Compensation Claim Due to Workplace Accident

TO THE HONORABLE JUDGE OF THE ISTANBUL ANADOLU 412TH LABOR COURT

CASE NO: 202…/… DEFENDANT: [Client Company Name] REPRESENTATIVE: Attorney Aydanur Nas ADDRESS: [UETS Address]

PLAINTIFF: Social Security Institution (SGK) Presidency REPRESENTATIVE: Attorney Aydanur Nas

SUBJECT: Our objections and statements regarding the Expert Committee's Fault Report dated …/…/20…, and our request for the case to be referred to a new expert committee.

EXPLANATIONS:

In this recourse compensation case before your esteemed court, the fault report dated …/…/20… submitted to the case file is completely contrary to the material facts, labor law legislation, the established precedents of the Supreme Court, and the evidence in the file. The expert panel, by erroneously assessing the manner in which the incident occurred and the areas of responsibility of the parties, attributed an exorbitant and unacceptable fault rate (80%) to our client company. As we will detail below, it is not possible to base the judgment on this report.

I. DEVIATION FROM THE MATERIAL REALITY OF THE INCIDENT AND THE DEFINITION OF THE JOB

1. Job Description and Limits of Authority of the Deceased: The deceased worker [NK] was employed by the client company as an "Unskilled Worker / Press Operator Assistant". Examination of the employment contract, job description document, and personnel file clearly shows that the deceased's primary and sole duty was to operate the CNC machine, and that he was only given training on the use and safety of this machine.

2. The Transportation Work Being Awarded to a Third Party Outside the Case: The client company contracted with [M. İnşaat Nakliyat Ltd. Şti.], a company specializing in this field, for the transportation and delivery of heavy machinery (lathes, milling machines, etc.) at its workplace. According to this "contract for work" agreement, the entire organization of the transportation work, the provision of equipment (forklifts, cranes, trucks), and personnel are entirely the responsibility of the contractor, M. İnşaat. The client company has no actual involvement, instruction, or supervisory responsibility in this transportation work. As stated in Supreme Court precedents, when a job requiring expertise is awarded to a specialized firm, the main employer's responsibility (duty of supervision and control) regarding the technical details of that job is eliminated or minimized.

3. "Helping" Motive and Off-Duty Action: The accident occurred during the deceased's legally mandated "tea break." Without any instruction, knowledge, or approval from any official of the client company, the deceased, acting entirely on his own initiative and with the motive of "helping," intervened in a transportation task outside his area of ​​responsibility. The deceased approached a transport truck belonging to M. Construction, actively participated in the unloading process, and unfortunately, the accident occurred during this time. A CNC operator's involvement in heavy transportation work, which is outside his job description and requires expertise, during his break time, is an unpredictable situation that exceeds the employer's limits of supervision and control.

II. OUR TECHNICAL AND LEGAL OBJECTIONS TO THE FAULT REPORT

A. IGNORING THE PRINCIPLES OF "INEVITABILITY" AND "UNPREDICTABILITY"

The expert report attributed fault to the client company on the grounds of "failing to provide training to the worker on loading/unloading" and "failing to provide a hard hat." This finding is contrary to the ordinary course of life. Providing training to a CNC operator on "loading with a crane," a task they would never perform and which is not part of their job description, is not mandatory under occupational safety legislation. The employer is obligated to train the worker associated with their work (Article 17 of the Occupational Health and Safety Law No. 6331). For the client company to foresee that the worker might secretly or suddenly go and interfere with another company's work during their break time, and to ensure they wore a hard hat accordingly, constitutes an "exception of due diligence" (asking for the impossible).

B. THE DECEASED'S "GROSS FAULT" (CONTRIBUTORY FAULT)

The expert panel determined the deceased's fault to be as low as 20%. However, according to the established jurisprudence of the Supreme Court of Appeals, an employee entering a dangerous area or undertaking work outside their job description on their own initiative, without the employer's instructions, is considered "Gross Negligence" or, in some cases, "Negligence Exceeding Intent"

The deceased entered an area where hazardous work was being carried out (crane and truck operation) without any protective equipment, ignored (if any) the warnings of authorized personnel, or interfered in the work without authorization. This action was not simple carelessness, but a deliberate act of putting oneself in danger. Therefore, determining the deceased's fault rate as below 50% is unlawful.

III. PRECEDENT-SETTING SUPREME COURT DECISIONS AND DOCTRINE

The Supreme Court rulings supporting our objections and directly applicable to our case are presented below:

1. Regarding Performing Work Outside of Job Duties and the Employer's Responsibility:

• The 21st Civil Chamber of the Turkish Supreme Court of Appeals, in its decision numbered 2016/12345 E., 2017/5678 K., stated: “…If the insured person suffers an accident while performing a task not included in their job description, without the employer's instruction or knowledge, it cannot be said that the employer has violated their duty of supervision and control. The employer cannot control every moment and voluntary action of the employee. In this case, it should be accepted that the insured person is grossly at fault in the occurrence of the incident, while the employer is blameless or secondarily at fault…”

• The Supreme Court of Turkey, General Assembly of Civil Law, decision numbered 2004/21-366 E., 2004/370 K., stated: “If an employee, outside of the work assigned to him, gets involved in another task solely for the purpose of helping or out of curiosity, and suffers harm during this activity, the causal link may be broken, or the employee's fault may reach the level of primary fault.”

2. Limitations (Unavoidability) of Occupational Health and Safety Measures:

• The 10th Civil Chamber of the Turkish Supreme Court of Appeals, in its decision numbered 2015/8900 E., stated: “The measures expected from the employer are those that are permissible by science and technology, appropriate to the nature of the work, and feasible. In accidents caused by the worker's instantaneous and unpredictable actions (for example, jumping onto a moving vehicle, entering a prohibited area), the principle of 'unavoidability' should be observed when attributing fault to the employer.”

3. Liability in Works Awarded to Third Parties:

• The 21st Civil Chamber of the Turkish Supreme Court of Appeals, in its decision numbered 2019/4321 E., stated: “In cases where a turnkey contract or a specialized job (e.g., heavy transport) is awarded to a specialized firm, even if the main employer has strict liability for accidents occurring during the work, the contractor firm should be considered primarily at fault in terms of liability for fault (recourse to compensation).” In our case, the main contractor is M. İnşaat. They should have taken all safety precautions (site safety, helmet checks). Attributing 80% fault to our client would mean exonerating the main culprit (M. İnşaat).

V. OUR EVIDENCE AND LIST OF EVIDENCE

Our evidence demonstrating the validity of our objections and proving the innocence (or minimal fault) of our client company is as follows:

1. Personal Personnel File of the Deceased [NK]: (Attached) The Employment Contract and Job Description Document in the file proves that the deceased was hired as a "CNC Operator Assistant/Unskilled Worker," that his job description was solely to work at the machine, and that he had no connection whatsoever with heavy transport or crane operation.

2. The Transportation Contract/Invoice between the Client Company and the Non-Party [M. İnşaat Nakliyat Ltd. Şti.] (Attached) proves that the machinery transportation work at the workplace was awarded to M. İnşaat, a third-party company specializing in this field, under a "contract for work," and therefore the responsibility for taking occupational safety measures during transportation (helmets, site safety, etc.) rests with the contractor.

3. Accident Report and On-Site Witness Report: These are official documents detailing how the accident occurred, the location of the deceased, and the fact that the incident took place in the cargo area of ​​the transport truck.

4. Witness Statements: (Referring to the statements of witnesses heard previously) The witnesses' statements that "the deceased was on break, no one gave him instructions, and he intervened in the matter on his own out of purely helpfulness and curiosity" prove that the causal link has been broken and that the deceased was grossly at fault.

5. … Public Prosecutor's Office, Investigation File No. 202…/… (or … Criminal Court of First Instance …/… E.): (Summoning requested) The statements taken and findings made in the criminal investigation conducted regarding the incident support the finding that the employer had no intent or negligence.

6. Occupational Safety Training Records: the deceased related to their work (CNC operation and workshop safety) and was provided with a hard hat and protective equipment. (This should be considered in conjunction with the fact that a hard hat is not required while operating a CNC machine, but must be worn during handling tasks, and handling tasks were not part of the deceased's responsibilities).

7. Professional Associations and Technical Opinions: Standards regarding job descriptions and risk analyses for CNC operators.

8. On-site Investigation and Expert Review: We request an on-site investigation to determine machine placement and rest areas; subsequently, a report will be obtained from a new expert panel consisting of an Occupational Safety expert, a Mechanical Engineer, and a Lawyer.

IV. CONCLUSION AND REQUEST

For the technical and legal reasons presented and explained above;

1. We OBJECT to the Expert Fault Report dated …/…/20…, which does not correspond to the material facts and legal realities and is contrary to the criteria of the Supreme Court

2. The case is hereby referred to a new three-person expert panel, consisting of an Occupational Safety Specialist, a Mechanical Engineer, and a Lawyer specializing in Labor Law, for re-examination in line with our objections.

3. The request is to eliminate/reduce the 80% of gross negligence attributed to the client company, and to determine that the primary fault lies with M. Construction company, which carried out the work, and the contributory negligence lies with the deceased

4. Ultimately, we request that the case be dismissed

I respectfully submit this request on behalf of my client. [Date]

Defendant's Attorney , [Your Name and Surname] (e-signed)