The ultimate aim of most people who are not self-employed is to be employed after acquiring one qualification or the other, or even after acquiring a skill. Many people pray for lucrative employment in fulfillment of their efforts in life.
To some people, they do not belief in being self-employed to seek for white collar jobs. To some of them, their concern is just to be engaged so as to be seen by others as staff of one organization or the other to some others it is just to have some meals on their tables and others are just to show off.
In some cases, they do not even bother to perfect their employments properly and legally. It is as a result of some of my callers who text messages to me regarding some sympathetic situation that they or their relatives found them into while in employment that I decided to discuss this topic.
Come to think of it, what are employment and the contract of employment? In a very simple language, one can say that employment is a contractual relationship between two parties, one called the employer while the other is the employee. The employer is seen as the master who hires the employee, makes provision for the work to be done by the employee as well as provides the tools for the employee to perform the work.
The employer controls the employee whom he hires and the work according to the terms and conditions agreed upon. On the other hand, the employee plays the role of a servant in the contractual relationship, therefore is expected to obey the master’s instructions and be subordinate to the master in the discharge of his duties. The enjoyment of confidence as well as the sustainability of the type of relationship requires the applicability of the law.
In Nigeria today, there are force sources of employment and labor law namely; the received English Law, the constitution, Nigerian Legislation and the last but not the least the Nigerian and foreign Case Law.
The need to avoid problem and breaches arising at will without any means of compensating the innocent parties makes the laws on employment very necessary and important. This is a deviation from the past employment law which unduly favored the master. However today, the common law, statute, judicial orders make it that an employer is under the law to provide for the safety and security of his employees as the employees demanded.
Now that we have known who are an employer and an employee, it is necessary for us to know and understand what the contract of employment between them is all about. Come to think of it, what is a contract? There is no precise and concise definition of this term contract by many authors but we shall, for the sake of this work take just two. A renowned law author, Professor Sagay in his book entitled Nigerian Law of Contract defines contracts as “an agreement which the law will enforce or recognizes as affecting the legal rights and duties of the parties”.
I wish to simply put it “as a voluntary agreement between two or more parties with the sole aim of creating either in writing or orally a legal obligation”. It should be noted that in all the definitions of the term ‘contract’ the reoccurring elements common to all are;
II. Two or more parties
III. Legal obligations and rights.
However, it is worthy to emphasis that contract is an envelope of promises which the law makes binding upon the parties involved. However, agreements which are just domestic or social in nature may not be enforceable by law because they are ab initio (i.e. at the onset) not intended to be binded legally.
For instance, a father who promises his jambite son that if he meets up the university cut-off mark that he would buy him a screen-touch phone worth Two Hundred Thousand Naira and the son made it as the father promised, this type of promise cannot be legally binding if the father fails because it is a mere promise not intended for legal binding.
Unlike this scenario, the agreement between an employer and an employee by its peculiar nature, is usually intended to be legally binded with just a few exceptions, hence is enforceable in law.
HOW IS CONTRACT CLASSIFIED?
Contract is classified by the courts into two namely; Formal and Simple contract. Simply put, a formal contract is one performed under seal, Deed and duly executed. This means that for a Deed to be valid and admissible in evidence as well as have full legal effect, it must be signed, sealed and delivered.
A simple contact is one not done as in formal but is made in other form of writing or orally. However, it must be noted that there are some contracts that are mandatory to be done in writing. Some of them are, lease above three (3) years sale of land, etc. But, some can be made orally and yet valid and enforceable both at law and in equity.
Such contracts include employment, tenancy, sale of goods, etc. however, Section 7 of Labour Act 1974 states that where a contract is not in written form, its particulars (terms and conditions) must be delivered by the employer to the worker not later than three months after the beginning of the worker’s period of employment with the employer?
CONTRACT OF EMPLOYMENT
This simply is a contract between an employer and an employee in which the employer offers to employ the employee to work for him with terms and conditions which both of them agreed upon. If the terms and conditions suites the employee; he accepts. Then a contract of employment is made. It should be noted here that the employee is a worker while the employer is the person who enters into a contract to employ another person to work for him or for some other person.
The Labour Act only applies to workers so strictly defined and does not apply managerial positions like managers or such categories of staff regarded as a projection of management staff. These later categories of staff mentioned, their employment conditions are taken to be regulated by the Common Law as in the case of David Olaja v. Kaduna Textile Mills Ltd (unreported) No NCH37/69.
The big question then is who is a worker? Section 91 of the Labour Act, 2004 defines worker as any person who has entered into or works under a contract with an employer, whether the contract is for manual labour or clerical work, or is expressed or implied orally or written, and whether it is a contract of service or a contract personally to execute any work or labour. Therefore, a worker includes unskilled labours or semi-skilled industrial staff.
FORMATION OF CONTRACT OF EMPLOYMENT
No agreement is enforceable by the law unless it is a contract with such elements as offer, acceptance, consideration, intention, certainty and legality as well as the capacity to enter into such contract. Let me briefly explain some of elements of the contract.
i. OFFER: An offer in contract of employment takes place where the applicant (employee) is issued with appointment letter. The earlier procedures before the appointment letter is issued cannot be said to be an offer but invitation to treat.
ii. ACCEPTANCE: An applicant (employee) offered is required to accept the offer with the terms and conditions in which the employer (the owner of the work) stipulates in the contract without any introduction of new condition.
iii. CONSIDERATION: Simply put, this is the paying of wages by the employer to the employee to reciprocate for the services offered to the employer by the employee. Consideration in a contract of employment can be gleaned.
iv. INTENTION TO ENTER INTO LEGAL RELATIONS: Here, the intention may be express or constructive or in cases absent. It may be absent where the relationship is between an employee and members of his family. The court will decide whether such relationship is binding.
v. LEGALITY: Employment law is based on legality. Anything to the contrary to its legality makes the contract illegal. An employment to commit crime or to do anything prohibited by law is illegal, void and unenforceable by law.
vi CERTAINITY: The contract of employment must be certain and agreed upon by the parties. The contract of agreement should be specific by making reference to other documents like in public service rules, condition of service handbook, etc. and ensure there is no ambiguity or dual interpretation of facts.
Please, do not always forget that the facts are not exhaustive herein but to give you knowledge of your rights, so consult a lawyer near you or text me to do more explanation.