WORK ACCIDENT

Article 3/1/g of the Occupational Health and Safety Law No. 6331 defines work accident as ‘‘An incident that occurs at the workplace or due to the execution of the work, causing death or rendering the physical integrity mentally or physically disabled’’. In Turkish legal doctrine, it is defined as an incident that causes physical or mental harm to the insured due to a sudden and external factor arising from the work or the requirements of the work while he/she is under the authority of the employer[1].

It should be noted that work accidents differ from each other in terms of the employer’s responsibility in individual work law and social security law. For this reason, it is necessary to mention the elements of work accidents that differ in terms of individual work law and social security law.

The elements of work accidents in terms of social security law are regulated in Article 13 of the Social Insurance and General Health Insurance Law No. 5510. According to the provision;

Work accidents are incidents that occur during the insured’s stay at work,

• If the insured is working independently on his own behalf and account due to work carried out by the employer, due to work carried out,

• During the time spent by the insured working for an employer outside the workplace without doing his actual work due to being sent to another place on duty,

• During the time spent by a breastfeeding female insured to breastfeed her child in accordance with the labor legislation,

• During the insured’s travel to and from the place of work in a vehicle provided by the employer,

and cause the insured to suffer physical or mental disability immediately or later.

This provision includes the situations in which the incidents will be considered as work accidents. In clearer terms, it is stipulated that the Social Security Institution will provide social assistance to the insured or to the beneficiaries in the event of death as a result of the incidents that occur. Accordingly, in order to speak of a work accident in accordance with Law No. 5510, first of all, the person who suffers the accident must be insured. Secondly, the event that causes the accident must occur in one of the above-mentioned situations listed in the Law. Thirdly, the insured who suffers the accident must suffer material and/or moral damage. Finally, there must be a suitable causal link between the accident and the damage.

In order to speak of a work accident in the sense of individual labor law, an additional element must be present in addition to all these elements. The element in question is the existence of a causal link between the accident suffered by the worker and the work he/she does[2]. Therefore, every work accident in the sense of individual labor law is also a work accident in terms of social security law. However, a work accident in terms of social security law may not be a work accident in terms of individual labor law. More clearly, a situation that is considered a work accident in terms of social security law may not result in the employer’s liability in terms of individual labor law. In order for the employer’s liability to be in question, there must be a causal link between the accident and the work performed by the employee and the employer must be at fault in the occurrence of the accident.

Constitutional Court, Decision No. 2013/4701, Dated 23.01.2014[3];

“It is clearly regulated in Article 77 of Law No. 4857 that the employer is obliged to do what is necessary to ensure the health and work safety of employees at the workplace, to provide the conditions in this regard and to have the tools in place without fail. The employer’s liability in work accidents is based on the principle of fault liability. An employee who suffers a work accident or occupational disease as a result of the employer’s acting contrary to his obligation to protect and supervise his employee who is dependent on him has the right to demand compensation for all damages.”

Court of Cassation 10th Civil Chamber, Decision No. 2020/8254, Dated 02.11.2020[4];

“On the other hand, although the objective fault brings the fault liability closer to the strict liability, it cannot transform it into strict liability. Because, except for some exceptions, the existence of fault is a prerequisite for the employer’s liability. However, Article 417/2 of the Turkish Code of Obligations, the Constitution and the provisions of Law No. 6331 have considerably expanded the employer’s liability in accordance with the principle of objective fault liability.”

It should be noted that in the event of a work accident in the sense of individual labor law, the worker may also benefit from social security benefits arising from social security law. In such a case, the Social Security Institution shall recourse to the employer in proportion to his/her fault in terms of the payments made to the worker or to the beneficiaries in the event of his/her death[5].

OCCUPATIONAL DISEASE

In Article 3 of the Occupational Health and Safety Law, occupational disease is defined as “disease resulting from exposure to occupational risks”. In the doctrine, however, it is defined more broadly than in the Law, as conditions that occur due to repeated reasons arising from the nature of the job or the execution of the job and cause the worker to become physically and/or mentally ill[6].

In order for an occupational disease to be in question, first of all, the person suffering from the occupational disease must be insured. In addition, the occupational disease must arise from the nature or execution of the job. Another condition is that the insured has suffered physical and/or mental harm. Finally, there must be a causal link between the damage suffered by the insured and the occupational disease.

COMPENSATIONS ARISING FROM WORK ACCIDENT AND OCCUPATIONAL DISEASES

The important issue in terms of work accidents and occupational diseases that cause material and moral damage to the worker or their relatives is who will cover the damages in question. It should be noted that damages resulting from work accidents and occupational diseases are covered by the Social Security Institution and the employer.

In this context, the Social Security Institution provides temporary disability allowance and permanent disability income to the worker in addition to health benefits. In addition, in cases where the worker dies as a result of a work accident or occupational disease, it makes funeral allowances, marriage allowances and other payments to the beneficiaries. The important point to emphasize here is that the Social Security Institution does not provide compensation for moral damages. In this case, the employer’s liability will come to the fore in proportion to his fault for all damages not compensated by the Social Security Institution. In addition, the Social Security Institution recourses to the employer in proportion to his fault for the payments it makes to the worker or beneficiaries.

Court of Cassation 21st Civil Chamber, Decision No. 2009/9636, Dated 01.03.2010[7];

“Considering this feature, it is concluded that the “income connected from work accident insurance” is a payment for the purpose of covering the material damage by the Social Security Institution by collecting the insurance premiums from the employer. Therefore, the income in question falls within the concept of “compensation” for which the employer is responsible according to general provisions. Compensation lawsuits filed for the compensation of damages resulting from work accidents or occupational diseases essentially aim to compensate for damages not covered by insurance.”

Court of Cassation 10th Civil Chamber, Decision No. 2019/3182, Dated 02.11.2020[8];

“If a work accident or occupational disease has occurred as a result of the employer’s intention or an act contrary to the health protection and work safety legislation of the insured, the total of the payments made or to be made in the future to the insured or the beneficiaries pursuant to this Law and the initial advance capital value on the date the income connected begins, limited to the amounts that the insured or the beneficiaries may request from the employer, shall be paid to the employer by the Institution. According to the said article, the defendant’s liability for the Institution’s recourse receivable is only possible in the event of fault.”

It should be noted that workers or their relatives must apply to the Social Security Institution within five years for the aid and income they are entitled to. Otherwise, such requests become time-barred. In this case, such requests can be directed to the employer within the ten-year statute of limitations. The beginning of the ten-year statute of limitations is the date on which the damage occurred[9].

In addition, in terms of the employer’s liability, the Court of Cassation accepts the liability arising from the contract, as it is more in favor of the employee.

The Court of Cassation 10th Civil Chamber, Decision No. 2020/7594, Dated 12.11.2020[10];

“After these explanations made above, in the second paragraph of Article 417 of the Turkish Code of Obligations No. 6098, which was regulated with a contemporary approach as a counterpart to Article 332 of the Code of Obligations No. 818; By stating that “the employer shall be obliged to take all necessary measures to ensure occupational health and safety at the workplace, to have all necessary tools and equipment in place; and to comply with all measures taken regarding occupational health and safety for the workers” , and by stipulating that “the employer’s actions contrary to the law and the contract, including the provisions above, shall be subject to the provisions of liability arising from non-contractual liability for the death of the employee, damage to physical integrity or violation of personal rights” in its 3rd paragraph, the discussions on the legal nature of the liability arising from the service contract have been concluded, and it has been foreseen that the provisions of liability arising from the contract shall be applied in the compensation of the damages arising from non-contractual liability for “death, damage to physical integrity or violation of personal rights arising from non-contractual liability.”

[1] Bostancı, Y., & Çetinel, T. (2021). İŞ KAZASI VE MESLEK HASTALIĞINDAN DOĞAN TAZMİNAT TALEPLERİNİN USÛL HUKUKUNUN BAZI KURUMLARI BAKIMINDAN DEĞERLENDİRİLMESİ. Süleyman Demirel Üniversitesi Hukuk Fakültesi Dergisi, 11(1), 331-375.

[2]   Bostancı, Y., & Çetinel, T. (2021). İŞ KAZASI VE MESLEK HASTALIĞINDAN DOĞAN TAZMİNAT TALEPLERİNİN USÛL HUKUKUNUN BAZI KURUMLARI BAKIMINDAN DEĞERLENDİRİLMESİ. Süleyman Demirel Üniversitesi Hukuk Fakültesi Dergisi, 11(1), 331-375.

[3] Constitutional Court, Decision No. 2013/4701, Dated 23.01.2014.

[4] Court of Cassation 10th Civil Chamber, Decision No. 2020/8254, Dated 02.11.2020.

[5] Bostancı, Y., & Çetinel, T. (2021). İŞ KAZASI VE MESLEK HASTALIĞINDAN DOĞAN TAZMİNAT TALEPLERİNİN USÛL HUKUKUNUN BAZI KURUMLARI BAKIMINDAN DEĞERLENDİRİLMESİ. Süleyman Demirel Üniversitesi Hukuk Fakültesi Dergisi, 11(1), 331-375.

[6] Bostancı, Y., & Çetinel, T. (2021). İŞ KAZASI VE MESLEK HASTALIĞINDAN DOĞAN TAZMİNAT TALEPLERİNİN USÛL HUKUKUNUN BAZI KURUMLARI BAKIMINDAN DEĞERLENDİRİLMESİ. Süleyman Demirel Üniversitesi Hukuk Fakültesi Dergisi, 11(1), 331-375.

[7] Court of Cassation 21st Civil Chamber, Decision No. 2009/9636, Dated 01.03.2010.

[8] Court of Cassation 10th Civil Chamber, Decision No. 2019/3182, Dated 02.11.2020.

[9] Bostancı, Y., & Çetinel, T. (2021). İŞ KAZASI VE MESLEK HASTALIĞINDAN DOĞAN TAZMİNAT TALEPLERİNİN USÛL HUKUKUNUN BAZI KURUMLARI BAKIMINDAN DEĞERLENDİRİLMESİ. Süleyman Demirel Üniversitesi Hukuk Fakültesi Dergisi, 11(1), 331-375.

[10] The Court of Cassation 10th Civil Chamber, Decision No. 2020/7594, Dated 12.11.2020