The epidemic, which negatively affects every sector in every sense, also brought up quite a lot of layoffs. Employers who changed the pattern of dismissal have found a way out of this situation by terminating their employment contracts with resignation.
So, what do our laws say about how to terminate the work contracts of the workers, who constitute the biggest cost in working life?
We discussed with Lawyer Emre Avşar, one of the founding lawyers of the Prof Law Firm, the course of the dismissals during the epidemic period.
Hunting. Emre Avşar explained the rights of workers and what can be done regarding dismissal: “Especially as a result of situations such as the work contracts affected by the current epidemic and the loss-making companies agreeing with the workers (!)“ Leading the employees to the path of leaving ”(ie, forcing them to resign) and the prohibition of dismissal, It is seen that the workers do not get their rights properly and fully, and they are not even aware of what their rights are. First of all, it should be noted that the legal definition of the word "worker" can be expressed as a person who works for a wage in any job for a contract. As we understand from the legal definition, the employee must be working under an employment contract.
However, one of the most common mistakes is the perception that workers do not have a contract. We should state that a written contract is not required for the existence of a contract. In fact, a contract is established when an employee starts working in a workplace. The absence of a written contract turns the existing verbal contract into an indefinite employment contract. Therefore, it cannot be deprived of its rights and the payment of labor claims cannot be avoided on the grounds that there is no employment contract.
The worker has some rights arising from the termination of employment by the employer without any valid or justified reason.
- Severance pay, if one year's severance has been completed
- Notice compensation if the conditions of notice specified by law in connection with the year of employment are not met or duly used prior to being dismissed.
- Missing wages, if any, overtime, weekends, annual leave and AGI (Minimum Living Allowance) must be paid to the worker upon dismissal.
However, if the termination is justified or the employee resigns of his own free will, the employee shall be paid severance pay, notice pay, etc., excluding wage claims. Fees arising from the termination of employment are not paid.
During the pandemic period, some grievances were experienced in terms of collecting the labor claims of the workers, especially due to the dismissal prohibitions.
Employers turn the dismissal prohibition into an advantage in their favor, paying the workers less their rights, and ensure their dismissal with a resignation declaration. In addition, it is seen in individual examples that workers try to prevent their rights to litigation and their freedom to seek rights by making a rescission agreement.
Another known mistake is the perception that the right to apply for legal action is eliminated after being dismissed by a resignation declaration or due to a resignation agreement. It is a misperception as to practice. Resignation or resignation agreement, which does not include the free will of the worker, does not prevent the worker from using his legal opportunities. As long as it can be proven in this process, the employee can take his deficient claims and other labor claims from the employer by using his right to apply for a lawsuit.
In fact, if he is working in a job that meets the reinstatement conditions, he can even file a reemployment lawsuit within 1 month. In other words, the situation of forced resignation of workers, underpayment of their rights and their victimization due to the decision to ban layoffs taken during the pandemic period will in no way be protected. In this case, the court, where the provisions arising from the termination of the employer will be applied, will decide accordingly. There are case law stating that resignation declarations and resignation agreements that are not signed with free will are not valid, and the workers' rights are protected through the law.
While there is no objection for the workers to seek their legal rights by paying attention to these situations, they always have the right to sue against this malicious approach.