DEPARTMENT OF LAW
* Mining accident ( 301 486 deaths and accidents that led to the injury of the people of the last century, which is one of the greatest mining accident in the vicinity of the business not only in society as a whole in trying to win or dig a deep sadness caused by mining accidents that affect society, such as in disaster when assessing the amount of compensation received under the terms of the non-pecuniary damages should be one of the factors of deterrence )
* CLAIM FOR MATERIAL AND MORAL COMPENSATION (It is Understood that the Plaintiffs’ Murisi and Other Workers Did Not Have Any Defects When the Accident Occurred – The Amount of Compensation Should Be at the Rate That Creates Deterrence / The Defendant’s Defect and the Work Is Not Disproportionate to the Amount of Moral Compensation Ordered by the Court When Considering the Severity of the Result of the Accident That Occurred Due to This Defect and Severe Occupational Safety Violations)
* MISSING REVIEW ( due to hostility from the standpoint of the defendant by the court, the case is the denial of the other defendants and the plaintiffs in terms of the moral and material compensation TKI spouse and the children upon the adoption of prompt compensation claims decided upon the adoption of the plaintiff’s brother is the moral of partially – organic bond between the Defendants in question is to investigate whether employment or with the presence of collusive transactions while you should decide according to the results of Animosity due to the denial of one of the defendants about the decision of the case is inappropriate )
ABSTRACT: The case concerns the request of the insured person to recover the material and moral damages of his relatives due to his death as a result of an occupational accident.
The court decided to dismiss the case due to animosity from the defendant’s point of view, to accept the claims of the plaintiffs’ spouses and children for material and moral compensation from the point of view of the other defendants and the TKI, and to partially accept the claims of the plaintiff’s brothers for moral compensation.
13/05/2014 Eynez located in the province of Manisa in the history of the subject of the proceedings that occurred in underground mines accident at work caused deaths and injuring 301 486 people, which is one of the greatest accidents in the last hundred years trying to win business in the vicinity of this accident not only dig in a deep sadness caused by or in society as a whole, in this context, such as mining accidents that affect society in disaster when assessing the amount of compensation received under the terms of the non-pecuniary damages should be one of the factors of deterrence should be considered.
The decision is based on the posts with the evidence in the file gerektirici for legal reasons, and especially whether there are any flaws to the deceased in the event of a defect in the formation of a clear understanding between those with as occupational accidents and the future of the defect distribution in the case of recourse that can be opened between the re-evaluation of possible to be found, according to the scope and causes of the poet in the decision of the appeal if there is a mistake in aspects, the study of the case against the defendant missing the denial was wrong.
The work to be done by the court consists in investigating whether there is an organic connection between the defendants, whether there is employment together or mutual transactions, and deciding according to the result that will occur; The establishment of a judgment required deconstructing these material and legal facts without taking into account the evil eye.
CASE : A-)Plaintiff’s Request;
The plaintiffs petition with the attorney of your clients which have occurred in the history of Muris 13/05/2014 had passed away in a mining accident, the defendants that they are defective, the plaintiff, asserting that Plaintiff was due to damage in the event of 109.514 for the spouse,01 TL material, 150.000,00 TL spiritual, 25.469 the plaintiff for the child,67 TL material, 120.000,00 TL spiritual, the plaintiff for the child 24.458,02 TL material, 120.000,00 TL spiritual brothers of the plaintiff to 50,000,TL 00 each for non-pecuniary damages together with the legal interest to process from the date of the accident, the collection of the defendants jointly and severally to be determined, he demanded and sued that the trial expenses and the power of attorney be charged to the defendants.
B-)Answers of the Defendants;
The defendant is TKI. according to the Labor Code, the entire work is assigned to the contractor as a turnkey in a whole; in this way, the work is completely withdrawn; the contractor who takes over this work is the sub-employer of the company and the TKI who transfers the work, since the insured employee is not employed, because he does not have the title of employer.and that it cannot be qualified as the main employer; article 16 of the contract. in the article, it is stated that the subcontractor will not be employed and that the entire work will be done by the contractor company, … EXCEED the coals.that it shows that the principal employer and the owner of the workplace are; for these reasons, the plaintiff’s employer and the subcontractor with the institution of work between the contractor, client relationship do not exist; therefore, a decision should be made due to the animosity of denial of the case; the client sets it to operate with the production of lignite mines and the institution of the call or service with the goal of royalty these and other jobs procurement (tender) made with the procedure of; the duty of the client institution in such work is limited to the performance of the work in question in both methods of operation, the dispatch and management of the company’s employees and the work of the institution’s employees together with the company’s employees, as well as the determination of the institution’s control organization, the determination of the quality and quantity of coal, based on the right to be paid; however, due to other mining risks such as fire (such as methane, groundwater), the possibility that they may not reach the annual production amount will cause companies to be victimized and they may encounter irreparable problems in the future, both companies and the institution may be adversely affected by this situation that they want to transfer the existing contract; on January 30, 10, 2009, the corresponding work was carried out by mechanizing the appropriate parts of the same furnace, making a classic foot model in other parts and taking into account the risks that may occur in the field … EXCEED the coals.that the company has taken over; … TKI due to any element that threatens occupational safety at the january during production since the date Coal Enterprises took over the contract.that they did not apply to the; that the inspection of the january for occupational health and safety was carried out by the inspectors of the Ministry of Labor and Social Security; according to the work requirement, only the equipment specified in the technical specification is suitable for work and the conformity of the coal produced according to the service works specification with the qualifications specified in the technical specification is checked by the Administrative Control Organization; according to the service purchase agreement, no control is performed other than the job description, 6331 p.Y. that his client’s institution was not involved in any administrative or criminal investigation in the case of fatal accidents that occurred earlier; adequacy of materials and equipment the materials used and the control of the conformity of that belongs to the Ministry of labour and Social Security, and therefore by the law of a jurisdiction which is not allowed to use the wait and for this reason is not suitable to the nature of the law and life of being held responsible; job 40 of the specifications of the service. it is also stated that the contractor is responsible for any compensation for accidents that will occur in accordance with Article 2 of the Labor Code. according to Article 71 of the Code of Obligations, it is not possible to evaluate public organizations as the main employer and thus try to prevent public victimization; the client institution is the tender authority and the Law of Obligations. according to the article, the company that owns the business and actually operates the business cannot be mentioned as the responsibility of the client institution because it has a separate SGK workplace number; the client institution does not cause the plaintiff to be eliminated due to the fact that the institution has no fault in the accident; he asked for the case to be dismissed, stating that the requested moral compensation is exorbitant and should not cause unjustified enrichment.
The defendants…. and …. attorney; the subject of the lawsuit is one of the clients of the january of the mine where the mining accident occurred … Coal Enterprises INC.’what he belongs to, his other client is … Holding INC.decriminalization of the case from the point of view of hostility, since the cause of the occurrence of the mining accident that has not yet been determined, there can be no mention of a charge at this stage, the contract between the client company and TK is not based on the agreement, the client company provides the necessary training to its employees on occupational health and safety, all necessary materials are available for each personnel safety, corrective / preventive actions control that is necessary, the risk assessment that was being conducted, the Occupational Safety and health specialist that is assigned to the required number, the witness accounts that proves that security measures were taken, and also for the control of public institutions and in the controls was made that was made necessary by a lack been identified, the outcome of an investigation by the prosecution, the file should be expected, stating that the claim for moral damages is exorbitant enough to make the disaster missed, he asked for the case to be dismissed.
C-)The Decision and Justification of the Court of First Instance;
By the court, the defendant …. in terms of the rejection of the case due to animosity, the other defendants …. and from the point of view of TKI, the plaintiffs decided to accept the claims for material and non-pecuniary compensation of the spouse and children, and the claims for non-pecuniary compensation of the plaintiffs’ brothers were partially accepted.
“The case in question is a case of material and non-pecuniary damages caused by an accident at work.
56 of the Turkish Code of Obligations No. 6098 entitled non-pecuniary compensation. in the article;
“The judge may decide that in case of damage to the physical integrity of a person, taking into account the specifics of the incident, an appropriate amount of money should be paid to the victim as non-pecuniary compensation.
In case of grievous bodily harm or death, it may also be decided to pay an appropriate amount of money to the relatives of the injured or deceased as non-pecuniary compensation.” the provision is contained in the.
53 of the same numbered Law entitled Death.in the article; “The damages suffered in case of death are especially as follows:
2.If the death did not occur immediately, treatment costs and losses caused by a decrease or loss of working power
The losses suffered by people deprived of the support of the deceased for this reason.” the provision is contained in the.
55 of the same numbered Law.in its article; “Damages caused by deprivation of support and bodily harm are calculated in accordance with the provisions of this Law and the principles of liability law. Social security payments that cannot be partially or completely refunded, as well as payments that do not carry out the purpose of performance, cannot be taken into account in determining such damages; they cannot be deducted from damages or compensation. The calculated compensation cannot be increased or decreased with the idea of equity based on the amount.” the provision is contained in the.
Article 60 of the same numbered Law entitled The competition of causes. in its article; “If a person’s liability can be based on more than one reason, the judge decides according to the reason for liability that provides the best remedy for the person who has been harmed, unless the person who has been harmed has asked otherwise or otherwise provided for in the law.” the provision is contained in the.
61 of the same numbered Law. in the article; “If more than one person causes a damage together or is responsible for the same damage for various reasons, provisions on mutual liability apply to their rights.” the provision is contained in the.
163 of the same numbered Law. in its article; “The creditor may request the performance of all or part of the debt from all of the debtors if he wishes, or from someone alone if he wishes.
The debtors’ liability continues until the entire debt is paid off. it is said that “.
6100 Pp. HMK.282nd. in its article; “(1) The judge shall freely evaluate the expert’s vote and opinion together with other evidence. it is said that “.
6102 Pp. TTC.209th. in its article; “(1) The dominant company is responsible for the trust aroused by the use of this reputation in cases where the community reputation reaches a level that gives confidence to the community or consumer.” the provision is contained in the.
In our court; Defendant TKI and … Embers A.Sh. the service purchase agreement signed with, the transfer protocol, the workplace personal file, … the 2014/1567 Hz of the Prosecutor General’s Office. the numbered dossier was brought in, the social and economic situation of the parties was investigated, and the witnesses shown by the parties were listened to.
The report on the accident, organized by the Guidance and Inspection Department of the Social Security Institution, has been included in our file and summarized in the review conducted on it; Accident 5510 p.Y.in accordance with Article 13/1-a of the, it was noted that there was an accident at work, it was not possible to establish that the insured persons who were exposed to the accident had a defect in the accident that occurred.
… Investigation of the public prosecutor’s Office investigations on expert reports contained in the file, in summary, 27 under the hood of the employer, the employer has the regents of technical supervision, Occupational Safety Specialists, a part of the company’s employees, enterprises, authorities, labour inspection Ministry of labour and social security of labour inspectors, the board determined content control and supervision of the elements of fundamental and secondary reserve stated that they are defective, however, of the workers who lost their lives in the accident in question and stated that it was observed that does not have any defects.
2014/643 E, filed in our court on the basis of the same reason. in the expert report of 9 people received within the scope of case file No. 9, Prof. Dr. Gunduz Okten, Prof. Dr. Genghis Lamb, Prof. Dr. Nurdil Eskin, Prof. Dr. Ahmet Faik Mergen, Assistant. Assoc. Dr. According to the majority opinion signed by Veysel Ozbulur, Abdullah Akbaba and Ekrem Golpınar, the employer … is 70%, the license holder is the General Directorate of Turkish Coal Enterprises is 15%, MIGEM is 10%, the Ministry of Labor and Social Security is 5% defective, Prof. Dr. Noah Bilgin and Prof. Dr. In the discrete vision prepared by Yuksel Formal Tutay,; The employers are … Coal Enterprises INC.’ s 50% of the licence of the General Directorate of Turkish coal enterprises, the owner of 30% was determined to 10%, the Ministry of labour and social security of 10% of Bannockburn by a majority report and a class occupational safety specialist that is defective Ekrem given to the Ministry of labour and social security flaw winter in my absence, the majority of the deceased and discrete in the report noted the absence of any defects in the accidents.
As a result of the judgment made by the court contains lawsuits and petitions answer, received by the court contains declarations of representatives of party, – party witness statements, expert reports, and Criminal Court’s chief prosecutor … file contents with the social and economic situation of the parties, together with all other information and documents in the file, all of the evaluation survey as a result, all defendants on the occurrence of the event in question by claiming that the denial of any fault of their own, it is not the case, they may request that it be given to the decision of, the case belongs to our court 2014/643 E. in the expert report received within the scope of the numbered case file, both in the expert report received by the Prosecutor General’s Office and in the report issued by the Guidance and Inspection Department of the Social Security Institution, it was stated that the defendants were defective. Although it belongs to our court 2014/643 E. although the defect report received from the expert panel of 9 people within the scope of case file No. 9 contains dissenting opinions on defect rates, 6100 p. HMK.282nd. as clearly stated in the article, the judge will freely appreciate the expert opinion and opinion of the expert. It belongs to our court 2014/643 E. the majority opinion in the expert witness report contained in the numbered file should be in accordance with the concrete case and the scope of the file, as well as the report received by the Prosecutor General’s Office and the Parliament contained in the file. In parallel with the report of the Parliamentary Research Commission, it was understood that the majority opinion in question should be accepted by our court.
The expert Hunt dated 24/05/2016, which was taken away by our court.In the account report prepared by Canan Yalın, it was stated that the plaintiff … had 119.791,76-TL, the plaintiff … 37.613,40-TL, the plaintiff … 67.639,80-TL unmet losses. Since it was found that there are simple accounts that can be corrected by our court, but the report can be audited in accordance with the procedure and the law, it is convenient to establish a provision, the decision was taken as a basis in the received report.
In our court, the defendants are the Turkish Coal Enterprises Authority and …. it is necessary to determine the legal nature of the contract signed between them, to determine whether the main employer forms a subordinate relationship and whether this relationship is decoupled.
In the decision2015/249 of our court, which was filed to determine that the relationship between the main employer and the sub-employer between the defendants is muravaali; “As is known, a large part of public institutions today are required to perform the services they are obliged to perform 4734 p. Within the framework of the Public Procurement Law and other tender legislation, they are going on the path of purchasing services by tender. 4734 Pp. 4 Of the Public Procurement Law. a service description in the item in question according to the definition, the service concept of “Maintenance and repair, transportation, telecommunications, insurance, research and development, accounting, market research and survey consultancy, promotion, printing and publishing, cleaning, food preparation and distribution, meeting, Organization, presentation, protection and security, vocational training, photography, film, intellectual and beautiful art, computer systems, services, software services, and the leasing of movable and immovable property rights and other similar services,” is kapsamta. In the article, “and other similar services” from the statement mentioned in the question, they are not a limited number of services, but all services that have not fulfilled their staff with public agencies and institutions they need for the service to enter into contractual relations with auctions that can be understood. The conditions of service contracts within the scope of the public procurement legislation with strict procedural administration’s own staff as of insufficient quantity and quality of not having been subjected to any limitation in this contract, the provisions of law pertaining to employment of workers with the business as does not mean that to be taken into consideration.
The defendant … argued that the service purchase agreement subject to the lawsuit should be considered as a transfer of the workplace, a work or a revaluation agreement. Rechdovans 3213 p. These are contracts concluded for the transfer of mineral exploration and operation licenses obtained in accordance with the Mining Dec to third parties by license holders. In loyalty contracts, the license holder transfers the mine operation permit to the loyaltyst, and in return receives a share called the loyalty price from the loyaltyst . In other words, loyalty is the rental income per ton received due to the temporary allocation of the mining license to others by the right holder (for detailed information, see B.K.. Is Osman Guven Çankaya a Sub-Employer Contract of loyalty ?, Public-Business; C:13, S:3/2004). 2 of the “Technical Specification for the Production of Coal from Eynez Underground Fields of the Directorate General of the Turkish Coal Enterprises Authority Aegean Lignite Lignite Enterprise Establishment”contained in the file. the subject of the work to be done in the article; “The responsibility of the administration in Article 1 of law and gender, class and boundary coordinates of the specified field from the contractor’s use of a part by the administration will be given free of charge for the building, plant, machinery, equipment, and underground galleries that will provide the contractor with additional machinery, equipment, facility and staff belonging to the contractor, including all expenses, business methods of producing coal with the underground job” is designated. As a result of the examination of this work and the contract subject to the lawsuit and other documents of an october nature, the defendant … Embers A.Sh.As there is no transfer of any mining or operating license transferred to the defendant for the coal produced …’since there is no price paid to the defendant, it is not possible to accept the service purchase agreement subject to the lawsuit as a revaluation agreement.
The audit of the business program and the business project to be carried out by the respondent company from the examination of the contract subject to litigation. If the program or project is not sufficient, the administration may make changes that it deems necessary in the program or project, the defendant company must comply with this program and the project exactly, otherwise the TKI.that ’s can terminate the contract unilaterally is the TKI of the business program and the business project.at the request of the, the produced coal and the existing coal residues will be weighed on the scale shown by the General Directorate of TKI and the shipment receipt will be issued, the defendant company’s TKI.will comply with the written requests and warnings that it will make, your work in the field is TKI. It is seen that it has been decided by the General Directorate that it will check whether the operation has been carried out in accordance with the project. In the face of these determinations, the defendants are the General Directorate of TKI and the defendant …. dec. 2 of the Law No. 4857 on the relationship between in accordance with the article, it is necessary to evaluate the relationship between the lower employer and the upper employer (in the same direction B.K.. Supreme Court 21. H.D. it is dated 12.06.2014 and is dated 2014/4877 E., 2014/ 13472 K.; Supreme Court 22. H.D. dated 21.06.2013 and dated 2013/11392 E., 2013/15054 K.).
4857 p. of the sub-employment relationship established between the plaintiff and the parties, the plaintiff dec. 2 Of the Labor Code. contrary to the article, because the defendant …’s main job is the job of producing coal, the main job cannot be divided and transferred to sub-employers, except for jobs that require expertise due to technological reasons, for this reason, the sub-employer relationship is ambiguous, suggesting that the sub-employer’s workers should be considered the main employer’s workers from the beginning of the employment contract.
In an active sub-employer relationship, the parties are not actually intended to enter into a sub-employer relationship, but to maintain the title of employer of the “principal employer” against sub-employer employees.
In the Labor Code, Sub-Employment Regulations, doctrine and judicial case law;
1-) Restriction of the rights of employees of the main employer by being employed by the sub-employer,
2-) Establishment of a sub-employer relationship with the person previously employed at the workplace belonging to the main employer,
3-) The division of a part of the main work other than the work that requires expertise due to the need for operation and work, as well as for technological reasons,
4-) Employees continue to work despite the change of sub-employers,
5-) The main employer is authorized to hire and fire the employee,
6-) The use of the right of management over sub-employer employees by the main employer,
7-) Employment of sub-employer employees other than the jobs specified in the contract with the main employer,
* All tools and equipment are provided by the main employer,
9-) In the event that the job was given to the sub-employer during the conclusion of the collective bargaining agreement, the sub-employment agreement is considered to be signed.
In order to determine the claim of the plaintiff, these situations must be examined within the scope of the concrete file.
Both from the scope of the file and from the witness statements heard in labor claims cases filed on the basis of october agreement in our court, as a result of the examination and evaluation of the service purchase agreement and attachments that are the subject of the case contained in the file, as well as the answers of the client; Both the main employer’s employees and the employees who previously worked alongside the main employer are excluded from the lawsuit by the sub-employer ….run in however, since the principal employer of the defendant …’s recruitment of workers is not authorized and change where the subcontractor is not used by the workers of the right of management of the principal employer, if the sub-contractor with the exception of workers specified in the contract he has not worked, and although it was a portion paid by the employer of equipment, it has been understood that the actual necessary tools and equipment are provided by the sub-employer and that the work is not provided to the sub-employer during the conclusion of the collective bargaining agreement.
Another issue that should be particularly emphasized regarding the service purchase agreement that is the subject of the lawsuit is whether the service purchase agreement in question can be evaluated within the scope of labor procurement. jul. Indeed, another of the issues that the plaintiff shows as the basis for his case is that the plaintiff is out of the case with the party …. the decommissioning agreement signed between the two is actually intended for the supply of workers.
As is known, recruitment of personnel for service procurement service and with the number of different phenomena that are making the supply of workers, and labor supply sub-contract for the purpose of isverenlik relationship will not occur. Indeed, when public institutions and organizations aim at the provision of workers, and not the transfer of work, with a service purchase agreement, such a legal transaction will create a temporary employment relationship that has been legally professionalized. However, in Turkish Law, a temporary employment relationship with a profession is prohibited. For this reason, service purchase contracts within this scope will be legally qualified as labor supply and the workers will be treated as employees of public institutions or organizations from the jul-ture. The Supreme Court on this issue is 9. H.D. it is dated 15.10.2011 and is dated 2011/1489 E., 2011/3418 K. in its numbered decision; “The contract for the tender for the purchase of auxiliary personnel services concluded between the defendants has been submitted to the file, and the subject of this contract is not the construction of a job, but the dec of personnel (workers). Therefore, since a principal employer-subordinate employer relationship has not been established in accordance with Article 2/6 of the Labor Code No. 4857, it is necessary to recognize that the plaintiff is a Municipal employee of the defendant from the very beginning. it is said that “. Again, the Supreme Court 9. H.D.of 21.12.2008 and 2008/41361 E., 2008/34689 K. in the decision, “a sub-as an employer, the employer has undertaken with a principal agreement for the production of goods or services from a specific organization, expertise and legal independence does not have the independent management of economic activity, production or service provision does not assume briefly, if the principal employer in the event of the relationship, the principal is the supply of Labor to the employer in question. it is said that “. However, it is impossible to assume that the purpose of providing workers is in all service purchase agreements made by public institutions and organizations. Jul. If it is accepted that there is no provision in the service purchase agreements, it is necessary to accept that this service purchase agreement is a sub-employment agreement (For detailed information, see B.K.. Yusuf Gulesci, Sub-Employer Practice in Public Workplaces, Ankara 2013).
In the doctrine, a number of criteria have been jul-tioned for determining whether the service purchase agreement is made for the purpose of supplying workers or not. Really;
-In the work transferred to the sub-employer, the employees of the main employer institution also work together,
-The public employer is granted powers that exceed coordination and supervision over the employees of the sub-employer, that is, the public institution and organization use the employer’s powers in relation to the work transferred to the sub-employer in the view of supervision and coordination, give orders and instructions to the employees of the sub-employer,
-Although the employee is a changing sub-employer, continuing to work without interruption is not considered sufficient for the acceptance of the agreement alone, because the main employer wants to continue working with existing workers (i.e. if the main employer forces the sub-employer to work with the same workers), the sub-employer to work with existing workers,
-Although the sub-employer is normally required to perform this work with his own tools and equipment in the job that he takes over from the main employer, if the sub-employer only assigns employees for the given job and the main employer has provided all the necessary tools and equipment, we should now talk about the provision of employees rather than the sub-employer relationship. Jul Jul, However, although the main employer procures some equipment and equipment from the main employer when performing the work that is being loaded, it is no longer possible for us to talk about the supply of workers if the main equipment and equipment necessary for the execution of the work that is being loaded is provided by the sub-employer (For detailed information, see B.K.. Yusuf Gulesci, Sub-Employer Practice in Public Workplaces, Ankara 2013).
Considering the concrete incident that came before our court taking into account the criteria mentioned above, when the witness statements heard within the scope of the file are evaluated (which the current witnesses heard have cases filed in our court for the same reason), it is clear from the TKI working with them in January where they work. that he had no staff, only … Coal Enterprise A.Sh. they must have indicated that they have staff and TKI. In the responses to the client sent to our court by the General Directorate, it is stated that there are no staffed underground workers in their establishments, the main employer is TKI. The General Directorate is the sub-employer of the staff…. it has been understood that he and his staff do not work together in the same workplace.
Again, in the statements of the plaintiff witnesses who were personally heard (which are the cases filed in our court for the same reason as the current witnesses who were heard), the defendant is the main employer of the TKI. the fact that their officials do not give them orders and instructions, they do not deal with them, is already in January TKI. there are no staff members, except for only January 3 TKI. that there are engineers, they also conduct inspections and checks, they do not go down to the january, orders and instructions from the sub-employer who is not involved in the case …. in the face of the statements they received from the authorities, the defendant’s main employer is TKI.of ….it is impossible not to mention that he acts as a deputy of the, uses the powers of a deputy employer. October, when the contracts and attachments contained in the file are examined, the defendant’s main employer is TKI.it is understood that the powers granted to the do not exceed the limits of supervision and coordination.
From the statements of the plaintiff witnesses who were personally heard from the scope of the file (which are the cases filed in our court for the same reason by the current witnesses who were heard), the non-litigant sub-employer ….’s eynez in which the accident occurred outside the furnace, lights, and even before that it was the furnaces were atabaca geventepe stove, however due to the end of production in geventepe is closed, the workers who work there, the work of these three have been transferred to whether the furnace is still in question on January 3, workers can be subject to a change of venue with temporary assignments and postings, when they start working….it is unclear which january they will work in, the sub-employer is not involved in the case ….they noted that the company itself personally decides which employee will work where, again, in the october of the service purchase agreement contained in the file and its annexes, the sub-employer ….when it comes to choosing which worker to work with, TKI.the authority does not have any authority, the authority in this regard is within legal limits ….it is understood that it belongs to the .
As a result of the re-trial conducted by our court, the subject of the case was discovered at the workplace and a report was received from an expert panel consisting of experts in the field.
In summary, in the expert report; The subject of the case is the TKI of the fields where Eynez Mines was operated by the defendant … until 2003-2004. During the period when it was operated by the General Directorate, it was mainly operated by open january, therefore TKI. The Directorate General of technical staff, workers and machinery Park (existing machines) become an expert in terms of the production of open in January, but it is open January to be produced by the method of excavation of coal reserves cover the lack of negative impacts on the environment, the increase in the rate of increase of this magnitude becomes technically impossible due to the deepening of January and open field production in the study area and therefore can not be too strong, along with the narrowing of the coal production increased to the extent that such failure is for reasons such as production methods of underground coal becomes compulsory to prepare, in this context, there are 282.013.000 tons of reserves in Eynez Field, of which 57.700.000 tons are suitable for open january operation and the remaining 224.313.000 tons are suitable for underground production, therefore underground coal production should be done, but TKI. The General Directorate of sufficient information in underground coal production, labor, equipment, and experience you possess, even if backward 10-15 year period in 2006, labor, materials and equipment supply and investment and financing program, due to the difficulties encountered in terms of allowing you to TKI. The General Directorate has become unable to maintain underground coal production with its own resources and therefore has to go down the service purchase path, in this context, both the Park Technical company and the Coal Enterprises company are experts in underground coal production, have the necessary personnel and equipment and financial competence, TKI. It is affiliated to the General Directorate of GLI. With titles in the field of underground coal production facilities within the Directorate establishment muesse is also very low amount of coal produced, however the cost is very high; for this reason, the profitability of production in question from the principle of public service rather than because they are executed within the scope of TKI. In addition, 80% of the coal reserves that can be produced in this basin are underground, 20% are available for above-ground coal production, while 84% of the production done in the last 15 years is open january, 16% is underground production, although TKI. Although underground coal production is carried out in the Omerli Field by the General Directorate, the Eynez Field is different from the Omerlerler Field, because the tectonic structure of the Eynez Field is more difficult and hard, so it is more difficult to produce underground coal in the Eynez Field, for these reasons, TKI. It has been stated that the General Directorate was forced to leave the private sector due to technological impossibilities and labor shortage of the underground coal production business in Eynez Field.
As a result of the appeal review conducted within the scope of the decision previously made by our court, the defendant and the defendant are out of the case …. although it has been confirmed that the relationship between them is a sub-principal employer relationship, in particular by our court, Law No. 4857 Dec 2. it has been understood that it is necessary to determine whether there is a valid principal employer-subordinate employer relationship within the framework of the article. In this context, the subject of the case was discovered at the workplace and a report was obtained from the expert panel consisting of expert witnesses in the field in accordance with this discovery. …As mentioned above, this expert report on the defendant’s personnel and the equipment you need and open in January on the basis of experience specialized in the production of coal, underground coal production in the necessary equipment, personnel and experience is lacking, where the tectonic structure of the area in question as well as forest fires made it difficult to be made underground in coal production in the field of underground coal production of it … even if the defendant does omerli eynez and also more difficult than a symbolic amount of field is a field, for these reasons, TKI. Since it is understood that the General Directorate had to leave the underground coal production business in Eynez Field to the private sector due to technological impossibilities and labor shortage, as it is understood that there is no case of muvazaa as claimed in the sub-employment contract between the parties, as well as it was not done for the supply of workers, the plaintiff’s case had to be decisively rejected, decided and the provision was established as follows.” with the justification stated in the form of the defendant … the institution and the defendant …. 22. the Supreme Court of Cassation decided that the relationship between the main employer and the subordinate employer constitutes a relationship, but that this relationship is not decisively decided.The Decision No. 2015/34211 and No. 2016/14219 of the Legal Department have been approved and finalized. The file in question and all File are evaluated in the scope given in the decisions of the defendant … the defendant … coal enterprises of the relationship between the agency and the institution of the principal employer of the sub-employer relationship that creates, however, it was decided that it is not collusive.
Although the plaintiff’s side is 6102 p. TTC.209th. although the defendant’s responsibility has also been resolved within the scope of article 6102 S. TTC.209th. in order for the article to find an application area; “…TCC.at 209. the article regulates the responsibility arising from trust in the partnership community. According to this regulation, the dominant partnership is responsible for the trust aroused by the use of this reputation when the community reputation reaches a level that gives confidence to the community and the consumer … Considering the TCC 209 regulation, the following can be said in terms of the terms of responsibility.
if the liability of the subsidiary is based on a tort, then in no case can it be based on the liability of the trust of the dominant partnership. Because in order for such liability (trust liability) to arise, it is necessary to have a transaction-based contact” (For detailed information, see B.K.. Prof. Dr. Oruç Hami SENER, Theoretical and Applied Partnerships Law Textbook, 2015/II, sf. 191-197). As can be understood from the explanations in question, TCC. it is not possible to apply 209 in the event in question. Because, firstly, the incident in question is a tort liability. As explained above, trust liability cannot be applied for tort liability. Secondly, the relationship between the parties is a dec relationship, and it is not possible to apply this provision in service relations. In addition, considering the justification of the article in question; “…For this reason, the central condition of responsibility is the “use of reputation”. If there is no use, then only “belonging” to the community does not entail responsibility. Not every group of companies is covered by the provision. In order for a community to be covered, its reputation must have reached a level that gives confidence to the community or consumer. This, in turn, is determined by the concrete event. it is said that “. As for the doctrine, “… In the case of liability arising from trust, the source of liability is that the dominant partnership, using the general trust in the community, raises certain beliefs and expectations about the concrete situation on the other side (that is, in the third person trading with a subsidiary), but does not meet them and damages the counterparty. That is, not abstract, but concrete confidence is preserved here. Otherwise, the source of responsibility here is not the confidence that society and consumers have in reputable partnership communities, that they will always act honestly, that they will provide quality services. Therefore, the creditors of the subsidiary cannot claim from the controlling partnership the receivables that they cannot collect from it on the grounds that the controlling partnership is included in a community of partnerships with a high commercial reputation, without behaviors and explanations that are conducive to ensuring a special degree of trust for them, creating concrete expectations.” (For more information, see B.K.. Prof. Dr. Oruç Hami SENER, Theoretical and Applied Partnerships Law Textbook, 2015/II, sf. 191-197). In the concrete case … there is no concrete or abstract evidence that the Holding has aroused such confidence against the plaintiffs and the root muris, nor are there any claims to this effect in the lawsuits and declaration petitions. For these reasons…. in terms of TCC. since the conditions of the request for Trust Liability regulated in Article 209 have not been formed, it is necessary to decide on its rejection. In addition, as it is clear from the defect report contained in the file of the defendant in question, it is understood that he does not have any responsibility for the occurrence of this incident, it was necessary to decide on the dismissal of the case from the animosity from the point of view of the defendant in question.
TKI is the defendant in the lawsuit petition. The General Directorate (ELI. It has been understood that the Main status of the Main Status of the Aegean Lignite Enterprise Limited Liability Directorate of the Turkish Coal Enterprises Authority, which is included in the file, is 2 of the main status in question in the review conducted on the Main status of the Enterprise. according to the article, ELI is the TKI of the Enterprise Directorate. Since it is understood that there is a public legal entity separate from the General Directorate, the plaintiff must file their case to the party. Is it against the General Directorate or against ELI. The issue of whether he filed a lawsuit against the Establishment Directorate was asked, and the plaintiffs’ attorney submitted the case both in the declaration petition submitted in the file and in the TKI. And the General Directorate, ELI. He stated that they had filed a lawsuit against the Establishment Directorate. ELI. Organization management, report the defect within the file as it is understood from the event in question in fact he does not have any responsibility in the service of the purchase contract is made with TKI, TKI in sahibin registration of the case in question it is understood that the defendant in respect of a denial of a grudge because the decision had to be made.
Although the defendant’s criminal file (… belongs to the Criminal Court 2015/81 E. although he requested that the outcome of the numbered file be expected, the impact of the decisions made by the criminal courts on the civil courts was evaluated in the decision of the Constitutional Court dated 23/01/2014, application number 2013/4701, and according to the decision in question; “…58. Since the subjects, parties and purposes of civil and criminal cases are different, the decisions of the criminal court, as a rule, do not establish exact provisions for civil cases. It is entirely within the duty of the legal judge to resolve compensation cases filed due to tort. The judge who faces a ”waiting problem” claim does not have the obligation to wait for this claim outside of his duty to be resolved in the court in charge. He himself can decide the issue raised in many cases. Moreover, the application is subject to Article 53 of Law No. 818. although the civil judge is bound by the decision of the criminal court on the conviction in accordance with the article, the acquittal decision that does not determine the material event does not bind the civil judge. For him, the civil judge can make a decision based on the evidence he has collected. As a result of the fact that the determination and discretion of the criminal court and the determination and discretion of the civil court differ, even the decision of the criminal court that there is no cause and effect link in an incident may not bind the civil judge.
Moreover, the ECHR also states that, according to the Turkish legal system, civil courts are not subject to the decisions of criminal courts, so it does not have to postpone the trial for a long time to wait for the outcome of the criminal case. (B.K.. Mustafa Turkoglu / Turkey, B. No. 58922/00, 8/8/2006, § 40).” considerations are stated. Gotta question the decision of the Constitutional Court, as well as defendants in a criminal case in the capacity of the court file and the files of our party he was not in the scope of Employer-Employee Relations at the level of the review is done since the defendant is not a real person and the employer of the employees of a legal entity partners and giving the job, because it is the outcome of a criminal case, it is understood that you do not need to wait.
Although, in the expert report in question, the defendants are TKI. General Directorate, …. although a total of 15% of defects have been explained to the Ministry of Labor and Social Security and the Ministry of Labor Inspection Board of MIGEM and the Ministry of Labor and Social Security out of the case, and it may be considered that 15% of the responsibilities of these people should be excluded from the scope of the Work Inspection Board of the Ministry of Labor and Social Security because MIGEM and the Ministry of Labor and Social Security are not parties to the file, the Supreme Court 21. HD.of 24.06.2014 and of 2014/7716 E., 2014/14885 K. as rightly stated in its decision no; “… In the petition for action, the incident was described and it was explained that the accident occurred with the actions of the third person who was not involved in the formation of the traffic accident, as well as the driver of the vehicle he was in, and he did not limit his claim by attributing a certain amount of defects to the defendant and ultimately asked the defendant for all of his damages (by reserving the rights to claim for excess). It is no longer possible to assert here that the plaintiffs have filed a claim from the defendant at the rate of the defect that will take place. The plaintiffs’ claim for all of their damages in a lawsuit filed against the fiduciary debtors who caused the harmful result by mentioning that they themselves are completely flawless is not implicit, but on the contrary, it is admissible.142nd. it is a clear proof that it is clearly based on the consolation rule provided for in its article; in such cases, the fact that the word reciprocity was not used in the lawsuit petition does not affect the outcome. As such, it is necessary to accept that the defendant employer is responsible for the damage caused by the fault of the third party outside the case, taking into account that the rule of consolation is based on the defendant’s employer’s joint fault in the occurrence of the damage of the employee he employs”. It is not possible to accept that the claimants’ request is limited to the fault of the defendants within the scope of the file in question. On the contrary, it is understood from the lawsuit petition that the plaintiffs are applying for the fiduciary responsibility of the defendants against the responsibilities of persons other than the defendants. For this reason, although no lawsuits have been filed against these institutions, it is for this reason that all of the institutions and organizations in question are defective in the occurrence of this accident from the expert report contained in the file 6098 S TBK.of the 61st. in accordance with the article, it is necessary to apply the provisions on mutual liability in their rights. In this context, 6098 p. TBK.163/I of the creditors who have suffered losses in accordance with the article may claim the entire debt from any debtor they wish, in this context, from any of the persons specified in the expert report as having a defect.
Although the plaintiff is …. TBK, which operates a dangerous enterprise, is the license holder of TKI.71st. although, according to the article, they stated that they were perfectly responsible for the fact that they owned a dangerous business; TBK.60th. in the article, based on multiple causes of a person’s responsibility to see the damage in the case of the judge to decide according to the cause of responsibility that allows you to go the best of the regulation in terms of a concrete event, removed the defendant in the expert committee report …. in this case, it is stated that the TKI and other non-plaintiffs are defective, no defects are imposed on the trustee, the claimant’s claim is based on mutual liability, in this case, the plaintiff’s damages are fully covered by the defendant …. since it is understood that TKI can be held accountable and the plaintiffs’ damages can best be remedied on the basis of liability for defects, it has been understood that there is no legal benefit for the parties in discussing the issues of liability.
In a concrete case, where the first advance capital and valuable income are attached to some plaintiffs, the first recoverable amount of such income must be deducted from the plaintiff’s actual loss. At the point of how much of the first PSD can be appealed, the Supreme Court 10.In the decree No. 2016/10841 issued by the Law Department 2016/10478; “In the event that the insured person suffers from an occupational accident or occupational disease caused by the defects of more than one person together, the said 50. and 51. articles (61 of the Law No. 6098. and 62. according to articles 1), these persons have joint responsibilities within the scope of the provisions of consolation and 146. according to article (62 of the Law No. 6098. according to the article), provided that the payer of more than his share reserves the right of recourse against other mutual debtors, his responsibilities should be decided according to the rules of consolation from the point of view of each debtor, regardless of the amount corresponding to his defects. If the responsible persons who caused an occupational accident or occupational disease together are the employer and a third party, the amount for which the employer will be jointly and severally liable, 1. according to paragraph 4 of the amount for which he will be held liable in accordance with his share of the defect (the initial advance capital value of income X the employer’s defect rate), the third party. according to the paragraph, the amount to be liable for (half of the initial advance capital value of income X the defect ratio of the third party) should be the same as the sum of, and the amount to which the third party will be held severally liable for the limitation of “half of the initial advance capital value of income” imposed by the legislator should be the amount to be obtained by multiplying half of the initial advance capital value of income and the sum of the defects of all defendants, including the employer. This approach and practice is also fair, since it does not oblige the employer to pay the Institution the amount that he cannot apply to a third party in an internal relationship. he decided that “. In the same way, the Supreme Court 21.In the decree No. 2015/12863 of the Legal Department based on the Decision No. 2016/5809; ” Although the occupational accident subject to the case occurred before the effective date of Law No. 5510,; according to the decision No. 2013/196 of the Labour Court No. 2011/341, filed by the plaintiff against the procedure for non-binding income due to an occupational accident … Since income has been bound by the institution since 01.10.2008, the advance value that can be applied to the Institution should be determined in accordance with Article 21/1 of Law No. 5510 for the employer who is defective, and 21/4 for the same Law for defective third parties.
It is understood that in the event that resulted in the death of the insured in the concrete event, 25% of the employers and the third person who is the driver of the vehicle outside the case were found to be defective by 25%. Accordingly, the advance capital value that must be deducted is the sum of half of the defect of the third party and the defect of the employer. In other words, 37.5% of the initial upfront capital value must be deducted from the loss of the rightholder. he decided that “. 55 of the Turkish Code of Obligations.in its article, it is clearly stated that social security institution payments that cannot be applied for cannot be deducted from the calculated compensation. In a concrete case, the defendant is 70% of the sub-employer, 15% of the main employer, 21 of the Law No. 5510.according to article 170.242.35-TL of the income attributable to plaintiff …, 52.176.35-TL of the income attributable to plaintiff …, 46.062 of the income attributable to plaintiff …, It was understood that 52-TL should be deducted. Within the scope of these explanations, it was understood that the plaintiff … had 133.595, 19-TL, the plaintiff … 41.843, 92-TL, the plaintiff … 71.374,59-TL unmet damages. The calculation was made by our court when it was observed that the calculation in question could be made by our court for simple accounts in which the calculation was made as a simple account.
As for the issue of determining the amount of non-pecuniary compensation, the issue of how to determine the amount of non-pecuniary compensation is the Supreme Court HGK.of 24.12.2014 and 2014/21-872 E., 2014/1086 K. his decision has been examined at length. Indeed, according to the decision in question; “…The unfair action of the defendants lies at the heart of the claim for moral damages. As is known, the elements of an unjust act consist of harm, the connection of decency between the verb and harm, the violation of the law of the verb. On the other hand, Article 47 of the Code of Obligations No. 818. (56 of the Turkish Code of Obligations No. 6098.) in the Decision No. 1966/7 of 22.6.1966 and Decision No. 1966/7, it was clearly emphasized that a defect is not required in the moral compensation regulated in the article, but it can be effective if it is. In the justification of this decision, special circumstances and conditions that will affect the amount of non-pecuniary compensation to be assessed have also been clearly shown. Since these may vary according to each event, the judge should show the reasons that are effective to him in an accurate manner according to objective measures at the place of his decision, while exercising his right of discretion in this regard. Again BK 47 (TBK 56). according to the provisions; the amount that the judge will decide to award to the rightholder in the name of non-pecuniary damage, taking into account the specific circumstances, must be in accordance with justice. This amount of money, in fact, is neither compensation nor punishment. Because mamelek does not aim to compensate for the damage related to the law, nor is it an evil done to the defective one only because of the violation of the law. On the contrary, it has a function similar to compensation, as it aims to evoke a sense of peace in the person who has been harmed, as well as to relieve spiritual suffering. Then the limit of this compensation should be determined according to its purpose. The amount to be appreciated should be as much as is necessary to achieve the effect of the desired sense of satisfaction to be achieved in the current state. Since moral compensation is aimed at the partial and possible return of the pain and suffering heard, the judge said that 4. according to the article, it should determine the amount of non-pecuniary compensation by using the right of discretion according to rights and generation. In making the determination, the judge should take into account the nature of the concrete event, the economic and social situation of the victim, the purchasing power of money, the disability rate, the pain and suffering that will be heard and heard in the future due to the loss of body strength.”
When the decommissioned account, defect report and all file grabs are evaluated together; the defendant … the defendant died of an occupational accident on January 13, 2014 while working in an underground mine operated by Coal Enterprises, the occurrence of an occupational accident, the defendant had no fault of the trustee, the defendant …. 70% of the Coal Enterprises of Turkey A.Sh. 15%, 10% of the General Directorate of Mining Affairs, 5% of the Presidium of the Labor Inspection Board of the Ministry of Labor and Social Security, each of those responsible for the same wrongful act related to a single incident for different legal reasons, in which the case was opened with a request for a separate charge based on the defect, each of them is responsible for the same wrongful act related to a single incident, Articles 61 and 62 of the Code of Obligations 6098 articles 61 and 62 it is understood that the plaintiffs …, … and … are deprived of support due to the death of the trustee, the plaintiff … has 133.595, 19-TL, the plaintiff … has 41.843, 92-TL, the plaintiff … has 71.374, 59-TL unmet damages of the Law 6100 26 of the Code of Procedure.in accordance with the claim specified in the article and the commitment rule, it was necessary to decide on the acceptance of the plaintiffs’ claim for financial compensation.
The assessment by the court contains, as a result of the accident in question that resulted in the most casualties in the history of the Republic of Turkey a work accident, the plaintiffs and the public caused by the deep pain, 301 miners lost their lives during this accident, the accident in question occurred, the plaintiffs and the other workers Muris the absence of any defect of the defendant and the consequences of this defect is the fault of the accidents that occur depending on the weight of the amount of compensation at the rate of deterrence woke it should be heavy duty safety violations, considering such issues as 150.000.00-TL for the plaintiff’s spouse, 130.000.00-TL separately for the plaintiff’s children, 100.000.00-TL for the plaintiff’s father, 40.000.00-TL for the plaintiff’s brother, the defendants’ TKI of non-pecuniary damage. With the General Directorate ….it is understood that it is necessary to decide on their joint and mutual collection.
The defendant requested the plaintiff’s how to answer the amount of compensation is very high, that non-pecuniary damages in the event that the objection is accepted, as that will make the amount of ozlenir was made in disaster, although the amount of such compensation is not very high, as to whether the value of a human life can be measured in monetary terms, such as … a medium-sized town, even a mid-level apartment with a value of approximately 200.000,00 TL. considering that the amount of moral compensation imposed is not very high, it is understood that the provision should be established as follows.
D-)Decision and Justification of the District Court of Justice;
Izmir Regional Court of Justice 3. HMK of the defendant’s application for appeal by the Legal Department. in accordance with Article 353/b-1, it has been decided to reject it on its basis.
The lawsuit relates to the claimants’ claim for material and moral compensation based on the cause of death of the root cause of the mining accident that occurred on 13.05.2014.
The defendants separately argued that there were no defects in this accident, the case was dismissed.
As a result of the trial conducted by the court of first instance, “… Holding INC. it was decided that the case should be dismissed due to the absence of animosity from the point of view of the other defendants, partially accepted, and the decision was appealed by the deputy of the Turkish Coal Enterprises.
There is a dispute between the parties on the point of responsibility of the decedents for an occupational accident suffered by one of the plaintiffs.
According to the report organized by the Guidance and Inspection Department of the Social Security Institution on the accident; Accident 5510 p.Y.it is an accident at work in accordance with Article 13/1-a of ’ In this accident, no determination has been made that the insured persons who were exposed to the accident had a defect.
The investigation file of the Prosecutor General’s Office for the accident also found that the workers who lost their lives in the accident did not have any defects.
Filed on the basis of the same reason 2014/643 E. in the expert report of 9 people received within the scope of the numbered case file; according to the majority opinion, the employer …. it was found that 70%, the General Directorate of Coal Enterprises of Turkey, which holds a license, is defective by 15%, MIGEM by 10%, the Ministry of Labor and Social Security by 5%. Both the majority and discrete reports stated that the victims did not have any defects in the work accident that occurred.
It has been seen that the expert account report prepared by the actuary expert Canan Yalın is also in accordance with the procedure and the law and is conducive to establishing a provision.
…. in terms of TCC. 209 about the responsibility of the trust held in the conditions of demand, whether the event in question as it is understood from the defect report, the defendant any liability in the absence of the counsel for the plaintiffs …’s appeal stated their acceptance of animosity, animosity against the defendant in respect of the court related to the case of adoption has been observed in parts that cannot.
2 of the Law No. 4857. according to the article, in order for the main job to be divided and given to the sub-employer, the job to be given must be a job that requires expertise for technological reasons, or there must be a legal regulation that the job can be done to the sub-employer. It is possible that the contract between the main employer and the subordinate employer is based on a work contract or a decommissioning agreement or a similar agreement.
In the file No. 2015/249 of the same court, the defendant … the institution and the defendant …. the Supreme Court’s decision that the relationship between the principal employer and the subordinate employer constitutes a relationship, but that this relationship is not decoupled, 22. H.D.it was approved and finalized by Decision No. 2015/34211 – 2016/14219 of the. Accordingly, the defendant … the defendant with the institution …. the court accepts that the relationship between the principal employer and dec subordinate employer is a relationship.
According to the scope of the completed account and defect report and the entire file; the defendant … the defendant died of an occupational accident on January 13, 2014 while working in an underground mine operated by Coal Enterprises, the occurrence of an occupational accident, the defendant had no fault of the trustee, the defendant ….70% of the Coal Enterprises of Turkey A.Sh.15%, 10% of the General Directorate of Mining Affairs, 5% of the Presidium of the Labor Inspection Board of the Ministry of Labor and Social Security, each of those responsible for the same wrongful act related to a single incident for different legal reasons, in which the case was opened with a request for a separate charge based on the defect, each of them is responsible for the same wrongful act related to a single incident, According to Articles 61 and 62 of the Code of Obligations No. 6098, it was understood that they should be held severally liable for damages, the plaintiff’s spouse and children were deprived of support due to the death of the trustee, these plaintiffs had unmet material damages, the court found that there was no failure to accept the financial compensation claims of some plaintiffs.
Court; the accident in question that resulted in the most casualties in the history of the Republic of Turkey a work accident, and the deep pain of the plaintiffs and the public indignation caused by this accident 301 miners lost their lives during the accident, the plaintiffs and the other workers on the occurrence of the fault of the defendant Muris of this defect and the absence of any defect, depending on the weight of the consequences of accidents that occur, the amount of compensation, deterrence heavy duty safety violations-inspiring moral damages in the amount of any asymmetry by considering the considerations that ought to be there is not there.
As a result, the following provision was established in the opinion that the decision made by the court of first instance, as detailed above, is in accordance with the content of the file, the procedure and the law, the reasons for the defendant’s attorney’s appeal are not considered in place, and it must be rejected on the basis of the following.
E-) Evaluation of Evidence and Justification;
The lawsuit is related to the request to compensate the material and moral damages of relatives due to the death of the insured person as a result of an occupational accident.
From the records and documents contained in the file, the license holder is the notarized service purchase agreement dated 22/07/2006 and numbered 24046 yevmiye No. 24046 by the defendant General Directorate of the coal production business at the Eynez underground site, which is the General Directorate of the Turkish Coal Enterprises Authority …Art. Stroll. San.ve Tic. OF.however, on 30/10/2009, with the consent of the General Directorate of the defendant … Institution, the coal production business was provided under the same conditions ….’it is understood what has been transferred.
October 2 of the Technical Specification attached to the Contract. the subject of the work in the article “1. in the article gender, class and boundary coordinates of the specified field from the contractor’s use of a part by the administration will be given free of charge for the building, plant, machinery, equipment, and underground galleries that will provide the contractor with additional machinery, equipment, facility and staff belonging to the contractor with the job of producing coal by underground mining methods, including all expenses” as described in this context, existing in the field of switchgear, generator, field tile, ventilator facility, compressor plant, building organizing, workers baths, lambahane, central heating, workshop, Pres, ash plant, plant kriblaj, breathlessness, etc. october January October 2, it is seen that the machinery and equipment defined in ANNEX-2 of the Technical Specification are left free of charge for the use of the contractor, and there are chain and belt conveyors belonging to the administration in the underground mine where the work will be done in the list defined as ANNEX-12. The technical specifications of the programme of work and business to be done by the contractor in a project will be presented to the General Directorate of the defendant … the institution, and in the absence of adequate programme or deficiencies identified by the administration of the project would be approved by the administration to the application project within the given time are obliged to follow exactly the contractor’s application within the project, however, the administration of the convention which is to be made with the approval of the revision of the administrative specifications that will run Oct clause 7.3.2 the contractor’s Business Manager, Project Engineer, permanent supervision of shifts, 11 of the General Specification for Service Work october which is an annex to the Contract, in which the minimum number of technical supervisors and the seniority of their profession are determined by the respondent administration. in the article, the rules are introduced that the administration may request the removal of employees of all levels and qualities that it considers inconvenient to work at the workplace if it behaves inappropriately, believes that it is inadequate to perform its duties, or that the contractor must comply with this.
In all expert defect reports received due to an occupational accident that occurred within the scope of the file, no defect was explained to the insured persons who died or were injured.
4 of the Occupational Health and Safety Law No. 6331 in force at the time of the incident, entitled “General Obligation of the Employer”. according to the article;
“(1) The employer is obliged to ensure the health and safety of employees related to work, and within this framework;
a-) Prevention of occupational risks taking all kinds of measures, including providing education and information, organizing, providing the necessary tools and equipment, adapting health and safety measures to changing conditions and improving the current situation.
b-) Monitors, audits and ensures the elimination of non-compliance with occupational health and safety measures taken at work.
c-) Conducts and conducts a risk assessment.
ç) When assigning a job to an employee, it takes into account the employee’s suitability for work in terms of health and safety.
d-) Takes the necessary measures to ensure that employees other than those who have been given sufficient information and instructions do not enter places where there is a special danger to life.
(2) Obtaining services from specialized persons and organizations outside the workplace does not eliminate the employer’s responsibilities.
(3) The obligations of employees in the field of occupational health and safety do not affect the responsibilities of the employer.
(4) The employer may not reflect the cost of occupational health and safety measures to the employees.”.
5 of the same law entitled ” Principles of Hedging ”. according to the article,
“(1) The following principles are taken into account in the fulfillment of the employer’s obligations.
b-)To analyze the risks that cannot be avoided.
c-) To combat risks at their source.
ç) To take care in the design of workplaces and the selection of work equipment working methods and production methods in order to make the work suitable for people, especially to prevent the negative effects of uniform working and production pace on health and safety, to minimize if it cannot be prevented.
d-) To adapt to technical developments.
e-) Replacing the dangerous one with a non-dangerous one or a less dangerous one.
f-) To develop a consistent and general prevention policy covering the effects of factors related to technology, work organization, working conditions, social relations and the working environment.
g-)To give priority to collective protection measures in accordance with personal protection measures.
d) To give appropriate instructions to employees.”
Again, Law No. 6331 entitled ”Risk Assessment; Control, Measurement and Research” decision 10. the following provision is regulated in its article.
“(1) The employer is obliged to make or have a risk assessment in terms of occupational health and safety. The following considerations are taken into account when conducting a risk assessment.
a-) The status of employees who will be affected by certain risks,
b-) Selection of work equipment and chemicals and preparations to be used,
c-) Organization and layout of the workplace,
ç) The situation of groups requiring special policies, such as young, old, disabled, pregnant or lactating employees, as well as female employees,
2-) The employer determines the occupational health and safety measures to be taken as a result of the risk assessment to be carried out and the protective equipment or equipment to be used.
(3) Occupational health and safety measures, working methods and production methods to be applied in the workplace should be applicable at all levels of the administrative structure of the workplace, which will increase the level of protection of employees in terms of health and safety.
(4) The employer ensures that the necessary checks, measurements, examinations and investigations are carried out in order to determine the risks to the working environment and employees exposed to in this environment in terms of occupational health and safety.”
As can be seen, the framework of the employer’s obligation to ensure health and safety related to employees is defined in Article 4 of the Occupational Health and Safety Law No. 6331. it is drawn in the article. Within this framework, a number of principles have been given that the employer, ”After stating that it is obliged to ensure the health and safety of employees related to work, will do and will be obliged to comply with. 5 Like this. in the article, the principles that the employer will follow during the protection that he will perform with the mentioned obligations are determined. 10. in the article, while ensuring health and safety in the workplace, the issues that the employer is obliged to take into account in the risk assessment work that he will do are determined. (GCM . dated 09/10/2013, 2013/21-102 Basis, 2013/1456 Decision )
After these explanations made above, Article 332 of the Code of Obligations No. 818. 417 of the Turkish Code of Obligations No. 6098, which is regulated by a modern approach in accordance with its article. article 2. in the paragraph; “the employer, to take all necessary measures to ensure occupational health and safety in the workplace, tools and materials possession of a property; workers ‘ health and safety obliged to comply to all measures” would be by stating that, 77/1 of the labour law repealed. as provided for in Article 3. in the paragraph; ”Compensation for damages arising from the death of an employee, damage to his body integrity or violation of personal rights due to violation of the law and the contract, including the above provisions of the employer, is subject to the provisions of liability arising from violation of the contract”, discussions on the legal nature of liability arising from the service contract have been terminated, the provisions of contractual liability will be applied to compensate for death caused by violation of the contract and damage to the integrity of the body or violation of the rights of the person.
Article 77 of the Labor Code No. 4857. et al. occupational Health and Safety Law No. 6331, which repealed its articles 4. and 5. articles 19 of the obligations of the employer. the article also set out the obligations of employees in more detail and concretely in the modern sense and brought the limits of liability for defects closer to the limits of perfect responsibility.
4 of Law No. 6331. and 5. it is necessary to evaluate the provisions of the occupational health and safety regulations issued in accordance with the articles as criteria that objectify the employer’s responsibility. For this reason, non-compliance with the technical labor rules contained in the legislation should be considered a defective behavior of the employer. However, the employer must cover the damage caused not only by the said written rules, but also by being deemed defective when it acts in violation of the unwritten and the measures required by the technology.
On the other hand, although the objectified defect brings the responsibility for the defect closer to the perfect responsibility, it cannot turn it into a perfect responsibility. Because, with some exceptions, the presence of the defect is essential for the employer’s responsibility. However, 417/2 of the Turkish Code of Obligations. the provisions of Articles, the Constitution and Law No. 6331 have greatly expanded the employer’s responsibility in accordance with the objectified principle of liability for defects.
The situation that will relieve the employer of responsibility for the damaging event is the decoupling of the appropriate legal link between the action and the damage caused. As in the case of perfect liability, as well as in the case of liability for a defect, the connection of principle may be terminated due to force majeure, a serious defect of the injured person and a third party. It is not possible to go to the responsibility of the employer if it is proved that the appropriate citizenship has been severed. (HGK, 20/03/2013 date, 2012/21-1121 Basis, 2013/386 Decision)
Since it is important for the actual employer-sub-employer concepts and the concrete dispute to be resolved in a healthy manner, it is useful to explain the issues of employer nature of the holding and company communities.
2 of the Law No. 4857.according to the article, the real person who works on the basis of an employment contract, the worker, the worker is running natural or legal person or unincorporated organisations and institutions-employer relationship is a business relationship established between the employee and the employer.
2 Of the Labor Code.Article 7.according to paragraph of an employer, its helpful in their work on the production of goods or services in the workplace or in a section of the work and the nature of the business of the business work in jobs that require expertise for technological reasons, and that it receives that are running for this job designated by the other workers just in the workplace with the employer he got the job, the relationship between the employer and subcontractor relationship between the employer is called. In this relationship, the main employer is jointly liable with the sub-employer for its obligations to the employees of the sub-employer arising from this Law, the employment contract or the collective bargaining agreement to which the sub-employer is a party in relation to that workplace, together with the sub-employer.
2/7 of the Law No. 4857.with its article, it was requested to protect and guarantee the rights of workers arising from the Labor Code, the contract and the collective bargaining agreement. Otherwise, it would be possible for employers who want to get rid of their obligations arising from Law No. 4857 to avoid their obligations by voluntarily giving parts or add-ons of the work to other people.
The joint responsibility of the main employer and the sub-employer is “fiduciary responsibility”. The actual employer, although there is no direct service agreement, is subject to Article 2 of the Labor Code. Article 6. in accordance with the paragraph, the employees of the sub-employer are jointly and severally liable with the sub-employer for the material and moral damage that they will suffer due to an occupational accident or occupational disease. For this reason, in the event of an employee or death of a subordinate employer who has suffered an occupational illness or an accident at work, his heirs may jointly file a compensation claim against the principal employer and the subordinate employer who are jointly liable, as well as only against the principal employer or the subordinate employer.
On the other hand, the agreement concluded between the main employer and the sub-employer and the decisionment that the responsibility for material and non-pecuniary compensation due to an occupational accident or occupational disease belongs to the sub-employer does not bind employees or heirs who are not parties to this agreement.
Co-employment is a form of work that occurs in group companies, and in this form of work, some of the workers serve more than one employer and together at the same time. These companies, which are mostly interconnected within the framework of the management organization, can provide services in the same buildings, and some employees perform their work against all employers. All the company of the Directorate of administration to be done by the same person, given together companies used in the workplace, accounting, security, transportation, cleaning, cafeteria and food services can be given as examples to be issued against all employers. In such a relationship, there is a single labor dec between the employee and the employers. But this relationship was originally established in this way.
In joining an employment contract, another employer eventually joins the employment relationship established initially with a single employer, and the employee also performs the act of seeing work against this participating company. The employee’s connection with his first employer is not broken, there is a proliferation on the part of the employer, not a transfer of the employment contract. In this case, there is also a single business relationship.(M.Alpine.Some Problems with the Transfer of the Employment Contract.DEU.Journal of the Faculty of Law.Volume 9.Special Issue, 2007.p:197).
The holding and company groups include companies that each have independent legal entities and legal entities, although there is a holding in terms of the sense of belonging of employees there and in terms of personnel organization, human resources, etc. although it is an integrity in terms of the principles and practices arising from the issues, each company affiliated to this holding or company groups (communities) is an individual employer in terms of their legal structure. Therefore, the employer of the employees working in the companies affiliated to the holding is the company that is a party to the employment contract, not the holding or the company group by law. Accordingly, the legal responsibilities of companies with different legal entities affiliated to the same group or holding arising from occupational accidents or occupational diseases are independent of the holding or group in which they are located. In other words, as a rule, other companies in the holding or group cannot be held responsible for the legal responsibilities of the company that is the employer of the injured employee due to occupational accidents or occupational diseases.
However, in cases where there is an organic connection between companies, other companies together with the employer company may also be held responsible dec the presence of joint employment or in the presence of contractual transactions that make it impossible to collect what the employee will receive from the employer company.(Surek, Sarper. Labor Law. Renovated 12. Bass. Istanbul. p:158)
In a our case, the defendant … at production stages that are left to the contractor free of charge by the institution, General Directorate of machinery and equipment for the use of the defendant … the work program, which may be submitted to the General Directorate of the institution, or the deficiencies identified in the absence of adequate project within a given period of time to be fixed by the defendant of the obligation of the contractor that will run the Business Manager, Project Engineer, permanent shift supervision, technical supervision and the determination of the minimum number of Occupational seniority of the defendant by the administration, administration is acting inappropriately, 2 of the law No. 4857 of the General Directorate of the defendant … Institution, which has been granted powers to exceed the usual audit limits with a contract that cannot be considered turnkey in the face of determinations such as that it may request the removal of employees of all levels and qualifications that it considers insufficient to perform its duties or that it considers objectionable to work at the workplace and from the workplace. according to the article, the main employer, the other defendant … EXCEED the Coal Enterprises.it is concluded that, on the other hand, it should be considered as a sub-employer.
In addition, both Article 47 of the molga BK and Article 56 of the current TCC No. 6098. in its article, it is stipulated that the judge may decide that if a person’s physical integrity is damaged, an appropriate amount of money should be paid as moral compensation to the victim or relatives of the deceased, taking into account the specifics of the incident. The amount of money that the judge will decide to give to the person who has been harmed or to the relatives of the deceased in the name of moral damage should be in accordance with justice. This money, which will be judged, has an original nature, which has a function similar to compensation, which will ensure the birth of spiritual peace in the person who has been harmed. Just as there is no punishment, Mamelek has not aimed to cover the damage related to the law. Then the limit of this compensation should be determined according to its purpose.
In non-pecuniary compensation cases, in developed countries, the element of deterrence is also being emphasized by getting out of the old patterns. In the developing law, this approach reveals the need to appreciate moral compensation at rates that create a sense of satisfaction as well as deterrence in unfair actions directed against the body and soul of people or obsessive behavior; it emphasizes that the rights of a person come before everything.
Given these principles, the truth is human life, and it is impossible for any value to compensate for the deep suffering caused by the loss of this life. The aim here is just to give a sense of relief to some extent; on the other hand, the damaging side is to be able to be a deterrent with a sanction that will affect attention and care.(HGK 23.6.2004, 13/291-370)
Located in the district of Manisa province in the history of the subject of the proceedings that occurred in underground mines Eynez 13/05/2014 301 486 deaths and injuring people at work accident caused the last hundred years, which is one of the greatest accidents in the vicinity of this accident not only in trying to win business or dig a deep sadness in society as a whole, caused by the recent natural disasters that affect society, such as in a mining accident in this context the amount of compensation received under the terms when assessing non-pecuniary damages should be one of the factors of deterrence should be considered.
In the light of the explanations made above, it is possible to re-evaluate the distribution of defects between those who have no defects in the incident and those who have a defect in the occurrence of an occupational accident, especially based on the evidence on which the decision is based, the legal reasons and the evidence in the file, according to the scope and reasons of the appeal, although there is no other error in the decision, according to the scope and reasons of the dec dec the defendant … the rejection of the case by incomplete examination was incorrect.
The work to be done by the court, the defendant …. and …. it consists in investigating whether there is an organic bond between them, whether there is employment together or mutual transactions, and decisively deciding according to the result that will occur.
The court’s decision in writing without taking into account these material and legal facts is contrary to the procedure and the law and is the reason for the violation.
In that case, the defendant’s appeals aimed at these aspects must be accepted and the judgment overturned.
CONCLUSION : The decision of the Appealed District Court of Justice is based on 373/1 of HMK No. 6100 for the reasons written above. in accordance with the article, it was decided unanimously on 23.01.2018 that the decision of the court of first instance would be OVERTURNED for the above reasons, the file would be sent to the court of first instance, a sample of the decision would be sent to the District Court of Justice, if the appeal fee was requested, the defendant would be returned to ….