Although the application of unpaid leave is one of the cases in which the employment contract is suspended, even before the pandemic process, which was experienced in our country as well as the world, a few articles were regulated as unpaid leave, there is no explicit provision regarding unpaid leave in the Labor Law No. 4857. there was no regulation.
However, as a result of the pandemic process experienced, the “Law on Reducing the Effects of the New Coronavirus (Covid-19) Epidemic on Economic and Social Life and Amending Certain Laws” numbered 7244 was published in the Official Gazette dated 17.04.2020, and with this Law, numbered 4857. Temporary 10 added to the Labor Law. With this article, the principles regarding the application of unpaid leave due to the pandemic have been determined. Temporary 10 added to the Labor Law. After the article, an unwritten distinction emerged in practice, such as unpaid leave due to the pandemic and unpaid leave for other reasons. Before going into the details of these issues, it would be useful to clarify what the application of free leave means.
I- WHAT IS THE FREE PERMISSION APPLICATION?
Unpaid leave is the suspension of the existing employment contract between the employee and the employer. This request may come from the employer as a result of the cessation or decrease of the jobs, or from the employees periodically, such as to study abroad for a while or at the end of the leave period after pregnancy.
In the case of suspension of the employment contract, the employee does not fulfill his job performance, that is, he does not work, and the employer does not pay any wages. In addition, the employee is not paid during this period, and no insurance premium is accrued on his behalf. Therefore, in the application of unpaid leave, the employment contract does not disappear, but remains suspended.
II- AVAILABLE PERMISSION REGULATIONS IN THE LABOR LAW NUMBER 4857
As we mentioned above, unpaid leave was not defined in the Labor Law No. 4857 before 17.04.2020, but unpaid leave was mentioned in some articles. To give an example of these items;
- Article 74 of the Labor Law titled “Work and Breastfeeding Leave in Maternity Status” . In the second paragraph of the article, it is regulated that after the end of the postpartum maternity leave, female workers and female or male workers who have adopted a child under the age of three can benefit from the right to unpaid leave, upon their request, for the purpose of caring for and raising their child, provided that the child is alive.
- 56 of the Labor Law titled “Application of Annual Paid Leave” . In the article, “ The employer is obliged to give unpaid leave of up to four days in total to cover the time spent on the way to and from those who will spend their annual paid leave in a place other than the place where the workplace is established, provided that they make a request and document this issue.” regulation is included.
Although unpaid leave is mentioned in some articles, as in the examples mentioned above, in the Labor Law No. 4857, since there is no general regulation, it is useful to mention the Supreme Court Decisions on this issue.
Supreme Court 7. In its decision dated 15.09.2015, Law Office 2015/28095 E. 2015/15036 K. stated what are the necessary conditions for the employment contract to be in suspension. According to this decision of the Supreme Court;
- In order to suspend the employment contract, the performance of the debt of employment or the emergence of the impossibility of accepting this performance,
- If non-performance or non-performance is temporary,
- Failure to perform is perfect,
- In order to suspend the employment contract, the consent of the parties is required.
As we have mentioned before, since the employment contract is suspended in the unpaid leave application and according to the established Supreme Court Jurisprudence, the unpaid leave application is considered a fundamental change in the working conditions, if the employer offers the employee unpaid leave, this offer must be accepted by the employee only in writing.
Pursuant to article 22 of the Labor Law, in the event that such a substantial change is made in the working conditions, that is, after the employee is notified in writing that he or she will be on unpaid leave, it may be possible for the employee to respond in writing to this offer within six working days. Changes not accepted in writing within six working days will not bind the employee. To summarize briefly;
- In order for the employee to take unpaid leave, the employer must first notify the employee in writing of this situation.
- The employee, on the other hand, must notify the employer in writing that he has accepted this offer within 6 working days.
Unpaid leave practice, which is not done in this way by the employer, gives the employee the right to terminate the employment contract with just cause. It should also be noted that if the employee is put on unpaid leave by the employer without obtaining his consent, he will be entitled to severance pay in accordance with the legal regulations, in case he terminates the employment contract with just cause by stating this matter.
III- FREE PERMISSION APPLICATION DURING THE PANDEMIC PROCESS
With the Law No. 7244 on “ Reducing the Effects of the New Coronavirus (Covid-19) Epidemic on Economic and Social Life and Making Amendments to Some Laws ” in the Official Gazette No. 31102 dated 17.04.2020, the temporary 10th Amendment to the Labor Law No. clause has been added, pursuant to this clause,
“… Situations that do not comply with the rules of morality and goodwill in subparagraph (II) of the first paragraph of Article 25 and the relevant provisions of other laws and similar reasons, expiration of the period in fixed-term employment or service contracts, closure of the workplace for any reason and termination of its activities, Except for all kinds of service purchases made in accordance with the relevant legislation and the termination of the construction works…” It is stipulated that the employer cannot terminate the employment contract.
With this “From the date of entry into force of this article, the employer may allocate the worker to unpaid leave, in whole or in part, for a period not exceeding three months. Taking unpaid leave within the scope of this article does not give the worker the right to terminate the contract with just cause.” With the regulation brought in the form of a law, the way was opened for the employer to take unpaid leave without the employee’s approval.
With the new regulations published after the specified 3 months, this period has been extended, and if no new regulation is already made, the last day of the pandemic unpaid leave application is 30.06.2021.
Therefore, the Labor Law Provisional 10. Pursuant to the article, the situation of the employee taking unpaid leave due to the pandemic will not be considered as a fundamental change in the working conditions, and as a natural consequence of this, the employee’s approval, that is, the employee’s acceptance, will not be required in the application of unpaid leave due to the pandemic. As a continuation of this, it will not be possible for the employees to terminate their employment contracts with just cause, saying “the employer sent me on unpaid leave due to the pandemic, but he did not receive my approval” . Indeed, Provisional 10. This point is clearly emphasized in the article.
- Status of the employment contract in the application of unpaid leave due to the pandemic: Temporary 10th article added to the Labor Law. In accordance with the article, in the application of unpaid leave due to the pandemic, just as in other unpaid leave applications, the employment contract will be suspended, the employee will not fulfill the act of working, that is, he will not work, and the employer will not pay the employee any wages and will not pay insurance premiums.
- The effect of the period of unpaid leave due to the pandemic on the seniority period: First of all, we need to specify that, whether due to the pandemic or for other reasons, the employment contract is in suspension, as mutual actions are not fulfilled in terms of the employee and the employer during the unpaid leave periods, and as a rule, suspension situations are not related to the seniority period. is not added. The settled jurisprudence of the Supreme Court is also in this direction. Therefore, since the periods of unpaid leave are not added to the seniority period, it is not possible to consider these periods in the calculation of severance pay.
- The effect of the unpaid leave period on the annual paid leave periods due to the pandemic: As we mentioned above, whether due to the pandemic or for other reasons, the employment contract is suspended during the unpaid leave periods and these periods are Since there are no “times deemed worked” and it is not added to the seniority period, it will not be possible to take into account the periods spent on unpaid leave for annual paid leave progress.
IV- CASH FEE SUPPORT
As we have mentioned in detail above, following this legal regulation dated 17.04.2020, “ The Procedures and Principles Regarding the Implementation of Cash Wage Support to be Made within the Scope of the Temporary Article 24 of the Unemployment Insurance Law No. 4447 ” was published on 22.04.2020. Pursuant to this regulation, as of 17.04.2020, employees whose employment contract is terminated within the scope of Article 51 of Law No. Employees who cannot benefit from the allowance will be able to benefit from cash wage support.
In the light of our explanations above, to briefly summarize, there is no need for the consent of the employees in unpaid leave applications due to the pandemic, and such an unpaid leave application does not give the employees the opportunity to terminate their employment contract with just cause.
However, the written consent of the employees is absolutely required in the application of unpaid leave to be made for any reason other than the pandemic and the unpaid leave application made pursuant to the temporary legal regulation, since this situation is a fundamental change in working conditions in accordance with the Supreme Court Jurisprudence. The employee, who has been unilaterally put on unpaid leave without his written consent, has the right to terminate the employment contract with just cause and to demand severance pay.
However, in case of unpaid leave, whether due to the pandemic or other reasons, for whatever reason, the employment contract will be suspended during the periods of unpaid leave, and the employee will not perform the job during these periods, and the employer will not pay wages and SSI premiums. For these reasons, the periods spent on unpaid leave will not be included in the seniority period. However, at this point, we would like to emphasize that, considering the new situation we are facing, namely the pandemic situation, it may be much fairer to find a middle ground for the inclusion of unpaid leave periods, which have been applied for a long time, into seniority periods.
As a matter of fact, the reason why the unpaid leave is not included in the seniority period is that it is applied based on mutual consent, however, in the current situation, the consent of the employees is not required for the mandatory unpaid leaves applied due to the pandemic. Article 55 of the Labor Law No. 4857, titled “Conditions deemed to have been worked in terms of annual leave” . in subparagraph (d) of the first paragraph of the article; We are of the opinion that the article “fifteen days of the time the worker spends without working as a result of the work being suspended for more than a week due to compelling reasons at the workplace (provided that the worker starts working again)” is applicable for the periods spent on unpaid leave due to the long-term pandemic by comparison. At this point, if the need arises, a regulation can be made by the legislator or a case law can be created by the Supreme Court on this issue. Of course, the most important of all will be to overcome the pandemic process experienced by both employers and employees with the least damage, and to continue the business life from where it left off.
Lawyer / K&P LEGAL LAW OFFICE