ABSTRACT
Due to the coronavirus (“Covid-19”) epidemic that emerged in the People’s Republic of China and affected the whole world, the concept of force majeure which is defined in Labor Law numbered 485, has occurred, and the concept of compelling reason was examined within the scope of the employment contract between the employee and the employer. The legal measures taken due to Covid-19, which has been declared as a pandemic by the World Health Organization, and this led to changes in Labor Law which will also be examined within the scope of this article.
I. INTRODUCTION
The cases regarding Coronavirus (“Covid-19”) firstly had been diagnosed in the city of Wuhan in the last days of December 2019, which is also has affected many other countries. At first, Chinese officials reported that 41 people have a disease which has a similar structure as pneumonia on December 31,2019; after which it has been declared that this is a new disease, not pneumonia on January 7, 2020. As of 12.03.2020 World Health Organization has explained that there has been a global pandemic. With regard to Turkey, the first coronavirus case has been confirmed on March 11, 2020 after which Covid-19 has a significant impact on daily life as well as on the employer-employee relationship.
Several precautions have been taken in Turkey in order to prevent wide-spread of Covid-19. Firstly, flight bans had been imposed to the countries where Covid-19 were spreading. On 15 March, the Ministry of the Interior issued an Additional Circular (“Additional Circular-1”) stating that pavilions, discotheques, bars and night clubs will be closed temporarily, which has followed by another Additional Circular (“Additional Circular-2”) theatre, cinema, wedding hall, pub, coffee shop, sports centers internet cafe, will be temporarily suspended on 16.03.2020, Turkish citizens who are older than 65-yearold and suffering from chronic illnesses will be restricted from leaving their homes amid coronavirus measures by Additional Circular (“Additional Circular-3”) on 21.03.2020, at the same date with another Additional Circular (“Additional Circular-4”) when the high level of physical contact is considered, the activities of barbers, hairdressers and beauty centers were temporarily suspended as of 21.03.2020 and with another restaurants, It has been decided that restaurants, patisseries and similar establishments can only serve as take-away or take-away services.
At this stage, with the positive developments, Ministry of Internal Affairs Circular issued on 06.05.2020 in line with the recommendations of the Health Ministry's Coronavirus Scientific Advisory Board, it was decided that hairdressers and barbers will continue their activities as of 11.05.2020, provided that they comply with the rules to be determined by considering the effects of the epidemic. In addition, within the scope of the normalization plan, the President declares that cinemas, theatres, performance centres and similar enterprises are allowed to operate according to certain rules as of 01.07.2020 and citizens over the age of 65 can go out at certain hours every day of the week, and the curfews of citizens under 18 It has been lifted.The slowdown or even halt of many sectors in the process has caused serious economic consequences for businesses, accordingly, such matters has pushed the government to take measures in every field and it has been inevitable that this process has various impacts in terms of labor law. In accordance with the measures was taken by the government, the Law on Decrease of Effects of New Coronavirus (Covid-19) Epidemic on Economic and Social Life and Law on Amendment of Certain Laws numbered 7244 (“Amendment Law”) was published in the Official Gazette and entered into force in 17.04.2020; and the Law on The Establishment of The Digital Media Commission and Making Amendments on Some Laws Numbered 7252 was published in the Official Gazette and entered into force in 28.07.2020.
Due to these events, in many workplaces, the activities had to be suspended temporarily due to force majeure and as a natural result of these, many incidents occurred within the scope of labor law. In this article, we will mention the issues related to labor law which have affected from the Covid-19 epidemic, such as suspension of the activities in the workplaces, application of remote work, employees’ wages and leaves.
II. EVALUATION OF THE COVID-19 WITHIN THE FRAMEWORK OF FORCE MAJEURES IN LABOR LAW
A. Force Majeure in Labor Law
Although there are many regulations in the Labor Law numbered 4857 (“Law”) regarding the effects of the force majeure on the execution of the performance arising from the employment relationship; the definition of the force majeure is not mentioned in the Law. Even the definition is not mentioned in the Law, it is defined in article 3-h of the Regulation on Shot-Time Work and Short-Time Work Allowance (“Short-Time Work Regulation”) as follows; “Periodic situations that are not caused by the employer’s own management and administration but from external events, not predictable, and as a result, not possible to be eliminated, that results in a temporary reduction on working hours or a complete or partial cessation of the activities in workplace; or, situations such as earthquakes, fires, floods, landslides, epidemics and mobilization.”
Although the definition of the force majeure is not included in the Law, the limits of it determined in the doctrine and the Supreme Court decisions. In order for an event to be considered as a force majeure, the event must have taken place outside the control of the parties, that such event must be unforeseeable at the time the legal relationship is established between the parties or even if the event is foreseeable at that time, consequences of it must be unforeseeable, and the effects of it must can not be eliminated although all measures was taken by the parties. It should be noted that the situations that are considered as force majeure may sometimes be clearly regulated in the contracts.
B. Whether Covid-19 Epidemic Constitutes Force Majeure or Not
The force majeure must not necessarily and always be related to the employee or the employer himself; on the contrary, it can be said that force majeure has occurred in case of failure to go to workplace due to natural events such as flood, earthquake etc. and martial law or quarantine. Likewise, epidemic diseases are counted as force majeures in article 3-h of Regulation of Short Work. Quarantine due to epidemic diseases is accepted as a force majeure also in accordance with the established case law of the Supreme Court1.
Based on above explanations, it may be thought that Covid-19 will constitute a force majeure for employees who can not go their workplaces and can not perform their duties as a natural consequence of the measures taken by the administration due to epidemic (closure of workplaces, declaration of curfew and etc.). However, the termination of the contract by the employer due to Covid-19 will not be considered as termination on the basis of just cause in cases where the workplace is closed on the own initiative of the employer instead of measures taken by administration.
Covid-19 has made serious impacts on social life and economy that if it is accepted that such impacts constitutes force majeures on the employment relationship between employer and employee, it may result in the below mentioned consequences. However, it should be noted that the Labor Law legislation has amended with certain Circulars and Laws due to Covid-19. In our topic below, after explaining the Labor Law legislation in force when Covid-19 was first seen in Turkey, we will mention in following topics that what kind of changes have been made through Labor Law legislation.
C. Articles Refers to Force Majeure in The Law
The concept of force majeure is regulated in the 3rd subclause of 24th article and 3rd subclause of 25th article of the Law and it was stated that force majeure may arise from the employer of the employee. In this context, the employer or employee will have right to terminate the employment contract in case of force majeures that require the cessation of work for more than a week in the workplace where the employee perform his duties within the scope of the contract.
Again in the 40th article of the Law, concept of the force majeure is mentioned as follows; “The employee who can not work or who is not engaged in work due to the reasons set forth in subclause III of articles 24 and 25 shall be paid, up to one week, half his wages for each day.” As per this article, the employment contract of the employee who can not work or who is not engaged in work due to force majeures, up to one week, is suspended and the said employee is paid half of his daily wage.
One of the articles of the Law that mentions force majeure is the subparagraph (d) of the 55th article. In accordance with the said provision, “Fifteen days of any period during which the employee has not worked because of the temporary but interrupted suspension of operations for longer than one week owing to force majeure, on condition that he has subsequently resumed work.”
It is stated in the 64th article of the Law that the employer can make compensatory work for unworked periods within four months, in case the work is stopped for force majeures, by saying “In case where… operations are stopped entirely for reasons of suspending work due to force majeure… the employer may call upon compensatory work within two months in order to compensate for the time lost due to unworked periods. President is entitled to increase the length of the compensatory work period up to double. Such work shall not be considered overtime work or work at extra hours. Compensatory work shall not exceed three hours daily, and must not exceed the maximum daily working time in any case. Compensatory work shall not be carried out on holidays” Although there is no explicit reference to the force majeure in the 22nd article of the Law, the article in question may be considered as an article that may be benefited by both the employer and the employee as per the aim of the article, in the event of a force majeure. Namely, “Any change by the employer in working conditions based on the employment contract, on the rules of work which are annexed to the contract, and on similar sources or workplace practices, may be made only after a written notice is served by him to the employee. Changes that are not in conformity with this procedure and not accepted by the employee in written form within six working days shall not bind the employee. If the employee does not accept the offer for change within this period, the employer may terminate the employment contract by respecting the term of notice, provided that he indicates in written form that proposed change is based on a valid reason or there is another valid reason for termination”.
D. Evaluation Of Tlc A.24.3 And 25.3. Under Covid-19
1. Termination And The Principle Of Termination As A Last Resort
As described above, many measures have been taken by the administration to prevent the spread of Covid-19 pandemic. Reasons such as partial curfew, temporary closure of workplaces in certain sectors and curfew for certain age groups may be considered as force majeures that occur between the employer and the employee.
Although, as described above, TLC a.24 and 25 provides the parties the right to terminate the labor contract for just cause in this context, in accordance with the established case law of the Supreme Court, core principles of labor law, the principle of honesty and the principle of termination as a last resort, must be observed. According to the “principle of termination as a last resort” that put forward by the Supreme Court, the employer shall consider alternative ways instead of termination, milder measures than termination should be taken at first place or there should be no possibility of taking such measures in order for terminating the labor contract. Employer may apply for shorttime work allowance by shorten the working hours of the employee, may leave the employee on unpaid leave or put remote working on practice before terminating an employment contract. But it should be noted that, with regard the putting remote working on practice, the unilateral decision of the employer on such change may be considered as a essential change in working conditions as per TLC a.22, which have explained above. Based on this, in the absence of the approval of the employee with regard to flexible working methods that will be applied by the employer during the Covid-19 pandemic, it may be concluded that both parties will have right to terminate the employment for just cause.
2. Alternative Ways To Be Applied Before Termination
2.1. Short-Time Work
In accordance with the additional second article of the Unemployment Insurance Law numbered 4447, putting shot-time working on practice in the workplace may be possible in the following cases: “In the events such as general economic, sectoral or regional crisis and significant abatement on weekly working hours temporarily or temporary cessation of activity in the workplace in whole or in part due to force majeures, shot-time working may be put on practice at the workplace up to three months.”
In order to put short-time working on practice, in addition to the conditions counted in the scope of below mentioned article, the working hours applied in the workplace shall have been reduced temporarily by at least one-third in part or in whole of the workplace, or activities in the workplace shall have been fully or partially stopped for at least four weeks without seeking for a condition of continuity.
Regulation on Short-Time Working and Short-Time Working Allowance, which entered into force by publishing in the Official Gazette numbered 27920 in 30.04.2011 is regulated in order for determining the payment of the short-time work allowance to the employees who work in a workplace where the weekly working hours has extraordinarily decreased temporarily or the activities conducted in the work place has stopped partially or wholly due to economic, sectoral or regional crisis.
The employer shall apply to affiliated Turkish Employment Agency (İŞKUR) for shot-time working by explaining the general economic, sectoral or regional crisis and force majeures that he exposed due to Covid-19 pandemic. The employer presents a list of employees who will benefit from short-time working application; employees can not make claims for themselves, for them, the employer shall apply for short-time working on behalf of employees. In the event that it is claimed by the trade union confederations of employees and/or employers that there are force majeures arising from the general economic, sectoral or regional crisis and periodic situations caused by external effects, the matter is evaluated by the Board of Directors of İŞKUR. In case a decision is not taken by the Board of Directors of İŞKUR, the request submitted by the employer to institution will be rejected. If conformity is granted as a result of examination conducted by labor inspectors, if the list of employees who will benefit from short-time working application or the time period that short-time working application to be applied changes, the employer’s application for them will be considered as a new application. The employer should indicate the effects of the general economic, sectoral or regional crisis and force majeures to the workplace, address, tittle İŞKUR registry number and social security registry number of the workplace, employee trade union which is the party of the collective labor contract (if any) and present the list of the employees who will benefit from short-time working application, which indicates the information regarding to employees and prepared in a magnetic and written environment in the form determined by institution.
In a workplace that short-time working has put on practice, the employer request employees to do compensatory work for day offs during shot-time working application in accordance with TLC a.64, as described above.
2.2. Taking Employees on Annual Paid Leave
One of the first ways that comes to mind is the use of accumulated annual leaves that employees did not have used. Annual paid leave is a right that arising from the law is a dispottion within the scope of employer’s management right. It is stated in 8th article of the Regulation of Annual Paid Leave that the employer is not bound by the request of the employee in terms of the use of annual paid leave. According to related article, “Permission board or the employer is not bound by the date of leave requested by the employee. However, the charts to be drawn up by the said board to show the order and alternation of leave are prepared by taking into account the request and the employment status of the employee.”. It is clearly stated in the Supreme Court’s decision numbered 2014/27000 E. and 2016/2328 K. that the determining of the time to use of annual paid leave is within the scope of the management right of the employer as follows; “…As stated in the Regulation of Annual Paid Leaeve, determining the time to use of annual paid leave is within the scope of the management right of the employer. It is clear that this right of employer should be used within the framework of good will. In other words, the right to rest of the employee which arises from the Constitution should be used in accordance with the needs of the workplace and within the framework of the employee’s request as much possible…”. However, afterwards of the relevant decision, it was stated that the employer should not use such right maliciously. Accordingly, during the Covid-19 pandemic, it is possible for employers to force employees to use their annual paid leaves, within the bounds of principle of honesty.
One of the first ways that comes to mind is the use of accumulated annual leaves that employees did not have used. Annual paid leave is a right that arising from the law is a dispottion within the scope of employer’s management right.
2.3. Leaving Employees on Unpaid Leave
Another way that comes to mind is leaving employees on unpaid leave. Unpaid leave means the suspension of the employment contract; during this period, the employee does not obligated to fulfill his duties arising from the contract, while the employer is relieved from his obligation to pay wage. In order to operate this way, the employment contract signed by and between the parties shall be examined at first place. In the event there is a regulation on the contract that gives employer to leave employees on unpaid leave, employer make leave employees on unpaid leave in accordance with such regulation. However, no such regulation exists in the contract, it will only be possible for employer to leave employees on unpaid leave via mutual agreement of the parties since leaving employees on unpaid leave considered as substantial alternation of working conditions. In this respect, unless there is a regulation under the contract for such matter, it will not possible for employer to leave employees on unpaid leave unilaterally and against the request of employees. In the event that employer leave employees on unpaid leave unilaterally and against their will, this means the termination of the employment contract by the employer and at the same time, the employee will have right to terminate the contract for a just cause.
The principle of termination should be the last resort” (ultima ratio), which is essential for the protection of the employee states that lighter measures should be applied to prevent termination. In preamble of 22th article of Labor Code, it is stated that “the purpose of the article is to ensure the continuation of the employment relationship by making certain changes in the working conditions instead of terminating the contract directly in the presence of certain negative conditions.”. Accordingly, even a valid reason for termination exists, it is aimed ensure the continuation of the contract by making changes in the working conditions instead of termination. In a nutshell, although employer has not right to leave employees on unpaid leave via unilateral decision, it can be argued that the unpaid leave application is in accordance with the principle of termination is the last resort, by presenting the existing conditions in possible court cases that may be filed by the employees who do not accept such practice. At this point, it is important that the unpaid leave application shall be carried out in a consistent measured within the framework of the principle of equality.
2.4. Adoption of Remote Work
In today’s technology, it is also possible to expand the concept of workplace and adopt remote work application. Remote work is specified in 14th article of the Labor Law as follows; “Remote work is a contractual work relationship in which employees perform their work, which is within the scope of the employers’ work organization, at home or away from the workplace by means of technological communication devices.”. During remote work, the employee still works within the scope of the employers’ work organization, in line with employer’s orders and instructions, in accordance with the working hours and for wage that specified in the employment contract by the parties but outside the boundaries of the workplace. In the same way with the unpaid leave application, adoption of remote work with the unilateral decision of the employer depends on a regulation for such adoption in the employment contract between employer and employee. In the absence of such regulation, in the event that remote work is adopted via unilateral decision of the employer, it should be evaluated whether this means substantial alteration on working conditions or not. With adoption of remote work, (i) if there will be a change in the working conditions of the employee such as wage, working hours, such adoption must be notified to the employee in writing and written consent of the employee must be obtained, (ii) if there will be no substantial alteration on working conditions of the employee, the consent of the employee will not be required, but yet the employee should have been notified on such adoption.
3. Termination
In the event that expected efficiency can not be achieved despite the above mentioned methods other that termination is tried, or if the one-week period specified in Article 40 of Law is exceeded, employment contract may be terminated at this point.
3.1. Termination of The Employment Contract Within The Scope of Articles 24 and 25
In order for the employment contract to be terminated by the employer, Covid-19 epidemic must have occurred in the employee’s near environment and it shall prevent the employee from working for a week. If these conditions are met, the employment contract may be terminated by employer for just cause. Such situation, which constitutes a just cause in terms of termination of the employment contract, removes the employer’s obligation to notice but yet, it does not affect the severance payment obligation. Likewise, in the event quarantined due to an epidemic and if the employee is unable to perform his duties as a result of the quarantine, the employee will also be able to terminate the employment contract for just reason. In accordance with the 40th article of the Law, during this one-week period, the employer pays half of the wage to the employee as explained in more detail above. In this way, the employment contract of the employee will be suspended if the contract is not terminated by the employee following the expiry of the one-week period despite the force majeures that require the cessation of the work for more that a week at the workplace, and the employer will not be obligated to make any payment to the employee during the suspension period. The Law grants the employee the right to terminate the employment contract for this reason at the end of the one-week period, while the same right is not granted for the employer.
For workplaces such as sports halls, cinemas and show centers, entertainment venues whose activities were suspended within the scope of circulars of the Ministry of Internal Affairs due to Covid-19 outbreak, it can be argued that a force majeure has arisen and therefore, employees may have right to terminate the employment contract for just cause. However, it can not be thought that the force majeure has arisen for the workplaces that have not ben closed due to Covid-19 outbreak.
3.2. Termination of The Contract Due to Employer or Another Employee to Get Caught With Covid-19
It has been stated in Article 25/1-b of the Law that “If the Health Care Committee has determined that the suffering is incurable and incompatible with the performance of the employee’s duties. In cases of illness or accident which are not attributable to the employee’s fault and which are due to reasons outside those set forth in (a) above and in cases of pregnancy or confinement, the employer is entitled to terminate the contract if recovery from the illness or injury continues for more than six weeks beyond the notice periods set forth in Article 17. In cases of pregnancy or confinement, the period mentioned above shall begin at the end of the period stipulated in Article 74. No wages are to be paid for the period during which the employee fails to report to work due to the suspension of his/her contract.” and in Article 76 of the Public Health Law that “Those who are certain to transmit one of the epidemic diseases to those around his/her are temporarily banned from the execution of professional arts by the decision of sanitation councils until this is lost.”. Accordingly, the employment contract of the employee may be terminated by the employer for just cause if the mentioned conditions are met. Hereunder, the employer may terminate the employment contract for just cause if the disease that the employee get caught reaches a level that can not be cured, and the Health Board determines that the employee is inconvenient to work in the workplace, and duration of this situation exceeds the notification periods stated in the Article 17 of the Law which depend on the employee’s seniority. However, it should be noted that whether it is possible to terminate the employment contract of the employee get caught with coronavirus within the scope of the article specified in the Law should be evaluated by considering the conditions of each event. In addition, although it is possible to say that the disease caused by the Covid-19 outbreak is extremely contagious, it does not seem possible to say that it is certainly incurable; in this context, the effects o disease on the employee and the nature of the job that the employee is obligated to do should be evaluated together. Lastly, it should be emphasized that if the employer terminates the employment contract on the basis of this reason, his obligation to pay severance payment will stand.
The situation that the employee continues to work despite the contagious disease that he/she caught poses a great risk for both the employer and other employees work in the workplace. It has been regulated in the Article 24/1-b that the employees can terminate the employment contract for just cause if another employee who works in the workplace or the employer get caught with a contagious and/ or a disease which is incompatible with the work conducted in the workplace, by saying “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 employment contract has a different nature than other private law contracts since it establishes a personal relationship between the employee and the employer. As a result, it is crucial to protect the employee against the employer through regulations to be made in the legislation. In the second subclause of Article 417 of the Turkish Code of Obligations (“TCO”) numbered 6098, it is stated that “The employer shall be responsible from taking all the measures required for ensuring work health and safety in the workplace, to keep the necessary equipment and materials, whereas the employees shall be responsible for observance of all the measures taken for work health and safety.”. Accordingly, employer is obligated to take all necessary measures in order for protect the employee and also obligated to supervise the employee. Likewise, the employer’s obligation to protect the body integrity of the employee is regulated in detail in the provisions of Article 4 and following articles of the Occupational Health and Safety Law (“OHSL”) numbered 6331. In the 13th article of the OHSL, it is explained how the exercise of the employee’s right to refrain from working will find an application area. As per this provision, in order to use the right to refrain from working, a serious and imminent danger shall exist, an application must have been made to determine the danger, the necessary measures must have not been taken and the work must not have been stopped due to the continuing danger.
III. AMENDMENTS ON LABOR LAW LEGISLATION DUE TO COVID-19
1. Amendments through law numbered 7226 and dated 25.03.2020
1.1. Termination Ban in Workplaces That Benefit From Shor-Time Work
In the provisional article 23 of the law, "valid until 30/6/2020, for short work applications made due to force majeure originating from the new coronavirus (Covid-19), in the third paragraph of the additional article 2, in order for the worker to be entitled to short work allowance The provision of fulfilling the conditions of entitlement to unemployment insurance, except for the termination of the prescribed service contract, is applied as those who are subject to service contract for the last 60 days before the start of shortterm employment, working as insured for 450 days in the last three years and paying unemployment insurance premium. Those who do not meet this condition continue to benefit from the short work allowance for the period remaining from the last unemployment benefit entitlement, not exceeding the short working period.
In order to benefit from the short-work practice within the scope of this article, the employee should not be fired by the employer, except for the reasons stated in sub-clause (II) of the first paragraph of Article 25 of Law No. 4857, in the period of short-time work at the workplace. Applications made under this article are concluded within 60 days from the date of application.” The President is authorized to extend the application date made under this article until 31/12/2020 and to differentiate the days specified in the first paragraph.".
According to the regulation, employers, in workplaces where short work practice is in question, will not be able to terminate the employment contracts of the employees for reasons other than the reasons listed in the second paragraph titled "Situations that do not comply with the rules of ethics and goodwill and the like" of Article 25 of the Law. The termination ban stated in the text of below mentioned article has been extended for two months as of the date of 17.09.2020 with the Presidential Decision numbered 2930 and published in the Official Gazette dated 04.09.2020. Accordingly, until the date of 17.11.2020, employment contracts of the employees shall not be terminated for reasons other than the reasons stated in the 25th article’s 2nd subclause named “For immoral, dishonorable or malicious conduct or other similar behavior”.
1.2. Amendments on Working Time of Compensatory Work
In the 64th article of the Law, the employer has been given the right to make compensatory work within four months for unworked periods in cases where employees works considerably lower than the normal working hours or operations are completely stopped for reasons of suspending work due to force majeures, by saying “In cases where time worked has been considerably lower than the normal working time or where operations are stopped entirely for reasons of suspending work due to force majeure or on the days before or after the national and public holidays or where the employee is granted time off upon his request, the employer may call upon compensatory work within two months in order to compensate for the time lost due to unworked periods.”. With this Law numbered 7226, the upper mentioned provision’s “…employer may call upon compensatory work within two months in order to compensate for the time lost due to unworked periods.” part has changed as “employer may call upon compensatory work within four months in order to compensate for the time lost due to unworked periods”. Thus, the employer may call upon compensatory work for the time that the employee has not worked, within four months.
2. Amendments enter into force in 17.04.2020 Through the law on decrease of effects of new coronavirus (covid-19) epidemic on economic and social life and law on amendment of certain laws numbered 7244
2.1. Termination Ban
The termination of the employment contract on the basis of just cause due to force majeure is regulated under the 3rd subclause of 24th and 25th articles. Curfews and quarantines announced due to epidemic diseases may be considered as force majeures and relevant provisions of these articles may be applied. As detailly explained above, while the employer’s right to terminate the employment contract for just causes was limited with the workplaces where shot-time work practice has started and application period within the scope of Law numbered 7226, such right is further limited with the Law numbered 7244, which entered into force on 17.04.2020. In this respect, provisional article 10 has been added to the 10th article of the Law through 9th article.
“PROVISIONAL ARTICLE 10 – All kinds of employment contracts of any employee covered or not covered by the Labor Law will not be terminated by the employer for three months from the effective date of this article, except in cases that do not comply with the rules of ethics and goodwill, and similar causes, which are specified under item (II) of second subclause of 25th article. In three months period mentioned above, the employer can leave the employees completely or partially on unpaid leave. In this context, leaving the unpaid leave does not give employee the right to terminate the contract based on the valid reason.
The employer or the employer’s representative who terminates the employment contract contrary to the provisions of this article is given an administrative fine equal to the monthly gross minimum wage on the date of the act for each employee whose contract is terminated.
The President is entitled to extend the threemonth periods up to six months specified in the first and second paragraphs of this article.”
Within the scope of this article, regardless of whether short-time work practice is applied in the workplace or not, the employer’s right to terminate the employment contract is abolished for three months, except for the situations regulated in the second subclause of the 25th article of the Law. Again, within the scope of same article, in cases where the employer leave the employees on unpaid leave within the framework of his own unilateral declaration, the right of the employee to terminate the employment contract is abolished.
2.2. Amendment on Employees to Leave on Unpaid Leave Through Employers Unilateral Decision
Another amendment brought by the Law numbered 7244 is that the employer is entitled to leave the employees on unpaid leave completely or partially for a period three months period at most, without seeking the employee’s approval, in accordance with the provision of “In three months period mentioned above, the employer can leave the employees completely or partially on unpaid leave. In this context, leaving the unpaid leave does not give employee the right to terminate the contract based on the valid reason.” which is regulated under the provisional article 10. Accordingly, the employer, whose right to terminate the contracts of the employees is abolished for three months period, except in cases that do not comply with the rules of ethics and goodwill, and similar causes, which are specified under item (II) of second subclause of 25th article, will be untitled to leave the employees on unpaid leave for a period of three months without seeking the employee’s approval or request.
2.3. Amendment on Short-Time Working Allowance
With the provisional article 10, a provision with regard the short-time allowance has added to the Law. Relevant provision is regulated as follows; “For the short-time work applications made by employers for force majeures due to new coronavirus (Covid-19), short-time work payments is made in line with the employers’ statement, without waiting for the determination the eligibility of the application. Excessive and unwarranted payments due to the employer providing incorrect information and documents are collected from the employer together with its statutory interest.”. In accordance with this provision, with regard to the short-time work applications made by the employers due to the force majeures arising from Covid-19, shot-time work payments can be paid with the declaration of the employers without waiting for the determination of the conformity decision to be made by labor inspectors.
2.4. Amendment on Temporary Employment Allowance
According to article added to the Unemployment Insurance Law numbered 4447 within the scope of Law numbered 7244, employees who have an existing employment contract at the time the article get into force and who are also left to unpaid leave by the employer within the scope of provisional article 10 of the Unemployment Insurance Law and can not benefit from the short-time work allowance and the employees whose employment contracts are terminated pursuant to article 51 of the Unemployment Insurance Law after the date of 15.03.2020 and who can not benefit from unemployment allowance with respect to other provisions of this Law, provided that they do not receive any other old age pension from any social security institution, it is stipulated that they will be given a cash wage support in the amount of TL 39 from the fund for the period of unpaid leave or unemployment for not exceeding the period that termination ban which regulated under the provisional article 10 of the Law numbered 4857 exists. Employees who benefit from the cash wage support within the scope of this article and who are not included in the scope of general health insurance holders or dependents of the general health insurance holders pursuant to the Social Insurance and General Health Insurance Law numbered 5510, are considered to be general health insurance holders in accordance with the article 60/1-g of the same Law and the general health insurance premiums of those are covered from the fund. In accordance with the aforementioned regulation, a net monthly unemployment allowance in the amount of TL 1.168,00 will be paid to the employees who are left on unpaid leave and who can not benefit from short-time work allowance and employees whose employment contracts terminated after the date of 15.03.2020.
2.5. Extension of The Time Regarding Trade Unions and Collective Labor Contracts
As stated in article 2/ı of the Law numbered 7244, time periods with regard authorization determinations made within the scope of the Law numbered 6356 on Trade Unions and Collective Labor Contracts, conclusion of collective labor contracts, resolutions of collective labor disputes, strikes and lockouts are extended for three months as of the date of 17.04.2020, when this article entered into force. President is entitled to extend these time periods for another three more months following the end of this threemonths period.
2.6. Income Criteria in Care Services and Severe Disability Conditions
As regulated in Article 5 of Law numbered 7244, in accordance with provisional article 18 that added to the Social Services Law numbered 2828, income criteria and severe disability conditions sought to provide services to those in need in care centers and the income criteria sought to provide care services via purchasing services will not be sought for three months as of the date of 17.04.2020, when this article entered into force, due to force majeures arising from the Covid-19 epidemic. President is entitled to extend this time period up to one year.
3. Amendments enter into force in 28.07.2020 Through the law on the establishment of the digital media commission and making amendments on some laws numbered 7252
3.1. Termination Ban
With the regulation made in the Law numbered 7252, the President has been authorized to extend the previously imposed ban on the employer’s right to terminate the employment contract for three-months periods each time until the date of 30.07.2021.
3.2. Amendments on Short-Time Work
With the provisional article 26 added to Law numbered 4447, due to the force majeure arising from the Covid-19 epidemic, in case employees who work in private sector workplaces and benefit form short-time work allowance and/or cash wage support return to their normal weekly working hours in their workplaces, it has been decided that their monthly insurance premiums will be covered by the Unemployment Fund for 3 months, provided that it will not exceed as the date of 31.12.2020. In addition, the President has been authorized to extend the 3-month period up to 6 months separately for each sector or wholly. Accordingly, the support period to be provided to the employer for each month can not exceed the average number of days in which they receive short-time work allowance, and the average number of days they receive cash wage support for those who receive cash wage support.
3.3. Amendments on Occupational Health and Safety Obligations Regarding Some Employers
In accordance with the Occupational Health and Safety Law dated 20.06.2012 and numbered 6331, in public institutions and dangerous workplaces with less than 50 employees, employers are obligated to employ occupational safety experts and workplace doctor. Pursuant the provision brought by the Law numbered 7252, the employer’s obligation to employ occupational safety experts and workplace doctor has been postponed until 31.12.2023 in terms of these workplaces. It should be noted that, postponement is only related to the employment obligation of the workplace doctor and occupational safety experts, and other obligations of the employer which are stipulated by the Occupational Health and Safety Law numbered 6331 are not included in the scope of the postponement.
IV . EVALUATION OF COVID - 19 ASOCCUPATIONAL DISEASE/ACCIDENT
Occupational accident may be defined as an event that causes the insured person to be physically or spiritually harmed by a sudden and external factor due to the job or job he/she operates under the authority of the employer.2 On the other hand, occupational disease may be defined as a temporary or permanent disease, physical or mental disability, which the insured suffered due to a recurring reason or the conditions of execution of the work that insured worked or performed3.
There is no consensus in the doctrine on whether the coronavirus should be considered as a disease or an occupational disease. According to one opinion, such epidemic diseases shall be considered as a disease, not a occupational accident and/ or occupational disease, while opposing opinion argues that they should be accepted as occupational accidents4. Considering that the occupational disease is related to “a recurring reason or the conditions of execution of the work” and that the conditions of the work should be done for a certain period of time, the opinion which argues that coronavirus can not be considered as an occupation disease gains importance5. However, each incident related to Covid-19 should be evaluated within itself, accordingly, while Covid-19 will not be considered as an occupational accident or occupational disease in terms of some events, it may be considered as a occupational accident or a occupational disease in some cases6.
BIBLIOGRAPHY
Civil Department No.9 of Supreme Court, 2016/12874 E., 2018/20402 K., 13.11.2018.
Civil Department No.9 of Supreme Court, 2016/9116 E. 2019/16141 K., 18.09.2019.
Civil Department No.9 of Supreme Court, 2016/14140 E. 2018/21011 K., 20.11.2018.
GÜZEL (ALI)/OKUR (ALI RIZA)/CANİKLİOĞLU (NURŞEN), Sosyal Güvenlik Hukuku, Beta Yayıncılık, İstanbul, 2020.
SÖZER (ALI NAZIM), İşçi, Bağımsız Çalışan ve Kamu Görevlileri Bakımından Türk Sosyal Sigortalar Hukuku, Beta Yayıncılık, İstanbul, 2019.
KURT (RESUL), 250 Soruda Koronavirüs Sürecinde İş ve Sosyal Güvenlik Hukuku, Seçkin Yayıncılık, İstanbul, 2020
FOOTNOTE
1 9th Civil Chamber of The Supreme Court’s Decision Numbered 2016/12874 E. 2018/20402 K. and Dated 13.11.2018 9th Civil Chamber of The Supreme Court’s Decision Numbered 2016/9116 E. 2019/16141 K. and Dated 18.09.2019 9th Civil Chamber of The Supreme Court’s Decision Numbered 2016/14140 E. 2018/21011 K. and Dated 20.11.2018
2 Ali Güzel, Ali Rıza Okur, Nurşen Caniklioğlu, Sosyal Güvenlik Hukuku, p. 361
3 Sözer, İşçi, Bağımsız Çalışan ve Kamu Görevlileri Bakımından Türk Sosyal Sigortalar Hukuku, p. 358
4 Kurt, 250 Soruda Koronavirüs Sürecinde İş ve Sosyal Güvenlik Hukuku, p. 236, 237
5 Kurt, p. 236, 237
6 Kurt, p. 236, 237
