Accident of the undeclared worker: liability of the employer and the company

The Court of Cassation, Fourth Criminal Section, with sentence no. 35934 of 9 August 2019 addressed the case of an accident involving an “off-the-books” worker. The Court of Cassation, confirming the decision regarding the substance, recognized both the liability of the legal representative of the company, in his capacity as employer, and the administrative liability of that same company under Legislative Decree 231/2001. With regard to the latter, in addition to the monetary penalty, the company was also subject to an administrative penalty prohibiting it from exercising its economic activity for a period of one month, with the resulting additional damage to its assets and image.

The facts and previous levels of judgement

The dispute in question concerns the accident involving and “off-the-books” worker who, while dismantling a modular beam of the stage where a musical event was held, had lost his balance, falling from a height of about two meters above the road surface. The worker had suffered injuries which had resulted in an inability to take care of ordinary jobs for more than forty days, with permanent weakening in his hearing.

Both the Court of Brindisi and the Court of Appeals of Lecce had declared the legal representative of the company, in his capacity as employer, guilty of the crime of injury through negligence, also sentencing him to pay compensation for the damages suffered by the injured party, with a provisional award of € 10,000.00. The judges on the merits also recognised the company’s administrative liability under Legislative Decree 231/2001.

Court of Cassation

The decision of the Court of Appeals was challenged by the employer, on his own behalf and in his capacity as legal representative of the company, before the Court of Cassation for two different reasons.

With the first, the existence of abnormal and unpredictable conduct of the injured person was affirmed, who had ventured to lend a hand to his colleague, thus putting in place a questionable and exorbitant conduct, such as to deprive the employer of any liability.

With the second reason, it was argued that there was no proof of the causal link between the defendant’s omission and the event which had occurred.

The liability of the company

The Court of Cassation declared, first of all, that the appeal filed by the company was inadmissible because of the obvious incompatibility of the lawyer who was assisting both the employer accused of the predicate offence and the company called to account for the resulting administrative offence. In fact, with regard to the administrative liability of entities, the legal representative suspected or accused of the predicate offence cannot, because of this condition of incompatibility, appoint the defender of the entity, for the general and absolute prohibition of representation placed by the Legislative Decree No 231/2001, Article 39 (S.U., no. 33041 of 28 May 2015).

In addition, the Supreme Court confirmed the company’s liability for the administrative offence provided for in Article 25-septies, paragraph 3, of Legislative Decree 231/2001, therefore for not having put in place an organizational and management model for occupational health and safety (see Article 30 of Legislative Decree 81/2008) suitable for preventing the commission of the crime of serious injuries in violation of accident prevention regulations.

As a result, the company was subject to a fine of 100 shares, for a total amount of 30,000.00 Euro; moreover, the company was also subject to an administrative fine of one month’s disqualification from carrying out its business (article 9, paragraph 2, letter A, of Legislative Decree 231/2001), with consequent further damage to its assets and image.

The liability of the employer

The Supreme Court also found the decision of the Territorial Court to be adequate and complete in its reasoning, recognising the responsibility of the appellant who had “acted as an employer“, since it was in fact that same person who called the injured party to invite him to go to the construction site.

Furthermore, according to the Court, the alleged abnormality of the injured party’s conduct constituted manifestly unfounded grievance. Indeed, “in terms of accident prevention, for the negligent conduct of the worker to be considered abnormal and suitable for excluding the causal link between the conduct of the employer and the damaging event, it is necessary not so much that it be unpredictable, but rather that it is such as to activate an erratic or excessive risk from the sphere of risk governed by the holder of the position of guarantee”.

So, in this case the injured person was intent on performing the task assigned to him and his fall, which occurred while he was helping a colleague to carry a pylon, fell precisely under the performance of his duties. He, therefore, did not engage in any abnormal, exorbitant or excessive conduct. Moreover, according to the Court of Cassation, it was proved that if there had been the necessary and appropriate personal protective equipment and, in particular, those provided for the work to be carried out above ground, the event would not have occurred.

Consequently, the Court declared both claims inadmissible and ordered the plaintiffs to pay the costs of the proceedings.