Empoloyee’s consent is required for unpaid leave

Empoloyee’s consent is required for unpaid leave
25 March 2020

Many businesses stop their activities and give their employees paid leave within the scope of the measures taken against the coronavirus. Some businesses apply for unpaid leave without the approval of their employees. Experts state that unpaid leave cannot be applied without the employee’s approval, and this is a violation of rights.

*** This release is originally published in Turkish.
Google Translate Application translates the content you see on this page.***

ISTANBUL (TR) - The economic consequences of coronavirus began to manifest itself in our country as well as all over the world. Employees are considered on leave while businesses are shutting down after social isolation and 'stay at home' calls. While there is no problem in paid leave, there is no legal consent of the employee in unpaid leave. Stating that it may be misleading that there is not enough regulation in the Labor Law, Lawyer Mustafa Mıhcı, the founder of Mıhcı Law Firm, said that unpaid leave is possible only with a written agreement between the employee and employer.

“The employer does not have unilateral leave right”

Stating that the Supreme Court practices are taken as a basis in addition to the Labor Law numbered 4857 regarding the permit processes, Mustafa Mıhcı said “The main type of permit in the Labor Law is paid leave. In other words, workers have to get paid while they are on leave. Unpaid leave is an exception and is only possible in cases provided for by law. Since the Labor Law does not contain adequate regulations, the action is taken according to the decisions of the Supreme Court. The solution brought by the Supreme Court on this matter; unpaid leave may only be possible with the “joint agreement” of the employee and employer. In other words, the employer does not have the unilateral right to leave the worker for free leave.”

“Unpaid workers cannot benefit from unemployment benefits”

Stating that the unpaid leave is not only related to the mutual agreement and also has other conditions, Mustafa Mıhcı said, “First of all, but the employer also has to make the unpaid leave offer to the worker in writing. The worker must then accept this offer in writing within 6 working days. There are no other types of unpaid leave. Similarly, the worker has the right to offer unpaid leave. If the unpaid leave is decided upon with a joint agreement, the employment contract will be suspended during the unpaid leave and the insurance premiums of the worker will not be paid. There is no right to receive unemployment benefits during this period.”

“The worker who has been forced to leave can get his right”

Mustafa Mıhcı stated “Workers who have been forced to take unpaid leave can terminate their contracts for good reason, and receive compensation and other rights. If quarantine is declared in epidemics such as coronavirus, the study stops for a compelling reason. For this compelling reason, the worker has to be paid half the wage in the first week when the workplace has to stop working. Then the right of termination can be used. According to the Unemployment Insurance Law, the employer can make a short 3-month work to pay the wage from the unemployment insurance fund.”

Mustafa Mıhcı said “It is possible for the worker to be placed on unpaid leave by considering the labour contract within the framework of the provisions of the service contract contained in the Turkish Code of obligations if the worker is not “one who provides the conditions of unemployment insurance” in this way, in case of Force Majeure, such workers may be placed on unpaid leave. As a result, workers need to know that they do not have to submit to the fait accompli practice of unpaid leave. The healthiest thing to do about it is to work with experienced lawyers to assess the issue and start the rights search process.”

Contact: Tülay Genç | [email protected] | +90 (850) 885 12 55