Responsibility of the Employer in Dangerous and Very Dangerous Jobs

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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