129 Union of Turkish Bar Associations Review 2023 Muhammed Enes YILDIZ There are several issues that need to be addressed regarding the liability of the principal employer. First of all, the Law states that the responsibility of the principal employer is only related to the obligations arising from the Labor Law, employment contract and collective bargaining agreement. The rights that an employee who suffers an occupational accident may claim from the employer are regulated under the Turkish Code of Obligations. This situation may bring to mind the question of whether the primary employer may be held jointly liable according to this article. However, it should be noted here that the occurrence of an occupational accident will constitute a breach of the negligent employer’s obligation to protect the worker and that this obligation arises from the employment contract.44 In this way, the employee who has suffered an occupational accident will be able to apply to both his/her own employer and the main employer for all of his/her receivables due to the breach of the duty of care arising from the employment contract. Unlike the liability of the subcontractor, the Law introduces a “strict liability” for the principal employer. This is because the principal employer is held liable for the damages suffered by the employee of the defective sub-employer due to an occupational accident, even if the employer is not at fault. Here, the source of the liability is directly Article 2/6 of the Labour Law.45 Pursuant to the same provision, the joint liability of the principal employer cannot exceed the liability of the sub-employer in terms of scope.46 Due to its nature, the provision on joint liability can only be applied to principal employers, and persons referred to as “contracting authority” or “turnkey employer” cannot be included within the scope of this provision. This is because it is not possible to talk about a principal employer in the technical sense. The Court of Cassation has also stated in one of its decisions on this issue that the person contracting the work cannot be held liable for occupational accidents and can only be held liable for unpaid wages if the conditions in article 36 of the İK are met.47 44 Bkz. Çelik/Caniklioğlu/Canbolat/Özkaraca, p. 130. 45 Yarg. 21. HD, 26.12.2019, E. 2019/2527, K. 2019/8120, (www.lexpera.com, AD. 04.11.2021). 46 Çelik/Caniklioğlu/Canbolat/Özkaraca, p. 137. 47 Yarg. 9. HD, 14.05.2013, E. 2003/4721, K. 2003/4643, Çimento İşveren Dergisi, August 2003, p. 33.
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