The coronavirus outbreak (also known as COVID-19), which has affected the whole world, continues to be at the top of the agenda in our country. The effects of this pandemic, which has been declared a “pandemic” by the World Health Organisation, continue to have an impact on the legal field and measures are being taken to reduce the effects of the pandemic. In this context; this short information note has been prepared regarding some information that may eliminate the uncertainties that the pandemic may cause in terms of the Turkish Legal System.
I. EFFECTS IN TERMS OF ENFORCEMENT AND BANKRUPTCY LAW
Pursuant to Article 330 of the Enforcement and Bankruptcy Law No. 2004 (“EBL”); “In the event of an epidemic, a public calamity or war, enforcement proceedings may be suspended for a certain period of time in favour of a part of the country or some economic groups by the decision of the President.”. Pursuant to the aforementioned provision, within the scope of the measures taken against the corona virus epidemic, which continues to spread rapidly in our country, with the Presidential Decree No. 2279 in the Official Gazette dated 22 March 2020 and numbered 31076, except for enforcement proceedings regarding alimony receivables until 30 April 2020;
To suspend all execution and bankruptcy proceedings being carried out throughout the country,
In this context, party and follow-up procedures are not carried out,
No new requests for execution and bankruptcy proceedings are received and
It is decided not to execute and enforce the interim attachment decisions.
II. EFFECTS ON LABOUR LAW
It is obvious that the COVID-19 pandemic, which has become an agenda all over the world, has effects on the employer-employee relationship as well as daily life. First of all, it should be noted that; in accordance with Article 4 of the Occupational Health and Safety Law No. 6331, one of the main obligations of the employer is to ensure the occupational health and safety of employees. Accordingly, it is the employer’s obligation to inform employees about the outbreak; to ensure that hygiene products such as soap, cologne and hand sanitiser are available in sufficient number and continuously in the workplaces; and to ensure the cleanliness of the workplace and ventilation of the working environments. The effects of the pandemic on factors such as permits, working order and duration are evaluated under the main headings below:
1. Remote Working
The first practice recommended by experts in terms of preventing the rapid spread of the corona virus epidemic is social isolation. In this context, in order to respond to the call of experts to “Stay at Home”, many employers have recently enabled their employees to switch to a remote working model. The concept of teleworking is defined in Article 14 of the Labour Law No. 4857 (“Labour Law”) and according to this provision, teleworking is the employment relationship established in writing and based on the principle that the employee performs his/her work at home or outside the workplace through technological communication tools within the scope of the work organisation established by the employer.
2. Paid Leave Application
The concept of paid leave is also a concept addressed in the Labour Law; annual paid leave is granted to employees who have worked for at least one year, including the probationary period, from the day they start working at the workplace. In addition, it is not possible to give up the right to annual paid leave. In terms of the personnel who are entitled to paid leave; it is also possible to use annual paid leave. When the annual leave can be used during the year is determined by the employer and the employer must use this right within the framework of good faith rules. Employers are required to notify the employee in writing of the date range to be used for annual leave.
3. Collective Leave Application
Article 10 of the Regulation on Annual Paid Leave, which entered into force after being published in the Official Gazette dated 3 March 2004 and numbered 25391, enables the employer to apply collective leave covering all or some of the employees between the beginning of April and the end of October. Therefore, it is also possible to apply this practice as of April, at the discretion of the employer, according to the conditions of the day. When this practice is applied, the leave board established by the employer arranges and announces the leave schedules according to certain conditions in a way to show the end of the leave period of each employee.
4. Unpaid Leave Application
In the Labour Law, unpaid leave application is only regulated in terms of; granting unpaid leave to a female employee upon her request for 6 months from the end of her maternity leave and to one of the spouses who adopt a child under 3 years of age, granting unpaid travel leave up to 4 days to the employee who certifies that he will use his annual leave outside the workplace.
However, apart from these two cases, it is also possible to suspend the employment contract with unpaid leave if the parties to the employment contract reach a mutual written agreement. At this point, it should be noted that it is not possible for the employer to take unpaid leave with a decision made by himself. The employer’s taking the employee on unpaid leave without the consent of the employee is considered as an active termination of the employment contract within the scope of the jurisprudence of the Court of Cassation. If the consent of the employee is not obtained, there is a risk of facing a reinstatement lawsuit and ultimately paying a compensation of 8-12 (eight to twelve) salaries. In order to eliminate this risk, in order to grant unpaid leave to the employee, the employer must make an unpaid leave offer to the employee and obtain written approval from the employee within six (6) working days.
5. Application of Short-Time Working Allowance
Another method that has recently come to the agenda more frequently with the rapidly spreading COVID-19 pandemic is the “short-time working practice” and “short-time working allowance”. The short-time working practice covers the cases where the weekly working hours in the workplace are temporarily reduced by at least one third due to general economic, sectoral, regional crisis or compelling reasons, or the activities in the workplace are completely or partially stopped for at least 4 (four) weeks without the condition of continuity. In this case, insured persons who meet the conditions of unemployment insurance are provided with income support not exceeding three (3) months for the period they cannot work. This period can be extended up to six (6) months with the Presidential decision.
6. Compensatory Work
Pursuant to Article 64 of the Labour Law; in cases where the work is stopped due to compulsory reasons, the workplace is closed before or after national holidays and general holidays, or the workplace is significantly below the normal working hours or completely closed due to similar reasons, or the employee is given leave upon the request of the employee, it is regulated that the employer may have compensatory work for the periods not worked within 2 (two) months (within the scope of the action plan announced on 18.03.2020, this period has been extended to four (4) months). In this context, if compensatory work is made for the days not worked due to the COVID-19 outbreak, the work done within this scope will not be considered overtime work or overtime work. In practice, compensatory work should not be more than three (3) hours a day, provided that the maximum daily working time of eleven (11) hours is not exceeded, and compensatory work should not be done on holidays.
7. Termination of the Employment Contract within the Scope of Compelling Reasons
Article 25, Paragraph 3 of the Labour Law No. 4857 stipulates that the employer may terminate the employment contract for just cause after the expiry of one week in the event of a compelling reason (force majeure) that prevents the employee from working for more than one week. What is important in practice in terms of this provision is that the force majeure occurs not in the workplace, but in or around the employee himself/herself. In this context, in the doctrine and the relevant Court of Cassation decisions, situations such as the interruption of transportation due to natural events such as floods, snow, earthquakes, the prohibition of leaving the region due to epidemics, curfew, quarantine are considered as compelling reasons within the scope of the termination of the employment contract by the employer.
8. Termination for Valid Reason
If the termination of the employment relationship for valid reasons is considered, although it can be argued that the sector has been adversely affected due to business requirements, economic difficulties and in addition to these, due to the principle of last resort, in a possible dispute, the court will consider the fact that the employment relationship between the employee and the employer should be continued uninterruptedly and that a positive result has not been achieved despite the fact that all measures have been taken for this requirement. In this case, first of all, as we have stated above, the fact that the options of remote working, offering different positions, taking annual leave, offering unpaid leave or applying short-time working allowance have been applied in the workplace and still no solution has been reached will make the termination valid. Even in this case, and at all times, there may be a risk of reinstatement proceedings and ultimately the payment of compensation of 8-12 salaries.
III. IMPLICATIONS FOR TAX PRACTICES
On 18 March 2020, within the scope of the Economic Stability Shield announced at the Anti-Corona Virus Coordination Meeting held under the chairmanship of President Recep Tayyip Erdoğan; April, May and June payments of withholding tax and VAT withholding and SSI premiums for Retail, Shopping Mall, Iron-Steel, Automotive, Logistics-Transportation, Cinema-Theater, Accommodation, Food-Beverage, Textile-Apparel and Event-Organisation sectors were postponed for 6 months each, it was decided not to apply the accommodation tax until November, and the VAT rate was reduced from 18% to 1% for domestic airline transportation for 3 months.
In addition; In order for the taxpayers directly affected by the corona virus epidemic and the measures taken within this scope to benefit from the force majeure provisions of the Tax Procedure Law No. 213, the Ministry of Treasury and Finance (Revenue Administration) issued the General Communiqué on Tax Procedure Law (Sequence No: 518), which entered into force after being published in the Official Gazette dated 24.03 2020 and numbered 31078. In this context, the taxpayer groups that will benefit from force majeure are classified under the following headings:
Retail Trade and Shopping Centres,
Iron, Steel and Metal Industry,
Automotive Manufacturing and Trade and Parts and Accessories Manufacturing for Automotive Industry,
Logistics and Transport, including Warehousing Activities,
Artistic Services such as Cinema and Theatre,
Accommodation Activities Including Tour Operators and Travel Agencies
Food and Beverage Services Including Restaurants and Cafeterias
Textile and Apparel Manufacturing and Trade
Event and Organisation Services
Health Services
Furniture Manufacturing
Mining and Quarrying
Construction
Industrial Kitchen Manufacturing
Car Hire and
Printed Publication and Printing
IV. EFFECTS ON THE JUDICIAL PROCESS
In addition, pursuant to Provisional Article 1 of the Law No. 7226 on the Amendment of Certain Laws published in the repeated issue of the Official Gazette dated 26 March 2020 and numbered 31080; in order to prevent loss of rights in the judicial field due to the corona virus outbreak in our country;
All periods regarding the birth, use or termination of a right, including the periods for filing a lawsuit, initiating enforcement proceedings, application, complaint, objection, warning, notification, submission and statute of limitations, forfeiture periods and mandatory administrative application periods; from 6 January 1982 dated 2577 numbered Code of Administrative Procedure, 4 December 2004 dated 5271 numbered Code of Criminal Procedure, 12 January 2011 dated 6100 numbered Code of Civil Procedure and other laws containing procedural provisions and the periods determined for the parties and the periods determined by the judge within this scope and the periods in mediation and conciliation institutions from 13 March 2020 (including this date), The periods specified in the Enforcement and Bankruptcy Law dated 9 June 1932 and numbered 2004 and other laws on enforcement and bankruptcy proceedings and the periods determined by the judge or enforcement and bankruptcy offices within this scope; All enforcement and bankruptcy proceedings, parties and proceedings, receipt of new enforcement and bankruptcy proceedings requests, execution and execution of precautionary attachment decisions, except for enforcement proceedings regarding alimony receivables, have been suspended from 22 March 2020 (including this date) until 30 April 2020 (including this date). These periods start to run from the day following the day on which the suspension period ends. As of the date the suspension period starts, the periods that are fifteen days or less from the end of the suspension period shall be extended by fifteen days starting from the day following the day the suspension period ends. In the event that the pandemic continues, the President of the Republic shall be authorised to extend the suspension period once for a period not exceeding six months, and the President of the Republic shall also be authorised to narrow the scope of this period.
However; the following periods are excluded from the scope of this article:
The statute of limitations for crimes and punishments, misdemeanours and administrative sanctions, disciplinary imprisonment and restraint imprisonment,
5271 numbered Criminal Procedure Law regulated in the duration of the protection measures,
6100 numbered Code of Civil Procedure regulated in the interim injunction periods related to the transactions that complete,
2004 numbered Execution and Bankruptcy Law and other laws related to the follow-up law;
In the event that the sale day announced by the enforcement and bankruptcy offices regarding the goods or rights is within the suspension period, a sale day is given by the enforcement and bankruptcy offices without seeking a new request after the suspension period for these goods or rights. In this case, the sale announcement is made only in electronic environment and no fee is charged for the announcement,
Payments made voluntarily during the cooling-off period shall be accepted and either party may request that proceedings in favour of the other party be taken,
The consequences of the concordat suspension for the creditor and debtor shall continue during the suspension period,
Other necessary measures shall be taken in order to prevent disruption of execution and bankruptcy services.
Finally, all other measures to be taken during the suspension period, including the postponement of hearings and negotiations, and the procedures and principles regarding these measures are determined by the relevant Council of Presidents for the Court of Cassation and Council of State, the Council of Judges and Prosecutors for the first instance judicial and administrative judicial authorities and regional courts of justice and regional administrative courts, and the Ministry of Justice for the justice services.
MOST ASKED QUESTIONS
Does the coronavirus outbreak constitute ‘force majeure’?
What is force majeure? “Force majeure is an extraordinary event that occurs outside the activity and operation of the responsible or debtor, which leads to the violation of a general norm of behaviour or obligation in an absolute and inevitable manner, which cannot be foreseen and resisted (Eren, F.: Obligations Law General Provisions, Ankara 2017, p. 582). Natural disasters such as earthquakes, floods, fires, epidemics are considered force majeure.”
As defined at the top, a disease declared a pandemic can easily constitute force majeure. Unfortunately, the lawyers of some organisations declare that there is no force majeure even in the current terrible state of the world. In an environment where people cannot even leave their homes, it is not possible for them to continue their business life as if nothing had happened.
If the corona virus is a force majeure, how will this situation affect commercial activities and all kinds of legal contracts?
First of all, it should be noted that accepting the corona virus as a force majeure does not mean that it will be accepted “all over the world”. For example, if the disease has not spread to the African continent, it does not affect trade between countries in the African continent. However, it affects trade between an African country and Italy where the disease is prevalent. However, for those where the disease is active but there is no impossibility of performance (impossibility to fulfil the obligation), the obligations must be fulfilled in accordance with the “rule of good faith”. For those who are in a place where the disease is active, although there will be no problem of proof against the claim that the obligation is not fulfilled, it is important not to disrupt the obligations in accordance with the rule of good faith.
Can a state of emergency be declared due to the coronavirus?
Yes, it can. Articles 119 and 120 of the Constitution of the Republic of Turkey regulate the circumstances under which the Council of Ministers, which will convene under the chairmanship of the President of the Republic, may declare a state of emergency.
Accordingly, in cases of natural disasters, dangerous epidemics or severe economic depression, a state of emergency may be declared for a period not exceeding six months in one or more regions or the whole country.
As a matter of fact; State of Emergency was declared in countries such as the USA, Italy and Spain due to the corona virus. Although the declaration of a state of emergency may create a more time-saving environment in terms of legal procedures, it is now a phobia in Turkey. Of course, it is not necessary to declare a state of emergency in terms of the measures to be taken against the disease. However, considering that the disease is increasing rapidly and exponentially, if the numbers reach an unstoppable point, the declaration of a state of emergency will be on the agenda.
Are we obliged to report someone suspected of having the coronavirus?
Yes, the law imposes such an obligation on us:
Article 432 of the Turkish Civil Code:
Every adult person who poses a danger to the society due to mental illness, mental weakness, alcohol or drug addiction, severe dangerous infectious disease or vagrancy shall be placed in a suitable institution for his treatment, education or rehabilitation or may be detained if his personal protection cannot be provided in any other way. Public officials who learn of the existence of one of these reasons while performing their duties are obliged to immediately notify the competent guardianship authority.
Can a person infected with the coronavirus be punished?
Yes, if he intentionally infects. According to criminal law, for an offence to occur, the moral element must be fulfilled, i.e. the presence of ‘intent’. If a person is aware that he or she has the coronavirus (e.g. if he or she has tested positive) and infects another person with the disease, the offence of “intentional killing or wounding” will arise. Of course, in practice, it is not possible to talk about such a situation at this stage, since the person with corona virus is immediately quarantined. However, completely different situations may arise in the future when the number of cases increases. However, if the person is aware that he/she is carrying the symptoms of the coronavirus and has not taken the necessary precautions, if he/she infects someone else, this time “injury/killing with probable intent” may come to the fore. It is our civic duty to take all possible measures to keep the disease under control.
Is the person who does not comply with the quarantine rules penalised?
Yes. He/she will be punished. Article 195 of the Turkish Penal Code is very clear:
Violation of measures related to infectious diseases
Article 195- (1) Any person who fails to comply with the measures taken by the competent authorities regarding the quarantine of the place where a person infected with one of the infectious diseases or who has died from these diseases is sentenced to imprisonment from two months to one year.
Can unpaid leave due to corona virus be deducted from annual leave?
The most common complaint we come across in this process is that employers force workers to use their accumulated annual leave and give unpaid leave to the worker and deduct these leaves from their annual leave. No employer can force an employee to take annual leave. This is another picture of capitalist opportunism and capitalist self-interest. If the worker wants to take annual leave, of course he/she can.
However, “unpaid leave” is a right that can be used with mutual consent according to the decisions of the Court of Cassation. Considering the danger of corona virus and force majeure, employers should allow workers to use this right as much as possible. The leave used by the employee who uses his/her right to unpaid leave cannot be deducted from his/her annual leave. In addition, according to Article 55 of the Labour Law, the period of unpaid leave is among the situations that are considered as if the employee has worked in terms of annual leave. However, there is a day limit.
Is the corona virus a justified reason for termination of employment?
It is not. Not only for coronavirus, but for all diseases, if an employee is sick and there is a possibility of recovery, it is not a just cause of termination for the employer. However, if it is certain that the disease cannot be cured and it is inconvenient for the employee to work at the workplace, the employer may consider valid termination. Our recommendation is not to resort to this unless there is a real health problem. This is because the Court of Cassation has ruled that frequent reports may be considered as a just cause of termination for the employer.
Can the employer grant “paid leave” to employees during this period?
The types of paid leave are limited in the law: Annual leave, maternity leave, half-day maternity leave, marriage leave, paternity leave, death leave, leave for the treatment of disabled children, periodic control leave, milk leave, new job search leave and adoption leave.
However, paid leave practices have started around the world due to the corona virus. Starbucks has decided to give its employees paid leave, which it calls “disaster pay”. The company’s aim in granting this leave is to ensure that employees stay at home and quarantine their homes for 14 days in cases where employees are exposed to Covid-19, are symptomatic, or need to care for their loved ones. At the end of 14 days, employees will be able to switch to holiday pay, sick pay or personal leave if necessary.
At the moment, this is of course the demand of workers in our country, because the danger is great and there is a shortage of livelihood. On the other hand, of course, production must not stop. It is very important that companies take the initiative in this direction and provide workers with paid leave as much as possible.
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