In its Judgements 6B_1058/2022 and 6B_1072/2022 of 29 January 2024, the Federal Supreme Court has qualified a fatal work accident as involuntary manslaughter and sentenced both the managing director of the employer and the victim's supervisor.
The victim was hired as an unskilled labourer by the employer's managing director on the recommendation of the victim's later superior. At the time of employment, it was clear that the employee would also be deployed to work with aerial work platforms. Although, at the time he was hired, documents required for the work permit were requested, no further clarifications were made about the victim's training, particularly with regard to the handling of aerial work platforms. A few days after starting the job, the victim suffered a fatal accident while operating an aerial work platform.
In accordance with the Accident Insurance Act, the Federal Coordination Commission for Occupational Safety can draw up guidelines to ensure the uniform and proper application of the Labour Act regulations on occupational safety. According to these guidelines, training is required for the use of work equipment if the work to be carried out involves particular hazards. For the handling of aerial work platforms, SUVA (Swiss Accident Insurance) checklists expressly state that documented theoretical and practical basis training is required.
According to the Federal Supreme Court, non-compliance with such guidelines does not automatically mean that the employer has not observed the required duty of care. However, a breach of such guidelines is seen as an indication that the duty of care has been disregarded. On the other hand, compliance with relevant regulations would give the employer the presumption that it fulfils the safety requirements under the Accident Insurance Act.
Employers are therefore strongly advised to inform themselves about the applicable safety regulations, in particular for hazardous activities, and to carefully check whether potential new employees meet any applicable training requirements before hiring them.
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