LIABILITY OF EMPLOYERS AND ASSISTANTS FOR THEIR ACTIONS: LEGAL OBLIGATIONS AND DIFFERENCES

Employer's responsibility:

An employer's responsibilities towards their employees include obligations arising from the employment relationship and liability for damages suffered by third parties due to the actions, omissions, or damages caused by their employees. The employer's liability is strict liability; that is, the employer is held responsible for the actions of their employee even if they are not at fault in causing the damage. As stipulated in Article 66 of the Turkish Code of Obligations, the employer is held responsible for damages caused to third parties by employees or other persons working on their behalf while performing their assigned work. However, this responsibility of the employer can be partially or completely waived by a prior agreement.

 For an employer to be held liable, it is sufficient that the employee, while performing the employer's work, has caused damage to a third party through an unlawful act. However, the employer may be relieved of liability if they prove that they exercised due care and diligence in selecting, supervising, and instructing the employee. As understood from Article 66/3 of the Turkish Code of Obligations, the employer is obligated to compensate for damages arising from the operation of the business unless they prove that they took measures to prevent the occurrence of damage in the manner in which the business was operated.

Scope of Employer's Liability:

1. Employer Responsibility:
   • The employer is liable for damages caused by employees to third parties during the course of work. This liability also applies to damages caused by the employees' own actions. The employer's liability arises only if the employee's mistakes or omissions occur during the course of work under the employer's control.
2. Damage During the Performance of Work:
   • When an employee causes harm to a third party while performing a task under the employer's instructions, the employer may be held directly liable for that harm. In this case, the employer is obligated to compensate the injured party, treating the employee's fault as their own.
3. Compliance with the Duty of Care:
   • To absolve an employer of liability, they must prove that they exercised due diligence in the selection, employment, and supervision of their employees. This means carefully selecting their staff, providing appropriate training, and monitoring whether their employees are performing their jobs correctly.
4. Employer's Strict Liability:
   • Employer liability can also be considered strict liability. This means that even if the employer is not directly at fault for the employee's actions, they can still be held liable for damages caused to third parties. In this type of liability, the injured party does not have to prove the employer's fault.
5. Liability for Damages:
   • The employer is obligated to compensate the employee for the damage caused. This damage may be to property or personal rights. This compensation must fully cover the injured party's losses. Depending on the type of damage, either monetary or non-monetary compensation may be awarded.
6. Right of Recourse:
   • After the employer compensates the employee for the damage caused to a third party, they can seek recourse from the employee for that damage. However, in such a case, whether the employee was at fault will be taken into consideration.

     7. Statute of limitations for the right of recourse:

• If an employer does not file a recourse claim within two years from the date they fully paid the compensation due to the injured third party and learned which employee caused the damage (provided both conditions are met), or within ten years from the date they fully paid the compensation even if they did not learn the identity of the employee who caused the damage, the right of recourse becomes time-barred, except in cases where the statute of limitations is interrupted or suspended.

Examples:

• Workplace Accident: If a worker at a workplace causes injury to a third party during work, the employer is held responsible for that injury. For example, if a worker at a construction site causes injury to a person by improperly using construction materials, the employer is liable for that injury.
• Traffic Accident: If a company driver is involved in an accident with a company vehicle and causes damage to third parties, the company (employer) may be held liable for the damages.

Legal Process:

1. Proof of Damages: The injured party bears the burden of proving the damage that occurred and that it was caused by an employee of the employer.
2. Filing a Lawsuit: The injured party can file a lawsuit against the employer seeking compensation. These types of cases are generally heard in civil courts of first instance.
3. Employer's Defense: The employer may try to evade responsibility by proving that they exercised due diligence in the selection, training, and supervision of the employee.

Employer liability ensures that employers are held legally responsible for damages caused to third parties through their employees. This liability is also important for maintaining order in the workplace and ensuring employees work diligently. Employers must be careful in the selection and supervision of their employees to avoid such liability.

Responsibility for the assistants' actions:

As stated in Article 116 of the Turkish Code of Obligations (TBK), the debtor is held liable for any damage caused to the creditor by individuals who assist in the performance of a debt, due to the debtor's breach of obligation. The debtor's consent is necessary and sufficient for an individual to participate as an auxiliary in the performance of a debt. A contract between the debtor and the auxiliary is not required. Liability arising from the actions of auxiliary individuals can be wholly or partially waived by a prior agreement. It can be agreed that the debtor will not be liable even for the gross negligence of the auxiliary individual. An exception to this is regulated in Article 116/3 of the TBK. According to this article, if a service, profession, or art requiring expertise can only be performed with permission granted by law or competent authorities, agreements stipulating that the debtor will not be liable for the actions of auxiliary individuals are invalid.

Regulations in the Turkish Code of Obligations:

1. Contractual Liability for the Actions of Assisting Persons (Turkish Code of Obligations, Article 116):

• Contractual Liability: In contractual relationships, when a debtor fulfills an obligation through an assistant, the debtor is held liable for damages arising from the assistant's actions. In other words, the debtor is directly liable to the creditor for the assistant's actions.
• Proof of Fault Required: In cases of damages arising from the actions of an assistant, the debtor is not obligated to prove whether they were at fault in the selection, supervision, or direction of the assistant. The assistant's negligent actions are considered the same as the debtor's actions and give rise to liability.
• Example: A business contracts with a shipping company to deliver a product to a buyer. If the shipping company damages the product during delivery, the business is responsible for the damage. The business may have to pay compensation for the actions of the shipping company, which was acting as an accomplice.

2. Tort Liability for the Actions of Assisting Persons:

• Tort Liability: If an assistant commits a tortious act, the primary employer or responsible party may be held liable for the damages arising from that act. In cases of damages resulting from the tortious act of an assistant, the responsible party is directly liable for compensation to the injured third parties.
• Example: A company contracts with an agency to run an advertising campaign. If the agency causes harm to third parties by providing false or misleading information, the company running the campaign may be held liable for that harm.

3. Exemption from Responsibility:

• Duty of Care: In contractual liability, the responsible party can be relieved of liability by proving that they exercised due diligence in the selection, appointment, and supervision of the assisting person. However, this burden of proof is generally not helpful in contractual liability cases, as the debtor's liability is independent of the assisting person's fault.
• Right of Recourse: A person who pays compensation due to the actions of an accomplice can seek recourse against that accomplice. In other words, the debtor obligated to pay compensation can claim this amount back from the accomplice.

Liability for the actions of auxiliaries is a significant legal concept in both contractual and tort relationships. This liability requires individuals to bear the damages arising from the actions of auxiliaries who act on their behalf or according to their instructions. Liability is heavier in contractual relationships, as the debtor is held directly responsible for the auxiliary's negligent actions. Careful selection and supervision of auxiliaries are crucial to avoiding such liability.

The difference between the employer's liability and the liability for the actions of assisting persons:

For an employer's liability to exist, there must be a command-instruction relationship between the employer and the employee. However, such a relationship is not required between the debtor and the assistant. While the employer's liability is based on tort, the assistant's liability for their actions is based on breach of contract. The employer can be relieved of liability by proving that they exercised due care and diligence, while the liability arising from the actions of assistants can be wholly or partially waived by a prior agreement.

 

Law Student Intern Nursena İbanoğlu