Employer's Obligations

The parties to an employment contract are the employer and the employee. As one of the parties to the contract, the employer has certain obligations to protect the employee. These include wages, the duty of care, and the duty of equal treatment.

Wage Debt

The essential elements of an employment contract are the worker's dependent performance of work and the employer's payment of wages. If a worker earns wages even on days when they are not working, such as holidays, this is called social wage. Article 55 of the Constitution guarantees wages. According to this article, " Wages are the compensation for labor. The state shall take the necessary measures to ensure that workers receive fair wages commensurate with the work they do and benefit from other social benefits." (Amended paragraph: 3/10/2001-4709/21 art.) The minimum wage is determined by considering the living conditions of the workers and the economic situation of the country. Article 32/1 of the Labor Law also regulates wages. According to Article 32,in general terms, wages are the amount paid in money to a person by an employer or third parties in exchange for work.

As can be seen, wages may not always be paid by the employer; tips are a prime example of wage payments made by third parties. According to Article 24 of the Labor Law, an employee may terminate their employment contract for just cause if their wages are not paid; this decision is made fairly based on the specific circumstances. Furthermore, another right of the employee is the right to refuse to work, regulated in Article 34 of the Labor Law. According to this article, an employee whose wages are not paid within 20 days of the payment due date, except for force majeure, may refuse to perform their work obligations. Therefore, even if their refusal to perform work based on individual decisions takes on a collective nature numerically, it cannot be classified as a strike. The highest interest rate applied to deposits is applied to wages not paid on time.

Therefore, the employment contracts of these workers cannot be terminated for not working, and new workers cannot be hired to replace them, nor can these tasks be assigned to others.

The difference between terminating a contract for just cause and refusal to work is that there is no need to wait 20 days to terminate the contract, but the employee must not have acted in bad faith.

Duty of Care

According to Article 417 of the Turkish Code of Obligations , the employer is obligated to protect and respect the employee's personality in the employment relationship and to ensure an order in the workplace that conforms to the principles of honesty, particularly by taking necessary measures to prevent employees from being subjected to psychological and sexual harassment and to prevent those who have been subjected to such harassment from suffering further harm. The employer is obligated to take all necessary measures to ensure occupational health and safety in the workplace and to provide all necessary tools and equipment; employees are also obligated to comply with all measures taken regarding occupational health and safety.

Compensation for damages resulting from the death of an employee, injury to bodily integrity, or violation of personal rights due to the employer's conduct contrary to law and contract, including the provisions above, is subject to the provisions on liability arising from breach of contract.

According to Article 417 of the Turkish Code of Obligations, the aim is primarily to protect the worker against sexual and psychological assault and to direct the employer to take occupational health and safety measures. In the case of mobbing, which is frequently encountered, the worker's personal sensitivities do not constitute the act of mobbing. For the act of mobbing to occur, there must be regular behavior directed at a specific person; that is, the act must be directed regularly at a particular individual.

Employer's Duty to Treat Individuals Equally

Labor Law, Article 5 – (Added: 6/2/2014-6518/57 art.) Discrimination based on language, race, color, gender, disability, political opinion, philosophical belief, religion and sect, and similar reasons is prohibited in employment relationships.

Unless there are substantial reasons, an employer cannot treat part-time employees differently from full-time employees, or fixed-term employees differently from indefinite-term employees.

Unless biological reasons or the nature of the work necessitate it, an employer cannot directly or indirectly discriminate against an employee based on gender or pregnancy in the conclusion, formation, implementation, and termination of an employment contract.

A lower wage cannot be agreed upon for the same or equivalent work due to gender. The application of special protective provisions due to the worker's gender does not justify the application of a lower wage.

If the provisions of the above paragraph are violated during or at the termination of the employment relationship, the employee may claim, in addition to appropriate compensation up to the amount of four months' wages, any rights he or she has been deprived of. The provisions of Article 31 of the Trade Unions Act No. 2821 are reserved.

Without prejudice to the provisions of Article 20, the employee shall bear the burden of proving that the employer has acted contrary to the provisions of the preceding paragraph. However, when the employee presents a situation that strongly indicates the possibility of a violation, the employer shall bear the burden of proving that such a violation does not exist.

Labor law is guaranteed not only by Article 5 but also by Article 10 of the Constitution. According to this article,everyone is equal before the law without discrimination on grounds of language, race, color, gender, political opinion, philosophical belief, religion, sect, or similar reasons.

The employee must prove the existence of discrimination, but if the employee cannot prove it but strongly demonstrates the existence of discrimination, the burden of proof shifts, and the employer must now prove that no discrimination occurred.

You can consult with Attorney Ferhat Kule to get answers to all the details and questions you may have

Deniz Sahin