ABSTRACT
Industrial and labour relations occupy an important and enviable place in the socio-economic development of any nation in particular and the world at large. The conditions under which an employee works as well as the security of his employment has great bearing on his output which in turn affects the socio-economic development of the nation wherein the employee performs his work. Wrongful determination is one of the problems plaguing employees in developing countries like Nigeria. The International Labour Organisation set a standard which an employer wishing to terminate employment of his employee must comply with. The attribute of international law under which the standards of the International labour organisation falls make the application of these standards dependent on the state of the municipal laws of member states of the International Labour Organisation. The provision of the Constitution of the Federal Republic of Nigeria 1999 as amended, subjects these standards to the Legislative Acts of the federal law makers. However, the Third Alteration Act and the National Industrial Court Act have brought what seems to be a statutory intervention on the application of these standards. The researchers undertake the study of the International Labour Organisation’s standards on wrongful determination of an employee vis-a-viz the practice in Nigeria, the attitude of Nigerian Laws to these standards as well as the applicability of these standards in Nigeria and selected countries. The researchers employ analytical comparison of Nigeria laws and practice on determination of contract of employment as well as laws of the selected countries as they relate to the International Labour Organisation standards on wrongful determination. Also, the researchers adopt construction of statutes and case law as part of their methodology. At the end, the researchers found that dismissal and termination situations in Nigeria amount to wrongful determination when tested against ILO standards on wrongful determination. The researchers then recommend that Nigeria needs to adopt ILO standards on wrongful determination with modifications where necessary. Also, that every legal and institutional impediments that hinder the application of ILO Convention on wrongful determination should be removed by the concerted efforts of the three arms of Government of Nigeria for purposes of achieving the policy of fair dismissal in Nigeria.
CHAPTER ONE
CONTRACTS OF EMPLOYMENT: MEANING AND NATURE
1.1 Introduction
A contract of employment is an agreement between two or more persons relationship established by contract, creating an obligation to do a particular thing in a contract of employment.
1.2 Meaning and Nature
The nature of contract of employment is the relationship between an employer and his employee comes into existence as a result of a contract between them generally referred to a contract of service, which means any agreement whether oral or written, expressed or implied, where by one person agrees to employ another as a worker and that other person agrees to serve the employer as a worker as contained in Labour Act.
Generally, the contract of employment is an off-shoot of our general law of contract where the essential ingredients of the contract must be found present before it’s enforceability.
1.2.1 Offer and Acceptance
In every contract of an employment, there is a meeting of the minds of the parties before the enforceability of the contract. That is to say, an offer must be made by one party called (offeror) as in Callil v. Carbolic Smoke Ball Co. and the acceptance of the offer by the other party called (offeree) as in the case of Afolabi v. Polymera Ind. Nig. Ltd. This principle of offer and acceptance entails freedom of both parties to offer and accept unconditionally the terms of employment.
1.2.2 Consideration
In a contract of employment, where there is an offer and acceptance by both parties to the contract of services, there must be a consideration to furnished the contract, describing some rights, interest, profit or benefit occurring to one party or some fore-bearance detriment, loss or responsibility given, suffered or undertaking by the other. The above explanation was illustrated in the case of Currie v. Misa Therefore, consideration in the contract of employment is the salary and other fringe benefits which an employee earns on one part and services which an employer receives on the other part.
1.2.3 Intention to create Legal Relation
The relationship between an employer and employee is established by contract. Where both parties agreed on the terms of the contract of employment, creating a common intention of both parties to enter into a legal obligation that is contained in the employment agreement Rose and Frank v. Crompton.
1.2.4 Capacity
The law is settled that parties to a contract of employment must possess the capacity of contract as recognized by law at common law. Certain categories of persons namely; infants, mentally infirm and disordered person and drunkards in certain circumstance are incapable of entering into a contract. This has been specified in our statute Nigeria Labour Act 2004.
In the case of an infant, the law forbids to engage a person (child) below the age of sixteen years from entering into any contract of employment except that of an apprenticeship. But the Act provides in Section 19(1) of the Labour Act 2004 that a child under twelve years of age can be employed only by a member of his family and even then, subject to his rights, agricultural, horticultural or domestic work approved by the Minister of Labour as stated in Section 91(1) (a) Labour Act.
However, Section 59 of the Act is an exception apparently to enable a youth receive his education in a technical school. In respect of working on a ship in general, Section 61 (3) of the Act provides that even when the non-adult is allowed to be so employed, he can work only on a vessel in which only members of the same class are employed.
Under Section 59 of the Act, the Minister of Labour has power to notify an employer in writing that the kind of work in which a young person is employed is injurious to his health, immoral or otherwise unsuitable.
Finally, on mentally infirm and disordered person are persons who are insane, unsound minds incapable of being conscious and rational thinking on the obligation of the terms of the contract of employment.
1.3 Parties to a Contract of Employment
A contract of employment or services is entered into and enforceable by the employers and the employees, which automatically forms or constitute the major parties to a contract of employment in Nigeria Labour Law.
A person who is in a contract of employment with another cannot be transferred to another employer without his consent. This is in conformity with the provision Section 10 (1) of the Act which provides as follows
“The transfer of any contract from one employer to another shall be subject to the consent of the worker and the endorsement of the transfer upon the contract by an authorised labour officer”.
1.2 Statement of Problem
Issues bordering on determination of contract of employment take domination position in labour and industrial relations. Wrongful determination is one of the problems plaguing employees in developing countries like Nigeria. Wrongful determination 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.
Nigeria as a dualist state is under constitutional impediments which hinder Nigeria from embracing the International Labour Organisation standards on wrongful determination. The attitude of the Nigerian Constitution on the application of International Labour Organisation standards on wrongful determination in Nigeria is another major problem hindering from implementing the ILO standards on wrongful determination. The role of the three arms of government on the application of ILO standards on wrongful determination 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 wrongful determination. None application of this ILO Convention containing the ILO standards on wrongful determination accounts for Nigeria’s failure to achieve a policy of fair dismissal.
1.3 Objective of Study
The researchers set out to showcase the sources of ILO standards on wrongful determination, the bases of determination of contracts of employment in Nigeria.
The work is to make a conceptual clarification of the law on termination and dismissal, wrongful and unlawful termination and dismissal, classification of contracts of employment.
Study the International Labour Organisation standards on wrongful determination of an employee viz-a-viz the practice of termination and dismissal of an employee at the will of the employer.
Undertake an appraisal of ILO standards as well as wrongful determination situations in Nigeria. Showcase solutions to the common law and constitutional impediments to the applicability of ILO standards on wrongful determination in Nigeria.
And finally to find out ways through which Nigeria can bring down the ILO Convention on termination of Employment No 158 of 1982 wherein the ILO standards on wrongful determination are provided.
1.4 Significant 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 practice of policy of fair dismissal. It shows by way of an appendix the extent of conformity of about 55 countries that have embraced the Convention containing the ILO standards on wrongful determination.
The work also undertakes a conceptual clarification of the terms ‘Termination and dismissal’ and the attendant consequences that attach to them. It clarifies the meaning of wrongful termination, unlawful termination, wrongful dismissal and unlawful dismissal and the remedies available to a victim of any of them. The researchers undertake an analysis of the ways through which the three Arms of Government of Nigeria saddled with the responsibility of ensuring that the Convention containing ILO standards on wrongful determination becomes applicable in Nigeria without any impediments. 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 six chapters with three appendixes.
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Item Type: Project Material | Size: 87 pages | Chapters: 1-5
Format: MS Word | Delivery: Within 30Mins.
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