On December 28, 2023, the Court of Cassation issued ruling No. 51455, which ordered the annulment with referral of the employer’s conviction for the crime of manslaughter resulting from a workplace accident involving an employee.
Cancellation of Employer’s Conviction for Workplace Accident: Background
The lower court found the sole director of a company, acting as employer, responsible for the culpable manslaughter of an employee and sentenced him to an appropriate penalty. The Court of Appeal upheld the finding of guilt and reduced the penalties. The lower court judges criticized the employer for failing to delegate the responsibilities of safety officer and workplace safety manager to anyone, for neglecting to monitor compliance with safety regulations in the workplace, and for failing to organize the employees adequately.
Appeal to the Court of Cassation
The employer filed an appeal to the Court of Cassation, highlighting, among other things, the illogical reasoning of the lower court: the judgment acknowledged that the employer had prepared the risk assessment document and the operational safety plan and had established a functional organizational structure including the appointment of a site manager and a foreman, thereby delegating responsibilities, yet at the same time it was argued that no such delegation had occurred. The conviction of the site manager and foreman, or the delegates, for failing to properly fulfil their delegated duties, demonstrates the existence of delegation of functions.
Decision of the Supreme Court
The Supreme Court upheld the appeal, stating that the delegation of functions does not exempt the employer from the obligation to oversee the proper performance of the transferred functions. However, as long as the overall risk management by the delegate is deemed appropriate, the employer’s obligation of supervision does not involve continuous monitoring of individual work processes. Whenever direct supervision is not feasible due to the size of the company, it is entrusted to procedures such as reports, random checks, and the establishment of managerial roles. The employer’s obligation of supervision is considered fulfilled when the overall risk management by the delegate is ensured. Therefore, the Court of Cassation annulled the challenged judgment and remanded the case for a new trial before another section of the Court of Appeal.
What is the delegation of functions?
The delegation of functions is a formal act through which the employer transfers his obligations and powers regarding accident prevention in the workplace to another party: especially in large companies, it is suitable for the employer’s duty as guarantor of the health and safety of workers to assign functions to individuals dedicated to this purpose.
The effect of delegation is the authorization granted by the employer to the delegate to exercise, on their behalf, the typical powers of a guarantor against accidents along with their related duties, the failure or negligent fulfilment of which may lead to criminal liability. Following the delegation, the employer transfers their position to the delegate, resulting in a change in their obligations, related to the supervision and oversight – without interference – of the new guarantor.
The delegation of functions does not exempt the employer from the obligation of supervision regarding the proper execution of the delegated functions by the delegate; this obligation is deemed fulfilled in case of adoption and effective implementation of the verification and control model.
The law defines the scope of the delegation of functions by the employer, prescribing:
- that it be documented in a written instrument with a specific date;
- that the delegate has all the required qualifications and experience according to the specific nature of the delegated functions;
- that it grants the delegate all the powers of organization, management, and control required by the specific nature of the delegated functions;
- that it grants the delegate the autonomy of expenditure necessary to carry out the delegated functions;
- that it be accepted by the delegate in writing;
- that adequate and timely publicity be given to it.
Studio dal Pozzo, law firm in Milan, provides assistance to private individuals, organizations and businesses.
