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December 21, 2023

Seasonal Employment Contracts And Employees’ Rights In Case Of Termination

General Evaluation of Seasonal Employment Contracts 

Seasonal employment contracts are not clearly regulated under the Labor Law No. 4857 (“Labor Law“); however, Articles 29/7 and 53/3 of the Labor Law and Article 4/F of the Law No. 394 on Week Holidays contain clauses regarding seasonal employment. In this context, seasonal work is defined in the doctrine as work carried out in workplaces where the activity is carried out only during a certain period of the year or at workplaces where the activity is concentrated in certain periods of the year, while working throughout the year. In other words, works that are not always suitable for employing the same number of employees and where employees work intensively for certain periods of time every year according to the nature of the activity carried out in the workplace, but in other periods of the year, labor contracts require a break until the beginning of the activity period of the following year are considered seasonal work.

In order for a work to be considered seasonal, it is not necessary for the workplace to operate seasonally. Even though the workplace operates throughout the year, if the amount of work increases in a certain period depending on the season, the work in question can be considered seasonal work and the employee can be considered a seasonal employee. However, seasonal labor is concentrated in some sectors such as seasonal agricultural work, tourism, construction sector, and the distinctive feature of seasonal work is that it is repeated periodically in certain periods of the year. In this article, the characteristics of seasonal employment contracts, the rights of the employee and the responsibilities of the employer will be discussed in detail.

Definite and Indefinite Seasonal Employment Contracts

Although seasonal employment contracts contain works to be performed periodically in a certain period of the year, they do not necessarily have to be concluded as a definite-term employment contract. It is possible to establish seasonal employment contracts between the employer and the employee for an indefinite term from the beginning. In the event that seasonal employment contracts are concluded with the employees for a definite period of time, the contracts will end with at the expiration of the term. It is important to state that, pursuant to Article 11 of the Labor Law, if more than one definite-term employment contract is concluded in a row unless there is a substantial reason, in other words, in case of a chained contract, there is a risk for the employer to consider this contract as an indefinite-term employment contract from the beginning. In this context, it is possible to say that in the event of the conclusion of successive seasonal employment contracts in seasonal works, there is a single indefinite-term seasonal employment contract between the parties and the contract is suspended at the end of the season.

Suspension of Seasonal Employment Contracts and the Employee’s Ability to Work with Another Employer

In indefinite-term seasonal employment contracts, the employment contract does not end with the end of the season. In this case, with the end of the season, the employment contract is suspended until the beginning of the next season. In order for the employment contract to be suspended, (i) the impossibility of performance must be temporary and (ii) the employee must be unable to fulfill the performance obligation without fault. If the suspension period is not defined by the law or the contract, this period should be determined according to the objective rules of good faith.

The suspension in question concerns both the employer and the employee. In this context, the employee’s obligation to perform the work and the employer’s obligation to pay wages are both suspended until the beginning of the next season. In terms of the protection and continuity of the economic future for the employee, it is possible to work for another employer within the suspension period, but these periods are not included in the seniority of the employer with whom the seasonal employment contract has been made.

The suspension periodically ends at the beginning of the next season and the employer is required to invite the employee to work within a reasonable period of time in writing according to the established case laws of the Supreme Court. As a rule, in indefinite-term seasonal employment contracts, this invitation is not an invitation to sign a new employment contract, but is characterized as the continuation of the existing one.

Evaluation of Termination in Seasonal Employment Contracts and Rights of Employees

Definite-term seasonal employment contracts can be terminated upon the expiration of the contract. An example of this situation is when an employee that works in tourism sector who works in a certain tourism season is dismissed by the employer on the expiry date specified in the contract; in other words, the employer does not re-contract the employee for the next season or the employee only wants to work for the period of the fixed-term contract. In this case, the employment relationship terminates at the end of the current period and the employee is not provided with any job security. If a definite-term seasonal employment contract is terminated by the employer before its expiry date without just cause, the balance shall be paid. In the event of termination by the employee without just cause, although there is no explicit provision in the Labor Law legislation, under Article 439 of the Turkish Code of Obligations No. 6098 (“TCO“), the employer is entitled to compensation equal to one quarter of the employee’s monthly salary and, if proven, compensation for damages.

Indefinite-term employment contracts and indefinite-term seasonal employment contracts are generally subject to the same provisions, but the break between two contract types is the state of suspension. If the employer terminates indefinite-term seasonal employment contract without just cause, the first thing to be evaluated is the employee’s request for re-employment if the conditions are met within the scope of Article 18 of the Labor Law. In the event that a lawsuit is filed and the termination is deemed invalid, the employee will be entitled to compensation in the amount of at least four months and at most eight months’ wages. If the employer does not invite the employee to work, in writing, without a justifiable reason following the end of the suspension period, the employment contract can be subject to termination without just cause. The employee whose indefinite-term seasonal employment contract is terminated without just cause has the right to demand notice and severance pay. Especially in terms of severance pay, in accordance with the established decisions of the Supreme Court, in the calculation of the seniority period in seasonal work, the periods actually worked are taken into consideration rather than the whole duration of the employment contract.

Conclusion

Seasonal employment contracts in Turkish Labor Law offer various advantages for both the employee and the employer. Employers can reduce labor costs and establish a more flexible working system by providing the demanded labor force only during the relevant seasons. At the same time, seasonal employment contracts can also provide seasonal employees with the opportunity to work for short and in certain periods. However, in addition to their advantages, due to inadequate regulations in the legislation on seasonal employment contracts, these types of employment contracts can sometimes lead to problems in terms of job security. For this reason, it is of great importance to protect the rights of employees, to conclude contracts in accordance with legal regulations and to duly call employees back to work following the suspension period. Seasonal employment contracts, when properly established, can provide a fair balance between employers and employees and can be an effective tool to meet sector-specific needs.

Authors

Mevra Baran Akkoyun

Mevra Baran Akkoyun

Senior Lawyer

Elif Delifil

Elif Delifil

Lawyer