LABOR LAW NEWSLETTER 2024/2

on July 29, 2024 by admin
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1.LEGISLATIVE AMENDMENTS

An Announcement Has Been Published by the General Directorate of Insurance Premiums of the Social Security Institution on the Extension of Force Majeure for Some Places Affected by Earthquakes in Kahramanmaraş!

With the announcement dated 30.04.2024 published by the Social Security Institution (“SSI”) General Directorate of Insurance Premiums (“Directorate”), it has been emphasized that the force majeure situation, which will end as of the end of 30.04.2024 in the provinces of Adıyaman, Hatay, Kahramanmaraş and Malatya and the districts of İslâhiye and Nurdağı in Gaziantep province, has been extended until 31.08.2024 and the last days have been postponed for some legislative obligations of the employers, especially the Social Insurance and General Health Insurance Law No. 5510 (“Law No. 5510”).

Therefore,

All kinds of information, documents and declarations required to be submitted in accordance with the Law No. 5510 shall be deemed to have been submitted within the legal period if the workplace records and documents are submitted to the Authority until 16.09.2023, including the date of 16.09.2024, and the Withholding and Premium Service Declarations/Monthly Premium and Service Declarations are submitted until 31.10.2024, including the date of 31.10.2024,
Current premium debts that have expired before 06.02.2023 will be postponed until 30.09.2024, including 30.09.2023; premium debts between January 2023 and July 2024 will be postponed until 28.02.2025, including 28.02.2025, without the delay penalty and delay increase specified in Article 89 of the Law No. 5510,

The current premium debts of those engaged in agricultural activities in sub-clause (4) of clause 4/I-b of the Law No. 5510 and those insured who work intermittently with a service contract in agricultural or forestry works within the scope of the additional Article 5 of the same law, whose payment period has expired before 06.02.2023, their premiums for the period of January-December 2023, their premiums for the months between January-June 2024 will be postponed until 28.02.2025, including the date of 28.02.2025, without applying the delay penalty and delay increase specified in Article 89 of the Law No. 5510,

The withholding and premium service declarations/monthly premium and service documents to be submitted between 06.02.2023- 26/8/2024 can be submitted until 31.10.2024, including 31.10.2024; the workplaces will benefit from incentives provided that the content premium debts are paid until 28.02.2025 and the legal payment overdue debts before 06.02.2023 are paid until 30.09.2024, including 30.09.2024,

If the overdue debts are restructured in accordance with various laws or deferred and installed in accordance with the Law on the Collection Procedure of Public Receivables No. 6183 and the employer, insured and right holders who have not entered into the condition of disrupting the restructuring/instalment transactions as of 06.02.2023 pay their instalments expiring between 06.02.2023- 31.08.2024 until 30.09.2024, they will be deemed to have been paid within the legal period,

The debts within the scope of the deferral will be deferred and divided into instalments without deferral interest for a maximum of 24 months, provided that the application is made until 28.02.2025, including 28.02.2025, and other conditions specified within the scope of the relevant legislation are met,

If the “SSI Notifications” part of the withholding and premium service declarations for the months between January 2023 and July 2024 for the employers who have an intermediary and responsibility contract with the members of the profession operating in the provinces listed in the announcement and the employers who have a workplace outside these provinces are submitted until 31 October 2024 and the premium debts to be accrued are paid until 28 February 2025, the said obligations will be deemed to have been fulfilled within the legal period,

The due date will be considered as 30.09.2024 for those whose debts within the scope of borrowing and repayment are between 06.02.2023- 30.09.2024,

Control examination dates of those who are subject to control examination and whose control examination dates are between 01.02.2023 – 30.09.2024 will be accepted as 30.09.2024,

The due date of the existing receivables that have not entered into the condition of disrupting the restructuring/instalment transactions as of 06.02.2023 from the corporate receivables arising from excessive or unnecessary payments and public damages and the receivables that will accrue until 31.08.2024 will be postponed until 30.09.02024, including 30.09.2024, without applying a delay increase in accordance with the legislation,

It will be possible for the employer, insured and right holders within the scope of the disaster in the provinces and districts listed in the announcement to make their applications within the scope of the Restructuring Law No. 7440 until 02.12.2024 and to pay the first instalment of the debts of these debtors until the end of the month following the application, and other instalments in the monthly periods following this instalment,

Since the force majeure situation in the provinces and districts listed in the announcement is extended until 31.08.2024, monthly premium and service documents/withholding and premium service declarations for August 2024 and beyond will be submitted within the legal period and the premiums of the said monthly premium and service documents/withholding and premium service declarations will also be paid within the legal period,

It has been announced by the Directorate. Thus, due to the extension of the force majeure situation for the regions under the impact of the earthquake, the payment dates have been postponed and various payment facilities have been introduced.

You can access the entire announcement via the relevant link .

Presidential Decree No. 8515 Published!

With the Presidential Decision dated 24 May 2024 and numbered 8515 published in the Official Gazette dated 25 May 2024 and numbered 32556, the instalment payment periods of those who restructured their debts to creditor administrations in accordance with certain articles of the Law on the Restructuring of Some Receivables numbered 7256 were determined again.

Thus, the payment period of the first instalments of the employers and insured in Adıyaman, Hatay, Kahramanmaraş, Malatya provinces and Islahiye and Nurdağı districts of Gaziantep province, structured in accordance with the Laws No. 7256 and 7326 and the due dates of which fall between February 6, 2023 and August 31, 2024, has been extended to be paid in the month following the end of the force majeure situation, and the payment periods of the subsequent instalments have been extended to be paid in the monthly periods following this month.

Following the publication of the relevant Presidential decision, an announcement dated 27.05.2024 was also shared by the General Directorate of Insurance Premiums of the Social Security Institution.

You can access the entire Presidential Decision via the relevant link .

The Regulation on the Procedures and Principles Regarding Short-Term Work and Short-Term Work Allowance has been Published!

The Regulation on the Procedures and Principles Regarding Short-Term Work and Short-Term Work Allowance(“Regulation”) was published in the Official Gazette dated 11.06.2024 and numbered 32573, and the old regulation published in the Official Gazette dated 30.04.2011 and numbered 27920 was repealed.

With the new Regulation, it is aimed to regulate the procedures and principles regarding the payment of short-time working allowance to the insured in the event that employers who employ insured employees with a service contract within the scope of the Unemployment Insurance Law No. 4447 temporarily and significantly reduce their weekly working time in the workplaces due to general economic, sectoral or regional crises, general epidemics and compelling reasons or temporarily stop their workplace activities in whole or in part.

Some of the issues regulated by the New Regulation are as follows;

a- Changes in the Conditions Required to Benefit from Short-Term Work Allowance:

With Article 3 titled “Definitions” of the New Regulation, “sectoral crisis”, “regional crisis” and “general epidemic” situations that are not included in the repealed regulation are also included among the reasons for the short-time working practice.
With the repealed Regulation, in addition to the issues required for the request for short work, the obligation to notify “a list of short working periods and short working periods for the insured to be included in the scope of short work” has been introduced.
No change has been made in terms of the maximum three-month period determined for the short working period, and it has been regulated in the New Regulation in the same way. However, in the event that the employer requests more than one short-time work on different dates with the same application reason, it is regulated that the three-month period shall be calculated from the start date of the first request and the employer may determine different short-time work start dates for each insured, provided that it remains within this period.
With the new Regulation, it has been regulated that the short working period for the insured, who are notified that they will be subject to short working practice, cannot be less than four weeks, except for the termination of the employment contract of the insured, their transfer to another workplace belonging to the same employer or the suspension of their employment contracts.
While the repealed Regulation requires the employee to be “entitled to unemployment allowance” on the date of commencement of the short-time work, the new Regulation requires the insured employee to be “subject to the employment contract for the last 120 days before the short-time work commencement date and to have worked as an insured for at least 450 days in the last three years and paid unemployment insurance premium” in order to benefit from the short-time work allowance.

b- Changes in the Amount of Short-Term Work Allowance and the Payment of this Amount:

The amount of the daily short-time working allowance shall be 60% of the daily average gross earnings calculated by taking into account the premium earnings of the insured for the last twelve months, not exceeding 150% of the gross amount of the monthly minimum wage.
The duration of the short-time working allowance shall be as long as the short-time working period, not exceeding three months.
The start and end months of the short work will be evaluated over the actual number of days by finger calculation; the intermediate months, including February, will be evaluated over 30 days.
It has been regulated that the short-time working allowance shall be given over the short-time working period actually performed, provided that it does not exceed the period specified in the eligibility determination; in the short-time working period actually performed in accordance with the monthly premium and service documents or withholding and premium service declarations given to the Social Security Institution (“Institution”), it shall not be required to reduce the weekly working time by at least one third.
If the monthly premium and service documents or withholding and premium service declarations for the last month of the short working period are submitted to the Agency unit by the end of the month following the required date, notifications and changes regarding the actual short working periods during the short working period shall be taken as a basis for payments.
In order to request short-time work on behalf of the insured whose employment contract is suspended, this insured must have started to work until the short-time work start date.
For insured persons who are subject to short-time working practice while working in more than one workplace, the number of premium payment days reported by their employers will be collected and short-time working allowance will be paid to these insured persons as much as the number of missing days, provided that it does not exceed the period specified in the eligibility determination. However, if a total premium of 30 days or more is reported in the relevant month, the short-time working allowance will not be paid for that month.
The short working period for the insured to whom short work is applied shall not exceed the weekly normal working period of the insured before the short working period.
According to the Repealed Regulation, although it is regulated that the short-time working allowance will be paid to the employee at the end of each month, it is stated in the New Regulation that this allowance will be made on the fifth of each month.

As a result, with the New Regulation published on 11.06.2024 and entered into force as of the date of publication, the request for short-time work and application methods, the duration of the short-time work period, the conditions of the short-time work and short-time work allowance and all other issues related to short-time work have been rearranged.

The new Regulation has entered into force as of the date of publication, to be effective as of 01.03.2024, and it has been regulated that the repealed Regulation will be applied in short working practices that started before 01.03.2024. Thus, the provisions of the repealed Regulation will continue to be valid for the period in which short-time work was applied before 01.03.2024 within the body of the employer.

You can access the regulation published in the Official Gazette dated 11.06.2024 and numbered 32573 here .

c- Changes for Suspension of Short-Term Work Allowance:

With the new Regulation, it is regulated that in cases of termination of the employment contract, transfer to different workplaces, suspension of the employment contract, starting to receive old-age pension, being recruited for any reason, quitting due to work duties arising from any law, arrest, conviction, going abroad, death of those who receive short-time working allowance, the short-time working allowance will be cut or stopped as of the date of the said situation. In addition, if the insured subject to short-time work allowance receives a temporary incapacity report, the short-time work allowance will be stopped as of the date of the report.
It is also regulated by the New Regulation that if any of the situations that will cause the suspension or cessation of the short-time working allowance arise, the employer should notify İŞKUR, if the employer acts contrary to the notification obligation, the overpayments made will be collected from the employer together with the legal interest, and if the violation of the notification obligation is caused by the fault of the insured, the overpayments made, except for the overpayments of the deceased insured, will be collected from the insured together with the legal interest.

d- Amendments Regarding the Employer’s Record-Keeping and Notification Obligation for the Workplace WhereShort-Term Work is Applied:

With the new Regulation, it has been regulated that the records regarding the working hours of the insured, who have a short-time working practice and are subject to this practice, should be kept regularly by the employer and these records should be submitted if requested by the Authority.
In the event that the short-time work ends early, the employers are obliged to notify the Institution before the payment is made for the relevant period; In the event that the employer violates the notification obligation regarding the early termination of the short-time work, it is stated that the undue payments will be collected from the employer together with the legal interest.

You can access the regulation published in the Official Gazette dated 11.06.2024 and numbered 32573 here .

2. JUDICIAL DECISIONS

Asking the Employee’s Written Defense through E-Mail: Adana Regional Court of Appeal 8th Civil Chamber No. 2024/445 E., 2024/832 K., dated 26.04.2024

Adana Regional Court of Appeal 1^st Civil Chamber with the decision dated 26.04.2024, whose main number is given above, it has been examined whether the employer can request the defense by e-mail before termination.

In the said dispute, the plaintiff party claimed that the employment contract was terminated unfairly and requested the invalidity of the termination and its return to work.

The defendant party, on the other hand, stated that the plaintiff did not comply with the working hours, that it was determined that this situation was constantly repeated, that he made many unrealistic visits by pretending that many visits did not take place even though he did not comply with the working hours and that he kept the visit rate high, that his defense on the subject was taken, that he expressed regret in the defense and communication of the plaintiff, that he had family and psychological problems in the event of the defense, that he made a commitment that it would not be repeated again, but that the plaintiff had an open acceptance and that it was not possible to accept it based on psychological and family problems, because his manager warned the plaintiff many times on this issue, but the result did not change, and therefore the employment contract was terminated for good reason.

By the Local Court;

In the submitted employment contract, it is stated that it will work 45 hours per week, there is no record of which days and hours the working hours are and these working hours are notified to the plaintiff,

It was understood that there was no evidence other than the GPS record giving the embezzled vehicle location information that the plaintiff started the shift late, and that the visits made as if they had taken place were not actually made by interviewing the people who were alleged to have made fake visits, it was determined whether the visit actually took place and recorded in the minutes and, if necessary, these people were heard as witnesses, the claim was not proven, and it was understood that the GPS record was based on the assumption that the visits that coincided with the hour before the vehicle appeared at the home address were not made, and the employer could not prove his claims according to his method,

In the event subject to the termination, there is no record or statement showing for which event the plaintiff’s statement that the events alleged by the defendant occurred due to family and psychological problems or the connection that the written defense is related to the event requested, and in this respect, it is not possible to accept that the written defense is a defense against the event on which the termination is based,

It was decided that the termination was invalid and the case was accepted.

As a result of the appeal examination made by the Civil Chamber;

The termination of the plaintiff’s employment contract was made by the defendant due to the fact that the plaintiff did not comply with the plaintiff’s working hours, did not work some days at all and showed the plaintiff as if he had been visited in contradiction with the truth despite the fact that the workplaces were not visited,
It was determined that the defense of the plaintiff was requested by e-mail on 17.06.2022, and that the plaintiff party could not show the necessary care for the work due to family and psychological problems by e-mail, that he met with his manager and declared that it would not be repeated again,
In the e-mail documents submitted by the employer, it was clearly stated that the plaintiff was asked to defend him/her due to his/her failure to comply with the working hours, it was shown that he/she did not comply with the plaintiff’s working hours one by one in the last 2 months, he/she did not comply with the plaintiff’s working hours 14 times in total, and.03On the dates of -04.05.2022, he did not work for 3 days at all, and the statement that he was found by the plaintiff party via e-mail could not be claimed and proven to be related to another incident,

It is clear that the plaintiff party and witnesses did not declare that they worked at different working hours, that the plaintiff was asked to defend by e-mail, that the working hours were between 8:30 and 17:30 on weekdays, that the plaintiff did not oppose the working hours in his defense, and that the plaintiff should work at the specified hours because he had to visit hospitals and pharmacies due to the nature of his work,

The employer allocated a vehicle to the plaintiff for the performance of the work and the vehicle’s GPS record and the plaintiff’s visit to the workplaces were presented; in the comparison of these records, it was understood that the vehicle allocated to the plaintiff on some days showed that the workplaces were visited even though it was in front of his house, that this action of the plaintiff was contrary to accuracy and commitment, that the plaintiff did not comply with the working hours of the plaintiff 14 times in the last 2 months and did not work for 3 days,

On the grounds that the termination of the plaintiff’s employment contract for just cause was appropriate and the decision of the local court to accept the case was erroneous, the decision of the Court of First Instance was annulled and the case was dismissed.

With the verdict of the Regional Court of Justice, there was no obstacle to requesting the defense via e-mail, and it was concluded that in the concrete case, the defendant employer duly requested the employee to defend by e-mail.

The text and the imprint of the decision has been confirmed by Adana Regional Court of Appeal 8^th Civil Chamber.

Freelance Working: Decision of the General Assembly of Civil Chambers of the Court of Cassation dated 7.2.2024 and numbered 2022/1252 E., 2024/72 K.

With the decision of the General Assembly of the Court of Cassation (“HGK”) dated 7.2.2024 and numbered 2022/1252 E., 2024/72 K., the definition of “freelance” work and the elements of this work being subject to the labor law were examined.

In accordance with the decision;

It is stated that the service contract is a bilateral contract in which “each party, which includes the employee’s obligation to work on the one hand and the employer’s obligation to pay wages on the other hand, incurs a debt against the performance of the other party” and its elements are work, wage and dependence. Freelance work, on the other hand, is defined as “a form of work performed for certain tasks or services by individuals who are not permanently employed, not bound by long-term contracts”.

Some of the evaluations included in the HGK decision, which examines the freelance working style in terms of the elements of the employment contract, are as follows:

In freelance work, the employee is free to accept the job and when he/she accepts the job, he/she fulfils his/her duty to work wherever and whenever he/she wants within his/her own organization; in this case, the business relationship ends and the risks borne by the employee belong to him/her. In this form of work, the dependency relationship between the employer and the employee is very weak and the authority of the service receiver to give supervision and instructions is limited.

In this case, it is necessary to determine whether freelance work, which is an atypical contract, has gained the quality of dependent work with a service contract to the employer by exceeding the limits of independent work by evaluating the nature and nature of the relationship between the parties. In this evaluation process, it should be investigated whether there is an element of dependency that should be included in the service contract. Therefore, a qualification should be made based on the relationship between the parties and the nature of the event in each case, taking into account the relevant legal regulations and evaluation criteria.

In the case of freelance work, the nature of the relationship between the parties should be determined, taking into account the following:

The nature and field of activity of the employer’s business organization,
Whether the work performed is a specific work (work) or within the scope of routine works,
How the work is controlled and supervised, the process of correcting disliked works,
Obligation of the employee to provide information and answers,
The periods and sanctions determined for the performance and delivery of the work,
The working order of the freelancer (daily working hours and regularity),
Reasons for termination of the relationship,
Status of the employee doing similar works to non-litigation persons,
Organization of working from home and employing others,
The right to refuse work and the risk of deterioration of relationships,
How the fee is determined, whether it is a royalty or a monthly fee, and additional payments,
Listening to witnesses and eliminating contradictions between testimonies.

As a result, as determined by the decision of HGK, it is necessary to determine whether the relationship between the parties is independent work or service contract in accordance with the above-mentioned criteria and to make an appropriate decision according to the result.

You can access the entire decision via the relevant link . (Access Date: 08/07/2024)

With the Decision of the Constitutional Court dated 14.03.2024 and numbered 2023/160 and 2024/77 published in the Official Gazette dated 18.04.2024, some provisions of the Law on Mediation in Civil Disputes No. 6325 were cancelled.

In accordance with the decision given by the Constitutional Court of the Republic of Turkey (“Constitutional Court”) in the Official Gazette dated 18.04.2024, some provisions of the Law on Mediation in Civil Disputes No. 6325 have been cancelled on the grounds that they are contrary to the Constitution.

Within the scope of the Constitutional Court decision, with the provision stipulated in the first sentence of paragraph 11 of Article 18/A added to the Law on Mediation in Civil Disputes dated 6/6/2012 and numbered 6325 with Article 23 of the Law dated 6/12/2018 and numbered 7155, “… even if this party is partially or completely justified in the case , it shall be held responsible for the entire cost of the trial.” The provision “In addition, the attorney’s fee shall not be ruled in favor of this party.” has been cancelled in violation of the Constitution on the grounds that the party who did not participate in the first meeting without an excuse is fully responsible for the costs of the trial and is deprived of the entire cost of the attorney’s fee, imposes an excessive burden on the persons, disrupts the fair balance that should be observed between the public interest and the right of ownership and the right of access to the court and causes a disproportionate restriction in this respect.

The said annulment decision shall enter into force nine months after the publication of the decision in the Official Gazette, and as of the entry into force of the annulment decision, if the party who does not participate in the mediation negotiation without a valid excuse is partially or completely justified in the case, it shall not be held responsible for all of the litigation expenses and the attorney’s fee may be decided in favor of this party.

You can find the full decision here .

I* * * * T* * * * Decision of the Constitutional Court with Application Number 2019/8609

In the decision of the Constitutional Court dated 21 December 2023 and numbered 2019/8609 published in the Official Gazette dated 20 May 2024 and numbered 32551, it was decided that the disability rate determined by the Social Security Institution (“SSI”) at the beginning of the case in the case filed by the applicant with the claim for compensation for the loss of workforce as a result of an occupational accident was not a procedural right for the other party of the case. It was stated that the results obtained as a result of the calculations made by the experts in their field should be taken into account in the calculation of the disability rate, and that the disability rate calculated by the SSI specified when filing a lawsuit would not mean that it restricted the applicant’s claims, and the contrary acceptance was decided that the applicant’s right of access to the court was restricted and the application was admissible.

You can access the entire decision of the Constitutional Court via the relevant link .

Overtime, Uncertain Receivable Case and Partial Case Evaluation: Court of Cassation 9th Civil Chamber dated 7 March 2024, Docket No. 2024/3233, Decision No. 2024/4482

9th Civil Chamber of the Supreme Court In the decision dated 7 March 2024 and numbered 2024/3233 and 2024/4482 published in the Official Gazette dated 3 May 2024 and numbered 32535, it was examined whether the overtime work receivable could be subject to an uncertain receivable case or a partial case.

9th Civil Chamber of the Supreme Court was stated that the lawsuit with an overtime claim could be filed as an uncertain receivable lawsuit due to the fact that the judge could not determine the rate at which he would make a discount on the overtime receivable subject to the lawsuit; in the lawsuits filed as an uncertain receivable lawsuit, the statute of limitations was interrupted for the entire receivable with the filing of the lawsuit, and the decision of the local court to partially accept the lawsuit based on the statute of limitations put forward by the defendant with the local court’s qualification of the case as a partial lawsuit was erroneous and the local court decision was reversed in favor of the law.

You can access the entire decision of the 9th Civil Chamber of the Supreme Court via the relevant link.

Evidence Nature of the Expert Report Received Before the Preliminary Examination Phase:Civil Chamber dated April 15, 2024, Docket No. 2024/5139 and Decision No. 2024/6725

9th Civil Chamber of the Supreme Court with the decision dated 15 April 2024 and numbered 2024/5139 and 2024/6725 published in the Official Gazette dated 28 May 2024 and numbered 32559, was decided that the initiation of the investigation and obtaining an expert report within the scope of the file violated the right to defense and proof within the scope of the right to a fair trial and legal hearing before the first hearing, which is a preliminary examination hearing in the simple trial procedure, and before the stage of submitting the petitions is completed.

You can access the entire decision of the 9th Civil Chamber of the Supreme Court via the relevant link.

Working Abroad and National Holidays – Working Status on General Holidays: Court of Cassation 9thCivil Chamber dated 15 January 2024, Docket No. 2023/14969 and Decision No. 2024/378

9th Civil Chamber of the Supreme Court decided that in the presence of work abroad, the general holidays of the country worked abroad should be deducted from the general holiday account in Turkey.

9th Civil Chamber of the Supreme Court In line with the relevant practice established after the principle decision given by the Civil Chamber, while the calculation is made in disputes regarding national holidays and general holidays, the wages received without any work on national holidays and general holidays abroad should be deducted from the calculation made according to national holidays and general holidays in Turkey.

During the offsetting process; an appropriate discount is made from the national holiday and general holiday fee calculated by methods such as witness statements, then the national holiday and general holiday fees paid abroad are deducted from this determined amount. As a result of this process, it is calculated that the employee will receive total national holidays and general holiday wages.

You can access the entire decision of the 9th Civil Chamber of the Supreme Court via the relevant link. (Accessed on: 10/07/2024)

Claim Lawsuit and Mediation After the Finalized Reemployment Lawsuit: Sakarya Regional Court of Justice 11. Civil Chamber dated 13 February 2024, 2021/2246 Basis and 2024/351 Decision

In the incident subject to the decision of the Sakarya Regional Court of Justice, the plaintiff whose employment contract was terminated made a mediation application on the issues of reinstatement, premium receivable, overtime work, weekends and national holidays and general holidays, annual leave, severance pay, notice pay, non-reinstatement compensation, idle time after reinstatement and bonus receivable, and this application resulted in non-agreement and a reinstatement lawsuit was filed by the plaintiff. After the reemployment request was concluded in favor of the employee, the plaintiff was not started to work by paying the employer the idle time wage and the compensation for not starting to work. Following this, a new lawsuit was filed by the worker and their labor receivables were requested.

Sakarya Regional Court of Justice separately evaluated the labor receivables that may be requested in case of failure to start work after the return to work with the first termination deemed invalid, stating that the mediation application made before the reemployment lawsuit was related to the invalid termination, and rejected the lawsuit filed after the start of work due to the absence of the condition of the lawsuit, stating that a separate mediation application should be made for the severance, notice, annual leave wage receivable and compensation for not starting work.

Accordingly, in case of reemployment, a new mediation application is required in terms of receivables arising on the date of non-employment, and in the absence of such an application, it is necessary to decide on the procedural rejection of the case in the absence of a lawsuit condition.

You can access the entire decision via the relevant link . (Accessed on: 10/07/2024)

Case Condition Failure of the Worker Invited to Work During Mediation Negotiations to Accept the Invitation: Kayseri Regional Court of Justice 8th Civil Chamber dated March 5, 2024, Docket No. 2024/306 and Decision No. 2024/380

In the incident subject to the decision of the Kayseri Regional Court of Justice, the employment contract of the plaintiff worker was terminated by the defendant employer due to the shrinkage of the workplace, and then the plaintiff worker made a mediation application with a request for reemployment. During the litigation requirement mediation negotiations, the plaintiff was invited to work by the defendant employer, but the mediation process resulted in disagreement after the plaintiff worker did not accept the invitation to work.

According to the final report of the mediation, according to the final report of the Kayseri Regional Court of Justice, the plaintiff did not have the will to start work because the plaintiff worker did not accept this invitation, although the employer invited the plaintiff worker to work, so the termination made by the defendant employer became valid, and it was decided to abolish the local court decision.

As a result, in the event that the employer invites the employee to work during the mediation process, but the employee does not accept this invitation and this situation is determined by the minutes of disagreement, the termination must be deemed valid and the case must be rejected in a reemployment lawsuit to be filed.

The text and the tag of the relevant decision has been confirmed by the Kayseri Regional Court of Justice 8th Civil Chamber.

Termination Due to the Update of the Status of the Personnel in the LinkedIn Account as “Open to Work”: Istanbul Regional Court of Justice 31. Civil Chamber dated 20.03.2024, Docket No. 2024/249 and Decision No. 2024/425

Istanbul Regional Court of Justice 31st Civil Chamber made an important decision whether the employee’s job search status in his LinkedIn profile is stated as “open to work”, which means “open to job opportunities”, gives the employer the opportunity to terminate.

In the incident subject to the decision of the Istanbul Regional Court of Justice, the plaintiff employee claimed that the employment contract was terminated without justifiable or valid reason, while the defendant employer argued that the employment contract was terminated by claiming that the plaintiff, who updated his profile on the public social platform as “open to job offers”, shook the trust of the employer and damaged the reputation of the employer. In accordance with the witness statements heard within the scope of the file subject to the appeal review, it was determined that the status update of other employees within the defendant workplace was “open to work” in this way, but the employment contract of these people was not terminated, and there were promotion areas, and it was seen that a defense petition was submitted by the plaintiff party upon the defendant party’s request for the defense of the plaintiff, and it was understood that no document was submitted by the employer that the plaintiff disrupted his work or did not pay attention during this period.

It was stated by the Istanbul Regional Court of Justice that the termination of the employment contract made with the thought that the employee, who could not be proven to have disrupted his/her job, would not do his/her job diligently, was not measured and proportionate, and it was decided to accept the plaintiff’s case on the grounds that the termination process was not based on a justified and valid reason, the invalidity of the employment contract termination of the defendant’s employer, and the reemployment of the plaintiff.

In accordance with the relevant decision, it has been decided that the action of the employer to update the profile of the employee in the LinkedIn account as “open to work” is not a reason for termination alone, whether the employee who behaves in question also disrupts his/her work and duty within the current employer and whether he/she acts contrary to the duty of care should be evaluated separately, and if these facts are not present, the termination process to be made will be unfair.

The text and the tag of the relevant decision has been confirmed by the Civil Chamber Istanbul Regional Court of Justice 31st.

Return to Office After the Remote Working System Passed During the Pandemic Period: Ankara Regional Court of Justice 6th Civil Chamber dated 16 May 2024 and numbered 2024/912 Basis 2024/1606

In the incident subject to the decision of the Ankara Regional Court of Justice, it was decided to reject the reemployment lawsuit filed by the plaintiff on the grounds that “the plaintiff did not come to the workplace by declaring that he was out of town despite being called, that he was the only employee who could count the warehouse and that this situation was in the nature of behaviour that did not comply with accuracy and loyalty” .

Following the appeal by the plaintiff, was decided by the Ankara Regional Court of Justice to abolish the decision of the Court of First Instance on the grounds that “While the case regarding the reemployment lawsuit by the court should be separated and the trial should be continued through separate files, it was wrong to be seen together in the same case.” Subsequently, the Court of First Instance separated the case of reinstatement and receivables and continued this case as a reinstatement case and decided to dismiss the case.

Following the plaintiff’s appeal against the relevant decision, as a result of the appeal examination made by the Ankara Regional Court of Justice, in the written text dated 17.03.2020 shared at the workplace during the transition to the home working system, It has been determined that it has been seen that it has been decided that the persons continue their duties from home and are called to the head office if needed, provided that they stay at their residence addresses, and in the report text in the file, it has been determined that “the persons sent to their homes due to Covid 19 on 17.03.2020 stay in their homes, that they can be called to the head office in case of emergency” has been reported to each personnel both verbally and by hanging them on the bulletin boards, and the witnesses listened to within the scope of the file have also warned the workers not to go out of the city due to the possibility of recalling the employer to the office. In the case in dispute, it was understood that the plaintiff was called to the workplace for the warehouse count, that the plaintiff did not come to the workplace by declaring that he was out of town, that he was the only employee who could do the warehouse count, and that this situation was in the nature of behaviour that did not comply with accuracy and loyalty, and the decision of the local court regarding the rejection of the case was seen correctly. “

In accordance with the relevant decision, it was decided that the action of not physically returning to the workplace of the worker who was requested to return to the workplace due to the requirements of the work was unfair and the worker who performed this action could not request to be reinstated after a written notification to the worker that “they can be called to the office if needed” before the transition to the remote working system.

The text and the tag of the relevant decision has been confirmed by the Ankara Regional Court of Justice 6th Civil Chamber.

3. GLOBAL TRENDS IN WORKING LIFE

April Working Life Statistics were Published by the General Directorate of Labor of the Ministry of Labor and Social Security of the Republic of Turkey!

Labor life statistics for April 2024 were published by the General Directorate of Labor (“Directorate”) of the Ministry of Labor and Social Security of the Republic of Turkey, and data on unionization and collective bargaining agreements (CBA) came to the fore in the statistics.

In terms of the data and statistics obtained in accordance with the statistical report, the 2024 January Workers’ Communiqué published in the Official Gazette dated 31 January 2024 was considered as the source. According to the study conducted by the Directorate, the rate of unionized employees in the public sector is 80.71%, while this rate is 7.38% in the private sector. As a result of the evaluation made in line with the January 2024 data, the most intense business lines of labour unions are “general affairs”, “metal” and “trade, office, education and fine arts”.

It was emphasized by the Directorate that a total of 4,603 collective bargaining agreements were in force, 1,983,798 workers were covered by the collective bargaining agreement, and the rate of workers within the scope of the CBA was 12.09%. According to the data shared by the Directorate, of the 4,603 collective bargaining agreements in force according to the sector, 2,884 were made in the public sector and 1,719 in the private sector.

Within the scope of the official mediation data shared by the Directorate on collective bargaining agreements, it was observed that approximately 36.47% of the disputes for 2024 resulted in an “agreement” both during the mediation process and by negotiating between the parties later, and the rate of such agreement was 35.44% for the March 2024 period.

You can access all the statistics here .

Next Generation Work Style: Gig Economy!

The gig economy is now a dynamic labor market with a concentration of self-employed and independent contractors focused on projects rather than traditional full-time employees. This economy includes various work arrangements such as freelancers, consultants, independent contractors and temporary contract workers.

Gig refers to short-term and flexible work or projects that express the performance of individuals working for any company regardless of its structure. The economy created by people who work freely, act independently of office working hours and are not connected to any place in terms of location is called the gig economy. With the freelance system, gig work is different from each other, and freelancers and gigs work as independent contractors and offer their services to customers on a project basis; however, the scope of their work and the way they work vary significantly.

Freelancers often work on long-term projects, which can take weeks, months, or even years. They build ongoing relationships with their customers and can execute multiple projects at the same time. Gig employees, on the other hand, deal with short-term and operational tasks; these jobs are usually carried out without the expectation of continuity and end when the current job is completed.

Another key difference between freelancers and gig workers is the degree of independence they have. While freelancers create their own programs, negotiate their fees, and build their businesses from scratch, gig workers work on specific platforms and meet opportunities through these platforms. Gig employees benefit from flexibility and diversity, but their earnings vary depending on the structure of the platform and demand.

Some companies view the gig economy as having the potential to generate new revenue and growth opportunities. The fact that companies plan their gig workers to achieve the highest efficiency at the lowest cost can be a win-win situation for both parties. Therefore, it may be useful for companies to pay special attention to the gig economy.

• Six-Day Work Week Focused on Increasing Productivity in Greece Begins!:

Greece has included some changes in its working life in accordance with the Labor Law No. 5053/2023, which was published in its Official Gazette on September 26, 2023, and as a result of one of these changes, has switched to the practice that makes it possible to work six days a week in certain enterprises as of July 1, 2024. With the amendment of the relevant Labor Law, has been regulated that 6 days a week can be worked in the workplace in the presence of the conditions listed in the Law. With the new Labor Law, it is regulated that the six-day work program per week will only be valid for specific enterprises operating continuously for 24 hours, while enterprises in the tourism and food sector are not included in the scope. In the works to be carried out in this direction in the enterprises that are allowed to work 6 days a week by the law, is obligatory to make an additional payment to the employees at the rate of 40% of their daily wages for the 6th day. Employees are prohibited from working more than 8 hours a day during the 6th day of work. With the relevant law amendment, while the traditional 40-hour working week can be increased to 48 hours in some enterprises, is estimated by the authorities that this regulation will reduce informal employment, provide flexibility and increase employment.

• Switching to Working Four Days a Week and Back to Six Days a Week: Global Trends and Practices

Many companies around the world are testing their work model four days a week to improve work efficiency and announce that they are getting positive results with this new system. A* * A* * Corporation, one of the domestic enterprises that took a step in this direction, became the first corporate Turkish company to switch to the working system 4 days a week after testing this model from the beginning of 2024 to the end of March and obtaining the results of the survey it conducted in the workplace. A* * A** Corporation, which is an acrylic fibre manufacturer and has 1200 employees, including blue-collar employees, has announced that it has implemented its 4-day work model only for a certain group of white-collar employees for now. The company conducted an employee survey on its four-day-week work model, and the survey results showed that this practice increased employee engagement, productivity, motivation, and work-life balance by over 85%.

With the exception of domestic businesses, the South Korea-based technology firm S* * has decided to transition its senior executives to a six-day working model. Among the factors in taking this decision, the company officials stated that the law proposal, which envisages increasing the weekly 52-hour working period to 69 hours, is effective. The company aims to prepare its employees against the increasing competitive environment, falling revenues and global economic fluctuations and possible crisis situations.

This strategy of South Korea-based S* * differs from the approach of the Japan-based establishment of M* *, a US-based multinational technology company. M* * applied the working model four days a week for trial purposes in 2019 and observed that work efficiency and productivity increased by 39.9% according to the results of the experience survey conducted with employees.

• Flexible and Employee Friendly Policies

The France-based company of international cosmetics and beauty brand Y* * R * * Turkey, has introduced innovative practices such as working from the office two days a week and from home three days a week, completely remote work in July and August, birthday leave, kindergarten leave and leave for working children’s school days, aiming to increase employee satisfaction.

Cosmetics and beauty brand F* * Turkey has launched workplace practices such as early departure on Fridays in the summer, remote work for up to three weeks, additional paid leave for fathers, birthday leave, leave to participate in social responsibility projects and disability day leave, aiming to support the work-life balance of its employees and increase their productivity.

B* * Company, which operates in the field of textile, apparel production and real estate, has introduced innovations that support work-life balance by offering the opportunity to work from home every Monday, to work from the office two days a week to increase flexibility, working efficiency and focus, not to hold meetings on Thursday afternoon and to work remotely in the summer months in order to enable its employees to start the week more comfortably and efficiently.

• A* * * A* * * “Working Mothers Kit” Implementation Started by Airline

Airline A* * A* *, which operates in the international passenger transportation sector, introduced the “Mothers in Charge” kit for mothers who have just given birth after May 2024. This kit includes appropriate breastfeeding apron and parenting support guide for the pilot and cabin crew. It has been reported that this initiative will be implemented as part of the wider Diversity, Equity, Inclusion (DEI) strategy in line with the airline’s goal of creating a more inclusive working environment for female employees.

• The Labour Law Revolution in the UK: New Era in Working Life

Various amendments to labour law in the UK entered into force on 6 April 2024. All these changes are being implemented England, Scotland and Wales.

a. Changes in Flexible Work Arrangements:

Starting April 6, 2024, employees will now be able to request flexible work twice instead of once a year. The legislator has reduced the time for employers to respond to these requests to two months. Employees will not have to state the reason for the claim, but employers will have to explain the reason when rejecting claims. However, the reasons employers could use to reject claims remained limited in terms of factors such as operating costs or impacts on quality, performance or the capacity to meet customer demand. These changes were introduced by the Employment Relations (Flexible Working) Act, which entered into force on 20 July 2023. In addition, employees will now be able to request flexible work from the first day they start work; they will not have to wait for the 26-week qualification period.

b. Maintenance Permit:

Effective after April 6, 2024, employees with maintenance responsibilities will be entitled to one week of unpaid leave per year. This right applies to all employees who provide care to a spouse, child, parent or other dependent person because of disability, old age or any illness or injury lasting at least three months. The right to leave can be exercised from the first day of employment. This right has been introduced by the Carer’s Leave Act 2023, which entered into force on 24 May 2023, and the Carer’s Leave Regulations, which entered into force on 6 April 2024.

c. Protection for Pregnant Employees:

• Pregnancy leave notified to the Employer on or after 6 April 2024,

• Maternity leave or adoption leave ending on or after April 6, 2024,

• Employees who take joint parental leave consisting of at least six consecutive weeks and starting on or after April 6, 2024,

With the amendments made within the scope of the Protection from Redundancy (Pregnancy and Family Leave) Act 2023, which entered into force on 24 May 2023, and the Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024, which entered into force on 6 April 2024, it has been included in the ban on dismissal for at least 18 months.

The amendments also stipulate that those on maternity leave, adoption leave and joint parental leave will have the right to be offered any suitable alternative position in the event of their current dismissal. Prior to the reform of labour legislation, employees had this protection only during periods of maternity, adoption or joint parental leave. This protection will start from the date of notification of pregnancy, birth and adoption to the employer and end after 18 months. For joint parental leave, the worker will need to take at least six weeks of joint parental leave and the duration of this protection may be up to 18 months.

d. Paternity Leave

Employees who take statutory paternity leave will be able to divide their statutory rights, which were two weeks before the Paternity Leave (Amendment) Regulation, which entered into force on March 8, 2024, into two separate blocks of one week with the new Law amendment, instead of using them at once. They will also be able to use their two-week legal leave at any time during the first year after the birth of their child, rather than within the first eight weeks after birth. Employees will be required to give their employer 28 days’ notice for each weekly leave before taking leave. For father candidates, the obligation to inform their employers that the birth will take place 15 weeks before the expected date of birth and that they will take leave has also been introduced with the new Law amendment.

e. Some Changes Expected to Take Effect After 2024:

– Innovations to be introduced under The Employment (Allocation of Tips) Act, which entered into force in 2023, and The Employment Rights Act 1996, on how employers should distribute tips and service fees to their employees, are expected to enter into force in October 2024.

– The Statutory Code of Practice 2024, which will introduce regulations on dismissal and reemployment, issued by the Minister of Foreign Affairs Section 203 on the basis of the Trade Union and Labour Relations Act, which entered into force in 1992, is expected to enter into force in the summer of 2024.

– Under the Workers (Predictable Terms and Conditions) Act, which entered into force in 2023, a new law proposal has been made that creates the right to demand more predictable working models for employees in certain lines of work, and this law is expected to enter into force by September 2024.

LABOR LAW NEWSLETTER 2024/2

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