A workplace practice can be defined as an unwritten agreement that becomes a contractual provision with the explicit or implicit acceptance of a benefit in favor of the employee, which is provided by the employer unilaterally, continuously and under the same conditions, and which does not arise from any contractual or legal obligation. Financial support and payments to the employee such as bonuses, premiums, meals, gasoline and travel allowances can be considered as workplace practices unless they are already specified in the employment contract or workplace internal regulations.
In order for a practice to become a “workplace practice”, this practice must;
It must be of a general nature, be applied continuously, be provided under the same conditions, and not be conditional or arise from the employer’s mistake.
The generality of the workplace practice means that all workers or at least a certain group of workers (of the same qualification/position or working in the same department, etc.) benefit from the relevant practice.
Although there is no precise or clear criterion for continuity, for example, the Court of Cassation has stated that the payment of bonuses to the employee for a period of more than three years will constitute a workplace practice in this sense and thus this issue will be claimable.
The repetition of a course of action as a result of the same reasons means that the course of action in question is a practice that arises under the same conditions. In this respect, for example, the continuous provision of meals to a certain group of workers would be a workplace practice, even if the amount of such provision varies from time to time according to the particular circumstances.
When the aforementioned conditions are met, the workplace practice in question will be binding on the employer and cannot be unilaterally abolished without the written consent of the employee. As a matter of fact, the Court of Cassation has stated in its jurisprudence that the employer cannot remove any workplace practice that has become a (written) working condition for the employer, and that this workplace practice can only be changed or removed with the written consent of the employee in accordance with Article 22 of the Turkish Labor Law No. 4857.[1]
Despite the foregoing, it is accepted in the doctrine and some decisions of the Court of Cassation[2] that the benefits provided to a group of employees conditionally or brought in favor of the employee by the employer’s mistake will not be considered as a workplace practice. Indeed, the doctrine argues that if the employer unilaterally reserves the right to waive the right to provide such benefits to the employee, the practice will not be binding for the following years or months. On the other hand, if the employer proves that it has overpaid certain employees as a result of its own fault, this payment will not be deemed to have become a workplace practice, although this is unlikely to be the case in practice.
In this framework, it would be appropriate for employers to sign a written agreement with the employees whose working conditions they intend to improve and to include in the said agreement that the employer reserves the right to change these conditions in the future.
[1] 9th Chamber of the Court of Cassation, decision dated December 26, 2008 and numbered 34000/35532.
[2] 9th Chamber of the Court of Cassation, decision dated October 9, 2003 and numbered 14185/16421.
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