Is It Possible To Discharge Employee In Case Of State Of Emergency? 22 August 2016
Pursuant to decision of Turkish Grand National Assembly numbered 1116 and dated 20.07.2016, state of emergency was declared for 90 days which is effective as of 20.07.2016. Application of state of emergency declaration is regulated under State of Emergency Law (“SEL”) numbered 2935 and Article 120 of Turkish Constitution. Article 11 of SEL regulates that;
“Whenever a state of emergency is declared in accordance with Article 3 (1)(b) to protect general security, safety and public order and to prevent the spread of acts of violence, in addition to the measures taken in accordance with Article 9, the following measures may be taken:
(n) Postponement of, or imposition of a requirement to obtain permission for, the retrenchment of labour for periods exceeding three months, except in cases of termination or cancellation of labour contracts at the request of workers, dismissal on grounds of immoral behaviour or breach of good faith, retrenchment on health grounds, or normal retirement,”
According to this article, employee can be discharged in case of state of emergency if and only in such circumstances as follows:
- Request of Worker: Employee can be discharged when he terminates the labour contract which is signed between employer and himself, in other words when employee assigns from his work, he can be dismissed.
- Immoral behavior or breach of good faith, retrenchment on health grounds: Immoral behavior or breach of good faith and retrenchment on health grounds are not defined in this Law although these are implied as proper condition for dismissal of employee in case of state of emergency. For this reason; it should be evaluated in accordance with Article 25 of Labour Law numbered 4857. Pursuant to Article 25 of Labour Law;
“ARTICLE 25 - The employer may break the contract, whether for a definite or indefinite period, before its expiry or without having to comply with the prescribed notice periods, in the following cases:
I. For reasons of health
a) If the employee has contracted a disease or suffered an injury owing to his own deliberate act, loose living or drunkenness, and as a result is absent for three successive days or for more than five working days in any month.
b) If the Health Committee has determined that the suffering is incurable and incompatible with the performance of the employee’s duties. In cases of illness or accident which are not attributable to the employee’s fault and which are due to reasons outside those set forth in (a) above and in cases of pregnancy or confinement, the employer is entitled to terminate the contract if recovery from the illness or injury continues for more than six weeks beyond the notice periods set forth in article 17. In cases of pregnancy or confinement, the period mentioned above shall begin at the end of the period stipulated in Article 74. No wages are to be paid for the period during which the employee fails to report to work due to the suspension of his (her) contract.
II. For immoral, dishonorable or malicious conduct or other similar behaviour
a) If, when the contract was concluded, the employee misled the employer by falsely claiming to possess qualifications or to satisfy requirements which constitute an essential feature of the contract, or by giving false information or making false statements;
b) If the employee is guilty of any speech or action constituting an offence against the honor or dignity of the employer or a member of his family, or levels groundless accusations against the employer in matters affecting the latter’s honor or dignity;
c) If the employee sexually harasses another employee of the employer;
d) If the employee assaults or threatens the employer, a member of his family or a fellow employee, or if he violates the provisions of Article 84;
e) If the employee commits a dishonest act against the employer, such as a breach of trust, theft or disclosure of the employer’s trade secrets;
f) If the employee commits an offence on the premises of the undertaking which is punishable with seven days’ or more imprisonment without probation.”
Abovementioned situations are accepted as immoral behaviour or breach of good faith, retrenchment on health grounds.
- Normal retirement, termination or cancellation of fixed term employment contract: If employees, who are qualified for retirement by fulfillment of retirement conditions, request for quit the job by exercising their rights for retirement, employees can be discharged from work in case of state of emergency. Nonetheless, retirement on disability is also possible in case of state of emergency.
If employment agreement between employer and employee is signed for six months or a year, employee can be dismissed from work by cancellation or termination of employment agreement even if in case of state of emergency. Employees who work at seasonal works or project-based works are also in this scope.
If employer wants to discharge employee because of another reasons other than aforementioned reasons in Article 11 of the Code numbered 2935, employer has to postpone this dismissal for 3 months.
Limitation in SEL is only possible with written injunction of competent authorities. Namely, existence of article in SEL is not solely enough for permission or postponement. Even if state of emergency is declared, employers should continue with present order for now. However, abovementioned regulations will be valid when permission or postponement officially comes out.
Pursuant to state of emergency declaration of Turkish Grand National Assembly numbered 1116 and dated 20.07.2016, when provisions of statutory decree about precautions are examined, there is not any regulation about Article 11-n of SEL numbered 2935.
Türkçe Versiyonu İçin
http://www.kasaroglu.av.tr/tr/28375/Olaganustu-Hal-Durumunda-Isci-Isten-Cikarilabilecek-Mi
