Edited by Francesca Tironi, Luca Saglione and Geljarda Domi
The Criminal Court of Cassation, in the decision no. 38914 of June 27, 2023, and filed on September 25, 2023, upheld the decision of the Bari Court of Appeal that had found the Employer and the Employees’ Safety Representative guilty of the crime of manslaughter resulting from the violation of regulations on the protection of health and safety in the workplace.
In the case of the judgment under review, the Employees’ Safety Representative was ascribed with specific culpability related to violations of occupational safety regulations, for having contributed to causing the fatal accident of an employee through a series of omissive acts, consisting of having failed to promote the development, identification and implementation of preventive measures suitable to protect the health and physical integrity of employees and to urge the employer to carry out employee training.
The Court of Cassation, which was asked to rule on the decision of the Bari Court of Appeal, noted how article no. 50 of Legislative Decree no. 81 of 2008 gives the Employees’ Safety Representative “a role of primary importance as a fundamental subject who participates in the process of workplace safety management, constituting an intermediate figure of connection between employer and employees, with the function of facilitating the flow of company information on occupational health and safety.”
Precisely, the judges pointed out how the Employees’ Safety Representative “did not in any way comply with the duties that had been assigned to him by law, allowing” the employee “to be assigned to tasks other than contractual ones, without having received any adequate training and not urging in any way the adoption by the company manager of organizational models capable of preserving the safety of employees […].”
The decision opens a completely new scenario compared to the past: it would be subject to judicial evaluation not only the behaviours of the individuals (employer and its delegates) required to organize and implement the company’s prevention system, but also those of an omissive nature attributable to the Employees’ Safety Representative.
Please note how the function assigned by the law to the RLS is actually limited to the power to interfere, in representation of employees, in the process of adopting safety measures to guarantee their safety (article no. 50 of Legislative Decree no. 81/2008 states that the RSL has rights of consultation, information, access and formulation of proposals, but has no obligations binding him to do anything).
In this sense, the judgment recognizes that the RSL has no position as a guarantor of safety but goes to unprecedented lengths to identify a “culpable cooperation” of the latter in the homicide, which took the form of implicitly giving consent for the employer to assign its employee to dangerous tasks without appropriate training.
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