Perils of Nigerian workers

• By Ibrahim Apekhade Yusuf

• Published 21/06/2009

• Business

• Unrated

SCENE ONE: Enter Citizen Elizabeth Samson

Ms. Samson, a single parent in her mid 40s is a perpetually sad woman. Two sad
events which followed in quick succession literally changed the course of her life
for good.

In July 2001, her husband, a security guard at Quantum Ltd, an expatriate-

owned production company at 1B Gbolahan Owolabi Close, Ojodu, Lagos, with
whom she lived for six years, even though they were not legally married, died in
questionable circumstances while still in the service of the company.

Already pregnant with their second child, with the help of her late husbands’ ally,
Nwana James, who already arranged for the corpse to be deposited in the
mortuary she, met a senior member of staff of the company who promised to
take care of the funeral expenses.

Days later she was given the sum of N15, 000 as part of her husbands’
entitlement, with a promise to come for the balance.

James, she recalled, later came to allegedly demand for the sum of N5, 000, to
procure white clothe to bury her late husband, and that was the last she saw of
him, and the company.

To make matters worse, her landlord threw her out into the cold with a few
weeks old baby, her three year old daughter and a younger sister who had been
put in the family way by the son of the midwife who took her in labour.

With no regular source of income and nowhere else to go, she has lived as a
destitute person on the streets of Lagos these past years, with two of her kids
currently under the care of the Lagos state government.

Sad as Elizabeth’s tale seems, it soon palls into insignificance when you hear the
sordid experiences of a few others who have had their lives cut short, while
working for one establishments or the other, even under the most dehumanizing
conditions.

Even for many who don’t end up paying the supreme prize, they are scared for
life and may probably not lead normal lives again.

Olalekan Razak, a once-happy-go-lucky mechanic in Ikeja, is probably one of

such cases.

Razak, a native of Osun, in his early 30s, was reported to have been consulted by
Mr. Jerry Ijieh, a businessman, last November to help fix the latter’s Lexus Jeep,
with an instruction to take the car to the owner upon certifying it okay.
Not wanting to take chances, Razak, had told his client he may not be able to
drive the car under the cover of darkness, hence he sought allowance to defer to
the next day.

With no foreboding of trouble, Razak, drove the Lexus Jeep out on a date with his
girlfriend only to be accosted close to his residence by the owner, who was said to
be cross at his impudence that he allegedly slapped the formers’ girlfriend and
also stabbed Razak on his kneecap severally.

When reality dawn on Razak’s assailant, he was said to have first taken him to
the General Hospital Ikeja but was denied treatment.

He later took him to Igbobi Orthopedic, by which time gangrene has set in and
they had to amputate Razak’s left leg.

With the help of his lawyer they got Ijieh to agree to a compensation package of
N5million, which he was to pay in three installments, having handed over the
sum of N400, 000 in cash to Razak but some of the cheques issued have
allegedly been discovered to be dud cheques after all.

Ijieh is said to have traveled to Europe, by the account of his wife, Mrs. Ijieh, who
in a telephone interview with The Nation assured that her husband was being
expected in the country anytime next month.

When contacted, Razak, sounded pained and hurtful.

Besides industrial accidents and other occupational hazards at work places,

workers around here have issues over poor condition of service, among other
concerns.

Abdurraheem Buhari, a citizen of Kano State and a 1978 graduate of Ahmadu

Bello University, Zaria, joined an old generation bank, in 1980 and was retired 20
years later as a principal manager.

For all those years of labour and unblemished service he received a total of N623,
736.52 retirement benefits after his staff loans and unutilized allowances were
deducted from his gratuity of a little over N1.14million plus N400, 000.00
severance grant.

Buhari has been contesting this take home pay since but from the look of things
the bank has chosen to turn an unwise deaf ears to his cries, not even after he
had written them several times and visited their headquarters even more times
and petitioned the Public Complaint Commission has the bank bothered to
respond.

Out there are many Buharis who feel done in by not only such banks but also by
other establishments after giving so much of their sweat and blood to generate
mind-boggling profits they declare years in year out.

These many Buharis are right to feel that their sweat and blood are extracted
mainly for the benefit of the bank’s fat-cat shareholders and top management.

But what role does the law plays in all these?

Barrister Gabriel Ojumah, President, Citizens’ Right Watch, an organisation in the
forefront of advocacy for worker’s rights gives plausible explanation.

Review of workmen compensation Act

"I would say the workmen compensation act is one of the laws Nigeria inherited
from the colonial masters and since then we have not deemed it fit to either
amend or to repel so as to bring a new law to face today’s reality. You can
imagine a situation where someone is injured in a place of work and you are now
saying you want to compute his benefits based on salary and all that. And in most
cases the man would go home even poorer.

As a lawyer, I have been exploring further legitimate options of addressing the

pains and perils and to also find relief to those who have been injured in their
places of work because the law as it is does not guarantee adequate
compensation for now."

Alternative measures

Ojumah, whose organisation has helped many sought justice from erring
employers says, one way he has been able to work around the limitation of the
law is by exploring other legal means and ways without resulting to litigation.

Citing the case of Okere Cajetan, a machine operator at a printing press in

Kirikiri, he said his group staged a protest march to the company concerned and
subsequently sought audience with the management who agreed to an out-of
-court settlement after paying the victim a substantial compensation.

"We thank God today that a result of alternative dispute resolution, the Cajetan
was able to collect the sum of N3million, which is unprecedented in the history of
compensation of Nigeria; no court can award you that for a loss of arm", he said,
with an air of confidence.

Tony Ofoyetan, a lawyer, who also doubles as the Director General of the
International Institute of Professional Security, focuses on worker’s rights.

Over the years, he has handled many cases involving Nigerians who had lost their
hands and limbs.

Most foreign companies, he said, often hide under the workmen’s compensation
act to deceive their victims.

The major culprits, he said are companies run by Chinese, Lebanese and Indians,
where Nigerians suffer injuries the most.

He lamented that "owners of these companies are usually not remorseful because
they think they are doing Nigerians a favour by employing them in the first
place".

For Mr. Femi Falana, Lagos lawyer and President, West African Bar Association
(WABA), whose chamber’s published a treatise on the cases of occupational
hazards in the country, has agonized over what he described as the rising cases
of man’s inhumanity to man, especially the unions and employers who continue
to fail in their duty of care to their the workers
Incidence

No fewer than 3, 000 industrial accidents are reported to take place in Nigeria
annually, with many more cases unreported.

The culture of silence

Victims of industrial accidents are often afraid of speaking out for fear of being
victimized by their employers and subsequently losing their jobs. Some of the
companies prone to hazards of the kind that has the potential to cause the
victims debilitating ailments include cement, chemical, paint and asbestos,
textile, saw, iron and steel mills, tannery industry.

Best practices

There are however some companies who do not toy with the welfare of their staff,
as they consider it as a demotivating factor.

Investigation by The Nation revealed that some of the telecom giants, the oil
industry, among other multinational companies give staff welfare the utmost
priority it deserves.

A staff of one the telecoms company who would not be named said his company
is probably one of the best places to work around because of the fringe benefits
and other perks on the job.

His words: "Our welfare packages are the best you can find. I know for sure that
every staff is entitled to the sum of N1million health insurance per annum, with
free treatment for your spouse and four kids. Besides, your wife is also entitled to
a sim and gets N5, 000 free airtime every month

"There are lots of opportunities for growth as well. For instance, depending on
your academic prowess, you are entitled to a study abroad at the expense of the
company".

May and Baker Plc, also has a robust welfare package for its staff, as the
company sponsors mid-level career officers on Masters of Business Administration
programmes at the expense of the company, among others.

Government intervention

At the federal executive council meeting last month, the federal government
unanimously approved the long-awaited Employees Compensation Bill, for the
benefit of workers, employees and the government.

Minster of Labour and Productivity, Prince Adetokunbo Kayode (SAN), who spoke
on the development, described the Employees Compensation Scheme as
"revolutionary and a demonstration that the President Umar Yar’Adua, cares so
much about the Nigerian worker.

Benefit of the Bill

Employees will get free monthly compensation when injured at work including
rehabilitation and career guidance until they are able to return to work, unlike the
existing law where they are paid a one-off lump sum compensation if they are
lucky. These benefits will be funded by one per cent of payroll contribution by the
employers.

Benefit to employers.

Employers’ will benefit from higher productivity by well-motivated and loyal

employees

Benefits to government

Government will benefit from industrial harmony and general economic growth.

How the scheme works

Shedding light on the foregoing, the Managing Director/CEO of the Nigerian Social
Insurance Trust Fund, Dr. Enurukora Joe Okoli, described the bill as a right step
in the right direction, as it is going to replace the obsolete Workmen’s
Compensation Act of 1942 passed by the colonial masters for themselves and
later amended in 1957 to include Nigerian workers.

Okoli further explained that the old WCA is provided through commercial
insurance on a "No premium. No cover basis while, while on the ECS is provided
through pooling of risks with employers’ contribution.

This means that every employee is automatically covered through employers’

contributions already in the pool, while defaulting employees would be pursued to
remit their own contribution.

Besides claimants working with employers who might be h liquidity (cash flow)
problems will not suffer because there claims will be settled by the NISTF, which
will be managing the scheme.

Other benefits of the scheme

It has a" No-fault provision, as opposed to the WCA, which requires you to prove
you were not negligent.

WCA defines compensable injuries as injuries that occur by accident, leaving out
other injuries that can be caused by exposure to contamination.

Under WCA, disputes are settled by court’s which can be costly while the ECS
provides for settlement by arbitration in a work-friendly environment.

The ECS also provides for re-insurance with reputable insurance companies as
further safeguard for the funds.

Investigation by The Nation however revealed that Nigeria, is adopting the

Employment Compensation Scheme, almost 30 years after several other member
countries of the ILO have adopted same.

In its bid to create more job opportunities and expand existing ones, the Federal
Government is to compel banks to fund the real sector and reduce interest rate
for manufacturers to five per cent.
Also, a high-powered multi- disciplinary employment mission of the International
Labour Organisation (ILO) is to visit Nigeria soon to complement our efforts in the
implementation of the new National Employment Policy.

Government also intends to create an employment fund to boost its job creation
efforts. In addition, government is to emphasise skill training to make more
Nigerians employable.

Labour Minister, Prince Adetokunbo Kayode, speaking to journalists at the just

concluded 98th International Labour Conference in Geneva said, "it is time for
government to wield the big stick. Banks must fund the factories, the real sector.
Manufacturers should not have to pay more than five per cent interest rate."

He added: "We need to create jobs in NIgeria. We need to keep our people
working. It must be our motto — Keep Nigeria working. We have lost about 25
years of skill opportunities, about 25 years of production; we need to recreate
that."

The minister said Nigeria was the first country to organise a national employment
summit and this was appreciated by the ILO. "In a way, we’ve been catalytical to
the outcome of this summit and of course this conference".

He disclosed that ILO is also sending a technical team to support us "on what we
have to do to implement the employment plan to generate more employment."

However, he said "the most important thing is to be able to convince government

to budget more money from 2010 onwards."

From the ILO, the minister said, "We expect them to support us with the Global
Jobs Fund but we must show that we are able to fund our activities. Government
also has a duty to establish a national employment fund". On his part, he said he
would ensure that government establishes the national employment fund.

He said with Nigeria’s participation at the ILC, the Federal Government has
committed itself to job creation.

It is also committed to social security to provide a social safety net which he said
Nigeria has had before the global financial crisis. Such safety nets are the reform
of the pension system, the national health insurance scheme etc.

Global efforts

Secretary-General Ban Ki-moon on Friday paid tribute to the participants of a

United Nations-backed labour conference for responding to the current worldwide
recession by reaching agreement on a Global Jobs Pact, which places employment
and workers protection at the heart of government economic stimulus packages.
The Pact, designed to guide national and international policies aimed at
stimulating economic recovery, was adopted by the 183-member International
Labour Organization (ILO) at its annual conference in Geneva.

"The Global Jobs Pact responds directly to the everyday worries of working
women and men," Mr. Ban told some 4,000 participants at the conference in a
video message.

He said the agreement "speaks to the concerns of enterprises large and small. It
addresses the hopes of young people seeking opportunity as they enter this
turbulent market."

According to the ILO, the Global Jobs Pact amounts to its most urgent and wide-
ranging response to an economic crisis, calling on governments and organizations
which represent workers and employers to join forces in tackling the global jobs
crisis through policies in line with the ILO’s Decent Work Agenda.

A recent ILO report showed that, during the 2007-2009 period, between 210
million and 239 million people would be unemployed, representing global
unemployment rates of 6.5 and 7.4 per cent, respectively, or increases of
between 39 and 59 million unemployed people since 2007.

ILO projections indicate that 200 million workers are at risk of joining the ranks of
people living on less than $2 per day between 2007 and 2009.

With some 45 million new entrants to the global job market annually, ILO
Director-General Juan Somavia said that the world economy would have to create
some 300 million new jobs over the next five years to go back to pre-crisis levels
of employment.

"Urgent action is required now to boost economic recovery and job creation whilst
preparing for a greener, more balanced, fairer and sustainable economy," Mr.
Somavia told delegates attending the conference, which met from 3 to 19 June.

"This Pact provides a path crafted together by all members of the ILO and based
on tried and tested policies," said Mr. Somavia.

Among the measures called for in the Pact are steps to retain people in
employment, to sustain enterprises, to accelerate employment creation and social
welfare protections, to promote investment in infrastructure and to avoid
protectionism.

The Inter-national Labour Organisation (ILO), has warned its 183 member-
countries including Nigeria against pay cut for employees just as it advised them
to reduce trade imbalance and be cautious with trade liberalization.

It also suggested that minimum wage should not be allowed to fall in real value.

Also, governments should put in place social protection for employees and avoid
job losses.

ILO noted that whereas stimulus packages had sustained banks, people in the
informal sector have not been able to access the funds available.
Speaking on the current global financial crisis and its impact on jobs at a briefing
in Geneva, last weekend, ILO’s Chief Employment Trends, Economic and Labour
Market Analysis Department, Mr. John Jefferson, said: "Enterprises tend to be
cutting wages but this will be counter- productive.

"Neighbouring countries will be afffected and this will not improve the situation, it
will deteriorate."

The ILO expert who also cautioned against devaluation said, "Minimum wage
should not fall in real terms, instead, collective bargaining should be strengthened
to ensure that wages grow along with productivity."

Also contributing, another expert, Mr. Raymond Torrees said, "If you reduce
income, they (employees) have less to spend in the market place."

Though Jefferson said this was subject to the confirmation of the International
Monetary Fund (IMF), he added that IMF officials who spoke at the ILO Global
Jobs Pact promised that IMF may drop some of its conditionalities in favour of
needed support for countries.

Quoting IMF, he noted that the current global financial crisis is the sixth since
1960 but that "this is the biggest."

He said whereas it could take the world one to two years to recover from the
current crisis, "job recovery takes four to five years to recover."

Jefferson said from the presentations of experts invited by ILO to discuss the
financial crisis and its impact on jobs, there was a consensus that "governments
need to provide employment and social protection with a focus on small and
medium enterprise development and skill development."

It was also suggested that efforts should be made to assist employees who lose
their jobs back to the labour market.

For instance, he said, "In Germany, about one million people have kept their jobs
because government and social partners agreed on some subsidy. Subsidy can
avoid and limit job losses."

He said it was also agreed that "developing countries should put more emphasis
on employment and social protection."

Mr. Jefferson said, "IMF at the meeting said they have dropped conditionalities
tending more for support".

Although the experts urged countries like Nigeria, with one or two export items to
look inwards and diversify, they cautioned against "trade protectionism" which he
said "would be less effective. We want to avoid wage deflation or competitive
currency devaluation which is very tempting".
 Back to News

Federal Government approves Employee Compensation Scheme

The Federal Government has called on the National Assembly to quickly pass into law the newly approved
Employees Compensation Scheme for the benefit of all Nigerian workers, employers and the Government. The
call was made by the Honourable Minister of Labour, Employment and Productivity, Prince Adetokunbo
Kayode SAN, after the Federal Executive Council unanimously approved the long-awaited Employees
Compensation Bill on Wednesday. The Minister described the Bill as revolutionary and a demonstration that
the Government of President Umaru Musa Yar’Ádua cares so much about the Nigerian worker.

According to the Bill, employees will get free monthly compensation when injured at work including
rehabilitation and career guidance until they are able to return to work; unlike the existing law where they are
paid a one-off lump-sum compensation if they are lucky. These benefits will be funded by one percent of
payroll contribution by the employers including the Federal, State and local Governments.

The employers will benefit from huge profits achieved from higher productivity by well motivated and loyal
employees; while the government will benefit from industrial peace and harmony and general economic
growth.

Similarly, the MD/CEO of the Nigeria Social Insurance Trust Fund, Dr Enukora Joe Okoli described the bill as
a Win! Win! for all! He explained that the Employees Compensation Act when passed will repeal and replace
the obsolete Workmen’s Compensation Act of 1942 passed by colonial masters for themselves and later
amended in 1957 to include Nigerian workers.

Dr Okoli explained that the old Workmen’s Compensation Act (WCA) is provided through commercial
insurance on a “No Premium No Cover basis” while the Employees Compensation Scheme (ECS) is provided
through pooling of risks with employers contribution. This means that every employee is automatically
covered through employer contributions already in the pool, while defaulting employees are vigorously
pursued to remit their own contribution. Claimants working with employers who might be having liquidity
{cash flow} problems will not suffer because their claims will be settled by the Nigeria Social Insurance Trust
Fund who will be managing the scheme.

Other benefits of the new ECS include a “no-fault provision” as opposed to the WCA which requires you to
prove that you were not negligent. Furthermore, the WCA defines compensable injuries as injuries that
occurred by accident, leaving out other injuries that can be caused by exposure and contamination. Under the
WCA disputes are settled by courts which can be costly while the ECS provides for settlement by arbitration in
a worker friendly environment. The ECS also provides for re-insurance with reputable Insurance Companies
as further safeguard for the funds.

In approving the scheme, Nigeria has joined the ranks of several member-countries of the International Labour
Organisation (ILO) some of which replaced the Workmen Compensation Act with the Employees’
Compensation Scheme more than thirty years ago, Dr Okoli said.
Reforming The Nigerian Workmen Conpensation And Factory Act
Written by Kayode Oladele
23 June 2006

Reforming The Nigerian Workmen Compensation And Factory

Act As A Social - Justice Development Plan

By Kayode Oladele

Participants at the just concluded Workshop on “Workers’ safety and

compensation in Nigerian Industry” organized by the House of
Representatives’ Committee on Labor, Productivity and Employment,
in collaboration with Friedrich Ebert Stiftung (FES) in Makurdi, Benue
State from May 30 - 31 2006 in their communiqué stressed the need
for an amendment to the current Workmen Compensation and
Factory Acts which they considered as inadequate, outdated, and
faulty in several respects. Participants were particularly worried
about section 3 of the Act which defines compensable injuries as
injuries that occurred by accident leaving other injuries not
compensable. Another area that makes the Act worrisome is the
utilization of regular court system for worker’s compensation
hearings. According to the communiqué, regular courts are unable to
satisfactorily resolve matters relating to Compensation, Health and
safety of workers and the legal processes are often
cumbersome, protracted and frustrating thereby making the entire
exercise futile and practically unobtainable.

In May this year, I was contacted by a reputable law office

in Nigeria to assist the firm in filing a worker’s compensation claim in
the U.S on behalf of a Nigerian lady who worked with one of the
multinational corporations in Nigeria for injuries which she suffered
while working as a secretary with the multinational company
in Nigeria. The oil company has its corporate head office in
the U.S. The lady worked as a secretary with the corporation but she
was laid off due to work related injuries having suffered from carpal
tunnel syndrome.

During my initial interview with this lady, she stated that she worked
for the oil corporation for several years as a secretary. However, due
to repetitive hand and wrist action, she developed a carpal tunnel
syndrome. In most cases, carpal tunnel syndrome is due to work-
related cumulative trauma of the wrist. It is commonly caused by
strain placed on the hand, for instance gripping and typing, which
are usually performed repetitively in a person's occupation. The
condition was first diagnosed in Australia in the 80s when musicians
started to use synthesizers heavily and people using these
instruments started to get hand and wrist pain. The syndrome is
much more common in women than it is in men. Symptoms range
from a burning, tingling numbness in the fingers (especially the
thumb and the index and middle fingers) to difficulty gripping,
making a fist, or dropping things. Most early sufferers mistakenly
blame the tingling numbness on their sleeping position, thinking
their hands have had restricted circulation and are "falling asleep". If
left untreated the symptoms often progress to intense pain which
restricts hand functionality. It is known as a hidden disability,
because people can do some things with their hands and appear to
have normal hand function, but often live with severely restricted
hand activity due to the pain.

According to this lady, she had spent substantial sum of money

visiting hospitals both in Nigeria and the U.S on her medical
condition to no avail. Unfortunately, her former employers would not
compensate her due to the lacuna in the Nigeria legal systems even
though, similarly situated employees of the same corporation in the
U.S are being compensated for the same injury.

This woman’s case depicts a typical example of what many workers

in Nigeria are going through today due to the inadequacy of the law
in this very important area of human Endeavour. It is however
gratifying to note that the House Committee on Labor is showing
some interest in this matter and might consider possible amendment
to the Act. This paper will therefore deal with a general overview of
workers compensation law and practice in other jurisdictions such as
the U.S.

As a prelude, workers’ compensation hearings are not suitable for

regular court system. The very nature of the hearing itself calls for
prompt and efficient adjudication of cases in order to quickly
rehabilitate the injured worker who may be out of work and in dire
need of a regular income. The court system is usually overcrowded,
causing long delays.
In Michigan State for example, the body saddled with the workers’
compensation hearing is the Worker’s Compensation Board of
Magistrates. The Board was created by the Legislature as an
autonomous entity in the Department of Labor consisting of 30
member-magistrates appointed by the Governor with the advice and
consent of the Senate. The magistrate is primarily responsible for
hearing and deciding contested claims and for preparing concise
written opinions containing findings of fact and conclusions of law.

The members of the Board of Magistrates are appointed by, and are
accountable only to, the Governor. They are not part of a
bureaucratic hierarchy. In the exercise of the decisional function,
they do not have a supervisor who can tell them how and what to
decide. They are therefore "independent." The Board of Magistrates
is created separate and apart from the appellate commission and the
Bureau of Worker’s Compensation, and accordingly is a separate
autonomous entity within the Department of Labor.

A magistrate, in hearing a claim performs the same role as a judge

when the judge acts as trier of fact in an action brought to enforce a
right created by statute. A magistrate, like a judge, will find the
facts with a large measure of finality and apply the law to the facts,
and in so doing will often find it necessary to construe the workers’
compensation act. In so construing the act, the magistrate may not
have the guidance of reported appellate decisions. The function of a
magistrate and of a judge and their authority and power in hearing a
statutory claim are essentially indistinguishable. The findings of fact
of a circuit judge are subject to reversal if clearly erroneous while a
magistrate findings of fact can be reversed on appeal only if there is
not substantial evidence on the whole record to support the
decision.

The magistrates, in addition to presiding over worker's

compensation contested hearings, sometimes engage in informal
settlement discussions with the parties and their attorneys regarding
cases assigned to other magistrates. For example, a magistrate
assigned to hear a case may believe that this procedure will enhance
the likelihood of a settlement. If the parties wish to engage in
further negotiations, the magistrate in such a case may ask the
litigants and/or their attorneys to permit another magistrate, who
has no involvement with the case, to facilitate informal settlement
discussions. If they agree, the unassigned magistrate may informally
meet with the litigants and/or their attorneys to discuss a possible
settlement. If the unassigned magistrate’s efforts are successful, the
case continues before the assigned magistrate who presides over a
redemption (settlement) hearing; if the unassigned magistrate‘s
efforts do not achieve a settlement, the case proceeds to trial and
adjudication before the assigned magistrate.

However, where a mediation conference proves unsuccessful in

resolving a case, the claim shall be submitted to the Worker's
Compensation Board of Magistrates for a contested hearing under
section 847, or, if the claim is less than $2,000.00, to the Worker's
Compensation Bureau's Small Claims Division.

There is also a special case called the 60 day case. That is where a
person was receiving workers’ compensation benefits and was cut
off by the insurance company and the injured worker files their
Petition within 60 days of the cut off date. This allows them a fast
track trial date, although does not guarantee a trial on the first time
up.

However, unlike in the regular court system, if an employee wins his

case at trial and the insurance company/the file an appeal against
the decision, the prevailing employee will start receiving seventy
percent of his or her weekly compensation benefits while the case is
on appeal, but any past due monies that were awarded for weekly
wages or past due medical bills are held and not paid until after the
appeal is over. It is the goal of workers' compensation to return the
injured employee quickly and economically to the status of
productive worker without unduly harming the employer's business

According to legal encyclopedia by Thomson Gale, Workers'

compensation laws in the United States developed during the early
1900s as a result of the industrial age and growing numbers of
industrial injuries. Before these laws were developed, workers
injured on the job often found themselves without remedy against
their employer or their fellow workers. The law of vicarious liability
was first developed in England in or about 1700 to hold the
employers, liable for the acts of their employees or servants. But in
1837, the British Court in Priestly v. Fowler, 3 M. & W. 1, 150
Reprint 1030, created the fellow servant exception to the general
rule of a master's vicarious liability; no longer would the master be
held liable for an employee's negligence in causing injury to a
coworker.

After Priestly, courts in the 1800s continued to develop judicial rules

and employer defenses to liability for injured workers. These
included: assumption of the risk, allowed employers to escape
liability with the dubious reasoning that employees could avoid or
decline dangerous work duties; contributory negligence, allowed
employers to escape liability, notwithstanding the employer's
negligence, where the employee also contributed to his injury due to
his negligence. Workers were left with inadequate remedies against
their employers for injuries resulting from work and were forced to
bear the expense of injury themselves.

This problem was first addressed in Europe during the 1800s, and by
the turn of the century the movement spread to North America.
Laws were enacted to provide workers injured on the job with
prompt, equitable, and guaranteed benefits. Injured workers
received medical care and disability income irrespective of fault.
Employers, in turn, were protected from potentially catastrophic loss
by a stated amount of specific benefits for the injuries suffered by
the employee. The worker was prohibited from filing suit while the
employer was obligated to pay the mandated benefits.

Workers’ compensation covers both cases of accidents and injury at

work or in the course of employment. Injuries are deemed to be
work-related and compensable under workers' compensation if they
arise out of and in the course of employment. The requirement that
the injury arises out of employment ensures a causal relationship
between the injury and the job, and it is usually the employee's
burden to prove that an increased risk of the job caused a
compensable injury.

The injury does not have to be caused by an accident to be covered

by workers' compensation. The benefits are most commonly
provided to workers who are injured by a specific accident on the
job, such as the worker who gets a hand caught in factory
machinery. Compensable accidental injury also include an
occupational diseases such as an employee's lung disease that
resulted from his exposure to asbestos in the workplace and
cumulative trauma associated with work duties, such as carpal
tunnel syndrome caused by repetitive keyboard work, also are
compensable. What is included in the workers' compensation
definition of employee remuneration are

Unlike in Nigeria, in the U.S, Workers' compensation law is governed

by statutes in every state. Specific laws vary with each jurisdiction,
but fundamental features are consistent and never altered. In
addition to state laws, the Federal Employee's Compensation Act
(FECA) provides workers' compensation benefits to Federal
employees who sustain job-related injuries or illnesses.

An employee is automatically entitled to receive certain benefits

when she suffers an occupational disease or accidental personal
injury arising out of and in the course of employment. Such benefits
may include cash or wage-loss benefits, medical and career
rehabilitation benefits, and in the case of accidental death of an
employee, benefits to dependents. The negligence and fault of either
the employer or the employee usually are immaterial. Independent
contractors are not entitled to workers' compensation benefits, and
in some states domestic workers and agricultural workers are
excluded or only partially covered.

A worker whose injury is covered by the workers' compensation

statute loses the common-law right to sue the employer for that
injury, but injured workers may still sue third parties whose
negligence contributed to the work injury. For example, a truck
driver injured in a rear-end collision by an unemployed third party
would be entitled to collect workers' compensation and also to sue
the third party for negligence. In such cases a plaintiff who recovers
money from a third-party lawsuit must first repay the employer
or insurer that paid workers' compensation benefits. The plaintiff
may keep any remaining money. Many jurisdictions permit the
employer or its insurer to sue negligent third parties on the
employee's behalf to recover funds paid as workers' compensation
benefits.

Workers' compensation is distinguishable from other personal injury

laws where negligence is a factor because although the employer is
liable for paying injured workers' benefits, the purpose of workers'
compensation is not to punish or hurt the employer. For this reason,
an integral component of workers' compensation is the requirement
that employers purchase workers' compensation insurance, or
provide a self-insured fund, to pay the benefits. This way, the
employer can pass along the cost of insurance to the purchasers of
the employer's product

Workers' compensation provides replacement income in the form of

wage loss benefits, compensation for permanent disability and
vocational rehabilitation benefits in addition to medical expenses.
Wage loss disability pay is generally available either temporarily,
while the worker is recuperating from his injury or permanently if he
is not able to recover from his injury. However, the amount of the
payment a worker receives will depend on the nature and extent of
his injuries.

The insurance company will pay 100% of his “reasonable and

necessary” medical bills, plus disability benefits according to the
states approved formula. In most states, the worker will receive 2/3
of his average weekly wage for the period that he is unable to work
due to his injury. If he is only able to work part time, his wage loss
benefits will be adjusted accordingly.

The formula to determine wage loss benefits in Michigan is 80

percent of an employee's after-tax salary. In some cases, the wage
loss benefit might be two-thirds of the worker's base salary, subject
to limitations. When an employee's salary changes from week to
week the benefit may be based on the 39 highest weeks of pay
during the past year. Normally the 80 percent calculation is more
beneficial to the worker. All necessary medical expenses incurred by
an injured worker are to be paid for by worker's compensation
insurance.

Other examples include: Alabama - for temporary or permanent

total disability, an injured worker receives 66 2/3 percent of the
wage with a minimum and maximum wages established by law,
Arizona -disability rate is 66 2/3 percent of the wage with no
minimum weekly payments but maximum payments established by
law, New York-disability rate is 66 2/3 percent of wage,
Massachusetts-disability rate is 60 percent of wage and Iowa-
disability rate for temporary or permanent total disability is 80
percent of "spendable earnings

Remuneration for the purpose of the computation include Wages or

salaries; Commissions; Bonuses including stock bonus plans; Extra
pay for overtime work, with certain exceptions, payment by an
employer of amounts otherwise required by law to be paid by
employees to statutory insurance or pension plans, such as the
Federal Social Security Act (employer’s contribution not to be
deducted from employee’s gross wages);payments to employees on
any basis other than time worked, such as piecework, profit sharing
or incentive plans; the value of lodging other than an apartment or
house, received by employees as part of their pay, to the extent
shown in the insured's records; the value of store certificates,
merchandise, credits or any other substitute for money received by
employees as part of their pay with certain exceptions; payments for
salary reduction, retirement plans that are made through deductions
from employee’s gross pay; expense reimbursements to employees
to the extent that an employer’s records do not substantiate that the
expense was incurred as a valid business expense.

Remuneration excludes tips and other gratuities received by

employees; payments by an employer to group insurance or group
pension plans for employees, the value of special rewards for
individual invention or discovery; dismissal or severance payments,
except for time worked or accrued vacation; employee discounts on
goods purchased from the employee’s employer; expense
reimbursements to employees to the extent than an employer’s
records substantiate that the expense was incurred as a valid
business expense; Sick pay paid to an employee by a third party
such as an insured’s group insurance carrier that is paying disability
income benefits to a disabled employee etc. Overtime is not
counted unless it is a regular part of the job or was required at
certain occasions and it then counted at regular time wages.

The Act does not make provision for pain and suffering. However,
there may be a lump sum payable for the percentage of permanent
disability, if any, that the worker suffers. Often called “permanent
partial disability,” this rating is given by a doctor according to your
state’s disability tables. The actual amount of the settlement will
depend on several factors, such as the doctor’s rating, your wage at
the time of the injury, etc. However as stated above, an injured
worker is entitled to receive 100% of necessary and reasonable
medical expenses incurred as a result of a job-related injury which
also include emergency room services, hospital care, physician's
fees and prescriptions. Pre-existing medical conditions are taken into
consideration in determining the causal relationship of a work-
related injury. But if a pre-existing medical condition becomes
aggravated, accelerated or exacerbated by a work related injury the
workers' compensation carrier is usually responsible for the
increased disability, including medical treatment

In conclusion, while these foreign jurisdictions have effective system

for ensuring the safety and security of workers, they continue to
explore further and better ways of making sure that workers are
not deprived of their earnings and earning capacities through work-
related injuries by removing both legal and extra legal barriers as
stated above. In order therefore, for Nigeria to flow in the stream of
these current developments in the law, which started in Germany,
Great Britain and the United States in the late 1800s and the early
1900s, Nigeria should amend the Act by making all work related
injuries compensable. The country should also set up agencies that
would provide workers a fast track for receiving their benefits
instead of saddling the regular courts with this onerous tasks.
Iko (Nigeria) Oil Spill (IKO Case)

About TED Categories and Clusters

CASE NUMBER: 326
CASE MNEMONIC: IKO
CASE NAME: Iko (Nigeria) Oil Spill

A. IDENTIFICATION

1. The Issue

Iko oil spillage issue is important because of the extent of

damage and impact, and has been in the local news, but there are
other smaller cases that have not been reported upon. While the
issue touches on international and domestic trade, its negative
externality on the environment destroys the environment and
productive capacity of the people. The oil trade is important
because the government and the oil companies generate their revenue
from it. On the other hand, the indigenous people living in this
area are in poverty due to lack of social services such as
hospitals, good drinking water, schools and are suffering from oil
pollution. Due to weak coalition among the people, their plight
has been suppressed, but the efforts of international non-
governmental institutions, media exposure and individual legal
actions has helped to check the government and the oil companies
impact on subsistence means of livelihood, and the destruction of
species.

2. Description

Oil spillage in Nigeria in Aguiyi-Ironsi's investigation shows

that, "between 1970 and 1983, offshore and on-shore oil spillage
amounts to 1,711,354,6 barrels (Aguiyi, 13)." Oil spillage is
associated with areas where there is oil exploration or along
pipelines used for its transportation to the hinterland. Most of
the victims are poor and have fragile coalitions, which further
prevent them from influencing government policies as it affects
them. Nigerian government has taken bold steps to promote
environmental education and awareness. According to the Federal
Environmental Protection Agency, Lagos-Nigeria, the following
relevant national laws and international agreements are in effect:
Endangered Species Decree Cap 108 LFN 1990; Federal Environmental
Protection Agency Act Cap 131 LFN 1990; Harmful Waste Cap 165 LFN
1990; Petroleum (Drilling and Production) Regulations 1969 Cap. 350
Vol. xix P.12766; Oil in Navigable Waters Act 1968 Cap. 337 Vol.
xix P.12327; Mineral Oil (Safety) Regulations 1963 Cap. 350 Vol.
xix P. 12667; 1971 International Convention on the Establishment of
an International Fund for Compensation for Oil Pollution Damage;
1972 Convention on the Prevention of Marine Pollution by the
Dumping of Wastes; 1968 African Convention on the Conservation of
Nature and Natural Resources; 1971 International Convention on the
Establishment of an international Fund for Compensation for Oil
Pollution Damage; (References to caps, volumes and pages are as in
the Laws of the Federation of Nigeria).
 The oil pollution is important and controversial because some
of the oil industries are not prepared to internalize the negative
externality, even though its impact on the health of the community
is high. The oil companies in most cases attribute the oil
spillage to sabotage and accident. These companies maintain that
they are committed to contributing to the well being of the people
living in the affected areas, but according to Aguiyi-Ironsi, "an
investigation by the Nigerian Environmental Society in 1985
revealed that between 1970 and 1983, offshore and on-shore oil
spillage amounts to 1,711,354 barrels (Aguiyi, 13)." Aguiyi went
further to say that,

"The riverine village of Iko, in Akwa Ibom State, saw

enough of the devastations of pollution as Egbema people
did. In six years from 1982, when shell oil company
started flaring gas in the Iko area, the once flourishing
village, known for its fish trade, was transformed into
the ghost town..." (Aguiyi, 15)

Nigerian government enacted the workmen compensation act of

1955 and decrees 16 and 17 of 1984, which relates to compensation
of victims of pollution, however, the oil companies find ways to
circumvent these laws with the help of some unscrupulous, corrupt
Nigerians. According to Newswatch,

The people of Iko, for example, after a series of pleas

to shell oil company and petitions to successive state
governments, still didn't get any relief... In 1982, the
youths at Egbema barricaded roads leading to Nigerian
Agip and oil company (NAOC)... (because) of non-payment
of compensation for the damage done to their environment
(Newswatch, 18)

Even with the companies' creation of few scholarships and few

roads (appeasement) in the 80s, the 90s witnessed a shift from
domestic campaign to the international scene. According to
Ekeocha, "(on) November 24, 1992, environmental groups in london
organized peaceful demonstration at shell premises to awaken the
consciousness of their people... (Ekeocha, 18)." In addition,
Ekeocha notes that Saro-Wiwa, who is currently the president of the
Association of Nigerian Authors internationalized the issue:

(T)heir struggle and challenging the activities of the

oil companies through visitation of Human Rights
Organization, environment groups in America and
Europe.... (He) was later invited to the 10th working
session of the United Nations Group on Indigenous
Populations in Geneva. The London Rain Forest Action
Group and Green Peace Environmental Movement were also
contacted. (Ekeocha, 18)

3. Related Cases

NIGERIA case
ECUADOR case
OGONI case
KOMI case
BLACKSEA case
MEDIT case
 Keyword Clusters

(1): Forum = NIGERIA

(2): Bio-geography = TROPical
(3): Environmental Problem = OIL/GAS

4. Draft Author: Shehu Ibrahim (May, 1994)

B. LEGAL Cluster

5. Discourse and Status: DISagreement and INPROGress

This case in question is the oil pollution, which is a

disagreement between the oil exporters and the community living
where oil is discovered. This case has been established, but its
resolution is not yet in sight, because some of the communities are
calling for autonomy, which is offensive to the Federal government
that has control over all resources within its territory. The
Federal government on May 12 promulgated the Treason and
Treasonable Offenses Decree (1993) " (Anyone) who conspire with
groups within or outside the country and profess ideas that
minimize the sovereignty of Nigeria are guilty of treason,
punishable with death." Therefore, I will rate it as a value of 2.

6. Forum and Scope: NIGERIA and UNILATeral

This case also appeared on the international scene at the 10th

working session of the United Nations Group on Indigenous
Population in Geneva. Others involved in this case include the
Greenpeace, Geneva-based International Atomic Energy Agency,
Friends of the Earth, Nigerian Institute of Marine Research and
Oceanography, and British Parliamentary Human Rights Group (BHRG).

7. Decision Breath: 1

8. Legal Standing: LAW

C. GEOGRAPHIC Cluster

9. Geographic Locations

a. Geographic Domain : Africa

b. Geographic Site : West Africa
c. Geographic Impact : Nigeria

10. Sub-National Factors: YES

11. Type of Habitat: TROPical

D. TRADE Cluster

12. Type of Measure: Regulatory Standard [REGSTD]

In the case of Iko and Ogoni oil pollution issue, some argue
that compensation should be paid to affected victims. Laws and
regulations enacted should be invoked and strictly implemented. An
escrow account should be established by the oil companies and the
Nigerian government, from which compensation would paid and others
social services and amenities would be met. Aguiyi-Ironsi notes
the laxity shown from time, "Ironically, the Oil Navigable Waters
Act of 1968, which provides that no more than 100 parts of oil be
discharged 30 nautical miles off the country's coast is not being
enforced.

In some instances, environmental litigation are presented to

courts for settlement. According to Adewale, "In some cases, the
maxim of res ipsa loquitur (The Fact speaks for itself) has been
relied upon to relieve plaintiff from the onerous duty of proving
negligence. Thus in Victor Flem Vs Shell B.P. (1979) oil escaped
from the defendant's oil location to the plaintiff's property
thereby causing damage. The judge evoked the principle of res ipsa
loquitur and awarded damages to the plaintiff.

13. Direct vs. Indirect Impacts: INDirect

14. Relation of Measure to Environmental Impact

a. Directly Related : YES OIL/GAS

b. Indirectly Related : NO
c. Not Related : NO
d. Process Related : YES Pollution Land [POLL]

15. Trade Product Identification: OIL

16. Economic Data

According to African survey, Nigeria's principal means of

revenue is the oil, and it provides 96.2% of total export earnings
in 1991 (Africa, 2978). Whereas, the degree for dependence on
imported petroleum for Japan, France, West Germany, Italy, and the
United States would be placed along a continuum from high to low
respectively.

17. Impact of Measure on Trade Competitiveness: LOW

18. Industry Sector: OIL/GAS

19. Exporter and Importer: Nigeria and MANY

E. ENVIRONMENT Cluster

20. Environmental Problem Type: Pollution Land [POLL]

The number of species destroyed cannot be determined, however,

the impact on the health of humans living in Iko, Ogoni, Delta
areas, and other animals is devastating.

21. Name, Type, and Diversity of Species

Name: Many

Type: Many

Diversity: PHILippines

22. Impact and Effect: LOW and PRODuct

23. Urgency and Lifetime: MEDIUM and 100s years

24. Substitutes: Biodegradable products

VI. OTHER Factors

25. Culture: NO

Nigerian laws are derived from pre-20th century English

statutes, but are now modified to suit Nigeria's socio-cultural
realities. However, most of the laws and decrees enacted in
respect of the trade are in accordance to Nigeria's National Law,
and International agreements. Note that references to caps,
volumes and pages are as in the Laws of the Federation of Nigeria.
Official Memorandums of Understanding (MOU) between Nigeria and
Italian government led to a "systematic programme of
decontamination, restoration and post-impact monitoring ( FEPA,
1989)."

26. Trans-Border: NO

27. Rights: YES

28. Relevant Literature

"Nigeria" Africa South of the Sahara 1993. England ; Europa

Publishing Ltd. 1993.
Adewale, O. The Nigerian Institute of Advanced legal Studies, Lagos
1991.
Aguiyi-Ironsi, Louisa. "The Looming Shadow: Environmental pollution
is gradually changing Nigeria's landscape, destroying sources
of livelihood" Newswatch. July 18,1988.
Aguiyi-Ironsi, Louisa. " A World Under the Sword: Experts say
global environmental pollution is increasingly becoming a
major threat" Newswatch. July 18,1988.
Ayadike, O. West Africa, June 20, 1988,p. 1109.
Federal Environmental Protection Agency, Nigeria. "Achieving
Sustainable Development in Nigeria" National Report for the
United Nations Conference on Environment and Development. Rio
de Janeiro, Brazil. 1-12 1992.
Greenpeace Toxic Trade Update, Third and Fourth Quarter 1991.
Greenpeace Toxic Trade Update, Second to Fourth Quarter 1992.
Greenpeace Toxic Trade Update, First and fourth Quarter 1993.
Nigerian Environmental Study/Action Team pp. 261-264. 1991.
Odauran, Akpovire B. "Education Against Environmental Pollution in
Nigeria" Convergence. Vol. 22 No 4, 1989 pp.55-60.
"Would-be waste smugglers face execution" New Scientist. Vol 136
(Nov 21, 92)p.8.
Smowdem, R,J, ; Ekeazor, I.K.E. "Littoral in fauna of a West Africa
estuary: an oil pollution survey" Marine Biology. V. 105 No
1 (90) p.51-7.
Go to Africa Cases

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May 30, 1996

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What is Workmen's Compensation Act 1923?

In: Workers Compensation [Edit categories]
Of Personal Injury Law
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Answered by Pottumutu VS Praveen

Workmen's Compensation Act, 1923

1) This Act may be called the Workmen's Compensation Act, 1923.

(2) It extends to the whole of India.

(3) It shall come into force on the first day of July, 1924.

The Workmen's Compensation Act, aims to provide workmen and/or their dependents some
relief in case of accidents arising out of and in the course of employment and causing either
death or disablement of workmen.

This act is a central legislation which provides for payment of compensation for injuries suffered
by a workman in the course of and arising out of his employment according to the nature of
injuries suffered and disability incurred, where death results from the injury, the amount of
compensation is payable to the dependants of the workmen.

WORKMAN

Workman means any person (other than a person whose employment is of a casual nature and
who is employed otherwise than for the purposes of the employers trade or business) who is- a
railway servant as defined in section 3 of the Indian Railways Act, 1890 not permanently
employed in any administrative, district or sub-divisional office of a railway and not employed in
any such capacity as is specified in Schedule II, or employed in any such capacity as is specified
in Schedule II,

Whether the contract of employment was made before or after the passing of this Act and
whether such contract is expressed or implied, oral or in writing.

The provisions of the Act have been extended to cooks employed in hotels, restaurants using
power, liquefied petroleum gas or any other mechanical device in the process of cooking.

EMPLOYEES ENTITLED TO COMPENSATION

Every employee (including those employed through a contractor but excluding casual
employees), who is engaged for the purposes of employers business and who suffers an injury
in any accident arising out of and in the course of his employment, shall be entitled for
compensation under the Act.

The employer of any establishment covered under this Act, is required to compensate an
employee :
• Who has suffered an accident arising out of and in the course of his employment,
resulting into (i) death, (ii) permanent total disablement, (iii) permanent partial
disablement, or (iv) temporary disablement whether total or partial, or
• Who has contracted an occupational disease.

EMPLOYER'S LIABILITY FOR COMPENSATION. -

(1) If personal injury is caused to a workman by accident arising out of and in the course of his
employment, his employer shall be liable to pay compensation in accordance with the
provisions:

Provided that the employer shall not be so liable -

(a) In respect of any injury which does not result in the total or partial disablement of the
workman for a period exceeding three days;

(b) In respect of any injury, not resulting in death or permanent total disablement, caused by
an accident which is directly attributable to -

(i) The workman having been at the time thereof under the influence of drink or drugs, or

(ii) The willful disobedience of the workman to an order expressly given, or to a rule expressly
framed, for the purpose of securing the safety of workmen, or

(iii) The willful removal or disregard by the workman of any safety guard or other device which
he knew to have been provided for the purpose of securing the safety of workmen,

(2) If a workman employed in any employment specified in Part A of Schedule III contracts any
disease specified therein as an occupational disease peculiar to that employment, or if a
workman, whilst in the service of an employer in whose service he has been employed for a
continuous period of not less than six months (which period shall not include a period of service
under any other employer in the same kind of employment) in any employment specified in Part
B of Schedule III, contracts any disease specified therein as an occupational disease peculiar to
that employment, or if a workman whilst in the service of one or more employers in any
employment specified in Part C of Schedule III, for such continuous period as the Central
Government may specify in respect of each such employment, contracts any disease specified
therein as an occupational disease peculiar to that employment, the contracting of the disease
shall be deemed to be an injury by accident within the meaning of this section and, unless the
contrary is proved, the accident shall be deemed to have arisen out of, and in the course of, the
employment :

Provided that if it is proved, -

(a) That a workman whilst in the service of one or more employers in any employment specified
in Part C of Schedule III has contracted a disease specified therein as an occupational disease
peculiar to that employment during a continuous period which is less than the period specified
under this sub-section for that employment, and

(b) That the disease has arisen out of and in the course of the employment; the contracting of
such disease shall be deemed to be an injury by accident within the meaning of this section:

Provided further that if it is proved that a workman who having served under any employer in
any employment specified in Part B of Schedule III or who having served under one or more
employers in any employment specified in Part C of that Schedule, for a continuous period
specified under this sub-section for that employment and he has after the cessation of such
service contracted any disease specified in the said Part B or the said Part C, as the case may
be, as an occupational disease peculiar to the employment and that such disease arose out of
the employment, the contracting of the disease shall be deemed to be an injury by accident
within the meaning of this section.

(2A) If a workman employed in any employment specified in Part C of Schedule III contracts
any occupational disease peculiar to that employment, the contracting whereof is deemed to be
an injury by accident within the meaning of this section, and such employment was under more
than one employer, all such employers shall be liable for the payment of the compensation in
such proportion as the Commissioner may, in the circumstances, deem just.

(3) The Central Government or the State Government, after giving, by notification in the Official
Gazette, not less than three months' notice of its intention so to do, may, by a like notification,
add any description of employment to the employments specified in Schedule III, and shall
specify in the case of employments so added the diseases which shall be deemed for the
purposes of this section to be occupational diseases peculiar to those employments respectively,
and thereupon the provisions of sub-section (2) shall apply In the case of a notification by the
Central Government, within the territories to which this Act extends or, in case of a notification
by the State Government, within the State as if such diseases had been declared by this Act to
be occupational diseases peculiar to those employments.

(4) Save as provided by Sub-sections (2), (2A) and (3), no compensation shall be payable to a
workman in respect of any disease unless the disease is directly attributable to a specific injury
by accident arising out of and in the course of his employment.

(5) Nothing herein contained shall be deemed to confer any right to compensation on a
workman in respect of any injury if he has instituted in a Civil Court a suit for damages in
respect of the injury against the employer or any other person; and no suit for damages shall be
maintainable by a workman in any Court of law in respect of any injury -

(a) If he has instituted a claim to compensation in respect of the injury before a Commissioner;
or

(b) If an agreement has been come to between the workman and his employer providing for the
payment of compensation in respect of the injury in accordance with the provisions of this Act.

ACCIDENT ARISING OUT OF AND IN THE COURSE OF EMPLOYMENT

An accident arising out of employment implies a casual connection between the injury and the
accident and the work done in the course of employment. Employment should be the distinctive
and the proximate cause of the injury. The three tests for determining whether an accident
arose out of employment are:
• At the time of injury workman must have been engaged in the business of the employer
and must not be doing something for his personal benefit;
• That accident occurred at the place where he as performing his duties; and
• Injury must have resulted from some risk incidental to the duties of the service, or
inherent in the nature condition of employment.

The general principles that are evolved are:

• There must be a casual connection between the injury and the accident and the work
done in the course of employment;
• The onus is upon the applicant to show that it was the work and the resulting strain
which contributed to or aggravated the injury;
• It is not necessary that the workman must be actually working at the time of his death
or that death must occur while he was working or had just ceased to work; and
• Where the evidence is balanced, if the evidence shows a greater probability which
satisfies a reasonable man that the work contributed to the causing of the personal injury
it would be enough for the workman to succeed. But where the accident involved a risk
common to all humanity and did not involve any peculiar or exceptional danger resulting
from the nature of the employment or where the accident was the result of an added peril
to which the workman by his own conduct exposed himself, which peril was not involved
 in the normal performance of the duties of his employment, then the employer will not be
liable.

AMOUNT OF COMPENSATION. -

(1) Subject to the provisions of this Act, the amount of compensation shall be as follows,
namely :-

(a) where death results an amount equal to fifty from the injury cent of the monthly wages of
the deceased workman multiplied by the relevant factor; or an amount of fifty thousand rupees,
whichever is more;

(b) Where permanent total an amount equal to disablement results from sixty the injury per
cent of the monthly wages of the injured workman multiplied by the relevant factor, or an
amount of sixty thousand rupees, whichever is more.

(c) where permanent partial disablement results from the injury

(i) in the case of an injury specified in Part II of Schedule I, such percentage of the
compensation which would have been payable in the case of permanent total disablement as is
specified therein as being the percentage of the loss of earning capacity caused by that injury,
and

(ii) in the case of an injury not specified in Schedule I, such percentage of the compensation
payable in the case of permanent total disablement as is proportionate to the loss of earning
capacity (as assessed by the qualified medical practitioner) permanently caused by the injury;

(d) Where temporary a half monthly payment of the sum disablement, whether equivalent to
twenty-five per cent of total or partial, results monthly wages of the workman, to from the
injury be paid in accordance with the provisions of sub-section (2).

(2) The half-monthly payment referred to in clause (d) of sub-section (1) shall be payable on
the sixteenth day -

(i) from the date of disablement where such disablement lasts for a period of twenty-eight days
or more; or

(ii) after the expiry of a waiting period of three days from the date of disablement where such
disablement lasts for a period of less than twenty-eight days; and thereafter half-monthly
during the disablement or during a period of five years, whichever period is shorter :

Provided that -

(a) there shall be deducted from any lump sum or half-monthly payments to which the
workman is entitled the amount of any payment or allowance which the workman has received
from the employer by way of compensation during the period of disablement prior to the receipt
of such lump sum or of the first half-monthly payment, as the case may be; and

(b) no half-monthly payment shall in any case exceed the amount, if any, by which half the
amount of the monthly wages of the workman before the accident exceeds half the amount of
such wages which he is earning after the accident.

(3) On the ceasing of the disablement before the date on which any half-monthly payment falls
due, there shall be payable in respect of that half-month a sum proportionate to the duration of
the disablement in that half-month.

(4) If the injury of the workman results in his death, the employer shall, in addition to the
compensation under sub-section (1), deposit with the Commissioner a sum of one thousand
rupees for payment of the same to the eldest surviving dependant of the workman towards the
expenditure of the funeral of such workman or where the workman did not have a dependant or
was not living with his dependant at the time of his death to the person who actually incurred
such expenditure.
METHOD OF CALCULATING WAGES

In this Act and for the purposes thereof the expression "monthly wages" means the amount of
wages deemed to be payable for a month's service (whether the wages are payable by the
month or by whatever other period or at piece rates), and calculated as follows, namely:-

(a) where the workman has, during a continuous period of not less than twelve months
immediately preceding the accident, been in the service of the employer who is liable to pay
compensation, the monthly wages of the workman shall be one-twelfth of the total wages which
have fallen due for payment to him by the employer in the last twelve months of that period;

(b) where the whole of the continuous period of service immediately preceding the accident
during which the workman was in the service of the employer who is liable to pay the
compensation was less than one month, the monthly wages of the workman shall be the
average monthly amount which, during the twelve months immediately preceding the accident,
was being earned by a workman employed on the same work by the same employer, or, if there
was no workman so employed, by a workman employed on similar work in the same locality;

(c) in other cases [including cases in which it is not possible for want of necessary information
to calculate the monthly wages under clause (b), the monthly wages shall be thirty times the
total wages earned in respect of the last continuous period of service immediately preceding the
accident from the employer who is liable to pay compensation, divided by the number of days
comprising such period.
Fed Govt approves Employee Compensation Scheme
• By Our Reporter

• Published 1/06/2009

• Labour

• Unrated

The Federal Government has called on the National Assembly to pass into law the
newly approved Employees Compensation Scheme for the benefit of workers,
employers and the government.

The call was made by the Minister of Labour, Employment and Productivity,
Prince Adetokunbo Kayode (SAN), after the Federal Executive Council
unanimously approved the long-awaited Employees Compensation Bill last
Wednesday.

The Minister described the bill as "revolutionary and a demonstration that the
President Umaru Musa Yar’Ádua administration cares so much about the Nigerian
worker."

According to the bill, employees will get free monthly compensation when injured
at work including rehabilitation and career guidance until they are able to return
to work; unlike the existing law where they are paid a one-off lump-sum
compensation if they are lucky. These benefits will be funded by one per cent of
payroll contribution by the employers including the Federal, state and local
governments.

Should the Bill be passed into law, employers will benefit from huge profits
achieved from higher productivity by well motivated and loyal employees; while
the government will benefit from industrial peace and harmony and general
economic growth.

Similarly, the MD/CEO of Nigeria Social Insurance Trust Fund, Dr Enukora Joe
Okoli, described the bill as a Win! Win! for all! He explained that the Employees
Compensation Act when passed will repeal and replace the obsolete Workmen’s
Compensation Act of 1942 passed by colonial masters for themselves and later
amended in 1957 to include Nigerian workers.

Okoli explained that the old Workmen’s Compensation Act (WCA) is provided
through commercial insurance on a "No Premium No Cover basis" while the
Employees Compensation Scheme (ECS) is provided through pooling of risks with
employers contribution. This means that every employee is automatically covered
through employer contributions already in the pool, while defaulting employees
are vigorously pursued to remit their own contribution. Claimants working with
employers who might be having liquidity (cash flow) problems will not suffer
because their claims will be settled by the Nigeria Social Insurance Trust Fund
(NSITF) who will be managing the scheme.

Other benefits of the new ECS include a "no-fault provision" as opposed to the
WCA which requires you to prove that you were not negligent. Furthermore, the
WCA defines compensable injuries as injuries that occurr by accident, leaving out
other injuries that can be caused by exposure and contamination. Under the
WCA, disputes are settled by courts which can be costly while the ECS provides
for settlement by arbitration in a worker- friendly environment. The ECS also
provides for re-insurance with reputable insurance companies as further
safeguard for the funds.

Said Okoli: "In approving the scheme, Nigeria has joined the ranks of several
member-countries of the International Labour Organisation (ILO) some of which
replaced the Workmen Compensation Act with the Employees’ Compensation
Scheme more than thirty years ago".