Condenan a una ETT por no adoptar medidas para impedir un accidente laboral

Condenan a una ETT por no adoptar medidas para impedir un accidente laboral

La sentencia considera que la empresa no protegió a la trabajadora “frente a sus propios descuidos e imprudencias no temerarias”, tal como exige la ley
24 Septiembre 2015

La Sala de lo Social del TS ha condenado a una ETT a indemnizar a la accidentada. Reitera la doctrina de que para enervar la responsabilidad, el empleador ha de acreditar haber agotado toda diligencia exigible, más allá –incluso– de exigencias reglamentarias y considera que la empresa no protegió a la trabajadora “frente a sus propios descuidos e imprudencias no temerarias”.

La ETT tendrá que pagar a la mujer, de forma solidaria con la empresa en la que trabajaba, una indemnización de 184.021 euros, más los intereses desde la fecha de presentación de la demanda, de los que la aseguradora abonará 90.000 euros.

El TS estima así el recurso de casación interpuesto por la trabajadora y anula la sentencia del TSJ de Madrid que rechazó la demanda, atribuyendo el accidente al cansancio físico y mental de la trabajadora.

La mujer firmó tres contratos con la ETT para trabajar como manipuladora en una empresa que fabrica y diseña material de cartón. El accidente se produjo cuando, sin que se conozca la causa, -se supone que para meter bien la pieza de cartón-, introdujo la mano por debajo de la protección de la máquina contracoladora y se le quedó atrapada entre los rodillos que prensan el cartón. Otro trabajador paró la máquina, accionando los botones para casos de emergencia, pero la mujer no pudo sacar la mano hasta que separaron los rodillos. El accidente le produjo un “grave traumatismo por aplastamiento del miembro superior izquierdo”.

La empresa atribuyó el accidente a una distracción o falta de atención por parte de la trabajadora que metió la mano por debajo de la máquina sin respetar la limitación impuesta por la protección fija.

La Sala de lo Social estima ahora el recurso de casación interpuesto por la trabajadora y anula la sentencia del TSJ de Madrid, de 30 de diciembre de 2013, que rechazó la demanda en la que solicitaba una indemnización por los daños y perjuicios derivados del accidente de trabajo y absolvió a las dos empresas y a la aseguradora. La sentencia del TSJ de Madrid, que confirmó la de instancia, mantenía que no hubo responsabilidad empresarial porque la máquina era la adecuada y la trabajadora había recibido la correspondiente formación e información para su manejo. Se apoyó en el informe pericial que atribuyó el accidente, ocurrido en la última hora de la jornada del viernes, al cansancio físico y mental de la trabajadora.

Sin embargo, la Sala de lo Social, en esta sentencia que reitera doctrina, considera que el empresario no ha cumplido con su obligación de proporcionar a la trabajadora una protección eficaz en materia de seguridad e higiene al no acreditar que ha adoptado “las medidas de protección necesarias, cualesquiera que ellas fueren” para impedir el accidente; puesto que no protegió a la trabajadora “frente a sus propios descuidos e imprudencias no temerarias”.

La sentencia, de la que ha sido ponente el magistrado Fernando Salinas, afirma que corresponde a la trabajadora, según sus posibilidades, observar en su trabajo las medidas legales y reglamentarias de seguridad. Añade que la empresa tiene que efectuar una vigilancia idónea sobre el cumplimiento por parte de los trabajadores de las normas de prevención, “no tratándose de una mera obligación formal que se cumpla justificando poseer unos detallados planes de seguridad y salud si no se constata que los mismos son efectivamente aplicados y que los concretos trabajadores han sido plenamente instruidos, ni basta con entregar equipos de protección u otros medios adecuados si no se vigila eficazmente su utilización tolerando su no empleo o su inadecuado uso”.

La Sala de lo Social, confirmando la doctrina de la Sala desde la partir de la STS de 30 de junio de 2010  y reflejada en art. 96.2 LRJS, declara que los codemandados –empresa de trabajo temporal y empresa usuaria- no han acreditado “haber agotado toda diligencia exigible, más allá -incluso- de las exigencias reglamentarias” para impedir el accidente. En este sentido afirma que no ha bastado con la formación teórica y práctica que la empresa de trabajo temporal impartió a la trabajadora y extiende la responsabilidad a la empresa usuaria por no agotar tampoco toda la diligencia exigible en el uso de la máquina, que aunque formalmente pareciera idónea, no se detiene automáticamente cuando se atasca y que permite introducir, aunque sea por lugar inadecuado, hasta un brazo de la trabajadora sin detenerse.

Fuente: Noticias jurídicas

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Las condiciones de trabajo deben ser permanentemente monitoreadas y evaluadas por los jefes de personal a través de auditorias continuas al buen uso de los equipos y elementos de protección personal ya que es conocido por todos que crear la cultura del auto cuidado es todo un reto que trasciende a las normas dadas por las empresas ya que como trabajadores se genera cierta confianza en el uso de los equipos lo cual puede favorecer los accidentes laborales terminando finalmente perjudicados tanto el empleador como el trabajador.Es conveniente incluir el termino de "corresponsabilidad" .

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Si la máquina era la adecuada, no debería permitir el acceso a partes en movimiento. Con un simple sistema de protección detendría la máquina ante un acercamiento peligroso y, finalmente, hay dispositivos que cuando el rodillo encuentra una resistencia al giro mayor a la que puede presentar el proceso, no solo detiene la marcha sino que hace un pequeño movimiento de retroceso para evitar que permanezca el atrapamiento. Como se puede apreciar, hay varias soluciones técnicas preventivas y además de la capacitación sobre los riesgos a los que está expuesta, debe haber una Supervisión que verifique el cumplimiento de los procedimientos de trabajo dispuestos por la Empresa.

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I just got my ex husband back through the help of Dr Unity love spells Experts. My husband left me for another woman, This was just 3 years of our marriage. The most painful thing is that I was pregnant with our second baby. I wanted him back. I did everything within my reach to bring him back but all was in vain, I wanted him back so badly because of the love I had for him, I begged him with everything, I made promises but he refused. I explained my problem to my friend and she suggested that I should rather contact a spell caster that could help me cast a spell to bring him back , I had no choice than to try it. I messaged the spell caster called dr unity, and he assured me there was no problem and that everything will be okay before 11 hours. He cast the spell and surprisingly 11 hours later my husband called me. I was so surprised, I answered the call and all he said was that he was so sorry for everything that had happened He wanted me to return to him. He also said he loved me so much. I was so happy and went to him that was how we started living together happily again.thanks to dr unity . if you are here and your Lover is turning you down, or your husband moved to another woman, do not cry anymore, contact Dr.Unity for help now..Here his contact, WhatsApp him: +2348055361568 {or} Email him at: Unityspelltemple@gmail.com ,his website:https://unityspells.blogspot.com .

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