Bireysel İş Hukuku Açısından Zorlayıcı ve Zorunlu Sebeplere Bağlı Olarak Ortaya Çıkan Çalışma Koşullarının Yeni Koronavirüs (COVID-19) Nedeniyle Gerçekleştirilen Son Yasal Değişiklikler Bağlamında Değerlendirilmesi
Çalışma hayatı açısından zorunlu ve zorlayıcı durumların ortaya çıkardığı temel etki işyeri ve işletmelerde mal ve hizmet üretiminin önemli ölçüde durması nedeniyle işçi çıkarma ve işsizliğin artması tehlikesidir. Bu süreçte iş mevzuatında bazı tedbirler var olmakla birlikte bunların bazı şartlara tabi tutulmuş olması ve her çalışanın bundan yararlanamaması, COVID-19 salgınının ekonomik ve sosyal etkilerinin zayıflatılmasında yetersiz kalmış, getirilen geçici yeni mevzuat düzenlemelerine bağlı olarak (koşulları hafifletilmiş olmasına rağmen) kısa çalışma ödeneği dışında, bu ödenekten yararlanamayanlara nakdi ücret desteği sağlanması yoluna da gidilmiştir. Ayrıca bu süreçte işverene zorlayıcı sebeple tek taraflı olarak üç ayla sınırlı olmak üzere iş sözleşmelerini askıya alma yetkisi verilmiş, bu sebeple içinin fesih hakkı sınırlanmış, işverene ise ahlak ve iyiniyet kurallarına aykırı davranışlar dışında iş sözleşmesini fesih yasağı getirilmiştir.
Çalışmamızda Yeni Koronavirüs (COVID-19) salgınına bağlı olarak bireysel iş hukuku alanında alınan tedbirlere ve bu tedbirlerin çalışma hayatına ilişkin etkilerine değinilecek ve buna ilişkin muhtemel sorunlar ele alınacaktır.
Evaluation of Emerging Working Conditions Following Mandatory Labor Law Changes Due to the New Coronavirus (COVID-19)
Our study discusses the individual labor law measures that have been taken and their effect on working life. Potential problems are addressed due to the outbreak of the new coronavirus (COVID-19). The main effect of compulsory and challenging changes to working life is the danger of redundancies and unemployment, as the production of goods and services shrinks significantly. Although some labor legislation measures have been designed to decrease the negative effects of the crisis, they are subject to certain conditions, and not every employee can benefit from this. The adverse effects of the COVID-19 pandemic on the economy cannot be eliminated and except for the short-time working allowance (although conditions have been alleviated) due to the temporary legislative regulations introduced (although conditions have been alleviated) cash fee support to those who cannot benefit from this payment has been given. In this situation, the employer has the right to suspend labor contracts unilaterally for three months for compelling reasons, therefore the right to terminate employment was restricted, and employers were banned from terminating employment contracts except for ethical and good conduct.
There is no question that unprecedented events have occurred both worldwide and in Turkey due to the COVID-19 pandemic, which was first identified in Wuhan, China in December 2019 and the first case reported in Turkey on 10.03.2020. Not only the short term but also the long term effects of the pandemic are considered to be effective in the long run. Among the legal changes made due to COVID-19, the outbreak was expressed as a compelling reason. Working life is one of the most fundamental areas affected by the epidemic. In fact, labor law has made important regulations for compelling reasons. However, these arrangements have not been sufficient to combat the effects of the COVID-19 pandemic. In Turkish labor law, institutions such as short work and compensatory work that aim to prevent the removal of workers and combat the difficult situation enterprises face in this extraordinary situation,. In particular, income assurance is important during employees’ short working periods due to the significant reduction in working time. However, under Turkish legislation, not every worker can benefit from this income guarantee called the short-time working allowance within the scope of the unemployment insurance fund, due to certain insurance periods. Those who fail to meet the conditions are deprived of income security. Additional protections are required for employees who have become financially insecure due to the new coronavirus (COVID-19), and temporary conditions have been formulated. Despite this, if the conditions are not met, a lower wage support is provided rather than the short-time working allowance. This support is provided by the State.
It is necessary to acknowledge that the employment contracts have been suspended both in cases of cash wage support and when entitled to the short-time working allowance. During the suspension period, the employer’s obligation to pay wages disappears, and the obligation of the employee to work is terminated. Suspension of employment contracts occurs when granting unpaid leave for compelling reasons, and ultimately the state-provided income security is temporary.
Another negative situation that can be encountered is the termination of the employment contract. Neither the worker nor the employer can exercise their normal right to termination based on certain conditions that may occur during the suspension period. However, within the framework of the measures taken due to COVID-19, the termination of employment contracts has been prohibited. According to the Temporary Article 10 added to Labor Law No. 4857 and Law No. 7244, regardless of which law is referenced, it is 25 / II of the Labor Law. The employer’s termination of the employment is prohibited within the scope of the article, for reasons other than the rules of ethics, out of good faith, and other reasons. Although the clear regulation prohibiting termination refers to the period when the cash wage support is provided, workers who are entitled to the short-time working allowance also do not comply with the ethics and goodwill rules stated in article 25 (II) of the Labor Law and the relevant provisions of other laws. It should be subject to the prohibition of termination, except for situations and similar reasons. The worker’s right to terminate employment is another limitation of employment suspension as a consequence of the legal changes made due to the COVID-19 outbreak. However, the worker’s right to termination is not as restricted as the right of the employer but remains to a lesser extent. The right to unilaterally leave the employer is prohibited only if no other restrictions have been imposed on the right to immediate termination.
The amendments made to the legislation due to the global scale of the new coronavirus (COVID-19) outbreak were put into effect due to the inability of Turkish labor legislation to combat these situations. The amendments are accepted for compelling reasons and force employees to be subject to the destructive consequences of the global pandemic. There is a need for permanent arrangements for these reasons.
