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March 31, 2020

Paid And Unpaid Leave Applications Due To The Coronavirus

Employment Law, Coronavirus Pandemic
Reading Time: 4 minutes

I. PAID LEAVE APPLICATIONS DUE TO THE CORONAVIRUS

The employer may give the employees paid leave in the event of compulsory reasons., Since the annual paid leave is considered within the employer’s right to management according to the provisions of the Labor Code, the approval of the employee is not a necessity.

According to the Article 8 titled “Request and Issuance of Leave” of the Annual Paid Leave Regulation (“Regulation”) the employer is not bound by the employee’s annual leave use request, therefore employers can make employees take a paid leave within the limits of the good faith principles. Following the established Supreme Court decisions, determination of the annual leave time is evaluated within the scope of the employer’s right to management.

This matter is reflected in the decision dated 01.07.2008 and numbered 2007/21656 E., 2008/18647 K. of the 9th Civil Chamber of the Supreme Court.

 “However, since determining the time of annual leave is within the employer’s right to management, the employee cannot leave on his own. The absence of the employee to come to the workplace by stating that he uses his annual leave creates absenteeism unless he is deemed on leave from the employer.”

The period that the annual leave can be used during the year is determined by the employer who should use this right within the framework of good faith principles.

In its decision dated 28.01.2016 and numbered 2014/27000 E. 2016/2328 K. of the 9th Civil Chamber of the Supreme Court state that;

 “As stated in the Annual Paid Leave Regulation, determination of the time to use annual leave is within the scope of the employer’s right to management. It is clear that this right of the employer should be used within the framework of good faith rules. In other words, the right to rest of the employee, which has a constitutional basis, should be used in accordance with the necessities of the workplace and by the demands of the employee as much as possible. It should be accepted that the employer’s abuse of management right will not be protected against the law.”

With this decision, the obligation of the employer to perform their right within the principles of good faith is underlined.

However; per Article 56 of the Labor Code, “… leave periods can be used in sections which are not less than ten days, upon the agreement of the parties.” According to the provision, during the Coronavirus epidemic, the annual leave of the employee can be used for at least ten days by the mutual agreement of the employee and employer.

Koronavirüs etkisi sebebiyle, işverenlerin Yönetmelik’in “Toplu İzin” başlıklı 10. maddesinde yer alan “İşveren veya işveren vekili Nisan ayı başı ile Ekim ayı sonu arasındaki süre içinde, işçilerin tümünü veya bir kısmını kapsayan toplu izin uygulayabilir.” şeklindeki düzenleme doğrultusunda çalışanlara toplu izin kullandırması da değerlendirilebilecektir. The Article 10 of the Regulation titled “Collective Leave” suggest that “The employer or employer’s representative can apply collective leave covering all or some of the employees between the beginning of April and the end of October”. Due effects of coronavirus, the employers may evaluate the collective leave option in accordance with the aforesaid article. In addition, if there are employees who have not yet been entitled to annual leave during the period when collective annual leave will be used, depending on the initiative of the employer, these employees may also use annual leave.

Besides; it is possible to exclude a certain number of employees from the scope of collective leave for compulsory situations and this issue is regulated in Article 11 of the Regulation. According to the aforementioned article, “In the case of collective leave, the employer or employer’s representative can exclude a sufficient number of employees for compulsory situations such as protection of the workplace, maintenance, preparation, cleaning or security of the tools, equipment, supplies or machinery in the workplace. In this case, the annual leave of those employees is given before or after the collective leave period.”

As a result, it seems possible for employers to provide their employees with paid leave, either individually or collectively, due to the effects of the Coronavirus.

II. UNPAID LEAVE APPLICATIONS DUE TO THE CORONAVIRUS

Unpaid leave application means the suspension of the employment contract. The employee does not work during the period when the contract is suspended, and the employer does not pay wages. The employee not paid any wages during this period and no insurance premium is declared on his behalf.

If a regulation regarding unpaid leave has been made in the employment contract between the employee and the employer or the collective agreement signed at the workplace, the right to unpaid leave can be used following the relevant regulation. However, if there is no relevant regulation, unpaid leave is possible only through the mutual agreement of the parties.

It should be highlighted that employers cannot provide unilateral unpaid leave without the request of the employee. Following the Supreme Court decisions, sending the employee to unpaid leave without his request means unjust termination of the employment contract by the employer and also gives the employee the right to terminate the employment contract by just cause. In such a case, the worker is entitled to receive severance pay.

Following Article 22 of the Labor Code; if the employer informs the employee in writing that he wants the employee to take unpaid leave and the employee accepts this proposal in writing within six working days, the employment will be deemed suspended. If the employee does not accept this offer in writing, this change in working conditions will not be binding for the employee. Also, the employee who fulfils the employer’s suggestion to leave for unpaid leave without any objection is deemed to have consented to this. The burden of proof of the employee’s consent on unpaid leave belongs to the employer. It is important to note that the consent to be received from the employees must not involve any hesitation as the burden of proof regarding consents existence belongs to the employer.

Furthermore, unpaid leave should be for a “reasonable and temporary period” given nature thereof. Also, the employer needs to include the period of unpaid leave to his unpaid leave proposal for the employee to know the length of time that he will be deprived of income and to make a healthy assessment. On the other hand, it is considered that specification of the exact period is not necessary for situations where the employer cannot know exactly how long the situation that would require the employee to have unpaid leave would last.

If the employee works in another job during the unpaid leave period, the employer will have the right to terminate the employment contract immediately for just cause. The situation in question is considered to be a violation of the loyalty obligation of the employee and constitutes a just cause for the termination of the employer. However, in practice, in cases of unpaid leave for an indefinite period, the employers consent the employees to work at another workplace as an indication of goodwill.

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