Recklessness of the team leader and benefit surcharge: Not applicable

The TS considers that when the accident is due to the rash recklessness of the team leader, having adopted the company’s preventive measures, the surcharge can not be imposed. Its duty of vigilance can not be extended to the constant and exhaustive control of its employees at all times, which although it may justify claiming compensation for the damages caused, is less rigorous for the purpose of imposing sanctions.

The question is to resolve if the imposition to the employer of the surcharge for lack of security measures, which claimed the worker because of the accident at work when performing the functions of their category of installer and repair of electronic equipment and sufficiently informed for his work, as well as informed of the risks of it.

And INSS imposed a 30% surcharge on the company for lack of security measures, however in the petition it was exonerated from responsibility for considering that the accident was not attributable to it, as it had complied with the prevention measures and his duty of vigilance could not be extended to the constant and exhaustive control of his employees at all times.

The Chamber states that the employer must prove that he acted with due diligence, that he adopted all the regulatory safety measures and the other foreseeable measures in response to the circumstances and that the fact causing the damage was not attributable to him. And, in principle, it is not responsible for the act of a third alien  outside the company except in exceptional cases in which it had to have foreseen the risks of the actions of employees of the companies with which it contracted a service, a matter unrelated to this procedure.

Different is the case in which there has been reckless negligence of the injured worker or a colleague, as it relieves the employer of responsibility. Indeed, it is difficult to foresee that a team leader, trained, competent and instructed to carry out electrical work with high voltage, fails to carry out its main mission, according to the established action protocol, to disconnect the voltage before starting work to be carried out. , omission that was the cause of the accident.

On the other hand, regarding guilt in vigilance, this can justify the claim for compensation for damages caused and as well as the condemnation of the payment thereof. But one thing is civil liability for the act of an employee and a different criminal and administrative responsibility for the commission of criminal or administrative offenses, whose sanction requires the fault of the offender, as happens with the surcharge of benefits that has a sanctioning nature , which forces us to interpret that responsibility strictly, this is demanding the fault of the company in a more rigorous way than when responding civilly for acts of its employees.

STS Room 4 of February 28, 2019. EDJ 2019/544214