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THE EFFECT OF COVID-19 OUTBREAK ON EMPLOYMENT CONTRACTS WITH A TRIAL CLAUSE

What does Employment Contract With a Trial Clause Mean?

Employment contract with a trial clause is the contract that includes the trial period -except for collective labor contracts- up to two months in order to see the working conditions, to understand the suitability of the work undertaken by the contract and the ability to do the work for the employee and on the other hand, to measure the ability and efficiency of the employee to do the work undertaken by the contract for the employer. The most important feature of the employment contract with a trial clause is that the parties can terminate the employment contract during the trial period without having to observe the notice term and without having to pay compensation.

Employment contract with a trial clause does not originate directly from the law; the acceptance of the trial period in terms of a employment relationship is possible if there is a written regulation in the employment contract.

Termination Restriction to Employers Introduced by Law Numbered 7244

It has been clearly stated in the “Provisional Article-10” which has been added to the Labor Law numbered 4857 with the 9th article of the Law numbered 7244 which published on 17.04.2020 as a result of the Covid-19 outbreak that; no employment or service contract can be terminated by employers for three months from the date on which the article comes into force, regardless of whether it is under the scope of the law, and an administrative fine will be imposed on the employer or employer deputies who have violated this regulation. The relevant article 9 of the Law numbered 7244 came into force on the date of publication, which is 17.04.2020.

One of the problems that may arise in practice is the fate of the employment contracts that are already in the “trial period” as of 17.04.2020.

Paragraph 2 of the Article 15 of the Labor Law numbered 4857 clearly states that the parties are free to terminate the employment contract without having to observe the notice term and without having to pay compensation. However, the possibility of terminating the employment contracts of the employees within the trial period for the Employers seems to be eliminated with the new regulation. It is also evident that there is no clear regulation regarding this matter in the Law No. 7244.

At the end of the three-month restriction period expired, the trial period agreed between the parties will in any case be completed, except for the exceptional cases that may arise for collective labor contracts. Considering that the purpose of inserting a trial period into the contract is to protect the rightful interests of the employer in terms of learning the professional knowledge and skills of the employee, the way of working and the workplace compliance and behaviors, and employee in term of to see the practices in the workplace, to evaluate the compliance process and to easily get rid of the contract when necessary, it is concluded that the rightful interests of the Employer side are especially ignored.

If the employer make the employee who is within the trial period take unpaid leave, will the trial period continue in this case according to the Law Numbered 7244?

The employers were given the opportunity to make the employees take unpaid leave fully or partially for 3 months from 17.04.2020 with the Provisional Article-10 which has been added to the Labor Law Numbered 4857 by the Law Numbered 7244. There is no legal obstacle to make the employees who are in the trial period take unpaid leave in the Law Numbered 7244.

The employment contract of the employee who is on unpaid leave is considered to be “suspended” during this period, and the period spent on the unpaid leave is not taken into account in terms of the period taken as basis in the calculation of severance payment. However, the trial period is added to the seniority period. Starting from this point; it is concluded that the trial period will also be suspended during unpaid leave which is excluded from the seniority period and at the end of the unpaid leave period, it will resume on and thus it will be included in the seniority period.

In conclusion;

  • For the Employers; it is understood that the termination right during the trial period without having to observe the notice term and without having to pay compensation has been indirectly eliminated for three months with the Law numbered 7244 for the Employers currently employing employees with trial period as of 17.04.2020. Employers will not be able to terminate the employment contracts of employees in the trial period, except for the justified reason, during the restriction period. As the trial period will be completed -except for collective labor contracts- after the restriction period has expired, it will be possible to terminate the employment contracts only according to the general provisions.
  • For the Employees; it can be said that they can terminate their employment contracts without having to observe the notice term and without having to pay compensation during the trial period, since there is no restriction on unilateral quitting in the new regulation introduced with the Law numbered 7244.
  • In addition, in terms of employment contracts with a trial clause to be signed in three months within 17.04.2020, it would not be wrong to say that the right of termination without having to observe the notice term and without having to pay compensation can be used in the case that the last day of the trial period coincides with the day after and after the last day of prohibition period. However, it should not be ignored that this period in the Provisional Article-10 which has been added to the Labor Law numbered 4857 can be extended up to six months.

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