Safety at work: the functions of employer and prevention and protection service manager (RSPP) cannot be confused (Andrea Di Nino, Sintesi – Ordine dei Consulenti del Lavoro, June 2022)

28 June 2022

In its ruling no. 16562 of 29 April 2022, the Court of Cassation decided on the employer’s occupational safety responsibilities for the risk assessment and workers’ training obligations.

The case originated from the sentence of a private employer to one year’s imprisonment for “aggravated manslaughter”, due to the violation of the regulations on the prevention of accidents in the workplace. This was confirmed on appeal. According to the local court, these violations had caused the death of a worker, who had been entrusted with the maintenance and cleaning of a specific machine.

In challenging the second instance ruling, the defendant presented several grounds of appeal. He contested the “employer” qualification assigned to him in the rulings, arguing that he had been assigned administrative tasks (“ordinary administration”) by the company’s Board of Directors.

The defendant stated he had delegated the safety at work functions to a third party, and that he was not liable for the failure to update the risk assessment document (“DVR”), considering his lack of the status of employer.

However, the Court of Cassation judges identified him as the employer, given his role as company legal representative and his prerogatives in the exercise of decision-making and spending powers. The defendant’s argument concerning the exclusion of responsibility for workers’ safety, due to the ordinary tasks formally assigned to him, was rejected. According to the Court, the defendant’s attributions were such as to guarantee him the exercise of “functional organisational, decision-making, managerial and spending powers, including the implementation of safety measures under the law”, which “gave him a combination of the obligations related to risk assessment, guarantee, and employer’s duties.”

According to the Supreme Court, the confusion between the employer and “prevention and protection service manager” (“RSPP”) roles created “a culpable opacity and organisational dysfunction”, which aggravated the defendant’s position.

The de facto powers exercised by the defendant, “although formally limited to ordinary administration, included every managerial and organisational profile on production, plant control, work procedures, training and information that practically played a decisive causal role in the fatal event.”

From this full employer qualification, the responsibility for the other two contested obligations for the specific negligence and material causality consequently emerged.

According to the Supreme Court, the failure to carry out a complete and exhaustive assessment of the risk connected to the plant where the victim worked is a task that, “on an operational, cognitive, and planning level”, was fully within the defendant’s duties. This is because he was the prevention and protection service manager formally, and a top manager with decision-making and organisational powers over the entire production activity.

The Court observed that “the defendant should have assessed risks and prevention measures on the use of the machinery where (omissis) died, related to the duties and tasks assigned to the victim by the defendant.”

In his capacity as employer, the defendant should have kept the risk assessment document up to date, including the task to which the injured worker was assigned for the machinery.

The Court observed that “the dual role of prevention and protection service manager and employer gives rise to the task of assessing, processing, preventing and managing the risk, including updating the risk assessment document. This is an employer’s duty which cannot be delegated.”

In conclusion, according to the Court of Cassation, the qualification of employer corresponds to “the duty to train and inform workers” which, in this case, was omitted by the defendant. Ascribing to another person the duty to inform and train the deceased worker, constitutes “a mere assertion that is not reflected in any formal act of delegation or specific training assignment.”

Even if he had instructed others to fulfil the obligation to train the deceased worker, the Supreme Court pointed out that “the failure to manage the worker’s training and professional instruction could and should have been controlled and corrected by the defendant if other persons who may have been instructed had not done so.”

The defendant’s grounds of appeal were rejected entirely, since the failure to exercise supervision, control and management of professional training on the use of the machine and related equipment for specific risks was established.

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