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December 11, 2019

Employee Payments By Hand

Employment Law

I.     INTRODUCTION

First of all, please be informed that the payment of employees’ salaries, premiums, bonuses, indemnities and other receivables bears legal consequences on various fields of law. We kindly represent the consequences of issuing the related payments by hand (in person); which may cause both administrative sanctions against the employer and lack of finding proof of payment.

Please find our legal opinion concerning the legal risks of issuing employee payments by hand as per Turkish Law, within the following headlines.

  1. Introduction
  2. Employer’s Obligation on Issuing the Payment of Employees’ Salaries and Other Remunerations
  3. Administrative Sanctions of Issuing the Payment of Employees’ Salaries and Other Receivables by Hand as per Labor Law
  4. The Proof of Payment
  5. Conclusion

 II.    EMPLOYER’S OBLIGATION ON ISSUING THE PAYMENT OF EMPLOYEES’ SALARIES AND OTHER REMUNERATIONS

Article 32 of 4857 numbered Turkish Labor Law (“Labor Law”) on employee payments regulates that “all sorts of remuneration such as salary, premium and bonus shall, in principle, be paid in the workplace or via an exclusive bank account”. In other words, an employer shall issue the payments of an employee by hand in the workplace or through the employee’s salary account.

However, as per Article 10 of The Regulation Concerning Payments of Salary, Premium, Bonus and All Sorts of Remuneration Through Banks (“Regulation”), as of October 1st, 2009: Employers and third parties; (i) whom the provisions of the Labor Law apply in their workplaces and enterprises and (ii) who employ at least five employees, journalists or shipman throughout Turkey; are obliged to pay the net sum of the payments (remaining after deducting the legal stoppage) through intermediation of banks.

In workplaces apart from the mentioned above, remunerations may be paid in the workplace or via banks. In light of the supervision and protection of employee by the employer and as per good faith; in circumstances where an employee is not available to work nor can he be expected to report in the workplace, remunerations may be paid in the place of residence as well.

Should an employer have more than 5 (five) employees, the employer must issue the payments to employees’ salary accounts. Please be informed that, should the employer issue the payment of the salaries or other rights of any employee in full and yet by hand, the employer shall face administrative fines prescribed in Article 16 of the Regulation.

III.      ADMINISTRATIVE SANCTIONS OF ISSUING THE PAYMENT OF EMPLOYEES’ SALARIES AND OTHER RECEIVABLES BY HAND AS PER LABOR LAW

Article 16 of the Regulation states that although it is compulsory according to this Regulation; should the receivables of the employee; arising from the Labor Law, collective employment agreement or employment agreement; are not paid through banks, an administrative fine shall be imposed by the relevant unit of the Ministry of Labor and Social Security as per paragraph (a) of the first paragraph of Article 102 of Labor Law.

Pursuant to paragraph  (a) of Article 102 of Labor Law “as well as a third party, intentionally do not pay, within due time, or incompletely pay the salary set forth in Article 32 hereof as well as the salary of the employee established by this Law or the collective employment agreement or employment agreement, or do not pay or incompletely pay to the employee the minimum salary established by the commission set forth in Article 39 hereof, and do not deposit any salary, premium, bonus and any kind of claims of such nature to the specifically opened bank account even though they are obliged to, shall be subject to an administrative fine of one hundred and twenty-five Turkish Liras for each employee in this situation and for each month”. Therefore, in case the employer does not fulfill the obligation to pay salaries, premiums, bonuses and all such remunerations through the bank, the employer shall be faced with administrative fine. As it is mentioned in the above-mentioned article the administrative fine is stipulated as TRY-125.00 (OneHundredTwentyFiveTurkishLiras) for each employee in this situation and for each month. Please be informed that the relevant authorities may add appraisers’ commissions (which is 23.73% in 2019) to this amount.

 IV.       THE PROOF OF PAYMENT

While the burden of proof for the existence of the claim for remuneration is on the employee, accordingly with the constant practice of Court of Appeal, the burden of proof concerning the payment of any employee remuneration rests within the employer.

In workplaces where payment via banks is not necessary, the payment can be proven with pay slips prepared pursuant to Article 37 of the Labor Law along with employee signed salary rolls, receipts or certificates of release. According to the Article 37 of the Labor Act; employer, for the payments made in the workplace or via banks, is obliged to present a pay slip which shows the relevant calculations and include a signature or custom mark of the workplace to the employees. The afore-mentioned pay slip must contain the day of payment and the relevant period of payment respectively as well as all sorts of additions on the base pay such as overtime work, weekly vacation, usual vacation remuneration, and all sorts of offsettings such as tax stoppage, insurance premium, advance payment deduction, alimony and execution deductions.

Although it is sufficient in this regard to present the mentioned pay slips or documents carrying the signature of the employee, these payments cannot be proven by a witness statement. Nevertheless, in case the employer issues the payments of the employees’ through their salary accounts in banks, the lack of employee signature on the payroll would not correspond to non-payment. In such case, bank records shall be taken into account as payment certifications.

V.       CONCLUSION

In light of the above explained matters, should an employer have more that 5 (five) employees and also complies with all the conditions for the remuneration payments through intermediation of banks; the employer shall be subject to administrative fines.

In addition, in the event of a dispute arouse from non-payment, the proof of the pertinent payment shall be much easier since bank records shall be assumed as payment certifications.

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