27.07.2021
How Long Does a Worker in Turkey Have to Work at Least in order to be entitled to Annual Paid Leave?
The legal regulation regarding annual paid leave has been made in the articles 53 to 61 of the Turkish Labor Law No. 4857, and with the Annual Paid Leave regulation published in the Official Gazette dated March 3, 2004, the procedures and principles of annual paid leaves were determined.
In this article, in the light of the explanations made in the Turkish Labor Law and the Regulation, we will discuss the main issues and some specific situations regarding annual paid leave under the headings.
1- At least how long does an employee have to work in order to be entitled to annual paid leave?
In order to be entitled to annual paid leave, the employee must have worked for at least one year, including the probationary period, from the day s/he started working at the workplace. We understand that there are hesitations about whether the probationary period is included in the calculation of the annual leave or not in some questions. Since it is clearly stipulated in Article 53 of the Labor Law that the probationary period will also be taken into account in the calculation of annual paid leave, this issue is not open to interpretation and the probationary period must be taken into account in the calculation of annual paid leave.
2- Can the right to annual paid leave be renounced?
It is not possible for the annual paid leave to be renounced or deleted by the workplace.
The provisions of the Labor Law regarding annual paid leave do not apply to those working in seasonal or campaign jobs lasting less than one year due to their qualifications.
The employee cannot waive his right to annual paid leave, and cannot ask for his/her money instead.
Pursuant to the provision of Article 50 of the Constitution, it is stated that “……. Resting is the right of employees. The rights and conditions of paid week and festive holidays and paid annual leave are regulated by law.” In accordance with this provision of the Constitution, when the regulations in the Labor Law No. 4857 are considered collectively, the employer and the employee are obliged to rest without working on the Week Holidays, National and Official holidays and annual paid leave days, except for the extraordinary situations listed in the laws.
The exception to this rule under normal conditions is the payment of the wage corresponding to the unused annual leave right, if any, at the time of termination of the employment contract. Apart from this, it is not legally possible for the employer to offer the employee the wage of the leave instead of taking annual paid leave in order not to disrupt the work, or employee can’t ask for the leave money instead of taking the leave to increase his/her income.
The law is based on the use of annual paid leave rights by the employee for the purpose of rest. According to the law, the employee and the employer cannot offer each other to pay their accumulated leave rights in cash while the employment contract continues. However, if the employee resigns from the job or the employer terminates the employment due to dismissal or other reasons, unused leave entitlements must be paid to the employee in cash. One of the issues that are confused here is whether the accumulated annual paid leave rights will be paid if the worker resigns or not. It doesn’t matter whether the payment of unused annual paid leave entitlements is resigned or the employment contract is terminated by the employer. The accumulated annual paid leave rights of the employee whose employment contract is terminated must be paid in cash to him/her, if any. These payments made during the termination of the employment contract should be considered as wages and deductions from taxes and SSI premiums should be made.
3- Annual paid leave periods vary according to the seniority of the employee.
The annual paid leave period to be given to the workers is determined according to the seniority of the employee, that is, the total working time at the workplace.
Annual paid leave period according to working time (seniority) at the workplace;
a) It cannot be less than 14 working days for those who are working for 1 to 5 years (including five years)
b) It cannot be less than 20 working days for those who are working more than 5 years and less than 15 years.
c) It cannot be less than 26 working days for those who are working for 15 years (including) and more.
Since Saturdays are determined as working days in the Labor Law, they are counted as working days in the annual paid leave calculation. It does not matter whether there is work on Saturdays or not in the calculation of annual paid leave. The workplaces where the week holiday is applied as two days on Saturday and Sunday should make the annual paid leave calculation on Saturday as if it were a working day. In the above section, the annual paid leave days determined according to the employee’s seniority will be calculated as working days on Saturday.
For example, in a workplace where there is no work on Saturdays and Sundays, the annual paid leave period that will start on August 1, 2021 and will last 14 working days for an employee who has completed 2 years of working period and therefore is entitled to 14 working days of annual paid leave will be as follows.
Leave start : August 2, 2021
Leave days : 14 working days
Starting date to work : August 18, 2021
The days of 8 and 15 August 2021, which coincide with the employee’s leave period, are added to the 14 working days leave period and the leave period is calculated as 16 calendar days (14+2). Although there is no routine work at the workplace on Saturdays -7 and 14 August 2021- are taken into account as working days in the annual paid leave calculation.
Annual paid leave periods of workers working in underground works will be increased by 4 working days. (4857/53.art.)
The annual paid leave period to be given to workers aged 18 and younger and workers aged 50 and over cannot be less than 20 working days. (Article 4857/53)
Annual leave periods can be increased by employment contracts and collective labor agreements concluded between the employer and the employee. (Article 4857/53)
4- Period of entitlement and use of annual paid leave
In the calculation of the period required to be entitled to annual paid leave, the periods that the employees worked in one or several workplaces of the same employer are taken into account by combining them. In so far, the period of time spent by the employees working at an employer’s workplace within the scope of the Labor Law, at the workplaces of the same employer without being covered by the Labor Law, is also taken into account. In the valid article 4 of the Labor Law, it is stipulated in which jobs the Labor Law is not valid. Accordingly, the working hours of a worker in the workplaces under the control of the same employer will be considered as a single workplace in the calculation of annual paid leave.
For example, in a limited company under the control of the same employer and in a workplace where three people work in accordance with the definition of Article 2 of the Tradesmen and Craftsmen Law No. 507, in a workplace where there is bag trading business, the annual paid leave period of the worker who works alternately and part-time at different times, but continues to work in two places without interruption, will be calculated as if he was working in one place.
5- From what date does the calculation of the entitlement to the next year begin?
The one-year service period required for the worker’s future leave entitlements is calculated from the day the previous leave entitlement arises, to the next service year.
Example:
Employment starting date : August 1, 2020
Date of entitled to annual leave : August 1, 2021
The date on which the permit was granted for the following year : August 1, 2022
6- Circumstances to be taken into account in the annual leave calculation
Some situations that are considered to be worked in the calculation of the annual paid leave entitlement are given below.
a) The days when the worker cannot go to work due to an accident or illness (However, no more than the period stipulated in the sub clause (b) of clause (I) of Article 25.)
b) The days when female workers are not employed before and after giving birth in accordance with Article 74.
c) The days when the worker cannot go to work during assignment due to maneuvers or any law other than regular military service (more than 90 days per year of this period is not counted).
d) Fifteen days of the time the worker spends without working as a result of the work being suspended for more than one week due to compelling reasons at the workplace (provided that the worker starts working again).
e) The times mentioned in Article 66 of the Labor Law titled as the cases counted as working time.
f) Weekends, national holidays, general holidays
g) According to the regulation issued on the basis of the Law No. 3153, the half-day leaves to be given to those working in x-ray clinics other than the Sunday
h) The days when they cannot continue their work due to their participation in mediation meetings, their participation in arbitral committees, and their representation of workers in these committees, in the assembly, board, commission and meetings established in accordance with the legislation on working life or in conferences, congresses or boards of international organizations related to labor issues as a worker or union representative
ı) (Amendment: 4/4/2015-6645/35 art.) Leave periods listed in Annex 2,
j) Other leaves granted by the employer and short working periods in Article 65.
Fifteen days of the time that the worker spends without working as a result of the work being suspended for more than one week due to compelling reasons at the workplace (provided that the worker starts working again)
One of the issues that has been frequently wondered recently is whether the Short-Time Working Times applied during the pandemic period will be taken into account in the annual paid leave calculation or not. According to Article 55 of the Labor Law, 15 days of the time spent in the Short-Time Working Allowance are taken into account in the calculation of annual leave. Let’s continue by stating that there is a court decision to the contrary in this regard.
k) The annual paid leave period granted to the worker as a result of the implementation of this Law.
7- Can annual paid leave be divided?
As a rule, the annual paid leave cannot be divided by the employer, and it must be given by the employer on a continuous basis within the period of time due according to seniority. However, if the employee and the employer agree, leave periods can be used in sections, some of which are not less than 10 days.
Example:
The annual paid leave period can be determined as follows, with the employee and employer’s mutual agreement.
First leave period : 2 August 2021 – 13 August 2021 (10 working days and 1 Sunday)
Second leave : 26 August 2021 (1 Business Day)
Third leave period : 31 August 2021-1 September 2021 (2 Business Days)
Third leave : 7 September 2021 (1 Business Day)
8- Can unpaid leaves during the year be deducted from annual leave?
Other paid and unpaid leaves or rest and sick leaves granted by the employer during the year cannot be deducted from annual leave.
Unpaid leaves given during the year will be deducted from the monthly wage in the period of use. The employer cannot deduct for unpaid leaves.
9- Are the holidays that coincide with the annual leave period deducted from the leave day?
In the calculation of annual paid leave days, national holidays, weekdays and general holidays that coincide with the leave period are not counted from the leave period. In other words, the annual leave of the employee is extended as much as the national and religious holidays and other legal holidays that coincide with this period.
Holidays and other public holidays;
National Holiday Day 29 October;
From 13.00 on 28 October to 29 October: 1.5 days
Official holidays are:
* National Sovereignty and Children’s Day on April 23: 1 day
* May 19 is the Commemoration of Atatürk and Youth and Sports Day: 1 day
* August 30 Victory Day: 1 day
Religious holidays are:
* Feast of Ramadan; From 13.00 on the day of Eve: 3.5 days
* Feast of Sacrifice; From 13.00 on the day of Eve: 4.5 days
Other holidays are:
January 1, New Year’s holiday: 1 day
May 1, Labor and Solidarity Day holiday: 1 day
July15, Democracy and National Unity Day: 1 day
10- Right of Unpaid Travel Leave
The employer is obliged to give unpaid leave of up to four days in total to cover the time spent on the way to and from those who will spend their annual paid leave at another place where the workplace is not located (in another city or in another country), provided that they make a request and document it. Unpaid leave will be deducted from the relevant month’s pay.
The employer is also obliged to keep a leave registration document showing the annual paid leaves of the workers working in the workplace.
11- If the subcontractors change, will there be a loss in the annual leave rights of the employees?
The annual paid leave period of subcontractor workers who continue to work at the same workplace even though their subcontractor has changed is calculated by taking into account the periods they have worked at the same workplace.
The main employer is obliged to check whether the annual paid leave periods to which the workers employed by the subcontractor are entitled are used and to ensure that they are used within the relevant year, while the subcontractor is obliged to give a copy of the leave registration document to the main employer.
12- Wage must be paid in advance before annual leave
As a rule, the employer is obliged to pay the wages before or in advance for the annual leave period to each worker who uses his/her annual paid leave before the worker starts his/her leave.
Weekly holidays, national holidays and public holidays that coincide with the annual paid leave period must also be paid separately. (4857/57)
13- It is forbidden to work elsewhere while on annual leave
If it is understood that the worker who is using his/her annual paid leave is working in a paid job during the leave period, the wage paid to him/her during this leave period can be withdrawn by the employer. (4857/58)
14- The accumulated annual paid leave receivable must be paid in cash only when the employment contract is terminated.
If the employment contract is terminated for any reason, the employee’s wage for the annual leave periods that s/he is entitled to but not used is paid to himself/herself or to the beneficiaries over the wage on the date of the termination of the contract. The statute of limitations for this wage starts from the date of termination of the employment contract.
In case of termination of the employment contract by the employer, the notice period and the compulsory new job search permits cannot be intertwined with the annual paid leave periods.
15- The employer determines when the annual leave will be used according to the nature and characteristics of the job.
The worker must notify the employer in writing at least one month before the time s/he wants to use the annual paid leave s/he is entitled to.
The leave board or the employer is not bound by the date of use of the leave requested by the worker. However, the schedules to be prepared by the said committee to show the order and rotation of the leave are prepared by taking into account the worker’s demand and work situation.
For permission requests that coincide with the same date: Priorities are determined by taking into account the seniority at the workplace and the date of the previous year’s leave.
The employer or employer’s representatives, in consultation with the leave board or its successors, can determine that annual paid leaves will be given in a certain period or periods of each year, depending on the nature and characteristics of the work carried out in the workplace. It is announced at work.
If travel leave permit holders return to work without using this period, the employer may not start them before the expiry of the said period.
16- Explanations on the mass leave permission application
The employer or employer’s representative may apply mass leave covering all or some of the workers between the beginning of April and the end of October.
When mass leave is applied, the leave board arranges and announces the leave schedules in such a way that the workers who will take the mass leave will start the leave at the same time and show the end of the leave period of each worker according to the leave periods and travel leave requests of the employees.
Mass leave periods can be determined to include workers who have not yet earned the right to annual paid leave during these periods. In so far, if this mass leave method is not applied in the following year or years, the date on which those in this situation will be entitled to the next annual paid leave is determined according to general principles.
In case of mass leave, the employer or employer’s representative may exclude a sufficient number of workers from the mass leave for compulsory situations such as the protection of the workplace, the maintenance, preparation, cleaning or security of the tools, equipment, equipment or machinery in the workplace.
Those who are in this situation are given their annual leave before or after the mass leave period, on any date when they want.
17- How are the annual paid leave entitlements of part-time employees calculated?
Employees working part-time or with on-call employment contracts benefit from the annual paid leave like full-time employees and cannot be subjected to different treatment.
Employees who work part-time or with on-call employment contracts, as long as their employment contracts continue, use the leave they are entitled to for each year by not working on part-time working days that fall within the next year’s leave period.
No distinction can be made between the part-time or on-call workers who are entitled to leave according to the specified principles, and the full-time workers, in terms of annual leave periods and leave wages.
18- Are premiums taken into account in the annual paid leave calculation?
While determining the leave wage, the wages to be received in return for overtime, premiums, social benefits and the permanent worker of the workplace and the wages of the workers working in preparation, completion and cleaning works outside of normal hours are not taken into account.
19- Are the annual leave rights of retired employees the same?
A person who retires from one of the 4/a, 4/b and 4/c statuses (Formerly Social Insurance Institution, Social Security Organization for Artisans and the Self-Employed and Retirement Fund) starts to work in a workplace subject to the Labor Law, and is paid to the SSI separately from the regular employees and under the name of Social Security Support Premium.
There is no difference between retired employees and regular employees in the calculation of annual paid leave entitlements. Retirees who have worked for one year, even in different workplaces of the same employer, including the probation period, have the right to annual leave of 14 working days, just like regular employees. However, if the retiree is over 50, the day off must be at least 20 working days.
20- Do unused annual paid leave entitlements transfer to subsequent years?
Any written or verbal action taken by employers to destroy the accumulated annual paid leave rights of the employees for the relevant year or previous years, for whatever reason, is illegal. If such a situation arises, the employee has the right to file a lawsuit to claim annual paid leave rights, taking into account a 5-year statute of limitations from the termination of the employment contract.
Employees whose employment contract continues must be exercised within reasonable periods of their accumulated annual leave, if any.
Ali KARAKUŞ
CPA and Independent Auditor
www.karenaudit.com
July 2021
Istanbul
Source: Edited by: Ali Karakuş – Translated by Karen Audit – The rights of this translation belong to KarenAudit and unauthorized use is prohibited.
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