Although the Employees’ Compensation Act (ECA) was enacted as far back as 2010, it is instructive to note that the National Industrial Court of Nigeria (NICN) only recently started making some interesting pronouncements on the interpretation of certain provisions of the ECA.

One of the recent cases where the NICN made a pronouncement on a provision of the ECA, is the case of Amina Hassan v. Airtel Networks Limited & Bezaleel Consulting (2015) 58 N.L.L.R (Pt. 201) 443 where the Court considered the effect of section 12 (1) of the ECA on the right of an employee, dependant or member of the family of the employee to commence a lawsuit against an employer in respect of any death, injury or disability arising out of and in the course of employment.

Section 12 (1) of the ECA provides, thus:

“The provisions of this Act are in lieu of any right of action, statutory or otherwise, founded on a breach of duty of care or any other cause of action, whether that duty or cause of action is imposed by or arises by reason of law or contract, express or implied, to which an employee, dependant or member of the family of the employee is or may be entitled against the employer of the employee, or against any employer within the scope of this Act, or against any employee, in respect of any death, injury or disability arising out of and in the course of employment and where no action in respect of it lies.”

A literal interpretation of section 12 (1) of the ECA and a holistic reading of other provisions of the ECA (including sections 4 and 55) seem to suggest that a lawsuit cannot be brought against an employer in a situation where an employee died, suffers an injury or disability in the course of his/her employment. Some labour law experts and practitioners have also expressed diverse views on the import of section 12 (1) of the ECA vis-à-vis the right of an employee or a member of the employee’s family to commence a lawsuit against an employer in respect of an injury or disability or death, which occurred in the course of the employee’s employment.

The pertinent facts of Amina Hassan v. Airtel Networks Limited & Bezaleel Consulting (Supra) are as follows: the Claimant commenced the lawsuit against the Defendants for negligence of breach of duty of care to provide a safe working environment or equipment and prompt medical care in the case of injury sustained in the course of her employment.

She therefore claimed the sum of N150,000,000.00 (One hundred and fifty million naira) being damages for permanent impairment and loss of ability to work. Upon being served with the originating processes, the 1st Defendant filed a Notice of Preliminary Objection challenging the competence of the lawsuit on the ground that the Claimant lacked the locus stand to institute the lawsuit in view of the provision of section 12 (1) and (6) and section 55 of the ECA. The NICN dismissed the Notice of Preliminary Objection (NPO) and held, among other things, that section 12 (1) of the ECA does not preclude an employee from commencing a lawsuit against an employer in respect of an injury, disability or death, which occurred in the course of the employee’s employment provided that the employee does not pursue compensation under the ECA. The NICN consequently concluded its ruling on the NPO by holding that the lawsuit should proceed to trial.

The implication of the NICN’s ruling in Amina Hassan v. Airtel Networks Limited & Bezaleel Consulting is that an employee who suffers an injury or disability in the course of his employment can, notwithstanding the provision of section 12 (1) of the ECA, commence a lawsuit against his/her employer provided that the employee has not applied for compensation from the Nigeria Social Insurance Trust Fund Management Board (NSITFMB) as provided for in sections 4-11 of the ECA.

Conclusion

The ruling of the NICN is commendable, as it has helped to bring clarity to the interpretation of section of 12 of the ECA. The ruling has also helped to create an option for employees who do not wish to apply for compensation from the Nigeria Social Insurance Trust Fund Management Board (NSITFMB) due to the belief that the compensation regime under the ECA might not be sufficient to compensate for permanent disability or death, which arose in the course of employment.