Labor law primarily deals with the employment contract established between the employer and the employee for the purpose of performing work, the termination of the employment contract, and the procedures related to disputes experienced by the parties to the contract.
Common problems faced by employees or employers seeking a lawyer in the field of labor law generally revolve around the justified termination of the employment contract by either the employee or employer and its reasons, unjustified termination by either party and its reasons, and compensations that the parties may claim from each other following resignation or dismissal.
Another important and frequently asked topic, especially for employees, concerns the rights of the worker after a work accident and the types of compensations that a worker who has suffered a work accident can claim. We will provide a general overview for our readers who are looking for a work accident lawyer regarding these matters.
Main Compensations and Wages That Can Be Claimed in Labor Law:
Severance Pay
Severance pay is a compensation that the employee can claim and receive from the employer.
What are the conditions for receiving severance pay?
- The worker must have worked at the workplace for at least 1 year.
- Even if the worker has worked in different branches or different workplaces belonging to the same employer, these periods will be combined to calculate the 1 year.
- The worker must have been dismissed by the employer (unjust termination of the employment contract) or must have terminated the employment contract for a valid reason (resigning worker).
- The worker must be subject to the Labor Law No. 4857.
How is Severance Pay Calculated?
Severance pay is calculated based on the employee’s last monthly gross salary (including bonuses, etc.) at the workplace for each completed year of work. For example, the severance pay entitlement of an employee who has worked for 6 years at the same workplace with minimum wage and without receiving bonuses or similar additional payments will be evaluated as 6 x 3,577.50 = 21,465.00 TRY based on the 2021 minimum wage. (There are additional items not included in the calculation and certain deductions that should be made, so the exact calculation may vary.)
Statute of limitations for severance pay
The statute of limitations for claiming severance pay is 5 years. The employee must claim their severance compensation from the employer within 5 years from the termination of the employment contract, and if it is not paid, they should file a lawsuit.
Notice Compensation
According to Article 17 of Labor Law No. 4857, notice compensation can be claimed when either the employee terminates the employment contract without notifying the employer, or the employer terminates the contract without notifying the employee—that is, without giving the required notice period.
Notice compensation is a type of compensation that can be claimed by both the employee and the employer. However, if either party terminates the employment contract during the probation period, terminates for a justified reason, or gives notice within the notification period detailed below, they will not be required to pay this compensation.
What are the conditions for receiving notice compensation?
- Termination of the employment contract without a justified reason as defined by labor law,
- Termination of the employment contract without giving notice or a time period to the other party,
The required notice period before termination varies depending on the length of employment:
- For employment lasting up to 6 months, notification must be given 2 weeks before termination,
- For employment lasting from 6 months to 1.5 years, notification must be given 4 weeks before termination,
- For employment lasting from 1.5 years to 3 years, notification must be given 6 weeks before termination.
For employment lasting more than 3 years, the employee who is leaving must notify the employer 8 weeks before termination, and the employer who terminates the employee must also notify the employee 8 weeks in advance.
How is severance pay (notice compensation) calculated?
Severance pay (notice compensation) is calculated based on the employee’s last gross monthly salary (including allowances) prior to leaving, corresponding to the required notice period.
Statute of limitations for notice compensation
The statute of limitations for claiming notice compensation is 5 years. The employee or employer must request the compensation from the other party within 5 years from the termination of the employment contract, and if it is not paid, they should take legal action.
Overtime Pay
According to Article 63 of Labor Law No. 4857, the weekly working hours for a full-time employee are 45 hours. Any work exceeding 45 hours is considered overtime. The employer can either pay the employee extra for these overtime hours in addition to the regular wage or grant time off for these hours. However, in any case, the employer must obtain the employee’s consent for the overtime work as required by labor law. Of course, the employee’s approval or consent for overtime does not mean they waive their right to receive the additional pay they are entitled to for the overtime.
Moreover, even if the weekly 45 hours limit is not exceeded, any work exceeding 11 hours per day or exceeding 7.5 hours during night shifts will be considered overtime and will require payment of overtime wages.
Overtime pay is inherently a right that only the employee can claim from the employer.
What are the conditions for claiming and receiving overtime pay?
Overtime pay is a claim and compensation that the employee is entitled to regardless of the reason for the termination of the employment contract. Whether the employer terminates the contract for a justified or unjustified reason, or the employee terminates it for a justified or unjustified reason, the employee has the right to claim and sue for overtime pay.
In fact, if the employer does not pay the overtime wages, the employee can use this as a reason to terminate the employment contract for a justified cause or resign.
How is overtime pay calculated?
Except for night work, public holiday work, and similar exceptional cases, a worker is entitled to 50% more than their normal hourly wage for every hour worked as overtime. Overtime pay is calculated based on the gross salary. For example, the gross minimum wage for 2021 is 3,577.50 TL. For a worker earning the minimum wage, assuming a daily wage of 119.25 TL based on 30 days of premiums and an hourly wage of 15.90 TL based on 7.5 hours of work per day, the worker should receive an additional overtime pay of 23.85 TL per hour for each hour of overtime worked, excluding exceptional cases. (There are additional items not included in the calculation and certain deductions that must be made, so the exact calculation may vary.)
Statute of Limitations for Overtime Pay
The statute of limitations for overtime pay claims is 5 years. The employee must request compensation from the employer within 5 years from the termination of the employment contract, and if payment is not made, they should take legal action. It is important to note that the employee can only claim overtime pay for work performed within the maximum 5-year period prior to the date of the claim or lawsuit.
National Holiday and General Leave Pay
According to Article 47 of Labor Law No. 4857; even if the employee does not work on days recognized by law as national holidays and general holidays, they are entitled to receive full pay for those days.
If the employee works on a day they are normally entitled to rest, they have the right to receive an additional day’s wage on top of their regular pay for that day. In short, if the employee works on a national holiday or general holiday, they should be paid twice their normal daily wage.
The claim for national holiday and general holiday pay is, by its nature, a receivable that only the employee can claim from the employer. In practice, this claim is abbreviated as NHGH pay (National Holiday and General Holiday pay).
What are the conditions for claiming National Holiday and General Holiday pay?
The claim for national holiday and general holiday pay, like overtime pay, is a right earned by the employee regardless of the conditions under which the employment contract is terminated; it is a type of compensation. Whether the employer terminates the contract for a justified or unjustified reason, or the employee terminates it for a justified or unjustified reason, the employee has the right to claim and sue for this payment.
In fact, if the employer fails to pay the national holiday and general holiday wages, the employee can use this as a reason to terminate the employment contract for a justified cause and resign.
How is the national holiday and general holiday pay calculated?
National holiday and general holiday pay is calculated by considering the additional one-day wages that must be paid to the worker for each holiday worked. For example, the gross minimum wage for 2021 is 3,577.50 TL. If a worker who worked for minimum wage and whose employment contract ended in 2021 has 7 unused days of national and general holiday pay (UBGT) from 2020, assuming the daily wage is 119.25 TL based on a 30-day premium, then 7 x 119.25 = 834.75 TL will be due as national and general holiday pay. (There are additional components not included in the calculation and certain deductions to be made, so the exact calculation may vary.)
National Holidays and General Holidays
| New Year’s Day | 1 January | 1 Days |
| April 23 National Sovereignty and Children’s Day | 23 April | 1 Days |
| May 1 Labor and Solidarity Day | 1 May | 1 Days |
| May 19 Commemoration of Atatürk, Youth and Sports Day | 19 May | 1 Days |
| Eve of Ramadan Feast (Eid al-Fitr Eve) | —- | 1 Days |
| Ramadan Feast (Eid al-Fitr) | —- | 3 Days |
| July 15 Democracy Day | 15 July | 1 Days |
| Eid al-Adha Eve | —- | 1 Days |
| Eid al-Adha | —- | 3,5 Days |
| August 30 Victory Day | 30 August | 1 Days |
| October 29 Republic Day Eve | 28 October | 1/2 Days |
| October 29 Republic Day | 29 October | 1 Days |
Statute of Limitations for National Holiday and General Holiday Pay Claims
The statute of limitations for claims related to national holiday and general holiday pay is 5 years. The employee must request compensation from the employer within 5 years from the termination of the employment contract, and if not paid, must take legal action. It is important to note that the employee can only claim national holiday and general holiday pay that has accrued within a maximum period of 5 years prior to the date of the claim or lawsuit.
Annual Leave Pay Claim
Pursuant to Article 53 of the Labor Law No. 4857, an employee who has worked at a workplace for at least one year from the commencement of actual work (including the probationary period) is entitled to annual paid leave based on their length of service. If the employer fails to grant this leave to the employee, or if the leave is granted but the payment is not made, this claim arises.
What are the conditions for claiming annual leave pay?
- The employee must have completed 1 year of service from the date they actually started working at the relevant workplace,
- The employee must have either been made to work without being granted this leave at all, or, if the leave was granted, the wages they were entitled to during this period must not have been paid.
Regardless of the circumstances under which the employment contract is terminated, the annual leave pay is an entitlement the employee has earned; it is considered compensation. Whether the employer terminates the contract for a justified or unjustified reason, or the employee does so for a justified or unjustified reason, the employee has the right to claim and sue for this payment.
Moreover, if the employer fails to pay the annual leave wages, the employee may use this as a valid reason to terminate the employment contract for just cause and resign.
How Is the Annual Leave Pay Calculated?
The annual leave pay is calculated based on the employee’s last gross wage, including all benefits, as of the termination date of employment, for each day of leave that should have been granted but was not paid. The annual leave entitlement of the employee varies according to their years of service, and the general framework is as follows:
| YEARS OF SERVICE | ANNUAL LEAVE PERIOD |
| Up to 1-5 Years | 14 Days |
| Up to 5-15 Years | 20 Days |
| 15 Years and Above | 26 Days |
The annual paid leave periods for workers employed in underground jobs are increased by four days.
However, the annual paid leave period given to workers who are eighteen years old or younger, and those who are fifty years old or older, cannot be less than twenty days. Annual leave periods can be extended through employment contracts and collective bargaining agreements. These periods represent the minimum leave durations that must be granted to the worker.
Statute of limitations for annual leave pay claims
The statute of limitations for annual leave pay claims is 5 years. The employee must request compensation from the employer within 5 years from the termination of the employment contract and, if not paid, should file a lawsuit. It is important to note that the employee can only claim annual leave pay accrued within a maximum of 5 years retroactively from the date of the claim or lawsuit.
Weekly Rest Day Pay
Characteristics, Conditions, and Calculation
According to Article 41 of Labor Law No. 4857, a worker has the right to at least 24 hours of uninterrupted rest per week as a weekly rest day. A worker who works 6 days a week is entitled to receive full payment from the employer for this 24-hour, one-day rest period. The weekly rest day can be on a fixed day of the week or may vary from week to week. If the worker does not take this mandatory uninterrupted 24-hour, one-day rest in a week, they have the right to claim and sue the employer for the payment of one day’s wage for that day. The statute of limitations for this claim is 5 years.
Minimum Living Allowance (MLA) Payment
Features, Conditions, and Calculation
The minimum living allowance (AGİ) is an additional payment added to the worker’s salary because after deductions such as social security premiums and income tax withheld by the employer from the gross minimum wage, the net wage that should be paid to the worker falls below the minimum wage. In practice, it is commonly referred to as “AGİ.”
Essentially, the minimum living allowance is important for workers who earn minimum wage and are either married or have children. Generally, the minimum wage, which is determined annually (for 2021, the net minimum wage is 2,825.90 TRY), applies to single workers without children. The minimum wage that the employer is required to pay increases if the worker is married, has children, or depending on the number of children. If the worker’s entitlement to this difference has not been paid during their employment, it should be carefully claimed and sued for after the termination of the employment contract.
The income tax reduction applied by the state for the worker and their dependents is called the minimum living allowance (AGİ). AGİ is considered part of the worker’s receivables.
Bad Faith Compensation
If the employment contract is terminated by the employer through abuse of the right of termination, the employee is entitled to compensation amounting to three times the notice period. Employees covered under Articles 18, 19, 20, and 21 of Labor Law No. 4857 are not included in this scope. If there is an opportunity for the employee to be reinstated, bad faith compensation will not apply.
There are also other types of compensation that employees may be entitled to in certain exceptional cases not yet mentioned here, such as discrimination compensation and union-related compensation.
To ensure that employees can claim their receivables arising from various reasons and avoid any loss of rights, it is advisable to seek legal assistance from a lawyer specializing in employee claims.
Lawyer. Gökhan AKGÜL
