In accordance with Article 3 of the Regulation on Working Hours under the Turkish Labor Code, "working time" refers to the duration that an employee spends at work. Circumstances in which time spent out of work place is included to working time are explicitly outlined in Article 66 of the Employment Law. These provisions will be elaborated upon below. In accordance with the provisions outlined in Article 66, circumstances that qualify as working time for the purpose of annual leave entitlement are further specified in Article 55 of the Turkish Labor Code:

  • Days when the employee cannot go to work due to an accident or illness:

    While these days will be recognized as working days, in the computation of annual leave and severance pay, only the portion of the days that surpasses the notice period by six weeks will be considered as worked. Furthermore, the exceeding portion will not be factored into the annual leave and severance pay calculations.This issue is one of the established practices of the Court of Cassation and the Court will issue a decision of reversal in the event of a judgment contrary to the rule.1 This established practice of the Court of Cassation is also adopted by the regional courts of appeal.2
  • The days that women employees are not working before and after childbirth in accordance with Article 74:

    It is importan to emphasize that a female employee is entitled to a total of 16 weeks of maternity leave, consisting of 8 weeks before the birth and 8 weeks after the birth. In case of multiple pregnancy, this period extends to 18 weeks. It's noteworthy that the birth and maternity leave, as regulated in the legislation, do not constitute periods during which the employee's employment contract is suspended. Consequently, the legislation specifies that it is one of the periods that are considered when determining annual leave and severance pay. The decisions of the Court of Cassation are also in this direction. For example, the 22nd Civil Chamber of the Court of Cassation ruled as follows in one of its decisions.3

"Considering the established practice of the Court of Cassation regarding the addition of the sick leave reports received by the employee while working at the workplace to the seniority period and the principle of sixteen weeks of non-working brought by the legislator for women employees due to childbirth, the period in which the plaintiff was reported as sick in 2013 should be considered as worked in terms of the service period to be taken as the basis for severance pay and annual paid leave receivables. As such, while it should be accepted that the plaintiff worked uninterruptedly at the defendant workplace between 02.02.2012-01.05.2013, it was erroneous to make such decision which required a reversal."

  • The days when the employee is absent from work during maneuvers or any lawful assignment other than regular military service:

    In accordance with Turkish Labor law, the period of suspension of the employment contract of the employee who is recruited for military service for a maximum period of 90 days is considered as time worked. However; in case of a long period of active military service, this period will not be considered as time worked.
  • Fifteen days of the time when the employee is not working due to the suspension of the work for more than one week without interruption, due to compelling reasons in the workplace where the employee is employed:

    The law clearly states that the 15-day period in question is considered as time worked on the condition that the employee starts work from his/her place. It is worth noting that, if the compelling reason at the workplace lasts longer than 1 week, employees have the right to terminate their employment with just cause in accordance with Article 24/III of the Turkish Labor Code. Accordingly, if the employees exercise their right of justified termination for this reason, it will not be possible to count the fifteen-day period as worked. In one of its decisions, the Court of Cassation stated that; "Article 51 of the Employment Law No. 1475 lists the situations that are deemed to have been worked. According to paragraph (Ç) of the said article, "15 days of the time that the employee spends without working as a result of the work being suspended for more than one week without interruption due to compelling reasons in the workplace where the employee is working, provided that the employee resumes work".4
  • The periods referred to in Article 66 of the Turkish Labor Code:
    • In mines, quarries or any other underground or underwater works, the time required for employees to descend or enter and exit from shafts, caverns or the actual working places,
    • If the employees are sent by the employer to work in a location other than their primary work place, the time spent on the way,
    • Periods of idle time spent by the employee at work and in a state of readiness to work at any time, but without being actively employed and waiting for the work to be assigned,
    • Periods spent by the employee without performing the employee's main work due to being sent to another location by the employer or being engaged in activities at the employer's house or office or in any other place related to the employer,
    • The periods to be specified for breastfeeding women employees to give milk to their children,
    • In all kinds of works such as the construction, protection or repair and modification of railways, highways and bridges, which necessitate transporting employees to and from workplaces located far from their settlements, the time spent during their collective and regular transportation shall be counted as working time.

  • Weekends, national holidays, general holidays:

    In determining the total working time used as the basis for the calculation for calculating specific labor entitlements and termination-related rights of the employee, legal and administrative leaves, sick leaves, weekends, as well as national, festive and general holidays that occur during the duration of the employment contract are taken into account as time worked.5
  • According to the regulation issued on the basis of Law No. 3153, half-day leaves that should be given to employees working in X-ray offices, excluding Sundays:

    According to Law No. 3153 on Radiology, Radiome and Electrical Treatment and Other Physiotherapy Establishments, and the corresponding Regulation on Radiology, Radiome and Electrical Treatment Establishments, the half-day leave mandated for employees working in x-ray offices, excluding Sundays, is treated as time worked for the purposes of annual leave calculations.
  • The days when the employees cannot continue their work due to their participation in mediation meetings, arbitration committees, performing serving as employee representative in these committees, attending councils, boards, commissions and meetings established in accordance with labor legislation, or attending the conferences, congresses or boards of international organizations related to labor issues as an employee or union representative:

    In the event that the employee is absent from the workplace for the reasons mentioned above, no wage deduction can be made, and these days should be taken into account during the calculation of annual leave and seniority period.
  • Leave periods listed in Additional Article 2:

    The employee shall be granted three days paid leave in case of marriage or adoption or death of his/her parents, spouse, sibling or child, and five days paid leave in case his/her spouse gives birth. When an employee's child with at least a seventy percent disability or chronic illness requires care, they are entitled to up to ten days of paid leave per year, which can be taken in full or in part upon presentation of a sickness report. This leave can only be utilized by one of the working parents and will be treated as if the employee worked during that time.
  • Other leaves granted by the employer and short-time working periods under Article 65:

    Although Article 65 of the Turkish Labor Law No. 4857 has been repealed, it has been assured by the decisions of the Court of Cassation that the periods spent in short-time work will be considered as worked. Article 2 of the Unemployment Insurance Law No. 4447 does not contain a provision stating that the short-time working periods will be counted from the seniority of the employee. However, in the ruling of the General Assembly of Civil Chambers of the Court of Cassation dated 16.11.1983, it was determined that the periods of short-time working should be taken into account for seniority.6 The 9th Civil Chamber of the Court of Cassation, citing the decision of the General Assembly of Civil Chambers as a basis for its ruling, submitted that “the court decision regarding the addition of the actual short-time working period of 5 months and 27 days to the seniority of the plaintiff is appropriate since the short-time working period added to the seniority of the plaintiff falls within the scope of the amendment made by Article 1 of the Law No. 5838 in the Provisional Article 8 of the Law”.7
  • The period of annual paid leave granted to the employee as a result of the implementation of Emloyment Law No. 4857:

    According to the Turkish Labor Code No. 4857, the annual paid leave periods are regulated as below:

    1. Fourteen days for employees with lenght of service between one and five years (including five years),
    2. Twenty days for employees with lenght of service of more than five years and less than fifteen years,
    3. Employees with fifteen years (including) of length of service or more shall be granted annual paid leave of not less than twenty-six days. It will be explicity regulated in the legislation that these periods will be counted as working time and therefore will also be taken into account during the calculation of the severance pay.

On the other hand, according to Article 17 of the Occupational Health and Safety Law No. 6331, the time spent in the trainings given to the employees will also be counted towards the working time.

In practice, there is controversy surrounding whether the periods specified in Article 55 of the Turkish Labor Code should be incorporated into the seniority periods for determining annual leave entitlement.

As a rule;8 although it is accepted that the periods listed should be taken into account in the calculation of severance pay, the Court of Cassation, in one of its decisions, stated that it is not possible to include the periods not actually worked in seniority calculations due to the absence of explicit provisiosn in the legislation, and therefore ruled in the oppoiste direction “... In the concrete case, it is impossible for the court to add the 15 days specified in paragraph 55 / d of the Labour Law to the seniority period on the grounds that it is considered as if it was worked. Therefore, it is erroneous to accept the price gap in severance pay claims in the direction of the report…”.

It is crucial to state that, apart from the above-mentioned, in practice; although there is a regulation in the abrogated Article 65 and the Court of Cassation decisions quoted above stipulated above state that short-time working periods will be counted as working time, there is no clear regulation in the legislation regarding whether the unpaid leave periods, especially those experienced during the pandemic period, will be counted as seniority periods.

In a decision, 11th Civil Chamber of the Sakarya Regional Court of Justice9 ruled that; “According to the established decisions of the 9th and 22nd Civil Chambers of the Court of Cassation, the employment contract is suspended during the periods when the employee is on unpaid leave. Taking the decision of the 9th Civil Chamber of the Court of Cassation dated 09/11/2017 and numbered 2016/2890 - 2017/17860, “... Probationary and suspended periods are also included in the 6-month seniority calculation of the employee. In other words, in this calculation, actual working periods are not required absolutely.” the unpaid leave periods made available as a result of the unilateral leave application within the scope of the Provisional Article 10 added to the Law No. 4857 with the Law No. 7244 should be taken into account in the calculation of the 6-month seniority period..” However, the 3rd Civil Chamber of the Bursa Regional Court of Justice has recently ruled in an opposite decision on 26.04.202310“…The working period of the employee is related to the public order from the severance pay calculation, and it has been seen that the court has ruled for severance pay by relying on the calculation in option A regarding the inclusion of the periods underreported with the pandemic unpaid leave in the working period based on compensation in the account expert report dated 04/11/2022. Pursuant to Article 120 of the Law No. 4857, it is not possible to include unpaid leave, which is not based on actual work, in the calculation of the period based on severance pay in accordance with Article 14 of the Law No. 1475 in force. This is because the unpaid leaves introduced during the pandemic period are based on the legal regulation and it is fixed that the workers who went on unpaid leave during this period also benefited from the wage contribution payment. Considering the appeal request, it was not deemed possible to include the unpaid leave periods granted only due to the pandemic in the period of severance pay since they were not based on actual work, and the defendant's appeal in this respect was found appropriate. The decision had to be reversed in this respect as well.”. In our perspective, the assessment of unpaid leave periods during the pandemic should be evaluated within the scope of ‘other leaves granted by employers' in subparagraph ‘j' of Article 55 of the Labour Law No. 4857, since the employer has been given the authority to unilaterally place the employee on unpaid leave during the pandemic and the employee is not entitled to terminate the employment contract for just cause. Consequently, the duration of unpaid leave periods spent during the pandemic should be added to the seniority periods.

Conclusions and evaluations:

As it is known, many rights such as severance pay, annual paid leave periods, notice periods are determined by the working time of the employee in the workplace. Whether a situation will be counted as working time or not is shaped in the light of the regulations in the legislation as well as the decisions of the Court of Cassation. Consequently, should the conditions in question be classified as working time, the employee's seniority period, annual leave progression payments, and rights associated with termination shall be ascertained with due regard for said periods.

Article 55 of the Turkish Labor Code explicitly specifies the circumstances that qualify as working time in terms of annual leave, and refers to Article 66 of the same Law titled ‘‘periods considered as hours of work''. Although the Turkish Labor Code stipulates that some of the periods not spent at the workplace shall be taken into account during calculation of annual leave entitlement, it is worth noting that there is no separate regulation under the Law for severance pay.

In line with the explanations provided above, it is evident that the general practice and the established Court of Cassation decisions are in favor of the employee and that the situations considered as working hours in terms of annual leave will also be taken into consideration during the calculation of severance pay. Based on our legal analysis; although it is appropriate to apply the above-mentioned regulations regarding annual leave to the calculation of severance pay, the fact that the pandemic unpaid leave periods are not evaluated within the scope of ‘other leaves granted by employers' in paragraph ‘j' of Article 55 of the Turkish Labor Code constitutes a violation of the principle of interpretation in favour of the employee and equity. Therefore, the periods spent on pandemic unpaid leave should also be taken into account in the calculation of annual leave and severance pay.

Footnotes

1. The Decision of the 9th Civil Chamber of the Court of Cassation dated 27.03.2007, with the Merits No. 2007/512 and Decision No. 2007/8589.

The Decision of the 9th Civil Chamber of the Court of Cassation dated 28.09.2010, with the Merits No. 2008/37785 and Decision No. 2010/26248

The Decision of the 9th Civil Chamber of the Court of Cassation dated 24.02.2016, with the Merits No. 2014/30839 and Decision No. 2016/3851

The Decision of the 9th Civil Chamber of the Court of Cassation dated 24.06.2020, with the Merits No. 2016/18182 and Decision No. 2020/6283

2. The Decision of the Bursa 3rd Civil Chamber of the Regional Court of Justice dated 15.10.2020, with the Merits No. 2020/1101 and Decision No. 2020/1812

The Decision of the Samsun 8th Civil Chamber of the Regional Court of Justice dated 12.11.2020, with the Merits No. 2020/1092 and Decision No. 2020/1821

3. The Decision of the 22th Civil Chamber of the Court of Cassation dated 15.12.2016, with the Merits No. 2015/14166 and Decision No. 2016/27808

4. The Decision of the 9th Civil Chamber of the Court of Cassation dated 26.05.2004, with the Merits No. 2004/1373 and Decision No. 2004/12579

5. The Decision of the 22th Civil Chamber of the Court of Cassation dated 03.12.2018, with the Merits No. 2018/15472 and Decision No. 03.12.2018

6. The Decision of the General Assembly of Civil Chambers of the Court of Cassation dated 16.11.1983, with the Merits No. 1981/9-1067 and Decision No. 1983/1169

7. The Decision of the 9th Civil Chamber of the Court of Cassation dated 14.7.2011 , with the Merits No. 2010/50993 and Decision No. 2011/27305

8. The Decision of the 9th Civil Chamber of the Court of Cassation dated 12.2.2014, with the Merits No. 2011/53179 and Decision No. 2014/4204

9. The Decision of the Sakarya 11th Civil Chamber of the Regional Court of Justice dated 23.3.2022, with the Merits No. 2022/542 and Decision No. 2022/542

10. Decision of the Bursa 3rd Civil Chamber of the Regional Court of Justice dated 26.4.2023, with the Merits No. 2023/834 and Decision No. 2023/954

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.