THE CONCEPTS OF FORCE MAJEURE

THE CONCEPTS OF FORCE MAJEURE-COMPULSORY REASON

Abstract: In Turkish Labor Law, the concepts of “force majure” and “compulsory reason” are sometimes used interchangeably but do not have the same meaning with each other. As a matter of fact, compulsory reasons is a higher concept that includes force majeure and unexpected situations and some events or phenomena that are not comprised by them. In the present study, we will try to explain the concepts of force majeure and compulsory reason.

In the Labor Law numbered 4857, there are several articles about the potential impacts that may arise in the enforcement of the employment contract as a result of the force majeure, but the definition of the concept of force majeure is not included. However, in the Regulation on Short Work and Short Work Allowance, the force majeure is defined as “not caused by the employer’s own management and administration, unpredictable, and as a result of which it cannot be disposed of, periodic situations resulting from external influences that result in a temporary reduction in working time or a complete or partial suspension of the activity or situations such as earthquake, fire, flood, landslide, epidemic, mobilization.

First of all, we would like to state that the concept of “force majeure” is included in articles 24/1-III and 25/1-III of the Labor Law. It is stated in the mentioned articles that the force majeure may be caused by the employee or the employer and it is regulated that if force majeure necessitating the suspension of work for more than one week in the establishment where the employee is working, the employee may terminate the employment contract for just cause; or if a force majeure preventing the employee from performing his duties for more than one week, the employer may terminate the employment contrat for just cause. 

Again, in the 40th article of the Labor Law, it is regulated that the employee who can not work or who is not engaged in work due to the reasons set forth in subsections III of Articles 24 and 25 shall be paid, up to one week, half his wages for each day. In addition, Labor Law m. In accordance with 46/5, it is regulated that if work is suspended in an establishment for more than one week on account of force majeure, the wages payable to employees for days not worked due to force majeure in accordance with subsections III of Articles 25 and 26 shall be paid also for the weekly rest day.

According to Article 55/1-d of Labor Law, it is regulated fifteen days of any period during which the employee has not worked because of the temporary but interrupted suspension of operations for longer than one week owing to force majeure, on condition that he has subsequently resumed work;

On the other hand, “compulsory reasons” is regulated in the Articles 42/1 and 64/1 of Labor Law. In the Article 42 of Labor Law titled “Compulsory Overtime Work”, it is regulated that all or some of the employees may be required to work overtime either in the case of a breakdown, whether actual or threatened, or in the case of urgent work to be performed on machinery, tools or equipment or in the case of force majeure, provided that it shall not exceed the time necessary to enable the normal operating of the establishment. In these cases employees must be allowed an adequate time for rest. Based on this article, it is stated in the doctrine that any unexpected event that occurs outside the will of the employer and causes the workplace to work significantly less than normal working hours or to suspend the operation can be considered as a compulsory reason. In this respect, the concept of compulsory reason can be defined as an extraordinary situation (concept) that occurs due to an involuntary reason outside or within work or the employer’s action, and that suddenly occurs and disrupts the usual action of the operation.

In the article 64, it is regulated as, “In cases where time worked has been considerably lower than the normal working time or where operations are stopped entirely for reasons of suspending work due to force majeure or on the days before or after the national and public holidays or where the employee is granted time off upon his request, the employer may call upon compensatory work within two months in order to compensate for the time lost due to unworked periods. The President is authorized to increase this period up to twofold. Such work shall not be considered overtime work or work at extra hours.”

Based on the aforementioned legal regulations, it is seen that unlike the general legal rules, the force majeure in Labor Law does not terminate the employment contract by itself. In other words, if a force majeure occurs in a workplace, the employment contract does not terminate immediately, different legal consequences arise, and if there is a temporary impossibility of performance due to the force majeure, the employment contracts are suspended. However, if the force majeure causes a permanent impossibility of performance, it will be considered as a reason that makes it possible to terminate the employment contract. Again, based on Article 42 of the Labor Law, if in the case of a breakdown, whether actual or threatened, or in the case of urgent work to be performed on machinery, tools or equipment and finally in the case of force majeure will constitute a compulsory reason, it is concluded that the concept of compulsory reason includes both the concepts of force majeure and the unexpected circumstance.

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