LEGAL RESULTS OF CONTRARIETY TO THE PROHIBITON OF TERMINATION 19 June 2020
What is the meaning of the amendment made with the Law numbered 7244, which has been added to the Labor Law No. 4857?
Amendment made with the Law numbered 7244, which has been added to the Labor Law No. 4857, prohibits termination of the contract for 3 months, starting from the effective date, 17.04.2020. According to the Provisional Article 10: “Regardless of whether this Law is covered or not, any employment or service contract cannot be terminated by the employer, except for the situations that do not comply with the rules of ethics and goodwill and similar reasons mentioned in paragraph (II) of the first paragraph of Article 25 and the relevant provisions of other laws, for three months from the date of entry into force of this article.”
In the same legal arrangement, it is stated that in violation of the provisions of this article, the employer or the representative of the employer who terminates the employment contract will have an administrative fine at the monthly gross minimum wage amount for the employee whose contract is terminated. It should be noted that although the ban is limited to three months, the President has the power to extend the period up to six months. The regulation introduced concerns all kinds of service contracts whether or not they are subject to the Labor Law. Accordingly, there is no hesitation that it covers employment contracts subject to the Turkish Code of Obligations, labor contracts subject to the Press Labor Law and the Maritime Labor Law. According to a minority opinion, considering the aim of the law to Reduce the Effects of the Outbreak on Economic and Social Life, the prohibition of termination cannot be mentioned for workers and employers who are not affected by this epidemic. However, the general opinion is that such a distinction cannot be made. Therefore, no distinction can be made in terms of how much the employee or employer is affected or not affected by the outbreak in terms of prohibition. Because such a distinction is not explicitly mentioned in the law. In our opinion, there is no hesitation that the prohibition of termination should be applied regardless of the criterion of the epidemic, given the emphasis on the protection of employment both in the letter of legal regulations and in the President's statements since the beginning of the process.
As a matter of fact, on the protection of employment, with the Law No. 7226 dated 26.03.2020 provisional article 23 is added to the Unemployment Insurance Law No. 4447. With this provisional article, the conditions for applications for short-time work allowance to be made due to the epidemic have been facilitated, and it has been accepted that termination will not be made in the period in which short work has been applied, except article 25 / II of the Labor Law. The exceptions stated in the Article 25/ II of the Labor Law are regulated as follows; a) If, when the contract was concluded, the employee misled the employer by falsely claiming to possess qualifications or to satisfy requirements which constitute an essential feature of the contract, or by giving false information or making false statements; b) If the employee is guilty of any speech or action constituting an offence against the honour or dignity of the employer or a member of his family, or levels groundless accusations against the employer in matters affecting the latter’s honour or dignity; c) If the employee sexually harasses another employee of the employer; d) If the employee assaults or threatens the employer, a member of his family or a fellow employee, arrives at the workplace as drunk or takes drugs or using these substances in the workplace e) If the employee commits a dishonest act against the employer, such as a breach of trust, theft or disclosure of the employer’s trade secrets.; f) If the employee commits an offence on the premises of the undertaking which is punishable with seven days’ or more imprisonment without probation; g) If, without the employer’s permission or a good reason, the employee is absent from work for two consecutive days, or twice in one month on the working day following a rest day or on three working days in any month h) If the employee refuses, after being warned, to perform his duties; ı) If either wilfully or through gross negligence the employee imperils safety or damages machinery, equipment or other articles or materials in his care, whether these are the employer’s property or not, and the damage cannot be offset by his thirty days’ pay.
For these reasons, although there is no obstacle to the termination of the employment contract, during the prohibition of termination; The terminations made under this article will be examined by the courts in case of possible disputes, whether the reason for termination in question has been used by the employers to circumvent the prohibition of termination, and whether the just cause is required or not. If it is certain that there is no justifiable reason for the termination as a result of the trial, there will be a violation of the prohibition of termination. In this case, it may result from administrative fines or cancellation of short-time working allowance for the workplaces. Another point that needs to be emphasized is to comply with period, 6 business days, in terms of termination to be made on the basis of 25 / II. Because, according to the Supreme Court, the failure to comply with the lapse time, 6 days, is a reason that eliminates the justification of the termination. This prohibition is related to the will of termination of the employer. It is considered that the situations such as termination of the business relationship with a validly established mutual rescission agreement, spontaneous termination at the end of the term of the fixed term employment contract which has been concluded in accordance with the conditions required by the law, the termination of the employment contract due to reasons such as the death of the employee or employer should not be counted within the scope of the ban, since it does not contain termination. Although our legal evaluation is in this way, there are reports that there are internal correspondences of the institution that the exit code (22) is counted by İŞKUR under the prohibition of termination.
The prohibition of termination of the employment contract covers all terminations except for article 25 / II, as stated above. There is no other exception for termination of the employment contract. However, according to the one view, these terminations made within the prohibited period of the employer due to 25 / I of the Labor Law, due to the health reasons or compelling reasons according to the Article25 / III, or due to the employee’s being taken into custody or due to his arrest, his absence from work exceeds the notice period within the scope of the Article 25 / IV should not be deemed legally invalid. According to this view, terminations due to these reasons will result in penal sanctions / cancellation of short-time working allowances. However, just because the termination was made during the prohibition of termination, it should not be seen as unfair and invalid and there should be no need to pay compensation. However, given that the aim of the legislator is to ensure the continuity of employment, it is likely that this opinion will not be respected by the Supreme Court.
Although there was an explicit administrative sanction in the law, no regulation was introduced on the legal consequences of the termination against the prohibition during the prohibition of termination.
So what will be the consequences of acting against the prohibition of termination?
Of course, this will have legal implications, since it cannot be thought of only as an administrative sanction. It should be noted that this prohibition is directed to the will of the employer to terminate. There is no such ban in terms of employees. At this point, however, it should be noted that: The employer has been granted the right to unilaterally leave the employee unpaid leave with the same legal arrangement. And it has been ruled that it would not be a justifiable reason for termination for unpaid leave for the employee.
In which matters can a conflict arise in terms of employees whose employment contracts are terminated during the prohibition of termination?
Although there are various evaluations and discussions on the subject, the first thing that comes to mind in terms of the employee covered by job security is the ability of the employee for reemployment lawsuit. As a result of this lawsuit, as we have stated above, even if there are contrary views, it can be decided that the termination is invalid due to the fact that the termination was made during the ban period. Also in the reemployment lawsuit; since there is a termination made during the prohibition period, it may arise from the upper limit appreciation of the non-employment compensation determined in the law at the amount of 4 to 8 gross wages. Again, it should be noted that, in terms of termination during the termination prohibition period, the wages between the date of termination and the date when the termination prohibition ends (the payment in the amount of short-time working allowance or cash wage support allowance according to the application in the workplace) may be one of the controversies. For an employee who is not covered by job security, it is considered that it is possible for him to claim 3 times the amount of compensation for bad faith damages within the scope of the claim that the right was abused due to the termination applied during the prohibition of termination.
As a result, although judgments and discussions continue, as there is no judicial decision about the legal consequences of the prohibition of termination, how the matter will be evaluated and which legal sanctions will be applied will be clarified by the judicial decisions made in the future.
Other News
-
15.3.2024
New Regulations Introduced With The 8th Judicial Package
The Law No. 7499 on the Amendment of the Code of Criminal Procedure and Certain Laws ("Law"), which contains amendments and new regulations known as the "8th Judicial Package", was published in the Official Gazette dated 12 March 2024 and numbered 32487. In this article, we will discuss the amendments to the Criminal Procedure Code No. 5271 (" CPC"), Turkish Criminal Code No. 5237 ("TCC"), Turkish Civil Code No. 4721 ("TCC"), Enforcement and Bankruptcy Code No. 2004 ("EBC") and Law No. 6384 on the Duties and Working Procedures and Principles of the Compensation Commission.
-
12.3.2024
Changes In The PDPL Was Published In THE Official Gazette
Law No. 7499 on Amendments to the Code of Criminal Procedure and Some Laws ("Law No. 7499") including critical amendments to the Law No. 6698 on the Personal Data Protection Law ("PDPL") was published in the Official Gazette on March 12, 2024.
-
9.2.2024
Amendments Were Made To The Regulations Based On The Occupational Health And Safety Law
In the Official Gazette dated 4 February 2024 and numbered 32450, amendments were made to some regulations issued based on the Occupational Health and Safety Law No. 6331:
-
1.2.2024
Turkish Competition Board Mergers And Acquisitions Outlook Report For 2023 Has Been Published
On January 5th, 2024, the Turkish Competition Authority has published the Report prepared by the Competition Board on Mergers, Acquisitions And Privatisation Transactions in 2023 ("Report").
-
31.1.2024
Important Principle Decision From The Advertising Board Regarding Discount Sale Advertisements
At the first meeting of the year held on January 9, 2024, the Advertising Board made an important principle decision regarding discount sale advertisements by amending the "Guideline on Advertisements Containing Price Information and Discount Sale Advertisements and Commercial Practices" in order to prevent consumer victimization through misleading advertisements and practices that lead to unfair competition in the retail trade sector.
-
17.1.2024
The Authority to Decide on Trademark Cancellation Passed to the Turkish Patent And Trademark Office!
In Article 192/1 (a) of the Industrial Property Law ("IPL") published in the Official Gazette dated 10 January 2017 and numbered 29944, the enforcement of Article 26 of the Law titled "Cancellation Cases and Cancellation Request" was postponed until seven years later, and with the Provisional Article 4 of the IPL, it was stipulated that the authority to decide on the cancellation of trademarks would be directly exercised by the Intellectual and Industrial Rights Civil Courts until 10 January 2024.
-
16.1.2024
Egemenoğlu Hukuk Bürosu / Internship Application
We are pleased to announce the opening of internship applications at Egemenoğlu Hukuk Bürosu. Legal Internship Application Deadline: March 15 Summer Internship Application Deadline: March 29 Prospective candidates are requested to submit their CVs either through our website www.egemenoglu.av.tr or by sending them to info@egemenoglu.av.tr.
-
12.1.2024
Turkish Sustainability Reporting Standards (TSRS) And Scope Of Application Of TSRSs Were Puslished In The Official Gazette
In the Official Gazette dated 29.12.2023 and numbered 32414, the Public Oversight, Accounting and Auditing Standards Authority (POA) announced the Turkish Sustainability Reporting Standards and determined the principles to be followed in sustainability reports.
-
11.1.2024
Important Regulations Which Are Effective As Of 2024 And/ Or Has Been Made Subject To Time Extension
Laws No. 5746 and No. 6550 extended the regulation on higher depreciation (showing expenses related to depreciation) and calculation rates and periods for new machines acquired for use in R&D, innovation and design activities.
-
19.12.2023
The Principles and Rules to be Applied in Retail Trade have been reorganize
With the "Regulation Amending the Regulation on Principles and Rules to be Applied in Retail Trade" prepared by the Ministry of Commerce and published in the official gazette on 14.12.2023, significant changes were made in the principles and rules of retail trade.
-
18.11.2023
Warning From The Authority On Sending Verification Codes To Customers Via Sms During Shopping
The Personal Data Protection Authority ("Authority") published a Public Announcement ("Announcement") on the Processing of Personal Data by Sending a Verification Code via SMS to the Data Subjects during Shopping in Stores.
-
14.11.2023
Communiqué Amending the Communiqué on the Procedures and Principles Regarding the Application of Article 376 of the Turkish Commercial Code No. 6102 has been published
In order to regulate the procedures and principles to be followed in cases of loss of capital or insolvency of joint stock companies, limited liability companies and limited partnership companies with capital divided into shares within the scope of Article 376 of the Turkish Commercial Code No. 6102 (Law), the Communiqué on the Procedures and Principles Regarding the Application of Article 376 of the Turkish Commercial Code No. 6102 (Communiqué) was first published in the Official Gazette dated 15/09/2018 and numbered 30536, and with the Provisional Article 1 of this Communiqué until 01/01/2023, Within the scope of Article 376 of the Law, it was stated that foreign exchange losses arising from foreign currency denominated liabilities that have not yet been fulfilled may not be taken into account in the calculations regarding capital loss or insolvency.
-
3.11.2023
Law No. 7464 on the Leasing of Houses For Tourism Purposes And Amendment To Certain Laws Has Been Published
Published in the Official Gazette dated 2.11.2023 and numbered 32357 and published in the Official Gazette dated 2.11.2023 and numbered 32357, the Law on the Leasing of Houses for Tourism Purposes and Amendments to Certain Laws (No: 7464) aims to determine the procedures and principles regarding the leasing of houses to real and legal persons for tourism purposes.
-
28.10.2023
Partial Payment Period In Pension: Regulation On Partial Payment In The Private Pension System Has Been Published
With the amendment made to the Private Pension Savings and Investment System Law on 19.01.2022, a regulation was introduced stipulating that the participant can be partially paid up to fifty percent of the accumulation amount in his account, excluding the amounts in the State contribution account, without leaving the system, in cases and conditions determined by the Insurance and Private Pension Regulation and Supervision Agency. In this case, payments can also be made from the amount in the State contribution account, not exceeding twenty-five percent of the partial payment amount and the principles and procedures regarding the transactions to be carried out within this scope, including the practices regarding the State contribution, will be determined by the Institution with the appropriate opinion of the Ministry and with the amendment dated 19.01.2022, the relevant regulation is included in the Individual Pension Savings and Investment System Law.
-
9.9.2023
Focus On Digital And Green Transformation: Türkiye's Medium - Term Program Published.
The Medium-Term Program (2024-2026), prepared by the Ministry of Treasury and Finance and the Presidency of Strategy and Budget, was approved and published in Official Gazette No. 32301 dated September 6th, 2023.