With the Covid-19 pandemic, one of the issues that are on the agenda in our country and around the world is the concept of teleworking. Teleworking has become a part of our lives, especially together with the introduction of social distance with the purpose of prevent the spread of the pandemic.
Teleworking is an important issue in the service industry which operates using computer technologies.
Teleworking has been regulated in 14/4. and cont. Articles of the Labor Law. It is expected that the regulation related to method and principles of teleworking will be issued by Ministry of Labor and Social Security. Teleworking: is the general name given to the work carried out by the employee, not from the workplace, from his/her own home with the technological devices like computer, etc.Teleworking has some advantages and disadvantages inherently. No loss of time during the day can be considered as an advantage in terms of transportation, but the loss of performance due to possible low motivation can be considered among the negative effects.
There are some situations that need to be considered in the relationship between the employees and employers during the teleworking.
Using technical infrastructure and data provided to the employee by the employer:
Employees may use the devices (such as computers, etc.) or technical infrastructure or data provided by the employer in connection with the work they carry. It must be specified that the point to be considered by the employees in the use of these devices and data is to use them only for work and in connection with the work. The specified devices should not be subject to improper use or personal use incompatible with the work.
There is no doubt that the using devices and data during teleworking in accordance with the ethics of the business is within the scope of the loyalty obligation undertaken by the employee by the employment contract. Otherwise, the employer may terminate the employment contract for default according to 25th article of the Labor Law and also, compensation liability will be raised in terms of the employee if there is a loss suffered by the employer.
For example, the computer provided by the employer may also contain the employer’s personal data. If the specified personal data is recorded illegally by the employee, in this situation constitues the crime of “Saving Personal Data” whichregulated in thearticle 135 of the Turkish Criminal Code.
In the event that the employee uses the device provided to him/her in relation to work for the benefit of himself/herself or another person against the purpose of the device being allocated to her, this situation constitues the crime of “Misuse of Trust“. whichregulated in the article 155 of the Turkish Criminal Code.
The usage of the devices and data provided by the employer in relation to the work is important in terms of the issues mentioned in connection with the work. Otherwise, the employee may have legal and/or criminal liability.
Debts and Obligations of the Parties in Terms of Teleworking:
Although the relationship between the employee and the employer appears to have been flexible in the teleworking, the debts and liabilities arising from the employment contract continue for both parties.
- In terms of employees, work should be done with care within the scope of care obligation, which is complementary to the work obligation. In accordance with the obligation of care, the employee should avoid the effects of distributing his/her concentration during the teleworking process, and not cause performance decrease by being overcome by languor.
- In terms of employer, employers are authorized to give orders and instructions within the scope of the right to management. Mobbing (psychological violence) should not be done to employees in the process of teleworking contrary to the right to management, and the workflow should continue in the same way.
- The employee working in process of teleworking should still act within the scope of care and loyalty obligation within the scope of work awareness and business discipline.
- The employee must use the devices and technical infrastructure only in accordance with the principles stated and subject to the work vision activity under the loyalty obligation.
- The employer must carry out the necessary work on occupational health and safety within the scope of the employee’s protection and surveillance obligation.
Occupational Health and Safety Regarding Teleworking:
One of the key issues in the teleworking is occupational health and safety.
Conducting work from home, not from the workplace, does not eliminate the responsibility of the employer in terms of occupational health and safety. In connection with the employment activity, the employer should provide training and information on occupational health and safety to its employees in writing. For example, what the working environment should be, how and under what conditions the devices should be used are important issues. The employer has to continue working on work health and safety in working from home, in connection with employee’s debt of protection d surveillance. Risk analyses should also be carried out in terms of working at home and occupational health and safety measures and information regarding these risk analyses should be shared with employees.
The work accident is defined in the Occupational Health and Safety Law Numbered 6331 as “incidents that occur in the workplace or due to the work, cause death or mentally or physically disabled body integrity”.
In this direction, all the accidents in the home cannot be evaluated as a work accident. Although there is no stare decisis in this regard, in order for an accident occurring within the scope of working from home to be considered as a work accident, it must occure in connection with the work and during the work. For example, if a computer provided by the employer burns and the employee’s body gets injured it may be considered as a work accident according to the conditions.
If the work accident occures, the employer is obliged to report the occupational accident according to the the procedures and principles regulated inthe article 14 of the Occupational Health and Safety Law, and the work accident should be reported to the Social Security Institution within 3 working days after the accident.
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