Judgment of the Court of Cassation on the Conditions for Classifying an Accident Occurring Abroad as a Work Accident
Introduction
In its judgment dated 06.10.2025, with the Case No. 2025/7189 and Decision No. 2025/13038 (the “Judgment”), the 10th Civil Chamber of the Court of Cassation (“CC”) carried out a significant assessment as to whether an accident occurring abroad may be classified as a work accident within the meaning of Law No. 5510 on Social Insurance and General Health Insurance (“Law No. 5510”). The Court of Cassation held, by majority vote, that an accident sustained by a Turkish worker employed by a foreign employer operating abroad cannot be classified as a work accident under Law No. 5510.[1]
The Judgment brings considerable importance regarding the scope of social security rights of Turkish workers employed abroad. In particular, it addresses significant questions such as the legal status of Turkish workers employed through foreign companies established abroad via organic ties in the context of employers’ overseas activities — especially in the construction sector — and whether such workers may benefit from social security provisions at the time of an accident. In this regard, the Judgment constitutes an important precedent for the doctrine of labor and social security law.
This article first summarizes the judicial proceedings underlying the Judgment, then examines the reasoning of the majority opinion within the framework of the relevant provisions of Law No. 5510 and finally addresses the dissenting opinion’s alternative legal approach to the majority view.
Facts of the Case and Judicial Proceedings
In the case examined by the 10th Civil Chamber of the Court of Cassation, the Claimant alleged that he had been working as a reinforcement ironworker at a hospital construction site in Mosul, abroad, belonging to the Defendant, from 24.10.2012 onwards, and that he suffered a work accident on 04.12.2012. He claimed that, owing to the failure to implement safety measures on the iron bending machine, the fault lay with the Defendant Company, and that the accident resulted in the amputation of the third phalanx of his right index finger. He further asserted that, due to negligence, the severed finger could not be reattached, that he was left disabled, and that he was consequently rendered partially incapacitated. The Claimant stated that he had filed a compensation claim in relation to the same incident before the Ankara 26th Labor Court under Case No. 2016/179, and that in those proceedings he had been granted time to bring an action for the determination that the incident constituted a work accident and for the assessment of the degree of incapacity. He accordingly brought the present action seeking a declaration that the incident constituted a work accident.
The Defendant Company contended that the Claimant had entered a contract with a recruitment firm called Merç Global, that the Defendant had no connection with that firm, that the Claimant was not its employee, and that the Claimant might be an employee of another company called Tek-İmaş Co. On this basis, the Defendant raised a lack-of-standing objection and requested the dismissal of the action.
The Court of First Instance (“CFI”) ruled in favor of the Claimant. The Defendant Company and the Defendant Social Security Institution (“SSI”) filed appeals against the CFI’s judgment. The Regional Court of Appeal (“RCA”), which conducted the appellate review, dismissed the appeals on the merits. In its reasoned judgment, the RCA noted that it was undisputed that the Defendant had undertaken the construction of the Mosul Medical Faculty hospital building and that a workplace file bearing registration number 1190011 had been registered under the Defendant as of 15.11.2012. The RCA further observed that, in the service determination proceedings brought before the Ankara 37th Labor Court under Case No. 2016/721 — concerning whether the employer was the Defendant Company or the non-party company Tek İmaş Co — an SSI inspector’s report had established that the principal employer was the Defendant Company and that the works in Mosul were carried out through Tek İmaş Co. The RCA also noted that the Defendant had stated in its submissions that certain shareholders were common to both entities and that certain construction materials had been dispatched by the Defendant. On this basis, the RCA concluded that the insured Claimant had been sent abroad on a temporary assignment.
Upon the appeal in cassation filed by the Defendant Company and the Defendant Institution against the RCA’s judgment, the 10th Civil Chamber of the Court of Cassation set aside the RCA’s judgment and reversed the CFI’s decision.
’Regulatory Framework on Overseas Employment and the Court of Cassation’s Assessment of the Legislation
The work accident is regulated under Article 11/a of the Social Insurance Law (Law No. 506, “Law No. 506”) and Article 13 et seq. of Law No. 5510. Neither statute defines a work accident; rather, both delineate the circumstances in which an accident shall be deemed a work accident by reference to conditions of place and time.
The 10th Chamber determined that the dispute centered on whether the accident sustained by the Claimant whilst working abroad could be classified as a work accident within the meaning of Article 13 of Law No. 5510.
Accordingly, insured persons benefit from social insurance rights if they reside in Türkiye and work under an employment contract; this rule is a natural consequence of the principle of territoriality of legislation. However, Articles 5(1)(g) and 10 of Law No. 5510 constitute exceptions to the territoriality principle.
Pursuant to Article 5(1)(g) of Law No. 5510, Turkish workers taken abroad to work at overseas workplaces by employers who have undertaken work in countries with which Türkiye has no social security agreement are deemed insured under Article 4(1)(a), and the provisions on short-term insurance branches and general health insurance apply to them. Under Article 10 of Law No. 5510, where insured persons falling within Article 4(1)(a) are sent abroad on temporary assignment by their employers, the social insurance rights and obligations of both the insured persons and their employers continue for the duration of such assignment.
To be deemed insured under Article 10 of Law No. 5510, the following conditions must be satisfied: there must be no social security agreement between Türkiye and the foreign country; the Turkish employer’s principal place of business must be in Türkiye; the Turkish employer — whether a natural or legal person — must have a workplace registered or eligible for registration in Türkiye; the individual employment contract relating to the work to be performed abroad must have been concluded in Türkiye between the Turkish employer and the Turkish worker; and the Turkish worker’s stay abroad must be temporary rather than permanent in nature.
The 10th Chamber notes that, as the aforementioned provision does not prescribe any time limit for the concept of “temporary assignment”, the determination of whether an assignment is temporary or permanent shall take into account the particular circumstances of each case, the nature of the obligation to perform work imposed on the insured person by the employment contract, the ordinary course of working life in determining the duration of work, and the principles of social security law.
However, the 10th Chamber states that where the employer has been operating abroad from the outset, and the worker commences employment with that employer and performs work there, Article 10 of Law No. 5510 cannot apply. Accordingly, Turkish workers who are not taken abroad on a temporary basis but are recruited directly for overseas work by employers established and operating under the legislation of that country and having no workplace in Türkiye shall be subject to the legislation of that country. Consequently, such workers cannot be deemed insured under Article 4(1)(a) of Law No. 5510, and accidents they sustain shall not be classified as work accidents within the meaning of Law No. 5510. [2]
The Majority Opinion of the 10th Chamber
According to the 10th Chamber, one of the essential elements of a work accident is that the person concerned must be an insured person subject to work accident and occupational disease insurance under the short-term insurance branches. In the absence of such status, the incident cannot be classified as a work accident. The conditions for being insured and, in the narrow sense, for being subject to the short-term insurance branches are exhaustively set out in Law No. 506 and Law No. 5510. An incident to which a person not subject to the short-term insurance branches is exposed cannot be deemed a work accident vis-à-vis the SSI, nor can it be so deemed vis-à-vis the employer. The definition and elements of a work accident are regulated by Law No. 506 or Law No. 5510, and no circumstance outside these statutes may give rise to a work accident classification. Even though an accident occurring abroad may colloquially be referred to as a work accident, where it cannot be so classified under the above-mentioned statutes, it is equally impossible to deem it a work accident vis-à-vis the employer.
The following assessments in the majority opinion of the Judgment are noteworthy: there is no social security agreement between Iraq and Türkiye; the company at which the Claimant alleges he suffered the work accident was incorporated under Iraqi law; an examination of the Claimant’s service record reveals no SSI notification from the Defendant Company; there is no evidence that the Defendant Company took the Claimant abroad on a temporary basis; there is no written employment contract between the parties; no collective insurance arrangement has been concluded between the Defendant and the SSI; and, given that the employer status belongs to the foreign firm, the Claimant cannot be regarded as insured in Türkiye by virtue of the territoriality principle, and the accident he sustained cannot be classified as a work accident.
Having determined that the incident did not constitute an occupational accident, the 10th Chamber held that the dispute at issue was not of a nature that could be heard and resolved by labor courts under either Law No. 4857 on Labor (the “Labor Law”) or Law No. 5510.
The 10th Chamber found that the incident constituted a tortious act and that, as such, it should be heard and resolved as a compensation claim subject to the general provisions under Article 49 et seq. of the Turkish Code of Obligations (Law No. 6098), which was in force at the date of the accident, with the courts of general jurisdiction being competent. The Chamber accordingly reversed the judgment, holding that the Labor Court ought to have issued a ruling of lack of jurisdiction.
Dissenting Opinion
The Judgment was adopted by majority vote rather than unanimously. The dissenting opinion raised the following points:
In a case involving a foreign element, where the court assesses the work accident in the context of the contractual relationship, the applicable law is determined pursuant to Article 27 of the Act on Private International Law and Procedural Law (“PILA”), which governs the law applicable to employment contracts. Employment contracts are subject to the law chosen by the parties, provided that the mandatory rules of the law of the habitual workplace that would afford the employee minimum protection are preserved; this is a limited choice-of-law facility recognized for the purpose of safeguarding the employee as the weaker party.
’Where it is accepted that the habitual workplace of workers taken from Türkiye to work abroad is fundamentally Türkiye, the protective provisions of Turkish law apply notwithstanding any law chosen by the parties. This finding also serves as a determinative guiding function in the field of social security law.
In the dissenting opinion, reference was made to Article 60 of the Constitution, and it was stated that the right to social security is a matter of public policy and that, pursuant to Article 5 of PILA, Turkish law must be applied in disputes involving a foreign element that concern public policy.
Another notable point in the dissenting opinion is Article 23 of Law No. 5510, which was not considered at all by the majority. Under that provision, where the insured person is not notified to the SSI by means of an entry notification within the period following the commencement of employment, the income and allowances of the relevant persons arising from a work accident that occurred prior to the subsequent submission of the notification or the SSI’s own detection of the insured employment shall be paid by the SSI. If the worker was taken to the overseas workplace without notification to the SSI and suffered a work accident there, proceedings should be conducted in accordance with this provision.
’’’The dissenting opinion further observed that, since it was established that the Defendant Company had undertaken work in Iraq, carried out that work through a company with which it had organic ties, and taken the Claimant abroad in that context, the incident constituted an occupational accident not only within the meaning of Article 13 of Law No. 5510 but also under Article 3 of Law No. 6331 on Occupational Health and Safety. Accordingly, the proper course of action is to classify accidents meeting the requisite conditions as occupational accidents — irrespective of whether a bilateral agreement, collective insurance, or notification exists — and to apply Article 13 et seq. of Law No. 5510. At a minimum, any loss sustained by the SSI should be borne by the SSI for the period governed by Law No. 506, and for the period governed by Law No. 5510, recourse should be had against the employer who failed to make the requisite notification and pay premiums.
Conclusion
The Judgment of the 10th Civil Chamber of the Court of Cassation reassesses the scope and limits of the territoriality principle — a determinative legal question for the social security rights of Turkish workers employed abroad.
’’It is apparent that the majority opinion adopts a strict application of the territoriality principle. The dissenting opinion, on the other hand, notes that social security law is a matter of public policy in circumstances where the employer has workers perform work abroad through a foreign-law company established via organic ties, and puts forward that Article 23 of Law No. 5510 safeguards workers taken abroad without notification and that Law No. 6331 contains an independent definition of occupational accident, thereby adopting a view that favors the protection of the worker.
Considering the Judgment, it is evident that employers engaged in construction and contracting activities abroad should review their affiliated foreign company structures and employment practices, and that it is of particular importance for them to obtain legal advice regarding written employment contracts, SSI notifications, and alternative mechanisms to collective insurance.
- Please see https://yargi.calismatoplum.org/yurt-disinda-gecirilen-kazanin-is-kazasi-sayilmasinin-kosullari/
- Regarding the provisions on collective insurance, the Court of Cassation also notes the following in the Judgment: During the period governed by Law No. 506, Turkish workers employed by Turkish employers in countries with which no social security agreement had been concluded could be brought within the scope of work accident insurance by means of concluding a collective insurance contract aimed at securing their social security. However, since the entry into force of Law No. 5510 on 01.10.2008 repealed all provisions of Law No. 506 — with the exception of a few articles — the practice of collective insurance has also come to an end. Those who had previously been covered by collective insurance are now deemed insured under Article 4(1)(a) in respect of short-term insurance branches by virtue of Provisional Article 6 of Law No. 5510.
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