LEGAL ASSESSMENT IN TERMS OF COVID-19 LABOR-EMPLOYER RELATIONSHIP
Undoubtedly, workers and employers were the group most affected by this process. As a result of the continuation of the epidemic disease increasing day by day, the business relations of the employers who also have foreign relations have been interrupted; public resting places with circulars, theater, cinema, show center, concert hall, engagement / wedding hall, musical / musical restaurant / cafe, casino, pub, tavern, coffeehouse, coffee house, cafeteria, country garden, hookah lounge, hookah cafe, Internet hall, internet cafe, all kinds of game halls, all kinds of indoor children's playgrounds (including shopping malls and restaurants), tea gardens, association clubs, amusement park, swimming pool, Turkish bath, sauna, spa, massage parlor, SPA and sports centers Employers were forced to make a choice as the works stopped after it was closed without specifying a time. At this point, we will explain how the employer should follow the legal regulations that have come into force due to the current and this special situation.
First of all, important innovations have been made in the field of labor law with the "Law on Reducing the Effects of the New Coronavirus (Covid-19) Epidemic on Economic and Social Life and Amending Some Laws" numbered 7244 published in the Official Gazette dated 17.04.2020 and numbered 31102.
With the Provisional Article 10 added to the Labor Law numbered 4857, "Regardless of whether it is within the scope of this Law or not, all kinds of work or service contracts are under subparagraph (II) of the first paragraph of Article 25 and other laws for three months from the effective date of this article. can not be terminated by the employer except for the cases that do not comply with the rules of ethics and goodwill specified in the provisions and similar reasons.
The point that should be considered in this new regulation is not only subject to 4857 numbered Labor Law, but also a regulation covering employees subject to Maritime Labor Law numbered 854, Press Law number 5187 and Turkish Code of Obligations numbered 6098.
In this case, no employer shall be charged with Labor Law Except for the situations in sub-clause 25/1-II, he will not be able to terminate the work contract of his worker.
1.1. What are the legal opportunities that the employer can use against the termination ban?
- FREE LEAVE: Previously, you could take your worker on leave for free, provided that he obtained his consent. With the new regulation, as of 17.04.2020, you can take your workers on unpaid leave for three months, since you do not have the possibility of termination. Unpaid leave, in short, "suspension of contractual obligations" because the worker does not fulfill the duty of work; The employer was freed from payment debts such as paying salaries and paying SSI premiums during the suspension period. For this reason, if it is determined that the worker is working during the unpaid leave phase, an administrative fine will be imposed in accordance with the new Law No. 7244. Another point to be considered here is that if the employee terminates his contract by using unpaid leave, this will not constitute a justified termination.
- SHORT-TIME WORK: During the Corona Virus (Covid-19) process, the best opportunity provided to workers by the State has been short-time work allowance. Short Work Allowance Application, general economic, sectoral, regional crisis or in the presence of any compelling reasons, temporarily "at least one-third reduction of the weekly working hours in the workplace" or "cessation of activity in the workplace for at least four weeks without seeking continuity" is an application that provides income support to the insured for the period they cannot work for a period not exceeding three months in the workplace. You must submit the documents that prove that one of the above conditions has been fulfilled, the list of workers you want to benefit from, the application date range to the e-mail of the İŞKUR unit you are affiliated with. The most important innovation brought by the law numbered 7244 on this matter is the temporary article 25 added to the Unemployment Allowance Law No.4447: "For the short work applications made by employers with a compelling reason due to the new coronavirus (Covid-19), the employers' statement without waiting for the completion of the eligibility determination. Short work payment is made in line with this. In this case, only your application is sufficient and the workers will benefit from the short work allowance without waiting for the eligibility result. However, the institution has a right of recourse to the employer due to incorrect information given here.
- REMOTE WORK: If you are not one of the businesses that have been suspended by circulars and you continue your work, you can use the "Remote Work" facility regulated in Article 14 of the Labor Law No. 4857. According to the relevant article "Working remotely; It is a business relationship established in writing based on the principle that the employee fulfills his / her job of doing work at home or outside the workplace with technological communication tools within the scope of the work organization created by the employer. " According to the law, these contracts contain "the description of the job, the way it is done, the duration and place of the work, the matters regarding the payment of wages and wages, the equipment provided by the employer and the obligations regarding their protection, the employer's communication with the worker, and the provisions regarding general and special working conditions." In these cases, when an unpredictable situation arises, there is an adaptation of the contract between you and this situation can be compared to the adaptation of the contract foreseen in article 138 of the TPC.
- COMPENSATION WORK: Regulated in Article 64 of the Labor Law No.4857 and in cases such as an epidemic where work is stopped due to compulsory reasons, it can be applied for a period of two months in cases where the work is significantly below normal working hours or completely suspended, while the legal With the changes, employers can now make compensatory work for periods not worked within four months. In order for the employer to have this work done, the consent of the worker is not required. However, this issue does not eliminate the obligation of notifying the date of work and for what reason compensatory work will be performed according to the Current Working Times Regulation. Compensatory work for more than three hours a day cannot be anticipated.
- ANNUAL LEAVE: If your employee has accumulated annual leaves, they may be dissolved in this process. It is possible to use these periods primarily for workers who have the right to annual leave within the framework of the administrative right of the employer.
1.2. What is the Sanction for the Employer to Dismiss the Worker in Not Complying with this Prohibition?
As a result of the amendment brought by Law No. 7244, the employer or employer's representative who terminates the employment contract of the employee against the prohibition will be given an administrative fine equal to the monthly gross minimum wage on the date of the act for each employee whose contract is terminated. Employers can enter their SGK exits retrospectively for 10 days as of 17.04.2020. If you make a retrospective notification in this way and cannot prove with your written documents that the employment contract was actually terminated before 17.04.2020, you will be subject to an administrative fine.
As a result, we recommend that you send your workers on unpaid leave without firing even if your activity is completely stopped or your activity is not terminated and reduced during this process. The consent requirement for unpaid leave has also been abolished by Law No. 7244, and it will not make the employee's unpaid leave a just cause for termination. In this process, we recommend that you apply for short-time work allowance without delay. Because now, direct payments will be made by declaration. In addition to this, another right granted to the employee is the workers who are given unpaid leave by the employer and cannot benefit from the short-time work allowance and the workers whose employment contract is terminated after 15.03.2020 and cannot benefit from unemployment allowance, provided that they do not receive old-age pension from any social security institution and not exceed the 3-month period that cannot be terminated. a monthly payment of 1,177 TL from the unemployment fund for the period of unpaid leave or unemployment during this period.
2. LEGAL NATURE OF THE ACCIDENTS OCCURRED IN THIS PROCESS
2.1. One of the most curious issues of employers in this process is whether the accidents that happen to the workers during the time period of not being at work will be considered as work accidents. In order for the accident to be defined as a "work accident", there must be some common elements. The first common element of these; the accident occurs with an external effect. Latter; It is the requirement that the appropriate causal link exists between accident and harm and between accident and work carried out by the employer. In addition, the appropriate causal link should not be cut by the gross fault or intent of the worker or third party (another worker or a third person) or by force majeure. In this context, if the causal link is not cut, it is possible that the accident that occurs within the scope of the Law No. 5510 can be qualified as a "work accident" and the employer can be held responsible.
When we look at the 13th article in which the work accident of the Law numbered 5510 is defined;
- While the insured is at the workplace,
- Due to the work carried out by the employer, if the insured works independently on his behalf and account, due to the work he carries out,
- When the insurance holder, who works under an employer, is sent to another place other than the workplace as an officer,
- The breastfeeding female insurance holder within the scope of item (a) of the first paragraph of Article 4 of this Law, at the times allocated to breastfeed her child as per labor legislation,
- It is defined as an event that occurs during the departure and return of the insured to the place where the work is carried out by a vehicle provided by the employer and causes the insured person to become physically or mentally disabled immediately or later.
3 / g of the Occupational Health and Safety Law No. Article "occupational accident" is defined as follows: It is an event that occurs in the workplace or due to the execution of the business, causing death or making the body integrity mentally or physically disabled.
During the Corona virus (Covid-19) process, some of the employees go to work from home, while some continue to work physically with some regulations stipulated by the workplace.
In this context, if the employer and the employee jointly decide to work remotely pursuant to Article 14 of the Labor Law, the "home" of the worker is considered the workplace. In these cases, whether the accident experienced by the worker will be a work accident will vary depending on the concrete event. For example; If the worker is a weaving master, the accident that happened to him while he was "running his job" when he was provided with his tools and equipment and continued to work from home can be considered as a work accident. In order to get rid of this responsibility, the employer has to fulfill the obligations specified in Article 4 titled "General Obligation of the Employer" of the Occupational Health and Safety Law No. 6331. These;
- To prevent occupational risks, to take all kinds of measures, including training and information, to organize, to provide the necessary tools and equipment, to adapt health and safety measures to changing conditions and to work to improve the current situation,
- To monitor and audit whether the occupational health and safety measures taken in the workplace are followed and ensure that nonconformities are eliminated,
- To make or have a risk assessment,
- Considering the employee's suitability for work in terms of health and safety,
- To take the necessary precautions to ensure that employees other than those who are given sufficient information and instructions do not enter places with life and special danger.
In Article 13 of the Occupational Health and Safety Law, "Employees who are faced with serious and imminent danger may apply to the board, and in workplaces where the board is not available, request the determination of the situation and the decision to take the necessary measures." "To inform the employer or employee representative immediately when they encounter a serious and immediate danger in terms of health and safety in the machines, devices, tools, equipment, facilities and buildings in the workplace and when they see a deficiency in the protection measures." With such regulations, it is obliged to inform the worker immediately when they sense a dangerous situation. If the employee makes this notification but the employer does not take the necessary precautions, the employee may terminate the employment contract for justified reason according to the 24th article of the Labor Law.
The employer who takes the necessary precautions at the workplace and fulfills all his duty of attention and care, will be able to benefit from Art.21 of Social Insurance and General Health Insurance Law No.5510: "The principle of inevitability is taken into consideration in determining the responsibility of the employer."
What does the principle of inevitability mean is that the Social Insurance Transactions Regulation published in the Official Gazette No. 27579 dated 12.05.2010. 45/3. in the paragraph; "Inevitability principle is taken into consideration in determining the employer's responsibility. Inevitability is the occurrence of a work accident or occupational disease despite all the precautions to be taken in accordance with the scientific and technical rules valid at the time of the event. If the employer has not taken any necessary measures, it cannot be said that the incident is inevitable. " It is explained as.
It is necessary to examine the decisions of the Supreme Court of Appeals made in the past in order to shed light on the lawsuits to be filed in the future. The Corona virus (Covid-19) process is much more important, especially in the context of workers working in the transport industry. In this process, logistics, land, air and sea transportation activities have not stopped, and have increased even more due to the transportation of the health equipment and limited trade. As a matter of fact, in the decision below, it is accepted that the worker who died of swine flu while on the job had an "work accident". If a similar situation occurs during the Covid-19 process - although each situation should be evaluated on its own terms - an assessment similar to the one below is highly likely.
In the decree of the 21st Civil Chamber of the Supreme Court of Appeals dated 15.04.2019 and numbered 2018/5018 E. and 2019/2931 K. "The plaintiff, the murderer ... has requested that the determination of the death of a work accident on 26/12/2009, and the cancellation of the Institution action in the opposite direction ... The fact that the law qualifies the occupational accident as an event causing damage to the insured is an element of the work accident. as required to be handled. However, what is sought here is the "appropriate causality" link, and this should be understood as the overlap of the realization and the result in any of the situations and situations that the law seeks, and although it is not in the law, the existence of any other restrictive condition should not be sought. In short; the mentioned legal arrangement should be evaluated within the principles of social security law; If there is conformity to any situation in the article, a narrow interpretation should not be made in evaluating whether the source of the damaging insurance incident is a worker or other factors in its occurrence. (HGK 2009 / 21- 400 Main, 432 Decision) In the present case, truck driver that the plaintiff Murie of by the defendant employer Date 26.11.2009 was sent to an expedition to Ukraine, which entered Turkey on 11.12.2009, at the Forensic Medicine Institute report, the H1N1 virus It has been reported that the incubation period varies between 1-4 days and if the complaints of the muris stated in his application to the hospital dated 13.12.2009 are the initial symptoms of the disease, the transmission of the disease will have occurred 1-4 days before this date, accordingly, the plaintiff's murderer will go to Ukraine due to the work carried out by the employer. Due to the H1N1 virus, which is understood from the scope of the report mentioned above, that it was transmitted during the expedition, it is clear that the death that occurred later should be considered as a work accident ...
In the Social Insurance and General Health Insurance Law No.5510, "Occupational disease is defined as a temporary or permanent illness, physical or mental disability conditions that the insured suffered due to a recurring reason or due to the nature of the work that the insured is working or doing."
In the Regulation on Determination of Work Power and Loss of Earning Power in Profession, which was published in the Official Gazette No. 27021 dated 11.10.2008, it is clearly stated which diseases are considered occupational diseases. However, in the same regulation, it is stated that other communicable diseases that are not clearly included in the regulation but that are determined to be transmitted due to work and duty will be considered as occupational diseases. For example; Of course, the emergence of a disability by a healthcare worker suffering from Covid-19 disease and therefore holding a permanent disease can of course be considered an occupational disease.
As a result, the symptoms of Corana virus (Covid-19) can occur after about 14 days, according to our current knowledge. For this reason, it seems difficult to evaluate whether a person contracting the virus constitutes a work accident or not, according to our current knowledge of the disease. It is a fact that it is difficult to define an employee's capture with Covid-19 directly as a work accident or occupational disease, and it is a fact that it will have to be evaluated on the basis of every concrete incident.
- İbrahim AYDINLI, İş Sağlığı ve Güvenliğinden Doğan Hukuki ve Cezai Sorumluluk, Seçkin Yayınları, Ankara,
- Presidential Circular, 20.03.2020, (https://www.mevzuat.gov.tr/MevzuatMetin/CumhurbaskanligiGenelgeleri/20200320-3.pdf).
- Interior ministry circular, 16.03.2020, (https://www.icisleri.gov.tr/81-il-valiligine-koronavirus-tedbirleri-konulu-ek-genelge-gonderildi).
- Interior ministry circular, 22.03.2020, (https://www.icisleri.gov.tr/65-yas-ve-ustu-ile-kronik-rahatsizligi-olanlara-sokaga-cikma-yasagi-genelgesi)
- Ministry of Trade, General Directorate of Domestic Trade, Şirketlerin Genel Kurul Toplantılarına İlişkin Açıklama, 20.03.2020, (https://icticaret.ticaret.gov.tr/haberler/sirketlerin-genel-kurul-toplantilarina-iliskin-aciklama).
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- 17 April 2020 Friday