CRIMINAL LIABILITY OF EMPLOYER AND EMPLOYER’S REPRESENTATIVE ARISING FROM OCCUPATIONAL ACCIDENTS
Occupational accident is defined as “any incident that occurs at the workplace or due to the performance of one's job which results in death or personal injury involving mental or physical challenge” in the subparagraph g, paragraph 1 of Article 3 of Occupational Health and Safety Law No. 6331(“Law”). According to the latest statistics of 2019 announced by the Social Security Institution, an annual average of registered occupational accidents amounting to 423,551 occur in Turkey and this figure is increasing. A significant part of the occupational accidents is subject to lawsuits, and it is seen that the criminal liability of the employers is brought forth within the scope of the obligation to ensure the occupational health and safety of their employees.
The criminal liability of the employers arising from the occupational accident relies on the fault-based liability. For the criminal liability to be arisen, the incident must be an occupational accident, the perpetrator must be the employer, the employer must breach his/her obligations and there must be causation between the conduct and the harmful end result. In the first paragraph of the Article 20 of the Turkish Criminal Code, the principle of the individual criminal responsibility is regulated. In paragraph 2 of the same Article; it is stated that legal entities do not have criminal liability, however in some cases, criminal sanctions can be enforced to them. Therefore, real person employers whose breach their obligations regulated under the Law shall be held criminally liable in terms of occupational accidents arising within the company.
The person responsible for ensuring the occupational health and safety of the employees is the real person employer. However, the responsible person can also be determined by the internal directive of the company. It is regulated under the Law that “the employer’s representatives acting on behalf of the employer and involved in the management of the work and workplace shall be deemed as employer in terms of the implementation of this Law”. Therefore, employers who appoint an employer’s representative who has managerial and audit authority to ensure occupational health and safety shall not have criminal liability due to occupational accidents.
The assignment of duty and delegation of authority in companies is regulated under Article 553 of the Turkish Commercial Code. Hereunder it is regulated that: “Bodies or persons who have assigned their duty or authority arising from the law or the article of association do not bear any liability for the acts and decisions of the assignee persons unless it is established that they failed to show reasonable care in the selection of the assignee persons.” As it is understood from this provision; in case of the assignment of the duty and delegation of authority to the employer’s representative who is competent to take necessary occupational health and safety measures due to his/her position in the workplace or experience, employer’s representative shall be held criminally liable for the occupational accidents which occur as a result of not taking the necessary measures in place of the employer. However, the delegation of authority and assignment of duty shall not completely release the employer from criminal liability. If the occurrence of an occupational accident is caused by operational deficiencies, the employer can be impeached directly and held criminally liable.
In conclusion, employers are criminally liable for occupational accidents that occur in the workplace. In order to prevent the criminal liability of employers, it is necessary to the delegate authority and assign duty to an employer’s representative who is competent in taking necessary occupational health and safety measures. Additionally, even though the duty has been assigned and authority has been delegated, it should be considered that the employer shall remain responsible in terms of occupational accidents caused by operational deficiencies and necessary precautions should be taken by the employer in this regard.