As per the Turkish Labor Law, employees required to perform their jobs as agreed with the employer. Only in very exceptional cases, it is possible to avoid performing the assigned tasks. The Coronavirus (COVID-19) infection has been occupying the world and Turkey for a long time and creates severe and imminent danger in the workplace. There are problems in the implementation of the labor contract due to this infection. Under the law, employees can ask the employer to detect and eliminate the threat and avoid working until the danger is removed.
The reasons that prevent the employee from working must occur around the employee. The causes are arising in the workplace, and hindering work not included in this scope. For example, closure of the workplace is not a force majeure. However, situations such as cessation of transportation due to natural disasters such as floods, snow, earthquake, and conditions such as quarantine applications due to epidemic disease are force majeure. Moreover, it stated as an obligation that the employer ensures the occupational health and safety of its employees in the second section of article 417 titled "protection of the personality of the worker" of the Turkish Code of Obligations No. 6098.
The right that workers can avoid working due to the severe and imminent hazards that they faced or possibly will meet regulated in article 13 of the Occupational Health and Safety Law No. 6331 titled "Right to Avoid Working." If we adapt this article to the current situations; Even if the work suspended due to coronavirus, the employer must continue to pay salaries to employees. If the condition is very urgent at work (for example, if the disease is detected), employees do not have to attend to work until they find out the results after applying for the information. Their wages cannot be restricted because of their absence. Workers can file a claim to the Labor Court for an action to take measures at the workplace. Civil servants can submit an application to the Administrative Court for the suspension of the execution, or they can file a claim for a cautionary decision to the Civil Court of First Instance to measures taken. Moreover, complaints may be made to the Labor Regional Directorates, and inspections may be requested. Labor inspectors should immediately inspect workplaces within a particular program.
The employers who do not take action and the government officials who do not perform the supervision will be responsible for the life and health of each worker. There is a predictable, close, and vital threat with the coronavirus. Under the Turkish Criminal Code, the approach "It doesn't matter what happens to employees as long as work continues" may be considered as probable intent for murder and other crimes. If the employers dismiss the employees due to the measure applications, there is no legal provision prohibiting, but in this case, the employee entitled to severance pay (not entitled to notice pay).
Closure of the workplace
If employers shut down their workplaces temporarily following the "government recommendation" made to hinder the spread of the coronavirus, or due to situations such as the stock of goods were depleted, or the demand for products significantly reduced due to the announcement or the workplace was quarantined because of the Coronavirus diagnosis, firstly, it is appropriate to consider the following options,
a) the parties agree on unpaid leave,
b) employers, if any, offer paid leave to the employee,
c) homeworking if the nature of the work permits (for example, for white collars)
d) make-up work
Employers may apply to the Turkish Employment Agency due to the force majeure to implement short-working under additional article 2 of Law No 4447. In the short-working (even if the workplace is entirely closed), employers pay half of the first week wages of the employees and then a certain amount of their salary paid from the fund to be deducted from the unemployment fund. For those who want to benefit from the short-working practice, some comforts have been brought with the regulation made within the scope of the new coronavirus measures. The 600-day requirement was reduced to 450 days, and the 120-day requirement reduced to 60 days with provisions. Besides, for employers to benefit from short-time working, preserving the existing employment has been stipulated.
Under the article 40 of the Turkish Labor Law No 4857, if the compelling reasons cause the work to suspend or prevent the employee from working for more than a week, the labor contract is suspended for the one week, and during this period the employee is paid half a day for each day.
Under article 24 of the Turkish Labor Law, the employee may terminate the labor contract immediately for just cause, if the force majeure, which suspends the work for more than a week in the workplace where the employee works. Thus, the employees whose employers decided to stop the work activities due to the virus epidemic may terminate the labor contract for the just cause and demand their rights after the period that they are entitled to be paid half a week's wage. However, in such a case, the right to notice pay will not arise; the employee will only be entitled to severance pay. It is essential to mention that suspension of work due to the general force majeure, such as a coronavirus outbreak, will not constitute a just cause for the employer.
The employer can leave employees on paid, in which the approval of the employees is not sought, but the application of unpaid leave is possible only with the agreement of the employee and the employer. If the employees do not consent, the employer cannot offer the employees unpaid leave. All employees who have been taken unpaid leave without their consent if they wish may request severance pay and all other claims. The unpaid leave without the permission of the employee can cause termination of the labor contract, and the term to file a reemployment lawsuit start to process.
The petitions or forms of unpaid leave requests signed by the workers with the threat of the dismissal have no validity, the employer's duty of payment of the employee wage who does not continue to work remains.
All the subcontractor workers working in public and private workplaces can apply to the primary employer according to the first and last paragraphs of the 36th article of the Labor Law to get their unpaid wages if they do not want to leave the work. The primary employers must pay to the employee's bank account by cutting them out of the subcontractor's progress.
In case of dismissal, employees can apply for unemployment funds under article 50 of Law No. 4447. In our opinion, during the epidemic period, layoffs should be prohibited, or at least whatever exit code is reported, the way to use unemployment funds should stay open.
Attorney Funda Kurt
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