As mentioned above, legal sanctions in Turkey generally include payments in the nature of compensation to be made to the employee or determination of the status by law or suspension of work, closure of the workplace and prohibition from working when the conditions are met, which may be in question in case of violation of the relative mandatory rules.
A. Payments in the nature of compensation
Legal sanctions in Turkey : some of these payments arise from the law and some of them may be stipulated by contracts.
1. Payments arising from contracts
As legal sanctions, it is very difficult in Turkey to draw the boundaries or to explain one by one the sanctions arising from contracts, which include the obligation to make a payment in the nature of compensation. This is because it is possible to link the failure to fulfil any obligation in the law to payments in the nature of compensation through employment contracts or collective bargaining agreements, depending on the bargaining power of the parties.
Since this issue depends on the bargaining power of the parties, it seems unlikely to be implemented in individual employment contracts in favour of the employee. On the contrary, it is more common for the employer to be bound to such sanctions through collective labour agreements in Turkey.
2. Payments arising from the law
The issue of making an employer’s obligation, which is not fulfilled as legal sanctions in Turkey, dependent on a payment in the form of compensation by law, has a content that provides labour peace and employee benefit more since it is determined outside the bargaining power of the parties and opens the way to get rid of an undesirable development by paying money when necessary.
The regulations in this context in the labour legislation can be listed as follows.
– Article 5 of the Labour Law No. 4857 prohibits discrimination based on language, race, sex, disability, political opinion, philosophical belief, religion and sect and similar reasons. In case of violation of this article during the employment relationship or at the termination of the employment contract, the employee is entitled to an appropriate compensation in the amount of up to four months’ wage.
– According to Article 17 of the Labour Law, in the termination of indefinite-term employment contracts without just cause, a notice period must be granted to the other party. If this notice period is not given, the party who does not comply with the notification requirement must pay compensation in the amount of the wage for the notification period.
– According to Article 21 of the Labour Law, in case of reinstatement, if the reinstated employee is not reinstated within one month, the employer will be obliged to pay a compensation in the amount of at least four months’ and at most eight months’ wages of the employee, which is determined by the court that issued the reinstatement decision at the same time. Article 24 of the Trade Unions and Collective Labour Law No. 6356 stipulates that in the event of termination of the employment contracts of workplace union representatives, the provisions of the Labour Law regarding reinstatement shall apply. Differently, it has been adopted that if it is determined that the reason for termination is only union representation, the compensation amount will be the amount of one year’s wage of the employee. According to the provision of Article 25 of the Law, which determines the guarantee of union membership or non-membership, if the workers are subjected to different treatment according to their union membership or participation in union activities, a compensation not less than one year’s wage of the worker will be awarded. If this issue has been effective in the termination of the employment contract, in this case, the regulations of the Labour Law regarding reinstatement will be applied and the amount of compensation will not be less than one year’s wage of the employee. In the continuation of the article, this issue has been made applicable to those who work according to the provisions of the Maritime Labour Law, Press Labour Law, Law of Obligations, those who work in agriculture and those who are excluded from the provisions of Article 18 of the Labour Law.
– According to Article 30 of the Turkish Labour Law, employers are obliged to reemploy workers who have been forced to leave the workplace on disability and whose disability is subsequently eliminated, in their former jobs, if they wish to be reemployed in their former jobs, if there is a vacancy in their former jobs or similar jobs, immediately, if there is a vacancy in their former jobs or similar jobs, or if there is not, they must employ them in the first job to be vacant, preferring other applicants, under the conditions prevailing at that time. In case of failure to fulfil this obligation, the employee must be paid compensation in the amount of six months’ wage.
– Article 31 stipulates that employers are obliged to employ workers who have been recruited for manoeuvre or any other reason other than active military service, or who have been dismissed from their jobs due to their work obligations arising from any law, and who wish to return to their former jobs within two months, immediately if there is a vacancy in their former jobs or in similar jobs, or if there is no vacancy, by giving preference to other applicants for the first job to be vacated, on the terms and conditions prevailing at the time. If this obligation is not fulfilled, the employee must be paid compensation in the amount of three months’ wage.
– According to Article 34 of the Labour Law, if wages are not paid on time, the highest interest rate applied to deposits must be applied to wages. In Article 63 of the Law No. 6356 on Trade Unions and Collective Bargaining Agreements, this rate is stipulated as the highest interest rate applied by banks as of the date of default for the party condemned to performance in actions for performance based on collective labour agreements.
B. Determination of status by Law
In some cases, the law itself determines the regulation or status to be applied by qualifying or ignoring the situation that arises in case of non-fulfilment of the obligation. These can be summarised as follows:
– Article 2 of the Labour Law No. 4857, which also regulates the relations between the sub-employer and the main employer, stipulates that the rights of the employees of the main employer cannot be restricted by the sub-employer or a sub-employer relationship cannot be established with a person who previously worked in the workplace. In the contrary case, the transaction is considered as a collusive transaction and it is stipulated that the subcontractor’s employees will be considered as the employees of the main employer from the beginning and will be treated accordingly.
– According to Article 12 of the Labour Law, it is prohibited to discriminate between fixed-term employees and indefinite-term employees, and according to Article 13, it is prohibited to discriminate between part-time employees and full-time employees based solely on the type of contract. In the event of a contrary action, it is necessary to act according to the equivalent employee working in the workplace or, if not available, in another workplace in the same line of business.
– An important institution where the labour legislation determines the status as legal sanctions in Turkey is the return institution. According to Articles 18, 19, 20 and 21 of the Labour Law No. 4857, in the event of a reinstatement decision, the termination of the employment contract is ignored from the beginning and the rights of the employee are restored.
– According to Article 22 of the Labour Law, a fundamental change in the employee’s job at the workplace can only be made if the situation is notified to the employee in writing and accepted by the employee. If the change is not made in the prescribed manner or if the change is not accepted by the employee within 6 working days, the change will not bind the employee.
– According to Article 29 regulating collective dismissal, termination notices related to collective dismissal will be effective thirty days after the notification of the dismissal request to the regional directorate.
– According to Article 34 of the Labour Law, if the wages are not paid within 20 days from the day of payment, except for a compelling reason, the workers’ refraining from the obligation to perform work based on their own decision, even if this action is made collectively, will not be considered as a strike.
C. Stoppage of work and suspension from work
Some regulations in the labour laws, especially in the case of occupational health and safety, include the suspension of work or the suspension of workers from working. In some cases, it is seen that the penalty of dismissal from the profession is mentioned.
The first of these regulations is the one titled work stoppage, which is specified in Article 25 of the Occupational Health and Safety Law No. 6331. Accordingly, it is possible to stop the work with an administrative decision when the conditions described in the article are realised and the relevant process is carried out. It is seen that some provisions of the Regulation on the Supervision and Inspection of Military Workplaces and Workplaces Producing Substances Necessary for National Security and the Regulation on the Suspension of Work in These Workplaces, some provisions of the Regulation on the Prevention of Major Industrial Accidents and Mitigation of Their Effects, and some provisions of the Radiation Safety Regulation are related to the suspension of work, and these Regulations have brought some other features to the general provisions regarding the suspension of work without changing their essence in terms of their subjects.
According to Article 41 of the Vocational Education Law No. 3308, when an administrative fine is imposed, in case of repetition of the act, the fine will be doubled and if the act is continued, a temporary ban from the profession will be imposed.
