endangering occupational health and safety and employer's right to terminate

11 December 2023

The employer should supervise the employee within the scope of the employment relationship, this obligation encompasses ensuring the protection of the employee from risks arising from the performance of the work. In other words, the employer is obligated to protect the employee who knowingly or unknowingly jeopardizes occupational safety for themself, as well as all for other employees.

The employee also has a duty of loyalty to the employer in line with their employment relationship. Under this duty, the employee must protect legally legitimate interests related to their job and workplace and avoid behavior that could cause harm and risk. This includes complying with all preventive measures related to occupational health and safety.

Instances of non-compliance with morality and rules of good faith are listed in Article 25, paragraph II of the Labor Law No. 4857, In sub-paragraph (ı) of the relevant regulation, it is stated that the employer has the right to terminate the employment contract “if the employee, endangers the safety of the workplace due to their willful action or negligence”. This utilization of this provision will allow the employer to terminate the employment effective immediately.

The application of the relevant provision requires the employee to behave negligently in contravention of occupational safety measures, resulting in the endangerment of occupational safety. There is no requirement for the employee to be warned in this regard.

1- Endangering Employee Health and Safety Constitutes Grounds for Termination With Just Cause

According to Article 417/II of the Turkish Code of Obligations No. 6098, "… employees are also obliged to comply with all measures taken regarding occupational health and safety.” Article 19/1 of Occupational Health and Safety Law No. 6331 further details the obligations of employees.  Within this framework, employees are obligated to ensure not to jeopardize their own and others' health and safety, based on the training they receive and the employer's instructions.

  1. The Employee Must Endanger Occupational Safety

For the employer's right to termination to be exercised, there is no requirement for any damage to occur. Any behavior by the employee that endangers occupational health and safety will trigger the employer's right to termination under Article 25/II-ı of the Labor Law.

Examples of such behavior include smoking in a workplace where flammable and explosive materials are present, despite it being prohibited (High Court of Appeal 9th Civil Chamber, Decision No. 2009/12861, File No. 2009/36369), or a security guard sleeping or leaving their duty station during their shift (High Court of Appeal 9th Civil Chamber, Decision No. 4.11.2008, File No. 2007/30651, Decision No. 2008/30368). However, each case and behavior that creates a risk must be evaluated exclusively based on the conditions, and it would be incorrect to generalize that every danger will affect occupational safety and grant the employer the right to justifiable termination.

  1. The Danger Must Arise as a Result of the Employee's Fault

 As stated in Article 25/II-ı of the Labor Law, endangering the safety of work due to the employee's own will or negligence is mentioned. Therefore, for the employer to have the right to justifiable termination, it is required that the employee, with their fault, causes the occurrence of the occupational safety risk. The term "fault" in this context refers to the actions and omissions committed intentionally or negligently by the employee. The occurrence of any damage as a result is not a prerequisite.

2- Proving the Employee's Behavior Contrary to Occupational Health And Safety By the Employer

The determination of whether the employee has endangered occupational health and safety should be evaluated based on the concrete circumstances of each case. Generally, records kept by the employer, camera recordings, witness statements, and certain types of correspondence are commonly used pieces of evidence in proving such cases.

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