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09 April 2021

What is Unpaid Leave? How to use?

Barış Dur
| Blog
What is Unpaid Leave? How to use?

What is Unpaid Leave?

There are a few basic facts that are taken into account when providing employment for employees. Perhaps the most controversial of these, due to the lack of sufficient information and regulation on leave, various problems can always be experienced, causing problems between the employee and the employer. For employees, the leaves they need to do their private jobs are divided into paid and unpaid leave. While paid leaves are defined as those whose form and duration are determined by laws and regulations, unpaid leaves are those that are arranged based on the agreement reached between the employee and the employer. In this article, in which we will generally examine the issue of unpaid leave, we will try to present you with other details about the rights of the worker and employer and the unpaid leave.

Businesses that have come to the point of stopping their activities due to the economic and seasonal shrinkage and decreases may want to get rid of personnel costs by allocating some or all of their employees on unpaid leave until they get rid of this situation.

Although there is no article in the Labor Law regulating unpaid leave, leaves that do not correspond to the legal permissions defined in various articles of the labor law and that are understood to be unpaid are included. For example; In Article 56 of the Labor Law numbered 4857, it is obligatory for those who will spend their annual paid leaves in another place other than where the workplace is located, to make a request and document this issue, and to give unpaid leave up to four days by the employer in order to meet the periods of travel on their departure and return. Again, in the clause (j) of Article 55 of the Labor Law, which explains the cases that are considered to be worked in the calculation of the annual paid leave right, "Other leaves given by the employer are counted. The leaves mentioned here are paid and unpaid leaves given to the employee at the employer's own discretion.

Same way; According to paragraph 5 of Article 74 of Labor Law, "Up to six months unpaid leave is given to a female worker upon her request, after the completion of the sixteen-week period or after eighteen weeks in case of multiple pregnancy." has been called.

If a regulation on unpaid leave is made in the service contract between the employee and the employer or in the collective labor agreement made at the workplace, the right of unpaid leave can be used in accordance with this situation.

If there is no regulation regarding unpaid leave, the employee must notify the employer in writing of his request and consent for unpaid leave and the employer must accept this request. Contrary to the regulation in this direction, the employer cannot allow unpaid leave unilaterally and against the request of the employee.

Notice and severance pay will be required because the employers send the employee to unpaid leave against his will, which will mean the termination of the employment contract.

In a decision of the Supreme Court, "the plaintiff's work without the consent and written consent of the plaintiff is an action termination of the plaintiff's unilateral unpaid leave by the employer, and according to the established rules of our office, this constitutes the unjust termination of the employment contract for the plaintiff worker and the worker is also entitled to notice compensation." he said.

As can be clearly seen in this decision of the Supreme Court, such unpaid leaves legally mean that the employer terminates the employment contract unilaterally and the rightful termination and compensation right arises for the employee.

In practice, unpaid leave or suspension, which is called compulsory vacation, is possible only with the acceptance of this by the workers, in other words, with the formation of an explicit or implicit agreement between the parties on this matter. Otherwise, the workers may demand their wages from the employer who does not accept their work, as per BK.m.325, or they may terminate their employment contracts for justified reasons.