Türkçe
Due to the Coronavirus (COVID-19) epidemic in our country, many employers apply different working models in order to protect the health of their employees and the society and also are in different quests to ensure the continuation of the existing personnel employment despite of the decrease in the volume of their businesses.
In that respect; employers implement models such as remote work, short-term work, annual leave and unpaid leave. However; is it possible for the implementation of these working models to cause problems and additional employee demands in future? What needs to be done to prevent this? At this point; it will be significantly important for the employers to apply such working models in alliance with the Labor Law No. 4857 (“Law”) and to perform the necessary legal and administrative procedures entirely.
WHAT SHOULD EMPLOYERS TAKE INTO CONSIDERATION WHILE APPLYING REMOTE WORKING METHOD?
Due to the current epidemic, many employers have ceased working in their offices collectively in order to protect the health of both their employees and the community, and initiated the necessary practices for their employees who have a job scope that is suitable for working remotely to continue working from home.
Pursuant to Paragraph 4 of Article 14; remote working is “a work relationship established in writing and based on the principle that the worker fulfills his / her work at home or outside the workplace with technological communication tools within the scope of the work organization created by the employer.”
Although the above-mentioned article of the Law is not related to remote working due to force majeure, it is possible to apply this model in the workplace for a certain period of time within the current epidemic conditions, since it is an application for the benefit of the employees.
However; since changing the workplace of the employee will create a substantial change in working conditions, this application is subject to the written approval of the employee in accordance with Article 22 of the Law. Therefore; it will be appropriate for the employers who will apply the remote working model to obtain the written approval of the employees.
Nevertheless, we are of the opinion that even if the approval of the employee is not received, this situation would not give either to the employer or to the employee the right to terminate the contract for the justified reason, since there is a serious epidemic threat across the country, the government agencies advise all employers to implement the home working model, such work condition change is a mandatory measure to protect the health of both the employees and the community and is applied in the interests of the employee.
Having said that, it would be appropriate to send a directive to employees on remote working in order to determine the general conditions of working from home (working hours and conditions, etc.). Thus, it would be ensured that both legal obligations are fulfilled and that the process is better managed. In the event that all details about the new working model are notified to the employees with the said directive and a letter is received from the employees declaring that this directive has been read and the new conditions are accepted, the application of the new working model would not be subject to any legal sanction in the future.
Since it would not be technically possible in this process to transmit this instruction to all employees by hand and to receive written approvals with wet-ink signatures, it would be adequate for the directive determining the general working conditions to be sent to all employees via e-mail and the approval letters related to this directive to be received from the employees by e-mail.
WHAT SHOULD EMPLOYERS TAKE INTO CONSIDERATION WHILE APPLYING SHORT TIME WORKING METHOD?
Short time working is regulated under Additional Article 2 of the Unemployment Insurance Law No. 4447 (“Law”) and the Regulation on Short-Time Working and Short-Time Working Payment published in the Official Gazette dated 30.04.2011 and numbered 27920 (“Regulation”).
The employers, who employs insured employees under Unemployment Insurance Law, may apply short-time working method and request for the payment of short-time working allowance, if the weekly working hours in the workplace of such employer is temporarily reduced significantly or stopped entirely or partially due to general economic, sectoral or regional crisis and compulsory reasons.
In that respect; current COVID-19 epidemic and the sectoral decisions taken to cease or reduce the activities in this context fall under the definition of a compelling reason under the Regulation. For that reason; it is possible for the employers whose activities are adversely affected by COVID-19 epidemic and decreased may apply for short-time working payment.
Although the written approval of the employees is required for the application of remote working under Article 22 of the Labor Law, there is no need for the employers to request for such approval from the employees for short-time working, since short-term work is a working model that is regulated by law and gives employers the legal right to apply in certain cases.
You may click here to have more detailed information about the short-time working model.
WHAT SHOULD EMPLOYERS TAKE INTO CONSIDERATION REGARDING PAID ANNUAL LEAVE?
Another method applied by employers during the epidemic is annual paid employee leave. However, do employers have the right to force their employees to take paid annual leave?
It is stated under 7th and 8th Articles of the Annual Paid Leave Regulation that the employee makes a request regarding the annual paid leave, but the employer does not have to comply with the dates in this request. In the established Supreme Court decisions, it is stated that the determination of the annual leave period is within the scope of the employer’s right to management. In that respect; employer will be able to determine the employee’s annual leave time by acting in accordance with the rules of good faith.
However; pursuant to paragraph 1 of Article 56 of the Labor Law; annual paid leave cannot be divided by the employer. Although this is the case, pursuant to paragraph 3 of the same article; paid leave periods can be used in sections, some of which are not less than ten days, by agreement of the parties. In that respect; during the epidemic, it will be possible to ensure that employees use annual leave for at least ten days by mutual agreement of the employees.
In addition; pursuant to Article 10 of the Annual Paid Leave Regulation, the employer may apply collective leave covering all or part of the employees between the beginning of April and the end of October. Collective leave periods can be determined to include workers who have not yet earned the annual paid leave. Further; in accordance with Article 11 of the said Regulation, the employer may exclude a sufficient number of employees from collective leave for compulsory situations such as the protection of the workplace, maintenance, preparation, cleaning or safety of vehicles, equipment or machinery in the workplace.
In that respect; during the course of the epidemic, collective leave application can also create an alternative for employers and employers will be able to give individual or collective paid leave to their employees within the scope of the measures taken due to the coronavirus (COVID-19) epidemic.
WHAT SHOULD EMPLOYERS TAKE INTO CONSIDERATION REGARDING UNPAID LEAVE?
Employees who do not have a job scope suitable for remote working during the epidemic and who cannot be evaluated within the scope of short-term working method would create a financial burden for employers. Therefore; employers generally prefer to apply unpaid leave, instead of laying off the employee. Is it possible for the employer to give the employee paid leave without his consent?
First of all; it should be stated that although there is no regulation regarding unpaid leave in the Labor Law, there are some circumstances under different laws which may be considered as unpaid leave. However, as accepted by the established Supreme Court decisions; it is not possible to force the employee to use unpaid leave without the consent of the same, since unpaid leave means the suspension of the employment contract of the employee where the employer is not under any obligation to pay wages or insurance premiums.
For that reason; in order to give unpaid leave to the employee, the written consent of the same must be obtained in accordance with Article 22 of the Labor Law. Otherwise, the employee will have the right to terminate the employment contract and to claim severance pay. In addition, if the employee does not accept the unpaid leave and wants to continue working, then the employer can terminate the contract for valid reason, but in this case, the employee would be obliged to pay both severance and notice pay.
However; a provisional article was added to the Labor Law in accordance with Article 9 of the Law No. 7244 on Reduction of the Effects of Coronavirus (COVID-19) Epidemic on Economic and Social Life (“Law No. 7244”), which was adopted to reduce the negative effects of the epidemic in our country. With the addition of such provisional article to the Labor Law, it is regulated that the employers will be able to allocate employees entirely or partially for unpaid leave under the scope of this article for a period of three months without the need for any consent of the employees and that such application of unpaid leave will not grant the employees the right to terminate the employment contract for justified reason.
In that respect; although, under normal circumstances, the employer is obliged to obtain the approval of the employee in order to give the same unpaid leave, and if this approval is not obtained, the employee will have the right to terminate the employment contract, in accordance with the above-mentioned new regulation, allocating the employees for unpaid leave under this article will not give the employee the right to terminate the contract based on the justified reason.
IS IT POSSIBLE TO TERMINATE THE EMPLOYMENT CONTRACTS DURING THE EPIDEMIC?
It is regulated under the provisional article added to Labor Law pursuant to Article 10 of the Law No. 7244 that all kinds of employment or service contracts cannot be terminated by the employer for three months, except for circumstances which do not comply with the rules of ethics and goodwill and similar reasons.
In that respect; it would not be possible to terminate the employment contracts of the employees for 3 months as from the date of effectivity of the said regulation, except for the cases which are contrary to the rules of ethics and goodwill as defined under the Labor Law. Otherwise, the employer will be liable for compensation due to unjust termination.
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