Turkey: Workplace Practices

Last Updated: 20 October 2016
Article by Yesim Tokgoz

The labor law is a branch of law in which the freedom of contract principle is limited in favor of the employees. The Constitution, Labor Law numbered 4857 ("Labor Law"), Occupational Health and Safety Law and relevant legislation, collective labor agreements, as well as jurisprudence, restrict freedom of contract. Our legislation has many provisions that protect employees, and one may say that the jurisdiction generally adjudges in favor of employees. Employees and the employers may freely determine the conditions of their labor relations, provided that the provisions are not contrary to mandatory rules of law. Furthermore, employees may make claims, even if they are not stated either in their employment contract or in the legislation or in jurisprudence. A right to claim may originate through workplace practices. In this article, information in light of Court of Cassation Decisions concerning workplace practices' characteristics, how they become part of working conditions, the impossibility of cancellation of workplace practices without the consent of employees, as well as employers' and employees' termination right will be addressed. The approaches that employers may consider while implementing such practices will also be expressed.

Workplace Practices

Workplace practices are actions that are realized and repeated by employers' initiative within the scope of employer's management rights, even though they are not regulated by law, collective agreement, or employment contract. There is no any legal regulation determining how many occurrences constitute an action to be considered as a workplace practice. However, the general opinion is to repeat the application for at least three years, consecutively1. Nevertheless, each case must be evaluated by its own merits. The most important parameter, herein, is whether or not the employer's statement or action places expectations on the employees.

These consistent actions can be granted, collectively, as well as to various employees who have equal status. While granting these, the employers must treat equally to the employees who have equal status pursuant to his/her responsibility of equal treatment. Therefore, unless the employer has a valid reason, s/he must not discriminate2.

In order to consider an action as a workplace practice, it must be proven that the implementation shall not be realized inadvertently or as a result of a misunderstanding by the employer.

Bonuses, or any type of fringe benefits or severance payment, after passing public personnel selection examination and leaving the job3, which are provided to employees, unilaterally, by the employer could be considered as an example as workplace practices.

Workplace Practices Becoming Working Conditions

The legislations that determine working conditions are: Constitution, laws, collective labor agreements, individual employment contracts, personnel regulation, other similar resources, and workplace practices4. Workplace practices, actions regulated in the workplace by the employer without any legal and contractual obligation, are effective in determining working conditions5. These practices are different in every workplace and are put in place at the employer's initiative. Employers should be prudent while implementing their decisions because when these actions are repeated, they become binding, since the implicit consent of the employees is deemed to have been taken. Thus, the employees will have right to claim the application in the fourth year.

Impossibility to Cancel Workplace Practices Unilaterally

These applications that emerge through the employers' unilateral actions cannot be cancelled by the employer's unilateral decisions6. Since these workplace practices become working conditions, the removal of the workplace practice shall mean the amendment in employees' working conditions and, pursuant to Labor Law Article 22, the essential amendments made by the employer shall be valid only if the employee is informed, and his/her written consent is obtained within 6 working days.

Although making amendments in the working conditions of the employees is directly related to the employer's managerial right, the employer is not actually free to utilize this right. Managerial rights can be effective regarding gaps that are not regulated clearly in legislation, collective labor agreement, or employment contacts that are applied in the workplace7. Therefore, in line with Article 22, without the employees' written approval, the removal of the workplace practice shall not be binding upon the employee.

Employer's Right of Termination

In the event that the employee does not accept the proposed amendment, the employer may terminate the employee's employment contract by respecting the prior notice periods, paying his/her severance payment, provided that s/he provides, in writing, a consent that the proposed amendment is based on justifiable grounds8. Within this scope, the jurisprudence states that as an example, the cancellation of bonus payments is an essential amendment of the employment contract and the working conditions, and shall be evaluated in accordance with Article 229.

Employee's Right of Termination

In the event that a workplace practice is removed without the written consent of the employee, and the employer did not terminate the contract, the employee may terminate the contract him/herself pursuant to Article 24/II/f of the Labor Law with just cause and with immediate effect, as the removal of workplace practice is deemed as an amendment of working conditions as mentioned, above.

Various Approaches

It is stated in the doctrine that if employers require that its employees must fulfill several conditions to benefit from various implementations; these cannot be deemed as workplace practices. Likewise, in the event that the employers reserve their right to withdraw the practice, consequent actions do not transform into workplace practices because in the existence of a reservation regarding a right of withdrawal, and/or not to make payment, an action cannot be binding.

However, the Court of Cassation has contradictory decisions regarding working conditions and workplace practices. In one of its decisions, it accepted that the subject workplace practice was removed since the employers did not object to the non-performance of the practice for two consecutive years. Court of Cassation decided that the employees' claim at the time of the termination of the contract is contrary to the good faith principle10. However, the Court of Cassation has quitted this approach.

In addition, the employers frequently use the termination right pursuant to Article 22 to enforce the principle of termination as a last remedy because if the employee does not accept the proposed amendment, there is no choice for the employer but to terminate the contract. In this manner, the employer adheres to the principle of termination as a last remedy, and perchance the employee may accept the amendment, and thus, no need to terminate the contract.

Conclusion

The employers should be aware that the actions they decide to implement in line with their management right, unilaterally, cannot be removed through their unilateral consent. The gestures they make in good faith can be irrevocable. Within this scope, employers should reserve their right of withdrawal while granting implementations and they should obtain their employee's written consent when they decide to remove a workplace practice. In the event that they cannot obtain the written consent of the employee, they may terminate the employment contract respecting the regulations governing severance payment and notification period. In the event that they do not terminate the contract, but remove the workplace practice, the employee has the right to terminate the contract and claim for the workplace practices.

Footnotes

[1] Decision of General Chamber of Court of Cassation dated 05.02.2003 and numbered 2003/9-11 E, 2003/54 K. may be given as an example.

[2] Decision of 7th Chamber of Court of Cassation dated 08.02.2016 and numbered 2016/2543 E., 2016/2024 K. may be given as an example.

[3] Decision of 7th Chamber of Court of Cassation dated 09.03.2016 and numbered 2015/6469 E., 2016/5798 K. may be given as an example.

[4] Decision of 7th Chamber of Court of Cassation dated 16.03.2016 and numbered 2015/43401 E., 2016/6392 K. may be given as an example.

[5] Mollamahmutoğlu, Hamdi, İş Hukuku, Ankara 2005 2.Bası s. 59.

[6] Decision of General Chamber of Court of Cassation dated 27.2.2013 and numbered 2012/9-1166 E., 2013/279 K. may be given as an example.

[7] Decision of 7th Chamber of Court of Cassation dated 16.03.2016 and numbered 2015/43401E., 2016/6392 K. may be given as an example.

[8] For more information: http://www.erdem-erdem.com/en/articles/pursuant-to-article-22-of-labor-code-no-4857-change-in-working-conditions-and-termination-of-employment-contract/ (Accessed on 31.07.2016).

[9] Decision of 9th Chamber of Court of Cassation dated 22.03.2016 and numbered 2016/4030 E., 2016/6861 K. may be given as an example.

[10] Decision of 9th Chamber of Court of Cassation dated 20.02.2003 and numbered 2002/14254 E., 2003/2020 K. may be given as an example.

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