Material Change in Working Conditions and Termination of Employment Contracts due to such Changes
Material change in Working Conditions and Termination of Employment Contracts arising from these material changes are regulated under Article 22 of the Labor Code Numbered 4857 (hereinafter referred to as the “Code”). The article is as follows:
Article 22. – “Any material change by the employer in working conditions based on the employment contract, on the rules of work which are annexed to the contract, and on similar sources or workplace practices, may be made only after a written notice is served by him to the employee. Changes that are not in conformity with this procedure and not accepted by the employee in writing within 6 (six) business days shall not bind the employee. If the employee does not accept the offer for change within this period, the employer may terminate the employment contract by respecting the term of notice, provided that he indicates in writing that the proposed change is based on a valid reason or there is another valid reason for termination. In this case, the employee may file a lawsuit according to the provisions of Articles 17 and 21.
By mutual agreement the parties may always change working conditions. Change in working conditions may not
be made retroactive.”
Which changes in working conditions are within the scope of the above-mentioned article 22?
All the governing rights and obligations arising from the employment relationship are considered “working conditions”. By taking into consideration the article 22 of the Code, the entire employee and employer relations resulted from the Constitution, codes, employment contract, collective agreement, personnel regulation, other similar sources and workplace practices shall be accepted as “working conditions”. Although, the labor court is authorized to evaluate in each case, whether the changes made by the Employer are material or not, the below
items may be listed as certain issues subject to court evaluation:
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- changes in remuneration ;
- changes in the nature of business;
- changes of the workplace ;
- transfer of the employee to another workplace;
- Moving the working place;
- changes in working hours.
Whilst evaluating whether a change in working conditions shall be accepted as a material change, the Supreme Court uses the criteria; whether the working conditions of the employee becomes heavier or not; or when compared with the employee’s situation before the change, whether there is a negative or disadvantageous change in terms of the employee’s interests.
Management Right of the Employer
If there is a provision in an employment contract stipulating that the employer is entitled to make changes in working conditions whenever it is necessary, then there is an expanded management right of the employer. In such circumstances, the employer has a permanent right to make changes in the working conditions of the employees provided that the changes are within the limits of the employment contract and the management right is not abused. If, for example, there is a provision stating that the employee can be transferred to another workplace of the employer, whenever it is necessary, then the employer’s right of change with respect to this matter is reserved. This right must be used in an objective manner. If the provision is applied to force the employee to resign, then there is an abuse of management right.
It is also stipulated in the second paragraph of the article 22 of the Code that working conditions can be changed at all times with the mutual consent of the parties.
Procedure to be followed
It is very clear from the wording of article 22 that this article shall be applied, if changes made by the employer are material. Pursuant to the article, the employer can make material changes in working conditions only after a written notice is served to the employee. The employee’s acceptance regarding the material change served upon shall also be in writing.
According to the doctrine, the employer cannot inform the employees of the proposed changes by a general announcement such as a bulletin. The employer must serve a written notice to each employee.
Changes that are not in compliance with this procedure and not agreed by the employee in writing within six (6) business days shall not bind the employee.
However, in the judgment of the Court of Appeal General Assembly of Civil Chambers dated 4 November 2009, with the number 2009 /9 -416 and 2009/474 K., it is stated that if an employee does not give his/her consent in writing but engages in behavior, which can definitely be construed as an acceptance, then the changes in working conditions shall be deemed to have been made by mutual agreement.
The employer may renounce the proposed change until the reply of the employee reaches to the employer. If the employee does not accept the proposed change, he/she shall continue to work at the workplace with the same conditions before the proposed change. In such a case, the employer may choose to renounce the proposed change or to terminate the employment contract by alleging that the proposed change is based on a justifiable ground or there is another justifiable ground for termination of the employment contract.
Pursuant to the judgement of the Court of Appeal General Assembly of Civil Chambers dated 4 November 2009 with the number 2009 /9 -416 E. and 2009/474 K., the existence of justifiable grounds are determined in two stages.
At the first stage, the existence of justifiable grounds is determined according to article 18 of the Code. Justifiable grounds may arise from the sufficiency of the employee or the acts of the employee or the requirements of the management. The Code does not list the justifiable grounds thus leaves to the court’s consideration in each case whether there is a justifiable ground or not.
At the second stage, it is considered whether the proposed change in working conditions is in accordance with the law and the collective agreement; whether it is in conformity with the principle of proportionality and whether it is fair to expect the employee to accept the proposed change.
If several changes have been proposed in the contract of employment, the court shall consider one by one for each change whether it is fair to expect the employee to accept the proposed change. If it is concluded even only for one of the changes offered that it is not fair to have such an expectation from the employee, then the court shall render a judgment that the termination of the employment contract is fully invalid. It is not possible for the court to decide that the termination is partly acceptable and partly not.
The employer shall propose the employee the best possible change that has minimum negativity for the employee’s interests. If it is concluded that the proposed change is the only alternative for the employer to refrain from the termination of the employee’s employment contract; the court shall not consider whether it is fair to expect the employee to accept the change.
It is pointed out in the judgment of the Supreme Court dated 06.03.2014 numbered 2012/36916E. 2014/7357K. that proposed changes and termination notice together with its with its justifications shall be notified in writing to be considered as valid.
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