• Demand Comprehensive Legal Reform of Factories Act

THE Oyo State chapter of the Alliance on Surviving Covid-19 And Beyond (ASCAB) and the Nigeria chapter of International Lawyers Assisting Workers (ILAW) Network have called for the criminal prosecution Henkel Nigeria Ltd and Expand Global Industries Ltd and their owners or agents for the death of Richard Gbadebo, a 400 level student of the University of Ibadan who was killed in a factory accident while on duty.

ASCAB and ILAW made the call in a memo submitted to the Panel of Inquiry set up by the Ministry of Labour and Employment investigating the circumstances that led to the death of 21-year-old Gbadebo at the premises of Expand Global Industries Ltd, an Ibadan-based soap-making factory on the night of July 27, 2020.

The Panel commenced sitting on Wednesday, April 7, 2021 in Mojisola Hall, Kakamfo Inn & Conference Centre at 1 Nihinlola Street, Ibadan, Oyo State capital, receiving memoranda from parties interested in the matter including ASCAB and ILAW who are represented by Ibadan-based law firm, Abope Chambers.

The two organisations also called on the Panel of Inquiry to, in addition to other technical measures which safety experts may recommend for enforcement in line with relevant laws and regulations; compel Henkel Nigeria Ltd and Expand Global Industries Ltd to produce the CCTV footage of the accident for expert examination.

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In the memo signed by Comrade Femi Aborisade, human rights lawyer and Managing Partner of Abope Chambers, ASCAB and ILAW also demanded for the unionisation of all categories of workers in the two companies into existing two unions, namely; National Union of Chemical, Footwear, Rubber, Leather and Non-Metallic Products Employees (NUCFLAMPE), and Chemical and Non-Metallic Products Senior Staff Association (CANMPSSA).

Demand Comprehensive legal reform
While asking for the enforcement of existing penalties against the deemed killers of the late Gbadebo as a deterrence for future re-occurrence, ASCAB and ILAW also demanded for a comprehensive legal reform in which stringent requirements are to be made so as to discourage owners from turning their “factories into killing fields.”

“We call for a comprehensive reform of the Factories Act, beyond a review of the provision for the quantum of compensation which the factory owner is liable to pay,” ASCAB and ILAW stated, as they decried the existing requirement in which the maximum penalty for any factory accident, even one that led to death is five thousand naira only.

“The prescribed penalty where death occurs in a factory, as far as compensation is concerned, under the Factories Act, is an incentive for company owners to turn their companies into killing fields.

“Section 71 of the Factories Act provides for the liability of the owner or occupier to pay the family of the deceased only five thousand Naira, as follows: …If any person is killed or dies or suffers any bodily injury, in consequence of the occupier or owner of a factory having contravened any provision of this Act or of any regulation or order made thereunder, the occupier or owner of the factory shall, without prejudice to any other penalty, be liable to a fine not exceeding N5,000 or to imprisonment for a term not exceeding two years, or to both such fine and imprisonment, and the whole or any part of the fine may be applied for the benefit of the injured person or his family or otherwise as the court may order…”[their emphasis]

In addition to a comprehensive legal reform, the two organisations argued for strict compliance with ILO’s Convention on Occupational Safety and Health, which they say “establishes the principle that there is a relationship between having a safe working environment and the likelihood to enforce or the prevalence of impunity not to enforce prescribed penalties for contravention of provisions that guarantee a safe working environment.”

Article 9 of C155 (Convention on Occupational Safety and Health), ASCAB and ILAW stated in their memorandum, identifies two critical factors that may help to determine whether the provisions of the law guaranteeing a safe working environment would be observed or ignored with ignominy. These include “the enforcement of laws and regulations concerning occupational safety and health” and “the working environment shall be secured by an adequate and appropriate system of inspection and the enforcement system shall provide for adequate penalties for violations of the laws and regulations.”

To ensure strict compliance with safety protocols as required by Article 9 of C155, ASCAB and ILAW recommend that more factory inspectors be employed by the Ministry of Labour and Employment, empowered and encouraged to do their work in such a way that they would resist the temptation to be compromised, in addition to ensuring the enforcement of existing penalties for violations of laws and regulations.

Duties of care and penalties
The organisations argue that Section 304 of the Criminal Code is also relevant in determining who the ‘killer’ of Richard Gbadebo is, where it provides that: “It is the duty of every person who has in his charge or under his control anything, whether living or inanimate, and whether moving or stationary, of such a nature that, in the absence of care or precaution in its use or management, the life, safety, or health, of any person may be endangered, to use reasonable care and take reasonable precautions to avoid such danger; and he is held to have caused any consequences which result to the life or growth of any person by reason or any omission to perform that duty”. [Their emphasis]

Arguing further, they noted that the provisions of sections 304, 305 and 308 of the Criminal Code all point to the fact that “the death of Richard Gbadebo occurred by the failure to observe duty of care, the factory owners and/or their agents would be deemed to have caused the death of Richard Gbadebo.”

The natural question to ask, they say following the establishment of these facts, whether there was “a failure of the duty of care in the case of the death of Richard Gbadebo?”

To answer the question, ASCAB and ILAW asked the Panel of Inquiry to take recourse to:

“i.) The “Accident Investigation Preliminary Report” based on the investigation conducted on the date the industrial accident occurred on 28/7/2020 (as well as on 29/7/2020) by the Department of Occupational Safety and Health of the Federal Ministry of Labour and Employment.  A copy of the “Accident Investigation Preliminary Report” is attached and marked as Document 3)

“ii) The “Post Mortem Report” dated 4/8/2020. The post-mortem was conducted on 3/8/2020. A copy of the “Post Mortem Report” is attached and marked as Document 4). It may also help the Panel to draw attention to a letter we had to write to the Chief Medical Director (CMD) University Teaching Hospital (UCH) dated 7/8/2020, pointing out certain non-technical but factual errors in the Post-mortem report. The said letter dated 7/8/2020 is attached and marked Document 5. The CMD replied our letter, admitting the errors we pointed out and making explanations. The reply by the CMD is dated 24/8/2020 and it is attached and marked Document 6.

“iii) The nature of the job for which Richard Gbadebo was employed (Packer, as indicated in his “Staff Identity Card”) and the actual work assigned to him (SIGMA-Z mixer operator, as stated in the “Accident Investigation Preliminary Report”). A copy of the “Staff Identity Card” is attached and marked as Document 7).” [Their emphasis]

According to the memorandum, the accident investigation panel, in its preliminary report, unequivocally stated that: “The management of Henkel/Expand Global has failed to provide an adequate safe and healthy work environment in compliance with the provisions of Factories Act CAP1 LFN 2004. The organization is found to be in contravention of Sections 17, 18 and 23 of the Factories Act.

“Sections 17 & 18 of the Factories Act make mandatory provisions that “every dangerous part of any machinery … shall be securely fenced”.

“The 3rd paragraph of the “ACCIDENT INVESTIGATION PRELIMINARY REPORT” graphically captures the gruesome way in which Richard Gbadebo was crushed to death by the mixer machine:

“…Mr. Ibrahim the first responder who was close by saw that Mr. Richard’s two legs were suspended in the air and the rest of the body inside the mixer.” [Their emphasis]

Also noted in the memorandum are findings contained in the post mortem report where the pathologist reportedly attributed traced the accident and death of Gbadebo “to lack of protective cover for the mixer machine to prevent accidents…” and Gbadebo’s staff identity card which indicate that though he was engaged as a packer, he was instead assigned a technical job for which he was not trained.”

“This finding is a contravention of Section 23 of the Factories Act, which prohibits against employment of an untrained hand to handle a machine or process that is liable to cause bodily injury, as follows:

“23. No person shall be employed at any machine or in any process … liable to cause bodily injury, unless he has been fully instructed as to the dangers likely to arise in connection therewith and the precautions to be observed, and –

  • has received a sufficient training to work at the machine or in the process; or
  • is under adequate supervision by a person who has a thorough knowledge and experience of the machine or process”.

While commending the Minister of Labour and Employment for setting up the Panel of Inquiry and urging the panel to carry out its “assignment without fear or favour, in the interest of a safe working environment in Nigeria,” ASCAB and ILAW submitted: “In our humble opinion, we think Henkel Nigeria Limited and Expand Global Industries Limited failed to exercise the duty of care owed to Richard Gbadebo. On this ground, the two companies, their owners and agents are deemed, in law, to have caused the death of Richard Gbadebo, having deliberately failed to exercise the duty of care.

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