CGPJ – Judiciary – Superior Courts of Justice – TSJ Canarias – Communication Office – Press release archive

2023-09-12 08:00:00

The Superior Court of Justice of the Canary Islands has confirmed the ruling of a Social Court of Santa Cruz de Tenerife that dismissed the lawsuit of a tire recycling company against the National Social Security Institute and an employee for imposing a 30% surcharge on the benefits derived from the accident suffered by the worker. The company considered that the deficiencies in training were attributable to the temporary employment company with which it had signed the contract.

The employee, of French nationality, was hired in May 2015 through an ETT. According to the sentence, while operating the rotary shears he tried to remove a piece of tire that had clogged the crusher, leaving his arm trapped in the machinery. As a result of the accident, he was on sick leave until January 2016, the date on which he obtained total disability with an initial recognized pension of 512.63 euros.

At the same time, an infraction report was drawn up for the commission of a serious offense to the minimum degree in matters of occupational health and safety, in accordance with art. 17 of Law 31/1995, of November 8, relating to work equipment and means of protection with an amount of 2,046 euros, as well as a proposal for a 30% benefit surcharge. Furthermore, it was considered that the cause of the accident was the improper use of work equipment and the lack of specific training of the affected person in the use, handling and maintenance of the rotary shear for tires of heavy and light vehicles.

The company stated in its appeal that the report of the Labor and Social Security Inspection did not sufficiently describe the non-compliance it alleged, that a causal relationship between a preventive non-compliance and the accident was not proven, and that the facts would have been assessed incorrectly.

“From the proven facts it is deduced – indicates the Social Chamber – that the worker had been assigned to a job for which he had not received sufficient training (taking into account that, given that he needed an interpreter to sign the contract, the mere delivery of documentation in a language that he did not master poorly can be considered sufficient training activity), and for which he did not have the supervision required by the machinery’s own instructions.

For the magistrates, the employee’s conduct cannot be considered reckless imprudence since “it always implies conduct that is carried out in disregard of risks that are well known to the worker” (…) “The company cannot, therefore, be excused in the recklessness of the worker when the employer has not fully complied with its training obligations,” the court concludes.