Failure to take or observe the mandatory measures for health and safety at work may entail, among other types of liability (e.g. civil, administrative), potential criminal liability for employers.
The Romanian Criminal Code (the "RCC") provides for two offences which sanction such failure: i) failure to take the mandatory measures for health and safety at work (Article 349); and ii) failure to observe the mandatory measures for health and safety at work (Article 350).
The mandatory measures for health and safety at work are provided in Law no. 319/2006 on Safety and Health at Work, as further amended (the "Law no. 319/2006").
The two provisions impose certain conditions, which shall be assessed by judicial authorities in order to decide whether such a failure constitutes a criminal offence, namely:
- For the first offence, the author must be a person who had the duty to take measures for the health and safety of employees at work. According to Article 5 letter b) of Law no. 319/2006, for the purpose of the law, an employer is a natural person or legal entity which has established employment or professional relations with the employee and is in charge of the business or the enterprise. When the employer is a legal entity, it must have an autonomous liability, distinct from the liability of natural persons. The natural persons who have duties to take and/or observe the mandatory measures may also be held criminally liable and, depending on the corporate documents, these may be the general manager, the president of the board of directors, the administrator, the head of factory, etc.
- For the second offence, the author may be any person, as long as he/she is part of an employment relationship.
- For both offences, the victim must be an employee. The employee status does not apply, though, to persons who perform household activities.
- Non-compliance with the health and safety rules must lead to an imminent danger of a labour accident or an occupational disease.
- The mere omission of employers to take/ observe said measures, in the absence of a state of imminent danger for the physical integrity/ life of employees during employment, shall not constitute a criminal offence.
- A chain of direct causation must be established between the act/ failure to act of the employer and the dangerous result.
- The outcome of the act must not be imputable to objective factors, such as flaws in construction, out-of-work machines, unexpected intervention of third persons, etc.
Under the RCC, the penalty that may be incurred by individuals for failing to take or observe the mandatory measures for health and safety at work is imprisonment for a term of six months to three years or a fine.
For companies, the main penalty consists of a fine. Its amount may range between LEI 12,000 (approx. EUR 2,600) and LEI 1,200,000 LEI (approx. EUR 260,000), yet courts may optionally apply, depending on the gravity of the result, accessory penalties (e.g. suspension of the activity for a term between three months and three years; even closure of certain operating divisions of the company for a term between three months and three years).
If the offences stated above result in manslaughter, courts shall apply a resulting penalty for concurrent offences, namely for failure to take or observe the mandatory measures in concurrence with manslaughter.
Lastly, it is important to note that if the labour inspectors acknowledge that an employer has repeatedly committed acts of severe breach of the work health and safety requirements, the Labour Inspector may request the deregistration of the legal entity from the trade register, as per the provisions of Law no. 108/1999 regarding the setting-up and the organisation of the Labour Inspection, as republished and further amended.
Thus, for employers it is recommendable not only to take and observe all mandatory measures for health and safety at work, including to provide employees with written instructions to observe such measures, but to closely supervise the effective observance of said measures by the employees.
Also, in order to mitigate the risk of incurring the liability of several persons within the company, including those who are not responsible for health and safety at work, a further recommendation would be for employers to carefully designate, both in the corporate documents, and in the employment documents (e.g. job description) the individuals who have direct duties and responsibilities in taking and observing the measures referred to above.