The Labor Inspection Court has been issuing interesting pronouncements on health and safety matters, as well as on the prevention of sexual harassment. Although these pronouncements do not qualify as binding administrative precedents, they allow us to know the criteria with which similar situations will be resolved in the future.
Below, we share two of the most recent pronouncements to be considered:
The employer is not liable if the occupational accident is caused by a third party
Through Resolution No. 336-2023-SUNAFIL/TFL-First Chamber, the Labor Inspection Court holds that it is arguable that a work accident caused by a third party is caused by a breach by the employer.
The following are the main aspects to be considered regarding this resolution:
- A health care worker collides with a patient who was walking at speed through the passageway. As a result of the impact, the worker suffers severe contusions. SUNAFIL sanctioned the company for not identifying in the IPER the risks associated with the movement, for not training the worker adequately, as well as for not implementing adequate signage.
- The court holds that the control measures proposed by the inspectors (qualified as non-compliance) such as IPER, training or signage, would not have had a real effect in avoiding the accident. Applying the mandatory precedent of Resolution No. 001-2023, the court holds that there is insufficient evidence to consider that there is a causal link between the alleged non-compliance and the accident.
- Thus, in this case, the court concludes that there is no liability for the employer when the accident was caused by a third party. Furthermore, there is no conviction as to whether compliance with the preventive measures would have been relevant to prevent the accident.
- We take the following lessons from this case:
- During the investigation of an accident, it is advisable to evaluate whether there were external situations or whether the actions of third parties were relevant to the occurrence of the accident. In these cases, it could be argued that these aspects are beyond the employer's control, and therefore the employer would not be liable.
- Companies may challenge the labor inspectors' accusations by pointing out that not every breach or omission of the employer (even if it has occurred) is a direct cause of personnel accidents.
Content of the obligation to issue a decision terminating the investigation procedure on sexual harassment
Through Resolution No. 074-2023-SUNAFIL/TFL-First Chamber, the Labor Inspection Court specifies the content of the obligation to issue a decision ending the investigation of sexual harassment complaints. Below are the main points of this resolution:
- A female worker resigned from a company because she suffered acts of sexual harassment. To support her complaint, she presented various WhatsApp messages in which it is verified that the worker received inappropriate propositions from her boss, which she did not consent to, and which created a hostile work environment for her.
- The company initiated a corresponding investigation procedure and transferred the complaint to the Sexual Harassment Intervention Committee ("Committee"). After the investigation, the Committee concluded by majority vote that there was no evidence to prove the alleged facts.
- On the basis of the Committee's report, human resources concluded that there was only a "close friendship" between the employees and that it was not possible to apply any sanction, given that none of the parties still belonged to the company.
- In analyzing the case, the court concluded that the obligation to issue a decision terminating the procedure for the investigation of acts of sexual harassment means the following for employers:
- The duty to issue a pronouncement that includes the minimum content set forth in Article 19.3. of the aforementioned Regulation and follows the guidelines of Article 29.6 of the aforementioned regulation. In other words, any final pronouncement must necessarily, and without prejudice to whether the accused continues to provide services for the employer, state whether a sanction should be imposed or whether it should be shelved, as well as the corresponding preventive measures to avoid new cases in the future.
- The duty not to validate the pronouncements of the Committee that do not comply with the provisions of the law. In the specific case, this implied for the company the obligation not to accept what was stated by the Committee in majority, regarding the fact that there was no sufficient evidence to establish that there was sexual harassment, since the WhatsApp messages clearly demonstrated it.
- Considering this resolution, we recommend the following:
- Train the members of the Committee so that they make an objective and thorough assessment of the means of proof and avoid issuing unsupported decisions.
- Verify that the Committee's report is duly substantiated and if this is not the case, correct the defects or flaws detected in the final decision to be issued by human resources.
We hope that this information will be of relevance to you and your company. If you require any further information, do not hesitate to contact us.