Employment & Labour

LEGAL VALIDITY OF ADVANCE ANNUAL LEAVE PRACTICE

Annual paid leave is a right to rest, that is granted to employees who have worked in a workplace for at least 1 year and this right takes its source from the Constitution. If the employee has a service in the workplace from one year to five years (including five years), the annual leave period cannot be less than 14 days. If the employee has more than five years and less than fifteen years of service it cannot be less than 20 days. If the employee has fifteen years or more of service it cannot be less than 26 days. These periods are increased by four days for employees who is working in underground works. There is a special regulation on annual leave periods for certain age groups. The duration of annual paid leave to be granted to employees aged eighteen and younger and employees aged fifty and over, cannot be less than twenty days. However, sometimes employees may apply to their employers to use their annual leave in advance before they complete one year and are entitled to leave. Advance annual leave application is not included in the law. However, in practice, some employers take the initiative and allow their personnel to use this leave. Since this can be interpreted as a situation in favor of the employee, it will be considered valid even if it is not included in the law.

There are some certain conditions for employees who are within the scope of the Labor Law No. 4857 to be entitled to annual paid leave. Among these conditions, the employee must have at least one year of seniority. However, sometimes there are practices regarding the request for advance leave and the use of advance leave, even if the one-year seniority requirement has not been fulfilled or if the employee  has used all of the annual paid leave to which he is entitled. 

Although the legislation does not stipulate a procedure for advance annual leave, in practice, it is known that employers grant advance annual leave to employees upon request and it is generally accepted in Supreme Court practices. In this respect, for employees who are not yet entitled to annual leave or do not have the right to paid leave, it seems possible to use advance annual leave if the employee has a clear request in this regard. Following the request of the employees in this situation, annual leave advance can be made to be deducted from the annual leave periods that they will be entitled to in the future.

In addition, although there is no clear regulation in the legislation and there is no unity of jurisprudence among the judges of the Supreme Court, it is accepted that the use of advance leave should be considered exceptional in the doctrine, and that the main priority is the actual use of the employee’s right to rest, which is envisaged with paid leave at the time of progress payment. For this reason, it is beneficial to limit advance leave for a certain number of days and for each employee.

The most problematic issue in the practice of advance leave is; whether the advance leave fee used by the employee can be deducted from the employee in case the employee leaves the job without being entitled to annual leave. With the Decision of the 9th Civil Chamber of the Court of Cassation, numbered 2016/26145 E., 2020/11957; It is related to the incident where the employee, who is entitled to 28 days of annual leave in return for 2 years of seniority, takes 34 days of leave, thus exceeding the annual leave period he deserves by 6 days, the employer demanded the 6-day annual leave wage back from the employee who left the job, and the local court found the employer justified. However, the 9th Civil Chamber of the Court of Cassation reversed the decision of the local court and decided that the employer could not claim back the annual leave fee that was used in excess.

The relevant decision of the Supreme Court states as following:

“There is no legal basis for the employer to demand a monetary return on the grounds that the annual paid leave granted to the employee is more than he deserves. For this reason, the claim that the defendant employer requested for the 6 days that the counter-claimant employee used extra, should be rejected, but its acceptance is wrong.” Pursuant to the relevant decision, it is concluded that if the employer allows the employee to use an annual leave that he has not yet earned within the scope of the advance leave, if the employee quits the job before the annual leave offset is made, the employer cannot demand the wages of the extra annual leave. 

As it is clearly explained in the Supreme Court decision, it is ruled that, monetary refund cannot be requested in return for the annual paid leave used by the employee, claiming that it is more than the employee deserved. For this reason, it will be against the employer to create a negative balance of annual leave by using excess leave without any agreement with the employee. Negative balance annual leave fees cannot be demanded from the employee.

As a result, it will be beneficial for employers to receive a petition signed by the employee while the employer allows the employee to use the leave that he is not entitled to. In order for the employer to request a leave fee, a commitment must be received from the employee in this petition that he will repay the fee paid for the leaves he/she has used without qualifying, if he/she leaves the workplace before the date of entitlement to the leave. However, if the employer does not receive a petition and commitment as stated above, the employer will not be able to make any demands from the employee and the unearned leave will be considered within the scope “other permissions given by the employer” specified in Article 55 of the Labor Law No. 4857.

Damla Davran Işlak, Attorney At Law

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