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Employer’s Liability To His Employee Under The Nigerian Contract Of Employment
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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.â€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?â€. 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.
[4]
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……â€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.
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ABSRACT - [ Total Page(s): 1 ]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 ... Continue reading---
