An employment contract creates a continuous obligation, and in certain cases, it may be suspended. In general terms, suspension refers to the temporary cessation of the employee's obligation to perform work without the employee being at fault. However, the suspension of employment contracts is not explicitly regulated under Turkish Labor Law No. 4857. For suspension to occur, certain reasons must exist, which may originate from either the employee or the employer.
The Labor Law does address certain instances where suspension may occur. For example, if an employee is on medical leave due to illness or injury, and this period exceeds six weeks beyond the notice period, the employer may terminate the contract for just cause. During the medical leave period, the employment contract remains suspended. Similarly, in the case of maternity or pregnancy, the contract is suspended during the statutory maternity leave and an additional six weeks. Unless the employer exercises the right to terminate for just cause, the suspension continues. Furthermore, if a force majeure event prevents the employee from working for more than one week, the contract remains suspended unless terminated.
Suspension due to reasons related to the employee may include illness, workplace accidents, pregnancy, military service, other public duties, force majeure, or participation in a strike or lockout. On the employer's side, suspension may be caused by a temporary cessation of business operations, economic or technical reasons, natural disasters like fires, earthquakes, floods, or situations like strikes, lockouts, or unpaid leave. Additionally, the parties may mutually agree to suspend the employment contract within the legal framework of contractual freedom.
For an employment contract to be suspended, there must be either a temporary impossibility in performing the work obligation or accepting the performance, or the mutual consent of the parties. Once the cause of suspension is removed, the employment contract resumes, and the mutual obligations of the parties come back into force.
During the suspension period, the employee's obligation to work and, generally, the employer's obligation to pay wages are temporarily paused. However, other obligations stemming from the employment contract continue. For instance, the employer's management rights, the employee's duty of obedience, and the employer's duty to ensure the welfare of the employee remain in effect. Similarly, the employee must avoid conduct that could damage the employer's reputation and must maintain their duty of loyalty.
Under Article 40 of Labor Law No. 4857, an employee who cannot work due to compelling reasons is entitled to half pay for up to one week. Similar provisions are found in Supplementary Article 2 of Law No. 4447. Article 409 of the Turkish Code of Obligations No. 6098 also obliges the employer to pay a fair wage for the period in which an employee in a long-term employment relationship is temporarily unable to work, in proportion to the work performed, unless compensated in another way. Furthermore, under Article 49 of the Labor Law, employees who are paid on a fixed monthly basis are entitled to their full wages, even if they are absent due to illness, leave, or other valid reasons.
The duration and termination of fixed-term employment contracts are not affected by the suspension; the suspension period does not extend the contract's duration. If the contract expires during the suspension period, the employment relationship ends as per the original agreement.
In the case of indefinite-term contracts, the situation is different. According to Article 432 of the Turkish Code of Obligations, "the notice periods for termination do not run during the suspension of the employment contract." Thus, if notice of termination is given before the suspension, the notice periods are paused during the suspension and resume once the suspension ends. Therefore, the employer cannot immediately dismiss employees by paying wages for the notice period in advance (as per Article 17/5 of the Labor Law) during the suspension period. Any termination during this period would only take effect after the suspension ends, as confirmed by Court of Cassation rulings.
In conclusion, the suspension of an employment contract temporarily halts the rights and obligations of both the employee and the employer. However, the right to terminate the contract is not entirely removed during this period. It is clear that the reasons for suspension should not be used as a ground for termination, with the exception that, under Law No. 4857, an employer may terminate the contract due to illness or injury if the period of medical leave exceeds six weeks beyond the notice period. Furthermore, the termination conditions for fixed-term and indefinite-term contracts differ during the suspension period, and it is crucial that the parties exercise their rights in accordance with the law. Once the suspension period ends, the employment relationship resumes, and any notice of termination takes effect after the suspension period.
References: Süzek, Sarper. Labor Law. 23rd Edition, Beta Publishing, 2023, pp. 512-532.
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.