Examination Of The Duties Of The Employer and Employee Under The Nigerian Employment Law

Abstract

The paper examines the duties of an employer and employee in the Nigerian contract of employment. A contract of employment is any agreement where one person agrees to employ another as an employee or worker and that other person agrees to serve the employer as an employee. An “employer” is one who employs another as a worker either for himself or for the service of any other person, and includes the agent of that first-mentioned person and the representatives of a deceased employer. An “employee” is one employed by an employer under a contract whether on a continuous or temporary apprenticeship or casual basis and includes a domestic servant who is not a member of the family of the employer including any person employed in the local, state or federal governments. The relationship between employer and employee gives rise to duties which are recognised and enforceable in law. Some of the duties of the employer include: to pay wages, to provide work and to take reasonable care of employee against workplace injury while that of the employee involve, obedience and faithfulness.

CHAPTER ONE

 

INTRODUCTION

The constitution of Nigeria itself seeks to ensure that the Nigerian worker is able to participate fully in the economic, social and political development of the nation. It provides that the state must direct its policy towards ensuring, inter alia, that:

(a) all citizens without discrimination on any ground whatsoever have the opportunity for securing adequate means of livelihood as well as adequate opportunities to secure suitable employment;

(b) conditions of work are just and humane;

(c) the health, safety and welfare of all persons in employment are safeguarded and not endangered or abused;

(d) there is equal pay for equal work without discrimination on account of sex or any other ground whatsoever [1].

It is the duty and responsibility of all organs of government and all authorities and persons exercising legislative, executive or judicial powers to conform to, observe and apply these injunctions[2]. Although these rights, if they may be so-called, are not justiciable rights[3], there can be no doubt that they provide a significant yardstick by which the reasonableness, if not the constitutionality, of our labour laws may be measured.

The sources of labour law include the constitution, legislation and the common law. The common law includes the decisions of both the Nigerian and the English courts[4]. However, the decisions of the English courts are merely persuasive, although in practice they are accorded the highest respect. Also decisions from other commonwealth, even non-commonwealth common law countries are found helpful. It does not appear that customary law has contributed in any way to our body of labour laws.

In this chapter, I will expose the background of my study, highlight the statement of the problem which this project is intended to settle, bring to light my objective in embarking on this study, define the scope and raise pertinent research questions for my study which shall aid my research methodology. Review of related literature of study will show that the law on the liability of an employer to his employee is gradually receiving attention by our courts which was before now as noted in my abstract to have been in favour of the employers of labour only. Also in this chapter, I will identify the existing statutory framework regulating the relationship between an employer and his employee.

 

1.1   Background of The Study

In a given situation, if parties were to go back on their promises without incurring any liability; there would be endless complications and it would be almost impossible to carry on trade and commerce.

A modern standard contract of employment is reasonably expected to be a binding transaction between the employer and the employee. The terms need to be in writing, and a copy given to the employee within a reasonable time so that he may know the breach of any terms of the contract for the fixation of liability. Parties to the contract are also expected to observe the terms as they affect them individually. Equally expected to be observed are the implied terms of the contract and termination  of employee’s appointment is expected to follow laid down procedure in labour statutes and rules of natural justice. Is this the position of Labour law and practice in Nigeria? Definitely No.

The master and servant relationship imposes on the employer certain responsibilities which he is obliged to discharge to his employee provided the employee performs his own duties faithfully, honestly and creditably. Should any party breach his own side of the gentleman’s agreement, he becomes liable to the other party. Fixation of liability on the employer has always been given little or no attention to especially when he breaches the terms of the contract or fails perform or negligently performs the duties he owes his employee.

It is this apparent neglect and inertia (idleness) by the authorities of this all important area of law that has prompted research especially now that Nigeria as a developing nation is growing industrially.

 

1.2 Statement of The Problem

It is an investigation of the law in the books with the aim of examining how statutes and regulations have tried in protecting the employee’s interests and how far or the extent to which the courts have safeguarded these interests.

Occasions had arisen when employers had breached the terms of the contract without observing the laid down rules of labour law and practice in Nigeria and rules of natural justice. The employee has been retired, retrenched or dismissed unfairly under any political, social or economic reasons. Today the employee’s services may no longer be required either “due to the company’s inability to obtain import licence for the procurement of raw materials or until the prevailing economic situation in the country improves”. More so, he is dismissed sometimes without adequate compensation and with disregard to the terms of the contract.

 

1.3 Objectives of The Study

1. This study has the primary objective of revealing and bringing to the fore to any prospective employee and employer respectively, in the first place, that there is a duty imposed by law on all employers to diligently obey the terms of the contract entered into with his employee.
2. Secondly, as a morale booster for employees, on the need to seek redress once there is/are perception(s) of breach of the terms and obligations, for it will go a long way in making our labour system and employers more responsive and obliged to discharge the duties imposed on them by law to their employees.
3. It will also develop and strengthen our current case laws and legislations on labour and employment law, and to provide ready and handy material on what the law had said, is saying and likely to say by precedent on any suit predicated on labour law and practice in Nigeria.

 

1.4 Research Questions

Research questions developed for the purposes of this study are based on some unsettled areas of labour and employment law and directed to civil servants and legal practitioners. Apart from their personal information, my research questions are:

Q1. When actually could an employer be said to have breached his own side of the contract as to give rise to liability?

Q2. Are there any remedies available to the aggrieved employee even in the wake of draconian laws and legislations?

Q3. Could the law still protect such erring employers?

Q4. How far have the law and courts protected and safeguarded these interests of an innocent employee?

The foregoing issues form the basis of this legal research project.

 

1.5 Significance of The Study

It is significant that employers are now becoming weary and more careful in their relationship with their employees, not to flout the terms of their contract and duties imposed by law.

This study also signifies that employees are now going to exercise their legal rights when they are infringed by employers. Legal practitioners, students of law and the entire public are now asking questions and becoming interested to knowing the liabilities of employers upon failure to discharge the duties the owe to the employees.

 

1.6 Scope of The Study

Within the vast, complex and dissected field of employment law, my scope is limited to the liability of an employer to his employees, the various laws that apply to regulate labour practice in Nigeria; including and importantly case laws on which most tortious claims are founded. Efforts shall be made in this project to critically examine the justification, if any, for such derelictions of duty on the part of the employer while flagrantly flouting the laid down contracted terms and provisions of labour statutes.

Researches on a complex field as this employment law will only demand what I call the “best method” which is the adoption of both the primary and secondary sources of information. The primary source involves the use of questionnaires for employees and with one and one interview with some notable legal practitioners on some rather unsettled and subjective areas of their calling. The results are marvelling. The secondary sources draw from textbooks, journals, newspapers and accredited online materials.

 

1.7 Literature Review  

This part of my study, will concern itself with the evaluation of relevant and available materials on the liability of employers to the employees in a contract of employment both local and foreign texts. In Nigeria, discussions on this are rare in literature.

According to Godwill A. Umoh in his book Principles of Employer’s Liability, he opined that “employer’s liability refers to the phenomenon whereby an employer is made liable to pay damages for the injuries sustained by his employee in the course of his employment or in respect of injuries sustained by a third party as a result of the negligent act of his employee”.

Sometimes, the employer incurs such liability because the injury was sustained by the employee as a result of default on the part of the employer, for example, where the employer personally refuses to take necessary and reasonable care in the performance of his duties. This is usually referred to as personal liability. Again, an employer could be found liable to his servant who has sustained injury as a result of the negligent act of fellow servant who he happens to work with. Furthermore, an employer may be found liable to a third party who has been injured by the employee of the master in the course of performing the duty wherefore he was employed to perform. This is usually referred to as vicarious liability. In another instance, an employer of labour may be found liable to his employee where he has failed, refused or neglected to take the necessary precautionary measures as prescribed by a statute, as for example, where he fails to fence around a dangerous machine thereby exposing his factory workers to danger or likelihood of danger. This is sometimes referred to as liability for breach of statutory duty.

To Emiola, in his book Nigerian Labour Law; a master may be liable for the acts of his servant either because the acts had been authorized[5]  or subsequently ratified[6], or because they were done in the course of the servant’s employment.

The liability of the employer rests on the implied term in a contract of service that a master shall indemnify his servant in respect of all legitimate actions in the course of his duty.

Chitty[7] observes:

“The relationship of employment imposes a duty on the employer to indemnify or reimburse the employee against all expenses, losses and liabilities incurred by the employee in the execution of his master’s instructions, or within the authority granted to him by the employer, or during the reasonable performance of his employment … An employer who failed to insure his vehicle in the course of his employment and who was held liable to a third party person injured by his negligent driving.”[8]

Karibi-Whyte, JSC said in Patrick Abusomwan v. Mercantile Bank of Nigeria Ltd[9]. that an obligation towards the contracting parties extends to all such persons as are likely to be injured by the acts or omissions of any of the parties. The obligation of the employer to secure the safety of the worker in the course of his employment must, therefore, by inference, extend to the third party who ought to have been had in contemplation by the parties.

The extensive nature of the employer’s duty will be appreciated if it is remembered that an employer may even be liable for the acts of a person who is not in his employment either because his employee has had his authority or consent to employ that person, or because some statute has placed the duty personally on the employer, or because the dangerous character of the operation imposes on the employer the implied duty to take care[10].

An employer’s liability to a person outside his business establishment for the act of his servant may arise from the criminal or tortious conduct of the servant or simply from contract. Ogundare, JSC, traced the origin and history of the principle of the employer’s liability “for any wrong, even if it is a criminal offence or a tortious act, committed by his servant while acting in the course of his employment,” citing the earliest cases, particularly the statement of Holt, CJ in Hern v. Nichols[11] wherein  the chief justice said:

“Seeing somebody must be a loser by this deceit, it is more reason that he that employs and puts a trust and confidence in the deceiver, should be loser than a stranger,”

He also added that the doctrine is based on master-servant relation. Now christened doctrine of vicarious liability, it is held to be “founded on public policy[12] or … on ‘social convenience and rough justice.”

But the liability of the master is not primary but only derivative. Thus, it is settled that an employer cannot be vicariously liable unless the liability of the servant is first established. But this does not mean that primary tort feasor must be joined in the suit; he need not be joined. All that the law requires is the need to establish first the liability of the servant before the employer can be made liable.

In Akubuilo’s Industrial labour law and law of Tort P.48, he noted that the relationship of master and servant usually exists when one person employs another to do work for him on terms that he, the servant, is to be subject to the control and direction of his employer in respect of the manner in which the work is to be done. The test is: does the employer control the way in which the work is to be done? If so the relationship of master and servant probably exists.

A master is liable for all the torts committed by his servant in the course of his employment.

Test: Was the servant engaged in substance of the task of doing what the master employed him to do?

Accordingly, if a servant performs his duties negligently, his master will be liable for the servant is merely doing in an improper way what he was employed to do properly. The case is the same if the servant does fraudulently what even if the fraud was entirely for the benefit of the servant. Moreover, even express prohibition by the master of the wrongful act is defence to the master if that act was merely a mode of doing what the servant was employed to do. The principle was later extended to the case where a similar rescue was affected by an ordinary onlooker Morgan v. Aylen (1942)-1 ALL ER 489).

Ball and Rose[13] have posited that the legal relationship between employer and employee and their mutual rights and liabilities on a multitude of issues affecting employment, will often be determined by reference to the express terms negotiated by the parties themselves.

 

1.8 DEFINITION OF TERMS

EMPLOYER: According to the Merriam Webster dictionary, an employer is any person who engages the services of another person, to provide with a job that pays wages or a salary. In Part IX of the EMPLOYEE’S COMPENSATION ACT (2010), which deals with the miscellaneous provisions of the act repealing the Workmen’s compensation Act Cap.W6 LFN, 2004. An employer includes any individual, body corporate, Federal, State, or Local Government or any of the government agencies who has entered into a contract of employment to employ any other person as an employee or apprentice;

EMPLOYEE: Whereas it suffices to say that an employee is any person who works for another person or for a company for wages or salary. Within the meaning of the Act, an employee means a person employed by an employer under oral or written contract of employment whether on a continuous, part-time, temporary apprenticeship or casual basis and includes a domestic servant who is not a member of the family of the employer including any person employed in the Federal, State, Local Governments, and any of the government agencies and in a formal and informal sectors of the economy;

LIABILITY: In law, liability means “responsible or answerable: Legally obligated”. Legal liability concerns both civil law and criminal law and can arise from various areas of law, such as contracts, torts, taxes, or fines given by government agencies. The claimant is the one who seeks to establish or prove liability. Claimants can prove liability through myriad of different theories, known as theories of liability. Which theories of liability are available in a given case depends on nature of the law in question. For example, in case involving a contractual dispute, one available theory of liability is breach of contract; or in the tort context, negligence, negligence per se, vicarious liability, strict liability, or intentional conduct are all valid theories of liability.

CONTRACT OF EMPLOYMENT: Section 7 of the Labour Act provides thus;

It is compulsory for every employer to give to the worker not later than 3 months after commencing work a written statement specifying the following:

1. Name of the employer.
2. Name and address of the worker and when he or she was employed.

iii. Nature of the employment.

1. The date when the contract is to expire if it is fixed or the period of notice to be given by the party wishing to terminate the contract.
2. Wages and manner of its payment.
3. Hours of work, holidays and holiday pay.

vii. Incapacity to work due to sickness and Provisions for sick pay.

viii. Any special conditions of the contract.

Therefore, contract of employment connotes the terms and conditions, rights and obligations which shall bind parties to any contract of employment.

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