The contract of employment deals with the relationship
between an employer and employee. This contract, that is also called a contract
of service, is markedly different from a contract for services, under which an
independent contractor is engaged28.
A contract of service must be distinguished from a
contract for services. In a contract for services a person engages another
called an independent contractor to carry out a specific kind of work. Under
this contract, the employer has no power to control the manner of execution of
the work29.
In Flash Fixed Odds Ltd v Chief J 0 Akatugba30, the court clearly pointed out
that an employee could not be an independent contractor. In that case, the
court opined:
“A person under the employment of a company or
enterprise cannot in law be an independent contractor.”
In a contract for services, the independent contractor
is responsible for the final result, which he has agreed to achieve, but he is
not under the control of his customer-employer with regard to the method, he
employs in achieving it. In other words, the independent contractor is neither
directed nor controlled on how best to achieve maximum efficiency and
expertise; rather, he performs his job as o professional, while the employee
who is on contract of service is controlled and directed. Thus, in Collins v
Herts County Council31, Hilbery
J, said;
“The distinction between a contract for service and a contract of service can be summarized in this way: in the one case the master can order or require what is to be done, while in the other case, he can not only order or require what is to be done but how it shall be done.”32
The relevance of the distinction between a contract of
service and a contract for services is based on the fact that an independent
contractor cannot enjoy the rights and privileges of a servant or worker. The employer is not generally responsible or liable for the acts of his independent contractor.
contractor cannot enjoy the rights and privileges of a servant or worker. The employer is not generally responsible or liable for the acts of his independent contractor.
The courts have had to distinguish between employees
and independent contractors in the following ways:
i) At
common law, an employer is vicariously liable for the civil wrongs (torts) of
his employees but not, generally, for those of independent contractors.
ii) Statutes
such as Labour Act Cap 198, the Workman’s Compensation Act, Cap 470, afford
legislative protection to certain class of employees that do not apply to
independent contractors.
iii) Although
an employer owes, at common law and under statutes’33
a general duty of care to lawful visitors to his premises, he owes to his
employees at common law a personal duty of care, which is a duty to take
reasonable care for the safety of his employees in the course of their
employment.
1v) Employers
deduct income tax under the PAYE (Pay As You Earn) system, from the wages or
salary of employees; independent contractors or self-employed persons pay their
tax under a different method.34
2.6 Vitiating
Elements Of Contract Of Employment
i) Illegality
Of Contract
Any contract, including a contract of
employment, which has any object, which is contrary to a statute or the
common law or even public policy, is illegal, must be void, and normally the
courts will not assist in enforcing such a contract.35
In Lavabre v Excelsior Hotel Ltd36, where
a foreigner was only authorized to practice as an architect under a
construction company, in accordance with the requirement of the Immigration
Act, but he practiced on his own. The court held that a contract he entered
into was illegal. He was, therefore, not entitled to sue and recover money for
services rendered under the contract; not even on the basis of quantum
meruit.
Similarly, in Chivers v Davis of AmericaI37, where an alien took up employment
in defiance of the provisions of the Immigration Act, the court refused to lend
its assistance in enforcing his action for damages for wrongful termination of
employment.
28 Tony
Nwazuoke, Introduction To Nigerian Labour Law, The Departmnt of Public Law and Jurisprudene Ogun State
1st (ed) 2001 P. 21.
29 Okene
O.V.C Industrial law In Nigeria, A Concise Text at P. 14, where a distinction
between master servants was made.
30 (2001)
FWLR (PT 76) 709 C.A
31 (1947) K B
598 at 615.
32 Tony Nwazuoke,
Introduction To Nigerian Labour Law, The Department Of Public Law and Jurisprudence Ogun State.
1st (ed) 2001 P 22.
33 1961 Cap
67 of Lagos State.
34 Tony
Nwazuoke, Introduction To Nigerian Labour Law, The Department of Public Law And
Jurisprudence Ogun State.
1st (ed) 2001 P 22.
35 E E
Uviaghara, Labour Law In Nigeriam Malthouse, Lagos
Nigeria
1st (ed) 2001 P 20
36 (1967) LLR
141
37 (1971) NCLR 89