Under Labor Law No. 4857 ("Law"), the employee and the employer are in a contractual relationship that includes mutual obligations and commitments. Under this contract, the employee has the obligation to work under the order and instruction of the employer within the scope of the employer's management right, while the employer has obligations such as payment of wages and supervision of the employee.
The Labor Law has introduced some regulations in order to prevent the employer from victimizing the employee while exercising the right of management. In this context, the Law contains some provisions that authorize the employee to terminate the employment agreement in order to protect the employee whose working conditions have been substantially changed by the employer.
Change in Working Conditions and Termination
Termination of the employment agreement in the event of a fundamental change in working conditions is regulated in Article 22 of the Law. The relevant article defines working conditions as any practice that is established by the employment agreement or by the personnel regulations and similar sources that are annexed to the employment agreement or by workplace practice.
According to the Law, the employer may make a fundamental change in working conditions only by notifying the employee in written form. After the employer notifies the employee in writing, the employee must accept the change in working conditions in writing within six working days. Changes in working conditions that are not made in accordance with this form shall not be binding for the employee. In cases where the employee rejects the change or remains silent, the proposal made by the employer shall be deemed rejected and the employment agreement shall be deemed to continue under the same conditions.
If the employee does not accept the proposed change within this period, the employer may terminate the employment agreement by explaining in writing that the change is based on a valid reason or that there is another valid reason for termination and by complying with the notice period. In this case, the employee may file a lawsuit in accordance with the provisions of Articles 17 to 21.
The employee and the employer may change the working conditions at any time by mutual agreement in accordance with the procedure set out in the Law, but the change in working conditions cannot be put into force with past effect.
The Concept of Substantive Change
If the changes made by the employer are within the scope of the employer's right of management or in favor of the employee, they are not considered as fundamental changes. Fundamental changes are considered to be changes against the employee that interfere with the objective fundamental component of the employment agreements.
The main fundamental changes recognized by the Court of Cassation are unilateral changes made solely by the employer, such as lowering the wage of the employee, removal of bonuses and social benefits, aggravation of working conditions, assignment of the employee to a lower level position in the workplace organization, relocation of the workplace further away and not giving the employee a travel allowance1, and changes in working hours that create difficulties in the life of the employee2.
Termination of Employment Agreement by the Employer and Results
If the employer's proposal for a fundamental change in working conditions is rejected, the employer has no other option but to terminate the employment agreement. It should be noted that the termination of change based on this article can only be made in the form of termination for indefinite-term employment agreements by complying with the notice periods stipulated in Article 17 of the Law.
There may be cases where the working conditions of the employee are unilaterally changed against the employee by the employer who is unwilling to terminate, and the employee is forced to terminate. In such cases, the Court of Cassation accepts that the employment agreement is terminated by the employer in cases where the employee is forced to terminate by making a fundamental unfavorable change in working conditions.3
Following the application of the termination of change by the employer, the Law also provides some opportunities for the employee. After the termination within the scope of employment security, the employee may file a lawsuit for reinstatement due to the invalidity of the termination based on Article 18 of the Law. Employees who are not covered by employment security may claim notice, severance, bad faith compensation or union compensation from the employer, if the conditions are met.
Court of Cassation Decisions Holding the Employee Wrongful
According to the decision of the 22nd Civil Chamber of the Court of Cassation No. 2018/5340 E. 2018/12958 K., if there are provisions in the employment agreement stipulating that changes can be made in the working conditions when necessary, the employer permanently gains the right to make changes in the working conditions of the employee, provided that the employer does not abuse the management right and complies with the limits in the agreement. Changes that fall within the scope of the employer's right of management or that are based on valid reasons cannot be considered as fundamental changes in working conditions.
According to the decision of the 9th Civil Chamber of the Court of Cassation numbered 2015/26612 E. 2015/28003 K., the removal of benefits in kind such as meals and shuttle service and replacing them with cash payments, or vice versa, the removal of cash service and meal fees and replacing them with meals at the workplace or bus tickets are within the scope of the employer's right of management and such practices are not considered as fundamental changes, provided that they do not contradict Article 2 of the Civil Code. However, the unilateral decision of the employer to reduce the amount or not to pay the social aid without changing its nature shall be deemed as a fundamental change and shall give the right to demand the employee who has not given written consent to such change.
Footnotes
1. Y9HD 2016/6647 E. 2016/4850 K., Y7HD 2014/5708 E. 2014/10806 K.
2. Y22HD 2012/26182 E. 2013/19137 K.
3. Y9HD 2009/17729 E. 2009/14144
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