REPEATED ACCIDENTS IN A WORKPLACE LEADS TO AGGRAVATED RESPONSIBILITY
It is critical that occupational health and safety measures are followed in order to prevent workplace accidents. The employer is legally and criminally liable for the occupational accident as a result of the employer's obligation to take all necessary precautions and to supervise the worker. For the employer’s criminal liability measures, precautions taken by the employer can even determine the amount of the penalty imposed against the employer. As a result, the extent of precautions that the employer implements, will determine the employer’s fault rate arising from the law and the performance of the work, and thus the limits of the legal and criminal liability to be attributed to the employer will become clear.
Occupational Accident
Given that not every workplace accident can be classified as an occupational accident. Therefore, it is necessary to define the occupational accident first. An occupational accident is defined as "an unplanned unexpected event that causes specific harm or injury." by the International Labour Organization (ILO).
In Turkish Law, occupational accident is defined in Article 7 of the Occupational Health and Safety Law No. 6331 with the phrases “An event that occurs in the workplace or due to the conduct of the work, causing death or injure of body integrity mentally or physically”, and the cases that can be considered as occupational accidents are listed in detail in Article 13 of the Social Insurance and General Health No. 5510.[1]
Accordingly, in order for an incident to be classified as an occupational accident, the injured person must be insured, the accident must occur in accordance with one of the numbered issues in the law in terms of place and time, the insured must become physically or mentally disabled as a result of the incident, and the accident must have the causal connection with injury.
The employee's duty of loyalty is to avoid any behavior that may harm the employer, whereas the employer's duty of monitoring the worker is to ensure the health and safety of the workers in the workplace. In this regard, the employer must protect the worker's life, health, and physical integrity, which are among his/her individual rights, from workplace hazards. Despite of these obligations, if an occupational accident occurs as a result of the employer failing to meet its obligations, the accident will result in legal and criminal liability. However, it should be noted that, in the event of serious fault on the part of the worker or a third party, or in the event of force majeure, the employer will not be liable since the causal link will be severed.
Legal Liability of the Employer
In addition to the obligation to pay pecuniary and non-pecuniary compensation to the worker who suffers an occupational accident as a result of not taking occupational health and safety measures in the workplace, compensation for deprivation of support will also be paid to those who are deprived from the support of the worker who died as a result of an occupational accident.
Even if the employer fulfills all of his obligations, some argue that the responsibility will continue under the principle of strict liability under the Turkish Law of Obligations, but the doctrine and jurisprudence of the Supreme Court hold that the employer will be liable under the principle of fault liability, and thus responsibility will be apportioned in proportion to his fault.
In this context, the expert examination determines the fault rates of the employer and the worker, and the amount of compensation is determined based on the defect rates during the judgment arised from the occupational accident.[2]
Criminal Liability of the Employer
After an occupational accident, the employer may face criminal charges. In the case of the employer's criminal liability is due to an occupational accident, the amount of the penalty varies according to the rate of fault.
Negligence, which is one of the moral elements of the crime; is the execution of a behavior without foreseeing the result specified in the legal definition of the crime, due to the violation of the duty of care and attention. Conscious negligence, on the other hand, occurs when the result occurs as a result of not taking the necessary precautions, although the person foresaw the result but did not want the foreseen result. The penalty prescribed by law for the crime committed with conscious negligence is heavier than for simple negligence.
Application of Conscious Negligence Provisions in Occupational Accidents
In practice, it is seen that if the employer does not take the necessary measures for occupational health and safety in the workplace, he can foresee any occupational accident that may arise, and therefore he is held negligently responsible for the occupational accident. However, in the presence of certain situations, conscious negligence provisions are applied for the employer. For example, in Supreme Court decisions; it was stated that the employer was responsible for the work accident that occurred as a result of the employer not taking the necessary precautions despite being warned in writing by the administrative authorities, and therefore the penalty was increased.[3]
If an occupational accident occurs again in a workplace where an occupational accident occurred previously due to ignoring the warnings, the employer is found to be liable by conscious negligence.[4]
In this direction, it is expected from the employer to take all kinds of measures arising from the law and the performance of the job, to act in accordance with the rules of occupational health and safety, and to fulfill the obligation of supervising the employee as required. In particular, employers who have been warned before or who have had an occupational accident at work should be more careful and attentive in these matters.
[1] Social Insurance and General Health Insurance Law No. 5510: https://www.mevzuat.gov.tr/mevzuatmetin/1.5.5510.pdf
[2] Decision of 10th Civil Chamber of the Supreme Court of Appeals numbered 2021/8520E., 2021/15188K. and dated 01.12.2021.
[3] Decision of 12th Criminal Chamber of the Supreme Court of Appeals numbered 2013/10613E., 2014/12608K. dated 22.05.2014, Decision of 12th Criminal Chamber of the Supreme Court of Appeals numbered 2015/3275E., 2015/7402K. and dated 05.05.2015.
[4] Decision of 12th Criminal Chamber of the Supreme Court of Appeals numbered 2016/13065E., 2017/10907K. and dated 26.12.2017.