Prevention, Conditions and Environment Working Act (LOPCYMAT 2005), establishes the duty of employers to take steps to ensure workers health conditions, health, safety and welfare at work on the terms provided in the Act.
In regard to the rules relating to the duties of the employee, article 54 of the LOPCYMAT features they do not relieve the employer’s duty of care and safety, which is logical, since the employer must comply with its duties regardless of whether the employee meets or does not correspond with that. This does not preclude the breach of any of these duties exclude the criminal liability of the employer has not acted negligently or willfully or for death or injury caused by the worker that breach the worker.
To assert criminal liability must be determined if the employer established a legally significant danger to the legally protected or whether it acted within the permissible risk, which corresponds to the principles of responsibility for the fact and exclusive liability for intentional conduct or culpable described in the Act, clearly recognized in several standards.
Thus, with respect to the rates provided in Article 131, whether that “very serious or serious violation of legal regulations on safety” by the employer, may not be considered criminal conduct of the same is not true.
There may be the case that the breach of duties by the employee may have caused the accident, such as the duty described in Article 54.1 which requires the employee to perform the duties arising out of their employment contract subject to the rules safety and health at work is not only to protect their own health and safety but also with respect to other workers and to safeguard the facilities where they work.
So even if the employer has worked in the field of risk tolerated and has complied with the duty of care and whether the worker is not subject to health and safety standards that have been duly informed, which determines a accident, the only criminally responsible for that act will be the worker.
With respect to the criminality liability of owners, partners, shareholders and generally the leaders of enterprises, legal persons, Article 129 of LOPCYMAT define that regardless of the sanctions which may be imposed legal persons in accordance with the provisions of the preceding articles, those engaged as representatives of the employer or the employer, in case of fault, may be charged criminally under the provisions of this Act.
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