Within the scope of the article added as Provisional Article 10 to the Labor Law numbered 4857 and dated 22/5/2003 with the Law numbered 7244; the employer will be able to make the employee take entirely or partially unpaid leave for 3 months from 17/4/2020. In terms of unpaid leave, there are no conditions or obstacles in the Labor Law.
However; within the scope of the article added as Provisional Article 24 to the Unemployment Insurance Law numbered 4447 and dated 25/8/1999; it has been stated that the Fund will pay 39.24 TL per day as a daily cash wage support to the employees who have take unpaid leave by their employers and cannot benefit from the short-time working allowance. The following two conditions are required for employees who will benefit from the fund in accordance with the “and” conjunction in the article;
- Taking unpaid leave by the employer,
- Not being able to benefit from short-time working allowance (Law Numbered 4447, Provisional Article 24)
Unfortunately, parallelism has not been drawn between the two laws.
When we consider both laws and make a strict interpretation, we can say that the employer has the right to make the employees take unpaid leave without any conditions or obstacles. Whether the fund gives cash wage support to the employee is the fund’s / employee’s own problem.
When we consider both the laws and make a broad interpretation and also consider the minister’s assessments (it is an administrative assessment) together with the interests of the employee; employees who are within the scope of short working should not have been made to take unpaid leave. Otherwise, the good faith of the employer may be questioned and held responsible for damaging the employee.
The situations that will be the reason for questioning good faith are as follows;
- Facilitating the application by proceeding the declaration procedure in the short-working,
- Receiving higher amount of support from the fund than the unpaid leave in case of short-working by the employee,
- Possibilty of inability to benefit from 39.24 TL daily cash wage support because of the “and” conjunction in the law in the event that an employee who provides short-working conditions is directly made to take unpaid leave.
As a result; we do not see any legal obctacles for making the employees take unpaid leave directly. Employers can make the employees take unpaid leave without making a short-time application, provided that the potential risks of litigations based on the employer’s not-good-faith are not ignored.
 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.
 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 labor 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 holderis 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.
 The Minister Selçuk has responded the question of “In the coronavirus epidemic process, is it possible for employers to prefer unpaid leave as a priority instead of short-time working allowance?” as “There is no way to prefer free leave instead of short-time work allowance, because our employees know how many premium days they have completed. Therefore, if they have completed 450 days of premium payment and 60 days of service contract, the employees also know that the employer will apply for short-time work allowance on their behalf.”
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