Terms of contract of employment: Contract of employment means any agreement, whether it is oral or written, express or implied, whereby one person agrees to employ another as a worker and that other person agrees to serve the employer. Howeve, contract of employment is built around employer-employee relationship.
Contract of employment as a specialty contract has went through several changes as to its nature. Sone of this changes stem out from judicial authorities based on review and interpretation of labour legislations and common law status and opinion in line with changing circumstances.
Labour contract creates rights, duties and obligations to be embarked on by parties. When parties promises, certain rights and obligations arise out of the exchange of promises. These rights and obligations are seen from the terms of the contract. The extent of a party’s right and /or obligation and the effect of a breach of a particular term all depends on the trems of the contract in question.
Subject to the provisions of the law, parties to a contract are free to agree on what they choose to be the terms of their contract and the courts will rarely interfere with that.
Thus, when a dispute arise between parties, the duty of the court is to find the scope, extent and content of parties’ agreement and enforce the same. The contract of employment must be pleaded and proved because it is the foundation of the action. Without the contract and its particulars being pleaded by the plaintiff, no evidence of the terms of the contract which has been breached would be admitted at the trial; and this will be fatal to the action since it will lack foundation.
See the case of, Ezenwa V. KSHSMB(2011) 9 NWLR (pt 1251) were the court of Appeal held that where an employer has been dismissed from seervice, it is the terms and conditions governing his employment that have to be construed to determine the rights and obligations of the employer and employee. This underscores the primacy of terms of contract and its inevitability to labour contract.
Labour law is substantially regulated by law, statute constitutes a major source of terms of employment. This means that parties must align themselves to the rights, duties and obligations created by relevant statutes when entering into employment contract. Thus, statutory duties and obligations cannot be excluded by terms of the contract of employment, except where and to the extent that the law itself so allows.
Express terms – Terms of contract of employment
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 employment 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.