Turkey unfortunately witnessed some disastrous work accidents in 2014. The explosion followed by the fire in the Soma mine, the explosion followed by the flood in the Karaman mine and the elevator crash in a construction site at the heart of Istanbul are just some recent examples of unfortunate and fatal work accidents in Turkey. The casualties are so serious, that they have caused an alert for major legislative reform for workplace safety. While this reform should certainly not have awaited the loss of hundreds of lives and leaving behind hundreds of families without a parent, it is clear that employers must be much more wary in knowing and, more importantly, implementing the applicable safety measures. This was a lesson (hopefully) learned at immense cost.
Employers are liable for the consequences of work accidents. This liability derives from another obligation imposed on the employers: they are, in the first place, required to adopt necessary measures to provide occupational health and safety to prevent work accidents. The recent "accidents" in Turkey have proved employers' unwillingness to adopt those measures. One reason may be that employers regard monetary benefit and do not want to spend much money for any measure to protect lives. However, employers must bear in mind that, in the absence of precautionary measures, work accidents are inevitable and they will be more "costly" for them than complying with the job security related regulations. As for the lost lives, it is meaningless to say even one word on the value of human life; there is no measurable amount of money to compensate lost lives.
There are several laws and regulations in effect in relation to employers' duties and liabilities regarding occupational health and safety in workplaces. Of these laws and regulations, the Law on Occupational Health and Safety1 and the Labor Law2 are most fundamental. In addition, in the last quarter of 2014, regulations and communiqués on workers' health and job security entered into force.3The most recent one (although not yet entered into force but passed by the Turkish Parliament in its session of 20 November 2014) is the Law Approving the ILO Convention No. 167 on Safety and Health in Construction. Therefore, it is not only a matter of the absence of legal provisions on occupational health and safety, but it is a matter of employers not having complied with the legislation to prevent work accidents.
What is a work accident?
Legally, a work accident is an incident that occurs at the workplace, which causes physical or mental injury. According to the ILO, accidents occurring while engaged in an economic activity, or at work, or carrying on the business of the employer are work accidents. Thus, work-related accidents, which occur outside the employers' premises, are also included in the definition of work accident.
Employers' Duty of Care
Employers' duty of care is prominent in ensuring occupational health and safety at the workplace. Within the scope of their duty of care, employers are obliged to take all precautionary measures and provide all equipment required for safety at the workplace. To give examples, employers must:
(i) regularly test the machinery;
(ii) inform employees on the safety risks of the workplace and the methods to avoid these risks;
(iii) organize educational training programs on occupational health and safety related matters;
(iv) provide medical equipment; and
(v) employ a workplace doctor, occupational safety expert, workplace physician and other medical personnel, as required by the applicable regulations.
If an employer does not act in compliance with its duty of care, work accidents will trigger the employer's civil and criminal liability.
Employers' Civil Liability
Employers' breach of their duty of care will be deemed within the scope of the breach of the employment contract. As a result, employers will have to compensate the damages of employees being victims of work accidents. If an employee is injured upon a work accident, he/she can claim pecuniary and non-pecuniary damages from his/her employer. If a work accident results in death, then the heirs of the decedent employee can claim compensation.
Employers may be released from the liability of compensation, if they prove that the arrangements at the workplace are convenient enough to prevent the work accident and, thus, the damage. That is to say, if employers act in compliance with the duty of care, they would be released from the obligation to pay compensation. Additionally, there must be a causal link between the work accident and the employer's actions. Accordingly, if the employer has taken all necessary precautionary measures to prevent work accidents, that employer will not be deemed faulty and will not be liable for work accidents. Other reasons removing the causal link are as follows:
(i) willful default of the employee (e.g. if the employee does not use the equipment provided for his/her body protection);
(ii) willful default of a third person (e.g. an employee being injured in a car accident due to the fault of a third person); and
(iii) force majeure (e.g. earthquake, flood).
Upon occurrence of a work accident, employers have an administrative obligation as well: the employer must report the accident to the Social Security Institution within three days following the accident. Otherwise, the employer will be subject to an administrative fine.
Employers' Criminal Liability
In the event of a work accident, the employer's criminal liability will also arise. Although legal entities cannot be convicted of criminal offences, individuals in those legal entities will be subject to criminal charges due to work accidents. Under the Turkish Criminal Code, the public prosecutor may conduct an investigation and prepare an indictment with the request of a criminal prosecution against individuals, who have the power and authority to manage and administer the legal entity (i.e. board members and duly authorized managers). In the event of an employee's death, these individuals may be sentenced to imprisonment for two to six years and, in the event of the employee's disability, they may be sentenced to imprisonment for three months to one year.
1. Published in the Official Gazette dated 30 June 2012 numbered 28339.
2. Published in the Official Gazette dated 10 June 2003 numbered 25134.
3. "Regulation on Amendments regarding Regulation of Occupational Health and Safety in Mining Workplaces", published in the Official Gazette dated 24 September 2014 and numbered 29129.
"Regulation on Occupational Health and Safety in Constructional Work", published in the Official Gazette dated 5 October 2014 and numbered 28786.
"Communiqué on Enforcements regarding the Struggle against Dust",published in the Official Gazette dated 2 October 2014 and numbered 29137.
© Kolcuoğlu Demirkan Koçaklı Attorneys at Law 2014