Substantial Variations in the Working Conditions Which Have Negative Impacts on the Employee 28 November 2019
According to the 22nd article and 1st paragraph of Labour Law numbered 4857 (“Law”), “Any change by the employer in working conditions based on the employment contract, on the rules of work which are annexed to the contract, and on similar sources or workplace practices, may be made only after a written notice is served by him to the employee. Changes that are not in conformity with this procedure and not accepted by the employee in written form within six working days shall not bind the employee. If the employee does not accept the offer for change within this period, the employer may terminate the employment contract by respecting the term of notice, provided that he indicates in written form that the proposed change is based on a valid reason or there is another valid reason for termination.”
During the time of Labour Law numbered 1475 was in force, employee had no other option than accepting the variation or breaking the contract for a just cause in the case of a substantial variation in the working conditions. In the circumstance of breaking the contract in just cause, the employee could receive severance pay but not notice pay or his rights regarding employment security.
According to the 22nd article of the Law, if the employee doesn’t accept substantial variations in his working conditions, the employer has to omit the said variations or cancel the labour contract. Thus the employee shall have notice pay and will be able to benefit from employment security provisions. In addition to this, if the variations made by employer are in the limits of employer’s right to govern, these can’t be described as substantial variations. It should be pointed out that each variation beyond the employer’s right to govern cannot be described as a substantial variation, only the ones violating the employment relation in the employment contract to a certain degree can be. It can be seen in Court of Cassation’s decisions about substantial variations that the key criterion of substantial variation is “not making the employee’s condition heavier”.
Each amendment regarding the charge, including unpaid time off, is considered as a substantial variation. Moreover, according to Court of Cassation, if the employee has to pay the fare due to the change of place of employment, it presents a substantial variation which has a negative impact on employee even if there is not any decrease in employee’s charge. A change in the nature of the job, change of workplace that necessitates the work to be done in a different and unreasonably far place if the parties had determined the workplace beforehand in the employment contract (Court of Cassation 9. CC, 30.06.1997, 10230 E./13245 K.) and change in working hours if it causes difficulties for the employee are considered as substantial variations which have negative impacts on the employee.
After the enactment of the Law, it was contentious if the clauses that reserved the right for employer to do substantial variations which have negative impacts on the employee were binding against Article 22. The Court of Cassation has considered these clauses valid in principle in its judgements since 2005. (Court of Cassation 9. CC, 04.04.2005, 9605 E./11820 K.)
The legal nature of the suggestion of variation in working conditions made by the employer is an offer which shall be clear and unambiguous, besides being in writing or the suggestion shall not be binding in consequence of the fact that an acceptable offer doesn’t exist.
Türkçe versiyonu için:
http://www.kasaroglu.av.tr/tr/Iscinin-Calisma-Kosullarinda-Aleyhe-Esasli-Degisiklik
