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The worker can resign. If the employee or the employer has justified reasons (acts against morals and good faith), the employment contract may also be terminated. (Labor Law Art. 24/2 and 25/2) The worker’s employment contract may be terminated by the closure of the workplace.
Despite the fact that it occurred with the consent of the worker, termination of the mediator without just cause is prohibited due to the pandemic. Or, even if done with the worker’s consent, termination (termination of the employment contract with the mutual consent of the employer and the worker) is also within the scope of the termination prohibition.
DIFFERENT SITUATIONS
At the beginning of the pandemic; The termination ban, which came into effect in April (Provisional Art. 10 of the Labor Law), was extended for the last two months after November 17. (With Presidential Decree No. 3135 published in the Official Gazette dated October 27, 2020) Workplaces that notify SSI of their employee’s resignation must choose a code according to the type of termination. Codes ’03’ are chosen for resignation, ’25’ for lawful employee termination, ’29’ for lawful employer termination, and ’17’ for workplace closure. And these codes also refer to situations that are not covered by the termination prohibition. There are also situations that do not fall within the scope of the termination prohibition, such as the termination of a fixed-term contract, the purchase of services and the termination of work on construction sites.
ADMINISTRATIVE FINES
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Whenever there is a ‘termination ban’ due to the pandemic; If it is said that ‘there is mutual consent, the employee also received his compensation’, the employers would be wrong. In this way, we hear that workplaces that have come out against the termination ban, without a justifiable reason, often report ‘other reasons (code: 22)’ to SSI as the reason for termination. Even if the employee has received compensation and the employee’s consent, exit processes (codes) that signify violations of the termination prohibition (at the mediator or by termination) can expose employers to administrative penalties. An employer who terminates the employment contract in violation of the termination prohibition is imposed an administrative fine for each worker in the amount of “gross monthly minimum wage.”
According to the transitory article (tenth) of the Labor Law; employers during the ban on dismissal; They can take their employees off full or partial leave, not exceeding 3 months. Again, based on the same legal regulation; The president is authorized to extend the 3-month termination terms until June 30, 2021.
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INDEMNIFICATIONS AND TAXES
Typically, employers who want to separate from their employees must pay their employees severance pay and, if the notice period is not given, advance payment. (When the employer has a good reason, no severance pay or notice pay is paid). At least 1 year of work time is required for compensation.
If the employer terminates the employment contract (if there is no valid reason) in a workplace where 30 or more workers are employed, the non-labor compensation and time off fee (in addition to severance pay and severance pay) notice) must be paid to the employee. (The employee must also be at least 6 months old.) For these two elements to be paid, the employee must first go to the mediator, in case they disagree, and then go to the labor court and win the re-employment claim.
HOW THE COURTS EVALUATE
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In order to pay non-labor compensation and the ‘downtime fee’, the courts must first decide that the employer who terminated the employment contract ‘has no valid reason’ and thus the ‘reinstatement’ of the employee. The employer who does not reinstate the employee despite the reemployment decision must pay compensation for non-employment up to the employee’s gross salary for 4 to 8 months.
Courts in reemployment cases; Assess whether the employer sees “layoffs as a last resort.”
There are also frequent doubts about compensation, which is subject to tax, what type or which will be calculated without tax. The calculation conditions and tax conditions of ‘severance pay and notice pay’, as well as ‘non-labor compensation and downtime’ can be seen in the table below.
