SCOPE OF EMPLOYER’S DUTY TO EMPLOYEE INCLUDES TAKING REASONABLE CARE

NOTICE FOR DISMISSAL MUST BE READ INTO CONTRACT OF EMPLOYMENT

The common law enjoins that even where the contract of employment does not stipulate a notice period, one that is reasonable must be read into the contract of employment. See Akumechiel v. BCC Ltd[1997] (Pt.484) 695 at 703 and Emuwa v. Consolidated Discounts Ltd [2000] LPELR-6871(CA);[2001] 2 NWLR (Pt.697)424. The Supreme Court in Olayinka Kusamotu v. Wemabod Estate Ltd [1976] LPELR-1720(SC); [1976] 9-10 SC (Reprint) 254 stated the law thus: The law is that, generally, the length of notice required for termination of contracts of employment depends on the intention of the parties as can or may be gathered from their contract and in the absence of any express provision, the courts will always imply a term that the employment may be terminated by a reasonable notice (from either of the parties); and even where (as clearly provided in clause 21(c) of “Exhibit “B” for persons still under probation) the employer has power to terminate the contract in his absolute discretion, the law enjoins the employer to give reasonable notice to the employee (see Re-African Association and Allen (1910) 1 KB 396).

— B.B. Kanyip, J. Awogu v TFG Real Estate (2018) – NICN/LA/262/2013 para. 60.

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

STATUTORY EMPLOYMENT IS GOVERNED BY STATUTE

A statutory employment is as a matter of course governed by statute and so also is the procedure for employment and discipline provided for in the statute. See Nigeria Institute of International Affairs v Mrs. T.O. Ayanfalu (SUPRA). — Adewemimo J. Afariogun v FUTA (2020) – NICN/AK/41/2017

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.