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Formation Of Contract Of Employment


FORMATION OF CONTRACT OF EMPLOYMENT

INTRODUCTION

The elements of a contract of employment depend upon the right and obligations of parties.

PROMISE? AGREEMENT ? AND BARGAIN

A contract of service is generally governed by the common law rules of contract; a “contract” is a promise or a set of promise which the law will enforce”. The essential elements of a valid contract are “promise”, “agreement”, and bargain”.

A promise is an undertaking that something shall happen or not happen in the future. Then there must be an agreement. An agreement is a manifestation of mutual assent by two or more persons to another. And finally, there must be an element of bargain, a “Bargain” being a transaction whereby two or more persons change promises, or exchange a promise for performance.

A contract, then consist in OFFER and ACCEPTANCE which must be definite and made directly by the offeror the offeree or his accredited agent. An acceptance must also be signified in the mode required by the terms of the offer, if, therefore, the terms of the offer expressly require or by the conduct of the offeror.

CASE:REF. Effong Vs. African Development Corporation Ltd. The court held that an offer in writing of the terms of contract may be accepted orally or by conduct and such will be deemed to be sufficient communication of the acceptance of the offer. It meant that an offer, duly accepted usually constitutes an agreement in law.

There is a distinction between a contract of employment which emphasis on the power of the employer to control the work of the employee and a contract for service in which an independent contractor is involved. In the former case “the traditional distinction is that the principal can merely direct what work is to be done by his agent (or an independent contractor), the master may also direct how the work is to be done.

However, the terms of contract of employment are based on the general law of contract in that it is a free agreement between the employer and the worker with the sole qualification that such terms are subject to whatever modifications may be made by regulatory status such as the labour Act, the wage Boards and Industrial council Act. 1973 as well as the consequences of collective bargains.

The law in Nigeria prohibit forced labour, and making it a criminal offence for any person to exert forced labour or cause forced labour to be exerted from another or put any constrain upon the population under his charge or upon any member thereof to work for any person, Association or Company.

STATUTORY CAPACITY

In Nigeria, a modification to the common law rules is effected by the labour Act 1974, it demands that an infant under twelve year (12 years) of age cannot be employed other than 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. The law still upholds that non adult person (under 16 years) cannot be employed in underground work or to operate a machine. Also a non-adult person under the age of 18 years is restricted to contract of employment in occupations approved by a minister provided such employment is not injurious to the moral and physical development of the youth.

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THE LAW OF MASTER AND SERVANT

The legal responsibility of a Master arising from a master and servant relationship takes two forms-the duties owed to the servant, and his liability to the servant and to the third party. The master’s (employer’s) duties to his servant are fixed partly by the express terms of the contract and partly by the terms which the courts will hold are implicit in the nature of the contract.

Paramount among these duties is the master’s implied duty to take reasonable care for the safety of his servant entirely independent of the express terms of the contract.

OTHER DUTIES OF THE MASTER (EMPLOYER) ARE:

To pay the agreed remuneration in the agree way
To provide work and to indemnify the servant.
From certain classes of liability

If the remuneration is based upon output there is probably a duty to provide work so that the employee can earn a reasonable sum.
To indemnify the servant/employee/work for any expenses he is put to on behalf of his employer (Master).
To indemnify the servant for any loss suffered as a result of obeying his master orders. This does not apply if the servant is negligent or if he acts outside the master’s instructions.
DUTIES OF THE SERVANT (EMPLOYEE)

To obey the Master’s (Employer) proper orders.
To serve faithfully and honestly.
To defend the master’s property
Not to disclose any confidential information
Not to work for any competitor.
To exercise due care in performing any activity which he is asked to do if that activity is one where he professed to have skill he has a duty to exercise that degree of skill to be expected in the circumstances.
Not to absent himself from work except for good reason.
Not to solicit orders from his master’s clients or customers.
CONDITION OF SERVICE

In a contract of employment, the conditions of service are usually spelt out. The contents of these conditions will most likely include the amount of wages, the working hours, holidays, security at work ad of employment; they will also include the method by which the contract is to be brought to an end.

Remuneration- comprises salaries, wages and allowance or commissions which form part of the terms of a contract of service. Wages are primarily fixed between employer and individual worker. But where no rate is agreed, the rate is deemed to be what is current in similar trade in the area.

WORKING HOURS AND HOLIDAYS– In some establishments, the working hours of an employee (servant) and his holidays with pay are normally expressly stride in the contract of employment which no such provisions an example of employment in the categories the “finish and go” type of employment. In this type of circumstances the wages will be fixed but the normal working hours will be presumed to be those accepted by the trade practice.

Holiday or leave- The terms of the contract between the Master and servant are settled by this provision. Section 17 of the labour Act confers a right to annual leave or holidays will pay on worker; apart from those secured from women and young person’s by the decree. Under section 58 (5) of the statute no youth can be employ on any statutory holidays such as Christmas, Id el Kabir, Easter etc.

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TERMINATION OF CONTRACT OF EMPLOYMENT

There are three (3) determinant of contract of employment, unless the status provide otherwise. Thus an employment for a definite period can only be determined at the end of the period unless it has been varied by subsequent agreement of the parties or there exist some breach of fundamental term or has been grave misconduct on the part of the servant/worker sufficient to justify his summary dismisl.

From the statement above an employment may be determined in three principal ways:

By operation of the law
By the intention of the parties and
By summary dismissal.
As per (a) an employment will be determined either by effluxion of fine (if a period is fixed) or by notice (if of unspecified duration) whichever is the case, the employment has to come to an end because the law regards such contracts as determined. The termination of employment will arise in the case of the death of one of the parties, frustration or serious and protracted illness. As per (d). Just as terms and conditions of contract of employment are dependent on the intention of the parties, so also the requirements of a valid and lawful termination of the contract. In some cases, the employment will be casual and for a fixed period, in others, it will be for an indefinite period. Different rules, apart from terms specifically agreed to be the parties, apply to each category of employment.

However, there are three conditions required for an effective and valid termination of a contract of employment by the act of any of the parties.

The termination must be for one or all of the reasons stipulated or implied in the contract
Proper notice must be given by the party intending to terminate the contract and
The agreed or normal method has to be followed in terminating the contract. The reasons for valid termination of contract of employment could result from the following; Misconduct, inefficiency and physical or mental inability of the party to perform the term of the contract. And lastly, summary dismissal- an employer (master) may terminate the service of his employee (servant) by paying the latter a sum equivalent to that the servant would have earned had he been given proper notice. There are, however, circumstances when a worker can be dismissed summarily without notice notwithstanding that no payment is made in lieu of notice.
DISMISSAL – According to Oxford Dictionary is a discharge from service or office. Fitzgirbbon J. observed that the word is merely a convenient expression for the terminations of employment whatever the nature may be and does not necessarily import the relation of master and servant. Dismissal by the Supreme Court of Nigeria carries infamy and deprives one of benefit which termination in this case did not. Section 9 (7) of the labour Act 1974, for instance, a contract is taken to be terminated if, ad only

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The contract under which the worker is employed by the master is terminated either of the parties whether or not it is so terminated by notice, or
Where under that contract, he is employed for a fixed term and that term expired without being renewed under the same contract.
Dismissal may be used in a wider and more general sense than the mere exercise by the employer of his power to bring to an employment to an end as a result of the worker’s misconduct. Where the worker himself terminates the contract as a result of the employers’ wrongful act, the worker is deemed to have been dismissed – by himself.

Obviously, we have talked much on the provision of the Nigerian labour law; the question is who is a SERVANT?

The provisions of Nigerian statutes variously know the word ‘servant’ to mean “employee”, “worker” and workman all used inter changeably. However, these meanings are being confirmed to the scope of the individual statutes concerned. The workman compensation Act 1942, section 2 knows “workman” as apprenticeship with an employer whether by way of normal labour, clerical work or otherwise, and whether the contract is express in implied, oral or in writing.

Lastly, a “worker” in section 90 of the labour Act include employees of the local government, teachers, and staff of statutory bodies to which the Act is made specifically applicable by section 85 but exclude persons exercising administrative, executive, technical or professional functions” as well as “representative, agents and commercial travelers in so far as their work is carried on outside the permanent work place of the employer’s establishment”.

A position which is different from the one considered is the preceding discussion is that in which an employer is made liable for the acts of a person not in his service or who is in the service of another, liability for the act of independent contractors and part-time professional clearly falls within this class.

The provision of the part-time consultant is, however, still not satisfactory settled. But the destruction between a part-time professional and an independent contract and or may be quite decisive in fixing responsibility in case of vicarious liability and in the determining the rights of a parties.


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