Educator : Mesut Balcı, President of the 21th Civil Department of the Supreme Court of Appeals
Training Notes : Att. Mert Karayol
In our legislation, there is the concept of disease, there is the concept of occupational disease, there is the concept of work accident. What scope will Covid-19 be evaluated in?
About the h1n1 influence disease, the civil department has only one decision. This decision was made by majority of votes. Case: There was a truck driver entering into Turkey from Ukraine. Upon entering, it has turned out he had h1n1 influenza disease. He died in hospital. According to reports, the civil department agreed to a work accident, as he had h1n1 influenza disease while he was working in Ukraine. We cannot say occupational disease. It’s not about the profession of the truck driver. It is a situation that occurs at work; not a disease. Since it is a lawsuit that is seen within the scope of Social Security legislation, no positive or negative assessment has been made for the employer’s fault.
Social Insurance and Universal Health Insurance Law numbered 5510
Definition, notification and investigation of work accident
ARTICLE 13 -Work accident is the incident which occurs;
a) When the insured is at the workplace,
b) Due to the work carried out by the employer or by the insured if he/she is working on behalf of own name and account,
c) For an insured working within an employer, at times when he/she is not carrying out his/her main work due to the reason that he/she is sent on duty to another place out of the workplace,
d) For a nursing female who is an insured under subparagraph (a) of paragraph one of Article 4 of this Law, at times allocated for nursing her child as per labour legislation,
e) During insured’s going to or coming from the place where the work is carried out, on a vehicle provided by the employer, and which causes, immediate or delayed, physical or mental handicap in the insured.
The work accident should be notified;
a) by the employer employing the insureds under item (a) of paragraph one of Article 4 and Article 5, immediately to the authorized police forces of that location and within maximum three workdays following the accident to the Institution,
b) by the insured himself/herself under item (b), within three workdays following the date on which his/her discomfort does not hinder to make notification but not later than one month,
directly or via registered mail, to the Institution with a work accident or occupational disease declaration. The time period stated in item (a) of this paragraph shall commence following the date of being informed about the work accident, in case the work accident takes place at places out of employer’s control.
In order to reach to a decision whether to consider the incident notified to the Institution is a work accident or not, an investigation may be carried out, if necessary, by the officers of the Institution authorized with inspection and control or by the labour inspectors of the Ministry. If, at the end of such investigation, it is found out that the issues notified in written are not true and that the incident is not a work accident, then the unjust payments made for this incident found by the Institution shall be collected in accordance with the provision of Article 96, starting from the date of payment, from the parties who submitted false notification.
The form and content of the work accident and occupational disease declaration, the method of issue and the procedures and principles regarding the application of this article shall be regulated by the regulation to be issued by the Institution.
Definition, notification and investigation of occupational disease
ARTICLE 14- Occupational disease is a temporary or permanent disease, physical or mental disability that the insured suffers due to due to the nature of the work he / she is working or doing, for a repeated reason or because of the execution conditions of the work.
In order to consider Covid-19 as a work accident; the employee must have this disease while he does employer’s work.
Can we consider occupational diseases in terms of medical professionals? Can we say that there is an occupational disease in terms of employees in the hospital? Can we say occupational disease in terms of other workplaces? Not for me. It’s a temporary situation.
Occupational Health and Safety Law numbered 6331
ARTICLE 3 – (1) For the purposes of this Law, the following terms shall have the following meanings;
a) Ministry: Ministry of Labour and Social Security,
b) Employee: any natural person employed at public or private sector workplaces, regardless of their status in their relevant laws,
c) Work accident: any occurrence taking place at the workplace or due to the performance of work which leads to death or physical or mental impairment to the physical integrity of the victim,
d) Employer: any natural or legal person or any institution and organisation which is not a legal entity who has an employment relationship with the employee,
e) Workplace: any organisation in which material and non-material elements and employees are organised together to produce goods or services, where the employer is linked in qualitative terms to the goods or services produced and which includes locations linked to the workplace organised under the same management and other premises and equipment such as rest rooms, nursing rooms, canteens, sleeping, washing, examination and maintenance facilities as well as physical and vocational training locations and courtyards,
1) Occupational disease: any illness caused by exposure to occupational risks;
These legislations were not prepared by the lawmaker by predicting epidemic disease.
The easiest way is to consider as a disease.
However, if the citizen suffered this disease at the workplace and did not wear a mask, if it caused death; the employer will be responsible if she/he has not applied the distance rule, measured fever, taken any measures in the service.
Let’s evaluate in terms of Social Security Institution (SSI). SSI’s and Employer’s interests are in conflict.
Even if the institution considers this situation as a work accident, as a disease or as an occupational disease, the employer will pay benefit for temporary incapacity to the employee But; if the institution considers as disease, the employer will not be able to recourse the amount paid, even if the employer is faulty. If it is considered as a work accident, it will recourse the employer for the rate of fault.
Is Covid-19 can be considered as a force major? If the measures are taken, it seems possible to prevent corona. There are practices such as unpaid leave etc. You cannot take advantage of force major.
You took all kinds of measures, provided training, had a risk analysis, despite all this, if you did not follow the wearing of a mask, you are also faulty.
Situation of inevitability: There is a predictability, but you cannot prevent it no matter whatever measures you take. The provision of the Regulation: “The principle of inevitability is taken into account in determining the responsibility of the employer. Inevitability is the occurrence of work accident or occupational disease despite all measures to be taken in accordance with the scientific and technical rules valid at the time of the incident. If the employer has not taken any necessary measures, the inevitability of the event cannot be considered.” Established decisions: Should the employee suffer this alone? The employer is in the strong situation. We made established case-law that 60% would be suffered by the employers and 40% by the employees. If Work Accident and Occupational Disease is accepted, the institution endows an income. But it cannot recourse. Article 21 of Law Numbered 5510 has regulated the liability due to fault. For this reason, the income endowed by the institution cannot be deducted from the calculation of the compensation case to be filed pursuant to the Turkish Code of Obligations.
Mert Karayol’s Note-1: The difference between the force major and the inevitability in terms of responsibility is that the employer is not responsible for the force major, however the responsibility of the employer may arise in terms of inevitability in accordance with the equity.
Mert Karayol’s Note-2: Sample decision on situation of inevitability; Inevitability is legally and technically, refers to the situation and results that cannot be prevented scientifically, in other words, even under the conditions where all the measures stipulated by the legislation have been taken by the employer. If it is determined that an incident occurred totally as a result of inevitability, the judge should determine the responsibility of the employer to the extent of equity considering the Article 43 of the Code of Obligations. Although it may seem appropriate to share 50% of the responsibility for both parties at first, if the economic and social conditions of the parties are taken into consideration in such cases between the employee and the employer; a little more responsibility for the employer can be considered as required by the principle of social law state.The settled practice of the Supreme Court of Appeals is in this direction.While it was necessary to determine the responsibility of the defendant employer by imputing 60% of the inevitability to the defendant employer since it is determined that 100% inevitability is effective in the realization of the work accident in the concrete event, considering the principles mentioned above, especially in terms of ensuring the balance of blessings and burdens; It is contrary the procedure and law to make a written decision by alleviating the responsibility of the defendant employerwhich causes the defendant to be responsible for 50% of the inevitability with reference to the legal regulation regarding the equity reduction which is not likely to be applied in the incident. 21TH CIVIL DEPARTMENT OF THE SUPREME COURT OF APPEALS DECISION NUMBERED 2016/115 E., 2017/2948 K. AND DATED 10.4.2017
Employer’s obligation to notify work accidents: The employer should notify immediately to the authorized law-enforcement officers at that location, and to the Institution within three working days after the accident at the latest. If he/she notifies late, it will be recourse to the employer for the incapacity allowance paid to the employee, even if the employer is without fault. But if the employer reports Covid-19 as a disease, the employer will not be responsible for it because we cannot name it.
Subject of the proof: The proof is difficult. He/she may have caught outside or at home. It may be caught on the street because she/he was without a mask. The way of proof may be the following: If someone is ill at a workplace, people who are in close contact are also tested. This is the filiation application announced by the Minister of Health. If it is fixed that the disease spread from there, the employer is responsible for the inevitability. He is responsible for the fault, if any. The employer may be responsible for fault + inevitability. If it is proven it was in the workplace, regardless of the name (illness, occupational disease, work accident), the employer will face the obligation to compensation in case of death etc.
Mert Karayol’s Note-3: Sample decision on situation of inevitability + fault; Indeed, in cases where the work accident results from inevitability completely, imputing the liability of inevitability to only one of the parties damages the sense of justice. Since the inevitability is an unavoidable event for both parties, it should be suffered the negative consequences caused by the unexpected event by both parties. (Erlüle, F.: Bedensel Bütünlüğün İhlalinde Manevi Tazminat, 2. Edition, Ankara 2015, p. 400 ff.). In such cases, the damage caused by the inevitability shall be imputed to the parties according to the extent required by equity (…, p.96). Although it may seem appropriate the responsibility to be shared by the employee and the employer at the rate of 50% if the incident is caused by the inevitability, it is necessary to give the employer more responsibility for reasons such as the weakness of the employee against the employer, the blessing-trouble balance, the protection of the employee and the principle of social state. Consequently, in cases where the inevitability is completely effective in the occurrence of a work accident, while determining compensation within the framework of article 51 of the Turkish Code of Obligations numbered 6098 by the judge, it will be a fair solution to accept that the employer’s fault is 60% and the employee’s fault is 40%. (The decision of the General Assembly of the Supreme Court of Appeals dated 07/03/2019 and numbered 2015/ 21-983 E. – 2019/252 K. is on this direction) After these explanations; since the work accident was caused by a 20% inevitability factor in the concrete case, the decision made based on the expert account report made considering that the defendant employers have 80% fault in the occurrence of this damaging incident is against the procedure and the law. The procedure shall be commenced is to make a decision according to the result to be obtained by getting a new expert account reportconsidering the data in the account report dated 06/03/2018 at the point of determining the material losses of the right holders by accepting that the defendant employers are faulty at 60% of the 20% inevitability factor in the occurrence of the work accident subject to the case. The decision of the court in writing without taking these material and legal facts into consideration is against the procedure and the law and is the reason for the reversal. 21TH CIVIL DEPARTMENT OF THE SUPREME COURT OF APPEALS DECISION NUMBERED 2019/220 E., 2019/6669 K. AND DATED 7.11.2019
-Answers to Questions-
– Scope of work accident in teleworking; while brewing tea in the kitchen, she/he poured hot water; she/he cut the hand while cutting tomatoes. This is not a work accident. Because it’s not a work run by the employer. It is not a work accident if she/he does his own domestic work. The subject of the proof shall be evaluated according to the characteristics of the witness and the concrete event. Law-enforcement statements and health reports are also important for evaluation. The employer is obliged to provide training according to the nature of the work. It shall be evaluated according to the concrete case, but it does not seem possible to audit.
– Difference between work accident and occupational disease. There is a list of occupational diseases. Work accident shall be sudden and come from outside. Occupational disease requires a process. For example: Deathfulness. The other employee came and hit the other one’s ear violently. It is a work accident because there is an external effect. If there is deathfulness occured in the workplace due to machine sounds over time, this is an occupational disease. For example; Cerebral hemorrhage; heart attack is considered a work accident. There is a social state approach.
– What if the employer does not accept the employee’s offer to work from home and he/she gets caught Covid-19 while going to work by public transport? The employee cannot say that she/he will work from house against the contract unilaterally. In this regard, the employer has no responsibility. If transportation provided, the employer is responsible.
– If it is understood later that the employee has got caught in Covid-19 at the workplace and the employer has not made the work accident notification within this period in this process, can the SSI recourse for the payments made to the employee to the employer? It is important that SSI’s definition of Covid-19. If it describes it as a disease, it will not be able to recourse anyway. If it considers it as a work accident, it may recourse.
– Can an occupational disease be accepted in terms of the auxiliary staff working in hospitals? The epidemic is a temporary condition. It is difficult to consider it as an occupational disease.
– Is the employer responsible if the employee gets caught Covid-19 during the work from home? If the employee does shop at home in connection with the work (cargo etc.), the employer’s responsibility may occur.
– What are the measures to be taken to eliminate the responsibility of the employer against Covid-19? Every measure! The employer should really provide training, give protective equipment, working conditions should be stretched so as not to transmit diseases, etc. The question is also wrong. The employer should not think to eliminate own responsibility. We should think how to prevent this disease! We must change our perspective as a society!
– If there is an inevitability situation, will the employer’s responsibility be accepted as 60 %? There are hundreds of decisions of the 21th Civil Department of the Supreme Court of Appeals. It is a settled law-case that has existed since 1994.
– If the employee cannot reach the mask due to the banning of the sale of the mask, can the employer be considered faulty in this case? The employer’s procurement possibility should be explored. Despite this, if it cannot find a mask, it is not true to say that I could not find a mask but come and work in a workplace. Your fault arises as an employer.
– How can the employee prove that she/he caught Covid-19 at the working place? He/she can prove with filiation. He/she can prove with the witness (the other employee coughs, has a fever etc).
– Does the employer have responsibility for work that are continuous due to the nature of the work? The employer will take all measures. Let’s say he/she did it. Then, there’s an inevitability fact. In this case, the employer is held 60% responsible. It’s too hard.It’s hard to be an employer, hard to be an employee. Being a lawyer is also difficult; let me say that too!
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