Annual Leave and Justifiable Termination in Case of Failure by the Employer to Grant Annual Leave

Annual leave is a legally mandated right to rest for every employee in return for working for one year. Article 50 of the Constitution states that "rest is a right of the employee," thus guaranteeing this right constitutionally. Annual leave is regulated in Articles 53-62 of the Labor Law No. 4857. This leave can be used by the employee in return for working for one year with the employer, including the probationary period, and the duration of annual leave increases according to the employee's seniority. Accordingly, the employee is entitled to:

• In studies conducted over 1-5 years (including the 5th year), at least 14 days are required

• Studies conducted over 5-15 years require at least 20 days

• For studies lasting 15 years or more (including the 15th year), a minimum of 26 days

                                                                    Annual leave should be granted.

As the wording of the law clearly indicates, these periods represent minimum durations. Therefore, it is possible to increase these periods through agreement between the employee and the employer. However, it is not possible to decrease them.

Regarding the manner in which annual leave is used, the law explicitly states that annual leave can be divided, with each part being no less than 10 days.

According to the Annual Paid Leave Regulation, an employee must notify their employer at least one month in advance of the desired leave date. If the employee and employer agree, the employee can take their annual leave on the desired date. However, if no such agreement exists, the employer can determine the dates between which the leave can be taken, according to the same Regulation. In short, annual leave is a type of leave granted within the employer's management rights.

The employer may determine the time period or periods during which employees will take their annual leave, depending on the ongoing state of the work.

Does the employee's failure to take their annual leave give them the right to terminate their employment contract for just cause?

Employers have discretionary power within their management rights regarding the granting of annual leave. However, when exercising this right, attention must be paid to matters such as acting in good faith in accordance with Article 2 of the Turkish Civil Code, protecting the employee's mental and physical health, ensuring their productivity, and maintaining workplace harmony.

Regarding whether the failure to grant annual leave to an employee gives the employee the right to terminate the employment contract for just cause, the Supreme Court decisions focus on two issues. The first is the failure to grant annual leave for a very long period; the second is the failure to grant annual leave to the employee for an unfair reason despite the employee's request, or the failure to grant it without cause. In a recent decision of the Supreme Court[1], this issue is stated as follows:

‘'In order for the failure to grant annual paid leave to be considered a valid reason for termination, the annual paid leave must have been withheld for an excessively long period and must have been withheld for an unfair reason despite a request.'.’’

‘'According to our court's established jurisprudence, in order for the failure to grant annual paid leave to constitute a valid reason for termination, it is necessary that the employer has either failed to grant leave for a very long period of time or has refused to grant leave without justification when requested.'.’’

Whether an employer grants annual leave depends on the employee's request. Accordingly, it is important for the employee to prove that they requested annual leave but the employer refused to grant it.

In Supreme Court rulings, the specific characteristics of the case have been taken into account when evaluating the issue of not granting annual leave. For example, if an employee has a total of 100 days of annual leave entitlement and has used 80 days, it has been stated that the employer's bad faith cannot be considered, and in this case, the employee cannot terminate the employment contract for just cause on the grounds that annual leave was not granted. A few examples of Supreme Court rulings regarding this situation are as follows:

‘’ In the specific dispute; the plaintiff employee is entitled to a total of 148 days of leave according to his seniority, and the leave granted is 98 days. Almost all of the leave entitlements have been granted since the plaintiff started work in 2002, and especially since 2005. Given this situation, it cannot be argued that the employer abused its management rights by not granting leave, and therefore, the plaintiff's failure to use a portion of his annual paid leave does not constitute a valid reason for termination..’’[3]

‘'Firstly, it has been determined that the plaintiff has a total of 70 days of paid leave entitlement and only 8 days were not used. This fact is accepted by both the court and the plaintiff. In light of this situation, it is not possible to say that the employer arbitrarily or under pressure prevented the plaintiff from using their annual paid leave. Moreover, for the employer's failure to grant annual leave, which falls within their management rights, to constitute grounds for unfair dismissal, the refusal to grant the requested leave must have become an arbitrary practice. The court's reasoning for accepting the severance pay based on the failure to grant annual leave is also unfounded, and since the employee's termination was not based on a just cause, the claim for severance pay should have been rejected...'’’[4]

In conclusion, as can be seen in Supreme Court rulings, whether or not an employee is granted annual leave is considered within the scope of the employer's management rights, and unfairly denying an employee annual leave for an excessively long period is considered an abuse of the employer's management rights. However, when evaluating the employer's management rights, the specific circumstances of the case are also taken into account, and the extent to which the employee has used their annual leave is examined.

The burden of proof that annual leave has been granted rests with the employer, and employees' annual leave usage must be recorded in a signed leave register or equivalent document.