Labour Court of Appeal, Larocca María Cristina v. Compañia Sudamericana de Gas S.R.L. and Other, Civil Action related to an accident, 28 August 2013, Case No. 37.691/2010
Constitution of the Nation of Argentina
Article 31
This Constitution, the laws of the Nation enacted by Congress in pursuance thereof, and treaties with foreign powers, are the supreme law of the Nation; and the authorities of each province are bound thereby, notwithstanding any provision to the contrary included in the provincial laws or constitutions, except for the province of Buenos Aires, the treaties ratified after the Pact of November 11, 1859.
Article 75, paragraph 22
(…) Treaties and concordats have a higher hierarchy than laws. The American Declaration of the Rights and Duties of Man; the Universal Declaration of Human Rights; the American Convention on Human Rights; the International Pact on Economic, Social and Cultural Rights; the International Pact on Civil and Political Rights and its empowering Protocol; the Convention on the Prevention and Punishment of Genocide; the International Convention on the Elimination of all Forms of Racial Discrimination; the Convention on the Elimination of all Forms of Discrimination against Woman; the Convention against Torture and other Cruel, Inhuman or Degrading Treatments or Punishments; the Convention on the Rights of the Child; in the full force of their provisions, they have constitutional hierarchy, do no repeal any section of the First Part of this Constitution and are to be understood as complementing the rights and guarantees recognized herein. (…)
Argentina
Occupational safety and health
Direct resolution of a dispute on the basis of international law
Ratified treaties1
Occupational accident/ Civil liability of the employer/ Pre-employment examination/ First aid/ Direct resolution of a dispute on the basis of international law
Ms Larocca filed an appeal against the sentence of the court of the first instance, which dismissed her claim and cleared the defendant company of any civil liability for the fatal occupational accident suffered by her husband. The judge that heard the case deemed that the claimant did not prove a causal relationship between the damages suffered by the claimant and the company’s responsibility.
The claimant stated that her husband was 68 years old at the time of the accident and that he was working as a security guard for the defendant. She alleged that this job was stressful and was performed outdoors, where the worker was exposed to weather conditions that on the day in question cause him to suffer a sudden and severe heart attack. The claimant argued that the company had breached various occupational safety and health standards, since no pre-employment examination was performed on her husband and as a consequence the company had not proven that he was fit to work in that job. She also alleged that the company did not have first aid equipment available in the location where her husband worked: as a consequence, he had to seek assistance himself, a situation that constituted a breach of occupational safety and health standards.
The National Court of Appeal considered that the accident had taken place in circumstances that did not comply with the relevant occupational safety and health standards (article 5 of Law 19587/72 on occupational safety and health, and article 4 of Law 24557 on occupational risk). The Court underlined that it was a serious incident for a worker to suffer a heart attack in circumstances where no medical assistance or first aid was available. Likewise, the Court considered the fact that the defendant company had not performed a pre-employment examination on the worker to be a serious omission since the worker suffered incapacity due to a heart condition, meaning that his incorporation into the company required special care and prevention measures. The Court’s expert medical report found a causal link between the pathogenic working conditions and environmental factors and the heart attack suffered by the worker.
The Court then indicated that the omissions on the part of the defendant constituted a violation of the provisions of ILO Conventions Nos. 155 and 187, which were fully operational in the Argentinean legal system, since they have constitutional status in accordance with paragraph 22 of article 75 of the Constitution. In relation to the aforementioned Conventions, the Court stated that:
“[The defendant] had not complied with the provisions of article 18 of ILO Convention No. 155 which decrees that ‘Employers shall be required to provide, where necessary, for measures to deal with emergencies and accidents, including adequate first-aid arrangements’.
Paragraph 2 b) of Article 5 of ILO Convention No. 187 establishes that national programmes must ‘contribute to the protection of workers by eliminating or minimizing, so far as is reasonably practicable, work-related hazards and risks [...] in order to prevent occupational injuries, diseases and deaths and promote safety and health in the workplace’”.2
Based on national provisions on occupational safety and health at work and ILO Conventions Nos. 155 and 187, the Court concluded that the company was responsible for the occupational accident suffered by the worker and, therefore, should be held civilly liable for compensation to be paid to the claimant.
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