DUTIES OF THE EMPLOYER
1. Duty to pay wages and salaries:
This is to be determined by the contract of employment but where there is no provision to that effect in there, amount payable will depend upon the value of service rendered. The employer is to pay quantum meruit which is determined by the reasonable man’s test.
Once the duty to pay wages or salary exists, the employer is, at common law, to continue to pay such remuneration to a worker who is ready and willing to work, whether or not work is provided for the employee.
2. Duty to provide work:
Generally, an employer does not owe an employee duty to provide work. The primary duty is to pay the agreed salary or wages. In COLLIER v SUNDAY REFEREE PUBLISHING, the court noted that the contract of employment doesn’t oblige the master to provide the servant with work provided the former pays the remuneration regularly. However, there are certain exceptions to the above duty: a. where the employment has to do artistes where the amount of work done increases the publicity and exposure required for further advancement b. contracts of apprenticeship c. where payment is dependent upon the amount of work done e.g. remuneration by commission or piece rate d. s. 17 Labour Act, provides that every employer shall provide work suitable to the worker’s capacity on every day (except rest days and public holidays) on which the worker presents himself and is fit to work, except where a collective agreement provides otherwise, or unless a worker has broken his contract.
3. Duty to provide testimonial or reference:
There is no duty on the part of an employer to give a testimonial or reference in respect of his employee either during the employee’s employment or at the termination of that relationship. But where he does give a reference or issue a testimonial, he must give a true account of the employee’s character. A careless statement may render him liable in tort for negligence. A false reference may also land him in court or make him liable for defamation or deceit. The HEDLEY BYRNE v HELLER principle applies.
4. Duty to provide indemnity:
An employee is entitled to an indemnity from the employer in respect of expenses reasonably incurred whilst executing his duties. S. 5, Labour Act restricts the right of an employer to make deductions from the wages of a worker, except as expressly permitted by the Act or any other law. The proviso to the subsection allows a reasonable deduction in respect of injury or loss caused to the employer by the wilful conduct or neglect of the worker.
5. Duty of Care:
It is the duty of the employer to take reasonable care of the safety of employees in the course of their employment. This duty extends in particular to the safe conduct of work. But it is not restricted to these matters. In Paris v Stepney Borough Council, the claimant only had sight in one eye due to in injury sustained in the war. During the course of his employment as a garage hand, a splinter of metal went into his sighted eye causing him to become completely blind. The employer did not provide safety goggles to workers engaged in the type of work the claimant was undertaking. The defendant argued there was no breach of duty as they did not provide goggles to workers with vision in both eyes and it was not standard practice to do so. There was therefore no obligation to provide the claimant with goggles. The court held that there was a breach of duty. The employer should have provided goggles to the claimant because the seriousness of harm to him would have been greater than that experienced by workers with sight in both eyes. The liability of the employer is personal and vicarious. It is vicarious where the tort is committed by his employee in the course of his employment against a third party who may or may not be an employee.
We shall now consider when the employer’s vicarious liability will arise. By vicarious liability, we mean a master is liable for any wrong (criminal or tortuous) committed by his servant while acting in the course of his employment. The doctrine means that one person takes the place of another so far as liability for the tort is concerned. In essence, it is the relationship of master and servant that of itself gives rise to this liability. In IFEANYI CHUKWU (OSONDU) v SOLEH BONEH, a vehicle belonging to the plaintiff was largely damaged by a vehicle belonging to the defendant. The plaintiff first filed an action against the driver but because the latter could not be found, his employer was sued. The defendant argued that there was no cause of action against it, since their liability was only vicarious, unless the driver who was primarily liable was first prosecuted. The SC noted that it is not necessary to join the servant in an action against the employer as the claimant is at liberty to choose whom he wants to sue. All the plaintiff need prove is the liability of the wrongdoer, and prove that the wrongdoer is a servant of the master and that the wrongdoer acted in the course of his employment with the master.