ANNUAL LEAVE APPLICATION IN LABOR LAW

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Summary: In addition to the wages of the employee as a result of working in the workplace and in return for her labor, one of the rights their entitled to is the “Annual Leave Right” with the Labor Law No. 4857. In this way, it is ensured that the worker is rested for a certain period of time each year, thus protecting their health and replenishing the workforce. According to the article 53 of the Labor Law numbered 4857; It is regulated that “workers who have worked at least one year from the day they start working, including the trial period, are given paid annual leave …”. Therefore, it is not legally possible for the employee to waive his annual leave right in return for a wage. As a matter of fact, even if a regulation in this direction is included, such contract provisions are invalid. The nature of paid annual leave; necessarily requires it to be used for the employee and to be used for the employer.

According to the Labor Law No. 4857, Article 53, “The paid annual leave and period of services to be given to the workers are regulated as follows.

  1. 14 days for those from 1 year to 5 years (including 5 years),
  2. 20 days for those who have more than 5 years and less than 15 years,
  3. May not be less than 26 days for those with 15 years (including) and more. The annual paid leave period of the workers working in underground works is increased by 4 days each. The paid annual leave period for workers aged 18 and younger and those aged 50 and over may not be less than 20 days. 

As it may be understood from the article of the law, the said annual leave periods to be provided to the employee cannot be less than the periods specified in the law. However, it will be possible to determine and decide over these periods, that is, in favor of the worker. The shortening or abolition of this leave by deducting the leaves given by the employer for other reasons during the year from the paid annual leave is prevented in accordance with Article 56/4 of the Labor Law. 

According to the 53rd Article of the Labor Law; In order for the employee to be entitled to paid annual leave, he must have worked for at least one full year from the day he actually started working. If a probation period is agreed in the employment contract, the probation period is included in the calculation of the required year. On the other hand, workers who do not complete one year are not entitled to a paid leave. It is not compulsory for the employer to work at the same workplace for one year, which is necessary to gain the right to paid annual leave. In this regard, the periods that the same employer worked in one or several workplaces are taken into consideration by combining them. At the same time, according to the High Court case law; It is also not considered compulsory for the employee to work uninterruptedly in the same or different workplaces. 

The procedure for requesting leave is explained in the Article 7 of the “Regulation on Annual Paid Leave”, which was prepared and put into effect by Article 60 of the Labor Law No. 4857. According to this article, the employee must notify the employer at least one month in advance. In the 8th article of the same regulation; It has been stated that the employer is not bound by the employee’s date of leave, and the leave period will be determined by considering the employee’s demand and job status. And even according to the High Court case law; “Since determining the time of annual leave is within the management right of the employer, it is not possible for the employee to leave on his own. If the employee does not come to the workplace by stating that he is using his annual leave, it constitutes a state of absence unless he is deemed to be on leave by the employer”. Therefore, the fact that the employee is entitled to annual leave in accordance with the law does not mean that the employee can use these leaves at any time. The employee must notify the employer of this request in a reasonable period of time, and the employer must have approved this leave period in accordance with the workflow. 

If the employee gets sick and gets rest during the paid annual leave, the time spent in the sickness must be added to the leave period. Because, according to the constitution, the purpose of granting the employee the right to paid annual leave is to ensure that the employee is fully rested for a certain period of time during the year. The period of leave must be passed for this purpose only.

According  to Article 56/6 of Labor Law No. 4857; the employer is obliged to give unpaid leave up to 4 days in total to meet the travel time on their departure and return, provided that they make a request and document this matter, those who will spend their annual paid leaves in a place other than where the workplace is located. Although their will not spend the permit elsewhere; since this behavior of the worker who receives a road permit is contrary to the duty of loyalty, the employment contract of the worker may be terminated by the employer for justified reasons. As stated in the Supreme Court case law, road permit is only a matter of paid leave. Otherwise, the employee may face sanction for termination of the contract due to absenteeism.

Again, according to the Supreme Court case law; “The burden of proof at the point where annual leaves are granted belongs to the employer.” The employer must prove that the annual leaves are granted with a signed leave book or an equivalent document. The employer, who is over the burden of proof, may offer the employee to take an oath.

As long as the business relationship continues, the employer has to give the employee the annual paid leave their deserve, albeit delayed. As long as the worker continues to work; without using the paid annual leave right, they may not claim the leave fee arising from this. However, if the work contract ends before the employee may use tehir deserved permission; since the use of this right has become impossible, the fee for the period of leave that he deserves but may not use is paid to their or to the right holders.

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