ABSTRACT: Suspension of the employment contract comes to the fore in the presence of a temporary impossibility of performance. Under normal circumstances, an employment contract imposes mutual obligations on both parties. The contractual obligation of the employee is to do the job for which he is obliged to fulfil his performance. The employer’s obligation arising from the contract is the obligation to pay wages for the work performed by the employee: Although one of the parties has not fulfilled his debt, the other party’s rights such as avoiding performance, demanding compensation or withdrawing from the contract are granted to them by law. However, if the employment contract is suspended, the debts of the parties to each other do not continue. The employee does not perform the act of working during this period, and the employer does not pay wages, provided that some conditions are reserved.
Conditions of suspension of employment of the employee; impossibility of performance and suspension are temporary, flawless and not essential. Some suspension conditions arranged in the law are as follows;
Employee’s Custody or Arrest: In the event that this situation enumerated in the Labour Law occurs, the employer may terminate the employment contract by complying with the notification period specified in article 17 of the Labour Law. If the employment contract is not terminated by the employer during and after the period listed in Article 17 of the Labour Law, the suspension of the employment contract becomes a fact.
Economic Crisis: According to the provision specified in additional article 2 of the Unemployment Insurance Law, in the presence of a regional or sectoral economic crisis, the contracts of the employee who could not be employed during this period are considered to be suspended.
Illness, Accident, Birth and Pregnancy of the Employee: The existence of conditions such as illness, accident, birth and pregnancy that occur except the employee ‘s own intention gives the employer the right to terminate the employment contract without notification. This right is enumerated in Article 25/I of the Labour Law. The employer’s right to terminate is possible if the notification period specified in article 17 of the Labour Law is exceeded. If the employment contract is not terminated within this period, the employee’s contract is suspended.
Strike and Lockout Process: In article 67/1 of the Trade Unions and Collective Bargaining Agreement Law it has been said, “The employment contracts of the employees who participate in the legal strike, do not participate in the strike, or stop participating in the strike but cannot be employed due to the strike and are exposed to legal lockouts, are suspended during the strike and lock-out.”. In accordance with the article of the law, the employment contract will be suspended in case of lockout and strike.
Employee Becomes a Manager: In Article 23/1 of the Trade Unions and Collective Bargaining Agreement Law, it is stated that if the employee leaves the workplace to become a manager in the work organization, the employment contract will be suspended.
Military Service: The employment contract of an employee who has been working at the same workplace for at least 1 year, who is recruited for manoeuvre or any reason other than career soldier service, or who quits his job due to a work assignment arising from any law is deemed to be terminated. In order for the employment contract to be considered terminated, the employee must have been working for at least 1 year and must have passed 2 months since the day he left his job. Suspension of the employment contract will come to the fore within this 2-month period specified in Article 31 of the Labour Law.
The Compelling Reason: In Article 24/III of the Labour Law, it is stated that the employment contract may be terminated by the employee for just cause, if there is a compelling reason requiring the workplace to stop for more than 1 week. If the employee does not terminate the contract during or after this compelling reason stated in the law, the employment contract will be suspended. If one wonders what the compelling reasons are, natural disasters such as fire and earthquake in the workplace can be counted as examples. The compelling reason is not specific to the workplace. In addition, as stated in Article 25/III of the Labour Law, the reasons that prevent the employee from working for more than 1 week are accepted as compelling reasons. In addition, the suspension of the employment contract during this period finds its application area.
In case of suspension of the employment contract, the employment contract is void. After the end of the suspension period, the debts continue as in the period before the suspension period. In case of suspension, the employee’s debt to work remains with the spouse, but the employer’s wage payment debt is reserved in some cases. The wages required to be paid by the employer even in case of suspension are stipulated in Article 40 of the Labour Law. According to the law, in the presence of a compelling reason and during the suspension period, it is stated that the 1-week wage will be paid to the employee as half wage. The effect of the suspension of the employment contract in terms of severance pay is also of great importance. Based on the fact that the employee does not work actively during the suspension process, the Supreme Court does not include the suspension process in seniority.
Damla Davran Işlak
Attorney at Law