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EFFECTS OF LAW NUMBERED 7244 ON LABOR LAW AND FORCE MAJEURE TBB TV – TBB TRAINING CENTER ONLINE TRAINING PROGRAM

Educator           : Şahin Çil, Member of the 9th Civil Department of the Supreme Court

Training Notes : Att. Mert Karayol

Commented Article:
 
ARTICLE 2: (1) On the grounds of force majeure caused by the new coronavirus (Covid-19) pandemic, the periods for determination of the authorization, making collective labour agreements, resolution of collective labour disputes and the strike and lockout within the scope of the Unions and Collective Labour Agreement Law dated 18/10/2012 and numbered 6356, have been extended for 3 months following the entry into force date of this article. The President is authorized to extend the three-month period in this paragraph up to three months the end of this period.”
Şahin Çil: The point to be considered is prohibition; this is a time extension, not a postponement.
Commented Article:
ARTICLE 7 – The following provisional article has been added to Law Numbered 4447.
“PROVISIONAL ARTICLE 24 – The employees who have employment contracts at the date of entry into force of this article, and who has been made to take unpaid leave by the employer under the Provisional Article 10 of Law Numbered 4857 and cannot benefit from the short-time working allowance and those who are not eligible for unemployment benefits in accordance with other provisions of this Law and whose employment contracts have been terminated within the scope of Article 51 after the date of 15/3/2020 will be paid 39.24 Turkish lira cash wage support from the Fund as long as they are on unpaid leave or unemployed during the period, not exceeding the period of non-termination in the Provisional Article 10 of the Law Numbered 4857, provided that they do not receive an ol age pension from any social security institution. No deduction can be made from these payments made, except stamp tax.
In the event that it is determined that the employee who has been made to take unpaid leave within the scope of the first paragraph and who benefits from cash wage support is actually being employed, an administrative fine will be imposed on the employer by the provincial directorates of the labour and employment institutions, separately for each employee employed and each month of employment with the amount of monthly gross minimum wage amount determined by article 39 of the Law Numbered 4857 at the date of the act and the paid cash wage support will be collected from the employer along with the legal interest to be processed from the date of payment.
Those who benefit from cash fee support within the scope of this article and who are included in the scope of the general health insurance holder or the person to whom the general health insurance holder is obliged to take care of, are considered to be general health insurance holders under the paragraph (g) of the first paragraph of Article 60 of the same Law and premiums of general health insurance are covered by the Fund.
The Ministry is authorized to determine the payment procedures and principles regarding cash wage support and to eliminate any hesitations that may arise regarding the application of this article.
Şahin Çil: Apart from the Labour Law, employees working under the Press Labour Law, the Maritime Labour Law and the Code of Obligations also benefit from this regulation.  
There are two conditions for employees since the law comes into force:
1. Being taken unpaid leave by the employer.
Employees who somehow take unpaid leave can benefit from cash financial support from the enforcement of the law. Comments are made according to the purpose of the law.
2. Not being able to benefit from short-time working allowance.
The lawmaker aimed to prevent repeated benefiting. For this reason, it covers employees who are not able to receive short-time work allowance short-time work applications have not been made by the employer and who are not able to receive short-time work allowance because they did not meet the conditions despite the application has been made.
As a result, for an employee who has the conditions for entitlement to short-time work allowance, the employer can make that employee directly to take unpaid leave without the prerequisite to apply for short-time work. This situation, which will cause the employee – in principle – to receive less wage support, does not give the employee the right of termination with a just cause. However, the employer should act under Article 5 of the Labour Law and consider the principle of equality. If there is no justification for discrimination, short-time work for an employee and unpaid leave for another employee cannot be applied. Otherwise, the employer will bear the consequences. (the employee’s right of termination with a just cause / Article 24/II-e of the Labour Law; right to claim the difference in wages).
Commented Article:
ARTICLE 8 – The following provisional article has been added to Law Numbered 4447.
“PROVISIONAL ARTICLE 25 – Due to the new coronavirus (Covid-19), short-time work payments are made in accordance with the employers’ declaration, without waiting for the completion of the compliance determination, for short-time work applications made by the employers based on force majeure. Excess and improper payments made due to the employer’s misinformation and document are collected from the employer along with their legal interest.”  
Şahin Çil: Excessive and unjust payments made due to the employer’s providing incorrect information and documents shall collected from the employer along with their legal interest the employer cannot recourse for the recovery of these payments to the employee who has enriched unjustly for no reason! If an unjust payment was made due to a reason arising from the employee; in this case, the employer may recourse the employee for the recovery of these payments! The employee’s incorrect information about the previous employer she/he worked for within the scope of determination of 450 premium payment days can be shown as an example of the employee’s incorrect information and document.
Commented Article:
ARTICLE 9 – The following provisional article has been added to the Labour Law dated 22/5/2003 and numbered 4857.
“PROVISIONAL ARTICLE 10 – Regardless of whether this Law is covered or not, any employment or service contract cannot be terminated by the employer for three months from the effective date of this article except for situations that do not comply with the rules of ethics and goodwill and similar reasons stated in the paragraph (II) of the first paragraph of Article 25 and related provisions of other laws.
The employer may make the employee take completely or partially unpaid leave in order not to exceed three months from the date of entry into force of this article. Being taken unpaid leave accordingly to this article does not give the employee the right to terminate the employment contract based on just cause.
The employer or the employer representative who terminates the employment contract by violation of the provisions of this article, will be imposed an administrative fine for each employee whose contract is terminated with the amount of monthly gross minimum wage at the date of the act.
The President is authorized to extend the three-month periods in the first and second paragraphs up to six months.”  
Şahin Çil: Employees working under the Press Labour Law, the Maritime Labour Law and the Code of Obligations also benefit from this provision apart from the Labour Law.  
– The right of termination of the employee under normal conditions is not limited. Employees may also resign because they have been made to take unpaid leave by the employer. However, this resignation is not considered as just cause.  
– Automatically termination of the fixed term contract with the expiration of the term does not constitute a violation of the ban. Employment relation ends with the end of the period.   – Employees who work with fixed-term contracts can take unpaid leave by employer. The period of the unpaid leave will be added to the contract.  
-Termination With The Notice Period For The First Time In The Prohibition Period: * First point of view (minority opinion): Termination with the notice period can be made provided that the notice period ends at the end of the prohibition (after 17.07.2020). If the notice period remains within the prohibition period, the termination will take effect as of 18.07.2020. * Second point of view (Şahin Çil’s Opinion): No termination with the notice period can be made during the prohibition period. If it is done, the notice period starts to operate after the end of the prohibition (17.07.2020). Because, according to the Supreme Courts of Appeal practice, for example, the lapse of times that are required for the commencement of the process of reemployment lawsuit are taken into consideration from the moment of notification. In other words, at the moment of the notice, the will of termination has been put forward.
  – Termination With The Notice Period For The First Time Before The Prohibition Period:
* First point of view: The notification made before 17.04.2020 will stop as of the effective date; and it continues as of 17.07.2020. In this process, the employer can make the employee take unpaid leave.
* Second point of view (Şahin Çil’s Opinion): The termination notification made before 17.04.2020 shall bear its consequences. During the prohibition period, the notice period continues, and the employment relation ends with the expiration of the period. However, in the period of notice, the employer may also make the employee to take unpaid leave. In this case, the notice period will stop during the unpaid leave period. (Article 432/ last of the Code of Obligations). If part of the notice period made by the employee coincides on or after 17.04.2020, the employer can use the right to unpaid leave. If the employer has chosen the unpaid leave option, the notice period given by the employee starts after the leave.
 
-If the employer makes a termination according to the Article 25 / II and it is determined that this termination was not justified by the trial; apart from severance and notice pay, the employee may also claim compensation for the prohibition of termination – as much as the balance receivable during prohibition period / concrete event-.
 
– The employer who is not affected by the Covid-19 pandemic can also freely use the right to unpaid leave providing that the abuse of a right discussions are not ignored. The unpaid leave practice is not subject to any conditions such as stopping or decreasing of the work.
 
Examples of bad faith cases regarding unpaid leave application;
1- Making half of the employees take unpaid leave and making the other half work overtime to complete the workforce.
2- Making all of the employees take unpaid leave and completing the workforce by employing new employees.
3- Employers who have increased workload due to Covid-19 making their employees take unpaid leave (courier companies etc.)
4- In case some employees work full time, some employees are on fully unpaid leave and some employees are on partly unpaid leave; if the employer cannot reveal a reason that justifies the discrimination, it will be in contradiction to the principle of equality. (Article 5 of the Labour Law).
 
– Mutual rescission is possible during the prohibition period. It also matters who the proposal and acceptance came from.
Force Majeures and Compulsory Reasons  
– Compulsory reason is a more comprehensive definition which covers the force majeures.
  Compulsory reason examples:
1-         A malfunction or possibility of a malfunction in the workplace.
2-         The existence of urgent work to be performed on machinery and equipment.
3-         Force majeure.
Compensation work can be carried out due to compulsory reasons as one of the reasons pursuant to Article 64 of the Labour Law. The compulsory reason covers the force majeure. For this reason, compensation work can be done for the period of curfew is applied. If it is a contractual holiday on Saturdays, no compensation work can be done on this day.
  In the workplaces that supposed to be worked on Saturday or Sunday, if there is no work done within the scope of curfew and wages are paid, compensation work can be done in these workplaces within 4 months.
  If the curfew has not exceeded a week, half wages cannot be paid under Article 40 of the Labour Law. There must be a force majeure exceeding at least one week under Article 24 / III and Article 25 / III of the Labour Law.
  Whether the periods with curfews will be counted as the annual paid leave or not : Supreme Court of Appeal practice: In the short-term (1-2 days) annual leave usage, the necessity of finding the demand of the employee (limiting the right of management of the employer) and the condition that the part of the ten-day integrity is not prejudiced.
  Covid-19 and similar situations allow both employees and employers to terminate “for force majeure” under Article 24 and Article 25 in terms of periods of non-termination.
-Answers to Questions-  
– Short-time working practice and annual leave cannot be intertwined.  
– The difference between short-time working allowance and real wage can be paid by the employer. There is no obstacle in terms of Labour law. It is also not among the reasons for the cut-out of payment of short-time working allowance.
  – In the first period, İŞKUR authorities stated that the wage payments made to complement the short-time work allowance will result in the cut-out of the short-time work allowance and the payments made will be refunded with interest. I don’t know if it was taken steps backward; however, I think that this payment made by the employer; there is no effect on the outcome of the cut-out of short-time work allowance. But there is a problem on payroll reflection.
  – The difference between cash wage support and real wage cannot be paid by the employer. This contradicts the basic logic of the Law.
  – If the employer pays wages in terms of curfew, compensation work; if it does not pay, the unpaid leave practice comes up to the agenda.
  – The employer does not need to make a management decision to make the employees take unpaid leave. For unpaid leave, the employer should notify the Turkish Identity Number and IBAN information to the institution.
  – If end of the season of the seasonal employee coincides with the prohibition of termination, suspension will not be considered within the scope of the prohibition.  
-The termination to be made during the probation period is subject to the prohibition. Reminder: In accordance with the practice of the Supreme Court of Appeal, syndicate compensation may also be claimed for the termination made during the probation period.  
– Employees who work in the hospital and suffering from asthma may terminate the employment contract based on force majeure (Article 24/III of the Labour Law) or on health reasons in accordance with Article 24/1 of the Labour Law, if she/he meets the conditions. The situation to be paid attention is the situation that the employer has already made the employee take unpaid leave at the time of termination.  
-According to the Provisional Article 1 of Law Numbered 7226; the period for the employee to apply within ten working days and the employer’s one-month employment period has also stopped after reemployment lawsut.
  -It is not correct for the employee, who has been in quarantine for 14 days, to be considered as on annual leave on these days. It is not correct for the employee who has a positive Covid-19 test to be considered as on annual leave during the days of treatment. The daily wage must be paid.
  – If the road and food fee is not paid within this process, a “food fee” can be sued. The road fee may not be paid if the employees are not actually going to work. Although the food fee is not paid and the road fee is not paid even though it is actually going to work, it gives the employee the right to termination with a just cause.
  – The contract of the foreign employee whose work permit expires is in any case an indefinite term contract, as it is not considered as objective reason. The termination process due to the “deadline” during the prohibition period is considered as the termination of the employer.
  – Final Word: The employer can make the employees take annual leave within the scope of his administrative right. It is necessary to look with doubt that to give the employee an annual leave as an advance payment. It should be evaluated as limited. This situation results in the employee not being able to use his/her entitlement, which is his/her constitutional right, in the following years. However, the provision of the annual paid leave regulation in the status of collective leave should also be taken into consideration: “Collective leave periods can be determined to include employees who have not yet earned the annual paid leave right.”  

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