Employment & Labour

RIGHT TO AVOID WORKING WITHIN THE SCOPE OF OCCUPATIONAL HEALTH AND SAFETY LAW

The Occupational Health and Safety Law No. 6331, published in the Official Gazette dated 30.05.2012 and numbered 28339, introduced detailed legal regulations within the concept of the right to avoid working. Although it has been a long period of time since the Law No.6331 into force, hesitations may occur as a practical matter due to distinctions to take into consideration in exercise of the right to avoid working. 

Which employees can take advantage of the right to avoid working?  

In accordance with titled “Scope and Exceptions” in the Law No. 6331, every public and private sector employee can benefit from the right to avoid working apart from legal exceptions. All occupations and working place belonging to the public and private sector, for employers and employer’s representatives of these workplaces, including apprentice and interns can be subject to Law No. 6331. Attention to be paid, according the general rule, there is no distinction between public and private sector within the concept of the right to avoid working. 

Which employees situated within the scope of legal exceptions for the right to avoid working?

Legal exceptions in point of employees: household employees, jobholders producing goods and services on its own behalf 

Legal exceptions in point of area of activity: Turkish Armed Forces, Law Enforces and Undersecretariat of the National Intelligence Organization’ s activities (Not including stated institutions’s workplaces of factory, maintenance facility, sewing workshop and et cetera)

In what manner the employers can exercise right to avoid working? 

The right to avoid working can be exercised in cases where employee is faced with a serious and imminent danger and danger continues, and in cases where the serious and imminent danger can’t be avoided. In both cases, the presence of danger must be serious and imminent. Within the scope of Law No. 6331; danger is defined as the potential for harm or damage that exists in the workplace or may come from outside, which may affect the employee or the workplace. The opinion as to whether the danger is serious and imminent is at the employee’s decision.  

If the employee is faced with a continuous serious and imminent danger, how can employee proceed to exercise the right to avoid working? 

If the employees are considered that there is a continuous serious and imminent danger at workplace, they can apply to the Occupational Health and Safety Committee within the workplace or to the employer directly. With this application, the employees can request that the situation of continuous serious and imminent danger be determined and due precautions be taken. In this context the Occupational Health and Safety Committee should be convened urgently and the employer made a decision at once about danger. After the danger situation is determined and made an official report, the decision notified in written the employees and the employee representavive/union representavive. In this case, the right to avoid working may only be exercised until the due precautions are taken if the Committee or the Employer decides on the employee’s request. 

In what manner the employees can exercise right to avoid working if the danger is impreventable?

If the employee consider that there is an impreventable danger, be not necessary for the employee apply to the employer or the Occupational Health and Safety Committee. When the employee is faced with impreventable, serious and imminent danger, has to right to leave to workplace or the dangerous area immediately and take refuge to the “designated safety place”. In this context, the employee can exercise the right to avoid working until due precautions are taken, without the need for decision of the Committee or the Employer. 

Which workplaces should have an the Occupational Health and Safety Committee?

In the concept of Article 22 of Law No.6331, an Occupational Health and Safety Committee should be established in workplaces include fifty or more employees and where permanent work lasting more than six months is carried out. If there is an absence of the Committee; employers should notify the employer of consideration about the serious and imminent danger.  

Is there a spesific situation where the right to avoid working can’t exercised?  

In the event of shut down work in workplace according to Article 25 of the Law No. 6331, the provisions of right to avoid working can’t be exercised. 

If the employer doesn’t take the due precautions despite the application, which procedure should the employee adopt? 

If the Employees are working under the contract of employment; may terminate their contracts in accordance with the provisions of the Law to which they are subject. This right of the employees is evaluated within the scope of the rightful termination where the “working conditions are not applied” regulated in Article 24/II-f of the Labor Law.

Is there a different situation regarding the right of termination for public employee?

Since the public employees don’t work under a private law contract, they don’t have the right to terminate within the scope of Article 24/II-f of the Labor Law. Public employees perform their duties under an administrative contract, and their status is regulated in accordance with the contract and the State Personnel Law. As a matter of fact, in the fourth paragraph of Article 13 of the Labor Law, it is stipulated that public personnel working under a collective labor agreement or employment contract will be deemed to have actually worked when they do not work according to this article; however, no possibility of termination based on the right to avoid working is regulated in the State Personnel Law.

Should the employee be paid during the exercise of the right to avoid working? 

In cases where the employees avoid from working in accordance with the legal regulations, the employer’s duty of paying wages and other rights caused by the contract of employment continues. According to Article 13/2 of the Labor Law, the wages of the employees should be continue to be paid during the period when the right of avoid working is exercised. Article 13/3 of the Law also regulates that in cases where employees exercise their the right to avoid working in impreventable situtations, their rights can’t be restricted due to these actions. 

In accordance with these provisions, the periods of right to avoid working should also be taken into account when calculating the severance pay, notice pay and annual paid leave.

Can the employer impose a sanction on employees who exercises the right to abstain from work? 

It is not legally appropriate to impose a sanction by the employer on the employee who exercises right to avoid working in accordance with the legal regulations specified in the Law No 6331. 

In the event that the employer terminates the employment contract despite the employee’s exercise of legal procedure, employees who meet the employment security provisions will be able to apply to the employer for reemployment. For employees who do not benefit from employment security provisions, it is possible that the claim of injustice termination may come to the fore due to the non-implementation of working conditions.

Which procedure should be followed the employer against the employee who abuses the right to avoid from working?

During the exercise of the right to avoid from working, the employment contract continues. However, in cases where the employee acts maliciously and consciously against the employer regarding the exercise of this right, the possibility of termination may come to the fore due to “abuse of the employer’s trust” within the scope of Article 25/II of the Labor Law.

Can the employer offer the employee a different job during this process?

There is no specific regulation in the Turkish Labour Law on this issue. However, it should be accepted that the employee who exercises the right to avoid from working may be offered a job that doesn’t occur a danger and is related to employee’s field. Because although the right to avoid working is exercised, the employee’s duty of loyalty continues as the employment contract continues. In cases where the proposed position is related to the employee’s field and doesn’t occur a danger, the employee should accept the offer.

In cases where the employee doesn’t accept the offer; if the employee is subject to the Labor Law, the employer’s rightful termination opportunity arise according to Article 25/II-e of the Labor Law. As for state personnel, in terms of employees subject to the State Personnel Law No. 657; it is possible to arise a disciplinary action accordance with Article 125 of the Law due to intentionally failure to fulfill duties and orders given by the employer. 

Türküm Türkmen, Attorney at Law

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