07/03/2023

Obligation of the employee to give back and prescribing penalty conditions in Turkey

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The obligation for the employee in Turkey to return is regulated in Article 443 of the Code of Obligations under the title of termination of the contract. Accordingly, in the event of termination of the employment contract, each party is obliged to return the things received from the other or from a third party for the account of the other in connection with the service. In the regulation, it is emphasized that the employee in Turkey is obliged to return motor vehicles and traffic permits, wage and expense advances to the extent that they exceed the receivables. Finally, it is underlined in the regulation that the parties reserve the right of imprisonment.

In practice, it is a common problem that employees do not return the movable or immovable goods and property given to them by the employer to perform their work following the termination of the employment contract for any reason. In this context, vehicles, documents related to vehicles, collections, portable production tools and equipment, uniforms, work clothes, unsold goods and the like may be mentioned. Again, these goods and property may be given to the employee in Turkey by third parties with whom the employer has a business relationship, for the account of the employer (collection of the debt arising from the sale of goods by the employee, entrusted goods, etc.). Finally, although it is not common in practice, it is necessary to mention some goods and property given to the employer by the employee.

In this context, the worker’s belongings left in the dressing room, tools and equipment used for production purposes but owned by the worker, etc. can be given as examples.

One of the most common problems in the continuation or termination of the employment contract and in practice is the penal clauses imposed by the employer in the employment contract. In this context, employers include penal clauses in the contract, which stipulate that the employee in Turkey shall pay a certain amount of money in case of breach of the contractual provision in order to guarantee the employee’s commencement of work, behavior according to the terms of the contract and termination of the contract duly. This situation is a phenomenon that can be seen in all contracts and can be considered justified. However, the problem that is frequently experienced is that these penal clauses are included in employment contracts only to protect the employer’s rights. So much so that the employee cannot act freely under these penal clauses or may face severe sanctions.

At this point, the first paragraph of Article 420 of the Code of Obligations should be applied. According to the provision of the aforementioned article, penalty clauses in employment contracts are invalid only against the employee in Turkey. Accordingly, not only the employment contract, but also the penalty clauses against the employee will be deemed to have never arisen, and the employee in Turkey cannot be expected to fulfill them. However, in the opposite case, the penalty terms mutually stipulated by the parties for the failure of the parties to comply with the relevant provision regarding any regulation written in the contract will be valid, and in this case, the party who acts contrary to the contractual provision may be asked to pay this penalty.

Unjustified failure of the employee to start work or sudden quitting

Article 439 of the Code of Obligations No. 6098 regulates the remedies that the employer may apply in the event that the employee does not start work or suddenly quits work without just cause.

According to the aforementioned regulation, in the event that the employee does not start work or suddenly quits work without just cause, the employer has the right to demand compensation equal to one quarter of the employee’s monthly wage. The employer also has the right to demand compensation for additional damages, if any. On the contrary, it is also possible for the judge to reduce the compensation if the termination was made unfairly, but in this case, the employer has not suffered any damage or the damage incurred is less than one quarter of the employee’s monthly wage.  In such a case, the right to claim compensation will be forfeited if the employer fails to exercise this right through a lawsuit or proceeding within thirty days starting from the employee’s failure to start work or sudden cessation of work, unless it has been terminated through exchange. Since the regulation has been made in this way, it is clear that the 40-day period for the forfeiture of the right to claim compensation in case of failure to claim compensation in due time is a forfeiture period and should be taken into consideration ex officio.