An accident at work and the employer's criminal liability for failure to notify a prosecutor or labor inspector

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In the chapter on accidents at work and occupational diseases, the Labor Code imposes certain obligations on the employer to be performed in the event of an accident at work in the workplace. There is no doubt that the primary duty of the employer is then to take measures that will completely eliminate the threat or reduce it, but also provide first aid.

An accident at work and the obligations of the employer

Pursuant to Art. 234 § 2 of the Labor Code, each employer is obliged to immediately notify the competent district labor inspector and the public prosecutor of a fatal, serious or collective accident at work and of any other that caused the above-mentioned effects, related to work, if it can be considered an accident at work.

According to the statutory definition, an accident at work is "a sudden event caused by an external cause, causing injury or death, occurring in connection with work:

1) during or in connection with the performance of ordinary activities or orders of superiors by the employee;
2) during or in connection with the performance by the employee of activities for the employer, even without an instruction;
3) while the employee is at the disposal of the employer on the way between the employer's seat and the place of performance of the obligation resulting from the employment relationship ”.

From the legal point of view, it should be clarified that the employer is obliged to notify the competent authorities not about all accidents, but only about those that can be classified as listed in Art. 234 § 2 of the Labor Code.

A fatal accident at work is one which resulted in the employee's death not later than 6 months from its occurrence.

A collective accident at work is one in which at least two employees have suffered.

A serious accident is an accident at work resulting in a total or partial inability to work in the profession, serious bodily injury including: blindness, hearing loss, speech loss, loss of reproductive ability, but also other bodily injury or health disorders that violate basic functions body, as well as incurable or life-threatening disease, permanent mental illness or permanent, significant disfigurement or distortion of the body.

Form of notification of an accident at work by the prosecutor and labor inspector

The law does not specify the form in which the notification is to be made. It seems appropriate to do so in writing for evidence purposes. Notification by phone, in person, via fax or e-mail is also allowed. The National Labor Inspectorate may be notified of the accident by telephone, as district labor inspectorates conduct 24-hour telephone service. Public prosecutor's offices also hold duty hours after office hours.

It should be remembered that sending an e-mail to the publicly available e-mail address of the prosecutor's office or labor inspection does not constitute the fulfillment of the obligation to notify about the accident, as it is not certain whether the notification has been received by the competent authority. However, if the employer informed the duty prosecutor and labor inspector about a fatal, serious or collective accident at work by e-mail and received confirmation that the information was accepted, then the obligation will be fulfilled.

However, there may be a situation where the employer will not be able to classify the incident at first and for his own safety will notify the relevant authorities of this fact. It seems that when it is considered to be only a non-reportable accident at work, it should not entail any consequences for him. It is much worse for the employer if he does not notify the prosecutor or the district labor inspector about the accident, thus violating his obligations under the law, as this would expose himself to criminal liability.

Criminal liability for failure to notify the competent authorities about an accident at work

The provisions of the criminal law introduce criminal liability for failure to notify the competent authority about an accident at work.

Article 221 of the Penal Code states: "Who, contrary to the obligation, does not notify the competent authority on time of an accident at work or occupational disease, or does not prepare or present the required documentation, shall be subject to a fine of up to 180 daily rates or the penalty of restriction of liberty".

A literal interpretation of the aforementioned provision leads to the conclusion that it is about failure to notify about each identified accident at work, which would, in consequence, give grounds for applying a severe sanction for an offense also in the case of the so-called ordinary. However, it is indicated that it should be assumed that the features of an offense within the meaning of Art. 221 of the Penal Code will have deliberately refrain from notifying about the confirmed fatal, serious and collective accident, because only in this respect Art. 234 of the Labor Code burdens the employer with relevant obligations.

As it has been indicated, the obligation to report an accident at work is primarily the responsibility of the employer and it will be mainly the employer who will be responsible for failure to do so. However, it should be remembered that employers in the Polish legal system are not only natural persons, but also organizational units - even if they do not have legal personality. In such a case, the necessity to notify the competent authorities of the accident shall be borne by natural persons - managing persons or other designated persons performing activities in the field of labor law. A similar situation will occur when the employer does not personally perform activities in the field of labor law.

In the case of entities with a complex organizational structure, the responsibility rests with the person who performs activities related to labor law not only internally, but also externally, i.e. having the competence to represent the employer.

Example 1.

The manager employed at the plant, who supervises employees, decides on the implementation of the holiday leave and has a written authorization to perform actions in the field of labor law in relation to all bodies and entities, will be obliged to notify about the accident, and in the event of failure to do so, he will be liable. If the same manager did not have the authorization to perform activities in the field of labor law in relation to all bodies and entities, he would not be obliged to notify about an accident at work, and consequently he would not be liable for the lack of such notification.

It may happen, especially in larger workplaces, that the obligation to notify about the accident will be imposed on several people managing the workplace or assigned to perform activities in the field of labor law. In such a case, for the fulfillment of the obligation, it is sufficient that only one of them notifies the competent authorities of the accident.

Immediate notification of the accident by the employer means that he must do it as soon as possible. This obligation becomes valid as soon as the employer becomes aware of the accident.

Responsibility for an offense under Art. 221 of the Criminal Code will occur in the following cases:

- failure to notify the bodies indicated in the act (the prosecutor and the district labor inspector) at all;
- failure to notify one of the bodies specified in the act (prosecutor or district labor inspector);
- failure by the employer to notify the authorities indicated in the act within the time limit.

The penalty for committing this crime is a fine of 30 to 180 daily rates, of which the lowest one daily rate is PLN 10, and the highest one daily rate is PLN 2,000. Converted, this may result in a fine of PLN 300-360,000.

In addition, there is a penalty of restriction of liberty here, the shortest duration of which is one month, and the longest two years, and consists in the obligation to perform unpaid, controlled work for social purposes in the amount of 20 to 40 hours per month or a deduction from 10% to 25% of remuneration for monthly work for a social purpose indicated by the court. In addition, other sentences are associated with the penalty of restriction of liberty: the convicted person may not change his place of permanent residence without the consent of the court and is obliged to provide explanations regarding the course of serving the sentence. In addition, when imposing a penalty of restriction of liberty, the court may order the convicted person to pay a specified amount for the Victims' Assistance Fund and the Post-penitentiary Assistance Fund, the amount of which may not exceed PLN 60,000.

In addition to the above-mentioned penalties, the court, in the case of a crime under Art. 221 of the Criminal Code may charge the employer - or another person responsible for the fulfillment of this obligation on the basis of the employer's authorization - with the costs of court proceedings.

As can be seen, it is important to ensure that this obligation is met, as the sanctions for non-compliance are severe.

The punishability of a crime - i.e. the possibility of prosecuting an employer for failure to notify the relevant authorities about an accident at work (Article 221 of the Criminal Code) - ceases if 5 years have elapsed since its commission, i.e. failure to fulfill obligations. However, if the proceedings were initiated at that time, then 15 years from the time of its commission, i.e. failure to fulfill obligations.

This crime is prosecuted by public prosecution, it is carried out by the police under the supervision of the prosecutor in the form of an investigation.

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The proceedings are initiated as a result of the notification of the possibility of committing a crime. Such notification may be made by anyone who has knowledge of a crime being committed. In particular, it can be done by: an employee who has suffered an accident, other employees, family members of an employee who has suffered an accident, the National Labor Inspectorate.

It should also be remembered that failure to comply with the obligation to notify about an accident at work for which there is a statutory obligation to notify the relevant authorities will lead to criminal liability even if such failure will not affect the employee's right to certain social security benefits or the amount of the benefits to which he is entitled.

The signs of an offense under Art. 221 of the Criminal Code are very similar to the features of a misdemeanor under Art. 283 § 2 point 6 of the Labor Code. They are different only on the subject, because the crime is intentional and may be committed with direct or possible intention, while the offense will be all unintentional acts that meet the criteria of an offense.

Responsibility for an offense consisting in failure to notify about an accident

The provisions of the Labor Code introduce a penalty for an offense consisting in failure to notify - against the obligation - the competent district labor inspector, public prosecutor or other competent authority about a fatal, serious or collective accident at work and about any other that caused the above-mentioned effects, related to work, if it can be considered an accident at work. In this situation, the person who fails to fulfill the obligation must face a fine in the amount ranging from PLN 1,000 to PLN 30,000.

As for the punishability of an offense, the liability for it ceases one year after its commission, i.e. failure to notify. If the court instituted proceedings in the case at that time, the punishability of the offense will cease only after three years from the time it was committed, i.e. failure to notify. In this case, when the offense consists in failure to perform the obligation, the period of limitation of punishment should be counted from the last time in which the perpetrator could satisfy the obligation incumbent on him.

A misdemeanor - like a crime - is prosecuted by public prosecution, while the duties of a public prosecutor are performed by the National Labor Inspectorate, which, inter alia, conducts explanatory activities, refers them to the court and supports applications for punishment before the court. In the event of punishment for an offense by the court, one should also take into account - apart from the penalty of a fine - the possibility of incurring court costs. Do you have a question? Ask our expert! Daily Online Tips! Ask a question TEAM
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