Changing the career framework policy may be a subject for global companies which are trying to establish a coherence between their affiliates distributed over different countries. Such change should be handled very attentively since changing career framework policy may be an essential change in working conditions being subject to certain labour law procedures just as under Turkish Labour Law No. 4857 (“Labour Law”) which enables the employee to terminate the labour contract with a valid reason.
Most of the time, changing career framework policy directly affects the job titles but it may only be a change in the job titles without any effect on the career path of the employees or the content of their responsibilities. The sole change of job titles may not be considered as an essential change in respect to the Labour Law but the change of job titles related to the change of policy that regulates career framework might be regarded as an essential change in working conditions depending on the case.
1 Essential Change in Working Conditions According to The Labour Law No. 4857
1.1. The Labour Law has a specific provision with regard to the changes in working conditions and the right of an employee to terminate the labour contract. As per the Article 22 of The Labour Law, in order to consider that an essential change of working condition is valid, the Employer must notify the employee in writing with regard to the change in working conditions and the employee must approve the change with written consent in six days. Employees will not be bounded by the essential changes that are not approved by the employee in writing in six days as of the notification date, or which were made contrary to this procedure.
1.2. In the case that the employee does not approve the change in six days, employer can rightfully terminate the employee’s contract by observing the period of notice and explaining the valid reason behind the change or another valid reason for termination in writing. However, in that case, the employee may file a suit according to the provisions of Articles 17 to 21 of The Labour Law which regulates employee’s rights to take an action against the employer on the grounds of the termination based on invalid reason.
1.3. On the condition that the change is nothing more than a regular change, it will not be necessary to notify the employee to get his consent. It should be noted that, The Labour Law does not specifically state or count what the essential changes in working conditions are. Therefore, each matter needs to be examined case by case in order to detect if it is essential change or regular change.
2 Essential Change in Working Conditions According to Court of Appeal Decisions and Doctrine
2.1 Although The Labour Law does not make any definition of essential change in working conditions and does not count or give example of them, it is possible to determine the definition of essential change and working conditions through the opinions of academics and Court of Appeal judgements.
2.2 Initially, it is crucial to state that working conditions that are wanted to be changed might be based on labour contract or internal personnel regulations or workplace practice. For example; job titles can be based on the Labour Contracts which includes job descriptions in.
2.3 In this sense, essential changes in working conditions can be defined as the changes that destabilizes the balanced and ordered relation between employer and employee which is established with labour contract or internal personnel regulations or workplace practice.
2.4 Heretofore, Turkish Court of Appeal has determined four different type of essential changes:
· Change in salaries
o For example; laying off paying transportation expenses or any additional payments such as lunch expenses.
· Change in quality of work
o For example; assigning the employee in a heavier, harder or more dangerous work.
· Change in the workplace
o For example; assigning the employee in a distant workplace that makes the employee reduce resting time.
· Change in working hours
o For example; making the employee work longer in a way to deduct the salary.
2.5. It can be seen that job title change was not specified by the Court of Appeal among the four types of essential change and two decisions were issued by the 9th Civil Chamber of Court of Appeal[1]determined the change of job titles cannot be regarded as an essential change.
2.6. For example, the job title change which is from “accounting supervisor” to “accounting officer”is considered as “not an essential change” in working conditions by 9th Civil Chamber as stated in the 30 May 2008 dated decision that “It can be observed that accounting supervisor and accounting officer are in equal level according to the working scheme and Claimant is working in the same level, for the same salary, by performing the same duties. So, there is not any essential change in working conditions” (9th Civil Chamber E. 2008/9227 K. 2008/13081 T. 30.05.2008).
However, it is important to state that these two decisions are given a long time ago and cannot be considered as the current opinion of the Court of Appeal. Besides, the changes that are subject to these decisions are related to changes only in job titles but not any changes in job definition or framework.
2.7. Regardless of these decisions of 9th Civil Chamber which were issued considerably long time ago, Employers that intend to change job titles should be ready to face an essential change claim bearing in mind that aforementioned four types of essential changes are not listed with numerus clausus in The Labour Law and the decisions of Court of Appeal cannot be used as fundamental ground for the final decision of domestic courts as per the main sources and dynamics of Turkish Law. For this reason, Labour Court will be evaluating if the change in job title and career framework changes the working conditions essentially specific to the substantial case.
3 Labour Contract Provision on Consent in Advance
3.1. There might be provisions of Labour Contracts which are executed by the Employer providing that employee accepts and acknowledges the right of Employer to make changes in working conditions in advance. Despite the fact that there are controversies in the opinions of academics and judges, the majority opinion in doctrine and some Court of Appeal decisions allows Employer to reserve the right to make future changes in working conditions in the contract and accepts this in advance consent as lawful under the condition that employer must act in good faith. If Employer acts in good faith and the change is made due to the necessity of business, employee must comply with the change in working conditions.
3.2. Howsoever, Labour Courts mostly express their opinion in favour of employees and the decisions naturally finalize mostly in favour of employees in the disputes that arise from labour law. For that reason, carrying the changes on by relying on the provision on consent in advance may not be sufficient and safe solution.
4 Summary & Conclusion
4.1. The procedure of making essential changes in working condition is regulated in Article 22 of The Labour Law, but there is not made any clear description of essential changes in this provision. Academics defined essential changes as the changes that destabilizes the balanced and ordered relation between employer and employee which is established with labour contract or internal personnel regulations or workplace practice and Court of Appeal has determined the four types of essential changes in accordance with this definition.
4.2. Although the job title and career framework changes are not counted in four types of essential changes by Court of Appeal, Labour Courts evaluate every detail and scope of the change case by case to understand if there is any change to employee’s disadvantage. In the case that one of the employees has raised a claim, the provision on consent in advance of Labour Contract which provides the employees consent for future changes in working conditions in advance may not be enough to prove that Employer has already had consent.
4.3. Since there is a slight possibility to consider this change as an essential by the court after comparing the change having regard to the tasks and responsibilities undertaken by the employer, Employers should obtain written consent from employees in Turkey so as to create a written document proving this consent.
1. [1] 9th Civil Chamber of Court of Appeal E. 2008/9227 K. 2008/13081 T. 30.05.2008; 9th Civil Chamber of Court of Appeal E.2009/2308 K. 2011/1090 T. 28.01.2011