Determination of contract of employment and the issue of fair hearing under the 1999 constitution
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1.1 General Introduction
The effort in this chapter is not to appraise the law on determination of contract of employment generally, rather it is necessary to introduce this chapter by showing the law as it relates to determination of contract of employment generally. This we will do by looking at the meaning and nature of determination of contract of employee, types and ways of determining a contract of employment; before considering in detail the nature and basis of dismissal. To determine a contract of employment means to bring to an end a contractual relationship between an employee and an employer. Most writers have never bothered to define this generic term. This notwithstanding, it is my considered opinion that determination of contract of employment is an umbrella word, involving termination and dismissal. It means the act of bringing the existence of a contract of employment to an end. These two major branches of the term ‘determination’ have their own various ways through which they occur.
1.2 Aims and Objective of the Study
The researcher set out to showcase the sources of ILO standards on unfair dismissal, the bases of determination of contracts of employment in Nigeria. The work is to make a conceptual clarification of the law on termination and dismissal, wrongful and unlawful termination and dismissal, classification of contracts of employment. Study the International Labour Organisation standards on unfair dismissal of an employee viz-a-viz the practice of termination and dismissal of an employee at the will of the employer. Undertake an appraisal of ILO standards as well as unfair dismissal situations in Nigeria. Showcase solutions to the common law and constitutional impediments to the applicability of ILO standards on unfair dismissal in Nigeria. And finally to find out ways through which Nigeria can bring down the ILO Convention on termination of Employment No 158 of 1982 wherein the ILO standards on unfair dismissal are provided.
1.3 Statement of the Study
Issues bordering on determination of contract of employment take dominant position in labour and industrial relations. Unfair dismissal is one of the problems plaguing employees in developing countries like Nigeria. Unfair dismissal practices have put employees in Nigeria in a begger has no choice situation. Nigeria has remained under the common law determination at the will of employer.
Nigeria as a dualist state is under constitutional impediments which hinder Nigeria from embracing the International Labour Organisation standards on unfair dismissal. The attitude of the Nigerian Constitution on the application of International Labour Organisation standards on unfair dismissal in Nigeria is another major problem hindering from implementing the ILO standards on unfair dismissal. The role of the three arms of government on the application of ILO standards on unfair dismissal in Nigeria also leaves much to be desired. The step taken by the Legislature in Nigeria towards ensuring that international treaties and conventions are applied in Nigeria as provided in the Constitution of Federal Republic of Nigeria (Third Alteration) Act, 2010 is surrounded with controversy. These factors have made it difficult for Nigeria to apply the ILO Convention containing the ILO standards on unfair dismissal. None application of this ILO Convention containing the ILO standards on unfair dismissal accounts for Nigeria’s failure to achieve a policy of fair dismissal.
1.4 Research Methodology
The researchers adopt analytical comparison using statute books, case law, text books, journal articles (local and international), Internal materials, unpublished works, international instruments. The work is divided into five chapters.
1.5 Significance of the Study
The importance of this research work is in the fact that the research is an informed agitation through an academic work for Nigeria to embrace the modern law and practice of policy of fair dismissal. It shows by extent of conformity of about 55 countries that have embraced the Convention containing the ILO standards on unfair dismissal.
The work also undertakes a conceptual clarification of the terms ‘Termination and dismissal’ and the attendant consequences that attach to them. It clarifies the meaning of wrongful termination, unlawful termination, wrongful dismissal and unlawful dismissal and the remedies available to a victim of any of them. The researchers undertake an analysis of the ways through which the three Arms of Government of Nigeria saddled with the responsibility of ensuring that the Convention containing ILO standards on unfair dismissal becomes applicable in Nigeria without any impediments. The researcher made far-reaching recommendations that will enable Nigeria actualize the policy of fair dismissal.
1.6 Concept of Employment
Employment,establishes the boundary,between,the economic,zone of commercial relations, entrepreneurship, and competition, on the one hand, and the economic zone of labour protection, economic dependency, and regulation, on the other.
1.7 Who is an Employer/Employee?
The terms ‘employer’ and ‘employee’ are normally used interchangeably with ‘master’ and ‘servant’ respectively. Employee is also sometimes referred to as a worker or a workman. What this means is that different people, and different laws use any of the above words to describe one of the parties in a contract of employment who agrees to work for another as a worker. This also explain why different statutes define the terms ‘employer and employee’ in accordance with the circumstances of the legislation in question.
However, labour laws prefer employer and employee or worker. Who then is an employer and worker or employee? The answer to this poser can be rightly gleaned from the various labour laws. By section 91 of Labour Act, An employer means any person who has entered into a contract of employment to employ any other person as a worker either for himself or for the service of any other person and includes the agent, manager or factor of that first – mentioned person and the personal representatives of a deceased employer. The Employee’sCompensation Actdefines employer to include 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. The above definitions, it must be noted are for the purposes of the application of their respective Acts. The definition of employer in the Employee’s Compensation Act, appears to be more comprehensive as it lists the persons who are qualified as employers to include governments at all levels, departments and agencies of governments at all levels and by the opening word of the section, it means that so many persons and institutions not mentioned are also qualified to be employers once they enter into a contract of employment in any form. The labour Act defines a worker to mean:
Any person who has entered into or works under a contract with an employer whether the contract is for manual labour or clerical work, or is expressed or implied, or oral or written, and whether it is a contract of service or a contract to personally execute any work or labour.
The Employee’s Compensation Act prefers the word employee and defines employee thus:
Employee means a person employed by an employer under oral or written contract of employment whether on a continues, part-time, temporal, 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 and local Governments, and any of the government agencies and in the formal sectors of the economy.
This definition as all encompassing as it may look is meant for the purposes of the Employee’s Compensation Act which can be gleaned from the objective of the Act. Section 1 of the Actprovides thus:
The objectives of the Act are to:
(a) Provide for an open and fair system of guaranteed and adequate compensation for all employees or their dependents for any death, injury, disease or disability arising out or in the course of employment;
(b). Provide rehabilitation to employees with work related disabilities as provided in the Act;
(c). establish and maintain a solvent compensation fund managed in the interest of employees and employers;
(d). provide for a fair and adequate assessment for employers;
(e) Provide an appeal procedure that is simple, fair and accessible, with minimal delays, and
(f) combined efforts and resources of relevant stakeholders for the prevention of workplace disabilities including the enforcement of occupational safety and health standards.
A careful look at these objectives of the Employee’s Compensation Act will show why the Act gave an all encompassing definition of who falls under the definition of an employee to be entitled to the benefits of the Act. The judicial sanction of the opinion of the researchers is made manifest by the fact that the definition of the word employer or employee or worker in judicial authorities are merely judicial restatements of the provisions of the relevant labour law legislation in the light of facts and circumstances of a case at hand. In Shena Security Co. Ltd v Afropak (Nig.) Ltdthe Supreme Court of Nigeria stated as follows on the meaning of a worker:
‘A worker is defined by the labour Act, Cap 198 Laws of the Federation of Nigeria 1990 imparimaterial with Cap L1 LFN 2004 as any person who has entered into or works under a contract with an employer whether the contract is for manual labour or clerical work, or is expressed or implied, or oral or written and whether it is a contract of service or a contract personally to execute any worker labour. Such a contract is commonly referred to as a contract of service.’
There is a prevalent difficulty inherent in attaching a precise meaning to the terms. This is why different statutes try to obviate the problems by defining the terms for purposes of their provisions. It then means that the meaning of worker in the labour Act is purely for the purpose of the Act. Implicit in this, is that all rights and liabilities in the provisions of any Act can only accrue to a person who has qualified as a worker or employee in accordance with the provisions of the Act in question. It is pertinent at this juncture to note that, certain categories of employees are statutorily under the provisions of the labour Act as against other labour legislation. A careful insight into the provisions of labour Act aforesaid seems expedient. Section 91 (a-f) of labour Act provides that:
Worker means any person who has entered into… but does not include-
(a) any person employed otherwise than for the purposes of the employer’s business, or
(b) persons exercising administrative, executive, technical or professional functions as public officers or otherwise; or
(c) members of the employer’s family; or
(d) representatives, agents and commercial travelers in so far as their work is carried on outside the permanent work place of the employer’s establishment; or
(e) any person to whom articles or materials are given out to be made up, cleaned, washed, altered, ornamented, finished, repaired or adapted for sale in his own home or on other premises not under the control or management of the person who gave out the articles or the material; or
(f) Any person employed in a vessel or aircraft to which the law regulating merchant and shipping or civil aviation applies.
By the tenor of the above provision, certain persons are excluded from the operation of the Labour Act. Paragraph (a) of the section excludes domestic services which are necessarily incidental to effective performance of the work of an employee. The wisdom behind paragraph (b) of the section can be ascertained from the fact that these administrative, executive and technical officers in the public service may have different statutes regulating their employment while civil servants in the strict sense of the words have their employment regulated by civil service Rules.
One important point that is clear in the statutory exclusions is that those mentioned are outside the ambit of the provisions of the Labour Act. It is imperative here to point out that the Act cited above dispenses with the terms master and servant which have the privilege of being the only recognized and used terms that refer precisely to the employment relationship of contract of service as against contract for service where the servant is actually not a servant but the so called independent contractor. However, the Act still leaves untouched the scope of master and servant relationship and as well widens the scope.
1.8 Type of Employment
Generally, employments in Nigeria fall within three categories and they are;
- Employment which is governed by statute;
- Employment by written contract of employment;
- Employment at will or servant holding an office at pleasure of employer or Master and servant relationship.
a. Employment that is governed by statute
This is an employment with statutory flavour. An employment is said to have a statutory flavour when the appointment and termination is protected by statute or laid down regulations made to govern the procedure for employment of an employee. The rules and regulations are part of the terms and conditions of the employees’ employment which gives it statutory flavour. For an employee to effectively claim that his or her employment is coated with statutory flavour and be terminated according to its provisions, the employment must;
- have statutory reinforcement or at any rate, be regarded as mandatory,
- be within the meaning of the relevant statute and directly applicable to the employee or persons of his cadre,
- be seen to be protected under the statute; and
- have been breached in the course of determining the employment; before the employee can rely on same to challenge the validity of the termination of his or her employment.
b. Employment by written contract of employment
A contract of employment is defined in Section 91 of the Labour Act 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”.
An employer is defined to mean “any person who has entered into a contract of employment to employ any other person as a worker either for himself or for the service of any other person and includes the agent, manager or factory of the first mentioned person and the personnel representative of a deceased employer”.
In the same section, a worker is defined to be “any person who has entered into or work under a contract with an employer, whether is for manual labour or clerical work or is expressed or implied or oral or written and whether it is a contract or service or a contract personally to execute any work or labour…”
Section 3 of the Labour Act stated that an employer must give an employee a written contract within 3 months of the commencement of the employment. The contract must have certain key terms namely; name of employer and employee, nature of employment, duration, wages, termination etc. The provisions of the contract regulate the relationship between the employer and the employee.
c. Employment at will or servant holding an office at pleasure or Master and servant relationship
An employment at will is when the employee holds an office at the pleasure of the employer. As the name suggest, this is a form of employment held at the will and caprices of the employer. Unlike employment with statutory favour, the continuous engagement of the employee is at the discretion of the employer. For example, a Minister of the Federal Republic of Nigeria is employed by the President and therefore he or she holds that office at the pleasure of the President.
This also applies to the personal aides of the employer. One major disadvantage of this type of employment is that loyalty of the employees is usually to the employer not necessarily for the general wellbeing of the masses or the business. The employer has a wide discretionary to “hire and fire“.
1.9 Employer/Employee Responsibility
Employees have responsibilities towards their employers, even if they work part time or don’t have a written contract with their employers.
These are the main responsibilities of employees:
- to personally do the work they were hired to do
- to do their work carefully and seriously (In some cases, they could be fired or disciplined if they’re often late for work, or if they’re absent too often or for no good reason.)
- to avoid putting themselves or others in danger
- to follow their employer’s instructions (There are some exceptions. For example, if an employer asks an employee to do something dangerous or illegal, the employee doesn’t have to follow these instructions.
- to be loyal and honest
Employers’ Responsibilities towards Employees
These are the main ones:
- Employers must give their employees a place to work and make sure they have access to it. They must give them the tools, equipment and other things they need to do their work.
- Employers must pay their employees the salary and benefits they agreed to, including vacation, paid holidays and other types of holidays.
- Employers must make sure that working conditions protect their employees’ physical and psychological health and safety.
- In some cases, employers must give their employees written notice that their contracts are ending or that they are being laid off. Note that employers can pay employees a sum of money instead of giving the notice.
- Employers must treat their employees with respect. They must make sure their employees are not harassed or discriminated against.
- Employers must take steps when they know, or reasonably should know, that employees are exposed to domestic, family or sexual violence in the workplace. They must do this whether the employee is working in the office or working from home.
NOTE: If an employee signs a written contract with the employer, it might place more responsibilities on the employer than the ones required by law.
 Labour Act, op cit S. 91, Trade Unions Act Cap T14 LFN, 2004, S. 54, Employee Compensation Act, 2010 S. 72; Trade Dispute Act Cap T8 LFN 2004.
Op cit S. 72
Op cit S. 91
Op cit. .Note that before the enactment of the Employees Compensation Act, the Workmen Compensation Act used the term workman instead of employee.
Ibid. S. 1
Supra p. 82.
Ibid S. 91.
The Constitution of the Federal Republic of Nigeria 1999 (as amended).
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