Turkey

Terms of Termination Prohibition, Unilateral Unpaid Leave and Short-Time Working Allowance Extended in Wake of Ongoing COVID-19 Pandemic

Shortly after publication of Law No. 7252 on the Establishment of Digital Platforms Commission and Amendment of Certain Laws (“Law”) in the Official Gazette (No. 31199) dated 28 July 2020, two Presidential Decrees (No. 2810 and 2811) published in the Official Gazette (No. 31202) on 31 July 2020, extended the terms of the termination ban, unilateral unpaid leave and short-time working allowance for one month.

Following these developments, another Presidential Decree (No. 2915) published in the Official Gazette (No. 31230) on 31 August 2020, extended the term of short-time working allowance for two more months, to commence following the one month extension.

Lastly, with Presidential Decree No. 2930 published in the Official Gazette (No. 31234) on 4 September 2020, the terms regarding the termination ban and unilateral unpaid leave have also been extended for another 2 months, as of 17 September 2020.

Amendments regarding the termination ban and unilateral unpaid leave introduced by Law No. 7252 are (briefly) as follows:

• the President has been authorised to extend the terms of termination ban and unilateral unpaid leave until 30 June 2021, for no longer than three months per extension.
• the scope of exceptions of the termination ban has been expanded, and the following items have been regulated as exceptions to the termination ban:
  • expiry of the term in fixed-term employment or service agreements,
  • closure of the workplace for any reason and termination of the workplace’s activities,
  • termination of the work in service procurements and construction undertakings conducted in accordance with the relevant legislation.

Extension of the term of termination prohibition and unilateral unpaid leave

Presidential Decree No. 2930 published in the Official Gazette (No. 31234) on 4 September, 2020 extended the terms regarding the termination ban and unilateral unpaid leave for a further 2 months, until 17 November2020. In accordance with the above, termination of employment contracts by employers will be prohibited, however, employers will be able to impose unpaid leave, without the employee’s consent, until 17 November 2020. As per the amendments introduced by Law No. 7252, the President is expected to extend these terms.

Extension of the term of short-time working allowance

Presidential Decree No. 2810, published in the Official Gazette (No. 31202) on 31 July, provides that the term of granting short-time working allowance for workplaces, which applied for short-time working on the grounds of compelling reasons arising out of COVID-19 until 30 June 2020 (inclusive of this date) has been extended for one month until 1 September 2020. Later, Presidential Decree No. 31230, published in the official Gazette and dated 31 August 2020, extended this term for an additional two months. As of the date of this article, workplaces fulfilling the above-mentioned requirements are entitled to benefit from the short-time working allowance until 31 October 2020 (inclusive of this date).

For further information on this topic please contact Beril Yayla Sapan or Asena Aytuğ Keser at Gün + Partners by telephone (+90 212 354 00 00) or email (beril.yayla@gun.av.tr or asena.keser@gun.av.tr). The Gün + Partners website can be accessed at www.gun.av.tr.

With the first case announced on March 11^th, 2020, COVID-19 pandemic has started to show certain impacts on, among others, business life in Turkey. At the writing date of this article, Turkey is going through a normalization phase. Indeed, on May 28^th, the president announced that regular curfew imposed on weekends will be terminated, inter-provincial travel restrictions will be removed, and the age limit subject to be under continuous curfew will be lowered from 20 to 18, as of June 1^st. These conditions are to be re-evaluated, if the circumstances change.

Throughout the entire process from the announcement of the first case up to this normalization process recently entered in, several measures and restrictions were progressively brought into force to combat the negative results of the outbreak. Before the Ministry of Internal Affairs imposed a curfew on all citizens living in metropolitan cities for two whole days for the first time during the pandemic on April 10^th, a curfew had been put in place for the citizens under the age of 20, citizens over the age of 65, and citizens who have chronic illnesses. In parallel to the warnings as to staying at home to minimize the risk of transmission, private sector also implemented several measures, notably home-office practice.

For the workplaces that remained open during this process, the Ministry of Family, Labour, and Social Services published a guideline titled Guideline on Measures to Combat against New Coronavirus (COVID-19) Outbreak at Workplaces on March 20^th, 2020. Five days later, the Ministry published another guideline titled Guideline on Measures to be taken by Occupational Health and Safety Professionals at Workplaces in Scope of New Coronavirus Outbreak. The latter includes recommendations on measures to be taken for the proper use of service vehicles, appropriate arrangement of travels, entrances to & exits from workplaces, working environment, meetings and trainings, and the use of cafeterias and recreational areas. Both guidelines introduce general principles to be adopted at the workplaces in regard to hygiene, and highlight the importance of social distancing rules.

Recently, on May 26^th, 2020, Scientific Advisory Board also issued a comprehensive study named Guidance on Outbreak Management and Working Principles (“the Guidance”). This study aims to provide guidance for various sectors, consisting of workplaces at shopping centres; hair dressers and beauty parlours; shoe and bag sellers; grocery stores; buffets and canteens; food retailers including butchers, greengrocers, fishmongers, dried nut sellers; bookstores and stationery shops; clothing stores, haberdasheries, and variety stores; jewellery stores, bijouterie and watch sellers; toy stores; marketplaces; tailors, shoe repair stores and dry cleaners; commercial cab services, and taxi stands; minibuses; mines; construction sites; white good and furniture stores; cosmetic stores and perfumeries; gas stations; markets and supermarkets; carwashes; car services, repair shops, and tire sellers; car showrooms, and car renting shops; any businesses operating as offices and bureaus; real estate agencies and real estate consultancies; electronic and telecommunication stores; plumber’s shops. After the president announced in his statement of May 28^th that diners, restaurants, cafes, patisseries and similar workplaces offering food & beverage services would be reopened as of June 1^st, an updated version of the Guidance was published on May 30^th,. As well as the measures to be taken in these workplaces, those to be taken in personnel service vehicles were also introduced in this update.

The Guidance differs from the previous guidelines, as it specifically stipulates measures on sectoral basis, rather than providing general principles to be embraced at the workplaces. Some of the noteworthy measures that are promoted under the Guidance consist of abiding by social distancing principles, proper using of medical masks, complying with hygiene rules, all of which aim to minimize the transmission risk of COVID-19.

It must be noted that the General Directorate of Occupational Health and Safety, established under the body of the Ministry of Family, Labour and Social Services, also provided certain check lists and information sheets as to the measures to be taken for combating COVID-19 on sectoral basis. For further information, you may visit the web-site of the Ministry’s Information Platform for Combating COVID-19 at Workplaces, by clicking here.

All of the guidelines drawn by governmental authorities should be regarded as measures to be implemented at the workplaces at minimum level, and employers should ensure that they comply with the principles set out in these guidelines. Nonetheless, they should take additional protective measures to the possible extent, in regard to the activity field, number of employees, working environment or organizational structure. We would like to note that, with the normalization process where businesses start to re-operate, occupational health and safety inspectors are expected to conduct regular inspections in regard to supervision and audit of compliance with occupational health and safety obligations. Also, in the event where the provisions under the above-mentioned guidelines are violated, employers may be subject to administrative fine in scope of their occupational health and safety obligations, depending on the nature of their breach. In certain cases, even the operation of business may be interrupted at the workplace, partially or in full.

Adv. Beril Yayla Sapan
Adv. Asena Aytuğ Keser 

For further information on this topic please contact Beril Yayla Sapan or Asena Aytuğ Keser at Gün + Partners by telephone (+90 212 354 00 00) or email (beril.yayla@gun.av.tr or asena.keser@gun.av.tr). The Gün + Partners website can be accessed at www.gun.av.tr.

COVID-19 outbreak, which was announced to be a pandemic by the World Health Organization on 11 March 2020, the date on which the first case was encountered in Turkey, inevitably had certain impacts on the economic life. The measures taken to minimize these impacts had eventually forced labour law to be restructured according to the pandemic circumstances. In this respect, duration of compensatory working practice, which is stipulated under the Labour Act, has been increased.

Compensatory Working

As per Article 64 titled “Compensatory Working” of the Labour Act, in the events where i) the work stops for compulsory causes, ii) the workplace is closed before or after the national and general holidays, or iii) the following occurs for similar reasons;

• Normal working hours are significantly decreased at the workplace; or
• The workplace is closed completely; or
• The employee is granted leave on request;

the employer is entitled to impose compensatory working for the off periods within two months, and such work is not qualified as overtime working or working for extra hours.

However, with the Law No. 7226 on Amendment of Certain Laws (“the Amendment Law”), published in the repeated Official Gazette dated 26 March 2020 and numbered 31080, it has been set forth that the employer will be entitled to impose compensatory working within four months, whereas it was previously stipulated as two months. Furthermore, as per the Amendment Law, it has been provided that the President will be entitled to increase this term up to two times.

Also, it must be noted that, as per Article 64 of the Labour Law, compensatory working cannot be imposed on holidays, and cannot exceed three hours per day, on condition that it is not above the daily maximum working hours.

9^th Civil Chamber of the Court of Cassation has ruled that, with the decision dated 17.3.2008 and numbered 2007/27667 E. and 2008/5298 K., termination of an employee who abstained from compensatory working practice exceeding three hours per day, which was imposed on a Saturday at a workplace where Saturday is set to be a contractual holiday, is not qualified to be relying on a just or valid reason. Therefore, as per the Court of Cassation decision referred above, compensatory working cannot be imposed on Saturday for the employees who do not work on Saturdays.

Comment

To conclude, in scope of the measures taken to minimize the negative impacts of COVID-19 pandemic on economic life and business life, duration of the compensatory working practice has been increased from two months to four months. In this regard, the employers will be entitled to impose compensatory working for the off periods within four months, once the impacts of the current extraordinary circumstances on enterprises are reduced, and the activities return to their ordinary course. We would like to further note that, employee’s consent is not sought for implementing compensatory working.

Authors: Beril Yayla Sapan & Asena Aytuğ Keser

For further information on this topic please contact Beril Yayla Sapan or Asena Aytuğ Keser at Gün + Partners by telephone (+90 212 354 00 00) or email (beril.yayla@gun.av.tr or asena.keser@gun.av.tr). The Gün + Partners website can be accessed at www.gun.av.tr.

The Law on Minimizing the Impacts of New Coronavirus (COVID-19) Outbreak on Economic and Social Life and Amendment of Certain Laws numbered 7244 (the “Amendment Law”) has been published in the Official Gazette dated 17.04.2020 and numbered 31102, and entered into force.

The most significant amendments introduced to the (i) Turkish Labour Act, (ii) Act on Trade Unions and Collective Bargaining Agreements (iii) Unemployment Insurance Act, are as follows;

• Termination of employment contracts by employers is prohibited for three months as of 17.04.2020.
• The employers can impose unpaid leave without the employee’s consent during the prohibition period of three months.
• The terms regarding the authorization of the unions; conclusion of collective bargaining agreements; resolutions of disputes regarding collective bargaining; strikes and lock-outs are extended for three months.
• Short-time working allowance will be paid based on the employer’s statement, without waiting for the finalization of the eligibility check.

Amendments

• Termination of employment contracts, including those being subject to the Code of Obligations and other employment-related acts such as Press Labour Act, Maritime Labour Act, by the employers will be prohibited for three months as of the effective date of the Amendment Law. The only exception to this is the termination of employment based on just cause due to cases which are incompatible with moral, good will and similar circumstances.
• The President is entitled to extend the term of three months’ termination prohibition up to six months.
• In case of any termination of employment in breach of the above mentioned provision, the employer/employer representative will be subject to an administrative fine at the amount of monthly gross minimum wage for each employee terminated.
• Employers will be entitled to impose unpaid leave, partially or in full, on the employees during termination prohibition period. The employee cannot terminate the employment contract based on just cause due to the implementation of unpaid leave.
• Up until the end of the termination prohibition period at the latest, a monetary support of TRY 39,24 will be provided from the Unemployment Insurance Fund, for each of the unemployed days or days that are spent on unpaid leave, provided that the employees are:
  • on unpaid leave in scope of the termination prohibition and unable to benefit from the short-time working allowance; or
  • dismissed after 15 March 2020 on grounds that are set forth under Article 51 of the Unemployment Insurance Act and unable to benefit from unemployment allowance; and
  • Not benefitting from old age pension.
• If the employers continue to actively employ the employees who are put on unpaid leave and therefore, benefit from the monetary support, they will be subject to an administrative fine at the amount of monthly gross minimum wage, separately per employee who has been employed in that way and per month they have been employed. In such case, the monetary support will be collected back from the employer with the legal interest to be accrued as of the payment date.
• The terms regarding the authorization of the unions; conclusion of collective bargaining agreements; resolutions of disputes regarding collective bargaining; strikes and lock-outs are extended for three months as of the effective date of the Amendment Law. The President is entitled to extend this term of three months up to six months.
• For applications filed on grounds of compelling reasons caused by COVID-19, short-time working allowance will be paid based on the employer’s statement, without waiting for completion of the eligibility check. If the allowance is granted based on the false information or documents provided by the employer, the amount paid to the employees will be collected back from the employer with the legal interest to be accrued as of the payment date.

For further information on this topic please contact Beril Yayla Sapan or Asena Aytuğ Keser at Gün + Partners by telephone (+90 212 354 00 00) or email (beril.yayla@gun.av.tr or asena.keser@gun.av.tr). The Gün + Partners website can be accessed at www.gun.av.tr.