123 Union of Turkish Bar Associations Review 2023 Muhammed Enes YILDIZ employer’s breach of the duty of care shall be subject to the provisions on contractual liability (Art. 417/3 TBK). The liability for breach of contract referred to in the article is a type of liability based on fault.19 The law stipulates that the employer must take all necessary measures in terms of the duty of care (Art. 417/1 TBK). Although this provision, which is one of the bases of those who advocate the no-fault liability view, mentions that all kinds of measures must be taken, it is not possible to reach a conclusion that would exclude the liability here from being a fault liability.20 Another provision of the law that points out that the employer’s liability is a fault liability is the special liability provision regarding hazard liability. Accordingly, no fault shall be sought in the liability arising from the operation of an enterprise that poses a significant danger (Art. 71 TBK). The fact that the legislator has determined the source of the employer’s liability to be fault liability is clearly understood from the fact that it has specially regulated the cases of strict liability in this way.21 In Turkish law, the existence of fault is determined according to objective criteria. In this respect, the employer’s personal status, level of education, financial status and other characteristics are not taken into account in determining the employer’s fault in determining that the necessary attention and care was not taken in taking occupational health and safety measures. The behaviour of a careful, reasonable and responsible employer in a similar situation with the employer is taken as the basis for the determination of fault.22 As a matter of fact, the Court of Cassation also points out that the determination of the employer’s fault should be based on objective criteria.23 19 Fikret Eren, Borçlar Hukuku Genel Hükümler (Genel), 25. Baskı, Yetkin Yayınevi, Ankara 2020. 20 Caniklioğlu, İşverenin Sorumluluğu, p. 47. 21 Caniklioğlu, İşverenin Sorumluluğu, p. 48. 22 Süzek, p. 417; Özdemir, p. 289. 23 “…Articles 4 and 5 of Law No. 6331 and the provisions of the related regulations on occupational health and safety should be considered as criteria that objectify the employer’s responsibility …” Yarg. 21. HD, 13.02.2018, E. 2016/12322, K. 2018/1190, (www.kazanci.com, AD. 03.11.2021).
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