Responsibility of the employer

The liability of the employer, regulated under the title of "duty of care" in Article 66 of the Turkish Code of Obligations, constitutes a special type of tort liability. Although it is controversial in the doctrine whether the liability is fault liability or a type of strict liability, the dominant view is that it is strict liability. The Supreme Court of Appeals has also adopted the type of liability as strict liability in its ongoing jurisprudence. As a matter of fact, 27.03.1957 day and 1/3; This situation is clearly stated in the Unification of Jurisprudence decisions dated 22.06.1966 and numbered 7/7. In these decisions, "Although such a situation does not occur for the provision of Article 41, which forms the basis of fault liability in unfair acts, in cases of liability where no fault is sought, such as the liability of persons who do not have the power of appeal (Article 54), the liability of the employer (Article 55), the liability for animals (Article 56), the liability of the owner of the work (Article 58), and even the liability of the head of the family (Civil Code, Article 320), fault is not required to award pecuniary compensation, and this In such cases, if death or physical damage has occurred, the existence of fault is not a requirement in order to claim non-pecuniary compensation based on Article 47." It is stated as follows. The Supreme Court continued this practice and reference was made to the IBGK decisions in subsequent decisions.

Article 66 of the Turkish Code of Obligations includes the liability of the employer, the conditions of this liability, the possibility of relief, the liability for compensation and the right of recourse. Unlike the Code of Obligations No. 818, this time the possibilities of salvation have been narrowed. In fact, this narrowing had no effect in terms of the purpose of the two laws and their conclusions. For this reason, it can be said that there is no functional difference between the two laws. In our subject of examination, we will first make explanations about the conditions, then the possibility of salvation and the liability for compensation, and finally the right of recourse, based on the legal system.

TERMS OF LIABILITY OF THE EMPLOYER

We have stated above that this liability is essentially a tort liability. Based on this, it must be said that in order to be held responsible for the employer, there must be a causal link between the action, the damage, and the action and the damage. Considering that the aspect that distinguishes it from tort liability is fault, it will be necessary to state once again that fault is not required in this type of liability. These conditions we have mentioned are the general conditions required to be held accountable for employing people. There are also special conditions required for this type of liability, all of which are listed as follows in a decision of the 17th Civil Chamber of the Supreme Court of Appeals:

"For an employment relationship, the person employed must be under the command of the employer, perform the work under his supervision and be bound by his instructions. In addition, the damage that occurs must have occurred while the employee is performing a service for the purposes of the employer. In other words, there must be a very close relationship "in terms of purpose and duty" between the service rendered to the employee and the damage. In this respect, the time and place dependency between the performance of the service and the infliction of the damage and the damage caused by the employment Although the fact that the damage is caused by the means provided by the employer for the performance of the service can be considered as a presumption or an indication that damage has occurred during the performance of the service, it does not always give correct results to attribute it to these elements, therefore, rather than these external elements, it is taken into consideration that the damaging act was committed in the field of performance of the services entrusted by the employer to the employee for his own purpose.

So, we can list the special conditions of liability of the employee as follows:

1- There must be an employment relationship based on dependency between the employer and the employee.

2- The damage caused by the employee to the third party must have occurred during and as a result of the work.

3- The employer should not have any possibility of salvation.

All these conditions will be examined under separate headings below.

1- DEPENDENCE RELATIONSHIP BETWEEN THE EMPLOYER AND THE EMPLOYEE

We think that the concept of employing men should be defined before giving explanations regarding this condition. For this reason, first of all, the concept of employer will be tried to be explained.

1.a- WHAT MAKES MEN EMPLOY?

Although the concept of employing people has very broad definitions in theory and practice, it does not have a legal definition. This concept is defined in its simplest form as follows:

"Employer is a person who benefits from the service of another person for his own benefit by employing him in a job belonging to him, in accordance with his orders and instructions." (Fikret EREN General Provisions of the Law of Obligations No. 6098, 22nd Edition p. 647)

The concept of employee also includes the concept of employer, but it is a higher concept. The title of employing people is not a title earned only through an employment contract. The difference between the concepts of employer and employee arises from the issue of wages. Because while the employer employs an employee for a wage, the employer does not necessarily have to pay the employee a wage. In this respect, the concept of employing people should be considered as a broader concept that includes the employer. It should also be noted that the employee may be a real person or a legal entity.

A distinction must also be made in terms of work contracts. We have mentioned the details of work contracts in our previous articles. Based on this, it should be noted that in cases where the employer has control over the work contract, he can be held responsible as an employee. An example Supreme Court decision is as follows:

"The case is about a claim for compensation based on the legal cause of tort. As a rule, in work contracts, there is no dependency relationship between the owner and the contractor. The contractor is obliged to carry out and deliver the work he has undertaken, independently of the owner. However, this is not an absolute rule. In the work contract, it is possible for the owner to be granted the authority to give orders and instructions to the contractor and to supervise the work. In this case, since a dependency relationship will be established between the owner and the contractor, the owner will be chainedly responsible for the damages caused by the contractor to third parties as an employee." Y7HD. 2011/98 K.

1.b- ELEMENT OF DEPENDENCE

According to Article 66 of the Code, the first condition of liability is the existence of a dependency relationship between the employer and the employee. As it is known, there are many ways to establish a legal relationship between the parties. However, in order to be held responsible for the employer in terms of this legal relationship, there must be a relationship of dependency between the parties. The dependency relationship includes elements such as control, giving orders and instructions, and supervision. Therefore, in employment relationships that do not contain any of these three elements, the employer cannot be held responsible.

In determining the phenomenon of employing men, the elements of dependency and dominance should be taken into consideration. If the damage is caused by someone who is under the responsibility of supervision, the employer may be held responsible. The element of addiction must be determined meticulously. Although in some cases there seems to be no element of dependency between the parties; One of the parties may continue to dominate the business. For example, in a subcontracting relationship, the subcontractor will do the work himself. However, the point that should not be forgotten here is that the subcontractor is under the control of the main employer. For this reason, it is possible to apply to the main employer in such cases. The 4th Civil Chamber of the Supreme Court of Appeals stated this in its decision numbered 2014/6036 K; "The defendant argued that the case should be rejected due to hostility, stating that he had outsourced the infrastructure services to another company under contract, and that all responsibility belonged to the contractor company in accordance with the contract. Considering that the defendant company has the authority to supervise, control and supervise the company to which the defendant's work was undertaken, in accordance with the contract, and in this respect, if there is a damage that has occurred in line with the claim, the defendant business owner is also responsible because it is understood that his control and responsibility continues, the existence of hostility must be accepted." He expressed it as follows.

In order to better understand our explanations, we will examine another exemplary Supreme Court decision. In its decision numbered 2016/11174 K. of the 4th Civil Chamber of the Supreme Court of Appeals; It ruled that the company that transferred the work to another company by contract was also responsible due to the existence of the control element mentioned above. In this decision; "The case is about the claim for financial compensation due to tortious action. In the concrete case, although the defendant transferred a part of his work to the other defendant with the contract he signed, he is perfectly liable as an employee in accordance with Article 66 of the TCO, since he has the obligation to control and supervise the work done by the other defendant, and the other defendant is responsible as a tortfeasor in accordance with Article 49 of the TCO. As such, there is joint and several liability between the defendants." His statements are included.

There will be no liability conditions for independent employees. The following Supreme Court decision serves as a precedent in this regard:

"The case is about the claim for compensation based on the State Supported Animal Insurance Policy. Although the court decided to accept the case within the framework of the liability of the employer, in accordance with the Regulation on Insurance Experts, experts are not employees of insurance companies, but consist of people who have received the necessary training and license to act as experts within the framework of the relevant legal legislation. They are self-employed due to the nature of the work they do. In this respect, the appointed expert has no relationship with the insurance company." "There is no employment or assistant person relationship within the meaning of Articles 66 and 116 of the Turkish Code of Obligations No. 6098. In this case, while the court should have determined whether the damage was covered by evaluating the insurance policy and the general and special conditions of the policy and made a decision based on its conclusion, it was not correct to make a decision with written justification and required reversal." Y11 HD. 2015/12396 K.

According to the Supreme Court, in cases where there is a record of irresponsibility between the contractor and the main employer, the main employer cannot be held responsible as an employee. As a matter of fact, a provision has been made in this direction in the decision we share below:

"The case is about the claim for compensation for the damage arising from the work contract. In the undisputed contract drawn up between the parties, the General Specification for Construction Works was listed among the annexes. This provision of the specification is in the nature of an evidentiary contract in accordance with Article 193 of the Code of Civil Procedure No. 6100 (Article 287 of the Code of Civil Procedure numbered 1086), which was in force at the time the contract was made, and is binding on the parties. It must also be taken into consideration ex officio by the judge. Article 9 of the General Specification for Works states that "Since the responsibilities and obligations undertaken by the contractor under the contract are not limited to the insurance in question, in cases where the contractor is at fault, as stated in the "Cases excluded from coverage" article of the general conditions of construction insurance policies, the contractor cannot make any claims from the administration for the amounts not paid by the insurance due to the defect, and the contractor will be directly responsible for the accidents that will occur during the continuation of the work, the loss of life and property caused by these accidents, and any damages to third parties. The obligation to meet all demands and claims arising from the actions and actions of the contractor or subcontractors that are within or outside the scope of insurance belongs to the contractor... The contractor cannot hold the administration and the administration personnel responsible for his or her or the subcontractor's negligence, negligence, gross negligence or any faulty act...." This provision is a record of irresponsibility on the part of the administration, and unless there is a penalty provision against the administration staff, it is not possible for the administration to be held responsible for the damage or to accept that it is responsible and to reduce the compensation against the administration. By the court. "It was not right to reduce the compensation at this rate, taking into account the expert report stating that the administration was 20% at fault." Y15HD. 2018/5156 K.

As we tried to explain in detail above, any legal relationship that involves an element of dependency can lead to the liability of the employer. The naming of the legal relationship does not matter in terms of liability. In many cases such as service contracts, work contracts, and power of attorney contracts, the employer is under perfect liability with the existence of conditions. As a matter of fact, this type of responsibility can be applied even in the father-son relationship.

2- EMPLOYEE CAUSES HARM TO A THIRD PARTY DURING AND DUE TO THE WORK

According to the provision of TBK 66/1; The employer is obliged to compensate for the damage caused to others by the employee during the performance of the work assigned to him. The legislator emphasized here that the damage should occur especially during the performance of the work. However, the expression "during the performance of the work" should be interpreted more broadly as "functional commitment". In order for the employer to be held liable, the employer must commit an unlawful act through work. Not every illegal act committed by the employee during working hours will lead to the liability of the employer. This situation is expressed with the concept of causal link. If a causal link cannot be established between the working relationship and the damage caused, the employer will no longer be held responsible. While making this determination, each concrete incident must be examined meticulously. For example, an employer who sends his employee on an intercity trip will be held responsible if the employee causes damage due to this work. If an employee injures someone due to a traffic accident, the employer will be held responsible. However, if the employee goes to a bar unrelated to work during the trip (during working hours) and starts a fight, then the causal link will be considered severed. In the previous example, even if a traffic accident occurred due to the employee's fault, the employer will not be free from liability. This situation arises from the employer's duty of care.

Again, by "due to business" we mean actions taken for the benefit of the employer. If the employee goes beyond the instructions and performs an action unrelated to the job, the employer is relieved of liability. But here, too, careful evaluation is necessary. Because the employer must be careful when giving instructions. If the employee thinks that the action he takes is for the benefit of the employee, then the employer will be responsible due to the duty of care.

As we tried to explain above, determining the causal link requires separate consideration for each event. The employer's duty of care and causal connection will be evaluated through competition in many cases. Therefore, the causal link must be severed in a way that exceeds the employer's duty of care. We will re-evaluate this issue with the Supreme Court decisions under the title of duty of care. As we have stated, in order to reach the correct conclusion, it is necessary to make this broad comparison and evaluate the duty of care and causality together.

The following Supreme Court decision explains the circumstances in which the causal link will be severed:

"In accordance with the provision of Article 55 of the Code of Obligations, in order for the employer to be held responsible, it is sufficient that the damage arises from the illegal action of the employee and that there is a suitable causal link between the damage and the employee's action.

One of the important elements of Liability Law is the existence of a causal link between the damage and the action. In cases where the causal link is severed, the person who is perfectly responsible will not be held responsible. In theory and practice; With force majeure, the total fault of the injured party and the gross fault of the third party, the causal link is severed and the person who is perfectly responsible is relieved of liability.

The employer is obliged to select a person who has the appropriate intellectual, professional knowledge and skills for the job to be done. He will look for the assistant he will choose to be qualified for the job he will perform, to have received sufficient training, to have assimilated and followed new knowledge, methods and techniques (General Provisions of the Law of Obligations, Prof. Fikret Eren, Volume: 2-4 edition, p.160). (HGK. 15.06.1994 day and 11-178 K.)

The defendant's failure to resort to these simplest measures should be seen as evidence proving that he has clearly abused his objective duty of care. In order for the defendant to be exempt from liability as an employee, he will have to prove that the damage would have occurred if he had exercised the necessary care.

In the concrete case; "Since it is understood that the incident subject to the case occurred due to the action of the site official, who acted in accordance with the instructions of the flat owners, in the site where the defendants are the flat owners, and that the flat owners should be held responsible in accordance with the provision of Article 55 (T.B.K. 66) of the Code of Obligations, due to the act committed by the defendant, it was not deemed appropriate to decide to reject the case for these defendants with written justification, and it required reversal." Y3HD. 2018/7474 K.

3- LIABILITY OF THE EMPLOYER, EVIDENCE OF LIBERATION

TBK 66/2. In the article, a proof of salvation is included so that the employer can be freed from liability. According to the article; If the employer proves that he took the necessary care to prevent damage from occurring while selecting his employee, giving instructions regarding his work, and supervising and supervising, he will not be liable.

We have stated in many places that the liability regulated in BK 66 is one of the types of strict liability. On the other hand, holding the employer responsible in all cases is incompatible with the understanding of justice. For this reason, even though the legislative framework is narrow, it has included an evidence of salvation in favor of the employee. In fact, this evidence of salvation is expressed as a duty of care. While violation of the duty of care imposes liability on the employer, proof of care relieves him of liability. If you pay attention, the law has greatly expanded the limits of the duty of care. In other words, the care expected from the employer must be separated from other care obligations. If the employee cannot provide evidence of salvation along with other conditions, he will be held responsible for the damages caused by his employee to third parties. With this condition, we have completed our explanations regarding the conditions of the employer's liability. Detailed explanations will be made under the following heading regarding the employer's duty of care.

DUE DUTY OF CARE OF THE EMPLOYER

The legislator listed the employer's duty of care under 4 different headings and sought proof that the duty of care was fulfilled objectively in order to be free from liability. Therefore, evaluation cannot be made based on subjective criteria. Detailed explanations on the subject are included in an important decision made by the 4th Civil Chamber of the Supreme Court of Appeals on 10.02.1978. This decision is also important in terms of our subject of review due to its references to the IBGK decisions we shared above. Again, below, separate explanations are given for 4 headings (a-b-c-d), from the employer's selection to the organizational responsibility.

"As it is known, the principle that employers are held responsible for the actions of their employees, as expressed in Article 55 of the Code of Obligations, is based on the principle that a person who employs someone else for his own benefit bears the risk of loss arising from the performance of this job under certain conditions. Regarding the liability of employers, both in the doctrine and in the jurisprudence (27.03.1957 day and 1/3; 22.06.1966 day and number 7/7). The dominant view in the Unification decisions of the jurisprudence is that they are subject to strict liability. The source of the employer's liability is the violation of the duty (duty) to work diligently, the root of the liability is in the position of the responsible person or persons. The employer is obliged to ensure that they do not harm others while employing them and to pay attention and care to this. It constitutes a violation of the objective duty to supervise and care for employees.

This duty of care of the employer is generally considered on four principles in doctrine and practice.

a) The user must be careful and attentive in choosing his employee or worker,

b) Must pay attention to instructions,

c) Must take care in inspection and supervision,

d) Most importantly, in addition to selection, instruction and supervision, the employing person is also responsible and obliged to establish the organization of the work in a fundamental and correct manner. Because this obligation is one of the most important factors that will prevent possible damage, if the employer uses insufficient personnel compared to the strength and importance of the job, or if he organizes the performance and execution of the job in a dangerous way, he will be deemed to be at fault in terms of organization. Likewise, the working tools and materials used by the employer to carry out the work must be useful. If the tools and equipment he entrusts and delivers to the men he employs and the materials he uses in his work are defective or faulty, he will also be at fault in terms of organization.

However, it should be noted right away that, considering all these precautions (precautions) that employers are obliged to take and the jurisprudence unification decisions whose dates and numbers are mentioned above, it is seen that failure to comply with them is negligence or fault that can be described objectively. Because what is in question here is that the necessary attention and care was not taken. This duty of care and the failure to comply with it are objectively appreciated. A subjectively excusable reason cannot relieve the employer from liability (Haluk Tandoğan - Turkish Liability Law - Ankara 1961 - Page. 108 ff.) Because, according to the view adopted both in doctrine and in practice, the liability of employers regulated in Article 55 of the Code of Obligations is not based on a presumption of fault. According to the style of action accepted in Turkish law as well as Swiss Law, neither the employer nor the employee is required to be at fault here. Liability arises regardless of the fault of either of them. For this reason, the responsibility of the employer is accepted as a CAUSE LIABILITY" (See the above-mentioned Case Law Unification Decisions). As a matter of fact, as stated in the 4th paragraph of the Jurisprudence Unification Decision dated 27.03.1957 and numbered 1/3, the possibility of salvation that Article 55 of the Law gives to the employer is not a proof of perfection. As a matter of fact, since taking precautions, such as a sudden mental illness or a sudden accident on the part of the user, constitutes a force majeure, he should not be held responsible in any way for the consequences of not taking precautions. However, this is not the case. Because, the only purpose of putting the reasons for exemption from liability into law is to reduce the social danger by encouraging business owners to take measures to prevent harm, with the idea that they will be relieved of responsibility; Otherwise, it is not the idea of ​​​​introducing the element of fault into the text of the law. So, to summarize, when the other three elements of the unfair act, except the element of fault, arise and are formed in a harmful event, the user will be held responsible.

In our case, it is undisputed that there is a subordination relationship between the operator using the crane and the defendants, and since the damage occurred during the performance of the work by the crane operator, there is a causal relationship between the performance of the work and the damage.

Therefore, it would be beneficial to examine in detail whether the defendants, who used men, showed the necessary care and attention in the incident that resulted in the plaintiff suffering physical damage.

a) First of all, it cannot be claimed that the defendants were careful in choosing their employees, who were crane operators. Because, as a rule, when choosing an employee, a business owner should obtain information about his/her merits, physical abilities and character. He should show the same care, especially when assigning new and important tasks to the man he employs. However, according to the statement in paragraph 9/2-d of the report dated 12.09.1972 prepared by the occupational safety inspectors, it is understood that the crane operator does not have any documents or testimonials stating that he is a qualified person in this regard. The defendants have not claimed or proven the contrary of this statement and fact. Moreover, it is understood from his own statement that the crane operator, who is the defendant's man, did not see his surroundings from the cabin where he was operating the crane while lifting the prefabricated purlins, which were 6 meters long and weighed between 500 and 535 kilograms (declaration dated 14.09.1972). The fact that a crane operator, who is doing a difficult and important job, does not ask for a helper even though he cannot see his surroundings from where he is sitting, is the most obvious proof that he is not competent for this task. As a matter of fact, from the explanations in paragraph 9/2-c of the above-mentioned report, it is understood that the operator acted carelessly, which is a sign of faulty behavior in the selection of the crane operator. When lifting prefabricated iron purlins, a competent and competent employee or an expert worker should have specifically checked the strength of the carrying rings and warned his employer in case the rings broke. The employee acted at fault by not wanting this simple precaution to be taken.

b) It is not possible to say that the defendant employers fulfilled their instructions carefully. Because, people who use men are obliged to draw the attention of their men in jobs that pose a special danger. Although the work carried out by the defendants was very dangerous, they did not show that much care and attention regarding the instructions. For example, although they had placed a (no trespassing) sign in the working area of ​​the crane, they did not give strict instructions to their men to prevent passage through this area; If they had given this instruction, it would have been ensured. Because the plaintiff was a foreign person who was not related to the defendant company and controlled the electrical works of Company XX, which had the work done.

c) The defendants are obliged to constantly supervise the men they employ in their capacity as employers. Because, as a rule, the employer is responsible for the employee's failure to comply with the instructions given by the employer. It is clearly understood from the documents and evidence in the file that the defendants neglected their duties of supervision in the assembly work, which was understood to pose a special danger. For example, as both the witnesses and all experts jointly stated, although a sign was placed prohibiting entry into the dangerous working area of ​​the crane, passage through it could not be prevented by action. This direction could be carried out virtually or even by force, if necessary, by posting one or more officials there. However, as clearly stated and pointed out in the expert report dated 28.07.1975, the defendants did not have a responsible person in this dangerous area. All these material facts show that the supervision duty was not carried out with sufficient care and attention.

d) It is understood that those who employed the defendant did not organize the work in a fundamental, correct and healthy way. This aspect has been touched upon in some detail in paragraphs b and c above. Although, according to the expert reports, no malfunction or malfunction could be detected in the crane operated by the defendant contractor company. However, in addition to the tools and equipment used by the employee, the employer must also ensure that the materials used in construction are faultless, and at least not use defective or defective materials. The defendant employer was responsible for the installation of XX Company's raw material warehouses with prefabricated materials. The iron purlins to be assembled are 6 meters tall and weigh between 500 and 535 kilograms. This material is lifted by a crane to be attached to the carrying rings, that is, the connection hanger bars, and assembled in place. It is understood from expert reports that the incident occurred when the carrying ring broke while lifting this material, which is very dangerous, with a crane and the other one could not support this weight. Experts generally agreed that a manufacturing defect was found in the carrying rings of the fallen material. However, in the report dated 19.09.1972 prepared by the occupational safety inspectors, although it was accepted that the incident occurred due to the faulty behavior of the crane operator, and on the contrary, in the expert report dated 28.07.1975, it was accepted that the defendants did not fulfill their duty of instruction carefully as stated in paragraphs b above and did not have anyone responsible to ensure that no one entered the dangerous area, thus they were 40% at fault in the occurrence of the incident and 60% of the fault was with the plaintiff; In the expert report dated 12.04.1976, it was concluded and concluded that the defendants were not found to be at fault for the occurrence of the incident because they had taken all possible precautions by declaring the area around the load-lifting crane as a dangerous and forbidden zone, and finally, in the last report dated 07.02.1977, it was accepted that the precautions specified in the previous report were taken and that the incident was essentially caused by a force majeure caused by a manufacturing defect, and it was concluded and concluded that there was no situation requiring the defendants' responsibilities. The local court also adopted the ideas in the last two reports and rejected the case. First of all, it should be stated immediately that the opinions in the last two expert reports are neither in terms of material facts nor in terms of BK, which constitutes the source of responsibility. 55th ofIt is not possible to participate in terms of the clear provision in the article. Namely; Even if it is accepted that the carrying ring of the 6 meter long material lifted by the crane was broken due to a manufacturing error, this cannot eliminate the liability of the defendant man-user. Because, the manufacturer company BK against the plaintiff who suffered damage. In accordance with the provision of Article 41 of the BK and the defendant contractor in his capacity as employing personnel. is responsible in accordance with the provision of Article 55 of the. In this respect, it is unthinkable that the defendant contractor can escape liability by claiming that the carrying ring of the concrete pole broke. Because the defendant contractor is responsible for the defective and defective materials used in the workplace and for the damages resulting from this. It does not matter whether these materials were purchased from another manufacturing company or not. Just as an employee cannot avoid liability by claiming that there was a mistake in the manufacturing of a tool or equipment used by his employee and that the incident arose from this manufacturing error, he cannot avoid liability by claiming that there was a manufacturing error in the materials he used in his work. Because the principle of CAUSE LIABILITY prevents such a defence. Moreover, the defendant is also responsible for investigating and checking whether the materials used by the workers are sound or not. More importantly, it is not possible to accept that the only factor and reason for the occurrence of the incident is the manufacturing error. Because, as clearly stated in the report dated 28.07.1975, if the defendant man had not only declared the dangerous area where the crane was working as a forbidden zone, but also appointed a responsible person to prevent others from entering that area, and if that officer had fulfilled his duty carefully and not let anyone in, he could have easily prevented the love, whose carrying ring broke off due to a manufacturing defect, from harming others. Therefore, it is not possible to attribute the occurrence of the incident only to a manufacturing error. Essentially, the defendants violated Article II of the contract. They accepted responsibility according to the article.

We have stated that those who employ people must first be careful in selecting men. In the Supreme Court decision that we will share below, a broad interpretation was made regarding the limits of the duty of care. In addition, we find this decision very useful in terms of concretizing the relationship between the above-mentioned causal link and responsibility of care. Accordingly:

"In this context, when it comes to the analysis of the concrete incident; according to the information and documents in the file, it is understood that the out-of-case worker, who was working in the workplace belonging to the defendant on the date of the incident, had to leave his job because a foreign tourist woman was raped in the place where he had previously worked. Although the out-of-case worker, who committed the damaging act, hid the rape incident while taking a job at the hotel owned by the defendant; since he used the insurance number he received from the workplace he left when he started a new job, this worker was not able to leave the workplace in general. "It is understood that although it was possible to obtain the necessary information about the behavior, this was not taken into consideration and thus the defendant, who employed men, did not show the necessary care." Y4HD 2000/4389 K.

CONSEQUENCES OF EMPLOYER'S LIABILITY

The legal consequence of the employer's liability is that the employer must pay compensation. If the conditions mentioned above are met, the employer will have to pay compensation for the damages caused by the employee to third parties. This compensation is determined as material and moral compensation. However, since the first condition for compensation is damage, the damage must be determined before compensation. Damage and compensation are determined according to tort provisions. Article 50 of the TBK is as follows:

"The injured party has the burden of proving the damage and the fault of the person causing the damage.

If the amount of damage suffered cannot be proven exactly, the judge determines the amount of damage fairly, taking into account the ordinary course of events and the measures taken by the injured party.

Again, compensation will be determined according to Article 51 of the Turkish Code of Obligations. Accordingly:

"The judge determines the scope and payment method of compensation, taking into account the necessity of the situation and especially the severity of the fault.

If the compensation is ordered to be paid in the form of income, the debtor is obliged to provide security."

The judge has the authority to reduce the compensation in the following cases:

"If the injured person consented to the act that caused the damage, or was effective in causing or increasing the damage, or aggravated the situation of the person liable for compensation, the judge may reduce or completely remove the compensation.

The person liable for compensation, who caused the damage through his slight fault, will fall into poverty when he pays the compensation, and if equity requires it, the judge may reduce the compensation." TBK 52

A compensation lawsuit is filed against the employer. In cases where Article 61 of the Turkish Code of Obligations is applicable, the lawsuit can be filed jointly against the employee and the employer.

The limitation period is regulated in Article 72 of the Turkish Code of Obligations. Accordingly:

"The claim for compensation becomes statute of limitations after two years have passed, starting from the date on which the injured party learned about the damage and the liability for compensation, and probably ten years, starting from the date on which the act was committed. However, if the compensation has arisen from an act requiring a penalty for which the penal laws stipulate a longer statute of limitations, this statute of limitations applies."

RIGHT OF REFERENCE FOR THE EMPLOYER

TBK 66/4. In the article, the employer is clearly given the right of recourse. The basis of this right is Article 62 of the Turkish Code of Obligations. According to the relevant article;

"In dividing the compensation among joint and several debtors responsible for the same damage, all situations and conditions, especially the gravity of the fault that can be attributed to each of them and the intensity of the danger they create, are taken into account."

The employee can only be held responsible to the extent of his fault. Moreover, 66/4 states this situation; "The employer has the right to recourse to the employee who caused the damage for the compensation he paid, only to the extent that the employee is personally responsible." He stated it clearly.

In order for the employer to have recourse, he must have paid the compensation.

In cases where there is more than one employee, the employees have the right of recourse to each other.

Right of recourse;

- All compensation has been paid and

- It is 2 years from the date on which the jointly responsible person learns. In any case, it ends after 10 years from the date the full compensation is paid.

TBK 66 and 116 DIFFERENCES - DIFFERENCES IN THE RESPONSIBILITIES OF THE EMPLOYER AND THE ASSISTANT PERSON

The concept of liability for the acts of auxiliary persons, regulated in Article 116 of the Turkish Code of Obligations, and the liability of the employer can be confused due to their similarities. However, there are differences between the two types of responsibility in many aspects. TBK 116 will be examined in another article, and here we will only make explanations regarding the distinction between TBK 66 and 166. It is necessary to distinguish the two types of responsibility from the very beginning in terms of their basis. Apart from this, while the legislator has included a possibility of salvation in terms of Article 66 of the TBK, there is no possibility of salvation in terms of Article 116. There are various differences in terms of statute of limitations. There is a possibility of recourse in terms of TBK 66. Finally, it should be noted that liability for the actions of the assistant person will only come to the fore in the presence of a contractual relationship. So, we can count these differences as follows:

1- The liability of the employer is regulated under the "Debt Relations Arising from Tort Acts" section of Law No. 6098, and the liability for the acts of auxiliary persons is governed under the "Consequences of Non-Performance of Debts" section of the same law.

2- There is no contractual bond between the third party who is harmed under the responsibility of the employee and the employee. However, in accordance with TCO 116, there is a contractual relationship between the beneficiary of the acts of the auxiliary persons and the one who is harmed by the acts of the auxiliary persons.

3- Those who employ people have the opportunity to be saved. However, there is no possibility of salvation in terms of TBK 116.

4- While the lawsuits to be filed based on the liability of the employer are subject to a 2 and 10-year statute of limitations, the lawsuits to be filed based on the liability for the acts of auxiliary persons are subject to a 10-year statute of limitations.

5- In order for the employer to be liable, a dependency relationship is required between the employer and the employee; however, if the person is responsible for the act of the helper, such a dependency relationship is not required between the debtor and the helper.

6- While the liability of the performer for the act of the assistant performer can be removed by an agreement, it is not possible to make such a contract in order to remove the liability of the employee.

7- While there is a possibility of recourse in terms of TBK 66, such an opportunity is not available in Article 116.