In our country, layoffs have not started due to COVID 19 due to legal regulations in the aviation sector. But new agreements are placed in front of employees. Attorney Tuğba Thin wrote…
The effects of the COVID 19 outbreak in the aviation industry continue all over the world. For example, the waters do not stop at Lufthansa, one of the biggest airlines. In its statement, the European Pilots Association announced the number of pilots who lost their jobs or threatened to be unemployed in Europe due to the epidemic as 6,500.
In our country, layoffs have not started due to COVID 19 due to legal regulations in the aviation sector. The damage is serious. As such, it is inevitable for airline companies to take some economic measures in order to survive.
Recently, an e-mail message was sent to the employees by the Employer following the protocol signed between THY and the authorized union Hava-İş, which stipulated a 30 to 50 percent reduction in salaries. In this e-mail, employees who did not accept the terms of the protocol were asked to sign a letter stating that they terminated their employment voluntarily, and employees were given a deadline until September 8, 2020. Regardless of what form, quitting or retiring requires financial and moral preparation. Everyone is trying to make the most logical decision for himself. After these developments, I compiled the questions asked to me as a lawyer on the subject and I share my answers with you in order to answer the questions you have in mind.
I am a member of Hava İş union. Will this protocol bind me?
This protocol binds Hava-İş union members and those who benefit from TİS rights by paying solidarity fees.
Is it okay to accept THY's offer of salary, indemnity and severance payments? If I accept this, will I work on these terms from now on?
The protocol does not specify how long this implementation will take. In my opinion, this time issue should be clarified by the Union. The word "deduction" in the protocol can be interpreted not as a permanent condition in wages and other rights, but as a temporary consent to their underpayment by the employer. In other words, the consent of the personnel can only be interpreted as giving consent to the temporary deduction of wages and benefits until extraordinary conditions pass. But; In the continuation of the sentence with the word deduction, the expression "re-determination of wages and payments" may mean that wages and benefits are re-determined, thus, wages and benefits are permanently reduced. Whatever interpretation you accept, first of all, the duration of the protocol should be clarified. In this regard, the Union should receive a written reply from THY and it should be clear that these cuts are temporary regarding the pandemic process. It is also unclear that the duration of this protocol depends on the 26th term TİS.
If I accept the offer, will I eliminate the risk of being fired?
According to the President's decision in the Official Gazette; In accordance with the Labor Law No. 4857, the employer's ban on dismissing the employee for 3 months has been extended for 2 more months as of September 17, 2020. In this context, the dismissal ban will continue until 17 November .
If it is necessary to deal with the employment contract termination restriction of the employer over the SSI exit codes, the ban is valid for codes 01, 04, 15, 22, 27 and 28. If the employer wants to dismiss a worker who is on probationary period, he can schedule this after the termination ban ends. During this period, the employee may suspend the employment contract by giving unpaid leave. While the termination ban continues, the employer will not be able to dismiss the worker for reasons that may be included in the concept of "valid reason" such as performance, inefficiency, late arrival to work, and incompatibility. These exits can only be made after the termination ban. Likewise, collective dismissals cannot be made due to the termination prohibition. The termination process has been restricted for reasons regulated in the articles 25 / I - III - IV of the Labor Law numbered 4857, which is one of the reasons for the termination of the employer,
SSI Exit Code Reason of Exit Work
Termination of 1 Probationary Contract by Employer
4 Termination of Indefinite Term Employment Contract by the Employer without Providing a Just cause
15 Mass Dismissals
22 Other Causes
27 Termination by the Employer for Compulsory Reasons and Detention
28 Termination by the Employer for Health Reasons
Accepting the salary reduction is not a guarantee of your stay in work.
Layoffs for reasons not covered by the ban continue during the pandemic period. Our subject is whether there will be dismissals in the codes that are within the scope of the prohibition.
Can THY fire me without complying with the dismissal ban?
If you are in probationary period, the employer will not be able to dismiss a worker hired before the prohibition period or during the prohibition period, even during the probation period, during the probation period, which can be determined as maximum 2 months in the labor contract and 4 months in collective agreements. Instead, he will be able to send the worker on unpaid leave. However, if the employee wishes, he can terminate his contract within the trial period.
I would like to talk about exits with İKALE, which is a generally preferred application. Withdrawal and exits are situations where the employee and employer agree to terminate the employment contract. Although it has not been included in the articles regulating terminations in the Labor Law, the termination agreement is checked to determine who put forward the will for termination. The party offering the auction is deemed to have declared termination. However, during the ban, there is a high risk of realizing double exits. The most important thing to be aware of here is the exit codes used in terminations made by cancellation. Workplaces use the exit code for other reasons, usually code twenty-two, when they exit a cancellation. During the termination ban applied during the pandemic, the termination process using this code is also included in the ban.
According to the current legislation, if the Employer terminates in violation of the prohibition, he will be punished with an administrative fine equal to the gross minimum wage on the date of termination. Accepting the offer of a salary reduction may not be a guarantee of retention. We will see in the coming days whether THY will start layoffs despite the dismissal ban and take the risk of paying administrative fines.
If I accept THY's offer and still be dismissed, will my compensation and receivables be evaluated according to the conditions I accept?
In this protocol, it should be clarified that the interruptions will be temporary and until what date the interruptions will continue. Normally, severance pay is calculated over the last gross wage. For example, if you are dismissed 7 months after you give your approval, because the wage is reduced with your consent, you will calculate the last dressed wage as an accounting. But; In case of application to the court, the court calculates the gross wage average of the last 12 months using the principle of interpretation in favor of the worker.
The union should make the issue clear by interviewing THY.
What should not be forgotten here is the ceiling application. In the January-June period of 2020, the severance pay ceiling was applied as 6 thousand 730 TL. As of July 1, 2020, the severance pay ceiling to be applied in the July-December period of this year has increased to 7 thousand 117 TL. The ceiling application is valid for severance pay.
I do not want to accept the offer. Do I have to declare that I don't agree? If I continue to work without notifying that I do not agree, does it mean acceptance?
You do not have to declare that you do not accept the salary reduction. Those who do not want to accept it do not necessarily have to make a "refusal" statement, they can also remain silent.
In general, the obligation to inform the worker; working conditions, recent and future development of workplace and businesses, economic status; It is about the employment situation, structure and especially the issues that will negatively affect employment in the near future. Informing the employees about work conditions by the employer is an information system applied at the workplace level. THY provided this information to its personnel.
Employer; can change and regulate the working conditions of their workers while making decisions about workplace management. However, the change in working conditions may create a situation against the worker in a way that forces the worker to work under conditions other than the working conditions that he / she is satisfied with.
The heading "Change in Working Conditions and Termination of Employment Contract" is regulated in Article 22 of the Labor Law. In order to detect the existence of a change against the worker, first of all, the current working conditions of the worker must be determined. Working conditions include issues such as working debt, wage debt, how and in what way the job will be performed, annual leave periods, working hours, rest and vacation. This was determined in the notifications of THY.
Changes in the working conditions of the employee is not only a matter of the employer. If the employer wants to change the working conditions of the employee, it is primarily obliged to inform the worker of this matter in writing. Changes made without written notification to the worker will not bind the workers. THY notified its workers in what working conditions it wanted to make changes.
The employer's proposal for change in working conditions must be answered positively or negatively in writing within 6 days by the employee. The silence of the employee to the proposal for a change in working conditions and his failure to respond in writing does not mean that the working conditions are accepted.
Can I not accept THY's salary reduction offer, terminate the employment contract for a just cause and file a reemployment lawsuit? How much should I pay my lawyer if I open it?
It would not be very correct to say that you will win the reemployment case. When you file a lawsuit and your case is dismissed, you will have to pay legal costs. Attorney fees that you will pay your own lawyer will also be your loss. You will also have to pay the counter attorney's fee to be determined by the court. The lawyer fee that you can pay to your lawyer is written in the tariff of the Bar Association or the bar that your lawyer is affiliated with. You can easily find the tariffs and the minimum fees you have to pay from the internet. You can file a lawsuit for claim items such as seniority, wage, overtime, ubgt holiday. Reemployment and notice compensation cannot be claimed in such a case.
Can I file a reemployment case if THY dismisses me when I do not accept THY's salary reduction offer?
In Article 22 of the Labor Law numbered 4857, the Employer can make a fundamental change in the working conditions created by the employment contract or the personnel regulation that is an annex to the employment contract and similar resources or workplace practice only by notifying the worker in writing.
Changes that are not made in accordance with this form and which are not accepted in writing by the worker within six working days do not bind the worker. If the employee does not accept the change proposal within this period, the employer may terminate the employment contract by declaring in writing that the change is based on a valid reason or that there is another valid reason for the termination and complying with the notice period. In this case, the employee can file a lawsuit in accordance with the provisions of Articles 17 to 21 ”constitutes the legal basis for the change in working conditions.
Since the request for change is not accepted in writing by the plaintiff within six working days, it is not binding. The plaintiff's reinstatement must be decided in the event that the employer could not demonstrate that the change was based on a valid reason or that there was another valid reason for termination.
The severance and notice pay receivables are always discussed and resolved by the courts with termination. In the termination of the employment contract, the employee or employer does not have to expressly say I TERMINATE to the other party. The Supreme Court accepts that if the expressions that reveal the will of termination and the state of not continuing to work actively, this situation means termination. For example, the courts consider “employer termination” in cases such as not hiring the worker, confiscating the employee's automatic pass card, making the worker unable to do business as a result of taking away the items required for his job, employer unilaterally applying unpaid leave and the worker refusing to accept it.
In its decision dated 04.07.2017, 9th Civil Chamber of the Supreme Court of Appeals, the employee who claimed that the employment contract was terminated without valid reason in accordance with the 20th article of the Labor Law numbered 4857, within one month from the notification of the termination notice. Invalidity of termination and must file a lawsuit with a request for reemployment. This period is the period of lowering rights and should be taken into consideration ex officio.
In case of termination with action, the period of filing a lawsuit starts from the date of termination with action. Personnel regulation or contract provisions that provide an administrative appeal against termination notification will not cut the period of filing a lawsuit, nor will the worker receive a report due to his illness during this period.
I do not accept this THY protocol. What will happen if I send an e-mail?
Probably the employer will take unpaid leave. With the provisional article added to the Labor Law on April 16, 2020, the employment or service contracts are not compliant with the rules of ethics and goodwill, the termination of the employment or service contracts, the termination of the workplace, the termination of the work, except for 3 months by the employer. termination was prohibited. In the provisional article, which allows the employer to leave the employee for 3 months of unpaid leave, the President of the Republic has been given the authority to extend these periods for at least three months each time until June 30, 2021. In accordance with this article, the dismissal ban, which started on April 17, was extended for 1 month, effective from August 17. This period would end on September 17th. In accordance with the Labor Law No.4857, the employer's ban on dismissing the employee for a period of 3 months was extended for 2 more months as of September 17, 2020.
Can THY fire me even though I want to work and I want my salary to be paid in full? If this happens, can I file a refund case?
After the unpaid leave expires, the employer can terminate. The employment contract must be terminated by the employer in order for the employee to claim the invalidity of the termination in accordance with the job security provisions.
In the first sentence of Article 20 of the Labor Law, he stated that "the employee whose employment contract is terminated ..." and that the termination of the employment contract will be made by the employer. The Supreme Court also makes decisions on this matter.
The employee's termination of the employment contract, even with a just cause, does not give the employee the invalidity of the termination and the right to request a return to work. The right of the employee to file a reemployment lawsuit, whether the employer terminates the employment contract with a valid reason or immediately with a just cause, the employee has the right to request the invalidity of the termination and the decision to return to work. However, a lawsuit must be filed at the labor court within 15 days after the mediation process ends negatively by applying for mediation within 30 days from the date of the termination date.
At the beginning of the events in which the employment contract is not terminated by the employer, the termination of the employment contract through mutual agreement, that is, with the termination agreement, and the resignation of the employee. Apart from these two, the termination of the business relationship is carried out by the employer.
If we conclude my employment contract with THY and terminate with a cancellation, can I file a lawsuit against THY afterwards ?
In practice, the Court of Cassation, in cases where the parties terminate the employment contract by mutual agreement, namely by rescission, whether the will of the worker is an error, fraud or a situation that breaks the will; whether the employer is exercising his social and economic advantage over the worker; It examines whether the worker has a reasonable benefit or not, in each concrete case, whether the job security provisions have been eliminated or not.
In particular, whether the termination agreement complies with the formal requirements and must be in accordance with the rights and interests of both parties. Excessive utilization and misconduct invalidate the contract. If you file a reemployment lawsuit after signing the termination contract, the court's first job will be to evaluate whether the termination contract is valid.
If I terminate my employment contract with THY, do I have to make an agreement? What are the articles in the Labor Law that I cannot terminate by agreement?
The agreement between the employee and the employer to terminate the employment contract is defined as a reversal agreement. In accordance with the principle of freedom of contract originating from the Constitution, the employment contract can always be terminated by an employee-employer agreement, regardless of its type.
There is no regulation in the Labor Law numbered 4857 regarding the cancellation agreement. Law no 1475, which was the previous Law, almost never existed, it was not implemented. With the law numbered 4857, job security provisions were put into effect, the termination contracts came into our lives. Although not in the Labor Law, a cancellation contract is established with the acceptance of the other party after a statement (necessity) involving the mutual termination of the employment contract sent by one of the parties to the other party. In order not to encounter the reemployment lawsuit of the employee under job security, the termination agreement has become widespread in practice and has been adopted by the Court of Cassation.
If I end my contract with THY and terminate my contract, how should I arrange the contract?
My answer to that can be technical and a little difficult to understand. The form, execution, scope and validity of the cancellation agreement are determined according to the provisions of the Code of Obligations. In the termination of the employment contract through a termination agreement, the interpretation of the contract in addition to the general provisions, the principle of interpretation for the benefit of the worker in Labor Law is also taken into consideration.
Payments that are subject to premium and not subject to social security premium should be evaluated separately in the cancellation agreement. For this, see Article 80 of the Social Insurance and General Health Insurance Law No. 5510, titled "Prime earnings". There is a legal benefit in making the calculations in this regard with the support of lawyers who are experts in their fields.
If we terminate my employment contract with THY, can I file a reemployment lawsuit?
I think the validity of the cancellation agreement will be more during the pandemic period. Because the pandemic has affected the whole world and the aviation industry and caused the sector to shrink. However, the form condition is important for validity. The contract must not contain excessive use against the worker and misconduct.
As a result; In case the employment contract is terminated with a resignation agreement to be made without taking into account the "interpretation in favor of the worker", "narrow interpretation" and "reasonable benefit criteria" which are dominant in the Labor Law , the worker may apply to the judicial remedy and have the opportunity to benefit from the provisions of the law numbered 4857 on job security.
Legal assistance must be sought when preparing a cancellation contract. The items of receivables that will be negotiated with THY should be determined first, their amounts should be calculated correctly, and even if it is under the name of a cancellation contract, the idle time and non-employment compensation and amount can be requested and negotiated.
Will collective layoffs begin in THY?
I closely followed aviation news all over the world. British Airways has announced plans to cut about 12,000 staff, the airline wants to switch remaining employees to lower-paid contracts. EasyJet: Announced plans to lay off about 5,000 people. Virgin Atlantic: Richard Branson said he planned to cut 3,150 jobs after the airline said it could enter power without a government rescue package. In addition, it is now thought that 1000 more employees can go. These are just a few examples. It is a great success that a worldwide crisis has not started the layoffs in the aviation sector in our country.
If you follow developments all over the world, you will see that employers are forced to layoffs to survive. Hoping that impulsive landings will not start in THY, it is necessary to look at the provisions specified in Article 29 of the Labor Law No.4857 in order to understand how they can take place. According to this; Employer; economic, technological, structural or similar business when workplace or business wishes to the results of public workers should, do it with a pre-existing writing at least thirty days, workplace trade union representatives, will report to the respective regional offices and Turkey Business Association. Number of workers working in the workplace:
a) If between 20 and 100 workers, at least 10 workers,
b) If between 101 and 300 workers, at least ten percent of the worker,
c) If there are 301 or more workers, termination of employment of at least 30 workers in accordance with Article 17 and within a period of one month on the same date or on different dates is considered collective dismissal. In the notification to be made in accordance with the first paragraph, it is obligatory to include information on the reasons for dismissal, the number and groups of workers to be affected, and the time period in which the termination procedures will take place.
In the meetings between the workplace union representatives and the employer after the notification, the issues of preventing collective dismissal or reducing the number of workers to be fired or minimizing the negative effects of the dismissal on workers are discussed. A document showing that the meeting was held is prepared at the end of the negotiations.
Termination notifications take effect thirty days after the employer notifies the regional directorate of his collective dismissal request. closing entirely accurate and continuous way, in case of workplace activities to an end, just in case the employer is at least thirty days prior to the relevant regional offices and Turkey obliged to notify the Employment Agency and declared work. If the employer wishes to recruit new workers for the same job within six months of the finalization of collective dismissal, it preferably calls those whose qualifications are suitable.
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