Roma, 17 marzo 2022 – La sicurezza nei luoghi di lavoro è “La condizione di far svolgere a tutti coloro che lavorano, la propria attività lavorativa in sicurezza, senza esporli a rischio di incidenti o malattie professionali”. Testo fondamentale che si occupa di regolamentare la materia è il Testo Unico sulla salute e sicurezza sul lavoro (Decreto Legislativo n.81/2008).
Tale normativa ha avuto come obiettivo quello di stabilire regole, procedure e misure preventive da adottare per rendere più sicuri i luoghi di lavoro, quali essi siano. L’obiettivo è quello di evitare o comunque ridurre al minimo l’esposizione dei lavoratori a rischi legati all’attività lavorativa per evitare infortuni o incidenti o, peggio, contrarre una malattia professionale.
Ciò ha determinato che nel tempo si siano succedute una serie di normative finalizzate ad aumentare e garantire la tutela della salute e sicurezza sul lavoro, attraverso la previsione di tutta una serie di regole specifiche gravanti sul datore di lavoro che vanno a rafforzare il più generico obbligo di sicurezza in capo all’imprenditore previsto dall’art. 2087 del Codice Civile, il quale obbliga le aziende a porre in essere tutte le misure che, in base alle conoscenze a disposizione, possano tutelare in modo efficace la salute e la sicurezza sul lavoro del dipendente.
La norma citata include, dunque, un principio generale del quale la legislazione in campo di prevenzione e di assicurazione degli infortuni sul lavoro e, quindi, il Testo unico sulla sicurezza, rappresenta applicazione specifica.
Entrando più nel dettaglio, riguardo il ruolo dell’azienda, essa deve essere in grado di scegliere ogni misura idonea a prevenire sia i rischi facenti parte dell’ambiente di lavoro, sia quelli derivanti da elementi esterni e riguardanti il luogo nel quale detto ambiente si trova. Dunque, spetterà al datore di lavoro decidere quali misure azionare al fine di tutelare la salute dei dipendenti. Nel compiere detta valutazione l’azienda dovrà comunque tenere conto della specifica natura delle attività compiute, pertanto le misure di sicurezza non saranno le stesse per tutti i reparti e le aree aziendali, essendo esse legate alla tipologia di attività che caratterizza il singolo reparto o area aziendale. Per tale ragione l’obbligo di sicurezza è da intendersi come concetto ampio, che deve essere di volta in volta rapportato allo specifico contesto aziendale ed alle sue peculiarità.
Nei casi in cui il datore di lavoro abbia dato luogo ad una o più violazioni delle norme in tema di sicurezza sul lavoro, il lavoratore potrà tutelarsi rivolgendosi all’Ispettorato Nazionale del Lavoro competente sul territorio denunciando il datore di lavoro, facendo, così, valere i propri diritti segnalando la situazione di irregolarità sul piano del mancato rispetto degli obblighi di sicurezza. La denuncia dovrà contenere alcuni elementi essenziali quali, ad esempio, i dati identificativi dell’azienda e il contratto di lavoro. Compito dell’Ispettorato è, dunque, anche quello di verificare il rispetto delle leggi che regolano il rapporto di lavoro dipendente e a tal fine potrà compiere tutti gli accertamenti attinenti alla sfera della tutela della salute e della sicurezza nei luoghi di lavoro. Nella prassi, alla denuncia da parte del lavoratore segue, infatti, un’ispezione da parte dell’Ispettorato che potrebbe concludersi con una sanzione amministrativa, il cui importo cambia in relazione alla specifica violazione accertata, emessa verso il datore di lavoro inadempiente.
Inoltre, il dipendente che intenda ottenere tutela contro situazioni di mancato rispetto delle norme della sicurezza sul lavoro, potrà altresì usufruire dello strumento della vertenza sindacale, ossia della facoltà di fare una contestazione al datore di lavoro, legata al mancato rispetto dei diritti e dunque alla violazione delle norme di cui al D.lgs. n.81 del 2008. Per procedere alla predetta vertenza, il dipendente può contare sull’assistenza tecnica del sindacato a cui ha aderito, che provvederà a verificare il rispetto dei diritti del lavoratore riguardo alla gestione del rapporto di lavoro e, in caso di inadempienze da parte del datore di lavoro, inoltrargli una formale lettera di contestazione. Il sindacato dovrà, quindi, verificare la fondatezza della pretesa del lavoratore e, laddove siano riscontrate delle anomalie e violazioni delle norme in tema di sicurezza sul lavoro, l’ufficio vertenze potrà inviare una diffida al datore di lavoro mirata anzitutto a far cessare le condotte inadempienti e rispettare, per il futuro, i diritti del lavoratore. Nel caso in cui la vertenza sindacale non porti al risultato desiderato dal lavoratore, quest’ultimo farà bene a rivolgersi ad un avvocato esperto in diritto del lavoro, al fine di accertare il giudizio la violazione delle regole di sicurezza da parte del datore di lavoro, e conseguire così il risarcimento danni.
Occorre evidenziare, infine, che per l’azienda che non rispetta e viola l’obbligo di sicurezza, così come dettagliato nelle varie norme del Testo unico sulla sicurezza, possono scattare varie forme di responsabilità. Ci riferiamo, nello specifico, alla responsabilità: “contrattuale” nel caso in cui l’obbligo di sicurezza è parte del contratto di lavoro sottoscritto con il lavoratore, il cui inadempimento da parte dell’azienda consente al dipendente di conseguire in giudizio il risarcimento del danno; “amministrativa” nel caso di violazione della normativa contenuta nel D.lgs. n.81 del 2008 punita con sanzioni amministrative; “penale” se il mancato rispetto degli obblighi di sicurezza è causa di un infortunio o di una malattia professionale per il dipendente. In particolare, per ottenere il risarcimento danni, spetterà al lavoratore provare di aver subito il danno e la sua entità nonché il comportamento illegittimo del datore di lavoro ed il nesso di causalità tra danno patito e comportamento datoriale.
Violazione delle norme sulla sicurezza sul lavoro: quali le tutele del lavoratore?
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