TERMINATION OF THE LABOR CONTRACTS DURING THE COVID-19 EPIDEMIC 15 April 2020

1. IS IT POSSIBLE FOR THE EMPLOYEE TO BE FIRED DURING THE COVID-19 EPIDEMIC?

With the Covid-19 outbreak becoming widespread in our country, the commercial life was seriously affected. In this context, while activities were suspended in some workplaces due to administrative decisions, some workplaces have taken steps in order to prevent the spread of the coronavirus epidemic. As a result, many workplaces temporarily interrupted their activities due to the new type of coronavirus epidemic. Under Turkish law, the question of whether the employment contract can be terminated or not comes up as an issue that should be examined in detail.

a) TERMINATION OF THE LABOR CONTRACTS IN ENTERPRISES WHOSE OPERATION IS INTERRUPTED.

Under Turkish law, there is no regulation for the employers whose activities are suspended within the scope of the measures taken to prevent the new type of coronavirus epidemic, to terminate the labor contracts with a valid reason. In accordance with Article 25/III of the Labor Law, in order for a labor contract to be terminated with a valid reason by the employer, one of the compelling reasons regulated in the article must occur. Accordingly, closing the workplace due to the new type of coronavirus outbreak does not give the employer the right to terminate the labor contract. However, if a reason such as quarantine occurs that prevents the employee from coming to work for more than a week, the employer's right to terminate the labor contract may arise.

On the other hand, it should be noted that the employers have been given the right to unpaid leave their workers for a temporary period with the Law on Reducing the Effects of the New Corona Virus Epidemic (Covid-19)  on Economic and Social Life published in the Official Gazette dated 17.04.2020 and numbered 31102. In this context, employers will be able to make partial or complete unpaid leave to their workers for 3 months from 17.04.2020.

However, there are some mechanisms that the employer can take advantage of when workplace activities are suspended. Pursuant to Article 40 of the Labor Law, the employer is required to pay half a wage everyday for up to a week to the employees who cannot work due to compelling reasons.  If the compelling reason persists at the end of a week, the employer has no obligation to pay wages. At this point, it will be necessary to evaluate the issues such as whether the work can be carried out within the scope of working remotely, whether the activity is stopped by an official decision. On the other hand, if the employee wants to terminate the labor contract after a week period specified in the law, the termination in question will be deemed to have been rightful.

b) IS IT POSSİBLE TO TERMINATE THE LABOR CONTRACT IF THE WORKER IS COVID-19 POSITIVE?

In accordance with Article 25/1-b of the Labor Law, there are various arrangements that allow the termination of the labor contract by the employer due to health reasons. Accordingly, it is possible to terminate the labor contract with a valid reason if it is determined by the Health Board that the disease caught by the employee is incurable and unfavorable for the employee to work at the workplace. When evaluating whether it is possible to terminate the labor contract of the employee, the conditions of the concrete event must be evaluated. In addition, when commenting under Covid-19, it is necessary to determine whether the employee caught this epidemic at the workplace or when fulfilling the requirements of the work. Moreover, it is not possible to say with certainty that the disease caused by the Covid-19 outbreak cannot be treated. For this reason, the symptoms created by the new type of coronavirus in the employee and the nature of the work performed must be evaluated together.

c) IS IT POSSIBLE TO TERMINATE THE LABOR CONTRACT IF THE WORKER IS QUARANTINED?

As mentioned above, the employer's termination of the labor contract with valid reasons due to compelling reasons is regulated in Article 25/III of the Labor Law.  According to Article 25 / III, in case of a compelling reason that prevents employee from working more than a week in the workplace, the employer becomes entitled to terminate the labor agreement with a valid reason.

In this respect, it seems possible for the employer to rightfully terminate due to related clause in case of the employee went abroad for a reason other than work and for this situation inability to work to comply with the 14 days quarantine period. However, in accordance with the principle that termination is a last resort, it is necessary to review the options such as working remotely, paid annual leave or leave without pay before applying for termination of the labor contract.

2. WHAT ARE THE CONSEQUENCES OF THE WORKER’S RESIGNATION DURING THE COVID-19 EPIDEMIC?

a) IN THE EVENT THAT THE ACTIVITY OF THE ENTERPRISES IS SUSPENDED FOR MORE THAN A WEEK

In accordance with Article 24 of the Labor Law, the employee will be able to terminate the labor contract with a valid reason in the event of the reasons requiring the cessation of work for more than a week due to compelling reasons. Accordingly, in the event that the impossibility in the workplace activities continues due to the Covid-19 epidemic, after the payment of one week's half wage by the employer, the worker has the right to terminate the employment contract within the scope of the abovementioned provision.

b) TERMINATION OF LABOR CONTRACT BY THE EMPLOYEE FOR HEALTH REASONS

According to the Article 24/1-b of the Labor Law; it is possible for the employee to terminate the labor contract with valid reason if the employer or another employee who is constantly near the employee and with whom he is in direct contact is suffering from an infecting disease and the employee is exposed to close danger even though all the measures taken by the employer.