Frequent Mistakes on Employment Contracts And Employers' Liability

is-sozlesmelerinde-isverenlerin-en-cok-yaptigi-hatalarEmployment Contracts in Turkish legislation do not much vary from those in European countries. In this article we are going to discuss the some misunderstandings and frequent mistakes and the potential penal provisions to be faced as regard to employment contracts.

What is an Employment Contract?

It is an agreement whereby a person agrees to work as an employee and the employer undertakes to pay the wages for the work performed.

Unless otherwise stipulated in the Act, an employment contract does not have any special form. There is a legal requirement for contracts to be in writing if they are signed for a fixed time of one year or more.

In cases no written contract has been concluded, the employer is under the obligation to provide the employee with a written document, within two months at the latest, showing the general and special conditions of work, the daily or weekly working time, the basic wage and any wage supplements, the time intervals for remuneration, the duration if it is a fixed term contract, and conditions concerning the termination of the contract.

What is The Types of Employment Contract Under Turkish Law No: 4857?

There are mainly six types of employment contracts according to their terms:

Employment contracts for “temporary” and “permanent” work:
Employment which, owing to its nature, lasts only up to 30 business days is temporary (transitory)  while employment which requires a longer period is permanent (continual).  

Employment contracts for a “definite period” or an “indefinite period:
Contract with a set date for the start and end of employment is called a definite (fixed) term contract; and the contract that has a start day but no specified duration or set end date is called indefinite (open-ended) contract. In case the start and end date of work cannot be determined an indefinite contract should be drawn between employer and employee. A fixed-term contract can be renewed once only (except in specific circumstances) and thereafter converts to an indefinite contract.

Employment contracts for “part-time” and “full-time” work:

As per Article 63 of Law No. 4857 working time is forty-five hours maximum weekly. Work based on a 45 hours a week is called full-time work.

If the employee's normal hours of  work are less than those of comparable full-time workers, that is called part-time work. Part time work duration may be up to the 2/3 of normal hours of comparable full-time workers.

Employment contracts for “work-upon-call:

Employment relationship which foresees the performance of work by the employee upon the emergence of the need for his services, as agreed to in the written employment contract, qualifies as a part-time employment contract based on work on call.

In the event the length of the employee’s working time has not been determined by the parties in terms of time slices such as a week, month or year, the weekly working time is considered to have been fixed as 20 hours. The employee is entitled to wages irrespective of whether or not he is engaged in work during the time announced for work on call.

Unless the contrary has been decided, the employer who has the right to request the employee to perform his obligation to work upon call must make the said call at least four days in advance. The employee is obliged to perform work upon the call communicated to him within the said time limit. If the daily working time has not been decided in the contract, the employer must engage the employee in work for a minimum of four consecutive hours at each call.
 
Employment contracts with a trial (probationary) period:

In case parties include a trial clause in the employment contract, the duration of the trial term shall not exceed two months. The trail period may be extended up to four months under collective labor agreements. Within the trial period the parties are free to terminate the employment contract without having to observe the notice term and without paying compensation. The employee’s entitlement to wages and other rights for the days worked is reserved.

Employment contracts based on a team contract:

The contract concluded between an employer and a team of employees represented by one of the employees acting as the team leader is called a team contract. The team contract must be concluded in written form irrespective of the duration. The team contract must specify the identity and wage of each employee separately. Once each employee, named in the team contract, begins work, an employment contract is deemed to have been concluded between the employer and the employee with the conditions specified in the team contract. However, the provision of Article 110 of the Obligations Act also apply to the team contract. The employer or his representative must pay the employees’ wages separately as each employee named in the team contract begins work. For the team leader’s acting as an intermediary or for any other reason, no deductions may be made on behalf of the team leader from the wages of employees who form the team.

What are The Administrative Fines for Violation of Provisions In Employment Contracts?

A probationary employee working under an Employment  Contract With a Trial Period must be insured pursuant to Law No. 5510, Article 4, paragraph 1, subparagraph (a) all along his/her work. While it is a common misbelief that a personnel can be employed uninsured during the trial period, as per the Law No. 5510, Article 102, an employer shall be charged with administrative fine equal to two times the minimum gross wage for each probationary employee working uninsured. And state incentives and supports, if any, shall be ceased at least for a year.

In temporary work relation; employers who are found be contravening the provisions of temporary work relation shall be charged with administrative fine of 137.00 TRY for per employee subjected to violation..

In employment contracts for work-upon-call; in case of non-compliance with the provisions of the Law, an administrative fine of 134.00 TRY shall be applied to employer for per employee.
As regard to some documents: Employer shall be charged with administrative fine of 134.00 TRY for per employee, in case of not providing him/her with;
- a written document containing the particulars of employment contract;
- the Certificate of Employment when employee is leaving the employment or for the incorrect information contained in the said certificate.

Violation of the provisions on annual paid leave: The employer shall be liable to a administrative fine of 270.00 TRY for each employee, in case of;
- dividing the annual paid leave into segments in violation of the Law,
- paying the annual paid leave in violation of the Law, or not paying the full       amount,
- not paying the annual paid leave to the employee whose contract terminated,
- preventing employee, totally or partially, to take his/her annual paid leave, in violation of principles and procedures of Regulation on Annual Paid Leave.

Note: Amount of administrative fines above are for the year 2015.

Beside the above mentioned administrative fines, provisions of Turkish Code of Obligations can also be applicable. Further, in the cases of violation of  employment contracts  the mistreated employee may resort to civil and criminal jurisdiction or administrative courts.

For avoiding any kind of charge or penalty you can always get in contact with Datassist.and put your questions related to any specific situation that may cause you to be liable to penal provisions.

 

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