By Benedict Olutan, Associate (Corporate, Commercial and Energy Advisory)
In May 2022, the International Labour Organization (ILO) reported that about 3 million workers are lost to occupational hazard yearly. Unfortunately, victims of occupational hazards are either laid off or advised to quit without adequate compensation. The question is: what are the liabilities of employers in cases of fatal and non-fatal injuries or occupational hazards? This article brings to light whether and to what extent, an employer will be liable to accidents and injuries sustained by employees in the course of employment.
STATUTORY FRAMEWORK FOR EMPLOYERS’ LIABILITY TO EMPLOYEES
There are two principal legislations that provide for the liabilities of employers in the event of work-related accidents. They are the Factories Act and the Employee Compensation Act.
Factories Act, 2004
The Factories Act, 2004 was enacted to protect factory workers exposed to occupational injuries and hazards. Notably, the definition of “factory” under Section 87 of Factories Act, 2004 undoubtedly limits the application of Factories Act to employees at factories or such other workplace where machines, engines, vehicles or such mechanical-power supplying engines are used in connection with or for the purpose of work at workplace. The Factories Act provides comprehensive provisions as to cleanliness at the workplace which enhances general safety of employees at factories and obligates employers to provide a safe factory/workplace for workers. All that is required of an employee involved in fatal accidents and injuries at workplace is to show a clear case of breach of any of these statutory duties. In doing this, the employee shall establish the existing duty of safety imposed on the employer and owed to the employee, and that the duty has been breached which has resulted in damages.
Employees’ Compensation Act, 2010
Unlike the Factories Act, 2004, the Employees’ Compensation Act (ECA, 2010) makes extensive and comprehensive provisions for the compensation of all employees injured by an accident arising during the course of employment. Interestingly, by Section 2(1) of the ECA, 2010, the Act does not only apply to employment with statutory flavor; it applies to employment of all kinds. However, the Act does not apply to members of the armed forces of the Federal Republic of Nigeria, except those working or employed in a civilian capacity.
Compensation under the Employees’ Compensation Act, 2010
Section 7 of the Employees’ Compensation Act (“ECA”), 2010 provides that all employees, who suffer any disabling injury arising out of and in the course of employment shall be entitled to payment of compensation, whether or not such injury occurred in a workplace. Employees, under ECA, include domestic workers, apprentices, part-time and ad-hoc staff. The Court of Appeal in Afrab Chem Limited V. Pharmacist Owoduenyi 2014 LPELR – 23613 (CA) while interpreting the meaning and purport of “out of and in the course of employment” used in Section 7 of the ECA held that the phrases “out of” and “in the course of employment” are used conjunctively in the sense that the accident or injury must have occurred not only during the employment but must have occurred ‘out of’ and in ‘the course of’ the employment. In effect, the injury must have occurred in relation with or incidental to the employment. There must be some causal relationship between the injury sustained and the employment.
Section 7(2), ECA provides a guiding principle in determining accidents that would be regarded as accidents out of and in the course of employment. It provides as follows: “an employee is entitled to payment of compensation with respect to any accident sustainedwhile on the way betweenthe place of work and
(a) the employer’s principal or secondary residence
(b) the place where the employee usually takes meals; and
(c) the place where he usually receives remuneration, provided that the employer has prior notification of such place.”
Under the ECA, where the injury or disease is caused by accident and the accident arose out of the employment, unless the contrary is shown, it shall be presumed that the injury occurred in the course of the employment.
Nigeria Social Insurance Trust Fund Management Board (NSITFMB)
Nigeria Social Insurance Trust Fund Management Board (“The Board”) is a body established to implement the Employees’ Compensation Act (ECA) and to provide compensation to insured employees who suffer from occupational diseases, sustain injuries or disability from accidents at workplace. The funds generated by the board are applicable to employees in the public as well as private sectors.
Procedure for Making Claims for Compensation
By Section 4 of the ECA, 2010, a victim of accident, injuries or occupational diseases arising out of and in the course of employment shall within 14 days of the occurrence of the accident inform his/her employer by giving adequate information about the accident or injury sustained. The information shall include the name of the employee, time and place of the occurrence and the general nature or cause of the occurrence. In a case of death, the Act empowers the victim’s dependents to make the aforementioned information available to the employer.
It is the duty and obligation of the employer to, within 7 days of the receipt of such information, forward the information to the Board for consideration and compensation. By Section 5(5) of the ECA, 2010 it is an offence for an employer to fail, refuse or neglect to make a report to the Board upon receipt of same from the employee or dependent. The employee cannot even agree with the employer to waive or forgo any benefit, right or compensation to which the employee or the dependents may become entitled to under the Employees’ Compensation Act, 2010.
Notwithstanding the provisions of the ECA, an employee (or his/her relatives) that suffered occupational injury arising from a workplace can claim damages in tort against the employer by instituting a civil lawsuit at the National Industrial Court of Nigeria. That said, an employee cannot claim both Compensation from the Board and Damages at the Industrial Court. The employee is obligated to choose the route that suits his/her circumstances – on the advice of his attorney.
Conclusion
In light of the above, it is safe to say that employers are liable for injuries, accidents, occupational diseases, mental stress or bodily impairment sustained out of or in the course of employment. Employers are, therefore, encouraged to adopt necessary measures and strategies toward providing adequate occupational protection for their employees.
DISCLAIMER: This article is only intended to provide general information on the subject matter and does not by itself create a client/attorney relationship between readers and our Law Firm or serve as legal advice. We are available to provide specialist legal advice on the readers’ specific circumstances when they arise. Contact us at info@folegal.net +234 906 632 4982