Labor law regulates work and employment relationships in everyday life. In particular, the rising number of employers and employees brought about by the industrial revolution created the need to regulate these relationships. In parallel, with the rightful advance of human rights movements, the rights and responsibilities of the employer, the employee, and the state have been regulated through the establishment of various norms. The capital city Ankara has more than 40,000 attorneys registered with the Ankara Bar Association, a portion of whom continue their careers as a labor lawyer in Ankara.
What Is Labor Law?
What Is Labor Law? Labor law is the branch of legal science that regulates the rights and responsibilities between an employee — who works for an employer for pay, in a dependent capacity, and in accordance with that employer's orders and instructions under a written or oral employment contract — and the employer, while also imposing certain rights and obligations on the state.
As explained above, this branch of law concerns the relationship between an employer and an employee. In this context, the attorney-client, doctor-patient, and state-police relationships do not fall within the subject matter of labor law. To give a few examples of matters falling within the scope of labor law, one can point to situations where an employer-employee relationship arises, such as factory-worker, cleaning company-cleaning staff, supermarket-department staff, private hospital-doctor/nurse, and apartment building-superintendent.
It is sufficient for a person to be working physically or mentally in a dependent capacity, in accordance with another person's orders and instructions. Whether that person is skilled or unskilled does not affect whether they are considered an employee.
Divisions of Labor Law
Labor law is a legal discipline that has developed, and continues to develop, quite rapidly alongside the swift advancement of technology, human rights, and the economy. In this context, labor law can be grouped under three main divisions: the general principles of labor law, individual labor law, and collective labor law.
Under the general principles of labor law, matters are addressed such as the concept of labor law and related sub-concepts such as employee, employer, workplace, subcontractor, and employer's representative, the fundamental characteristics of this discipline, the national and international sources of labor law, labor law adjudication, and the sanctions of labor law.
Under individual labor law, the regulations governing the relationship between employees and their employers are examined. The establishment of the employment relationship between a single employee and an employer through an employment contract, the content, characteristics, and types of this employment contract, the mutual rights and debts arising between the employer and employee (wages, overtime, work, etc.), the termination of the employment contract, and the rights and compensation arising after termination (severance pay, notice pay) fall within the scope of individual labor law. The Labor Law, the Maritime Labor Law, the Press Labor Law, and the Turkish Code of Obligations are the fundamental laws regulating individual labor law under our legal system.
Under collective labor law, matters examined include the relationships between labor unions — formed as a result of employees coming together collectively rather than individually — and employers and the state, the formation and activities of unions (strikes, lockouts), union rights and freedoms, collective bargaining agreements, and collective negotiations. The Trade Unions Law, the Collective Labor Agreements, Strikes and Lockouts Law, and the Public Servants' Trade Unions Law are the fundamental laws regulating collective labor law under our legal system.
Fundamental Characteristics of Labor Law
- The employee is presumed to be in a weaker position relative to the employer. In this context, the aim is to protect the employee's rights against the employer, to prevent the exploitation of the employee, and to ensure the employee obtains what they are entitled to.
The legislator has established certain mandatory rules that the employer is obligated to follow in favor of the employee. For example, the minimum wage to be paid to the employee has been set at a floor amount called the minimum wage.- When a dispute arises between the employee and the employer, the existing provisions are interpreted in favor of the employee.
- In the arrangements within the employment contract, the employee's own person and personal circumstances are taken into account. Arrangements are made in this context. The employee's personal rights are protected.
- The employee's union rights and their participation in management through their union are ensured. Facilities are provided in this direction.
- Labor law is an evolving and dynamic legal discipline.
- Labor law is not confined to the field of private law alone; since it also encompasses relationships with the state, it is a legal discipline with a mixed (hybrid) structure.
Labor Lawyer in Ankara
Labor law is a specific branch of private law. There are thousands of reinstatement cases filed in this field, as well as cases relating to claims such as severance/notice pay, and compensation cases filed due to workplace accidents. Ankara is also one of our provinces where labor cases are heavily concentrated. Labor Law Cases:
- Providing ongoing legal consultancy services to employers,
- Drafting the employment contract between employee and employer in accordance with the parties' wishes and requests,
- Preparing workplace working principles and procedures in compliance with legislation,
- Informing the employer, its representatives, and human resources units about labor law legislation,
- Informing employees about occupational health and safety and establishing the necessary legal infrastructure,
- Properly terminating the employment contract between employee and employer,
- Filing a mediation application and following up on the process to resolve disputes between the parties,
- Filing, pursuing, and concluding cases before the labor court to resolve disputes between the parties,
- Initiating and pursuing legal proceedings to secure employee receivables that the employee is entitled to but has not received,
- Initiating and concluding enforcement proceedings falling within the scope of labor law.
The procedural law and substantive law that each court must comply with vary. In this context, the legal norms followed by labor courts also differ from other courts.
Severance Pay Claims
Regarding severance pay, pursuant to Provisional Article 6 of Labor Law No. 4857, the provisions of Article 14 of the former Labor Law No. 1475 apply:
“A severance pay fund shall be established for severance pay. Until the date on which the law relating to the severance pay fund enters into force, employees' severance pay rights for their years of service are reserved in accordance with the provisions of Article 14 of Labor Law No. 1475.” (Law No. 4857; Provisional Article 6)
Article 14 of the former Labor Law No. 1475 is quite a lengthy article. The important paragraphs of this article relating to the conditions for entitlement to severance pay are as follows:
“Where the employment contracts of employees subject to this Law are terminated:
1. By the employer, for reasons other than those set out in item II of Article 17 of this Law,
2. By the employee, pursuant to Article 16 of this Law,
3. Due to compulsory military service,
4. In order to receive an old-age, retirement, or disability pension, or a lump-sum payment, from institutions or funds established by the law or presidential decree to which they are affiliated;
5. (Added: 25/8/1999 – Law No. 4447/45) Due to the employee resigning of their own accord upon completing the insured service period and the number of premium payment days required for an old-age pension under conditions other than the ages set out in sub-clauses (a) and (b) of the first paragraph, clause (A), of Article 60 of Law No. 506, or in accordance with Provisional Article 81 of the same Law,
or terminated by the woman's own will within one year of the date of her marriage, or terminated due to the employee's death, the employer shall pay the employee severance pay in the amount of 30 days' wages for each full year of continuous service from the date the employee started work. Payment shall also be made at the same rate for periods exceeding one year….”
Accordingly, it is important to emphasize the following points regarding severance pay:
- To be entitled to severance pay, one must have worked for at least 1 year at a given workplace.
- If the employment contract is terminated by the employer, the right to severance pay arises. (However, it does not arise if the termination occurred due to the employee's acts contrary to the rules of morality and good faith.)
- If the employment contract is terminated by the employee, the right to severance pay does not, as a rule, arise. However, it does arise if the termination is based on the justified reasons specified in the law (health, the employer's acts contrary to morality/good faith, compelling reasons, etc.).
- If the employment contract is terminated due to compulsory military service, severance pay arises.
- Applicable to female employees, if the employment contract is terminated by the employee's own will within 1 year of marriage, severance pay arises.
- If the employment contract ends due to the employee's death, severance pay arises.
Even if the workplace is transferred, the employee's tenure is not lost. The tenure period on which severance pay is based is determined by adding together the periods at both workplaces, and both employers are jointly liable for this payment. (Law No. 1475, Art. 14/II)
However, severance pay or a bonus may be claimed only once for the same period of tenure. (Law No. 1475, Art. 14)
When calculating severance pay, the employee's most recent wage is taken as the basis. If the employee is paid by piece rate, task rate, lump sum, or percentage-based methods, since the wage will not be fixed, the average wage — found by dividing the wages paid over the last year by the number of days worked during that period — will be taken as the basis. (Law No. 1475, Art. 14)
Severance pay is calculated as follows: suppose an employee has worked for 15 years, and their most recent monthly wage is 3,000 TRY. In that case, severance pay will be 15 x 3,000 TRY = 45,000 TRY.
The statute of limitations for severance pay claims is 5 (five) years. (Law No. 4857, Additional Article 3)
Employees working at public institutions also have a right to severance pay. The conditions for this compensation are regulated in detail under the law.
Notice Pay Claims
Employment contracts can be made for a fixed term (e.g., 1 year), or they can be drawn up for an indefinite term. In such indefinite-term contracts, the party wishing to terminate the employment contract must notify the other party of this before termination. The length of this notice varies depending on the circumstances. The employment contract can only be terminated at the end of this period. Article 17 of Labor Law No. 4857, titled “Termination by Notice,” provides:
“Before terminating indefinite-term employment contracts, the situation must be notified to the other party.
Employment contracts shall be deemed terminated:
a) For an employee whose employment has lasted less than six months, two weeks after notification is given to the other party,
b) For an employee whose employment has lasted between six months and one and a half years, four weeks after notification is given to the other party,
c) For an employee whose employment has lasted between one and a half years and three years, six weeks after notification is given to the other party,
d) For an employee whose employment has lasted more than three years, eight weeks after notification is given.
These periods are minimums and may be extended by agreement.
The party that fails to comply with the notice requirement must pay compensation equal to the wage corresponding to the notice period.
The employer may terminate the employment contract by paying the wage corresponding to the notice period in advance.
The employer's failure to comply with the notice requirement, or termination of the contract by paying the wage corresponding to the notice period in advance, does not preclude the application of the provisions of Articles 18, 19, 20, and 21 of this Law. Pursuant to the first paragraph of Article 18, where the termination of the employment contract of an employee falling outside the scope of application of Articles 18, 19, 20, and 21 of this Law occurs through abuse of the right of termination, the employee shall be paid compensation equal to three times the notice period. Failure to comply with the notice requirement for termination also requires the payment of compensation under the fourth paragraph.
In calculating the compensation to be paid under this article and the wages to be paid in advance for the notice periods, in addition to the wage specified in the first paragraph of Article 32, any monetary or money-equivalent benefits provided to the employee under the contract or by law shall also be taken into account.”
Accordingly, the intent to terminate must be notified to the other party a certain period in advance, which varies according to the employee's tenure. Otherwise, compensation equal to the wage corresponding to this period becomes due. This is called “notice pay.” However, the employer also has the right to terminate the contract immediately by paying this amount to the employee in advance.
If the workplace employs 30 (thirty) or more employees, and the employee has at least six months of tenure (this condition is not required for underground workers), the employer's compliance with the notice periods when terminating an indefinite-term employment contract, or advance payment of the wage corresponding to the notice periods, does not eliminate the obligation to rely on a valid reason for terminating the employment contract. In other words, the employer must in every case rely on a valid reason for termination. This reason may arise from the employee's competence or conduct, or it may arise from the requirements of the enterprise, the workplace, or the work. However, the employer may not cite the following reasons as valid grounds for termination:
- Union membership, or participation in union activities outside working hours, or, with the employer's consent, during working hours.
- Acting as a workplace union representative.
- Applying to administrative or judicial authorities against the employer, or participating in proceedings already initiated in this regard, in order to pursue rights arising from legislation or a contract or to fulfill obligations.
- Race, color, sex, marital status, family responsibilities, pregnancy, birth, religion, political opinion, and similar reasons.
- Failure to report to work during the periods provided for in Article 74 of the Labor Law (maternity leave and nursing leave) and during periods when it is prohibited to employ female employees.
- Temporary absence from work due to illness or accident during the waiting period provided for in sub-clause (b) of item (I) of Article 25. The employee's six-month tenure is calculated by combining periods worked for the same employer at one or several workplaces. Where an employer has more than one workplace in the same line of business, the number of employees at a given workplace is determined based on the total number of employees across all such workplaces. (Law No. 4857, Art. 18)
The employer must give the notice of termination in writing and clearly and precisely state the reason for termination.
If an employee's indefinite-term employment contract is to be terminated for reasons relating to the employee's conduct or performance, the employee's defense must absolutely be obtained. However, the employer's right of termination in accordance with the conditions of item (II) of Article 25 (situations contrary to the rules of morality and good faith and similar cases) is reserved. (Law No. 4857, Art. 19)
If the employee's employment contract has been terminated without a valid reason, or if the reason given is untrue, the employee has the right to file a reinstatement case within the applicable time limit. This subject will be addressed under the next heading. (Law No. 4857, Art. 20)
Service Determination Case
Article 86/9 of the Social Insurance and General Health Insurance Law No. 5510 provides as follows:
“Insured persons whose monthly premium and service declaration, or withholding and premium service declaration, was not submitted by the employer, or whose employment could not be determined by the Institution, may, by applying to the labor court within five years from the end of the year in which the service in question took place, and by proving their employment through the judgment obtained, have the total monthly earnings and the number of premium payment days specified in the court's decision taken into account.” (Law No. 5510, Art. 86/9)
Under normal circumstances, the document containing the employee's period of service and premium information must be provided by the employer. It is through these documents that the employee can prove the periods they worked and benefit from the rights tied to those periods. But suppose these documents were not provided to the employee by the employer, and the period of the employee's employment also could not be determined by the SSI (Social Security Institution). In such cases, the law grants the employee the ability to apply to the court to prove the periods they worked and thereby protect their rights. The employee obtains this ability through a service determination case, which is a special type of declaratory action.
The court with jurisdiction over this case is the Labor Court; in places where there is no Labor Court, it is the Civil Court of General Jurisdiction (Asliye Hukuk Mahkemesi) (Law No. 5510, Art. 86/9). The competent court is the court of the place of residence of the defendant natural or legal person at the time the case is filed (Law No. 7036, Art. 6).
This case must be filed within 5 years. This period is a preclusive period.
Reinstatement Case
An employee who has at least six months of tenure at a workplace employing thirty or more employees may believe that their employment contract was terminated unjustly. For this reason, the law grants such an employee the right to file a “reinstatement case.” This case must be filed before the Labor Courts; in places where there is no Labor Court, before the Civil Court of General Jurisdiction. The competent court is the court of the place of residence of the defendant natural or legal person at the time the case is filed, as well as the court of the place where the work or transaction took place. (Law No. 7036, Art. 6)
Accordingly;
“An employee whose employment contract has been terminated must, on the claim that no reason was given in the notice of termination or that the reason given was not a valid reason, apply to a mediator within one month of the date of notification of the termination, pursuant to the provisions of the Labor Courts Law, with a request for reinstatement.” (Law No. 4857, Art. 20)
Applying to a mediator is a precondition to filing a lawsuit. Otherwise, the case will be dismissed.
“The plaintiff must attach to the complaint the original of the final report indicating that no agreement was reached at the end of the mediation activity, or a copy certified by the mediator. If this requirement is not met, the court sends the plaintiff a summons warning that the final report must be submitted to the court within a definitive period of one week, otherwise the case will be dismissed on procedural grounds. If this warning is not complied with, the case is dismissed on procedural grounds without the complaint being served on the other party. If it is understood that the case was filed without applying to a mediator, the case is dismissed on procedural grounds due to the absence of a precondition to filing suit, without any further action being taken.” (Law No. 7036, Art. 3)
If the matter is resolved through the mediator, there is no problem. However, if the matter cannot be resolved, this is recorded in the final report accordingly. At this stage, the employee may file a case with the labor court within two weeks of the date the final report was drawn up. In addition, if the parties agree on this, the dispute may be referred, within the same period, to a private arbitrator instead of the labor court.
The employee has no obligation to prove that the termination is invalid. The legislator has placed this burden of proof on the employer.
“The burden of proving that the termination was based on a valid reason lies with the employer. If the employee claims that the termination was based on a different reason, they bear the burden of proving this claim.” (Law No. 4857, Art. 20/II)
The case is concluded expeditiously. If an appeal is filed against the court's decision, the regional court of appeal renders its decision expeditiously and finally. (Law No. 4857, Art. 20/III) In other words, the route of cassation against the decision rendered by the regional court of appeal in this matter is closed. (Law No. 7036, Art. 8/1-a)
If the court/private arbitrator decides that the termination was made without showing a valid reason, or that the reason given for termination was not valid, the employer must reinstate the employee within one month. If the employer, upon the employee's application, does not reinstate the employee within one month, the employer becomes obligated to pay the employee compensation equal to no less than four months' and no more than eight months' wages. The amount of this compensation is specified in the decision of the court/private arbitrator. (Law No. 4857, Art. 21/II) In addition, if the employee who is not reinstated was not given a notice period, or if the wage corresponding to the notice period was not paid in advance, the wage amount corresponding to these periods is paid separately. (Law No. 4857, Art. 21/V)
Since it takes a certain amount of time for the court/private arbitrator to render a decision on this matter, the employee suffers a loss of rights due to not being employed until this decision becomes final. For this reason, the legislator has stipulated that the employee shall be paid the wages and other rights accrued for a period of up to four months in this situation. (Law No. 4857, Art. 21/III)
When determining both the compensation for failure to reinstate and the wages for the period until the decision becomes final, the court or private arbitrator bases its determination on the wage at the date the case was filed. (Law No. 4857, Art. 21/IV)
However, suppose the employer complies with the court's decision and reinstates the employee; in this case, the wage corresponding to the notice period and the severance pay initially given to the employee must be deducted from the wage payment to be made to the employee for the period until the case becomes final. (Law No. 4857, Art. 21/III) (Law No. 4857, Art. 21/V)
One point that must be emphasized here is that an employee whose reinstatement case concludes favorably must apply to the employer to start work within ten business days of notification of the final court or private arbitrator decision. If the employee does not apply to the employer within this period, the termination made by the employer is deemed valid, and the employer is liable only for the legal consequences thereof. (Law No. 4857, Art. 21/VI)
As mentioned above, the employee must apply to a mediator before going to court. If, at the end of this mediation activity, the parties agree on the employee's reinstatement, it is mandatory to determine;
a) The start date of employment,
b) The monetary amount of the wages the employee was deprived of until the decision became final (Law No. 4857, Art. 21/III) and other rights,
c) The monetary amount of the compensation to be paid in the event the employee is not reinstated (Law No. 4857, Art. 21/II),
Otherwise, it is deemed that no agreement has been reached, and the final report is drawn up accordingly. If the employee does not start work on the agreed date, the termination becomes valid, and the employer is liable only for the legal consequences thereof. (Law No. 4857, Art. 21/VII)
The parties cannot, through agreements made between themselves, stipulate the opposite of, or amend, the provisions of the Law addressed above (the employer's obligation to reinstate the employee/pay compensation following a reinstatement decision, and the employer's obligation to pay wages arising from the employee not working during this period). Otherwise, such contractual provisions are deemed invalid.
Bad-Faith Compensation
Some employees are those who have at least six months of tenure at workplaces employing thirty or more employees; for these employees, if the employer abuses the right of termination, the right to reinstatement and the associated right to compensation come into play, as discussed above.
But what happens if the employment contract of an employee not falling within this scope is terminated through abuse of the grounds for termination? For these employees, the law provides for a legal protection mechanism called “bad-faith compensation.” The relevant provision is as follows:
“…Pursuant to the first paragraph of Article 18, where the termination of the employment contract of an employee falling outside the scope of application of Articles 18, 19, 20, and 21 of this Law occurs through abuse of the right of termination, the employee shall be paid compensation equal to three times the notice period. Failure to comply with the notice requirement for termination also requires the payment of compensation under the fourth paragraph.” (Law No. 4857, Art. 17/VI)
A similar arrangement is found in Article 16 of the Maritime Labor Law No. 854, as well as in Article 434 of the Turkish Code of Obligations No. 6098.
This compensation claim is subject to a 5 (five) year statute of limitations (Law No. 4857, Additional Article 3).
Employment Certificate Compensation
The employer has a duty to protect and look after the employee. This duty applies throughout the employment relationship and continues to apply partially even in situations where the employee leaves the job or changes employment. As an extension of this duty, the employer is obligated to provide the employee with a certificate of employment, which the employee will particularly need to prove their past experience when applying for new jobs.
“An employee leaving employment shall be given a document by the employer showing the type and duration of their work. An employee who suffers harm because the document was not given in a timely manner or contains inaccurate information, or a new employer who hires the employee, may claim compensation from the former employer. These documents are exempt from all fees and duties.” (Law No. 4857, Art. 28)
A similar arrangement is also found in Article 426 of the Turkish Code of Obligations No. 6098.
Accordingly, if an employer fails to provide a certificate of service to an employee leaving employment, or provides a certificate of service containing information contrary to the truth, the employer will become liable to compensate the employee for the harm suffered as a result. Likewise, the employer will also be liable to a new employer harmed as a result.
From another perspective, an administrative fine is imposed on this employer for the relevant year.
Compensation Cases Arising from Workplace Accidents
A workplace accident is defined in legal doctrine as “an accident suffered by an employee as a result of a sudden event occurring due to an external cause arising from, or in connection with, the work performed for the employer while under the employer's authority.” Due to the harm arising from such accidents, the employee or their legal heirs have the right to claim material and non-material damages from the employer/subcontractor.
Under Article 13 of Law No. 5510, a “workplace accident” is defined as:
“A workplace accident is an event that:
a) Occurs while the insured is present at the workplace,
b) (Amended: 17/4/2008-5754/8) If the insured is working independently in their own name and account due to work carried out by an employer, occurs due to the work being carried out,
c) Occurs during time spent by an insured employed by an employer while performing duties other than their main job because they have been sent, on duty, to a location outside the workplace,
d) (Amended: 17/4/2008-5754/8) Occurs to a nursing female insured falling under sub-clause (a) of the first paragraph of Article 4 of this Law, during the time set aside under labor legislation for breastfeeding her child,
e) Occurs during transportation of insured persons to and from the place where work is carried out, using a vehicle provided by the employer,
and which immediately or subsequently renders the insured physically or mentally disabled.”
is the definition provided.
- Material Compensation Case for a Workplace Accident
Due to a workplace accident, both the employee and, in the event of the employee's death, their legal heirs, have the right to file a material compensation case within the statute of limitations. Calculating material compensation is a technical matter. In practice, the employee's degree of fault (if any), age, and wage are decisive in determining the amount of compensation. Hospital expenses, medication and treatment costs, and, in the event of the employee's death, compensation for loss of support are also included within this scope.
- Non-Material Damages Case Due to a Workplace Accident
Article 56 of the Turkish Code of Obligations No. 6098, titled “Non-Material Damages,” provides:
“In the event of injury to a person's bodily integrity, the judge may, taking into account the particular circumstances of the case, award an appropriate sum of money to the injured party as non-material damages.
In the event of severe bodily injury or death, an appropriate sum of money may also be awarded as non-material damages to the relatives of the injured party or the deceased.”
Due to workplace accidents, employees suffer not only material/physical harm but also emotional pain and suffering. For this reason, employees, and where applicable their legal heirs, also have the right to claim non-material damages arising from a workplace accident.
Main Types of Labor Law Cases
- Employee Wage – Salary Receivable Case
- National Holiday and General Holiday (UGBT) Pay Case
- Weekly Rest Pay Case
- Overtime Pay Case
- Annual Leave Pay Case
- Notice Pay Case
- Severance Pay Case
- Mobbing and Bad-Faith Compensation Case
- Union-Related Compensation Case
- Service Determination Case
- Foreign Service Debt Purchase and Foreign Retirement Case
- Reinstatement Case
- Workplace Accident Determination Case
- Workplace Accident Material and Non-Material Damages Case
- Occupational Disease Determination Case
- Occupational Disease Material and Non-Material Damages Case
Termination of the Employment Contract by the Employee for Just Cause
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