EMPLOYER LIABILITY IN COMPLEX ORGANISATIONS. DELEGATION OF FUNCTIONS PURSUANT TO ART. 16 D. LGS. NO. 81/2008 In complex business realities, the functional distribution of powers and responsibilities among various subjects is not only necessary, but due in order to ensure the proper management of the corporate structure. If it’s true that in matters of health and safety, the employer is the main recipient of the preventive obligations and duties imposed by accident prevention legislation and the primary guarantor of workers’ safety, it’s also undisputed that in complex business realities it becomes impossible for such subject to personally fulfil all precautionary obligations. In complex organizations, delegation becomes an indispensable and irreplaceable management mechanism in all areas of corporate activity and, in particular, in the area of safety. If validly conferred, the delegation of functions - as clarified by the unified criminal sections of the Court of Cassation, in the ThyssenKrupp judgment (no. 38343 of 18 September 2014) "transfers from the delegating party to the delegate of powers that are proper to the delegating party itself", determining "the rewriting of the map of powers and responsibilities". Paragraph 3 of Article 16 of the T.U.S.L. establishes the existence of an obligation for the delegating employer to supervise the delegatee's proper performance of the transferred functions. Assuming that the original guarantor remains burdened with a duty to supervise the work of the delegated guarantor, it’s crucial to define its perimeter. If, on the one hand, a capillary and constant control over the delegate's work would deprive the granting of the delegation of concrete use, on the other hand, the delegation of functions cannot legitimise a total lack of interest on the part of the employer in the transferred tasks. Even after the delegation has been conferred, the delegating employer still has the duty of high vigilance as to the proper performance by the delegate of the transferred duties. In the event of breach of this obligation, the delegating party may be held criminally liable for culpa in eligendo and/or culpa in vigilando. The delegating party's obligation is considered fulfilled if a real assignment of powers of organisation, management, and control has been implemented, the entity has adopted and effectively applied a Management and Control Model pursuant to Article 30, paragraph 4, of the T.U.L.S., and the delegate is granted the autonomy of expenditure necessary to perform the delegated functions. DELEGATION OF FUNCTIONS AND "MANAGERIAL" DELEGATION PURSUANT TO ARTICLE 2381 OF THE CIVIL CODE: THE COURT OF CASSATION'S CLARIFICATIONS The delegation may take the form of that specifically provided for in Article 16 of the T.U.S.L. or that of Article 2381 of the Civil Code. As clarified by the Supreme Court, 'whereas in the case of the delegation of functions contemplated by Article 16 of Legislative Decree no. 81/2008, the transfer of certain powers and duties of a preventive nature is emphasised, in the case of management delegation, criteria for the allocation of roles and responsibilities among directors in a corporate context characterised by more or less articulated structures are emphasised' (Criminal Court of Cassation, Sec. 4^, 27 February 2023, Sentence no. 8476). While in the first case the delegating employer remains liable if it does not fulfil its obligation to supervise the delegate's work, in the second case, the delegating employer can only be configured as having a duty to verify the flow of information and the general organisational structure, as well as a power to intervene with reference to the adoption of individual specific measures in the event that it becomes aware of prejudicial facts, i.e. risk situations that are not adequately governed. In fact, in relation to managerial delegation, the decision-making and spending powers connected to the employer's function, which belongs to a plurality of subjects, are concentrated in the hands of only a few of them, even when they relate to occupational safety. Therefore, the Supreme Court annulled the employer's conviction for the accident that occurred to a worker, observing that the judges had failed to verify the nature of the delegation of safety to one of the directors, and therefore to ascertain whether or not in practice the 'passage' of the position of guarantee had occurred. The judges on the merits had in fact considered the employer's liability to exist, attributing this liability to the violation of the control obligations provided for in Article 16 of the T.U.S.L. (so-called delegation of functions). However, the employer, in his capacity as chairman and director, claimed that the board of directors had delegated, in the specific field of safety, the entire management to one of the directors and that the responsibility for the accident was attributable only to him. The Court, having examined the powers and attributions conferred, concluded that the identification of the dutiful conduct should be assessed with reference to the discipline of management delegation, as provided for by the Civil Code, as opposed to the delegation of functions identified by the judges of merit. Furthermore, the Court specified that in the case of the delegation of the board of directors to a director, who also becomes an employer, the specific indication in the deed is not required. The Court of Cassation annulled the conviction, referring to the Court of Appeal the task of investigating the content of the delegation "for the purposes of identifying the employer in a preventative sense and thus identifying the perimeter of the control duties remaining with the delegating party". It’s important to note that the assessment of the characteristics of the act of delegation is necessarily bound to be reflected on the content of the position of guarantee and the imputation of criminal liability.
2024 - Morri Rossetti
