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EMPLOYMENT GOVERNED BY STATUTE & THAT NOT GOVERNED BY STATUTE

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Dictum

In the case of BENIN ELECTRICITY DISTRIBUTION COMPANY PLC. v. ESEALUKA (2013) LPELR-20159(CA) where the court held that: “There is no doubt that there is a vast difference between an employment with statutory flavor in which case the terms of employment of that staff is governed by the statute creating that organization and any infraction of the terms of employment and discipline as guaranteed by the statute is bound to be declared null and void. That is illegal dismissal, where it occurs. In such situations the employee is restored to the position as if no disciplinary measures had been taken at all. See Dr. Taiwo Oloruntoba-Oju & Ors. v. Prof. Shuaib O. Abdul-Raheem & Ors. (2009) 13 NWLR Pt.1157 Pg.83; Bamgboye v. University of Ilorin (1999) 10 NWLR Pt.622 Pg.290. However, where the relationship is not governed by statute and there is infraction of the terms of employment and dismissal by the employer such infraction is merely wrongful and not null and void. The employee can only claim damages for breach of contract and cannot claim arrears of salary and reinstatement. See Eze v. Spring Bank (2011) 12 SC Pt.1 Pg.173; Joseph Ifeta v. SPDC Nig. Ltd. (2006) 8 NWLR Pt.983 Pg.585.” Per OGUNWUMIJU, J.C.A. (Pp.32-33, Paras.B-F).

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APPOINTED TO A POST BY A TERM OF STATUTE

Obeta v. Okpe (1996) 9 NWLR (Pt. 473) page 401 at pages 433 – 434, it was held thus:- “The proposition of law that a person appointed to a post for a term by statute has right to serve out his statutory term of his appointment is correct. He cannot be removed from the office by any person during the period except for a misconduct or when the, master body or institution he is appointed to serve dies or ceases to exist.”

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ESTOPPED WHEN SALARY PAYMENT IS IN CONTINUANCE

Ondo State University v. Folayan (1994) 7 NWLR (Pt. 667) page 34 at page 61, the university had appointed Dr. Folayan for a probationary period of three years. Without extending the tenure of Dr. Folayan, they continued to use his services and pay him his salaries for three years. The Supreme Court held that the university was estopped from contending that the employment had come to an end at the end of the three years probationary period.

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EMPLOYMENT OF STATUTORY FLAVOUR – CREATION OF STATUTE

It is settled law that the character of an appointment is determined by the legal character of the contract of employment. Where the contract of appointment is determinable by the agreement of the parties, there is no question of the contract having a statutory flavour. It is immaterial that the other contracting party is a creation of a statute.

– Muhammad JCA. Osumah v. EBS (2004)

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BAD FAITH IS INCONSEQUENTIAL IN TERMINATION OF CONTRACT OF EMPLOYMENT

Both in his pleadings and evidence the plaintiff concentrated so much on his allegations of bad faith, hatred, malice etc; but all these are of no consequence in determining whether or not his contract of employment was lawfully terminated by the defendant, considering that no reason was given for the termination.

– Ogundare, JSC. Chukwumah v. SPDC (1993)

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NO STATUTORY FLAVOUR; WHERE CONTRACT DETERMINED BY AGREEMENT BETWEEN PARTIES

Fakuade v. O.A.U.T.H.C.M.B. (1993) 5 NWLR (Pt. 291) 47 where Karibi-Whyte JSC stated at page 63: “The character of an appointment and status of the employer in respect thereof is determined by the legal character and the contract of the employee. Hence where the contract of appointment is determinable by the agreement of the parties, simpliciter, there is no question of the contract having a statutory flavour. The fact that the other contracting party is the creation of a statute did not make any difference.”

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WORKER AND EMPLOYEE UNDER THE LABOUR ACT

As can be seen, the definition of worker under section 91(1) is restrictive given the persons exempted in terms of paragraphs (a) to (f) of the definition. The point is that section 91(1) defines a worker only for the purposes of the Labour Act; as such, not all employees are workers for purposes of the Labour Act. The category of persons under paragraphs (a) to (f) of the definition of a worker may thus be employees but not workers for purposes of the Labour Act. Section 91(1) of the Labour Act defines a worker by reference to an employer i.e. as one who entered into or works under a contract with an employer. So, who is an employer? The same section 91(1) defines an “employer” to mean “any person who has entered into a contract of employment to employ any other person as a worker either for himself or for the service of any other person, and includes the agent, manager or factor of the first-mentioned person and the personal representatives of a deceased employer”. The common denominator in the definition of a worker and an employer is the contract of employment. A “contract of employment” is thus defined by same section 91(1) to mean “any agreement, whether oral or written, express or implied, whereby one person agrees to employ another as a worker and that other personagrees to serve the employer as a worker”.

— B.B. Kanyip, J. Olatunji v UBER (2018) – NICN/LA/546/2017

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