• Workplace Practices
  • December 23, 2016
  • Law Firm: Erdem Erdem Law Office - Istanbul Office
  • The labor law is a branch of law in which the freedom of contract principle is limited in favor of the employees. The Constitution, Labor Law numbered 4857 ("Labor Law"), Occupational Health and Safety Law and relevant legislation, collective labor agreements, as well as jurisprudence, restrict freedom of contract. Our legislation has many provisions that protect employees, and one may say that the jurisdiction generally adjudges in favor of employees. Employees and the employers may freely determine the conditions of their labor relations, provided that the provisions are not contrary to mandatory rules of law. Furthermore, employees may make claims, even if they are not stated either in their employment contract or in the legislation or in jurisprudence. A right to claim may originate through workplace practices. In this article, information in light of Court of Cassation Decisions concerning workplace practices’ characteristics, how they become part of working conditions, the impossibility of cancellation of workplace practices without the consent of employees, as well as employers’ and employees’ termination right will be addressed. The approaches that employers may consider while implementing such practices will also be expressed.

    Workplace Practices

    Workplace practices are actions that are realized and repeated by employers’ initiative within the scope of employer’s management rights, even though they are not regulated by law, collective agreement, or employment contract. There is no any legal regulation determining how many occurrences constitute an action to be considered as a workplace practice. However, the general opinion is to repeat the application for at least three years, consecutively[1]. Nevertheless, each case must be evaluated by its own merits. The most important parameter, herein, is whether or not the employer's statement or action places expectations on the employees.

    These consistent actions can be granted, collectively, as well as to various employees who have equal status. While granting these, the employers must treat equally to the employees who have equal status pursuant to his/her responsibility of equal treatment. Therefore, unless the employer has a valid reason, s/he must not discriminate[2].
    In order to consider an action as a workplace practice, it must be proven that the implementation shall not be realized inadvertently or as a result of a misunderstanding by the employer.

    Bonuses, or any type of fringe benefits or severance payment, after passing public personnel selection examination and leaving the job[3], which are provided to employees, unilaterally, by the employer could be considered as an example as workplace practices.

    Workplace Practices Becoming Working Conditions

    The legislations that determine working conditions are: Constitution, laws, collective labor agreements, individual employment contracts, personnel regulation, other similar resources, and workplace practices[4]. Workplace practices, actions regulated in the workplace by the employer without any legal and contractual obligation, are effective in determining working conditions[5]. These practices are different in every workplace and are put in place at the employer's initiative. Employers should be prudent while implementing their decisions because when these actions are repeated, they become binding, since the implicit consent of the employees is deemed to have been taken. Thus, the employees will have right to claim the application in the fourth year.

    Impossibility to Cancel Workplace Practices Unilaterally

    These applications that emerge through the employers’ unilateral actions cannot be cancelled by the employer’s unilateral decisions[6]. Since these workplace practices become working conditions, the removal of the workplace practice shall mean the amendment in employees’ working conditions and, pursuant to Labor Law Article 22, the essential amendments made by the employer shall be valid only if the employee is informed, and his/her written consent is obtained within 6 working days.

    Although making amendments in the working conditions of the employees is directly related to the employer’s managerial right, the employer is not actually free to utilize this right. Managerial rights can be effective regarding gaps that are not regulated clearly in legislation, collective labor agreement, or employment contacts that are applied in the workplace[7]. Therefore, in line with Article 22, without the employees’ written approval, the removal of the workplace practice shall not be binding upon the employee.

    Employer’s Right of Termination

    In the event that the employee does not accept the proposed amendment, the employer may terminate the employee’s employment contract by respecting the prior notice periods, paying his/her severance payment, provided that s/he provides, in writing, a consent that the proposed amendment is based on justifiable grounds[8]. Within this scope, the jurisprudence states that as an example, the cancellation of bonus payments is an essential amendment of the employment contract and the working conditions, and shall be evaluated in accordance with Article 22[9].

    Employee’s Right of Termination

    In the event that a workplace practice is removed without the written consent of the employee, and the employer did not terminate the contract, the employee may terminate the contract him/herself pursuant to Article 24/II/f of the Labor Law with just cause and with immediate effect, as the removal of workplace practice is deemed as an amendment of working conditions as mentioned, above.

    Various Approaches

    It is stated in the doctrine that if employers require that its employees must fulfill several conditions to benefit from various implementations; these cannot be deemed as workplace practices. Likewise, in the event that the employers reserve their right to withdraw the practice, consequent actions do not transform into workplace practices because in the existence of a reservation regarding a right of withdrawal, and/or not to make payment, an action cannot be binding.

    However, the Court of Cassation has contradictory decisions regarding working conditions and workplace practices. In one of its decisions, it accepted that the subject workplace practice was removed since the employers did not object to the non-performance of the practice for two consecutive years. Court of Cassation decided that the employees’ claim at the time of the termination of the contract is contrary to the good faith principle[10]. However, the Court of Cassation has quitted this approach.

    In addition, the employers frequently use the termination right pursuant to Article 22 to enforce the principle of termination as a last remedy because if the employee does not accept the proposed amendment, there is no choice for the employer but to terminate the contract. In this manner, the employer adheres to the principle of termination as a last remedy, and perchance the employee may accept the amendment, and thus, no need to terminate the contract.

    Conclusion

    The employers should be aware that the actions they decide to implement in line with their management right, unilaterally, cannot be removed through their unilateral consent. The gestures they make in good faith can be irrevocable. Within this scope, employers should reserve their right of withdrawal while granting implementations and they should obtain their employee’s written consent when they decide to remove a workplace practice. In the event that they cannot obtain the written consent of the employee, they may terminate the employment contract respecting the regulations governing severance payment and notification period. In the event that they do not terminate the contract, but remove the workplace practice, the employee has the right to terminate the contract and claim for the workplace practices.

    [1] Decision of General Chamber of Court of Cassation dated 05.02.2003 and numbered 2003/9-11 E, 2003/54 K. may be given as an example.
    [2] Decision of 7th Chamber of Court of Cassation dated 08.02.2016 and numbered 2016/2543 E., 2016/2024 K. may be given as an example.
    [3] Decision of 7th Chamber of Court of Cassation dated 09.03.2016 and numbered 2015/6469 E., 2016/5798 K. may be given as an example.
    [4] Decision of 7th Chamber of Court of Cassation dated 16.03.2016 and numbered 2015/43401 E., 2016/6392 K. may be given as an example.
    [5] Mollamahmutoǧlu, Hamdi, Is Hukuku, Ankara 2005 2.Basi s. 59.
    [6] Decision of General Chamber of Court of Cassation dated 27.2.2013 and numbered 2012/9-1166 E., 2013/279 K. may be given as an example.
    [7] Decision of 7th Chamber of Court of Cassation dated 16.03.2016 and numbered 2015/43401E., 2016/6392 K. may be given as an example.
    [8] For more information: http://www.erdem-erdem.com/en/articles/pursuant-to-article-22-of-labor-code-no-4857-change-in-working-conditions-and-termination-of-employment-contract/ (Accessed on 31.07.2016).
    [9] Decision of 9th Chamber of Court of Cassation dated 22.03.2016 and numbered 2016/4030 E., 2016/6861 K. may be given as an example.
    [10] Decision of 9th Chamber of Court of Cassation dated 20.02.2003 and numbered 2002/14254 E., 2003/2020 K. may be given as an example.