Bonus is one of the frequently encountered wage supplements in practice. Bonuses may be decided by the parties in the employment contract and collective agreements, based on the principle of freedom of contract, or it may have become a workplace practice by providing it one-sided by the employer. Since the removal and reduction of a bonus that has become a workplace practice means a fundamental change in working conditions, the written approval of the worker must be obtained in order for this change to be made.
Bonuses are generally financial benefits given by the employer to encourage employees to work or depending on the existence of certain events such as New Year’s Day, holiday, anniversary. The application area of the bonus must necessarily contain “generality”.
Because if the employer provides some material benefits under the name of “bonus” to only one worker or a certain group of workers, it will be possible for the employer to be sanctioned on the grounds that he/she violates the principle of equality.
On the other hand, workplace practice can be defined as an unwritten agreement that occurs with explicit or implicit acceptance as a result of the continuation of the benefits that the employer provides to the worker unilaterally and regularly and in the same way for a certain period of time.
Conditions Required for the Bonus to Become a Workplace Application;
In order for the bonus to become a workplace practice, the following conditions are required;
– Having a General Qualification,
– Continuous implementation,
– Provided Under the Same Conditions,
– Not Contingent or Not Caused by the employer’s fault
The general qualification of the workplace practice;
It explains that the bonus should be applied not only on the basis of one or a few people, but also on the basis of the whole workplace or a certain group of workers (working in the same qualification/position or in the same department, etc.). If the condition of paying the bonus is not stipulated to the time spent by the employee at the workplace, even if there is no explicit agreement, new workers can also benefit from the bonus applied at the workplace, regardless of how long they spend at the workplace.
Continuous implementation of workplace practice;
It is the repetition of the bonus provided by the employer to the worker for a certain period of time. One-time bonuses paid to workers do not constitute the subject of workplace practice. Although there is no accurate or clear criterion in terms of continuity, for example, the Supreme Court accepts that making a bonus payment to the worker for more than 3 years makes the bonus a workplace practice.
Providing workplace practice under the same conditions;
Another important point for workplace practice is the repetition of the bonus paid by the employer to the worker for the same reasons. That means, the bonus must be repeated and the content must be the same.
It is not contingent or caused by the employer’s fault;
Lastly, it is accepted in the doctrine and some Supreme Court decisions that the bonus is not provided on a conditional basis and that the bonus application brought in favour of the employee due to the employer’s fault cannot be considered as a workplace practice.
The fact that a workplace practice gives the right to demand for the worker arises from the worker’s confidence that the employer’s beneficial behaviour will be repeated in the future. If the employer has reserved the right to waive the bonus application or has made a reservation about providing the bonus in the future, the bonus payment will no longer be a workplace application.
Changing or Abolishing a Bonus Application That Has Become a Workplace Practice;
The employer will not be able to unilaterally change or abolish the bonus, which has become a workplace practice, since it has become a working condition. Because the procedures in Article 22 in the Labour Law must be followed, in the changes to be made by the employer about the working conditions, against the employee. The provision requires the written approval of the worker to make a substantial change in terms of the employment contract or the workplace practice. However, since increasing the amount of the bonus paid to the worker is a change in favour of the worker, there is no need for the worker’s written approval.
The proposal for a substantial change in the bonus, which has become a workplace practice, should be clear and specific, as it is an offer, and should be made separately for each worker. Making this offer in a general way, such as an announcement, does not constitute an offer of a procedural changing. If the worker accepts the employer’s offer of a substantial change in the bonus application in writing within six working days, the employment relation continues in accordance with the new working conditions. The silence of the worker in view of the change offer should not be understood as an implied acceptance, but as a decline of the offer. As a result, it is possible for the worker to claim a bonus that has become a workplace practice within the period of limitations even if he/she kept silent about a change in the bonus application and continued to work.
Damla Davran Işlak, Attorney At Law