Work Accident & Employer’s Obligations & Consequences in the Light of Supreme Court Decisions

WORK ACCIDENT & EMPLOYER’S OBLIGATIONS & CONSEQUENCES IN THE LIGHT OF JUDICIAL DECISIONS

Definition of Work Accident & Employer’s Legal Liability

Definition of Work Accident

Pursuant to Article 3/1/g of the Law No. 6331 on Occupational Health and Safety (‘OHSL’) with the marginal heading ‘Definitions’, an occupational accident is defined as ‘a set of events that occur at the workplace or during the execution of work, causing death or mental or physical injury’.

In addition, Article 13 of the Social Security and General Health Insurance Law No. 5510 (‘SSGSSK’) needs to be addressed in order to qualify an accident as an occupational accident. Likewise, the aforementioned article defines the definition of an occupational accident in more detail and specifies in the first paragraph which situations are considered as occupational accidents.

Pursuant to the relevant provision;

1. While the insured person[1] was at the workplace,
2. Due to the work being carried out by the employer, if the insured is working independently on his own behalf and account, due to the work he is carrying out,
3. The time spent by the insured, who works for an employer, without performing his/her main job due to being sent to another place other than the workplace on duty,
4. During the time allocated for breastfeeding female insured working with a service contract to give milk to her child in accordance with the labour legislation,
5. An occupational accident is considered to be an event that occurs during the transportation of the insured to and from the place of work by a vehicle provided by the employer, and that causes the insured to become physically or mentally disabled immediately or later.

The issue to be considered within the scope of Article 13/1/b of the SSGSSK is to determine whether the accident is related to the task that the employer has given the insured to perform, and whether it occurs during the time it takes to fulfil the task. Situations and circumstances that are not related to the subject of work and arise outside of the duty of the employee who is asked to go to another place on duty are not accepted as occupational accidents.[2]

As an example of Article 13/1/d of the SSGSSK, an accident that occurs when a female employee slips and falls down the stairs in the baby care room at the workplace during the designated times for breastfeeding her baby , or accidents that occur while travelling to and from her child’s place of work are considered work accidents.

As an example of Article 13/1/e of the SSGSSK, accidents that occur while travelling to and from work in a vehicle provided to the insured by the employer and driven by the insured himself/herself will be considered as occupational accidents. In addition, according to the Court of Cassation, an accident caused by a third party vehicle hitting the insured while the insured is waiting for a shuttle bus at the place designated by the employer to go to work is also considered as an occupational accident.

In all cases exemplified in the Article and falling within the scope of the Article, the insured will be able to benefit from the occupational accident insurance benefits and allowances of the Social Security Institution (‘SSI’) . In this sense, in order for the legal liability of the SSI to arise, it will be sufficient to fulfil the conditions set forth in Article 13 of the SSGSSK. If the work accident occurs while the insured is at the workplace, for example, if the worker falls and is injured while playing volleyball in the courtyard[3], which is considered as the workplace, during lunch break, or if the worker is injured by falling into the pit in the courtyard, thisis an occupational accident within the meaning of the SSGSSK.

However, the conditions required forthe employer to be under legal liability arising from an occupational accident, except in cases of strict liability, are as follows:

• An accident at work,
• That this accident is an accident at work,
• The employer is at fault, except in cases of strict liability,
• This results in bodily or mental harm or death; and
• The existence of an appropriate causal link.

Therefore, in order for the employer to be held liable for an occupational accident, not only the occurrence of an occupational accident is not sufficient, but also the accident must be related to the work performed and must occur as a result of it.

However, even if the accident occurs outside the workplace, provided that it is related to the work performed, the employer’s liability must be accepted in the presence of an appropriate causal link. The Court of Cassation also considers the occurrence of the accident within the boundaries of the workplace to be sufficient for the occurrence of an occupational accident within the scope of the SSGSSK. For example, the 10th Civil Chamber of the Court of Cassation[4] stated that since the insured worker was killed at the workplace by his enemies with the intention of revenge, the incident should be considered as an occupational accident within the scope of the SSGSSK. However, the Court of Cassation did not hold the employer liable for the employee being shot at the workplace by a bullet fired from outside.

Circumstance Eliminating the Employer’s Legal Liability: Interruption of the Connection

As mentioned above, in order for the employer’s legal liability to arise in the event of an occupational accident occurring within the boundaries of the workplace, there must be a causal link between the work and the accident. In this context, the situations that break the causal link are listed as follows in accordance with the high court decisions[5] and in the presence of these situations, the employee or his/her beneficiaries will be able to benefit from the benefits and allowances of the SSI, although they will not be able to claim compensation from the employer as a rule.

• Gross negligence of the injured worker
• Gross negligence of the third party
• Force majeure

An occupational accident caused by the worker’s own misconduct or intent will break the causal link, and the worker’s fault is not expected to be at the level of intent.[6 ] However, if the worker’s fault is not of a nature to break the causal link, then it is considered as a reason for a reduction in the compensation to be paid by the employer. In other words, the employer’s liability will not disappear in case of partial fault of the employee.

Likewise, in case of the fault of the third person, full fault is sought. Otherwise, joint and several liability will arise between the third party and the employer.[7]

An example offorce majeure is the occurrence of an occupational accident in the workplace due to an earthquake, flood or landslide, and in such cases, the employer’s liability will not arise. However, even if the employer is not at fault, the employer may be held liable to some extent to the extent required by equity.

Special Cases in terms of Accidents Occurring

• In the subcontractor – principal employer relationship, the accident of the employee of the subcontractor at the workplace of the principal employer is accepted as a work accident in terms of social security law and the principal employer is held responsible together with the subcontractor.[8]
• The accidents suffered by the workers workingwithin the scope of temporary employment relationship at the workplace of the temporary employer are also considered as occupational accidents and both employers are considered jointly and severally liable. [9]
• In the event thatthe employee has an accident at the workplaceduring his/her annual leave, this event is also considered as an occupational accident since the insurance relationship continues.
• In addition, in line with the decisions of the Court of Cassation, heart attacks [10] and suicides [11] occurring in the workplace are also considered as occupational accidents.
• Accidents suffered byinsured persons who are sent abroad on temporary assignment during their assignment are considered as occupational accidents.
• Caseswhere the insured acts with a special purpose are excluded from the cases considered as occupational accidents[12].
• While the accidents thatthe insured suffers while travelling to and from work with the vehicles provided by his/her employer are considered as work accidents, accidents that occur while using his/her own private vehicle or the vehicles allocated by the employer to carry out his/her personal business[13] are not considered as work accidents. [14]

As a result, in the light of the decisions of the Court of Cassation, it is emphasised that the incident must occur within the scope of the service contract and under the control of the employer, and otherwise, it is not considered as an occupational accident.

Obligations of the Employer in Preventing Occupational Accidents

The right and duty to work regulated in Article 49, working conditions and the right to rest regulated in Article 50 and the right to social security regulated in Article 60 of the Constitution are provisions that protect the worker against the risk factor in working life. While these provisions provide protection for workers, they also impose obligations and responsibilities on the employer to ensure this protection. The obligations to be fulfilled by the employer are regulated in the Labour Law No. 4857 (‘Labour Law’) and other legislation:

Turkish Code of Obligations No. 6098 (‘TCO’)

Pursuant to Article 417/2 of the TCO, the employer is obliged to take all kinds of precautions and provide the necessary equipment in order to ensure occupational health and safety at the workplace.

Article 417 of the TCO constitutes an essential performance obligation of the service contract. For this reason, the employee has the opportunity to act according to Article 123 of the TCO against the employer who does not fulfil his protection obligations; he can refrain from performing the work, he can also file an independent performance lawsuit, and he has the opportunity to terminate the service contract.[15]

4857 numbered Obligations of the Employer in terms of Labour Law

The responsibilities of the employer have been expanded with the paragraph[16 ] added to Article 14 of the HR regulating on-call and teleworking in 2016. In this context, the employer has the obligation to inform the employee about occupational health and safety, to provide the necessary trainings, to provide health inspections and to take occupational safety measures for the equipment supplied, even if there is a teleworking relationship. These responsibilities of the employer are valid in all cases where the employee works in line with the instructions and interests of the employer. Regardless of whether the worker is actually present at the workplace or not, the employer’s obligation to take training and precautions continues.

Obligations of the Employer in terms of OHSK

Article 4 of the OHSC regulates the obligations of the employer. The employer is obliged to ensure the health and safety of employees and this obligation extends from preventing occupational risks to providing information and training to employees. In this context

• The employer is obliged to identify the risks in the workplace and take the necessary measures, continuously update and improve occupational health and safety measures.
• In addition, it is also the responsibility of the employer to monitor and inspect the implementation of these measures and to eliminate non-conformities. It is among the duties of the employer to make or have made a risk assessment.
• The employer is required to assign duties by taking into account the suitability of employees in terms of health and safety.

In the relevant article, it is regulated that the employer may receive services from expert persons and organisations outside the workplace in order to fulfil its obligations, but the receipt of these services will not eliminate the employer’s responsibility. Although employees also have obligations in terms of occupational health and safety, this does not alleviate the employer’s responsibilities. At the same time, the employer cannot reflect the cost of occupational health and safety measures to the employees.

Article 10 of the OHSC obliges employers to conduct and have conducted risk assessments in terms of occupational health and safety. The employer is obliged to carry out the necessary controls, measurements, examinations and investigations to identify the risks in the working environment and to determine the extent to which employees are exposed to these risks. This shows that the employer must carry out a continuous inspection and monitoring process in the workplace.

Article 12 of the OHSC regulates the employer’s obligation in the event of a serious, imminent and unavoidable danger in the workplace. Accordingly, in the event of a serious and imminent danger, the employer is obliged to provide a pre-prepared arrangement that allows employees to leave their work and immediately move from their workplace to a safe area. In addition, he must have given the necessary instructions to employees on how to act in these situations.

The responsibilities imposed on the employer in the event of an occupational accident are addressed in Article 14 of the OHSK. Accordingly, the employer is obliged to keep a record of all occupational accidents and occupational diseases that occur. In addition, detailed reports on occupational accidents and occupational diseases must be prepared. Even if an accident at the workplace does not cause injury or death, if the workplace or work equipment is damaged or if there is a potential for damage to the employee or equipment, such incidents must also be examined and reported.

According to the Court of Cassation, the employer is obliged to take all measures required by scientific and technological developments, including technical and medical measures at the workplace, in order to protect the workers he employs from the dangers occurring at the workplace and to protect their life, physical and mental health integrity. [17]

Article 15 of the OHSC clearly sets out the employer’s obligation to ensure health surveillance of employees. This article requires the employer not only to carry out regular health surveillance by taking into account the health and safety risks of employees, but also to carry out health examinations in certain cases (such as recruitment, job change, work accident, occupational disease):

• It is emphasised that employees who will work inhazardous and very hazardous class jobs must obtain health reports certifying their fitness for work. Health reports must be obtained from the workplace physician.
• In less hazardous workplaces with less than 50 employees, health reports can be obtained from public service providers or family physicians, allowing such workplaces to access health services under a more flexible arrangement.

Also in relation to this issue, according to the OHSK, it is mandatory to have a workplace physician in all enterprises that meet the specified conditions. According to the legislation

• All workplaces with 50 or more employees must have a physician within the scope of the workplace medicine regulation .
• In addition, all workplaces with less than 50 employees but classified as less dangerous, dangerous and very dangerous are also obliged to have an occupational physician.

In case of failure to have a workplace physician in the legally obliged enterprises , a penalty is imposed every month according to the hazard class.

The working hours and scope of work of workplace physicians vary according to the risk group:

• The working time of occupational physicians in enterprises in thehigh hazard group is determined as at least 15 minutes per staff per month .
• In enterprises in thehazardous group, the working time of occupational physicians is 10 minutes per employee per month,
• In enterprises in thelow hazard group, this period is determined as 5 minutes per staff per month. These periods are determined to be kept at a minimum level.

According to the OHSL, in addition to the obligation to have a physician at the workplace, there is also an obligation to have an occupational safety specialist. However, this obligation differs according to the hazard class of the workplace and the number of employees:

• While the obligation to have an occupational safety specialistin less hazardous workplaces is only valid for workplaces with more than 50 employees,
• Regardless of the number of employees inhazardous and highly hazardous workplaces, each workplace must have an occupational safety specialist.

The duty periods of occupational safety specialists and the principles regarding their assignment in workplaces are determined according to the hazard class of the workplace:

• At least 10 minutes per employee per month in workplacesclassified as less dangerous ,
• At least 20 minutes per month per employeein hazardous class
• In the very dangerous class, an occupational safety specialist must be assigned for at least 40 minutes per employee per month.

In addition, the conditions for the appointment of a full-time occupational safety specialist for large workplaces are also regulated:

• In less hazardous workplaces, it is mandatory to appoint at least one full-time occupational safety specialist for every 1000 employees for workplaces with 1000 or more employees.
• In hazardous workplaces, for 500 or more employees, at least one full-time occupational safety specialist must be appointed for every 500 employees.
• In very dangerous workplaces, for 250 employees and more employees, at least one full-time occupational safety specialist must be assigned for every 250 employees.

In workplaces where the number of employees is more than an integer multiple of these thresholds, additional occupational safety specialists must be employed according to the remaining number of employees.

In Article 17 of the OHSC, under the subtitle ‘Training of Employees’, the employer is obliged to ensure that its employees receive adequate training on occupational health and safety issues. This article emphasises that employees should be informed about the hazards and risks they may encounter in the workplace and how to protect themselves against these risks. This training should be updated before the employee starts work, when the job changes, when new technology or equipment is used. Trainings are organised in order to ensure that employees are informed about occupational health and safety and are not limited to theoretical knowledge, but can also be given in practice. The contents of the trainings should be determined in accordance with the characteristics and hazard class of the work and should aim to increase the safety of the employees in the workplace. In addition, these trainings should be regularly renewed and updated in accordance with new risks that arise.

In the event that employees working in hazardous and very hazardous jobs cannot document that they have received vocational training related to their work, their employment is prohibited in accordance with the OHSK. Employees who have an occupational accident or occupational disease are required to receive additional training on the causes of the accident or disease, ways of protection and safe working methods before starting work.

Employee Rights: Compensation and Other Claims After Work Accidents

Damages incurred by the worker as a result of an occupational accident or occupational disease are compensated by the SSI and the employer. The payments to be made by the SSI to the worker are made in accordance with the SSGSSK and other legislation issued in relation thereto. In order for these payments to be made to the worker or, in case of his/her death, to his/her beneficiaries, it is necessary and sufficient that an occupational accident or occupational disease has occurred in the sense of social security law.[18]

Workers or their beneficiaries who have suffered an occupational accident or occupational disease may claimtheir material damages and moral damages from the employer who is at fault,except for the payments made by the SSI.

In addition, pursuant to Article 21 of the SSGSSK, the SSI may also claim the payments made to the worker or his/her beneficiaries from the employer in proportion to his/her fault through a recourse action[19] .

Pursuant to Article 97 of the SSGSSK, if workers or their beneficiaries do not claim the benefits and income to which they are entitled from the institution within five years, such claims are time-barred. In this case, the workers can direct their compensation claims, which they cannot claim from the SSI, directly to the employer during the ten-year statute of limitations.[20]

• Material Compensation

A worker who suffers from an occupational accident or occupational disease may have a damage related to the property in his/her assets. At this point, the damage incurred by the employee due to an occupational accident in vehicular traffic may be compensated by the employer who is at fault pursuant to Article 49 of the TCO.

Some of the items of bodily injury that cause a decrease in the assets of the employee are included in Article 54 of the TCO. These are treatment expenses, loss of earnings during the period of inactivity, losses arising from the reduction or loss of the ability to work, and losses arising from the loss of economic future. If the employee proves that he/she has suffered other damages other than those listed in Article 54 of the TCO, he/she may also claim compensation for such damages from the employer.

In the event of the death of the worker as a result of an occupational accident and occupational disease; the items of damages regarding the compensation that the relatives of the worker may claim are listed in Article 53 of the TCO. In this context; funeral expenses, treatment expenses if the death did not occur immediately, losses arising from the decrease or loss of working capacity and the losses incurred by the persons deprived of the support of the deceased (compensation for deprivation of support) can be claimed from the employer by the relatives of the employee.

• Moral Compensation

An employee who suffers physical damage as a result of an occupational accident or occupational disease may claim moral compensation in addition to material compensation, if there are conditions. Under Turkish Law, moral compensation can be claimed for both physical damages and damages to personal rights.

However, pursuant to Article 56/2 of the TCO, in the event of the death of the employee or the existence of severe bodily harm, the relatives of the employee may also claim moral compensation from the employer, if the conditions are met.

In order for the employee or his relatives to claim moral compensation from the employer, as a rule, the employer must be at fault.[21]

• Criminal liability

Criminal liability is personal. Therefore, while civil liability is on the employer, who is a real person or legal entity, criminal liability can only be in question for a real person. Accordingly, within the framework of the workplace organisation, it is determined who/who has which authorities and duties in terms of occupational health and safety and who/who is responsible according to the way the accident occurred. In addition, criminal liability is a liability based on fault.[22]

Whether negligence, conscious negligence and probable intent should be applied in the criminal liability of employers arising from occupational accidents is a matter of debate. Considering the recent decisions of the Court of Cassation, it is seen that there is an increasing tendency towards the evaluation of conscious negligence as the moral element of the offence in determining the criminal liability of employers arising from occupational accidents. Within the scope of the Supreme Court decisions, employers may be sentenced to imprisonment from 2 years to 6 years in these cases. If the accident in question causes the death of more than one worker or the death of one worker and injury to more than one worker, the upper limit of the relevant penalty can be up to 15 years. [23]

Notification of Work Accidents: Process and Legal Obligations

Pursuant to Article 14 of the OHSK, the employer is obliged to keep a record of all occupational accidents and occupational diseases, to carry out the necessary investigations and to prepare reports on these incidents. In addition, the employer is obliged to investigate and prepare reports on incidents that occur in the workplace but do not cause injury or death but cause damage to the workplace or work equipment or have the potential to cause damage to the employee, workplace or work equipment.

The employer is obliged to notify the SSI within the specified period in the following cases:

• Work accidents within three working days after the accident,
• Occupational diseases notified to him/her by health service providers or workplace physicians within three working days from the date of learning,
• Occupational physicians or health service providers shall refer cases diagnosed as occupational diseases to health service providers authorised by SSI. Health service providers shall notify the SSI of the occupational accidents referred to them and authorised health service providers shall notify the SSI of the cases diagnosed as occupational diseases within ten days at the latest.

Notifications must be sent to the SSI electronically or by mail using the Occupational Accident and Occupational Disease Notification Form attached to the Regulation on Social Insurance Procedures .

The penalty for not reporting an occupational accident or late notification is regulated in Article 26/1-e of the OHSK. Administrative fine rates vary according to the number of employees and the dangerous work status of the workplace. Accordingly, administrative fines for 2024 are divided into three categories:

Workplaces with less than 10 employees

Workplaces with 10 to 49 employees

Workplaces with more than 50 employees

In Less Dangerous Workplaces (Same amount) : 24.607 TL

In Less Dangerous Workplaces (Same amount) : 24.607 TL

In Less Dangerous Workplaces (increased by 50%) : 36.910 TL

Dangerous Workplaces (increased by 25%) : 30.758 TL

Dangerous Workplaces (increased by 50%) : 36.910 TL

Dangerous Workplaces (increased by 100%) : 49.214 TL

Very Dangerous Workplaces (increased by 50%): 36.910 TL

Very Dangerous Workplaces (increased by 100%): 49.214 TL

In Very Dangerous Workplaces: (Increased by 200%): 73.821 TL

In addition, pursuant to Article 13/2 of the SSGSSK, the employer is obliged to report the occupational accident to the local law enforcement authorities immediately and to the institution within three working days following the accident at the latest, and 4/I-b (Bağ-KUR) insured persons are obliged to report the occupational accident to the SSI directly or by registered mail within three working days following the day on which the illness does not prevent notification, provided that it does not exceed one month.

The important point at this point is that the employer should take action after the employer is notified of the occupational accident and occupational disease by the health service providers or the workplace physician.

Conclusion

In cases of work accident or occupational disease, workers have the right to claim compensation from the SSI and the employer. SSI is obliged to make payments to workers in cases of work accident or occupational disease. However, in addition to the payments made by the SSI, workers can also claim material and moral damages from the employer. In addition, if the employer is at fault; SSI can claim the payments made by the employer through a recourse action. Within the scope of the SSI’s right of recourse from the employer, there are items such as workers’ financial compensation claims, treatment expenses and loss of earnings. In addition to these issues; in the event of the death of the worker, his/her relatives can claim funeral expenses and compensation for deprivation of support, and moral compensation can be claimed by workers in cases of physical damages or violation of personal rights.

Regarding occupational health and safety, it is important that employers fulfil their obligation to protect the health and safety of employees in accordance with the legislation. In this context, it is important to conduct risk assessments, to provide regular training to employees, to update occupational health measures on a regular basis, and to conduct business partnerships with occupational health and safety experts who are experts in their fields, especially in workplaces with dangerous and very dangerous classes. In addition, the employer must fulfil the obligation to record occupational accidents in writing and notify the SSI and law enforcement agencies. It is extremely important for employers to strictly comply with these obligations both to avoid legal consequences and to ensure the safety of employees. However, there is also the risk of administrative fines for employers who fail to fulfil their obligations.

As can be seen, within the scope of the obligation of employers to look after their employees, the relevant legislation imposes extensive obligations on employers within the scope of taking occupational health and safety measures. In case of non-compliance with these obligations and/or even in cases where employers are not at fault, serious legal and administrative sanctions may be imposed on employers. This situation is undoubtedly an extension of the constitutional right to social security, and a regime in which the rights and interests of workers are protected to such an extent constitutes the basis for a fairer order.

However, in practice, it is sometimes observed that employers may be victims of the principle of interpretation in favour of the employee. In this respect, it may be beneficial for employers to take some other measures in addition to their obligations arising from the legislation in order to prevent concrete incidents in this regard:

• As discussed in this memorandum, in the light of both the legislation and the decisions of the Court of Cassation, there should be a relationship between the occupational accident and the management/instruction of the employer. In this context, for example, in cases where the employee leaves the workplace during the lunch break due to personal affairs, this situation should be recorded with excuse leave minutes etc.

• In addition, it is recommended to monitor the entry and exit hours of workers more effectively through Personnel Attendance Control Systems, especially for workers working in hazardous / highly hazardous classes such as construction sites, workshops or factories, and to ensure the security of work areas with workplace camera systems. At this point, it should be kept in mind that the employer’s liability will not arise or will be reduced according to the situation in cases of gross negligence of third parties or full negligence of the employee.

• As another precautionary measure, it is important that a Disciplinary Regulationcontaining disciplinary sanctions within the scope of ‘not using the clothing, protective materials, equipment and machinery provided to them properly’, ‘doing any other work without the knowledge of his/her supervisor, without the authorisation given to him/her’, ‘leaving the workplace without informing his/her immediate supervisor and/or making rounds without the approval of the workplace doctor (except in emergencies) ’ should be notified to each worker. In case of repeated violations, defence may be requested from the employee within the scope of disciplinary processes and in case of continuous non-compliance with disciplinary rules, insensitivity to occupational health and safety rules may result in termination of the employment contract.

The complete fulfilment of the above-mentioned measures may reduce or prevent possible legal risks for the employer.

[1] Pursuant to Article 3/6 of the SSGSSK, an insured is a person for whom premiums are required to be paid in terms of short and/or long-term insurance branches or a person who is required to pay premiums on his/her own behalf.

[2] Topaloğlu, S. and Çınkı, F. İş Kazaları ve Meslek Hastalı p. 114

[3] Within the scope of the regulation in the SSGSSK, most of the accidents that may occur in the main workplace, subsidiary workplace, annexes and vehicles are considered as occupational accidents. Regardless of the cause, every accident that happens to the employee during the time he/she is at the workplace will be considered as an occupational accident.

Güzel, A./ Okur, A/ and Canikoğlu, N, Social Security Law, p.332

[4] Sarper Süzek, İş Hukuku, 10th Edition, Beta Publications, Istanbul, 2024, p. 446.

[5] ‘On the other hand, the situation that will release the employer from liability due to the damaging event is the interruption of the appropriate causal link between the action and the damage incurred. As in no-fault liability, the causal link in fault liability may be severed due to force majeure, gross negligence of the injured party and the third party. If it is proved that the appropriate causal link has been severed, it is not possible to go to the employer’s responsibility.’ (HGK, 20/03/2013 dated, 2012/21-1121 Esas, 2013/386 Karar) (Lexpera) [Access Date: 22.11.2024]

[6] 9th Civil Chamber of the Court of Cassation, 11.3.1983 T., 27092/3823 K. ‘ …in the work accident that occurred while the plaintiff worker was working at the defendant employer’s workplace and resulted in a 40% loss of 40% as a result of an injury to his right leg, no non-pecuniary damages were awarded in favour of the worker because it was determined that he was fully at fault.’

[7] 21st Civil Chamber of the Court of Cassation, 16.05.1996 T., 1996/3113 E., 1996/2377 K. “The accident in question occurred as a result of the collision of another vehicle coming from the opposite direction with 100% fault . As a result of this accident; upon the death of the inherited worker, his heirs filed a lawsuit for compensation. The Court of Cassation ruled thatthe accident in question occurred as a result of the fault of the third party, therefore the causal link was severed and it would not be possible to hold the employer responsible for the accident.

[8] Y9HD.13.02.2018 T., 2018/404, K.2018/1141 ‘The main … is jointly and severally liable with the sub-employer for the material and moral damages that the sub-employer’s workers will suffer due to occupational accidents or occupational diseases. For this reason, the employee of the sub-employer who suffers from an occupational disease or occupational accident or his heirs in case of his death may file a lawsuit for compensation against the main employer and the sub-employer, who are jointly liable, or only against the main employer or the sub-employer. On the other hand, the agreement between the main employer and the sub-employer stipulating that the responsibility for material and moral compensation due to occupational accident or occupational disease belongs to the sub-employer does not bindthe employee or heirs who are not a party to this agreement “

[9] Canan Erdoğan, ‘The Employer’s Obligation to Take Occupational Health and Safety Measures in Temporary Employment Relations ’, BHD, Year 2, Issue 2017/2, pp. 127-158.

[10] YHGK, E. 2016/816, K. 2019/457, T. 16.04.2019, (lexpera).

‘[…]there is no dispute that the insured’s employment at the time of the heart attack was based on a service contract, and that the event resulting in death occurred after the heart attack… the fact that an event is not accepted as an occupational accident by the institution or the employer, whether it occurs due to external factors or suddenly, will not require the event not to be considered as an occupational accident in the face of the clear provision of the law. Because; as it is clearly stated in the law, it is necessary and sufficient that the damaging insurance event has occurred in any of the cases and situations listed in the law. … the death of the insured due to a heart attack while working at the workplace is an event that complies with the situation of ‘occurring while the insured is at the workplace’ in subparagraph (a) of paragraph (A) of Article 11 of the Social Insurance Law No. 506, as well as thesituation of ‘occurring due to thework carried out by the employer’ in subparagraph (b) of the same article; it must be considered as an occupational accident […]’

[11] Judg. 10th HD, E. 2004/4465, K. 2004/6425, T. 05.07.2004, (legalbank): ‘[…] Accordingly, there is no doubt that the act of suicide, which caused the insurance event as described in Article 11/A-a of the Law No. 506, occurred in the workers’ dormitory, which is an annex of the workplace and therefore considered as a workplace, in other words, while the insured was “at the workplace” and was an occupational accident. In this respect, the court decision that does not consider the incident as an occupational accident is inappropriate. To explain in this context, the situations stated in Article 11 of the Law No. 506 as constituting an occupational accident are mostly related to the work or the execution of the work. This is because the situations listed in Article 11 are situations where the employee is under the authority and responsibility of the employer […]’

[12] T.C. Turkish-German University, Institute of Social Sciences, Department of Private Law, ‘The Concept of Work Accident in Turkish and German Social Security Law,’ Master’s Thesis, Şeyma Zehiroğlu, Consultant: Assoc. Prof. Dr. Esra Yiğit, Istanbul, July 2023 p. 60.; Judg. 21st HD, E. 2015/18158, K. 2016/9853, T. 14.06.2016, (lexpera):‘[…] although there is no dispute that the deceased worked as an insured in the defendant’s workplace, since it is understood that the reason and purpose of going to the province does not meet the above-mentioned (work accident) conditions, that the deceased went for his own personal business and died due to an accident, it was inappropriate for the court to decide to accept the case instead of deciding to reject the lawsuit […]’

[13] Tuncay/Ekmekçi, age, p. 423.

[14] Judgement. 21st HD, E. 2015/14827, K. 2015/19327, T. 02.11.2015, (lexpera): ‘… In our concrete case, in summary, in order for an event to be considered an occupational accident, the damaging event must occur during the performance of the service contract, that is, under the control of the employer. In this file, there is not enough evidence to prove that the plaintiff, whose main job is the laying of lock-paving stones, was assigned with the driver to buy materials on the day of the incident, and in this context, it was not correct to accept his case while it should be rejected. The court’s decision as written without taking these material and legal facts into consideration is contrary to the procedure and law and is a reason for reversal …’

[15] EREN, Fikret, Borçlar Hukuku Genel Hükümler, Yetkin Yayınları, Ankara, 2017, p. 36.

[16] Article 14 of the HR: “In teleworking, workers cannot be treated differently from their counterparts solely due to the nature of the employment contract, unless there is a substantial reason. The employer is obliged to inform the employee about occupational health and safety measures, to provide the necessary training, to provide health surveillance and to take the necessary occupational safety measures related to the equipment provided by the employee, taking into account the nature of the work performed by the employee with a remote working relationship.”

[17] 10th Civil Chamber of the Court of Cassation – 2020/9056 E., 2021/14262 K., Date: 16/11/2021

[18] Bingöl, Responsibility of the Employer for Insurance, p. 54; Sümer, Occupational Health, p. 90; Süzek, Labour Law, p. 413.

[19] In its decision dated 02.11.2020 and numbered 2019/3182, the 10th Civil Chamber of the Court of Cassation stated: ‘If the occupational accident and occupational disease occurred as a result of the employer’s intention or an act contrary to the legislation on the protection of the health of the insured and occupational safety, the sum of the payments made or to be made in the future by the Institution to the insured or his/her beneficiaries in accordance with this Law and the first advance capital value of the income on the date of commencement, limited to the amounts that the insured or his/her beneficiaries may claim from the employer, shall be paid to the employer by the Institution. With the aforementioned article, the liability of the defendant for the recourse receivable of the Institution is only possible in the presence of fault.’

[20] Süzek, İş Hukuku, p. 414; Orhan Rüzgar – H. Yunus Taş, İş Mahkemelerinin Görevi ve Yargılama Usulü, Dora Yayıncılık, Bursa 2018, p. 134.

[21] Eren, General Obligations, p. 813; Narter, Occupational Health and Safety, p. 711; Süzek, Labour Law, p. 447.

[22] Ömer Ekmekçi and Esra Yiğit, Bireysel İş Hukuku Dersleri, Oniki Levha Yayınları, İstanbul, 2024.

[23] Nuray Kovancı, ‘İş Kazası Sonucu Ölüm Nedeniyle İşverenenin Cezaai Sorumluluğuunun Suçun Morevi Unsuru Bakımında Değerlendirilmesi’; Y12. CD, 30.09.2014, 2013/24333, 2014/19098, UYAP Uygulamaları, 27.11.2024. ‘The worker working in construction work fell to the floor of the leakage by touching the electric wires at a distance of 30 cm horizontally. The defendant A.A. gave a letter to the electricity distribution company operation directorate before the date of the incident stating that ‘I have laid the foundation of my building and the infrastructure of the shop floor is being prepared. However, the electricity pole passing in front of the construction prevents the construction, I request the necessary to be done.’ His petition in the form of ‘…it has been determined that there is a safety violation in the construction you are doing. According to the work programme of our company, the necessary changes will be made in the network and you have to stop the construction…’ It has been accepted that the conditions of conscious negligence have been accepted in the action of the defendant, which took place in the form of continuing the construction despite the defendant’s knowledge of the reply letter.