Workplace Accidents: How ignorance of legal remedies denies employees compensation

Despite the legal remedies and insurance provided by law to protect employees in case of workplace accidents and occupational diseases suffered in the course of their employment, many victims are being forcefully retired by their employers without compensating them as prescribed by the Employee’s Compensation Act of 2010. CHIJIOKE IREMEKA writes on the remedies available to workers in event of workplace injury and the need for employers to be mindful of the financial liability placed on them by law to provide safe and conducive working environment for their employees.

Injury, occupational diseases and compensation are a very significant issue in every employer-employee relationship. It ‘s a factor that should be held in high regard, especially by employers as they are usually at the receiving end of the stick when employees are injured in the workplace.

The law places a responsibility on the employers to provide good working conditions for their employees, ranging from safe and healthy environment to provision of safety equipment. To show how sacrosanct the responsibility is, the law provides for actions that can be taken against the employers for certain injuries sustained or diseases contracted by an employee at the workplace.

Unfortunately, many employees are ignorant of these legal provisions and consequently, victims of workplace accidents or diseases are being shown the way out of their workplaces by the employers without any form of compensation, especially when the victims are now considered as liabilities rather than assets.

Sometimes when compensation is paid, some victims see it as a deed of great favour from the employers whereas it’s their (employees) constitutional right as enshrined in Section 7(2) of Employee’s Compensation Act of 2010 which repealed the Workmen’s Compensation Act (2004).

“Employee’s Compensation Act of 2010 is an Act to repeal the Workmen’s Compensation Act Cap. W6 LFN, 2004 and to make provisions for compensations for any death, injury, disease or disability arising out of or in the course of employment; and for related matters,” the Act’s explanatory memorandum reads.

The Act is the extant law governing the payment of compensation to all employees both in the public and private sectors except members of the armed forces. The law compels the employer to compensate victims adequately, especially where a case of negligence has been successfully established against the employer.

The Guardian learnt that in most cases the families of those who lost their loved ones are not being compensated and when they are compensated, the employers do so carelessly and reluctantly.

Section 7(2) of the Act states that the employee is entitled to compensation for any accident suffered between the place of work and the employee’s residence, the place where the employee takes meals, or the place where he usually receives remuneration, provided that the employer has a prior notice of such place.

Section 73 defines an employee as “a person employed by the employer under oral or written contract of employment whether on continuous, part-time, temporary, apprenticeship, or casual basis and also includes domestic servants who is not a member of the family of the employer, including persons employed in any federal, state or local government or their agencies or any formal or informal sector of the economy.”

The Nigerian Labour Act of 1971, which is the principal law that governs employment-related matters and the relationship between an employer and employee, also defines employee in Section 91 as “any person, who has entered into or works under a contract with an employer, whether the contract is for manual labour or clerical work or is expressed or implied or oral or written, and where it is a contract of service or a contract personally to execute any work or labour.”

Consequently, any person could claim compensation under the Act for death, disease and permanent deformity as long as the victim is able to establish that he or she is or was an employee of the employer.

A dispatch rider with one of the major delivery companies in Lagos, Mr. Ayodele Afolabi is one of the ignorant employees. He had an accident in the course of his employment and sustained a fractured leg. He stayed at home for two months nursing his broken leg. His company paid him salary for the first and second months while at home and planned to sack him if he didn’t resume duty in the third month. When the plan was leaked to Afolabi, he managed to resume duty two weeks later with walking aid. That forestalled his anticipated sacking.

Eventually, he became well but couldn’t ride again. Later, he was declared incapacitated and sacked with one-month salary paid to him. Till date, he groans under the burden of fractured leg but doesn’t know what to do to get compensated for this workplace accident.

Also, a worker in one of the factories in Mowe, Ogun State, Samuel Uduedu, is still writhing in pain of an injury he sustained while at work.

Uduedu’s middle finger was chopped off by a press-bending machine, which he was using to compress pieces of roofing sheets. The victim, who alleged that the company was indifference about his condition, blamed the accident on lack of safety measures at workplace.

He was operating the machine on November 18, 2019 when he mistakenly pressed it on his finger. He said the management took him to a nurse within the vicinity, where he was given first aid treatment.

The Delta State-born Uduedu was given two days off for the injury to heal, but disagreement occurred when he told the management that he would require more days and some money to treat the wound and his requests were turned down by the management.

“The administrative officer said I would be given two days off. I requested for an extra time and some money but I was asked whether I was not being paid salary and if the injury was not caused by my carelessness. My boss said they would mark me absent if I spend more than two days off and that they would not pay me for the extra days I may decide to take off.

“The company did not care for me. Two persons were supposed to be operating the machine and I had complained to the management several times. They kept promising to get me a partner. When I tell them I am tired and want to rest, they won’t allow me,” he said. Uduedu eventually ended the job with a chopped-off finger without compensation.

While the above experiences painted a hopeless situation for employees in Nigeria, respite has come for victims of occupational accidents and diseases as the enforceability of Employee’s Compensation Act 2010 has been amplified by the Industrial Court’s judgment in the case between an employee, Babatunde Ajala (claimant) and his employer, the Ogun State-based Rite Pak.

Ajala, on March 3, 2008 while working with two other employees on Injection Moulding Machine, had an accident that caused permanent injury to the three middle fingers of his left hand.

According to him, the accident happened when one of the other two employees, the supervisor, carelessly left the door of the machine that was already on semi auto pilot open, to take a call from the managing director of the company without any prior information that he had activated the switch button. Yet, he did not show any ‘duty of care.’

In tort law, a duty of care is a legal obligation that is imposed on an individual, requiring adherence to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be established to proceed with an action in negligence. The claimant must be able to show a duty of care imposed by law that the defendant has breached. In turn, breaching a duty of care may subject an individual to liability. 

Ajala, who was treated by his employer, resumed duty after his discharge from the hospital and continued his work till August 19, 2008, when he reportedly stopped his services to the company and took a legal action. In April 10, 2010, he filed a case against his employer in a High Court in Ogun State but the matter was later transferred to an industrial court in Lagos where parties involved were directed to re-file all processes in conformity with the Rules of the Court.

Again, by the complaint and statement of facts, The Guardian learnt that Ajala (the claimant) demanded N25 million from the respondent as damages for negligence and loss of his three fingers while operating an injection machine at the factory of the respondent on March 3, 2008.

Delivering judgment in the case, Justice B. B. Kanyip of the National Industrial Court of Nigeria, sitting in Lagos, on Monday January 28, 2019, ordered the company (defendant) to pay Ajala (claimant) within 30 days the sum of N10 million as damages. The court also awarded N300, 000 as cost of action.

Meanwhile, the defendant wanted to twist the arms of the judgment on the ground of technicality by claiming that the issue of negligence was not properly pleaded, arguing that if the accident and loss of three fingers of the claimant’s left hand had indeed rendered Ajala’s left hand useless and permanently incapable of working, the claimant would not have continued working in the defendant’s factory for six months after the incident.

But in a swift counter response, the claimant’s counsel stated that the defendant owed the claimant a duty of care for being his employee and that the claimant was entitled to be compensated.

After careful analysis of all the processes filed, and the submissions of the counsel from both sides, the Kaduna State-born Justice Kanyip said: “It’s not in doubt that the claimant was employed by the defendant. It is also not in doubt that the injury complained of occurred when the claimant was at work in the defendant’s workplace. In fact, the evidence is that it was the defendant that even took the claimant to the hospital after the injury.
 
“In particular, the averment that the claimant was careless intuits either contributory negligence or voluntary assumption of risk on the part of the claimant. These defences cannot stand since the defendant’s witness was not at the scene of the accident in order to give his evidence any weight. I so find and hold.
 
“Consequently, I have no doubt whatsoever in the instant case that the defendant is negligent and so breached the ‘duty of care’ it owes the claimant. I thus find and hold that the claimant has proved the requirement of breach of the duty of care by the defendant.
 
“This being so, I find and hold that the defendant is liable to the claimant in negligence, the claimant having proved the trilogy of duty of care, breach of the duty of care and resultant damage.”

Despite these enforceable remedies provided by the law, many employees are still ignorant of the provisions and are, therefore, still at the mercy of their employers and are being treated with disdain. Hence, employers try to sweep under the carpet every act of negligence that led to occupational injury, disease, permanent deformity and death, which would place a compensatory damage on them.

Managing Partner, Lawrence Ndukwe & Co., Emeka Ndukwe, described compensatory damages as money awarded to an injured party that compensates for damages, injury or another incurred loss. He noted that the compensatory damages are awarded in civil court cases where loss has occurred as a result of negligence or unlawful conduct of another party.

“Generally, there are two solutions available to an employee for a workplace injury – an application for compensation under the Employee’s Compensation Act 2010 and civil action against the employer at the National Industrial Court of Nigeria,” he added.

In his book, Casebook on Labour Law, Prof. Olusegun Yerokun viewed workmen’s compensation as a form of insurance providing wage replacement and medical benefits to employees injured in the course of employment in exchange for mandatory relinquishment of the employee’s right to sue his or her employer for negligence.
 
On the procedure for making claims, a safety specialist, Mr. Tooni Ajiboye, explained: “To make a claim for compensation under the Act, the employee, in the case of an injury, or the dependent, in the case of death of the employee, should within 14 days of the accident or from the time the occurrence is discovered report to the employer and make such report providing all the details required under Section 4 (1) of the Act.”

For clarity, Section 4(1) titled ‘Employee’s Notification of Injury’ reads: “In every case of an injury or disabling occupational disease to an employee in a workplace within the scope of this Act, the employee, or in case of death, the dependent 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 representative 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.”

According to him, the Act then requires the employer to make a further report, within seven days of receiving the report to the Nigeria Social Insurance Trust Fund Management Board, saying that the Act makes provision for the cases of accidents where compensation shall be payable.

Ajiboye noted that in Section 7(2) of the Act, employees are entitled to compensation for any accident suffered between the place of work and the employee’s residence, the place where the employee takes meals, or the place where he usually receives remuneration, provided that the employer has a prior notice of such place.

“The Act also provides that compensation shall be payable where an injury disables an employee from earning full remuneration at the workplace, from the day after the injury occurred. Section 8 of the Act states that compensation shall be payable for mental stress suffered by the employee as a result of the nature of the work of the employee.

“It also provides for compensation where the employee as a result of the nature of his work suffers any form of occupational disease listed in the First Schedule of the Act. Other forms of compensation payable for include injury of hearing impairment or suffered for work done outside of place of work on the instruction of the employer,” Ajiboye added.

Section 12 of the Act, The Guardian learnt, shall apply to all cases of injury that are covered by the Act, but an interesting fact under this section is that, the Act does not prohibit the other actions or claim under the Law.

Also, Section 13 of the Act precludes any form of agreement between the employer and employee, which absolves the duty of the employer from paying the compensation under the Act. It is also important to note that the Act prohibits and criminalises any attempt to make the employee contribute to his compensation.

On application for compensation to the Nigeria Social Insurance Trust Fund Management Board, an insurance expert, Ngozika Nwosa said: “Application for compensation is made in the form prescribed by the board and signed by either the employee or his dependent and must be made within one year of the occurrence of the injury or death.”

She noted that compensation should not be made if the application is not made within the timeframe unless special circumstances exist, then the timeframe can be extended to three years depending on a number of factors.

For a person claiming compensation for hearing impairment, she noted, his or her application must be accompanied with a report of a medical practitioner who specialises in such field accredited by the Board; an audiogram and a report by the employer of the working environment of the employee; the Board may request any other evidence as from time to time.

“It is pertinent to note that an employee cannot waive his right to compensation to which he or his dependents may become entitled. Furthermore, while an employer is mandated to contribute 1% of the annual payroll to the compensation fund, the employer cannot either directly or indirectly deduct from the remuneration of the employee any sum the employer is liable to pay to the fund.”

Commencing a civil action against the employer at the National Industrial Court of Nigeria, Section 12 of the Act states that an employee is not prohibited from claiming damages from the employer for workplace injury under any law.

Thus, an employee can institute a civil action in court against the employer based on negligence. This liability for negligence, by section 12 of the Labour Act, can also result from the negligent act of a co-employee, which caused injury to another employee.

However, the appropriate court where to institute such an action is the National Industrial Court of Nigeria, which by Section 254C of the 1999 Constitution (as amended) has the jurisdiction to entertain matters pertaining to employment, labour, and matters arising from the workplace, conditions of service, welfare of employees and other related matters.

It was learnt that an employee can through a legal practitioner commence an action wherein the facts are pleaded, and damages are claimed in respect of the injury sustained.

A security expert and Managing Director, ABLS Security Company Ltd., Don Moutooh, said: “Employees have the right to be safe even as they carry out different tasks in every organisation. As a result, every employer must prioritise workplace safety and look after employee’s protection to promote the wellbeing of all staff in the organisation.

“Ensuring safety in the workplace is everyone’s responsibility as a breach of safety has dire consequences. Having said so, employees must undergo proper orientation on workplace safety measures and tips while safety monitoring systems should be set up and monitored, accordingly. 

“Workplace safety refers to the limitation of elements that can cause harm, accidents, and other negative outcomes in the workplace. It represents a culmination of policies, behaviours, and precautions that work to limit hazards, accidents, and other kinds of harm in a work environment. 

“More often than not, workplace safety directly affects the productivity and wellbeing of your workforce, and these directly affect the quality of output of your business. With this in mind, employers must strive to create a safe environment that offers an acceptable level of risk for all employees. Also, employees must be quick to identify situations and conditions in the workplace that can jeopardise their safety or expose them to unacceptable risk levels.”

Speaking on the effects of employees’ exposure to harmful chemicals, a consultant surgeon and gynecologist, Dr. (Mrs.) Cynthia Obiora, explained: “Toxic chemicals in the workplace could hamper the safety of employees, especially when they are exposed to these substances without appropriate caution. Chemical exposure can result in a number of effects ranging from cancer and organ failures to death. 

“There are different harmful chemicals that employees may be exposed to. These chemicals are classified according to their effects on the body. Some are corrosive, irritant and teratogens, which can cause birth defects.

“As simple as a sensitizer such as an isocyanate, it can trigger allergic reactions upon exposure. Exposure to mutagens can lead to negative gene mutation and damage to the chromosomes. Also, carcinogen can trigger malignant growth in body cells, thereby causing cancer.

“Asbestos is a common carcinogen. Employees can be exposed to these chemicals through inhalation, direct or indirect skin contact, ingestion, and injection. Unlike other workplace accidents, the effects of chemical exposures are typically gradual and long-term and their impacts are far-reaching, but in some cases, you find it difficult to prove.”  

A safety professional of the Institute of Safety Professionals of Nigeria (ISPON), Mr. Badmos said employees must be duly informed about workplace safety measures and trained on how to maintain safety at all times.

“As an employer, organising compulsory safety workshops and training that deal with different aspects of workplace safety for all stakeholders in your organisation is encouraged. 

“Safety training in the workplace should focus on familiarising employees with different hazards and how to identify, report, and prevent them. Employees should undergo proper training before making use of any equipment in the workplace and they should also observe other safety precautions that can help to prevent accidents.”