As we stated in our publication dated 16 March 2020, the Covid-19 (Coronavirus) pandemic indicates that it is one of the most important projections on the employment relations between employer and employee. Under current circumstances; many employers have been carrying on or will carry on remote working (homeworking) in regard to their white-collar employees either for all of them or alternately until a further notice is made. The current status of the pandemic and the applicable solution methods particularly in the scope of employment relations in terms of the uncertainty of the pandemic’s spreading speed and the precautions taken by the government are examined in this publication.
1. The Solution Methods That Could Be Applied in Terms of Continuation of Employment Relation
1.1. Remote Work
As the first practice recommended by the experts in order to prevent the rapid spread of the pandemic is social distancing; it is possible to switch white-collar employees not having a direct physical contribution to the production activities carried out in the workplace to a remote working model. As it is regulated under the legislation, remote working is the employment relation established in written form and based on the principle in which an employee performs his/her work outside of the workplace or at home by carrying it out via technological communication devices.
It is our first recommendation to make an announcement at the workplace regarding the transition to remote working, specifying the period and the way of working and then based on this announcement, to receive written consent of the employees and to keep these documents in the personal files of the employees.
Since the work-related accidents that employees might have during performing their duties at home are also evaluated as work accidents, it is crucially important for employers to inform employees on this issue. In regard to the employers preferring the remote working model, it is necessary to inform the employees in terms of occupational health and safety (OHS) obligations and to obtain their written consents regarding such informings.
1.2. Paid Annual Leave Practice
One of the methods that could be applied in this period is having the employees who are entitled to annual leave (as it is known, the employees having one year seniority at workplace are entitled to annual leave) use annual leave. The employer, carries the authority of deciding when the employees may use their leave in a year, however, this right of the employer must be used in accordance with the principle of good faith. It will be sufficient for the employers to notify the employee in written form regarding the dates that annual leave will be used.
1.3. Other Methods Regarding Paid Leave
Although the concept of administrative leave is intended for public sector employees, in practice, private sector employers are able to have their employees take leave without deducting the days from the annual paid leave days and their wages. In such practice, employers should notify their employees via a written form.
1.4. Collective Leave Practice
Pursuant to Article 10 of the Regulation Regarding Annual Leave, the employer is able to implement collective leave in the workplace covering all or part of the employees, between the beginning of April and the end of October. Therefore, it is possible to use this method as of April. In case of annual leave, the board in charge with leave established by the employer arranges and announces the leave schedules (by considering the leave period regulated under Labour Law numbered 4857 and employee’s road permit demands, in a manner that employees that will have collective leave shall use their leaves at the same time) and stating the ending dates of the leave of each employee.
1.5. Unpaid Leave Practice
Within the scope of Labour Law numbered 4857, employees who may use unpaid leave are (i) female employees, for the period of six months starting from the ending date of maternity leave and one of the spouses adopting a child below three years old; (ii) employee proving that he/she will use his/her annual leave outside the location of the workplace (maximum four days unpaid road permit). However, apart from these two cases, if the parties of the employment agreement reach a mutual written agreement, it is also possible to suspend the employment agreement with the unpaid leave practice. The crucial point here is that the employer shall not resolve to unpaid leave on his/her own. Where the employee is forced to use his/her unpaid leave without his/her own permission, it is evaluated as the termination of the employment agreement within the scope of the Supreme Court precedents. In case the consent of employees is not received, it is possible to encounter with re-employment lawsuit and as a result, the risk of paying the amount corresponding to employee’s 8-12 months of wage. In order to avoid this risk, it is necessary to make the unpaid leave offer to each employee and obtain written consent from them regarding the issue of unpaid leave in six business days. In case the employees do not share their consent regarding unpaid leave, other methods such as annual leave, collective leave or remote working could be evaluated.
1.6. Short-Term Working Allowance Practice
Another method that could be practised in the workplace is the short-term working and short-term working allowance. Briefly, short-term working can be described as reduction of working time or full shutdown of the workplace (where weekly working hours are temporarily reduced by at least a third or if the workplace is shut down completely or partially for at least four weeks without requiring continuity) in case of the existence of general economic crisis, sectoral and regional crisis and compelling reasons. In this practice, employees are provided with income support for the period of non-working. Such period cannot exceed three months however, it can be extended up to six months by a presidential decision.
During the short-term working practice, short-term working allowance paid to the employees and general health insurance premiums of the employees are covered. In order to implement short-time working practice in the workplace, the employer must apply to the affiliated Turkish Employment Agency (İŞKUR) by explaining the reasons of such application. If the application is approved by İŞKUR, this method can be implemented.
There are some certain requirements in regard to employees in terms of short-term working practice. Accordingly, in order to be entitled to short-time working allowance, it is necessary that the employee must be entitled to unemployment benefit, namely, have paid at least 450 days of unemployment insurance premium in the last three years.
We also would like to state that it was declared by the President Recep Tayyip Erdoğan, in scope of his statements dated 18 March 2020 that the short-time working practice will be activated and the administrative processes will be simplified and fastened for the ones who are willing to use it.
1.7. Compensatory Work
Pursuant to Article 64 of Labour Law numbered 4857, it is regulated that the employer has the right of having the employees carry out compensatory work for the off-days in the last two months when the following circumstances occur separately: (i) reducing the working hours due to compelling reasons; (ii) closure of the workplace before or after the national or general holidays; (ii) carrying out relatively less work then the regular workdays; (iv) to be granted leave of absence upon the request of the related employee.
In this scope, due to the Coronavirus pandemic, in case that compensatory work is carried out in terms of the off-days, these working hours shall not be considered as extra work. Such compensatory works cannot exceed the maximum legal limit on the working hours regulated per day (11 hours), and also cannot be more than three hours a day. Moreover, compensatory work cannot be performed during the holidays.
We also would like to state that it was declared by the president Recep Tayyip Erdoğan in scope of the action plan dated 18 March 2020 that the two-month period starting from the condition requiring compensatory work, in which the compensatory work regulated under Labour Law numbered 4857 must be carried out will also increase to four months.
2. Evaluations Regarding Terminating Employment Agreement
2.1. Termination of Employment Agreement Due to Compelling Reasons
As per the article 25/3 of the Labour Law Numbered 4857, in case that a compelling reason (force majeure) prevents the employee from working for more than a week, it is regulated that the employer could terminate the employment agreement with valid reason after one week. In terms of this provision, the crucial point in practice regarding this article that the compelling reason should not raise in regard to the workplace but in the employee’s own side or around his/her side. In this context, as per the doctrine and the relevant Supreme Court decrees, situations such as the cessation of transportation due to natural events such as flood, snow, earthquake, prohibition of leaving the region due to pandemic illness, curfew, quarantine are considered as compelling reasons within the scope of the termination of the employment agreement by the employer.
In the current situation, since a formal quarantine resolution has not yet been resolved and the closure of the workplace is within the scope of the measures applied at the workplaces for certain sectors by the government, the legality and applicability of the termination of the employment agreement by the employer is still ambiguous.
It should be noted that, including also above-mentioned sort of terminations, in any case, the severance pay and additionally half of the daily wage within the waiting period up to a week shall be paid to the employee. In this case, the employer is not obliged to wait for the notice period or make any notice pay to the employee. Finally, we would like to state that, although it is regulated under the relevant articles that employment agreement is suspended during the one-week period, the general view is to wait for a reasonable time, as a result of the principle of interpretation in favour of the employee since President Recep Tayyip Erdoğan referred a three-week period on his statement dated 18 March 2020, in practice, it would be appropriate to wait three weeks before termination.
2.2. Termination with Valid Reason
On the condition that termination of the employment agreement on valid ground is considered, whereas the reasons such as business necessities, financial difficulties and badly affected sector by the current pandemic could be raised, due to the principle of the ultimate remedy on termination, the court will pay regard and take into consideration that whether a positive outcome cannot be reached although all the necessary precautions are taken or not and that the employment relationship between the employee and the employer should be continued uninterruptedly, in a possible conflict.
On such occasion, the following and above-mentioned practices would validate the termination of the employment agreement; remote working, offering different positions to the employees in the workplace, annual paid leave, offering unpaid leave or applying for short-term working allowance. It should be noted that even in this case and in any case, there is a risk of encountering a re-employment lawsuit and ultimately a risk of 8-12 wages.
MORAL & PARTNERS
Aslı Pamukkale, Partner
Özgür Güner, Managing Associate
Hande Solak, Associate
Burak Batı, Trainee Lawyer