Work stress and the death of an employee (An impartial approach of decision no. 1358/2019 of the Athens Single-Member Court of First Instance)
There has been a lot of discussion lately around the decision no. 1358/2019 of the Single-Member Court of First Instance of Athens.
The case heard? An employee suffered a severe myocardial infarction on his way to work. It was attributed to intense work stress. The business/employer was ordered to pay € 160,000 in damages to the plaintiffs (for mental suffering caused). 80,000 € to the wife of the deceased and the same amount to his son.
Small(?) Detail: The defendant, the business, was tried in absentia.
II. Heart attacks as occupational accidents: (known) facts and the “overturn”
Until now, we knew that a heart attack could (under certain conditions) be subject to the concept of an occupational accident. It is always the court that assesses the fulfillment of the conditions and sovereignly decides on the matter. Depending on the evidence provided.
We all agree that a death resulting from a heart attack suffered by an employee under normal working conditions is not an accident at work. On the contrary, a heart attack will constitute an accident at work when it is linked to excessive efforts made while trying to perform at work. When, for example, the death was linked to excessive working hours (decision no.1959/2017 of the Single-Member Court of First Instance of Athens). Or, alternatively, to other adverse and debilitating conditions: All that goes without saying …
The decision no. 1358/2019 of the Single-Member Court of First Instance of Athens came to “rock the boat”, by (excessively) extending the conditions under which a heart attack could fit into the concept of an occupational accident. What it did was characterize as an occupational accident a heart attack (considered to be) caused by an employee’s stress. A heart attack not purely attributed to the working conditions of the employee, but to the broader course of the employer’s business. Maybe the national economy as well…
III. The facts of the case
We have already seen that the defendant (employer) company did not participate in the trial. We do not know whether this was due to reasons of financial distress or other. And, of course, it is impossible to (even) assume its position.
Therefore the Court, given the employer’s default of appearance, accepted the facts presented by the plaintiffs (the deceased’s wife and son) as true.
The decision accepted the following facts:
The employer decided in early 2011 (i.e. during the financial crisis) to reorganize their business. The reorganization included the elimination of distribution divisions. Obviously, the employer could not afford to keep on going the same way. Among the divisions being eliminated was the one that the deceased was employed in. However, the employer had not clarified the (new) tasks (if any) of those working in the divisions about to be eliminated. Not even those employees’ future in the business (Couldn’t do so? Didn’t know? Were wishing for the best? Unknown…)
In February 2011, rumors regarding the aforementioned reorganization of the business started spreading. The deceased (seems that he) had been overwhelmed by the stress regarding the repercussions of the reorganization and the fate of his job. This anxiety (allegedly) turned into unbearable psychological pressure. Indeed, based on what was accepted, the deceased shared his fears about his future with his colleagues and supervisors. He started (according to the decision) to feel dizzy and have back and stomach aches. However, the employer did not provide clarifications (because they had none?) regarding the impact of the reorganization to the supervisors of the diseased. Much less to the latter.
On 05.05.2011 the unit of the diseased as well as the latter were informed that from 09.05.2011 the new distribution divisions would be taking over. The next morning he left for work. But he returned home. And there he left his last breath. His death was attributed, according to the autopsy, to an “acute myocardial infarction”.
IV. Subsuming the facts under legal provisions:
According to the decision: ‘the cause of death … is causally linked to the intense work stress that he experienced because of his insecurity and uncertainty regarding his employment status in view of the impending reorganization of the defendant employer, who on the one hand did not receive appropriate preventive measures and did not a priori provide adequate clarifications to protect the employees from the negative effects the redistribution of the work could have on their mental and physical health, and on the other hand took no measures to eliminate the stress of the abovementioned employee, despite that it was known to his superiors (agents of the employer) that he was experiencing severe job stress due to continued uncertainty regarding his work, which had obviously led him to the brink of collapse. ”
The Court, in the light of the foregoing, held that the death of the employee concerned, constitutes an accident at work within the meaning of Law 551/1915.
V. The concrete facts: a brief commentary …
(a) A heart attack can, under certain circumstances, constitute an accident at work.
(b) Among the secondary obligations of the employer is the obligation to provide for the welfare of their employees (which derives, inter alia, from: 662, 288 Civil Code, Law 3850/2010, Directives, Regulations)
(c) The employer has a legal obligation to protect the occupational safety and health of their employees, by taking appropriate preventive and repression measures.
In the above (under 1) context, this particular decision recognizes that the employer had to take appropriate action, since one of its employees (allegedly) developed a problem of work-related stress. Despite that stress is not a disease, the Court holds the position that prolonged exposure to stress can have adverse effects. Reduce, e.g. one’s efficiency at work, but also cause serious problems, such as cardiovascular diseases.
The decision accepts the responsibility of the company as “it did not take appropriate preventive measures, nor did it provide adequate clarifications in advance to protect employees from the negative effects of the redistribution of the work on their mental and physical health …”. According to the plaintiffs “clarifying his new duties or the future of his employment status would be sufficient to prevent the outcome”.
The fact that the company did not act in this way constituted (according to the Court) a breach of its obligation to provide for the welfare of its employees.
The protection of the health and safety of employees cannot (of course) be an absolute obligation. Obviously, the same goes for the obligation to have regard for the welfare of the employees. The limits are seen in the light of the “maximum sacrifice” each employer can endure.
The employer in this case proceeded to the restructuring in question in May 2011.
Let’s go back at that time: Many businesses in our country were struggling to survive. The financial crisis was ongoing. Many failed. Desperate people (businessmen, unemployed, retired) were committing suicide.
What could that particular business’s financials be back then? Booming?
And the divisions (which ended up being eliminated)? Lucrative?
And what did the business do?
The obvious: it foresaw the need for a reorganization and acted on it, to overcome the financial backlog. The end goal? Survival and safeguarding jobs (as many as possible).
Of course, it is the employer who carries the business risk, which they cannot pass on to their employees. They therefore bear the responsibility of each of their business decisions, as well as of the restructuring of their business. Meaning that the turnover of a business may be reduced. This does not mean, however, that the employer is justified in taking any measures to save their business, without having any regard for their employees. The law imposes (and rightly so) a series of obligations designed to protect employees.
But there is a core question. To what extent can an employer’s obligations be extended? All the more so when (we can assume / believe) they derive from vague legal concepts (662 & 288AK etc.) and not, explicitly, from the wording of the law?
What did the company do in this case? It moved forward with a reorganization (as it should). It did not inform about the forthcoming(?) job cuts. Or did it not (untruthfully) assure the employees that their jobs were secure? Should it?
Or, alternatively, should it have hired (and paid for) qualified consultants, irrespective of whether its finances were insufficient to pay the redundancy payments due?
How can we expect from a company that takes action to withstand the effects of a financial crisis, to communicate with its employee and reassure him of the future of his job!? In this case, the company, along with the reorganization, had not started laying employees off. We can rightly assume that its goal was to avoid layoffs altogether. However, when an entrepreneur is anxious about the existence of their business, they clearly cannot make any guarantees about the future of their employees in the business. All the more so when the future of the business itself is ominous. It is then and there that a possible employee-employer communication about the former’s job will most likely constitute the “coup de grâce” in an overly stressed – as accepted by the court- employee.
The fact that this particular decision accepted that the employee’s cause of death “is causally linked to the intense work stress that he experienced because of his insecurity and uncertainty regarding his employment status” does not appear to be persuasive in the light of its own assumptions.
VI. How the business should have acted (according to the court)
Let’s go back in time: May 2011.
Let us try, for a moment, to align ourselves with the suggestions of the court ruling.
I take on the role of the entrepreneur for reasons of convenience. I invite the supervisor and the distribution division staff to a meeting in my office:
“Good morning! Given the financial crisis, I am sadly announcing that I have decided (in order to save the business and most of the jobs) to discontinue distributions in Northern Greece. Those working in this division, that is X, Y and Z, will be fired in ten days from today. Thank you for your services. “
” Good morning! I hear the same rumors as you do. How, for example, given the financial crisis I am going to discontinue (in order to save the business and most jobs) distributions in Northern Greece. And also how those working in the division, that is X, Y and Z, will soon be fired. It’s all lies-all good! “
After ten days I am forced (in order to save the business and most jobs) to discontinue distributions in Northern Greece.
Again, I invite the supervisor and the employees of the distribution division to a meeting in my office and make the following announcement:
“Good morning! Given the financial crisis, I am sadly announcing that I have decided (in order to save the business and most of the jobs) to discontinue distributions in Northern Greece. Those who work in this division, that is X, o Y and Z, are fired effective immediately. Please go by the accounting department for the procedural issues. Thank you for your services.”
Following (: same in scenarios A & B) …
The Supervisor and the distribution division staff look at me frustrated.
Diagnosis for X: Acute myocardial infarction …
I wonder: What would the Athens Single-Member Court of First Instance do in any of the aforementioned scenarios?
VII. The author’s personal views on the matter
At the same time (: 2011) a friend of mine, a brilliant businessman, shared with me the difficulties he was going through.
He asked for my opinion on how to manage a crisis in his business. At the time he was employing more than a hundred people.
His business was impressive and strong, until the crisis started knocking on his door …
My view (albeit harsh) was absolute: personnel reduction and wage cuts.
It was very difficult for him.
My Argument: “If you continue with this payroll cost, the business will be destroyed. One hundred families (not including independent contractors) will be left without the basic income you provide them. Alternatively: You reduce personnel and salaries and seek, conservatively, to overcome the crisis. ”
My advice seems to have made (at least some) impact on him. Most of the jobs were saved. His business didn’t take long to recover. It has come back stronger: it is again a shining example of Greek entrepreneurship.
VIII. In conclusion
A (core) question arises – in the light of this decision:
With the business being on the brink of catastrophe, what should it do for its employees? Hire specialized (and of course very expensive) psychologists to support them, when: (a) it cannot afford the payroll cost; (b) it cannot pay the forthcoming redundancy payments?
Or, according to the decision, to ‘clarify the future’ of specific employees? (e.g. “X, Y and Z are fired!” or “X, Y and Z will be fired within ten days!”)
Decision 1358/2019 of the Athens Single-Member Court of First Instance DOES NOT convince.
It may even prove to be dangerous.
But it is instructive for us lawyers: “Let us try to show a (fake) human interest in those hard-pressed employees, so that we have a chance to get away with it …”.
Is this what we need?
Pending the review (if any) of the case, let’s hope that no more decisions like this one will be issued …
P.S. A brief version of this article has been published in MAKEDONIA Newspaper (December 8th, 2019).