Labour Law INTRODUCTION Definition and Importance of Labour

Labour Law INTRODUCTION

Definition and Importance of Labour Law Labour law is that branch of law which deals with the creation, regulation and formulation of a contract of employment between one person and another for the purpose of learning a trade or working for wages, whether or not the contract is to be executed independent of control, and determines all right and duties incidental to that relationship both under the common law and statute. The law which governs employment occupy a position of considerable importance in any modern society, this is because of the tremendous contribution which workers can make to national growth and development as well as the general well-being of the nation’s citizenry. Labour Law has two components- the individual employment relations, and the collective labour relations.

Sources of Labour Law The Constitution is the primary source of all other laws (section 1 of the Constitution of the Federal Republic of Nigeria (FRN) 1999) Chapter II of the Constitution of FRN 1999 provides broad policy guidelines that should engender decent and harmonious employment relations if closely followed in making laws and policies for the governance of the workplace. Section 16 (2) (d)of the Constitution of FRN 1999 provides that the State shall direct its policy towards ensuring inter alias reasonable living wage, pension and unemployment benefits. Section 17 (3) (a) – (f) of the Constitution of FRN 1999 provides for a number of rights which are relevant to Labour law. They are as follows:

Sources of Labour Law The Constitution a. all citizens without discrimination should be given the opportunity for securing adequate means of livelihood as well as adequate opportunity to secure suitable employments; b. the conditions of work should be just and humane, and that there adequate facilities for leisure social, religious and cultural life; c. the health, safety and welfare of all persons in employment are safeguarded and not endangered or abused; d. there adequate medical and health facilities for all person; e. there is equal pay for equal work without discrimination on account of sex, or on any other ground whatsoever; f. children, young person and the age are protected against any exploitation whatsoever, and against moral and material neglect. and

Sources of Labour Law The Constitution However, the rights contained in Chapter II of the Constitution of FRN 1999 are not justiciable. There are fundamental rights contained in Chapter IV of the Constitution which also protect employee, these rights are as follows: a. a right not to be required to perform a forced or compulsory labour (section 34 (1) Constitution of FRN 1999); b. The right to fair hearing (section 36 Constitution of FRN 1999); c. The right to associate freely and the right to form or join trade unions (section 40 Constitution of FRN 1999); d. Freedom from discrimination (section 42 Constitution of FRN 1999);

Sources of Labour Law Nigerian Legislation This is the next highest source of law and perhaps the most important in scope and application to employment and labour relations. Under the Constitution, labour, including trade unions, industrial relations, safety and welfare, industrial disputes inter alias fall within the exclusive legislative list (s. 4 (2) and Item 34 part 1 second schedule of the Constitution FRN 1999). Legislation on labour comprises of statute made by parliament or imposed by the military which are now deemed to be Acts of the National Assembly. They also include Statutes of General Application which were in forced in England on 1 st of January, 1900 (s. 32 Interpretation Act).

Sources of Labour Law Judicial Precedent (Case Law) Judicial decisions form a valuable source of Labour law. Judicial decisions encompass judgments of the regular courts and those of specialist labour court i. e. the National Industrial Court. It must be noted that case law cannot override express provisions of a statutes on a given subject. Case law becomes significant where there are lacunae in the statutes on a given subject. Judicial decisions include both the decisions of the Nigerian and English superior courts. However, the decision of English courts are only persuasive and not binding.

Sources of Labour Law International Law and Labour Standards The founding of the International Labour Organisation in 1919 can be said to be the beginning of the internationalization of labour standards. The aspect of Nigerian law that seeks to make international law enforceable in Nigeria is Section 12 of the Constitution FRN 1999. The Section provides for the domestication of an international treaty before such a treaty could be enforced in a Nigerian Court. However, the recent alteration to the Constitution of the FRN empowers the National Industrial Court to deal with treaties, whether domesticated or not (254 C (h) Constitution of FRN (Third Alteration) Act 2010).

Sources of Labour Law Collective Agreement Collective agreements provide another source of law. Section 254 C (J) Constitution of FRN (Third Alteration) Act 2010, empowers the National Industrial Court to determine any question as to the interpretation and application of any collective agreement. The interpretation given by the National Industrial Court becomes binding on the affected parties and thus becomes a source of law.

Sources of Labour Law Rules of Work The handbooks or other documentary record containing the terms and conditions of employment applicable in a workplace provide another source of law.

Sources of Labour Law Custom is another source of law, however the custom must be notorious, consistent, reasonable and certain (Devonald v. Rosser & Son (1906) 2 KB 728; Sagar v. Ridehalgh & Sons Ltd (1931) 1 Ch 310).

Distinguishing Between Contract of service and Contract for Services Employment may give rise to a number of different relationships. A person maybe employed as an employee or an independent contractor. In order for a relationship to fall within the purview of Labour law, it must first be shown that a relationship of master and servant exist between the parties (Smith v. General Motor Cab co (1911) A. C. 188). There are other reasons why it is necessary to make a distinction between an employee and an independent contractor, the reasons are as follows: a. To know when the common law implied duties inherent in a contract of employment will apply. b. The common law doctrine of vicarious liability only applies to an employer – employee relationship. c. To know the appropriate remedies that will apply in cases of breach of contract or other duties.

Distinguishing Between Contract of service and Contract for Services The Common features of an employer- employee relationship are: i. an obligation by the employer to employ a man; ii. an obligation by the employer to pay wages, iii. The employer’s right to control the services of the employee and the manner in which the employee performs those services; iv. The power of the employer to dismiss the employee if reasonable cause is shown; v. an obligation on the employee to obey the employer’s reasonable directions; vi. an obligation on the employee to present himself for work for the agreed hours (see the case of Denham v. midland Employers Mutual Assurance Ltd (1995) 2 QB 437, 446).

Distinguishing Between Contract of service and Contract for Services However, difficulties may arise in cases where some of these indices of the relationship are not present. Therefore the courts have put forward a number of tests which could be used in determining whether or not a particular relationship is that of an employeremployee relationship or otherwise. It should be noted that an employer- employee relationship falls under a contract of service, while an independent contractor relationship falls under a contract for service.

Distinguishing Between Contract of service and Contract for Services The Control Test This is the traditional and oldest test, it is based on the amount of control which a master exercises over the servant (Yewen v. Noakes (1880) 6 QBD 530). The servant is a person subject to the command of his master as to the manner in which he shall do his work (Gibb v. United Steel Co Ltd (1957) 1 WLR 668, at 670; Dola v. John (1973) 1 NMLR 58; Atedoghu v. Alade (1957) WNLR 184; Union Bank Nig. Ltd v. Ajagu (1990) 1 NWLR 328, 343). Control is an essential factor which distinguishes an employee from the independent contractor. An independent contractor is only told what to do and left to carry on in his own way in achieving the agreed result (Gould v. Minister of National insurance (1951) 1 KB 731).

Distinguishing Between Contract of service and Contract for Services The Organisational Test The search for a more realistic test led to the development of the second test known as the ‘organisation’ or ‘integration’ test. This test seeks to ascertain whether the workman is employed as part of the business, and his or her work is an integral part of the business, or whether it is only an accessory to it (Stevenson, Jordan and Harrison Ltd v. Macdonald Evans (1952) 1 TLR 101; Cassidy v. Ministry of Health (1951) KB 343; Lagos University Teaching Hospital v. Yemi Lawal (1982) 2 F. N. R).

Distinguishing Between Contract of service and Contract for Services The Multiple Test This test was laid down by Lord Thankerton in Short v. Henderson Ltd (1946) 62 T. L. R 427, 429; under this test, three more conditions have to be examined alongside the control test. These conditions are: a. the master’s power of selection of his servant; b. the payment of wages or other remuneration; and c. the master’s right of suspension or dismissal. The test was applied in Morren v. Swinton and Pendlebury Borough Council (1965) 2 ALL ER.

Distinguishing Between Contract of service and Contract for Services The Modern Approach The modern approach has been accepted as the final test that should be applied where the already discussed test has failed. Under this test, a contract of service is stated to exist when the following conditions are present: a. Agreement by one party in consideration of a wage or other remuneration to provide his own skill in the performance of some service for another person or master; b. The party who agrees to perform the work equally agrees expressly or impliedly to be under the control of the party in a sufficient degree as to make that party the master; and c. That other provisions in the contract should not be inconsistent with the fact that the contract is one of service (Ready Mixed Concrete Ltd. v Minister of Pensions and National Insurance (1960) 2 QB 497). Read the case of Shena Security Co. Ltd v. Afropak (Nig. ) Ltd (2008) 18 NWLR (Pt. 1118) 77

Contract of Employment. Capacity to Contract a. Infants The common law protects infants, i. e. , those under twenty one years of age, against disadvantageous contracts. However, as far as contracts of employment are concerned the common law position is that such contracts are, prima facie, binding on the infant (De Francesco v. Barnum (1890) 45 Ch. D. 430; In Doyle v. White City Stadium Ltd (1935) 1 KB 110). The fact that one or more of the terms of the contract are disadvantageous to the infant is not conclusive. The total benefits must be weighed against the onerous ones (De Francesco v. Barnum (supra) p. 439). Where the terms of the contract are usual ones in the type of employment, the infant cannot complain (Leslie v. Fitzepatrick (1877) 3 QBD 229, 232). Thus the fact that the same terms as applied to an adult employee are applied to an infant does not necessarily make the contract not binding (Young v. Hoffman Manufacturing Co Ltd (1907) 2 KB 646). In Nigeria, one of the major modifications to the common law rules is regarding the capacity of an infant to enter into a contract of employment.

Contract of Employment. Capacity to Contract The Labour Act provides that an infant under twelve years of age cannot be employed other than by a member of his family, and even then he may only be so employed on light agricultural, horticultural or domestic work approved by the minister of labour (see s. 59 (1) (a) Labour Act). Where the non-adult person is over twelve years, he must not be employed in underground work, or on a machine if he is under sixteen years of age (see s. 59 (5) Labour Act). A non-adult person whose apparent age exceeds sixteen years but is less than eighteen years is restricted to contract of employment in occupations approved by the minister of labour provided such employment is not injurious to the moral and physical development of the youth (see s. 59 (6) Labour Law). Section 59 (7) of the Labour Act enables a ‘parent or guardian of a young person’ under the age of sixteen years to terminate, by an oral or written notice, a Contract if the young person has been employed against the wishes of the parent or guardian. This provision is, however, inapplicable where the young person was employed under a written contract with the approval of an authorized labour officer.

Contract of Employment. Capacity to Contract There is a general prohibition on an infant under the age of fifteen years being employed or allowed to work in an industrial undertaking (see S. 59 (2) Labour Act), or on a vessel as a trimmer or stoker ( s. 61 Labour Act). Section 60 of the Labour Act, however, contains certain exceptions apparently to enable a young person to receive his education in a technical school or similar institution so long as the work done in such a school is approved and supervised by the Ministry of Education. With regard to working on a ship generally, section 61 (3) of the Labour Act provides that even where a young person is permitted to be so employed, he can only work on a vessel upon which only members of the same family are employed unless he is in possession of a certificate signed by a qualified medical practitioner to the effect that he is fit for such employment or work. The provision imposes a severe restriction on the right of a young person to work on a vessel in so far as it stipulates that ‘only persons of his family’ must be fellow-workers. The word ‘unless’apparently permissive in the context-has, however, removed the sting from the restriction and it is hoped that the first leg of the provision will not be critically applied.

Contract of Employment. Capacity to Contract Where an infant under the age of fourteen years is to be employed, the prospective employer should bear in mind that he cannot do so except ‘upon a daily wage and a day –to-day basis’, and only so long as the young person returns each night to his parent or guardian (see s. 59 (3) Labour Act). If the employment is such that the infant will not be able to return home each night, the contract must be in writing and subject to the approval of a labour officer (s. 59 (4) Labour Act). By virtue of section 58 (6) of the Act, the Minister of Labour is empowered to notify an employer ‘in writing…that the kind of work upon which a young person is employed is injurious to his health, dangerous, immoral or otherwise unsuitable’. If the employment is thereafter discontinued, the young person is entitled to be paid ‘such wages as he may have earned up to the date of such discontinuation’ (s. 50 (7) Labour Act) under the terms of the contract of employment.

Contract of Employment. Capacity to Contract b. Aliens Any person who is not a citizen of Nigeria is prohibited from accepting employment, except with the Federal or State government, without the written consent of the Director of Immigration (s. 8 (1) (a) Immigration Act). Any person desirous to enter into Nigeria for the purpose of employment must present the consent to an immigration officer. Failure to do so is an offence and on conviction, the offender would be liable to deportation as a prohibited immigrant (s. 8 (2) Immigration Act). If an alien was initially exempted from the requirement of the Immigration Act to obtain consent, the moment that exemption ceases, he is deemed to be a person seeking to enter into Nigeria for the first time and must comply with the immigration requirement (s. 8 (3) Immigration Act). Also where an employer wishes to employ an immigrant, he must first obtain the permission of the Director of Immigration (s. 34 (1) Immigration Act). Failure to comply with the provision of S. 34 is an offence and on summary conviction the offender is liable to fine not exceeding N 200 or imprisonment not exceeding 6 months or both (s. 48 (1) Immigration Act).

Contract of Employment Capacity to Contract c. Insane person A contract of employment entered into by a person who claims to be insane is nevertheless binding on him unless he can prove that he did not know what he was doing at the time he entered into the contract and further that the other party knew he was insane as to have been incapable to understand what he was doing. Such proof will render the contract voidable at the option of the insane person (Imperial Loan Co Ltd v. Stone (1892) QB 599). Also a contract entered into by an insane person who is ostensibly sane is not voidable by reason of unfairness unless such unfairness amounts to an equitable fraud which would have enabled the complaining party to avoid the contract even if he had been sane (Hart v. O. Connor (1985) 2 All ER 880).

Contract of Employment Capacity to Contract d. Women The Labour Act has lifted the general restrictions on the capacity of a woman to enter into employment imposed by the section 143 of the Labour Code Act 1946. Section 143 of the Labour Code Act 1946 stipulates that ‘a woman may only conclude a contract of employment…if such contract is for employment not involving departure from her usual place of residence if she is not employed in the same undertaking or in the same neighbourhood as her adult male relatives, or as a domestic servant’. The provision of Section 143 of the Labour Code Act 1946 was not replicated in the Labour Act, therefore it is no longer the law regulating the capacity of women. However, under the Labour Act, a woman can not enter into a contract to work underground in mines (s. 56 (1) Labour Act) and may generally not be employed to work at night in an industrial undertaking (s. 55 (1) Labour Act). But in both cases, the provisions with regard to night and underground work are made specifically in applicable to nurses or women holding managerial positions who do not ordinarily perform manual labour (s. 54 (5) Labour Act).

Contract of Employment Capacity to Contract Women who have to spend part of their period of training in the underground parts of mines or only enter there occasionally for purposes of non- manual occupation are also not affected by the restrictive provisions. The minister is also generally empowered to exempt women covered by a collective agreement permitting night work by women from the operation of the provisions.

Contract of Employment Legality of the Contract Any contract, including a contract of employment, which has any object which is contrary to a statute or the common law or even public policy is illegal and void (Chivers V. Davis of America (1971) 2 NCLR 89; Lavabre v. Excelsior Hotel Ltd (1967) LLR 141)).

Contract of Employment Formation of a contract of employment The basic requirement for the recognition of an employer- employee relationship is the existence of an enforceable contract of employment(Iyere v. Bendel Feed and Flour Mill Ltd (2008) 12 CLRN 1). A Contract is a voluntary agreement whereby a person undertakes for reward (consideration) to perform an act for another and its terms are as contemplated and admitted by the parties (Obimiami Brick & Stone Ltd v. African Continental Bank (1992) 3 NWLR (Pt. 229) 260 at 309). The contract of employment is a species of contracts and is therefore governed by the general principles of law of contract. Such a contract exists where there is offer, acceptance, consideration, capacity and intention to create legal relations.

Contract of Employment Formation of a contract of employment 1. Offer An offer is an expression of willingness to contract made with the intention (actual or apparent) that it shall become binding on the person making it as soon as it is accepted by the person to whom it is addressed. It may be made expressly or by conduct. It may be followed by a straight acceptance or a counter offer. A counter offer is a new offer. When an offer is made the general rule is that it must be firm, definite and unequivocal. An offer must be made directly by the offeror to the offeree or to his accredited agent (Ajayi – Obe v. Secretary Family Planning Council of Nigeria (1975) 1 All N. L. R 90). Every offer must be communicated before acceptance. It is settled law that an offer can only be treated as communicated after it had reached the offeree or his agent. A communicated offer may be revoked by the offeror before its acceptance. The revocation will be deemed to be effective from the time the notice of it is delivered to other party in person, to his agent or his premises (Re National Saving Bank Association (1867) L. R. 4 Eq. 9). No revocation can be effective once the offer has been accepted (Paul Wenegieme v. Roofco (Nig) Ltd (1976) 2 F. N. R. 244).

Contract of Employment Formation of a contract of employment 2. Acceptance A contract can only be said to exist when there is a valid acceptance by the offeree. Acceptance must be definite and unqualified expression of assent to the terms of an offer. Where the mode of acceptance is contained in the terms of the offer it must be strictly followed (Afolabi v. Polymera Industries Ltd (1867) 1 All N. L. R 144, 147). Where no mode of acceptance is stated then failure to communicate acceptance in writing will not vitiate the element of communication required by law (Ojuade v. Inspector- General of Police (1964) 2 All N. L. R. 75; Offiong v. African Development Corporation Ltd (1964) 2 All N. L. R. 45). When an offer has been accepted then an agreement in law has being constituted.

Contract of Employment Formation of a contract of employment c. Consideration in law of contract is the exchange of promises or exchange of promise for performance. In the law of employment the employer’s undertaking to pay wages at the end of, each month or week after the worker had rendered services before payment becomes due, is an obligation on the other party to perform his own side of the bargain (Southern Foundries Ltd v. Shirlaw (1940) A. C. 701, 722).

Contract of Employment Formation of a contract of employment Form of Contract Generally speaking, the law does not require a contract of employment to be in any specific form. However, two classes of contracts of employment must be in writing, they are: a. Contract of employment of seamen (s. 94 (1) Merchant Shipping Act). b. a contract of apprenticeship ( s. 50 Labour Act) Also a worker within the meaning of section 91 of the Labour Act is entitled by law to receive from his employer a written statement evidencing his contract of employment not later than three months after his employment (see s. 7 of the Labour Act). The statement does not constitute the contractual terms between the parties but merely provides very strong prima facie evidence of what those contract terms were.

Contract of Employment Formation of a contract of employment Types of Contracts of Employment Contracts of employment in Nigeria fall into two broad categories, namely, common law contract and statutory flavour contracts. Common law contract include unwritten and written contracts, as well as fixed-term contracts. Statutory contracts, on the other hand, cover civil service contracts and public service contract. The distinction between the two classes lies in the power of the employer to determine the contract and remedy available to an employee for wrongful or unlawful termination, as the case may be (Abukogba v. African Timber and Plywood Ltd (1966) 2 All NLR 87; Porter v. Nestle Products (Nig) Ltd (1968) NMLR 159; Ahuruonye v. University College Hospital (1959) WRNLR 232; Shitta Bey v. Federal Public Service Commission (1981) 1 S. C. 40; Olaniyan & ors v. University of Lagos & Anor (1985) 2 NWLR 599)). An employment is said to be a statutory contract if it is directly governed or regulated by a statute or a sections of the statute delegate powers to an authority or body to make regulations or conditions of service. The fundamental difference between a contract of employment governed by common law and that with statutory flavour lies in the procedure for termination. At common law, an employer can terminate an employment at will or without reason, while in the case of statutory employment it can only be for misconduct after observing due process.

Contract of Employment Contract Terms The regulation of the relationship between an employer and an employee derives from two primary sources, statutes and the contract of employment. Various labour law statute impose numerous duties and obligations on both parties to a contract of employment. A statutory provision can not be excluded by the terms of a contract of employment, except where and to the extent that a statute itself so permits. In any dispute as to the rights and obligations of the parties, the contract of employment must be pleaded (Morohunfola v. Kwara State College of Technology (1990) 4 NWLR 506). Without the contract and its particulars being pleaded by the plaintiff, no evidence of the terms of the contract which has been breached would be admissible since it lacks foundation. The terms of a contract of employment are either express or implied. Also collective agreements nowadays plays a very significant role in setting the terms and conditions of employment.

Contract of Employment Contract Terms a. Express Terms The express terms of a contract of employment are those terms which the parties themselves formulated before or at the time of concluding the contract. The contract may be oral, written, partly written and partly oral. The terms of the contract may be contained in documents issued to the employee before or at the time of the contract or where reference to it is made at such time. In Akpabot v. College of Education, Uyo, Court of Appeal Judgment 1985, p. 270, where the letter of appointment had attached to it a memorandum setting out the terms and conditions of appointment, the Court of Appeal held that the memorandum formed a part of the contract of employment. (See also the case of National Coal Board v. Galley (1958) 1 All ER 91). Where documents are given to employees after they have entered into the contract and even commenced work, the general rule is that the employer cannot unilaterally vary the terms of contract ( Cowey v. Liberian Operations Ltd (1966) 2 Lloyds Rep. 215). But if the employee continues work after receipt of such document, he will be held to be bound by its terms (Aduke Watkinson v. Pan American World Airways Inc. (1967) FNLR 100; Ajayi v. Texaco Nigeria Ltd (1987) 3 NWLR 577)

Contract of Employment Contract Terms b. Implied terms Terms or a term maybe implied into a contract of employment which would impose rights and obligations on the parties to the contract although they have not expressly provided for them. Terms may be implied by the provision of Statute (see s. 48 (2) Trade Dispute Act). Custom or practice may be implied into a contract of employment (Marshall v. English Electric co. Ltd (1945) 1 All ER 653). However, they must not only be notorious but must be known to the employee whose contract is in issue (Foxall v. International Land Credit Company (1867) 16 LT 637). Terms are also implied into a contract of employment as a matter of common law. There are various duties which the common law imposes on both the employer and the employee. There also terms implied in order to give effect to the presumed contractual intention of the parties (Reigate v. Union Manufacturing Co (Ramsbottom) Ltd (1918) 1 KB 592, 605).

Contract of Employment Contract Terms C. Collective Agreement Collective agreement constitute a very important source of the terms and conditions of employment. The terms which may be determined by collective agreements include matters such as pension, redundancy, medical care, transport and housing allowances, wages and salaries and many more. However, it seems paradoxical to state that the law does not regard a collective agreement as a contract between an employer or employer’s trade union and an employee trade union (Ford Motors co Ltd v. Amalgamated Union of Engineering and Foundry Worker (1969) 2 QB 303; Union Bank of Nigeria Ltd v. Edet (1993) 4 NWLR 288). Also the law does not allow an individual employee who is a member of the trade union which is a party to a collective agreement to enforce it.

Contract of Employment Contract Terms There are two ways by which collective agreements may be made legally binding. The first is where the Minister of Labour and Productivity specifies by an order that terms of the collective agreement or any part of them be made binding between the employer and employee (s. 2 Trade Dispute Act). The second is where the parties to the collective agreement have provided in the collective agreement, that the collective agreement shall be binding. Even where a collective agreement is binding, it can only be enforced by the employer or the employee trade union. An individual employee who is a member of the employee trade union may not enforce it, since he is not a party to it (Union Bank of Nigeria v. Edet (supra)). However, there a number of ways by which an individual employee may enforce a collective agreement, they are: 1. where there is an express provision in the contract of employment that the contract of employment will be governed by collective agreements entered from time to time. 2. Where the employer has made it binding by his conduct (Tomlison v. London Midland & Scottish Railway co (1944) 1 All ER 537; Rookes v. Barnard (1964) AC 1129). 3. By the law of agency. It has been submitted that union officials or representatives at collective bargaining act are agents and the ensuing collective agreement is regarded as between their principal and the other party.

Contract of Employment. Duties of the Employer and Employee Duties of Employee a. Duty to Obey The employee is obliged to obey all lawful and reasonable orders of his employer. “It has long been part of our law that a servant repudiates the contract of service if he willfully disobeys the lawful and reasonable orders of his master” (Per Karminshki J in Pepper v Webb (1969) 2 ALL ER 216, 218). However, the order must be within the scope of the contract of employment; otherwise, the employee is entitled to refuse such orders. For example, the employee may refuse orders of a ‘personal’ nature such as one regulating the length of his hair or his out of work activities (except this can be shown to be connected to the nature of the contract of employment. Also, an employee is not under an obligation to obey an order which is against any statute or even the common law.

Contract of Employment. Duties of the Employer and Employee an employee is not under any obligation to obey an order which will expose him to danger, either to his life or health. In Turner v Mason (1845) 13 M 8 W 112 Alderson B opined that there “may undoubtedly be cases justifying a willful disobedience of such an order; as where the servant apprehends danger to her life” Rolfe B added; ‘it is an unlawful order to direct a servant to continue where she is in danger of violence to her person, or of infectious disease”. In Palace Shipping Company Ltd v. Caine (1907) AC 386, seamen who were engaged for an ordinary commercial voyage of a peaceful nature were held justified in refusing to obey an order to proceed to a port at a risk to their lives. The employer may not order the employee to work elsewhere (O’Brien v. Associated fire Alarms Ltd (1969) I All ER 93) or that he should put in hours above the basic (Pengilly v. North Devon Farmers Ltd (1973) IRLR 41) except this is provided for in the contract of employment. In Price v. Mouat (1862) 11 C. B. 508, a lace dealer was dismissed for refusing to “card” (pack) lace, but the jury found the dismissal wrongful, the order not being within the scope of the contract.

Contract of Employment. Duties of the Employer and Employee An employee who unjustifiably refuses the employer’s order may be liable to summary dismissal (Nwobosi v. ACB Ltd (1995) 6 NWLR (Pt 404) 658; Turner v. Mason (1845) 14 M &W 112). b. Duty of care The employee owes a duty of care to the employer the duty is ambivalent – firstly, he is not to be negligent; and secondly, he is expected to possess and employ reasonable skill necessary for the discharge of his work (Harmer v. Cornelius (1858) 5 CBNS 236). The employer may regard failure in this duty as a breach of the contract of employment by the employee. An employee who holds himself out as practicing a particular trade or profession is expected to demonstrate such skill as is required of that calling (Janata v. Ahmed (1981) 1 CR 791, Usen v. Bank Of West Africa Ltd. (1965) 1 All NLR 244, Omotayo v. Ojikutu (1961) 1 All NLR 901). The employer may sue the employee for an indemnity where he is made to incur liability (for example by the rule of vicarious liability) on account of the employee’s breach of the duty of care ( Lister v. Romford Ice & Cold Storage Co. Ltd (1957) A. C 555). Alternatively, the employer may sue the employee in tort for a contribution (which in certain cases could amount to a complete indemnity) (see section 9 (2) Civil Liability (Miscellaneous Previsions) law 1961).

Contract of Employment. Duties of the Employer and Employee c. Duty to be ready and willing to work The employee has the duty to present himself at work pursuant to the contract of employment and to work at the direction of the employer. This is in return for the implied obligation of the employer to pay the agreed wages. Thus, if the employee absents himself from work without permission, this constitutes a breach of contract. Also, if the employee fails or refuses to do all his work, even if this is due to an industrial action, the employer may be entitled to withhold his salary for that period (S. 43 (1) Trade Dispute Act). In Miles v. Wakefield Metropolitan District Council (1987) A. C. 539).

Contract of Employment. Duties of the Employer and Employee d. Duty to take care of employer’s property The employee has the duty to take reasonable care of his employer’s property. In Superflux v. Plaisted (1958) The Times, 12 th Dec) the defendant had been in charge of a team of vacuum cleaner salesmen and had negligently allowed 14 cleaners to be stolen from his van. It was held that he was in breach his contract of employment. In such circumstances, an employee is a under an obligation to indemnify his employer for the loss sustained (Osakwe v. Nigerian Paper Mill Ltd (1998) 10 NWLR (pt. 568) 1).

Contract of Employment. Duties of the Employer and Employee e. Faithful service An employee is under a duty to serve his employer with good faith and fidelity (Robb v. Green (1895) 2 QB 315). Generally, the employee must not place himself in a position or situation capable of or actually endengering a conflict of interest with his employer (Maja v. Stucco (1968) NMLR 372 at 379). The duty of faithful service could be broken down into the following: (i) Not to act to the detriment of his employer: The employee is obliged not to do anything or fail to do anything, which will harm the interest of the employer; thus, the employee cannot take on any other job or work during his employer’s time. Even though he is entitled to spend his spare or free time as he likes, but this must not in any way harm or be detrimental to his employer. Also Employees who work in their spare time for a rival company of their employer were held to be in breach of faithful service on the ground that ‘If those employees continue to work for the defendant, they will put at the disposal of the defendants any confidential information which, in course of their work for the plaintiffs, they may obtain’ (Lord Greene M. R. in Hivac Ltd v. Park Royal Scientific Instruments Ltd (1946) ch. 169, 173).

Contract of Employment Duties of the Employer and Employee (ii). Not to make secret profit The employee is obliged not to accept any secret bribes or commissions or gifts, or any reward in respect of his work other than from his employer. Where he does, he is under a duty to disclose and account for it. However, tips are regarded as legitimate(Reading v. A. G. (1951) A. C. 507; Boston v. Deep Sea Fishing & Ice Co (1888) 39 Ch. D 339). (iii) Not to misuse confidential information There is implied in the contract of employment of every employee a term that he will not disclose the trade secrets and the confidential information of his employer (Robb v. Green (1895) 2 QB 315; Alperton Rubber v. Manning (1917) 85 LJ ch 377) As Lynskey J put it in the case of Bents Brewery v. Hogan (1945) 2 All ER 570, 576, “it is quite clear that an employee is under an obligation to his employers not to disclose confidential information obtained by him in the course of and as result of his employment. ” The duty not to disclose an employer’s trade secret or confidential information continues even after the employment has ceased. In Alperton Rubber v. Manning 1917 86 LJ ch. 377, Peterson J said, “it is, to my mind, equally clear that it is a dishonest act on the part of a person in a confidential position, who, by virtue of the trust which is reposed in him, becomes acquainted with his employers’ secret formulae, , to disclose them either during or after his employment. Such conduct is a breach of trust or confidence, and is, in view, a breach of the implied provisions in all contracts of service that the employee will observe the rules of honesty”.

Contract of Employment Duties of the Employer and Employee Where the employee or ex-employee is found to be misusing confidential information the question is what remedies are available to the employer? If the employee is still in employment, this could be a good ground for dismissal (Smith v. Du. Pont (UK) Ltd (1976) IRLR 107). If no longer in employment the employer could seek for an injunction to restrain the ex-employee from passing on the information. Where the ex-employee is wrongfully using the information, damages could lie against him for breach of this implied duty (Sanders v. Parry (1967) 2 All E. R. 803). Where the information is passed on to a third party, the employer is entitled to an injunction restraining the third party from using the information and where it has been used, an action could be brought against the third party for an injunction or damages, an order for account of profits, and delivery up or destruction of the material in question (Seager v. Copydex Ltd (No 2) (1969) 2 All E. R. 718, Peter Pan Manufacturing Corporation v. Corsets Silhouette Ltd (1963) 3 All E. R. 402).

Contract of Employment Duties of the Employer and Employee An exception to the duty arises where the disclosure by the employee or ex-employee is in the public interest. Public interest here, however, transcends the commission of crime or fraud. In effect, disclosure of confidential information is authorized where it in the interest of the public (Initial Services Ltd v. Putterill (1968) 1 Q. B. 396, Frazer v. Evans (1969) 1 Q B 349). (iv). Employee’s new discoveries The employee is obliged to disclose to the employer new discoveries he makes, relevant to his work. Also, the employer is entitled to the benefit of such inventions, where the discovery was facilitated by the employee’s work, while in the employer’s service (British Siphon Co Ltd v. Home Wood (1956) 2 All E. R. 897; British Reinforced Concrete Engineering Co v. Bind (1917) 86 L. J. ch 486). However, this is subject to any express provision to the contrary in the contract of employment. Statutory provisions has also affected the common law position stated above (see the Patents and Designs Act, Cap. P 2 LFN 2004). Where an invention has been made by a person employed by another person or in the execution of a contract for performance of a specified type of work, the right to a patent over such an invention will be vested in the employer or the person that commissioned the inventor to produce the work (S. 2(4) Patents and Design Act). However, the right of the employer or the person that commissioned the production of a specified work to be granted a patent is not absolute.

Contract of Employment Duties of the Employer and Employee Where the employee, by the nature of his employment, is not required to undertake inventive activities but has utilized the facilities or data provided by his employer, or where the invention is considered to be of exceptional importance, the inventor is entitled to fair remuneration, taking into cognizance his salary and the importance of the invention (see s. 2(4) (a) Patents and Designs Act). Under the Patents and Design Act (PDA), this right to remuneration cannot be modified by contract between the inventor and his employer and the inventor is entitled to approach the court to enforce his right, where necessary (Section 2 (4) (b) Patents and Design Act).

Contract of Employment Duties of the Employer and Employee DUTIES OF THE EMPLOYER a. Duty to pay wages There is no doubt that the wages or salary which an employer is obliged to pay will normally be the subject matter of an express term of the contract. Indeed, where an agreement for employment leaves out the matter of payment there might arise the question whethere is a contract of employment. However, at common law, a contract may be implied from conduct of the parties. Where one party does work on the order of another under such circumstances as that it must be presumed that he looks to be paid as a matter of right then a contract would be implied (Parke B in Higgins v. Hopkins (1848) 3 Exch 163, 166). A term to pay will be implied in the circumstances which clearly indicate that the employment was not to be gratuitous (per Lord Atkin in Way v. Latilla (1937) 3 All ER 759, 763). Where there is an implied contract or term of a contract to pay, payment is quantum meruit (Bryant v. Flight (1839) 5 M & W 114). In certain circumstances nothing less than the national minimum wage may be payable

Contract of Employment Duties of the Employer and Employee An employee who takes part in a strike is not legally entitled to any wages or salary or any other remuneration for the period of the strike but, where there is a lock-out by an employer, the employees are entitled to be paid their wages or salary for the period of the lock out (see Section 43 Trade Dispute Act). Failure to pay the remuneration constitutes a breach of contract by the employer. According to section 15 of the Labour Act, wages shall be come due and payable at the end of each period for which the contract is expressed to subsist, that is to say, daily, weekly or at other period as may be agreed upon; provided that, where the period is more than one month, the wage become due and payable at intervals not exceeding one month. There may be occasions when the employee presents himself for work, but the employer could not provide him with work to do, either due to a fault of the employer or by circumstances beyond his control. In such cases, the general rule at common law is that the employee is due for his wages, particularly (though not limited to) where he is a “staff” (Miller v. Hamworthy Engineering Ltd (1986) IRLR 461, Devonald v Rossser & Sons (1960) 2 KB. 728).

Contract of Employment Duties of the Employer and Employee However, the common law rule can be varied by an express or implied term to the contrary. In Hulme v. Ferranti Ltd (1918) 2 K. B 426, the plaintiff was employed on terms that if there was no work, he would not be paid. He was laid off as a result of a strike involving other workers in the plant and the court held that he was not entitled to be paid during that time. In cases of sickness preventing the employee from coming to work, the judicial opinion is that there is in law, no presumption that sick pay is payable. Thus if there is no express provision, a court or tribunal must look at all the facts of the case to determine the correct inference (Mears v. Safecar Security Ltd (1982) 2 All ER 865, Petric v. Macfisheries Ltd (1940) I KB. 258). However section 16 of the Labour Act has made certain worker entitled to sick pay in certain circumstances.

Contract of Employment Duties of the Employer and Employee b. Duty to provide work This duty may more accurately be expressed in the negative. Generally, an employer is not under a duty to provide work for his employees to do: he fulfils his duty by paying wages (Turner v. Sawdon & Co (1901) 2 K B 653; Collier v Sunday Referee Publishing Co (1940) 2 KB 647, 650). Thus an employee can not complain of breach of contract where an employer keeps him idle but pays him the agreed wages or salary. At common law there are exceptions to this general rule. In certain contracts of employment the mere payment of wages or salary will not discharge the employer of his duty under the contract; he must provide work. There are three categories of such contracts where the employer must provide work, they are: a. In the contract of employment of actors and actress the need to gain publicity and enhance reputation requires that work be provided (Clayton v. Oliver (1930) Ac 209).

Contract of Employment Duties of the Employer and Employee b. In contracts of employment in which the work done is necessary and essential for the determination of wages payable, the employer is obliged to provide work. These include a contract of employment on a piece – rate or commission basis (see Devonald v Rosser & Son (1906) 2 KB 728, Rubel Bronze & Metal Co Ltd (1918) 1 KB 315; Bauman v. Hilton Press Ltd (1952) 2 All ER 11 21). c. At common law an apprentice must also be provided with in order that he may be able to learn his trade and acquire the necessary skills. work to do

Contract of Employment Duties of the Employer and Employee c. Testimonial or reference This duty may also more correctly be stated in the negative. There is no legal duty on an employer to provide an employee with a testimonial of character or to answer questions from interested parties concerning an employee’s character (see Carrol v. Bird (1801) 3 Esp. 201). However, nothing precludes an employer from doing so, and in practice many employers give references and testimonials. But an employer who opts to give a reference may be exposed to any three possible actions for damages. 1. An action for deceit will lie where an employer makes a statement or representation which he knows to be false or which he makes recklessly not caring whether or not it is true and from which loss has resulted to the party to whom it was made and who acted upon it as was intended (Foster v. Charles (1830) 7 Bing 105). 2. After the House of Lord’s decision in Hedley Byrne 8 Co Ltd v Heller & Partners Ltd (1964) AC 465, it has become possible for an action for negligent mis-statement which causes or results in financial loss to lie (see also Mutual Life & Citizens Assurance Co Ltd (1971) AC 793). 3. An action for defamation lies against an employer where he makes a statement to another which employee to ridicule or contempt by reasonable persons to makes such persons shun him. statement holds an

Contract of Employment Duties of the Employer and Employee d. Duty to indemnify employee The employer is obliged to indemnify the employee against expenses or losses necessarily incurred in the course of his employment, perhaps, this may not be so where the fault was purely that of the employee and only collateral to the performance of his duties (Burrows v. Rhodes (1899) I Q. B. 816, Gregory v. Ford (1951) I All ER 121). e. Duty to treat employees with respect, trust and confidence This duty is a newly developed concept in the relationship between the employer and the employee. Under it, the parties are required to treat each other with such a degree of consideration and tolerance as would allow the contract to be executed. In other words, the employer is obliged to treat the employee with respect and not to act in a manner likely to destroy or seriously damage the relationship of trust and confidence between them (see Courtaulds Northern Textiles Ltd v. Andrew (1979) IRLR 84; Woods v. W. M. Car Services Ltd (1981) IRLR 347 Bliss v South East Thames Regional Health Authority (1985) IRLR 308; Lewis v. Motor World Garages Ltd (1985) IRLR 465). Where there is a breach of this duty, damages are to be assessed on the basis of the actual loss suffered, and it is not permissible to make an award of general damages for frustration, mental distress, injured feelings or annoyance caused by the breach.

Contract of Employment Duties of the Employer and Employee f. Duty of care Arguably, the most important of the employer's duties is to take reasonable care to ensure the safety of his employees. In SCC (Nig. ) Ltd. & Anor. v. Anya (2012) 9 NWLR (Pt. 1305) 213, the Court held that every employer has the management responsibility to provide for his employee(s) a safe and conducive work place, free of hazards which include sexual harassment. The standard of care is stated in Paris v. Stepney Borough Council (1951) A. C. 367 to be: "the care which an ordinary prudent employer would take in all the circumstances". The employer does not guarantee that an employee will not be injured; he only undertakes to take reasonable care, and he will only be liable if there is some lack of care on his part in failing to prevent something which was reasonably foreseeable. “Reasonable foreseeability" serves to demarcate both the scope of the duty and liability for harm resulting from breach of that duty (Vinnyey v. Star Paper Mills (1965) I AII E. R. 175; Lazarus v. Firestone Type & Rubber Co. Ltd. (1963) Times, 2 May). If an employer does not know of the danger and could not be expected to know in the light of current knowledge, or did not foresee and could not be expected to foresee the danger, he will not be liable

Contract of Employment Duties of the Employer and Employee However, once the risk is discovered, an employer must take necessary precautions against it. This duty was summarized in Stokes v. GKN Ltd. (1968) I WLR 1776 as follows: (a) The employer must take positive steps to ensure the safety of his employees in the light of the knowledge which he has or ought to have. (b) The employer is entitled to follow current recognized practice unless in the light of common sense or new knowledge this is clearly unsound. (c) Where there is developing knowledge, he must keep reasonably abreast of it, and not be too slow in applying it. (d) If he has greater than average knowledge of the risk, he must take more than average precautions. (e) He must weigh up the risk (in terms of likelihood of injury and possible consequences) against the effectiveness of the precautions needed to meet the risk, and the cost and inconvenience.

Contract of Employment Duties of the Employer and Employee The duty of care is a personal one; the employer is not absolved of liability by delegating it to someone else. In Wilsons & Clyde Coal Co. v. Englizh (1938) A. C 57 the employer was compelled by law to employ a colliery agent who was responsible for mine safety. Yet, it was held that the employer was liable for an unsafe system of work in the mine. Also, he owes the duty to each employee individually and not collectively. So, the employer must take each employee as he finds him. In Paris v. Stepney Borough Council’s" (1951) AC 367, the employee who had one eye got blinded in the course of his work. Held, that though not customary to provide goggles for this kind of work, the employers should have foreseen there was a risk of greater injury to this employee and thus provided him with goggles. They were held liable for the resultant injury. Thus, particular attention must be paid to the peculiar disabilities or disadvantage of each employee; e. g. where he cannot read the language in which work instructions were written (James v. Hepworth and Grandage Ltd. (1968) 1 QB. 94; Hawkins v. Ian Ross (Castings) Ltd. (1970) I All E. R. 180).

Contract of Employment Duties of the Employer and Employee Nature of the Duty of Care a. Safe plants and appliances: - This means that all the equipment, tools, machinery, plant, etc. where the employee works shall be reasonably safe for work. In Bradford v. Robinson Rentals Ltd. (1967) a driver was required to drive an unheated van on a 400 -mile journey during a bitterly cold spell of weather. Held, that the employer was liable when the driver suffered frost-bite as a consequence. " Under the common law, where an employer purchased tools or equipment from a reputable supplier, and has no knowledge of any defect in them, he may not be regarded as being in breach of his duty of care (Davie v. New Merton Board Mills (1959) A. C. 604). The outcome may be different if the equipment was bought 2 nd -hand, for instance, from a junk yard. However, if the employer is aware that there are defects in the tools or equipment bought, he should withdraw them from circulation, to avoid liability (Taylor v. Rover Car Co. (1966) 2 All E. R. 181).

Contract of Employment Duties of the Employer and Employee (b) Safe system of work: - The method of carrying out the work and the manner in which the work is to be done must be considered safe. It is the duty of the employer, as much as possible, to draw attention of the employees to safety precautions laid down, provide adequate supervision and if necessary ensure strict compliance with the safety precautions, particularly where the risk of injury is high (Finch v. Telegraph Construction & Maintenance Co. (1949) 1 All E. R. 452; Nolan v. Dental Manufacturing Co. (1958) 2 All E. R. 449). Thus, where the employer gives proper instructions which the employee fails to observe, the employer may escape liability for a subsequent injury (Charlton v. Forrest Printing Ink Co. Ltd. (1980) IRLR 331). (c) Reasonably competent fellow employees: - By this, the employer may have to get rid of an employee constituting a danger to himself as well as to others; for example, a practical joker (Hudson v. Ridge Manufacturing Co. (1957) 2 Q. B. 348).

Contract of Employment Duties of the Employer and Employee Defences to actions for the breach of the duty of care (a) Denial of Negligence: - This is to the effect that he had taken all reasonable care or done all that a reasonable employer would have done in the circumstances (Latmer v. AEC Ltd. (1953) A. C. 643; Brown v. Rolls Royce Ltd. (1960) 1 All E. R. 577). (b) Injury was the sole fault of the employee: - In this case, the employer will not be liable. In Jones v. Lionite Specialities Ltd. (1961) 105 Sol. J 0. 1082, a foreman was addicted to a chemical vapour from a tank. One weekend, he was found dead inside a boiler house, having been overcome by the fumes. He had no reason to be there, and his employers had no reason to suspect his presence. Held the employers were not liable. (c) Contributory negligence: - The employer argues that though he was negligent, so also was the injured employee and a reduction in the amount of damages awarded will be the result; that is, damages shall be reduced to the extent the court thinks fit, having regard to the claimant’s share in the responsibility for the damage.

TERMINATION OF EMPLOYMENT A contract of employment is like any other contract thus the mode of determining or terminating it is governed, primarily by the terms of the contract itself and secondly by the operation of law, both statutory and case law. In Southern Foundries Ltd v. Shirlaw (1940) Ac 701, lord Atkin opined: “the contract relations cannot be determined unless by events stipulated for in the contract, by operation of law, or by the will of the parties” At common law such an employment may be brought to an end by performance, agreement of the parties, frustration, the giving of notice or summary dismissal.

TERMINATION OF EMPLOYMENT 1. Performance Where, under the terms of a contract, an employee is employed to perform a specified duty of indeterminate duration, then it will be taken that the contract of service expires at the completion of the specific task. If the obligation under the contract is expressed to be time – bound – the expiry of the term fixed terminates it. It should be noted that even where the contract is not of a fixed duration, the parties can terminate it by mutual agreement which may correspond with the terms of the contract or may serve as a variation of same. 2. Frustration The personal nature of employment contracts means that they are particularly susceptible to termination by frustration. Frustrating circumstances are those occurrences beyond the control of either party- circumstances which make further performance either impossible or fundamentally different from what the parties had assumed under the contract. They include an outbreak of war, subsequent change in the law, death of either party (see Farrow v. Wilson (1869) LR CP 744) or sickness.

TERMINATION OF EMPLOYMENT Sickness does not immediately frustrate the contract in Cuckson v. Stones (1858) IE 8 E 248, the plaintiff was employed as a brewer for a term of years. Some years after commencing employment he fell ill and when he recovered and resumed work the employer refused to pay him for the period of the illness. He brought an action to recover the wages and the court held he could recover, Lord Campbell CJ observed in that case that “he could not be considered incompetent by illness of a temporary nature; but, if he had been struck with disease so that he could never be expected to return to his work, we think the defendant ought to have dismissed him and employed another brewer in his stead’. Illness may, however, bring a contract of employment to an end by frustration. Whether a contract is frustrated by illness is a question of fact of each case. The question to ask is; is the employee’s incapacity, brought about by illness or injury, of such a nature, or did it appear likely to continue for such a period, that further performance of his obligation in the future would either be impossible or would be a thing radically different from that undertaken by him and agreed to be accepted by the employer under the agreed terms of his employment (see Marshall v. Harland & Wolf (1972) 2 All ER 715)

TERMINATION OF EMPLOYMENT Also the outbreak of war is a frustrating event. In Brown v. Haco Ltd (1970) 2 All NLR 47, the plaintiff was cut off from his employer from June 1967 to September 1968 by the civil war. By the time he found his way from Biafran sector to the Nigerian side, it was held that the contract had been frustrated. The effect of imprisonment on the contract of employment is not certain. In Hare v. Murphy Brothers Ltd (1974) 3 All E. R 940, the court held that imprisonment of an employee frustrated his contract of employment. However in the case of London Transport v. Clarke (1981) I CR 177, the same court said that imprisonment could not bring about frustration since frustration can only be brought about where the supervening event is not the fault or default of either party to the contract. The court held that imprisonment of an employee is a repudiatory act of the employee. Imprisonment brought about by the employee’s wrong doing can then be described as self – induced frustration on the one hand, on the other hand, it may be more a case of a repudiatory conduct, which gives the employer an option to accept or waive the repudiation (see Morris v. Southampton City Council (1982) I CR 177 at 179).

TERMINATION OF EMPLOYMENT However, in F. C. Shepherd & Co Ltd v. Jerrom (1986) 3 All ER 589, Mustill L. J observed that in the case of imprisonment, the party not in default can rely on frustration brought about by the act or default of the other party. As he said he is disentitled to treat himself as discharged if the frustrating event is self induced, but this will not affect the position of the other party, for whom the event is not self – induced. 3. Agreement The parties to an employment contract can, at any time, by mutual agreement, either in accordance with the terms of the contract or otherwise, bring the employment to an end. And this is true whether the contract is of a definite or an indefinite duration.

TERMINATION OF EMPLOYMENT TERMINATION BY NOTICE A contract of employment may be terminated by notice by either party in accordance with the forms of the contract unless the contract is determined by operation of law or by effluxion of time. Section 11 (1) of the Labour Act provides for termination by notice. It provides that where the contract of employment has existed for not more than three month, then the contract is terminable by one day notice. Where the contract is has continued for three months but is less than two years, the contract is terminable by one week notice. Where the contract is two years but less than five years than the parties can only terminate it by a two weeks notice. However any contract which has continued for five years or more may be terminated by a one month notice. Apart from the provision of the above statute, the right to bring a contract of employment to an end by notice is also a common law right (De Stempel v. Dun Kels (1838) I All ER 238). Under common law, where the contract of employment provides expressly for the length of notice which may be given to terminate it that length of notice will be regarded as reasonable notice (Chiozie V. United Africa Company Ltd (1956) I ERLR 28). In Maiza v. Taylor Woodrow of Nigeria Ltd CCHCJ/12/72 page 52, although the employee had been with the employers for about twenty years, his employment was held to have been validly terminated when he was given one month’s notice as provided in his contract.

TERMINATION OF EMPLOYMENT TERMINATION BY NOTICE Where a contract of employment is silent as to the length of notice required to terminate it the principle of law is that reasonable notice is required. The sole question is, in such cases, what is reasonable notice? This is a question of fact and the answer depended on the circumstances of each case. All the circumstances of the case, such as the type of employment, the intervals at which the remuneration is stated, have to be considered. Previous decisions can only be used as a guide as each case depends on its own circumstances (Honika Sawmill (Nig) Ltd V. Hoff (1992) 4 NWLR 673). By notice it is meant the “formal information” by one party to the other that the contract is to be brought to an end at a specified date. The legal consequence of giving notice of termination or retirement by or to an employee is that the worker remains in service until the expiration of the notice (Rufus Femi Amokeodo v I G P, (1888) 6 NWLR (Pt 607) 467).

TERMINATION OF EMPLOYMENT TERMINATION BY NOTICE It follows that the worker can be disciplined or dismissed summarily during the period of notice. Notice must be specific and unequivocal from decided employment law cases, it is clear that as a matter of law, an employer cannot effectively dismiss his employee by saying- “I intend to dispense with your services at some time in the coming months. ” In order to terminate a contract of employment, the notice must either specify the date or contain material details from which the date is positively ascertainable (see the case of Morton Sundour Fabrics Ltd V Shaw (1967) 2 1 TR 84 In Honica Sawmill (Nig) Ltd V. Hoff (1992) 4 NWLR Pt 238, p. 673 at 675, the Court of Appeal (Benin Division) held that the dismissal of an employee or termination of his employment must be expressed in clear terms or capable of being inferred from the conduct of the employer. Where a contract provides for notice of a specified period, the required length and form of notice must be scrupulously complied with. In Adeniran A. Adeyemo v. Oyo State Public Service Commission (1879) I F. N. R 28, where the contract provided for a notice of one month, it was held that the employer could not terminate the contract on a 30 days notice effective 9 April 1978.

TERMINATION OF EMPLOYMENT TERMINATION BY NOTICE It is important to note that time begins to run when the notice is served on the other party (Clark v. Coronel Ltd (1972) I T. R. 208). If the notice intended to be a month’s notice is written or served other than on the first day of the month, it may not be effective, unless extended in terms of its expiration to the end of the following month (Oyekoya V. G. B. Ollivant (Nig) Ltd (1969) I All N. L. R. 80). The contract must be taken as determined when the purported notice expires or payment is made or accepted in lieu of the notice (Dixon V. Stenor (1973) IRLR 28). Once notice has been given could it be with drawn without the consent of the other party? However, in Brindle v. H. W. Smith (Cabinets) Ltd (1972) IRLR 125, the English Court of Appeal held that such notice does not becomes effective until the day of its expiration, or when the employee stops coming to work. It would also seem that it could be with dawn before it expires, provided it has not been accepted by the other party. In terminating employment by notice the law does not require that any reason or reasons for doing so be stated- (see Gilbert Grunitzky v. ITT (Nig) Ltd (1981) 2 PLR 25; Ajayi v. Texaco Nigeria Ltd (1987) 3 NWLR 577, 593).

TERMINATION OF EMPLOYMENT TERMINATION BY NOTICE Notice of termination given to an agent is regarded as validly received on behalf the principal, provided the relationship of principal and agent still subsist (Morris v. Bailey Ltd (1969) 2 Lloyd’s Rep 215). However, such notice given to a third party is regarded as invalid. In Morris v. Bailey (Supra), notice of termination given to the plaintiffs union but not to him personally was held not effective to dismiss him. PAYMENT IN LIEU OF NOTICE It seems quite settled that any employment may be brought to an immediate end by the payment of wages or salary in lieu of the requisite notice which would normally be worked out ( S 11 (6) Labour Act. Porter v. Nestle Productions (Nig) Ltd (1968) NMLR 459, Salako v. Foremost Daniel (Nig) Ltd (CHCJ 16/74 P 719).

TERMINATION OF EMPLOYMENT TERMINATION BY NOTICE Where termination is by payment in lieu of notice such payment must actually be made at the time of the termination (Chukwumah v. Shell Petroleum Development Company of Nigeria Ltd (1993) 5 KLR 83 (1993) 4 Pt 289 512). Where payment was made three months after a letter of termination was given to an employee the Supreme Court held that the termination was wrongful. The only effect of this is probably, that the date of the wrongful termination is altered (Chukwumah v. Shell Petroleum Development Company of Nigeria Ltd (Supra)). S 11 (9) Labour Act provides that in the calculation of payment in lieu of notice, only that part of the wages which a worker receives in money exclusive of overtime and other allowances shall be taken into account.

TERMINATION OF EMPLOYMENT SUMMARY DISMISSAL Summary dismissal is the common law right of the employer to terminate the contract of service of an employee without notice or payment in lieu of notice on account of gross misconduct on the part of the employee which strikes at the root of the contract. Section 11 (5) of the Labour Act also preserves the right to summary dismissal in the contract of employment with workers. In UBN Ltd V Ogboh (1995) 2 NWLR Pt 380, 647, at 653, the Supreme Court defined gross misconducts as “conduct of a grave and weight character as to undermine the confidence which should exist between the employee and his employer or working against the deep interest of the employer” The conducts which may amount to gross misconduct are a matter of fact. However, it is customary practice in this country to list representative samples of such acts of misconduct in the Employees hand book or staff manual which also forms part of the conditions of service. Other novel acts of misbehavior may also be brought within the definition of acts of gross misconduct justifying summary dismissal.

TERMINATION OF EMPLOYMENT SUMMARY DISMISSAL According to Aniagolu JSC in Ajayi v. Texaco Nigeria Ltd (1987) 3 NWLR 62: “There is no fixed rule of law defining the degree of misconduct which would justify dismissal. It is enough that the conduct of the servant is of a grave and weighty character as to undermine the confidences which would exist between him and the master. ” From long standing practice among employers and judging by the general pattern that had emerged from established practice, the following representative acts of misconduct can be considered. As has been stated here before, this list is by no means exhaustive: (i) INFIDELITY The making of secret profit or profiting from the employer’s business through an act of infidelity (Maja v. Stacco (1968) All NLR 141).

TERMINATION OF EMPLOYMENT SUMMARY DISMISSAL (ii) CORRUPTION AND TAKING OF BRIBE/ KICKBACK In Boston Deep Fishing Co. v. Ansel (1888) 39 Ch. D 339, 363, the Managing Director of a company was held rightly dismissed for taking secret commission. (iii) FIGHTING ON DUTY/ASSAULT (iv) DRUNKENNESS/DRUG ADDICTION Especially where this has the potential of bringing the employer into disrepute or where it adversely affects image or constitutes an embarrassment. (v) CONTRACTING DEBTS AND OTHER PECUNIARY EMBARRASSMENT. (vi) GROSS IMMORALITY (vii) WILLFUL DISOBEDIENCE OR INSUBORDINATION A servant has a duty to obey lawful and reasonable orders. The courts will however not jump to conclusion that a single act of disobediences necessarily constitutes gross misconducts, each case will depend on the particular circumstances surrounding it (Pepper v. Webb (1969) 2 ER 216).

TERMINATION OF EMPLOYMENT SUMMARY DISMISSAL (viii) USE OF BAD LANGUAGE (ix) INCAPACITY (x) PROFESSIONAL MISCONDUCT (xi) DISMISSAL FOR INCOMPETENCE (xii) DISMISSAL FOR GROSS MISCONDUCT BORDERING ON CRIMINALITY The question that arises from time to time is whether an employer can lawfully dismiss an employer for an alleged misconduct bordering on criminality without first allowing the accused to be turned before a court of law. If seems settled that an employer can dismiss for misconduct without first going through a criminal trial. The authority for this view is the case of Olanrewaju v. African Bank (Nig) Plc 13 NWLR (Pt 691. This decision was followed in Godwin Iweha v. Ebice Company Ltd (2004) 11 CLRN 135 at 143.

TERMINATION OF EMPLOYMENT SUMMARY DISMISSAL PROCEDURE FOR SUMMARY DISMISSAL Although an employer is not bound to give any reason for lawfully terminating the contract of a worker, he must give reasons for summarily dismissing the worker. In Ogunsanmi v. C. F. Furniture (W. A) Co. Ltd (1961) 1 All N. L. R 862, 864, it was held that although: “It is not necessary for the master to prove that his servant was incompetent even through the notice alleged incompetence as the ground for such dismissal … where a master dismisses his servant summarily for lack of skill the onus is on the master to prove to the satisfaction of the judge that his servant is incompetent this only applies to summary dismissal. ” It now seems an established law that where discretion to dismiss for specific cause is reserved in the contract, such discretion to dismiss summarily must be exercised subject to the rules of natural justice ( Adeniyi v. Governing Council, Yaba College of Technology (1993) 6 NWLR (Pt 300) 426, Obot v. CBN (1993) 8 NWLR (Pt 310) 140). ‘Natural justice’ is the rule of procedure which requires that a person should be tried by an independent tribunal as well as have the right to defend himself.

TERMINATION OF EMPLOYMENT SUMMARY DISMISSAL In Tionsha v. Judicial Service Commission, Benue State, (1997) 6 NWLR (Pt 508) 307, the court held that an administrative panel is not bound to follow the procedure and practice of the court of law, it is bound to observe and comply with the principles of natural justice that a person who may be adversely affected by its decision is entitled to be given adequate opportunity not only to know the case against him but also to answer it. PUBLIC SERVANTS In Federal Medical Centre, Ido-Ekiti & Ors v. Alabi (2012) 2 NWLR (Pt 1285) 411, the court held that public servant can only be validly removed from service if the procedure prescribed by law was follows and once the dismissal or termination of a civil servant is declared null and void, the effect of such a pronouncement is that the civil servant was always and still a civil servant. In other words, where the court holds that the termination of employment is ultra vires, null and void, it automatically places the status of an employee to where he was as if nothing happened, thus entitling him to an order of reinstatement (see Iderima v. R. S. C. C. C (2005) 16 NWLR (Pt 951) 378).

VICARIOUS LIABILITY The doctrine of vicarious liability is one that fixes liability on the employer for the tortious acts of the employee committed in the course of the employment and causing injury or loss to a third party, without any necessary element of fault on the part of the employer. The Latin phrase for vicarious liability within the employer-employee context is respondeat superior which means let the master answer. Justifying the doctrine of vicarious liability, Winfield and Jolowicz had opined that “since the master benefits from the servant’s work he should be called upon to bear the responsibility for any damage the servant may cause in the performance of such work…’. Where the employee commits a breach of contract or tort against an aggrieved third party, the servant is primarily liable and the master is not only vicariously liable but he is also bound to meet the claims, although in appropriate cases, he may claim indemnity from the defaulting servant. In Duncan v. Findlater (1839) 6 CL&F 894, 909 -910, Lord Brougham said: The rule of liability and its reason, I take to be this: I am liable for what is done for me and under my orders by the man I employ. For I may turn him off from that employ when I please; and the reason that I am liable is this, that by employing him I set the whole thing in motion; and what he does, being done for my benefit and under my direction, I am responsible for the consequences of doing it Another major rational behind the doctrine of vicarious liability is that the employer is in a better financial position to meet the claims of the injured party.

VICARIOUS LIABILITY A third party is not barred from suing the master even where he has successfully sued the servant (Alfa v. Atanda (1993) 5 NWLR Pt. 296 p. 729 at p. 748). An employer is not generally liable for the tort of his independent contractor or servant of such contractor (African Continental Bank Ltd & Ors v. Apogu (1995) 6 NWLR (Pt. 399) p. 65 at 83). However, under certain circumstances an employer may be held variously liable for an independent contractor’s tortious act. The circumstances are: a. Where he undertakes lawful work which he is not under any statutory to do, he will be liable if he interferes with the contractor in the execution of such work or, in fact, exercise control over the contractor. b. The employer will also be liable where the work which the contractor is employed to do lawful, can only be done at the employer’s risks. though c. Where a positive statutory duty is imposed on an employer, he will be liable if he employs a contractor to carry out that duty. d. Where the work which the contractor is employed to do is, on the face of it, unlawful, the will be liable for any resulting damage or injury to any person. employer

VICARIOUS LIABILITY It is common in the business world for one employer to lend his servant to another to perform a specific duty. Where this occurs, the employer who exercises a greater degree of control over the servant at the material time; as well as over the nature of his work will be liable (Mersey Docks and Harbour Board v. Coggins and Griffith Liverpool Ltd (1947) 1 A. C. 1). It should be noted that the master is not liable for the tort of his servant unless the tort is committed in the course or within the scope of the servant’s employment. The act must be lawful and incidental to such course of duty. A wrong may fall within the scope of his employment if it is either expressly or by implication authorized by the master, or if the servant performs in a wrongful and unauthorized manner a duty which is authorized by the master (A. C. B. Ltd v. Apugo (1995) 6 NWLR Pt 399 p. 65 at p. 85 paras A-B).