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Can Employers Or Employees Terminate The Employment Contract Due To Coronavırus?
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
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.