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 favour 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
employerselude 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
1.1 Meaning and Scope of Contract Of
Employment
1.2 Formation of contract of employment
1.3 Terms of a contract of employment
1.4 Historical background of employer’s
liability
1.5 Basis Of The Employer’s liability
CHAPTER
TWO:DUTIES OF THE EMPLOYER AND RIGHTS OF THE EMPLOYER AND EMPLOYEE
2.1 Source
of the Employers Duties
2.2 The
common Law Duties
2.2.1 Duties
to make available proper tools and plants for
work
2.2.2 Safe
place of work
2.2.3 Safe
and secure system of work and supervision
2.2.4
Competent staff with reasonably competent
fellow Employee’s
2.3 The
statutory duties
2.3.1 Adequate
training of workers
2.3.2 Paymentof
wages
2.3.3
Provision of safe sanitary system and
humane conditions of work
2.3.4 Annual
holiday with pay
2.3.5 Sick
leave
2.3.6 Employee’s
compensation
2.3.7 Vicarious
liability
2.4 Rights
of the employer and employee in a contract of employment
CHAPTER
THREE:LIABILITIES OF THE EMPLOYER AND REMEDIES OF THE EMPLOYEE
3.1 Contractual
breach and employer’s liability
3.2 Remedies provided by the contract to the
aggrieved employee
3.3 Remedies provided by the law to the aggrieved
employee
CHAPTER
FOUR:SUMMARY,CONCLUSION AND
RECOMMENDATION
BIBLIOGRAPHY
TABLE OF CASES
Chadwick v. Pioneer Private Telephone
Ltd(1914) all E.R. 522
at
535
AcbLtd V. Apugo (1995)6 NWIR (pt. 399)65
Smith v. General motor cab. Co. (1911)A.C.
188
Cassidy v. Minister of health (1951) ALLE.R
574
Adeyemo v. Oyo state public service
commission (1978)2 LRN
268
S.F. Peters of Oronv. H.E. Symmons (1924) 5 NLR
97
Gregory v. Ford (1951) ALLE.R 121
Laws v.London chronicles (Indicators
Newspaper) Ltd(1959)2
All E.R 285
Hammer v. Cornelius (1858) 141E.R91
Rob v.green (1895)2QB315 at 317
Priestly v.fowler (1837)3M&W 17LJEX42
Wilson&Clyde coal Co.Ltd v.English
(1937)3 All E.R628,
(1938) A.C57.
Nigerian Tobacco co. Ltd
v.AlloysiusOlumbaAgunanne(1995)5
kir 997
Lovell
v. Blundells and Crompton&
co.Ltd (1944)2 ALL E.R
53.
Bowater v. Rowley Regis cooperation (1944)All E.R 465
Taylor v. Rover co. Ltd (1966)2 All E.R 181
Hudson v. Ridge manufacturing co Ltd
(1957)2ALL E.R 229
Smith v. CrossleyBrothers ltd (1951) 95 so/JO
655 CA
Longe v. First Bank of Nigeria Plc(2006)
I.C.L.R.N.105
Hanley Pease and Partners Ltd (1915) 1kb 698
Lister v. Romford ice and cold storage co.
Ltd (1957) 1ALL E.R
125
Coller v. Sunday Referee publishing co Ltd
(1940) 2K. B.647
at 655
Fenton v. Thoreley and co Ltd (1903) ac 443
at 447
Jones v. Secretary of state for social
service (1972) 1 all e.r
145
Isievwore v. N.E.P.A (2002) 7S.C (pt.2) 125
Olaniyan v. University of Lagos (1985) 2 NWLR
(pt.9) 599
Iderima v. Rivers state civil service
commission (2005) 7 s.c
(pt.3) 135
Unwagbanebi v. N.P.P.N (1980)3 NWLR (pt.30)
489
Adebayo v. Lister motors Nigeria Ltd (1980) O.Y.S.H.C.
1
Godwin Omumukav. Celestine Ubani&ors
(1972) ECSLR4 500
ShittaBay v. Federal Public Service
Commission (1981) I.S.C.
40
Head of Military Government v.
Uwaachukwu (1976) INMLR
151
Head of Federal Military Government v.
Govonor, Mid western
stateexpartObiyan (1973) I ALL N.L.R (pt.2) 297
Hart v.The Military Governor Rivers State
(1976)2 F.N.L.R 215
TABLE OF STATUTES
NIGERIAN STATUTES
Nigerian Labor Act, Cap 14 LFN, 2014
section
1 - - - - - - - - -
section
12(1) - - - - - - - - -
Section
13 (1) - - - - - - - - -
section
15 - - - - - - - - -
section
17 (1)(b) - - - - - - - -
section
19 - - - - - - - - -
section
28 - - - - - - - - -
section
29 - - - - - - - - -
section 54 - - - - - - - -
section
55 - - - - - - - - -
section
60 - - - - - - - - -
section
65 - - - - - - - - -
section
66 - - - - - - - - -
section
81(1)(d) - - - - - - - -
section
91(1) - - - - - - - - -
Factories Act 1956
section
23 - - - - - - - - -
Nigerian constitution 1999
section
40, 13 and section 17(3) - - - - -
Employee’s
compensation Act 2010,- - - - -
Trade
unions Act, 2004- - - - - - - -
Trade
dispute Act- - - - - - - - -
National
Minimum Wage Act 2011- - - - - -
LIST
OF ABBREVIATION
ALL E.R ---------------- All England law Reports
NWLR
------------------ Nigeria Weekly Law
Reports
AC
------------------ Appeal Cases
NMLR
------------------ NigeriaMonthlyLaw
Reports
NLR
------------------ Nigeria Law
Reports
Q.B
------------------ Queens Bench Report
K.B
------------------- Kings Bench Report
S.C--------------------- Supreme Court Report
FNLR ------------------- Federation of NigeriaLaw Reports
OYSHC----------------- Oyo State High Court Judgment
ECSLR ----------------- Eastern Central State Law Reports
M&W------------------- Meeson and Welsby’sExchequer
Reports,
exchange judgment of the high court
CHAPTER
ONE
INTRODUCTION-MEANING
AND SCOPE, FORMATION, HISTORICAL BACKGROUND AND BASIS OF LIABILITY.
1.1
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 casess
salary and wages. An attempt has, however been made in the sphere of labourLegislations
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 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
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,l.jgave 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.
1.2 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, AdeogunA.A 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.
TERMS
OF A CONTRACT OF EMPLOYMENT
The
terms of the contract of employment can be derived from the individual contract
itself, collective agreement and legislations.Besides 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 employee.17.
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;
competition.Avoid misuse of confidential information.20
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.
1.4 Historical
Background of Employer’s Liability
Munkman21asserts
that a recorded history of an employer’s liability started in 1837, when it
started by effecting a denial of the workman a remedy for his damage through
the application of the Doctrine of Common Employment. This doctrine operated as
a defence under Common Law. It depends on the theory that the contract of
employment between an employer and an employee contains an implied term that
the employee will not hold his employer liable for an injury due to negligence
of a fellow employeeengaged in Common employment with him. Thus, a master was
only liable to his servant when there was a want of care in selecting his
servant or personal negligence or omission to take reasonable precautions to
ensure his worker’ safety. The employer was therefore absolved of any vicarious
liability for any tort committed by one fellow employee against another.22
This was the principle introduced into the common law by Lord Abinger CB in
PRIESTLEY v. FOWLER,23 where he held that:“the mere relation of the
master and the servant can never imply an obligation on the part of the master
to take more care of the servant than he may reasonably be expected to do of
himself”.
By
this, Lord Abinger almost excluded the employer totally from any liability to
his employee.
This remained the common law position
until the English House of Lords WILSON and CLYDE COAL Co Ltd. V. ENGLISH,24
Maintained that the employer is under the duty to take reasonable care for the
safety of his employee in the course of his employment. This doctrine of common
employment continued to limit the remedy available to employees until the
Wilson’s case: In the case, an employee was killed due to an accident caused by
co-workers. The employee argued that the company was not liable on the grounds
that the decreased employee contributed to his own death by not taking an
alternativeroute on thegrounds that the decreased employee contributed to his
colleagues aware of his location. The court held that the employer-company is
liable for negligence in the performance of the duty to exercise reasonable
care and to provide
a reasonably safe system of work. That the implied duty of care was personal to
the employer –company and it could not be devolved upon one of its employees,
as the employer had argued that the duty of provide a safe system of work had
been delegated to the colleagues of the deceased who caused the accident, that
the employer has a delegable duty to create a safe system of work. The defence
of common employment has also been statutorily abolished in Nigeria, in the
then Federal territory of Lagos, in 1961. Eastern Region, 1962, Western Region,
1963, and for the whole country in 1988.25
The
Labour Act provides; 26
(1) It shall not be a defence to an employee who
is used in respect of personal injuries caused by the negligence of a person
employed by him, that, that person was, at the time the injuries were caused,
in common employment with the person injured.
2) Any provisions contained in a contract of
service or apprenticeship or in an agreement collateral thereto (including a
contract or agreement entered into before the commencement of this section)
shall be void in so far as it would have the effect of excluding or limiting
any liability of the employee in respect of personal injuries caused to the
person employed or apprenticed by the negligence of persons in common
employment with him.
In NIGERIAN TOBACCO CO. LTD. V. ALLOYSIUS
OLUMBA AGUNANNE,27 the Supreme Court opined that the doctrine does
not exist at all.
1.5 BASIS
OF THE EMPLOYER’S LIABILITY
The
employee’s safety at work is generally guaranteed by the imposition of certain
duties on the employer, duties either fixed by the contract itself expressly,
or implied by and or imposed by statutes as the case may be. The breach of
these duties may involve the employer in one form of liability of another. But one is baffled at the reason why the
employer should be liable to the employee he has employed, as it is the
employer who makes an offer of the existence of such employment to the employee
and to pay him wages.
As stated above, certain duties are
imposed on the employer, as fixed by the contract itself. That is, certain
termsexpressly agreed on and fixed by both the employer and the employee as the
sole principle which will guide their acts and conducts during the substance of
the employment. In a situation where parties were free to go back on their
promises without incurring any liability, employment relations would be
unbearable and it would be impossible to carry on trade and commerce. In the case
of a contract of employment, the employer’s liability to his employee should be
breach any term of the contract arises because both –parties genuinely intended
and consented their legal relations, to be bound by it.
The
general rule is that the employer at common law has the implied duty to take
reasonable care of his employee. This duty is concerned with those protection
given by the common law, to guarantee the safety of the employee at work or
save the employer from damages in case of any injury to the employee in the
course of the employment.29
The legal duties and responsibilities of
the employer in course of his relationships with the employee can arise in two
ways namely; personal or vicarious (Liability).
1.
Chitty, general
principles of contracts (24thED) london:
sweet&Maxwell,1977
2.
R.K salman, A
critical analysis of rights of employer& employee under the Nigeria
contract of employment
3.
(1914) ALL E.R.
522 at 535
4.
Nigerian Labour
Act, No 1974, Section 91 (1)
5.
ACB ltd v. APUGO (1995) 6 NWLR (pt.399) 65
6.
(1911) A.C. 188
7.
Labor
Act, cap 14, LFN, 2004, Section 91.
8.
A
critical Analysis of rights of employers & employees under contract of
employment
9.
Labor
Acts, cap 14, LFN 2004, section 91
10.
(1951)
ALL E.R 574
11.
(1978)
2 LRN 268
12. D.D. Odumosu,
landmarks in Nigeria Labour law (OAU) inaugural lecture series 86 (1987) p: 6,
cited by D. N. EmeWorugji,
introduction to individual Employment Law in Nigeria 1st ed.
(Calabar: Adorable
press
1999) p. 34
14.
Labor Act, Cap 14,LFN,
2004,section 13 (1)
15.
SECTION 14 1BID
16.
S.F peters of oron v. H.E. symmons (1924)5 NLR
79
17.
Gregory V. Ford (1951) ALL E.R 121
18.
Laws v. London chronicle ( Indicators
Newspapers) Ltd
(1959) 2 ALL E.R 285
19.
Hammer v. Cornelius, (1858)141 E.R 91
20.
Rob v. green (1895) 2 Q.B 315 at 317.
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