LEGAL CONSEQUENCES OF WORKPLACE TRANSFER ON LABOR RECEIVABLES AND EMPLOYEE RIGHTS IN TURKEY

The workplace, which is defined as the unit where the tangible and intangible elements and the workers are organized by the employer in order to produce goods and services in accordance with the Labor Law No. 4857, may be transferred from one employer to another for different reasons, thus, it is of great importance to ensure the continuity of the employee-employer relationship and the operation of the business in this process. Workplace transfer may occur due to many reasons such as the privatization or nationalization of the workplace, and merger or participation. In this respect, the transfer process is one of the most important issues affecting the continuity and job security in terms of labor rights. The provisions regarding the workplace transfer have been brought into the Turkish Legal System with the Labor Law No. 4857 with the aim of protecting employment contracts and labor receivables.

General Principles and Duration of Liability Arising from the Transfer

Article 6 of the Labor Law No. 4857 ensures that the employment contracts existing in the workplace or a part of it on the date of transfer will be transferred to the transferee together with all its rights and obligations in the transfer of the workplace or a part of the workplace based on a legal transaction. With the transfer, all rights and responsibilities pass to the transferee without the need for a different legal action. Any release of liability to be made between the parties of the transfer transaction does not have any legal consequences for third parties. However, the joint responsibility of the transferor and the transferee employer is regulated within the same article for debts that arose before the transfer and must be paid in case of transfer.

The responsibility of the transferor employer from these obligations is limited to a 2-year final term from the date of transfer. The said liability, which is of several joint nature, covers the debts that must be paid before and on the date of the transfer regarding the transferor employer. In this respect, it is clear that the transferor employer will not be liable for labor receivables outside of its own period.

Differences in terms of Wage Claims and Severance Pay, Notice Indemnity and Annual Leave Pay

The action should be taken according to the date on which the employee started to work with the transferor employer for the rights based on the length of service pursuant to paragraph 6/2 of the Labor Law No. 4857. In accordance with the aforementioned provision, the employee’s service period for notice indemnity, severance pay, annual leave pay of the rights of this nature should be calculated over the sum of the period from the date of employment with the transferor employer to the date when he/she acquires the said rights before the transferee employer.

In addition to the 2-year joint responsibility of the transferor and the transferee employer for the wage receivables, the fact that the annual leave periods turn into wages only after the termination of the employment contract is an important difference for the liability arising from the annual leave wages. Accordingly, the annual leave right, which is converted into wages, must be paid by the transferee employer, since the leave fee cannot be a labor receivable arising in the period of the transferor employer. As it is finalized by the Supreme Court decisions, the transferee employer has sole responsibility for the notice indemnity, one of the other rights related to termination other than the wage receivables.

Responsibility for severance pay is independent of the 2-year liability in the regulations regarding workplace transfer and is related to Article 14/2 of the Labor Law No. 1457, and there is no time limit in terms of the responsibility of the transferor employer in the relevant law.

 

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