The coronavirus pandemic (also known as COVID-19), which has affected the whole world, continues to be at the top of the agenda in our country. The effects of this pandemic, which has been declared a “pandemic” by the World Health Organization, continue to have an impact on the legal field and measures are being taken to reduce the effects of the pandemic. In this context; this short information note has been prepared regarding some information that may eliminate the uncertainties that the pandemic may cause in terms of the Turkish Legal System.
I. EFFECTS IN TERMS OF ENFORCEMENT AND BANKRUPTCY LAW
Pursuant to Article 330 of the Execution and Bankruptcy Law No. 2004 (“EBL”); “In case of epidemic disease, a general calamity or war, execution proceedings may be suspended for a certain period of time in favor of a part of the country or some economic groups with the decision of the President.”. Pursuant to the aforementioned provision, within the scope of the measures taken against the corona virus epidemic, which continues to spread rapidly in our country, with the Presidential Decree No. 2279 in the Official Gazette dated March 22, 2020 and numbered 31076, except for enforcement proceedings regarding alimony receivables until April 30, 2020;
All execution and bankruptcy proceedings being carried out throughout the country will be suspended,
In this context, parties and follow-up procedures are not carried out,
No new requests for execution and bankruptcy proceedings are received and
It is decided not to execute and enforce the interim attachment decisions.
II. EFFECTS ON LABOR LAW
It is obvious that the COVID-19 pandemic, which has become an agenda all over the world, has had an impact on the employer-employee relationship as well as daily life. First of all, it should be noted that according to Article 4 of the Occupational Health and Safety Law No. 6331, one of the main obligations of the employer is to ensure the occupational health and safety of employees. Accordingly, it is the employer’s obligation to inform employees about the pandemic; to ensure that hygiene products such as soap, cologne and hand sanitizer are available in sufficient numbers and at all times in the workplaces; and to ensure the cleanliness of the workplace and ventilation of the working environments. The effects of the pandemic on factors such as leaves, working order and duration are evaluated under the main headings below:
- Remote Working
The first practice recommended by experts to prevent the rapid spread of the coronavirus outbreak is social isolation. In this context, in order to respond to the experts’ call to “Stay at Home”, many employers have recently enabled their employees to switch to a remote working model. The concept of telecommuting is defined in Article 14 of the Labor Law No. 4857 (“Labor Law”) and according to this provision, telecommuting is the employment relationship established in writing and based on the principle that the employee performs his/her work at home or outside the workplace through technological communication tools within the scope of the work organization established by the employer.
- Paid Leave Application
The concept of paid leave is also a concept addressed in the Labor Law; annual paid leave is granted to employees who have worked for at least one year, including the probationary period, from the day they start working at the workplace. In addition, it is not possible to give up the right to annual paid leave. It is also possible for the personnel who are entitled to paid leave to be granted annual paid leave. The employer determines when the annual leave can be used during the year and the employer must use this right in good faith. Employers are required to notify the employee in writing of the date range to be used for annual leave.
- Collective Leave Application
Article 10 of the Regulation on Annual Paid Leave, which entered into force after being published in the Official Gazette dated March 3, 2004 and numbered 25391, enables the employer to apply collective leave covering all or some of the employees between the beginning of April and the end of October. Therefore, it is also possible to apply this practice as of April at the discretion of the employer according to the conditions of the day. When this practice is applied, the leave board established by the employer arranges and announces the leave schedules according to certain conditions in a way to show the end of the leave period of each employee.
- Unpaid Leave of Absence
In the Labor Law, unpaid leave is regulated only for the following cases: Unpaid leave to be granted to a female employee upon her request for a period of 6 months from the end of her maternity leave and to one of the spouses who adopts a child under 3 years of age, and unpaid travel leave up to 4 days to an employee who certifies that he/she will use his/her annual leave outside the location of the workplace.
However, apart from these two cases, it is also possible to suspend the employment contract with the unpaid leave application if the parties to the employment contract reach a mutual written agreement. At this point, it should be noted that it is not possible for the employer to apply unpaid leave with a decision made by the employer alone. The employer’s taking the employee on unpaid leave without the consent of the employee is considered as an active termination of the employment contract within the scope of the jurisprudence of the Court of Cassation. If the consent of the employee is not obtained, there is a risk of facing a reinstatement lawsuit and ultimately paying a compensation of 8-12 (eight to twelve) salaries. In order to eliminate this risk, in order to grant unpaid leave to the employee, the employer must make an unpaid leave offer to the employee and obtain written consent from the employee within six (6) working days.
- Implementation of Short-Time Working Allowance
Another method that has recently come to the agenda more frequently with the rapidly spreading COVID-19 pandemic is the “short-time working practice” and “short-time working allowance”. Short-time working covers the cases where the weekly working hours in the workplace are temporarily reduced by at least one-third due to general economic, sectoral, regional crisis or compelling reasons, or the activities in the workplace are completely or partially stopped for at least 4 (four) weeks without the condition of continuity. In this case, insured persons who meet the conditions of unemployment insurance are provided with income support for the period they cannot work, not exceeding three (3) months. This period can be extended up to six (6) months by Presidential decree.
- Compensatory Work
Pursuant to Article 64 of the Labor Law; in cases where the work is stopped due to compulsory reasons, the workplace is closed before or after national holidays and general holidays, or the workplace is significantly below the normal working hours or completely closed due to similar reasons, or the employee is given leave upon the request of the employee, it is regulated that the employer may have compensatory work for the periods not worked within 2 (two) months (this period has been extended to four (4) months within the scope of the action plan announced on 18.03.2020). In this context, if compensatory work is made for the days not worked due to the COVID-19 outbreak, the work done within this scope will not be considered overtime work or overtime work. In practice, compensatory work should not be more than three (3) hours a day, provided that the maximum daily working time of eleven (11) hours is not exceeded, and compensatory work should not be done on holidays.
- Termination of the Employment Contract for Compelling Reasons
Article 25, Paragraph 3 of the Labor Law No. 4857 stipulates that the employer may terminate the employment contract for just cause after the expiry of one week in the event of a force majeure event that prevents the employee from working for more than one week. What is important in practice in terms of this provision is that the force majeure occurs not in the workplace, but in or around the employee himself/herself. In this context, in the doctrine and the relevant Supreme Court decisions, situations such as the interruption of transportation due to natural events such as floods, snow, earthquakes, the prohibition of leaving the region due to epidemics, curfew, quarantine, etc. are considered as compelling reasons within the scope of the termination of the employment contract by the employer.
- Termination for Valid Reason
If the termination of the employment relationship for valid reasons is being considered, although it can be argued that the sector has been adversely affected due to business requirements, economic difficulties and in addition to these, due to the principle of last resort, in a possible dispute, the court will consider the fact that the employment relationship between the employee and the employer should be continued uninterruptedly and that a positive result has not been achieved despite all measures have been taken for this requirement. In this case, first of all, as we have stated above, the fact that the options of remote working, offering different positions, taking annual leave, offering unpaid leave or applying short-time working allowance have been applied in the workplace and still no solution has been reached will make the termination valid. Even in this case, and at all times, there may be a risk of reinstatement proceedings and, ultimately, the payment of 8-12 salaries in compensation.
III. TAX IMPLICATIONS
On March 18, 2020, within the scope of the Economic Stability Shield announced at the Anti-Corona Virus Coordination Meeting held under the chairmanship of President Recep Tayyip Erdoğan; April, May and June payments of withholding tax and VAT withholding and SSI premiums for Retail, Shopping Mall, Iron-Steel, Automotive, Logistics-Transportation, Cinema-Theater, Accommodation, Food-Beverage, Textile-Apparel and Event-Organization sectors were postponed for 6 months each, it was decided not to apply the accommodation tax until November, and the VAT rate was reduced from 18% to 1% for domestic airline transportation for 3 months.
In addition, the Ministry of Treasury and Finance (Revenue Administration) issued the General Communiqué on Tax Procedure Law (Sequence No: 518), which entered into force majeure provisions of the Tax Procedure Law No. 213 for the taxpayers directly affected by the corona virus outbreak and the measures taken within this scope, which was published in the Official Gazette dated 24.03.2020 and numbered 31078. In this context, the taxpayer groups that will benefit from force majeure are classified under the following headings:
Retail Trade and Shopping Centers,
Iron, Steel and Metal Industry,
Automotive Manufacturing and Trade and Parts and Accessories Manufacturing for Automotive Industry,
Logistics and Transportation, including Warehousing Activities,
Artistic Services such as Cinema and Theater,
Accommodation Activities Including Tour Operators and Travel Agencies
Food and Beverage Services Including Restaurants and Cafeterias
Textile and Apparel Manufacturing and Trade
Event and Organization Services
Health Services
Furniture Manufacturing
Mining and Quarrying
Construction
Industrial Kitchen Manufacturing
Car Rental and
Printed Publications and Printing
IV. EFFECTS ON THE JUDICIAL PROCESS
In addition, pursuant to Provisional Article 1 of the Law No. 7226 on the Amendment of Certain Laws published in the repeated issue of the Official Gazette dated March 26, 2020 and numbered 31080; in order to prevent loss of rights in the jurisdiction due to the corona virus outbreak in our country;
All periods regarding the birth, use or termination of a right, including the periods for filing a lawsuit, initiating enforcement proceedings, application, complaint, objection, warning, notification, submission and statute of limitations, forfeiture periods and mandatory administrative application periods; The periods determined for the parties in the Administrative Procedure Law dated 6 January 1982 and numbered 2577, the Criminal Procedure Law dated 4 December 2004 and numbered 5271, the Code of Civil Procedure dated 12 January 2011 and numbered 6100 and other laws containing procedural provisions and the periods determined by the judge within this scope and the periods in mediation and conciliation institutions from 13 March 2020 (including this date), The periods specified in the Enforcement and Bankruptcy Law dated June 9, 1932 and numbered 2004 and other laws on enforcement and bankruptcy proceedings and the periods determined by the judge or enforcement and bankruptcy offices within this scope; All enforcement and bankruptcy proceedings, parties and proceedings, receipt of new enforcement and bankruptcy proceedings requests, execution and execution of precautionary attachment decisions, except for enforcement proceedings regarding alimony receivables, have been suspended from March 22, 2020 (including this date) until April 30, 2020 (including this date). These periods shall start to run from the day following the day on which the suspension period ends. Periods that have fifteen days or less to expire as of the date the suspension period begins shall be extended by fifteen days starting from the day following the day the suspension period ends. In the event that the pandemic continues, the President of the Republic shall be authorized to extend the suspension period once for a period not exceeding six months, and the President of the Republic shall be authorized to narrow the scope of this period.
However; the following periods are excluded from the scope of this article:
The statute of limitations for crimes and punishments, misdemeanors and administrative sanctions, disciplinary imprisonment and restraint imprisonment,
5271 numbered Criminal Procedure Law on the duration of the protection measures regulated in the Criminal Procedure Law,
6100 numbered Code of Civil Procedure regulated in the interim injunction periods related to the transactions that complete,
Law No. 2004 on Execution and Bankruptcy and other laws on enforcement law;
In the event that the sale day announced by the enforcement and bankruptcy offices regarding the goods or rights falls within the suspension period, a sale day is given by the enforcement and bankruptcy offices for these goods or rights without a new request after the suspension period. In this case, the sale announcement shall only be made electronically and no fee shall be charged for the announcement,
Payments made voluntarily during the cooling-off period are accepted, and either party may request that proceedings in favor of the other party be taken,
The consequences of the concordat suspension for the creditor and debtor shall continue during the suspension period,
Other necessary measures shall be taken in order to prevent the disruption of execution and bankruptcy services.
Finally, all other measures to be taken during the suspension, including the postponement of hearings and negotiations, and the procedures and principles regarding these measures are determined by the relevant Council of Presidents for the Court of Cassation and Council of State, the Council of Judges and Prosecutors for the first instance judicial and administrative judicial authorities and regional courts of justice and regional administrative courts, and the Ministry of Justice for justice services.
MOST ASKED QUESTIONS
Does the coronavirus pandemic constitute ‘force majeure’?
What is force majeure? “Force majeure is an extraordinary event that occurs outside the activity and operation of the responsible or debtor, which leads to the violation of a general norm of behavior or obligation in an absolute and inevitable manner, which cannot be foreseen and resisted (Eren, F.: Obligations Law General Provisions, Ankara 2017, p. 582). Natural disasters such as earthquakes, floods, fires, epidemics are considered force majeure.”
As defined at the top, a disease declared a pandemic can easily constitute force majeure. Unfortunately, the lawyers of some institutions are making statements that there is no force majeure even in the current horrible state of the world. In an environment where people cannot even leave their homes, it is not possible for them to continue their business life as if nothing had happened.
If the corona virus is a force majeure, how will this situation affect commercial activities and all kinds of legal contracts?
First of all, it should be noted that accepting the corona virus as a force majeure does not mean that it will be accepted “everywhere in the world”. For example, if the disease has not spread to the African continent, it does not affect trade between countries in the African continent. But it does affect trade between an African country and Italy, where the disease is prevalent. However, for those where the disease is active but there is no impossibility of performance (impossibility to fulfill the obligation), the obligations must be fulfilled in accordance with the “rule of good faith”. For those who are in a place where the disease is active, although there will be no problem of proof against the claim that the obligation is not fulfilled, it is important not to disrupt the obligations in accordance with the rule of good faith.
Can a state of emergency be declared due to the coronavirus?
Yes, it can. Articles 119 and 120 of the Constitution of the Republic of Turkey regulate the circumstances under which the Council of Ministers, which will convene under the chairmanship of the President of the Republic, may declare a state of emergency.
Accordingly, in cases of natural disasters, dangerous epidemics or severe economic depression, a state of emergency may be declared for a period not exceeding six months in one or more regions or the whole country.
As a matter of fact; State of Emergency was declared in countries such as the USA, Italy and Spain due to the corona virus. Although the declaration of a state of emergency may create a more time-saving environment in terms of legal procedures, it is now a phobia in Turkey. Of course, a state of emergency does not necessarily need to be declared in terms of the measures to be taken against the disease. However, given that the disease is increasing rapidly and exponentially, if the numbers reach an unstoppable point, a declaration of a state of emergency will be on the agenda.
Are we obliged to report someone suspected of having the coronavirus?
Yes, the law imposes such an obligation on us:
Article 432 of the Turkish Civil Code:
Every adult person who poses a danger to the society due to mental illness, mental weakness, alcohol or drug addiction, severe dangerous infectious disease or vagrancy shall be placed in a suitable institution for his treatment, education or rehabilitation or may be detained if his personal protection cannot be provided in any other way. Public officials who learn of the existence of one of these reasons while performing their duties are obliged to immediately notify the competent guardianship authority.
Can a person who is infected with the coronavirus be punished?
Yes, if he or she infects knowingly. According to criminal law, in order for a crime to occur, the moral element must be fulfilled, i.e. the presence of ‘intent’. If a person is aware that he or she has the coronavirus (for example, if he or she has tested positive) and infects someone else, the crime of “intentional killing or wounding” will come into question. Of course, in practice, it is not possible to talk about such a situation at this stage, as the person with coronavirus is immediately quarantined. But in the future, when the number of cases increases, completely different situations may arise. However, if a person is aware that he/she has the symptoms of the coronavirus and has not taken the necessary precautions, if he/she infects someone else, this time “injury/kill with probable intent” may come to the fore. It is our civic duty to take all possible measures to keep the disease under control.
Will the person who does not comply with quarantine rules be punished?
Yes. He/she will be punished. Article 195 of the Turkish Penal Code is very clear:
Violating measures related to infectious diseases
Article 195- (1) Any person who fails to comply with the measures taken by the competent authorities to quarantine the place where a person who has contracted one of the infectious diseases or who has died from one of these diseases is located shall be sentenced to imprisonment from two months to one year.
Can unpaid leave due to coronavirus be deducted from annual leave?
The most common complaint we come across in this process is that employers force workers to use their accumulated annual leave and give unpaid leave to workers and deduct this leave from their annual leave. No employer can force an employee to take annual leave. This is another picture of capitalist opportunism and capitalist self-interest. If the worker wants to take annual leave, of course they can.
However, “unpaid leave” is a right that is exercised by mutual consent, according to Supreme Court decisions. Considering the danger of the corona virus and force majeure, employers should allow workers to use this right as much as possible. The leave used by the employee who uses his/her right to unpaid leave cannot be deducted from his/her annual leave. In addition, according to Article 55 of the Labor Law, the period of unpaid leave is among the situations that are considered as if the employee has worked in terms of annual leave. However, there is a day limit.
Is the corona virus a just cause for termination of employment?
It is not. Not only for coronavirus, but for all diseases, if an employee is sick and there is a possibility of recovery, it is not a just cause of termination for the employer. However, if it is certain that the disease cannot be cured and it is inconvenient for the employee to work at the workplace, the employer may consider a valid termination. Our advice is not to resort to this unless there is a real health problem. This is because the Court of Cassation has ruled that taking frequent medical reports may be considered a just cause of termination for the employer.
Can the employer grant “paid leave” to employees during this period?
The types of paid leave are limited in the law: Annual leave, maternity leave, half-day maternity leave, marriage leave, paternity leave, death leave, leave for the treatment of disabled children, periodic check-up leave, milk leave, job search leave and adoption leave.
But around the world, paid leave has been introduced due to the corona virus. Starbucks has decided to give its employees paid leave, which it calls “disaster pay”. The company’s aim is to allow employees to stay home and quarantine their homes for 14 days in case they are exposed to Covid-19, become symptomatic, or need to care for loved ones. At the end of the 14 days, workers will be able to switch to vacation pay, sick pay or personal leave as needed.
This is of course what workers in our country are demanding at the moment, because the danger is great and there is a shortage of livelihoods. On the other hand, of course, production must not stop. It is very important that companies take the initiative in this direction and give workers paid leave as much as possible.
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