Criminal Liability of Persons Responsible for Occupational Health and Safety in Poland

This paper focuses on the interpretation of the concept of a “person responsible for occupational health and safety”. Only such a person can be an offender under Article 220 of the Polish Criminal Code. Following an analysis of the legal situation and the rights and obligations of the various entities capable of becoming offenders under said article, the author concludes that the category of persons responsible for occupational health and safety includes only the following: the employer, the person managing employees, members of the occupational health and safety service, OH&S coordinators.

it's also important for employers who should know who-in the context of their own work establishment-is responsible for occupational health and safety. The purpose of this paper is to interpret the criterion given in Article 220 of the Criminal Code, which defines the offender, and to draw up a catalogue of persons responsible for occupational health and safety.
To begin with, it needs to be stressed that the right to healthy and safe working conditions is one of the fundamental rights of every employee. The Constitution of the Republic of Poland stipulates that "everyone shall have the right to safe and healthy conditions of work" (Article 66(1)). The concept of a person responsible for occupational health and safety has not been defined and its scope has been a controversial issue. We do not have a statutory catalogue of such persons. The Polish doctrine offers no uniform position as to who should be viewed as responsible for occupational health and safety and, as a result, who is capable of becoming an offender under Article 220 of the Criminal Code. The literature usually lists the following entities: the employer, the person managing employees, members of the occupational health and safety service, social labour inspector, national labour inspector, national sanitary inspector, a person occupying an independent position in the organisational structure of a work establishment, OH&S coordinator, and regular employee. Occasionally, other persons are mentioned, including members of the occupational medical service, members of the occupational health and safety commission, persons conducting OH&S training.

Discussion
The provision in Article 220 of the Criminal Code is a blanket provision and as such requires a reference to provisions of the labour law as it is broadly defined. The concept of occupational health and safety is a characteristic element of the labour law rather than that of criminal law. Article 15 of the Labour Code states explicitly that the employer is obliged to ensure healthy and safe working conditions for their employees. Moreover, Article 94(4) of the Labour Code, defining the employer's duties, provides for the employer's obligation to ensure safe and healthy conditions at work and to provide systematic OH&S training to employees. Indisputably, the employer is one of the persons responsible for occupational health and safety. According to Article 3 of the Labour Code, an employer is an organisational unit even if it has no legal personality, and an individual that employs employees.
Article 3 of the Labour Code provides as follows: " § 1) In the case of an employer being an organisational unit, any acts concerning labour law are performed by the person or authority managing that unit, or by another person assigned to carry out these acts. § 2) The provision in § 1 applies accordingly to an employer being an individual if the employer does not personally perform the acts referred to in that provision". The above clarification is also relevant in the context of criminal law since criminal liability is only applicable to individuals. Criminal liability is individual and personal and attributable to a specific individual (a person). Thus, in the case of an employer not being an www.scholink.org/ojs/index.php/wjssr individual, a managing person or another appointed person will be responsible for occupational health and safety. In the case of an employer who is an individual, it is obvious that they are the person responsible for occupational health and safety. Pursuant to Article 207 of the Labour Code, the employer is responsible for occupational health and safety in their establishment and must protect employees' health and life by providing safe and healthy working conditions, appropriately implementing the achievements of science and technology in this field. In particular, the employer must: 1) organise work in a manner ensuring safe and healthy working conditions; 2) ensure that occupational health and safety regulations and rules are complied with in the work establishment, issue instructions to correct any breaches in this respect, and control the implementation of those instructions; 3) react to needs in relation to ensuring health and safety at work, as well as adopt measures to improve the has not been assigned these kinds of duties cannot be an offender in this context. The above-mentioned Regulation does not expressly define the duties of the occupational health and safety service, but it does so indirectly, by defining its tasks. If the OH&S service has tasks, it means it is obliged to fulfil them. It should be stressed that the OH&S service is appointed to take care of occupational health and safety matters, as its name indicates. The service is appointed by the employer and operates within their work establishment, or the employer's organisational structure. Moreover, it is entrusted with a control function with respect to occupational health and safety and was provided with the necessary authorities and competences by the legislator. Some commentators oppose the idea of considering OH&S members as persons responsible for occupational health and safety due to the advisory and controlling nature of their work; it was indicated that controlling authorities assigned to entities operating within a work establishment are not sufficient to deem these persons as criminally liable under Article 220 of the Criminal Code. It was noted that a person needs to have supervisory powers to directly impact the state of occupational health and safety and the obligation to take appropriate actions in this respect (Hryniewicz, 2013). I cannot agree with this position when it comes to the occupational health and safety service. It should be noted that the OH&S service has supervisory powers, for example, the it is established that the requirements concerning health and hygiene have been violated, the national sanitary inspector issues a decision to order removal of any identified issues. If a violation of the requirements concerning health and hygiene has resulted in an immediate danger to human life or health, the national sanitary inspector orders that the work establishment is closed, wholly or partly (workstations, machines or other equipment). The above provisions indicate that the National Sanitary Inspectorate has an oversight and control function with respect to healthy working conditions and that it has certain supervisory powers. This does not imply, however, that national sanitary inspectors are potential offenders under Article 220 of the Criminal Code. The National Sanitary Inspectorate is an external entity with respect to a work establishment. It has no organizational links to the employer, nor is it controlled by them. It is not appointed to ensure healthy working conditions at work establishments but rather to control that such conditions are ensured by employers.
According to Article 208 § 1 of the Labour Code, if employees employed by various employers work at the same time at the same place, their employers are obliged to appoint a coordinator to supervise the occupational health and safety of all such employees. Neither the Labour Code nor other legal acts specify the authorities of such a coordinator. It could be claimed that the detailed scope of their rights and obligations would be specified each time by employers appointing the coordinator. It has been rightly noticed in the literature that in practice such coordinators are very rarely appointed (Widzisz, 2005). In abstracto, it could be said that the coordinator is a person responsible for occupational health and safety for two basic reasons: because they perform a supervisory function and they are appointed by employers. Undoubtedly, persons providing OH&S training to employees cannot be considered persons responsible for occupational health and safety. They do not perform any control or supervisory functions nor do they have the supervisory powers to make an impact on the state of health and safety at a given work establishment. These are the same reasons for which members of the occupational medical service are not responsible for occupational health and safety. Pursuant to Article 1(1) of the Occupational Medical Service Act, an occupational medical service is established to protect employees from harmful factors arising from the work environment and the methods of work, and to provide preventive health care to employees, including checking their health. The tasks of the occupational medical services are performed by doctors, nurses, psychologists and other persons having the necessary qualifications to perform the multidisciplinary tasks entrusted to this service (Article 2(1) of the Act). It is worth mentioning that while engaged in their tasks, the persons involved in the occupational medical service are independent of employers pursuant to Article 3 of the Act.

Members
Contrary to the view found in the literature (Widzisz, 2005;Budyn-Kulik, 2017), people with independent positions within an employer's organisation cannot be considered as persons responsible for occupational health and safety. These include such employees as the chief mechanical engineer, chief process engineer, chief electrical engineer, machine or equipment operator (for example construction crane operator) or the chief accountant. The authors claim that these persons could potentially be held responsible for occupational health and safety because, due to their role, they can have an impact on the working conditions of other employees. The above argument should be rejected because impacting the state of health and safety at work is not the essence of these people's work-they have other tasks and duties. The category of persons responsible for occupational health and safety may only include people who are directly responsible for health and safety at a given work establishment.
In the literature, a view has been expressed that persons responsible for occupational health and safety include regular employees, i.e., all employees not managing other employees. From this perspective, every employee, regardless of their job and position, could be an offender under Article 220 of the Criminal Code (Daniluk, 2015). To support this opinion, Article 211 of the Labour Code was quoted, which stipulates that the employee must observe occupational health and safety provisions and regulations. In particular, the employee must: 1) know OH&S regulations and rules, take part in training in this respect and take the required testing exams; 2) perform work in a manner compliant with the OH&S regulations and rules as well as comply with the guidelines and instructions given in with the employer and his/her superiors in the performance of OH&S duties. The above position should be rejected. Although the employee is obliged to observe occupational health and safety regulations and principles, this does not make him or her responsible for occupational health and safety. The employee has the right to safe and healthy working conditions and the employer must ensure such conditions.
Ergo, the responsibility for safe and healthy working conditions rests with the other party to the work relationship. Health and safety regulations have been introduced for the sake of employees and their best interests, which is why regular employees cannot be held legally liable for not ensuring adequate health and safety conditions at a work establishment. Employees' liability for violating employee duties by not observing occupational health and safety regulations and principles is a different matter altogether. In this case, we can talk about employee liability under Articles 70, 71 and 74 of the Petty Offences Code as well as disciplinary liability.

Final Conclusions
To sum up, the right to healthy and safe working conditions is one of the fundamental rights of every employee. Persons responsible for occupational health and safety who fail to perform their duties concerning OH&S and thereby expose an employee to an immediate danger of loss of life or a serious injury are subjected to criminal liability. In light of the Polish law, the persons responsible for occupational health and safety who could become offenders under Article 220 of the Criminal Code include the employer, the person managing employees, members of the OH&S service and OH&S coordinators.