A. Introduction
According to Article 13 of the Labor Law No. 4857, “If the normal weekly working hours of the employee are determined to be significantly less than those of a full-time employee working under a full-time employment contract,” this contract is defined as a part-time employment contract. The weekly working hours of the employee are clearly shorter than those of a full-time counterpart, with the maximum weekly working hours set at 30 hours. If this limit is exceeded, the work is considered full-time.
B. Employer’s Obligation to Treat Equally
For part-time work, Article 5 of the Labor Law states, “The employer cannot treat part-time employees differently from full-time employees, or fixed-term employees differently from indefinite-term employees, unless there are substantial reasons.” If a part-time employee is subjected to different treatment regarding working conditions or contract termination, the employee may claim compensation of up to four months’ wages. Additionally, rights lost due to discrimination can also be claimed (Article 5/VI). As clearly understood from the legal regulation, this compensation can be claimed both when the contract is terminated and during the continuation of the contract in case of discrimination. Furthermore, Article 13 states, “A part-time employee cannot be treated differently from a full-time counterpart solely because of the part-time nature of the employment contract, unless there is a justified reason. The wages and divisible monetary benefits of part-time employees shall be paid proportionally to their working hours compared to full-time counterparts.” When these provisions regarding the prohibition of discrimination against part-time employees are evaluated together, it can be concluded that part-time employees should benefit from divisible benefits proportionally to their working hours and from indivisible benefits in line with the principle of equality. Therefore, it is crucial to determine how wages, severance pay, notice pay, annual leave, overtime pay, national holiday and public holiday pay, and weekly holiday pay arising from the employment contract will be paid to part-time employees.
C. Calculation of Legal Rights
- Severance Pay: Since the legal nature of severance pay is not considered as wages or wage supplements, it is accepted that severance pay for part-time employees should be calculated similarly to that of full-time employees. However, for part-time employees, severance pay should be calculated based on the total duration of the employment contract up to the termination date, not just the actual working hours. The Court of Cassation’s rulings on this matter indicate that the working periods for severance pay should be calculated based on the total working period, not proportionally to the actual working hours. This calculation ensures that part-time employees receive severance pay more fairly compared to full-time counterparts. The severance pay cap also applies to part-time employees.
- Notice Pay: Article 17 of the Labor Law states that notice periods are determined progressively based on the employee’s length of service. Accordingly, minimum notice periods are applied based on the employee’s seniority in the workplace. For employees with less than six months of service, the notice period is at least two weeks; for those with six months to one and a half years, at least four weeks; for one and a half to three years, at least six weeks; and for more than three years, at least eight weeks. These periods are generally based on full-time employees. For part-time employees, the question arises whether the periods they did not work should be included in the notice period. The Court of Cassation has ruled that the notice periods stipulated in the Labor Law should be applied as they are to part-time employees. (Court of Cassation 9th Civil Chamber, E. 2009/44744, K. 2009/33940, 8.12.2009) Finally, the Labor Law allows the employer to terminate the employment contract by paying the notice period wages in advance. This also applies to part-time employees, and the employer is required to pay the wages proportionally to the actual working hours during the notice period.
- Annual Leave: According to Article 53 of the Labor Law, employees must have worked for at least one year, including the probation period, to be entitled to paid annual leave. The right to leave arises upon the completion of one year, but periods not worked are not included in the annual leave calculation, except for the exceptions specified in Article 55 of the Labor Law. Part-time employees are entitled to paid annual leave in the same way as full-time employees. Article 13 of the Annual Paid Leave Regulation clearly states that part-time or on-call employees will use their annual leave rights like full-time employees. According to Article 56 of the Labor Law, the leave period is determined based on the total days corresponding to the leave period, not the actual working days. For example, a part-time employee who completes one year of work will have 14 days of leave (the leave entitlement varies based on seniority), but they will use these leave days on the days corresponding to their part-time working days.
- Overtime: Regarding overtime, part-time employees cannot be required to work overtime or extra hours according to Article 8 of the Overtime and Extra Hours Work Regulation.
- Weekly Holiday: There is no explicit provision in the legislation regarding whether part-time (part-time) employees working under an employment contract have weekly holiday rights, leading to different practices and administrative decisions. According to Article 46 of the Labor Law, employees’ weekly holiday rights are regulated as uninterrupted rest of at least 24 hours within a seven-day period, provided they have worked on working days. According to Article 63 of the Labor Law, the maximum weekly working hours are 45 hours. According to previous judicial practice, if an employee did not complete the weekly 45-hour working period, they would not be entitled to a weekly holiday. However, since the Court of Cassation 9th Civil Chamber’s decision in 2020, it has been established that employees must be provided with uninterrupted 24-hour rest, and those working on a weekly holiday are entitled to a weekly holiday. (Court of Cassation 9th Civil Chamber, 23.12.2020, E.2020/3437, K.2020/19928) For the calculation of weekly holiday pay, there is no direct regulation for part-time employees, but according to Article 13 of the Labor Law, monetary rights are determined proportionally to full-time counterparts. Therefore, according to prevailing practice and opinion, weekly holiday pay should be calculated on the same basis. Indeed, court rulings are in this direction. (Court of Cassation 22nd Civil Chamber, 09.03.2014, E.2013/3027, K.2014/7495).
- National Holiday and Public Holiday Pay: According to the regulations in our Labor Law regarding national holidays and public holidays (UBGT), if employees do not work on these days, they will receive their full wages for that day without any work requirement. If employees work on UBGT days, they will be paid an additional day’s wage for each day worked (Article 47/I). In this context, a part-time employee who cannot work on a UBGT day will receive wages proportionally to their working hours, like full-time employees. However, if a part-time employee works on these days or their working day coincides with a UBGT day, they will be entitled to UBGT pay, and the employee’s UBGT pay will be calculated based on the wages for the hours they were supposed to work on that day, with legal increments.
Another issue that may be controversial for part-time employees is when a national holiday or public holiday falls on a non-working day. This situation is frequently encountered in part-time employment contracts based on working on certain days of the week or on-call work contracts. In such a case, the question arises whether the employee will be paid for a national holiday or public holiday that falls on a non-working day. In this regard, since a part-time employee does not receive wages for days they do not work, the fact that the day coincides with a holiday alone is not sufficient to entitle the employee to wages. The determining factor here is that the employee cannot work due to the national holiday or public holiday but is still entitled to wages. This situation has been similarly evaluated in Court of Cassation rulings.
D. Conclusion
When looking at the legislation and practice, issues such as the calculation of employees’ legal rights are generally regulated based on full-time employment contracts, which can cause confusion in determining the rights of part-time employees. However, the rights of part-time employees should be protected in the same way unless a different regulation is required. In this context, the rights of a part-time employee, such as severance pay, notice pay, annual leave, and leave periods, should be calculated based on the same principles as full-time employees, taking into account the proportionality explanations above.
Merve Gözde Üçler
Attorney At Law