On the grounds of the sanctity of human life, the employer’s obligations, such as doing what is necessary to ensure the health and safety of the laborers, providing the conditions for this, and maintaining the vehicles in total, are met stated in the Labor Code. The employer’s violation of the guard of the laborer (protection) leads to the fact that he will be held responsible for damages caused by occupational accidents arising from the contract and the Labor Code. As a rule, it is sought that the employer is faulty for the employer to be held responsible for the damages caused due to occupational accidents. But in some cases, the employer may be held responsible for the work accident that occurred, even if they have no fault.
The employee himself or his relatives may file material and non-pecuniary compensation lawsuits against the employer due to an occupational accident. In this bulletin, we will give basic information about which accidents are included in occupational accidents, Social Security payments due to occupational accidents, when, which court, and against whom pecuniary and non-pecuniary damage cases can be filed, and the calculation of compensation.
1. What Is a Occupational Accident?
The main criterion for counting the accident that happened to the laborer as an accident at work is when the employer supervises the employee. Therefore, it is not necessary that an occupational accident necessarily occurs while the employee is at work, while he is at work, or as a result of a defective act of the employer. For example, provided that it is under the supervision of the employer;
- a worker was struck by lightning, had an accident due to an earthquake,
- accidents caused by the action of other persons other than the employer,
- An employee’s accident while going somewhere other than the workplace is also described as an occupational accident.
An occupational accident is defined in Article 13 of Law No. 5510. Accordingly, an occupational accident;
- At the time when the insured person is at work,
- If the insured works independently on his behalf and his account due to work being carried out by the employer, due to the work that he is carrying out,
- Due to the fact that the insured employee, depending on the employer, is sent to another place other than the workplace as an employee, the time they spend without doing their main job,
- In accordance with the labor legislation of the insured woman who is breastfeeding, at the times allotted for giving milk to her child,
- It is an incident that occurs during the departure and arrival of the insured to the place of work by an employer-provided vehicle and immediately or later physically or mentally disabled the insured person.
2. Detection of an Occupational Accident
The employer must notify the Head of the Social Security Institution about the accident within 3 days after the work accident.[1] If the employer does not make this notification, the employee or his relatives, they can apply to the Labor Courts for the detection of an occupational accident. The Social Security Institution should be shown as the defendant in this case. In practice, this case is called the case of detecting an occupational accident.
The institution examines whether the reported incident was an occupational accident and reports its results to the parties. Those who want to object to the report provided by the Head of the Social Security Institution can also make their objections in the labor courts. If it is understood that the accident reported by the employer to the Head of the Social Security Institution is not considered an accident at work or that the employer has never notified the Institution, the court that sees the compensation case either decides the determination of the work first as a preliminary problem or gives the decision of the work accident to the plaintiff to have it done. For this reason, in order to reach a decision in compensation cases, the court must first confirm that the accident was a work accident or have it confirmed.
3. What Compensation Cases Can Be Filed Due to an Occupational Accident?
A person who has been harmed physically or mentally due to an occupational accident can file various compensation lawsuits in order to compensate for these damages. The employee may claim damages arising from the loss of working power suffered due to damage to the integrity of the body and damages arising from the breakdown of the economic future with a financial compensation claim. Again, the employee may also claim financial compensation for bodily harm suffered, for example, due to injury, rupture of an organ, loss or loss of vision or hearing, or changes in his physical appearance.
Moral damages suffered due to the fact that the employee has been physically or spiritually damaged due to an accident at work, his personal rights have been unjustly violated, and an obstacle has been created in the employee should be claimed with moral compensation lawsuits.
Not only the employee himself, but also his relatives can file compensation lawsuits. If the employee died as a result of an occupational accident or suffered severe bodily harm or became disabled, the employee’s relatives can claim compensation for non-pecuniary damage and deprivation of support.
4. Against Whom Should Compensation Lawsuits Be Filed Due to an Occupational Accident?
Claims for material and non-pecuniary compensation and compensation for deprivation of support due to an accident at work must be filed against the employer. However, especially in cases where a sub-employer (subcontractor) contract is involved, there are two separate employers as the main employer and the sub-employer. In this case, the question of which employer to refer compensation cases to arises there. The employees of the sub-employer are involved in an accident at work, and the employer and the sub-employer are jointly and severally liable for compensation for their losses to the employee. For this reason, any of the employers or both employers may be shown to be opponents in the lawsuit that will be filed. In a recent Supreme Court decision on the issue, this situation was also stated as follows;
“Article 2/6 of the Labor Law No. 4857, the main employer is the relationship established between the other employer, who takes a job in auxiliary works related to the production of goods and services carried out by an employer or in a part of the main job, it is called main employer-sub employer relationship in jobs that require expertise due to the necessity of the business or the job and technological reasons and employs the workers assigned for this job only in the position they have taken in this workplace, it is stated that the main employer will be responsible to the sub contractor’s employees concerning that workplace arising from this law that they will be responsible for the obligations of labor contract with the subcontractor, and it is clear the most crucial legal outcome of the main employer and subcontractor relationship is consecutive responsibility between employers.[2]
“For the existence of the principal employer-sub-employer relationship, the job must be taken from another employer; in other words, the primary employer must have the employer’s title and must employ workers on their behalf in the central workplace or places considered as workplaces.
In cases where the whole of the work, not a specific part, is transferred to others as a whole or by dividing into sections, the work is wholly withdrawn in this way, and the employer does not have the title of the employer because the insured is not employed, the persons who take over them cannot be considered as sub-employers and those who transfer them as the main employer.
Other conditions for acquiring the title of the employer are that the job requested from the main employer has been taken in part of the main job, or in a part of the work related to the workplace, or in the workplace annexes and that the employer’s own workers are employed in this job, and therefore, he/she has the title of the employer.
Before the legal nature of the internal relationship between the defendants is deciphered by the court, it is understood that the decision was made without sufficient examination of the relationship between the main-subordinate employer
Considering that the principal employer-subcontractor relationship is established between the defendants, the court should take an appropriate defect report again from the expert committee consisting of experts in terms of occupational safety in the business line where the incident took place, and a decision should be made according to the conclusion to be reached. ”[3]
5. Payments to be made to the Employee by the Social Security Institution
The rights granted to the worker by the Social Security Institution from work accident insurance are as follows:
. Temporary Incapacity Benefit
. Income from Permanent Incapacity for Work
. Death Income
. Marriage Allowance
. Funeral Allowance
In cases filed by the employee against the employer due to an accident at work, payments made to the employee by the Social Security Institution from the compensation that the employer will pay are appealed to the employer. For the payments made to be revoked by the Institution to the employer, the injured party must be insured, the event that caused the damage must be an occupational accident or nature, there must be a causal link between the intention of the employer or the insured’s act contrary to the health protection and occupational safety legislation in the occurrence of the damage, and the work accident and occupational disease caused by this act.
Compensation for damages other than payments made to the employee by the social insurance legislation will be requested from the employer. Therefore, the material compensation lawsuits filed by the employee are filed in order for the employer to cover the damages other than the rights provided for by the provisions of the social insurance legislation.
6. Lawsuit for Financial Compensation Due to an Occupational Accident
The employee may claim damages arising from the loss of working power suffered due to damage to the integrity of the body and damages arising from the breakdown of the economic future with a financial compensation claim. Again, the employee may also claim financial compensation for bodily harm suffered, for example, due to injury, rupture of an organ, loss or loss of vision or hearing, or changes in his physical appearance. In case of death of the worker, funeral expenses and treatment expenses can also be claimed in a financial compensation case.
The employer’s liability for an accident at work is based on a violation of the employment contract. In order for the employer to be held responsible for the material damage suffered by the employee due to an accident at work, the following conditions must be met;
- The accident is within the scope of an occupational accident,
- there must have been a material damage caused by an occupational work;
- there should be an appropriate decency link between an occupational accident and damage
- there are exceptions, but, as a rule, the employer must have defects.
the Supreme Court’s opinion on the determination of the defect situation is as follows;
“In occupational accidents, the incident should be evaluated within Labor Law and Social Security Principles. The employer’s legal liability for the damage caused by the work accident is a liability based on fault arising from the breach of the duty of protecting the worker, which arises from the employment contract in principle, except for discrete cases determined by law and jurisprudence. Considering the conditions stipulated in Article 77 of the Labor Law and examining the relevant articles of the Occupational Health and Occupational Safety Regulation, which should be applied in the workplace, according to the nature of the work accident, due to the nature of the compensation cases arising from the work accident, what are the precautions to be taken by the employer at the workplace, the ownership and rate of the defect should be determined in a way that leaves no room for doubt and hesitation, by examining in detail the issues such as what measures are taken, what precautions he has not taken, whether the worker complies with the actions taken or not.”[4]
“Actual loss calculation must be carried out according to the general principles of the compensation law if the insured one has fallen into a state of constant disablement, bodily harm, the account of deprivation of support in case of death must be taken into account. In determining the actual damage, all data must be revealed, such as the net income of the insured person who directly affects damage and compensation, the remaining life expectancy, the age of workability, the degree of disablement, the defect, and the share rates those who receive support will receive from the income, the probability of the spouse getting married. The actual loss consists of the sum of the earnings that the insured person will receive in the active and passive period in accordance with the remaining life period as of the date of the accident.”[5]
7. Lawsuit for Financial Compensation Due to an Occupational Accident
It is possible that the employee may claim moral damage suffered as a result of an injury or disability as a result of an occupational accident with a non-pecuniary compensation lawsuit. If the employee died as a result of an occupational accident or suffered severe bodily harm or became disabled, the employee’s relatives can claim compensation for non-pecuniary damage and deprivation of support. The Supreme Court is seeking that the worker be killed or suffer grievous bodily harm in order to be able to award compensation in favor of the employee’s relatives.
In cases of non-pecuniary compensation, it is necessary to take into account the rights of the person(to his physical and spiritual integrity, honor and dignity, etc.) it is necessary to prove that it has been violated and that it has caused moral damage.
8. Compensation for Deprivation of Support
If a worker dies as a result of an occupational accident, this is the type of compensation that relatives who would have supported the worker economically if he had survived can claim from the employer. Since it is a material compensation case, all the conditions mentioned under the heading material compensation also apply to compensation for deprivation of support.
The people that the worker will support are the people they will actually and regularly take care of until their death or the people they would probably take care of if the worker were alive. For example, spouses support each other and their child. Children are a support to mom and dad. Therefore, compensation for deprivation of support is most often requested by the spouse, mother, father, and children.
9. Calculation of Compensation Amounts
In calculating the amount of compensation, considerations such as the degree of imperfection of the employer and employee, the disability rate of the employee after the accident, the incapacity rate, the salary and age of the employee are taken into account. The reports to be given by the SSI and the expert witnesses to be appointed by the court will be decisive in this regard.
“Considering the conditions stipulated by Article 77 of the Labor Law, the delivery of assembly materials to the workers due to the incident determined to be a work accident in the SGK Inspection report, establishing the job definition, and the scope of work of the plaintiff, by investigating whether a driver is assigned in the workplace, while it is necessary to conclude by discussing the duties and responsibilities of the plaintiff and whether the work organization is duly established to examine the duties and responsibilities of the employer and/or the employers to carry out the work under supervision and surveillance, it was wrong to make a decision based on the defect report without adequate examination, against the occurrence of the event and without the participation of an expert on traffic accidents. The work to be done by the court; While the plaintiff who is a mechanical engineer working as the project engineer, while returning, observed that the vehicle lost control of the steering wheel and had an accident on the stabilized road after he delivered the materials to be used in the assembly work to the workers on the construction site with the pickup type vehicle rented by the company, within the scope of the 77th article, the file will be examined by an expert committee of three people, which will be composed of occupational safety experts who are experts in traffic accidents. It will be decided according to the result by determining the faults and responsibilities of the parties in a way that will meet the plaintiff’s objections. It consists of giving a verdict. Making a written decision by the court without considering these material and legal facts is against the procedure, and the law and is the reason for the reversal.[6]
Although the issue of how to calculate the amount of non-pecuniary compensation is not clear in the laws, it has been shaped by the case-law of the Supreme Court. When calculating the amount of non-pecuniary compensation, the judge considers the specifics of the concrete event and the way it takes place, the mutual defect rates of the employee and the employer, the weight of the damage, and the financial situation of the parties. The amount of non-pecuniary compensation is determined by the judge after the trial.
In calculating compensation for deprivation of support, it is tried to determine hypothetically how much assistance the worker would provide to those they supported if they were alive. In this context, issues such as the employee’s income, their age, how long they will be supported, the surviving spouse’s marriage to someone else should be investigated.
10. The Statute of Limitations for Compensation Cases Due to an Occupational Accident
Lawsuits seeking compensation for material, moral and support deprivation that an employee or his relatives will file due to an accident at work are subject to a 10-year statute of limitations. The beginning of the statute of limitations is the date on which the work accident occurred.[7]
Conclusion
In order to compensate for the physical, mental and economic damages suffered by the employee due to an accident at work, compensation lawsuits can be filed by the employee against the employer. Relatives of the employee can also refer cases to the employer demanding compensation for non-pecuniary damage and deprivation of support due to an occupational Accident. However, in order to win these cases and to receive work accident compensation as a result, it is necessary to prove that the employer’s fault, the incident occurred during the period under the control of the employer, and the damage suffered. The information provided in this bulletin is only general and we recommend that you contact our team members who are experts in the field of Employment Law regarding your claims for compensation due to an occupational accident.
Best regards.
References
DEPARTMENT OF OBSTETRICS AND GYNECOLOGY, AKTAY, Nizamettin/ARICI, Kadir/SENYEN/KAPLAN, Tuncay, Labor Law, Gazi Bookstore, Ankara, p.152-155.
EREN, Fikret, 2011, General Provisions of the Law of Obligations, Beta Publishing, p.468-541.
Law No. 5510 m.13/2.
TBK m.417/II-III, m.112, p.49, 56, 58, 53.
21th Supreme Court Department of Law, 2019/5362 E., 2020/2646 K., T. 22/06/2020.
10th Supreme Court Department of Law, 2019/5123 E., 2020/7973 K., T.31.12.2020.
16.06.2004 day and 2004/21-365 E of the General Assembly of the Supreme Court of Law.- Resolution No. 369 K.
10th Supreme Court Department of Law, 2019/5123 E., 2020/7973 K., T.31.12.2020.
21th Supreme Court Department of Law, 2020/1503 E., 2020/2431 K. T. 18.06.2020.
http://www.sgk.gov.tr/wps/portal/sgk/tr/emekli/is_kazasi_ve_meslek_hastaligi/is_kazasi
[1] Law No. 5510 m.13/2.
[2]21th Supreme Court Department of Law, 2019/5362 E., 2020/2646 K., T. 22/06/2020.
[3]10th Supreme Court Department of Law, 2019/5123 E., 2020/7973 K., T.31.12.2020.
[4] 16.06.2004 day and 2004/21-365 E of the General Assembly of the Supreme Court of Law.- Resolution No. 369 K.
[5] 10th Supreme Court Department of Law, 2019/5123 E., 2020/7973 K., T.31.12.2020.
[6]21th Supreme Court Department of Law, 2020/1503 E., 2020/2431 K. T. 18.06.2020.
[7] TBK m.417/II-III, m.112, p.49, 56, 58, 53.