Responsibility Of The Employer In Dangerous And Very Dangerous Jobs - Health & Safety - Turkey

[Gunnar Larson]

https://www.mondaq.com/turkey/health-safety/1257534/responsibility-of-the-employer-in-dangerous-and-very-dangerous-jobs


Turkey: Responsibility Of The Employer In Dangerous And Very Dangerous Jobs
05 December 2022
by Ece Nur KarakaÅŸ
CottGroup
In the concrete case, which is subject of the decision of the 12th Criminal
Department of the Court of Appeal with Basic 2020/1413, Dated November 17,
2021 and Decision numbered 2021/8051,it has been determined that the
employee who lost his life due to a work accident worked as an electrician
in the electrical work included in the dangerous work class, but he did not
have a diploma or vocational education document related to electrical work.
Since this situation is prohibited in the Occupational Health and Safety
Law and the employer does not fulfill its obligations listed in
Occupational Health and Safety Law, the Court of Appeal decided that the
crime of killing by gross negligence was committed against employee.

REVIEWING OF THE DECISION
In the Occupational Health and Safety Law (in Turkish) ("Law"), some jobs
are separated from others and classified as dangerous and very dangerous
jobs. The main reason for this distinction is to keep the employer's
supervision and control obligation at the highest level and the minimize
both the degree of damage and the number of work accidents that may occur
with it.

OBLIGATIONS OF EMPLOYER
The Law has brought more than one obligation to the employer to ensure the
safety of life and property of the employee. Some of them as follows;

General obligation of the employer (art. 4),
Supporting occupational health and safety services (art. 7),
Obligation to have risk assessment, control, measurement, and research
(art. 10),
Obligation to determine emergency and evacuation plans (art. 11-12),
Obligation to inform employers (art.16).
The obligation, which is the basis of this decision of the Court of Appeal
and which is violated by the employer, is regulated in the Article 17/3 of
the Law. "Those who do not certify that they have received vocational
training cannot be employed in the dangerous and very dangerous jobs that
require vocational training." The legislator clearly protected the employee
who works in dangerous and very dangerous jobs and brought the employer to
control the requirement process. As in the concrete case, the employer who
does not fulfill its inspection obligation will be the most reasonable
party in the case of work accident.

OBLIGATIONS OF THE EMPLOYEE
In addition to these obligations for which the employer is responsible, the
Law also imposes an obligation on the employee to comply with the
instructions of the employer. According to the art. 19 of the Law;
"Employees are obliged not to endanger the health and safety of themselves,
and other employees affected by their actions or work, in line with the
training they receive regarding occupational health and safety and the
employer's instructions this matter."

DECISION OF THE COURT OF APPEAL
Considering the obligations of both the employee and the employer, the
Court of Appeal has included the following statements in the Decision;

"The deceased employee did not have a diploma related to the electrical
profession and did not receive any professional training in this regard,
In the article 17/3 of the Occupational Health and Safety Law the clause,
"Those who do not certify that they have received vocational training
cannot be employed in the dangerous and very dangerous jobs that require
vocational training." is included,
In this context, according to the content of file, defendant who employs
the deceased as an electrician despite the absence of a diploma or
vocational training document related to electrical work, which is in the
very dangerous work class, it has unanimously decided on November 17, 2021,
that the provisions of deliberate negligence should be applied in
accordance with the art. 22/3 of TCK ("Turkish Penal Code")."
CONCLUSION
It should be noted that these obligations imposed on the employer within
the scope of the Occupational Health and Safety Law and all relevant
legislation are brought to prevent work accidents and that employers should
not employ persons who cannot certify their professional competence in
dangerous and very dangerous jobs.
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