Under Turkish labor law, Saturdays are workdays, in principle. However, there were varying approaches by different chambers of the High Court Appeals regarding the consideration of Saturdays in annual leave calculations, in cases where the leave period used by the employee included Saturday(s) and it was not stipulated in the employment agreement whether Saturdays would be deducted from annual leave days. The High Court of Appeals recently rendered a principle precedent upon unification of the relevant chambers, by which settled these different approaches and determined conclusively whether Saturdays should be taken into account as weekend day or as a workday.

I. Previous approaches of different chambers of High Court of Appeals

According to the allocation of duties in the High Court, employment related disputes are examined by both 9th and 22nd Civil Chambers, which sometimes leads to varying practices being adopted by different chambers. The consideration of Saturdays in annual leave calculation was one of those matters, as follows:

The earlier decisions on the matter issued by the 22nd Civil Chamber, ruled that even though Saturdays are accepted as a weekend day, if it has been stated in the employment agreement that Saturdays shall be taken into account as workdays in annual leave calculation, then Saturdays should be deducted from the annual leave days. On the other hand, the approach of 9th Civil Chamber of High Court of Appeals tended to favor that if Saturdays are clearly agreed as a weekend day, then the provisions that provide otherwise would not be legally acceptable.

Aside from these conflicting approaches of different chambers of High Court of Appeals, as of September 2, 2020 all employment-related cases were merged under the appellate jurisdiction of the 9th Civil Chamber of High Court of Appeals. Accordingly the 9th Civil Chamber issued a unification of practices decision on the issues which the two Chambers had diverged upon, including the matter at hand.

II. The background of the dispute which is evaluated by High Court of Appeals after the unification of practices decision

Upon the merger of the 9th and 22nd chambers, the issue of how Saturdays will be considered in the annual leave calculation was evaluated by 9th Civil Chamber of High Court of Appeals. In essence, the matter in question was whether the Saturdays should be deducted from the annual leave, since it is only the weekend days that should not be deducted from annual leave and Saturdays are contractually agreed as rest days.1 In the particular dispute assessed by the High Court, the first instance labor court had accepted that Saturdays should not be deducted. The reasoning of this decision was that both Saturdays and Sundays are non-working days as per the employment agreement, and therefore these days should not be deducted from annual leave.

This decision of the first instance labor court was first reviewed by the Regional Court of Appeals. In this stage of review, the Regional Court of Appeals concluded that the right to rest is under constitutional protection, thus it should not be integrated with other paid leaves. The Regional Court of Appeals added that since the weekend days can be increased in favor of the employee, even though Saturdays are not specifically mentioned as a weekend day, it should carry the same consequences as any other weekend day, i.e., as it is not a working day it should not be deducted from the annual leave.

III. The decision of 9th Civil Chamber of the High Court of Appeals

In its decision, 9th Civil Chamber of the High Court of Appeals first explains its approach regarding Saturdays in cases where it is agreed by the parties in the employment agreement that a Saturday is a contractual rest day and concludes that it is legally possible to acknowledge Saturdays as a weekend day. In such a case, Saturdays should not be deducted from annual leave as per article 56/5 of Labor Law. However, if it has been clearly stated in the employment agreement that "Saturdays shall be deemed as a workday in annual leave calculation" or "Saturdays shall be deducted from annual leave", then these types of provisions are deemed valid and applicable, too.

Accordingly, in the subject matter dispute Saturdays are determined as "contractual rest day", which means that Saturdays are not regulated as "weekend day", and thus, the only weekend day is Sunday. Based on the foregoing, the 9th Civil Chamber ruled that even though the workdays are referred as days from Mondays to Fridays, when Saturdays are not clearly stipulated as "weekend day" in the employment agreement or there is no stipulation stating that Saturdays - or in general terms, the "contractual" rest day(s) - shall not be deducted from annual leave, then Saturdays should be considered as a work day in annual leave calculation and should be deducted from annual leave.

IV. Conclusion

This decision2 is important as it constitutes a conclusive precedent to this on-going debate in labor law regarding the legal consideration of Saturdays (or any day stipulated as "contractual rest day" rather than "weekend day") in annual leave calculation; unifying the different practices of relevant High Court chambers under one principle. The decision clearly explains the conditions that are required for days designated as "contractual rest day" (instead of a "weekend day") to be deducted from annual leave. This is to say, if the parties do not agree to (i) consider the contractual rest day(s) (for instance, Saturday) as a weekend day, or (ii) deduct the contractual rest day(s) from annual leave under the contract; then contractual rest day(s) should be considered as workday and therefore deducted from annual leave.

All in all this decision is an important exception made by the High Court to the pro-employee approach of Turkish labor courts since the High Court, in this matter, required existence of a specific stipulation in the employment agreement in order for employee to enjoy a contractual rest day (i.e., a day other than Sunday, the statutory weekend day, recognized in the employment relationship) as a non-working day (as a weekend day) and not have it deducted in case the annual leave used by the employee covers that day, too.

This article was first published in Legal Insights Quarterly by ELIG Gürkaynak Attorneys-at-Law in December 2021. A link to the full Legal Insight Quarterly may be found here.

Footnotes

1 The terms "weekend day" and "contractual rest day" have different meanings in this context. Under Turkish labor law, the parties are entitled to designate any day of a week, (other than Sundays) as "weekend day" and in such a case, the designated day will be considered as a weekend day. The contractual rest day on the other hand is different from weekend day, as it does not bear the statutory consequences of a weekend day, especially regarding annual leave calculation. In that sense, unlike a "weekend day," "contractual rest day" is merely a day when the employee is not obliged to perform their contractual duties.

2 The decision of the 9th Civil Chamber of High Court of Appeals dated March 2, 2021 numbered 2021/897 E. 2021/5272 K.

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