With the temporary regulations to fight the pandemic, employers are given the authority to start and terminate the unpaid leave. These temporary regulations keep being extended as the pandemic continues. For example, the prolonged termination ban causes the employee’s employment contract to be suspended for months with cash wage support. As such, the worker also searches for a job to eliminate their loss in earnings.
Are there any legal drawbacks for the employee to take another job while receiving cash wage support from the current employer? Will the worker continue to receive cash wage support while employed by two employers? How should the case of a worker who started at another workplace with a new employment contract be evaluated while the old employment relationship is pending? If the employee does not want to leave the new workplace when the first employer terminates his unpaid leave, what type of termination should be done?
Is It Possible to Start a New Job While on Unpaid Leave?
Cash wage support has been one of the state supports implemented since the beginning of the pandemic. With the Provisional Article 10 of the Law numbered 4857, which regulates the termination ban, employers were also given the right to unilaterally give unpaid leave. In this process, cash wage support is also applied to protect employees whose employment contracts are suspended. The support amount is 39.24 TL per day, regardless of their wages/ earnings, and the employee is paid as much as the days of unpaid leave. However, this support is not at a level that can meet the daily needs of the employee considering the cost of living. As employees need additional income, they seek second jobs.
It is necessary to examine this issue by separating the regular unpaid leave and the unpaid leave introduced during the pandemic. First, for the regular unpaid leave, the labor law does not cover any type of unpaid leave other than maternity leave, unpaid travel leave, part-time work and part time work allowance. However, it is possible to apply for unpaid leave by mutual agreement with the request of the worker and the approval of the employer. During the unpaid leave, the relationship between the employee and the employer continues on paper, it is simply suspended. Therefore, although there is no clear statement in the law, the employee’s working in another workplace while on unpaid leave without the employer’s knowledge can be considered as a factor that undermines the employee’s contractual commitment.
Second, for the unpaid leave due to the pandemic, the circumstances are different as it is solely the employer’s decision. The worker does not go on unpaid leave of his own free will. Even though there is government support, it is natural for the employee to want to compensate for loss of income and make a living. During the prolonged unpaid leave process, there is no objection for the employee to be employed in another workplace.
Does Cash Wage Support for the Employee Starting Another Job Continue?
No, the cash wage support for an employee that starts working in another workplace is cut off. Those who have started to work but continue to receive cash wage support should inform İŞKUR not to have any problems with this unwarranted payment.
How Should the Employment Contract be Terminated? What Should be the Termination Type?
In this period, the reason for the employer to take the employee on unpaid leave is not always due to his “failure to terminate his employment contract”. The employer can assign workers on unpaid leave for different reasons, terminate the leave, and invite the employee back to work. Employers who want to terminate the unpaid leave application and re-employ the employee may also encounter situations such as the employee choosing to stay in his new job.
As mentioned above, the employee’s starting to work for another employer during the “Pandemic unpaid leave” is an issue that does not concern the employer. If the employee is offered to work after his unpaid leave, the fact that he does not return to work can be evaluated as the departure decision of the employee. However, it is not possible for the employee to be dismissed on the grounds of “resignation” without his own petition.
Here, if the employee cannot approve the invitation of the employer to continue working, that is, if he / she cannot start working on the days he / she is called, the issue of absenteeism in Article 25 / II of the Labor Law numbered 4857 may come into effect.
In order to terminate due to absenteeism excluded during the termination period, the following condition must be met:
The employee has not continued to work for 2 consecutive business days or 2 times in 1 month on the next business day after a holiday or 3 business days in a month without permission from the employer or for a justified reason.
In this case, the employee must be asked about the issue. In addition, and the termination must have occurred within 6 working days from the day the incident occurred, by the person authorized to terminate the work contract.
There is no restriction for the employer to terminate the employment contract due to 4857-25 / II. The decision of the employee to continue in the new workplace and not come back to work without submitting his resignation should be considered as absenteeism.