LABOUR LAW — Contract of Employment — Variation — Exchange of Correspondence — Effect of Transfer of Service
Principle Statement
Where an employee is transferred to a new employer and the correspondence between the parties indicates that the employee's previous years of service will be recognized, the terms of the new letter of appointment are varied accordingly, and the employee will not be treated as a fresh employee on probation.
Ratio Decidendi (Source)
Per Ogbuagu, JSC, in CBN v. Igwilo (2007) NLC-123-83-2002(SC) at p. 31; Paras A–C.
"The acceptance by the 1st appellant of the respondent on transfer of service and having custody of his record of service, the inevitable inference or conclusion by me, is that the 1st appellant will take into consideration the respondent's eighteen (18) years service before he was employed by the 1st appellant and thus, the respondent will certainly not be a fresh employee of the 1st appellant under probation. The said letters/correspondences actually and eventually varied Exhibit 'A' — the letter of appointment which included that of probation." x
Explanation / Scope
A contract of employment can be varied by subsequent agreement between the parties, which may be inferred from their conduct or correspondence. Where an employee is transferred from one statutory body to another, and the receiving body acknowledges the employee’s previous service and takes custody of service records, the terms of the new appointment are varied to reflect continuity of service. The employee cannot then be subjected to a probationary period as if newly employed. The principle recognizes the importance of the parties’ intention as expressed in their exchanges and prevents unjustified demotion or loss of seniority.
