The express terms of contract are most times contained in documents spelling out the conditions of Employment or Regulations and Condition of Employment or Works Rules or Administrative Manual. Section 7 of the Labour Act makes it compulsory for an employer, not later than three months after the commencement of a worker’s employment, to take the particulars of employment, place and date of commencement of engagement, the nature of the employment, duration of the contract, method of termination of contract, wages and the period of payment, hours of work, holidays, holiday pay and sick pay.
This will, of course encapsulate the express terms of the contract. It consists of the oral statements made by the parties.i.e, the employer and the employee, in the course of their employment relationship intended to regulate the contract of employment.
Also, although at common law, a collective agreement is not regarded as contractually binding, where such collective agreement is given to an employee, such a document can assume the status of express terms where it was issued to the employee before or at the time of making of the contract oe where reference to it is made at such a time.
It is for this reason that the English Court of Appeal in National Coal Board V. Galley, (1958) 1 All ER 91 held that the terms of employment was regulated by the terms of collective agreement as agreed from time to time between the union and the employer.
The court came to this conclusion because the contract of emplyment in dispute provided that the contract of service shall be subject to certain collective agreement as varied from time to time.
Even where such documents are given to the employees after the labour has been created; the content will constitute express terms if the employee continues in such employment after the receipt of such document. In this connection, the Supreme Court in Ajayi V. Texaco Nigeria Ltd (1987) 3 NWLR 577, held that an employee’s Handbook signed and received at the instance of the employer four years after the contract of employment creates express term of labour contract.
An express term is, therefore one which has been the subject of discussion and acceptance by the employer and employee.
Implied Terms – Express Terms
The importance of implied term stems from the fact that in certain circumstances, it may be difficult to know the intentions of the parties without resorting to these implied terms. This is because express terms may not necessarilly state every detail of the intention of the parties in entering into the contract.
It is not in every contractual relationship that the parties will remember to express all the terms they intended to govern their contractual relationship. Human beings cannot envisage all things or terms which will be relevant in the making of a contract.
That is why the law in its wisdom, has allowed certain terms to be implied in contract. Terms implied into a contract of employment invariably imposes rights and obligations on parties to the contract even though they have not expressly provided for them. A number of situations can give rise to implied terms. Terms may be implied into a labour contract by statute, custom or practice and by court.
In Stabilini & Co. Ltd V. Obasa, (1997) 9 NWLR (pt.520) 293; the Appellate Court emphasized that contracts need not necessarily be in writing. According to the court, the conduct of parties can give rise to contractual obligations. This is so because a contract may be created expressly or by implication.
Similarly, in Ibama V. Shell Petroleum Co. Nig. Ltd (1998) 3 NWLR (pt.542) 493; the court unequivocally stated that in certain contract where no such express words are available then implied terms may be incorporated into the contract in so far as they do not contradict the express terms of the particular contract.