Author: Yesim Tokgoz
In Turkey, although labor law is known as the law that protects employees, all it requests from the employers is to keep their records in line with legislation and jurisprudence, adhere to their legal obligations, and demonstrate such actions through documentation. However, it is true that some actions are difficult to prove. Within this scope, maybe one of the hardest responsibilities to prove is employers' protection obligations towards their employees, arising from occupational health and safety matters. In this article, we will shed light on the provision of occupational health and safety obligations of employers, and their legal obligations and criminal repercussions in light of the decisions of the Court of Cassation1.
Legal Regulations
After the Law on Occupational Health and Safety ("LOHS"), numbered 6331, and the Regulation on the Occupational Health and Safety Services ("Regulation") entered into force, a new era began in Turkey. These basic regulations were followed by the Regulation on the Procedure and Principles of the Employee's Education regarding Occupational Health and Safety, Regulation regarding Occupational Health and Safety for the Temporary and Fixed Term Works, Regulation regarding the Mission, Authority, Responsibility, Education of the Occupational Safety Experts, Regulation regarding the Shutdown, Regulation on the Occupational Health and Safety Services Realized by the Employers and Vice Principal in the Workplaces, Regulation on the Risk Evaluations. All of these regulations were drafted in accordance with the principles of the European Union and International Labor Organization, and lead to many innovations2.
Obligations of Employers Arising from Occupational Health and Safety
The employer is responsible to ensure that all of the necessary precautions fit for each specific purpose in order to protect its employees' physical and mental integrity by providing all of the necessary equipment and personal protection materials, making them utilize the same appropriately, prepare an emergency plan, apply the planned precautions, and enforce the established rules. In addition, employers must educate their employees, subcontracted workers, and temporary workers, and must give sufficient and affective information regarding the occupational health and safety precautions and rules, evaluate and analyze the risks that may cause accidents during work, audit their employees and workers while they are working, and employ the obligatory personnel that the legislation so requires. Otherwise, administrative fines and shutdowns shall be applicable pursuant to Article 26 of LOHS, and employers shall have indemnity obligations.
Employers shall take all precautions that intelligence, science, and technology enable. Taking only reasonable precautions is not sufficient for employers to fulfill their obligations. Historical negative habits and traditions of business life cannot affect employers' obligations. Within this scope, employers cannot avoid their obligations by stating that they could not take the necessary precautions because of the lack of experience, lack of knowledge regarding scientific and technologic improvements, bad economic conditions, or that similar plants do not take any such precautions3. Furthermore, employers cannot refrain from taking precautions, assuming that they are unnecessary when their employees work prudently, or that their employees are experienced enough4.
Legal Responsibility of the Employers
National and international legislation encumbers employers with respect to their obligations arising from occupational health and safety. The scope of this liability is very wide. Apart from the employer, vice principals, workplace doctor, and occupational safety experts have legal responsibilities; however, pursuant to Article 5.6 of the Communiqué, to charge an employee with the management of occupational health and safety services, or to transfer the authority to an external joint health and safety unit, do not relieve the employer of its responsibilities.
An employee who suffers physically and/or mentally is entitled to demand indemnification from his/her employer that s/he could not find compensation of through the Social Security Institute ("SSI"). If the employee dies, his/her relatives are entitled to request compensation for loss of support and personal compensation. In addition, the SSI is entitled to revoke the insurance payments that it made to the insurer or right holders, to the employer5.
On the other hand, the basis and the scope of the employer's legal responsibilities are contradictive. The Court of Cassation has given contradictory decisions, and there is divergence in the doctrine regarding whether the employers have fault-based liability or absolute liability6. Therefore, we would like to underline that every situation shall be evaluated within its own circumstances and in the scope of its own occupied area and risks.
Employer's Fault Based Liability
Pursuant to the recent decisions, liability that has arisen from the breach of occupational health and safety is based on fault. The negligence or intention of the employer to fulfill his/her obligations related to occupational health and safety is deemed as fault7. Furthermore, employers are obliged to take not only the precautions regulated by the legislation, but also all kinds of measures that science and technology enables. Therefore, if employers do not take extensive measures and are not prudent, they shall bear all of the damages of their employees8.
Employer's Absolute Liability
Organizational Obligations
If the reason for an employee's damage is another employee, then the employer is held liable pursuant to Article 66 of the Turkish Code of Obligation9.
Liability Arisen from Danger
Employers are liable for all damages that occur due to the facilities of the significantly dangerous plants. Pursuant to Turkish Code of Obligation Article 17, a significantly dangerous plant is determined as a plant that is most likely to cause severe damages frequently, and even if it is assumed that all types of precautions are taken by an expert who is very prudent, this plant is so deemed.
Liability that arises from danger is the heaviest absolute liability. Pursuant to the Court of Cassation decisions, in such plants, the employers are held liable even if they fulfill every precaution that has arisen from their duty of care. However, we would like to emphasize that if the damage has not arisen from a danger that is unique to the plant, which means that it occurred due to other reasons that, when combined together, the proper causal link does not exist, the liability of the employer does not exist10.
Causal Link
Both in fault-based liability and absolute liability, the causal link may be corrupted by force majeure, the fault of the damaged party, and third parties. If the employer proves that the casual link was corrupted, then s/he cannot be held liable11. In other words, it can be said that, the employer can avoid liability only by proving the corruption of the causal link between the negligence of occupational health and safety precautions, as well as the damages12.
The Principle of Inevitableness
Pursuant to Article 21 of Social Insurance and General Health Insurance Code numbered 5510, evaluation of the employer's responsibility shall be made in accordance with the principle of inevitableness.
Inevitableness is the realization of an occupational accident or occupational illness that occurs despite having taken every kind of precautions in accordance with the current scientific and technical rules. If the employer did not take these possible precautions, the principle of inevitableness shall not be applicable.
The factors of inevitableness is i) an event that occurred beyond control, ii) breach of a rule or contract, iii) existence of the causal link, or iv) unavoidability of the fact.
Unavoidability means the breach of a behavior or an obligation arising from a contract, even if every type of measure has been taken. In other words, it is not possible to apply the principle of inevitableness, when the event is unavoidable, but the breach of the rule or contract is evitable. For instance, if a nail breaks and harms the eye of a construction worker while he was hammering a nail to a concrete wall, the break of the nail is unavoidable, but the damage to the worker's eye is not inevitable since it could have been avoided through the use of wearing safety/protection glasses. Thus, in such cases, the principle of inevitableness shall not be applicable, and the employer shall be held liable13. Within this scope, scientific and technical developments grant the opportunity to prevent such inevitable situations.
Employer's Criminal Repercussions
An employer's criminal repercussions rely on fault-based obligation, which means that in order that such responsibility lies with an employer, a behavior as a result of a fault must exist. In labor law, in accordance with the principle of individual criminal responsibility, only real persons are criminally liable. Persons who are involved with taking necessary measures shall be determined by internal directives. Legal entities cannot be subject to criminal responsibility.
If the involved persons prove that they fulfilled all of their obligations by, for instance, educating their employees, providing necessary personal protection equipment, auditing their usage in the workplace, and submitting documentation regarding their actions, criminal liability shall not arise. On the other hand, however, in the case of a breach, the involved persons shall be punished, even with imprisonment.
Conclusion
Employers must keep current with scientific and technological developments, take all kinds of measures that are possible in the relevant occupied area, and, thereby, improve themselves. Otherwise, they will hold first position in being held liable, and their administrative, criminal and legal responsibilities are far reaching. Pertaining to the 2016 statistics of the Community of Occupational Health and Safety Professionals14, 286.68 employees suffered occupational accidents, and 597 employees contracted occupational illnesses. These numbers may only decrease by affective measures and policies applied by deliberative employees.
1 Alper Uzun, The Obligations of the Employer Regarding Occupational Health and Safety, Erdem&Erdem Newsletter, March 2011, http://www.erdem-erdem.av.tr/publications/law-post... (Access Date: 02.03.2018)
2 Alper Uzun, The Code of Labor Health and Safety and Its Purview, Erdem&Erdem Newsletter, June 2012, http://www.erdem-erdem.av.tr/publications/law-post... (Access Date: 02.03.2018).
3 Decision of 21st Chamber of Court of Cassation dated 24.03.2016, numbered 2016/4174 E. and 2016/5185 K.
4 Decision of 21st Chamber of Court of Cassation dated 16.02.2015, numbered 2014/23286 E. and 2015/2550 K.
5 Prof. Dr. Haluk Hadi Sümer, İş Güvenliği ve Sağlığı Hukuku, Ankara2018
6 Decision of General Chamber of Court of Cassation dated 09.10.2013, numbered 2013/21-102 E. and 2013/1456 K.
7 Decision of General Chamber of Court of Cassation dated 12.02.2014, numbered 2013/21-586 E. and 2014/95 K.
8 Decision of 21st Chamber of Court of Cassation dated 12.02.2015, numbered 2014/10603 E. and 2015/2375 K and dated 24.03.2016, numbered 2016/4174 E. and 2016/5185 K.
9 Assoc. Prof. H. Murat Develioğlu, Organizational Liability Added to Art. 66 of the Turkish Code of Obligations Regarding Employer's Liability, Erdem&Erdem Newsletter, July 2016, http://www.erdem-erdem.av.tr/publications/law-jour... (Access Date: 02.03.2018).
10 Decision of General Chamber of Court of Cassation dated 18.03.1987, numbered 1986/9-722 E. and 1987/203 K.
11 Decision of General Chamber of Court of Cassation dated 20.03.2013, numbered 2012/21-1121 E. and 2013/386 K.
12 Decision of 21st Chamber of Court of Cassation dated 08.07.2014, numbered 2013/21984 E. and 2014/16206 K.
13 Decision of 21st Chamber of Court of Cassation dated 16.02.2015, numbered 2014/21190 E. and 2015/2544 K.
14 TUISAG, Yıllık İş Kazaları İstatistikleri, https://tuisag.com/yillik-is-kazalari-istatistikle... (Access Date: 02.03.2018).
