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30December2020

Sanctions on Violating the Termination Ban

Sanctions on Violating the Termination Ban

Cash wage support and termination ban due to Covid-19 reasons have been extended to March 17, 2021. For further details, you can review our announcement via that link.

In case of a violation of the termination ban, the following sanctions and risks would be encountered:

  1. Administrative fine
  2. Cancellation of short-term employment allowance and refund of allowances with interest from employers
  3. Other possible termination risks

You can find below the details:

1) Administrative Fine

The related regulations are set forth in the Temporary Article 10 of the Labor Law as below:

"Temporary Article 10 - Regardless of whether this Law is covered or not, any employment or service contract does not comply with the rules of ethics and good faith in paragraph (II) of the first paragraph of Article 25 and other relevant laws, the expiration of fixed-term contracts, the closure of the workplace for any reason and the termination of its activity, all kinds of service purchases made in accordance with the relevant legislation and the termination of the work in construction works, it cannot be terminated by the employer for a period of three months from the effective date of this article.

The employer may leave the employee entirely or partially on unpaid leave for a period of three months from the effective date of this article. Being entitled to unpaid leave under this article does not give the employee the right to terminate the contract based on the justified reason.

In violation of the provisions of this article, the employer or his / her representative, who terminates the employment contract, is given an administrative fine at the monthly gross minimum wage amount for the employee whose contract is terminated.

The President is authorized to extend the three-month periods in the first and second paragraphs up to six months."

The terminations can be done within the scope of Temporary Article 10 of Labor Law; "Regardless of whether this Law is covered or not, any employment or service contract does not comply with the rules of ethics and good faith in paragraph (II) of the first paragraph of Article 25 and other relevant laws, the expiration of fixed-term contracts, the closure of the workplace for any reason and the termination of its activity, all kinds of service purchases made in accordance with the relevant legislation and the termination of the work in construction works.

Otherwise, as per the Labor Law Temporary Article 10, an administrative fine of gross minimum wage (3.577.50 TRY for 2021) would be applied for each employee.

You can find below the termination codes and reasons that are not within the scope of the termination ban;

  1. 02 - Termination of probationary employment contract by the employee;
  2. 03 - Termination (resignation) of indefinite term employment contract by the employee;
  3. 05 - Termination of fixed-term employment contract; The contract will be automatically terminated as of the specified date.
  4. 08 - Due to retirement (old age) or lump sum payment
  5. 09 – Retired due to disability
  6. 10 - Death
  7. 11 - Death due to work accident
  8. 12 - Military Service
  9. 13 - Marriage of a female employee
  10. 14 - Completion of other conditions other than age for retirement
  11. 16 - Transfer of the employee to another workplace belonging to the same employer without the contract termination; it can be used for transfers between the workplaces belongs to the same employer
  12. 17 - The closure of the workplace
  13. 18 - Termination of work; this code can be used after the completion of a specific project and the end of the work.
  14. 19 - End of the season (Used in case of suspension of employment. If the employee will not resume work, the code number "4" is used)
  15. 20 - End of the campaign (Used in case of suspension of employment. If the employee will not resume work, the code number "4" is used)
  16. 21 - Change of status; This code will be selected if the status of an employee with 4 / a changes the status to 4 / b (Independent).
  17. 23 - Termination by the employee for compulsory / force majeure reasons
  18. 24 - Termination by the employee for health reasons
  19. 25 - Termination by the employee due to the employer's violation of ethics and goodwill rules
  20. 29 - Termination by the employer due to the behavior of the employee against the rules of ethics and goodwill
  21. 30 - The expiry of the visa period (Used in case of suspension of employment. If the employee will not resume work, the code number "4" is used)
  22. 33 - Termination of the contract by the journalist
  23. 35 - Those who became a civil servant due to Law No. 6495
  24. 36 - Closing the workplace by decree
  25. 37 - Dismissal from public service by decree
  26. 38 - Termination due to birth
  27. 39 - Transition to public work with the Decree 696
  28. 40 - Exit due to not starting public work with Decree 696
  29. 41 - Those whose dismissal declaration is issued by the SSI.

The above SSI termination codes numbered 23, 24 and 25 are included in the 24th article of the Labor Law. Employees may terminate their contracts, and be entitled to severance payments.

"Article 24 - Regardless of the duration, the employee may terminate the employment contract before the end of the contract or without waiting for the notice period in the following situations:

  • Health reasons:
    • If the work that is the subject of the employment contract is dangerous for the health or life of the employee due to a reason arising from the nature of the work.
    • If the employer or another employee with whom the employee constantly meets closely and directly suffers from an infecting disease
  • Situations against morality and goodwill and similar:
    • If the employer misleads the employee by showing false qualifications or conditions about one of the essential points of this contract at the time of conclusion of the employment contract, or by giving false information or saying words.
    • If the employer speaks, acts or sexually harasses the employee in a way that will affect the honor of the employee or a member of his family.
    • If the employer intimidates the employee or a member of his family, or encourages, provokes, drags the employee or a member of his family to act against the law, or commits a crime that requires imprisonment against the employee and one of his family members, or makes serious accusations or accusations.
    • If the employee is subjected to sexual harassment at the workplace by another employee or third parties and the necessary precautions are not taken despite notifying the employer about this situation.
    • If the salary of the employee is not calculated or paid by the employer in accordance with the statements of the law or contract terms,
    • In cases where it is decided to pay the wage per piece or over the amount of work and the employer gives the employee less than the number and amount of work he can do, if the wage difference is paid on the basis of time and the missing wage of the employee is not covered, or if the working conditions are not applied.
  • Compelling / Force Majeure reasons:
    • If compelling / force majeure reasons arise in the workplace where the activity should stop for more than a week."

The Status of Code 22 – Other Reasons

This code is within the scope of termination ban and if it is chosen, all sanctions would be applied.

Especially, this code is chosen for the terminations with mutual agreements. There are some approaches stating that the termination with mutual agreements and code 22 would not be considered within the scope of termination ban, however, there is no official announcement. Accordingly, any sanctions / penalties would be applied if this code is chosen.

2) Cancellation of Short-Term Employment and Refund of the Allowances from Employers with Interest

According to the statements of the short-term employment regulated in the Temporary Article 23 of Law No. 4447, employees should not be dismissed / terminated if the employer / employees benefit from short-term employment allowance. If the employer terminates an employment contract within this period, the short-term employment of the workplace will be canceled and all short-term employment allowances will be requested from the employer with interest.

You can find below the related Article 23 (Law No:4447):

"For the short-term employment applications made for the compelling reason originating from the new coronavirus (Covid-19), valid until 30/6/2020, excluding the termination of the service contract envisaged in the third paragraph of the additional article 2 for the employee to qualify for the short-time working allowance the provision to fulfill the conditions of entitlement to unemployment insurance, short-term working start date those who have been subjected to service contract for the last 60 days, have worked for 450 days insured in the last three years unemployment insurance premium is applied as paid. Those who do not meet this condition, with the period not to exceed the short-term employment period can continue to benefit from the allowance for the time remaining from the last unemployment benefit entitlement.

In order to benefit from short-term employment under this article, employees should not be dismissed / terminated by the employer, except for the reasons mentioned in the clause (II) of the first paragraph of Article 25 of the Law No. 4857 during the study period.

Applications made under this article are concluded within 60 days from the date of application.

The President is authorized to extend the application date made under this article until 30/06/2021 and to differentiate the days specified in the first paragraph."

As per the statements of this article, if the workplaces benefiting from the short-term employment allowance terminates an employment contract within the short-term employment period, their short-term employment allowances will be canceled and all allowances will be requested from the employer together with the interest. Therefore, this point also needs attention.

3) Other Possible Termination Risks

As known, the principle of "interpretation in favor of the employee" is used in the interpretation of labor law. This principle is secured in Article 49/2 of the Constitution as follows:

"The state takes the necessary measures to increase the living standards of the employees, to protect the employees and the unemployed, to support working, to create an economic environment conducive to prevent unemployment and to ensure work peace."

Accordingly, judicial decisions are shaped on the basis of this principle.

Based on this, in addition to the above sanctions, there may be some additional sanctions in a possible judicial process.

Written by Erdoğdu Onur Erol, Posted in Social Security Law and Legislation, Labor Law

  • Notification!

    Contents provided in this article serve to informative purpose only. The article is confidential and property of CottGroup® and all of its affiliated legal entities. Quoting any of the contents without credit being given to the source is strictly prohibited. Regardless of having all the precautions and importance put in the preparation of this article, CottGroup® and its member companies cannot be held liable of the application or interpretation of the information provided. It is strictly advised to consult a professional for the application of the above-mentioned subject.

    Please consult your client representative if you are a customer of CottGroup® or consult a relevant party or an expert prior to taking any action in regards to the above content.

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