The judicial reflections of the termination ban and unpaid leave as interim measures during Covid-19 pandemic in Turkish labour law

Abstract

In order to align with the ILO Termination on Employment Convention no. 158,Turkish Labour Law has adopted job security system. This system protects certain workers against unfair and invalid terminations. Employers have to use the right of termination, which must be based on a valid reason either resulting from the employee or the enterprise. This usage of right should be in good faith, non-arbitrary; so Turkish Court of Cassation has developed some principles to assess this termination over the last decades. Although there are a great number of employees who are outside the scope of this protective norms, there are some other protective measures like severance pay, which is considered in the large-scale job security. After the coronavirus outbreak, Turkish Government has adopted the Law on Minimizing the Impacts of the New Coronavirus (Covid-19) Outbreak on Economic and Social Life and the Amendment of Certain Laws (7244) (“the Amendment Law”) published in the Official Gazette (31102) on 17 April 2020. This law included transitional provisions for the Labour Law no. 4857 and adopted an interim termination ban for all of the employers. On the other hand, employers forced to close down their workplaces had the opportunity to propose unpaid leave and employees were able to apply for the short-time allowance. Even though the unpaid leave proposal is a substantial alteration in the labour agreement, this measure was considered as a principal way for the agreements to continue. Generally, these interim measures were based on balancing mind-set and both parties of labour agreement were sharing the negative results. This paper would like to discuss the effects of these interim measures. In order to pursue this aim, firstly we briefly explain the general job security tools provided in Turkish Labour Law. Following this explanation, we will try to understand the preventive measures’ effects by examining the cases. Finally, we would like to address our view regarding the results and current and upcoming jurisprudential problems.