Certain Aspects of an Employer’s Criminal Liability. Workplace Accident.
It is a well-established principle, requiring no further proof, that the head of an enterprise bears overall responsibility for the operation of the enterprise, both towards its founders and under the applicable law. Without delving into other related issues, this article seeks to highlight the potential risk of a company director being held criminally liable in a specific area. In particular, it focuses on the personal criminal liability of the head of an enterprise or, as in one of the cases examined, of a person responsible for safety. In addition to the theoretical aspects, the article examines in greater detail, through specific examples, the chain of events that ultimately resulted in criminal proceedings being brought against individuals who worked for the company, managed, implemented strategies, sold products, and provided training. These issues will be illustrated through practical cases.
In the first case, the decision of the Court of First Instance, which was later reviewed by the Appellate Panel of the Regional Court following an appeal filed by the injured party concerned the enterprise’s deputy director and the head of the safety department. The enterprise operates large industrial facilities and supplies the region with heat and water.
On 8 August 2017, earthworks were scheduled to replace a water pipe. At approximately 8:00 a.m., employees of the water supply service began work at the site, including workers who were later recognized as injured parties in the criminal case.
A., the head of the water supply department, and R., the deputy general director for production, were responsible for managing the emergency work to replace the water supply pipe. The work involved replacing an old cast-iron pipe with a plastic one. An excavator was used for the earthworks. The excavator operator began digging from one residential building toward a neighboring building. Approximately two hours later, a minor collapse occurred in the trench. Another collapse followed four hours later. After the second collapse, the workers cleared the trench, and continued working despite repeated complaints from residents of nearby homes, who were temporarily left without water.
At approximately 5:00 p.m., two workers entered the trench, while a third climbed down from the excavator. All three began clearing soil from the water supply pipe with shovels. Approximately 15 minutes later, a third collapse occurred, burying all three workers underground. The workers who remained on the ground immediately began digging them out with shovels. Two workers were rescued and taken to the central hospital. The third worker, who had climbed down into the trench from the excavator, died of asphyxiation at the place of the accident.
It is clear that this was a workplace accident within the meaning of the Labour Code of the Republic of Kazakhstan. The Code defines an employment-related accident as the exposure of an employee to a harmful or dangerous production factor while performing job duties, resulting in an injury, poisoning, or sudden deterioration of health that causes temporary or permanent loss of working capacity or death. The circumstances described above clearly demonstrate the sequence of events that resulted in this incident being classified as a workplace accident.
It should be pointed out that, according to the circumstances of the case, the head of the department reported the collapses to both the general director and the deputy general director. Nevertheless, the work was not paused. During the court proceedings, the deputy director also confirmed that he had not stopped the earthworks because residents of nearby buildings had been without cold water for some time, which, in turn, had increased social tension. Moreover, in an effort to deal with the consequences of the accident as quickly as possible, employees were allowed to continue working without personal protective equipment and without receiving the necessary safety training. The trench walls were not properly strengthened. All the circumstances, taken together, eventually led to the workplace accident.
A separate aspect of this case concerns the civil claims filed by three victims. Two of the claimants were employees who were on medical leave throughout the investigation and until the criminal case was tried in court. The third claimant was a close relative of the deceased employee. The defendants left the determination of the claims to the court's discretion; the organization itself, as a legal entity, was named as a civil defendant in the proceedings along with the deputy director and the department head, against whom claims were brought in their personal capacities. In considering the claims as part of the criminal proceedings, the court ruled that the legal entity was liable to compensate the claimants for moral damage and obliged it to pay part of the amount claimed based on the fact that such damage is subject to compensation by the owner of a source of increased danger. The court also considered claims for compensation for legal representation costs and other court costs. With regard to property damage, the parties reached a settlement agreement through mediation.
However, in addition to the charges brought against the head of the water supply department and the deputy general director for production under Article 156, Part 3, of the Criminal Code of the Republic of Kazakhstan (the “Criminal Code”), namely, for a violation of safety and labor protection requirements committed by a person responsible for ensuring compliance with these rules, which, through negligence, resulted in serious harm and the death of a person, the defendants were also charged under another article of the Criminal Code.
In particular, Article 277.2 of the Criminal Code establishes liability for violating safety regulations during construction work, if such a negligent violation resulted in the death of a person, serious harm, or average harm to health. This offense is punishable by imprisonment for up to six years, with or without deprivation of the right to hold certain positions or engage in certain activities for up to three years. By comparison, Article 156.3 of the Criminal Code provides for restriction of liberty for a maximum of five years or imprisonment for the same period, along with disqualification from holding certain positions or engaging in certain activities for up to three years.
As can be seen, these two provisions provide for different types of punishment. In one case, imprisonment is a possible sanction, whereas in the other, the court may impose either a restriction on liberty or imprisonment. In this case, both defendants were sentenced to imprisonment, but their sentences were suspended. This meant that the defendants were subjected to the restrictions imposed by law, including the obligation to report to a probation officer, a ban on leaving their place of residence at night, and restrictions on changing their place of residence or employment without the probation officer’s permission or notification. They were also prohibited from visiting entertainment facilities, among other restrictions. In other words, it is important to understand that behind every enterprise or corporation that may face financial or administrative liability in such circumstances are real people whose responsibility may extend far beyond their professional duties and careers and affect their personal freedom.
The purpose of this article is to draw the attention of the management of corporations, enterprises, and companies to the significant risks associated with workplace accidents. A clear division of responsibilities within the company must be properly documented by the human resources department and management. Otherwise, in the event of a workplace accident, particularly one resulting in serious injury or death, the head of the enterprise may be the first person who faces significant legal consequences. Another important issue is the recovery of related expenses and compensation for moral damages. In such cases, it may be necessary to place a monetary value on the loss of an employee’s life while acknowledging that human life is priceless.
We all understand that becoming involved in criminal proceedings is a demanding and time-consuming process. Therefore, the author of this article proceeds from the principle that “forewarned is forearmed.”
Authors:
Assel Gainedinova, L.L.M., Council, GRATA Internation Kazakhstan
Zaira Sarsenova, Partner, Atyrau, Aktau and Aktobe Branch Director, GRATA Internation Kazakhstan
