INTRODUCTION
Today, employers aim for their employees to become better equipped professionals through the means they provide for reasons such as creating a healthy and professional work environment. One of the most effective ways to achieve this goal is to provide employees with the opportunity to develop themselves professionally and personally by covering their training expenses. As a result of the training, employees become more qualified, more productive in the workplace and can compete with other competitors in the sector.
In this respect, the employer has a legitimate interest in keeping the employee, who has become more qualified through the expenditures made by the employer, at the workplace for a certain period of time. In this case, a balance is established between the benefit obtained from the professional development of the employee and the economic investments made by the employer that serve this purpose. In order to achieve this balance, penal conditions may be stipulated under certain conditions within the scope of Labor Contracts in return for training expenses. In this article, the validity conditions and limits of the penalization of training expenses under Turkish Labor Law will be evaluated.
DETERMINATION OF A PENAL CLAUSE FOR THE TRAINING EXPENSES OF THE EMPLOYEE
First of all, we would like to state that the legal regulation on penal clause is not included in the Labor Law numbered 4857 ("Labor Law" / "LL"). For this reason, pursuant to Article 5 of the Turkish Civil Code numbered 4721 ("TCC"), the Turkish Code of Obligations numbered 6098 ("TCO") should be applied in relation to the concept of penalty clause, which is not regulated in the Labor Law. Accordingly, a penalty clause can be defined as a type of compensation determined by the parties with their free will during the establishment of the contract in order to cover the damages that may arise from the contract.
In Labor Law, if the penal clause is set only against the employee, such arrangements are not considered valid as a rule, since it would be contrary to the principle of reciprocity in the contract. However, the exception to this rule is the penalty clause determined in return for the training provided to the employee. In practice, it is generally regulated that in return for the training provided, the employer obliges the employee to work for a minimum period of time and/or demands the training expenses incurred by the employer from the employee. First of all, when the penalty clause determined in terms of minimum working period is examined, it should be noted that the minimum working period stipulated can be accepted as a penalty clause as long as it is equitable and proportionate. On the other hand, in the event that the training expenses are demanded from the employee, it is not possible for the employer to demand an amount above the training expenses from the employee in accordance with the existing jurisprudence. Therefore, in the event that the employment contract stipulates a penal clause in an amount exceeding the training expenses, the Court may make a reduction in the penal clause determined in the contract if the employer demands this penal clause. While determining the amount of the discount, the Court will make a proportional calculation based on the training expenses incurred for each employee, the period of time the employee actually worked for the employer and the period of commitment, and this calculation will be evaluated separately for each employee.
In this respect, in summary, although it is contrary to the general rule to stipulate a penal clause in the employment contract only against the employee in return for training expenses, this situation will remain valid if certain conditions are met. Likewise, according to the Decision of the 9th Civil Chamber of the Court of Cassation dated 28.03.2012 and numbered 2009/49506 E., 2012/10500 K. and dated 28.03.2012, "(...) The penal clause agreed upon as a condition of the employee working for a certain period of time in return for the training given to the employee cannot be considered unilaterally. It is seen that the penal clause provision is valid within the specified limits, as the penal clause is equivalent to the cost of the training provided to the employee.(...)"
On the other hand, in order to apply the penal clause foreseen due to the training provided to the employees, the employer must document and submit the training expenses incurred. The burden of proof regarding the training provided to the employee and the training expenses incurred belongs to the employer.
We would like to point out that in order to claim training expenses, this situation must be stipulated in a written Contract. In this respect, the inclusion of penal clauses in employment contracts in return for the training provided to the employee is considered legally valid under certain conditions. In this context, first of all, it should be considered whether the training provided by the employer contributes not only to the benefit of the employer but also to the professional development of the employee.
The possibility of the employee's advancement in his/her profession as a result of the training or the possibility of using this knowledge for other employers is important in the evaluation of such arrangements. In addition, it is also a determining factor whether the training provided to the employee is within the scope of a legal obligation. Legally mandatory trainings, such as occupational health and safety trainings, are the primary obligation of the employer and it is not possible to demand penal clauses from the employee for such trainings.
On the other hand, in order for the penalty clause to be valid, there must be a reasonable proportion between the training expenses incurred by the employer and the amount demanded from the employee. The decisions of the Court of Cassation emphasize that this balance must be ensured, and within the scope of training expenses, training fee, instructor fee, training materials, transportation and similar expenses are evaluated. In addition, whether the training is mandatory for the performance of the main job, the extent to which the employee benefits from this training and its contribution to his/her professional development are among the factors to be taken into consideration. If the employee works for the employer for a certain period of time after the training, this period should be deducted from the penal clause amount. This is because the employer is deemed to have recovered its investment, albeit partially, by obtaining post-training services from the employee.
Finally, it is necessary that the employee's right of termination should not be unlawfully limited by the provision of a penal clause. Within this framework, the duration of the obligation foreseen in return for training must be compatible with the duration, content and cost of the training, and must not be of a nature that excessively restricts the right of the employee to terminate the employment contract. Otherwise, such an arrangement may be deemed invalid.
Pursuant to Article 24/II of the Labor Law, if the employee terminates the employment contract due to the employer's behavior contrary to the rules of morality and good faith, it is not possible to impose a penalty clause. On the other hand, in cases where the employee terminates the contract with notice or terminates the contract immediately without just cause, it is accepted that the penalty clause agreed in the contract may be applied.
In terms of the employer's termination, if the employment contract is terminated due to the employee's behavior contrary to morality and good faith within the scope of Article 25/II of the Labor Law, a penalty clause may be claimed if the employee has been trained. However, in cases where the employer terminates the contract with notice or terminates the contract due to health reasons or compelling reasons, the penal clause cannot be claimed from the employee.
In this framework, the applicability of the penalty clause is only in question in certain termination scenarios stipulated by the parties, and each concrete case should be evaluated separately according to the nature of the reason for termination.
CONCLUSION
In terms of Turkish Labor Law, the imposition of penalty clauses in return for the training services provided to the employee is considered valid within certain legal limits, even though it appears to be a unilateral obligation against the employee. In this context, factors such as the fact that the training expenditures made by the employer are agreed upon in a written contract, that the training provided contributes to the professional development of the employee, that the expenditures are documentable and that the amount demanded by the employer is proportionate play a decisive role in terms of the legality of the practice. The validity and applicability of the penalty clause depends not only on the existence of these conditions but also on how the employment contract is terminated. Therefore, the obligation of the employee to pay the training expenses arises only if there is a legally valid penal clause provision and the employment contract is terminated for certain reasons. Otherwise, such obligations imposed on the employee will be incompatible with both the freedom of contract and the employee protection principles of labor law and will be deemed invalid. As a result, it is of great importance to establish a fair balance between the interests of the parties in the preparation and implementation of penal clauses related to training expenses, both in terms of protecting labor peace and preventing disputes that may arise in the judicial authorities.
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.
