Turkey: Penalty Clause And Refund Of Trainings Costs In Turkish Labor Law

In some employment affairs, employer undergoes a serious amount of expense to train an employee and as a return of this expense, would fairly expect the employee to work for a certain amount of time. In order to guarantee this purpose, in practice, we see that employers add a clause to the respective employment contract of the employee under the title of "Training Commitment" or likewise, or otherwise sign a separate contract, letter of undertaking or an agreement under which it is prescribed that, in case employee quits the employment before the contractually specified time after training or causes employer to terminate the contract based on a justified reason attributable to the employee; employer will have the right to claim refund of training expenses and salaries paid during the training process and also a certain amount of compensation as penalty. In relevant judicial precedents of the Supreme Court, penalty clause, repayment of salary and training expenses are evaluated separately. Thus, we are going to analyze the subject matter under three main topics within the framework of Supreme Court's approach.

1) Penalty Clause:

In the doctrine, penalty is defined as a 'separate' debt having a financial value that shall become payable in case of non-fulfillment or deficient fulfillment of a certain obligation of the adverse party1.

The respective issue is provided under Articles 158 to 161 of the current Code of Obligations No. 818, while no explicit provision is specified under the Labor Law No. 4857. Therefore, the Supreme Court has created certain labor-related principles for the problems where the aforementioned articles of the Code of Obligations could not suffice to solve.

Amongst those principles, the most important one would be that a penalty clause is deemed invalid if it is not specified bilaterally but unilaterally, i.e. only to the employee but not to both parties of the contract2. Consequently, penalty clauses that nowadays are 'standardized' in almost all employment contracts for payment of a fixed amount of indemnity in the event that employee who attended to a vocational training expenses of which were covered by employer resigns his office before the contractually specified period of time or employer discharges him for a justified reason attributable to the employee, shall simply be ruled out by the Turkish Labor Courts in case of a labor dispute heard accordingly.

It should finally be mentioned that, Article 419 of the new Code of Obligations no. 6098 that shall enter into force as of July 1, 2012 explicitly prescribes that penalty imposed only against the employee shall be null and void. On the other hand, since there is no explicit provision contemplating otherwise, it could be accepted that bilateral penalties to be imposed only to employer would be applicable.

2) Refund of Salary:

Both the Labor Law and the case-laws of Supreme Court regard the training duration as involved in the employment term for the determination of his/her employment rights. Therefore, regardless of the identity of the terminating party or the reason of termination, the employee shall always be entitled with the salary pertaining to the term of his/her vocational training which under no circumstance shall be returned to employer. Most of the jurists also agree that refund of the salary pertaining to training period of an employee who quitted before its due time mentioned in the contract is not possible3.

Indeed, the Supreme Court, in one of its settled decisions, contemplates that, the payments made to trainers or training companies could be claimed within the scope of the training costs; however, the salaries paid to employee would not be a question to that effect4.

One should further note that, in addition to the salaries paid to employee during his/her training, the taxes and social security premiums payable in connection with the respective salaries shall be excluded from the claimable training costs5

3) Refund of Training Expenses:

According to the recently given Supreme Court judgments, it is stated that employer will be able to claim the return of expenses it incurred for vocational training of an employee if a clear provision is added to the contract or a separate contract is concluded accordingly. In other words, if provided so in written form, employee who resigned before the agreed term despite his/her commitment or is dismissed due to a justified reason arisen from the employee's misconduct or deficiencies may be requested to pay the training costs of employer to increase his/her professional abilities and efficiency. In principle, all expenses incurred for employee's training can be reclaimed, such as the course fees, accommodation costs, travelling expenses etc.6

On the other hand, the Supreme Court provides certain criteria to be taken into account for accepting and calculation of the training costs subject to repayment to employer. First of all, the employee shall have had an occupational interest in the respective training, i.e. he/she shall have had gained or improved his/her professional skills and efficiency as a result of the respective trainings which would allow him/her to take a higher place in the market.

Second of all, the minimum working period that has been undertaken by employee should not be deemed excessive considering the actually worked period and the duration of training. Notwithstanding this, the Supreme Court has no clear explanation as to how long this minimum period shall be. However, it has certain decisions which may help us to understand what would not be deemed excessive. For instance, if an employee who attended to a 3-month-long training is expected to work for 12 months but the employee worked for 6 months, the employer may claim expenses of 1.5 months. Also, if expenses are covered collectively for a group of workmen, expense for employee subject to the related contract, shall be calculated by dividing expenses to the number of attendant employees.

However, one should note that employer cannot claim even these expenses, if the employee terminates the contract within the specified period based on a reason of termination for default specified in Article 24 or quits because of mandatory requirements such as military service, serious disease etc. or if the employer terminates the contract unfairly or for a reason not attributable to employee himself/herself.

It should finally be emphasized that employer shall certificate the attendance to the vocational training of employee. Indeed, in cases where employee claims that he/she did not attend to these trainings, Supreme Court expects from the employer to prove the opposite. Consequently, it will be beneficial to issue a document such as an attendance sheet and obtain the employee's signature each time he/she attends to training.

 Footnotes

1. Tunçomağ, Kenan: Türk Hukukunda Cezai Şart (Penalty in Turkish Law), İstanbul 1963

2. There are many settled decisions of the Court of Appeals for 9th Circuit such as decision dated February 1, 2011 no. 2010/16335, 2011/1775; decision dated October 6, 2008, no. 2007/27538, 2008/25446; decision dated December 18, 2000 no. 2000/19528, 2000/19045 etc.

3. REHBINDER, Ausbildungskosten, pg. 216; SOYER, Karar İncelemesi (Examination of Decision), pg. 22; EKMEKÇİ, Değerlendirme Semineri (Evaluation Seminar) 1999, p.g..66; ALPAGUT, Değerlendirme Semineri (Evaluation Seminar) 2001, pg. 117;

4. Court of Appeal for 9th Circuit, dated September 19, 2001 no. 2001/10099, 2001/14114

5. BAG, Urteil vom 11.4.1984 - 5 AZR 430/82, AP Nr. 8 zu § 611 BGB Ausbildungsbeihilfe, NZA 1984, s. 288-289.

6. KARAGOZ, Veli, İşçinin Mesleki Eğitimi Tabi Tutulması Durumunda Eğitim Giderlerini Geri Ödenmesi,  Karar İncelemesi (Repayment of Training Costs In Case Employee Is Subject to Training, Examination of Decision)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions