The Responsibilities of the Occupational Risk Prevention Technician
Understand the legal responsibilities of occupational safety and health technicians in Portugal, focusing on criminal and civil implications and the relevance of the Labor Code.
· 7 minutos · Legislação Laboral
A person who, at some point in their professional career, decides to dedicate themselves to advising on occupational risk prevention is confronted with a clear dichotomy. On the one hand, the satisfaction of contributing to ensuring the safety and health of those who carry out their work exposed to some risk. But, on the other hand, there is a constant concern about the consequences that may arise from such advice. This concern is even more accentuated when one is unaware of what responsibilities can, exactly, fall upon technical personnel and what processes are followed to demand those responsibilities.
Criminal Liability
This is the most feared and directly affects the technical personnel of occupational risk prevention.
Article 280 of the Portuguese Penal Code (Código Penal) criminalizes acts against safety and health at work. This article assigns criminal liability to those who, in violation of occupational risk prevention norms and being legally obliged, do not provide the necessary means for workers to carry out their activity with adequate safety and hygiene measures, thereby seriously endangering their life, health or physical integrity.
It is important to bear in mind that the mere fact of seriously endangering the worker is sufficient for it to be applied, without the need for an accident to occur. If, in addition, a harmful result occurs, responsibility could be attributed not only for the crime against safety and health at work, but also for a crime of offenses against physical integrity.
When an accident occurs or when there are indications that someone's life, health or physical integrity has been endangered in their workplace, the Criminal Investigation Court (Tribunal de Instrução Criminal) that becomes aware of the fact is obliged to investigate what happened. To do this, it can summon anyone who may have intervened in the preparation of preventive documentation, in the implementation of prevention, and in the control of its compliance. The purpose of this investigation is to clarify whether a crime occurred and, if so, who may be responsible for the alleged crime.
Thus, among the people who may be called to testify are the occupational risk prevention technical personnel. This summons to testify can be made in the capacity of a defendant (arguido) or as a witness. If there is the slightest doubt about whether their work was correct, the appearance will be made in the capacity of a defendant. The objective is to ensure all procedural guarantees are met, safeguarding their right to defense. In this way, they will have access, before their statement, to a copy of the entire process, in addition to having the mandatory legal assistance that will accompany them during the process.
The fact that a person is called to testify as a defendant in a process such as the one we are discussing only means that facts are being investigated to verify if there may have been negligence on the part of any intervener. Once the investigation, that is, the investigation of the facts, is concluded, the Court will decide to dismiss the case if it considers that there are no indications of a crime. Otherwise, it will determine that the process continues. If the latter occurs, there are different procedural steps in which one can argue and explain the work carried out, even before the trial takes place:
- The order to continue the process can be appealed.
- A request for reconsideration can be filed.
- In the face of the disregard of the request for reconsideration, an appeal can be made to the Court of Appeal (Tribunal da Relação).
- If, even so, the process continues, a defense statement can be submitted.
In short, there is an opportunity to explain everything necessary in defense of the interests of the accused parties.
Furthermore, at the trial, all parties have the opportunity to prove and allege what they deem convenient in relation to the object of the process, and the sentence is still subject to appeal. In conclusion, the defendant's statement is a formality, within an investigation phase, which does not have to end in a trial. It is important that the statement is consciously prepared, with the tranquility that the circumstances allow, following the advice of the lawyers' direction and those technical managers who collaborate in the preparation of the defense.
Civil Liability
This is another responsibility that can be demanded. At this point, and for the peace of mind of readers, it is important to highlight the obligation of all prevention services to have a civil liability insurance policy that covers any negligence committed, both by technical and health personnel, in the exercise of their duties.
Nevertheless, the intervention of whoever prepared the company's preventive documentation in the judicial process will be crucial, ratifying and clarifying everything necessary, in order to contribute to the defense of the prevention service and the insurance company that assumes responsibility.
This intervention will generally be in the capacity of a witness, since the entity that will be the defendant in the process will be the employer of the injured person and, depending on how the facts occurred, the prevention service.
The risk assessment of a company is the fundamental document where all existing risks in each job position are recorded, as well as the preventive measures that must be implemented to ensure the physical and psychological integrity of workers. Although it is not the only document used to advise the company, it is the first one analyzed when evaluating whether the advice given was correct or suffers from some deficiency. Therefore, and to avoid liability not only for the technical personnel, but also for the employer and the prevention service, it is absolutely necessary that it be prepared conscientiously, exhaustively, and include all tasks, equipment, and facilities communicated by the person acting as interlocutor on behalf of the company.
To conclude, we only wish all those who practice such an important and necessary profession that the satisfaction of contributing to the safety and health of people is what prevails in their daily lives and that they do so believing in their own professionalism, since, both within and outside a judicial process, they are always those who know the most about occupational risk prevention.