A problem that arises in our labour law system, especially in the event of termination of the employment contract, is the employer’s demand from the employee for the expenses in Turkey related to the trainings that the employee has received or provided both before starting work and during the continuation of the employment contract. In practice, this situation brings along contractual arrangements or lawsuits to ensure that the costs incurred by the employer as a result of such training activities, especially for qualified labour force who will work in positions such as teaching, banking, senior management, etc., are recovered from the employee during the conclusion or termination of the contract.
Except for occupational health and safety, there is no regulation in the labour law system on this issue. This situation makes the decisions of the Court of Cassation even more important.
The employee-employer relationship, and therefore the concept of training within the concept of employment relationship, arises during the establishment or continuation of the employment contract by the employer’s own means or by purchasing training services from outside in order to ensure that the employee has the necessary qualifications in matters related to his/her job or in matters that are legally mandatory, such as occupational health and safety or in heavy and dangerous work, where only workers who have received vocational training can be employed.
Training activities that do not carry a legal obligation and arise on the initiative of the employer include a wide variety of activities and there is no legal regulation on them.
Apart from this, legal regulations regarding the training of workers are only found in the Occupational Health and Safety Law No. 6331 and related legislation in line with occupational health and safety concerns. According to the Regulation on Occupational Health and Safety Services, occupational health and safety services and trainings should be organised in a way that does not impose a financial burden on workers and outside of rest periods, and the time spent in training should be counted from working time. Therefore, if the training provided is related to occupational health and safety, it is not possible to ask the employee for these training expenses in Turkey either during the continuation of the employment contract or after the termination of the contract.
The other regulation is related to heavy and hazardous work. Accordingly, workers who have not received vocational training will not be employed in heavy and hazardous work. This issue is also emphasised in the Communiqué on Vocational Training of Workers to be Employed in Heavy and Dangerous Work. However, neither the legal provision nor the Communiqué mentions whether the training expenses can be recovered or not. At this point, it can be said that it will not be possible for the employer to claim the training expenses in Turkey from the employee due to the principle of interpretation in favour of the employee and the fact that this is a condition of employment.
The common view adopted in the decisions of the Court of Cassation is that the training expenses, which are not based on a legal obligation, can be claimed from the employee during the termination of the employment contract. In such applications, the Court of Cassation has adopted some calculation techniques with its decisions.
Accordingly, first of all, the expenses in Turkey claimed by the employer in return for the training provided to the worker must be specific to that worker and must be provable in writing. In the event that the employer provides collective training, it is possible to calculate the expenses incurred due to the trainings by dividing the amount per worker by the number of workers who received training in the same period. It is not possible to hold the employee responsible for the expenses that cannot be determined to be related to the training given to the employee in a manner incompatible with the aforementioned criteria.
In this context, it would be appropriate for the employer to demonstrate the expenses in Turkey related to the training with various payment documents and to prove that the employee attended the training with various minutes and similar documents.
In the case of training expenses in Turkey, another method applied by employers to cover these training expenses is to ask the employee to work for a certain period of time in return for these training expenses. For this purpose, a minimum working period is determined in the employment contracts and a penal clause is stipulated in the event that the employee leaves the work without a justified reason before this working period expires.
In this context, the Court of Cassation has interpreted that the training provided to the employee contributes to the production of goods and services in the workplace, which benefits the employer, and that this training makes the employee more qualified and easier to find a job in the future, and has accepted that it is possible to agree that the employee will work for a certain period of time in return for the training provided at the expense of the employer, and this issue is considered within the scope of the employee’s loyalty obligation.
Again, the Court of Cassation underlined that the employee’s obligation to work for a certain period of time in return for training expenses will continue in the event of the transfer of the workplace, and that the transferee employer has the right to claim the training expenses in case of violation of this obligation. Similarly, the temporary labour relationship has also been evaluated, and the period during which the employee is employed within the scope of the temporary labour relationship has been counted among the working time that the employee is obliged to work in return for training.
As it is fixed by the decisions of the Court of Cassation and as mentioned above, the working time undertaken in return for the training provided must be proportional to the type of training and the expenses incurred for the training. Again, if the employee has worked for the entire period of the employee’s obligation, it is no longer possible for the employer to request training expenses in Turkey.
In the aforementioned decisions, the Court of Cassation, if there is a working period from the contractor and the employment contract is terminated before the expiry of this period, or if the termination takes place when such a period is not foreseen, instead of the entire amount of the training expenses incurred by the employer on behalf of the employee, it is requested to decide to collect the remaining amount after a discount is made by establishing a ratio according to the periods the employee worked and should have worked.