MEANING OF EMPLOYER
Section 9 1(6) of Labour Act16 defined an employer as:
”Any person who has entered into a contract of employment to employ any other person as a worker, either for himself or for the services of another persons, and includes the agent, manager or factor of that first mentioned person and the personal representatives of a deceased employer.”
The above definition of an employer was given credence in the case of Onumjalubi v NNPC17. It is an accepted fact that for the object of effective and efficient management of an enterprise, the services of other persons are always in demand. This could either be skilled or semi skilled, professional or non-professional. From the above illustrations, an employer becomes one who engages the services of others.
”Any person who has entered into a contract of employment to employ any other person as a worker, either for himself or for the services of another persons, and includes the agent, manager or factor of that first mentioned person and the personal representatives of a deceased employer.”
The above definition of an employer was given credence in the case of Onumjalubi v NNPC17. It is an accepted fact that for the object of effective and efficient management of an enterprise, the services of other persons are always in demand. This could either be skilled or semi skilled, professional or non-professional. From the above illustrations, an employer becomes one who engages the services of others.
Similarly, Black’s Law Dictionary, Sixth Edition18, defines an employer thus:
“One who employs the services of others, one
for whom employees work for and who pays their wages or salaries.”
It may also be defined as any person, partnership, corporate body or unincorporated association who (or which) employs one or more persons under a contract of employment19.
From all these definitions or description given above, it can be readily and rightly conceived that an employer is one who engages the services of another in consideration of monetary payment.
Meaning of an Employee. An employee strictly means one who works for another in return for a salary, wages or other considerations20
An employee could also be seen as:
“A person in the service of another under any contract of hire, express or implied, oral or written, where the employer has the power or right to control and direct the employee in the material details of how the work is to be performed”21
The status of employer and employee is made clearer when the parties reveal their contractual terms. Normally, contracts of employment could either be for services or of service. The disparity lies in who controls and directs the way in which the work is to be done or performed.
2.4 Distinction Between An Employer And Employee.
In making an attempt to distinguish employer from empIoyee, it is very pertinent to point out the primary disparity, which is that while an employer is one who engages the service of an employee, the employee renders this service to the employer in consideration of wages or salary.
There are other differences amidst the relationship between employer and employee, they are:
a) Payment of remuneration by the employer. There is no doubt that the wages or salary that an employer is obliged to pay will normally be the subject matter of an express term of the contract. It is the duty of the employer to see to the payment of his employee. A term to pay will be implied in circumstances that clearly indicate that employment was not gratuitous22
Where there is implied contract or term of contract to pay, payment is on quantum meruit23. Also where there is a breach of contract of employment, the injured party, instead of suing for damages, may claim payment for what he has done under the contract. However, his right to payment does not arise out of the original contract, but based on an implied promise by the other party arising from the acceptance of an executed consideration.
As the employer pays wages and salary, an employee provides careful service in course of discharging his function. If an employee is dismissed for breach of contract of employment, he cannot sue for wages for period he did not work24.
b) Another distinction that abounds between the relationship of employer and his employee can be found in the exercise of control the employer wields over his employee. Thus, the control is not absolute since it cannot be observed in all the aspect of contract of employment25.
c) Accountability; the employee is accountable to his employer. This is one of the basic distinguishing factors in the relationships between employer and his employees. Where the employee has received property belonging to the employer, he is accountable to his employer or where he takes advantage of his office to enrich himself dishonestly, he will have to account to the employer for any gain that accrued26. Even where the employee was dismissed on the account of such dishonesty, he/she will still be accountable when or after a disciplinary committee/panel has investigated the misconduct. In Uzoho v Task Force On Hospital Management27, the court held that an irregular receipt of the employer’s money by the employee could be treated as misconduct justifying the summary dismissJ of the employee after a disciplinary committee/panel has investigated the misconduct. But the employer is not accountable to the employee because the latter is the servant while the former is the master.
From all that has been said, it can be seen that differences abound between the employer and the employee, which differences make for clearer understanding of the terms under which the contract of employment subsists.
16 Cap 198
Laws of the Federation, 1990
17 (1999)12
NWLR (pt 632) P. 628.
18 Black S
Law Dictionary Sixth Ediition and Edition have same definition of employer and
can be referred same
19 N.M
Selwyn, Selwyn S Law OF Employment, Buttherwoths, London, 9th (ed) 1996 p. 40
20 This
Definition is gotten from the New International Webster Dictionary Of English
Language P 414
21 Black’s
Law Dictionary Sixth Edition has a comprehensive explanation on the meaning of
employee
22 Per Lord
Atkin In Way v Latilla (1937) 3 Aller 759, 763; E.E UVieghara, Labour Law in
Nigeria Malthouse, Lagos Nigeria. 1st (ed) 2001 P
34
23 Peters Of
Oron V Siimmons (1924) 5 NLR, Where Mr. Simmons entered into an oral agreement
with the plaintiff for a fresh employment but without specifying the rate of
wages.
24 Nigeria
Deposit Insurance Corporation v Obende (2003) FWLR (PT 116) 921 CIA
25 Hans
Schenhel v A.O Nigeria Ltd & Atmn
Ltd (1967) 2 ALR CoMM. 167.
26 Reading v
Attorney General (1951) ac 507, where a serving sergeant n the British Force in
the Middle East, used to accompany in uniform lories carrying smuggled goes
through Cairo.
For this he made huge sum of money from the smugglers. The court held that
being in the service of the crown, he has used his position to obtain a private
gain for himself and he has to account to the crown for the money received.
27 (2003)
FWLR (pt) 166 C.A