In the Code of Obligations, the person who employs the employee has been held responsible for the damages caused to others during the performance of a work. Moreover, the employer does not even need to have any defective behavior in the occurrence of this damage. The employer is fully responsible for the damages caused by the employee. The purpose is to ensure that the victimization of the person who has been harmed is eliminated in the best way, as well as that the person who employs them takes the necessary measures in the selection, supervision and workplace of their employees.
In this bulletin, we explained that the person who employs a person is held responsible for the damages caused by his employee to third parties unrelated to the business during work, the material and in some cases moral damages of the person who has suffered losses in this context are covered, and the terms of the employer’s release from paying compensation.
1) The Conditions Required for the Emergence of Liability for Compensation of the Employer
66th article of the Turkish Code of Obligations in order for the responsibility of the employer to arise and the conditions specified in the article and the decisions of the Supreme Court are as follows;
- The relationship between the employer and the employee should include some kind of hierarchy. The employee must be under the orders and instructions of the employer and must be under the supervision of the employer while doing his job.
- The employer must have caused a damage not to the person whose work was done, but to third parties unrelated to the work being done. If the employer harms another employee during the performance of his job, the employer is liable for compensation for this damage.
- A harm must have been caused by the act of the employee.
- There must be an appropriate causality link between the harm and the action of the employee.
- The damage must have been caused at the time of the work and in connection with the work.
The employer can be a real or legal entity here. The employee must be a real person.
In short, the employee’s harming third parties during the work related action by unlawful activity and having a cause and effect relationship between the behavior of the employee, is necessary and enough for the employer to be held responsible for damages.
2) Ways to Get Rid of the Employer’s Liability for Compensation
The employing person is perfectly responsible for the harm that his employee has caused to others. However, in the event of proof of certain circumstances and situations, it is possible that the employer will be released from liability for damages. The employer can be relieved of responsibility by proving that he has taken the necessary care in matters related to his employee and his business. Accordingly, the employer;
Can be relieved of responsibility if he proves that he has taken the necessary care when choosing his employee, instructing him about his work and conducting supervision and inspection. In this context, the employer must demonstrate with objective evidence that he has chosen his employee taking into account whether he has the knowledge, license and experience appropriate to the nature of the job. He must take the necessary care when instructing the employee, and also prove that he has properly conducted an audit of the work and employees.
It should also prove that the working order of the employing entity is conducive to preventing the occurrence of harm.
Even if the employer takes all the necessary care, he can also get rid of responsibility by proving that he cannot prevent this harm from occurring.
It should be noted that the employer cannot be absolved of responsibility by proving that he has no defects in causing harm.
3) The Limitation Period for the Employer’s Liability for Compensation
Starting from the date when the employer learns of his responsibility, that is, the claim for compensation, the damage and the liability for compensation to the injured person of the two years and in any case, starting from the date of the action of the act of the decade its passage is subject to the statute of limitations. With the expiration of these periods, the claim for compensation will expire. In order for the 2 year statute of limitations against the employer to begin to apply, the victim must also have learned about the employee who caused the harm and damage, the employment relationship, and the person who employed this person. If the employer’s behavior that is contrary to the employer’s duty of care also constitutes a crime, the longer statute of limitations contained in the criminal code also applies to the compensation case.
4) Revoking of the Employee for the Compensation Paid by the Employer (Making the Employee Pay)
The employer has the right to demand payments from the employee after the employer has paid the damages caused by the employee to the person who has been harmed. The employer has the right to apply for compensation paid to the employee only to the extent that he is personally responsible for it.
If employer has paid a portion to the person who has been harmed, the right of revoking is only as much as this part. Employing the debt fully paid compensation to the injured person and in which the employer finds out within two years from the date that the damage caused to the employees and the damage caused, which, although it was fully paid off within ten years from the date of compensation, recourse can sue. If the damage is paid partially, not completely, these periods will not begin to work.
5) Examples of Judicial Decisions on the Responsibility of the Employer
The liability of the employer for material and moral compensation for the behavior of a person working in the workplace belonging to the employing company, such as injury, beating, which is an attack on the personal rights of another employee in the same workplace,
The responsibility of the employer for causing damage by dropping items on a passerby during the work of a construction worker,
In the relationship between the employer and the contractor, if the employer has the right to issue an order to the contractor and supervise him, he is responsible for the damages caused by the contractor,
Responsibility for damages caused by a person who comes to the house for repairs and renovations to other people who are present at the time in the house, other than the owners, when doing the work,
Compensation of damages caused by an employee who caused damage to someone else by an accident with a municipal vehicle by the Municipality,
Responsibility of medical institutions where the doctor is responsible for incorrect medical practices of the pregnant woman before and during childbirth,
Responsibility of the bank for acts that constitute a crime of embezzlement committed by a bank employee.
The following is a summary of a Supreme Court decision on the responsibility of the employee.
Court Assembly of Civil Chambers
Date of Decision: 12.04.1974
COMPENSATION CASE – THE EMPLOYER’S RESPONSIBILITY – THE TEACHER’S NEGLIGENCE IN NOT NOTICING THE PAPER PLANE AND NOT PREVENTING IT FROM BEING USED – THE TEACHER IS NOT DEFECTIVE, ALTHOUGH THE RESPONDENT EMPLOYER IS REQUIRED TO ACCEPT HIS RESPONSIBILITY
Summary: The negligence of the teacher employed by the defendant, who does not notice the plane from the prepared paper, does not prevent its use is an act of negligence that has an appropriate cause and effect connection with the damage. In this respect, even if the teacher is not defective, since the defendant who employs them is responsible, the actual damage should be investigated and the collection should be decided.
(818 P. K. art. 55)
Lawsuit: At the end of the trial for compensation between the parties regarding the rejection of the case due to the fact that the school administration cannot be held responsible for the fact that a child in a private kindergarten damaged the eye of another student by throwing a plane made of paper during class, and the animosity should be directed to the parent of the minor who caused the damage The examination of the 2.12.1968-day decision issued by the 13th Ankara Court of First Instance was requested by the deputy plaintiffs, but at the end of the retrial, the court resisted the previous decision by the 4th Civil Chamber, deciding to overturn the verdict due to the fact that it should be decided and reversed instead of the file.
The appellant: Plaintiffs’ Counsel.
The law was examined by the Assembly of Civil Chambers and discussed as necessary after it was understood that the last provision covering resistance was appealed during the period and the papers in the file were read:
Decision: 55th article of the Code of Obligations. according to this, a person who employs others is responsible for the damage caused by the people he employs during the performance of his services. as explained in the decision to merge case law No. 1/3 of 27.3.1957, the fault of the employer or the employed person is not required for the responsibility of the employer. For this liability, it is sufficient that the damage occurred during the service and as a result of the action of the employee. The broad consideration of the word action here, that is, a movement that cannot be done according to the law, must be made or done necessarily occurred when the teacher employed by the defendant was doing paperwork in the classroom. There is no doubt that a small child who throws a plane out of paper and causes one eye of his friend to lose his eyesight by nine-tenths will not be able to distinguish a pest from a harmless one and will follow his instincts from time to time. It is one of the requirements of the kindergarten teacher to warn his students against such harmful behaviors through education and to prevent them by taking action. Since it is clear that such damage would not have occurred if the teacher had noticed the prepared paper plane and the incident and prevented it from being thrown away, there is an appropriate cause and effect link between its failure or inability to take preventive action and the damage. In that case, even if the teacher is perfect, since the defendant will be responsible for the damage caused as the employer of the teacher and it is up to the judge to apply the rule of law that matches the events put forward in the case, it is against the procedure and the law to resist the previous decision with written reasons and thoughts, while it is necessary to comply with the decision to abolish the private department that is in place. For these reasons, the decision to resist must be overturned.
Result: The decision to resist the adoption of appeals was made by Cod of Civil Procedure’s 429th article, accordingly, its deterioration was decided unanimously on 12.04.1974.
The liability of the employer for the damages caused by his/her employee is covered by perfect liability, which is one of the types of liability in our law. The basis of this type of responsibility is based on the obligation of objective diligence. The employer is obliged to pay the damage caused to others by the unlawful act of his employee to the person who has been harmed, even if it is not his fault. The employer has the right to collect the part that the employee is responsible for from the amount that the employee pays later.
The rules of proof are of particular importance in cases that will be filed with the employer due to the damages caused by his employee during work. First, the person who has been harmed must prove the damage suffered, and then the employer must engage in proof activities to get rid of the liability for compensation. Knowing by what means and how to do all this, the time for filing a lawsuit will affect the progress and outcome of the case.
If you need more information about the subject, you can get legal advice and assistance from the Solmaz Legal and Consulting team.
EREN, Fikret, 2011, Borçlar Hukuku Genel Hükümler, Beta Yayıncılık, Ankara.
11th Civil Chamber of Supreme Court, 2019/2276 E., 2020/322 K.
13th Civil Chamber of Supreme Court, 2016/26890 E., 2020/100 K.