Misconduct Vs Mistake In Human Resource Management in Nigeria

By Frank Ofili

In strict HR and employment law parlance, a genuine, confessed mistake is not automatically classified as misconduct. The distinction usually depends on intent, negligence, and the organization’s disciplinary policy.

1. What “misconduct” generally means

In HR practice, misconduct typically refers to a willful act or omission that violates workplace rules, policies, or expected standards of behavior. Key elements often include intentional wrong-doing, or reckless or grossly negligent behavior, or deliberate violation of company policy

Examples include:

• Fraud or dishonesty
• Insubordination
• Theft
• Harassment
• Deliberate breach of safety rules

2. What a “mistake” usually means

A genuine mistake is normally understood as an unintentional error occurring without malice or deliberate disregard often arising from misjudgment, misunderstanding, or human error.

In many HR frameworks, such mistakes are treated as:

• Performance issues, or
• Training/supervision gaps, rather than misconduct.

3. When a mistake can become misconduct

A mistake may still be classified as misconduct if it involves:

• Gross negligence (extreme carelessness)
• Repeated errors after warnings
• Ignoring clear procedures
• Serious consequences caused by recklessness

For example:

• A cashier accidentally giving wrong change once – mistake
• A cashier repeatedly ignoring reconciliation procedures – possible misconduct

4. HR best practice

In professional HR practice, a confessed mistake would normally lead to:

• Counselling
• Retraining
• Process correction

It would not lead to immediate disciplinary punishment, unless negligence is serious.

5. A key HR principle

Many HR practitioners rely on the “just culture” principle:

• Human error requires coaching
• Negligence requires corrective action
• Willful violation requires misconduct discipline

Bottomline: A genuine confessed mistake, by itself, is generally not misconduct in strict HR terminology. It becomes misconduct only if intent, recklessness, or repeated negligence is involved.

Under Nigerian labour jurisprudence, the distinction between a genuine mistake and misconduct has been addressed in several decisions of the National Industrial Court of Nigeria and earlier appellate courts. Nigerian courts generally emphasize intent, negligence, and breach of duty.

Here is how the law tends to approach it.

1. Nigerian courts recognize “human error”

Nigerian labour jurisprudence acknowledges that employees can make genuine mistakes in the course of their duties. Courts have repeatedly held that an honest mistake made in good faith is not automatically misconduct. Employers must distinguish between error of judgment and deliberate wrong-doing.

Where an employee admits the error and there is no evidence of fraud, dishonesty, or recklessness, the courts often see it as poor performance or human error, not misconduct.

2. When a mistake becomes misconduct in Nigerian law

Nigerian courts may treat a mistake as misconduct when one or more of these factors exist:

(a) Gross negligence

If the mistake arises from extreme carelessness, especially in sensitive roles (banking, finance, safety, security). Example: Authorizing a payment without basic verification procedures.

(b) Breach of established procedure

If the employee ignored a clear rule or standard operating procedure. Example:

Signing a document without reading it when policy requires verification.

(c) Repeated mistakes

If the employee keeps making the same error despite warnings or training, the courts may accept the employer’s classification of misconduct.

(d) Serious consequences

Where the mistake causes major financial loss or operational damage, the court may view it as negligence amounting to misconduct.

3. The importance of fair hearing

Even when an employer believes the mistake amounts to misconduct, Nigerian law requires:

• Query issued to the employee
• Opportunity to explain
• Consideration of the explanation

Failure to do this may render disciplinary action unlawful under Nigerian employment law.

This principle flows from the broader doctrine of fair hearing under Nigerian law.

4. What Nigerian courts often look at

When disputes reach the National Industrial Court of Nigeria, judges typically examine:

• Whether the mistake was intentional
• Whether training or supervision was adequate
• Whether the employee benefited personally
• Whether the employer followed disciplinary procedures
• Whether the employee had a previous record of similar errors

An employee can still be lawfully dismissed even when misconduct is not proven. It is a subtle but powerful rule in Nigerian employment law. It is one of the most misunderstood principles in Nigerian employment law.

Even when misconduct is not conclusively proven, an employer may still lawfully terminate an employee’s appointment. Nigerian courts distinguish clearly between termination and dismissal. The leading authorities include decisions of the Supreme Court of Nigeria and the National Industrial Court of Nigeria.

1. The key legal principle

In ordinary employment relationships (often called master–servant employment), an employer can terminate employment for any reason or even for no stated reason, provided the contractual notice is given, or salary in lieu of notice is paid. The courts repeatedly hold that the motive for termination is generally irrelevant.

2. Termination vs dismissal in Nigerian law

Termination: Termination is not punitive.

Features:

• Employee receives notice or salary in lieu of notice
• Employee still receives earned benefits

Termination does not necessarily imply wrongdoing. Employers often use termination when:

• Trust has broken down
• The employee made serious errors
• The employer simply wants to end the relationship

Even if misconduct is alleged but not proven, the employer may still terminate the appointment.

Dismissal: Dismissal is punitive and usually follows misconduct or gross misconduct.

Features:

• Often no notice
• May affect reputation
• Usually follows a disciplinary process

Because dismissal is punitive, courts expect stronger justification and fair hearing.

3. Why Nigerian courts allow termination without proven misconduct

The courts reason that employment contracts are voluntary relationships. The Supreme Court of Nigeria has repeatedly held that no employer can be forced to retain an employee they no longer wish to keep, except in special categories like statutory employment.

Therefore, failure to prove misconduct does not automatically entitle an employee to keep the job. The employer can still terminate the employment in accordance with the contract.

4. The major exception: statutory employment

This principle does not fully apply where employment has statutory protection, such as government service, universities and certain public institutions

In such cases, removal must follow the statutory disciplinary procedure, otherwise it may be declared null and void.

5. Practical HR implication

In Nigerian HR practice, when an employer cannot firmly establish misconduct, the safer route is often to terminate appointment with notice, rather than dismiss for misconduct. This reduces the risk of successful litigation.

One of the most cited authorities in Nigerian employment law on this issue is the Supreme Court case:

Chukwumah v. Shell Petroleum Development Company of Nigeria Ltd. This case is frequently referenced by both the Supreme Court of Nigeria and the National Industrial Court of Nigeria when discussing termination, dismissal, and employer discretion.

Background of the case

Mr. Chukwumah, an employee of Shell Petroleum Development Company of Nigeria Limited, challenged the termination of his employment. He argued that the termination was wrongful because the employer alleged misconduct but failed to prove it properly.

What the Supreme Court decided:

The Supreme Court made a very important clarification – that an employer does not need to prove misconduct before terminating employment. The employer can terminate for any reason or for no reason at all, provided the contractual terms are followed.

In essence, the Court held that the motive for termination is irrelevant once the employer complies with the contract of employment.

Key principle from the case:

The case established a principle now widely cited in Nigerian HR practice:

Termination: Employer only needs to follow the contract (notice or salary in lieu).

Dismissal: Employer must justify the allegation of misconduct.

So even if an allegation fails, the termination can still be valid if notice requirements were satisfied.

Why this case is important for HR

HR professionals in Nigeria rely on this case because it clarifies that:

• Employers are not compelled to retain employees they no longer trust.
• A failed misconduct allegation does not automatically invalidate termination.
• The contract of employment is the controlling document.

How it applies to a confessed mistake:

If an employee confesses to a genuine mistake, the employer may decide that it is not misconduct, but the confidence necessary for the role has been lost.

In that situation, the employer may terminate the employment with notice, relying on the principle in Chukwumah v. Shell Petroleum Development Company of Nigeria Ltd.

In conclusion, Nigerian Supreme Court jurisprudence allows termination even without proven misconduct, provided the employer complies with the employment contract.