Annual Paid Leave and Its Conversion Into Pecuniary Claim 28 January 2020

An annual paid leave is a right to rest of workers for the protection of their physical and psychological health in exchange for their labor during the year. The right to annual leave cannot be waived and the employer cannot deprive the employee of this right.

The prerequisite for qualifying for annual leave is to have completed one year of working period in the same workplace. If the employee works in different workplaces of the same employer, the total time spent in these workplaces shall be taken as basis to calculate this period. The annual leave can be taken from the beginning of the following year. However, this period may be determined as less than one year with the employment agreement or the agreement between the parties. But it can never be more than a year.

According to Article 53 of Labor Law (“Law”) no. 4857, the age and seniority of the employee are taken into consideration when calculating the period of annual paid leave. These periods are:

• 14 days for those whose working period is from 1 year to 5 years (5 years included),
• 20 days for those whose working period is more than 5 years and less than 15 years,
• 26 days for those whose working period is more than 15 years (15 years included) and more.

In addition, the annual paid leave periods for underground and mining workers are determined as increasing four days each year. The annual leave period for workers aged 18 and under, and 50 and above cannot be less than 20 days. Furthermore, other leaves issued by the employer within the same year (for sickness, act of providence and similar reasons) cannot be deducted from the annual paid leave. Likewise, national and religious holidays, public holidays and weekly holidays are not counted as leave periods.

As of Article 59 of the Law, if the employment contract is terminated by the employer, the permit for job searching, which must be given to the employee, cannot be included in the annual leave period. However, in case of termination by the employee, the annual leave can be used within the notification period.

The employer is obliged to keep a certificate of leave indicating the annual paid leaves of the workers. In cases where the primary employer – subcontractor relationship exists, the subcontractor shall keep the certificate of leave. The primary employer is liable to check whether these leave periods are used.

As stated above, it is essential for the worker to use the annual leave he is entitled within the following year. However, when the annual leave is not used, the leaves cannot be converted to pecuniary claim while the employment contract is in progress. As stated in the decision no. 2007/41415 of the 9th Civil Chamber of the Court of Cassation dated 30.04.2009, the employment contract must be terminated in order to convert the annual leave to pecuniary claim. In other words, although the wages are due at the time of birth, the annual leave fees are due upon termination of the employment contract. It becomes demandable.

The termination of the employment contract for just or unjustified reasons will not make any difference in terms of the claims of unused annual leave. Even if the employee has been dismissed for good cause, annual paid leave is a right, and the fact that this right has not been used on time indicates that the worker will be entitled to the annual paid leave at the end of the contract.

Unused annual paid leave does not expire as long as the employment contract continues. Therefore, unused annual leave is transferred to the next year each year. If it is otherwise provided, the employment contract will be invalid. However, prescription period begins with the termination of employment contract. Accordingly, pecuniary claims will expire with the expiry of 5 years after the end of the employment contract.

Türkçe versiyonu için:

http://www.kasaroglu.av.tr/tr/yillik-ucretli-izin-ve-isci-alacagina-donusturulmesi