Employer's Representative 2 August 2016
In the Turkish Labour Code numbered 4857, in addition to the terms employer and employee which are the parties of employment relationship, the term of “employer’s representative” is mentioned. In Article 2 of Labour Code, titled “Definitions”, employer’s representative is defined as “the person acting on behalf of the employer and charged with the direction of work, the establishment and enterprise. “
Employer’s representative is considered as the one who acts on behalf of the employer by legislator, and it is stated that the employer is liable for transactions and behaviors of employer’s representative against employees, acting in the capacity of employer.
Since there is a contractual relationship between employer and employer’s representative who acts on behalf of the employer, like a contractual relationship between employer and employee, the employer’s representative can enjoy the employee’s rights and obligations which are entitled under Labour Code. Although employer’s representative is entitled to employee’s rights and obligations, there are some exceptions which distinguish the position of employer’s representative from an employee in some points. According to the Turkish Labour Code Article 18 last sub clause:
“This Article and Articles 19 and 21 and the last subsection of Article 25 shall not be applicable to the employer’s representative and his assistants authorized to manage the entire enterprise as well as the employers’ representative managing the entire establishment but who is also authorized to recruit and to terminate employees. ”
Not Applicable Articles to Vice Principal under the Labour Code
The articles which are not applicable to vice principal and his assistants who conduct entire business and vice principals who conduct entire business and who have the authority to hire or dismiss an employee, are the articles considered as “”labor- job protection”, in practice. In this respect, vice principals cannot benefit from labor- job protection under the Labour law (Supreme Court 22. Civil Chamber E.2011/319, K. 2011/1064).
1. Within the scope of Article 18 last sub clause, the first article which is not applicable to vice principals is the article 18 itself. Article 18 is about the termination of contract based on valid reason. According to this provision, employer cannot dismiss employees who fulfil the requirements set down in the article, without having a valid reason and cannot terminate the employment contracts of indefinite duration. Besides, in the same article, various conditions are listed and it is stated that these conditions are not considered as valid reason.
2. The other article which is not applicable to vice principals is the article 19. This article determines the procedure of termination of a contract. According to this article, the employer shall notify the employee of termination notice in written and termination cause shall be stated explicitly and precisely. The requirement of stating the termination cause is the result of the previous article. Furthermore, in accordance with the Supreme Court 9.Civil Chamber decisions, the employer cannot change the termination cause which is delivered by the employee, (For example E. 2006/4878, numbered K. 2006/8253). Additionally, it is also not possible for the employers to terminate an employment contract of indefinite duration due to his behavior or the performance, without having his justification.
3. While Article 18 and 19 of Labour code issue the conditions and procedure of the termination of an employment contract of indefinite duration, in Article 21, which is not applicable to vice principals, the sanction is stated in case of terminating a contract by violating the appropriate way which is prescribed by law. In case the invalidity of the termination made by employer is deemed by the court or arbitrator, the employer is obliged to reemploy the employee within one month. If employee applies to employer for reemployment but employer would not allow, the employer shall pay compensation for an amount of his 4 monthly salary at least and 8 monthly salary at most. Besides, since the employee forfeits his job during the trial, an amount of 4 monthly salaries at most, shall be paid to the employee.
So, in case of an invalid termination, the employer is obliged to reemploy the employer, if he applies for, otherwise the employer shall pay compensation for an amount of his 4 monthly salaries at least and 8 monthly salary at most. The amount is determined by the court or the arbitrator which handle the case.
4. The last article which is not applicable to vice principals, is the last sub clause of article 25 which states that, in case of a termination of the contract with a valid reason by the employer, the employee can proceed against the termination by claiming that the termination does not comply with the conditions which are prescribed by law.
The articles which are not applicable to vice principal, mentioned above, bring the following results:
- The employers are not required to rely on valid reasons by terminating the employment contracts of vice principals. Accordingly, the termination reasons which are stated are not binding for the employers.
- There is not any obligation to notify the termination of vice principal’s employment contract in written. However, it would be still beneficial to deliver it in written in order to prove it.
- In case the vice principal’s employment contract is terminated immediately with a valid reason by the employer, vice principal cannot claim the invalidity of the cause.
- Regarding the Articles 18, 19, 20, 21 and the last sub clause of article 25 , the vice principal cannot;
- File the reemployment lawsuit,
- apply for reemployment, although a reemployment case is filed and won,
- claim compensation for an amount of his 4 monthly salary at least and 8 monthly salary at most, although he applies for reemployment and employer rejects,
- demand an amount of 4 monthly salary at most from the employer due to the fact that he forfeits his job during the trial,.
Considering the provisions under the Labour Code related to vice principal, although right and obligations, which are provided for employees, are also provided for vice principals; job safety provisions should be considered while preparing the employment contracts of vice principle in order to solve the disputes which would be caused of forfeiting vice principals from job safety provisions and burden to labour courts, before arising.
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