Newsletter-21

258 NEWSLETTER 2016 The employer shall not be liable if he proves that he has acted with due care in order to prevent the occurrence of any damage, while selecting his employee, instructing him regarding his work and supervising and controlling him. Unless the employer proves the working order of the business is appropriate for the prevention of the occurrence of the damage, he shall be obliged to compensate the damage given because of the activities of that business. The employer, for the compensation paid, shall claim re- course from the employee, solely for the amount the employee is responsible, personally.” The responsibility (sp. 1), the evidence of exclusion (sp. 2) and the possibility of recourse (sp. 4) has remained same as in the aCO. In the third subparagraph of the provision, this new type of responsibility is set forth, although provided for neither in the title, nor in its content. Additionally, even though this regulation has been introduced with the TCO, it was also previously accepted in practice. The decision of the 4th Civil Chamber of the Supreme Court numbered 11751/10809 and dated 02.10.1978 is an example thereof. According to the deci- sion, “ the employer shall be deemed to be at fault if he uses personnel who are unqualified for the work in question, or arranges the working order of such work in a dangerous manner. Further, the working tools and the materials used for the performance of the work shall be in working condition. If the tools and vehicles or the material handed or provided to the personnel are faulty or broken, he shall be responsible for the organization, as well .” 1 1 For the previous practice, please see : Sabah ALTAY , 6098 Sayılı Türk Bor- çlar Kanunu Uyarınca Adam Çalıştıranın İşletme Faaliyeti (Organizasyonu) Dolayısıyla Sorumluluğu (TBK 66/3), Marmara Üniversitesi Hukuk Fakültesi Hukuk Araştırmaları Dergisi, Özel Hukuk Sempozyumu Özel Sayısı, 6098 Sayılı Türk Borçlar Kanunu Hükümlerinin Değerlendirilmesi Sempozyumu (3-4 Haz- iran 2011), Sempozyum No. III, Prof. Dr. Cevdet Yavuz’a Armağan, p. 178, fn. 7-8.