Travel Risk Management: compensation claims against employers / FOCUS
The case of the ‘due marò’ - the two Italian Navy rifleman Salvatore Girone and Massimiliano Latorre who were charged with the murder of two Indian fishermen in February 2012 off the coast of Kerala in southwestern India, is back in the spotlight once againa cura di Mark William Lowe*
Genova – The case of the ‘due marò’ - the two Italian Navy rifleman Salvatore Girone and Massimiliano Latorre who were charged with the murder of two Indian fishermen in February 2012 off the coast of Kerala in southwestern India, is back in the spotlight once again. The Italian media are reporting that Massimiliano Latorre intends suing the Italian State for damages. Latorre’s complaint is that the Italian State sent him back to India where he risked the death penalty and that the years fighting the accusations have been an obstacle to his career. Latrorre also suffered a stroke while detained in India.
The announcement that Latorre is seeking compensation would go beyond our interests if it were not for the fact that the Navy rifleman is seeking compensation from his employer: the Italian Ministry of Defence and specifically the Italian Navy.
While we have no wish to comment on this specific case, we do, however, believe that it is a potential watershed inasmuch as it represents an example of how an employee can present a legal action against their employer based on damages suffered due to their professional activity.
In the same manner that the Bonatti case shocked all companies with international operations, the Latorre case highlights how exposed companies are to requests for compensation.
While the specific case is practically unique, the simple fact of the matter is that an employee who has a robust claim for compensation, if unable to resolve the question privately, can quite easily resort to legal action.
While the onus has to lie on avoiding situations in which an employee can suffer traumas, physical harm or damage to their career, employers should also fully understand the potential damages resulting in having been cited for damages.
Aside from the financial considerations, there are internal and external reputational issues which have to be taken into consideration. No organisation wants to find itself associated with a case in which its obligations towards employee safety and security is in doubt.
Any perception of a lack of Duty of Care is a serious internal problem, employees will question the organisation’s commitment to protecting the workforce. Externally the organisation’s reputation will suffer and this could lead to questions being asked by clients and suppliers.
At the very least the organisation’s name will be severely damaged and a question mark placed next to it for years to follow.
To better understand the risk of lawsuits and requests for compensation, I spoke with prominent legal expert Enrico Vergani Leader of the Focus Team Shipping & Transport and London resident partner of BonelliErede.
Without focusing on the specific case of the ‘due marò’, what might constitute the grounds for compensation?
Thanks, as a starting point, for avoiding asking me any comment on this somewhat peculiar case and the recent development of the compensation claim now sought by Mr. Latorre against the Italian Navy and the Department of Defence. It is a very complex and delicate matter and venturing into comments without having full knowledge of how the matter developed is as risky as it is useless. Just as a note: although commonly referred as “marò” (which is the lowest level in the hierarchy at sea), Mr. Girone and Mr. Latorre are two “fucilieri Battaglione San Marco”, highly professional, trained and capable members of a specialised corp. As so, I might add, they should have been treated.
Which Italian laws govern an organisation’s Duty of Care towards employees travelling internationally, and what is the risk of a compensation claim being the grounds for an investigation and eventual fine or sanction?
The three pillars of the duty of care of a company in respect of travel risk management are Section 2087 of the Civil Code, Section 6 of Criminal Code (dealing mainly with the issue of jurisdiction, most relevant in the event of a tragic event happening abroad) and Articles 4 and 25-septies of DLGS 231/2001 and its subsequent amendments and enactments. Particular interest should be paid to Section 2087 of the Italian Civil Code which in my view has become almost a Constitutional provision, setting out our principles which need to be filled and implemented by specialised legislation or market standards. The provision is intended to protect not only the “physical integrity” but also the “moral personality” of the employee, which is a rather modern language for a piece of law dating back to 1942.
In the case of investigations, are management at risk and if so what type of sanction might they receive?
Top managers can be easily exposed also to criminal consequences, especially when the lack of awareness of the relevance of a proper management of travel arrangement is reflected in the absence of a proper delegate activity and function within the company chart. In such a scenario the risk of severe sanctions, including criminal charges, is real.
Is compensation regularly sought by employees who have suffered traumas or incidents while travelling internationally on behalf of their organisations?
The request for compensation from employees or their heirs, in the tragic event of a loss of life, is becoming more and more frequent. Add to this the presence of specialised law firms running class actions, where applicable naturally, or dealing with big casualties on a “no win no fee basis”. In the US the “Deep Horizon” case is a clear example, involving employees and technicians involved in travel risk. In our jurisdiction actions of this kind have been brought under the “Al Salaam Boccaccio” sinking, the fire on board the “Norman Atlantic” and the “Costa Concordia” mainly for passengers, however, taking the same attitude and a sharp, aggressive approach. Not being in a position to reply promptly to their questions and requests for clarification is a risk that an efficiently managed company should not be exposed to.
Will this case bring about a rise in the number of compensation cases?
Probably, but without doubt it will have a big impact on the media and could awaken claimants who have been dormant or unaware of what their rights are under current legislation.
What should organisations be doing to avoid similar claims?
This is without doubt a matter to be addressed promptly by companies, as well as by governmental institutions, which owe their dependents the same Duty of Care any person involved in potentially dangerous trips or activities abroad is entitled to. The issue in September 2021 of the UNI/ISO31030 standard on Travel Risk Management offers stakeholders an effective instrument to tackle and manage this risk, being at the same time pro-active in respect of an approach to corporate governance, problem solving and social management. Applying the guidelines will not only assist in avoiding trouble but will also help in developing a modern, efficient and ESG oriented corporate approach to the issue.
*Member of Advisory Board Pyramid Temi Group
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