Labour Law – legal duty of employers to notify the administrative authorities of work-related accidents
Law permitting the imposition of sanctions;
Administrative offence in the labour field;
Principle of legality;
Principle that laws must be precise and determinable;
RULING No. 76/16
3 of February of 2016
The object of this case was a norm contained in the Law that regulates the Labour Code, which required employers to notify the Inspectorate-General of Labour (IGT, currently the Working Conditions Authority – ACT) of any accident that was fatal or revealed the existence of a particularly serious situation, within twenty-four hours of the incident and without prejudice to other notifications provided for in special legislation. The Court considered that the way in which this norm was configured in terms of how employers had to behave failed to respect the constitutional principle that interventions which impose sanctions must be clearly provided for by law. This was because the conduct that constituted an administrative offence was so imprecisely defined that it did not fulfil the demands imposed by the principles of a democratic state based on the rule of law, legal certainty, and trust. As such, the Court found the norm unconstitutional.
This concrete review case resulted from a mandatory appeal by the Public Prosecutors’ Office against a decision in which the court a quo refused to apply a norm on the grounds that it was unconstitutional.
The lower court declined to apply the final part of the norm, which required employers to notify the IGT (the then equivalent of the current Working Conditions Authority – ACT) about accidents “that reveal(s) the existence of a particularly serious situation”.
The Constitutional Court recalled that the duty to notify imposed on employers in this precept formed part of the overall framework of measures designed to prevent work-related accidents and occupational illnesses. In this respect the Constitution of the Portuguese Republic, International Labour Organisation (ILO) Convention no. 155 and Directive no. 89/391/EEC of the Council of the European Union all require both the public authorities and employers to ensure that work is done under hygienic, safe and healthy conditions.
The administrative offence here was the failure to notify IGT/ACT of a work-related accident suffered by a person employed by the company that originally challenged the administrative decision to impose a sanction. The description of the accident was as follows: (the employee was) “working in the line of cashiers when she picked up a till and sprained her shoulder, which left her in pain (…)” … This resulted in the worker “taking sick leave because she was unfit for work…”
The court a quo took the view that, as a significant restriction on fundamental rights, any public law that can entail the imposition of administrative sanctions is subject to the guarantees which are explicitly enshrined in relation to the Criminal Law.
In its jurisprudence the Constitutional Court has consistently and repeatedly said that the constitutional principle that sanctions must be provided for by law is applicable to the law governing mere social administrative offences. This principle implies that the law must be sufficiently specific about the facts which constitute the legal type of crime or administrative offence (or the prerequisites for one to have been committed), and must make the necessary connection between the crime or offence and the type of penalty or fine with which it can be punished.
This concept of ‘typicity’ precludes the legislator from using vague formulations to describe legal types of crime or administrative offence, and from either providing for penalties that are indeterminate, or penalties which are so broadly defined that it is impossible to determine what concrete punishment should be imposed.
The Court considered that the fact that administrative offences form part of the overall framework of situations in which the state has the power to punish, the maximum expression of which is to be found in the Criminal Law, means it is justifiable for the legal regime governing them to be influenced by the principles and rules that are common to the whole of the part of the public law which can entail the imposition of sanctions. The law governing mere social administrative offences is a law that imposes sanctions and allows the Administration to participate in the exercise of the state’s power to punish by imposing penalties on the citizens and other entities it administers. This means that, as elements which emanate from the jus puniendi, that law and that power must be governed by the various ‘penal’ principles and rules. The principles that are especially important in criminal matters, such as those of legality, innocence, non bis in idem, non-retroactivity, that penalties cannot have automatic effects, and that criminal liability cannot be transferred to someone else, can be extended to the administrative offence field, apart from anything else because they are derived from principles linked to the rule of law and legal certainty. The Court recognised that there are differentiations when these principles are extended to administrative offences. The fact that unlawful acts which constitute mere social administrative offences are materially autonomous in relation to unlawful acts which constitute crimes gives rise to a specific regime for punishing the former, with different kinds of sanction, punitive procedures and agents to impose those sanctions and punishments. There can therefore be no automatic transposition of the constitutional principles that govern penal legislation to the law governing mere social administrative offences. This distinction is relevant to the relationship between those areas of the law and the Constitutional-Law order. In its jurisprudence the Constitutional Court has essentially used the criteria of the different ethical implications and the different legal assets that are at stake in the two areas to distinguish between the two types of unlawful act.
The purpose of the principle that for an act to be a crime it must be specifically provided for as such by law is to ensure that citizens are not subject to arbitrariness and excess when the state exercises its punitive power. The fact that this is a constitutional parameter means the penal norm must be precise and clearly determinate. Having said this, the Court had already recognised that it may sometimes prove justified for legal types to be relatively indeterminate without thereby violating the principles of legality and ‘typicity’. However, for this to be the case the type must nevertheless be determinate enough not to undermine the essential content of the principle of legality. The principle of nullum crimen can only fulfil its role as a guarantee if, notwithstanding a certain degree of indeterminateness and openness, the typical regulation is materially sufficient and appropriate enough to ensure that citizens know what actions and omissions they must avoid.
In the other fields in which sanctions can be imposed, such as the law governing mere social administrative offences and disciplinary law, the intensity of the ‘typicity’ requirement is not as great as it is in Criminal Law. However, the typifying norm or set of norms must describe the objective and subjective elements of the essential core of the unlawful act with sufficient clarity, failing which they will be in breach of the principles of legality and ‘typicity’ and above all their teleological quality of guarantees. One must thus conclude that where administrative-offence types of unlawful conduct are concerned, the lex certa requirement is not prejudiced if unlawful acts are identified with reference to indeterminate legal concepts or general clauses, on condition that it can nevertheless be fulfilled using logical, technical or experience-based criteria that make it possible to predict the nature and essential characteristics of the forms of conduct which constitute the typified infraction with a sufficient degree of certainty.
In the case of the part of the norm before it, the Court considered that the wording left doubts as to the types of accident that ought to be communicated to the authorities.
The norm sub iudicio required the employer to notify IGT/ACT of any “accident that was fatal or reveals the existence of a particularly serious situation” within 24 hours of its occurrence. While the formulation “fatal accident” is easy to interpret, the expression “reveals the existence of a particularly serious situation” was incapable of expressing which work-related accidents should be communicated to the authorities that inspect safety conditions in the workplace with adequate clarity. It made it clear that not all work-related accidents had to be communicated to the authorities, but left an area of lack of definition and certainty between those that need not be communicated and those that must, which is not compatible with the minimum degree of determinateness demanded of the administrative-offence type.
Besides the goals which the legislator said led to the imposition of the duty to notify, the norm did provide a guideline that was determinate enough to enable employers to accurately know what work-related accidents they were obliged to communicate. As a prerequisite for IGT/ACT to take action, the indeterminate concept “particularly serious situation” was perfectly capable of coexisting with the principle of administrative legality. It is different with norms that prohibit actions or establish omissions that are punishable by sanctions. Here the function of legality is to serve as a guarantee that is demanded by the principle of the rule of law and is only fulfilled if the prohibited forms of behaviour possess a minimum degree of determinability. The norm must be minimally clear and precise, so that agents can use the legal text to know what acts or omissions generate a liability on their part.
The Court considered that this was not the case with regard to the norm before it, and therefore found it unconstitutional.
One Justice dissented from the Ruling. He said that when taken in its linguistic context the norm not only performed a negative function, to the extent that it made it possible to exclude situations which did not match the useful sense contained in the text, but also a positive one inasmuch as it specified a required behaviour with reference to work-related accidents which a criterion of evidence revealed to be particularly serious. In his view, if one interpreted the norm in a way that also took into account the unity of the system and the general regime governing work-related accidents, “particularly serious accidents” could be those which presumably caused a permanent, or a temporary but lengthy, incapacity for work. Among other things, the norm therefore served the purpose of excluding accidents that only subsequently, and as a result of changes in the victim’s clinical condition, led to consequences which were initially not foreseeable in the light of the nature and severity of the injury, from the requirement to notify whose lack of fulfilment could constitute the commission of an administrative offence.
Constitutional Court Rulings nos. 282/86 (21-10-1986);158/92 (23-04-1992); 344/93 (12-05-1993); 666/94 (14-12-1994); 469/97 (02-07-1997); 168/99 (10-03-1999); 278/99 (05-05-1999); 93/01 (13-03-2001); 547/01 (07-12-2001); 41/04 (14-01-2004); 160/04 (17-03-2004); 358/05 (06-07-2005); 102/08 (19-02-2008); 115/08 (20-02-2008); 338/03 (07-07-2003); 351/11 (12-07-2011); 559/01 (07-12-2001); 461/11 (11-10-2011); 537/11 (15-11-2011); 635/11 (20-12-2011); 85/12 (15-02-2012); 397/12 (28-08-2012); 397/12 (28-08-2012); 466/12 (01-10-2012); 45/14 (09-01-2014); 180/14 (26-02-2014); 201/14 (03-03-2014).
- Constitutional Commission Opinion no. 32/80, in Pareceres da Comissão Constitucional, vol. 14, accessible at http://www.tribunalconstitucional.pt/tc/content/files/biblioteca/cc/cc_volume_14.pdf