Employer-employee relations are at the forefront in the field of “labor law”, which is one of the branches of law that we are perhaps most unconsciously involved in in our daily lives. In our country, the rights of workers are mostly protected in the Labor Law; In this context, labor lawsuits are also arranged according to the structure that protects the worker.
In this law, which is arranged in favor of the worker, the worker; Treating workers equally, receiving wages, overtime wages, vacation pay, annual leave, leaving the job for just cause, severance pay, notice pay, occupational health and safety, obligation of the worker to be insured, material and moral compensation due to work accidents, break, milk leave and many rights such as reemployment have been granted. However, in order to benefit from these rights, it is necessary to be subject to the Labor Law first. “Sea and air transport works, agricultural and forestry works with less than 50 workers, all kinds of agricultural construction works within the family economy, members of a family and all their relatives up to this degree, including the third degree. Business relations established in workplaces where three people work in accordance with the definition of Article 2 of the Tradesmen and Craftsmen Law No.” İs not the scope of this law. Except for the listed ones, the provisions of this law are applied to all workplaces, regardless of their field of activity, to the employers, employer representatives and workers of these workplaces. Although it has been stated that the Labor Law will not be applied in these business areas listed in the law, the Labor Law still finds its application area with the exceptional provisions made in these areas.
WORK ARRANGEMENT
Business arrangement; Unless otherwise stated, it is a contract made without being subject to a special form, where one party (the worker) undertakes to work as a dependent and the other party (the employer) undertakes to pay wages. Exceptionally, employment contracts with a duration of 1 year or more must be in writing.
While employment contracts impose on the worker the duty of working, the duty of care, the duty of following the employer’s instructions, the duty of loyalty, the duty of non-compete; It imposes the employer’s obligation to pay wages, to act equally, and to protect the worker.
Employment Contracts Regarding Continuous-Discontinuous Work: According to the Labor Law, works that take a maximum of thirty working days in terms of their qualifications are discontinuous work, and works that last longer than that are permanent work.
- Fixed-Indefinite Term Employment Contracts: In a contract, if the parties have stipulated a clear expiry date or a period for the contract, such a service contract will be for a fixed term, if not, it will be an indefinite term employment contract. Fixed-term employment contracts are exceptional in business life and in the Labor Law.
- Probationary Employment Contract: It is the employment contracts that depend on whether the worker is productive in that job or not. They can terminate the contract at any time during the trial period. Although it is possible to increase it up to 4 months with collective agreements, the trial period can be maximum 2 months in employment agreements.
- Full-time/Part-Time Employment Contracts: If the normal weekly working time of the worker is determined significantly less than that of the full-time worker, a part-time service contract be a matter of. There is a full-time service contract if it is decided to work within or close to the legal working time. On-call work is included in part-time employment contracts.
Conditions of Termination of the Employment Contract:
Employment contracts are terminated in cases of termination or non-termination. Non-termination cases of termination; agreement of the parties, death, expiration of the contract.
The declaration of intent by one of the parties to the employment contract to the other party in order to terminate the contract basically constitutes the termination of the employment contract. If the employment contract is ended by termination, it is important whether the termination is justified or not. At the same time, there may be receivables such as severance pay and notice indemnity, depending on who is the party that terminates.
Before the termination of an indefinite-term employment contract, it must be notified to the other party. In the Labor Law, gradual periods have been determined for this notification. Although the employee has to comply with these periods, the employer is also given the opportunity to terminate the relationship without waiting for the notice period by paying the fee(Notice Pay) for the notice period in advance.
Labor Law art. 17: “Work Arrangements;
- For the worker whose job has lasted less than six months, two weeks after the notification is made to the other party,
- For the worker whose job has lasted from six months to one and a half years, four weeks after the notification is made to the other party,
- For the worker whose job has lasted from one and a half to three years, six weeks after the notification is made to the other party,
- For the worker whose job has lasted more than three years, the contract is deemed to be Terminated eight weeks after the notification.”
In case the parties terminate the contract by failing to comply with the notice period, the obligation to pay notice indemnity in the amount of the fee related to the notice period arises.
If the worker quits the job with justified reasons (Labour Law Art. 24) or is dismissed by the employer for similar justifiable reasons (Labor Law Art. 25), the contract may be terminated without waiting for the notice period. However, in order for the employee or employer to terminate the contract immediately based on situations that do not comply with the rules of morality and goodwill, it cannot be used after 6 working days have passed from the date the party to terminate the contract learned of such behavior of the other party, and in any case 1 year after the realization of the act.
In the event that the employer terminates the indefinite-term employment contract of the employee who cannot benefit from job security, the employee may request “bad faith compensation” in the amount of three times the notification period. Bad faith compensation is a completely independent compensation from notice compensation, and paying notice compensation does not remove the right to pay bad faith compensation.
Regardless of who terminates the contract, an employee who has been working in the same workplace for more than 1 year is entitled to severance pay if the employment contract is terminated for reasons listed in the law. The situations listed in the law for the employee to receive severance pay are as follows;
– Termination of the contract by the employer, except for reasons that do not comply with morality and goodwill,
– Termination of the contract by the worker based on one of the reasons for termination without waiting for the notice period,
– Termination of the contract by the worker in order to receive old age, retirement or invalidity pension or lump sum payment,
– If the woman voluntarily terminates the employment contract within one year from the date of her marriage,
– Termination of the employment contract due to the death of the employee.
Calculation of severance pay is based on the final salary. However, if the worker’s wage is increased within the last year, the wage basis for the compensation is calculated by dividing the wage received between the employee’s departure date and the date of the increase by the days worked in the same period.
EMPLOYMENT ASSURANCE
In order to prevent the arbitrary dismissal of workers, job security has been regulated in Article 18 of the Labor Law, and in the event that the employment contracts of the workers subject to the Labor Law are terminated with unjust and invalid terminations, the worker has been given the opportunity to file a reemployment lawsuit. In order for the employee to benefit from this opportunity; At least 30 workers must be working at the workplace, the worker must have been working at that employer’s workplace for at least 6 months, the employment contract must be for an indefinite period and the worker must not be in the position of the employer’s representative.
MEDIATION AS A CONDITION OF LITIGATION
With the latest amendments to the Law on Labor Courts, excluding cases pending as of 01.01.2018, the application to a mediator will now be considered as a condition of action in cases filed with the demand of employee or employer receivables and compensation based on individual or collective labor agreements and reemployment.
Severance pay, notice pay, bad faith compensation, unequal compensation, union compensation, mobbing compensation, wages, premiums, bonuses, overtime pay, annual leave pay, weekly holiday pay, national holiday and general holiday pay, which may be requested by the employee, and In case of similar labor claims, it is necessary to go to a mediator. Lawsuits for pecuniary or non-pecuniary damages arising from work accident or occupational disease, and cases of determination, objection and recourse related to them are not covered.
Although there are legal provisions regarding every situation in the Labor Law, it is very important that these provisions are interpreted and applied correctly in order not to lose your rights. For this reason, you should get support from a lawyer operating in the field of labor and labor law within the framework of a proxy relationship. You can contact our law firm to get legal support and opinion on these issues.
