Effect of the transfer of the workplace on employment contracts in Turkey
According to the general provision of Article 6 of the Labour Law, when the workplace or a part of the workplace is transferred to another person based on a legal transaction, the employment contracts existing in the workplace or a part of it on the date of transfer are transferred to the transferee together with all rights and obligations.
The transferee employer is obliged to take action according to the date on which the employee started working for the transferor employer in order to meet the rights such as severance pay, notice pay, annual paid leave, etc., which are based on the employee’s length of service.
In the event of such a transfer, the transferor and transferee employers will be jointly liable for the debts arising before the date of transfer and due for payment on the date of transfer, but the liability of the transferor employer will be limited to two years from the date of transfer. The provisions on joint liability shall not apply in the event of a legal entity’s merger or dissolution by joining or changing its type. The concept of « debt » stated here is understood as general labour rights.
When the issue is considered in this respect;
- In terms of severance pay, the transferor employer shall be liable limited to its own period and the last wage of its employee on the date of transfer.
- Since the above-mentioned 2-year time limitation is not stipulated in Article 14 of the Labour Law No. 1475, which is still in force, severance pay will not be in question.
- When severance pay is required, severance pay should be calculated for the entire period of employment and the responsibilities of the transferor employer or employers should be determined over the period of their own employment and the last wage they paid.
- There is no responsibility for the transferor employer in terms of the payment of the notice pay due to the termination of the employment contract and the payment of wages for unused annual leave.
- The transferor employer and the transferee employer shall be jointly and severally liable for overtime work, overtime work arising from working on a weekday, national holidays and general holiday wages arising on the date of transfer of the employer. However, this liability of the transferor employer is limited to 2 years from the date of transfer.
On the other hand, whether the employment contract will be terminated in case of transfer and similar issues are also important.
In this regard, according to Article 6 of the law:
- The transferor or transferee employer cannot terminate the employment contract solely due to the transfer of the workplace or a part of the workplace.
- In the same case, the transfer will not constitute a justified ground for termination for the employee.
However, in cases that may occur during this period, the termination rights of the transferor or transferee employer, in cases of termination necessitated by economic and technological reasons or change in work organisation, and the termination rights of the employee or employer arising from justified reasons specified in Articles 24 or 25 of the Labour Law are reserved.
The effect of the transfer of the employment contract on employment contracts in Turkey
According to Article 429 of the Turkish Code of Obligations No. 6098, the service contract may be transferred to another employer permanently only with the written consent of the employee.
With the said transfer, the transferee will become the party including the service contract with all its rights and obligations. In this case, in terms of the rights of the employee depending on the length of service (notice and severance indemnities, 6-month working period for reinstatement, compensation for non-reinstatement, annual leave right, etc.), the date of employment with the transferor employer will be taken as the basis.
Since the aforementioned provision is not included in the Law No. 4857, the aforementioned provision of the Code of Obligations should be applied not only for the employees working under the provisions of the Code of Obligations but also for the employees working under the provisions of the Labour Law No. 4857.