The Effect Of Paid Military Service On The Employment Contract 03 September 2018
The provisional article added to the Military Law Act No.1111 about “Paid Military Service” with “The Law Concerning Amendments in the Military Law Act No.7146 and Other Laws and in the Statutory Decree No. 663” published on the Official Gazette No.30498 dated August 3, 2018 claimed its place in the business world’s agenda
According to the customized regulation; citizens born before January 1, 1994 (inclusive) who will apply for military service by paying 15,000 TRY to the military branch offices(or representations in foreign countries) within 3 months from 3 August 2018 providing that they complete 21 days of basic military training will be considered to have performed military service. It is understood that this regulation is different and special than the previous regulations concerning paid military service. Likewise, it is emphasized that those who provided the relevant conditions and those who participated in the compulsory military training should be granted "unpaid leave of absence" leave during this period. What brings the regulation in the terms of Labor Law and the things that people has been curious about are as follows:
1) Within The Scope Of The New Regulation, The Employee Benefitting From The Paid Military Service Will Be Granted “Unpaid Leave Of Absence” During The 21-Day Basic Military Training.
The regulation on “unpaid military service” which entered into force on 3 August 2018 with Act No.7146 requires the payment of a certain price right along with participation to a basic military training for 21 days. In this respect it is different from the previous regulations as with it is also special for the suspension of the business relationship during the relevant training period. It is clearly stated in the article that the employee who benefited from the unpaid military service will be considered "unpaid leave of absence” during the 21-day compulsory basic military training period.1 With this special arrangement by the legislator, it is necessary to make the deduction that the aimed result is the continuing of the employment contracts of the employees who will benefit from the unpaid military service. Therefore, in spite of the application for unpaid military service under the provisions of Provisional Article 55 of the Military Law No. 1111 requires to attend compulsory military training, there is no necessity for the employee to leave his job.
It is sufficient that the written notice to the employer clearly indicates that the employee is taking his unpaid leave of absence for the participation of compulsory basic military training within the scope of the unpaid military service with the addition of the certificate obtained from the military service branch. Upon this notification of the employee, the employer must notify the SSI of the "unpaid leave" not "severance".
2) Is The Employee Who Leave The Job In Order To Perform The Unpaid Military Service Entitled To Severance Pay?
According to Article 14 of the Labor Law No. 1475 which is still in force in accordance with Article 120 of the Labor Law No. 4857, the employee who has to leave his job in order to perform his active military service and whose total duration of work is at least 1 year in the establishment is eligible to claim severance pay. The "active military service" mentioned here is a citizen's duty that every Turkish male citizen who turned 20 years old has to fulfill. The employee who has to leave his job is entitled to severance pay if he has completed at least one year of working time due to the absence of an arrangement to suspend the employment contract during the period in which he fulfills this military task.
On the other hand, in the provisional article added to the Military Law by Law No. 7146, employees who will enter into the unpaid military service have been specially designated as “unpaid leave of absence” in the 21-day compulsory military training period.2 Consequently, even there may be many opinions and criticisms on the subject, we have the opinion that the employee who applies for a military service under the new regulation and who is not confronted with the risk of becoming unemployed because his employment contract will be suspended during compulsory military training period will not be entitled to severance pay even if he leaves his job for this reason.
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1See provisional article 55/4: “…During the 21-day basic military training, the ones benefiting from the paid military service will be granted unpaid leave of absence by the workplaces, institutions and organizations that they work for.”
2The closest arrangement to the new conditions to the unpaid military service was made on 1981 According to this, the labourer who provided the age requirement had to participate in the temporary military training and also had to pay the determined financial amount. However; there was no regulation that contained an indication that the worker would be considered to be on leave during the mandatory military training period. For this reason, it was accepted that the labourers who had to leave their job were entitled to severance pay (See “..the short-term military obligation replaces active military service too and a labourer who terminates his employment contract in order to perform his short-term military service is entitled to severance pay.” Court of Cassation 9.HD, T.09.06.1983, E.3488, K.5183). It is possible to say that the employee who leaves his work for this reason is not eligible to severance pay due to the regulation in the provisional article entered into force on August 3, 2018 which clearly indicates that the employee who participated in the compulsory education is considered on unpaid leave.
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