There are actions that the employee and employer, who are parties to the employment relationship, must fulfill within the scope of the employment contract they have established. The employee undertakes to work with the employment contract, and the employer undertakes to pay wages in return. At this point, we will answer the questions on the basis of occupational health and safety law such as have the workers right to refrain from fulfilling their obligation to work, under which conditions this right can be used, and what are the consequences:

It is accepted that the legal basis of the right to abstain from work is based on the anticipatory breach of the Law of Obligations, which is aimed at avoiding fulfillment of its own action by the other party if one of the parties to the contract fails to fulfill its obligations. It is considered that if the employer does not fulfill her/his obligation to protect and supervise the employee from her/his debts in the employment relationship, the employee may also exercise her/his right to refrain from working in this sense.

Employees' right to work in a safe and healthy environment is essentially guaranteed Constitutionally. In accordance with Article 17 of the Constitution "Everyone has the right to life and the right to protect and develop her/his material and spiritual entity." Detailed arrangements in this direction have been made in the Occupational Health and Safety Law No. 6331, and the Employee's Right to Abstain from Work is regulated in Article 131 of this law.

According to the legal regulation, the employee's right to abstain from working is primarily conditioned on the existence of a serious and imminent danger to occupational health and safety. However, in the event that a serious and imminent danger arises in the workplace or in the execution of the work, it is not possible for the employee to use her/his right to abstain from working immediately. Accordingly, the employee who faces serious and imminent danger may first apply to the Committee in workplaces with an Occupational Health and Safety Committee and to the employer in workplaces that do not have it, and request the determination of the situation and take the necessary measures. Against this demand from the employee, the obligation of the Committee to convene urgently, and for workplaces where the Committee is not available, the obligation of the employer to immediately decide and determine the situation with a report has been introduced with the law. Accordingly, the Committee or the employer should immediately take the employee's application to the agenda, carry out the necessary examinations and inspections in the workplace and notify the employee and the employee representative in writing of the decision made as a result of the assessment made on the application of the employee. If the decision made by the Committee or the employer is at the request of the employee; It is clearly stipulated in the law that the employee can abstain from working until the serious and imminent danger in the workplace is eliminated. At this point, although there is no regulation regarding how long the employee can exercise his/her right to abstain from working; for the purpose of regulating the provision of law, it is interpreted that this right can be used until the serious and imminent danger is eliminated.

A special case regarding the use of the right to abstain from work has been regulated in terms of situations where a serious and imminent danger to occupational health and safety is inevitable. Accordingly, if the serious and imminent danger encountered in the workplace or in the execution of the work is inevitable, the employee will be able to use the right to abstain from working by leaving the workplace and the dangerous area without the condition of applying to the above-mentioned Committee/ employer. Considering both the legal regulation and the justification of the article of the Law expressed as "In addition, in parallel with the European Union's 89/391 EEC Directive, it is stated that when a serious and imminent danger (within the knowledge and experience of the employee) becomes unavoidable, he / she may leave the dangerous area without being bound by the rule in the first paragraph.", it is obvious that the determination of the inevitability of the danger is left to the employee.

It is clearly stated in paragraph 4 of Article 13 of Law No. 6331 that if the necessary precautions are not taken regarding the existing danger and the danger is not eliminated despite the request of the worker, the employee may terminate his/her employment contract for justified reasons according to the provisions of the law to which she/he is subject. In the 24 / II-f clause of the Law numbered 4857, the situation of "not applying the working conditions" is regulated as a justified termination reason for the employee. Accordingly, in the event that the necessary occupational health and safety measures are taken at the workplace and the working conditions are not met to ensure that the worker works in a safe environment, the employee can be terminated the employment contract for justified reason in accordance with Article 24 / II-f of Labor Law No. 4857 with reference of article 13/4 of Occupational Health and Safety Law No. 6331. With its decision in the form of "As it is understood from the report of the panel of experts, it was concluded that the plaintiff has rightly terminated the employment contract in accordance with the last article 24/II-f of the law numbered 4857 due to the employer not applying the legal terms of employment, and in accordance with the article 13/4 of the law numbered 6331, and therefore, s/he was entitled to severance pay.2" in 2017, the Istanbul Regional Court of Justice accepted the failure of the employer to take the necessary measures against the danger of occupational health and safety despite the demand of the worker at the workplace as the rightful termination reason for the employee.

It should be underlined that; the employee's right to abstain from working in the workplace exists until measures are taken to eliminate the danger. If the danger is eliminated by taking the necessary precautions or if the employee abstains from working despite the absence of a serious and imminent danger in the workplace, the employee may face consequences against the employee, as there is no reason for compliance with the law, and his/her failure to come to work without a situation requiring the employee to abstain from work may give the employer justified / valid termination authority.

The regulation on "cease of work" in which the employee cannot exercise her/his right to abstain from working has clearly been included in the law. According to Article 25 of Law No. 6331 "In case of any situation found dangerous to employee's life in the premises, working methods or equipment, operations shall be stopped in the premises or any part of it, taking into account the nature of the hazard and the part of the premises and the workers to be affected by the hazard, until such hazard is eliminated." In this context, it is clearly stated in the law that the provisions regarding the right to abstain from working in the workplace and in the workplace where the suspension of work sanction applied by the administrative authorities is in question is not applicable.3 Therefore, if the work is ceased in the workplace, it will not be possible for the employee to exercise her/his right to abstain from working.

It is explicitly regulated in Article 13/3 of Law No. 6331 that the employee's rights cannot be restricted if he / she uses his/her right to abstain from working due to serious and imminent danger in the workplace or working conditions. Accordingly, the employee who abstains from working should be paid the wages and other rights that should be paid if s/he worked in this process. Again, as mentioned above, even if the employee cannot use his / her right to abstain from working or terminate the employment contract for justified reasons due to the cessation of work; In accordance with the provisions of the relevant regulation , an obligation to assign employers to a different job suitable for their qualifications without paying their wages or decreasing their wages has been imposed on employees who are unemployed due to the suspension of their work. According to the opinion existing in the doctrine; In the event that the employee exercises his / her right to abstain from working, the employer may recommend the employee who abstains from working in a similar job that is not dangerous in terms of occupational health and safety, provided that there is no unfavorable change in wages and working conditions. If the employee does not accept this proposal, it will be contrary to the duty of loyalty.5

Footnotes

1. ARTICLE 13- (1) Employees exposed to serious and imminent danger shall file an application to the committee or the employer in the absence of such a committee requesting and identification of the present hazard and measures for emergency intervention. The committee shall convene without delay and the employer shall make a decision immediately and write this decision down. The decision shall be communicated to the employee and employees' representative in writing. (2) In the event that the committee or the employer takes a decision that is supportive of the request made by the employee, the employee may abstain from work until necessary measures are put into practice. The employee shall be entitled to payment during this period of abstention from work and his/her rights arising under the employment contracts and other laws shall be reserved. (3) In the event of serious, imminent and unavoidable danger; employees shall leave their Workstation or dangerous area and proceed to a place safety without any necessity to comply with the requirements in the first paragraph. Employees may not be placed at any disadvantage because of their action. (4) Where the necessary measures are not taken despite the requests by the employees, employees under labour contract might terminate their employment contract in accordance with the provisions of the law applicable to them. As for the employees under collective bargaining agreement, the abstention period as defined in this article shall be deemed as actual work time. (5) In compliance with the article 25 of this law, the provisions of this article shall not apply in the event of cease of work in the enterprise.

2. İstanbul Regional Courts of Justice ,28th Law Office, Basis 2017/150, Decision 2017/357, dated 29.03.2017

3. Occupational Health and Safety Law No. 6331, art. 13/5; In case of cease of work in the workplace pursuant to Article 25 of this Law, the provisions of this article are not applied.

4. Regulation on Cessation of Work at Workplace published in OG 28603 dated 30 March 2013, art. 13; The employer is obliged to pay the wages of the employees who are unemployed due to the cessation of the work or to give another job according to their profession or status without any decrease in wages.

5. Sarper Süzek, İşçilerin İş Sağlığı ve Güvenliği Konusunda Hakları ve Yükümlülükleri, Legal Labor Law and Social Security Law Journal,2005

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.