTICE OF TERMINATION

Notice of termination of employment can be said to be formal information by one party to the other that the contract is to be brought to an end at a specified date.

The essence of giving notice of termination of employment was emphasized by Taylor C.J in O.A Martins v. Braithwaite (Insurance Broker) & Co that

The worker has to be told in clear words that his services are no longer required.

Sec 11(3) of the Labour Act provides that notice of termination of employment shall be in writing. However, the Act did not define what constitute notice in writing.

There has been no decided authority in Nigeria on whether text message qualifies as a form of notice in writing. However, in Amadi v. African Publishing & Printing Co (1967) NCLR 63, the court in deciding on form of notice of termination of employment stated that:

‘A notice need not be in writing nor need take it take any particular form. An intention to terminate the contract at the end of the proper period of notice conveyed in such a way as carries an understanding of such intention to the other party is probably all that the law requires’

As mentioned above, the Labour Act requires the employer to give an employee notice of termination, in writing. Failure to do so may be in breach of the Act, but may not necessarily mean a termination of employment has not been effected.

Generally, a termination of employment is considered not to take effect unless and until it is properly communicated to the other party. This could include notice being given verbally (although this would not satisfy the requirements under Act.

In Australia for instance, texting notice of termination of employment complies with the Fair Work Act, it may be taken into account by the Fair Work Commission in determining whether an employee was accorded procedural fairness in the context if an unfair dismissal claim.

 The Australian court for instance in Guirguis v Ten Twelve Pty Ltd & Anor [2012] FMCA 307 held that a text message dismissing an employee, complied with the written notice requirements under the Act as a text message was a “form of writing”.

Also, In Martin v Deco Glaze Pty Ltd [2011] FWA 6256, it was determined that, in most situations, texting is not appropriate when terminating a worker’s employment. However, in this case, it was determined that had there been a face-to-face meeting, the outcome would have been the same. The employee had been given a chance to respond to the allegations during a telephone conversation and the employer texted the dismissal because the employee was away on leave and about to go overseas.

The Commission stated that if SMS is a regular form of communication between an employer and employee for rosters or working hours, it is “an inappropriate means for notification of dismissal or reason(s) for dismissal”, as it deprived the employee of the opportunity to respond to the dismissal or raise any defence to “issues that may have contributed to the decision to dismiss”.

Therefore, it is safe to conclude that what the Australian court will consider in determining whether text message qualifies as a notice in writing is if the employee is accorded the opportunity to respond to the allegation leading to the termination.

THE PROPRIETY OR OTHERWISE OF ADEL’S CASE.

In other jurisdiction apartment from Nigeria, what constitute notice in writing is usually defined in the agreement between the parties, in which case it can take whatever form the parties agree to. It can be a letter sent by regular mail or overnight carrier, it can be a fax, and it can even be an e-mail.

If the agreement does not define what constitute notice in writing, then what constitutes notice in writing will often depend on the state you are in and the type of agreement you are dealing with because there may be statutory law or case law that governs.

However, what constitutes notice in writing is not defined in the Labour  Act but the decision of the court in Amadi v. African Publishing & Printing Co (1967) NCLR 63, may be helpful. The court on issue of notice of termination of employment stated that:

‘A notice need not be in writing nor need it take any particular form. An intention to terminate the contract at the end of the proper period of notice conveyed in such a way as carries an understanding of such intention to the other party is probably all that the law requires’. (underlining mine)

Further more, the Nigeria Interpretation Act CAP 123 Laws of the Federation of Nigeria 2004 defines writing to mean:

 “Typing, printing, lithography, photography and other modes of representing or reproducing words in a visible form, and expressions referring to writing are construed accordingly”.

From the definition above, it is clear that writing includes any other means of representing or reproducing words in a visible form and since text messages are typed and sent in a visible form, one can safe conclude that text message is in writing.

The service agreement entered into between the parties stipulates that either party may terminate the employment by giving not less than one month’s writing notice to the other.

From the decision of the court in Amadi v. African Publishing & Printing Co (Supra) it is safe to say that the text message sent by Armour Group Nigeria Limited to its staff qualifies as an intention to terminate the contract as it is conveyed in such a way that carries an understanding of such intention.

It can also be concluded that what the law requires is the medium by which the intention to terminate the contract is conveyed

Finally, according to the definition of the word “writing provided in the Nigerian Interpretation Act, 1990 as amended in 2004 text message can be said to be a notice in writing and it can be a medium to terminate a contract of employment unless the contract of employment, by its plain terms, requires notice in writing in a particular form such as written letter, email or any other written medium.

In view of the fact the Nigeria evidence Act was amended in 2011 to accommodate admissibility of electronic evidence, it is also a plausible argument that text messages are electronic evidence that will be admitted in court.

It is therefore recommended that the Labour Act be amended to state what constitute or amount to notice in writing.

BY: HANNAH ALABI
Deputy Head of Chambers
ADELEYE & ADELEYE SOLICITORS
hannah@adeleyelaw.com