The corona virus ("COVID-19") emerged in Wuhan, People's Republic of China at the end of 2019 and has become an international epidemic by spreading to many countries since the beginning of 2020. Since March 11, 2020, with the T.C. Health Ministry’s official declaration that a patient with a positive test result, Turkey has become one of the country's as seen epidemics. The fact that the corona virus is contagious and there is absence of treatment method against the epidemic, affects the business life as well as the individual life. It is examined the effects of COVID-19 in the context of termination of labour contract and the use of leaves as measure applied by employers and employee.
I. In the context of Termination of Labour Contract
a. During the Trial Period
In accordance with the article of 15/2 of Labour Law numbered 4857 (“Law”), the parties may terminate the labour contract without the notification period and without compensation. However, wages and other rights of the employers for the days worked reserved. Since the Law does not seek any conditions for termination of contract which includes trial period, employee may terminate the contract without claiming any reason regarding the economic or non-economic effects of COVID-19.
b. Termination with a Valid Reason
According to Article 24 of Law “The employee is entitled to break the contract, whether for a definite or an indefinite period, before its expiry or without having to observe the specified notice periods, in the following cases: If the employer, his representative or another employee who is constantly near the employee and with whom he is in direct contact is suffering from an infecting disease or from a disease incompatible with the performance of his duties.” Therefore, in the case of COVID- 19 pandemic, employees shall have right to break their labour contract with a valid reason ex parte. In this context, employer shall exercise due diligence to prevent to spread of COVID-19 in workplace.
In addition, according to Article 24/3 of the Law, the employee is entitled to break the contract, if force majeure necessitating the suspension of work for more than one week in the establishment where the employee is working. Regulation on Short Working and Short Working Payment defines the force majeure as earthquake, fire, flood, pandemic disease, mobilization and such causes that are not caused by the employer's own referral and administration, cannot be predicted and eliminated which resulting from external effects. COVID-19 shall be considered as force majeure according to definition. Therefore, in accordance with Article 24/3 of Law, employee may terminate the labour contract with a valid reason by alleging that COVID-19 pandemic as force majeure if all conditions occur.
II. In the context of Use of Leaves by Employee
a. Can Employer Force to Employee Take Unpaid Leave?
According to Article 22 of Law , the employer shall make an offer to employee for unpaid leave and obtain a written consent regarding the such issue within six days in order to give unpaid leave to employee. When the labour contract is suspended in such situation, the employee will not work and the employer will not pay and in case of suspension, not only the basic fee, but also the supplements are not paid. On the other hand, the employer shall make a request for unpaid leave in writing specifying excuse and employee shall accept the request in order to use unpaid leave.
Therefore, it is not possible for the employer to give unpaid leave to the employee regardless any reason unintentionally and unilaterally. If the employer force the employee for unpaid leave without employee’s intention, two possibilities will be raised: (i) the employee will accept such request of the employer and use unpaid leave and then continue to work at the end of the unpaid leave or (ii) the employee will not agree to use unpaid leave and will continue to work at the workplace.
If the will of the employee and employer is compatible with the use of unpaid leave, there is no upper limit for the duration of the unpaid leave. Therefore, as long as the outbreak continues, if the both employee and employer agree with the use unpaid leave to reduce the spreading of pandemic, employee may use his/her unpaid leave without the upper limit until the COVID- 19 pandemic ends.
b. Can Employer Force to Employee Take Annual Paid Leave?The employer shall the annual paid leave to be used continuously to employee within the periods indicated in the Article 53 of the Law. Article 7 of Annual Paid Leave Regulation (“Regulation”) clarifies the method of requesting the annual paid leave. According to the such article, the employee shall notify the employer regarding the annual paid leave at least on month in advance.
Such article examines the effects of COVID-19 for termination of labour and amendments such as leaves that can be applied by the employer and employee. Undoubtedly, the COVID-19, which influenced the whole world, will have economic consequences. The main purpose that employers and employees meet on the common denominator is to elude from such epidemic with the least harm. Therefore, both employee and employer shall have right to be protected and avoided epidemic.
ReferencesArticle 15/2 of Labour Law numbered 4857