GENERAL INFORMATION REGARDIN THE UNPAID LEAVE AND

EMPLOYMENT CONTRACTS

The application of unpaid leave, is the suspension of the em-ployment contact under certain conditions. According to the Turkish Labour Code, unpaid road permits and maternity leave granted to the employees are also available, but the unpaid leave can be brought to the agenda only upon the request of the employee himself/herself.

Especially in times of economic crisis and hardship, employ-ers seem to aim to alleviate the negative effects of the economic conjuncture on the enterprise by putting employees on unpaid leave. Due to coronavirus pandemic, employees may also request unpaid leave from their employers due to health reasons as well.

In times of epidemics and crises such as Coronavirus (Covid-19) Pandemic, employers may be granted unpaid leave at the request of employees or upon the acceptance of the employer’s offer.

21 Çil, s.212.

If the activity in the workplace is to be suspended for one week due to compulsory reasons, it is possible to take annual leave/paid leave during these periods or to have compensation work after these periods and these periods are not accepted as leave. However, it is also possible for employers to take employ-ees on to unpaid leave with the right brought with the Act No.

7244 regarding the Covid-19 Pandemic Period. Except for those unpaid leaves granted in-line with the Act No. 7244, the em-ployer cannot obliged the emem-ployer for the unpaid leave unless the employer himself/herself request it in written form.

Temporary Ban of Termination of Employment Con-tracts

In order that the temporary termination ban regulated by Law No. 7244 does not bring additional costs to businesses and does not disturb economic balances, employers have been given the right to send their employees to unpaid leave. With the regulation made to reduce the effects of the Coronavirus Epidemic over the Turkish economic life, employers who could not dismiss their workers due to the temporary termination ban were given the right to send their workers on pandemi unpaid leave.

With the regulation made with the Omnibus Act No. 7244, all the employment contracts, regardless of being within the Labour Code or not, cannot be terminated by the employer except for the cases of the ethics and goodwill rules that are specified in the second paragraph of the first paragraph of the Article 25 of the Labour Code No. 4857. The termination ban is for a period of three months as to start from the date of 17^th of April, 2020.

In addition, with the amendment made to the Provisional Ar-ticle 10 of the Labour Code No. 4857 with the 5^th Article of the Act No. 7252, the employment contracts may be able to be termi-nated by the employer in cases of end of period for the employ-ment or service contract for a definite period, for the violation of the rules of ethics and goodwill by the employee, the closure of the workplace for any reason and the termination of the activity in the workplace and, finalisation of the work in the construction works and tendering businesses.

In addition, it does not have a direct effect that the employee is in a probationary period, on terms of short-work employment or unpaid leave. However, probationary employment contracts have created important controversy regarding the effect of the termination prohibition on the probationary period.

Termination of the employer of the employment contract which is within the probationary period is within the scope of the termination prohibition. When the termination prohibition period exceeds the probationary period, the termination right specific to the probationary period will be ending as well. However, it can be assumed that the probationary period will not work during the suspension period, if the employee is unilaterally on unpaid leave during the termination prohibition. At the end of the unpaid leave, the trial period continues from where it suspended and if the ter-mination ban is lifted in the meantime; terter-mination within the probationary period is possible for both parties.

SSI Exit Codes that are Included and Not Included Within the Scope of Ter-mination Prohibition in the Covid-19 Pandemic Period

THE REASON FOR THE TERMINATION OF THE

EMPLOYMENT CONTRACT WITHIN THE SCOPE OF THE

TEMPORARY TERMINATION BAN OR NOT?

2- Termination of the probationary employment

contract by the employee NO

3- Termination of indefinite term employment

con-tract by the employee (resignation) NO

5- Termination of fixed-term employment contract NO 8- Termination due to retirement (old age pension) or

lump sum payment

NO

9- Due to invalid retirement NO

10- Death NO

11- Death caused by work accident NO

12- Military Service NO

13- Marriage of a female employee NO

14- Completion of other conditions other than age for

retirement NO

16- Transfer of the insured to another workplace belonging to the same employer before the contract expires (Must have the same tax number)

NO

17- Closure of the workplace NO

18- Termination of work NO

19- End of the season (Used in case of suspension

of employment. (If the employee will not be

restarted to work, the code number "4" is to be used) NO 20- End of the campaign (Used in case of

suspen-sion of employment) (If the employee will not be

restarted to work, the code number "4" is to be used) NO

21- Change of status of the employee NO

23- Termination by the employee by a mandatory reason

NO

24- Termination by the employee for health reasons NO 29- Termination by the emplyoer due to the behavior

of the employee against the rules of ethics and goodfaith

NO

30- The expiration of the visa period (Used in case of suspension of employment. If the employee will not be restarted to work, the code number "4" is to be used.)

NO

The Differences Between the Unpaid Leave in Normal Times and the Pandemic Period Unpaid Leave

Use of unpaid leave is possible only if the employee directly requests it in written form. In normal conditions, the employer cannot unilaterally leave the employee for unpaid leave (cannot force the employee on this act). However, with Act No. 7244, the employer has been given the opportunity to take employees on unpaid leave with his/her unilateral will during the temporary ban period of employment contracts in the Covid-19 Pandemic Pe-riod.

Even if the pandemic does not have any negative impact on the activity in the workplace, the employer is covered by the ter-mination ban regarding the Covid-19 Pandemic. It is possible for employers to take employees on unpaid leave regardless of whether the workplace is economically affected from the pan-demic or not.

In this context, it will not be necessary to obtain an approval from the employee for the pandemic unpaid leave, and notifica-tion of the unpaid leave to the employee will be sufficient.

In accordance with the Act No. 7244, sending the employee unilaterally to unpaid leave between the dates of 17/4/2020 and 17/01/2021 does not give the employee the right to terminate the employment contract with just cause. In has to be noted that, the law authorizes the President of the Republic of Turkey to extend the termination ban until the date of 30^th of July 2021.

Employees who are on unpaid leave of the pandemic, em-ployees who cannot benefit from the short work allowance and employees whom employment contracts are being terminated in accordance with the Article 51 of the Unemployment Insurance Act after the date of 15^th of March, 2020 yet cannot benefit from the unemployment benefits are being entitled to utilise from the

“cash wage support” that is being arranged with the Act No.

7244.

Except for the unpaid leave during the pandemic in line with the Act No. 7244, despite that employee do not request or give consent in written form, if the employer forces the employee for unpaid leave, this might be considered as a just reason for the employee for the right to termination of employment contract.

Except for the unpaid leave during the pandemic in line with the Act No. 7244, if the employer sends the employee to unpaid leave, either the employer gives consent to this request of the employer and will use unpaid leave (it should be noted that the employee must give a written consent here) and will continue to work at the workplace at the end of the unpaid leave. In this case, it is possible to obtain a petition stating that he/she wants to leave without getting paid from the employee headed to the employer.

It will be appropriate to archive such unpaid leave petitions or

unpaid leave request forms in the workplace to be presented when requested in a future during an audit and as a reason for the miss-ing day notification. There is no legal obstacle for the employee who uses unpaid leave to work in another workplace during this period.

Or, as a second option, the employee will not give consent to go on unpaid leave. In this case, the current working condi-tions will continue. The employer's imposition of unpaid leave will be treated as unilateral employer termination. If there are valid reason conditions for the employer, the employer may proceed to termination within the valid reasons.

Except for the pandemic unpaid leave of the employers in-line with the Act No. 7244, it is not possible for the employee to unilat-erally (for whatever reason) force the employee to unpaid leave. If the employer send the employee to unpaid leave without the em-ployee’s request or consent, it is deemed unjust or invalid termina-tion of the employment contract, depending on whether the em-ployee is covered by job security or not, and legal consequences will occur accordingly.

In the event that the employee does not agree with the offered unpaid leave--except the unpaid leave for the pandemic in-line with the Act No. 7244, notice pay and severance pay will be re-quired to be paid by the employer when the employment contract is being terminated by the employee with a justified reason. Em-ployees will also be able to file a trial in this case to the labour courts.

Unpaid leave periods used by the employee at the request of the employee do not need to be included in the severance pay calculation. Since he/she does not work within these periods, the

day he/she is entitled to leave goes back as far as the unpaid leave period.

General health insurances will continue for the 4/a insured persons for unpaid leave periods not exceeding one month in a calendar year and certified by their employers. In the Article 67 of the Social Insurance and General Health Insurance Act No.

5510 which is entitled “The right to use health services” it is being stated that “The universal health insurance holders under item (a) of paragraph one of Article 60 shall benefit from uni-versal health “Within the condition of being documented by the employer, from the insurance holders within the subparagraph 4(a) whom are given unpaid leave as not to exceed one month within a calendar year shall keep on being considered as gen-eral health insurance holders, except for the periods under the paragraph (a) of the first paragraph of the Article 56 and 74 of the Labour Code and the periods are deemed as unpaid leave in the other labour codes.”

However, with Act No. 7244, it has been regulated that if employees who are taken on unpaid leave and receive cash sup-port are not covered by the general health insurance, the premi-ums for the universal health insurance will be covered by the Unemployment Insurance Fund.

If the employer is offered an unpaid leave period, this pe-riod will have to be temporary, in other words the unpaid leave must be for a reasonable period in accordance with the rules of good faith.

Here, it may be useful to consider this issue as well, as em-ployees have the opportunity to benefit from unemployment

insurance in case they terminate their employment contracts.

Thus, employees who terminate their employment contract in line with the Article 24 of the Labour Code No. 4857, are re-quired to be paid their seniority and annual paid leave payments that they do not use, no notice compensation will be paid and they will be able to receive payment from the unemployment insurance during this period.

In the doctrine, it is stated that unpaid leaves should also be evaluated between the periods that are considered to be worked in terms of entitlement to annual paid leave within the scope of the Article 55/(j) of the Labour Code No. 4857, but the Turkish Supreme Court does not add the “unpaid leave” periods for the calculation of one-year waiting period required to qualify for annual paid leave. In terms of annual leave, other leaves given to the employee by the employer according to Article 55 of the Labour Code will be considered as worked in terms of annual leave entitlement.

The Effect of Pandemic Unpaid Leave and Short Work Periods on Severance Pay and Annual Leave Severance

The effect of pandemic unpaid leave brought by the Act No.

7244 over the severance pay and annual leave is widely dis-cussed in doctrine and practice.

There are several different opinions on the determination of severance pay and annual lave rights of the employees who do not work within the scope of Short Work Allowance and Pan-demic Unpaid Leave applications and who do not fulfil their duty of working in the workplace.

While the Act No. 7244 establishes a legal basis for unpaid leave, it is not regulated whether the unpaid leave periods of workers who take unpaid leave will be added to the calculation of their service period. In the first paragraph of the Article 14 of the Labour Code No. 1475, the service period, which is taken as basis in the calculation of severance indemnity, has been ar-ranged in a way that the continuation of the employment con-tract is not based on actual work. According to this paragraph;

“The employer pays the employee a severance pay in the amount of 30 days’ wage for each full year from the date the employee starts work, during the term of the service contract.2 Therefore, it is generally accepted in the Labour Law that the unpaid leave periods that are not actually worked are to be in-cluded in the terms of service subjected to severance pay as per the explicit provision of the law. It is advocated in the doctrine that all periods of suspension of the employment contract should be taken into account in the calculation of the employee’s sen-iority.

However, it should be noted immediately that, the unpaid leave periods are not taken into account in determining the ser-vice period based on severance pay in the Turkish Supreme Court’s case law.

The decisions of the Supreme Court that the period of non-employment of the employee on unpaid leave will not be taken into account in the calculation of the annual paid leave has been found against the law by the doctrine. In the doctrine, it is ar-gued that unpaid leaves should be evaluated in the context of the leaves given by the employer and included in the service period related to the annual leave. If the employer partially allocates

the employee to unpaid leave (for example, two or three days a week), disregarding the unpaid leave periods during the service period may also conflict with the principles regarding the calcu-lation of the service period, for example in part-time contracts.

Essentially, the regulation on Short Work Process is clear.

In the Article 55 of the Labour Code No. 4857, it is stipulated that the seniority periods of the employees who do not fulfil their job performance within the scope of the Short Work appli-cation will not be interrupted.

Under normal circumstances, periods spent on unpaid leave are not taken into account as the periods worked in the sever-ance pay account and annual leave account.

While the Turkish Supreme Court determines the length of service based on severance and notice pay, the Supreme Court generally uses the provisions of Article 55 of the Labour Code regarding the annual paid leave, which will be explained below, as the reference norm. For example, regarding whether the time the employee receives a medical report will participate in the service period based on severance pay, the issue is evaluated within the scope of the provision of the Paragraph (a) of the Article 55 of the Labour Code, which regulates the issue in terms of the right to annual paid leave. According to the afore-mentioned provision, the days when the worker is unable to go to work due to an accident or illness in which he is detained are considered as actually worked days in the calculation of annual paid leave. However, it is a decisive Supreme Court practice that the rest report period exceeding 6 weeks, which is stipu-lated in sub-paragraph (b) of paragraph (I) of the Article 25 of

the Labour Code No. 4857, cannot be taken into account in the calculation of severance pay.

The unilateral right of the employer to send the employee to unpaid leave can be evaluated within the framework of the obli-gation to treat workers equally. If the employer only leaves some employees on unpaid leave without justifying the dis-crimination, if they continue to work full-time and full-pay or some employees on paid administrative leave, it is acting against the obligation of equal treatment. Any different action between workers on unpaid leave must have a legally acceptable basis.

In particular, we would like to state that much debate will continue on the impact of the pandemic unpaid leave, intro-duced by Law No. 7244, on severance pay and annual leave seniority.

OKUMA PARÇASI Nakdi ücret desteğini kimler alabilecek?

Resul KURT

21 Nisan 2020 Salı /Star Gazetesi

Ekonomik hayatı olumsuz etkileyen koronavirüs (Covid-19) salgınının etkile-rinin azaltılmasına ilişkin düzenlemeler içeren 7244 sayılı kanunla üç önemli yenilik hayatımıza girdi.

Bunlardan birincisi işverenlere fesih yasağı getirilmesiydi. Buna göre 17 Ni-san tarihinden itibaren üç ay süreyle işçinin ahlak ve iyi niyet kurallarına uymayan davranışları dışında işveren tarafından iş sözleşmesi feshedilemeyecek, işten işçi çıkartılamayacak.

İkincisi, fesih yasağı süresince üç aylık süreyi geçmemek üzere işverenlere işçiyi tamamen veya kısmen ücretsiz izne ayırabilme hakkı getirilmesisidir. Bu kapsamda ücretsiz izne ayrılmak, işçiye haklı nedene dayanarak sözleşmeyi fesih hakkı vermeyecek.

Üçüncüsü ise, işveren tarafından ücretsiz izne ayrılan ve kısa çalışma

Üçüncüsü ise, işveren tarafından ücretsiz izne ayrılan ve kısa çalışma