INTRODUCTION
Issues related to military service, which is a constitutional obligation, are determined within the scope of legal regulations. When an employee has to leave his job due to compulsory military service, Article 31 of the Labor Law Numbered 4857 (“Labor Law“) is applied. In order for the employee to benefit from the right arising from this article, he must have worked in that job for at least one year. In this article, the effect of military service on the employment contract will be evaluated in the light of legislation, doctrine and decisions of the Court of Cassation.
A. RIGHTS OF EMPLOYEES GOING INTO MILITARY SERVICE
Labor relations with the employer as a result of employees leaving their jobs to fulfill their military service are under special protection in Turkish Law. The rights of the employee who goes to military service can be listed as the right to severance pay, the right to return to work and other labor rights arising from the employment contract or legislations.
a. Right to Return to Work
Last paragraph of Article 31 of the Labor Law Numbered 4857 is as follows;
”If the workers who have left their jobs due to any military or legal duty want to get a job within two months starting from the end of this duty, the employer is obliged to hire them immediately if there is a vacancy in their old jobs or similar jobs, or if not, to the first job to be vacated, by giving preference to other bidders, under the conditions at that time. If the employer fails to fulfill his obligation to conclude an employment contract even though the required conditions are met, he shall pay compensation in the amount of three months’ wages to the former employee who requests employment.”
In this respect, according to the Labor Law Numbered 4857, the employee returning from military service must be reinstated immediately if there is a vacancy in his former workplace or in a similar job, or if not, he must be reinstated to the first vacant job according to the current conditions. On the other hand, as can be seen from the article in question, although the conditions in Article 31 are present, if the employer does not re-hire the employee, employer must pay compensation to the employee requesting reinstatement in the amount of 3 months’ wage. If the worker has not been notified about this issue, the legal path to be followed by the worker is as follows:
b. Severance Pay
In the event of leaving work due to military service, the employer is obliged to give severance pay to the employee who is compulsorily going to military service. However, in order for the employee to earn severance pay, certain conditions must be fulfilled in any case. The existence of an employment contract between the employee and the employer, which is considered valid according to the Labor Law, and the employee must have been working in the workplace for at least 1 year, and the employee must terminate the employment contract signed between the employer and the employer for just cause based on the reason of military service. However, at this point, it should be noted that an employee who terminates his employment contract due to military service has the obligation to prove to the employer that he has done military service in order to be entitled to severance pay.
c. Other Labor Rights Arising from Employment Contract or Law
The worker has the right to claim primarily severance pay, but also annual leave pay, bonuses, overtime pay and wage for national and public holidays. However, the worker’s notice pay is not included in the military compensation.
B. RIGHT TO REQUEST NOTICE PAY
As mentioned above, an employee who leaves his/her job due to military service is not entitled to claim notice pay. When the decision of the 7th Civil Chamber of the Court of Cassation is examined, “Since the notice pay is a compensation that the party terminating the employment contract must pay to the other party, it is not possible for the party terminating the employment contract to be entitled to notice pay even if the termination is based on a just cause. Pursuant to the provisions of Article 14 of Law No. 1475, if the employee terminates the employment contract for reasons such as retirement, active military service, marriage, etc., he/she is not entitled to notice pay. In the aforementioned terminations, the employer cannot claim notice pay”. In summary, notice pay is not included in military service compensation. [Decision of the 7th Civil Chamber of the Court of Cassation dated 24.10.2016, Numbered 2016/33861E., 2016/17414K.]
C. EMPLOYEE’S RIGHT OF JUST CAUSE TERMINATION DUE TO MILITARY SERVICE
The employee may terminate his employment contract on the grounds of just cause due to military service. However, if it is understood that the employee goes elsewhere before the military service as an excuse, the just cause for termination disappears. In this way, the employee loses the right to severance pay arising from just cause. In this respect, the employee should definitely attach the military service referral document to the notice of termination, as the relevant document will be necessary for proof in a case where proof is required.
D. THE SITUATION OF EMPLOYEES GOING ON PAID MILITARY SERVICE
a. Consideration of the Employee’s Unpaid Leave of Absence for the Period of Paid Military Service
With Law Numbered 7179, it is seen that there are different opinions in the doctrine due to the lack of a legal regulation regarding the fate of the employment contracts of the employees who benefit from the paid military service during the basic military training period. When examining the unpaid leave of the employee during the paid military service, first of all, it should be kept in mind that the legal basis of the unpaid leave practice often stems from an agreement between the employee and the employer. In this respect, the unilateral unpaid leave of the employee by the employer will constitute a “fundamental change in working conditions”. Therefore, pursuant to Article 22 of the Labor Law Numbered 4857, the employer must make the unpaid leave proposal in writing and the employee must accept the proposal in writing within six working days. Otherwise, the employer cannot put the employee on unpaid leave. It should also be noted that the employee may also be placed on unpaid leave pursuant to an explicit provision in the collective bargaining agreement.
b. Whether the Paid Military Service Period can be deducted from the Employee’s Annual Paid Leave
Annual paid leave is a right to rest guaranteed by Article 50 of the Constitution and Article 53 of the Labor Law Numbered 4857, and this right is one of the fundamental rights of the employee that must be granted by the employer. The purpose of annual leave is to provide the employee with the opportunity to rest in order to relieve fatigue and increase productivity. Paid military service time, on the other hand, does not serve this purpose, because military service implies a certain physical and mental obligation instead of rest.
In this context, deducting the paid military service period from the annual paid leave would be contrary to the purpose of annual leave. Furthermore, Article 56 of the Labor Law Numbered 4857 stipulates that “Other paid and unpaid leave or rest and sick leave granted by the employer during the year cannot be offset against annual leave.” This provision should also be valid for the period of paid military service and this period should not be deducted from annual leave. Paid military service should not be considered as a rest period that can replace annual leave, and the employee should be able to fully use his annual paid leave right after the paid military service.
c. The Obligation of the Employer to Make a Contract with the Employee after the Paid Military Service
Article 31 of the Labor Law Numbered 4857 states, “If the workers who have left their jobs due to any military or legal duty want to be employed within two months starting from the end of this duty, the employer is obliged to employ them immediately if there is a vacancy in their old jobs or similar jobs, or if not, to the first job to be vacated, by giving preference to other applicants, under the conditions at that time. If the employer fails to fulfill his obligation to conclude an employment contract even though the required conditions are met, he/she shall pay compensation in the amount of three months’ wages to the former employee who requests employment.” The provision of the law guarantees the right of employees who have completed their military service to return to their jobs after completing their duties.
For this reason, the employer is obliged to reinstate the employee to his former job or to a similar job upon his application. If the employer fails to fulfill this obligation, he/she must pay the employee compensation in the amount of three months’ wages. However, in order to exercise this right, the employee must apply for reinstatement within two months of the termination of his employment relation; otherwise, the employee loses the right to reinstatement.
The relevant article of the law states that the expression “any military duty” applies to all types of military service, not just regular military service. In other words, employees who perform military service for pay can also benefit from these rights. If the employment contract is suspended during the period of military service, the employer may not be obliged to rehire the employee and, controversially with the doctrine, it means an unlawful termination of the employment contract, in which case the employee may file a lawsuit for reinstatement, but if the employment contract has been terminated, the employer must rehire the employee. In addition, the employee must request reinstatement after completing his military service.
As a result, the rights of employees who perform military service for pay are protected in the same way as those who perform regular military service, but the obligations of the employer vary depending on whether the employment contract has been terminated or not. If the employment contract has been terminated, the employer has an obligation to rehire the employee, but this obligation does not apply if there is a suspension. As a result, the rights of employees who perform military service for pay are protected in the same way as those who perform regular military service, but the obligations of the employer vary depending on whether the employment contract has been terminated or not. If the employment contract has been terminated, the employer has an obligation to rehire the employee, but this obligation does not apply if there is a suspension.
CONCLUSION
The rights of employees who leave their jobs due to military service and the obligations of the employer are evaluated from various aspects.
Pursuant to Article 31 of the Labor Law Numbered 4857, employees who leave their jobs due to military or legal duties may request reinstatement within two months after the end of their duties. The employer must recruit the former employee with preference for the available positions or according to the first vacancy. In case of failure to comply with this obligation, the employer is obliged to pay compensation in the amount of three months’ wages.
When examining the labor receivables of employees who leave their jobs due to military service, it should be noted that they have the right to receive severance pay. However, in order to exercise this right, the employee must have worked for at least one year and the employment contract must be terminated due to military service. The employee must prove his military service to the employer by documenting it. On the other hand, employees who leave their jobs due to military service do not have the right to claim notice pay.
Similar rights also apply to employees who do paid military service. During the period of paid military service, the employee can be considered on unpaid leave, but this period cannot be deducted from the annual paid leave. The employer has the obligation to hire the employee after the military service provided that the employment contract is terminated by the employee; however, this obligation may not be valid if the employment contract is suspended, in which case the employee may file a reemployment lawsuit.