CHAPTER ONE
INTRODUCTION
1.1 Background of the study
Under the law employers are responsible for health and safety management. It is an employer’s duty to protect the health, safety and welfare of their employees and other people who might be affected by their business. Employers must do whatever is reasonably practicable to achieve this. This means making sure those workers and others are protected from anything that may cause harm, effectively controlling any risks to injury or health that could arise in the workplace[1]. Employers have duties under health and safety law to assess risks in the workplace. Risk assessments should be carried out that address all risks that might cause harm in the workplace. Employers must give information about the risks in the workplace and how employees are protected, also instruct and train the staff on how to deal with the risks[2].
[3]However, the primary legislation that regulates the employment of persons in Nigeria is the Labour Act. Other laws that are of importance are the Constitution of the Federal Republic of Nigeria (Promulgation) Act (Chapter C23, Laws of the Federation of Nigeria 2004, as amended) and the National Industrial Court of Nigeria Act 2006, which prescribes the jurisdiction of the National Industrial Court of Nigeria (NICN). Employment law in Nigeria is not founded on the provisions of a single statute. Rather, it is dispersed in different legislation that together provides the framework. While there is an unsettled discussion as to whether the Labour Act (LA) extends beyond unskilled and manual workers, it nonetheless remains the governing law for labour matters[4].
Nigerian law allows freedom of contract in upholding and binding employers and employees to their agreements. There are also various statutory provisions of which parties must take cognisance when contracting; the laws regulating pensions and tax for instance, are not within the scope of contractual freedom[5]. The law and practice of determination of contracts of employment in Nigeria is employer friendly. The employer is free to determine the contract of employment of his employee for bad reasons or for no reason at all. This is in contradistinction with the law and practice across the world. This shows that the law and practice of determination of contracts of employment differ with those of other countries. This difference is occasioned by the fact some countries across the world have moved away from the common law position that permits an employer to determine the contract of employment of his employee for bad or for no reason at all. The move away from this common law position started with the International Labour Organization which adopted ILO Termination of Employment Recommendation and ILO Termination of Employment Convention 158 of 1982. About 36 countries of the world have ratified the Convention while about fifty five countries both those who have ratified the Convention and those who have not ratified the Convention have embraced the provisions of the Articles of the Convention which contains ILO standards on unfair dismissal. Despite this effort by the International Labour Organization towards ensuring a policy of fair dismissal, Nigeria is still in full practice of the common law termination at the will of the employer.
The factors accounting for Nigeria’s failure to embrace this-meaning convention containing ILO standards on unfair dismissal are the provisions of the Constitution of Federal Republic of Nigeria 1999 as amended requiring ratification and domestication of treaties and conventions before they can be enforced in Nigeria. None application of the convention containing ILO standards on unfair dismissal leaves Nigeria with practices which are unfair in the global perspective. This research work appraises the law and practice in Nigeria on the determination of contracts of employment. It analyzes termination and dismissal situations in Nigeria[6].
1.2 Statement of the problem
Issues bordering on determination of contract of employment take domination position in labour and industrial relations. Unfair dismissal is one of the problems plaguing employees in developing countries like Nigeria. Unfair dismissal practices have put employees in Nigeria in a bagger has no choice situation. Nigeria has remained under the common law determination at the will of employer[7].
Nigeria as a dualist state is under constitution impediments which hinder Nigeria from embracing the Internation Labour Organisation standards on unfair dismissal. The attitude of the Nigeria Constitution on the application of International Labour Organization standards on unfair dismissal in Nigeria is another major problem hindering from implementing the ILO standards on unfair dismissal. The role of the three arms of government on the application of ILO standards on unfair dismissal in Nigeria also leaves much to be desired. The step taken by the Legislature in Nigeria towards ensuring that international treaties and conventions are applied in Nigeria as provided in the Constitution of Federal Republic of Nigeria (Third Alteration) Act, 2010 is surrounded with controversy. These factors have made it difficult for Nigeria to apply the ILO Convention containing the ILO standards on unfair dismissal. None application of this ILO Convention containing the ILO standards on unfair dismissal accounts for Nigeria’s failure to achieve a policy of fair dismissal[8].
1.3 Objective of the study
The main objective of this study is to discuss the critical appraisal of employers duty of care in Nigerian labour jurisprudence.
The specific objectives are to:
1. discuss the duties and rights of the employer and employee
2. examine changing trends in employer – employee relation in Nigeria
3. discuss contract and termination of employment
4. examine the application of international labour standards
1.4 Significance of the study
The importance of this research work is in the fact that the research is an informed agitation through an academic work for Nigeria to embrace the modern of law and policy of fair dismissal. It shows by way of an appendix the extent of conformity of about 55 countries that have embraced of the Convention containing the ILO standards on unfair dismissal. The researchers made far-reaching recommendations that will enable Nigeria actualize the policy of fair dismissal.
1.5 Methodology
The researchers adopt analytical comparison using statute books, case law, text books, journal articles (local and international), Internal materials, unpublished works, international instruments. The work is broken into five chapters.
1.6 Literature Review
Employers engage persons on either contracts of service or contracts for services. Only a person engaged under a contract of service is an employee and therefore protected by the full range of employment legislation. An independent contractor or self-employed person will have a contract for services with the party for whom the work is being done. The distinction between a contract of service and a contract for services can sometimes be unclear but the type of contract a person is engaged under can have serious implications for both employer and employee in matters such as employment protection legislation, taxation and social welfare[9].
The common law, from where Nigeria borrowed some of its laws, has from early days imposed a duty on the employer to take necessary cam to see that the employees jointly engaged with him in carrying on his work or industry shall not suffer any Injury, either as a result of his personal negligence, or through his failure to properly superintend and control the undertaking in which he and the servant’s are mutually engaged. The employee has a right of action where there is a breach of this duty and personal injury is cawed. An employer was always liable at Common Law for his own personal negligence. The employer who actually, takes part in the work himself is responsible for his negligence to an employee equally as to a stranger. If the employer is a private firm, the negligence of me partner is accounted the negligence of the employer[10].
To avoid contracting out, the doctrine of common employment stated r that if the person occasioning and the person suffering an injury were fellow employees engaged in a common employment for and under the same employer, where the employer had taken reasonable care to select proper and competent servants, he was not liable at Common Law for the consequences of the injury. The application of the doctrine was modified by English statute in 1990. Where a cause of action occurred on or after 5th of July, 1992, the doctrine does not apply. Where a contract or service or apprenticeship contains a provision, to the effect of excluding or limiting the liability of the employer in respect to personal injuries, the contract is void. Such personal injuries would be caused by the person employed or apprenticed by the negligence of persons in common employment with him[11].
In consequence, the right of an employee to recover damages from his employer for the fault caused by another employee, which existed before the doctrine of common employment became operative, again has force. The duty of care owed by me worker to another, where both join in a common operation is not repealed and by the fact it seems that the operation is dangerous and contrary to the employing institution[12].
At Common Law, it is implied from the contract that an employee takes upon himself the risks incidental to his employment. The employee cannot call upon his employer, merely because of their relation of employer and employee, to compensate Nm for any Injury which he may sustain while performing his duties. An exception is special contract. The employees claim for compensation may be in consequence of the dangerous character of the work upon which he is engaged or of the breakdown of the machinery, or of the negligence, or default of strangers, but the claim will not be sustained[13].
The employer does not warrant the employee’s safety in the working conditions. He does not also act se an insurer of the employee’s safety. It is expected of the employee to exercise due care and skill. Also, the master does not owe any general duty to the employee to take reasonable care of the employee s goods. The duty extends only to his person. Where the employer’s breach of duty is such as to place the employee in imminent peril, the same duty would extend to persons reasonably trying to rescue the employee. See the case Beer V. T.E. Hopkins and Sons Ltd. (1958) 3 All E.R. 147[14].
[1] Olawale Adebambo and Folabi Kuti are partners and Ifedayo Iroche is an intermediate associate at Perchstone & Graeys.
[2] Chapter T8, LFN 2004.
[3] Section 245C (1) (f) of the CFRN 1999, as amended.
[4] E.E, Uvieghara, Labour law in Nigeria (Lagos: Malthouse Press Limited, 2001); C K, Agomo, National Justice and individual Employment Law in Nigeria’s in current themes in Nigeria Law, Adegbe and Akande (eds: 1997); A, Emiola, Nigerian Labour Law (4th edn, Ogbomoso: Emiola Publishers Limited, 2008); C, Nwagbara, Determination of contract employment and Remedies for Wrongful Dismissal, (Nigeria: Trait Publishers, 2000)
[5] S, Erugo, Security of Employment in Nigeria: A case for statutory Intervention, NJLIR Vol. 1 No. 1 (2007) p.60; F, Ojo, Legal Redress for Unlawful Termination of Employment: It is Time to call A spade A Spade’, NJIR, Vol. 1 No. 3 (2007) P.3; A O, Elias, ‘Summary Dismissal Upon Allegation of Crime-An Overview, MRJFIL Vol. 3 No. 3 (2000) p. 134
[6] E O, Abugu, ‘ILO standards and the Nigeria Law of Unfair Dismissal’ AJICL Vol. 17 (2009). P. 181-121; J E O, Abugu, Treatise on the Application of ILO Convention in Nigeria, (Lagos: University of Lagos Press, 2009)
[7] O, Animashaun, ‘Unfair Dismissal: A Novel Idea in Nigerian Employment Law’, NJLIR, Vol. 2 No. 1 (2008) p.1
[8] M R, Fredland, The Contract of Employment (Oxford University Press, 1976); G, Janner, Janner’s Compendium of Employment Law, (London: Business Books Ltd, 1997); Gould, ‘The Idea of the Job as property in Contemporary America: The Legal and Collective Bargaining Framework’, Brigham Young University Law Review, p 885
[9] Abacha v Fawehinmi Supra pp. 165-166. See also South African case of NUMSA v Bader pop, unreported,case No. CCT 14/02/13/12/2002; National Defence Union v Minister of Defence Unreported Case No: CCT 27/98delivered 26/05/1991
[10] J.E.O. Abugu, A Treatise on The Application of ILO Convention In Nigeria, op cit , p. 33
[11] Ibid . Article 2(3 & 4)
[12] Oserogho & Associates www.oseroghoassociates.com
[13] Constitution of Federal Republic of Nigeria, Op cit Section 6(6) b.
[14] constitution of Federal Republic of Nigeria (Third Alteration) Act 2010, Section 254 (c) (f & h).
A CRITICAL APPRAISAL OF EMPLOYERS DUTY OF CARE IN NIGERIAN LABOUR JURISPRUDENCE
