ABSTRACT
In our age, due to the technological developments, the necessity of specialization in almost all fields has made it compulsory for owners of enterprises to work with other persons because of the complexity and complexity of the work to be done in order to benefit from their mental or physical capacity. The employer liability is regulated for preventing any imbalance which is a disadvantage to the parties involved. In the Article 66 of the Turkish Code of Obligation (“TCO”), the employer liability is enacted within the scope of objective liability. Elements to be sought in order to held employer liable for the damage caused by an employee to the third party are listed as; an unlawful act, damage to a third party and a causal link between the said unlawful act and the damage. Additionally, the damage must be occured during the execution of the work and the employee has to be dependent to the employer. If an employer gives orders and instructions to an employee regarding execution of the work and supervises the process then it can be stated that dependency requirement is met.
I. INTRODUCTION
Employer liability has been regulated under the Article 66 of TCO under the title of duty of care. As the title suggests, employer liability is grounded on the duty of care. If employers do not fulfil this duty, they shall be held liable under the mentioned article. In order for employer liability to arise, it is not required the employer or the employee to be defective2.
In this article, dependency element in respect of the employer liability, which is regulated under the title of duty of care as a kind of strict liability in the Article 66 of TCO, is examined. Within this context, primarily general information regarding the employer liability is explained below and subsequently dependency element in the employer liability is addressed.
II. GENERAL INFORMATION ABOUT EMPLOYER LIABILITY
A. The Notion of Employer
In the business life, it is considered normal to benefit from other people’s work force and services due to large scale of the business organizations and complexity of activities undertaken by the employers. However, solely benefiting from other people’s work force cannot suffice to be named as an employer. To be defined as an employer i) the employee must be dependent to the employer and ii) the relationship between the employer and the employee must be subjected to private law3.
It should be noted that notion of the “employer” according to the Article 66 of TCO and notion of the “employer” in Labour Code4do not always correspond to the same meaning. The notion of employer in the Article 66 of TCO encompasses the employer notion in Labour Code and benefiting from other people’s work force with a dependency relationship through a social or legal relation can also be accepted under the scope of the employer notion in the Article 66 of TCO. Therefore, employer notion in the Article 66 of TCO has a larger meaning than employer notion in Labour Code5.
Employer liability “has been built on fairness and domination columns and arises from violation of the objective duty of care as a form of strict liability”6. The level of duty of care sought by the TCO can be described as “whole necessary attention and care required by the situation and the work” with regard to prevent harm caused to third party which is caused by the employees who work in accordance with the employer’s order and instruction. Even though the aforesaid duty of care is an objective liability in nature, this duty has been regulated as a rule of behavior for the employers since holding liable the employer for any damage caused by the people who work under his domination is required to achieve fairness7.
B. Elements of the Employer Liability
The employer liability is a kind of tort liability. Prerequisites of tort consists of four elements which are as mentioned; presence of an unlawful act, said act must be performed in negligence, damage shall occur and causal link between act and damage must be formed. As the employer liability is a form of strict liability and is a matter of tort, it must contain all elements of tort except the negligence. In order to hold the employer liable, neither the employer nor the employee have to be negligent8. It is for this reason that the weight of the employee's negligence is not taken into account in calculating the compensation, as a rule9. To hold the employer liable within the scope of the Article 66 of TCO, there must be an unlawful act, damage that is caused by this unlawful act and occurred during execution of the work and dependency relationship between the employer and the employee. These elements are examined below in terms of employer liability and the dependency element is examined under a different title.
1. Unlawful Act
First and foremost, in order for the employer to be held liable, it is crucial to determine whether employee’s act is unlawful or not. While determining this matter, there is no difference between employee’s act of commission and employee’s act of omission in terms of contrariety to law. As a rule, if someone’s personal rights or absolute right of assets is violated by an act, this act is accepted as an unlawful act. It does not hold an importance whether this act is caused from negligence or not. Besides, in order to hold the employer liable, an employer must also commit an unlawful act. In other words, if employer does not pay an adequate attention on choosing their employees, giving instructions and supervising and surveillance, this situation is accepted as an unlawful act10. In essence, unlawful act which causes employer liability in the scope of the Article 66 of TCO is the situation where breaching employer’s duty of care. If a ground exists that eliminates the illegitimacy of the act, the employer liability will no longer exist as the act no longer will be unlawful11. For instance, if the employee exercises a right of the employer or if there is a reason for compliance with the law, such as the consent of the injured party, self-defense or state of necessity, the employer cannot be held liable12.
2. Employee’s Damage Caused to the Third Party
Employee’s damage caused to the third party which is caused from the employer’s unlawful act is one of the elements of the employer liability. Also damage that is caused from the employee’s unlawful act can be pecuniary and/or non-pecuniary13.
3. Presence of the Causal Link
Causal link can be described as cause and effect relation between the incident or act which causes liability and damage. It is required that a causal link between damage that is caused from unlawful act and employer’s work performed. Additionally, it is important to state that the causal link must be “appropriate causal link” that is accepted as dominant theory in Turkish-Swiss and German Law14. Determining whether there is a causal link or not has a great importance on the emergence of liability15.
Regarding the employer liability, the casual link is examined through two stages. Thus, in order for the employer liability provisions to be applied, there must be a relation of causality between the employee’s act and damage and a relation of causality between breach of employer’s duty of care and damage16. In this context, even though the employee’s act can be accepted as a direct cause of damage, the employer’s fails to fulfil his duty of care cannot be accepted as direct cause of damage. Breaching duty of care by the employer which is not related to the damage but rather related with employee’s act can only be included in an indirect causal link17. As an instance, if a damage occurs that is caused by the act of the employees due to the employer’s lack of duty of care while giving instructions to the employees and supervising them, it can be claimed that an “indirect” causal link is present. Even though mentioned damage is caused by the employee’s act, if it can be alleged that the damage would not arise in the case that the employer had given sufficient attention on choosing and giving instructions to its employee.
4. Occurrence of the Damage During Execution of Work
For employer liability to be claimed, damage which is caused from the employee’s act must occur while executing the employer’s work. This concept can be explained through functional dependence between damage and employer’s business. Functional dependence means that damage must have been occurred during execution of the employer’s work and there must be a direct link between the employer’s business and damage occurred18. In other words, the act caused the damage must be familiar with the work that carried out. Relationship of the employment or benefiting from the services of other people must be aimed at employer’s purpose and interest. Accordingly, the damage must occur when the employees are trying to reach that purpose. The damage that is caused from act of employees must be of a consequence of the employees’ activity which is initiated for the work they are assigned for19. In this respect, the employer should not be held liable for the damage caused by the employee’s actions if the employee has been acting in a manner which is purely for personal purposes as selfordained and completely irrelevant for the employer20.
C. Employer’s Possibility to Show Evidence of Salvation
Employer liability has been regulated under the title of the duty of care in the Article 66 of TCO. As title suggests, legal order obliges the employers with an objective duty of care. Within this context, when all the requirements of the employer liability are met, it is assumed that the damage caused is a result of employer’s breach of duty of care21. Although mentioned situation is regulated as an assumption, the employer can show evidence of salvation pursuant to sub-article 2 and subarticle 3 of the Article 66 of TCO. According to sub-article 2 of the Article 66; “if the employer can prove that it takes necessary care in order to prevent damage when it chooses its employees, gives instructions regarding work, supervises and surveils on them, it shall be held liable.” As the sub-article points out, if the employer can prove that he pays enough attention while choosing his employees and giving instructions regarding work and supervising and surveilling on them, the employee can be discharged from the employer liability. In addition, pursuant to sub-article 3 of the Article 66 of TCO, the employer can demonstrate another evidence of salvation. According to the said sub-article; “Unless an employer cannot prove that operation order of its business is adequate to prevent damage, he is responsible for compensating the damages caused due to activities of that business.” As it is understood from the said sub-article, in order for the employers to be discharged from such liability, the employers have to prove that its undertaking’s order of operation is suitable for preventing damage. This evidence of salvation has been regulated under the TCO for the first time, which has never been stipulated under the Code of Obligation numbered 818. According to the preamble of the Article 66 of TCO, such regulation has been enacted in accordance with the necessity in practice and comments made in doctrine.
III. MEANING OF THE DEPENDENCY ELEMENT OF THE EMPLOYER LIABILITY
Element of dependency means benefiting from the service of the employee which is dependent to employer in terms of surveillance, supervision, order and instruction for the employer’s own interest and purpose22. As per the element of dependency, employer can give instruction to the employee regarding execution of the work, make his own business organization and run his business through his supervision and surveillance23. Employer’s authority of supervision and surveillance over the employee is the basis for dependency element. It is required for the existence of dependency element that employee should work under employer’s order, surveillance and instructions. In addition to that, employer’s order, surveillance and instructions must be at the basis of the relationship. Also, this relation must be sufficient to create dependency between the employer and the employee. Otherwise, merely supervision, order and surveillance are not enough to prove dependency element of the employer liability24.
In dependency relationship, it is not necessary for the employer to have more technical and professional knowledge than the employee has. However, the employer must be in a position that he can give instructions to the employees for proof of the dependency element. Being in a position that being able to give instructions to the employee can show the existence of the dependency relationship. In other words, in principle, there must be a superior-subordinate relationship between the employer and the employee. Dependency element between the employer and the employee requires superior-subordinate relationship. Apart from that, underlying relationship between the employer and the employee does not have significance on dependency element25. In other words, feature of the work to be done, duration of the work and onerous for work are not important in terms of making evaluation about the existence of the employment relationship between the employer and the employee26.
A. The Nature of the Relationship Between the Employer and the Employee
The existence of a contractual relationship between the employer and the employee or type of contract between them are not important. The important point here is not whether there is a contractual bond, rather performing work in a dependent manner by the employee and being suitable for the purpose and the interest of the employer. In other words, the employee should do the service for the interest of the employer27. For instance, if the spouse or child of a person who works to help such person in the workplace harms the third party, such person shall be liable as an employer in case of existing dependency element28.
It should be noted that, in connection with changes in business life and innovations, it is observed that the element of dependency in today's relation of employment is extending. As an instance; the dependency element is extensive when the work is done in the employee's home rather than at the workplace of the employer. Since if the person working at home is under the supervision, surveillance and instruction of the employer even if such person does not actually work in the workplace of the employer and there is a dependent nature in the essence of the matter, the existence of the dependency relationship within the scope of the employer liability can be mentioned29. However, for the existence of a dependency relationship, it is not necessary for the employer to be continuously benefiting from the service of the employee. Therefore even temporary utilization of the service of the employee is sufficient to establish the said dependency relationship30.
The benefit from someone else's service may be based on a contract, a family law relationship or an actual state without a legal relationship31. The dependency relationship between the employer and the employee usually occurs in the service contract relationship. In the service contract, the elements of supervision, surveillance and giving instructions come to the forefront. Nevertheless, it can be stated that in a service contract which is concluded with a self-employed person, this dependency relationship exists only in appearance. It can also be stated that there is no dependency relationship within the scope of the Article 66 of TCO and for this reason the employer cannot be held liable within the context of service contract concluded with a self-employed person. For instance, neither it is possible to mention that there is element of dependency in the service contract which is concluded with a lawyer or architect nor legal relationship between a taxi driver and a customer32. However, the dependency element in contracts such as contracts of mandate or work is controversial33.
According to an opinion; in this type of contracts if the employee carries out this work under the supervision, surveillance and instruction of the client or business owner, then the existence of employment relationship can be mentioned34. It is possible to mention that if the requirements of supervision, surveillance and instruction, are not only in the form, but also in the essence of the relationship, there is element of dependency. In this case, if employment agreement contains the element of dependency, it is possible to refer to liability of employer with the realization of the other elements35.
The other opinion in the doctrine argues that the element of dependency does not exist in those who do the work for someone else in order to get help on an issue which is not based on the contract of work, mandate, association or contractual relationship36. According to such opinion, for the existence of dependency element, it must exist in the form and essence of contractual relationship. Although there may be a dependency element in the appearance of such contracts, there is no element of dependency in the essence of the relationship. In other words, since the person who carries out the work in these contracts does not work dependently for the person who carries out the work, it is not possible to refer to liability of employer within the scope of Article 66 of TCO37.
In its decisions on whether the dependency element exists in contract of work, the Supreme Court decides by examining the characteristics of the concrete case at hand. For instance, the General Assembly of the Supreme Court rules that liability of employer may arise from contract of work as stating; “Once the Article 22 of the contact of work is examined; in the presence of the provisions that the instructions are given by the person who is assigned by the employer, and the employee acts accordingly; it is understood that Istanbul Metropolitan Municipality as defendant is in the position of the employer, the person under the supervision and instructions of the municipality which is the contractor Ç... İnşaat Ltd. Şti. has the characteristics of the employee in accordance with the Article 55 of the Code of Obligations.” on the examination of whether there is a dependent labour relation between the employer and the employee in the case that Istanbul Metropolitan Municipality tenders the works of chimney-grid overhaul, upgrade and displacement, rainwater channel construction to a limited liability company38.
In its decision dated 2014, the 4th Civil Chamber of the Supreme Court rendered that since it is understood in the contract of work submitted to the court where the defendant company has the authority of supervising, controlling and surveillance on the company which undertakes the work and as the defendant, work owner’s supervision and liability continues if a damage occurs and the defendant is liable under the Article 66 of TCO39.
In another decision of the Supreme Court, since there is no dependency relationship as a rule in contracts of work, the liability of the employer cannot be mentioned. At the same time, the Court also notes that this rule does not apply strictly. If the work owner is authorized to give orders and instructions to the contractor and control and supervise the work as per the contract between the work owner and the contractor, dependency relationship is established between the work owner and the contractor. Therefore the work owner is liable as the capacity of employer40.
In another decision, the Supreme Court had reached a similar conclusion; “As a rule, there is no dependency relationship between the work owner and the contractor, and the contractor undertakes to complete and deliver the work undertaken independently from the business owner in accordance with the contract terms. Considering this feature, dependency relationship, in other words, since the work owner does not have the capacity of employer, it is accepted that the work owner cannot be held liable for damages if the contractor harms third parties during the execution and construction of the work. However, this rule is not applied strictly. In the contract by and between the work owner and the contractor, there is a dependency relationship between the parties if the work owner has the authority to give orders and instructions to the contractor and control and supervise the work. In such case, the work owner shall be liable for the damages with the capacity of employer and the type of liability is joint and several liability in accordance with the Article 51/2 of TCO”41.
B. Element of Dependency Being Direct or Indirect
The dependency relationship can be either direct or indirect. In large undertakings, it may not be possible for the employer to supervise all employees by itself and to fulfil the duty of care in order not to cause any damage. In this case, the employer may receive help from other people or managers for the works to be done and keeping the employees under surveillance and supervision. Even in this circumstance, the employer is liable for the damage caused by the employees of the person under the employer’s order. According to an opinion, in order to avoid the employer liability in the indirect dependency relationship, it has to be proven that the employer takes the necessary duty of care, which only required to be taken by him. In this case, the employer is not under the burden of proof whether the person under his order has fulfilled the duty of care42. The fact that the business is being large or small should not make it harder for the employer to fulfil his duty of care. However, according to this opinion, if any damage occurs as the person under the employer’s order does not perform his works, it will not be possible to encumber the employer with liability and protect the sufferer43.
According to another opinion, if the employee works with another person within employer’s works with the approval of the employer, the first employer and the latter will be jointly and severally liable in the capacity of the employer for the damages caused by the last hired employee44. In the absence of the approval of the first employee, the liability of the first employee on the damage caused to the third party is not considered, as the dependency is absent within the scope of the Article 66 of TCO. Another view asserts that the employee works under the second employer is also dependent to the fırst employer and therefore the first employer should be liable45.
C. The Element of Dependency if the Employee is Hired by Another
If the employer hires his employee to someone else, the matter of who has the employer liability is. According to an opinion, there is a dependency relationship since the one who hires the employee has better opportunity to supervise him. Therefore, if the employee harms the third party, the one who hires him will be liable with the capacity of employer. Because the authority to give instructions to the employee is used only by the one who owns the area of sovereignty and hires the employee. The one who hires the employee cannot be discharged from the liability since he is not taking part in the decision of the employee46.
Another point of view is that since the duty of care does not only consist of giving instructions or keeping the employees under supervision, but also to be attentive while choosing the employee, the liability should be shared47.
D. Dependency Element in Legal Entities
Since the bodies of legal entities are not employees of the legal entity but the legal entity itself, the damage occurring in result of their actions cannot be considered within the scope of the employer liability. The bodies are defined as the authorized persons or commissions to perform the works of the legal entity with the conditions and authorities according to applicable law or regulations. The actions of the body are deemed as the actions of the legal entity (Article 50/1-2 of Turkish Civil Code). Therefore, the capacity of the employee and body cannot be merged into one. The body is the employer of the employee or the commission itself. However, a legal entity may employ subsidiary employee in the capacity ofthe employer. In this case, the employer is liable for the damage caused by the employee in accordance with the Article 66 of TCO48.
IV. CONCLUSION
The matter that employer may be held liable for his employee’s acts who is employed for helping to performance a profession in our daily life is stipulated under the Article 66 of TCO.
To determine the existence of the employer liability, the employee has to cause a loss by an unlawful act within the scope of the causal link and a functional coherence has to be present between the loss and work of the employer. In addition to that the presence of a dependency relationship based on the chain of command principle must exist between the employer and the employee.
The nature of the relationship grounded on the basis of chain of command between the employer and the employee. In other words dependency relationship, may be either direct or indirect. The work that is carried out can be a permanent or temporary. Besides, the work can be an onerous service as it can be a gratuitous service; can be based on a contractual, de facto or family law relationship. The legal relationship between the employer and the employee may be founded on the labour contract as well as the contract of work or mandate contract. It is undisputed that the employer will be held liable under the Article 66 of TCO, in the case if a third party suffers a loss resulting from the act of the employee. Nevertheless, neither the doctrine nor the judgements of the Supreme Court had reached the consensus on the issue of the existence of dependency relationship in the contracts of work. According to an opinion the dependency relationship exists in such agreements in cases where the work is carried out under chain of command and supervision of the employer. Another opinion advocates that the dependency relationship must be actualized in the form and essence of the contractual relationship and even though a formal dependency element can be mentioned for the contract of work, the relationship does not contain a dependency element in its essence.
BIBLIOGRAPHY
Nazlı Hilal Çelik, Adam Çalıştıranın Sorumluluğu, İstanbul, 2017.
Sümeyye Kocaman, Türk Borçlar Kanununun 66. Maddesi Çerçevesinde Adam Çalıştıranın Sorumluluğu, July 2015, TAAD, Year:6, No: 22.
Necla Yılmaz, Adam Çalıştıranın Sorumluluğu, Master Thesis, Galatasaray University, September 2014.
Kemal Oğuzman/Turgut Öz, Borçlar Hukuku: Genel Hükümler Volume 2, Edition 12, Istanbul 2016.
Fikret Eren, Borçlar Hukuku Genel Hükümler, Edition 13, Istanbul 2011.
Fikret Eren, Sorumluluk Hukuku Açısından Uygun İlliyet Bağı Teorisi, Ankara, 1975
Haluk Tandoğan, Türk Mes’uliyet Hukuku, Same Edition As 1961 First Edition, Istanbul 2010
FOOTNOTE
1 04.02.2011 dated and 27836 numbered Official Gazette (OG).
2 Nazlı Hilal Çelik, Adam Çalıştıranın Sorumluluğu, Istanbul 2017, p. VII.
3 Sümeyye Kocaman, “Türk Borçlar Kanununun 66. Maddesi Çerçevesinde Adam Çalıştıranın Sorumluluğu”, July 2015, TAAD, Year 6, No. 22, p. 587-588.
4 10.06.2003 Dated and 25134 Numbered OG.
5 Necla Yılmaz, Adam Çalıştıranın Sorumluluğu, Master Thesis, Galatasaray University, September 2014, p. 51.
6 Kocaman, p. 590.
7 Kemal Oğuzman, Turgut Öz, Borçlar Hukuku: Genel Hükümler Vol. 2, 12. Ed., Istanbul 2016, N. 437-438.
8 Kocaman, p. 594.
9 Haluk Tandoğan, Türk Mes’uliyet Hukuku, Same Edition As 1961 First Edition, Istanbul 2010, p. 116.
10 Çelik, p. 96.
11 Kocaman, p. 593.
12 Tandoğan, p. 116.
13 Kocaman, p. 593-594; Çelik, p. 106-107.
14 Fikret Eren, Sorumluluk Hukuku Açısından Uygun İlliyet Bağı Teorisi, Ankara 1975, p. 52.
15 Kocaman, p. 594-595; Çelik, p. 122.
16 Yılmaz, p. 46.
17 Yılmaz, p. 46.
18 Kocaman, p. 594-595; Çelik, p. 149.
19 Yılmaz, p. 60.
20 Tandoğan, p. 115.
21 Kocaman, p. 597.
22 Çelik, p. 160.
23 Kocaman, p. 590.
24 Çelik, p. 160-162.
25 Çelik, p. 160-162.
26 Kocaman, p. 592.
27 Fikret Eren, Borçlar Hukuku Genel Hükümler, 13. Ed., Istanbul 2011, p. 580, (“Eren, Law of Obligations”).
28 Çelik, p. 163.
29 Kocaman, p. 590; Çelik, p. 173.
30 Tandoğan, p. 112.
31 Kocaman, p. 591.
32 Tandoğan, p. 112.
33 Çelik, p. 164-165.
34 Çelik, p. 164-165.
35 Çelik, p. 168.
36 Oğuzman/Öz, N. 451.
37 Çelik, p. 166-168; Oğuzman/Öz, N. 451; Eren, Law of Obligations, p. 581.
38 Supreme Court General Assembly, Dated 28.04.2010, Numbered E. 2012/7-216, K. 2010/231.
39 Supreme Court 4. Civil Chamber, Dated 09.04.2014, Numbered E. 2014/4394, K 2014/6036.
40 Supreme Court 7. Civil.Chamber, Dated 18.01.2011, Numbered E 2010/7458, K. 2011/98.
41 Supreme Court 7. Civil.Chamber. Dated 21.09.2010, Numbered E. 2010/2809, K. 2010/4791.
42 Çelik, p. 171.
43 Çelik, p. 171.
44 Oğuzman/Öz, N. 451.
45 Çelik, p. 172.
46 Çelik, p. 173; Eren, Law of Obligations, p. 580.
47 Çelik, p. 173.
48 Kocaman, p. 592. Eren, Law of Obligations, p. 581.
