Austria: Liability of a legal person as an employer in the event of accidents at work

 

According to § 334 ASVG, the employer is liable to the social security institutions in the event of accidents at work (or occupational diseases) only if the employer caused the accident at work or the occupational disease intentionally or through gross negligence. In this case, the employer must reimburse the social security system for the amount granted to the employee as a result of the accident at work or occupational disease.

„Persons treated as such“ are attributed to the employer. In its recent decision of 18.10.2023 on GZ 9 ObA 68/23z, the Austrian Supreme Court had to assess a question on the liability of a legal entity as an employer. As a general rule, liability is established if the accident at work was caused by the intentional or grossly negligent conduct of a member of the executive body or a representative of the legal entity.

Once again, the Supreme Court has now clarified that the question of whether someone is to be regarded as a representative of a legal person depends on the specific circumstances of the individual case. In the specific case, it was questionable whether an employee who is regularly in charge of the construction sites of the legal entity is the contact person on site and ensures, among other things, that the orders and instructions issued by the managing director of the legal person to comply with the employee protection regulations are also complied with by the workers present, is to be assessed as such a representative. Furthermore, on the day of the accident to be assessed, the employee in question was the only skilled worker and foreman on the construction site who was responsible for this.

It can be deduced from the case law of the highest court to date that anyone who carries out activities for the legal person in a responsible, managerial or supervisory capacity is eligible as a representative. In this regard, it is irrelevant that the sphere of activity corresponds to that of an organ of the legal society. It is only in the case of persons who carry out subordinate activities that a representative position is not conceivable. In the past, therefore, a foreman, a construction site coordinator or a construction engineer in charge of a road construction site has already been assessed as a representative.

In the present case, in the opinion of the court, it could not be assumed that the skilled worker was performing only a subordinate activity. For this reason, the employee who regularly manages the construction site of the legal entity, is the contact person on site and ensures, inter alia, that the orders and instructions issued by the managing director to comply with the employee protection regulations are also complied with by the workers present, was to be regarded as a representative of the legal person. The legal entity must be able to be attributed to the grossly negligent conduct of the representative and this establishes liability vis-à-vis the social security institutions for the services provided to the injured employee.

 

For further information, please contact:

Hanna Lemberger, Lawyer

Zumtobel + Kronberger, Salzburg

e: lemberger@eulaw.at

t: +43 662 62 45 00

 

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