If the Economic Crimes Act had been in force, the company would have been sanctioned with the loss of tax benefits, a fine and the obligation to publish an extract of the conviction.
On November 29, 2024, the Court of Guarantee of Rancagua sentenced two executives to 540 days of rigorous imprisonment in its minimum degree, for their responsibility as perpetrators of negligent homicide in the person of the victim, who was a dependent worker of the company, and who unfortunately died as a result of an accident at work.
The case is related to events that took place in August 2021, in the city of Rancagua, where the victim worked as a safari guide at a zoo in the area.
Despite his duties, he was instructed one day to perform a task different from his usual work, consisting of cleaning some of the rooms where the tiger that the zoo had was spending the night.
Although the case deals with the criminal liability of the company’s management, the judicial pronouncement addresses health and safety issues that the employer should have carried out at the time of giving a work instruction that involves a dangerous situation.
In effect, the thesis of the Public Prosecutor’s Office and the plaintiffs is that the defendants did not implement or socialize safety standards for the operation of the park to which they were obliged as employers; there were no safety protocols, there was no violation of several labor standards and there was no training, among other aspects.
Thus, the judge expressed in her resolution that “the law allows the legitimate development of risky activities and conducts, which are beneficial and useful for society. However, it demands from the one who creates a danger, the duty to avoid it. Certainly, the greater the risk, the greater the prevention requirements are necessary”.
Adding later that “the existence of written protocols, and even their mere sending by e-mail to some workers, is not equivalent to and does not satisfy the necessary socialization, constant practice and permanent updating of safe conduct by the workers and by the same, does not satisfy those requirements of due care and safety”.
Based on this argumentation, the judge concluded that “it can therefore be affirmed that the danger that resulted in the death of the worker […] on August 6, 2021 was a foreseeable risk in the development of the wild animal exhibition activity, and as such, it evidenced the breach of the duty of care to which those who undertake and develop it and also those who are in charge of its operation and management are obliged to comply with.
It continues, “Thus, successive negligent actions and omissions were found in terms of prevention, supervision and safety containment contained in the Labor Code, Regulation on Prevention of Professional Risks, prevention of professional risks […], non-observances that determined the harmful result in a causal relationship, which allows affirming the existence of a culpable homicide crime”.
Consequently, the operations manager and the owner and legal representative of the company were sentenced to 540 days of minimum rigorous imprisonment for their responsibility as perpetrators of negligent homicide of the victim.
It should be noted that the infraction was based on article 492 of the Criminal Code, which is currently considered an economic crime that could also trigger the criminal liability of the legal entity, in accordance with the law on economic crimes and the law on criminal liability of legal entities.
These laws extend the criminal liability for economic crimes to all the collaborators of the company and to the company itself, when the infractions are due to organizational failures, highlighting the importance of the preventive measures that the employer must execute to its direct and indirect workers, given its role as guarantor of the life and health of the workers.
In this sense, if the described facts had taken place during the validity of this law, the legal entity could have been exposed to a sentence consisting of the loss of tax benefits and the prohibition to receive them for a period of up to three years, a fine, and the publication of an extract of the same.
For more information on these issues, please contact:
Jorge Arredondo | Partner | jarredondo@az.cl
Yoab Bitran | Director Compliance Group | ybitran@az.cl
Loreto Hoyos | Director Criminal Litigation Group | lhoyos@az.cl
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