1.1 Background
of the Study
The history of the employment
contract dates back to the ancient Rome, according to the book “The employment
contract and the changed world of work” by Stella Vettori. It marked the
beginning of the relationship between employer and employee. Contract made
fundamental distinction between employment for work and employment for service.
The contract was unequal, in that the standing of the employer was held in
higher regard than that of the employee. Laws governing employment contract
have undergone numerous permutations since that time and are constantly
evolving.
Evolution had it that as contract
and civilizations become more complex in western Europe, the guarantor of
contract shifted from God, in the form of Roman Catholic Church, to the state,
in the 14th century, the English parliament codified the unequal basis of the
employer-employee relationship by passing a law that called for penalties
against an employee in breach of an employment contract, punishment for
employees found in violation of the contract includes lashings, imprisonment,
forced labour and fines. The inequalities persisted with long hours of work and
low wages. Still speaking, it was not until the end of 19th century
Master-Servant law survived as the basis for employment. It was then that both
parties, employer and employee, were viewed as entering into employment
contracts by mutual consent.
However, a huge disparity existed
for many years between the power wielded by employers versus that of the
employee the counts backed this fundamental inequality giving employers control
and employees no recourse to recover damages for such things as injuries
received at work.
Moreover, long before unions become
prevalent and began winning workers rights recognition in the court there was a
growing sense of unfairness about the employer-employee relationship that led
to violent and often deadly confrontations. In 1833, 18,000 Cotton workers
struck in the central valley of Califonia; four workers were killed before the
strikers won a pay increase. One of the famous uprisings was in 1877 when 10
coal mining activists were hanged in Carbon County. The group was known as the
molly maguires. Three weeks later, rail road workers struck with two other
unions, bringing railway traffic across the united states to a halt. Federal
troops were called in to end the strike, killing 30 workers and wounding 100
more. It was not until 1962 when President John F. Kennedy signed an executive
order allowing limited collective bargaining for federal employees that the
tide officially turned foreshadowing the executive act however, was the
establishment of a national minimum wage of 25 percents per hour in 1935. It
was struck down by the courts and re-instituted in 1938 at the same rate and
the rate has increased over the years, a minimum wage has remained in place
since.
Nevertheless, there are some
benefits noticeable in contract of employment thus; those businesses which
handle highly sensitive information may choose to make employment contract
standard in order to prevent former employers from sharing information or using
it against the company. Contracts also help companies control employee
productive during employment of the contract specifics performances standard
that the employee must meet, the employer can cite those standard as grounds
for dismissal if he/she need to fire the
employee at a later date due to poor performance. However the advantages aren’t
all tied to termination; contracts may also entice highly skilled workers with
the promise of Job Security, benefits, and clear expectation for the position.
Moreover, in line with wrongful
termination of employment contract the following damages or remedies is
available to the innocent party including
_ Without
Prejudice to sections 9, 10 or 11(2)
where a contract of employment is terminated otherwise than in accordance with sections 6 or 7, a sum equal to the amount of wages that would have been
payable had contract been terminated in accordance with section 7 shall be payable by the party terminating the contract to
the other party.
_ Without
prejudice to sections 9, 10 or 11(2) where a party to a
contract of employment having given proper notice in accordance with section 6 thereafter terminates the
contract before the expiry of the period of notice other wise than in accordance
with section 7, such proportion of
the sum referred to in subsection (1) as in proportionate to the period between
the termination of the contract and the time when the notice given would have
expired be payable by the party terminating the contract to the other party.
_ For
purpose of calculating the sum referred to in subsection (1) where the party
terminating the contract has not given notice of the termination to the other
party in calculating the daily average or monitoring average of the wages earned
by the employee in accordance with section
7, the reference in that section to
the date on which the party terminating the contract gives notice of the
termination to the other party or to the date of notification is to be
construed as a reference to the date of termination of the contract.
1.2 Statement
of the Problem
Employer sometimes decides that they
want to change the contract after it has already been signed which is not
easily done.
Changing the terms at a later will
require fresh employment negotiations to which the employee may not be amenable
especially if the new terms involve a short contract length or fewer benefits.
Contracts of employment holds an
obligation on the employer to abide by the covenant of good faith and fair
dealing which can penalize employee if they violate the contract on fails to
act in good faith towards the employer.
Employees may sometimes find it
difficulty to change employment if they have agreed to set out time period in
the contract.
Generally speaking, employers that
are under contract are not “at will” employee because the contract will spell
out the specific grand on which the employer can terminate the employee.
Some other employees are required to
sign written agreements that stated that their employment is at will, meaning
that the employer can fire them at any time for any reason (as long as the
reason is not illegal).
Employers that work at will often get their employees
to sing employee handbook acknowledgement or other document that states that the
employer known his or her employment is at will. These documents unlike
“regular” employment contracts do not limit an employer’s ability to terminate
an employee.
1.3 Research
Questions
1. What is contract of employment?
2. Who is an employer?
3. Who is an employee?
4. Who is an independent contractor?
5. What are the natures of contract of
employment?
6. Distinction between employer and
employee?
7. What
are the distinction between contract of service and contract for service?
8. What is wrongful termination of
contract of employment?
9. What
are the remedies for wrongful termination of contract of employment?
10. What are the vitiating elements of
contract of employment?
1.4 Objectives
of the Study.
a. To
bring out the meaning and history of contract of employment.
b. To
examine the remedies for wrongful termination of contract of employment.
c. To
examine the legal frame work for the protection of employers and employees in
the contract of employment
d. To
examine the appropriate remedies in contract of employment.
e. To proffer workable environment between
the employers and employee.
1.5 Research
Methodology
This research work adopted multiple/
different methods on the cause of its findings which includes:
(1) Primary
Sources of data i.e. subsidiary instrument, judicial authorities etc.
(2) Secondary
Sources of data was also of immense assistance in clarifying some knotty
issues.
(3) Documentary
analysis, observation and cross data validity checks will also be made.
(4) In this
age of ICT, we cannot but exploit the opportunities posed by the internet in
order to know the current views of different scholars and commentators in this
field and as well get acquainted with the moving trend in the world of I.C.T.
1.6 Relevance
of the study
This work being an appraisal in a
sensitive area of law, it’s important or benefits to all employers and
employees, trade union government, labour union congress, business
organization, master/servant relationship can not be over emphasized.
1.7 Scope
of the Study
In as much as this work is titled
the examination of remedies for wrongful termination of contract of employment
it shall focus or have its scope or limited to commerce and industry, within
the sphere of employer and employee, in the sense that administrative and
technical personnel cannot fall under it except where there is Master/Servant relationships.
This work will also be limited to
problems posed by employment contract in Nigeria
1.8 Limitation
of the Study
An examination of remedies for
wrongful termination of contract of employment in Nigerian like every other
discussion on various field of learning and human endeavours has certain
inherent limitations some of these limitation general arise from the facts that
this area of study has not received much of the attention needed from Nigeria
legal scholars.