As it is known, the COVID-19 pandemic affects the whole world dramatically in all aspects, both governments and employers take measures to maintain social distance in order to prevent the spread of the virus transmitted by contact. In Turkey, all official institutions and organizations, especially the Ministry of Health, are called to not to leave the home. For this reason, many workplaces have adapted their system to remote working or deduced the working hours or taken another unusual measure. However, since some workplaces have no potential to work remotely, different opportunities resulting from the Turkish Labor Law no. 4857 became the main controversial matter for current employment relationships. The Government has to consider two critical risks for both employers and employees which are unemployment crises and bankruptcy of firms due to the financial crisis. Accordingly, the Law on the Amendment of Certain Laws by the Law on Reducing the Effects of New Coronavirus (COVID-19) Pandemic on Economic and Social Life (“the Law no. 7244”) numbered 7244, has been published in the Official Gazette no. 31102 on April 17, 2020 to create new solutions for the parties of the employment contracts. You may find detailed information about Law no. 7244 in our article dated 18 April 2020 in the following link: https://www.nsnlawbulletin.com/post/the-law-on-reducing-the-effects-of-the-new-coronavirus-outbreak-on-economic-and-social-life
We hereby evaluated the essential procedures can be followed for the employment contract under the effect of the COVID-19 pandemic.
1. Remote Work
One of the fundamental changes for the workplace is working remotely to pursue social distancing effectively. Although there are not detailed conditions for the remote work, it is defined in the Article 14/4 of the Turkish Labor Law as fulfilling the performance of work within the scope of the work organization created by the employer at home or out of the workplace with technological communication tools. The significant condition of the remote work is being agreed mutually in writing between the parties. The parties shall designate the following conditions in the employment contracts: the definition of the work, the way the work to be done, the duration and location of the workplace, the salaries, the equipment provided by the employer and the obligations related to their protection, the communication method of the employer and the other provisions regarding general and special working conditions.
Considering the rapid changes and urgent development under the Covid-19 concern, it is hard to execute an agreement between the parties for the remote work. Also, since the extraordinary grounds such as Covid-19 do not convert the definition of work to remote work, in fact, the employee and the employer are bound by the rights and obligations as they have during the normal course of working period. However, it is crucial to ensure that the employees are provided with the safety conditions for working remotely since the employers are liable for the accidents occurs at home during the work under the consideration of an occupational accident.
2. Short-Time Work
In the event that the weekly working hours in the workplace are temporarily reduced or the work is stopped completely or partially temporarily due to the general economic, sectoral or regional crisis and compelling reasons which are not caused by Employer, short-time work may be applied in the workplace not to exceed three months.
In order to apply for short-time work, the employer should file an application before Turkish Employment Agency and the labor union (if any), along with the evidence demonstrating the effects of coronavirus on the operations in the workplace and its preference between following two options: (1) To cease workplace activities completely or (2) to reduce the weekly working hours by at least 1/3. In addition, it is necessary for the employee to meet the working hours and unemployment insurance premium payment conditions to include the employee's name in the list of those who will be benefiting from the short-time work.
Please see our article dated 8 April 2020 in order to reach further information about the short-time work: https://www.nsnlawbulletin.com/post/covid-19-how-short-time-work-will-be-implemented
3. Annual Paid Leave
In practice, employees who granted annual paid leave are encouraged to use their annual paid leave by the employers during this global pandemic. However, it should be noted that each employee’s approval is required, unless the employer uses its authority to determine the leave periods pursuant to Article 15 of the Regulation on the Annual Paid Leave (“Regulation”).
As the right of the employee’s unpaid leave, the employee who has worked for at least one year, including the probation period, from the day they start work at the workplace, are granted annual paid leave for the term calculated pursuant to the duration of the work. Once the employees submit the written demands to the employer for annual paid leave, it shall not be rejected by the employer.
According to the Article 15 of the Regulation, in the workplace where more than a hundred employee, the employer can determine the annual paid leave for a certain time or a period of each year with the annual paid leave council which consists of one member representing the employer or the employer’s representative and two members representing the employees. In workplaces with less than 100 workers, the employer or the employer representative and one representative appointed by the employees shall fulfill the duties and the authorities of the annual paid leave council.
As another option, the employer may choose to apply “collective leave” for some or all of its employees between the beginning of April and the end of October in accordance with Article 10 of the Regulation. Collective leave periods can be also applied to employees who have not yet gained the right of the annual paid leave. While applying this alternative, the employer has a right to exclude a sufficient number of employees from the collective leave implementation for compulsory situations such as protection, maintenance of workplace or preparation, cleaning or safety of the tools, equipment, or machinery in the workplace.
4. Unpaid Leave
According to the Turkish Labor Law, the employer has no right to force to apply for unpaid leave, even if there are valid reasons based on the non-employment process. Due to the fact that the unpaid leave is accepted as an essential change in working conditions, the written consent of the employee is required. Accordingly, the employer must notify the employee with regard to the change in working conditions. Changes not made in accordance with this descriptive method and not accepted by the related employee in writing within six business days shall not be binding for the related employee.
In case the change is not accepted by the related employees, they have the right to terminate their employment contracts by giving the notice period or paying the notice payment pursuant to Article 17 of the Turkish Labor Law. The employer has also right to terminate the related employment contracts as per the procedures of the Article 18 and 19 of the Turkish Labor Law by explaining in writing that the unpaid leave is based on a valid reason and the employee has no other option but to terminate the employment contract.
In accordance with the Turkish Supreme Court, if it can be understood from the behaviors that the employee accepts the change in working conditions without any doubt, the essential change shall be valid even there is no written approval of the employee. However, it is the safest way to obtain written approval from the employee in terms of the sensitivity of the current situation and the existence of the risk of a possible claim for unfair termination.
5. Prohibition of the Termination of Employment Contracts
Thereunder the Law no. 7244, it is prohibited to terminate all kinds of employment and service contracts by the employers for the period of three months from April 17, 2020, unless in the event of the cases based on the incompatible with the moral and goodwill rules pursuant to the Article 25/1(II) of the Labor Law. This three-month period can be extended up to six months by the President of the Republic of Turkey.
Termination of the employment contracts by the employees is not in the scope of the prohibition. Moreover, in case the contract is a fixed-term contract and the due date is in the prohibition period, it can be expired automatically on the grounds that the termination is not caused by the employer.
In case of the violation of the subject termination prohibition, the employer or vice-principal, who terminates the labor contract, shall be sentenced an administrative fine of the monthly gross minimum wage which is 2.943,00 TRY for the year 2020.
6. Compensatory Work
in cases (i) where the operations in a workplace are ceased entirely due to the compelling reasons, or (ii) where unworked periods are considerably lower than the normal working hours because of the national and public holidays, or (iii) the employee is granted time off as per his/her request, the employer may call upon compensatory work within four months in order to compensate for the time lost due to unworked periods. Compensatory working shall not be considered overtime work or work at extra hours. Compensatory work shall not exceed three hours daily, and must not exceed the maximum daily working time in any case. There are some crucial conditions for compensatory work as follows:
The 11-hour maximum working hours per day should not be exceeded.
Compensatory work shall not exceed three hours daily, and must not exceed the maximum daily working time in any case.
Resting hours for the employees shall be applied between the normal working hours and compensatory working hours.
Compensation shall not be carried out on holidays.
The employer has to follow the above-mentioned conditions of the compensatory work to avoid paying the salaries for the extra working hours.