Workplace Practices in Turkish Laws 11 December 2019
Work place practice can be defined as an unwritten agreement which has become a contractual provision upon implied or explicit acceptance of a unilateral labor interest granted by employer continuously and under same terms, without any contractual or legal obligation. Monetary supports and payments in kind such as bonuses, premiums, food, fuel and road supports can be considered as work place practice, unless already provided under the employment contract or the internal regulation of the work place.
In order for a practice to become a “work place practice”,
- It shall form generality,
- It shall apply continuously,
- It shall be provided under same terms, and
- It shall not be subject to a condition or arisen from a mistake of employer.
Generality of a work place practice shall mean that all employees or at least a certain group of employees (working under the same qualities/positions or in the same department etc.) benefit from the respective practice.
Despite the lack of a strict or explicit criterion with respect to the continuity, the Supreme Court, for instance, prescribes that payment of bonus for more than three years shall create a work place practice to that effect which thus shall become claimable afterwards, too.
A practice shall be deemed to have been provided under the same terms when the same action/conduct is repeated for the same reasons. In this respect, for example, when a certain group of employees are enabled with lunch support continuously, it shall become a work place practice regardless of the amount of support that may vary from time to time given specific circumstances.
Once the aforementioned conditions are satisfied, then a work place practice shall become binding for employer and thus cannot be removed unilaterally without employee’s written approval. Indeed, the Supreme Court contemplates in its judicial precedents that employer cannot remove any work place practice that have already become (written) employment conditions which, pursuant to Article 22 of the Turkish Labor Law no. 4857, can only be amended or removed with written approval of employee[1].
Notwithstanding the foregoing, it is generally accepted by the doctrine and in some Supreme Court decisions[2] that a conditional benefit granted to a group of employees or a benefit granted by employer by mistake shall not be regarded as a work place practice. Indeed, the jurists claim that a benefit cannot become binding in terms of the future years or months, in cases where employee reserved his right to withdraw granting such benefit unilaterally. On the other hand, although it is not very possible in practice, if employer proves that he mistakenly made an additional payment to certain employees, then this payment shall also not be deemed to have become a work place practice.
In this respect, it would be beneficial for employers to conclude written agreements with employees to whom certain benefits are intended to be granted, whereunder the employer shall reserve his right to reverse those benefits in the future.
[1] See: Decision of Court of Appeals for the 9th Circuit, dated December 26, 2008 no. 34000/35532
[2] See: Decision of Court of Appeals for the 9th Circuit, dated October 9, 2003 no. 14185/16421
Türkçe Versiyonu İçin
http://www.kasaroglu.av.tr/tr/28027/Turk-Is-Hukukunda-Isyeri-Uygulamalari
