I. Annual Leave Regulation in Turkish Law
The right to annual paid leave is guaranteed by the Constitution, and its framework has been shaped by the regulations made in the Labor Law No. 4857 and Supreme Court decisions following the developing situations. Article 53, paragraph 2 of the Law No. 4857 clearly states that "the right to annual paid leave cannot be waived".
Article 53 of the Law No. 4857 regulates annual leave periods as follows;
Duration of annual paid leave to be granted to employees, shall not be less than for length of service as;
- Fourteen days for those from one year to five years (including five years),
- Twenty days for those with more than five years and less than fifteen years,
- Twenty-six days for those with fifteen years (inclusive) or more.
The annual paid leave periods of workers employed in underground works shall be increased by four days.
However, the period of annual paid leave to be granted to employees aged eighteen and under and to employees aged fifty and over shall not be less than twenty days.
Annual leave periods may be increased by labour contracts and collective labour agreements.
While Article 53 of the aforementioned law regulates the annual leave periods, Article 54 of the aforementioned law regulates the working periods to be taken as basis in case of working in the workplace or workplaces belonging to the same employer in the entitlement of annual paid leave, which is the main subject of our article. In the legal regulation1 ; in the calculation of the period required to qualify for annual paid leave, it is stated that the periods that the workers work in one or various workplaces of the same employer will be taken into account by combining the periods they have worked in one or more workplaces of the same employer, and the periods that the employees working in the workplace of an employer within the scope of Law No. 4857 will also be taken into account in the workplaces of the same employer without being covered by Law No. 4857.
Within this context, in our article, the periods taken into account in the calculation of the annual paid leave period will be examined, especially in the event that the employee who left the job due to retirement starts working again in the workplace of the same employer.
II. Calculation of Annual Leave Entitlements of Employees Working in the Workplace of the Same Employer After Retirement
Article 54 of the Law No.4857 states that the previous working period shall also be taken into consideration in terms of annual paid leave entitlement if the employee, who has used all of the annual leaves which was entitled to in the previous working period or who did not use all of them but paid for the remaining annual leaves on the date of termination of such employment contract, starts working at the workplace of the same employer ; however, in the decisions of the Supreme Court in the previous period, it was emphasized that the previous period, which was liquidated by paying all rights, including the remaining annual leave fee, would not be taken into account in the annual leave calculation.
However, as seen in the recent decisions of the Supreme Court, it has been consistently accepted that in the case of intermittent work for the same employer, the previous period of work shall be taken into account in the calculation of annual paid leave and all working periods shall be combined. At this point, workers whose previous working period ended due to retirement are also included in this scope.
In a decision of the 9th Civil Chamber of the Supreme Court2 on such subject it was decided as "... Since there will be no liquidation in intermittent work in determining the seniority based on the annual leave fee, there is no conflict with the law in determining the seniority of the plaintiff based on the leave by adding the two periods of work..." and it is emphasized that the intermittent working periods should be combined.
At this point, the issue to be considered is whether the previous working period or periods will be taken into account in the calculation of annual paid leave entitlement under all circumstances and whether the annual leave entitlements in intermittent work will have an effect on the annual paid leave periods earned in the previous period.
Although this article is about how the annual leave entitlement will be calculated in the event that the employees who leave their jobs due to retirement work in the same workplace, in fact, there is no distinction regarding how the previous working periods ended in terms of annual paid leave entitlement in intermittent work.
Furthermore, there is also no difference in terms of whether the employee works in more than one working period as fixed/indefinite or partial/full-time. While the employee was working under a full-time employment contract under the same employer in the previous working period, if the employee fulfills the performance of work under a part-time employment contract in the next working period, both working periods will be taken into account in terms of annual paid leave entitlement.
In the event that the previous working period ends without the expiration of 1 year period and without entitlement to annual paid leave,, if the worker works again in the workplace of the same employer the previous period is also taken into account when calculating the entitlement to annual paid leave in the last working period. To be proceed with the example; if the first three working periods of the worker last for 3 months each; worker will be entitled to annual paid leave at the end of the first month of the fourth working period.
Another question that comes to mind is whether the period between the working periods will make a difference in terms of the evaluation to be made at this point, and whether the statute of limitations of the previous working period, especially the claims for annual paid leave and other labour receivables, will make a difference. Although some decisions of the Supreme Court emphasize that in order for the previous working periods to be taken into consideration, the claims should not be time-barred, the opinion accepted in the doctrine and emphasized in the recent decisions of the Supreme Court that the previous working periods shall not be considered as liquidated in the calculation of annual leave pay and shall not be time-barred.
In a decision of the 9th Civil Chamber of the Supreme Court3 on such subject it was decided as; "...Again, the periods that are not entitled to leave because they have not completed one year in the previous period of employment should be added to the employee's subsequent work in the workplace or workplaces belonging to the same employer and the right to annual leave should be determined. Annual leave is essentially a right to rest and the previous period is not time-barred in intermittent work..." and it is emphasized that the previous working periods are not time-barred.
At this point, there is no distinction regarding the number of working periods and the duration of each period. Even if each working period of the employee does not last 1 year in itself, when the working periods are added together, the annual leave entitlement will come to the agenda on the date when it completes 1 full year.
Although it is accepted that the annual paid leave entitlement will be evaluated by taking into account the previous working periods regarding in the light of the legal regulation and the decisions of the Supreme Court,, this issue affects the date on which the employee will be entitled to annual paid leave and the period of such annual paid leave. To be proceed with an example; if the first working period lasted 4 years and 8 months and the employee starts working again at the workplace of the same employer, the employee will be entitled to 20 days of annual paid leave in the fourth month of the second working period, not 14 days.
Combining the previous working periods in terms of annual paid leave entitlement does not result in the payment of a differential wage in the next working period for the remaining annual leave period that the employee did not use at the end of the previous working period and which the wage was paid for this reason.
Footnotes
1. Article 54, Paragraph 1 of the Labor Law No. 4857: "In the calculation of the period required to qualify for annual paid leave, the periods of employment of the workers in one or several workplaces of the same employer shall be taken into account by combining them. Furthermore, the periods spent by the employees working in the workplace of an employer covered by this Law in the workplaces of the same employer without being covered by this Law shall also be taken into account." (https://www.mevzuat.gov.tr/mevzuatmetin/1.5.4857.pdf)
2. Decision of the 9th Civil Chamber of the Supreme Court, File No. 2020/663 , Decision No. 2020/3048 , date 26.02.2020
3. Decision of the 9th Civil Chamber of the Supreme Court, File No. 2019/1172 , Decision No. 2019/4261 , date 20.02.2019
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
