Not to be overlooked – ZPIZ and ZZZS recourse rights
Every year, the number of workplace injuries and occupational diseases increases and leads to more claims for damages against employers by injured or ill employees. Alongside the employees’ claims, which employers are generally insured against by way of general civil liability insurance, there is an increasing amount of recourse claims being brought by the Pension and Disability Insurance Institute of Slovenia (ZPIZ) and/or The Health Insurance Institute of Slovenia (ZZZS). These claims are being brought against employers in connection with the above-mentioned injuries/diseases. Such claims are generally not covered by general insurance.
In practice, the most common recourse claims brought by ZZZS are for compensation of losses incurred by ZZZS as a result of compensation of health service and other connected service costs for employees who have been injured at work or suffered from an occupational illness, costs of the supply of medicines and medical devices, payment of cash benefits in case of an occupational disease etc. ZPIZ recourse claims are usually for the recovery of costs incurred by ZPIZ as a result of employee disability retirements owing to work-related injuries or occupational disease, costs of service charges for these employees, occupational rehabilitation, costs of workplace adaptations and job creations, costs of disability/widow/family pensions etc. These are claims that often seek costs of several thousand euros and can momentarily cripple the business capabilities of (especially smaller) employers.
If, in fact, an employer is liable for an injury sustained by an employee while at work, it is required to pay damages resulting from the injury; the same goes for ZPIZ or ZZZS. If the problem escalates to litigation, the proof procedure before the court is focused precisely on whether the employer has indeed implemented all necessary measures to ensure safety and health in the workplace, as well as why the incident even occurred. What is key in these cases is that the employer carries the burden of proof with regards to proving that they complied with the laws, by-laws and internal acts of the employer, and by doing so, did everything in its power to prevent the employee’s injury or disease.
Judicial practice is now taking a harder line with employers, meaning that courts require employers to act with increased thoroughness in ensuring safety and health at work. In 2017, ZZZS lodged 130 lawsuits with recourse claims against employers for several hundred thousand euros, and ZPIZ lodged 155 recourse claims, also for several hundred thousand euros.
The courts are, amongst other things, placing a greater emphasis on employers’ duty to actually train employees to safely perform work, whereby this duty is not exhausted by familiarizing the employee with safety instructions; constant familiarization with actions for preventing and remedying damage is required. Individual instructions must be adapted to the work that an individual employee actually performs.
It is therefore key (also from the viewpoint of ZPIZ and ZZZS recourse claims) for employers to regularly take steps that are necessary for ensuring the safety and health of employees at work, to regularly provide health and safety training to employees, to regularly refer them to medical examinations, to take into account all procedures for reporting accidents when they happen etc., otherwise, they may suffer serious consequences.
