1. INTRODUCTION
A labor claims lawsuit is a lawsuit filed by an employee to claim their receivables through legal proceedings in cases where the rights granted to the employee by law, collective bargaining agreement, or individual employment contract arising from the employment contract are not paid or are paid incompletely.
The relationship between the employee and the employer is specifically regulated within the framework of labor law, and because the employee is the economically weaker party, the legislation contains provisions that protect the employee. In this context, a labor claims lawsuit may cover many items, such as severance pay, notice pay, overtime pay, annual leave pay, and national holiday and general holiday pay.
These lawsuits are heard in Labor Courts and are subject to laws enacted to protect the rights of employees. Statutes of limitations, burden of proof, collection of evidence, and procedural rules are of great importance in filing a lawsuit.
The main purpose of labor claims lawsuits is to secure the wages and other legal rights of the employee in return for their work. Disputes usually arise after the termination of the employment contract, and in most cases, mandatory mediation must be sought before filing a lawsuit.
During the trial process, principles such as the principle of interpretation in favor of the employee, the protection of the rights of senior employees, and the prevention of unregistered work are also taken into account. As a result, labor claims lawsuits play a critical role both in resolving individual labor disputes and in achieving the protective purpose of labor law.
The main sources of legislation applicable to lawsuits are: Labor Law No. 4857, Turkish Code of Obligations No. 6098, and Code of Civil Procedure No. 6100.
We divide employee claims into two categories: termination-related employee claims and non-termination-related employee claims.
A) Termination-Related Employee Claims
Claims for claims that must be paid in favor of the employee due to termination of the employment contract by the employer may be made. These are:
“Severance Pay – Notice Pay – Annual Leave Pay – Bad Faith Claim.“
B) Employee Claims Not Related to Termination
These are claims that the employee can make at any time they are entitled to, regardless of whether the employment contract has been terminated or not.
These are claims unrelated to the outcome of the employment contract, such as:
2. TERMINATION-RELATED EMPLOYEE CLAIMS
A) SENIORITY INDEMNITY
Severance pay is compensation paid to the employee for the period they worked for the same employer when the employment contract ends under the conditions stipulated by law.
The calculation is based on the employee’s last gross salary (including rights such as transportation, meals, social assistance, etc. in addition to the salary). Payment is made in the amount of 30 days’ salary for each full year; the same rate applies to periods exceeding one year. All periods of employment, whether intermittent or continuous, at different workplaces of the same employer are included in the total seniority calculation.
The employee must meet the conditions stipulated by the Law in order to receive severance pay from the employer. These conditions are:
The employee must be classified as an employee subject to the Labor Law No. 4857.
The employee must have worked for at least one year.
The employment contract must have been terminated in accordance with the reasons for termination specified in the Law.
I. INDEFINITE-TERM CONTRACTS
1- TERMINATION OF THE CONTRACT BY THE EMPLOYEE
The employer has certain obligations arising from the contract and the law. These include obligations such as paying wages, supervising the employee, and treating them equally. Failure by the employer to comply with their obligations will justify the employee’s termination of the employment contract.
The legitimate reasons for termination by the employee are clearly listed in Article 24 of Law No. 4857: health reasons, moral and malicious reasons, and compelling reasons attributable to the employer.
Regardless of whether the contract is for a fixed term or not, the employee may terminate the employment contract before the end of the term or without waiting for the notice period in the cases specified in Article 24.
Labor Law Article 24 – Regardless of whether the contract is for a fixed term or not, the employee may terminate the employment contract before the end of the term or without waiting for the notice period in the following cases:
1. Health reasons:
a) If performing the work covered by the employment contract poses a danger to the employee’s health or life due to the nature of the work.
b) If the employer or another employee with whom the employee has regular and direct contact contracts an infectious disease or a disease incompatible with the employee’s work.
2. Violations of moral and good faith principles and similar circumstances:
a) If the employer misleads the employee by presenting false qualifications or conditions regarding one of the essential points of the employment contract at the time of its conclusion, or by providing information or making statements that are not true.
b) If the employer makes statements or behaves in a manner that damages the honor or reputation of the employee or a member of their family, or sexually harasses the employee.
c) If the employer harasses or intimidates the employee or a member of their family, or encourages or incites the employee or a member of their family to act against the law, or commits a crime punishable by imprisonment against the employee or a member of their family, or makes false and serious accusations or allegations against the employee that damage their honor and dignity.
d) If the worker is sexually harassed at the workplace by another worker or third parties and the employer fails to take the necessary measures despite being notified of the situation.
e) If the employer does not calculate or pay the worker’s wages in accordance with the provisions of the law or the terms of the contract,
f) If it is agreed that wages will be paid on a piecework basis or according to the amount of work done, but the employer gives the employee less work than they are capable of doing, and the difference in wages is not paid on a time basis to compensate the employee for the wages they have not received, or if the working conditions are not applied.
III. Compelling reasons:
If compelling reasons arise at the workplace where the employee works that require the work to be suspended for more than one week,
If any of these reasons exist, the employee has the right to immediately terminate the employment contract and, if they also meet the other conditions mentioned above, is entitled to severance pay.
2- TERMINATION OF THE CONTRACT BY THE EMPLOYER
The employee is bound by the service contract. While fulfilling their obligations, they shall perform their work diligently, refrain from competition, remain loyal, and act in accordance with the employer’s instructions and orders. Termination of the employment contract shall be considered in the event of a breach of these obligations.
The employer’s right to immediate termination is clearly stated in Article 25 of Law No. 4857; health reasons, cases of non-compliance with morality and good faith rules, and compelling reasons.
Regardless of whether the term is fixed or not, the employer may terminate the employment contract before the end of the term or without waiting for the notice period in the cases specified in Article 25.
Labor Law Article 25 – Regardless of whether the term is fixed or not, the employer may terminate the employment contract before the end of the term or without waiting for the notice period in the following cases:
I- Health reasons:
a) If the employee contracts an illness or becomes disabled due to their own fault, disorderly lifestyle, or alcoholism, and the resulting absence lasts for three consecutive working days or more than five working days in a month.
b) If the employee’s illness is deemed incurable and the Health Board determines that there is a risk in the employee continuing to work at the workplace.
(a) Except for the reasons listed in subparagraph (a), the employer has the right to terminate the employment contract without notice in cases such as illness, accident, childbirth, and pregnancy of the employee; this right arises after the periods specified in Article 17 exceed six weeks, depending on the employee’s length of service at the workplace. In cases of childbirth and pregnancy, this period begins at the end of the period specified in Article 74. However, wages are not paid for periods during which the employee is unable to attend work due to the suspension of the employment contract.
II- Cases of non-compliance with moral and good faith rules and similar cases:
a) Misleading the employer by claiming to possess the necessary qualifications or conditions for one of the essential points of the employment contract when they do not, or by providing false information or statements.
b) The employee uttering words or engaging in behavior that infringes upon the honor and integrity of the employer or a member of their family, or making false accusations and allegations that damage the employer’s honor and integrity.
c) The employee sexually harassing another employee of the employer.
d) The employee harassing the employer or a member of their family or another employee of the employer, coming to the workplace drunk or under the influence of drugs, or using such substances at the workplace.
e) The employee engaging in conduct that violates honesty and loyalty, such as abusing the employer’s trust, committing theft, or disclosing the employer’s trade secrets.
f) The employee committing a crime at the workplace that is punishable by imprisonment for more than seven days and for which the sentence is not suspended.
g) The employee failing to report to work for two consecutive working days or twice within a month on the working day following any holiday, or for three working days within a month, without the employer’s permission or without a valid reason.
h) The employee’s persistent refusal to perform the duties assigned to them despite being reminded to do so.
ı) The employee endangering the safety of the work due to their own will or negligence, causing damage or loss to machinery, equipment, or other items belonging to the workplace or under their control to an extent that cannot be compensated by thirty days’ wages.
III- Compelling reasons:
The emergence of a compelling reason that prevents the employee from working at the workplace for more than one week.
IV- Absence exceeding the notification period specified in Article 17 in the event of the employee’s arrest or detention.
The employee may apply to the courts within the framework of the provisions of Articles 18, 20, and 21, claiming that the termination is not in accordance with the reasons set forth in the above paragraphs.
II. FIXED-TERM CONTRACTS
Under Law No. 4857, if the employment relationship is not time-bound, the contract is considered to be for an indefinite period. The law is clear. In fixed-term jobs, a written employment contract between the employee and the employer based on objective conditions, such as the completion of a specific job, is a fixed-term employment contract.
Successive employment contracts based on substantial reasons retain the characteristic of being fixed-term employment.
While the mutual consent of the parties to establish an employment contract is considered sufficient, in the application of Law No. 1475, in line with the decisions of the Court of Cassation, a restriction has been imposed on fixed-term employment contracts, and it has been accepted that contracts that are continuously renewed will become indefinite-term contracts after more than two renewals. (Supreme Court of Appeals 9th Civil Chamber, 2005/12625 E., 2005/38754 K., 07.12.2005)
III. STATUTE OF LIMITATIONS FOR SENIORITY INDEMNITY
The statute of limitations for severance pay expires five years after the termination of the employment contract. This period is a period of limitation. If the employee does not file a lawsuit to claim severance pay within five years, their right to sue will be lost.
If the employment contract was terminated before October 25, 2017, the statute of limitations period for severance pay is 10 years from the date of termination. As of this date, the statute of limitations period has been reduced to 5 years.
IV. BASIS FOR CALCULATING SENIORITY INDEMNITY
The calculation is based on the wage at the time the employment contract was terminated. In the case of termination with notice, the date of the end of the notice period is taken as the basis. The calculation is made based on the salary on that date. On the other hand, if the employer terminates the contract without giving notice and without paying or underpaying the notice compensation, the employee should also benefit from the salary increase that will apply until the end of the notice period, and the compensation calculation should be made based on the salary including this increase. SENIORITY COMPENSATION IS CALCULATED BASED ON 30 DAYS OF THE EMPLOYEE’S GROSS SALARY.
V. CASES WHERE SENIORITY COMPENSATION MUST BE PAID
1- Termination of the Employment Contract by the Employee for Just Cause
If the nature of the work poses a danger to the employee’s health or life, the employee may terminate the employment contract.
The employee may also exercise their right to terminate the contract if their wages, overtime payments, or other entitlements are not paid at all or are consistently paid late.
The employee may also terminate the contract if the employer engages in insults, threats, sexual harassment, or mobbing; if the employer uses abusive language towards a member of the employee’s family or commits a crime against them. Similarly, if a coworker engages in such behavior and the employer fails to take necessary measures despite the employee reporting the situation, the employee may also terminate the employment contract. These reasons constitute just cause for termination and may entitle the employee to severance pay.
2- Compensation Entitlement Due to Military Service
An employee is entitled to severance pay upon termination of the contract for the purpose of fulfilling compulsory military service obligations. This payment is calculated based on the salary at the time of termination.
3- Severance Pay Due to Old Age or Retirement
If the employee has reached the legal retirement age, they automatically become entitled to severance pay.
4- Severance Pay Due to Death
Upon the death of the employee, their legal successors may claim severance pay. Even if the employee is entirely at fault in a work accident resulting in death, their heirs may still receive severance pay.
5- Severance Pay for Women Terminating Their Contract Within One Year of Marriage
A female employee is entitled to severance pay if she terminates her employment contract on the grounds of marriage. However, this termination must be made within one year of the date of marriage. This is a time limit, and otherwise, the employee is not entitled to severance pay.
VI. CASES WHERE SENIORITY INDEMNITY IS NOT PAYABLE
1- Resignation Without Just Cause
An employee who resigns without just cause is not entitled to severance pay.
2- Termination of the Employment Contract by the Employer for Just Cause
This is regulated in Article 25 of the Labor Law No. 4857 and is a method that the employer can resort to when faced with situations that give the employee the right to terminate the contract immediately. In this termination, the notice period is not required and no notice compensation is paid. Justifiable reasons include health reasons, cases of non-compliance with moral and good faith rules, compelling reasons, and the employee’s arrest or detention.
3- Employee’s Duty of Loyalty and Non-Competition Clause
The employer may terminate the employment contract for just cause due to disloyal behavior. The employee must refrain from actions that put the employer at risk and cause harm to the employer. The employee must protect the employer’s interests in matters related to the job and workplace.
Upon termination of the employment contract, the duty of loyalty is replaced by a non-competition clause. The employee must refrain from competing with their former employer.
4- Severance Pay Due to Employee Illness and Absence
The employee’s absence for three consecutive days or five days in a month must be intentional or a result of their irregular lifestyle. If the employer terminates the employment contract for this reason, the employee is not entitled to severance pay.
If the employee contracts an illness through their own fault and a medical report certifies that working at the workplace will have a negative effect on their illness, the employer may terminate the employment contract for just cause without paying severance pay.
B) NOTICE PAYMENT
The employee and employer must comply with the notice periods specified in the employment contract they have signed. Notice compensation is the compensation that the terminating party is obliged to pay to the other party if an indefinite employment contract is terminated without one of the justifiable reasons specified in the law and without complying with the notice periods (notice periods) stipulated in the Labor Law. This regulation ensures that the employee or employer does not suffer any disadvantage in the event of sudden termination and guarantees the necessary preparation period to find a new job or employee.
Notice compensation is not subject to a minimum one-year employment condition, such as severance pay or annual leave pay; even if the employment contract is for less than six months, this compensation is paid if the termination occurs without complying with the notice period. In the event of termination, the parties either continue to work for the statutory notice period or the termination is immediate. In the case of immediate termination, notice pay equivalent to the notice period must be paid.
Labor Code – Article 17 – Prior to the termination of an indefinite-term employment contract, the situation must be notified to the other party.
Employment contracts;
a) For an employee whose employment has lasted less than six months, two weeks after the notice is given to the other party,
b) For employees whose employment has lasted between six months and one and a half years, four weeks after the notice is given to the other party,
c) For employees whose employment has lasted between one and a half years and three years, six weeks after the notice is given to the other party,
d) For an employee whose employment has lasted more than three years, eight weeks after the notice is given,
shall be deemed terminated.
These periods are minimum periods and may be extended by contract.
The party failing to comply with the notice requirement must pay compensation equal to the wages for the notice period.
The employer may terminate the employment contract by paying the wages corresponding to the notice period in advance.
Pursuant to Article 17 of the Law, the situation must be notified to the other party in writing prior to the termination of the contract. The party failing to comply with the notice requirement must pay compensation equal to the wages for the notice period. This compensation is the notice indemnity.
For notice compensation to arise:
1-The employment contract must be of indefinite duration.
2-The contract must not have been terminated for just cause.
3-The notice periods must not have been complied with.
Notice compensation is a type of compensation that can be claimed by both the employee and the employer. This is because both the employee and the employer have a duty to give notice before termination.
Notice pay is a right granted to both the employee and the employer, but severance pay is a right granted only to the employee.
a) For employees whose employment has lasted less than six months, two weeks after the notice is given to the other party,
b) For employees whose employment has lasted between six months and one and a half years, four weeks after the notice is given to the other party,
c) For employees whose employment has lasted between one and a half and three years, six weeks after the notice is given to the other party,
d) For employees whose employment has lasted more than three years, eight weeks after the notice is given,
– The above-mentioned scale system shall be used to determine the notice compensation payable to the employee in the event of unjustified and unnotified termination by the employer.
1- STATUTE OF LIMITATIONS FOR NOTICE PAY
The statute of limitations for notice compensation is five years from the date of termination. The statute of limitations periods for severance pay are the same. It is a period that extinguishes the right, and the right to sue is lost upon the expiration of five years.
2- BASIS FOR CALCULATING NOTICE PAY
The rule applied in calculating severance pay will be applied in calculating notice compensation. It will be calculated based on the employee’s gross salary on the date of termination. Regularly paid additional monetary contributions are included in the calculation of notice compensation. The following are not included in the calculation:
-Annual leave pay
– Overtime pay
-Public holiday pay
– UGBT wages
Payments that are not continuous or regular will not be included in the severance pay calculation.
C) ANNUAL LEAVE PAYMENT CLAIM
Annual leave pay is a period of rest, provided for in exchange for the employee’s work throughout the year, during which the employee can exercise their right to rest, and for which the employer pays the employee’s wages. In Turkey, workers’ annual leave entitlement is guaranteed by the Constitution and labor law legislation. The wage for this period is generally calculated based on the worker’s base salary (i.e., only the basic wage).
According to the Labor Law, annual leave pay must be paid in advance before the leave begins or given to the employee as an advance. This regulation aims to ensure that the employee can truly rest during their leave period without experiencing financial concerns.
According to Paragraphs 3 and 4 of Article 50 of our Constitution:
“Rest is a right of workers.
Paid weekly and holiday leave, as well as paid annual leave rights and conditions, are regulated by law.”
Labor Law Article 53 – Employees who have worked for at least one year, including the probationary period, from the date they started working at the workplace are entitled to annual paid leave.
The right to annual paid leave cannot be waived.
The provisions of this Law regarding annual paid leave do not apply to employees working in seasonal or campaign-based jobs that last less than one year due to their nature.
The duration of annual paid leave granted to employees shall be determined based on their length of service:
a) Fourteen days for those with service periods of one to five years (including five years),
b) Twenty days for those with service periods exceeding five years but less than fifteen years,
c) Twenty-six days for those with fifteen years (inclusive) or more of service,
There is an exception to this regulation. The leave period for workers aged 18 or younger and workers aged 50 or older cannot be less than 20 days. These periods may be increased in favor of the worker through collective bargaining agreements and individual employment contracts.
By law, employees with at least one year of seniority are entitled to annual paid leave for each full year of service, and the employer is obligated to grant this right to the employee. Annual leave entitlements become due upon termination of the employment contract. Since the right to annual leave is a legal right, the fact that the employment contract has been terminated with or without cause does not prevent the employee from claiming it.
The employee’s annual leave rights do not expire for that year if they are not used; rather, they continue to accumulate and must be granted by the employer until the date of termination of the employment contract. Upon termination of the employment contract, all unused annual leave periods are converted into the employee’s annual leave pay entitlement, and the employee has the right to claim this entitlement from the employer.
Unlike other periodic entitlements, annual leave entitlements are assessed as of the date of termination; therefore, the statute of limitations also begins to run from the date of termination of the contract. This regulation aims to provide economic security to the employee and to guarantee the protection of the leave entitlements accumulated during the period of employment.
1- STATUTE OF LIMITATIONS FOR ANNUAL LEAVE PAY
Annual leave compensation is subject to a 5-year statute of limitations. This period is a period of forfeiture. In subsequent contracts, if the employee does not exercise their right to claim 5 years of compensation through legal action, their right to sue will be forfeited.
2- APPLICATION OF ANNUAL LEAVE USE
Annual leave may be divided and used in parts by mutual agreement between the parties, taking into account the working conditions at the workplace, the nature of the work, and any potential problems that may arise from the employee being on leave. However, the employer cannot unilaterally divide the annual leave; this is only possible with the mutual consent of the employee and the employer. Therefore, the employee’s consent must be obtained for the division of annual leave.
Other paid or unpaid leave granted by the employer to the employee during the year, as well as rest or sick leave, cannot be deducted from the annual paid leave entitlement. Furthermore, national holidays, weekends, and public holidays falling within the leave period are not included in the calculation of the annual leave period.
D) MALICIOUS TERMINATION COMPENSATION
An employee who claims that the employment contract was terminated by the employer in bad faith is responsible for proving this. According to current practice, termination in bad faith can only be carried out by the employer; such termination is not possible on the part of the employee.
Pursuant to Article 17 of Labor Law No. 4857, in cases where the contract of employees who are not covered by job security provisions is terminated through abuse of the right of termination, the employee shall be paid bad faith compensation equal to three times the notice period. Notice periods vary according to the employee’s seniority.
Bad faith compensation only applies to indefinite-term contracts; it does not apply to fixed-term contracts.
I- CONDITIONS FOR ENTITLEMENT TO BAD FAITH COMPENSATION
– The Employee Must Have Worked in a Permanent Position: Positions lasting at least 30 working days are considered permanent.
– The Employee Must Not Be Covered by Employment Security: It will apply to the termination of the contract of employees excluded from employment security. (Art. 18/1)
The employment contract of an employee working in a permanent job and not covered by employment security provisions must have been terminated by the employer in bad faith.
Article 17 of Labor Law No. 4857 does not contain a clear definition or limited list of circumstances that would be considered termination in bad faith.
II- STATUTE OF LIMITATIONS FOR BAD FAITH COMPENSATION
Annual leave compensation is subject to a 5-year statute of limitations. This period is a period of limitation. After this period, workers who do not exercise their right to claim 5 years of compensation through legal action will lose their right to sue.
3. EMPLOYEE CLAIMS NOT RELATED TO TERMINATION
These are the claims earned by the employee during the term of the employment contract but not yet paid. These claims, which are not dependent on termination, are the payments the employee is entitled to while continuing to work.
The employer must make the payment to the employee while the employment relationship continues. These claims arise while the employment contract continues, and the employee has the right to demand them from the employer without waiting for termination. These include:
-Wage claim
-Overtime wage claim
-National holiday and general holiday wage claims
-Weekly holiday wage claim
-Bonuses, gratuities, and social assistance
-Minimum subsistence allowance (AGI) receivable (ABOLISHED)
-Fringe benefits such as transportation, meal, and travel allowances
A) WAGE CLAIM
Wage entitlement is the fundamental right that the employer must pay in exchange for the employee’s obligation to perform work and is one of the most important elements of the employment contract.
According to the Labor Law No. 4857, wages are a payment that must be made in cash and, as a rule, no later than once a month. Wage claims are the equivalent of the employee’s labor and are subject to both constitutional guarantees and legal protection.
Labor Law Article 32 – In general terms, wages are the amount provided to a person by the employer or third parties in exchange for work and paid in cash.
Wages are one of the essential elements of an employment contract and are the amount paid in cash by the employer in return for the work performed by the employee. Wages are paid at least once a month.
Upon termination of employment contracts, the employee’s wages and any monetary benefits arising from the contract and the Law must be paid in full.
The employee does not need to have terminated the employment contract in order to claim their wages; they have the right to claim unpaid wages from the employer even while the employment contract is still in force.
While the burden of proof regarding the amount of wages lies with the employee, the burden of proof regarding the payment of wages lies with the employer.
Labor Law Article 34 – An employee who has not been paid within twenty days from the date of payment for reasons other than force majeure may refrain from fulfilling their obligation to perform work. Therefore, even if their refusal to perform their obligation to work based on their personal decisions takes on a collective nature in terms of numbers, it cannot be classified as a strike. The highest interest rate applied to deposits shall be applied to wages not paid on time.
1- STATUTE OF LIMITATIONS FOR WAGE CLAIMS
The statute of limitations period for wage claims is five years, in accordance with Article 32 of the Labor Law No. 4857.
This period begins to run from the date on which the wage becomes due (the date it must be paid).
In addition to wages, other claims of an employee that are considered wages, such as overtime pay, weekend pay, national holiday pay, and general holiday pay, are also subject to a 5-year statute of limitations.
B) OVERTIME PAY CLAIMS
Pursuant to Article 41 of the Labor Law, the weekly working hours are set at a maximum of 45 hours. Overtime is defined as work exceeding 45 hours per week.
While the overtime pay rate is 25% above the normal wage, the overtime pay rate is 50% above the normal wage.
The maximum daily working time is 11 hours. If the working time exceeds 11 hours, it is considered overtime, even if it does not exceed the weekly limit of 45 hours. The employee must be paid 50% more than their hourly wage for work exceeding 11 hours.
For night work as defined by law, the working limit cannot exceed 7.5 hours. Even if the weekly 45-hour legal working limit is not exceeded for night work, overtime pay must be paid for work exceeding 7.5 hours.
The weekly working hours at the workplace may be set below the 45 hours stipulated by law. Work exceeding this period and up to 45 hours is considered overtime work. In this case, even if the total weekly working time does not exceed 45 hours, each hour of work exceeding the specified 40 hours is considered overtime work, and the employee is paid 25% more than the normal hourly wage for these hours. This should not be confused with overtime pay. Here, each hour of work is considered overtime work, and the overtime pay rate will be reflected in the overtime hourly wage.
It is not necessary for the employment contract to have been terminated in order to claim overtime pay. Since these are employee claims not dependent on termination, overtime pay can be claimed from the employer even during the period when the employment contract is still in effect.
The burden of proof that overtime was worked lies with the employee, while the burden of proof that overtime pay was paid lies with the employer. Any evidence may be used to prove that overtime was worked.
1- STATUTE OF LIMITATIONS FOR OVERTIME PAY
The statute of limitations for overtime pay claims is 5 years. As with other labor claims, this period does not start from the date of termination or maturity but from the date of the claim, lawsuit, or amendment. Therefore, the employee can claim overtime pay for up to 5 years prior to the date of the claim.
C) UGBT WAGE CLAIMS (NATIONAL HOLIDAY AND GENERAL HOLIDAY CLAIMS)
According to Article 47 of the Labor Law, employees are paid their full wages on national holidays and general holidays. However, voluntary work is possible. If they work, the employee must be paid an extra day’s wage for each day worked. An employee who works on a holiday is entitled to 2 days’ wages.
These entitlements, which are not dependent on termination, may be requested during the term of the employment contract as well as after termination from the employer.
While the burden of proof that work was performed on UGBT days lies with the employee, the burden of proof that the employee was paid for their work lies with the employer. The employee can prove that work was performed on a UGBT day with any type of evidence.
1- STATUTE OF LIMITATIONS PERIOD FOR UGBT CLAIMS
The statute of limitations period for UGBT wage claims is 5 years. As with other labor claims and overtime claims, this period does not start from the date of termination or maturity, but from the date of the claim, lawsuit, or amendment. Therefore, the employee may claim overtime wages for a maximum of 5 years retroactively from the date of the claim.
D) WEEKLY HOLIDAY PAY CLAIM
Pursuant to Article 46 of the Law, the employee has the right to at least 1 day (24 hours) of uninterrupted rest within a one-week period. This right to rest is called the weekly holiday right.
The employee will receive pay for the day they rest. It must be paid even if they do not work.
If the employee works on the weekly holiday, the 1 day’s weekly holiday pay they are entitled to for not working remains reserved. In addition, since the work they do will be considered overtime, they will be paid 50% extra (1.5 times the daily wage). In other words, they will receive a total of 2.5 times the daily wage.
The burden of proof for work performed on the weekly holiday lies with the employee, while the burden of proof for payment lies with the employer.
1- STATUTE OF LIMITATIONS FOR WEEKLY HOLIDAY PAY
Weekly holiday pay is considered a wage claim and is subject to a 5-year statute of limitations, like other wage claims. This period begins from the date the wage claim arises.
E) MANDATORY MEDIATION IN LABOR DISPUTES
As of January 1, 2018, mediation has been made mandatory. Labor disputes filed without complying with this condition will be dismissed on procedural grounds.
The aim is to reduce the workload of the courts by having the parties seek mediation to reach a mutual agreement on their claims and compensation before the dispute between the employee and employer is brought before the judicial authorities.
If no agreement is reached, the employee making the claim may seek their claims and compensation through litigation. A five-year statute of limitations is provided for filing a claim with the labor courts.
F) COMPETENT AND AUTHORIZED COURT
COMPETENT COURT : LABOR COURTS (In areas without labor courts, CIVIL COURTS COURTS act as labor courts.) |
COMPETENT COURT : THE COURT OF THE DEFENDANT EMPLOYER’S PLACE OF RESIDENCE OR BUSINESS ( ) OR THE COURT WHERE THE WORK OR TRANSACTION TOOK PLACE. |
EMPLOYMENT CLAIMS – FREQUENTLY ASKED QUESTIONS ABOUT EMPLOYMENT CLAIM CASES?
1- Does an employee have the right to receive severance pay due to civil service appointment?
The Supreme Court’s previous case law considered the employee’s appointment to civil service as valid for severance pay. This was because it did not consider the right to be appointed to civil service as just cause for termination and therefore did not evaluate it as resignation.
However, in its subsequent decisions, the Supreme Court of Appeals adopted the view that appointment to civil service should be considered as “finding a better job” and therefore did not entitle the employee to severance pay. It has issued quite a few decisions in this manner. (9th Civil Chamber, 2016/2011 E., 2019/6783 K., 26.03.2019)
2- IS IT POSSIBLE TO CLAIM SENIORITY AND NOTICE PAYMENTS IN AN UNCERTAIN CLAIM CASE?
Severance and notice pay cannot be claimed through an uncertain claim lawsuit. This is because the amount of these claims can be easily calculated based on the termination date of the employment contract, the employee’s length of service, and their gross salary. The Court of Cassation has adopted this view.
Only a partial lawsuit can be filed for seniority and notice compensation. The plaintiff can claim a certain portion while reserving their rights to the remainder. They can claim the remaining portion by resorting to rectification, relying on the explicit consent of the opposing party, or by filing an additional lawsuit.
Notice and seniority compensation cannot be claimed through an action for an indeterminate claim. The Supreme Court’s decisions are consistent in this regard. (Supreme Court 22nd Civil Chamber, 2016/6543 E., 2016/12675 K., 04.28.2016)
(“…severance pay, notice pay, and annual leave pay are not indeterminate claims. Since the claims subject to the lawsuit are determinable and cannot be the subject of an indeterminate claim lawsuit, the main lawsuit should have been dismissed on procedural grounds due to lack of legal interest regarding these claims, and it was erroneous to enter into the merits of the case and render a decision as stated in the written decision…”)
3- WHAT ARE THE DIFFERENCES BETWEEN UNCERTAIN CLAIM LAWSUITS AND PARTIAL LAWSUITS IN EMPLOYEE CLAIMS, AND WHICH CLAIMS SHOULD BE PURSUED IN WHICH LAWSUITS?
PARTIAL CLAIM: The claimant does not sue for the entire claim but only for a specific portion of it. (HMK 109) The claimant knows the amount of the claim but sues for only a portion of it for strategic reasons.
In cases involving severance pay, notice pay, wage claims, bonuses, travel allowances, and premiums, the employee knows the amount of the claim and must file a partial lawsuit to prevent the case from being partially accepted or partially rejected. The plaintiff employee must then claim the remaining portion of the claim through amendment or supplementary lawsuit.
The statute of limitations is interrupted for the part subject to the lawsuit, while it continues to run for the part not subject to the lawsuit. In partial claim lawsuits, interest begins to accrue from the date of amendment.
UNCERTAIN CLAIM LAWSUIT: An uncertain claim lawsuit is filed when the plaintiff employee cannot determine the amount of the claim fully and definitively (HMK 107).
The employee may not know the amount of overtime, annual leave days, weekly holiday pay, national holiday and general holiday pay, or wage differences. In this case, an uncertain claim lawsuit must be filed. If the plaintiff employee knows the exact amount of the claim through an expert opinion and it is certain, they can increase their claim without applying for amendment and without the express consent of the opposing party.
When filed as an uncertain claim, the statute of limitations is interrupted for the entire claim, not just the portion being sued for. Interest begins to accrue from the date of the lawsuit. According to consistent Supreme Court case law, when a lawsuit is filed as an uncertain claim, the statute of limitations is interrupted for the entire claim.
4- IS IT POSSIBLE TO INCREASE THE 30-DAY WAGE PAYABLE FOR EACH YEAR IN A SENIORITY INDEMNITY CLAIM?
It is possible to increase the 30 days’ salary to be paid for each year worked. This increase can be modified by collective bargaining agreements or service contracts.
5- IS IT POSSIBLE FOR AN APPRENTICE TO RECEIVE SENIORITY INDEMNITY UPON LEAVING THE JOB?
Since apprentices are not subject to the Labor Law No. 4857 and do not have employee status, they are not eligible for severance pay.
6- IS AN EMPLOYEE WHO RETIRES DUE TO DISABILITY ENTITLED TO SENIORITY INDEMNITY UPON LEAVING THEIR JOB?
Under Law No. 1475, leaving work to receive disability pension is a valid reason for being entitled to severance pay.
7- IS AN EMPLOYEE WHO LEAVES THEIR JOB TO RECEIVE A LUMP-SUM PAYMENT ENTITLED TO SENIORITY INDEMNITY?
Pursuant to Article 14 of Law No. 1475, an employee who leaves work to receive a lump sum payment from institutions or funds established by law or presidential decree shall be entitled to severance pay.
8- CAN AN EMPLOYEE WHO EXERCISES THEIR RIGHT TO STRIKE BE DISMISSED?
The legal right to strike is regulated in Article 54 of the Constitution. Employees who exercise their legal right to strike cannot be dismissed. If dismissed, the employee will be entitled to severance pay as a result of the dismissal action, which does not constitute just cause.
9- WHAT CONSTITUTES MOBBING?
As a result of mobbing, workers may experience negative consequences such as depression, stress, and loss of productivity. A single instance of negative behavior does not constitute mobbing; it must be continuous. There must be actions aimed at negative goals such as the worker leaving their job or becoming isolated. Any action that puts pressure on and dominates the worker in a way that tarnishes their honor and dignity falls within the scope of mobbing.
10- WHAT ARE THE RIGHTS OF AN EMPLOYEE WHO IS SUBJECTED TO MOBBING?
An employee who is subjected to mobbing at work is entitled to severance pay if they terminate their employment contract. They may also claim compensation for the violation of their personal rights and any other damages they have suffered.
11- IS THE EMPLOYEE REQUIRED TO WORK ON NATIONAL HOLIDAYS AND PUBLIC HOLIDAYS?
Regulations regarding working on national holidays and public holidays may be explicitly stated in the employment contract or, if applicable, in the collective bargaining agreement. If no such provision exists, the employer must obtain prior written consent to require the employee to work on these days.
12- CAN AN EMPLOYEE WORK IN ANOTHER JOB WHILE ON PAID LEAVE?
An employee cannot work at another job while on paid leave. If the employer learns of this, they may demand reimbursement for the wages paid during the paid leave.
13- DOES A SEASONAL WORKER HAVE THE RIGHT TO ANNUAL LEAVE?
A worker employed in a seasonal job lasting less than one year does not have the right to annual leave.
14- IS THERE AN AGE REGULATION REGARDING ANNUAL LEAVE?
If the worker is 18 years old or younger or 50 years old or older, the annual leave entitlement granted cannot be less than 20 days.
15- THE IMPORTANCE OF LEGAL REPRESENTATION IN LABOR LAW?
In our judicial system, representation by a lawyer is optional. However, in the technical field of labor law, being represented by a lawyer is crucial for the success of your case.