Work accident and employer liability in Turkish labor law

Ensuring occupational health and safety is primarily the responsibility of employers. Of course, employees are also obliged to act in accordance with occupational health and safety, but the employer has many obligations to ensure occupational health and safety. Although these obligations are determined by law in detail and are aimed primarily at deterrence and protection of employees from work accidents and occupational diseases, penal sanctions are quite certain and clear in cases where obligations are not fulfilled. In accordance with the law, the employer is obliged to take all measures specified in the law to prevent occupational diseases in the workplace and to minimize the possibility of occupational accidents, and at the same time to follow all technological developments that will contribute to occupational health and safety, even if they are not specified in the law, and to implement them for employees in the workplace. In other words, since it is not included in the law, the employer cannot escape liability for technological developments that it has not implemented. The obligation of the employer to follow this technology is actually an indication that the Occupational Health and Safety Law dynamically forces the employer to prevent occupational diseases and ensure occupational safety. Within the framework of social security law, if the event that causes the worker to be harmed both mentally and physically has occurred in one of the cases specified in Article 13 of the Social Insurance and General Health Insurance Law and if there is a causal link between the damage and the event, the conditions of the work accident occur. It is accepted. Here, in order for the employer to be responsible for the work accident, there must be a suitable causal link between the incident that happened to the employee and the work performed. In cases where the causal link is interrupted, the employer is also liable. In case of gross fault of the worker, force majeure or the gross fault of the third party, the causal link is broken. According to Article 417 of the Turkish Code of Obligations, the employer's obligations are regulated to take all necessary measures to ensure occupational health and safety, and according to Article 4 of the Occupational Health and Safety Law, the employer's obligations to ensure the health and safety of its employees are regulated. In case of violation of these obligations, the employer may be held liable both to the insured employee who suffered an accident, to those who are deprived of the support provided by the employee if the employee is dead, and to the Social Security Institution. According to Article 417 of the Turkish Code of Obligations regarding the protection of the employee's personality, the employer is responsible for all kinds of faults due to occupational diseases and work accidents. The scope of responsibility is determined by the nature of the work. Here, taking into account Article 51 of the Turkish Code of Obligations, the severity of the employer's fault is taken into account when determining what the employer's liability is. In accordance with Article 49 of the Turkish Code of Obligations, a person who causes damage to another person through an illegal and faulty act also has the obligation to compensate for this damage. Workers who suffer damage due to occupational disease or work accident, or the relatives of the deceased worker who are deprived of support, can claim the material and moral damage they have suffered from their employer. The main purpose of compensation lawsuits filed by workers or workers' relatives regarding damages arising from work accidents is to collect the damages that are not covered by the Social Security Institution of the insured or, if the insured is deceased, of the people who are deprived of their support. In compensation cases, the remaining life of the insured is first calculated according to the remaining life expectancy table. Afterwards, the worker's net wage is determined by adding social benefits that are continuous and can be measured financially. If the worker is injured, the disability rate must be determined. In case of death of the worker, the incapacity rate is accepted as 100%. The amount of financial compensation is determined after the determined calculation criteria. If there is a common fault of the worker in the occurrence of the accident, a discount is made from the compensation in proportion to this fault. A reduction in compensation is also made depending on the possibility of remarriage of the surviving spouse. The portion of the benefits provided by the institution to the insured person or to the beneficiaries of the deceased person due to a work accident, which can be recoursed to the responsible employer, is also deducted from the amount of damage. The amount of financial compensation resulting from a work accident is also calculated in this way. In determining the non-pecuniary compensation arising from a work accident, the characteristics of the event that occurred are taken as basis in accordance with Article 56 of the Turkish Code of Obligations. Issues such as the way the accident occurred, the fault of the parties to the accident, the rate of incapacity for work and the magnitude of the pain experienced are important in determining the non-pecuniary compensation rate. The employer who causes a work accident by ignoring or incompletely fulfilling his obligations regarding occupational health and safety has criminal liability under the Turkish Penal Code for his actions. If the employer is a legal entity, then criminal liability belongs to the person or persons who manage the legal entity and are responsible for taking measures and giving orders. Administrative fines included in the Occupational Health and Safety Law mean serious sanctions for employers who do not fulfill their responsibilities. In particular, imposing fines regularly every month until the malfunction or negligence is corrected, rather than one-time, provides a serious deterrent for the employer. In addition, the work stoppage provision in the same law is also important to prevent serious life-threatening in this area. In order to prevent workers from suffering in case of work stoppage, the law guarantees the rights of workers during the work stoppage. Although the issue of occupational health and safety is for preventive purposes, in cases where it cannot be prevented, the material and moral compensation and the Social Security Institution's right of recourse enable the employer to take all measures completely and implement the measures regularly without delay.