By Jeremiah E. Aneji (LLB, B.L, MDRPN)
The International Labour Organization (ILO) in its 2016 report on Nigeria’s profile Occupational Safety And Health (OSH) reported that between 2014 to 2016, Nigeria recorded 238 fatalities across different sectors of the economy resulting from occupational hazards. Within the time in view, about a total number of 3461 reported occupational accidents/injuries across different sectors of the economy were recorded in the country. ᶦᶦ The report went further to state that these figures were underreported as the reality could be far higher.ᶦᶦ
It is a given to state that every workplace poses some form of hazards or the other. These hazards may come in the form of physical safety hazards, chemical hazards, biological hazards, physical hazards, and ergonomic risk factors.ᶦᶦᶦ The degree or nature of exposures may however differ. For instance, in the Report earlier alluded to, the construction industry reported the highest number of work-related accidents/injuries, accounting for over 39% of the total figures while the ICT and Telecom industry reporting the least contribution of 0.26%, for the period in review.ᶦᵛ
When accepting any form of employment, the first and foremost question in the mind of every worker is whether he/she is protected or guaranteed some form of protection in the event of an exposure to occupational hazards, which in most cases may render them incapacitated, or in some sad cases, result to their death.
Bearing this in mind, the ILO convention ᵛ and the Nigerian labour laws has provided for safety net, regulatory and otherwise to ensure best practices are obtainable in workplaces and most importantly the provision of insurance/guarantee for employees who may inevitably become victims of workplace accidents. The anchor statute for this the Factory Act, the Labour Act and but primarily the Employee Compensation Act, 2010.
The essence of this work is to highlight the remedies accruable to workers/employees in the event of exposure to hazards in the course of their employments and the simple ways to go about activating such a right and finally, the responsibility of employers of labour toward employees in the face of injuries or death arising from the hazards associated with the nature of their employment under the Employee Compensation Act, 2010.
To do this we would first of all define what class of injuries are entitled to a demand for compensation under the Act, the remedies provided for and the procedure to activate same.
1. THE INSTITUTIONAL FRAMEWORK FOR EMPLOYEE’S COMPENSATION IN NIGERIA
The International Labour Organization Convention of which Nigeria is a member has been in the forefront of ensuring its member nations set up laws and institutional frameworks to adequately protect the workers against hazards associated with their work. Article 1 of the ILO’s C042 – Workmen’s Compensation (Occupational Diseases) Convention (Revised), 1934 (No.42) provides as follows:
1) Each Member of the International Labour Organisation which ratifies this Convention undertakes to provide that compensation shall be payable to workmen incapacitated by occupational diseases, or, in case of death from such diseases, to their dependants, in accordance with the general principles of the national legislation relating to compensation for industrial accidents.
2) The rates of such compensation shall be not less than those prescribed by the national legislation for injury resulting from industrial accidents. Subject to this provision, each Member, in determining in its national law or regulations the conditions under which compensation for the said diseases shall be payable, and in applying to the said diseases its legislation in regard to compensation for industrial accidents, may make such modifications and adaptations as it thinks expedient.
On compensation for injury or death, Article 1 of the ILO C017 – Workmen’s Compensation (Accidents) Convention, 1925 (No.17), provides thus:
“Each Member of the International Labour Organisation which ratifies this Convention undertakes to ensure that workmen who suffer personal injury due to an industrial accident, or their dependants, shall be compensated on terms at least equal to those provided by this Convention.”ᵛᶦ
In 2006, Nigeria ratified the ILO’s C187 – Promotional Framework for Occupational Safety and Health Convention, 2006 (No. 187) which mandates each member to promote continuous improvement of occupational safety and health to prevent occupational injuries, diseases and deaths, by the development, in consultation with the most representative organizations of employers and workers, of a national policy, national system and national programme.ᵛᶦᶦ
In further compliance with her obligations Nigeria enacted the Workmen Compensation Act, which was later replaced with the relatively new Employee’s Compensation Act, 2010 (ECA, 2010). This law was enacted with the following objectives:
a) “to provide for an open and fair system of guaranteed and adequate compensation for all employees or their dependants for any death, injury, disease or disability arising out of or in the course of employment;
b) provide rehabilitation to employees with work-related disabilities as provided in this Act;
c) establish and maintain a solvent compensation fund managed in the interest of employees and employers;
d) provide for fair and adequate assessments for employers;
e) provide an appeal procedure that is simple, fair and accessible, with minimal delays; and
f) combine efforts and resources of relevant stakeholders for the prevention of workplace disabilities, including the enforcement of occupational safety and health standards.”ᵛᶦᶦᶦ
According to Worugi “The Employee’s Compensation Act (ECA), 2010, is one of the laws enacted to provide income security for employees who suffer from work related occupational diseases or injuries; and survivor benefits for families of victims of related fatalities (death). The Employee’s Compensation Act, 2010 repealed the Workmen’s Compensation Act (WCA), 2004.”ᶦˣ
In order to achieve its objectives, the Act established the Employee’s’ Compensation Fund ˣ where contributions would be mandatorily pooled to carter for the payment of adequate compensation for all employees or their dependants for any injury, disease or disability arising out of or in the course of employment; and where necessary for the provision of rehabilitation to employees with work-related disabilities;ˣᶦ
2. CATEGORIES OF INJURIES COVERED FOR UNDER THE EMPLOYEE COMPENSATION ACT.
The Act provides for the protection of workers from work related hazards resulting in the following:
i. Physical Injury or Disease resulting to disability or medical care – 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.ˣᶦᶦ
ii. Mental Stress – if the mental stress is (a) an acute reaction to a sudden and unexpected traumatic event arising out of or in the course of the employee’s employment; or (b) diagnosed by an accredited medical practitioner as a mental or physical condition amounting to mental stress arising out of the nature of work or the occurrence of any event in the course of the employee’s employment.ˣᶦᶦᶦ This also includes Where the mental stress is caused as a result of the decision of the employer to change the work, the working conditions of work organization in such a way as to unfairly exceed the work ability and capacity of the employee thereby leading to mental stress.ˣᶦᵛ
iii. Occupational Disease – Where as a result of an occupational disease, an employee is disabled from earning full remuneration at the workplace or where the death of an employee is caused by an occupational disease;ˣᵛ
iv. Hearing Impairment – Where an employee suffers from hearing impairment of non-traumatic origin, but arising out of or in the course of employment he is entitled to compensation subject to certain conditions.ˣᵛᶦ
v. Injuries Outside the Workplace – Where the injury to an employee occurs while the employee is working outside the normal workplace which would otherwise entitle the employee to compensation under this Act if the injury occurred in the workplace. ˣᵛᶦᶦ Closely related to this, is the provision for compensations to extend to injuries remotely connected to the job in question. Some of these connections are thus:
- A. Accidents sustained in between work and the employee’s principal or secondary residence; provided that the employer has prior notification of such place.
- B. Accidents sustained in between work and the place where the employee usually takes meals; provided that the employer has prior notification of such place.
- C. Accidents sustained in between work and the place where he usually receives remuneration, provided that the employer has prior notification of such place.ˣᵛᶦᶦᶦ
3. THE SCALE OF COMPENSATION AVAILABLE TO VICTIMS.
The degree/scale of compensation available to employees under the Employee’s Compensation Act is dependent on the nature or extent of the injury or health challenge consequent to the unfortunate incident. This degree of compensation may be assessed on the following basis:
A. Permanent total disability – Whether the injury amounts to a permanent disability, rendering the employee invalid or unable to take up any other jobs. This permanent disability that would require the employee to receive constant care for the rest of his life.ˣᶦˣ
B. Permanent partial disability or disfigurement – Whether the injury amounts to a partial impairment whether of a permanent or temporary nature or disfigurement. ˣ
C. Temporary total disability – Where the accident led to a total disability however temporarily.ˣˣᶦ
D. Temporary partial disability – ˣˣᶦᶦ
In summary, the scope and limit of liability for compensation (compensable injuries) are defined in part III of the Act, while part IV deals with scale and quantum of compensation payable in case of the injuries or liabilities.ˣˣᶦᶦᶦ
4. THE PROCEDURE TO ACTIVATE CLAIMS/COMPENSATION UNDER THE EMPLOYEE COMPENSATION ACT
Where an employee/worker suffers an accident in the course of his/her employment, that employee is entitled to compensation under the Act. Where in the case these incident results in the death of the employee, his dependents are entitled to compensation. The procedure laid out in the Act are as follows:
I. Notification To Employer – The employee or his dependents, in the case of injury or disease resulting to death, shall within 14 days of the occurrence or receipt of the information of the occurrence, inform the employer by giving information of the disease or injury to a manager, supervisor, first-aid attendant, agent in charge of the work where the injury occurred or other appropriate representatives of the employer, and the information shall include – (a) the name of the employee; (b) the time and place of the occurrence; and (c) in ordinary language, the nature and cause of the disease or injury if known.ˣˣᶦᵛ
II. Employer’s Report to the Board – The employer shall make a report to the NSITF Board and the nearest office of the National Council for Occupational Safety and Health in the State within 7 days of its occurrence.ˣˣᵛ The seven days would not however apply in cases resulting to the death of an employee and the employer is mandated to give an immediate report on same. ˣˣᵛᶦ The forms are ECS F01 Form ESC CC.F02,
III. Verification of the Injury/Death by the NSITF Board – The Board shall verify if the injury or disease for which a claim for compensation is raised has been reported to the National Council for Occupational Safety and Health Office in the State where the accident or disease occurred as required under section 30 of the Occupational Safety and Health Act, 2005 prior to the settlement of such claim.ˣˣᵛᶦᶦ
IV. Payment of Compensation – Upon processing the necessary claims, payment would be made on the claims within 90days in cases of injury or diseases and 14 days in the case of death.
The law adequately provides for compensation of workers in the event of injury or death, however, there is a need to public enlightenment on the part of the NSITF in bringing this rights to the doorstep of the Nigerian workers and the employers so they would know what steps to take and the right time to do so as provided for in the law. This is not so much at the moment.
DISCLAIMER; This article is for information purposes, it may, or may not reflect the current position of the law and is therefore not intended to provide legal advice or guidance on litigation or provide commentary on any pending case or legislation.
i International Labour Organization Report on Nigeria OSH 2016
v The ILO Workmen’s Compensation Conventions (1925, 1935, 1934, 1964) provided the anchor for Workmen’ Compensation Schemes to resolve the issue of who bears the burden of industrial accidents in many countries, including Nigeria. https://www.ilo.org/dyn/normlex/en/f=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C042
vi Article 1 of the ILO C017 – Workmen’s Compensation (Accidents) Convention, 1925 (No. 17)
vii C187 – Promotional Framework for Occupational Safety and Health Convention, 2006 (No. 187)
viii Section 1(a) – (f) of the Employee’s Compensation Ac, 2010.
ix Dr. I. N. E Worugji “Work Injuries Compensation under the Employee’s Compensation Act in Nigeria: What is Next?” https://www.academia.edu/resource/work/67984110 Journal of Law, Policy and Globalization Vol. 10,
x Section 56 of the Employee’s Compensation Act, 2010
xi Section 58 of the Employee’s Compensation Act, 2010.
xii Section 7 of the Employee’s Compensation Act. 2010
xiii Section 8(1) of the Employee’s Compensation Act. 2010
xiv Section 8(2) of the Employee’s Compensation Act., 2010
xv Section 9(1) of the Employee’s Compensation Act, 2010
xvi Section 10 of the Employee’s Compensation Act,2010
xvii Section 11 of the Employee’s Compensation Act, 2010
xviii Section 7(2) of the Employee’s Compensation Act.
xix Section 21 of the Employee Compensation Act.
xx Section 22 of the Act.
xxi Section 24 of the Act
xxii Section 25 of the Act.
xxiii Dr. I. N. E Worugji “Work Injuries Compensation under the Employee’s Compensation Act in Nigeria: What is Next?” https://www.academia.edu/resource/work/67984110 Journal of Law, Policy and Globalization Vol. 10,
xxiv Section 4(1) of the Employee Compensation Act.
xxv Section 5(1) of the Employee’s Compensation Act.
xxvi Section 5(3) the Employee’s Compensation Act.
xxvii Section 5(6) of the Employee’s Compensation Act.