Can the Side Benefits Be Eliminated during the Pandemic?

The pandemic has greatly affected many companies. While some companies had to completely cease their activities during this period, some could not operate at full capacity. In order to minimize the reflection of this job loss on the workers, the wage payments of the employees were supported by the state. Given the conditions, we all often see examples where employers tend to cut back on certain side benefits during this period. So, under what conditions can employers cut down side benefits?

Under Which Conditions Should the Benefits Provided to the Employee be Paid?

According to the current labor legislation, the employer is obliged to pay the actual wage to the employee for his/her work. The rights to be provided to the worker other than the wage are not compulsory by law. For example, employers are not obliged to pay their workers meal allowance or travel allowance. Side benefits become a necessity for the parties after they sign the employment contract with the mutual agreement of the employee and the employer. The rights in the labor contract or collective bargaining agreement must be paid to the employee.

As a tradition of the workplace, the general side benefits paid to all other employees must be paid to all those who are employed or currently work in that workplace, even if they are not included in the employment contract. If the employer does not discriminate among the workers without a fundamental reason, paying a bonus to one and not paying the other workers, it may contradict the principle of “equal treatment” and create the right to compensation for discrimination. Side benefits based on substantial grounds can only be paid to certain workers. For example, if English speaking workers are paid “language compensation” at the workplace, other non-English speaking workers do not benefit from this right. Or every worker may not be entitled to the same bonus as the individual performances can vary.

Certain rights provided by the employer to all its workers on a regular basis and/or in certain periods of the year are also considered as the rights of the workers, even if they are not included in the employment contract. For example, employers who give holiday allowance to their workers on every holiday for 2 years have to pay holiday allowance to their workers the following year.

How Can Side Benefits Be Released?

We mentioned that side benefits are mandatory not only by the decision of the employer or the worker, but by mutual agreement. If the employer decides to cease side benefits, it is necessary to agree mutually. If the employer wants to abolish a benefit that he has paid regularly, he must obtain the written consent of the employee. In case of approval, the employee relinquishes his side benefits and the employer’s obligation to pay is eliminated. If the employee does not give written consent, the employer has to continue with this payment or assistance.

Failure to pay a payment that workers are entitled to means that the employee’s wage is underpaid. The worker whose wage is underpaid may first warn the employer and demand that the additional payment be made. If the employer does not make the payment to the employee despite this warning, the employee may have the right to terminate the employment contract immediately for justified reasons. In this case, the employee can also terminate the employment contract and be entitled to severance pay. (Labor Law No. 4857, Article 24 / II-e)

Can Side Benefits Be Given Under Pandemic Conditions?

It is common for employers affected by pandemic conditions to want to cut side benefits as they have difficulty paying the actual wages. However, the employer does not have such a right.

The reason for giving the side benefit to the worker is also important. A workplace that pays its employees a travel fee can be waived as employees work from home during the pandemic. However, it is not possible to stop paying bonuses that are paid every year unilaterally.

In case the employee is sent on unpaid leave by the employer due to the pandemic or the workplace is closed, the side benefits to be paid to the employee will be suspended as is the employment contract. Thus, the worker will only benefit from the cash wage support provided by the state for unpaid leave (if he meets the conditions).

In cases where the worker brings the issue to the judiciary in order to seek his rights, the judiciary’s interpretation is also important. It is not yet known how the issue will be evaluated by considering the economic and pandemic conditions, which will result in these rights, which are arranged in a way that is not open to interpretation in the legislation.

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