Author Nihal Çavuş Bal
THE RIGHTS OF THE UNRECOMPENSED EMPLOYEE
One of the most common reasons of cease of employment in working life is that the wages of an employee has not been paid, has been paid late or short-change.
Paying the wages is one of the primary obligations of the Employer. When the Employer does not fulfil such obligation of its, the Employees seriously have a thin time since their sole means of livelihood is such wage which they get from their Employer mostly.
The unrecompensed employee may always demand its unpaid wages and also has the right to terminate the employment agreement with a valid reason. Besides, the Law also recognizes for the unrecompensed employee to avoid performing the work. Before we mention the legal procedures which the unrecompensed employee may apply, we think that explaining the subjects regarding the wage concept and method, time and place of the wage would be beneficial.
The wage is defined under Article 32 of the Labor Code no. 4857 as “Wage is, in general terms, the amount of money to be paid in cash by an employer or by a third party to a person in return for work performed by him.” The Supreme Court also accept that the wage is corresponding of working (business). The wage mentioned in the Code is interpreted as a wage in general manner and within this scope, the lien items such as bonus, premium, fuel allowance, clothing support, road and food allowance, overtime, week-end, general holiday are included to the wage content.
The Employer and the Employee may freely determine type and amount of the wage within the extent of freedom of contract on the condition that such wage is not lower than the subsistence wage. Pursuant to Article 401 of the Turkish Code of Obligations; the Employer is obliged to pay the wage determined in the agreement or collective employment agreement or the equivalence wage not lower than the subsistence wage when there is no provisions in the agreement to the Employee. It shows that, even if the amount of wage is not stated in the agreement, the Employer is obliged to pay the equivalence wage to the Employee in return for work.
THE PAYMENT METHOD, TERM AND PLACE FOR THE WAGE
According to Article 32/2 of the Labor Code, the wage, bonus, premium and all kind of due at this characteristic shall be paid in Turkish money (legal tender) at the establishment or shall be deposited into a specially opened bank account, in principle. If the wage, bonus, premium and all kind of due at this characteristic has been decided in terms of a foreign currency, it may be paid in Turkish money according to the currency rate on the date of payment. Apart from that, it is also not possible to pay the base pay in kind. Furthermore, the wage payment cannot be made with a bill of debenture payable at sight (bond), a coupon or a paper which is claimed as a functional currency in the country or in any other way.
The Ministry of Labor and Social Security, the Ministry of Finance and the Ministry of State in Charge of the Undersecretariat of Treasury are entitled to determine whether the wage, bonus, premium and all kind of due at this characteristic will be over the residual net amount after the gross and legal deductions are written off or not, to oblige the employers or third parties in the manner of making the payments regarding the wage, bonus, premium and all kind of due at this characteristic thereby depositing money into a specially opened bank account, considering the matters such as tax obligation they are subjected to, scale of their enterprise, employing manpower, current city of the workplace etc. The Employers and third parties which are subjected to the liability for making the wage, bonus, premium and all kind of due at this characteristic of their employees thereby depositing money into a specially opened bank account may not pay their employees’ wage, bonus, premium and all kind of due at this characteristic in any way except specially opened bank accounts.
The Labor Code states that the wage will be paid at least one time in a month. The payment term can be scaled down to one week with an employment agreement or collective employment agreement, nonetheless such term cannot be extended and the agreements which extents such term will be null and void. The Turkish Code of Obligations also states correspondingly that the wage will be paid to the Employee at the end of the date unless there is a precedent on the contrary, however more short payment terms may be determined with a contract of employment or a collective employment agreement. In accordance with the provision stated in the code, in case the payment day is determined in the employment agreement or collective employment agreement, such day is the last day for the Employer to pay the wage. Nonetheless, in case the payment day is not determined in the employment agreement or collective employment agreement, then the last day for the Employer to pay the wage is the last day of every month unless there is an institution for the payment terms.
In case the Employer fails to fulfill its payment obligation, the legal rights of Employee which are vested by the Legislator may be brought together under three title; 1) Demanding the claims by filing a lawsuit, 2) Terminating the Employment Agreement with a Valid Reason and 3) Refraining from fulfilling the obligation of work.
1) DEMANDING THE CLAIMS BY FILING A LAWSUIT
The unrecompensed employee may always file a lawsuit and demand his unpaid claims with its interest. However, since the rights such as severance pay, notice pay and payment for annual leave are considered as claims as a consequence of discharging of the employment agreement, such rights may only be demanded and sued after discharging of the employment agreement.
The Employee may demand his wage with its additions in broad terms including overtime pay, week-end pay, general holiday pay, national and religious holiday pay independently of discharging of the employment agreement (during the working relationship). Nonetheless, such opportunity to demand is not limitless. The unpaid wages have to be demanded and sued in five-year limitation period. Even if the working term of the Employee is longer than five years, the Employee may demand his claims for five years back at most from the lawsuit date.
Pursuant to Article 34 of the Labor Code, the highest interest rate charged to bank deposits shall be levied on wage debts not paid on the day they were due. In case the payment day is not determined certainly in agreement, to charge interest for unpaid wages, the Employer have to be put in default with a cease and desist letter before the lawsuit. If a cease and desist letter did not send to the Employer, then it is accepted that the Employer has put in default as of the filing date of lawsuit and the interest may be charged starting from the lawsuit date.
2) TERMINATION OF THE EMPLOYMENT AGREEMENT WITH A VALID REASON
Right of terminating the employment agreement of the unrecompensed employee is regularized in Article 24/II(e) of the Labor Code. Accordingly, the Employee has a right to terminate the employment agreement, whether it is for definite duration or not, before the duration has ended or without waiting for the notice period in the event of his wage is not calculated or paid in accordance with the provisions of agreement or code. In this case, the employee is also entitled to receive his severance pay.
To mention that the wage is not paid, it is necessary that payment term of the employee should be fallen in and the employee should have deserved such wage. The payment term of the wage is explained above. At this point, it is beneficial to state that the Supreme Court has the opinion that short delays which are not continuous in wage payments cannot be deemed as a valid reason for the termination. In other words the short and discontinuous delays in wage payments is not accepted as valid reason for the termination in accordance with the Supreme Court’s practice.
3) REFRAINING FROM FULFILLING THE OBLIGATION OF WORK
Beside the right of terminating the agreement with a valid reason, the Code also recognizes the right of refraining from fulfilling the obligation of work to the unrecompensed Employee. As a matter of fact, some of the unrecompensed employees do not wish to terminate their employment agreement by reason of the difficulties in finding a new job at the same standards and they have to stand this unfair situation. The right of refraining from fulfilling the obligation of work provide assurance for the employee who does not wish to terminate his agreement. Nonetheless, such right cannot be use arbitrarily and can be use only under the circumstances stated in the Code.
Pursuant to Article 34 of the Labor Code, the employee whose wage has not been paid within twenty days of the day it was due, except for force majeure, may refrain from fulfilling his obligation to work. Thus, even if refraining from work by employees based on their personal decisions takes on the character of a concerted action in quantifiable terms, it shall not qualify as a strike. The highest interest rate charged to bank deposits shall be levied on wage debts not paid on the day they were due.
Employment agreements of such employees shall not be terminated solely because they have refrained from working for this reason and no replacements shall be hired, nor may such work be performed by others.
In accordance with the Labor Code, the circumstances which make refraining from work are as follows;
There has to be twenty days delay at least: Said period is calculated according to payment term. In other words, start date of the twenty days delay is the date which the wage has become due. Such minimum “twenty days” stated in the Code does not state “working day” but exact twenty days from the wage payment term. Therefore, in case there are non-business days in such twenty days period, such circumstance does not pose an obstacle regarding elapsing of the period.
Using of such right has to be based on personal decision of the employee: to avoid appearing the situation of refraining from fulfilling the obligation of work as strike, using of such right has to be based on personal decision of the employee. Otherwise, such action which is not obeyed the legal rules may be concluded to employee’s disadvantage.
Non-payment has not to be based on force majeure: A force majeure may be arisen from natural disasters such as stroke of lightning, frost, storm, hurricane, earthquake etc. and from social action depending on humans such as war, revolution, rebellion, general strike with political aims etc. and from legal actions such as import and export prohibitions, closure of the borders, dismissing the employee by state of siege, seizing the enemy’s goods etc. We may say that all of other reasons which are not force majeure or put the employer in payment difficulty will not eliminate the rightfulness of refraining from fulfilling the obligation of work.
There isn’t any clear provision regarding how to use the right of refraining from fulfilling the obligation of work and whether the employee is obliged to notify or send a notice to the employer before a given period to use this right or not. Therefore, it is recommended to send a written notification to the employer with respect to provability.
On the other hand, quitting the work without notifying the employer about he is using his right of refraining from fulfilling the obligation of work may cause serious forfeitures for the employer. Hence, the employer who is not aware of this situation may terminate the employment agreement with a valid reason due to violating duty of loyalty or absence and in such case, the employee cannot bring forward an excuse regarding he was using his right of refraining from fulfilling his obligation of work. Thus, notifying the employer about using the right of refraining from fulfilling the obligation of work will be in favor of the employee.
We recommend to receive consultancy services of a law firm which is expert in Labor Law in such cases the wage is not paid in full and time or the employment agreement is terminated by the employee without all conditions has been occurred or the employment agreement is terminated with a valid reason by the employer when the employee refrained from the obligation of work etc., since such cases may create unfavorable circumstances for the employee. Our law firm represent its clients for lawsuits and alternative dispute resolution procedures and provide legal consultancy services with its staff expert in Labor Law. You may get in contact with our law firm, if you would like to receive legal support regarding your disputes regarding Labor Law.