First of all, it should be noted that Turkish Employment Law has a very wide framework. In this sense, it can be said that it has some special resources that are not found in other legal disciplines and the hierarchy among the resources has some different characteristics. In fact, in Turkish Law, social and economic rights related to working life and labor law are primarily regulated by the Constitution of the Turkish Republic (the “Constitution”). Moreover, the rules of the Constitution concerning employment law do not only consist of social and economic rights. Provisions regarding individual rights and freedoms (such as principle of equality, personal immunity, prohibition of drudgery, protection of private life, freedom of communication, freedom of thought and opinion) are also related to working life.
In addition to this, the rules regarding the employee-employer relationship are regulated both in the Turkish Code of Obligations numbered 6098 (“Turkish Code of Obligations”) and the Employment Law numbered 4857 (“Employment Law”). The primary and simplest reason for the regulation of the aforementioned rules in the Turkish Code of Obligations, as well as the Employment Law, is that the relationship between the employee and the employer regulates a debtor-creditor relationship. Apart from these, other basic regulations regarding employment law are regulated by other laws such as Trade Unions and Collective Labour Agreements Act numbered 6356, Occupational Health and Safety Law Act numbered 6331, and the Labor Courts Law Act numbered 7036. Practical measures for implementation are possessed through regulations, legislations, notices, and Presidential Decrees. On the other hand, while Judicial opinions and international agreements are also among the main sources of employment law, employment agreements, internal regulations, and workplace practices can be named as private sources.
- In Turkish Law, it is obligatory to apply to a mediator before filing a lawsuit concerning employee and employer disputes. Mediation is a legal remedy that must be completed as a pre-condition. If the parties cannot reach an agreement during mediation proceedings, then they will have the right to file a lawsuit.
- The working conditions arising out of the employment agreement, internal regulations, or workplace practices, may be changed only if the employees are notified in written form before the change. Employees of the company should be notified in writing and asked to respond within 6 business days, whether or not they object to the changes. If an employee rejects the changes or does not provide a written approval, such change cannot be applied to the related employee.
- Parties to the employment agreement may agree upon a trial period in order to evaluate each other. However, trial periods cannot be longer than two months as per Article 15 of theEmployment Law. On the other hand, trial period can be increased up to four months concerning collective labour agreements.
- As per Article 41 of the Employment Law, overtime is defined as the time which exceeds 45 hours per week, under the circumstances stipulated under the law. However, concerning white-collar employees, it can be agreed under the employment agreement that the wages for overtime of up to 270 hours in one year are included in the employee’s salary. In other words, the employee would not be entitled to any overtime payment concerning overtime works which do not exceed the annual 270-hour limit. For any hour exceeding this limit, the employer is obliged to make overtime payments to the employee.
- In order not to face the administrative, legal, and penal responsibilities, the rules set out in Occupational Health and Safety Law Act numbered 6331 and the Occupational Health and Safety Services Regulation must be followed.
The Constitution, Presidential Decrees, laws and regulations, judicial opinions, international agreements, employment agreements, internal regulations, and workplace practices are among the sources of employment law.
A. Employment Agreements
Individual Employment Agreements: Parties may freely choose from many types of individual employment agreements based on their needs, within the legal boundaries. Main types are as follows;
Fixed–Indefinite Term Agreements
- Part-Time–Full-Time Agreements
- Continuous–Discontinuous Agreements
Further information concerning employment agreements can be found under Section III. Employment Contracts below.
Collective Bargaining Agreements: In accordance with the Law on Trade Unions and Collective Bargaining Act No 6356, the collective labor agreement is an agreement made between the labor union and the employer’s union or the employer who is not a member of the union in order to regulate the employment agreements. Collective bargaining agreement is made in writing. Collective bargaining agreements can be concluded for a period of at least 1 and at most 3 years. The duration of the collective labor agreement cannot be extended or shortened by the parties after the signing of the agreement, and cannot be terminated before the determined period. Members of the labor union that is a party to the collective bargaining agreement benefit from such agreement.
B. Other Sources of Employment Relations
Internal Regulations of the Company: Internal regulations are issued solely by the employer, without consulting or negotiating with the employee. Therefore, for internal regulations to be valid, the employee must clearly be informed about these rules while the agreement is being drafted, as well as accepting and approving them. Additionally, internal regulations cannot be immoral, or be against good faith or aggravate the position and/or obligations of the employee.
Workplace Practices: Certain repeated actions by employers may constitute a workplace practice. To give an example, if the employer provides travel expenses or bonuses or other additional social benefits, even though they are not specified in the employment agreement or internal regulations, these actions will constitute a workplace practice. However, the employer should provide such benefits to all employees or a part of them, for an action to become a workplace practice. If these benefits are provided to a certain employee, then it cannot be regarded as a workplace practice and the employer would not be obliged to provide these to other employees.
Instructions of the Employer: Provided that they are not against the Employment Law or the employment agreement, the employer has the right to give instructions in order to carry out the work and to regulate employees’ behaviors. In parallel, the employee is under the obligation to comply with valid instructions of the employer.
As of 01.01.2018, in accordance with the Labor Courts Law Act No 7036, it is obligatory to apply to a mediator before applying to the court in employee and employer disputes. Mediation is a legal remedy that must be completed. If a lawsuit is filed before this procedure is completed, the lawsuit shall be dismissed on procedural grounds.
Although it is obligatory to apply to the mediator, it is not obligatory for the parties to reach an agreement at the end of the mediation process. For this reason, if the parties cannot reach an agreement during the mediation process, the claimant will have the right to file a lawsuit against the other party.
If the parties reach an agreement at the end of the mediation negotiations, the parties can no longer file a lawsuit concerning the items which they have agreed upon.
The proof of mobbing in business life is a situation that varies according to the conditions of the event and the nature of the job. The employee who is subject to mobbing may have deteriorated health due to humiliating behavior and ill-treatment and may have received psychological treatment. At this point, the employee may terminate the employment contract with just cause and claim compensation from the employer.
With the current Constitutional Court Decision dated 14.09.2022 and numbered 2018/27032 published in the Official Gazette dated 11.10.2022 and numbered 31980, having received psychological treatment was considered an important presumption against mobbing. Therefore, if the employee whose health deteriorates due to the treatment in the workplace and who receives psychological treatment proves this with his/hers health reports and treatment costs, it can be said that he/she has been subject to mobbing.
C. Remote Working
With the Covid-19 pandemic, important changes have occurred in Turkey regarding the place where the work is carried out. In this sense, Remote Working Bylaw has been published and entered into force on 10.03.2021, which regulates the terms and conditions if an employee is to work remotely or from the workplace. If an employee is to permanently work remotely, the employer and the employee must enter into a written agreement.
However, no steps have been taken regarding the hybrid working model, which is generally preferred by businesses in practice. In other words, if the employee is to work remotely for a short period of time due to reasons such as a pandemic, or is to work remotely one or two days within a business week, it is not required to enter into an agreement.
It is expected that new regulations will be introduced in this area.