RIGHT TO REFRAIN FROM FULFILLING OBLIGATIONS IN CASE OF NON-PAYMENT OF WAGES ON THE DAY DUE

ABSTRACT:

The right to refrain from fulfilling obligations has been regulated in the Turkish Labour Law, Article 34 as “The employee whose wage has not been paid within twenty days of the day it was due, except for force majeure, may refrain from fulfilling his obligation to work. Even if refraining from work by employees based on their personal decisions takes on the character of a concerted action in quantifiable terms, it shall not qualify as a strike. The highest interest rate charged to bank deposits shall be levied on wage debts not paid on the day they were due. Employment contracts of such employees shall not be terminated solely because they have refrained from working for this reason; no replacements shall be hired, nor may such work be performed by others.” In this context, in the event that the Employee stops fulfilling his obligations, while the contract of employment still being in force, the contract cannot be terminated due to this reason since the Employee’s obligation to work would be eliminated.

EXPLANATIONS:

All Employees employed by an Employer are subject to Labour Law No. 4857 and have the “Right to Refrain from Fulfilling Obligations” regardless of their status in the workplace. The refrainment of fulfilling obligations to be examined in this study is regulated in Labor Law No. 4857 and means that if the Employee’s wage is not paid within the legal period, the Employee’s  obligations  will be eliminated. According to Article 34 of the Labor Law, the Employee whose wages are not paid within twenty days from the day of payment, except for a force majeure, has the right to refrain from fulfilling Employee’s work debt. At this point the concept of Employee pay should be examined in priority. A wage is, by legal definition, the amount provided to a person by an employer or third party in exchange for a job and paid with money. For example, if the subcontractor does not pay the Employees’ wages and therefore the wages have been paid by the principal employer, the wages will be count as paid and the right to refrain from working shall not be enforced. In addition, the wage concept, as a rule, is a payment for the work done, overtime, week holidays, national holidays and general holidays.The equivalent of the work in the form of wages, premiums, bonuses and all kinds of remuneration is included in the concept.

Indeed, according to the regulations in legislation on wage, in case of the number of Employees employed across Turkey for the same Employer is at least 5,  there is an obligation to pay the remaining net amount of any payment to be made through the banks after deducting the legal stoppage and the Employer shall have the obligation to prove that the payments have been made. In addition, these payments are required to be in cash and it is not accepted to receive shares from the profit or pay a fee through the provision of benefits. Likewise, the basic rule is to pay Employees’ wages in Turkish Lira. However, it should be pointed out that  in some exceptional cases the wages of the Employee’s may be understood in foreign currency or at a certain exchange rate. In such cases, the payment is to be made in Turkish currency according to the rate in the payment date.

In case the obligations described in this scope are not fulfilled by the Employee, the Employer shall be deemed to have failed to meet the wage obligation if there is a fully or partially unpaid portion of the Employee’s wages and if the specified payday or the usual payday imposed by the Employer throughout the workplace is exceeded for twenty days. However, even if such a day cannot be determined, the rule applies that Employees’ wages must be paid at least once a month. However, if the Employer asks the Employee to continue to work after twenty days have elapsed and does not pay any wages, the Employee may stop and refrain from fulfilling his obligations. The refrain from work as a right expressly provided by the law is not intended to be based on lack in the workplace or any other employer violations other than non-payment of wages. As a matter of fact, the refrainment of Employees to fulfill their employment debt based on their personal decisions cannot be characterized as a strike even if it gains a numerical collective quality. The employment contracts of these Employees cannot be terminated because they are not working. They cannot hire new Employees and their jobs cannot be done to others. The termination of the employment contract by the Employer on the grounds that the Employees have not fulfilled their obligation to work or do not come to the workplace in line with the right to refrain from working, will be evaluated by the courts according to the characteristics of the concrete event, but it will be considered as an invalid termination. In the event that the Employee is subject to conditions, it may be decided according to the provisions of job security: reemployment, compensation for bad faith damage, severance pay, notice pay and other wage receivables. In addition, if the employer has a different attitude towards Employees who avoid employment than other employees, and if the rights of Employees are restricted, as this would also contradict the Employer’s equal treatment debt, Employees may also be entitled to an appropriate compensation of up to four months’ pay.

A contract of employment is a contract in which one party (the Employee) undertakes to work as a dependent and the other party (the Employer) undertakes to pay wages. Therefore, the party requesting the fulfillment of a contract must have fulfilled its own debt, unless it has the right to fulfill it later according to the terms of the contract and the employer has no right to ask the Employee to work or to deduct  wages for days when Employee is not working, unless the obligation to pay the wage that is Employer’s basic debt has been fulfilled. At the same time, since the Employee will receive unpaid wages, the highest interest rate applied to the deposit will be applied for unpaid wages  on the day of payment or, in the absence of such a day, from the end of the twentieth day following the ordinary payday. In this case, the Employer will be deemed to have defaulted, and unless Employer proves that he has no fault in defaulting, Employer is also obliged to recover the damage suffered by the Employee due to the late performance of the debt.

Another right that the law grants to the Employee in the event of non-payment of Employees’ wages is that the Employee has the right to terminate the employment contract for a valid reason and immediately within the scope of Article 24/II-e of the law No. 4857 “If the employer fails to make out a wages account or to pay wages in conformity with the Labour Act and the terms of the contract”. In this case, instead of exercising the right to refrain work, keeping the employment contract still in force and returning to work with the employer paying, as long as the state of non-payment continues without any time restriction, by terminating the employment contract, will also be able to claim severance payments and other labor receivables from the employer if Employee is entitled to such payments

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