There are retired employees who are often seen in many businesses. This situation occurs as a result of the employees exercising their retirement rights as required by law and continuing to work in the same workplace. Since this personnel segment is highly experienced, the companies they work for most of the time do not want to lose an experienced member, or they want to continue working in some way, even if they are retired due to their living conditions. As a result, some of the employees who are experienced, proven, and specialized in their job are very useful and can continue to work with the same employer after retirement, as mentioned. In such a case, the pre-retirement working period is called the I. working period, and if the working period is the post-retirement working period it is called the II. working period,
Employees are satisfied, employees are satisfied, of course, there is nothing strange here, but the following question or problem arises from time to time; this staff who is in the II. working period how will the legal rights and compensations be paid to them when the employment contract ends, according to what and how will they be calculated? There is the first term, and then there is the second term, but in this second term, the working conditions, wages, annual leaves, etc. How will it be evaluated? In other words, if the second employment contract, established after retirement, is terminated in a way that entitles to severance pay, how will the period based on compensation be calculated?
This issue is still met with hesitation in practice, on the other hand, at this point, some employers are worried about working with such extremely valuable and sometimes rare personnel, with the fear that they will pay much more than their severance pay.
In fact, these concerns have been resolved with the settled decisions of the Supreme Court for a long time. We would like to open a little bit about this subject, which causes hesitation because it is not well known in practice.
In accordance with Article 14 of the previous Labor Law No. 1475, which is still in effect., if the premium payment day and the actual service period are completed, the employment contract can be terminated due to retirement, without the need to wait for retirement, and the right to severance pay can be earned.
In addition, personnel who have completed the age requirement and the number of premium payment days are also entitled to a pension by submitting a retirement petition.
If the employee submits a letter from SGK stating that he meets the conditions for termination due to retirement, together with the will to terminate, the employment contract is deemed to be terminated due to retirement. In such a case, the employer is not obliged to continue to employ the worker in the same job after this notification. As well as saying goodbye by paying the severance pay and all receivables inside, the employer can continue to work with the retired employee if the parties mutually agree. Moreover, since the retirement age is relatively early in our country, there is a serious population of young retirees, so post-retirement work is also very common.
Termination of employment due to retirement is an exclusive right of the employee. In other words, no one working under the Labor Law can be forced into retirement under normal conditions. For this reason, terminations of employment contracts due to retirement are a kind of exceptional exit and it differs from other reasons for termination.
The opinion of the Supreme Court on this matter is that if the employee who quits his job due to retirement starts working again in the same workplace and if the severance pay is paid on the date of retirement, the seniority right is reset. In other words, after retiring and receiving severance pay, a new period of work begins for the employee working in the same workplace. The severance pay to be paid when the employee leaves this workplace again must be calculated over the period after retirement.
This is the only reason why the first and second-semester work is so sharply separated. For this reason, in working models such as re-employment after other types of work done in the form of input and output or the payment of the accumulated severance pay due to the personnel’s need for money, the first term work is not liquidated, and it should not be confused with the situation we have briefly described.
If the employee’s legal progress payments, including severance pay, are paid in full, in a single retirement, then the work done before retirement is considered to be legally liquidated. In other words, the retirement and pre-retirement period are eliminated from the very beginning, they are reset. Therefore, if re-employment is started after retirement, this post-retirement working period is brand new work, that is, it is considered work that starts from scratch. For this reason, in the new period, you can mutually determine the wage, annual leave period, and fringe benefits from the beginning and as you wish. For example, with a lower, higher, or a different wage, or the annual leave period is longer or shorter than the previous period, etc. It is necessary to conclude a new employment contract with different conditions, such as the previous one, or with exactly the same conditions as the previous one.
To be concrete, for example, if the employee quits the workplace where he has worked for 15 years due to retirement and is paid severance pay and other progress payments, then this working period is deemed to have been completely liquidated. If he started to work again after retirement and worked for 5 years, at the end of these 5 years, he left to be entitled to severance pay, while the severance pay to be paid to him by the workers 2. working period. This is done by taking into account the last 5 years of seniority, which coincides with the working period, and the existing working period before retirement is not taken into account since it has been liquidated before.
The key point here is that when leaving due to retirement, all progress payments including severance pay, ie annual leave, premium, etc., if any. such as all receivables have been paid in full to the employee and this period has been released. If there is an incomplete payment, in this case, the pre-retirement period will not be deemed to have been liquidated, and the severance pay to be calculated after 5 years of work in the aforementioned example is calculated over 20 years by adding the previous 15 years of seniority, and 1. Working period. The calculation is made by deducting the severance pay paid at the end of the working period from the resulting figure.
Supreme Court 22. The Civil Chamber pointed out this issue in its decision dated 29.04.2014. In this decision; “… After retiring, the plaintiff re-entered the same workplace on 02.12.2005 and after working until 11.09.2009, he rightfully terminated his employment contract upon the adverse change in business conditions. In this case, the plaintiff can only ask for severance pay for the working period after retirement. In this case, since the plaintiff retired on 25.06.2005 and his services before the said date were liquidated due to the payment of severance pay, severance pay should be calculated by accepting the date of 02.12.2005, when he started working for the second time, for the working period only after his retirement. Without taking these material and legal facts into consideration, the court’s decision in writing by including the working time before retirement into the calculation of the severance pay, which was paid severance pay, was contrary to the procedure and the law, and necessitated breaking it, is called.
We said above that unless the severance pay and other legal rights are fully paid, the previous period cannot be said to have been liquidated. Indeed, the Supreme Court 9. The Civil Chamber also points out this issue in a decision dated 19.12.2019; “…It should be accepted that the plaintiff worker did not claim the difference severance pay based on an underpayment for the first period, assuming that the works will be evaluated as a whole in accordance with the provision of Article 14/2 of the Law No. … According to the situation, if the severance pay of the worker is not paid in full, the next studies and the first term studies should be combined, and the payment made should be deducted with the legal interest…”
In another decision of the Supreme Court 9. Civil Chamber dated 25.05.2015, “…it is determined whether the severance pay for the first term work of the plaintiff is fully paid, and if it is paid in full, it is accepted that the first term work is liquidated, and if the first term work is not paid in full, the conclusion is reached. It was stated that the payments should be accepted as advances and the decision should be made by deducting as it is now.
At this point, we should warn that some employers will continue to use annual leave anyway, from the 1. Working period. Failure to fully liquidate the working period with the thought of not paying the accumulated annual leave fee at the end of the term and allowing these leaves to be used in the future is such a fine detail that it may cause them to face a serious and unfavorable legal problem and suffer damage in the future. It is necessary to see this detail. Law is not a simple science; it requires a meticulous and detailed approach.
As can be seen, the practice of Labor Law and the Supreme Court decisions, which are one of the most important sources of this, reveal the situation very clearly and show that there is no situation to hesitate. It is enough to capture this detail.
Erdal Kardaş
Lawyer / Managing Partner of K&P LEGAL LAW OFFICE
