Turkish Labor Law
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Unpaid leaves are not clearly defined and arranged in Turkish legislation.
An employee may sometimes be in need of taking a day or two off for various and quite understandable reasons, such as sickness of family members, and for other innumerable cases require employee to attend outside of workplace within the working hours. However, apart from some specific conditions, unpaid leave of an employee is left to understanding of the employer.
Another way to a take an unpaid leave is to deduct the unworked days from the annual leave period.
Turkish Labor Law 4857 contains two types of unpaid leave:
- Upon their request, 6 months unpaid leave will be granted for the female employee after the expiration of statutory maternity leave and for the married couples who adopted a child under three years of age. (Labor Law, article 74).
- employees are also allowed to take up to 4 (four) days unpaid leave, on condition that the employee provides documentary evidence that s/he is spending his/her annual leave at a place other than where the work place is located. (Labor Law, article 56).
How the unpaid leaves are treated?
- Unpaid leave request must be in written and must be accepted by employer
- No wage is paid for the unworked day
- No SSI premium paid, only missing day declared for the employee
- Employee continues to benefit from healthcare services up to ten days during the unpaid leave
- Unpaid leaves are not taken into consideration in the calculation of employee’s seniority
- Employee cannot work in other workplace during unpaid leave, otherwise that may be a just cause for employer to terminate the employment contract
- Employers cannot force their employers to take unpaid leave, otherwise that may be just cause for the employee to terminate the contract.
No forcing for unpaid leave
According to Turkish legislation and Supreme Court Practices; neither employer, nor employee can force each other for taking or granting unpaid leave. This type of leave is possible only under mutual consent.
In practice employers are tend to force their employees to take unpaid leave for reason of economic or financial crisis. Although Labor Law doesn’t contain clear provisions about unpaid leave, the rules of implementation are determined by Supreme Court practices.
CASE SUMMARY
- The event: A security guard was given 20 days unpaid leave by the employer (a Security company), because the hotel he is working in didn’t want his service. He signed the unpaid leave document and found a new job.
- Employee’s claim: Employee claimed his severance, notice pay and bad faith compensation; on the ground that employer terminated his contract without just causes.
- Employer’s allegations: Employer stated that “he was given unpaid leave because the hotel they send him to work didn’t want his service. Employee signed the leave document; however he found a new job while he was in unpaid leave and didn’t answer the employer’s phone calls anymore.
- Verdict of Local Court: Local court declined the employee’s claims on the ground that he signed the leave document meaning excepting it, and found another job while he was in unpaid leave which constitute a just cause to terminate the contract for the employer.
- Supreme Court Ruling: Excepted the employee’s claims for the following reasons;
ü Employer’s making the employee to take unpaid leave means termination of employment contract
ü Employee’s signing the leave document doesn’t mean he accepted the leave
ü Employee’s finding a job during the leave doesn’t change the nature of legal fact.
DEDUCTION
ü Employer cannot force the employees to take unpaid leave; this may be considered as termination of employment contract, or employee himself may terminate the contract with just cause.
Employees cannot take unpaid leave without employer’s consent, Labor Law, article 56 and 74 are excluded as it is stated above.
