ABSTRACT
This article evaluates the effects of legal regulations on the termination of employment contracts which were introduced in order to minimize the impact of the Covid-19 pandemic and to protect employment in economically distressed businesses due to the pandemic, which was declared by the World Health Organization and affected the whole world.
I. INTRODUCTION
The Covid-19 pandemic, which emerged in the People's Republic of China, was declared a pandemic by the World Health Organization and spread throughout the world. Turkey had its first case on March 11, 2020. The effect of the pandemic has spread to all areas of life, but it has had a particularly serious negative effect on business life.
Due to the nature of the Covid-19 pandemic which threatens life in Turkey, the government has taken various restriction decisions in order to protect citizens’ health. In addition, as well as these restrictions, given the progress of the pandemic and the way it is transmitted, individuals have also tended to restrict their social lives by their own volition. These two facts alone have the potential to have a serious impact on business life, causing economic contraction. It is exactly for this reason that, in order to mitigate the direct impacts of the Covid-19 pandemic caused by government measures and warnings, it was necessary to introduce regulations on working life in general within the framework of labor law.
This article briefly outlines the responsibilities of employers and employees, explains the termination of employment contracts between an employee and employer, and looks at the effects of the new regulations introduced due to the Covid-19 outbreak.
II. RESPONSIBILITIES OF EMPLOYERS AND EMPLOYEES IN TERMS OF COVID-19
A. RESPONSIBILITIES OF THE EMPLOYER IN TERMS OF COVID-19
Employers’ occupational health and safety responsibilities are outlined in Article 4 of the Occupational Health and Safety Law1 (OHSL). According to the first paragraph of the Article:
“(1) The employer shall have a duty to ensure the health and safety of employees in every aspect related to their work. In this respect, the employer shall:
a) take the measures necessary for the protection of the health and safety of employees, including prevention of occupational risks and provision of information and training, as well as provision of the necessary organization and means and shall ensure that these measures are adjusted taking account of changing circumstances and aim to improve existing situations;
b) monitor and check whether occupational health and safety measures that have been taken in the workplace are followed and ensure that nonconforming situations are prevented;
c) carry out or get carried out a risk assessment;
d) take into consideration the employee's capabilities as regards health and safety where he/she entrusts tasks to a employee;
e) take appropriate measures to ensure that only employees who have received adequate instructions may have access to areas where there is serious and specific danger.” In addition to the provision set forth in the OHSL that draws the general lines of responsibility, measures such as "do the necessary things to protect the health and safety of the employees, to provide the necessary conditions and have all necessary tools2" are accepted by both the Supreme Court and the doctrine3.
In light of these statements, employers should adapt health and safety measures in the workplace to the changing conditions, taking into account both legislation and judicial decisions, as well as the recommendations of the World Health Organization and the Ministry of Health, and take all necessary measures to protect the health and safety of employees in this regard4.
B. RESPONSIBILITIES OF EMPLOYEES IN TERMS OF COVID-19
According to Article 19 of the OHSL, “employees have the obligation to protect themselves and other employees affected by their actions or their work against danger” within the framework of occupational health and safety training and in line with instructions given by the employer5.
Employees who find they are infected or are showing symptoms are obliged to inform their employer and act within the framework mentioned above.
III. EVALUATION OF THE EFFECT OF THE COVID-19 OUTBREAK ON TERMINATION OF LABOR CONTRACTS
A. EMPLOYEE’S TERMINATION RIGHT
Within the scope of the Covid-19 outbreak, it is possible that employees may terminate their employment contract for various reasons. Because of this, it is appropriate to examine each situation separately.
1. Employee’s Right to Immediate Termination for Health Reasons
In Labor Law6 No. 4857 (Labor Law), the right of the employee to immediately terminate his/her employment contract for health reasons is regulated in the first paragraph (a) and (b) of Article 24.
According to 24/I/b, which allows the employee to rightfully terminate the employment contract, “If the employer, his representative or another employee who is constantly near the employee and with whom he is in direct contact is suffering from an infecting disease or from a disease incompatible with the performance of his duties.” the employee will have the right to terminate his/her employment contract for just cause.
Accordingly, employees who come into contact with any employee diagnosed with Covid-19, which poses a serious danger to life and health and has been scientifically proven to be transmitted by means such as physical contact and through the air, shall have the opportunity to terminate their employment contract for just cause and the employees who do terminate in this way will be entitled to severance pay. However, it should be noted immediately that the contact with the sick employee must be close or direct in order for rightful termination to apply. Conversely, termination carried out by employees who do not come into close or direct contact with someone who has the disease or does not have the opportunity to come into contact with them, will undoubtedly be considered unjust termination.
According to 24/I/a “If the performance of the work stipulated in the contract endangers the employee’s health or life for any reason”, the danger must arise from the nature of the work. However, since the Supreme Court has made many decisions on whether an employee's work in that job is dangerous to their health and life without examining whether the danger is due to the nature of the job, the issue that must be carefully examined in terms of the Covid-19 outbreak is whether the work has become "dangerous" due to the pandemic.
The concept of danger or “hazard”, which is the term used by the OHSL, is defined in Article 3 of the OHSL as "a potential which exists at the workplace or may arise from outside the workplace to cause harm or damage which could affect the employee or the workplace”. In the doctrine, danger is accepted as a bad situation that can affect the health and/or life of an employee and cause irreparable harm.
In the decision of the Supreme Court 9th CC dated 08.03.2007 and numbered 2006/21363 E. 2007/6171 K:7;
“It is revealed by the witness accounts that the complainant worked and did shredding in the integrated white meat facilities and it is also revealed that while carrying out his occıpation he fainted and fell frequently due to his current illness and was taken to the infirmary. In this case, it is seen that the occupation which is the subject of the employment contract of the complainant became dangerous for the health of the employee due to a reason arising afterwards, in accordance with the 24/1 article of the Labor Law No. 4857.”
As highlighted by the Supreme Court, if the work becomes dangerous to the health of an employee due to a reason arising afterwards, the employee may terminate the contract for just cause according to the regulation in Labor Law Article 24/I-(a).
In this context, it is accepted in the doctrine that the employees have the right to refrain from working, where the occupational health and safety measures that should be taken by employers due to Covid-19 have not been taken and this situation creates a risk of death or great danger, until the necessary measures are taken. In addition, if the necessary measures are not taken despite the employees’ request, it is evaluated that they may terminate their employment contracts based on sub-clause (a) of paragraph 1 of Article 24 of the Labor Law or sub-clause (f) of paragraph 2, that is, not applying the working conditions.
According to majority opinion, the employee can terminate his/her employment contract based on sub-clause (f) of paragraph 2 of Article 24 of Labor Law. At this point, it may be important in terms of justification for employees to comply with the specified procedure, that is, demanding the employer take the necessary precautions and terminating the contract if the measures are not taken.
Where an employer has taken all precautions in the workplace, if it is assessed that the employee caught Covid-19 outside the workplace, the employee will not have justified reasons to terminate. However, there may be difficulties proving whether the employer has taken all the necessary measures or the employee caught the disease outside the workplace.
In this respect, there are evaluations in the doctrine that suggest an employee who has the disease can terminate an employment contract for just cause in accordance with Labor Law Article 24/I-a. In addition, there are other opinions in the doctrine that also evaluate this situation in terms of Article 24/I-(b) of Labor Law, and argue that since the employee's right to terminate the employment contract based on a disease he/ she caught is not included in the Article, it would be appropriate to give the right to terminate the employment contract for justified reasons with a change in the Labor Law Article 24/I-b.
2. Employee's Right of Immediate Termination for Force Majeure
Force majeure, which is a reason for termination for just cause in terms of the employee, is also included in Labor Law Article 24. According to the third paragraph of the Article, where “Force majeure prevents the employee from performing his/her duties for more than one week”, the employee will be able to terminate the employment contract for just causes without being subject to a period of notice.
In this regard, it would be appropriate to first define the concept of "force majeure". In the Regulation on Short-time Working and Short-time Working Allowance, force majeure is explained as "The periodic situations that are not caused by the employer's own management and administration, that are not predictable, which are not possible to be eliminated as a result, that result in a temporary reduction of working time or the cessation of the activity completely or partially result from external effects such as earthquake, fire, flood, landslide, pandemic, mobilization”.
Accordingly, in order for force majeure to be a just cause for termination, it must cause the work in the workplace to be stopped and the effect of it must continue for more than a week. In the presence of these conditions, the employee will be able to terminate based on just cause and will be entitled to severance pay.
In the light of these issues, it is possible to say that, within the scope of the regulations introduced due to the Covid-19 outbreak, the force majeure condition has been fulfilled in terms of businesses such as cinema, show centers, restaurants, cafes, etc. However, in terms of a workplace in this situation, it is accepted that in order for the employee to terminate in accordance with Article 24/III of Labor Law, he/she must not be under curfew or in quarantine; in other words, the employee must be in a position to fulfill his/her job performance arising from the employment contract. For example, if an employee is not under curfew and not in quarantine but their restaurant is closed for more than a week due to Covid-19, the employee will be able to exercise their right of termination based on force majeure in accordance with Article 24/III of Labor Law.
It may also be possible to conclude that the force majeure condition is fulfilled in terms of workplaces that are partially open for work and not completely closed. In addition, clearly the Covid-19 outbreak will not constitute a force majeure for a workplace that has not been closed and continues its activities. However, considering the extent of the Covid-19 pandemic, some opinions in the doctrine argue that even if all necessary measures are taken in a workplace, it will be appropriate to give employees the right to terminate their emplyment agreement since they may face the risk of contracting Covid-19 on their travel to work and therefore it would be appropriate to introduce legal provisions to give employees the right to terminate their employment contracts for a just cause even if the work in the workplace does not stop due to the Covid-19 pandemic that affects the whole world and can have fatal consequences8.
It is necessary to evaluate whether each situation constitutes a force majeure or not according to the characteristics of the concrete case, the circumstances, the administrative decisions and the nature of the business.
B. EMPLOYER’S TERMINATON RIGHT
Termination Right of the Employer for Force Majeure
According to Article 25/III of Labor Law, in the event that "force majeure prevents the employee from performing his duties for more than one week", also the employer has the right to terminate the employment contract for just cause. However, in this case, in order for the employer to have the opportunity to terminate, the force majeure has to arise in the employee’s environment, not at the workplace. As clearly stated in the decisions of the Supreme Court, the compelling reasons that prevent an employee from working must occur in the employee's environment9. Reasons originating from the workplace and preventing working are not covered by this Article. However, situations such as the interruption of transportation due to natural events such as flood, snow, earthquake and quarantine application due to pandemic are considered force majeure.
In the Economic Stability Shield Package, which was announced to eliminate the negative effects of Covid-19 on the economy, regulations on the short-time working allowance were put into effect and, accordingly, the "Covid-19 effect" was evaluated within the scope of the force majeure by the Turkish Employment Agency. This decision was announced to the public on 22.03.2020 and an option named "Covid-19 Effect" was included in the short-time working request form in the reason for application.
Following the acceptance of Covid-19 as a force majeure within the scope of the shorttime working regulations, Law No. 7244 on Reducing the Effects of the New Coronavirus (Covid-19) Outbreak on Economic and Social Life and Amending Some Laws was published in the Official Gazette on 17.04.2020 (Law No. 7244). In this amendment, the Covid-19 outbreak is accepted as a force majeure and some regulations have been introduced within this framework.
Law No. 7244 includes Provisional Article 10, which states that all kinds of employment and service contracts cannot be terminated by an employer for three months from the effective date of the Article, except for "immoral, dishonourable or malicious conduct or other similar behaviours”, which were regulated in Article 25/II of Labor Law. This exception to the prohibition of termination has been expanded by Law No. 7252, published in the Official Gazette on 28.07.2020, adding the following amendments in accordance with the relevant legislation: (i) expiration of fixed-term employment or service contracts, (ii) closure and termination of the business for any reason, and (iii) termination of work in all kinds of service procurement and construction works. The period of this prohibition of termination, imposed in terms of the employer, has, for now, been extended until 30.06.2021.
As can be understood from the wording "employment contract of all kinds of employees", the regulation introduced with Provisional Article 10 includes all employment contracts: fixed-term, open-ended, continual, transitory, on-call, part-time, seasonal, remote work, etc. According to majority opinion in the doctrine, the prohibition of termination also includes terminations made within the trial period. It is clear from these opinions that terminations carried out during the trial period are also considered within the scope of the prohibition, but, in this case, the trial period extends as far as the prohibiton period, continues until the end of prohibiton, and the termination can be carried out after the extended period.
As a result, although it is accepted that the employer has the right to terminate immediately within the framework of Article 25/III of Labor Law in the period before Law No. 7244, for example, for those who are 65 years of age or older or who are under curfew with a chronic disease, termination by the employer based on Article 25/III of Labor Law during the prohibition period brought by Law No. 7244 will be deemed unfair and invalid.
C. LIMITATIONS OF TERMINATION OF AN EMPLOYEE'S LABOR CONTRACT
According to the regulation introduced by Provisional Article 10 of Labor Law, the employer may allocate the employee fully or partially unpaid leave within three months from the date of entry into force of this Article on 17.04.2020. This period has now been extended until 30.06.2021. Pursuant to paragraph 2 of Provisional Article 10, taking unpaid leave within the scope of this Article does not give an employee the right to terminate a contract based on just cause.
It is generally evaluated in the doctrine that during this period, an employee given unpaid leave within the framework of Provisional Article 10 by an employer cannot use the right of immediate termination due to force majeure based on Article 24/III. On the other hand, it is considered that an employee may terminate an employment contract immediately for a reason other than taking unpaid leave, or apply for a term termination in accordance with Labor Law Article 17. For example, if an employee terminates his/ her employment contract due to retirement, military service or marriage, it will not contradict the regulation in the second paragraph of Provisional Article 10 and the employee may terminate the employment contract for such termination reasons.
It is controversial in the doctrine whether employees will have the right to terminate immediately where their employment contracts are suspended or their wages have been reduced as a result of the reduction of working time due to the short-time working practice. There were differences of opinion and jurisprudence regarding an employee’s right of termination in the short-time working practice in the period before Covid-19. During the Covid-19 period, these discussions have continued and it would be a healthy approach to introduce a legal regulation that is clear on the right to terminate, at least for the employees who do not meet the conditions of the short-time working allowance.
Another point to be mentioned in this context is the fate of employees dismissed before the prohibiton began and whose termination notification was made in accordance with the notice by the employer. In this case, the decision to dismiss was taken before the prohibition and the employee was already notified. However, in this legal regulation, there is no clarification about situations in which notification was made before the prohibiton, but the notice period ended within the prohibition period. For this reason, it is considered appropriate in the doctrine to accept that a termination shall not be subject to prohibition, if the notice period has commenced before 17.04.2020 and will be ended during the prohibition period, because the legislator takes the moment when the termination process is carried out as the basis of the calculation of the valid period in terms of the termination prohibition10.
D. PROHIBITION OF TERMINATION IN CASE OF ENDING OF AN EMPLOYMENT CONTRACT BY MUTUAL RESCISSION AGREEMENT
It is possible for an employee and employer to end an employment contract through agreement, that is, by making a mutual rescission agreement (annulment agreement) between them. Such an agreement is accepted under the Turkish Code of Obligations as a reversal agreement based on the common will of the parties and is not a termination. In other words, with a valid rescission agreement, the employment contract is ended not by termination but by the agreement of the parties. In this case, a rescission agreement is not considered within the scope of the prohibition as it is not essentially a termination. However, a rescission agreement must be valid and, in order to be accepted as valid, there should be no defect in consent on behalf of the employee in addition to the "reasonable benefit" which is accepted in the practice of the Supreme Court11. These matters will be audited by the court and if it is concluded that a rescission agreement is invalid as a result of the audit, it may be concluded that there is in fact a termination on the part of the employer. Again, as can be seen in Supreme Court practice, the “reasonable benefit” amount to be provided to the employee varies depending on whether the offer of rescission comes from the employee or the employer. In light of all these explanations, decisions of violation of the termination prohibition may be made as a result of invalid rescission agreements made within the termination prohibition period.
IV. CONSEQUENCES OF AVIOLATION OF THE PROHIBITION OF TERMINATION
In accordance with Provisional Article 10 of Labor Law, if an employer terminates an employee’s contract for any reason other than the exceptions included in Provisional Article 10 during the termination prohibition, the employer will be fined separately for the monthly minimum gross wage on the date of the act and for the employee whose contract is terminated.
As well as the aforementioned administrative fine, another sanction may arise in the event of a violation of the temporary termination prohibition as stipulated in Provisional Article 23/ II of Unemployment Insurance Law. According to this regulation, in order to benefit from short-time working resulting from a force majeure due to Covid-19, the termination prohibition should not be violated during the period of short-time work in the workplace. Accordingly, in case of a violation of the termination prohibition, there may be a case for a refund of allowances if short-working practice has been applied in the workplace.
It would be appropriate to evaluate the legal consequences of a violation of the temporary termination prohibition separately in terms of violations by the employer and the employee.
A. Legal Consequences of an Employer's Behavior Contrary to the Prohibition of Termination
There is no regulation regarding the legal consequences of a termination carried out by an employer during the temporary termination prohibition other than the exceptions set out in Provisional Article 10. This issue is controversial in the doctrine. However, majority opinion is that the termination prohibition introduced in accordance with Provisional Article 10 of Labor Law is a mandatory regulation and the legal consequence of any violation of this mandatory regulation is the nullity of the notice of termination12. As a matter of fact, in the justification of Provisional Article 10, it clearly states that a termination made contrary to the termination prohibition would be invalid. In other words, termination will be deemed not to have been made at all and, therefore, the employee will be able to claim the wage for the period of non-employment in accordance with Article 408 of the Turkish Code of Obligations. However, there are opinions in the doctrine that a termination made in violation of the termination prohibition will be subject to the legal consequences of unjust termination and, as a result, employees covered by employment security will be able to declare the termination invalid by filing a reinstatement lawsuit and also to demand severance pay if they have at least oneyear employment and notice compensation, where as the employees who are not covered by employment security will be able to demand severance pay or if their employment contract have been concluded with a definite term, but terminated without complying the term, they may demand the salaries for the remaing term of the contract1314.
B. Legal Consequences of an Employee's Violation of the Prohibition of Termination
According to the explicit regulation in Provisional Article 10, if an employer gives an employee full or partial unpaid leave within the termination prohibition period, it does not give the employee the right to terminate the contract based on just cause. Despite this regulation, if the employee terminates the employment contract by refusing to accept the unpaid leave application, the termination based on just cause will not have consequences; in other words, the employee will not be entitled to severance pay even if he/she has been employed at least one year. In addition, the employee will be deprived of unemployment insurance pay since he/she would not have terminated for just cause.
BIBLIOGRAPHY
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FOOTNOTE
1 20.06.2012 tarih, 28339 sayılı Resmi Gazete (RG)
2 Yargıtay 10.H.D. T. 31.10.1978 E.1978/2077, K.1978/7689
3 Abdullah Can Gök Covid-19 Salgınının İş Hukuku Kapsamında Değerlendirilmesi Ankara 2020‘den naklen Ali Güzel/Ali Rıza Okur, Sosyal Güvenlik Hukuku, İstanbul, 2002
4 Gök Covid-19 Salgınının İş Hukuku Kapsamında Değerlendirilmesi Ankara, 2020
5 İSGK m. 19.
6 10.06.2003 tarih, 24134 sayılı RG
7 Yargıtay 9. H.D., T. 08.03.2007, E. 2006/21363, K. 2007/6171.
8 Sabahattin Yürekli, Çalışma Hayatında Koronavirüs (Covıd-19) Salgınının Etkileri, İstanbul 2020
9 Yargıtay 9.H.D. T. 15.05.2019 E.2017/11091, K.2019/11043
10 Prof. Dr. Tankut Centel, Sicil İş Hukuku Dergisi, “Covid-19 Salgını ve Türk Çalışma Yaşamı”, İstanbul, 2020
11 Yargıtay 9.H.D. T. 21.04.2008 E.2007/31287, K.2008/9600
12 Prof.Dr. Zeki Okur, “Pandemi Sürecinde İş Hukukunda Güncel Sorunlar”, https://www.youtube.com/ watch? v=EkbFLVW6Rmo (Erişim Tarihi, 22.02.2021).
13 Talat Canbolat, “Koronavirüs Salgınının İş Hukukuna Etkisi” https:// www.youtube.com/watch?v=EJnQea2zmVk (Erişim Tarihi, 22.02.2021) Nedenler”, https: //www.youtube. com/watch?v=b-EhknZeaAI, (E.T.01.06.2020).
14 Şahin Çil,“7244 Sayılı Kanunun İş Hukukuna Etkileri ve Zorlayıcı Nedenler”, https://www.youtube.com/ watch?v=b-EhknZeaAI (Erişim Tarihi, 22.02.2021)
