Abstract

One can hardly talk about the law as it concerns the labour/employment realm without making reference to an employee. One of the keys to understanding the subject of a contract of employment in Nigerian jurisprudence is by appreciating the legal meaning of an employee. Colloquially, reference to an employee in Nigeria entails a person who works for another and is paid subject to the terms of the agreement between the parties. Legally speaking, however, not all forms of employment relationships qualify those employed to be named ” employees” as there are two forms of employment contract in Nigeria to wit: contract of service and contract for service. While a person employed in the former is known as an employee, a person employed in the latter is known as an independent contractor. This article, therefore, has discussed the meaning of an employee in contrast to an independent contractor. Various attempts by labour statutes and the courts to help define an employee were also revealed in this article and in its conclusion, this article exposed that ascertaining an employee under the Nigerian contract of employment is a question of fact as a general rule and that different statutes have compartmentalised workers into different classes to suit the areas covered by them.

INTRODUCTION

There are various relationships[1] that exist between persons , having the semblance of a contract of service popularly known as a” contract of employment ” in the Nigerian legal system. An employee is first ascertained by the type of employment relationship that exists between him and his employer. There are basically two types of employment relationships in Nigeria viz; contract of service and contract for service. Due to the complex nature of some employment relationships, it is sometimes difficult to ascertain whether or not a person employed is an employee or an independent contractor. This article will aid in solving this problem by discussing the ways an employee can be ascertained under the Nigerian legal system.

In ascertaining whether or not a person legally qualifies as an employee, this question should be posed ; “what type of employment contract is he engaged in”? This is because the consequences of each form of employment vary. While a person engaged in a contract of service is an employee, a person engaged in a contract for service is an independent contractor. A contract of service must be distinguished from a contract for service. In the former, an employee places his labour at the disposal of another resulting in a relationship between the two parties while in the latter, the independent contractor is his own master so that in the actual execution of the work, he is not under the order or control of the person for whom he does it and may use his own discretion in things not specified beforehand.

A contract of service is synonymous with a “contract of employment”. Traditional statements of what constitutes a contract of service, places most emphasis on the power of the employer to control the work of the employee in contrast to a contract for service. The Black’s Law Dictionary[2] didn’t define a contract of service but defined an “employment contract” as “ a contract between an employer and an employee in which the terms and conditions of employment are stated”. In Chadwick v Pioneer Private Telephone Ltd[3], a contract of service was defined as implying an obligation to serve and it comprises some degree of control by the master. It must be noted that there is no comprehensive definition of contract of service. An attempt has however been made in the realm of labour legislation in Nigeria in defining a contract of employment. Section 91(1) of the Labour Act[4] defines a contract of employment as” an agreement, whether 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 as a worker”.

The courts have also made efforts in defining an employee. Over the years, various tests have been developed by the courts to aid in ascertaining a contract of service in contrast to a contract for service. They are; the control test, the integration/ organizational test, the multiple test, the mutuality of obligation test and the entrepreneurial test. The control test is the oldest test. The control test places emphasis on the power of the employer to control the manner by which the employee does his work. Under the integration/ organizational test, a contract of employment is said to exist when the employee is part and parcel of his employer’s establishment and his work is done as an integral part of the business. By the mutuality of obligation test, where there is an obligation to provide work in the case of an employer and that of an employee to accept the work provided; an obligation of the employee to perform his duties and an obligation on the part of the employer to pay the agreed wages or salary and secure the job of the employee, a contract of employment is said to exist. Under the multiple test, multiple factors are taken into consideration to ensure a situation that will point to a contract as being one of service. Certainly, the power of selection, the payment of wages , national insurance stamps, income tax, holiday monies and pensions, and the power to suspend and dismiss are all relevant features which need to be taken into account. By the entrepreneurial test, if the following questions are answered in the affirmative then, a contract of service is said to exist: does the employee provide his own equipment? Hire his own helpers? Is he in business on his own? Is there any degree of financial responsibility for investment or degree of risk? Does he undertake any other sort of commissions, business or employment?, etc[5].

These tests discussed cannot satisfactorily prove the existence of a contract of employment. Thus, the Nigerian Supreme Court in the case of Shena Security Co. Ltd v Afropak ( Nig) Ltd &2 Ors [6] , gave the current position on how to ascertain the requisite legal status of an employee against an independent contractor. The Supreme Court held that “ where there is a dispute as to what kind of contract of employment parties entered into, there are factors which will usually guide a court of law to arrive at a right conclusion for instance;

If payments are made by way of”wage” or “ salary” this is indicative that the contract is one of service. If it is a contract for service, the independent contractor gets his payment by way of “ fees” . In a like manner, where payment is by way of commission only or on the completion of the job, that indicates that the contract is one for service.
Where the employer supplies the tools and other capital equipment, there is a strong likelihood that the contract is that of service. But, where the person engaged had to invest and provide capital for the work to progress, that indicates that it is a contract for service.
In a contract of service/ employment , it is inconsistent for an employee to delegate his duties under the contract . Thus, where a contract allows a person to delegate his duties thereunder, it becomes a contract for service.
Where the hour of work is not fixed, it is not a contract of employment/ service.
It is not fatal to the existence of a contract of service/ employment that the work is not carried out in the employer’s premises. However, a contract which allows the work to be carried on outside the employer’s premises is more likely to be a contract for service.
Where an office accomodation and a secretary are provided by the employer, it is a contract of service/ employment.”
In Eze v N.A.M.A & Ors[7] the court held that there is no one definite test as formulated by the courts over the years that is a complete answer for determining the employment status of an employee. Hence, the courts have held that the issue is one of fact and not of law.

It is also important to note that a plethora of terminology is used by different statutes to describe the person employed so that we find the words” employee” , “worker” , “workman”, and “servant” being used . However, whatever term that is used has been usually similar to an employee in a contract of employment. Statutory definitions must however be confined to the individual statutes concerned as legislations define for the purpose of the subject matter covered by them . So many statutes define an employee to suit their respective purposes, in such situations, one need not go outside the statute to discover the meaning of an employee. These definitions can either be restricted or wide in scope. For instance, by Section 91(1) of the Labour Act[8], a worker means “ any person who has entered into or works under a contract with an employer, whether the contract is for manual labour or clerical work or is expressed or implied or oral or written and whether it is a contract of service or a contract personally to execute any work or labour but does not include;

any person employed otherwise than for the purposes of the employer’s business, or
persons exercising administrative, executive, technical or professional functions as public officers or otherwise, or
member’s of the employer’s family
representations, agents and commercial travellers in so far as their work is carried on outside the permanent workplace of the employer’s establishment, or
any person to whom articles or materials are given out to be cleaned, washed, altered, ornamented, finished, repaired or adapted for sale in his own home or on other premises not under the control or management of the person who gave out the articles or material, or
any person employed in a vessel or aircraft to which the laws regulating merchant shipping or civil aviation apply”.

The Pensions Reform Act[9] provides a restrictive definition of an employee. Section 102 of the Act defines an employee to mean” any person employed in the Public Service of the Federation and Federal Capital Territory or private company or organization or firm”.

Section 54(1) of the National Industrial Court Act[10], defines an employee as : “ a person employed by another under oral or written contract of employment whether on a continuous part time, temporal or casual basis and includes a domestic servant who is not a member of the family of the employer”.

This definition expands the meaning of an employee beyond the common law definition of an employee. It also provides protection for some part time, temporary and casual workers.

Other labour statutes have also defined an employee for the purpose of the subject matter covered by them [11]

In conclusion, the meaning of an employee is a question of fact as a general rule since the facts of each case must be carefully studied in order to find out whether the employment contract is one of service or for service. As noted earlier , statutory definitions of an employee may be wide or restricted in scope for the purpose of the subject matter covered by them and in such cases, an employee will be ascertained from the definition given by that statute.

REFERENCES

Emiola, A., “ Nigerian Labour Law”, Benin 4th Edition, AMFITOP 2008.

Erugo, S.E., “Introduction to Nigerian Labour Law, Contract of Employment and Labour Practice”, Ikeja, Princeton & Associates Publishing Co. Ltd., 2019.

Oji, E.A., and Amucheazi, O.D., “ Employment and Labour Law in Nigeria”, Lagos, Mbeyi & Associates (Nig) Ltd, 2015.

Garner, B.A., “ Blacks Law Dictionary”, 8th Edition, 2004.

ABOUT THE AUTHOR

Mary Chioma Ogwo is a recent graduate of law from Abia State University and is awaiting admission into the Nigerian law school. She is passionate about legal writing and has an interest in labour/ employment law. Feel free to reach her through her e-mail – maryogwo6@gmail.comfor questions or more enquiries.

[1] For example; contract for service and apprenticeship.

[2] Garner, B.A., “Blacks Law Dictionary”, 8th Ed., 2004, 344.

[3] (1941) 1 All ER 522

[4] CAP L1 LFN 2004

[5]Erugo, S., “ Introduction to Nigerian Labour Law ; Contract of Employment and Labour Practice”, 2nd Ed., Lagos, Princeton and Associates Publishing Co.Ltd 2019, 55.

[6] (2008) 18 NWLR (Pt. 1118) 82.

[7] ( 2016) JELR 41329 (CA)

[8]Op.cit

[9] 2004, Act No.2

[10] 2006

[11] For instance, see the Nigerian Social Insurance Trust Fund Act, Trade Disputes Act, Nigeria Dock Labour Act, National Minimum Wage Act, etc.