Duties and Rights of the Employer and Employee

Duties and Rights of the Employer and Employee

Sources Of The Employer’s Duties
The duties agreed on or imposed on the employer in a contract of service is derived from a multiplicity of sources which can be expressed in terms of legal and extra legal sources. Wherever employer workers relationship exists, whether express or implied and if it is express, whether oral or written, the employer owes certain duties to the employee. These duties may be expressly provided for in the terms of the contract of employment or implied into the terms even though not expressly stated.
The employer’s duties to his employee basically come under the common law and under statutes. The Received English Common Law which involves the principles of equity and statutes of general application inforce in England as at 1st January 1900, which were received into Nigeria through the various receptions laws, introduced some duties into the employer-employee relationship. Besides the received English Laws, there are also statutes which regulated employment relationships between master and servant. These statutes include: The factories Act, NigeriaLabour Act, Trade Union Act,the Trade Dispute Act, Occupational Health and Safety Act No 85 of 1993, Pensions Act 1990, Wages Legislation and the employee’s Compensation Act. There are also Nigerian case laws bordering on the duties of the employer to his employee, though derived from the common law. Employers also have a duty of care to the employees under the following international instruments; Fatal Accident Law of the states, National environment Standards and Regulatory Enforcement Agency Act (NESREA) 2007, International Labour Organization Conventions and Recommendations.
2.2    THE COMMON LAW DUTIES
It had earlier been noted that the duties of both parties are fixed partly by the express terms of the contract, and partly by the terms which can be implied or will be held to be necessary and important depending on the nature of the contract.
Paramount among the duties of the employer at common law is the duty to take reasonable care for the safety of his worker’. This duty under the common law is usually divided into three, namely:
•    Provision of safe plant, including safe equipment, tools, materials and appliances in the workplace.
•    Provision of safe and secure system of work, that is, a safe process
•    Provision of the employee with reasonably competent fellow employees.

2.2.1 Duty to make available proper tools and plants for work: The employer is under the duty to supply proper tools and maintain the necessary plants that will aid the employee in his service to him. The employer may be in breach of his duty by failing to provide the required plant at all, failing to provide the quality of plants required for the job, providing dangerous of defective plants when he knew or ought to have known of the danger or defect.30 In LOVELL V. BLUNDELLS AND CROMPTON & CO. LTD,31 the employer was found not to have provided the needed plants for the employee’s work. In BOWATER V. ROWLEY REGIS COOPERATION32, the action against the cooperation was upheld by the court of Appeal on the ground that the cooperation had been negligent in supplying defective and dangerous plant for the work. Even where the tools are purchased from a reputable dealer and an employer has knowledge of its dangerous character,
he is liable to his servant who is injured as was the position in the case of TAYLOR V. ROVER CO. LTD.33This obligation is a continuing obligation.34

2.2    SAFE PLACE OF WORK
It is the duty of the employer to provide a safe working environment for his employee, where the employee will be safe to carryout his work effectively. If place of work is an industry with plants for carrying out production, the place should be fenced round and should be good premises.

2.2.3    SAFE AND SECURE SYSTEM OF WORK AND SUPERVISION
It is the obligation of the employer to draw up a system of how work is to be done, the persons to do the work, when a particular thing is and is not to be done. The administrative system must satisfy the condition of reasonability, hence, the House of Lord’s decision in WILSON & CLYDE COAL LTD V. ENGLISH35 that the duty as to safe system is a personal duty which a master owes to his worker, a duty he cannot delegate in such a way as to absolve him from personal liability.

2.2.4 COMPETENT STAFF WITH REASONABLY COMPETENT FELLOW EMPLOYEES
The employer must act reasonably or exercise reasonable care to employ reasonably competent and proficient staff and also competent fellow employees. The employer must therefore select competent and suitably qualified people to do his work, providing training and necessary instructions as the case may be. He must ensure that those in charge have the knowledge and  ability to see that the work is done safely. He must make sure that no staff constitutes danger to other workers, and if any does, the employer must take necessary precautions to avert the danger. As the court stated in the case of HUDSON, V. RIDGE MANUFACTURING CO. LTD,36per Streatfield, J.:
“If a fellow workman… by his habitual conduct is likely to prove a source of danger to his fellow employees, a duty lies fairly and squarely on the employers to remove the source of dangers”.
In SMITH v. CROSSLEY BROTHERS LTD,37 the court however re-emphasized that the duty to provide competent staff includes the duty to supervise them properly.

2.3    THE STATUTORY DUTIES
In Nigeria, statutes have also imposed additional liability on the employer for the sake of his employee. It had earlier been noted that statutes are sources of the employer’s duties. The employee does not have to prove that his employer acted negligently here, he only has to show that statute imposes a duty on the employer, that the duty is owed to him, that a Breach of the duty has been committed by the employer and that the breach has caused him damage. The rationale for these strict duties imposed on the employer is to protect the employee because a plaintiff (employee) may succeed in an action for breach of statutory duty even if he would have failed at common law.
2.3.1    Adequate training of Workers:
There is an imposed duty on the employer to train workers under his care and employ. This is to enable the workers work efficiently and be up to date on new invensions, especially persons employed in factories. The employer must most especially provide adequate training of workers or any person or persons to be assigned to operate machines, so as to ensure their safety at work. This is to comply with the provision in Section 23 of the Factories Act.
2.3.2    Payment of Wages
The payment of wages to the employee must be made in legal tender like cheque, cash or postal order as provided in LabourAct38 which states thus:
“Subject to this section, the wages of a worker shall in all contracts be made payable in Legal tender and not otherwise and if in any contract the whole or any part of the wages of a worker is made payable in any other manner, the contrary shall be illegal, and void”.
The payments should be made with regular periodicity like daily, weekly, fortnightly, or monthly but no longer than monthly without illegal deductions.
2.3.3    Provision of safe sanitary and humane `    conditions of work
Sections 28, 29, 55, 60, 65, 66 of the Labour Act 1974 provides for Labour health. The employer is statutorily imposed with the responsibility to provide and maintain at all times safe sanitary systems for the employee so as to ensure that they work under humane conditions. The employer has the duty to medically examine workers being recruited before commencement of work or as soon as possible thereafter.39

2.3.4    Annual holiday with pay
The employer is under a statutory duty to grant periodical leave with pay to the employee. Pregnant women are to be granted maternity leave. However, they must tender medical certificate given by any registered medical practitioner stating that confinement will probably take place within six weeks.

A pregnant married woman on maternity leave is to be paid not less than fifty per cent of the wages she should have earned if she had not been absent. If she is nursing her child, she must be allowed half an hour, twice a day during her working hours for that purpose.

2.3.5    Sick leave
The employer may in certain circumstances request that the employee be examined by a medical practitioner nominated by him before granting leave to the employee, up to twelve working days in one calendar year where the sickness is of a temporary nature but certified by a registered medical practitioner. Where the sickness becomes so serious as to frustrate the objects for which the employee was engaged, the contract of employment may be discharged and the employer will be absolved from further liability without prejudice to the earned entitlement before the discharge.

2.3.6    Employee’s compensation
A worker who is injured while working for the employer deserves to be compensated as of right. The enabling law which confers on him this right is the Employee’s compensation Act.
2.3.7    Vicarious Liability
The employer could be vicariously liable to third parties where the employee commits a breach of contract or tort against a third party. The employer will be bound to meet the claim. He may however, claim indemnify from the defaulting employee, under particular circumstances.
These amongst others are the notable statutory duties imposed on the employer.

2.4    RIGHTS OF THE EMPLOYER AND EMPLOYEE
Rights of the Employer
Rights has been given various definitions depending on individual understanding and the context in which it appears. Right is a legal concept of which is very difficult to define. If recalled, law itself hardly has a universally acceptable definition as it has taken a long time to proffer a universally acceptable definition by eminent jurists:
Dias – is of the view that right could be subsumed up under claims, liberty, power and immunity. To him, those ideas connote right.40
Marshal G – He defined right as an entitlement arising out of moral, social, political or legal rules.41
Rights is the benefit or treatment that is due to a man who can justifiably claim it. Rights is the important aspect of the contract of employment. It is the determining factor in industrial relation. Essentially, however,

rights and duties are created both by law and consent of the parties. It is against this backgrounds that the rights of an employer will be discussed.
a)    Right to Hire: The first fundamental right of an employer is the right to hire42. An employer has the right to hire or engage the services of a servant of his choice in accordance with the laid down criteria. Any employer can employ servant(s) if there is need for it. One basic fact however is that an employer must have a legal capacity before he can hire any servant. Again he must be ready to comply with statutory provisions relating to Labour43 and all other terms of the contract consented by both parties.
b)    Right to suspend: An employer has the right to suspend an erring employee. Broadly speaking, there are three main reasons why an employer may wish to suspend and they are:
i.    As a disciplinary measure
ii.    Because there is no work for him to do, and
iii.    On medical ground
This right enjoys statutory flavor44. It must be noted that other than this, suspension is only possible where they are provided for by the express terms of the contract or where such terms can be implied into the contract by customs and practice. Hence, any form of suspension which falls outside the frame work of labour Act will be declared null and void. In HANLEY v. PEASE AND PARTNERS LTD,45 an employee was away from work for one day without having first obtained permission from his employer to be absent. On his return, the employers suspended him for one day without pay contrary to any contractual right to do so. The employee sued and was awarded damages amounting to one day’s pay lost during the adjudged unlawful suspension.
c) Right to beIndemnified: An employer has the right to be indemnified by his employee for the consequences of the employee’s negligence conduct and when those consequences involved the employer in paying damages to the third party. Thus in LISTER V. ROMFORD ICE AND COLD STORAGE CO. LTD46,the defendant drove the company’s vehicle negligently in such a way to injure his own father who is also a servant to the company. The House of Lords held that the company was entitled to claim indemnity from the defendant in respect of damages which the company was obliged to pay the servant’s father in respect of the accident.
Right of An Employee
Employees, like employers, have rights both at common law and by statutes. These rights are more pronounced in the labour relations.
It is against this background that notable ones among these rights are discussed below:
a)    Right to remuneration: To all workers, the basic fundamental right  is the right to remuneration. This essentially comprises of salaries, wages, allowances and commissions. It is a right which in all cases forms part of the terms of agreement. This right enjoys statutory flavour.47The fact that the worker did not work during this period does not affect his entitlement to wages and salaries provided he presents himself at work with readiness and willingness to work. The view was expressed by ASQUITH L. J, in the case of COLLER V. SUNDAY REFEREE PUBLISHING CO. LTD thus:
“…. Provided I pay my cook her wages regularly, she cannot complain if I choose to take any or all of my meals out.”48
Both common Law and Statute provide that the remuneration could be daily, weekly, or on monthly basis but it should not be more than monthly period. The amount to be paid is always contained in the terms of agreement as accepted by both parties. Where no amount is specified or agreed upon, a reasonable amount may be implied or fixed by the court.49
b)    Right to participate in trade union: A worker is entitled to belong to and participate in union activities without any hindrance. This right includes right not to be prevented from joining or forming union with other trade unions, not to be preventive from taking part in the activities of trade union, not to be compelled to join a trade union  holding an office in a trade union, not to be compelled to join a particular trade union, if he is not interested in any. Like the employer, right to join a trade union is fundamental oneguaranteed by Nigerian Constitution50.This right is not without limitation. This is because the trade union act, 2004 categorically disallowed some employees from joining or partaking in any trade union. Those people include police, military, para-military, employees of Nigerian Printing and minting etc. The reason for this might be for state security. If this is the reason, then it is justified after all the constitution justified tampering with humanrights for security reasons.
c)    Right of an injured worker to compensation: A worker who is injured while working for his employer deserves to be compensated as of right. The enabling law which confers on him this right is the workmen’s compensation Act of 194251.  For a worker to be entitled to compensation for an injury,it must be accidental and out of, and in the course of employment. The questions then are what is “accidental”, “injury” and “out of and in course of employment” within the meaning of the Act? To answer them, therefore, judicial assistance will be given. Lord Macnaghten defines accident in FENTON v. THORELEY AND CO. LTD thus:
“… any likely mishap or unward event not expected or designed, or an unexpected occurrence which produces hurt or loss”.52 Injury on the other hand is defined in JONES V. SECRETARY OF STATE FOR SOCIAL SCIENCES53. When does an employee sustain injury out of and in the course of the employment? It has been held that this can be determined by examining the cause of the accident, where the employee was and what he was doing. Thus, injury sustained while inside bus provided by the employer to or from home will be one sustained out of and in the course of the job. Also, the employee must be performing his primary job or a reasonable incidental job of his own.

This article was extracted from a Project Research Work/Material Topic

“EMPLOYER’S LIABILITY TO HIS EMPLOYEE UNDER

THE NIGERIAN CONTRACT OF EMPLOYMENT”