Employment Law

Scope

Employment law covers all working relationships based on an employment contract. Individual employment law governs the formation of the employment contract, working conditions, wages, overtime, annual leave and the termination of the contract; collective labour law governs trade union membership, collective labour agreements, strikes and lockouts; and occupational health and safety law governs the employer’s prevention and protection obligations. The principal laws are Labour Law No. 4857, the provisions of Turkish Code of Obligations No. 6098 on service contracts, Occupational Health and Safety Law No. 6331, Law No. 6356 on Trade Unions and Collective Labour Agreements, and Social Insurance and General Health Insurance Law No. 5510. The provisions on severance pay are found in Article 14 of Labour Law No. 1475, which remains in force.

As employment law contains mandatory rules, an employment contract cannot fall below the minimum level of protection provided by law. The employment contract, the collective labour agreement, workplace practices and statutory provisions are assessed together, and the provision more favourable to the employee applies. On the employer’s side, the procedures to be followed in matters such as work organisation, subcontracting, transfer of a workplace and collective redundancies are also of particular importance.

Frequently encountered matters

• Drafting and review of fixed-term and indefinite-term, part-time and on-call employment contracts.
• Termination for just cause and for valid reason, obtaining the employee’s defence, and disciplinary procedures.
• Reinstatement claims and the consequences of a failure to reinstate.
• Severance pay, notice pay and other employee receivables.
• Claims relating to overtime, weekly rest days, national holidays and annual leave.
• Material changes to working conditions, the duty of equal treatment and psychological harassment (mobbing).
• Non-compete, confidentiality and penalty clause provisions.
• Liability of the principal employer and the subcontractor in subcontracting arrangements and transfers of a workplace.
• Claims for pecuniary and non-pecuniary damages arising from occupational accidents and occupational diseases; disputes concerning insured status and the determination of service periods.
• Collective labour agreement, strike and lockout processes; work permits for foreign nationals.

Process and points to note

The most important issue in employment disputes is time limits. For claims for employee receivables and compensation based on the law or the employment contract, and for actions seeking reinstatement, mandatory pre-litigation mediation applies: an application to a mediator must be made before the action is filed (Art. 3 of Labour Courts Law No. 7036). For reinstatement, an application to a mediator must be made within one month of service of the notice of termination and, if no agreement is reached in mediation, an action must be filed before the labour court within two weeks of the final minutes being drawn up (Art. 20 of Law No. 4857). To benefit from the reinstatement provisions, the workplace must employ thirty or more employees and the employee must have at least six months’ seniority (Art. 18). The general limitation period for employee receivables is five years.

For this reason, the notice of termination, payroll and wage payment records, employment start and termination notifications, the employment contract, timekeeping records and correspondence are gathered at the outset. In claims such as overtime, the burden of proof is assessed through witness statements and workplace records. The employer must notify the Social Security Institution (SGK) of an occupational accident within three working days after the accident (Art. 13 of Law No. 5510). In occupational accident and occupational disease cases, fault and the Institution’s right of recourse are determined on the basis of expert reports.

Our office’s approach

In employment law matters, the same method is followed whether acting for the employee or the employer: documents and records are reviewed, and the basis of the claim and the applicable time limits are set out in writing. What is required at each stage of the mediation application and the litigation process is explained in advance.