On April 29th 2022 a pronouncement of the Italian Court of Cassation confirmed the incompatibility of the Employer with the OHSO within the same business organisation chart.
Table of contents
- The OHSO and his functions according to the Italian Legislative Decree 81/2008
- The pronouncement of the Italian Supreme Court of Cassation on a specific case
- The pronouncement of the Italian Court of Cassation in workplace safety
- Regulatory Framework
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1. The OHSO and his functions according to the Italian Legislative Decree 81/2008
Pursuant to Italian Legislative Decree no. 81/2008 in workplace safety the employer must nominate an Occupational Health and Safety Officer (OHSO) who can be either internal or external to the company. As stated in the article 16 of the abovementioned legislative decree, the employer is the only one who is allowed to nominate this person and he cannot delegate this duty to anyone else in the company.
The importance of this person within the business organization chart is proved by the fact that the Occupational Health and Safety Officer is the main point of reference of an employer in drafting and updating documents related to the risk assessment in the company according to law dictates.
In this setting the OHSO’s delicate role is to ensure that the employer is advised constantly and exhaustive on multiple aspects of the workplace safety and of the scheduling over time of all necessary measures to be implemented to protect the company and all persons who enter it.
2. The pronouncement of the Italian Supreme Court of Cassation on a specific case
With reference to a fatal occupational accident of a worker, the Italian Court of Appeal confirmed the judgement by the Court of First Instance of one year detention, with the suspended sentence and the right not to disclose the conviction. In particular, such judgment delivered by the Court of First Instance convicted the legal representative of a company (who was also the plant manager and the OHSO of the company), of aggravated manslaughter, pursuant to article 589 of the Italian Code of Criminal Procedure. The reason was that he caused the death of a worker, due to general and contributory negligence, resulting from violation of accident prevention rules.
3. The pronouncement of the Italian Court of Cassation in workplace safety
The judgment no. 16562 of the Italian Supreme Court of Cassation pronounced on April 29th 2022 confirmed that the employer of a company cannot be at the same time qualified as the Occupational Health and Safety Officer, except for a limited number of cases according to the article 34 of the Italian Consolidated Law on Safety at Work. The main purpose it to avoid a certain overlapping of positions and functions which are structurally different and have to cooperate with on different levels in the company (the employer functions as decision-maker, whereas the OHSO plays an advisory role).
The two business positions cannot coincide mainly because this would lead a single person to have all converging duties regarding risk assessment, position of liability and employer’s fulfillments. Furthermore, on the one hand this would cause confusion in the decision-making and advisory roles in corporate hierarchs and management of workplace safety. On the other hand this would concentrate all executive, processing and decision-making charges on a single person in the field of risk assessment, management and planning as well as in the exercise of decision-making and expense powers which identify the employer.
For such and further reasons in this specific case the Italian Supreme Court of Cassation dismissed the appeal lodged by the CEO who was at the same time the legal representative of the company. He, as premises’ director and OHSO of the company, has been recognized as the employer and convicted by the Court of First and Second Instance. The reason was the occupational accident of an employer who was fatally crushed by the auger of a paddle mixer, during some maintenance work.