Employer Representation Under Turkish Law

The concept of “employer’s representative” is quite significant in Turkish labor law. Particularly for individuals in managerial positions within companies, there are frequent discussions regarding the circumstances under which actions are taken on behalf of the employer and the legal consequences thereof.

Under the law, the appointment of an employer’s representative is not mandatory; however, there are obligations that must be fulfilled by the employer or the employer’s representative. Additionally, under the Occupational Health and Safety Law No. 6331, employer’s representatives are considered employers with respect to occupational health and safety obligations. In this context, while appointing an employer’s representative is not mandatory, in practice, employers often appoint such representatives to ensure order in the supervision and organization of work. Furthermore, even if an employer fails to appoint an employer’s representative, a person meeting the definition of an employer’s representative may still be deemed to act as such.

Under the Labor Law No. 4857 (“Labor Law”), an employer’s representative is defined as individuals acting on behalf of the employer and involved in the management of the work, workplace, and business. The Social Security and General Health Insurance Law No. 5510 states that individuals who perform the management duties of the entire work or service on behalf of and for the account of the employer are considered employer’s representatives, further stipulates that the term “employer” as used in the law includes the employer’s representative, and that the employer’s representative is jointly and severally liable with the employer for the obligations prescribed under the law.

Generally, individuals such as general managers, factory managers, regional managers, and branch managers may be considered employer representatives; however, for a person to be deemed an employer representative, the individual’s title or the fact that they hold a managerial position with the employer is not sufficient on its own; what matters is whether management authority is actually exercised on behalf of the employer.

In this regard, when determining whether an employee is an employer’s representative, courts often consider the answers to the following questions, and the broader the scope of authority held, the greater the likelihood that the individual will be deemed an employer’s representative: 

• Does the employee have the authority to terminate employees?
• Do they have the authority to hire employees?
• Do they represent the workplace?
• Can they make independent decisions?

Under the Labor Law, all types of liabilities and obligations prescribed for the employer under the Labor Law also apply to employer representatives. The employer is also held directly liable for the actions and obligations of the employer’s representative toward employees in this capacity. Accordingly, in cases such as the employer’s representative issuing unlawful instructions to employees, violating occupational health and safety obligations, or applying overtime in violation of statutory provisions, not only the employer’s representative but also the employer may be held liable. 

In many cases, employer representatives are also employees of the employer; that is, they receive wages from the employer, work under an employment contract, are insured with the Social Security Institution (SGK), and benefit from other rights arising from the employment relationship. For this reason, employer representatives act on behalf of the employer while also holding the status of an employee in certain respects. The status of employer representative does not eliminate the rights and obligations granted to employees. Although the legislation does not stipulate a minimum wage level for employer representatives, in the event of a potential dispute, the actual duties and authorities assumed by the individual may be evaluated in conjunction with the wage level. A wage that is unreasonably low given the claim of employer representative status may, when evaluated alongside other evidence, lead to a challenge of that status. 

Under Turkish labor law, employer representatives—particularly those with broad authorities within the scope of the issues mentioned above—are considered outside the scope of job security and cannot file a reinstatement lawsuit under this framework. However, not all employer representatives are excluded from the scope of job security. Pursuant to Article 18 of the Labor Law, employer representatives who manage the entire operation of the business and jointly exercise the authority to hire and dismiss employees are not entitled to the protections of job security. Therefore, this matter is evaluated separately in each specific case.

The procedure for designating an employer’s representative (e.g., a board resolution, the issuance of a power of attorney, etc.) is not clearly defined under the relevant legislation. However, in the event of a potential dispute, it is recommended that the employer’s representative’s duties be clearly defined in writing and signed by the parties to establish that the individual in question is indeed the employer’s representative. An employer may appoint more than one employer representative. 

Additionally, if the relevant individual was not hired as an employer’s representative and changes to the employee’s duties and/or responsibilities arise due to their appointment as an employer’s representative, the employer must obtain the employee’s written consent prior to such changes in accordance with the Labor Law; as this situation will be deemed a substantial change in the employee’s working conditions, and if the employee does not accept the change in writing within 6 business days, the change will not bind the employee. In such a case, the employer may resort to alternative legal remedies only if the necessary conditions under Article 22 of the Labor Law are met. 

Under Turkish law, the primary obligations of employer representatives (without being limited to these) are as follows: 

• To chair the Occupational Health and Safety Committee (a committee that must be established by the employer in workplaces with 50 or more employees and where continuous work lasting more than 6 months is performed, for the purpose of conducting activities related to occupational health and safety) and its meetings, to fulfill all duties and responsibilities prescribed by law in the capacity of Chairman of the Committee (e.g., preparing a draft internal occupational health and safety policy, assessing hazards and preventive measures related to occupational health and safety at the workplace, preparing an annual report on the workplace’s occupational health and safety status, conducting work to develop a prevention policy, etc.) and fulfilling all duties and responsibilities imposed by legislation on the employer and/or the employer’s representatives (e.g., establishing the Committee and chairing it, implementing Committee decisions in accordance with occupational health and safety legislation, ensuring necessary coordination with subcontractors, if any, ensuring that the employer provides occupational health and safety training to Committee members and alternates, etc.). 

• Under the Occupational Health and Safety Law No. 6331, fulfilling liabilities related to occupational health and safety, such as, conducting or having conducted a risk assessment for the workplace, providing training to employees on potential workplace risks and repeating such training as necessary, monitoring compliance with the measures implemented at the workplace and addressing non-compliance, preventing occupational risks, fulfilling obligations regarding emergency response plans, firefighting, and first aid; appointing the necessary personnel (e.g., workplace physician, occupational safety specialist) in accordance with the regulations; and ensuring the necessary coordination with these individuals regarding occupational health and safety matters.

Employer representatives may also face administrative, legal, and criminal liability for occupational accidents or occupational diseases resulting from violations of occupational health and safety obligations, depending on the specific circumstances of the case. Therefore, the status of employer representative entails not only managerial authority but also significant responsibilities.

In conclusion, the determination of the status of an employer’s representative is not based solely on the individual’s title or position in the organizational chart, but is made by considering the authority actually exercised and the responsibilities assumed. Employer representatives not only exercise significant management authority on behalf of the employer but also assume broad legal responsibilities, particularly in the field of occupational health and safety. Therefore, clearly defining the authority and responsibilities of individuals serving as employer representatives in writing, clarifying the internal distribution of duties, and ensuring that relevant processes are conducted in compliance with the law are crucial for minimizing potential disputes and liability risks.

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.