Mediation in Disputes Requesting Reinstatement
August 5, 2024
Effect of Periods Spent on Unpaid Leave on Severance Pay
August 5, 2024
Due to the impact of the Covid 19 epidemic, many employers have applied to İŞKUR for their employees to benefit from short-time working allowance. Whether the time spent in short-time working will be included in the employee’s seniority, that is, the length of service, is important in terms of the questions that need to be answered when the short-time working period ends. In this article, we will try to answer the question of whether the periods spent in short-time work will be taken into account when calculating the minimum 1-year working period required for the employee to be entitled to severance pay.
The Effect of Short-Term Working Periods on Severance Pay
The concept of short-time working generally refers to work performed in the workplace for not exceeding three months in cases where the weekly working hours in the workplace are temporarily significantly reduced or the activities in the workplace are completely or partially temporarily stopped due to economic, sectoral or regional crisis or compelling reasons.
The short-time working period is determined as a maximum of three months in the Additional Article 2 of Law No. 4447. However, according to the Provisional Article 8 added to the same law, this period has been extended to six months for the years 2008-2009-2010, and according to the other article; The President is authorized to extend the duration of the short-time working allowance for up to six months and to determine whether it will be deducted from the unemployment allowance.
Although there is no clarity in the law as to whether the short-time working period will be added to the calculation of the basic period of severance pay, the General Assembly of the Supreme Court of Appeals in its decision dated 16.11.1983 and numbered Fundamentals: 1981/9-1067, K: 1983/1169; It is stated that in determining the length of service based on seniority, the regulation in Article 55 of the Labor Law No. 4857 should be taken into account, that is, short working hours should also be taken as a basis on seniority.
In paragraph (j) of Article 55 of the Labor Law No. 4857; Other leaves given by the employer and short working periods specified in Article 65 are counted among the periods worked in calculating the annual paid leave right.
The methods by which short-time working can be applied are as follows:
- Reducing weekly working hours throughout the workplace
- Reducing weekly working hours in a part of the workplace
- Complete cessation of activity throughout the workplace
- Complete cessation of activity in a part of the workplace
The Supreme Court of Appeals ruled as follows in the lawsuit filed by the worker to not include these periods in severance pay as a result of the short-time working allowance applied during the 2008 crisis;
In the concrete case, it is undisputed that the plaintiff worker worked for 5 months and 27 days in short-time work in accordance with the Law between 22.12.2008 and 18.6.2009, and the short-time working period should be added to his seniority within the scope of the period deemed to have been worked.
The problem in the file is whether the short-time working period, which is counted as worked and therefore added to the seniority period, is the maximum period of up to 3 months initially specified in the Law, or is it the period of up to 3 months specified in the Temporary Article 8 amended by Article 1 of Law No. 5838 and valid in 2008, 2009 and 2010? Whether the monthly period will be applied.
With the amendment made by Article 1 of Law No. 5838, the legislator increased the maximum short-time working period from 3 months to 6 months for the years 2008, 2009 and 2010.
For this reason, since the short-time working period added to the plaintiff’s seniority remains within the scope of the amendment made by Article 1 of Law No. 5838 in the Provisional Article 8 of the Law, it is clear that the Court’s decision regarding the addition of the actual short-time working period of 5 months and 27 days to his seniority is in accordance with the will of the Legislator and the Law. (Supreme Court 9. H.D., E. 2010/50993, K. 2011/27305, T. 14.07.2011)
As can be understood from the Supreme Court decision above, it has been revealed that the periods spent working for a short period of up to 6 months should be added to seniority.
Accordingly, when workers who are subject to short-time working due to the Covid-19 pandemic leave their jobs in a way that will entitle them to severance pay in the coming period, it can be said that the period spent in short-time working up to 6 months will be considered as seniority, while it is unclear whether the periods after 6 months will be taken into account in the severance calculation. Considering that there are workplaces that have been working on short-time work for more than 1 year due to Covid-19, discussions will arise whether the periods spent by the workers in these workplaces on short-time working will be taken into account in the seniority calculation. Therefore, it seems inevitable that disputes will arise between employees and employers on this issue.
In employee and employer disputes, and especially in possible disputes that are the subject of our article, since there is no consensus on this issue in the doctrine and judicial decisions, and because the resolution of disputes through mediation is rapid, the agreement between the parties remains confidential, does not set a precedent, and the parties reach a conclusion within the culture of compromise. They can also resolve their disputes through mediation, which has many advantages over litigation and is one of the most effective alternative solutions.
