Workplace Injury Damages – Guide for Employers and Employees

20
Dec 2019

odšteta za povredu na radu povreda na radu rok za tuzbu, advokat za naknadu štete

Although the Government of the Republic of Serbia proclaimed 2019 as the year of occupational health and safety, black statistics on the number of workplace fatalities is not absent. The statistics are no less pessimistic when considering the number of injured in the workplace.

The Labor Law stipulates that employeea are entitled to safety and protection of life and health at work, in accordance with the Law. However, what does that mean in practice and what obligations does it incur for you as an employer, read in the text below.

What Are Employer’s Obligations for Workplace Injury Damages?

According to the Occupational Health and Safety Law, the employer is obliged to enable work to the employee at the workplace and work environment where occupational health and safety measures have been implemented. The employer is also obliged to provide preventive measures to protect the lives and health of employees.

But what does that really mean? What kinds of acts is he obliged to issue and apply in order to comply with his legal obligations?

The employer must:

  • have a Risk Assessment Act in a written form for all work positions in the work environment, as well as to determine the manner and measures for their elimination;
  • determine the rights, obligations and responsibilities in the field of occupational health and safety by a General Act, i.e. a collective agreement. An employer who has up to 10 employees can also regulate this by an employment agreement, therefore, he does not have to enact a separate General Act;
  • by a written act, designate a person for safety and health at work;
  • engage a licensed legal entity to implement preventive and periodic examinations and inspection of work equipment, as well as preventive testing of working environment conditions.

If you designate another person or delegate obligations and responsibilities to another person regarding the implementation of workplace safety and health measures, as an employer, you are not relieved of any liability for the implementation of those measures.

In Which Cases the Employer Does not Hold Legal Liability?

On the other hand, the employer is not liable:

  • if it is proven that the workplace injury was caused by unusual and unforeseen circumstances beyond his control;
  • if theworkplace injury occurred due to exceptional events whose consequences, despite all their efforts, could not have been avoided.

As an example, we could cite the effects of some natural forces that cannot be controlled by an employer, such as an earthquake.

On the other hand, the employer is liable for the damages suffered by the employee from a hazardous object, of which the employer is the owner, that is, from a dangerous activity that he performs. A hazardous object would be considered, for example, a load hauler that is an employee’s work tool, so the employer would be liable for the damage suffered by an employee from such a machine.

However, even in such a case, the employer, as the owner of the hazardous object, would be relieved of the liability if he proved that the damage occurred as an exclusive consequence of the employee’s actions, which he could not foresee and whose consequences he could not avoid. The employer is relieved of liability if the employee violates the work procedures of the employer, i.e. when he does not comply with the rules at work.

An extreme example of this would be a fight in the workplace, between employees, or an employee and a third party. Although in this case, the employee would suffer an injury in the workplace, during working hours, there is no liability of the employer for the injury that the employee would eventually have suffered. Injury in such a case would obviously be caused by the employee himself, as a result of non-compliance with the rules and procedures at work.

naknada štete, naknada štete radnika poslodavcu, naknada štete poslodavcu

What Are Employer’s Obligations When an Employee Suffers a Workplace Injury?

When an unfortunate event occurs and your employee notifies you that he or she has suffered an injury at work, here is what your first obligation is.

  • Report to the Labor Inspection

You must immediately, and within 24 hours at the latest after the injury occurred, report a work injury to the competent labor inspection.

If a work injury occurs e.g. in a traffic accident on the way to the place of work, you are obliged to report it to the competent authority within the stated time.

  • Report on the Workplace Injury

You are obliged to immediately, and within 24 hours from finding out about the injury at work at latest, fill in the report on work injury (injury list) and to submit it to the healthcare institution where the injury was examined. The report shall be completed and submitted to the health institution in 5 copies.

Then the doctor (health institution) shall enter the finding and opinion on the injury at work in the report, within 2 days from the receipt of the report, and without delay, the next day at the latest, he shall return it to the employer.

Upon receipt of the report from the health institution, you shall submit it to the competent branch of the Republic Health Insurance Fund, within 2 days from receipt.

When the Branch of the Republican Health Insurance Fund returns to you the certified copies of the report on the injury at work – one copy of the certified report you should keep for your needs, one copy shall be delivered to the employee immediately, and within 2 days from the receipt at the latest, one copy shall be delivered to the Republican Pension and Disability Insurance Fund and one copy to the Administration for Work Safety and Health.

The Regulation[1] prescribes the content and the manner of issuing the form of the report on the injury at work, and its forms are an integral part.

  • Compensation for Salary

As an employer, you are obliged to reimburse the salary to the employee for time off from work due to a temporary inability for work due to injury at work or occupational illness. The amount of salary compensation is 100% of the average salary of an employee in the previous 12 months, before the month in which temporary inability for work occurred, during the employment of the insured, from the first day of temporary inability to work, for the entire duration of temporary work inability.

It should be noted here that the employee also has the right to compulsory health insurance.

  • Compensation for Damages

The Labor Law provides the obligation of the employer to compensate for damage to the employee for injury at work or occupational illness.

However, this issue will be regulated on a case-by-case basis, bearing in mind that the obligation of the employer to compensate for damage to the employee for injury at work is constituted only in the case of the employer’s liability.

Thus, if your employee suffers an injury on the way from home to work or vice versa, you would not be liable, and therefore there would be no obligation to compensate for damage to the employee. For your liability for compensation to an employee to exist, there must be a causal relationship between your action and the damage that occurs to the employee.

  • Misdemeanor Liability of the Employer

If you do not adopt a risk assessment act in writing for all workplaces, by a general act, i.e. collectiveagreement or employment agreement do not determine the rights, obligations and responsibilities in the field of safety and health at work, and if you do not designate a person for safety and health at work by a written act, you run the risk of a misdemeanor proceeding against you.

You should also be aware of misdemeanor liability if you failed to comply with the obligation to report a work injury to the competent inspection, and if you do not submit the prescribed form of work injury report to the competent institutions and the injured employee himself.

Regarding the penalties for these offenses, a fine in the amount of RSD 800,000 to RSD 1,000,000 is provided for a legal entity, i.e., the employer.

naknada štete zbog povrede na radu, pravo na naknadu stete zbog povrede na radu

WORKPLACE INJURY DAMAGES COMPENSATION – FAQs

Recently, a particularly popular form of leisure for employees is organizing various team-building activities.

Whether you choose to organize bowling at a local club, competing in the Escape Room, cruising, skiing or some other kind of outdoor activity with your employees, here’s what you need to know.

The assumption is that you, as the employer, are the organizer of such activities and that they take place outside the premises of your company.

The Law must consider a workplace injury as the injury suffered by an employee at a work camp or competition (production, sports, etc.)[1]. Further, the Law stipulates that persons in work-related competitions have the right to work safety and health, and that safety and health at work are provided by the organizer of the competition.[2]

Bearing the previous in mind, and given that you are the organizer of team building, should an employee be injured during these activities, there is an opinion in theory that you should report this, complete the report on work injury and carry out the procedure described above to inform the competent authorities.[3]

Your further action, as the employer, would depend on the position taken by the competent branch of the Republican Health Insurance Fund and whether or not the Fund would consider a specific injury a workplace injury.

In case the competent branch does not consider it to be a work injury, it returns to the employer five non-certified copies of the report at work, and the employee could exercise his rights by filing a lawsuit against the employer.

It is interesting that the courts even go a step further, and in one court decision an exception to the rule was determined with the position that an employer is liable for a work injury during an activity organized by the employer. Specifically, the court established the school’s liability as an employer for the injury sustained during a basketball game organized by the teachers themselves on School Day, when there was only tacit knowledge of the employer for the game.

Although work from home is predominantly feasible only when it comes to the provision of intellectual services, it is logical that this possibility from the occurrence of work injuries is much less than comparing e.g. with construction work.

However, as the trend of working from home is especially in expansion due to the development of modern technologies that enable remote work, this issue is increasingly being raised in practice.

According to the current legislation, the work injury is an injury suffered by the insured that occurs in the spatial, temporal and causal connection with the performance of the work based on which he or she is insured, as well as the injury suffered by the employee while performing the work to which he is not assigned, but which performs in the interest of the employer.

When working from home, an employee performs the same work that would be performed in the premises of the employer, in other words, performs work in the interests of the employer, in order to accomplish the work tasks of his workplace.

The court’s interpretation from a 2013 court ruling is that the term “at work” necessarily and at least implies to the existence of a workplace and working hours, or, under certain conditions, at least one of those elements. The court further concludes that the employer cannot defend itself that there was no obligation to report the event because the injury occurred outside the workplace, because it nevertheless occurred during working hours, i.e. in time-related to the job done. Most important for the court is that the employee’s action was accomplished to carry out the workplace’s activities.

This means that if your employee would be injured while working from home within his or her prescribed working hours and in the performance of his / her workplace, we advise you to report this injury to the competent authorities and submit the prescribed form of the workplace injury report.

On the other hand, if an employee slipped into the bathroom or injured himself or herself in the gym after working from home, no causal relationship could be made with the workplace.

By reporting such an injury and submitting a work injury report, you fulfill your legal obligation. It is a completely separate issue of possible compensation for the damage that an employee would claim from you, because your liability for compensation, as we have stated, can only be determined if your liability for injury to the employee is also established.

What is new in this area is the announced Law on Occupational Injury Insurance for Compensation of Damages, which is being drafted and shall be adopted later during 2020.

The most significant novelty the new law will bring is the obligation for all employees to be insured, which will enable a faster compensation in the event of a workplace injury, compared to the current situation – when litigation may take years.

The competent Ministry (Ministry of Labor, Employment, Social and Veteran Affairs) reports that under the new law, employers will have an obligation to insure all employees, regardless of activity, and that it will cost more to ensure workers engaged in risky jobs.

However, this obligation will not represent a new levy on employers engaged in risky businesses because they will certainly have a claim for damages, since the idea of ​​the Law is to pay the damages to the insurers.

[1] Regulation on the Content and Manner of Issuing the Report on Work Injury and Occupational Illness (Official Gazette of the RS, No. 72/2006, 84/2006 – amended, 4/2016, 106/2018 and 14/2019)
[2] Law on Pension and Disability Insurance, (“Official Gazette of RS”, No. 34/2003, 64/2004 – decision of the CPVO, 84/2004 – other law, 85/2005, 101/2005 – other law, 63 / 2006 – USRS decision, 5/2009, 107/2009, 101/2010, 93/2012, 62/2013, 108/2013, 75/2014, 142/2014, 73/2018, 46/2019 – US decision and 86 / 2019) Art. 23. 1. par. I. 3
[3] Law on Occupational Safety and Health (“Official Gazette of RS”, No. 101/2005, 91/2015 and 113/2017 – other Law), Art. 5 (1) 6) and paragraph 2.
[4] Jugoslav Veljković, Lawyer in Economy 2019/190, Section: PP V-5 – Labor Relations / Safety and Health at Work – LIABILITY FOR EMPLOYEE SAFETY AND HEALTH FOR TEAM BUILDING
[5] Judgement of the High Misdemeanor Court, No. 22804/2013 of Nov 15, 2013.

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