EMPLOYER’S LIABILITY TO HIS EMPLOYEE UNDER THE NIGERIAN CONTRACT OF EMPLOYMENT

By

Author

Presented To

Department of Law

EMPLOYER’S LIABILITY TO HIS EMPLOYEE UNDER

THE NIGERIAN CONTRACT OF EMPLOYMENT

FACULTY OF LAW

ABSTRACT

The laws which govern employment occupy a position of considerable importance in any modern society. This is so because of the tremendous contributions which workers can make to national growth and development, as well as the general well-being of the nation’s citizenry. Labour law has a vital role to play in the mobilization of the work force for national growth. The major players in employment are essentially-the employer and the employee and whenever there is a contractual relationship between these two parties, the binding contract naturally brings about rights and duties which must be complied with. Their respective rights and duties have to be analyzed wholly in contractual terms. In many civilize countries, a case study of Nigerian, it has been observed from historical antecedents, a structured favor to employers over and above the employees liability arose. As much as it is an undisputed fact that employers reserve the right to dismiss alongside other rights, employees also have rights which they can also exercise. But in most circumstances, due to ignorance of many employees, the opportunity to challenge such unlawful acts of the employers elude them. Efforts has been made in this research projects to identify these problems, their causes and also solutions have been suggested in the concluding chapter for a need to reform the whole set up as it affects labor law and practice in Nigeria.

TABLE OF CONTENTS

    i        Certification

   ii        Dedication

 iii        Acknowledgment

 iv        Abstract

  v        Table of contents

 vi        Table of cases

vii        Table of statutes

viii        List of abbreviations

CHAPTER ONE:INTRODUCTION- MEANING AND SCOPE, FORMATION, HISTORICAL BACKGROUND AND BASIS OF LIABILITY

11            Meaning and Scope of Contract Of Employment

12            Formation of contract of employment

13            Terms of a contract of employment

14            Historical background of employer’s liability

15            Basis Of The Employer’s liability

CHAPTER TWO:DUTIES OF THE EMPLOYER AND RIGHTS OF THE EMPLOYER AND EMPLOYEE

21        Source of the Employers Duties

22        The common Law Duties

221     Duties to make available proper tools and plants for

work

222     Safe place of work

223     Safe and secure system of work and supervision

224     Competent staff with reasonably competent fellow Employee’s

23        The statutory duties

231     Adequate training of workers

232     Paymentof wages

233     Provision of safe sanitary system and humane conditions of work

234     Annual holiday with pay

235     Sick leave

236     Employee’s compensation

237     Vicarious liability

24        Rights of the employer and employee in a contract of employment

CHAPTER THREE:LIABILITIES OF THE EMPLOYER AND REMEDIES OF THE EMPLOYEE

31        Contractual breach and employer’s liability

32        Remedies provided by the contract to the aggrieved employee

33        Remedies provided by the law to the aggrieved employee

CHAPTER FOUR:SUMMARY,CONCLUSION AND

RECOMMENDATION

BIBLIOGRAPHY

TABLE OF CASES

CHAPTER ONE

INTRODUCTION-MEANING AND SCOPE, FORMATION, HISTORICAL BACKGROUND AND BASIS OF LIABILITY

11    Meaning and Scope of Contract of Employment

           The contract of employment is a specie of contract, and is Therefore governed by general principles of the law of contract, consensusad item, Being a kind of simple contract, contract of employment must also satisfy the elements of a valid contract The vitiating factors are also applicable to it What distinguishes a contract of employment from a simple contract, which chitty defines as a promise or a set of promises which the law will enforce1, is the degree of control that one party has over the other party2 Also, a contract of employment relates to a relationship that exists between two or more persons for the performance of services, while one person is employed by the other Where as, a contract relates to a relationship that exist between two or more persons in any transaction, generally

       Traditional statements of what constitute a contract of employment, place most emphasis on the power of the employer to control the work of the employee in contrast to a contract with an independent contractor In Chadwick v pioneer private telephone Ltd, contract of employment was defined thus: contract of services implies an obligation to serve and it comprises some degree of control by the master"3 It must howeverbe noted that there is no comprehensive definition, only conflicting criteria’s A contract of employment can be defined as a contract entered in to by two parties whereby one party submits himself to the service of the other for some considerations in most cases salary and wages An attempt has, however been made in the sphere of labor[1]Legislation in Nigeria4 at defining a contract of employment as;

’’Any agreement whether oral or written, 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"

It is a contract of service and not for service, what differentiates them is the fact that in a contract of service, a man (employee), places his labor at the disposal of another, resulting in a relationship between the to parties Where as, a contract for services involve a situation where a man who operates an independent business agrees to do labor or carry out a task or tasks for the person of another In past times, the contract of employment was known as and called a relationship of ‘’ master and servant" 

Since employment relationship strictly represents subordination of an individual as a worker to an employer, which relationship could be described as a dependent labor relationship, Mr Y’s house keeper, gate keeper, driver or chauffeur is his employee, that a laundry man or a t-axi driver is an independent contractor5

Thus, for a contract of employment to be [2]distinguished from a contract for service, the parties involved must avail themselves of the statutory rights under it That is, it must be shown that a relationship of employer and employee or master and servant exists between them Thus, there must be terms agreed by both parties for this will be the sole principle which will guide their acts and conducts during the subsistence of the employment As held by the court in SMITH V GENERAL MOTOR CAB CO6, where the claim for the existence of such relationship between the parties fails

 As must have been noted, a contract of service involves two separate legal categories of persons namely " an Employer, master, hirer, or recruiter, and an Employee WHO IS AN EMPLOYER ?: Although this has no précise meaning in law;

       ’’An employer is any person who has entered in to contract of employment to employ any other person as a worker her for himself or for the services of any other person and includes the agents, manager, or factor of that first mentioned person and the personal representatives of a deceased employer"7

An employer can also be defined as; ’’The entrepreneur who engages a worker under a dependent labor relationship and has control over that worker to the extent that such worker could be referred to as an employee’’ Also, an employer is ’’Any person who employs or engages labour or the service of another person under contract of service’’Theemployer could be an individual, a partner, a corporate body or even a state (the Government)8

[3]

WHO IS AN EMPLOYEE?

       Any person who has entered in to or works under a contract with an employer whether the contract is for manual labor or clerical work or express or implied or oral or written, and whether it is a contract of service or a contract personally to execute any work or labor but does not include - …… persons exercising administrative, executive, technical or professional functions as public officer or otherwise"9

To identify an employer or servant then, the essential question is ’’ was his contract a contract of service within the meaning which an ordinary person would give to the word?" In CASSIDY v MINISTER OF HEALTH10Bomerell,ljgave the view that, if the answer is YES, then such a person will be regarded as an employee In ADEYEMO v OYO STATE PUBLIC SERVICE COMMISION,11 the plaintiff who was a deputy accountant Generalloyo state public service was held to be a servant or employee Employee and servant have been used interchangeably by authors also, various Nigerian statutes have defined who a servant is by using words like workers, employee or workman

[4]

12 Formation of Contract of Employment

The existence of binding relationship between the employer and the employee arises out of contract, as essential elements for the formation of  a contract of employment or service between an employer and employee upon which their rights and obligations depends are generally same as conditions in ordinary or simple contact This legal relationship therefore presupposes the voluntary consent of the parties to its creation expressed through the process of hiring within limitation imposed only by the general law of contract or statutory regulation The terms are often not negotiable by the individual employee except in some cases where remuneration is negotiable, depending on the professional skills required by the employer As such,  the rights and dutiesof the master and servant are essentially the products of free bargaining  between the parties,  as they have liberty to decide  the terms and conditions of  service

Beside the element of voluntariness, there is also the presumption of equality between the parties but professor Odumosu has described this presumption of equality between the parties as a ’’Fiction’’12 Also, AdeogunAA commented on the presumption of equality and voluntariness of bargaining power between the master and the servant, as he noted that, ’’… the so-called bargaining power of the individual worker is of little importance in practice……"13

The basic conceptual frame work for the individual employment relationship is provided by contract, and as such, the employment relationship created must of necessity satisfy all the essential features of a valid contract There must be offer, acceptance, requisite capacity of parties, consideration, intention to give the agreement legal efficacy and no element vitiate the contract With regard to capacity, the parties must have requisite legal capacity to enter the employment relationship, Generally, the capacity of infants, women, and persons of unsound mind are limited in some ways

[5]

TERMS OF A CONTRACT OF EMPLOYMENT

       The terms of the contract of employment can be derived from the individual contract itself, collective agreement and legislationsBesides this, the terms of a contract also depends largely on the intention of the parties, as they are free to agree upon the contents or terms of their employment relationship The terms of contract relates to those statements, express or implied, by which the employer and the employee intend to guide their employment relationship The term defines the rights and duties of obligations and liabilities arising from the relationship As stated above, there are express or implied terms The express terms include: Hours of work14 travel to work,15wages and control of wages The Implied obligation of employer include: To pay wages,16To treat employee with due respect; provision of work for the employee; Safety of the employee at work; Provision of references; To indenify the employee17

Some implied duties of the employee include: The duty of obedience; 18 Dutyto exercise skills and reasonable care;19   duty to render honest and faithful service; Avoid secret profit and personal gain; competitionAvoid misuse of confidential information20

       The contractual terms may be oral or written, but important contents of a contract ofemployment are as a matter of practice and prudence, made in writing and the terms documented properly[6]