On December 28, 2023, the Court of Cassation issued ruling no. 51455, ordering the annulment with referral of the sentence convicting a company for the offense of negligence manslaughter committed through violation of regulations governing health and safety in the workplace.
Cancellation of the corporation’s conviction for workplace injury: The Background
The trial court had found the corporation culpable for the offense of negligence manslaughter and had imposed a sanction deemed appropriate for the case; the Court of Appeal upheld this decision. The lower courts held the corporation responsible for the offense due to its adoption of requisite risk prevention documents and identification of accountable parties for their implementation, yet having, in practice, an organizational and managerial structure deemed inadequate in relation to the objectives outlined in said documents.
Appeal to the Court of Cassation
The corporation filed an appeal to the Court of Cassation, arguing, among other points, that the lower courts had unlawfully and without justification convicted the corporation by acknowledging its fulfilment of obligations for accident prevention while simultaneously reproaching it for the deficiencies and inadequacies therein. Specifically, the lower courts equated the corporation with the employer, assigning the legal corporation the liability of the natural person and thereby failing to apply the correct criterion for corporate responsibility.
The Decision of the Supreme Court
Preliminarily, the Supreme Court stated that the corporation is accountable for the commission of the offense of negligence manslaughter as a consequence of breaching regulations governing health and safety in the workplace. The reproach to the corporation hinges on organisational fault, i.e., an organizational deficiency for failing to anticipate and prevent the commission of the underlying offense through the adoption and effective implementation of a suitable organizational and managerial model. The organizational and managerial model does not align with the occupational safety management system focused on the risk assessment document: while the risk assessment document identifies the risks associated with work activities and prescribes measures to eliminate or mitigate them, the organizational and managerial model serves as a tool for governing the risk of committing offenses by superiors and subordinates to their directives, delineating the infrastructure necessary for the proper fulfilment of preventative duties, as derived from sector regulations and the risk assessment itself. In conclusion, the Court of Cassation underscored that attributing responsibility to the corporation based on conduct solely attributable to the natural person constitutes a legal error and reiterated that the occurrence of the offense does not ipso facto imply the inadequacy or ineffective implementation of the organizational model adopted by the corporation. Consequently, it annulled the sentence with referral to another section of the Court of Appeal.
The organizational and managerial model in Workplace Safety
The organizational and managerial model serves to shield the corporation from the risk of criminal liability: the corporation cannot be held accountable if, prior to the commission of any offenses by a superior or subordinate to their directives, it had adopted and effectively implemented an appropriate organizational and managerial model to avoid offenses similar to the one that transpired. In the context of workplace safety, the law mandates three activities: identification and management of risks with the formulation of prevention and protection measures aimed at eliminating or at least mitigating the risk of injury; establishment of a system for monitoring and verifying the adequacy and effectiveness of the model; and the creation of an appropriate disciplinary system to penalize violations of the rules outlined in the model and ensure their efficacy.
In the event of conviction, the punitive consequences are mitigated, even if the organizational and managerial model is implemented after the commission of the offense, provided that it is put into effect prior to the trial.
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