Türkçe
The short-term working model, regulated by the Additional Article 2 of the Unemployment Insurance Law No. 4447, is currently being implemented by many employers who are experiencing difficulties due to the Coronavirus (COVID-19) epidemic. In connection with such working model, pursuant to Provisional Article 10 of the Labor Law; it is regulated that all kinds of employment or service contracts cannot be terminated by the employer for reasons other than the situations that do not comply with the rules of ethics and good faith and similar reasons.
The term of the short-time working allowance and the prohibition of termination of employment contracts as regulated under Provisional Article 10 of the Labor Law has been extended in accordance with the latest President Decrees. In this respect, it will not be possible for employers to terminate the employment contracts of the employees working at their workplaces until 17.11.2020, except for those who do not comply with the rules of ethics and goodwill and similar reasons.
So, what sanctions await employers in case of violation of this termination prohibition? Lately, some statements are made in some media organs that if the employers do not comply with the prohibition on termination of employment contracts and even only one employee is dismissed, they will be obliged to return all short-time work allowances received for all employees until that date together with the related interest to be accrued until such date. So, do these statements have a legal basis?
What is the Legal Basis of Short-Time Working Allowance and Prohibition on Termination of Employment Contracts?
The short-term working model is regulated by the Additional Article 2 of the Unemployment Insurance Law No. 4447, and the procedures and principles for short-term working are regulated under the Bylaw on Short-Time Working and Short-Time Working Allowance, which was published in the Official Gazette No. 27920 on 30.04.2011. In addition; under the Provisional Article 23 of the Unemployment Insurance Law No. 4447, there are some regulations regarding the short-time working applications made on the grounds of compelling reasons originating from the new coronavirus (Covid-19).
The prohibition on termination of employment contracts is regulated within the scope of Provisional Article 10 which is added to Labor Law by 10th article of the “Law on Reducing the Effects of the New Coronavirus (COVID-19) Epidemic on Economic and Social Life and the Law on Amending Some Laws” numbered 7244.
What Are the Sanctions to be Applied in case of Breach of Prohibition on Termination of Employment Contracts?
In accordance with the first paragraph of Provisional Article 10 of the Labor Law numbered 4857; “Regardless of whether it is within the scope of this Law or not, all kinds of employment or service contracts cannot be terminated by the employer for a period of three months as from the effectiveness of this provision except for the situations that do not comply with the rules of ethics and goodwill included in the subparagraph (II) of the first paragraph of Article 25 and the relevant provisions of other laws and similar reasons, expiration of the term in fixed-term employment or service contracts, the closure of the workplace for any reason and the termination of its activity, termination of the works under all kinds of service purchases and construction works made in accordance with the relevant legislation. “
Under Paragraph 3 of the aforementioned Provisional Article, it is stipulated that an administrative fine will be paid in case of breach of this prohibition and “The employer or employer’s representative who terminated the employment contract contrary to the provisions of this article shall be obliged to pay administrative fine equal to the monthly gross minimum wage on the date of the act for each worker whose contract is terminated”.
As can be seen; the only sanction stipulated under the Labor Law regarding the breach of the prohibition on termination of the employment contract is the administrative fine to be paid for each worker separately in the amount of the monthly gross minimum wage.
However; payment of the said administrative fine does not relieve the employers from their compensation obligations under the Labor Law. If the employee proves that the termination of the employment contract was unjust, the employer will be obliged to pay the employee all kinds of labor rights, including but not limited to severance and notice pay, and if the conditions exist, reemployment obligations. In this case; the existence of the prohibition on termination of employment contracts may constitute a presumption that the employment contract is unfairly terminated.
Is the Employer Obliged to Return All Short-Time Working Allowances Received for the Workplace Together with the Interest in Case of Termination of the Employment Contracts Despite of the Prohibition?
In accordance with 11th paragraph of Article 7 of the Short-Time Working Regulation; “The overpayments made due to the inaccurate information and documents provided by the employer are collected from the employer together with the legal interest.“
Even if the application made by the employers regarding the short-time working allowance is found appropriate, labor inspectors will conduct inspections in the workplaces during the process of the short-time working practice in accordance with Article 8 of the Bylaw. During these examinations, if it is determined that the employer gives inaccurate information and documents regarding the working hours of the workers who receive allowance, both the short-time working allowance will be stopped and the overpayments made due to the employer’s inaccurate information and documents will be collected from the employer together with the legal interest. In practice, the aforementioned article is applied as the termination of the short-time working payment from the date when the employer benefiting from the short-time working allowance illegally dismissed the employee and the payments made after this date are requested to be refunded by the employer with the interest.
The only regulation in the current legislation regarding the refunding of short-time working allowances is related to the refund of the overpaid work allowance amounts made by the institution based on erroneous information and documents, as stated above. Apart from this, neither in the Short-Time Working Bylaw nor in the Temporary Article 10 of the Labor Law in question, there is no regulation that all short-time working allowances will be refunded in case of breach of the prohibition on termination of the employment contract.
Although the Provisional Article 23 of the Unemployment Insurance Law No. 4447 is capable of forming a basis for such an application; under the mentioned article, only a general principle was determined as “In order to benefit from the short-time working practice within the scope of this article, the employees should not be dismissed by the employer within the period of short-time working, except for the reasons stated under item (II) of the first paragraph of Article 25 of the Law numbered 4857 ” and no sanction is imposed for the breach of such general principle.
However, the fact that there is no such sanction in the current situation does not mean that there will be no such implementation in the future. Although the non-retroactivity of laws is a general legal principle, there is a method recently applied to expand the application of the articles of the existing Law and to carry out new regulations backwards accordingly. In that respect; in accordance with the above-mentioned Provisional Article 23, retrospective sanctions may be imposed on the grounds that the prohibition of dismissal in workplaces where short-time working is applied is not complied with.
Therefore; it would be appropriate to act in accordance with the said prohibition of dismissal especially in workplaces where short-time working practices are applied and to make the necessary legal arrangements in a way that does not violate the current prohibition in compulsory dismissals.
ERKUT LAW OFFICE
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