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A. Employer’s Rıght To Termınate The Employment Contract
1 – Employer’s Right to Terminate the Contract Due to “Health Reasons”
Following Article 76 of the Public Health Law;
“Those who are sure that they have a means of transplanting one of the infectious and epidemic diseases to those around them are temporarily banned and by the decision of the health councils from the execution of their professions and artisanship until the eradication.”
As can be understood from the regulation, it is forbidden for employees to work who are infected with coronavirus and similar epidemic diseases. The employer’s right to terminate due to this prohibition is regulated under Article 25 of the Labor Code (“Labor Code”) numbered 4857:
“If it is determined by the Health Committee that the disease in which the employee has is incurable and it is harmful to work at the workplace, the right to terminate the employment contract without notice for the employer is borne six weeks after the notification periods according to the working time of the employee at the workplace in Article 17. However, the wages are not processed for the periods when the employee cannot go to work due to the suspension of the employment contract.”
With this regard, to terminate the employment contracts by the employer of those who are prohibited from working according to the 76th article of the Public Health Law due to the coronavirus, the notification periods in the 17th article of the Labor Code calculated according to the working time of the employee in the workplace must be exceeded for 6 weeks. Otherwise, the employer will not be entitled to the termination. During this period, although the employer does not have the right to terminate with a just reason, he will not pay wages for the period in which the employee cannot go to work due to the suspension of the employment contract. In this context, if the days when the employee is using a medical leave continuously exceeds the employee’s notice period by 6 weeks, the employment contract may be terminated by the employer for a just reason according to Article 25 / I / b-2 of the Labor Code. It should be underlined that the relevant health reports must be continuous.
2 – Employer’s Right to Terminate the Contract Due “Force Majeure”
Reasons that are not caused by the employer’s referral and administration and therefore cannot be predicted and cannot be eliminated, resulting from external effects, temporarily reducing the working time or stopping the activity completely or partially such as Earthquake, fire, flood, epidemic disease and mobilization are called force majeure.
The Article 25/1.3 of the Labor Code states that; “In the event of a force majeure that prevents the employee from working for more than a week in the workplace, the employer may terminate the employment contract before the definite duration is over or without waiting for the notification period.”
Following the said article, certain elements must be provided for the right of termination of the employer. These elements are as follows:
- The force majeure is not happening in the workplace but happens in the employee’s personal life,
- Continuation of work in the workplace,
- The inability of the employee to continue to work for reasons not which are caused by his fault
Furthermore, the decision of the 9th Civil Chamber of the Supreme Court dated 9.5.2016 and numbered E. 2016/7175, K. 2016/11446 suggests that;
“The reasons that prevent the employee from working must occur around the employee himself. The reasons arising from the workplace and preventing work are not within the scope of this article. For example, the closure of the workplace is not a force majeure (9th Civil Chamber of the Supreme Court, decision dated 25.4.2008 and numbered 2007/16205 E, 2008/10253 K.). However, situations such as disconnection due to natural events such as flood, snow, earthquake, and quarantine application due to epidemic disease are considered force majeure.”
It was stated that the force majeure should occur around the employee, and the reasons arising from the workplace and preventing them to work cannot be evaluated within this scope. Also, it was clearly stated by the Supreme Court that the quarantine implementation due to the epidemic is a force majeure.
Besides, Article 40 of the Labor Code regulates that the employee who cannot work or cannot get worked due to force majeure, he will be paid half a wage for each day up to a week within this waiting period.
Following these regulations, the employers must pay half the wage per day up to a week to employees who cannot work, or cannot get worked by the employer, due to force majeure such as the coronavirus that prevents the employee from performing. At the end of a week that the employer must wait for to obtain the right to termination for the just reason, the employer may choose to wait for the force majeure to get eradicated by not using the right to termination. However, the employer does not have to pay any wages to the employee during this period. During the aforesaid period, the employment relationship between the employee and the employer will remain suspended, but as long as the force majeure persists, the employer’s right of immediate termination will remain. However, if the force majeure ends, the employee must continue to perform and the employer must continue to employ the worker.
B. Employee’s Rıght To Termınate The Employment Contract
3 – Employee’s Right to Terminate the Contract Due to “Health Reasons”
The Article 24/I-1.(b) of the Labour Code suggests that “If the employer or another employee whom the worker constantly meets and contacts closely and directly, is infected with an infectious illness or illness that is incompatible with the work of the employee, the employee may terminate definite or indefinite term employment contract before the end of the term or without waiting for the notification period.” Following this regulation, if the employer or another employee whom the employee meets and gets into contact constantly and closely in the workplace gets infected with a disease such as Coronavirus that is incompatible with employee’s work, the employee may terminate the employment contract with immediate effect and may demand severance pay.
It is important to note that the aforesaid article regulates that the employer or another employee has a disease that is incompatible with the job, instead of the employee. The situation of the employee himself having a disease should be evaluated within the scope of force majeure.
According to the subparagraph 3 of the 1st paragraph of the same article; if a force majeure that requires the activity to stop at the employee’s workplace for more than a week the employee may terminate the definite or indefinite term employment contract before the end of the term or without waiting for the notification period. Therefore, if the employee’s inability to perform due to the Coronavirus exceeds one week, the employee may terminate the contract based on the mentioned regulation. Also, as explained above, according to Article 40 of the Labor Code a half-day wage will be paid for a one-week period during which the employee cannot work.
4 – Employee’s Right to Terminate the Contract Due “Force Majeure”
Article 24/I.3 of the Labour Code suggests “If compelling reasons arise for more than a week in the workplace where the worker is working, the worker may terminate the employment contract before the deadline or without waiting for the notification period.” It is called. “In the event of a force majeure that results in cease of activity more than a week in employee’s workplace, the employee may terminate the employment contract before the definite duration is over or without waiting for the notification period.”
Following the said article, certain elements must be provided for the right of termination of the employee. These elements are as follows
- Complete cessation of activity due to force majeure in the workplace,
- The emergence of a force majeure for which the employee cannot continue to work for more than a week,
- That the employee is unable to continue due to the force majeure.
As previously mentioned in the chapter titled “Employer’s Right to Terminate the Contract Due “Force Majeure” the force majeure is the events that cannot be predicted, arising from outside effects, cannot be avoided and that cause the employment contract to be inapplicable. It should be emphasized that when determining whether an event is force majeure or not, the criteria that whether the termination is the ultimate remedy should be taken into consideration. If the employee or employer can prevail against the event that seems to be a force majeure by avoiding the termination of the contract, the employment contract cannot be terminated due to force majeure.
As explained above in detail; epidemics are considered as force majeure and the opinion of the Supreme Court is also in this direction. Therefore, if the activity is completely ceased at the employee’s workplace, and the employee cannot continue to perform for more than a week, due to the coronavirus epidemic disease, the employee may terminate the employment contract immediately. Besides, following Article 40 of the Labor Code, the worker will be paid half a wage for up to a week.