ABSTRACT:
Employees who are detained or arrested are unable to perform their job duties and the extension of this process can put Employers in a difficult position. However, the Employer does not have a right to dismiss the Employee immediately if the Employee is detained or arrested. In case of detention exceeding the notice period (2-8 weeks) determined according to the Employee’s seniority, the Employer’s right to terminate with a valid reason may arise immediately. As the contract is suspended within these periods, if the contract is not terminated by the Employer after the expiration of the period, the suspension status continues. However, the contract may always be terminated by the Employer for a valid reason as long as the detention continues after the suspension period has expired. The Employer does not have to pay the Employee wages for days when the Employee is under arrest or detainee.
EXPLANATIONS:
The Employer will not be able to have the Employee’s workforce due to the arrest or detention of the Employee. Employer will remain in an uncertain position while continuing to produce goods or services and will not know when the Employee will be back to work. In these cases, according to Labor Law No:4857 Article 25/4, if the absenteeism of the Employee due to arrest or detention exceeds the notice periods regulated in Article 17 of the Labor Law, the Employer shall be entitled to immediate termination with a valid reason. Notification periods which are mentioned in Labor Law No. 4857 Article 17 are as follows according to Employee seniority:
- 2 weeks for Employees worked until 6 months;
- 4 weeks for Employees worked from 6 months to 1,5 years;
- 6 weeks for Employees worked from 1.5 years to 3 years;
- 8 weeks for Employees worked for more than 3 years;
The Employee’s Employment Contract may be terminated by the Employer with a valid reason and immediately if the arrest situation exceeds the notice period arising from the Employee’s seniority. The employment contract cannot be terminated until the Employee’s notice period is over. When the relevant decisions of the Court of Cassation and the provisions of the legislation are examined, it is accepted that in case the Employee is detained or arrested, absence exceeds the increased notice periods, the valid reason for termination arises. For the right of termination, it is not important that the event that causes the Employee to be detained or arrested takes place at or outside the workplace or that the trial is retaining. In any case, if the notice periods are exceeded, the Employer has the termination right with a valid reason. It would be appropriate to prove the duration of detention or arrest with official documents (e.g., a document from the prosecutor’s office). The Employee will be deemed as taking an unpaid leave during these periods and the contract will be suspended. The Employer does not have to pay the Employee wages for days when the Employee is under arrest or in detention. In this case, the Employer has no obligation to comply with the notification requirement and notice pay for the termination. The Employer is obliged to pay the Employee’s severance pay if the conditions have been met. However, as the Employment contract will be deemed as suspended during the detention and arrest, the suspended period will not be included while accounting the severance pay. The Employer shall notify the Social Security Institution (SGK) about the days when the Employee is unable to work due to detention as missing day and these days shall not be counted as premium days.
The Employer has a right of termination with a valid reason if the period of arrest exceeds the notice periods that are regulated in the law or increased in the contract. In addition, if the arrest period is for a specific period and affects the operation of the Company in a bad way even without exceeding the arrest period, the Employer may terminate the employment contract with a valid reason by complying with the notice period or by paying notice pay and -if the Employee has full 1-year working time- severance pay.
According to the Court of Cassation practices, there is no difference between the absence of the Employee by escaping to not get arrested and the absence that occurred directly as a result of his arrest. Therefore, as a result of the sentence in absentia given when the Employee escaped, the Employer has a right to terminate immediately for the valid reason if the absence period exceeds the notice period.
According to the Court of Cassation practices, for the Employee who is employed in a state-owned workplace; if the act that constitutes a crime is considered a crime against the state wherever it occurs, the Employee’s absence is considered as unlawful absence in practice and it is accepted that the contract will be terminated for a valid reason in accordance with Labor Law, Article 25/II-g: ”If, without the Employer’s permission or a good reason, the Employee is absent from work for two consecutive days, or twice in one month on a working day following a rest day or on three working days in any month…”, unlike the termination under arrest. So, it cannot be applied in terms of a crime when the Employee who works in a private sector workplace has committed or is suspected to have committed a crime against the state.
