BAYO'S PERISCOPE

Thursday, March 7, 2019
[email protected]
Washington, DC, USA
WHO IS AN EMPLOYEE?

n 13th January 2019, the Court of Appeal, Ado Ekiti Division delivered its judgement on an eligibility case between Chief Olusegun Oni and Dr. Kayode Fayemi. The three Learned Justices in a unanimous decision throw out the appeal of Segun Oni for lack of merit. The kernel of their decision rests on their opinion that: Dr. John Kayode Fayemi, as "Minister of Mines and Steel, even though, in the Public Service of Federation was not an employee in the Public Service."

The Justices threw up a key question and provided an answer which informed their final outcome of the case in their court. They asked: "But is he an employee in the Public Service?" They continued: "The answer to this would depend on what the word "employee" used in Article 2 of the 2014 Guidelines means. The Article did not define the word "employee". So resort can be made to the ordinary literal and grammatical meaning of the word. The Chambers Dictionary defines the noun employee as a person employed for wages or salary. The fact is common knowledge and is not reasonably open to question that a Minister is not employed for wages or salary. He has no permanent established Service Contract in the public service. So service as Minister is not based on a permanent established contract of service." And they concluded: "It is clear from the forgoing that the 1st Respondent as Minister of Mines and Steel, even though, in the Public Service of Federation was not an employee in the Public Service. Therefore Article 2 of the 2014 Guidelines was not applicable to him."

I personally don't have any problem with their question but it is their provided answers that quickened my interest in their ruling. My first irritant is the fact that here is a purely legal matter that was handled with an English Grammar Dictionary. Then my own questions include, why did the three legal luminaries resorted to using "the ordinary literal and grammatical meaning of the word" employee, found in the Chambers English Dictionary to define such a key legal word "employee" at the chamber of such a Higher Court? If "a Minister is not employed for wages or salary," did he work gratis or gratuitously? If the Minister had no permanent established Service Contract in the public service, did he work part-time or was he daily paid?

WHO IS AN EMPLOYEE?

My finding answers to the question: "Who is an Employee," will not follow the path of the three Justices of the Court of Appeal, who relied on "the ordinary literal and grammatical meaning of the word" employee, as provided by the Chambers English Dictionary to define such a weighty legal key word "employee." Rather, I will rely on the wisdom of legal or Law dictionaries that can make much and better difference. 'Employee' as used in the 1999 Constitution of the Federal Republic of Nigeria and the 2014 Guidelines for Nomination of Candidates for Public Office by the All Progressive Congress party (APC), deserves better operational definition and conceptual clarification, considering its importance to the outcome of the case.

For instance, the definition of "Employee" in the American Labor and Employment Law according to Kenneth G. Dau-Schmidt, JD, PhD (Presentator) Professor of Labor and Employment Law, Indiana University - Bloomington; is a person who is subject to "direct and control" in the performance of some compensated duties, and accordingly, it is appropriate to hold the employer liable for torts of the employee he "controls." In determining who constitutes an "employee" under the test, courts have used a number of factors such as: (1) the degree of control exercised by the alleged employer; (2) the extent of the relative investments in equipment and material; (3) the worker's opportunity for profit and loss through the managerial skill; (4) the skill and initiative required for the work; (5) the permanence of the relationship; and (6) the extent to which the service rendered is an integral part of the alleged employer's business, where the employee work.

Then, there is the "Doctrine of Respondeat Superior," which is a "legal doctrine that is commonly used in tort. This principle makes an employer or principal legally responsible for the wrongful acts done by an employee or agent, if such acts occur within the scope of the employment or agency." "Under this doctrine, an employer is liable for the negligent acts or omissions of his/her employee which are committed within the scope of his/her employment. To impose liability, there should be some evidence that a master-servant relationship existed between the parties." "The test to determine if respondeat superior applies, is whether the person sought to be charged as a master had the right or power to control and direct the physical conduct of the other in the performance of the act. If there is no right to control, there is no liability. [Wilson v. United States, 989 F.2d 953, 958 (8th Cir. Mo. 1993)]."

Here is an example of a case law on the doctrine:

"The respondeat superior doctrine provides that an employer is subject to liability for torts committed by employees while acting within the scope of their employment. The doctrine's scope is limited to the employment relationship and to conduct falling within the scope of that relationship. [CBS Corp. v. Fed. Commun. Comm'n, 535 F.3d 167 (3d Cir. 2008)]."

Indeed and in fact, using any Standard English Dictionary will define an "employee" as "a person who works for another in return for financial or other compensation" (American Heritage Dictionary of the English Language, 1978). But by this English Dictionary, an independent contractor or consultant who is temporarily engaged under some contractual conditions and obligations may also be qualified to be called an "employee." This is because a contractor or a consultant works for another person also in return for financial or other compensations. But if we go legal and checked a law or legal dictionary, an "employee" may need more than just working for "financial or other compensations," for the services provided or rendered for and paid by an "employer," or principal or agent,

Let us now go legally or become more lawyerly, consulting a readily available and very popular Black's Law Dictionary, which "defines "employee" 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" (Henry Campbell Black, Black's Law Dictionary (St. Paul, MN, USA, West Publishing Co, 1991), p. 363.

Now contrary to the above, the same Black's Law Dictionary sees, an "independent contractor" or consultant as one who, "in the exercise of an independent employment, contracts to do a piece of work according to his own methods and is subject to his employer's control only as to the end product or final result of his work" (Ibid., p. 530). He's not controlled or directed by the employer and therefore not an "Employee".

Therefore, a worker will be classified as an employee, if the employer determines, controls and directs the process of his work. However, same the person will be an independent contractor or consultant, if he's free of the control of work process by the employer. For instance, if he is not under the direction and control of how he does his work; there may not be any or a strict employee-employer relationships. He is not a member of staff and does not attend staff or cabinet meetings.

Where there is no Statute, or where there is no definition as in the 2014 APC Guidelines, we can apply commonsense or Common Law and legal definitions of the word "EMPLOYEE." It has thus been shown that Dr. John Kayode Fayemi, was an "employee" of the Public Service, being "a person in the service of another, the President of Nigeria, "under any contract of hire, express or implied, oral or written, where the employer (the President or the Federal Republic of Nigeria) has the power or right to control and direct the employee (Fayemi) in the material details of how the work is to be performed" (Ibid., p.363).

Therefore in his workplace, the Ministry of Mines and Steel, where he worked, he was "definitely an employee," as the President was his boss to whom he reported and who controlled the process of his work, or the Chief of Staff, or Secretary to Government. There was a system of payment in place, there was an ongoing "employer-employee" relationship, and the employer provided him furnished office space, a Minister of State and other auxiliary staff members; paid salaries and other emoluments provided by the Government which was the overall Boss.

From the above, the question, "But is he (Dr. Kayode Fayemi as Minister of the Federal Republic of Nigeria) an employee in the Public Service?" has thus been laconically answered. I can also state that the answers captured the meaning and usage of the word "employee" in Article 2 of the APC 2014 Guidelines. Though the Guidelines did not define the word "employee", and I did not resort "to the ordinary literal and grammatical meaning of the word," by using The Chambers Dictionary to define the noun employee. Rather, I used a legal dictionary and other legal authorities which concluded that Dr. John Kayode Fayemi, as an aspirant contested for the Primaries of the Ekiti State APC on May 12, 2018 was an EMPLOYEE of the Public Service being a Minister of the Federal Republic of Nigeria.

Therefore, Dr. John Kayode Fayemi did not comply with Article 2 of the APC 2014 Guidelines for the Nomination of Candidates for Public Office when contested as an aspirant, the Ekiti State APC Primary Election on May 12, 2018 Primary Election.

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