Info Note Regarding Limitation On Termination Of Employees, Unpaid Leave Right And Developments In Short-Time Working
Within the scope of this info note, certain significant amendments on labor legislation made with the Law on Decrease of Effects of New Coronavirus (Covid-19) Epidemic on Economic and Social Life and Law on Amendment of Certain Laws (“Law”) numbered 7244 that is accepted on 16.04.2020 are indicated.
Please note that a lot of legislation is amended within the scope of the Law; however, we have only indicated the significant amendments in respect of labor legislation.
A. LIMITATION ON TERMINATION AND UNPAID LEAVE
Within the scope of the Law, Temporary Article 10 is included in the Labor Law numbered 4857 and provisions related to temporary employment assurance are regulated.
“TEMPORARY ARTICLE 10- Regardless of the fact whether they are regulated under this Law, all kinds of employment or service agreements cannot be terminated by the employer, except for circumstances not in compliance with ethics and goodwill and similar reasons, which are regulated under sub-paragraph (II) of the first paragraph of article 25 and relevant provisions of other laws, for a period of 3 months as of the enforcement date of this article.
The employer may make the employee use unpaid leave partially or completely, provided that it shall not exceed 3 months as of the enforcement date of this article. Using unpaid leave under the scope of this article does not entitle the employee to terminate the agreement with just reason.
The employer or employer representative that terminates the employment agreement in contradiction to the provisions of this article will be subject to administrative fine amounting to monthly gross minimum wage applicable on the date of the relevant act for each employee.
The President of Turkey is entitled to extend the periods of 3 months stated under sub-paragraphs 1 and 2 up to 6 months.”
B. AMENDMENT ON SHORT-TIME WORKING
With the Law, Temporary Articles 24 and 25 are included in Unemployment Insurance Law numbered 4447 and certain significant amendments related to short-time working are regulated. It is regulated that Temporary Article 25 has entered into force on its date of publication in order to be effective as of 29.02.2020. Temporary Article 24 has entered into force as of its publication date.
The relevant regulation is stated in detail below.
“TEMPORARY ARTICLE 24- A salary support in cash in the amount of 39.24 Turkish Liras per day is paid from the Fund to the employees, who are working under employment agreements but put on unpaid leave by the employer as per temporary article 10 of the Law numbered 4857 and who cannot benefit from short-time working allowance on the enforcement date of this article, and employees, whose employment agreements are terminated within the scope of article 51 after 15/3/2020 and who cannot benefit from unemployment allowance as per other provisions of this Law, provided that they are not receiving old-age pension from any social security institution and that the period, in which termination cannot be performed, set out in temporary article 10 of the Law numbered 4857 is not exceeded, for the duration of unpaid leave or unemployment within such period. No deductions can be made on the payments, except for stamp duty.
In the event it is determined that the employee, who has taken unpaid leave and is benefiting from salary support in cash within the scope of paragraph 1, is actually being employed, an administrative fine amounting to monthly gross minimum wage on the date of performance of the act that is determined in accordance with article 39 of the Law numbered 4857 will be applied separately for each employee employed as such and for each month of employment by the provincial directorates of labor and employment agency and the paid salary support in cash is collected from the employer, along with the legal interest to accrue as of the payment date.
Among the persons who benefit from salary support in cash within the scope of this article, persons that are excluded from the scope of persons insured under general health insurance or dependants of such persons pursuant to the Law numbered 5510 are considered as persons insured under general health insurance within the scope of sub-paragraph (g) of paragraph 1 of article 60 of the same Law and their premiums related to general health insurance are covered by the Fund.
The ministry is authorized to determine the principles and procedures for payment related to salary support in cash and to remove the hesitations that may arise in respect of implementation of this article.”
“TEMPORARY ARTICLE 25- Payment related to short-time working is performed in accordance with the declarations of the employers, without waiting for the completion of the determination of suitability, in respect of the short-time working applications due to the reason of force majeure that are made by the employers due to the new coronavirus (Covid-19). Overpayments and improper payments made due to the provision of wrongful information and documents by the employer are collected from the employer along with their legal interest.”
In addition to the above mentioned, “except for determinations of suitability” expression is added to the last sentence of paragraph 2 of Temporary Article 23 of Unemployment Insurance Law numbered 4447 and the relevant article is regulated as follows.
“TEMPORARY ARTICLE 23- In order to be applicable until 30/6/2020, in relation to the short-time working applications made with the reason of force majeure arising from the new coronavirus (Covid-19), the provision related to the meeting of entitlement conditions to unemployment insurance, except for termination of the service agreement that is stipulated for entitlement to short-time working allowance by the employee set out in paragraph 3 of additional article 2, shall be applied as payment of premiums for unemployment insurance and being worked subject to insurance for 450 days in the past 3 years in respect of the employees that are subject to employment agreement within the last 60 days prior to the commencement date of the short-time working. Employees who fail to meet those conditions will continue to benefit from short-time working allowance for the period remaining from the last unemployment allowance right ownership, provided that it does not exceed the short-time working period.
In order to benefit from short-time working within the scope of this article, the employer must not terminate employees, except for reasons set out in sub-paragraph II of the first paragraph of article 25 of Labor Law numbered 4857 during the term of the short-time working applied at the workplace. The applications made in respect of this article will be concluded in 60 days following the application date, except for determinations of suitability.
President of Turkey is authorized to extend the date of application to be made under this article until 31.12.2020 and to amend the number of days stated in the first paragraph above.”