START OF THE EMPLOYMENT RELATIONSHIP
Who can work in Turkey?
Turkish nationals who have attained a certain age and foreigners holding a valid work permit can work in Turkey.
It is forbidden to employ minors (under Turkish law, the term minor is defined as a youth under eighteen years of age) who have not attained the age of fifteen. However, minors who are fourteen years old and have completed their primary education may be employed in light work provided that the work shall not cause any hindrance to their physical, intellectual or moral development and to the education of those who still attend school.
The recruitment of a minor and young employees, and the work in which they can be employed shall be specified taking into consideration the safety and health issues; their physical, intellectual and psychological development, and their personal aptitudes and skills. The work conducted by a minor shall not prevent him/her from going to school or continuing his/her vocational training, or following up his/her lessons on a regular basis (Article 71).
What are the main sorts of labour contract that exist in Turkey? What are the main features of each of them?
Turkish Labour Law No.4857 (“Labour Law”, dated 22 May 2003; published in the Official Gazette No.25134 dated 10 June 2003) provides for different types of employment contracts evaluated on the basis of different criteria. The most important and main differences are whether the employment contract is for a definite or an indefinite term and whether it has been entered into on a full time or part time basis.
Other than these, there are contracts for different types of employment such as on-call work, trial period work, team work, seasonal work, telecommute work (i.e. work where the employee works from his/her own house; e.g. home office), etc. However taking into consideration the fact that these different types of work should be subject to employment either with a definite term or an indefinite term and on a full time or part time basis, this survey deals only with respect to the following differences:
Employment contracts for a definite term or an indefinite term
Under Turkish law, employment contracts with an indefinite term are common and those with a definite term are the exception. Articles 11 and 12 of the Turkish Labour Law regulate this issue. In accordance with these articles, a contract shall be considered to have been entered into for an indefinite term in the event that it is not determined when the work relationship (in other words the employment contract) will terminate.
In cases where certain objective conditions exist, the employment contract could be for a definite term, in writing. The necessary objective conditions are as follows:
• The work which is the subject matter of the contract has a definite term,
• The subject of the contract consists of the conclusion of a certain work, or
• The occurrence of a certain event.
In other words, it is not possible to form a definite term contract by mutual agreement without the existence of the abovementioned objective conditions. Since this rule was introduced to protect the employee, it is indeed strict in terms of the existence of the objective conditions.
This condition also applies to the renewal of the contract. An employment contract may be renewed consecutively (in continuous succession) on the same basis, only if it has the objective conditions or there exists a sound justification. Otherwise, the contract shall be deemed to run for an indefinite term as of the beginning of the contract. In other words in the absence of the objective conditions or sound justification, the definite term contract turns into an indefinite term contract upon conclusion of the definite term contract for the second time with the same conditions. However, consecutive employment contracts on the basis of sound justification shall remain as a definite term contract.
Part-time and full-time employment contracts
This is another difference merely based on working hours. In accordance with Article 13 of Labour Law, a part-time employment contract shall mean a contract when the statutory weekly work period of an employee is determined to be considerably shorter in comparison with a peer employed under a full-time employment contract. For example, in a work place where the normal weekly working hours of a full-time employee is 45 hours, working hours of a part-time employee shall be less than 30 hours at the most.
Since the nature of the criteria differs from each other, having a full-time or part-time contract does not affect the validity of having a definite or an indefinite term contract. An employee may have a contract which is both part-time and for a definite term or part-time and for an indefinite term. Weekly working hours do not have any relationship with the duration of the validity of the contract. So, a part-time contract might still be for an indefinite term as a result of which, the employee would have the protection and rights under the job security provisions.
Salaries and divisible monetary benefits of a part-time employee shall be paid pro rata according to the period worked in comparison with the period worked by the full-time peers. However, in cases of a non-divisible right, there will not be any difference between the employees working under two different types of contract.
Whatever the type of the contract, the employer has the obligation to treat all of the employees equally. Article 5 of the Labour Law regulates the principle of equal treatment according to which unless there are justified grounds, the employer cannot treat the part-time employee differently than the full-time employee and the employee working for definite term differently than the employee working for indefinite term.
What information should employees be given in Turkey?
Under Turkish Law, employment contracts are not required to be entered into in a specific form, unless the contrary is specified in the Law. However, those with the duration of at least 1 year shall be concluded in writing. But in cases where no written contract is concluded, at the latest within two months, the employer is obliged to deliver to the employee a written document indicating the general and special conditions of the work, daily or weekly amount of working hours, the basic salary and the salary supplements, if any, the period of salary payment, the term of the contract (if its term is definite or not) and the provisions governing termination (Article 8).
Additionally, the employer is obliged to take any measures and keep all available tools and equipment as may be required to ensure the protection of occupational health and safety at their workplaces. The employee is, in turn, obliged to comply with all the measures taken in this respect. Employers are also obliged to check whether or not the occupational health and safety measures are being complied with at the work place, and to inform the employees of the occupational risks that they might face with, the measures to be taken as well as their legal rights and obligations and to provide them with the necessary occupational health and safety training (Article 77).
Furthermore, in some cases, where the work itself requires it to do so, the employer is obliged to inform the employee of the nature of the work and/or to provide for vocational training for the employee.
DURING THE EMPLOYMENT RELATIONSHIP
What are the main employment rights in Turkey?
• Right to (demand) salary,
• Right to a rest period,
• Right to paid annual leave,
• Right to prohibition on forced labour,
• Right to protection of personal rights,
• Right to protection and/or custody of the employee where there exists cases of harassment, abuse, mobbing, etc.,
• Right to enjoy all human rights,
• Right to minimum living allowance,
• Right to health and safety protection, and
• Right to claim social and monetary rights such as premium, bonus (under the discretion of the employer).
What are the maximum permitted daily, weekly, monthly and annual working hours?
Under Turkish Law, the working hours are determined on a weekly basis.
The weekly working hours shall be a maximum 45 hours (Article 41) which could be equally distributed among the working days of the week, unless otherwise determined by the parties (Article 63). Mainly the Law regulates the upper limits and leaves the decision making to the discretion of the employer. While distributing the weekly 45 hours, the employer should comply with the upper limit of allowing the employee to have an uninterrupted rest of at least 24 hours within 7 days (Article 46) and not exceeding 11 hours in any day (Article 63). As a result, the daily working hours can be calculated by dividing 45 (hours) by the number of determined working days in a week.
The most common working arrangement can be exemplified as having five working days in a week (5 days x 9 hours), with two days per week as holidays and a break of 1 hour per working day; or having six working days in a week (5 days x 8 hours + 1 day x 5 hours), with one and half days per week as holidays and a break of 1 hour per working day of 8 hours.
Any work, other than work where the principle of offsetting of hours of work is applied, exceeding the weekly forty-five hours shall be deemed as overtime work.
The employer is obliged to either pay an overtime fee that will be calculated by adding fifty per cent of a standard hour of work for each hour that is worked as over time or to give free time of one hour and thirty minutes for each hour of overtime if the employee chooses this option instead of receiving increased salaries.
In the event that the weekly working hours is determined to be less than forty-five hours in the employment contract, any work exceeding the average weekly hours of work, up to forty-five hours shall be deemed as working extra hours. In this case, the employer is obliged to either pay an overtime pay to be calculated by adding twenty-five per cent of a standard hour of work for each hour that is worked as extra hours; or at the discretion of the employee, to give free time of one hour and fifteen minutes for each hour of overtime. However, there exists an upper limit of 270 hours per annum for overtime work as well as a requirement to obtain the consent of the employee. Unfortunately, as this rule is commonly violated by the employers, with its precedents the Court of Appeals tries to protect the rights of the employees (Article 41).
By way of summary, the ideal working hours should be 11 hours maximum per day, after deducting the rest period.
The law does not specifically determine monthly working hours. However the above mentioned rules shall be taken as a basis and the monthly working hours shall be determined provided that they remain within the borders of the above mentioned rules and equity. Additionally, it should be noted that the abovementioned rules are set aside in cases where an off-set period exists at the work place. In cases where the principle of offsetting of hours of work is applied, any work exceeding a total of forty-five hours in certain weeks shall not be considered overtime, provided that the average weekly working hours of the employee do not exceed the standard weekly hours of work.
Is there any minimum number of hours required?
Under Turkish Law, there exists no minimum number of hours required.
What is the minimum holiday entitlement?
Employees, who have been working in the same work place for at least one year as of their commencement of employment (including the trial period), shall be entitled to paid annual leave of at least:
• Fourteen (14) days, if s/he worked from one to five years (five inclusive),
• Twenty (20) days, if s/he worked more than five years but less than fifteen years,
• Twenty-six (26) days, if s/he worked fifteen years and over.
The duration of annual paid leave may be increased by collective labour agreements and contracts of employment. Such right to annual paid leave cannot be waived (Article 53).
The employer can determine when and how the employee shall enjoy his/her right to annual paid leave provided that the above mentioned annual leave periods divided into portions (of which there can be a maximum of three), each being less than 10 days.
The other types of leave that the employer has agreed throughout the course of the year such as absence or leave for rest or illness with or without pay cannot be deducted from the annual paid leave. As well as the national holiday, weekly rest days and public holidays shall also not be included in the calculation of the annual paid leave days (Article 56).
Can a contract be modified while still valid and in force? If so, under which circumstances?
Contracts can always be modified by mutual agreement of the parties. But such modification cannot be put into force retroactively. There are several ways for this modification.
The parties may mutually agree on modifying the contract and they may draft an additional contract to be attached to the first one; or by stating that the new contract shall be the continuation of the first one, they may re-draft and re-sign the contract.
The contract may be modified by way of implicit consent of the employee. Pursuant to Article 22 of the Law, in cases where there is an essential modification to the employment contract, its attachments or the working conditions based on the practices of the work place, the employer should inform the employee of this modification in writing and receive his/her consent on the same in writing within six days. In any case, if the employee does not give consent but also does not object to the modification, s/he will be deemed to have accepted the modification (the only exception to this is decreasing the salary of the employee which is subject to a statue of time limitation of 5 years). If s/he rejects the modification within 6 days, the employer shall be entitled to terminate the employment contract complying with his/her compensation obligations.
Are any particular employment relationships subject to special protection?
There is not any particular employment relationships which are protected, but there are provisions ensuring special protections especially for those who have disadvantages (minors, disabled persons or pregnant women) or for those sectors having disadvantages (mines, underground or under water work places, or heavy and dangerous work).
For example, in the mining sector, the maximum weekly working hours should be 36 hours (instead of 45), and other than some exceptional cases, no overtime work shall be offered to or forced upon the employees employed in the mining sector. Likewise, it is prohibited to employ minors and women of any age in mines and in areas of work to be conducted under-ground or under water, such as laying cables, building pipe-lines and tunnels. It is also prohibited to employ minors during night shifts of industrial work.
Are there any obligations to consult with a works council and/or to undertake collective bargaining?
Pursuant to the Law on Trade Unions and Collective Bargaining Agreements No.6356 (“Law No.6356”, dated 18 October 2012; published in the Official Gazette No.28460 dated 7 November 2012), collective bargaining agreements can only be brought into the agenda, in cases where a trade union has met the required conditions and received authority from the Ministry of Labour and Social Security. Other than this, although it has been stipulated that the employee is entitled to participate in management, this right is not obligatory for the employer.
END OF THE EMPLOYMENT RELATIONSHIP
There are different types of termination, all of which are regulated under Articles 17 to 26 of the Labour Law. In the event that the contract is not terminated in accordance with the provisions of this section of the Labour Law, the employee whose contract is terminated shall be entitled to file a lawsuit before the labour court. In this lawsuit, the obligation to prove that the termination is based on a justified reason or is made complying with the provisions, belongs to the employer. If the employer cannot prove such claim, he/she shall be obliged to allow the employee to re-commence working again and if not, to pay compensation. While terminating the contract, the employer should especially consider the following;
• Giving a written notification for the termination,
• Stating the reason(s) for the termination accurately and clearly, and
• Receiving the written defence of the employee against the claims regarding himself/herself.
When and how can an employer terminate an employment relationship?
For indefinite term contracts, there are two methods for a legal termination. Since the definite term contracts which have turned into indefinite term contracts are considered to be indefinite term contracts as of the beginning, the same also applies to these contracts in question.
The employer may terminate the contract by complying with the notification periods, providing permission to the employee to look for a new job and by paying the severance pay and complying with the abovementioned provisions. Alternatively, if the employer has one of the justified grounds listed under Article 25 to terminate the contract immediately, s/he may terminate the contract immediately without paying any compensation.
For definite term contracts, which have not turned into indefinite term contracts, the employer may terminate the contract by paying the entire monetary rights determined for the remaining period.
In any case where the employer terminates the employment contract based on Article 17; s/he is required to prove that the reasoning indicated in the written notification for termination is real and accurate. Otherwise the employee has the right to file a lawsuit for his/her re-employment.
When and how can an employee terminate an employment relationship?
Referring to the abovementioned explanations for indefinite term contracts, there exist two methods for a legal termination. Since the definite term contracts which have turned into indefinite term contracts are considered to be indefinite term contract as of the beginning, the same also applies to these contracts in question.
The employee may terminate the contract by complying with the notification periods and by accepting the fact that his/her severance pay shall be lost as well as the abovementioned provisions, or if the employee has one of those justified grounds listed under Article 24 to terminate the contract immediately, s/he may terminate the contract immediately without losing his/her rights to receive compensation.
For definite term contracts, which have not turned into indefinite term contracts, the employee may terminate the contract by paying the entire monetary rights and/or the penalty fee determined for the remaining period.
What are the economic consequences in each case?
If the employer terminates the contract based on justified grounds complying with the notification periods, then s/he will pay the severance pay, unpaid vacation pay or overtime and social right pay.
If the employer terminates the contract based on justified grounds but does not comply with the notification periods, then s/he will also pay compensation which is calculated depending on the seniority of the employee as well as the other payment items mentioned above.
If the employer terminates the contract pursuant to Article 25, s/he shall not be required to pay anything, but his right to claim his damages shall be reserved.
In cases where the employer did not comply with the rules stipulating the termination, then s/he is obliged to re-employ the employee provided that the employee files and wins a lawsuit in this respect; or if the employer refuses to re-employ the employee despite receiving the court’s decision, then s/he has to pay an extra compensation written in the court’s decision in addition to the other types of compensation mentioned above.
If the employee terminates the contract based on justified grounds and by complying with the notification periods, then s/he accepts that s/he loses his/her severance pay but the employer is still obliged to pay the unpaid vacation pay or overtime and social right pay.
If the employee terminates the contract based on justified grounds but does not comply with the notification periods, then in addition to losing his/her severance pay s/he will also pay compensation to the employer which is calculated depending on his/her seniority.
If the employee terminates the contract pursuant to Article 24, s/he shall not lose anything, the employer is required to pay all the types of compensation mentioned above and his/her right to claim further damages shall be reserved.
Are there any situations in which an employment relationship would terminate automatically and without the need for action by either party? If so, what are they?
In cases where the employment contract is for a definite term, it will automatically terminate upon the lapse of the duration of the contract.
Additionally if the employment contract is signed for conclusion of a certain work, the contract terminates automatically upon the conclusion of the work.
In the event that the work comes to an end due to reasons such as bankruptcy of the employer, the employment relationship will automatically terminate, provided that the right of employee to file a lawsuit for compensation of the sums due to him/her is reserved.
Lastly, an employment contract terminates automatically upon the death of the employee.