Criminal law, Protection of health and safety in the workplace, Temporary construction site, lack of company documents related to the information of the risk assessment for workers, Court of Cassation, III Criminal Section, Judgment n. 778 of 11/01/2018
Essential lines of the arguments of the Supreme Court of Cassation
Appeal against the sentence of 8.3.2016 of the Court of Brindisi
BELIEVED IN FACT
With a sentence dated 8.3.2016, the Court of Brindisi condemned … to the penalty of …., Deeming it responsible for the crime referred to in art. 227 paragraph 1 in relation to art. 262 paragraph 2 letter b) d. Igs. 81/2008 for having omitted, as legal representative of s.r.l. …, to train and inform two employees about the risks deriving from fine particles and the use of chemical reagents, having been found during an inspection access at a temporary construction site of the documentation relating to the information and assumption of the risk assessment for workers.
The defendant filed an appeal against the aforementioned ruling by the defendant, with whom he complains, in relation to the defect of violation of the law and the motivational defect, the unusability of the deposition of the Inspector of Labor, from whose deposition had essentially been treating the criminal responsibility of the defendant, claiming that:
a) is precluded to the agents of PG, pursuant to art. 195, paragraph 4 of the Italian Civil Code, lay down the content of the statements made to them by the persons who can report on circumstances suitable for the continuation of the investigations, specifically the two dependent workers, found at the site at the time of the inspection;
b) the witness had referred to the statements made by the two employees, thus configuring the indirect testimony, without the reference texts – which at the time they were wearing the special mask to avoid breathing harmful substances – had been called to testify, despite the explicit request made by the defense.
Furthermore, he criticizes the documentary basis of the pronounced sentence, not containing the document any document and not showing that the “complex of analyzes which the Provincial Labor Directorate had received”, mentioned by the only witness, was never acquired.
CONSIDERED IN LAW
The appeal is manifestly unfounded.
It emerges from the contested judgment that the basis of the responsibility ascribed to the defendant is constituted not by the declarations made by the workers found on the site during the inspection inspection, but by the lack of company documents attesting the regular acquisition of the data obtained through the assessment of the relative risk to the dangerous agents present in the workplace, the training and the information provided to the workers engaged therein on adequate precautions and actions to be taken to protect themselves, data which the legal representative of the contractor company had been found lacking at the outcome of the inspection visit.
The offense under examination is perfected, in fact, with the violation of the obligation to guarantee the safety of workers on the employer, which is consequently required to analyze and identify, according to its experience and the best evolution of technical science, in preventive, all the danger factors concretely present within the company and to indicate the precautionary measures and protective devices adopted to prevent them (Section 4, No. 20129 of 10/03/2016 -16/05/2016, RV 267253).
While the testimonial declarations that gave only the occasion to complete the investigations, were considered irrelevant compared to the ascertainment of the contravention in question, since they were not even mentioned by the court of merit, the ratio decidendi that informs the contested sentence is constituted by absence of formal documentation, suitable for attesting the training of employees on the points expressly indicated in art. 262 I. 81/2008 which, as proof of the non-drafting, the defendant exhibited, as stated by the Court, only in a period subsequent to the control of the supervisory body, with a date, therefore, subsequent to it.
Inconsistent for the purposes of the assumed illogical nature of the judgment under appeal is therefore also the relief relating to the fact that the two employees found on the site wore a protective mask from the inhalation of harmful substances, perfecting the contravention in question with the failure to draft the required documentation ex laws for the protection of health and safety in the workplace.
Declares the appeal inadmissible
Source Supreme Court of Cassation
