I think this is one of the most frequently asked questions of lawyers. Employees (workers) apply to leave the job and receive severance pay for this reason, while the employer does not know what to do with the thought of what retirement, where did it come from, why should I pay severance pay at this age, by looking at whether the request to leave is sincere. And it’s a debate going on.
The legal situation is as follows; Provided that a total of 3600 days of premium has been paid, those who have an actual service period of 15 years are entitled to leave the job due to retirement and receive severance pay. This issue is based on Article 14/5, the last and only article of the old Labor Law No. 1475, which remains in force and still remains valid.
The relevant article is as follows: “… the first paragraph of the 60th article of the Law No. 506 (A) clause (a) and (b) due to leaving the job voluntarily after completing the other conditions other than the ages stipulated in its sub-clauses or the insurance period stipulated for the provision of old-age pension according to the Temporary Article 81 of the same Law and the number of premium payment days … For the full year, the employer pays the employee a 30-day severance pay…“
The actual situation that occurs as per this article of law is also called partial retirement in practice. Employees who want to resign due to this regulation must be paid severance pay, provided that they fulfill certain conditions.
In such a case, Article 14 of the Labor Law No. 1475. According to the article, in order for the employee to be entitled to severance pay, the actual service period must be 15 years, provided that he has worked for at least one year in the employer’s workplace and 3600 days of premium have been paid throughout his working life.
In order to receive severance pay, the reason for leaving the job must be clearly stated as fulfilling retirement conditions other than age and must be based on Article 14/5 of the Labor Law No. 1475. An employee who is entitled to Severance Pay must be submitted to the employer with the inscription “He is entitled to severance pay” to be obtained from the Social Security Center Directorate to which he is affiliated. Otherwise, in terms of personnel who cannot prove their status, the petition may not be processed by the employer. In short, the burden of proving that he meets the legal requirements is on the worker. In this way, it is not necessary to give any notice prior to departure.
CAN’T A PERSONNEL LEFT WITHOUT WORK IN THIS WAY NO LONGER WORK IN ANOTHER JOB?
If the reason for retirement is based, will the worker give a kind of sincerity test and go to retirement status, or will he still be able to go and work in another job? This discussion was very serious at first.
However, the Court of Cassation found that the employer’s demand for compensation from the worker, who started to work again in a different workplace after receiving his compensation, was unjustified, alleging that his right was abused. After this decision, as it can now be easily expressed; There is no obstacle for people in this situation to work again after leaving the job due to partial retirement.
CAN THE PERSONNEL LEFT WITHOUT WORK IN THIS WAY CONTINUE TO WORK WITH THE SAME EMPLOYER?
According to the law, there is no obstacle to this. This workplace can be another workplace or the same workplace. However, there is an important distinction here. The employer has to pay the employee all the rights arising from the law, such as accumulated annual leaves, as well as severance pay due to partial retirement. In this case, the previous working period is deemed to have been completely liquidated. For this reason, personnel who want to continue working with the same employer have to start working with a new service contract.
Supreme Court 22. The decision of the Civil Chamber, dated 27.11.2018 and numbered 2016/93 Basis, 2018/25580 Decision points to this situation; “…In the concrete case, the plaintiff’s first term work at the defendant’s workplace between … terminated due to retirement and has been liquidated by paying severance pay., By combining the plaintiff’s first term work and the second term work between … It was wrong to award compensation …”
WHAT IS THE ADVANTAGE OF LEAVING THE WORK FOR THE WORKER BY CLAIMING SUCH AN ITEM?
By terminating the employment contract without waiting for the actual retirement date, the worker has the right to receive a guaranteed severance pay. If he has in mind to work in a new workplace or to do other jobs, he gets this right without risking severance pay.
WHAT IS THE ADVANTAGE OF WORKING SUCH FROM THE EMPLOYER’S PERSON?
From the point of view of the settled decisions of the Supreme Court, the accumulated severance pay and accumulated annual leave etc., since the previous period was liquidated. When paid, the previous working period is deemed to have been liquidated. As a requirement of this, the parties can re-determine the working conditions completely at their own will. For example, different wages, titles or working hours can be determined. In terms of annual leave, the same conditions may apply to a newly hired employee. Even if the sense of belonging of the worker is lost due to the severance pay, he may find the opportunity to work with his (former) worker under much more advantageous conditions, depending on the agreement with the transferred issues. From a cumulative point of view, it also reduces the risk of seniority in the workplace a little bit.
SO, CAN EVERY EMPLOYEE LEFT WITH SENIORITY COMPENSATION WITH THE CONDITION OF 15 YEARS OF INSURANCE AND 3600 PREMIUM PAYMENT DAYS? No, he can’t. First, the request must comply with the rule of good faith, and second, it must comply with the legal deadlines.
a- Compliance of the request with the rule of good faith: If the employer claims that the employee was terminated in violation of the rule of good faith, he may refrain from paying severance pay. As a matter of fact, one of the most well-known basic principles of law is this: The law does not protect the abuse of right.
As a matter of fact, in the case mentioned below, the insured exercised his right of severance pay for 15 years and 3600 days. However, he wanted to use his right to severance pay in the form of finding a new job and leaving his old workplace with compensation. In summary, he used this right to receive compensation, contrary to the rule of good faith. Against this situation, the Supreme Court 9. In its Decision No. 2013/11223 and 2015/9012 dated 04.03.2015, the Civil Chamber decided that the claimant terminated his employment contract after finding a new job and signing an employment contract, therefore, the claimant’s severance pay request should be rejected. The said decision is as follows; “In the concrete dispute, the plaintiff worker first found a job and signed a contract, although he had the legal conditions, and then he terminated the employment contract on the grounds that he met the retirement conditions excluding age. The plaintiff worker did not use his right of termination in accordance with the rule of good faith in the face of the regulation of Article 2 of the Civil Code and Article 23 of the Labor Law No. 4857. It is clear that the plaintiff terminated his employment contract upon finding a new job and signing the employment contract. The law should not protect the abuse of right. For this reason, it is wrong to accept the claimant’s severance pay request with a written reason instead of rejecting it…”
b- Secondly, the request must comply with the legal deadlines:
In order to qualify for severance pay in case of resignation, the first date of employment must be before 08.09.1999 .
Employees with first employment notifications between 08.09.1999 and 30.04.2008 will be entitled to severance pay, provided that they have been insured for 25 years and paid a premium of at least 4500 days, if they resign pending their age.
Those who started to work for the first time after 01.05.2008, on the other hand, will be entitled to severance pay if they meet the conditions of 25 years of insurance and 5400 premium days and leave the job pending their age.
CAN AN EMPLOYEE RELEASE SENIORITY COMPENSATION WITHIN THE SCOPE OF THE SAME REGULATION WHEN LEAVE FROM THE SAME WORKPLACE OR ANOTHER WORKPLACE WHEN LEAVING FROM THE WORK FOR THIS REASON?
As we mentioned above, an employee who quits his job can work in the same workplace or in another workplace. Will he be able to receive severance pay again when this work ends and he requests severance pay again for the same reason? 14 of Law No. 1475. There is no provision for this situation in the article. However, the answer to this question is that both in the doctrine and in the Supreme Court decisions, the employee who receives severance pay can not claim severance pay for the same reason, even if it is possible to work again. As a matter of fact, in the content of the Supreme Court decision given in this direction, it is stated that the worker can use this right once and if it is a matter of discussion, it should be investigated whether he received severance pay from the previous workplace.
In its decision dated 07.03.2016 and numbered 2014/33390 E. and 2016/4940 K. of the 9th Civil Chamber of the Supreme Court of Appeals, it is clearly stated: “…The right to severance pay arising from separation can be used once in case of retirement for normal allocation purposes or retirement conditions other than age. is one of the rights. Once the worker uses this right, he cannot demand severance pay again based on these regulations for the next working period…”
Erdal Kardas
