CHAPTER ONE
INTRODUCTION
Background to the study
This research is on Liability of employer to employee in a contract of employment. This is important so that parties in the employment relationship can be informed of some of their obligations and follow it. One characteristics of the employment contract is that its terms sometimes avoid details of the duties to be performed by either of the parties (that is the employer and the employee). And this gives the employer the power to fix details of the performance of the work through further instructions to the employee Collins, Ewing and Mccolgan, (2012). As a result of this, the employment contract creates a power relation in which employer within limits direct the employee to obey lawful orders Collins, Ewing and Mccolgan, (2012). In this power relation, the parties will usually expect trust worthy conduct, fair treatment and good faith Collins, Ewing and Mccolgan, (2012). The following unique features of the employment contract: its incompleteness, its expectations of trustworthy conduct and surrounded by a relation of subordination makes it important for the relationship to be regulated beyond the rules of contract Collins, Ewing and Mccolgan, (2012). These regulations can be found in either legislations or subsequent agreements of the parties. The duties of parties in the employment relationship arise from the contract of employment between the employer and the employee. The duties are recognized and enforceable. A Contract of employment means 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 ( section 91 Labour Act 2004). At common law, an express contract of employment does not have to be in any special form, unless there is no consideration for the contract in which case a deed is required to make it enforceable. Therefore, a contract of employment may be wholly or partially in writing or completely oral. But there are exceptions: 1) Contracts made by and with corporations have to be made under seal whether the contract is executory or executed ( Nigeria Advertising Service Ltd. v Nigerian Broadcasting Corp 1968). But by virtue of S.71 of the Companies and Allied Matters Act, companies incorporated thereunder are placed on the same footing with individuals in respect to contracts. 2) Some statutes provide for the form of some types of contract of employments: i) S.4 of the Statute of Frauds; ii) S.5 of the Labour Act in respect of contracts of apprenticeship which have to be in writing; iii) S.59(4) of the Labour Act requires a written contract where a young person under 16 years is employed in circumstances in which it is not reasonably possible for him to return daily to his parents or guardian’s home; iv) S.22 of the Merchant Shipping Act requires that every seaman employed in a ship must have a written agreement in the prescribed form duly signed by the master and the seaman which must specify some terms of the contract; and v) S.7 of the Labour Act which requires an employer to give a written statement specifying certain terms of employment to the worker not later than three months after the beginning of his period of employment. But it should be noted that Section 7 does not require that the contract of employment has to be in writing initially. All that it requires is that notwithstanding how it was initially formed, whether orally or otherwise, written particulars must be given within the specified period.
Statement of the Problem
Despite the importance of job security to both employees and employers, neither the common law nor statutory enactments in Nigeria appear to adequately address the problem of unfair dismissal. The principles of common law, emphasizing equal bargaining power and the right of the employer to hire and fire at will, have, particularly in the private sector, dominated the subject of employment termination in Nigeria. Even in situations involving employment with statutory flavour, which have been hailed as affording more security, in reality, they emphasise procedural rather than substantive fairplay. Recent legislative developments including the Third Alteration and the National Industrial Court Act have new provisions which may be useful in addressing some of these issues, but to the extent that they stop short of specifically referring to unfair dismissals and prescribing direct solutions, these provisions need to be further investigated to ascertain their suitability and efficacy in addressing the problem. On their part, ILO standards which have evolved to deal with these issues need to be reviewed side-by-side with the recent legislative and judicial developments in Nigeria, and where Nigerian laws are yet to adequately address the problem, practices in other jurisdictions may need to be interrogated with a view to drawing useful lessons to be pragmatically applied consistently with local conditions and circumstances. To the extent that these issues are yet to be exhaustively interrogated in the literature, there is a yawning gap which is what this research aims to address.
Aims and Objectives
The aim of this study is to investigate on the Liability of employer to employee in a contract of employment: a case study of Bingham university.
The specific objectives are;
- To assess the extent to which the legal framework in Nigeria provides for job security
- To examine the duties of both employer and employee in the employment relationship
- To examine the Legal Duty Of Employers To Protect Employees From Workplace Injuries
Justification
Justification of the Research The research is very important because it addresses certain important issues. It envisages better understanding of the law on Liability of employer to employee in a contract of employment. It also discusses certain inadequacies in the law which writers have not addressed, with the view to proffering solutions to the problems. Therefore, law teachers, law students, Nigerian employees, judges, scholars and the general public will benefit immensely from the fruits of this research.
Research Methodology
The research methodology used is doctrinal and empirical. Doctrinal method of research means the type of research that theorizes with the aid of books, statutes and cases and thereafter makes findings and recommendations.18 This is based on relevant statutes, case laws, textbooks, newspapers, internet sources etc for good understanding of the scheme being appraised. Empirical method of this research on the other hand, involves the collection of facts and data through interviews. The research uses interview for the purpose of extracting certain information about the present Liability of employer to employee in a contract of employment
Operational Definition of Terms
Contract: This is an agreement or commitment between two or more parties intended to be enforceable by law.
Common Law :This is a part of the English Law derived from English customs and practices otherwise from statutes and legislation
International Best Practices: These are a set of guidelines, ethics or ideas that represent the most efficient or prudent course of action. They include labour rules and standards that govern how employees are treated in a work environment.
Job Security: This is a state where an employee’s reasonable and probable expectations of continued employment are being met. It is the legitimate interest an employee has in his job which affords him the opportunity to make projections about economic future of his family based on job expectations. It is the assurance or confidence an employee has that he is entitled to retain his job free of anxiety and fear of unfair dismissal.
Status: This is the totality of rights, obligations, powers and liabilities conferred or imposed upon an individual irrespective of his volition.
Termination: It is a process of bringing an employment relationship to an end. It connotes cessation of a contract of employment in accordance with the terms of the contract of employment.
Unfair Labour Practice: It means any labour practice or any change in labour practice in which an employee or class of employees may be unjustly affected, or any practice in which the business of any employer may be unjustly affected or disrupted.
